Hearing of the House Foreign Affairs Committee and the House Judiciary Committee, Panel II - Rendition to Torture: The Case of Maher Arar
Interview
Hearing of the House Foreign Affairs Committee and the House Judiciary Committee, Panel II - Rendition to Torture: The Case of Maher Arar
REP. DELAHUNT: (Sounds gavel.) The committee will come to order.
And let me welcome a very distinguished panel. It always seems that the second panel has to have an abundance of patience, but I'm sure that the testimony that you heard was illuminating and certainly put a human face on this issue. Let me begin with the introductions and then we'll proceed to your testimony.
First of all, let me begin with Fred Hitz. He is a lecturer and senior fellow at the Center for National Security Law at the University of Virginia Law School; a graduate of Harvard Law School. And he served in the CIA's clandestine service in Africa. After subsequently working with the State, Defense -- Defense and Energy Departments, he resumed his career at the CIA in 1978 as legislative counsel. He was then appointed the CIA's first statutory inspector general by President George Herbert Walker Bush. He served in that capacity from 1990 to 1998. The Canada Institute of the Woodrow Wilson Center recently published his analysis of the Arar case, and of course, he has another very significant credential: He's from Milton, Massachusetts, which I represented in my previous career as a district attorney and a states attorney. And I'm sure he's also a member of Red Sox Nation and is fervently hoping that the Red Sox pull it out one more time.
Mr. Dan Benjamin is the director of the Center on United States and Europe and a senior fellow in Foreign Policy Studies at the Brookings Institute. From 1994 to 1999 he served on the National Security Council staff under President Clinton, the last year of which, as director of transnational threats. Prior to joining Brookings, Mr. Benjamin spent six years in the International Security Program at the Center for Strategic and International Studies. He has written two books: "The Age of Sacred Torture (sic/Terror)" and "The Next Attack: The Failure of the War on Terror and a Strategy for Getting it Right." And he holds degrees from Harvard and Oxford. Welcome, Mr. Benjamin.
Michael John Garcia is a legislative attorney with the American Law Division at the Congressional Research Service. His practice areas include immigration law, international law and the laws of war. He received his BA from Ohio State and his JD from Georgetown, University. Thank you, Mr. Garcia, for joining us today.
David Cole is a professor of Law at Georgetown University Law Center. Prior to joining Georgetown, Mr. Cole worked as the staff attorney for the Center on Constitutional Rights where he litigated a number of First Amendment cases. He is published in a variety of areas, including civil rights, criminal justice and constitutional law. His books include: "Less Safe, Less Free: Why America's Losing the War on Terror" and "Terrorism and the Constitution: The Sacrifice of Civil Liberties for National Security." A graduate of Yale Law School, he's received numerous awards for his civil rights and civil liberties work. Mr. Cole -- Professor Cole, thank you for joining us.
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REP. DELAHUNT: Thank you.
And before I recognize Mr. Garcia, I just want to direct your attention to the poster with the picture of the attorney general designate. And the headline reads, "Memo: Worse than a Sin." I'm unfamiliar with his testimony, but I like the headline. And it references -- well, let me read some experts from -- excerpts, rather -- from the story. "And in a clear break with Gonzales, Mukasey repudiated a 2000 Bush administration memo on torture, calling the document 'worse than a sin.'" "We don't torture," he said. "It's not what this country is about. It's not what this country stands for. It's antithetical to everything this country stands for."
Those words, that rhetoric, are certainly welcome. And I hope that if the Senate should confirm, that the attorney general will match that rhetoric with deeds and with action. And it's my intention, after this hearing, to consult with my colleague Mr. Nadler about having high-level administration officials who were responsible for the Arar decision to -- regarding Syria -- come before these panels and tell the American people the truth of what happened.
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REP. DELAHUNT: Thank you for your testimony.
Mr. Cole, both you and Mr. Garcia indicated that if the facts could sustain a prima facie case, the torture of someone outside of the United States is a violation of our criminal law. Am I stating that accurately, Mr. Garcia?
MR. COLE: Absolutely.
MR. GARCIA: (Off mike.)
REP. DELAHUNT: Hit the button.
MR. GARCIA: Thank you. The criminal law attaches when a person specifically intends to cause torture out of the United States where, in this case --
REP. DELAHUNT: Does it require a specific intent, or can there be -- and I address this to you, too, Mr. Cole. If it is apparent, if there is a -- rebuttable, but a presumption that sending -- renditing someone to Syria is invariably going to implicate torture, given the history of the Department of State reports. Under those circumstances -- I mean, I just can't imagine how any individual can be rendited to Syria from the United States with the participation of federal agencies and federal officials. It just -- no pun intended, but it's a very tortured explanation to say that we receive diplomatic assurances. And Professor Cole, you, I think, said it far better than I. I mean, the inconsistency, you know, is so gross that it's absurd on its face.
MR. COLE: Well, I think about it this way. If we had a young African American man in federal custody and the Ku Klux Klan had a record of torturing and lynching young, African American men and we turned over that young boy to the Ku Klux Klan with a diplomatic assurance from the Ku Klux Klan that they wouldn't torture or lynch him, and they then went ahead and did it, I don't think anyone would suggest that somehow that alleviates the federal official from putting that individual in that situation.
And I think the same thing is true under criminal law, under constitutional law, and under the civil statute, the Torture Victim Protection --
REP. DELAHUNT: Well, I know you were all present here when I posed the question to Mr. Roach and counsel for Mr. Arar, and now that I'm aware that you are participating in his representation, let me pose the question to you. Has there been any consideration given to requesting the Department of Justice, the attorney general, to either conduct, at first blush, a initial inquiry, or to seek the appointment of a special counsel appointed by the attorney general, to investigate whether on these facts there has been a violation of the U.S. criminal code?
MR. COLE: No, there hasn't, and I think it's a tremendous idea. I think the reason we didn't initially do it is that we brought suit against the attorney general himself, because we had reason to believe that he was involved in this decision, that he and the deputy attorney general made a decision to have him sent to Syria. So the notion that they're going to investigate themselves is highly unlikely. The notion that they're going to appoint an independent counsel is highly unlikely.
But of course we now have -- and then the next attorney general, as we all know, was Mr. Gonzales, who was the perpetrator of many of these policies. So I think now that we will have a new attorney general, maybe there's some hope. But I think it's an excellent idea. We will pursue it.
REP. DELAHUNT: Mr. Garcia, do you want to make any comment?
MR. GARCIA: I think if a diplomatic assurance was obtained, it would be very difficult to prove criminal liability. And the reason is the federal torture statute, among other things, it prohibits a person from conspiring to commit torture outside the United States. And it's understood under jurisprudence that for there to be a conspiracy, there needs to be an agreement between the parties to commit the unlawful act.
Now, if a person can point to an agreement they made with the party that says, "We don't want you to torture," then it seems to me it would be very hard to, you know --
(Cross talk.)
REP. DELAHUNT: I think it would be -- I understand your point, and I think it's -- I'd like to have the parties under deposition or in front of a grand jury posing those questions.
MR. GARCIA: There -- there may be --
REP. DELAHUNT: You know, I mean -- a diplomatic assurance from Syria? It isn't worth the paper it's written on, if it's written.
Let me go to Mr. Hitz. I want to focus on this concept of diplomatic assurance. I mean, we were assured by the secretary of State in a statement that diplomatic assurances were secured. In your experience with the CIA -- and let me direct this to you too, Mr. Benjamin -- in your experiences, how is -- I mean, do you get on a phone and, you know, in the case of -- in the case of Mr. Arar, I mean, do we call Bashir Assad? Is there a formal exchange of correspondence?
MR. HITZ: My understanding, Mr. Chairman, is that it happens at a very low level, and it happens perhaps at the level of the station chief or the intelligence official back in this country, and one of his counterparts may be the receiving official in Damascus. But it's not at the level of state-to-state.
But the important thing here is --
REP. DELAHUNT: But doesn't -- let me interrupt.
MR. HITZ: Yeah, please.
REP. DELAHUNT: When we speak about diplomatic assurance and the secretary of State goes before the American people and the American media and uses that term, it gives it a patina of credibility that it doesn't deserve.
MR. HITZ: I don't think it deserves it. I think it happens, if it happens at all, at a very low level of -- with a wink and a nod.
REP. DELAHUNT: Mr. Benjamin, can you describe what a diplomatic assurance is in the context of this issue of extraordinary rendition?
MR. BENJAMIN: I think that there's been a huge variety in practice. I'm afraid that some of the issues remain classified, but I'm aware of cases in which these were done at the highest levels and my sense is that there have been other cases in which this was not done at very high levels.
And I think that the critical issue here is the context against which these assurances are made. If they're made against a context in which there has been extensive discussions of how a program will be conducted and that it will be conducted explicitly without torture, then that's one thing, and if it's involved with a country like Syria, then I think that your judgment is exactly right. It's not worth the paper it's written on.
A lot will really depend on the broader relationship between the countries. We have countries that have been involved in renditions that are very close American allies and that are very concerned about maintaining their relationship with the United States and, therefore, they're -- while on occasion others may have criticized them, they will take their responsibilities very seriously. But I'd find it prima facie absurd that we would ever listen to the Syrians. And, quite frankly, I believe before 2001 there had never been a rendition to Syria.
REP. DELAHUNT: Before 2001 there had never been a rendition to Syria?
MR. BENJAMIN: That's my -- that is my recollection, and in the course of doing reporting for one of my books I interviewed agency lawyers on this issue and they confirmed that for me.
MR. HITZ: Mr. Chairman, could I interject on this issue of the consultation?
REP. DELAHUNT: Please.
MR. HITZ: I think the key point, and I think Professor Cole hit it very well in his description of this remarkable three-volume-plus recommendations report that Mr. Justice O'Connor has produced in Canada and as Mr. Arar and Mr. Roach said in their testimony to us, that the report speculates on the fact that we -- they had no assurance that the Canadian information was the only information they had with respect to Mr. Arar. But they come down very hard on the issue of the failure to consult with the Canadian authorities before they made the decision to send him to Syria.
Now, the result of this has been -- I think is one of the things we have to take account of -- Mr. O'Connor, Mr. Justice O'Connor, was very -- his report, when you read it, is very positive. You can't throw the baby out with the bath water. It's important that these countries continue to cooperate. We will recalibrate the system; we will be much more sensitive about the information we pass to the United States.
And yet, as a consequence of what took place, the head of the Royal Canadian Mounted Police, the RCMP, was relieved of his responsibilities and this ongoing cooperation that Mr. Justice O'Connor wanted to continue has cooled. It's just not working the way that you would want it to, between countries that are as close as Canada and the United States, not only physically, but in the amount of trade that comes between us. We have paid a price.
REP. DELAHUNT: Well, that leads me to the common theme that you, Mr. Hitz, and Mr. Benjamin and Mr. Cole alluded to. This practice is hurting us in terms of dealing with terrorism directed against the United States. If you step back and examine the shifting attitudes in world public opinion, and that obviously is reflected -- please tell me if I'm making a fair and accurate statement here -- is reflected in intelligence agencies that we've had a cooperative and a collaborative relationship with starting to back off. Is that a -- would you accept that as an accurate statement?
MR. BENJAMIN: I would say that we have a number of partners outside of the Canadian case who feel a very, very important cooperation is imperiled. I think it's important to put yourself in the shoes of these other services, these intelligence services who view their relationship with the United States as being a lifeline for them because, quite frankly, our intelligence capabilities far outstrip theirs.
And so the intelligence officials are deeply worried that the next time there are a lot of headlines about something that we've done that smacks of torture, they'll be facing parliamentary inquiries and a call for reduced cooperation.
And that was why, I believe, at the beginning of this year -- perhaps it was last year; I'm not exactly sure of the date -- there were a number of different countries that were expressing great concerns about our practices, and this was the top -- or a top issue in the discussions with Secretary Rice when she went over there.
And I think that for the time being, these governments are very concerned because their own services are often complicit in one way or another in that they have known about these practices and have winked at them or perhaps have even been involved. But nonetheless, that's the weak link in the chain, and they will come under great pressure to dissociate themselves.
REP. DELAHUNT: Mr. Hitz?
MR. HITZ: And I have to look at it, Mr. Chairman, from the standpoint, sort of, of the working level, the ground level. This case that was made reference to of the effort on the part of the -- an Italian magistrate to try 12 CIA officers and contractors working for CIA and, it must be noted, a senior official of the Italian intelligence service, making the point that Mr. Benjamin made that doubtless there had to be some sort of Italian approval before this Egyptian cleric was picked off off the streets of Milan.
But the fact of the matter is we're not going to honor those subpoenas, and as a former prosecutor, you know how angry that's going to make them over there. And so I would say, with respect to the officials that were involved in this, they may not go to trial in Italy, but they'll never travel to Europe again.
REP. DELAHUNT: Right.
MR. HITZ: And think what that does as a matter of practical efficacy for our officials working abroad. CIA officials don't want to do this stuff. They don't want to be in the business.
RE. DELAHUNT: It ruins the lives of CIA operatives.
MR. HITZ: They know that the clever little lawyer that puts it down on a piece of paper --
REP. DELAHUNT: He's not going to be around.
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REP. DELAHUNT: Thank you.
Let me ask Mr. Garcia, getting back to the more core area of this hearing, you testified that the right to summarily remove someone from our country upon arrival, even someone who's not seeking to enter or remain in the U.S., just transferring planes at Kennedy, which technically may not have been -- Mr. Arar might technically not have entered the country. He didn't go through customs or whatever the test is there.
But you testified the right to summarily remove someone from our country upon arrival, or someone who's not seeking to enter, is based on our sovereign authority to determine who can enter the U.S. Setting aside the fact that Mr. Arar had no desire to enter or remain in the U.S., he was only transiting to his home in Canada, are you contending that sovereign authority permits us to send someone, regardless of the risk that he might be -- somewhere where we have good reason to know that he might be tortured?
MR. GARCIA: I'm sorry; I didn't hear the last part.
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REP. DELAHUNT: If the gentleman would yield for a moment.
REP. NADLER: Sure.
REP. DELAHUNT: In your statement, on page three -- and again, this is a removal procedure under the immigration statute, not dealing specifically with CAT -- you indicate that aliens are to -- removed under expedited removal procedures typically designate the country to which they will be removed. So I presume, in the vast majority of cases, they will be removed to the country that they request to be removed to.
MR. GARCIA: (Inaudible.)
REP. DELAHUNT: However, immigration authorities are not required to remove the alien to the designated country when the designated country will not accept. Mr. Garcia then goes on to write, "or removing the alien to that country would be prejudicial to the United States." I presume that's the jurisprudence that you're referring to, or the precedent that --
MR. GARCIA: That's an actual language within the INA that says that.
REP. DELAHUNT: So, I mean in the case of -- that's why I go back to Arar for a moment and for the administration to say that this was an expedited removal, and reading, you know, reading your statement and your reference to the appropriate provision -- I mean, that's a mockery of our law. It's a mockery of customs and practices by the INS. I mean, prejudicial to the United States to remove him to Canada? What would the prejudice be?
REP. NADLER: Well, let me just say the prejudice would be -- and I think various people have sort of said this, the prejudice would be that he -- that the Canadians had indicated he couldn't be held, he would be released and he'd be a free man and our officials didn't think he should be a free man. That's the prejudice.
REP. DELAHUNT: If the gentleman would continue to yield --
REP. NADLER: Yes, sir.
REP. DELAHUNT: -- I'm going to turn the gavel over to you. I --
REP. NADLER: Well, I think we're about to adjourn anyway, because I'm finished with my questions.
(Cross talk.)
REP. DELAHUNT: Okay, but I will recognize -- I'll recognize the chairman of the Constitution Subcommittee.
REP. NADLER: Thank you. Mr. Chairman, if I may have a moment before we recess to recognize a cherished member of our staff, Susana Gutierrez. Susana will be retiring next Wednesday after many years of service to the subcommittee and to Congress. She's a valued colleague and will be missed, and I want to say to her thank you, Susana. We wish you all the best on your retirement.
REP. DELAHUNT: She is an -- I happen to serve on the Judiciary Committee, and I can corroborate everything that Chairman Nadler said. Best of luck, Susana. (Applause.)
And our thanks to this very distinguished panel, and I -- I have a suspicion that we'll be seeing all of you again at different phases, because as I indicated in my opening statement, this is not the end. The examination of the -- the examination of what happened to Maher Arar.
Thank you. (Strikes gavel.)
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