Hearing of the House Foreign Affairs Committee and the House Judiciary Committee, Panel II - Rendition to Torture: The Case of Maher Arar
Interview
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REP. NADLER: Thank you. You know, if you consider the fact that if someone were simply kidnapped off the streets of New York or Washington by agents of a European government and spirited abroad, we'd be pretty angry. And we would certainly prosecute. You can see where they're coming from.
MR. GARCIA: Mr. Nadler, you remember the Letelier case.
REP. NADLER: That's right. (Inaudible.)
MR. GARCIA: It happened on the streets of Washington.
REP. NADLER: Yeah, but that was during an administration that was pretty sympathetic to the people who were doing it, actually.
MR. GARCIA: But still, I mean --
REP. NADLER: I know, that's right. It happened on the streets of Washington, but that was the Pinochet regime. And as I recall, it was still Nixon as -- or Ford as president, and they weren't really interested in prosecuting and agent of the Pinochet regime.
Let me come back. Professor Cole, you made some recommendations; you say that we should clarify the law. I agree, although I think it's pretty clear we should apologize -- (inaudible). We should authorize an independent commission. But if we authorize an independent commission, how would they get information? The administration would stonewall them, would claim state secrets, would do everything that they have done to Congress. We can't get the information; why would they get any information? And how would they be able to operate?
MR. COLE: (Off mike) -- well, you know, I think there was a lot of classified information in the 9/11 Commission's investigation. They held in camera hearings. It wasn't as if --
There were struggles over which information would -- (inaudible).
REP. NADLER: But do you think -- do you think an independent commission would be any more successful in getting from the administration the information they don't want to give in Congress's --
MR. COLE: Well, I --
REP. NADLER: Even if they had the power of subpoena, which the administration ignores?
MR. COLE: I think it focuses the attention. Congress has a lot of things to be concerned about. An independent commission, if it were focused on this case or were focused on rendition generally would have the ability that the 9/11 Commission had. I mean, the 9/11 -- we had a congressional inquiry into what happened prior to 9/11. It was a very serious inquiry by Congress. But then we followed it up with the 9/11 Commission, and the 9/11 Commission was able to spend more time, was able to get more information, because of a sustained focus on the issue. And I think that's true in the rendition area as well.
REP. NADLER: Not just rendition. I'm thinking of all the different deprivations of liberty and contraventions of war that we've seen in the areas of the Bill of Rights and of liberty generally. It may be. I mean, I've thought of that before.
Let me ask a different question. Special prosecutor, very interesting idea. I wrote a letter to the -- Attorney General Gonzales a year and a half ago when the information first came out about the violations of the FISA act. FISA is a criminal statute. It says that anybody who wiretaps outside the four corners of this statute under -- anyone acting under color of law, which means only a government official, because you can't act under color of law if you're not a government official -- anyone who, under color of law, wiretaps outside the four corners of this statute: five years in jail, $10,000 fine.
Now, we then have the admission that the president every 45 days was signing an executive order to ignore the law, to ignore this criminal statute. I wrote a letter to the attorney general. I said this is a prima facie evidence admission that the president is committing a felony every 45 days, that you as attorney general are conspiring with him to do so, along with other people. There's a criminal conspiracy going on here. You can't investigate yourself, obviously, so under this statute, you are duty-bound to appoint a special prosecutor. And of course I've never received a reply to this letter, nor have they appointed a special prosecutor.
Why do you think we'd have any better luck getting the administration to appoint a special prosecutor in this area to investigate its criminal -- its allegedly criminal activities, which I think are criminal here, than we did there?
MR. COLE: Well, you may not, but again, you have a new attorney general coming in. You have --
REP. NADLER: So we should try the FISA letter again, yeah.
MR. COLE: You might as well, although I think that they've taken an official position in the FISA context that their conduct was not illegal, that it was consistent with the statute. It's not a position that I think any expert has -- (inaudible due to cross talk).
REP. NADLER: Well, they took a position that -- that their conduct was not illegal because under Article 2, the president's power superseded FISA and because of the AUMF, two claims that the Supreme Court, in a different context, knocked (down ?).
MR. COLE: That's right. But nonetheless, you're asking the attorney general to investigate, essentially, himself for a program that he created and that he's made a public argument to Congress is not a crime, is indeed lawful and constitutionally authorized. Here, there's never been argument, a public justification for what was done. You have a new attorney general. I -- you know, I'm quite skeptical that this -- that any attorney general in this administration is going to undertake a serious inquiry into these matters.
But here's an area where we have bipartisan consensus that there was an abuse committed. We have the precedent of Canada conducting a major investigation, ultimately a thousand-page report. This is -- there's some momentum here, and it seems to me it would be worth trying to --
REP. NADLER: I -- there's nothing to lose, except the piece of paper that you write the letter on, and more credibility of the administration.
Let me ask you a different question.
REP. DELAHUNT: If the gentleman would yield
REP. NADLER: Sure.
REP. DELAHUNT: But I think there are ways, if we stay focused on this discrete issue of rendition. What I would suggest is that we convene a hearing and invite the ambassador from Syria to appear in public for a briefing, and that we inquire from the Syrian ambassador --
REP. NADLER: As to the nature of the assurances that were given.
REP. DELAHUNT: As to the nature of the assurances and what happened to Mr. Arar.
REP. NADLER: It's a good idea.
Let me go further, because I'm very interested -- I mean, what happened here was a travesty, obviously, and it's not the only case. We know the al-Masri case and various others. I'm really focused on the question of how you bring to heel an administration that's contemptuous of the law in the way that we've seen here and then otherwise.
Almost anything we get into here -- I mean, you're facing this, the state secrets doctrine. They've morphed the state secrets from an evidentiary privilege into a general bar to actions. What would you think, Professor Cole and anybody -- Mr. Garcia -- of legislation that would toll the statute of limitations on any crime the investigation -- or, for that matter, civil action -- the investigation or prosecution or suit of which was delayed by the state secrets statute, as long as the state secret remains in force?
MR. COLE: I think that would be one way of responding to the state secrets problem. I think it's not the only way. I think, for example, it doesn't seem to me obvious that secrecy trumps all other values. The state secrets privilege is a judicial, federal, common- law creation of the court. It is subject to whatever amendments or elaborations --
REP. NADLER: Well, we are -- I will tell you, we are drafting a statute which we will be introducing. A bill to define and limit the state secrets doctrine.
MR. COLE: That -- I think that's absolutely necessary, because as you suggest, it has become -- it went from a way to protect secret information to a kind of nuclear option for the government where it can just get rid of any lawsuit challenging -- their legality --
REP. NADLER: Every case.
MR. COLE: -- by declaring it a secret.
REP. NADLER: Now, in -- after the experiences of the 1990s, we permitted the independent prosecutor statute to lapse because everybody had bad experiences with it. What would you think of a new special prosecutor statute limited to allegations of abuse of power by the executive that traduced liberty or that abused the -- a coordinate branch of government. In other words, the impeachment power is impractical, given the development of political parties, the impeachment power -- the use of the impeachment power as envisioned by the Framers, I think, is really impractical, because they didn't envision political parties that would automatically defend whoever the president is.
The impeachment powers intended as a limitation on the executive's abuse of power that would threaten liberty or threaten the functions of the other governments -- of the other branches. What do you think of the idea of perhaps having an independent prosecutors statute that's not dependent on the executive, that would be triggered but only with respect to these kinds of allegations of improper acts by the executive against liberty or against the coordinate branch of government or -- rendition and things like that?
MR. COLE: I think it makes a good deal of sense. The bottom line is that there is a conflict of interest whenever the attorney general is asked to investigate himself or high-level Justice Department or executive officials who are accused of criminal activity. That is a serious problem in a democracy. And the independent counsel statute was an attempt to address that.
I think what happened was the independent counsel statute became a kind of political weapon and got out of control. But I think if you limit it in the way that you suggest to the most serious offenses, then it's less susceptible to abuse as a political weapon and it's more justified.
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.
REP. NADLER: Are you contending that our sovereign authority would enable us, would give us the right in terms of exercising sovereign authority to not let him come into this country, would give us the right to send him to someplace where we have good reason to believe that he would be tortured?
MR. GARCIA: I think that the convention against torture in federal statute would prohibit something like that in most circumstances. I think the question about sovereign authority superseding that, I -- I'm not sure I understand. The United States has imposed laws upon itself limiting its exercise of sovereign authority in certain circumstances so that it cannot transfer persons to countries where they would face torture.
REP. NADLER: So that when the government says in its lawsuit, or rather in -- against Mr. Arar's lawsuit, as I heard Professor Cole say, that Mr. Arar has no rights, you would disagree with that?
MR. GARCIA: The question, I believe, that was at issue in Arar was what sort of constitutional rights Mr. Arar possessed, which is a separate question from --
REP. NADLER: Well, does he have rights other than constitutional?
MR. GARCIA: Well, again, under the convention against torture, in its implementing legislation and regulations, we could not transfer him to a place where it was more likely than not that --
REP. NADLER: But only because of the convention against torture.
MR. GARCIA: Right. You could make an argument that the due process clause would attach --
REP. NADLER: Well, let's go to a case where there is no convention against torture.
MR. GARCIA: Okay.
REP. NADLER: Could we decide to export him from the country by taking him out in a helicopter and saying goodbye over the Atlantic Ocean? You know, with a 3,000-feet depth?
MR. GARCIA: I think that's a little different. You know, I think --
REP. NADLER: Why is that different? What would prevent -- what would make that illegal?
MR. GARCIA: There is established jurisprudence that seems to understand that if a person reaches the interior of the United States, they are accorded a greater degree of constitutional --
REP. NADLER: No no. If he didn't reach -- someone who has not entered, it's a summary removal, we're summarily moving him right to the Atlantic Ocean where he may not have a very high life expectancy. The sharks are there. But what would prevent us legally from doing that?
MR. GARCIA: Well, while it's understood that persons who are at the border receive very few constitutional protections, there is some protection recognized against, for instance, acts of gross physical abuse by the United States. So in that circumstance, if that person is right at the border and we were, in your hypothetical, to ship him off to the sea, it would seem like there would be a constitutional protection against that. And you also -- there would also be procedural due process rights that, you know, attach in certain circumstances --
REP. DELAHUNT: If the gentleman would yield for a moment.
REP. NADLER: Sure.
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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.
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