Hearing of the House Judiciary Committee - Applicability of the Federal Criminal Laws to the Interrogation of Detainees
Interview
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REP. STEVE COHEN (D-TN): Thank you, Mr. Chairman.
I'm not sure who to ask this to; maybe Mr. Rivkin -- (inaudible) -- answer.
Why do you think they made the tapes to start with? I mean, generally, police and law enforcement folks do interrogations. Sometimes they audiotape them. They don't generally videotape them. Why did they videotape them anyway?
MR. RIVKIN: My total speculation -- (inaudible) -- precisely because they felt, especially at the time it took place, in the post- September 11 atmosphere, "We've got to get at the facts." And, quite frankly, in a situation where I think there's plenty of evidence that the intelligence committees were briefed about these techniques, they're willing to get as much intelligence mileage out of it. And I suppose facial expressions, gestures, can yield additional insight into whether or not somebody -- if you look at Bill O'Reilly these days, he puts on experts almost every day --
REP. COHEN: Who?
MR. RIVKIN: Fox -- Bill O'Reilly.
REP. COHEN: Never heard of him.
MR. RIVKIN: Well, there are people who make a career out of interpreting people's gestures. If you shake your head this way, you're telling the truth. If you, you know, lower your eyes, you're lying. So there's probably an additional element of intelligence value that could be squeezed from videotaping --
REP. COHEN: They think they want you to (punch your deal ?). My apologies.
MR. RIVKIN: No, what I was saying is it probably was entirely innocuous, if you wanted to gain additional intelligence insight, because looking at people's facial expressions, the ones you're interrogating, their gestures would tell you more about the credibility of their statements. And I was saying in popular culture there's lots of people who put on their shows experts who analyze politicians, depending on how they look on camera, what is the sincerity of their statements.
And I was saying in popular culture, there's lots of people who put on their shows experts who analyze politicians, you know, depending on how they look on camera, what is the sincerity of their statements. So that would be my interpretation.
REP. COHEN: Does anybody else have an opinion on this?
MS. MASSIMINO: Yes. This is one of the -- we can express our opinions -- this is one of the things that, hopefully, you will find out in your investigations.
But I think the administration has for some years dismissed the claims -- until it was faced with the photographs of Abu Ghraib -- claims of abuse by detainees by arguing that those complaints are part of al Qaeda's strategy. And it very well may be true, but that complaining about abuse is part -- it's part of the al Qaeda manual of what to do when you get captured.
One of the ways that the administration could prove that point is by videotaping. This is why videotaping has become so popular, I think, in domestic law enforcement agencies, is to be able to defend against erroneous claims of abuse by people who have been interrogated.
And one of your colleagues here in the House, Congressman Rush Holt from New Jersey, has for several years proposed legislation that we've supported that would have required the videotaping of interrogations for the purpose of inhibiting abuse and protecting against erroneous claims of abuse. And perhaps that's something that the committee ought to examine, coming out of this incident.
REP. COHEN: Thank you.
Professor?
MR. RADSAN: Thank you, Congressman Cohen.
General Hayden, in his letter to CIA employees, offered an explanation of why they kept tapes of these two interrogations that went over many hours. One was to monitor the compliance with the program by the interrogators, to make sure that they were following the law. I'm not saying whether that's right or wrong; this is his offered explanation.
The second is the point that Mr. Rivkin made that they wanted to have a record, a complete record, for intelligence value, to figure out whether the information was good, whether the person was being deceptive, the person that was being interrogated.
But I think, as your question suggests, there are benefits and there are burdens to having a very complete record, and a video is going to be more graphic than a transcript or an audio -- benefits and burdens that it might come back to hurt you. And maybe we've --
I can give a third point by passing a question to Professor Saltzburg. It's the same issue, or a similar issue, of why does the FBI not record its interviews with witnesses? Why does the FBI not videotape? Because they've determined, on that balance of burden and benefit, that it's better for them to have the only record. They do it through an FBI 302. I would point to the interview. There are states that have gone the other way on their law enforcement and said, we want these things videotaped because we don't necessarily trust the record.
But I think the FBI, in its case, says well, they'd rather have FBI agents testifying about what actually happened, and you could draw the analogy to the CIA.
REP. COHEN: And you were going to pass a question to Professor Saltzburg and, based on your vitae, I think you probably have a good question.
MR. SALTZBURG: I think he's -- the question was isn't this why the FBI does what it does --
REP. COHEN: Yes.
MR. SALTZBURG: And I think it is, but there is another reason, which is -- for why they might have videotaped, very closely related to the -- what was stated to the CIA employees -- and that is, you'll remember that the FBI was telling the CIA not to do what it was doing, that these techniques don't work and that they're harsh and unnecessary. And one of the reasons for making the tapes is, I think, the CIA probably wanted to show that it works. They had a record; their view is they got a lot of intelligence, and if anybody doubts it, they can show you exactly what they did and that it worked, in their view.
And the problem is when they came time to show them these tapes, they may have looked back and said, uh oh -- you know, even if it worked, we don't want people to see what we did.
REP. COHEN: Does anybody on the panel believe that the tapes were destroyed to preserve the anonymity of CIA operatives? Anybody buy that at all? Mr. Rivkin?
MR. RIVKIN: I would only buy it in the context with the following observation, which I made several times today. It is not that you as Congress would reveal this information, but in a time where (everything ?) leaks -- and that's not an overstatementhaving those tapes posted on the Internet, to be leaked, the same way the Abu Ghraib tapes were, in a situation where individuals doing the interrogation were shown, these individuals are overseas, would either destroy their careers, or would --
REP. COHEN: But don't you think --
MR. RIVKIN: -- or would put them, their lives -- may well put their lives in jeopardy.
REP. COHEN: But wasn't it possible to easily block out their face or their identity and still have the tape, but secure the anonymity of the CIA operative?
MR. RIVKIN: Well, again, this assumes that one can guarantee that an unredacted tape would not be leaked or, even if it was -- somehow their identity was obscured, that it could not be restored. And that is a big assumption, given what else has happened with the more secret of programs that this government has employed in the last several years.
REP. COHEN: Thank you, sir.
Professor?
MR. RADSAN: With respect, I disagree with Mr. Rivkin. It doesn't make sense to me that the tapes needed to be destroyed to protect identities. You've alluded to one possibility of redacting, but the other basic possibility, there was no indication that they wanted to share this with anybody. If they're worried about a leak -- and the CIA protects a lot of classified information. If you had tapes at an overseas location, then have the tape moved back to headquarters, as Ms. Jackson Lee said. Put in the safe in the director's office. If a tape is not safe in the Central Intelligence Agency, in the office of the director of the Central Intelligence -- we're in trouble.
And a historical note is you remember with the Bay of Pigs there was a very controversial inspector general investigation that was done internally. The director of Central Intelligence at that time didn't want this leaking and didn't want it well known. The director of Central Intelligence said, we'll take back the copies of the report. I'll keep one; I'll put it in the safe. And it was safe for a long period of time.
REP. COHEN: From Ranking Member Smith's testimony, assuming it'd be entirely accurate, and I have no reason to believe otherwise, waterboarding apparently is a very successful, or effective, tool at ferreting out information. And is there any other techniques that you all know of that might be just as effective, but within the law?
MR. RADSAN: I personally have serious problems with waterboarding. I think it is a very difficult thing to justify.
Are you satisfied with the FISA court's jurisdiction and their powers -- that they're sufficient to protect the American public? Because they have very limited scope.
MR. RIVKIN: They have limited scope, but they've -- we don't have any evidence that that information that has leaked from the FISA court --
REP. COHEN: Right.
MR. RIVKIN: -- that it does provide some sort of review. It's close and we don't have people advocating on behalf of the person that might be surveilled. We might need to adjust the statute. I think we probably would to set up some FISA-type court for interrogation. And where I would go -- and I've laid this out in articles -- I might put an annual cap on how many people can go into the program. I might have an ombudsman in the special court -- not a defense lawyer to protect the classified information, but to have some more of a check to figure out whether this someone that deserves to be in the program or not. And perhaps with a FISA-type court, we could have the court reviewing what sort of techniques are permissible or not. This is not -- it's not full oversight, but it is something better than complete black sites, which I'm opposed to.
REP. COHEN: And I appreciate what you suggested, and I thought -- because I -- we do have to have certain techniques to be able to ferret that information and protect our people. At the same time, we have to respect our laws. And one of the major conflicts is if we permit other countries may -- if we permit something, the other countries may use it against our own folk. And certainly, Senator McCain, who was a prisoner of war, was -- could have been subjected to and probably was to different techniques. We want to protect our folks.
If we have a court that decides these things and a FISA court would be not so publicized and not so public -- and I'm not saying that al Qaeda or Iraq or whoever is going to say, "Oh, America lets this happen, so we will; if they don't, we won't" -- how can we say that if we have these courts that some other country won't have a court, and how can we have faith in their courts to have rules that are -- to protect our folk?
MR. RIVKIN: Congressman, I recognize that I'm trying to have it both ways -- that I want to have a very limited program to allow some techniques that are not permitted in the criminal justice system, but I would not permit for the Department of Defense. And I would hope by containing it and having additional oversight through this special court that we could prevent those arguments from being made that you're suggested.
That if one of our service people falls into the hands of the enemy, that we don't want the argument that this technique, whether it's sleep deprivation or some enhanced technique, is permissible. I'm trying to cabin this off to say that we may need aggressive techniques on someone like Khalid Sheikh Mohammed, the presumed mastermind of 9/11. We may need them on Abu Zubaida. But we don't want this to spread to Guantanamo, to Abu Ghraib -- I'm trying to carve out an exception can maintain it within the rule of law. It's difficult, but I don't know a better solution --
(Cross talk.)
REP. COHEN: Point --
REP. CONYERS: Could we --
REP. COHEN: -- legal base --
REP. CONYERS: -- could we let Ms. Massimino have the last word, Mr. Cohen?
REP. COHEN: Yes, sir.
REP. CONYERS: And -- but before we do that, I didn't want to cut off Mr. Rivkin. I did not want to --
MR. RIVKIN: Thank you, Mr. Chairman, for indulging me for 30 seconds. There's a very simple legal basis to have your cake and eat it too, which is when you deal with lawful enemy combatants who upon capture become POWs, you cannot use any coercive techniques whatsoever. When you deal with unlawful enemy combatants, the entitlement is a great deal less -- they're entitled to humane treatment. You cannot torture them, but you certainly can use stress techniques that fall below that level.
MS. MASSIMINO: Thank you.
I just want to correct one impression about sleep deprivation and what Menachem Begin said about it, and that was that he would have said anything in order to get an hour of sleep. Not that he would have told the truth or given -- but he would have said anything. And that is the problem with a lot of these techniques.
I also want to say I'm not an interrogations expert. But I would commend to you, Mr. Cohen, the letter from 35 retired flag and general officers, including six four-star officers of each of the four branches of service. And these are not flower children. They are combat-hardened men -- are men who have overseen troops who've had to face very dangerous enemies. And they say in the letter, "The field manual is the product of decades of practical experience and was updated last year to reflect -- (inaudible) -- from the current conflict."
Interrogation methods authorized by the field manual have proven effective in eliciting binding intelligence from dangerous enemy prisoners. Some have argued that the field manual rules are too simplistic for civilian interrogators. We reject that argument. Interrogation methods authorized in the field manual are sophisticated and flexible. And the principles reflected in the field manual are values that no U.S. agency should violate. This idea that we can somehow cabinet a little bit of torture or something less than torture only in certain circumstances only by certain people is a fantasy. That's exactly what the administration tried to do.
I don't believe that the administration set out to have Abu Ghraib happen or to have there be widespread abuse of prisoners -- 100 deaths in custody, 34 homicides, eight people literally tortured to death. I do not believe that that was the intent of this administration. But it happened because there was a simplistic belief that you could do a little bit here, a little bit there and not, as Senator McCain pointed out, change who we are as a nation. That's where we are right now. This is not a theoretical debate that we're having. We are in that hole right now and whether we stay there or climb out is largely up to you all.
Thank you.
REP. CONYERS: Mm-hmm.
REP. COHEN: I'd like to thank the panel and I'd also like to suggest to the chair and my members of the committee and -- I respect the members of the committee, and serving with them as just as with the chairman has been a great honor this year. This committee, particularly on my side of the aisle, has some outstanding Americans who believe in the Constitution and it's so special to serve here.
I think we've learned a couple of things today. First of all, sleep deprivation is a very effective tool and the Senate should have gone ahead and let the Republicans filibuster. Maybe they would have said some things that were -- they should -- that we should have heard -- (laughter) -- over the last year. And they should think about that for next year.
And the second thing is, Mr. Chairman, as I look at the Department of Justice, again having an empty seat, I think back upon this year when this committee saw officials from the Department of Justice, particularly Ms. Miers not show up before this panel and not bring information. And I hope that at the beginning of the next year, we will bring our contempt citation to the floor and show this administration that this committee and this Congress is not going to take it any longer, and that we are going to be an independent branch in the tradition of John Yarmuth and the freshmen and believe in Article I, and assert our people as the American people have invested in us and as we took an oath to uphold it.
Thank you, Mr. Chairman.
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