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Hearing on the Constitution, Civil Rights and Civil Liberties Subcommittee of the House Judiciary Committee - Justice Department's Office of Legal Counsel

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Location: Washington, DC

REP. NADLER: This hearing of the Subcommittee on the Constitution, Civil Rights and Civil Liberties will come to order.

Today's hearing will examine the work of the Office of Legal Counsel of the Department of Justice with respect to its involvement in the legal review of administration policies relating to detention and interrogation.

The chair recognizes himself for five minutes for an opening statement.

Today we consider a matter that goes to the heart of who we are as a nation. No one will argue that we live in a dangerous world, that there are people who are organizing to attack our nation, or that our government must gather reliable intelligence to defend us -- all that is obvious.

What is at issue is the lengths to which some people acting in our behalf have gone and what the Office of Legal Counsel has advised our government it may and may not legally do.

The job of OLC is of critical importance to the rule of law in this country. As Newsweek described it, the OLC, quote, "is the most important government office you've never heard of." Within the executive branch, including the Pentagon and CIA, the OLC acts as a kind of mini Supreme Court. Its carefully worded opinions are regarded as binding precedent, the final say on what the president and all his agencies can and cannot legally do.

So when it comes to the question of the treatment, the use of waterboarding and other extreme forms of coercion for interrogation of people detained by the United States, OLC is really the place to start.

Our witness today, Steven Bradbury, is the principal deputy assistant attorney general for OLC. He serves in that position because his nomination as assistant attorney general has not yet been confirmed by the Senate.

OLC and Mr. Bradbury have been in the middle of the controversy regarding the treatment of detainees. The now-infamous Bybee torture memo was produced by Mr. Bybee's deputy, John Yoo. Its publication, coming on top of the expose of prison abuse at Abu Ghraib, devastated America's standing around the world. It also led numerous prominent military lawyers to fear it would permit hostile forces to brutalize our soldiers and deny that what they were doing was torture.

That OLC product was so flawed and so at odds with our law and our values that a subsequent head of OLC, Jack Goldsmith, rescinded it.

More recently the OLC's role in developing interrogation policy has again been in the spotlight. According to The New York Times, Mr. Bradbury wrote two secret but controversial opinions in 2005.

Mr. Bradbury, as the acting head of OLC, reportedly issued an opinion authorizing the use in combination of certain harsh interrogation techniques, including head slapping, simulated drowning and exposure to frigid temperatures. While the details remain unknown -- that is to say, secret -- Deputy Attorney General Comey has been reported to have objected to it so vigorously that he told colleagues they would all be ashamed when the world learned of it.

More recently several developments have focused the attention of this committee and of the nation on the chilling practice of waterboarding. My own view of waterboarding is clear: it is torture period and, as such, violates several of our laws.

Waterboarding is often misnamed simulated drowning. In fact, as was testified to by witnesses at a couple of prior hearings of this subcommittee, it is actual drowning, with all of the excruciating agony that entails which is stopped short of death. That is why what is now euphemistically called waterboarding has for centuries been more bluntly known as the water torture, from the Inquisition to the U.S. prosecution in the last century of both enemy captors and Americans alike for practicing waterboarding.

This has been the long-held view of our nation, our legal system and of our military. Senator McCain, who is something of an expert on the subject, has been unsparing in his criticism of these practices. I have held several hearings where experts in interrogation have testified not only to the cruelty but to the ineffectiveness of this practice.

Waterboarding is also prohibited by the Army's Field Manual on Interrogations. Just yesterday, the Senate passed a bill that would extend the Army Field Manual guidance, which outlaws waterboarding, to the entire intelligence community, incorporating a bill which I had introduced initially with Mr. Delahunt.

As a civilized nation, there must be limits on our conduct even during military conflicts, and our laws so dictate. President Bush has long said that America does not torture. I urge him to sign this legislation into law and thus affirm that commitment.

The fact that this administration tortures, despite its testimony that it doesn't, is no longer a closely held secret. Recently CIA Director Hayden disclosed that three individuals were subjected to waterboarding. He also disclosed that at least two videotapes of those sessions had been destroyed after several years of discussion among the CIA, the Justice Department and the White House.

In addition to reportedly drafting several controversial memoranda on interrogation, Mr. Bradbury also has been a point man for the Bush administration, repeatedly explaining and defending its programs and legal positions before congressional committees and participating in White House question-and-answer sessions with the press and the public.

Opinions issued by OLC have offered the legal support for a number of the administration's more controversial programs and actions whose legality under statutes and the Constitution have been strongly questioned by many scholars. In addition, Mr. Bradbury's been a frequent advocate for and defender of administration policies before the Congress, the press and the public. This raises questions about the state of OLC today.

Some observers, including former OLC officials who served in administrations of both political parties, have questioned whether OLC in this administration has operated with sufficient independence to present objective analysis of the controlling law or has too readily created weak arguments to support what the president wants to do in regard to terrorism and other areas. I hope we can get to this important issue.

I want to welcome our witness.

I yield back the balance of my time.

I would now recognize our distinguished ranking minority member, the gentleman from Arizona, Mr. Franks, for his opening statement.

BREAK IN TRANSCRIPT

I thank you, Mr. Bradbury.

I will begin by recognizing myself for five minutes to question the witness.

Mr. Bradbury, I understand that for many of the CIA's enhanced interrogation techniques the test of their legality under current law is linked to the constitutional standard of whether it shocks the conscience, and that this may depend on the circumstances. But under the Convention against Torture and the implementing federal torture statute, torture's absolutely barred and that does not depend on the circumstances and that does not depend on whether it shocks the conscience. So let's put that aside; let's cut to the chase.

The convention and the federal torture statutes define torture to be, quote, "an act specifically designed to inflict severe physical or mental pain or suffering," close quote.

I fail to see how the agonizing pain of not being able to breathe as your lungs fill with water and oxygen is denied your body cannot be considered severe physical pain, and I fail to see how feeling that you are drowning and are about to die cannot be considered severe mental pain and suffering. It certainly is specifically designed -- waterboarding, that is -- to inflict both severe mental and physical pain and suffering so that the prisoner will speak.

Now, in your legal opinion, is waterboarding a violation of the federal torture statute?

MR. BRADBURY: Well, Mr. Chairman, as General Hayden has disclosed, our office has advised --

REP. NADLER: I'm not interested in your opinions before. I'm asking you -- never mind former OLC opinions. I'm asking you the question now: Is waterboarding a violation of the federal torture statute?

MR. BRADBURY: I was about to answer the question, Mr. Chairman, this way. Our office has advised the CIA when they were proposing to use waterboarding that the use of the procedure subject to strict limitations and safeguards applicable to the program was not torture -- did not violate the anti-torture statute, and I think that conclusion was reasonable. I agree with that conclusion.

REP. NADLER: Given the definition I just read, how can you possibly justify that?

MR. BRADBURY: Well, first of all, I'm limited in what I can say about the technique itself because --

REP. NADLER: We know what the technique is. It's been done for hundreds of years.

MR. BRADBURY: Well, with respect, Mr. Chairman, your description is not an accurate description of the procedure that's used by the CIA, and I think there's --

REP. NADLER: My description was the description that was given to this committee by ex-interrogation officers.

MR. BRADBURY: Well, there's been a lot of discussion in the public about historical examples, for example, as the chairman referenced, from the Spanish Inquisition, cases of torture from the Philippines committed by the Japanese during World War II. Those cases of water torture have involved the forced consumption of mass amounts of water and often large amounts of water in the lungs. They've often involved the imposition of weight or pressure --

REP. NADLER: So your testimony is that that's not what we're talking about now.

MR. BRADBURY: That is not what we're talking about.

REP. NADLER: Then let me go to the following.

You have refused -- according to The New York Times, you wrote several memos on interrogation techniques in 2005. The Times says that the opinion about using a whole bunch of very intense techniques on the prisoner in combination, including waterboarding, so outraged Deputy Attorney General Comey that he told colleagues they would be ashamed if it ever came out.

Now, that has piqued our curiosity. But the attorney general said he could not give us those memos and others we have repeatedly asked for on this subject because they were very sensitive. When the chairman of this committee, Mr. Conyers, reminded him that we all have top secret clearance, the attorney general simply repeated that he was unable to share them with us.

Now, we have been shown documents on the NSA warrantless wiretapping that are code word, which I'm sure is a higher classification than your legal opinion of interrogation. So can you tell us why you won't -- I mean, you're telling us that the opinions we're making about waterboarding are wrong because we don't know what waterboarding really is, and therefore we can't form a judgment, you're telling us, on the legal basis or on whether it is legal because we don't know what we're -- literally, we don't know about what we're talking because you won't tell us.

So can you tell us precisely what the legal authority is for withholding those documents from a committee of proper subject matter jurisdiction other than the fact that they might be embarrassing for somebody?

MR. BRADBURY: Well, Mr. Chairman, let me say I and the Department of Justice and the attorney generally fully recognize and respect the strong oversight interest this committee has in the work of our office.

REP. NADLER: We've seen no evidence of that.

MR. BRADBURY: Well, let me say that we do intend and we strive to respond to --

REP. NADLER: Let's break through all this.

Will you commit to letting us see those memos, and if not, why not?

MR. BRADBURY: We are giving that serious consideration, Mr. Chairman. We are giving that serious consideration.

REP. NADLER: Is there any legal basis for saying no to a committee of jurisdiction where this falls squarely within our jurisdiction and where we all have clearance, security clearance?

MR. BRADBURY: Well, these are matters that traditionally are subject to the extensive oversight of the intelligence committees.

REP. NADLER: And the Judiciary Committee.

MR. BRADBURY: And the classified details of the program are very close hold.

REP. NADLER: Excuse me. I said we all had top security clearance. So given that fact, is there any legal justification for withholding those documents?

MR. BRADBURY: Well, Mr. Chairman, as you and I have discussed this very question before, the interest is the interest that the president and the executive branch has in protecting the potential public disclosure of --

REP. NADLER: That's saying it's secret. We all have top security clearance, so all you're saying is that it might be revealed. We have top security clearance.

MR. BRADBURY: I think there was some discussion previously, perhaps mentioned earlier in the opening statements, about public disclosure.

REP. NADLER: We're not talking right now about public disclosure. We're talking about disclosure to this committee.

MR. BRADBURY: I understand that, and my point today is we recognize your interest, we recognize the unique nature of this issue, the controversial nature of the issue. We do recognize the extraordinary --

REP. NADLER: Well, what is -- you keep not answering my question.

What is the legal basis for your assertion of your ability to have discretion about whether to give those documents to us?

MR. BRADBURY: Mr. Chairman, I'm not asserting any legal basis.

REP. NADLER: If there's no legal basis, then you must give them to us.

MR. BRADBURY: It's not a decision for me. But I am saying -- I am saying that the attorney general, in close consultation with the president, are giving careful consideration --

REP. NADLER: Are you the head of the Office of Legal Counsel?

MR. BRADBURY: Yes.

REP. NADLER: Isn't it your job as such to give the opinion to the attorney general on these kinds of questions?

MR. BRADBURY: We do most often, yes, advise the attorney general and the president on matters that potentially involve executive privilege issues.

REP. NADLER: So have you advised the attorney general that they have the legal right to withhold these documents from this committee?

MR. BRADBURY: I don't know that --

REP. NADLER: Or that they don't have the legal right?

MR. BRADBURY: Mr. Chairman, the executive branch does have the legal right to protect the confidentiality of deliberations of the executive branch and sensitive documents.

REP. NADLER: So the executive branch, you're saying, has the unlimited right in its own discretion to withhold any document because of confidentiality?

MR. BRADBURY: I'm absolutely not saying that.

The Congress has very strong constitutionally based interests in getting information necessary for oversight.

REP. NADLER: Thank you very much.

MR. BRADBURY: We recognize those interests, and we --

REP. NADLER: But you won't commit to giving us those documents despite the fact we have security clearance, so your recognition is totally hollow.

MR. BRADBURY: I will commit to attempting fully to satisfy the committee's interests in these matters to the fullest extent possible consistent with legitimate interests that the executive branch has.

And let me just underscore, we are --

REP. NADLER: Okay. Let me just say, then, that within a few days after this committee, we'd like an explanation in writing either -- we'd either like to see those documents or an explanation in writing on why we can't see them and what the legal basis of your right to withhold them is.

MR. BRADBURY: Okay.

REP. NADLER: Thank you.

I'll now recognize the distinguished ranking minority member for five minutes.

BREAK IN TRANSCRIPT

REP. FRANKS: Mr. Chairman, thank you. I just wanted to ask -- to pass something to the chairman. If indeed we've had testimony in this committee that waterboarding is being used to train our soldiers, why aren't we investigating that? Why are we more concerned about the terrorists than we are our own soldiers?

REP. NADLER: Well, first of all, it's not necessary -- I mean, one of the problems with waterboarding people is you may think they're terrorists and they may not be. It's the question -- it's always the question of --

REP. FRANKS: Well, we know it's still happening to our soldiers. What are we not -- why are we not investigating that?

REP. NADLER: It's training in case they are tortured. That's what is there for --

REP. FRANKS: That's my point.

REP. NADLER: -- in case they are tortured, because we assume that enemy nations might torture people. We assume that we won't torture people. We don't assume the enemy is going to obey the law, so it may be prudent to train our people for torture.

In addition to which I would point that, at least with respect to the mental element, inflicting severe mental distress, when they're tortured they know that they're not going to die. When someone is being drowned, the mental aspect -- he doesn't know you're going to stop. It's -- if someone is being trained, you know you're not going to actually drown them. It may be severe physical but it's certainly not severe mental aspect. When we're torturing somebody else or someone else is torturing one of our soldiers, they don't know that they're going to be treated kindly --

REP. FRANKS: But if it is indeed torture, Mr. Chairman, if it is indeed torture, it shouldn't be done to our soldiers.

REP. NADLER: Well, is the gentleman asking that we investigate the military?

REP. FRANKS: No, sir, I'm asking you to understand the point here that --

REP. : Mr. Chairman, can I ask for regular order? Mr. Franks has exceeded his time.

REP. FRANKS: Thank you.

REP. NADLER: Mr. Franks has exceeded his time.

I would also point out that one thing that's very interesting from Mr. Bradbury's testimony, which really puts a very different light on a lot of things and makes it very necessary to get those documents, is that essentially what he said is that everything we have thought we knew about waterboarding from past cases, from what the Japanese did, the Inquisition did, the newspapers have reported, that's not what we're talking about. We're talking about something else which may be different. If that's the case, we have to know about it.

BREAK IN TRANSCRIPT

The time of the gentleman has expired. All time has expired.

Mr. Bradbury, our members may have additional questions after this hearing. We have had some difficulty getting responses to our questions from the Justice Department and timely responses when we get them at all. Will you commit to providing a written response to our written questions within 30 days of receipt of the questions?

MR. BRADBURY: Yes. I will do it as soon as possible and I will --

REP. NADLER: And within --

MR. BRADBURY: -- make every effort to do it within 30 days.

REP. NADLER: Thank you.

Without objection, all members will have five legislative days to submit to the chair additional written questions for the witnesses, which we will forward and ask the witness to respond as promptly as you can so that your answer may be made part of the record.

Without objection, all members who have five legislative days to submit any additional materials for inclusion in the record. I will note for the edification of the members there is seven minutes left on the vote, on the motion to adjourn on the floor. With that, this hearing is adjourned. (Sounds gavel.)

MR. BRADBURY: Thank you, Mr. Chairman.


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