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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REP. STEVE KING (R-IA): Thank you, Mr. Chairman.
I would point that in the introduction of our witness, Mr. Bradbury, it was addressed that he is waiting confirmation by the United States Senate. I believe there are dozens, in fact perhaps hundreds, of the president's appointees awaiting confirmation, and yet the unconfirmed representative of our federal government is being pushed to divulge what we know are state secrets here in a public meeting. And I don't take issue with our security clearance.
REP. NADLER: We have asked that he provide them -- that he provide the stuff that's confidential in confidentiality to this committee all of whose members are cleared to top secret information. We have not asked --
REP. KING: Reclaiming my time, Mr. Chairman.
REP. NADLER: I'll give you the time back in a second.
REP. KING: Thank you.
REP. NADLER: And we'll take it off the timer here.
I want to correct the record. Nobody has asked -- nobody in this committee has asked that secret information be disclosed publicly.
REP. KING: Our definition -- thank you, Mr. Chairman. I recognize your point.
I think we disagree on what secret information is and some of that, the state secret, has been a subject of debate before this committee. That would be -- one is, how many have been interrogated under this fashion, a question that was just asked, and the answer Mr. Bradbury gave reluctantly was less than 100.
But there are also some statements that have been made here need to be clarified. One is the statement that we know what waterboarding is. I don't think there's a consensus on this committee as to what waterboarding is, and if we understand from the testimony what some of the historical examples of the more ancient versions of waterboarding are. But I go back to a statement made early by the chairman that "as your lungs fill with water," and I would ask Mr. Bradbury, are you knowledgeable about any activity that would include a modern version of waterboarding in which the subject's lungs would fill with water literally?
MR. BRADBURY: No, I'm not.
REP. KING: And I am not either, and so I just point that out to illustrate that we don't have a consensus on what we see as waterboarding. It did illustrate how it was used by the Japanese in World War II.
I wanted to go back to -- and I want to express -- I want to make another point is that while we are here having this hearing talking about state secrets and the risk of divulging information to the terrorists who are pledged to kill us, we have a debate going on in the floor of the House of Representatives right now -- at least it's a tactical negotiation going on right now on the eve of the expiration of our FISA law, and I want to point out to this committee that the national security secrets that are subject here and the national security secrets that are the subject of the FISA debate put Americans at risk. And the sunset of the FISA law is an important piece of this that ties this all together, and politics are getting in the way of the policy.
But I'm interested in one piece of this subject, and you went into the details of it to some degree. If your lungs don't fill with water and the fear definition that you gave, how does one define how this is torture under that definition if there isn't any physical pain that's involved and if the lungs aren't filling with water? Could you go back to that fear factor, the mental pain factor and the fear definition that you gave, Mr. Bradbury?
MR. BRADBURY: Yes, Mr. King. Briefly, there is a specific definition in the anti-torture statute of severe mental pain or suffering, and it requires certain conditions, certain perquisites or factors be present, and that those factors cause prolonged mental harm. And one of the factors, the one that raises most questions with respect to this particular procedure, is the question of whether it involves a threat of imminent death. And what's pointed to there is the physiological sensation that's created -- physiological or mental sensation of almost like a gag urge of drowning, and the question is whether that's a threat of imminent death. And as I would understand it, and as I think the chairman may have suggested, it's a reaction that even if you're involved in training, as I understand it, the subject would have, so whether or not you know that it's not really involving drowning, you have this physiological reaction, and that's the acute nature of it. And if that is a threat of imminent death, then you need to ask is it the kind that would be expected to cause prolonged mental harm that is an ongoing or persistent mental disorder as a result of that. That's what the cases have focused on with respect to the Torture Victims Protection Act, and that would be -- the analysis would turn on that.
REP. KING: Thank you. Just a short --
MR. BRADBURY: And may -- I'm sorry. May I point out though, because I don't want the committee to lose sight: There are new statutes on the books, and one of them is a new statute, the Cruel and Inhuman Treatment War Crime, added by the Military Commissions Act in fall of 2006. That's a crime that took this definition from the torture statute and changed it. It eliminated the prolonged mental harm requirement and made it serious but non-transitory mental harm which need not be prolonged. That's a new statute, became effective in the fall of 2006.
The department has not analyzed this procedure under that statute and, as I think you can tell from the change in the language, that statute would present a more difficult question -- significantly more difficult question with respect to this particular --
REP. KING: And that language does sound vague.
Are you aware of any version of waterboarding that's currently practiced where there has been a result of death?
MR. BRADBURY: I am not.
REP. KING: That's my point.
Thank you, Mr. Chairman. I yield back.
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