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. KEITH ELLISON (D-MN): General Mukasey testified that -- in a Senate Judiciary Committee that he would not order an investigation of waterboarding depicted on the destroyed tapes because the OLC had issued opinions regarding torture that were presumably relied upon by those administering the techniques. He gave two reasons: It would not be appropriate for the Justice Department to be investigating itself was one reason; the other reason is it would be -- excuse me -- it would not be fair to prosecute persons who relied on OLC opinions.
As to the first reason, this is precisely the conflict situation for which this special counsel regulations of the department call for appointing someone outside the department to conduct important investigations, but I want to focus on the second reason, which has certain implications I'd like you to focus on. At a minimum, we need to investigate whether their actions exceeded the legal advice that OLC gave to them or whether they would have known on their own that waterboarding could not be legal.
But there is a much more basic concern. If an OLC opinion once written and relied upon -- and relied upon -- will prevent an investigation of executive branch felony or constitutional violations, we face a very dangerous situation. The president or other officials can violate the rights of millions of Americans and simply show that they, quote, "relied on an OLC opinion," unquote, no matter how far out and baseless the opinion is. And if the victims try to bring a lawsuit, you will use the state secrets doctrine to have the case thrown out of court before it even starts, so perpetuators will not even be investigated.
Isn't that a recipe for unchecked executive power?
MR. BRADBURY: Well, congressman, no, I don't believe it is, and it may not -- it may not be accepted at this point by this committee but I believe that the opinions we're talking about are reasonable and were appropriately relied on by the agency.
I understand this committee is not in a position now to make judgment on that --
REP. ELLISON: Excuse me, Mr. Bradbury, I've got to reclaim my time. How do you know that they were relied upon as you set forth that opinion?
MR. BRADBURY: That's my understand that --
REP. ELLISON: What is your understanding based on?
MR. BRADBURY: It's based on my interaction --
REP. ELLISON: Is it based on you attending the application of these techniques of -- these enhanced interrogation techniques?
MR. BRADBURY: No, sir.
REP. ELLISON: Were you ever present for an incident of waterboarding?
MR. BRADBURY: No.
REP. ELLISON: Now, you said earlier that --
MR. BRADBURY: May -- I'm sorry, may I --
REP. ELLISON: No, I'm going to reclaim my time, sir. I'm sorry.
Now, you indicated earlier that the waterboarding that we've been talking about applied by people who you give legal advice to is nothing like what happened to American soldiers at the hands of Japanese or in the Spanish Inquisition. You've made that point clear. Can you tell us exactly what it is like? Can you describe exactly what -- how this technique is applied based on the advice that you have given?
MR. BRADBURY: No, Mr. Ellison, I'm really not in a position --
REP. ELLISON: Have you seen videotape?
MR. BRADBURY: That -- no, I've not.
REP. ELLISON: So you haven't been there and you haven't seen videotape, so how in the world do you know that the advice you've been giving has been properly relied on? Somebody told you?
MR. BRADBURY: I have reason to believe it was --
REP. ELLISON: Which is what?
MR. BRADBURY: My interactions with the people that we work with --
REP. ELLISON: Okay, your interactions. Are you talking about statements that were made to you and that's what you're relying on?
MR. BRADBURY: Talking about statements between clients and lawyers as to what --
REP. ELLISON: I know. I'm not asking you about what your client said or what you said back; I'm saying how do you know that the advice you were giving was properly relied on? How do you know that? How do you know that the limits were not exceeded?
MR. BRADBURY: I believe that --
REP. ELLISON: Because somebody told you, right?
MR. BRADBURY: I believe that that's --
REP. ELLISON: Because somebody said so, right?
MR. BRADBURY: I don't have -- I believe that that is the case.
REP. ELLISON: Okay. So you --
MR. BRADBURY: May I --
REP. ELLISON: No, no, you can't because this -- I've only got five minutes. If I had more time, you could talk all you want.
MR. BRADBURY: I would like to make --
REP. ELLISON: No. I am going to ask you to answer my questions. That's the way this hearing goes.
So let me ask you this. I think the point was made before that it's somehow torture for the American military to use waterboarding as a training exercise. You agreed that it would in fact be torture if it were done in violation of a law. You -- that's what you said, right?
MR. BRADBURY: If something is torture in one -- for one purpose but it's done by the government for another purpose, the same procedure --
REP. ELLISON: Right.
MR. BRADBURY: -- would be torture in the other context.
REP. ELLISON: Sure. Okay, so when a police officer goes and sells drugs as an undercover agent, you think they should be prosecuted for crack -- for controlled substance violations? I would guess you'd say no to that, right?
MR. BRADBURY: And, may I?
REP. ELLISON: No, I mean, sting operations. If somebody -- if police officers pose as a child pornographer --
MR. BRADBURY: Mr. Chairman, may I respond, because --
REP. ELLISON: Respond to the question --
MR. BRADBURY: May I? May I respond? May I?
REP. ELLISON: If you're responsive.
MR. BRADBURY: There are lines of cases addressing exactly that circumstance that say generally worded statutes that simply say "any person" are not reasonably read to cover the police officer in circumstances that you've suggested because it would be an absurd result and it would not allow the government to undertake an essential function. In this case --
REP. ELLISON: Thank you.
MR. BRADBURY: In this case we're dealing with a statute that says under color of law it is specifically addressed to government activity, so there -- that line of cases would not apply to this statute.
REP. ELLISON: Right. And you -- I'm sure you'll provide the citations for the cases.
MR. BRADBURY: If you would like.
REP. ELLISON: I would like.
MR. BRADBURY: I'm happy to.
REP. ELLISON: You mean at some later point?
MR. BRADBURY: Well, I --
REP. ELLISON: So, for example --
MR. BRADBURY: I don't have the names --
REP. ELLISON: So for example, you're saying there's a case so --
MR. BRADBURY: There are 3rd Circuit cases and 2nd Circuit cases that --
REP. ELLISON: But you don't know the cases and so if you can get them to me later --
MR. BRADBURY: I'd be happy to do that.
REP. ELLISON: My point is simply this. You know, as a person who's practiced law for 16 years, if I told a judge hey, judge, there's a case, judge, it wouldn't pass muster, not that I'm a judge here, but, you know, you're citing case law so I expect you to at least know the name of the case.
MR. BRADBURY: I'm not making a legal argument.
REP. ELLISON: All right. Now, let me just ask you this question.
Are we done?
Okay. I'm done.
REP. NADLER: The time of the gentleman has expired.
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