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

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. MELVIN L. WATT (D-NC): Thank you, Mr. Chairman.

Mr. Bradbury, on Page 2 of your written testimony, you say that fewer than 100 terrorists have been detained by the CIA as part of the program since its inception in 2002. Are those the people who were at Guantanamo?

MR. BRADBURY: I believe the 14, maybe 15 high-value detainees at Guantanamo who were transferred there from CIA custody are among those who have been -- ever detained by the CIA. The CIA has held others, so that's not the sum total of the terrorists who've ever been detained in this program by the CIA.

Those were the ones who were in -- I believe as the president said in September, 2006, when the 14 HVDs were moved to Gitmo at that time, that emptied the overseas facilities of the CIA. At that time, there were no --

REP. WATT: And what's the totality of the number of people that was held at Guantanamo?

MR. BRADBURY: Over time or today? I believe --

REP. WATT: Over time and today.

MR. BRADBURY: I believe over time it may have -- I may not have the accurate number; it may be somewhere around 700, 750. And today I believe it's about 350.

REP. WATT: Okay. And if I were trying to determine the disposition of one of those -- one or more of those 350 people who are still there --

MR. BRADBURY: Yes.

REP. WATT: Well, first of all, what is the maximum duration that they have been held there?

MR. BRADBURY: I believe the first detainees came in to Gitmo around January or February of 2002, I believe.

REP. WATT: So we've got some people there who've been there since 2002?

MR. BRADBURY: I believe so.

REP. WATT: Okay.

MR. BRADBURY: But the --

REP. WATT: And they're still there, and have they been formally charged with anything?

MR. BRADBURY: Some of them have been. A small number have been formally charged. That number is growing as we move forward with military commission procedures. All of them have had the Combatant Status Review Tribunal determinations that they are to go through that process, which is then subject to appeal to the D.C. Circuit under the Detainee Treatment Act.

REP. WATT: All right. And if I were trying to find out the status of one or more of those 350 people, who would I be contacting?

MR. BRADBURY: I would suggest that you contact Gordon England, the deputy secretary of Defense, directly.

REP. WATT: And what -- would he be in a position to determine who's there and what their disposition is? Is that information that would be made available to a member of Congress?

MR. BRADBURY: I don't know for sure, but I believe yes, sir. I believe he'll be able to provide that information.

REP. WATT: Okay. And he's at the Department of Defense?

MR. BRADBURY: He's the deputy secretary of Defense, Mr. England.

REP. WATT: Okay.

The whole legal regimen, you say, has changed now, new statutes.

I'm wondering whether the president still has, in your opinion, the authority to -- under Article II -- to disregard the new legal framework, regardless of what -- let's suppose you all issued an opinion that said under the new framework waterboarding was illegal.

MR. BRADBURY: Correct.

REP. WATT: Could the president disregard that under Article II?

MR. BRADBURY: I don't believe the president would ever --

REP. WATT: I didn't ask you whether he would do it; I said could he do it?

MR. BRADBURY: May -- a couple of points?

REP. WATT: Well, if you'll answer my question first, you can make as many points as you'd like. I would like to know first, whether in your legal opinion, the president has the authority under Article II to disregard an opinion that your office has issued.

MR. BRADBURY: I don't believe he would disregard -- and I --

REP. WATT: I didn't ask you that, Mr. Bradbury. I asked you whether you would have the authority to do it. I didn't ask you whether he would do it or not.

MR. BRADBURY: He -- well --

REP. WATT: I give my president the same presumptions that you do, that he would not --

MR. BRADBURY: He -- he would not and --

REP. WATT: Would he have the authority to do it under Article II? That's the question I'm trying to --

MR. BRADBURY: I'll get -- could I get to that in a second? But could I first --

REP. WATT: What about answering that first --

MR. BRADBURY: (Laughs.)

REP. WATT: -- and then getting to the explanation?

MR. BRADBURY: This Congress has constitutional authority to enact these provisions, these War Crimes Act defenses, and so I believe they're constitutional. The Congress has authority to define offenses against the Law of Nations. It's constitutional authority the Congress has. There's no question about the constitutionality of the statutes.

Moreover, traditionally -- and by statute the attorney general is the chief law enforcement officer for the United States who gives opinions for the executive branch on what the law requires. And in all cases, the president will look to those opinions, will not disregard them.

Now, in theory, congressman, the president stands at the top of the executive branch. So in theory, all of the authority of the executive branch officers, including the attorney general, is subject to the ultimate authority of the president. That said, it's not -- it is quite hypothetical and I believe unsustainable for --

REP. WATT: I --

MR. BRADBURY: -- the president to disregard an opinion of the attorney general, particularly a considered formal opinion of the attorney general. And --

REP. WATT: My question you still haven't answered, even after all of that. Does the president have the authority to disregard the opinion under Article II?

MR. BRADBURY: Well, the president is sworn to preserve protection --

REP WATT: I understand --

REP. NADLER: The time of the gentleman has expired.

I believe, Mr. Bradbury, your answer is yes, he has that authority.

MR. BRADBURY: Well, Mr. Chairman, you are putting words in my mouth --

REP. NADLER: You -- yes I am, because it's --

REP. WATT: The question that --

REP. NADLER: I think you said he has that authority it but it would be very rare for him to exercise it.

REP. WATT: Well, the question is does he have the authority, and if he does -- I mean, I would love to have gotten -- if you hadn't rope-a-doped my whole five minutes here -- to the next question, which is are there any limits to that authority?

MR. BRADBURY: Yes, there are. Here's --

REP. NADLER: Please answer that question briefly; we have to --

MR. BRADBURY: General Hayden has very clearly said -- and this is a practical limit that matters under our system of government. He will not order his people and his people will not do anything that the attorney general has determined is inconsistent with a statute that applies --

REP. WATT: So if the president of the United States issues the order to General Hayden, he's not going to -- he's going to listen to the attorney general rather than to the president of the United States? That's what you're saying?

MR. BRADBURY: That's what General Hayden has said.

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