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Hearing of the Constitution, Civil Rights, and Civil Liberties Subcommittee of the House Judiciary Committee - From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III

Statement

By:
Date:
Location: Washington, DC

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

Today's hearing will be the third in our series of hearings on the role of administration lawyers in the formulations of interrogation policies.

I want to say at the outset, the subject matter we're considering today is of utmost importance to the integrity and honor of this nation. This hearing is very important, and it will not be permitted to be disrupted by anyone in the audience for any purpose. Anyone who is disruptive in any way will be expelled immediately and without further proceedings.

Without objection, the chair is authorized to declare a recess of the hearing, which I hope that we will not have to do except if there are votes on the floor.

We will now proceed to members' opening statements. As has been the practice in this subcommittee, I will recognize the chair and ranking members of the subcommittee and of the full committee to make opening statements. In the interest of proceeding to our witnesses, and mindful of our busy schedules, I would ask that other members of the subcommittee submit their statements for the record. Without objection, all members will have five legislative days to submit opening statements for inclusion in the record.

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

Today we commence the third in our series of hearings on the role of administration lawyers in the development and implementation of interrogation rules, which have drawn criticism here in the United States and around the world.

I think it does not go too far to say that the reputation of this nation and our standing as the leading exponents of human rights and human dignity have been besmirched by the policies of this administration. Legal memos have been written defining torture out of existence. And what almost everyone except this administration regards torture has been inflicted on prisoners.

Today we will look at how these policies came into being and how they were applied. I think I speak for many of my colleagues when I say that the more we find out about what was done and how it was concerned and how it was justified, the more appalled we become.

These policies have been kept from the Congress and the American people by assertions of secrecy, assorted privileges, and flat refusals to disclose what has been done and why, even in classified settings. As a result, information that we do know has come out in drips and drabs, often through the press. That is unacceptable.

We live in a democracy composed of three equal branches of government. No one has the right to arrogate to themselves the complete unchecked power of the state. That simply defeats the design of our system of checks and balance which the founders of this nation drafted to ensure our freedom and protect us from the unaccountable monarchy against which we rebelled and to which we do not want to return.

Today we are joined by two of the architects of those policies, one testifying voluntarily and one testifying under subpoena. And I hope we will be able to have a free and open discussion of these very important questions.

Clearly we do not want to reveal classified information in this open setting, but neither will we be deterred by expansive and unjustified claims of assorted privileges. I would ask that if the witnesses feel the need to invoke a privilege, they do so judiciously and that they provide the specific basis for that claim of privilege.

I look forward to the testimony of our witnesses and I hope we can finally begin getting to the bottom of these important questions.

BREAK IN TRANSCRIPT

I now want to welcome our distinguished panel of witnesses today and introduce them.

David Addington is the chief of staff and former counsel to Vice President Dick Cheney. Mr. Addington was assistant general counsel to the Central Intelligence Agency from 1981 to 1984. From 1984 to 1987, he was counsel to the House Committees on Intelligence and International Relations. He served as a staff attorney on the Joint U.S. House-Senate Committee investigation of the Iran-Contra scandal, as assistant to Congressman and now Vice President Dick Cheney. He was one of the principal authors of a controversial minority report issued at the conclusion of the Joint Committee's investigation. Mr. Addington was also a special assistant to President Ronald Reagan for one year in 1987, before becoming President Reagan's deputy assistant. From 1989 to 1992, Mr. Addington served as special assistant to Mr. Cheney, who was then the secretary of Defense, before being confirmed as the Department of Defense's general counsel in 1992. In 1993 to 2001 he worked in private practice.

Mr. Addington is a graduate of the Edmund A. Walsh School of Foreign Service at Georgetown University and holds a J.D. from Duke University School of Law.

John Yoo is a professor of Law at the University of California at Berkley School of Law where he's taught since 1993. From 2001 to 2003, he served as deputy assistant attorney general at the Office of Legal Counsel at the U.S. Department of Justice. He served as general counsel of the U.S. Senate Judiciary from 1995 to 1996.

Professor Yoo received his B.A. summa cum laude in American History from Harvard, and his J.D. from Yale Law School in 1992. In law school, he was an articles editor of the Yale Law Journal. He clerked for Judge Lawrence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit. He joined the Boalt faculty in 1993 and then clerked for Justice Clarence Thomas of the U.S. Court.

Chris Schroeder or Schroeder -- which is it? Schroeder. Chris Schroeder is the Charles S. Murphy Professor of Law and Public Policy Studies at Duke University. He served in the Office of Legal Counsel for three and a half years, including six months as acting assistant attorney general in charge of the office. He's also served as chief counsel for the Senate Judiciary Committee. He's a counsel to the firm of O'Melveny and Myers where he works primarily on appellate matters.

He received his B.A. degree from Princeton University in 1968 and Master's of Divinity from Yale University in 1971 and his J.D. degree from the University of California-Berkeley Boalt Hall in 1974 where he was editor-in-chief of the California Law Review.

Before we begin, it's customary for the committee to swear in its witnesses. If the witnesses would please stand and raise your right hands to take the oath.

(Swearing in of witnesses.)

Thank you. Let the record reflect that the witnesses answered in the affirmative. And you may be seated.

BREAK IN TRANSCRIPT

Mr. Addington, first of all, did you play a role in -- it's been reported in several books and the Washington Post that you contributed to the analysis resisted in the drafting of the August 1st, 2002 interrogation memo signed by Jay Bibey. Is this correct?

MR. ADDINGTON: No.

REP. NADLER: You had nothing to do with that.

MR. ADDINGTON: No, I didn't say I had nothing to do with it. You asked if I assisted in contribution. Let me review something that I think will be helpful to you. This is an excerpt from a book that I recommend of all of you --

REP. NADLER: And make it brief because I have a number of --

MR. ADDINGTON: I will make it very brief -- "War by Other Means" by Professor Yoo. Page 33, two sentences to read. Various media reports claim that his influence on this was so outsized, he even had a hand in drafting Justice Department legal opinions in the war on terrorism. "As the drafter of many of those opinions, I" -- Professor Yoo -- "find this claim so erroneous as to be laughable, but it does show how wrong the press can get the basic facts," close quote.

Same book, page 169 --

REP. NADLER: Wait a minute. Mr. Addington, please. We don't need all these quotes. Just --

MR. ADDINGTON: Okay --

(Cross talk.)

REP. NADLER: -- just tell us what your role was --

MR. ADDINGTON: Yes, I will.

REP. NADLER: -- if you can, because you said it wasn't nonexistent, but you didn't help shape it. So what was it?

MR. ADDINGTON: Mr. Chairman, my recollection -- first of all, I'd be interested in seeing the document you're questioning me about. I think you're talking about a document of August 2002.

REP. NADLER: Yes.

MR. ADDINGTON: It would be useful to have that in front of me so I can make sure that what I'm remembering relates to the document you have and not a lot of other legal opinions I've looked at. But assuming you and I are talking about the same opinion, my memory is of Professor Yoo coming over to see the counsel to the president and I was invited in the meeting with the three of us, and he gave us an outline of "Here are the subjects I'm going to address." And I remember when he was done saying "Here are the subjects I'm going to address," we said, "Good." And he goes off writes the opinion.

Now in the course of my work -- (Off mike consultation) Thanks. Let me just look at it. I'll give it back to you, you know.

It's August 1st, 2002, Memorandum for Alberto Gonzales, Counsel to the President to Raise Standards of Conduct for Interrogation under 18 U.S.C., Sections 2340-2340A. I believe this is the result of the process I was just describing where he came over and said, "These are the subjects I'm going to address" and we said, "Good." Now there's one thing worth pointing out in there. In defense of Mr. Yoo, who as any good attorney would -- has, I presume, not felt free to explain and defend himself on the point -- and I can do this in my capacity essentially as the client on this opinion -- is it was later said about this opinion -- it unnecessarily addressed constitutional issues, defenses that could be raised.

You don't want to hear that, Mr. Chairman?

REP. NADLER: Not right now, because I have a number of questions and we're running out the clock.

MR. ADDINGTON: Please go ahead.

REP. NADLER: The Washington Post reported that quote, "The vice president's lawyer" -- referring to you, I believe -- "advocated what was considered the memo's most radical claim, that the president may authorize any interrogation method even if it crosses the line into torture," unquote. Is that accurate?

MR. ADDINGTON: That the Washington Post said that?

REP. NADLER: No, not that the Washington Post said it. Is the Washington Post correct in saying that?

MR. ADDINGTON: Could you repeat it? I'll have to listen closely --

REP. NADLER: That you advocated what was considered the memo's most radical claim, that the president may authorize any interrogation method even if it crosses the line into torture.

MR. ADDINGTON: No, I don't believe I did advocate that. What I said was in the meeting we had with Mr. Gonzales and Mr. Yoo and me present, Mr. Yoo ran through "Here are the topics I'm going to be addressing, one of which is the constitutional authority of the president separate from issues of statutes." My answer is, "Good. I'm glad you're addressing these issues."

REP. NADLER: So in other words, you didn't advocate any position. You simply said, "I'm glad you're going over these topics."

MR. ADDINGTON: Correct.

REP. NADLER: Okay. Now do you believe that the president can order violations of the federal torture statutes if he believes it necessary for national security under Article II or any other powers?

MR. ADDINGTON: I'll answer that carefully because although in common conversation, we're used to using words like torture -- and meaning in common conversation what we're talking about are laws here. The federal statute which implements a -- (inaudible) --

REP. NADLER: Well, let me -- let me just narrow the question.

Do you believe the president can order violations of a federal statute is he believes it necessary for national security?

MR. ADDINGTON: As a general proposition, no. I qualify it with "as a general proposition" because I think we all agree -- in fact, it was testimony here and I think some of the members of this committee agree that facts matter for lawyers in rendering opinions. And I wouldn't render a legal opinion in the absent -- I wouldn't render one to the committee in --

(Cross talk.)

REP. NADLER: Well, when do you believe that the president is justified in violating a statute?

MR. ADDINGTON: You're assuming a fact not in evidence. I didn't say I did believe that.

REP. NADLER: But you said "under certain circumstances."

MR. ADDINGTON: No, I said reserving the fact that you need to have facts in order to render legal opinions.

(Cross talk.)

REP. NADLER: Are there any set of facts -- excuse me --

MR. ADDINGTON: As we --

(Cross talk.)

REP. NADLER: Is there any set of --

(Cross talk.)

REP. NADLER: Is there any set of --

(Cross talk)

MR. ADDINGTON: -- rendering legal opinion.

REP. NADLER: Is there any set of facts that would justify the president in violating a statute?

MR. ADDINGTON: I'm not going to answer a legal opinion on every imaginable set of facts any human being could think of, Mr. Chairman.

REP. NADLER: Do you believe that the torture of -- torture, nevermind how you define it; assume it's torture. Do you believe that torture of a restrained detainee could be allowed of a theory of self defense or necessity?

MR. ADDINGTON: I haven't expressed an opinion on that, Mr. Chairman.

REP. NADLER: You have not expressed an opinion. Do you have such an opinion?

MR. ADDINGTON: I haven't researched the issue myself. I've relied on opinions on the subject issued by the Department of Justice.

REP. NADLER: Well, you did express the opinion, I believe, that the president could -- by that article -- his Article II powers as commander in chief in effect allowed him to take actions which the FISA would prohibit. Is that correct?

MR. ADDINGTON: I don't believe I've expressed those here. I think there is a serious question -- constitutional questions raised to the extent Congress, instead of carrying -- helping by passing statutes to carry into execution the president's power, would instead try to block the president's power. There are court cases at the circuit level, not at the Supreme Court level and also the Foreign Intelligence Surveillance Court of Review that refer to the president's commander in chief powers as --

(Cross talk.)

REP. NADLER: All right.

Let me ask you --

REP. FRANKS: Mr. Chairman --

(Cross talk.)

REP. NADLER: Let me ask you one further question.

Let me ask you one further question.

REP. FRANKS: Mr. Chairman? Mr. Chairman? I'd ask unanimous consent to grant the chairman an additional minute to complete his questioning.

REP. NADLER: Thank you. Without objection.

Mr. Addington, Mr. Yoo -- Professor Yoo was quoted as saying that under certain circumstances, it would be proper and legal to torture a detainee's child to get necessary information. Do you agree with that?

MR. ADDINGTON: I don't agree or disagree, Mr. Chairman. I don't claim to address it. You're seeking a legal opinion. And as we told you in Exhibit 4, I'm not here to render legal advice to your committee. You do have attorneys of your own to give you legal advice.

REP. NADLER: The time -- my -- well, let's see. Let me ask Mr. Yoo one opinion -- one question.

In your memo, Professor Yoo, you talked about -- in your memo that's been quoted repeatedly from August -- or the Bybee memo, which you helped prepare -- that "severe pain, as used in the federal statute prohibiting torture, must rise to the level that would ordinarily be associated with a sufficiently serious physical condition such as death, organ failure, or serious impairment of body functions."

Where did you get that from? I mean, I know that that language is in a different statute. But where did you derive that, that's what torture means under the federal statutes?

MR. YOO: Mr. Chairman, you're referring to the August 1st, 2002 memo --

REP. NADLER: Yes.

MR. YOO: -- not the March 2003 --

REP. NADLER: That's a quote from your -- yes.

MR. YOO: Again, I want to say -- your question is "Where did it come from?"

REP. NADLER: No, how did you reach that conclusion? I mean, you made a very specific statement that this is what -- in order to violate the statute, it's got to meet this criterion.

MR. YOO: Yes.

REP. NADLER: Where did you get that criterion from?

MR. YOO: Sir, let me make clear, when the Congress passed that statute, there's no further definition of that phrase in the statute itself. We looked at the legislative history. There was no legislative history from the time of the passage of the statute that produced any kind of definition. There was no -- the United States Justice Department had never brought a prosecution under the statute, so there'd been no judicial decisions of that language.

So we applied, I think, as the memo says, a can of construction to try to find anywhere else in the U.S. Code where Congress -- where you have defined those terms in any other kind of statute. And as the opinion says, and the 2003 opinion also says, we recognize that that statute was not -- you know, was on a subject that was different than the torture statute, but we used a can of construction to try to infer from what Congress has passed in other contexts to see if it can provide some help to us in trying to interpret what I think is -- I think then -- I think that was a very difficult statutory language, because there was no further judicial interpretation or congressional guidance.

REP. NADLER: Thank you.

BREAK IN TRANSCRIPT

Mr. Addington, you stated to Ms. Wasserman Schultz earlier in this hearing that your involvement in the CIA interrogation program was greater than your involvement in the military program. What was your involvement in the CIA interrogation program?

MR. ADDINGTON: We had a number of meetings, as you might imagine. An example was the one I described earlier with the Justice Department to obtain legal advice on the program. A number of the lawyers in the relevant parts of the executive branch would be involved in working on the legal advice on such a matter.

REP. NADLER: Why was the -- well, first, you just said that you're not part of the executive branch in the vice president's office, but leave that aside.

MR. ADDINGTON: With a number of lawyers. I was referring to --

REP. NADLER: Okay.

MR. ADDINGTON: All I am, sir, is an employee of the vice president.

REP. NADLER: Why was the lawyer for the vice president's office involved in CIA business?

MR. ADDINGTON: As you know, in modern times, vice presidents often provide advice and assistance to presidents. In fact, that's what they spend the majority of their time doing. Vice presidents are not in charge of anything. They simply gather information. They provide advice. They have whatever functions presidents give them, but it's basically advice and assistance.

REP. NADLER: And, as such, they participate in the various agencies' business?

MR. ADDINGTON: No. Congress has recognized that function. If you look at Section 106, Title 3, the modern president is provided advice and assistance, and they provide staffs. Part of the vice president's staff is paid for under the appropriation that goes with the statute I just cited. Part of the vice president's staff is paid out of the legislative branch appropriation. And when the president's staff wishes to have us participate and provide advice, then --

REP. NADLER: So the president asked you, in effect, or someone on behalf of the president authorized that?

MR. ADDINGTON: We were included because it is the practice in this administration, stronger at some times than others, but generally, that the president's staff and the vice president's staff --

REP. NADLER: In other words, pursuant to the president's --

MR. ADDINGTON: Working together.

REP. NADLER: Okay, pursuant to the president's authorization. Did you have any involvement in the CIA's decision to destroy any interrogation videotapes?

MR. ADDINGTON: To destroy? No, sir.

REP. NADLER: Okay. If the CIA program is found to be unlawful, would you bear any responsibility for that?

MR. ADDINGTON: If the CIA program is found to be unlawful --

REP. NADLER: Yes.

MR. ADDINGTON: -- would I bear responsibility?

REP. NADLER: Any responsibility. I didn't say --

MR. ADDINGTON: Is that a moral question? A legal question? I mean, let me distinguish --

REP. NADLER: Interpret it as you will, either way.

MR. ADDINGTON: I believe -- and I'm somewhat sympathetic to the approach Professor Schroeder took -- that the legal opinions issued by the Department of Justice, to the extent they are relied upon by those who are implementing the president's --

REP. NADLER: No, we're not talking about legal opinions -- excuse me. We're not talking about legal opinions at the Department of Justice. Given your involvement in discussions with the CIA, did these discussions implicate what they did? And if what they did was unlawful, would your discussions have any bearing on that? That's my real question.

MR. ADDINGTON: No, I wouldn't be responsible is the answer to your question.

REP. NADLER: Thank you.

Mr. Yoo --

MR. ADDINGTON: Legal or moral.

REP. NADLER: Mr. Yoo, The Washington Post has reported that Attorney General Ashcroft and his deputy, Larry Thompson, were not aware of the March 2003 memorandum when you wrote it and transmitted it to the Pentagon. Is that accurate, that the attorney general and the deputy AG were not aware of that memo?

MR. YOO: Mr. Nadler -- sorry -- Mr. Chairman, we received the request from the Defense Department. We notified the office of the attorney general immediately that we had received the request.

REP. NADLER: You notified them of the request. Did you notify them and send them a copy of the memo?

MR. YOO: Sir, we also notified the deputy attorney general's office, and --

REP. NADLER: Did you notify them and send them a copy of the memo when you finished it?

MR. YOO: Sir, we sent them drafts of the memo to both offices.

REP. NADLER: And the final one?

MR. YOO: Yes, sir, we also sent --

REP. NADLER: Okay.

MR. YOO: -- versions of the final ones to both the deputy attorney general's office and the office --

REP. NADLER: Right. Thank you. Your --

MR. YOO: -- (inaudible).

REP. NADLER: What? Yeah, what do you mean, versions? You sent them a copy of the final memo?

MR. YOO: Yes, sir.

REP. NADLER: Okay, thank you. Your prepared testimony says that the office of the attorney general and the deputy AG and the Criminal Division received drafts of (the opinion ?). You just said that. Who in those offices received those drafts?

MR. YOO: In response to your question, sir, as you know, the Justice Department has instructed me not to discuss the particular individuals --

REP. NADLER: Not to name those who received the draft? I don't think that was in the instructions, number one. And I don't think they have the power to issue such an instruction.

MR. YOO: Excuse me one second, sir.

(Off mike consultation.)

Mr. Chairman, I think that my recollection at the time was that -- in delivering the drafts of the memo to the Office of the Attorney General that we delivered to the counselor to the attorney general at the time --

REP. NADLER: And who was the counselor?

MR. YOO: His name was Adam Ciongoli.

REP. NADLER: Thank you.

MR. YOO: And my recollection as to the deputy attorney general's office -- and let me -- I can't say definitively everybody who got a copy either. I'm just saying because these were sensitive matters, we had to transmit them. I believe we may have given them to the principal associate deputy attorney general at the time, whose name was Chris Wray.

REP. NADLER: Chris Wray. Thank you.

Now, without divulging the content of any discussions, did those offices make comments or revisions to the opinions?

MR. YOO: Yeah, without divulging the content --

REP. NADLER: Without divulging -- did they make any?

MR. YOO: I can say that there were -- is your question comments or?

REP. NADLER: Comments or revisions?

MR. YOO: I can say that we received --

REP. NADLER: Well, how about separate: Comments?

MR. YOO: Yes.

REP. NADLER: Revisions?

MR. YOO: They received comments. I don't recall revisions one way or the other, sir.

REP. NADLER: And can you say who made those comments?

MR. YOO: Any comments we would have received would have come from the people that I just mentioned -- the counsel to the attorney general or the principal associate deputy attorney general.

REP. NADLER: Thank you.

Without objection, I'll grant the chairman one additional minute.

Did you ever understand that the attorney general or the deputy AG had personally approved this opinion -- that is the March 2003 memorandum?

MR. YOO: Let me state, sir: We could not have issued such an opinion without the approval of the Office of the Attorney General or the Office of the Deputy Attorney General. I can't recall --

REP. NADLER: But you don't know whether they personally approved.

MR. YOO: Well, I can't recall whether they sent a memo or something signing it or signing off on it.

REP. NADLER: When you say you couldn't have issued it without the approval of the office of the AG or deputy AG, what do you mean by that other than by them personally?

MR. YOO: So you're asking -- I mean, I wouldn't know, sir, just personally whether the --

REP. NADLER: Whether the AG --

MR. YOO: -- attorney general himself personally approved it. But we would have received -- the way the Justice Department works is you receive communications from the Office of the Attorney General.

REP. NADLER: Okay.

And finally, why was the memo -- or the opinion, rather, signed by you instead of by the head of the OLC at the time?

MR. YOO: The 2003 -- March 2003 memo?

REP. NADLER: Yes.

MR. YOO: I don't have the dates in front of me -- right in front of me -- but my recollection is that Jay Bybee, who was the head of the office, was just about to go onto the bench. As you know, he's now currently a judge of the U.S. Court of Appeals for the 9th Circuit. And so I believe that the timing of the memo and when he was going to go on the bench were very close to each other. I couldn't be certain whether he would still --

REP. NADLER: Have been there --

MR. YOO: -- been in office at the time.

REP. NADLER: Okay.

Professor Schroeder, could you comment briefly on that answer -- on that question, rather?

MR. SCHROEDER: Well, I only know what's been -- (inaudible) -- which is that Jay Bybee went onto the bench about 10 days after the memo was signed on March 14th. So at the time -- so far as, I think, the public record discloses -- he was assistant attorney general in the Office of Legal Counsel.

REP. NADLER: And after he went on the bench, who was the assistant attorney general for legal counsel? Who took that position immediately thereafter?

Anybody?

MR. SCHROEDER: There was an active assistant. There was no nominee or --

REP. NADLER: But there was someone acting in that.

MR. SCHROEDER: There was an acting assistant attorney general.

REP. NADLER: And if it was too late for Mr. Bybee to sign it, why didn't that gentleman or lady sign it?

MR. SCHROEDER: Well, you know, as you know, Mr. Chairman, you know, classified matters can only be discussed with people who are cleared to know about them. When the Justice Department --

REP. NADLER: So just to cut to the chase: So that person may not have been cleared at that point?

MR. SCHROEDER: I'm trying to remember sir. But I do not believe at that time -- my recollection is I don't believe they were cleared at that time.

REP. NADLER: Thank you.

BREAK IN TRANSCRIPT


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