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


Location: Washington, DC

REP. TRENT FRANKS (R-AZ): Well, thank you, Mr. Chairman.

Mr. Chairman, the subject of detainee treatment was the subject of over 60 hearings, markups and briefings during the last Congress in the Armed Services Committee alone, of which I am a member. This hearing is yet another on terrorist interrogation programs, including those Speaker Pelosi was fully briefed on many years ago. And during those briefings, no objections were made by Speaker Pelosi or anyone else.

Let me be clear again, as I have in the past, by saying that torture is illegal. Torture is banned by various provisions of law, including a 2005 Senate amendment prohibiting the cruel, inhuman degrading treatment of anyone in U.S. custody. But special interrogations, while legal, are very infrequent. CIA Director Michael Hayden has confirmed that, despite the incessant hysteria in some quarters, the waterboarding technique has only been used on three high-level captured terrorists -- the very worst of the worst of our terrorist enemies.

What are these people like, Mr. Chairman? When the terrorist Zubaydah, a logistics chief of al Qaeda was captured, he and two other men were caught building a bomb. A soldering gun used to make the bomb was still hot on the table, along with the building plans for a school. John Kiriakou, a former CIA official involved in Zubaydah's interrogation, said during a recent interview, quote, "These guys hate us more than they love life. And so you're not going to convince them that because you're a nice guy, and that they can trust you, and that they have a rapport with you, that they're going to confess and give you their operations," close quote.

He said the interrogation of Zubaydah was a great success and that it led to the discovery of information that led to the capture of terrorists, thwarted their future plans and saved innocent American lives. The result of these special briefing -- these brief special interrogations of three of the worst of the worst terrorists, (will ?) have immeasurable benefits to the American people.

CIA Director Hayden has said that Mohammed and Zubaydah provided roughly 25 percent of the information CIA had on al Qaeda from all human sources. The president has also described in some detail other crucial information we received through special interrogation programs. Now, after the May 6, 2008 Constitution -- House Constitution subcommittee hearing, our chairman said the -- (inaudible) -- was the response when today's witnesses were asked to identify a single example of a ticking bomb scenario ever occurring.

But unfortunately that gives a misleading impression. If they're asking about specific incidents, then maybe we're a little bit too obsessed with the television show "24." But if we're talking about general threats, and eminent threats generally, then the case of Khalid Shaikh Mohammed should be placed front and center.

As Benjamin Wittes of the Brookings Institute has written in his book, "Law and the Long War," quote, "Khalid Shaikh Mohammed is far more than a ticking bomb. He is all of the bombs in various stages of imagination and construction. While the United States has not captured many such people, he was not the only one. And for leaders and operatives dedicated to protecting the country from further attack, failing to get all available information from such people is simply not an outcome."

Mr. Chairman, just a personal note. I believe this is about the 10th hearing that we've had in this subcommittee that was dedicated primarily to making sure that we were protecting the rights of terrorists. And I understand that. But we've had none that I know of that are dedicated to trying to protect the lives of American citizens. And I think 10-to-zero is a little out of balance. And so, with that, I want to yield back. Thank you.


REP. FRANKS: Well, thank you, Mr. Chairman.

Mr. Chairman, let me begin by -- in deference to the chairman of the full committee, he had asked for information related to the number of hearings -- let me first say that my comment was focused on the notion that if this government has failed at any time in the last 10 years, related to terrorism, it's in failing to being able to thwart the tragedy of 9/11.

Now, I'm not suggesting that, you know, that -- I'm not blaming anyone, but certainly there were mistakes led up to that situation. And if we failed, our first purpose is to protect the citizens of the United States of America.

And I had mentioned that there'd been approximately 10 hearings here in this committee that worked to try to protect terrorists' rights, or thwart our ability to defend American citizens against terrorists, whereas I'm not aware of any hearing that we've had that has tried to specifically protect victims in the United States from terrorism.

And I was asked to -- I've just got a (reffing ?), there was 10 -- I mentioned the number 10, there was one hearing on habeas corpus litigation, rights for terrorists; there was another one on preventing acts -- preventing access to business records in terrorist investigations; and this is the eighth hearing on this issue -- that's 10.

Now, I'd like unanimous consent to place the official list in the record --

REP. NADLER: Without objection.

REP. FRANKS: -- and I -- and I don't challenge the chairman's motivations in the slightest. I believe that the chairman wants to do the right thing. We may perhaps have a different perspective of it, but my big concern here is the whole direction of our country here.

To suggest that the president of the United States is more committed to perpetrating torture than trying to protect the American people is a ridiculous notion, and yet that has been the ultimate effect of a lot of these hearings. Let me also say that I was, of course, at the hearing when Mr. Addington appeared, and he did -- couldn't remember exactly when he had been to Guantanamo.

He said he had been there several times, Professor Sands. I've been to Iraq a couple times, I can't recall exactly which years those were. Now maybe that -- maybe that explains a lot of things. I don't know, maybe I'm gathering wool, but I don't remember exactly what year sometimes the places I've been.

What he did say was he had clear memory that he hadn't said, do whatever's necessary. I think that's reasonable. And, unfortunately, here -- in a country where we have the right to our own opinion, we sometimes suggest that that gives us the ability to consider ourselves unconstrained to the facts and the truth. And there is a difference.

But, Mr. Feith, let me calm down here a little bit and just suggest that -- I want to give you an opportunity to describe any more of the inaccuracies that you feel like you've been subjected to here.

MR. FEITH: Well, thank you, Mr. Franks.

I think that -- I'll give the -- a quick list of what I think are errors and distortions in Mr. Sands' book. He says that the -- that this memo from Mr. Haynes was commonly silent on the use of multiple techniques.

And, Mr. Chairman, this is -- Mr. Chairman, this is something that you just asked about, whether this memo talked about multiple techniques. The memo said that if multiple techniques were used, they would have to be used, quote, "in a carefully coordinated manner."

Second, Mr. Sands says that I wanted the detainees to receive no protection at all under Geneva, and that I worked to ensure that none of the detainees could rely on Geneva. On the contrary, argued that Geneva applied to the conflict with the Taliban and what I said is they should not get POW status. That's very different.

And what Mr. Sands said actually confirms my point because the quote that he cited applied to al Qaeda detainees, and there was a general view within the administration that the Geneva Conventions did not apply at all to the al Qaeda detainees. This is something that ultimately the Supreme Court disagreed with the administration on, but it was not even a controversial issue at the beginning where -- I don't recall any part of the U.S. government making the argument that our conflict with al Qaeda was governed by the Geneva Conventions.

Mr. Sands says that if detainees do not get POW or Common Article 3 protections, then, quote, "no one at Guantanamo was entitled to protection under any of the rules reflected in Geneva." That's not true. There are various protections that they might get, including ICRC visits, repatriation after the conflict, possibly Article 5 tribunals and other -- and other matters.

Mr. Sands says that I solidly resisted --

REP. NADLER: The gentleman from Iowa has insisted on strict enforcement of the five-minute rule.

REP. FRANKS: Mr. Chairman, I --


REP. FRANKS: Thank you, Mr. Chairman.

Ms. Pearlstein, I just wanted to get a yes or no answer, and then I'll let you expand on the next question. In Mr. Rudy's (ph) book he said the Iraq and Afghanistan detainees actually died in custody and incidents the military deemed homicides. There are -- none of the interrogation tactics used in these cases were authorized.

Do you know -- of those people who died in custody, do you know of any technique that was used that caused their death that was specifically authorized by the United States government?

MS. PEARLSTEIN: I think the answer to that question remains unclear. That is to say --

REP. FRANKS: Okay. That's correct. Good answer.

MS. PEARLSTEIN: And if I can just add --

REP. FRANKS: I'm going to let --

MS. PEARLSTEIN: -- I quoted before the testimony of a young officer's who --

REP. FRANKS: So we don't know?

MS. PEARLSTEIN: He believed that he was authorized to stuff a detainee in their sleeping bag and --

REP. FRANKS: I understand. But you don't know of anything that was authorized like that, yes or no?

MS. PEARLSTEIN: Some of the soldiers believed it was authorized.

REP. FRANKS: Okay. So I'm not going to get an answer.

Let me just ask you this, then. What specific -- specific interrogation techniques would you recommend under the framework that you choose that the government use to obtain information from known terrorists who were resisting the questions, when those terrorists refused to provide information voluntarily? What techniques would you use, Ms. Pearlstein?

MS. PEARLSTEIN: I think there are techniques in the --

REP. FRANKS: Specifically.

MS. PEARLSTEIN: -- discussion that's elaborated in the Army Field Manual is an excellent start.

REP. FRANKS: Well, enlighten me.


REP. FRANKS: What specific techniques would you use?

MS. PEARLSTEIN: Do you want me to read to you the section of the Army Field Manual?

REP. FRANKS: No, I'd like you to give me your opinion on what techniques you think would be effective.

MS. PEARLSTEIN: I'm not an interrogator, sir, so I'm not sure I'm necessarily the witness that's qualified to give you that answer.

REP. FRANKS: All right. So do you want to make a shot at the answer or not?

MS. PEARLSTEIN: I think my answer is the U.S. Army Field Manual on intelligence interrogation has multiple sections that describe appropriate interrogation techniques. I think that's a good approach.

REP. FRANKS: But you don't know of anything that you would use that would effectively help get reluctant information from --

MS. PEARLSTEIN: I would prefer to receive some training before I was sent into a room like that.

REP. FRANKS: Okay. That's great. That's great.

Mr. -- Professor Feith, read one more time the specific phrase that you read earlier about POWs, how they can be questioned and what the coercive nature of that could be or could not be.

MR. FEITH: In Article XVII of the Geneva Convention it says that no physical and mental torture nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever.

REP. FRANKS: So what's the --

MR. FEITH: And he says prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

REP. FRANKS: That's pretty clear to me. I may not -- (inaudible) -- a lot of this, but that's pretty clear to me. That means if he doesn't -- if you said, if you don't answer this question we're not going to let you play checkers this afternoon, you wouldn't be able to do that, under the POW, correct?

MR. FEITH: I believe that's right.

REP. FRANKS: Yeah. Well, I think that if we said that you were a prisoner of war right here, under that language, Mr. Ellison's questions would have been out of bounds. I think that the entire Committee hearing would be out of bounds.

And I think that, unfortunately, if Osama bin Laden and Khalid Sheikh Mohammed were sitting back there in the corner, they would be laughing at this Committee right now. because they understand our system better sometimes than we do, and in terms of a wink and a nod, don't you think that sometimes terrorists wink and nod about being tortured to each other?

MR. FEITH: Well, as we know, and as was referred to earlier, the part of the training that al Qaeda people have received, and it's in writing, is to always claim that they were tortured when they're in detention.

Mr. Franks, may I use your time to clarify something that I wanted to say with regard to what the chairman was talking about?

REP. FRANKS: Please.

MR. FEITH: When I said that the techniques from the 18 techniques memo were consistent with humane treatment depending on how they were done, I was referring only to those that Secretary Rumsfeld had actually approved.

Because the several that he hadn't approved, there were legal questions that were raised by General Hill about them, and it was not recommended that they be used and Secretary Rumsfeld did not approve them.

So I just want to make it absolutely clear that I'm not saying, I'm not offering an opinion on whether the techniques that were rejected by Secretary Rumsfeld could have been used properly.

REP. FRANKS: Well, I'm just -- my last thought here, Mr. Chairman --

MR. FEITH: He -- in other words, Secretary Rumsfeld only approved of the Category Three items, the only one that he approved was use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing.

REP. NADLER: Would the gentlemen yield for a second?


REP. NADLER: Did he approve anything or everything, or disapprove anything in category two?

MR. FEITH: Yes. He approved category two, but in category three, he --

REP. NADLER: I got that. Thank you. But he approved category two?


REP. NADLER: Thank you.

REP. FRANKS: Mr. Chairman, essentially under the rationale of the Committee here, if someone in prison in our American prisons gets beat up tomorrow we could blame the president. So I yield back.

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