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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 V


Location: Washington, DC

REP. LOUIS GOHMERT (R-TX): Thank you, Mr. Chairman. It's an honor to be sitting beside you. Maybe one of these dates it'll be switched. (Chuckles.) We'll -- we'll talk about that later but I just wanted to again thank General Ashcroft. Going back to my days as a judge we've never met but I always had great respect and admiration for the way you conducted yourself with -- with class and veracity, and I'd never heard anything that you've ever said either through the media or in person that had the least cloud over it until earlier today when you made a comment that stretched, I felt like, the bounds of credibility when you said you were thankful for the opportunity to be here to testify, and I wasn't real sure about that one.

But -- and I do want to come back but Mr. Dellinger, I wanted to ask you -- this discussion about waterboarding brought out the comment I think from General Ashcroft that some of our agents may have been hardened in training by the use of waterboarding. So I'm wondering would those people who use waterboarding on one of our trainees be susceptible to being prosecuted for violating the law?

MR. DELLINGER: One of -- one of our U.S. agents who engaged in training on one of our --

REP. GOHMERT: Our folks -- one of our trainees.

MR. DELLINGER: -- test them. It's been a while since I taught criminal law but I believe that there's a mens rea intentional requirement that would clearly not be met and, therefore, that criminal liability would not apply in those circumstances.

REP. GOHMERT: Well, it would seem like you'd certainly intentionally be waterboarding one of our own agents. I don't know if you -- (inaudible).

MR. DELLINGER: Well, I -- I -- assisted by Mr. Wittes who reminds me that when there's voluntary participation by the subject that may itself eliminate a requirement of criminality.

REP. GOHMERT: So it's possible waterboarding could be acceptable in that scenario you're saying if -- if he volunteered for the service even though he may not have known that the waterboarding was coming he knew some tough training was coming and the goal is to harden him -- to make him a good agent so he could withstand torture in some other setting. So there are settings where it may be acceptable then, correct?

MR. DELLINGER: Well, whether it's wise or acceptable is beyond my ken.

REP. GOHMERT: Well, my question --

MR. DELLINGER: I think it would not be

(Cross talk.)


MR. DELLINGER: My -- my questions would -- I do not think that would be -- I mean, I think that would be a crime. Indeed, I believe I've heard press accounts of Mr. Levin of the Department of Justice himself ask to be subjected to this to learn about -- to gain a sense of what the technique was like.

REP. GOHMERT: And probably others we'd like to ask if they would volunteer for that technique as well. But you had indicated that if we use waterboarding then you would basically agree that that would put our troops at risk, and you are so well educated you're surely aware that before waterboarding was ever an issue -- before Abu Ghraib was ever an issue -- that we had extremist radical Islamics who I believe mistakenly believe the Qur'an gives them and tells them they should destroy infidels. That was going on. We heard of our soldiers being disemboweled, we had their heads being cut off. What is more risky than being disemboweled and having your head cut off?

MR. DELLINGER: Mr. Smith, my answer to that question --

REP. GOHMERT: Oh, and I know I look like Mr. Smith --

MR. DELLINGER: Oh, I'm sorry.

REP. GOHMERT: -- and he'd probably slap you for that.

MR. DELLINGER: I'm sorry. I -- Judge --

REP. GOHMERT: I'll -- I won't even add -- ask to try my last name, but -- yeah. (Scattered laughter.)

MR. DELLINGER: My answer to that question was that I was not an expert in these matters and -- but I had always been impressed by Senator McCain's arguments that he thought, having been a prisoner of war, that the standards that -- that we set as a country --

(Cross talk.)

REP. GOHMERT: Well, my time is running out and I wasn't interested in what Mr. McCain had to say but I was curious about your perspective. But I would submit to you when you go back in our history to the late 1700s when we had never done anything and Thomas Jefferson was sent to negotiate with the radical Muslims who felt like it was okay to take our -- our sailors and either put them in bondage, torture them, or kill them -- we had done nothing, he didn't understand, and that's when he bought a Koran. But if I might just ask Attorney General Ashcroft -- he's been so patient -- what would you say to those who have accused you of war crimes?

MR. ASHCROFT: I just -- I don't think they know what war crimes are. And I'm glad people care about what their public officials do. I think it's important that they do and that they -- I sort of am a Ronald Reagan fan and he said trust but verify, and I think that's the way people ought to be about public officials. So when -- when people in the public and others -- people in the Congress -- want to verify and they don't want to totally rely on trust I'm -- I'm for that. I -- I just would think it would be very -- I think it's important to be very careful before you accuse anybody of committing any crime. I -- I'm -- and it stuns me that some people want to run around and call other people criminals. That's a serious offense to call someone a criminal and I find that the people who -- who do it sometimes are the people who speak about being the most liberal and the most rights- oriented, and for them to announce the criminality of individuals is stunning to me -- takes my breath away.

But, you know, it was my job to protect their right to do so and I think that's one of the privileges of serving in government, and one of the great aspects of America is that we are very, very tolerant of people expressing an opinion that others are even criminal. But I think -- on the other hand I think that's a term that ought to be reserved and used with great care, and when it's used recklessly it has a way of diminishing our freedom if not our respect for each other and I -- I think that's unfortunate.

REP. GOHMERT: I appreciate it. Thank you very much. Thank you, Mr. Chairman.

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