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

Mr. Chairman, we're here today because of an article about interrogation techniques that appeared in The New York Times. The article describes a memo that allows what the headline characterizes as, quote, "severe interrogations" as described by a few anonymous sources who were only briefed on the memo and who have apparently not actually seen it.

The Times article concedes that the tactics it characterizes as, quote, "severe interrogations" simply include, quote, "interrogation methods long used in training for our own American servicemen to withstand capture," unquote.

Severe interrogations are unpleasant, to be very sure. But Mr. Chairman, they are sometimes necessary to prevent severe consequences that potentially involve the violent deaths of thousands of innocent American citizens.

Severe interrogations are very infrequent. CIA Director Michael Hayden has confirmed that despite the incessant hysteria, the waterboarding technique has only been used on three high-level captured terrorists, the very worst of the worst of our terrorist enemies.

Director Hayden suspended the practice of waterboarding by CIA agents in 2006. Before the suspension, Director Hayden confirmed that his agency waterboarded Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashiri, each for approximately one minute.

The results were of immeasurable benefit to the American people. CIA Director Hayden has said that Mohammed and Zubaydah provided approximately 25 percent of the information the CIA had on al Qaeda from human sources. That's 25 percent of the total information in human intelligence that we received on al Qaeda derived from three minutes' worth of rarely used interrogation tactics.

Curtailing this program would drastically reduce our ability to protect against horrific terrorist attacks. Even The New York Times article points out that such techniques have, quote, "helped our country disrupt terrorist plots and save innocent lives."

Torture -- torture, Mr. Chairman -- by contrast is illegal, as it should be. Torture is banned by the Uniform Code of Military Justice in 19 USC 893 and the 2005 McCain amendment prohibiting the cruel, inhuman or degrading treatment of anyone in U.S. custody as understood in the Fifth, Eighth and 14th Amendments.

According to The New York Times, the Department of Justice issued a legal opinion that, quote: "The standard imposed by Mr. McCain's Detainee Treatment Act would not force any change in the CIA's practices. Relying on a Supreme Court finding that only conduct that shocks the conscience was unconstitutional, the opinion found that in some circumstances waterboarding was not cruel, inhuman or degrading if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack, the officials familiar with the legal finding said," unquote.

Now we do not know whether or not the confidential Department of Justice legal opinion actually used the example of waterboarding. But the general principle expressed by the Department of Justice, echoed by the Supreme Court's finding, that circumstances inform our analysis of whether or not a tactic is cruel, inhuman or degrading and whether a tactic constitutionally shocks the conscience. The nonpartisan Congressional Research Service confirms that this analysis, quote: "The types of acts that fall within cruel, inhuman or degrading treatment or punishment contained in the McCain amendment may change over time and may not always be clear. Courts have recognized that circumstances often determine whether conduct shocks the conscience and violates a person's due process rights," unquote.

Even ultra-liberal Harvard Law Professor Alan Dershowitz agrees, as he wrote this recently in The Wall Street Journal: "Mukasey is absolutely correct," he says, "as a matter of constitutional law that the issue of waterboarding cannot be decided in the abstract. The court must examine the nature of the governmental interest at stake and then decide on a case-by-case basis. In several cases involving the actions at least as severe as waterboarding, courts have found no violations of due process."

As The Wall Street Journal pointed out in a recent editorial, Congress wants the Justice memos made public, but the reason to keep them secret is so enemy combatants cannot use them as a resistance manual. If they know what's coming, they can psychologically prepare for it. We know al Qaeda training involves its own forms of resistance training, and publicly describing the rules offers our enemies a road map for resistance.

Mr. Chairman, as I said in the last hearing, I believe those who would challenge aspects of the current practices and procedures governing the interrogation of terrorists have an absolute obligation to state explicitly what sorts of interrogation techniques they do find acceptable. Criticism without solution is useless and represents the opposite of leadership.

And I look forward to hearing from our witness, Mr. Chairman, and yield back.

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

Let me just first offer a little illustration that I hope gives some idea as to why some of us separate waterboarding from torture and why we do believe that circumstances and certain situations do change whether or not something shocks the conscience, and by way of just an illustration I hope that is relevant to most people.

If a neighbor is invited over for dinner and insults the hostess on the dessert and the husband of the home takes a baseball bat and beats his skull in for such an insult, I think that the courts would look negatively upon that. However, if a criminal breaks in at night and is attempting to rape his 4-year-old daughter and he does the same thing, it changes the way the courts look at the same situation.

So, you know, I want to put to rest the idea that there aren't effects on the circumstances given the nature of any act. That's very fundamental, and I'm astonished that we don't understand that.

Another thing I'm a little confused about, Mr. Chairman, in all deference to the leadership of this committee and the larger committee, the Judiciary Committee itself, we've spent time trying to deal with waterboarding issues, with issues related to FISA, with issues related to habeas corpus in Guantanamo, and in all three of those areas we've spent considerable time. And those things asserted by the majority would have great favorable effect on terrorists and very little effect on protecting American citizens. And I'm astonished that, given the fact that our first purpose in the federal government is to protect our citizens, that we spend so much time doing what we can to make sure that we're protecting terrorists and not our own -- not the citizens, which is our primary cause.

With that said, I want to ask Mr. Bradbury a question. Incidentally, sir, I think you've done a good job today.

General Hayden testified last week that in the past the military, the U.S. military has used waterboarding against American soldiers during the SRE (sic) training program. And S-E-R-E -- that's survival, escape, resistance and evasion -- is the acronym.

If waterboarding really is torture, then doesn't that mean that the U.S. military routinely tortures soldiers during their training? Would that be lawful? Do you think those who support a criminal investigation of CIA officers for their interrogation of terrorists also would support an investigation of the military officers who waterboarded our soldiers during training exercises?

MR. BRADBURY: Well, Mr. Franks, as General Hayden did say, the CIA's use of the waterboarding procedure was adapted from the SERE training program used by the Navy and other departments of the military in which many, many members of the military have been trained using that procedure.

And I agree with Chairman Nadler that, as distinct from the cruel, inhuman or degrading treatment shocks the conscience standard under the Detainee Treatment Act, the torture statute is an absolute standard. It is a bright-line rule, and whenever it's done in color of law -- that's when it's done for government purposes on behalf of the government -- if it's torture when done for one purpose, the same act would be torture when done for another purpose.

So I believe you would be correct that those training personnel engaged in the use of that procedure -- which I think was used until very recently -- would be guilty of torture.

REP. FRANKS: Well, again, I would just assert that I, too, truly believe that torture in our statutes and in the practice of this country is illegal and should remain illegal.

And I've heard a lot of reports in the press that waterboarding was developed in the Spanish Inquisition, and that the United States repeatedly prosecuted it. Is that true? Do you believe that these past historical practices bear any resemblance to the waterboarding as done by the CIA?

MR. BRADBURY: To my knowledge, they bear no resemblance to what the CIA did in 2002 and 2003. The only thing in common is, I think, the use of water. The historical examples that have been referenced in public debate have all involved a course of conduct that everyone would agree constituted egregious cases of torture.

And with respect to the particular use of water in those cases, as I've indicated, in most of those cases they involved the forced consumption of large amounts of water to such extent that -- beyond the capacity, in many cases, of the victim's stomach so that the stomach would be distended. And then in many of the cases weight or pressure, including in the case of the Japanese, people standing on or jumping on the stomach of the victim. Blood would come out of the mouth, and in the case of the Spanish Inquisition, there truly would be agony and in many cases death.

And so some of these historical examples, I think have been used in a way that's not, I think, an accurate portrayal of what -- of the careful procedures that the CIA was authorized to use with strict time limits, safeguards, restrictions, and not involving the same kind of water torture that was involved in those cases.

REP. FRANKS: Mr. Bradbury, my time is almost up, but you've -- is it your testimony that waterboarding is indeed not torture, and if so, what -- briefly, what would you offer is the difference?

MR. BRADBURY: Well, let me say, first of all, let me make it very clear, as I tried to do in my testimony, there are a lot of laws that apply here beyond the torture statute. And waterboarding has not been used by the CIA since March of 2003. There's been no determination by the Justice Department that its use today would satisfy those recently enacted laws, in particular the Military Commissions Act, which has defined new war crimes for violations of Common Article 3 which would make it much more difficult to conclude that the practice were lawful today.

But under -- strictly speaking, just under the anti-torture statute, as we've said in our December 2004 opinion, there are three basic concepts: severe physical pain, severe physical suffering and severe mental pain or suffering, which is specifically defined in the statute. And if something subject to strict safeguards, limitations and conditions does not involve severe physical pain or severe physical suffering -- and severe physical suffering we said in our December 2004 opinion has to take account of both the intensity of the discomfort or distress involved and the duration, and something can be quite distressing or uncomfortable even frightening -- but if it doesn't involve severe physical pain and it doesn't last very long, it may not constitute severe physical suffering. That would be the analysis.

Under the mental side, Congress was very careful in the torture statute to have a very precise definition of severe mental pain or suffering. It requires predicate conditions be met and then, moreover, as we said in our opinion in December 2004, reading many cases -- court cases under the Torture Victims Protection Act, it requires an intent to cause prolonged mental harm. And now that's a mental disorder that is extended or continuing over time, and if you've got a body of experience with a particular procedure that's been carefully monitored that indicates that you would not expect that there would be prolonged mental harm from a procedure, you could conclude that it's not torture under the precise terms of that statute.

REP. FRANKS: Thank you, Mr. Bradbury.

MR. BRADBURY: The last thing on the torture statute I'd like to say though, Mr. Chairman, is that the attorney general has made it clear that if he's essentially taken -- he's taking ownership of this issue in the sense that if there were any proposal to use this technique again, the question would have to go to the attorney general and he would personally have to determine that it satisfies all of the legal standards, including the torture statute. And by the way, he was not -- he's not simply going to rely on past opinions that may have addressed it years ago; he would make an independent and new judgment today as to whether he agrees with that conclusion.

REP. FRANKS: Mr. Chairman, thank you. I just wanted to ask -- to pass something to the chairman. If indeed we've had testimony in this committee that waterboarding is being used to train our soldiers, why aren't we investigating that? Why are we more concerned about the terrorists than we are our own soldiers?

REP. NADLER: Well, first of all, it's not necessary -- I mean, one of the problems with waterboarding people is you may think they're terrorists and they may not be. It's the question -- it's always the question of --

REP. FRANKS: Well, we know it's still happening to our soldiers. What are we not -- why are we not investigating that?

REP. NADLER: It's training in case they are tortured. That's what is there for --

REP. FRANKS: That's my point.

REP. NADLER: -- in case they are tortured, because we assume that enemy nations might torture people. We assume that we won't torture people. We don't assume the enemy is going to obey the law, so it may be prudent to train our people for torture.

In addition to which I would point that, at least with respect to the mental element, inflicting severe mental distress, when they're tortured they know that they're not going to die. When someone is being drowned, the mental aspect -- he doesn't know you're going to stop. It's -- if someone is being trained, you know you're not going to actually drown them. It may be severe physical but it's certainly not severe mental aspect. When we're torturing somebody else or someone else is torturing one of our soldiers, they don't know that they're going to be treated kindly --

REP. FRANKS: But if it is indeed torture, Mr. Chairman, if it is indeed torture, it shouldn't be done to our soldiers.

REP. NADLER: Well, is the gentleman asking that we investigate the military?

REP. FRANKS: No, sir, I'm asking you to understand the point here that --

REP. : Mr. Chairman, can I ask for regular order? Mr. Franks has exceeded his time.

REP. FRANKS: Thank you.

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