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. ROBERT SCOTT (D-VA): Thank you, Mr. Chairman.
Mr. Bradbury, in your statement, you said that the CIA program is very narrow in scope, is reserved for a small number of most hardened terrorists believed to possess uniquely valuable intelligence, intelligence that could directly save lives. Later on, you say fewer than 100 terrorists have been detained by the CIA as part of this program. It's been one of the most valuable sources of intelligence.
If you're using what everybody else in the world would consider torture, is it okay if you're not doing it to too many people and you're getting good information?
MR. BRADBURY: No. If it's torture it's not okay. We recognize, and this is what we said in our December 2004 opinion, torture is abhorrent and I think the president has made it clear that it's not condoned --
REP. SCOTT: That's 2004. What about 2005?
MR. BRADBURY: I'm sorry, in 2005? Absolutely.
REP. SCOTT: 2005 memo.
MR. BRADBURY: Yes.
REP. SCOTT: Same thing?
MR. BRADBURY: Our memos have consistently applied the principles from the December 2004 opinion.
REP. SCOTT: And so if it's -- if every -- is there any international precedence outside of this administration that suggests that waterboarding is not torture?
MR. BRADBURY: I'm --
REP. SCOTT: Anybody else in the world ever consider waterboarding not torture except this administration?
MR. BRADBURY: I am not aware of precedents that address the precise procedures used by the CIA. I'm simply not aware of precedents on point. And that's often what makes -- frankly what makes our job difficult. And I recognize --
REP. SCOTT: Well, you have this stuff on tape. You've heard the -- I'm sure you've heard the joke about the guy who is testifying at his murder trial and the prosecutor asks, are you going to tell the truth, and the guy said yes. And the prosecutor, do you know the penalty for perjury? And the defendant said, "Yes, it's a whole lot less than the penalty for murder."
Now, my question is, is the penalty for destroying the CIA tapes less or more than the penalty that could have been imposed had the contents of the tape been seen?
MR. BRADBURY: I don't know the answer. I'm not in a position to answer that. Of course, that matter is being handled by John Durham, the acting U.S. attorney in the Eastern District of Virginia.
REP. SCOTT: Was your office involved in the discussion as to whether or not the CIA tapes should have been destroyed?
MR. BRADBURY: I was not, and to my knowledge, I don't know of anybody who was.
REP. SCOTT: You do not know --
MR. BRADBURY: I don't know of anybody in our office.
REP. SCOTT: Do you know -- well, who was involved in this --
MR. BRADBURY: I don't know. I'm not in a --
REP. SCOTT: You're not privy to tell?
MR. BRADBURY: I don't have personal knowledge of that.
REP. SCOTT: Well, give us some leads. Who do you think was involved?
MR. BRADBURY: I'm not a position, Mr. Scott, to do that. I only know what I've read in the paper about the --
REP. SCOTT: And so if we're trying to find out who was involved in the discussion of the destruction of the CIA tapes, who should we look to?
MR. BRADBURY: I would look to the outcome of Mr. Durham's investigation.
REP. SCOTT: Well, I mean, help us out a little bit. You're right here. Who would be involved in that discussion in your opinion?
MR. BRADBURY: Well, I believe communications between the department and -- I know Chairman Reyes on the Intel Committee have been handled by the deputy, the acting deputy attorney general. And so I would refer you to his office.
REP. SCOTT: Okay. You've indicated -- you -- want to be clear -- let me be clear, though. There has been no determination by the Justice Department that the use of waterboarding under any circumstances would be lawful under current law.
MR. BRADBURY: That's correct.
REP. SCOTT: Has there been a determination that it is unlawful under current law?
MR. BRADBURY: No, sir, because the department, as I've tried to indicate, has not had occasion to address the question since the enactment of these new laws.
REP. SCOTT: And we don't have the CIA tapes to know what we're talking about so everything is kind of vague.
In 2007 the executive order in your statement says, "The executive order makes clear to the world that the CIA program must and will be operated in complete conformity with all applicable statutory standards, including federal prohibition against torture, the prohibition on cruel, inhumane or degrading treatment contained in the Detainee Treatment Act, and the prohibitions on grave breaches of Common Article 3 in the Geneva Conventions as defined in the amended War Crimes Act."
Did that part of the executive order change anything?
MR. BRADBURY: Yes, in the sense that that executive order -- that part of the executive order simply affirms that those statutes must be complied with and --
REP. SCOTT: Does that part of the executive order --
MR. BRADBURY: That doesn't --
REP. SCOTT: -- change anything?
MR. BRADBURY: I'm sorry?
REP. SCOTT: Did that part of the executive order change anything?
MR. BRADBURY: No, not in the sense that those statutes under their own terms do apply; in other words, it's recognized that those statutes must be satisfied. But I think that one thing the executive order does do is --
REP. SCOTT: Could we just talk about that part of the executive order that says that you're going to comply with the law --
MR. BRADBURY: We have to comply with the law; the program has to comply with the law.
REP. SCOTT: So those words didn't add anything. Could we be concerned about the word "grave" -- "prohibitions on grave breaches of Common Article 3"?
MR. BRADBURY: That's the term, Congressman, that's used in the Military Commissions Act, which define those new War Crimes Act defenses. That's the term that is used in the statute; that's all that is referring to. Those are those serious violations of Common Article 3 that merit criminal penalties.
REP. SCOTT: So breaches of Common Article 3 that are not grave are not illegal under the War Crimes Act? They're improper, apparently, but not illegal under the War Crimes Act?
MR. BRADBURY: That's correct. They would be a violation of our treaty obligations, and other aspects of the president's executive order address those other aspects of Common Article 3. The purpose of the executive order is to define requirements to ensure compliance with our treaty obligations under Common Article 3.
REP. SCOTT: My time has just about expired, Mr. Chairman. I yield back.
REP. NADLER: I thank the gentleman.
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