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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


Location: Washington, DC


Mr. Chairman, as I've said before, the subject of detainee treatment has been the subject of over 60 hearings, markups and briefings during the last Congress in the House Armed Services Committee alone, of which I am a member. And I will say then, as I've said in this committee many times, torture is banned by various provisions of law, including the 2005 Senate amendment prohibiting the cruel, inhuman or degrading treatment of anyone in U.S. custody.

Severe interrogations, by contrast, do not involve torture and they are legal. The CIA waterboarded 9/11 mastermind Khalid Sheikh Mohammed, Abu Zubaydah and Abdel Raham Nashirif (sp). The results of these severe interrogations were of immeasurable benefit and perhaps saved lives in the American society.

CIA Director Hayden has said that Mohammed and Zubaydah provided roughly 25 percent of the information the CIA had on al Qaeda from human sources. Even ultra-liberal Harvard law professor Alan Dershowitz wrote recently in The Wall Street Journal that Attorney General Mukasey is absolutely correct that the issue of waterboarding cannot be decided in the abstract. The court must examine the nature of the government interest at stake and then decide on a case-by-case basis. In several cases involving actions at least as severe as waterboarding, the courts have found no violation of due process. And again, these are Alan Dershowitz' words, not mine.

Torture, as I've said again, should be illegal. But when severe interrogation methods that are not torture are contemplated, the law requires that their legitimacy be evaluated in context.

To put some of this in context, it's useful to note the comments of Jack Goldsmith, who formerly served as an assistant attorney general in the Office of Legal Counsel. In a November 12th, 2007 discussion at Duke Law School, Jack Goldsmith said the following. Quote: "It is widely thought that the administration is exaggerating the terrorist threat for public consumption. In my experience, the opposite is true. The threat, as the government perceives it, is much more intense, fear-inducing, than the government lets on to the public."

Mr. Goldsmith went on to say of his experience in this administration, quote, "I don't think it's right to characterize it as policymakers using the fear of an attack to try to influence the lawyers, because everyone understood those stakes, because we were all reading the same reports."

Stuart Taylor has written the following in the National Journal. Quote: "The CIA had reason to believe that unlocking the secrets in Khalid Sheikh Mohammed's mind might save hundreds of lives, perhaps many, many more, in the unlikely but then conceivable event that al Qaeda was preparing a nuclear or biological attack on an American city," unquote.

Mr. Chairman, Mr. Taylor is correct. For example, at a May 6th Constitutional Subcommittee hearing, I asked the Democrat witness, Marjorie Cohen, president of the National Lawyers Guild, how she would write a statute defining how terrorists should be treated when they refuse to provide vital information voluntarily. And I want to just have us listen to her reply.

MAJORIE COHEN (president, National Lawyers Guild): (From audiotape.) What kind of statute would I write? I would write a statute that says that when you're interrogating a prisoner and you want to get information from him, you treat him with kindness, compassion and empathy. You gain his trust. You get him to like and trust you, and then he will turn over information to you.

REP. FRANKS: Mr. Chairman, I want you to know, as sincerely as I can say, that I wish that this lady were correct. I wish it were that simple. I wish it could be that way. But I would suggest that the statement she made is dangerously naive, and any successful effort to stop another devastating terrorist attack must necessarily involve a more serious and realistic response than that offered by Mrs. Cohen. And I hope our discussion today rises to a higher level of analysis. It is critical to American national security.

And finally, I'd like to note that the dangers of moving back toward the failed model of treating terrorists like ordinary criminals was made perfectly clear in a recently written article in the interrogation of Khalid Sheikh Mohammed. The article appeared last Sunday in The New York Times, and it makes clear how we can expect terrorists to react when they are granted the rights of criminal defendants.

According to The New York Times, Khalid Sheikh Mohammed met his captors at first with a cocky defiance, telling one veteran CIA officer, a former Pakistan station chief, that he would talk only when he got to New York and was assigned a lawyer. Of course, this was the experience of his nephew and partner in terrorism, Ramzi Yousef, after Yousef's arrest in 1995. Unfortunately, the Supreme Court of the United States has taken steps to grant Khalid Sheikh Mohammed's wish, and I hope the Congress does not make the same mistake.


Professor, are you familiar with the reports of the 9/11 commission?


REP. FRANKS: According to page 132 of that report, in December 1998, the Clinton administration Justice Department issued a legal opinion authorizing the assassination of Osama bin Laden on the apparent ground that he was waging war on the United States and that assassinating him would be self-defense, not murder. Incidentally, I think assassinating him might have interfered with some of his major bodily functions. I'm just positing an opinion there.

Do you believe that this is one of the implausible theories of defenses to criminal statutes that you decry on page three of your prepared testimony?

MR. SCHROEDER: Well, Mr. Franks, I haven't reviewed either that opinion or the commission report. I do believe that if we're talking about the formulation of the defense and self-defense and necessity, as it appears in the August 2002 memorandum, that, yes, that's -- the way those defenses are articulated there are among the pieces of legal reasoning in that memo that I think are far-fetched.

And I'm surprised, actually, to read in Professor Yoo's testimony that he says the Criminal Division reviewed the memo. He doesn't say the Criminal Division approved of the contents of the memo. And I'd be surprised if they did. I'd be interested in knowing. And by "they," I mean, not only the political appointees but the career professionals in the Justice Department.

And I say that because, in my experience, the prosecutors in the Criminal Division labor mightily to keep those defenses as narrow as possible, as you can imagine, since they're in the business of prosecuting criminals. And to have -- and, in fact, in 2001 the Supreme Court had just recently decided a case that the government argued in which the government argued that unless the defense of necessity was explicitly stated in a federal statute, it wasn't available to a defendant in opposing --

REP. FRANKS: Thank you, Mr. Schroeder.

MR. SCHROEDER: -- a conviction under a federal statute. So it surprises me to learn that the Criminal Division was part of this process, and yet nothing about what I think the full range of their views would be on self-defense --

REP. FRANKS: Professor, thank you.

MR. SCHROEDER: -- (inaudible) -- in the memo.

REP. FRANKS: Thank you. It does appear interesting to me that the Clinton Justice Department can issue a memo saying that assassinating someone is self-defense for the country, but now we're debating today whether waterboarding someone like Khalid Sheikh Mohammed to save perhaps thousands of Americans' lives here is the big question.

Mr. Yoo, let me read part of an interview that you had with Esquire Magazine. In that interview, you discussed the need for precise legal guidance when you helped draft legal opinions at the Office of Legal Counsel. And incidentally, I think this is very well- stated.

"The other thing I was quite conscious of was that I didn't want the opinion to be vague so that people who actually have to carry out these things don't have a clear line, because I think that would be very damaging and unfair to the people who are asked actually to do these things."

Do you have any elaboration on that?

MR. YOO: Mr. Franks, I think the interview speaks for itself, but let me just say now, not putting myself in the position back then, but now I think when you're called on to interpret a statute which provides language which the Congress hasn't otherwise defined and the courts haven't otherwise defined, that it's important to give the client, the people who have to undertake action, very clear definition of what is the best we can do of what those terms mean.

REP. FRANKS: Well, I think that's what you tried to do, Mr. Yoo.

Mr. Chairman, I would just say, try as they might, the majority should not be spinning matters of life and death into a soap opera. The fact remains that the special terrorist interrogations program was approved through a normal process for classified covert operations. It was disclosed to Speaker Pelosi. She did not object at the time. It was rarely used, and it was immensely successful in preventing future terrorist attacks.

Mr. Addington, is there anything that you'd like to add here?

MR. ADDINGTON: Just one brief point. Professor Schroeder mentioned that it was unnecessary or even not a good idea that Mr. Yoo's opinion -- or, excuse me, Mr. Bybee's opinion of August 1st, 2002, which addressed the defenses of necessity and justification, and I think the constitutional issue.

In defense of Mr. Yoo, I'd simply like to point out, that's what his client asked him to do. So it is the professional obligation of the attorney to render advice on subjects that the client wants advice on.

REP. FRANKS: Thank you, Mr. Chairman.


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