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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


Now, I don't want to begin a dialogue with Trent Franks, because we have plenty of time for that, but Marjorie Cohn's response was to a question asked by Republicans on the Committee. She didn't come here as a person to give us advice on what we ought to do. Someone asked her that and that's what she said. I'm more interested in what we're going to say in response to that question, not any individual lawyer or individual citizens.

And where we want to go with another person that was given a lawyer in New York, I don't know if that's shocking to anybody, but we normally provide people that are going to be tried criminally with counsel. And that's been the custom in the United States for quite a period of time now.

So I just want to thank the committee -- this Judiciary Committee I'm so proud of, the Constitution Committee in particular -- and the way we go about making history around these questions.

Now, we have several points here that will be examined. We have reports stating that our witnesses today played a central role in drafting Justice Department legal opinions on interrogations. Some of those opinions have been withdrawn, but let's listen to Senator Lindsey Graham, of the Armed Forces Committee, what he said last week about these memos.

(Begin audio excerpt.)

SEN. LINDSEY GRAHAM (R-NC): What we are trying to do here today is support it. Now, the guidance that was provided during this period in time, I think, will go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation's military and intelligence community.

(End excerpt.)

REP. CONYERS: And he also said that while he thought that administration lawyers may have had good intentions, but he said they used, and I quote here, "They used bizarre legal theories to justify harsh interrogation techniques." End quote.

Now, Mr. Addington, Professor Yoo -- I come here to give you the benefit of the doubt and we want to hear your side of it. I'd like to understand how these memos came to be written and why. I'd like to learn more about your view of the unitary executive theory of government, in which the president is supposed to be superior to some or all of the laws or wherever that leads.

I'm interested in Professor Yoo's description of this public debate that he entered into of if the president could order that a suspect's child could be tortured in gruesome fashion? And that his response was: I think it depends on why the president thinks he needs to do that. Or is there anything that the president could not order to be done to a suspect that he believed was necessary for the national defense? And that line of questions are all very important to me. We want to understand this and we want to have a fair discussion about it.


Professor Yoo, we appreciate your appearance here today. During a public debate, it was reported you were asked if the president could order that a suspect's child be tortured in gruesome fashion, and you responded that "I think it depends on why the president thinks he needs to do that." Is that accurate?

MR. YOO: Mr. Chairman, I don't believe it's accurate, because it took what I said out of context. The quote stopped right before I continued to explain a number of things, which I appreciate the opportunity to do --

REP. CONYERS: But so far what I read was accurate, but there was more.

MR. YOO: It was -- it stops, like, mid-sentence. So I didn't get to finish -- I mean, I finished the sentence during the debate, but I didn't --


MR. YOO: -- get a chance to --

REP. CONYERS: Thank you.

Is there anything, Professor Yoo, that the president cannot order to be done to a suspect if he believed it necessary for national defense?

MR. YOO: Mr. Chairman, I think that goes back to the quote you just read, because --

REP. CONYERS: No. I'm just asking you the question. Maybe it does or doesn't, but what do you think?

MR. YOO: I think it's the same question that I was asked.

REP. CONYERS: Well, what's the answer?

MR. YOO: First, can I make clear: I'm not talking about --

REP. CONYERS: You don't have to make anything clear. Just answer the question, Counsel.

MR. YOO: I just want to make sure I'm not saying anything --

REP. CONYERS: You don't have to worry about not saying -- just answer the question!

MR. YOO: My thinking right now?

REP. CONYERS: This moment.

MR. YOO: This moment, Mr. Chairman, is that, you know, first the question you're posing --

REP. CONYERS: What is the answer!

MR. YOO: Mr. Chairman, I'm not trying --

REP. CONYERS: Oh, I get it, okay.

MR. YOO: Let me answer the question. I will answer the question.

REP. CONYERS: No! You're wasting my time. Look, Counsel, we've all practiced law --

MR. YOO: I don't think the --

REP. CONYERS: Hold it! Could the president ordered a suspect buried alive?

MR. YOO: Mr. Chairman, I don't think that I have ever --

REP. CONYERS: I am asking you that.

MR. YOO: -- given the advice that the president could bury somebody alive.

REP. CONYERS: I didn't ask you if you gave him advice. I asked you: Do you think the president could order a suspect buried alive?

MR. YOO: Mr. Chairman, my view right now is I don't think the president -- no American would ever have to order that or feel it necessary to order that.

REP. CONYERS: Okay. I think we understand the games that are being played.

Okay, now, let me turn to Attorney Addington about the ABC News reported that there was a so-called principals meeting in which Vice President Cheney sat around with other Cabinet-level officials to approve specific interrogation techniques. True?

MR. ADDINGTON: I don't know of any such meeting, Mr. Chairman. If one did or didn't occur -- I certainly wasn't at one.


MR. ADDINGTON: I was not at a meeting that fits the description you've given.

REP. CONYERS: Okay, right.

Do you feel that the unitary theory of the executive allows the president to do things over and above the stated law of the land?

MR. ADDINGTON: The Constitution binds all of us, Congressman -- the president and all of you as members of Congress, all of the federal judges. We all take an oath to support and defend it. I frankly don't know what you mean by unitary theory of government. I don't have --

REP. CONYERS: Have you ever heard of that theory before?

MR. ADDINGTON: Oh, I have. I see it in the newspapers all the time.

REP. CONYERS: Do you support it?

MR. ADDINGTON: I don't know what it is.

REP. CONYERS: You don't know what it is?

MR. ADDINGTON: No. And it's always described as something Addington's the great, you know, advocator of.


MR. ADDINGTON: Now, let me tell you where I've used the word "unitary" in quoting OLC opinions, in drafting signing statements. And you will find OLC opinions that refer to the unitary executive branch. And by that they simply mean --

REP. CONYERS: I don't need you to interpret to me what other people have used it --

MR. ADDINGTON: I know. I'm answering your question about my views on what the word "unitary" is.

REP. CONYERS: You're telling me you don't know what the unitary theory means.

MR. ADDINGTON: I don't know what you mean by it, Mr. Chairman.

REP. CONYERS: You don't know what I mean by it. Do you know what you mean by it?

MR. ADDINGTON: I know exactly what I mean by it!

REP. CONYERS: Well, what do you mean? Tell me.

MR. ADDINGTON: The use of the word "unitary" by me has been in the context of unitary executive branch. And all that refers is -- I think it's the first sense of Article II of the Constitution, which says all of the executive power is vested in A, the president of the United States. One president, all of the executive power -- not some of it, not part of it, not the parts Congress doesn't want to exercise itself. That's all it refers to.

REP. CONYERS: Thank you very much.


Professor Schroeder, as the former acting director of the Office of Legal Counsel in the department, can you elaborate on any irregularities or improprieties that you may see in how the OLC memos we're discussing today were put together?

MR. SCHROEDER: Yes, Mr. Chairman.

It's unusual, in my experience, for memoranda as significant as the March '03 memo and say, the September 25, '01 memo on the commander in chief authority, to be signed by a deputy. If the assistant position was vacant, I can understand how that might happen, but otherwise -- in my experience -- those would be the kind of detailed memoranda and significant memoranda that would be issued by the assistant attorney general.

It's also the practice -- as Professor Yoo has said in his testimony -- to solicit the advice of other components of the Justice Department. And where there are any disagreements about the content of the memos, to note that fact in the memos themselves.

So in this case, there was either unanimity throughout the Justice Department on the controversial legal interpretations that were being given, or that some disagreements were not noted for the record.

Finally, with respect to the memoranda that deal with interrogation techniques and torture specifically, there is some expertise in the executive branch on what torture means, because both the State Department and the INS have responsibilities for applying the idea of torture in the context of requests for aliens to seek relief from removable decisions in immigration matters, or the State Department receiving asylum requests from aliens.

And in both of those contexts, the two departments have developed their own administrative understanding of what constitutes torture or not. I would have expected that those internal executive branch reservoirs of knowledge on what torture means would have been accessed by OLC.

Now, I understand from Professor Yoo's prepared testimony, that the CIA specifically prohibited the State Department from participating or didn't allow them to be contacted. That strikes me as very unusual, because it's cutting out a source of knowledge within the administration that I think could have been quite helpful in articulating the working standard of what constitutes torture or not under the statute and under the treaty.

REP. CONYERS: Our witness, Professor Yoo, has claimed that there was a lack of guidance on the meaning of torture, which was why he used a health-care related statute in drafting the 2002 opinion.

Do you have any comment on that circumstance?

MR. SCHROEDER: Well, I think -- to amplify on what I just said -- I think there are sources of understanding, working knowledge as to what constitutes torture or not that would have provided more guidance -- not necessarily in statutory law, but in the working experience of expert agencies who have handled the matters.

Some of them, like the immigration process, result in decisions by the Board of Immigration Appeals that could have been accessed to give you some reference points -- at least for purposes of discussion.

Now, maybe they're not going to be conclusive, because torture -- I think if you try to define the precise boundary where just an inch to one side is torture and just an inch to the other side is not torture, you're going to have a very difficult time.

REP. CONYERS: Of course. The last comment with reference to Professor Yoo's testimony, it seems he's claimed that even though the August 2002 memo was revoked, that there is a footnote in the revocation memo stating that the conclusions in the memo remain in force. Am I missing something there?

MR. SCHROEDER: Well, Mr. Chairman, that's not my understanding. Dan Levin who authored the December 31, 2004 memo has testified before this committee that that's an erroneous interpretation of that footnote, and that in fact he had not completed a review of any of the specific interrogation techniques at the time the December '04 memo issued, and that footnote is not to be interpreted as endorsing the outcomes of the 2002 evaluation process.

REP.CONYERS: Thank you very much.


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