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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. Yoo, you wrote the Bybee memo of August 2002. Is that right?

MR. YOO: Mr. Ellison, as I describe in the opening --

REP. ELLISON: I need a yes or no, sir.

MR. YOO: I did not write it by myself.

REP. ELLISON: Did you write it at any part?

MR. YOO: I contributed to a drafting of it.

REP. ELLISON: Okay, so you contributed to a drafting of it. What percentage of the drafting did you write?

MR. YOO: It's difficult for me to --

REP. ELLISON: And you checked in with Addington about what you were going to cover? He said you did.

MR. YOO: Can I -- we're talking about the August 2002 memo?

REP. ELLISON: Of course. Did you check in with Addington, as he just said you did?

MR. YOO: I unfortunately do not have the same --

REP. ELLISON: So you can't --

MR. YOO: -- guidance as Mr. Addington does, because the Justice Department has told me I'm not allowed to talk about any individuals; I'm only allowed to talk about --

REP. ELLISON: Was Mr. Addington telling the truth when he said you checked in with him over what you were going to cover?

MR. YOO: Let me describe it. I --

REP. ELLISON: No, I want you to say yes or no.

MR. YOO: I gave the draft of the opinion to the White House counsel's office, which would be --

REP. ELLISON: So when he just said you came in to tell us what he was going to cover, you cannot confirm that.

Is that right?

MR. YOO: No, I'm not saying that at all.

REP. ELLISON: Well, answer my question.

MR. YOO: And so it's up to the White House counsel to decide who was in the White House --

REP. ELLISON: Stop, sir. I'm asking you to tell me to confirm whether what Mr. Addington reported, this committee was right or not right. That simple.

I hope this isn't coming out of my time, Mr. Chairman.

REP. NADLER: We're a little flexible.

REP. ELLISON: Who (else ?)?

MR. YOO: Mr. Ellison, I'm afraid I have to follow the guidance provided by the Justice Department on this question.

REP. ELLISON: So confirm what Addington said, deny what Addington said or say, I cannot answer the question. And what privilege are you asserting?

MR. YOO: I can't answer the question because of the instruction by the Justice Department --

REP. ELLISON: Thank you.

MR. YOO: -- that I am not allowed to --

REP. ELLISON: Thank you. Who else was present when you checked in with Addington?

MR. YOO: Sir, you're assuming I answered your last question.

REP. ELLISON: Is that a repeat of your last answer? Do you stick with the last answer you gave?

MR. YOO: The question was, who else was in the room when I checked in with Addington?

REP. ELLISON: Right. Then you can assert your privilege again if you choose. Do you?

MR. YOO: It's not my choice. The Justice Department has told me I can only talk about the office --

REP. ELLISON: So at some point, this 2002 memo was implemented. Is that right?

MR. YOO: What do you mean by "implemented," sir?

REP. ELLISON: Well, do you know what the word "implemented" --

REP. NADLER: If the gentleman will suspend for a moment. Stop the clock, please.

Professor, are you asserting a privilege?

MR. YOO: On the last question or the previous two?

REP. NADLER: Either one of them.

MR. YOO: The first two he asked me, I have to because of the instructions by the Justice Department that I can't discuss internal deliberations. I can --

REP. NADLER: And exactly what privilege are you asserting?

MR. YOO: I assume the Justice Department -- I can't say what the Justice Department's belief or the -- they have ordered me not to --

REP. NADLER: Hold on. You're testifying for a congressional committee. The Justice Department cannot order you with regard to your testimony. It can instruct you to take a privilege if you are entitled to a privilege. You can take the privilege without their instructions if you're entitled to privilege. If you are asserting a privilege, you're entitled to do so. But we're entitled to ask you what privileges you're asserting. And whether they're ordering you to assert a privilege or not, if the privilege is there, you can assert it. If it isn't there, you can't assert it, whatever they say.

MR. YOO: I believe it's the attorney-client privilege, sir.

REP. NADLER: So you're asserting the attorney-client privilege and not answering the question you were asked. And we will take that. Since you are not here under subpoena, we will take that under advisement and consider that at the end of the hearing.

We'll resume the questioning, and the clock will resume.

REP. ELLISON: Mr. Yoo, are you denying knowledge of what the word "implement" means?

MR. YOO: No, I wanted to --

REP. ELLISON: What does "implement" mean, sir?

MR. YOO: You're asking me to define what you mean by the word?

REP. ELLISON: No, I'm asking you to define what you mean by the word "implement." What do you understand the term to mean?

MR. YOO: I mean, it can a wide number of things.

REP. ELLISON: Okay, look, you contributed to the writing of the 2002 memo. Is that right?

MR. YOO: Yes, I do --

REP. ELLISON: The name on the memo was Bybee, but you contributed to the memo, right?

MR. YOO: Yes, sir.

REP. ELLISON: The memo was implemented at some point. Is that right?

MR. YOO: What do you mean by "implemented," sir?

REP. ELLISON: What I mean by "implemented" is the guidance that was set forth in that legal memorandum was followed and put into action. Do you understand what I mean by "implemented" now, sir?

MR. YOO: So you're asking me was the memo followed? Was the memo followed?

REP. ELLISON: I'm not going to get into semantical games with you in this five minutes. I need you to answer the question or refuse to. Was the IMPLEMENTED?

MR. YOO: The memo was signed and provided --

REP. ELLISON: I know what signed means and so do you. Stop wasting my time, Mr. Yoo.

MR. YOO: I'm not trying to, sir?

REP. ELLISON: Was the memo followed? Will you accept followed?

MR. YOO: I don't have personal knowledge about how it was followed --

REP. ELLISON: I didn't ask about how, I asked you whether it was followed, sir.

MR. YOO: Sir, you're asking me about things that other people would have done, not me.

REP. ELLISON: So the fact is so the memo was never put into effect. Are you making that claim?

MR. YOO: No, no, no, sir. Let me go back and refer to my opening statement.

REP. ELLISON: Forget it.

Mr Schroeder, do you understand what "implement" means?

MR. SCHROEDER: (Off mike.)

REP. ELLISON: Was this memo, this 2002 memo which Mr. Yoo refuses to answer questions about, ever put into effect?

MR. SCHROEDER: Of course, I have no personal knowledge. I wasn't in the --

REP. ELLISON: I'm not asking you about personal knowledge. Based on your study, was --

MR. SCHROEDER: My understanding is that the memo was prompted, at least in part, by a specific request of the CIA with respect to what kinds of procedures their operatives would be able to use in interrogating some high-level al Qaeda detainees. And once the advice was forthcoming -- my understanding is all from published investigative reporting, I have no firsthand knowledge myself -- is that some of the techniques that fell on the legal side of the line, according to the memorandum, were employed.

REP. ELLISON: So is that right, Mr. Yoo? Were the legal techniques outlined in this memo employed?

MR. YOO: Were the techniques that were legal -- let me say this. We did not make decisions about policy. We --

REP. ELLISON: I didn't ask you about that. I did not ask you about that, sir. I want to know if the legal advice that you gave in that memo was followed or if you expect that it was followed.

MR. YOO: You know, again, Mr. Ellison, I don't --

REP. ELLISON: Did anyone ever come to you and ask you for an interpretation of your memo?

MR. YOO: Interpretation of my memo?

REP. ELLISON: Did the interrogators ever come back and say, we got the memo --

REP. NADLER: Without objection, the gentleman will have one additional minute to finish this line of questioning.

REP. ELLISON: Did the interrogators ever return to you and say, you know, you've given us this memo, but we want to implement a certain technique, do we fall within the memo? Has that scenario ever played out?

MR. YOO: Again, sir, because of the instructions of the Justice Department, I can't tell you --

(Buzzer sounds.)

That's my clock, I assume.

REP. ELLISON: Mr. Schroeder, was the memo in effect during Abu Ghraib?

REP. NADLER: The gentleman will suspend again.

Professor Yoo, are you asserting a privilege?

(Off mike consultation.)

MR. YOO: Sir, I'm afraid Mr. Ellison's questions may involve a discussion of classified information which because of congressional statute I'm not at liberty to discuss in a public setting.

REP. NADLER: So you are asserting a privilege against the revelation of classified information in answering a question?

MR. YOO: I don't know if that's a privilege. I just can't do that, sir. I'm not saying it's a privilege, I just can't -- that's a violation of law.

REP. NADLER: So you're asserting that in order to answer Mr. Ellison's question, you would have to reveal classified information?

MR. YOO: I might have to, sir.

REP. NADLER: Might have to or do have to? Let me rephrase the question --

MR. YOO: As I understand it --

REP. NADLER: Let me rephrase the question. Is there any way you can answer Mr. Ellison's question without revealing classified information?

MR. YOO: As I understand the question, I would have to discuss classified information to provide him a complete answer. I don't (want ?) to do that, sir.

REP. NADLER: Okay. Well, again, we'll take that under advisement.

REP. : Mr. Chairman, may I make a parliamentary inquiry? Can I make a parliamentary inquiry to the chair?

REP. NADLER: Yes, the gentleman will state his parliamentary inquiry.

REP. : I would inquire of the chair if after we come back from our break from voting on the floor if the chair would consider directing particularly the two government witnesses, Mr. Yoo and Mr. Addington. I have noticed, Mr. Chairman, I've been on the committee for a year and a half, I've never seen two witnesses, frankly, struggle as much to appreciate ordinary use of terms in questions. Would you consider instructing the two witnesses to answer the questions that they're asked? And if they wish to elaborate or clarify, then they can ask to do so.

But given that we have time constraints, I would ask that the chair admonish the witnesses to ere on the side of being responsive as opposed to constantly quibbling over word choices I've never seen to the degree I've seen today.

REP. NADLER: I will certainly consider that as we break, which we will recess in a few minutes for the votes on the floor.

The gentleman can finish his questioning.

REP. ELLISON: My question is, when the interrogators, the ones who were addressing the witnesses who were being interrogated, were those individuals, did they have a lawyer that they could go to to ask about guidance as to what they could do or could not do under the guidance of the memo that you contributed to writing?

MR. YOO (?): Mr. Ellison, as I understand the structure of our government, the CIA has its own General Counsel's Office. And I believe it's about 100 lawyers. So I assume you believe that the CIA conducted interrogations. And if you did, they have the General Counsel's Office to ask legal questions.

REP. ELLISON: Were you ever asked questions about whether certain techniques or others were permissible under the guidance you gave in that memo?

MR. YOO: As I said to the chairman just a second ago, I'm afraid I think your question --

REP. ELLISON: You're asserting a privilege. Were you ever asked whether waterboarding was permissible under the advice you gave?

MR. YOO: Sir, if you'll let me finish, I can't answer your question because I believe it --

REP. NADLER: Okay, the gentleman will suspend.

Okay, you're asserting that you cannot answer the question as to whether the CIA asked you questions regarding the legality of waterboarding without revealing classified information. Is that your assertion?

MR. YOO: Yes, sir.

REP. NADLER: Okay. We will hold that under advisement. And the gentleman's time has expired.

REP. ELLISON: One last question?

REP. NADLER: Without objection, the gentleman will have 30 seconds additional.

REP. ELLISON: Did your memo allow for the use of sicking dogs on interrogated individuals?

MR. YOO: I'm afraid I have to give the same answer, but I will point you to the --

REP. NADLER: Excuse me a second, excuse me a second. The question was, did your memo allow for that? That's not confidential. The memo has been revealed to the public.

REP. : Mr. Chairman, parliamentary inquiry.

REP. NADLER: One second, let him answer the question.

MR. YOO: You're referring to the August 1st, 2002 memo. The speaks for itself. It does not discuss what you just mentioned.

REP. NADLER: Thank you. The gentleman's time has expired.


Professor Schroeder, when a person who is at the OLC or in policymaking -- well, a lawyer at the OLC drafts a memorandum advising agencies on any legal matter -- I don't want drill down just on torture right now -- but when they offer advice, legal advice in the form of memoranda, do they -- in your experience is there an ongoing role after the memoranda is written in helping to advise how to implement that advice that's offered?

MR. SCHROEDER: Well, it will vary from topic to topic, but it would not be unusual for Office of Legal Counsel attorneys, after issuing a written opinion, to be asked follow-on questions or variations on the first question that had been asked --


MR. SCHROEDER: -- or questions about what certain language in the opinion ought -- how that ought to be applied in light of circumstances at the agency or the executive office of the president is considering.

(Cross talk.)

MR. SCHROEDER: -- back and forth is not at all unusual.

REP. ELLISON: And in your experience was it -- would it be at all unusual if somebody who was actually trying to carry out and implement an activity that -- which they received guidance on from a legal memoranda would say, "Well, the memo doesn't speak specifically to this instance. Does it apply or how would it apply in a given situation?"

MR. SCHROEDER: No, that wouldn't be unusual at all.

REP. ELLISON: Yeah. Well, I guess my question is, one of the things I think we should know more about it to what degree did people who were doing interrogation in the light of the August 2002 memo, get direct advice on how to implemate and how to interpret that memo. Now I know you weren't part of that, but do you have any views on this subject? Is there anything you could tell us about it?

MR. SCHROEDER: Well, typically those sorts of additional questions would come, I think first -- if you're talking about an administrative agency or branch of the services -- would tend to go through their lawyer chain of command. And it wouldn't be necessarily, and I think would probably be unusual for somebody in the field to call an Office of Legal Counsel lawyer directly. What they typically do, and because many of the requests that the Office of Legal Counsel receives for legal advice come in the first instance from a general counsel or a chief counsel. So the communication, the initial communication is lawyer to lawyer.


MR. SCHROEDER: So there would be a communication -- if someone in the other department or branch was confused, the tendency would be for them to inquire of their general counsel's office and then for a communication to come over to the Office of Legal Counsel from there.

REP. ELLISON: Right. Now, Mr. Addington, you've been to Guantanamo Bay, obviously. Were you there during an interrogation of suspects?

MR. ADDINGTON: As I mentioned this morning to Ms. Wasserman Schultz, I have a recollection, perhaps not on the September 2000 trip she was referring to but perhaps -- at least on one of the trips -- I can recall seeing people in a room, I guess you'd call it, and we could see through an observation window or up on a video screen or maybe both. I do remember that.

REP. ELLISON: Now, did the interrogators ever ask you any questions about how the interrogation could be legally conducted as it was going on?

MR. ADDINGTON: I don't recall them doing that, no, sir, and I don't believe they did. It wouldn't be appropriate for me to be talking directly to an interrogator about what he'd be doing outside of his chain of command.

REP. ELLISON: What about indirect? For example, if a interrogator went out, they might talk to someone in their agency. Did you have occasion for somebody in the agency to confer with them about how the interrogation might be continuing on?

MR. ADDINGTON: I spoke with the general counsel's office of the Central Intelligence Agency as did a number of other folks as I described. When the executive branch would have a meeting, that they would invite me too and we'd talk about it, both at the CIA and the DOD, although less so at DOD, Department of Defense.

REP. ELLISON: So at DOD, you're speaking with regard to Mr. Haynes, is that right?

MR. ADDINGTON: General Counsel.

REP. ELLISON: And who's the individual you have in mind at the Central Intelligence Agency?

MR. ADDINGTON: The -- well, early on it was their general counsel. And he left and went back to New York to practice law, and there's an acting general counsel.

REP. ELLISON: What's his name?

MR. ADDINGTON: The general counsel was a fellow named Scott Muller, M U L L E R. And then he left, as I say, there was an acting general counsel, who I believe is still the acting general counsel.

REP. ELLISON: Did you witness the interrogation process as going forward while you were in Gitmo?

MR. ADDINGTON: I don't know what else to say other than what I already said. I remember seeing, you know, through the observation window an orange suit in there and someone talking.

REP. ELLISON: Could you hear it?

MR. ADDINGTON: I don't recall you could hear it. You could just see it.

REP. ELLISON: Were you part of a group of folks who made legal decisions on a regular and routine basis that would include Alberto Gonzales, William Haynes -- excuse me, sir -- well, yeah, Jim Haynes and yourself. Were you part of that?

MR. ADDINGTON: I talked regularly in lots of different meetings with the counsel of the president and his deputy, with the Department of Defense general counsel, less frequently with the CIA general counsel or acting general counsel. But, yes.

REP. ELLISON: Okay. So did you and Mr. Gonzales and Haynes have sort of an ongoing responsibility or authority to guide the -- and make decisions about legal matters for the administration with regard to torture, detainees -- the conduct of the war on terror?

MR. ADDINGTON: No, I think it's more monitoring what's going on, discussing it, and if you need legal advice on the subject, you would ask a question to the Office of Legal Counsel which typically would be done either by the counsel to the president if it's the White House that wants the advice, which the law, by that way that you all passed provides for; it's 28USC, something like 5-11, 5-12 in that range. And also heads of agencies have the authority to go to OLC and get that legal advice so that -- they usually do that through their general counsels, either DOD or CIA

REP. ELLISON: Do you deny being a member of a war counsel that included Alberto Gonzales, Mr. Haynes and yourself?

MR. ADDINGTON: No that -- it's interesting, I never heard that label until Jack Goldsmith wrote his book, "The Terror Presidency," which has been quoted earlier in this hearing. We had meetings all the time. That's the same group of folks I was talking about earlier. I asked Jim about it once, and he said, "Oh yeah, we call it the war counsel over here." I'm not actually a fan of cute little names for meetings. It's a common executive branch habit, and I think that's where it came from.

REP. ELLISON: So do you deny it, or do you admit it?

MR. ADDINGTON: No, I think I just said -- I just answered that question.

REP. ELLISON: I don't think you did.

MR. ADDINGTON: Okay. Well, as I said, I met regularly with Mr. Haynes, sometimes the CIA general counsel, the counsel of the president, deputy counsel of the president and me, on a range of issues some of which dealt with interrogation of enemy combatants in the war on terror. At the Department of Defense, apparently when some of those meetings were held, they would list on their schedules, "The War Counsel," as if that's some great name for this group. To me it was just the lawyers getting together to talk.


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