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Hearing of the Constitution, Civil Rights and Civil Liberties Subcommitee of the House Judiciary Committee - From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part IV


Location: Washington, DC

REP. NADLER: I'll accept that assurance. I do not anticipate having controversy between the chair and the ranking member over whether to call a recess. That has never occurred, to my knowledge, or my memory, certainly. So with that assurance, the committee will proceed in the understanding that if it's necessary to call a recess because of votes on the floor or any other unforeseen event, we will call a recess.

We will now begin by proceeding to members' opening statements. As it has been the practice of the subcommittee, I will recognize the chairs and ranking members of the subcommittees and of the full committee, of the subcommittee, to make opening statements -- and of the full committee to make opening statements.

In the interest of procedure, our witnesses, and mindful of our busy schedule, I would ask that other members submit their statements for the record. Without objection, all members will have five legislative days to submit opening statements for inclusion in the record.

The chair now recognizes myself for five minutes for an opening statement.

Today the subcommittee continues its investigation into this administration's interrogation policies, which have brought disgrace to our nation. Whatever euphemism one chooses -- harsh interrogation, enhanced interrogation -- or whatever justification might be offered, I believe, given all we know now, that it is clear that this administration has authorized torture and that, under its auspices, torture has been inflicted on people in U.S. custody and that assurances that this nation does not use torture, when it clearly does, does not make the situation any better.

The testimony we have received so far has been deeply troubling. Perhaps nothing was so troubling as discovering that the chief of staff to the vice president of the United States could not bring himself to make an unequivocal statement that the president lacks the authority to order someone buried alive.

I've also been astonished to discover that despite the radical departure from past practice and the past understanding of the law governing interrogation and treatment of detainees, no one appears to have been responsible for the changed understanding of the word "torture." In fact, it has been surprisingly difficult to find anyone who can remember much about the decision-making process at all. Perhaps there is something in the White House drinking water these days that causes amnesia.

The facts have also been obscured by expansive claims of privilege, extraordinary claims of secrecy, sometimes concerning matters that were later made public without so much as a ripple, and claims that some matters were so super-secret that members of Congress couldn't be told, even in a classified setting.

I do not believe that this country has ever had an administration that was as obsessed with secrecy as this one. The public is ill- served by concealing questions of law and policy from the public or from other branches of government, not questions of execution but questions of law.

Nonetheless, the picture that has emerged from our investigations, despite the administration's stonewalling, is deeply disturbing. It seems clear from the evidence that we've been able to assemble so far that the administration decided early on to engage in torture, to use any rationale to do what generations of soldiers understood we could not do, and to conceal that fact from the American people and from the world.

As a result, our nation, and especially our men and women in uniform, are less safe today. And it was also interesting to hear from Mr. Yoo at a previous hearing that he could not say that a foreign power, an enemy power, that waterboarded our troops would be doing anything illegal. That's the consequence of our adopting policies of torture.

Instead of uniting our allies and isolating our enemies, the administration has accomplished the exact opposite. We must find out who was responsible for this and we must determine how we can prevent this from happening again.

Today we will hear from Douglas Feith, one of the individuals most closely associated with the decision-making process concerning detainees. Mr. Feith was a top-ranking official at the Department of Defense when many of these matters were considered and many of the policies set in place. I hope that Mr. Feith will be able to enlighten the subcommittee about how some of these decisions were made and what the justification was for these policies.

Before we begin, I need to address the issue of the subpoena that Chairman Conyers issued to Mr. Feith compelling his testimony before the subcommittee. I had not intended to raise it, but Mr. Feith has included in his prepared testimony a discussion of the subpoena, so I want to make sure that everyone understands our understanding of the facts.

We would rather proceed without having to authorize subpoenas, and I know the chairman of the full committee does not like issuing them. But they're an important tool available for the Congress to ensure that individuals with information necessary to the work of the Congress will cooperate.

In Mr. Feith's case, the committee worked with him and his counsel for several months, finally obtaining his voluntary agreement to appear at a hearing. He canceled that appearance the morning of the hearing. His attorney gave as the reason for the last-minute cancellation Mr. Feith's objection to one of the other witnesses and his stated belief that the hearing would not be businesslike. We cannot permit a witness whose testimony we require to censor the committee's choice of other witnesses.

After the subcommittee authorized the subpoena, committee staff again contacted Mr. Feith's attorney, attempting to obtain his voluntary agreement to appear. Although counsel did make an oral statement that Mr. Feith was available to appear, committee staff were unable to obtain an unambiguous written commitment that there were no circumstances in which he would fail to appear. As a result, issuing the subpoena was only prudent.

Mr. Feith's failure to cooperate with this investigation so far goes beyond his earlier refusal to appear. Nearly two months ago, committee staff met with Mr. Feith's counsel and informed him that committee members would be interested in Mr. Feith's role and Secretary Rumsfeld's approval of harsh interrogation measures for Guantanamo Bay. Staff even identified the particular document in which Defense Department General Counsel Jim Haynes states that he discussed the issue with Mr. Feith.

While Mr. Feith has provided us this morning with a lengthy statement -- or for this morning, I should say; a couple of days ago -- with a lengthy statement, it is striking in its failure to address his role in the administration's interrogation program beyond the narrow question of the Geneva Conventions. Yet Mr. Feith simply ignores this issue with his statement.

Given our prior experience, it was clear that the only way to ensure the appearance today was to issue the subpoena. I hope my colleagues will agree that witnesses do not get to decide what we will investigate or which witnesses we will invite to assist us in our work. Especially in a case in which the accountability of public servants is involved, those public servants do not have the option of refusing to account for their actions.

The subject matter of this hearing is extremely important. And I hope that despite earlier difficulties, we'll be able to conduct our work in a businesslike manner and that the witnesses will endeavor to assist the members in getting the facts as easily as possible. I thank the witnesses for their cooperation. I yield back the balance of my time.

I would now recognize for his opening statement our distinguished ranking minority member, the gentleman from Arizona, Mr. Franks.


REP. NADLER: I thank the gentleman.

I would simply want to point out that regardless of the situation with the country -- we can all judge that for ourselves at any given point -- we do have laws in this country. And that's what distinguishes us from some other countries. Those laws are not set aside by difficult circumstances.

And the question that we are -- among the questions we are considering is whether those laws were violated. And we can differ on that question, but you cannot take -- no one can take the position that our laws against torture or any other laws can be simply set aside at the whim of the administration which thinks that that's the best way to deal with the challenges with we are faced.

We are a nation of laws. Those laws must be obeyed. And if they are inadequate, they should be changed through constitutional processes. And that's what this committee is examining: whether those laws were obeyed; whether they were disobeyed, and if so why; and what we can do about it in the future.

REP. : Mr. Chairman.

REP. NADLER: That is a legitimate inquiry.

REP. : A point of parliamentary inquiring.

REP. NADLER: Yes, sir.

REP. : Isn't it true that we're having another hearing on Thursday -- the fifth in the series?

REP. NADLER: No. That's a hearing in the full committee.

REP. : I appreciate that.

Further inquiring: Isn't it true that under the law this alleged torture had to be reported to Congress and that it was reported to Congress?

REP. NADLER: First of all, I don't know the answer to your question.

But in any event, that is not a parliamentary inquiring. You may want to --

REP. : Then a further inquiry of the chair: Isn't it true that Speaker Pelosi and Jane Harman of California both were briefed and would thus fall under the chairman's definition of advice and counsel?

REP. NADLER: That again is not a parliamentary inquiry and you might want to address any questions to the witnesses.

REP. : One final parliamentary inquiring.

REP. NADLER: I've yet to hear the first one, but go ahead.

REP. : Mr. Chairman, do we have the ability to summon members of Congress who may know about the torture at Guantanamo or other places?

Do we have that authority, Mr. Chairman? Perhaps the full committee chairman could tell us whether we can bring a member of Congress to answer those questions.

REP. NADLER: (Inaudible.)

REP. : Well, can we even invite a member of Congress to give testimony or to tell us what they knew?

REP. NADLER: We can certainly invite a member of Congress to testify about anything. We've had members of Congress in front of our committee. Whether we can compel a member of Congress, frankly, I don't know. We'd have to consult a parliamentarian.

REP. : Thank you, Mr. Chairman. I then move that we invite Speaker Pelosi and Ms. Harman to give us the knowledge they knew since my understanding, as a member of the Intel Committee, is that they were both fully briefed in real time on what we're going to hear today. And that before we -- and we do it (for Thursday ?) since before we come to an end of these endless hearings, we certainly should know what did they know and when did they know it.


EP. NADLER: I thank you, sir.

We'll now begin the questioning of the witnesses. As we ask questions of our witnesses, the chair will recognize members in the order of their seniority in the subcommittee, alternating between majority and minority, provided that the member's present when his or her turn arrives. Members who are not present when their turn begins will be recognized after the other members have had the opportunity to ask their questions. The chair reserves the right to accommodate a member who's unavoidably late or only able to be with us for a short time.

I'll begin by recognizing myself for five minutes to begin the questioning.

Mr. Feith, I want to ask you about your role in Secretary Rumsfeld's December 2002 approval of techniques for use in interrogations at Guantanamo Bay.

The cover memo from the Department of Defense Counsel Jim Haynes to Secretary Rumsfeld says, and I quote, "I've discussed this with the deputy, with Doug Feith and General Myers. I believe that all join in my recommendation." Unquote.

Did you undertake your own review of legality of the requested techniques? And if you didn't, whose legal advice did you rely upon?

MR. FEITH: We were relying on the general counsel.

REP. NADLER: That is Mr. --

MR. FEITH: Mr. Haynes.

REP. NADLER: And had you seen the August 2002 OLC legal memo?

MR. FEITH: I don't think so. I don't remember when I first saw that. I've been doing so much work on this subject in recent years, and research, that I can't -- I don't remember when I first saw that document.

REP. NADLER: Is it your recollection that that document would not have been influential in your deciding accede to the secretary's memo in December?

MR. FEITH: It's possible that I hadn't seen it all. I can't tell you that it's influential when I don't know that I saw it.

REP. NADLER: So you're saying that it wasn't influential -- even if you had seen it, it wasn't influential? You don't remember seeing it?

MR. FEITH: I don't remember seeing it.

REP. NADLER: Okay, fine.

In your written testimony, you state that you argue the application of Common Article 3's humane treatment requirements. Do you believe that the interrogations which you recommended Secretary Rumsfeld give blanket approval -- stress positions, isolations, nudity, the use of dogs -- qualify as humane -- that would be in categories two -- qualify as humane treatment under Geneva?

MR. FEITH: I think it's important when we discuss this document -- there's so much discussion of this document, on the Haynes memo on counter-resistance techniques -- to understand the way it looked to us, I think it's extremely important to go back and look at the memo.

REP. NADLER: We have the memo.

MR. FEITH: I would encourage everybody to do that. I attached it as an attachment to my --

REP. NADLER: We all have the memo, sir. We have it in front of us.

MR. FEITH: Okay. I attached it as part of my statement.

When we looked at this statement, what it does is -- SOUTHCOM requested some additional techniques. I think there were 18 of them. And it put the techniques into three categories.

REP. NADLER: Excuse me. To cut to the chase, you said that categories one and two were okay --

MR. FEITH: No, no, no. If we're cutting to the chase, I think you need to --

REP. NADLER: Hold on a second. Tell me if I'm wrong. You said that -- or my summary's wrong -- you said categories one and two are okay, could be used. Category three, while legal, is inadvisable and shouldn't be used.

MR. FEITH: I think that's largely correct.

I think the question -- the question that you, Mr. Chairman, seem to be getting at is shouldn't alarm bells have gone off when we saw this memo that --

REP. NADLER: No, sir. The question is, that you were acceding to a memo which said that the use of categories one and two were okay -- legal and okay -- and category two includes such things as use of 28-hour interrogations, hooding --

MR. FEITH: No, no. Twenty hour.


MR. FEITH: You said --

REP. NADLER: Oh, 20 -- it look like 28 here. Twenty-hour -- I don't know if there's a great difference -- use of 20-hour interrogations, including removal of clothing; use of detainee individual phobias, such as fear of dogs to induce stress. Wouldn't that be the normal definition of anyone's concept of torture? Hasn't it always been?

MR. FEITH: I don't believe so. But especially not --

REP. NADLER: I'm sorry. Let me rephrase that. It shouldn't be torture. Are those humane treatments that we should apply?

MR. FEITH: Okay, this -- the way one could -- I imagine one could apply these things in an inhumane fashion or one could apply them in a humane fashion. The general --

REP. NADLER: How could you force someone to be naked and --

MR. FEITH: It doesn't say naked.

REP. NADLER: And undertake 20-hour interrogations --

MR. FEITH: It doesn't say naked.

REP. NADLER: Removal of clothing. Removal of clothing doesn't mean naked?

MR. FEITH: Removal of clothing is different than naked.

REP. NADLER: Really?

MR. FEITH: It talks about removing of comfort items and of clothing that would make -- the idea was to induce stress, they talked about. But one could induce -- in our police stations around America every day, American citizens are subjected to stress as part of interrogations. It could be done in a inhumane way; it could be done in a humane way.

The general guidance --

REP. NADLER: Wait, wait -- are you saying -- I find it hard to believe -- hard to imagine, I should say -- how you can have -- how someone can have a hood placed over his head, albeit not restricting his breathing, undergo a 20-hour investigation while have his clothing having been removed and using his fear of dogs or other --

REP. STEVE KING (R-IA): Mr. Chairman, point of order.

REP. NADLER: And that could not be -- how that could be considered humane?

REP. KING: Mr. Chairman, a point of order.

REP. NADLER: The gentleman will state his point of order.

REP. KING: The chairman is ignoring the five-minute rule under Rule 11. Clause 2J requires that questioning the witnesses occur under the five-minute rule. Until each member's had an opportunity to question the witnesses can you allow members to take more than five minutes. It's a violation of the rules. And it potentially derives --

REP. NADLER: (Off mike) -- five seconds over the five-minute rule.

REP. KING: -- second over the five-minute rule.

REP. CONYERS: I'm going to ask that the chairman be granted an additional minute.

REP. NADLER: Without objection, the chairman is granted an additional minute so Professor Feith can finish answering these questions.

MR. FEITH: When one looks at this memo, what one sees is -- people were saying in SOUTHCOM that the interrogations under the field manual were not working with respect to some particularly important and difficult detainees. And they said, we would like to go beyond the field manual.

Our understanding was, at the policy level, that there were legal limits. The limits, for example, set by Geneva to the extent they were applicable. The limits set by the Torture Statute. We understood there were important legal --

REP. NADLER: I understand the circumstances --

MR. FEITH: I would really --

REP. NADLER: We are proceeding under Mr. King's strict time instructions. So I have to get the question in.

So your testimony is that use of these techniques lead to humane treatment of standards and that -- let me ask you last: If Common Article 3 of the Geneva Convention is applied, would these techniques be allowed.

REP. KING: Mr. Chairman, point of order.

REP. NADLER: I will recognize the point of order when the gentleman has finished his answer to that question.

MR. FEITH: Mr. Chairman, I would really like to try to answer this in the way that gives the picture that explains how we read this memo.

REP. NADLER: If Mr. King will not object --

REP. KING: Mr. Chairman --

REP. NADLER: You'll have an additional minute to answer the question.

REP. KING: I object!

Mr. Chairman, I think the minority -- if I may speak -- the minority fully intends and wants questions to be answered fully. We're not trying to cut off answers, only follow-up questions after time is expired -- if the chair would observe that. We certainly want full answers by the witnesses.

REP. CONYERS: I move that the chairman be given an additional minute.

REP. NADLER: Without objection.

Mr. Feith.

MR. FEITH: Mr. Chairman, the way we looked at -- the way I looked at this memo was there were important legal lines that everybody understood cannot be crossed. Whatever was the law of the United States. The Geneva Convention is part of the law of the United States. The Torture Statute is part of the law of the United States. The Torture Treaty. Whatever the legal limits were, they had to be respected.

The president, furthermore, eventually -- well, before this point -- the president furthermore said, all detainees must get humane treatment.

REP. NADLER: First of all, that does not answer the question.

The question is, if Common Article 3 of the Geneva Convention were applied, would these techniques be allowed?

MR. FEITH: It depends how they are -- it depends how they're used. They could be used in a way that violated the convention.

They could be used in a way that's consistent with the convention. There was guidance given, and all of this was under the guidance.

REP. NADLER: So they are not -- so they are not, per se --

(Cross talk)

MR. FEITH: -- something had to be done --

REP. NADLER: Regular order.

(Cross talk)

MR. FEITH: -- lawful and humane. And you -- one of the things that I would urge you to do, if you -- if people actually read the October 11th memo, you will see that it shows great care. It shows concern for humane treatment. It shows concern for the kind of issues that you raised, Mr. Chairman --


REP. NADLER: Thank you.

The Chair now recognizes himself for five minutes, and I'm going to be a little more strict in this round on the five minutes because of -- because of the timing.

I want to just ask, first of all, Professor Pearlstein and Professor Sands, very quickly, I read before from the definitions of Category Two and Category Three, category two including 20-hour interrogations, hooding, removal of clothing, use of detainees' phobias such as fear of dogs to induce stress; Category Three including waterboarding, hot -- cold weather and cold water; the use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him or his family; and that the memo that we talked about before said that Category Three was legal but not advised, and Category Two was okay.

I asked Professor Feith if these techniques were proper under the -- were humane under the Geneva Conventions. He said "depending on how they were applied depending on the circumstances." Professor Pearlstein, Professor Sands, very quickly, briefly, are these techniques under any circumstances proper?

MR. SANDS: They are, under no circumstances, compatible with Common Article III of the --

REP. NADLER: Common Article III, the --

(Cross talk.)

MR. SANDS: -- Category Two or the relevant rules of custom and international, they are clearly prohibited.

REP. NADLER: And that would include the Category Two that I read in addition to Category Three.

MR. SANDS: It includes almost all of Category Two in all circumstances and all of --

REP. NADLER: Thank you. Now getting back to --

MR. SANDS: Mr. Chairman?

REP. NADLER: Now, getting back to detainee number 063, detainee 063 was -- Mr. al-Khatani was forced to perform dog tricks on a leash, was straddled by a female interrogator, told that his mother and sister were whores, forced to wear a woman's bra and thong on his head during interrogation, forced to dance with a male interrogator and subjected to an unmuzzled dog to scare him. Now these seem to be Category Two treatments. Professor Sands, you would have said that this was completely illegal?

MR. SANDS: He was also forced to stand naked. He was also hospitalized for hypothermia. They are clearly in violation of the minimum standards of international law. There is no question about that.

REP. NADLER: Okay. Now, did Secretary Rumsfeld approve the plan -- (audio break) -- to detainee 063, to your knowledge?

MR. SANDS: Well, he approved the techniques being used. There was then a plan adopted which we have not seen because it has not entered into the public domain, but it reflected the standards reflected in his memo.

REP. NADLER: But do you know who reviewed or approved the interrogation plan for Mr. al-Khatani?

MR. SANDS: Well, I know that certainly General Miller, who was down at Guantanamo at the time, approved --

REP. NADLER: At least General Miller did. You don't know of anybody else?

MR. SANDS: I don't know how --

REP. NADLER: Thank you.

Professor Feith, do you know -- did you review or approve the interrogation plan for Mr. al-Khatani?


REP. NADLER: Do you know who did?

MR. FEITH: No, I don't.

REP. NADLER: Professor Sands, do you know if the National Security Council or their deputies committee discussed it?

MR. SANDS: I don't know, but my understanding is that the treatment of detainee 063 did not go to the National Security Council.

REP. NADLER: Okay. Professor Pearlstein, would you agree or not that the -- category two, and not to mention the category three measures would be categorically illegal and not dependant, as Professor Feith said, on how they're administered in other circumstances?

MS. PEARLSTEIN: Everything under category three is categorically prohibited under -- Geneva.

REP. NADLER: And category two?

MS. PEARLSTEIN: Stress positions, yes. I'm just -- I'm sorry -- reading through these to refresh my recollection.

REP. NADLER: Placing a hood over his head --

MS. PEARLSTEIN: All of these are at a minimum cruel, inhuman, and degrading treatment --

REP. NADLER: At a minimum cruel and inhuman.

Professor Feith, you do not think that these are per se cruel and inhuman?

MR. FEITH: First, no I do not, and I want to clarify something. You -- the 18 techniques were brought forward and General Hill, in bringing them forward, specifically called into doubt the legality of the category three techniques. So they --

REP. NADLER: Category Three.

MR. FEITH: -- so it's important to point that out.

And then when Mr. Haynes presented his memo to Secretary Rumsfeld, he specifically said we do not recommend that you approve any of the category three --

(Cross talk.)

REP. NADLER: Well, he said -- excuse me. What he said specifically, to be precise, was, quote, "While all Category Three techniques may be legally available, we believe as a matter of policy a blanket approval of Category Three techniques is not warranted at this time."

(Cross talk)

REP. NADLER: -- quote.

MR. FEITH: But -- I understand that. I'm saying I was in the meeting, and what I remember was --

REP. NADLER: Wait, wait. Excuse me. That's the memo signed by Secretary -- by Bill Haynes, a memo to Secretary of Defense Rumsfeld. And it's granted that he didn't recommend using it, but he did find it legal and they did say that they should use or could use category two.

My time is now expired.

I recognize the ranking member of the subcommittee, the gentleman from Arizona, for five minutes.

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