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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 V


Location: Washington, DC

REPRESENTATIVE STEVE CHABOT (R-OH): I thank the chairman for yielding, and welcome, John Ashcroft. Just a couple of questions. First of all, waterboarding has come up a couple of times this morning already, and we hear about it so much in the press and others it's as if this is a fairly routine thing that's done all the time. How many times has it actually occurred, to our knowledge, at this point?

MR. ASHCROFT: Well, I don't really have knowledge other than what I read in the newspapers, but my understanding is it's been done three times.

REP. CHABOT: Three times. Then --

MR. ASHCROFT: And that's -- pardon me -- as part of an interrogation process.

REP. CHABOT: All right. And what --

MR. ASHCROFT: And there are other times people have done it as part of training our own military to be resistant to and to understand what kind of techniques might be used on them.

REP. CHABOT: But in an actual interrogation environment, the three individuals that you mentioned, what type of people were these?

MR. ASHCROFT: Well, I think they were people that would be labeled as high-value detainees, people that we think might have significant information that could relate to the safety and security of the United States. I think also it's fair to say that generally in people who have that kind of information -- members of al Qaeda -- they have been trained in resisting interrogation and they have been hardened both in their own -- as I recall from reading their training manual, which I had a copy of or a translation of it -- they're hardened in resisting interrogation and of course in accusing whether or not their detainers do anything to them or not, always alleging abuse.

REP. CHABOT: Thank you. And secondly, the term "cruel and unusual punishment" has come up a couple of times. Do you know in advance what the Supreme Court is going to say or is likely to say in what is cruel and unusual punishment? An example that's come up recently is there are a number of states that believe that a child rapist who has committed an unspeakable crime should be subject to the highest penalty, which is the death penalty. A number of states have taken that posture, but the Supreme Court just recently, on a 5-4 vote decided no, that's cruel and unusual punishment to execute somebody who has raped a child under the age of 12. For that reason, a number of us have -- because it's the only thing we have available to us -- have introduced a constitutional amendment to reverse the court on that particular issue.

But do you know in advance what the court is likely to say, and if not, what is your procedure that you undergo to make sure that you're, as closely as possible, following the law as defined by the U.S. Supreme Court.

MR. ASHCROFT: That may seem like a simple question, but it's not a simple question. When you're trying to figure out what the law is, in a rule of law culture you should be able to go and find out what the courts have said in the past, that that's what the law is. And that's why we were very successful in the major terrorism cases of the 12 judges at the Court of Appeals level, where they repaired to the standard of finding out what has been said previously on the law. Eleven out of 12 judges said, the Justice Department's got this right. But you get to the Supreme Court and the way our system is is that the Supreme Court is the court that is -- while it respects precedent, or at least it likes to allege that it does, it is free to abandon it if it so chooses.

So it makes it difficult then. Guessing where the Supreme Court might go is a lot harder than ascertaining where the Supreme Court has been. And this puts some tension into the law, and it's the way our system operates and it put some uncertainty into it. It's one of the things that gives lawyers the space in which to argue. As you well know, what it does is it provides for the employment of lots of lawyers because when things are uncertain you have to have more and more advice. Unfortunately, when it's uncertain it shrinks freedom.

REP. CHABOT: John, not to interrupt you, but I'm sorry; I'm almost out of time. I had one more question I wanted to slip in. I had the opportunity to visit Guantanamo Bay on two separate occasions, the second time actually accompanying the gentleman from New York, Mr. Nadler, and some of our colleagues, and Mr. Gohmert -- Judge Gohmert also, and a few others, and I happened to be, for six years, the chairman of the Subcommittee on the Constitution, which Mr. Nadler is now, and so we wanted to see firsthand. We witnessed and interrogation that was going on. We were in another room over closed- circuit TV. We also saw, you know, the type of medical care they were receiving, but we learned that they had gained about 15 pounds per person, were getting better medical care than they ever had, that there was an arrow pointing to Mecca and all the other types of things that were going on at that time.

Relative to the interrogation that we viewed -- and of course you weren't with us -- but is that typically what an interrogation is? It was a person essentially talking to another person in another chair. Could you comment on the interrogations that were taking place there?

MR. ASHCROFT: I suppose that's the most frequent kind of interrogation, but I think one of the problems is to assume that there a best way to interrogate. I mean, we're all different kinds of people. We all have different training. We all have a different kind of heritage. For this Congress to say this is the only way we're going to interrogate; we're going to have a warm and fuzzy approach to everybody, I think it would be to jeopardize the nation's security. I think what we need to do -- yes, I'm in favor of rules that can provide the right parameters to what we do, but I think we need to have variety because we're unrealistic if we don't anticipate a variety of people that we'll be up against.

And if I just have a second, someone raised the issue of, well, we made it through the Second World War with one set of rules and we made it through the Cold War with another set of rules; shouldn't we just lock in on all those things and pretend the world's the same? It's not. Now, I'll offer to you that in the Second World War we didn't have people dying on the streets of America. We had 3,000 that died in American streets on the first day of the war on terror that came to the United States, far more than we had even in what was then a territory, not a state. So there's the lethality and the nature of weaponry and the fact that small groups of individuals can pose threats to the entire nation, which wasn't true before, shouldn't lead us to narrow unduly our ability to defend America.

REP. CHABOT: Thank you. Yield back.

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