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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

REP. ADAM SCHIFF (D-CA): Thank you, Mr. Chairman, and assistant U.S. attorney but I appreciate the promotion. (Laughter.) I thank you all for being here for so long with us. I think it's been a very important hearing. I have a couple of questions I wanted to ask Mr. Ashcroft and Mr. Dellinger. Mr. Ashcroft, I'm not going to ask you about your conversations with the White House but as Mr. Dellinger has testified the choice of who runs the OLC is extraordinarily important given the significance of the opinions that have come out of that office. Is it fair to say that you were concerned that the White House was trying to foist a OLC director that in your opinion might be too pliable to the wishes of the White House and that raised a concern for you?

MR. ASHCROFT: You know, I really would -- since you've asked me if it's fair to say and then you've used words, I've got to quibble with some of the words. Foist is not -- (inaudible) -- let me tell you what I -- I will say something about that but I don't want to answer your specific question using your words because they're not my words -- that's not what I will define fair to say.

REP. SCHIFF: Okay. Okay.

MR. ASHCROFT: If you want me to answer it I will but I -- (inaudible) -- just say no.

REP. SCHIFF: Yes, I would like you to answer it so please do.

MR. ASHCROFT: Okay. You know, I'm concerned about independence and detached advice and having the right kind of vetting and sometimes relationships could prevent that from happening. And so I developed that concern when people in the department came to me and raised them and I expressed those concerns in order to make sure that the White House eventually would get the best kind of legal advice, and not only the White House but the rest of the country that depends on OLC. And that's the long and short of it and -- and I -- I felt that with a level of intensity that made me committed to it.

REP. SCHIFF: Why do you feel the White House rejected the candidates that you offered who were well thought of, conservative --

MR. ASHCROFT: I really don't have any feelings about that. I mean, look -- the president of the United States is elected by the American people to have people that he is comfortable with in office, and to the extent that he wants to have someone that he can rely on and is comfortable with he ought to, and -- and so --

REP. SCHIFF: Here's -- here's my concern, Mr. -- Mr. Attorney General, and that is -- and -- and I want to follow up with Mr. Dellinger on this point -- there is a -- I think a dangerous circularity of logic within the administration which says we can put someone in a position like the head of OLC which Mr. Dellinger points out is a formerly obscure office. Actually for the rest of the world it's still an obscure office. For most of America it's an obscure office. The fact that enhanced interrogation techniques are approved by this obscure legal office gives no confidence to people either in the country or around the world that we are distinguishing between what's torture and what's not or that, as our current attorney general has said, that because OLC has said something is not torture then ipso facto it's not torture and we don't need to look beyond the opinion of the OLC.

That's why I -- I think the choice of that position is so important and if you had concerns about whether improper considerations were being brought to bear -- in other words, they were trying to pick someone for that post not who's best qualified to make the legal judgments but who was best positioned to approve of what they were doing -- that's something this committee ought to know. That's why I'm asking.

And furthermore, it concerns me and I -- and if I could get you both, Mr. Ashcroft, Mr. Dellinger, to respond to this -- it concerns me when you both seem to be implying that because OLC approved of this even if it was a flawed opinion that there's no liability to be had. I would think the better course for the current attorney general would be to authorize an investigation into whether the prohibition on torture was violated.

If it is determined that in fact the prohibition was violated, then there can be a determination made by the president whether to pardon the interrogators who were following this erroneous opinion. But we don't know whether there were improper considerations brought to bear in the selection of the head of the OLC at the time, or whether the opinions were flawed, or whether -- as you say, the speed was 65 or 85. You say it was authorized to be 85 in the flawed memo but they were only going 65. At the same time, you also say, Mr. Ashcroft, you don't know exactly what techniques were being employed. So I don't know how you can say with confidence whether people were going, in fact, 75 or 80 or maybe 84. I don't know. I haven't heard you say that you know either.

And what concerns me is unless we in Congress or the Department of Justice are willing to investigate this issue, we will never know, and we will create a precedent where any president can pick the right person to head OLC, who will do what they wish and through the circularity of immunity and logic will protect themselves. We see the same circulative logic in the subpoena issue, which our chairman has led, where the statue says that when the Congress holds someone in contempt, the U.S. Attorney shall bring it before a grand jury -- not "may," not "might," not "if they feel like it," but "shall." But the president and the attorney general now say that shall doesn't mean shall because they disagree with shall. And we seem to be willing to accept that. Now we've taken it to court in a different way. But this circularity concerns me and I wonder if you could both comment on it.

MR. ASHCROFT: With all respect, you're saying that there's a circularity, and I think the situation at hand demonstrates that the circle is interrupted. There was an opinion that the department itself generated a sense of concern about, and it was reevaluated and it was withdrawn, and a new opinion was issued.

REP. SCHIFF: But, Mr. Attorney, let's say it was the conclusion in the second memo that in fact not only was the first OLC opinion wrong, but in fact torture had been authorized and torture had been conducted. Where would the liability lay? I think you're saying nowhere, because we took this corrective action; we stopped doing what we were actually violating the law by doing.

MR. ASHCROFT: Well, first of all, I'm not here to answer hypotheticals like that. I am here to say that if you outlined this as a circular situation, the circle is not complete; the ends don't meet, because we did take action, we changed things. We didn't find the conclusion to be wrong but we wanted to make sure that the opinion reflected the best judgment and we changed it.

REP. SCHIFF: Mr. Bellinger, can you comment on -- because I think the hypothetical is enormously significant going forward as well as looking backward: How do we provide some accountability for putting the wrong person in the job and then simply saying that we relied on the erroneous opinions of someone who should never have had the position?

MR. BELLINGER: Well, you know, I'm not happy with the answer that the law leads me to, that you can put someone in at OLC, you can issue "get out of jail for free" cards, and that those cards would be effective. I genuinely understand the problem with that. The issue with this -- unless you were to show that the individual who was engaged in the action, whether it's an interrogation or a rendition from another country, knew that the legal opinion he or she was relying on was in fact part of a plan to engage in criminal law and to cover it with immunity, in which case I think everybody who did that with knowledge would be criminally liable. You have to have some way for the executive branch to determine what is lawful and what is unlawful. That is the executive powers vested in a president.

Whoever makes that decision can be wrong, whether it's a prosecutor, an OLC official, the attorney general. Once you have an opinion of the Office of Legal Counsel, then if whoever relies upon it is not shown to have relied upon it in bad faith or as part of a plan to have a fake opinion, I just don't see how you can have a different officer -- say the U.S. Attorney for Northern Virginia or the District of Columbia -- reach a different judgment and prosecute someone for committing a crime when that person was operating under the opinion of the --

REP. SCHIFF: Mr. Chairman?

REP. CONYERS: I'm so far beyond the time I need to ask for regular order here.

REP. SCHIFF: May the gentleman be able to finish his answer?

REP. CONYERS: Well, it's soon to go on and on and on and on, and that's why I waited so long to bring it up.

REP. SCHIFF: It's an important answer.

MR. BELLINGER: The only other point is there is a footnote in the 2004 opinion about whether the conclusions -- they would still stand by the conclusions of the earlier opinion. That is a very ambiguous footnote, Footnote 8, and there are some press accounts that Mr. Levin has said that he only meant that they would have reached -- the 2003 people would have reached the same opinion even under the 2004 standards. And I read the footnote and I do find it and it's ambiguous as to whether in 2004 they actually did say that they would agree with the results reached in 2002 and 2003.

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