Hearing of the Administrative Oversight and the Courts Subcommittee of the Senate Judiciary Committee - What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration


By:  Russ Feingold Dianne Feinstein Dick Durbin Patrick Leahy Lindsey Graham Sheldon Whitehouse
Date: May 13, 2009
Location: Washington, DC

Chaired By: Senator Sheldon Whitehouse (D-RI)

Witnesses: Philip Zelikow, White Burkett Miller Professor of History, University of Virginia; Ali Soufan, CEO of the Soufan Group LLC; Professor David Luban, Professor of Law, Georgetown University Law Center; Professor Robert Turner, Associate Director, Center for National Security Law, University of Virginal School of Law; Professor Jeffrey Addicott, Center for Terrorism Law, St. Mary's University School of Law

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SEN. WHITEHOUSE: Good morning. The hearing will come to order.

I will make some brief opening remarks. The distinguished acting ranking member, ranking member?

SEN. LINDSEY GRAHAM (R-SC): Acting would be good.

SEN. WHITEHOUSE: -- acting ranking member will make some remarks. The distinguished chairman will make some remarks. Chairman Feinstein will make some remarks. And if anybody else wishes to make some remarks -- I'd like to try to get opening remarks closed before the 10:30 vote begins, and then we'll come back and go to the witnesses.

I thank everyone for being here.

Winston Churchill said, "In wartime truth is so precious that she should always be attended by a bodyguard of lies." The truth of our country's descent into torture is not precious, it is noxious. It is sordid. But it has also been attended by a bodyguard of lies.

This hearing is designed to begin a process that will expose some of those lies, that will prepare us to struggle with that sordid truth, and that will examine the battlements of legal authority erected to defend that truth and its bodyguard of lies.

The lies are legion. President Bush told us, "America does not torture," while authorizing conduct that America has prosecuted, both as crime and war crime, as torture. Vice President Cheney agreed in an interview that waterboarding was like a dunk in the water, when it was used as a torture technique by tyrannical regimes from the Spanish Inquisition to Cambodia's killing fields.

John Yoo told Esquire magazine that waterboarding was only done three times, when public reports now indicate that two detainees were waterboarded 83 and 183 times. About Khalid Sheikh Mohammad, reportedly waterboarded 183 times, a former CIA official had told ABC News, "KSM lasted the longest under waterboarding, about a minute and a half, but once he broke, it never had to be used again."

That, too, was a lie. We were told that waterboarding was determined to be legal but were not told how badly the law was ignored, bastardized and manipulated by the Department of Justice's Office of Legal Counsel. Nor were we told how furiously government and military lawyers rejected the defective OLC opinions -- that were ignored.

We were told we couldn't second-guess the brave CIA officers who did this. And now we hear that the program was led by private contractors with a profit motive and no real interrogation experience.

Former CIA Director Hayden and former Attorney General Mukasey told a particularly meretricious lie: that the Army Field Manual restrains abuse by naive young soldiers but isn't needed by the experienced experts at the CIA.

The Army Field Manual is a code of honor, as reflected by General Petraeus' May 10th, 2000 letter to the troops, which I ask unanimous consent to have admitted as a exhibit to this hearing. Without objection.

Moreover, military and FBI interrogators such as Matthew Alexander, Steve Kleinman and Ali Soufan are the true professionals.

We know now that the experienced interrogators referenced by Hayden and Mukasey had little to no experience. In fact, the CIA cobbled its program together from techniques used by the SERE program, designed to prepare captured U.S. military personnel for interrogation by tyrant regimes who torture to generate propaganda.

To the proud, experienced and successful interrogators of the military and the FBI, I believe Judge Mukasey and General Hayden owe an apology.

Finally, we were told that torturing detainees was justified by American lives saved -- saved as a result of actionable intelligence produced on the waterboard. That is far from clear. Nothing I have seen convinces me this was the case. FBI Director Mueller has said he is unaware of any evidence the waterboarding produced actionable information.

The example of Zubaydah providing critical intelligence on Khalid Sheikh Mohammad and Jose Padilla, often given, is false, as the information was obtained before waterboarding was even authorized.

And there's been no accounting of wild goose chases our national security personnel may have been sent on by false statements made by torture victims just to end the agony; no accounting of intelligence lost if other sources held back from dealing with us after our descent to what Vice President Cheney called "the dark side"; no accounting of the harm to our national standing or our international goodwill; no accounting of the benefit to our enemies' standing and goodwill, particularly as measured in militant recruitment or fundraising; and no accounting of the impact this program has on information sharing with foreign governments whose laws prohibit the type of treatment and detention policies the administration has enacted.

I could relate other lies, a near avalanche of falsehood on the subject of torture and what we've been told about interrogation techniques.

But I suffer a disability: I'm a legislator. Legislators have no authority to declassify. Our Senate procedure for declassification is so cumbersome that it has never been used. All of the de-classifiers in government are executive branch officials. And the Bush administration knew this, so they spouted their rhetoric, again, much of it outright false and much of it misleading. And though many of us in Congress knew it to be false, we could not reply. It is intensely frustrating.

We've been told you shouldn't criminalize conduct by prosecuting it. You criminalize conduct by making it a crime under the law of the land at the time the crime was committed. Prosecution doesn't criminalize anything. Prosecution vindicates the law in place at the time, based on the facts that are admissible as evidence.

We've been told you shouldn't prosecute people who followed lawful orders or relied on proper legal authorities or in good faith offered their best legal advice. But those are the questions, aren't they, and not the answers?

This is the first of what I hope will be a series of hearings looking into these questions. I hope we'll soon be provided the Department of Justice Office of Professional Responsibility report on its investigation of the Office of Legal Counsel and hold more thorough hearings in the wake of that.

Let me conclude by saying what a very sad day it is for American and for the Department of Justice that there should be such a thing as an OPR investigation into the United States Department of Justice Office of Legal Counsel and how loathsome it is what a few men did to bring this upon that office.

I'd like to thank Chairman Leahy for allowing me to hold this hearing. No one has worked harder and cares more about this issue than he does.

I also want to acknowledge the tireless work of Senator Feinstein, my chairman on the Intelligence Committee, who is leading its detailed investigation into the Bush administration's interrogation and detention program. I applaud her for her efforts to get to the bottom of this shameful period of our country's history.

Today we will here from a distinguished panel of witnesses who will help us shed light on this topic. I thank them for their appearance this morning.

I remind them all about unauthorized disclosure of classified information.

I want to make a particular note about our last witness, Ali Soufan. Mr. Soufan interviewed al Qaeda terrorists and went undercover against al Qaeda. Threats against him have been documented. We ask the press to respect the security procedures we have in place and avoid photographing his face.

Senator Graham, any statement you would like to give.

SEN. GRAHAM: Thank you, Mr. Chairman.

Well, I really don't know what to say or how to begin other than the difference between the nobility of the law and a political stunt may be soon evident one way or the other. And I don't know whether this is actually pursuing the nobility of the law or a political stunt. We'll let the American people decide.

But I don't question the chairman's motivation. He's a very fine man, and I think he's rightly disturbed by some of the decisions that were made in the past, and so have I been.

But I guess if we're going to talk about evil, we need to talk about it more than just the last administration's policy decisions about trying to protect the nation, or to put in context what we're facing and who we're fighting: people who really could care less about any law anywhere.

And would we have this hearing if we were attacked this afternoon? Do you want to have a bunch more hearings about what happened in the past -- if one of our national treasures were attacked tomorrow, would we have more hearings or would we focus on repairing the damage and staying ahead of the enemy?

If we're going to find out who did what, when, we need to find out who was told about it and when they were told about it. And if we're going to really find out what happened, it seems to me we'd want to know what worked and what didn't.

So I'm calling today for any memos that show information to be -- that was gathered from any enhanced interrogation technique -- that that be made available to the committee so that we can look and see what worked. That's only fair.

And you've got to remember we're talking about this now many years after 9/11. And the people that were judging woke up one morning like the rest of America and said, "Oh my god, what's coming next?" It's not really fair to sit here in the quiet peace of the moment and put ourselves in such a holier-than-thou position, because you don't have to make that decision. They did.

And I've been a criminal lawyer, defense and prosecutor for most of my adult life. I think I know the difference between a policy debate where I may disagree with the conclusion and a crime.

The idea that you would read your political opponents into your crime makes no sense. The idea that you would seek advice from all corners of the government in formulating policy and to call that a crime is dangerous.

What happened on September the 11th, 2001 was unprecedented. It was the most vicious attack on our homeland by a foreign entity in the history of the nation.

Mr. Chairman, here's what I think happened. The nation was rattled. The administration went on the offensive, and they looked at some statutes on the book as a way I wouldn't have looked at. They were very aggressive. They were going to make sure this didn't happen again. And they tried to come up with interrogation techniques evaluating the law in a way that I disagree with their evaluation. But there's not one iota of doubt in my mind that they were trying to protect the nation.

But they made mistakes. They saw the law many times as a nicety that we couldn't afford so they took a very aggressive interpretation of what the law would allow. And that came back to bite us -- it always does -- but that's not a crime.

What we have to understand as a nation is that the fact that we embraced the rule of law is strength, not a weakness. The fact that we will give our enemy a trial and they won't makes us better. The fact that our judgments are rendered based on evidence reviewed by independent judiciary is a strength. Their kangaroo courts are not the model for the world. So I have tried over these many years to speak up in a way that I think is best for the nation.

As to the Army Field Manual, I think I have a pretty good understanding of it. I know why it exists. To say that is the only way you can interrogate someone within the law is not right. There should be interrogation techniques not on the Internet for our national security.

And let's bring the CIA director into this hearing. He has already testified if we caught a high-value target tomorrow he would go to the president and ask for interrogation techniques not in the Army Field Manual to defend this nation, but they would be lawful.

Is he a criminal because he would do that? No.

I think this administration's policy, at least through the CIA director's sworn testimony, is that they would reserve unto themselves the ability to brief the commander in chief about a high-value target and they would suggest techniques to the commander in chief that were lawful that are not included in the Army Field Manual.

So this idea that someone said the Army Field Manual is the only way you can lawfully interrogate somebody, I completely disagree with. And to those who suggest it may not be the best tool available to the country, I totally agree with.

Now, I don't know what Nancy Pelosi knew and when she knew it, and I really don't think she's a criminal if she was told about waterboarding and did nothing. But I think it is important to understand that members of Congress allegedly were briefed by -- about these interrogation techniques.

And again, it goes back to the idea of what was the administration trying to do? If you're trying to commit a crime, seems to me that'd be the last thing you'd want to do. If you had in your mind and your heart that you're going to disregard the law, and you're going to come up with interrogation techniques that you know to be illegal, you would not go around telling people on the other side of the aisle about it. You would not be getting legal advice.

And the point of the matter is that they chose to ignore some pretty good legal advice. But is that a crime?

So as we go forward, there's a purpose to everything. There's a reason people do what they do. And it will soon become evident, I think, over time, the reason for these hearings. There's a lot going on in this world today, at home and abroad. And I wonder where this fits into the average American's hierarchy of needs right now.

I've been on the Armed Services Committee, where we did a very thorough investigation of these interrogation techniques and how they came about. The Levin report is a good one. It's there to be read.

I'll take a back seat to no one about my love for the law and my desire -- the desire for my nation to be a noble nation. The moral high ground in this war is the high ground. It's not a location.

The enemy we're fighting, Mr. Chairman, doesn't have a capital to conquer or a navy to sink or an air force to shoot down. It is an ideological struggle. And the decisions made in the past have had two sides. We did get some good information that made us safer, but we also hurt ourselves. We damaged our reputation. And we did some things that I think are not going to make us safer in the long run if we kept doing them.

So I'm ready to go forward. Waterboarding has never been an appropriate technique for me. And if there are any military member listening out there today, you will be prosecuted if you waterboard a detainee in your charge. Under the Uniform Code of Military Justice, it would be a violation.

As to other agencies, please understand that in 2001, (200)2 and (200)3, the Geneva Convention did not apply to the war on terror -- only until 2006. The war crimes statute that existed in 2001 was a joke. It codified the Common Article 3 standard which nobody could adhere to, because it was so vague in terms of the notice it would give to someone to comply.

We have today, I think, the best war crimes statute on the books of any nation in the world, that would outlaw a grave breach of the Geneva Convention. We passed that in a bipartisan fashion. We have policies now -- the Detainee Treatment Act, the McCain Amendment and other policies -- that give our people who are fighting this war the guidance they need to make sure they understand what's inbounds and what's not. And we have a new president.

And I will conclude with this: President Obama, in my opinion, has made some very sound decisions regarding Afghanistan and Iraq. I had a meeting yesterday with the administration about what to do with Gitmo detainees -- how we can deal with these detainees in a way that adheres to our values and protects our nation. I want to be on record as saying that I think the administration has taken a very responsible view of Afghanistan, Iraq and Guantanamo Bay.

And it's my belief that they may ask for another continuance regarding military commission trials so that the Congress and the administration can sit down and work out what to do with these detainees as we move forward. If that request is made, I applaud it. I do appreciate what the president is trying to do to repair our image and to create rules for the road as we go forward.

But as we look back -- I will conclude with this -- as we harshly judge those who had to make decisions we don't have to make, please remember this: that what we do in looking back may determine how we move forward. And let's not unnecessarily impede the ability of this country to defend itself against an enemy who is, as I speak, thinking and plotting their way back into America.

SEN. WHITEHOUSE: Thank you, Senator Graham.

Chairman Leahy and then Chairman Feinstein.


Thank you, Chairman Whitehouse.

This is one of the most important hearings the Senate Judiciary Committee will hold this year.

I've listened to my friend from South Carolina. I've listened to each of his several conclusions that he made during his opening statement. I also heard him speak of the nobility of the law. I would just urge senators not to raise straw men and try to predetermine this hearing. Let's listen to the witnesses who are going to be testifying, rather than raising hypotheses and facts really not in the record.

I applaud Chairman Whitehouse for doing this. His own background as an attorney general, as a U.S. attorney makes him eminently suited.

I think it's one of the most important hearings we'll have in the Judiciary Committee because it raises the question of how we got to a place where the Department of Justice's Office of Legal Counsel -- an office that basically sets the standards for the whole federal government -- came to write predetermined and premeditated legal opinions that allowed President Bush to authorize the torture of those in American custody and control, opinions that had to ignore our own laws, our own international agreements and our own precedents as a nation.

From General George Washington's example during the Revolutionary War to the Civil War, the world wars, Korea and Vietnam, it was America that provided the model of a nation that would not engage in such practices. It was America that led the world in the recognition of human dignity and human rights. And I think that the elite legal office at the Justice Department responsible for guiding the executive branch, and with the power to issue binding interpretations of law, so misused its authority is one of the fundamental breakdowns of the rule of law that dominated during the past eight years.

The recent release of four more Office of Legal Counsel memos written by two former heads of the OLC -- Jay Bybee and Steven Bradbury -- demonstrate in excruciating detail the methods authorized and used on people in American custody. We'll hear all about those -- shackling naked people from the ceiling, keeping them inside a small box with insects, beating them repeatedly, waterboarding.

These are actions that we rightly protested when they've been used against Americans by other countries. And the purported legal justifications for the policies are disturbing. Some of the opinions use an end-justify-the-means type of circular reasoning, saying that even though we would object if anybody ever did this to and American, it's okay for Americans to do that because we're Americans. It is not reasoning that stands up.

Some seek to defend the use of these techniques by relying on hyper-technical interpretations that disregard the prohibitions in our laws. All seem to be poised on the idea that the president is somehow above the law or can override the law. Well, the rule of law in the United States means no one is above the law -- none of us as senators, nobody in this room, and not the president of the United States.

So Senator Whitehouse deserves applause for having this hearing and for his own commitment to the rule of law and getting to the truth.

I would like to go forward in a nonpartisan commission, as I've said before, but that's going to require support from both sides of the aisle -- one that could get to all the truth of what happened.

Two weeks ago I invited Judge Jay Bybee to testify before the Senate Judiciary Committee. I did so after reading accounts in The Washington Post suggesting he had expressed regrets regarding his work at the OLC. And then in comments he sent a couple days later to The New York Times he turned around and defended the same legal opinions -- incidentally, legal opinions that have now been withdrawn.

I invited him to come forward and tell the truth and the complete truth before the committee. Which Jay Bybee do we rely upon, the one that is in the press one day or the one who's in the press the next day?

I ask, Mr. Chairman, if I could include in the record a copy of that letter to him.

SEN. WHITEHOUSE: Without objection.

SEN. LEAHY: Now, since he's declined through his lawyers to testify before the committee, I assume he has no exonerating information to provide. I wish he would testify before us to help complete the record. And how and why he refused -- it is appropriate in this case because he's done anything but maintain silence about it. He has made a number of statements that certainly give his side; I'd like to hear it all. He's talked to friends and employees. He's communicated to the press. He's communicated through his lawyers to the Justice Department regarding the Office of Professional Responsibility's review of his actions while he was a government employee in the Office of Legal Counsel. Apparently the only people he will not explain his actions to are the people who granted him a lifetime appointment to the federal bench, the American people through their elected representatives in the Senate.

So how we approach the mistakes of the past, whether we choose to learn from them is going to shape our way forward. Accountability can help restore our reputation around the world. But we have to restore the trust of the American public in our government.

I'm a proud American; I think all Vermonters are. I'm proud of the history of this country. I'm proud of the times when our country's upheld the rule of law. I'm also proud of the fact that the United States of America, when it's made mistakes, has not been afraid to admit those mistakes and learn from them and pledge not to make the same mistakes again. That's why we have this hearing. And that's why the American people deserve to know what mistakes were made and what we intend to do about it.

So Senator Whitehouse, I applaud you for holding this hearing. I think it's one of the most important hearings the Senate Judiciary Committee will hold this year.

SEN. WHITEHOUSE: Thank you, Chairman.

The distinguished chairman of the Senate Intelligence Committee and a member of the Judiciary Committee, Senator Feinstein.

SEN. DIANE FEINSTEIN (D-CA): Thank you very much, Mr. Chairman.

I would echo the chairman's words. Thank you for your leadership, for holding this hearing.

Now, last month the Obama administration released four memoranda from the Office of Legal Counsel, and questions have circulated ever since.

Now, it is well within the Judiciary Committee's jurisdiction to review these opinions and make findings as to whether the committee does feel they fall within existing law as well as international treaties and conventions to which the United States is a signatory and, therefore, bound.

I listened very carefully to what Senator Graham said. I do not agree. I agree that the prior administration made the judgment that they did not apply. But that judgment was repudiated in Supreme Court decisions. And as I read them, the finding was that those conventions do in fact apply. But as was the case with the program for warrantless surveillance, access to these legal opinions were severely restricted for years.

It has been publicly reported that the Office of Professional Responsibility may soon recommend to the attorney general that the authors of these legal opinions face certain sanctions. However, the specifics of the OPR report have not been released.

While the Department of Justice can and should review the performance of its employees, the Judiciary Committee does have the responsibility of independent oversight of the Department of Justice and how it interprets the Constitution and the law, just as the Intelligence Committee, which I chair, has the oversight jurisdiction of the 16 intelligence agencies.

As members know, the Intelligence Committee is exercising its oversight responsibilities. We are conducting a major review of the CIA detention and interrogation program.

This will include a detailed review of the conditions of detention experienced by high-value detainees at black sites -- more than two dozen; how interrogation techniques were applied, by whom, in what combination, over what period of time; what information was produced as a result of these interrogations and whether such information could have been obtained through other means, and evaluation of whether in fact the CIA detention and interrogation program complied with or exceeded the OLC opinions and other policy guidance and whether the Intelligence Committee was accurately briefed about the detention and interrogation program and given a full explanation of what was happening at certain sites around the world.

I believe this particular point is very important considering our review responsibilities.

All of the facts will then be placed before the committee. And the committee will then work its will.

Now, this, to do right, is a major undertaking. It involves months of review. It involves going through millions of unredacted papers, documents, cables and e-mails, and a substantial number of personal interviews. The work will necessarily be classified in order to get the full scope of what has happened. And the work will be done fairly and professionally and in a strong, bipartisan manner. And I want to stress that.

Yesterday I had a brief meeting with Mr. Soufan, who is going to shortly be before this committee. He will be asked at the right time, when we have the facts, to come before the Intelligence Committee.

Now, we have six crossover members that sit on this committee and on Intelligence, including Senators Whitehouse, Feingold, Wyden, Hatch, Coburn and myself. So I am convinced that between the Intelligence Committee's review and study and the Judiciary Committee's oversight of DOJ and these opinions that we will be able to provide a substantial body of knowledge and work, within which judgments and assessments can be made. I very much hope that this will be the case. I think to make this an explosive issue without carefully laying out all of the facts, conditions, cables, directives and the whole situation will be a big, big mistake.

So I want to thank you, Mr. Chairman, and I certainly welcome your hearing and the Intelligence Committee will welcome whatever evidence it might provide for our deliberations as well, so thank you.

SEN. WHITEHOUSE: Thank you, Madame Chair.

And as somebody who's seen firsthand your work on the Intelligence Committee, I'm very proud of it and look forward to supporting you in that effort.

SEN. FEINSTEIN: Thank you very much. I appreciate that.

SEN. WHITEHOUSE: Senator Feingold, do you wish to make a brief opening statement?

SEN. RUSSEL D. FEINGOLD (D-WI): Very brief, Mr. Chairman.

And we want to get on to the hearing, but this hearing is such an important step in shedding light on one of the worst abuses of the past administration. Let me be clear: This socalled enhanced interrogation program was illegal, it was contrary to our national values, and it undermined our national security.

Like Chairman Whitehouse and Chairman Feinstein, I am a member of the Intelligence Committee, and I can tell you that nothing I have seen, including the two documents to which former Vice President Cheney has repeatedly referred, indicates that the torture techniques authorized by the last administration were necessary or that they were the best way to get information out of detainees. So clearly, the former vice president is misleading the American people when he says otherwise.

Mr. Chairman, I support further declassifications, including the rest of the Justice Department memos and letters on this program, the inspector general report and the work of the Intelligence Committee, provided their release would not jeopardize national security, and I've also sought the declassification of my own correspondence which I sent to then-CIA Director Hayden detailing my clear opposition to the program.

While the revelations of the past month are uncomfortable for some, they are absolutely essential if our country is to return to the rule of law. I am pleased that the members of the Judiciary Committee and the Intelligence Committee are moving forward to determine exactly what happened. And I continue to believe that an independent commission of inquiry, as Chairman Leahy has proposed, is needed so that we can fully understand and come to terms with this dark chapter in our recent history.

Thank you, Mr. Chairman.

SEN. WHITEHOUSE: Thank you, Senator Feingold.

And just to chime in on that point, I think it's clear that I also agree that the time will come when it frankly becomes inevitable that a nonpartisan authoritative commission should take a look at the work of Senator Feinstein's investigations, the OPR opinions, what the Judiciary Committee does under the leadership of Chairman Leahy and other factors and draw it all together so that the American people can make the appropriate conclusions.

Now, our first witness is David Luban. Professor Luban is a leading expert on legal ethics. He has written numerous articles and books on the subject, including "Legal Ethics," a leading textbook on the subject, and "Legal Ethics and Human Dignity," which collects selected essays he's written on legal ethics during the last 20 years. He is the university professor of law at Georgetown University Law Center, where he has taught since he joined the faculty of Georgetown University Law Center in 1997. He has previously taught at the University of Maryland, Yale, and Kent State Universities. He holds a Ph.D. from Yale University and a B.A. from the University of Chicago. Professor Luban's recent research interests have included the legal ethics implication of U.S. torture policy and the powers granted to the president by the Constitution. As a result, he's particularly well suited to evaluate the OLC memos and explain the ethical issues that they raise.

Professor Luban?

MR. LUBAN: Thank you, Mr. Chairman.

Chairman Whitehouse, Ranking Member Senator Graham, Chairman Leahy and distinguished members of the committee --

SEN. WHITEHOUSE: Professor Luban, let me say one thing quickly because you're our first witness.

I'd like to try to keep all of the witness statements here -- some of them are quite lengthy on paper -- to five minutes.

And so at some point witnesses are going to start hearing this noise -- (sounds gavel) -- which is your warning that the five minutes has run out and if you could please wrap it up. And if you extend too far beyond it, I'll simply cut you off so that everybody has a fair chance and so that the senators have a chance to engage in dialogue, which is the most helpful part of a hearing.

MR. LUBAN: I may go a minute or so over.

Thank you for inviting me to testify today. You've asked me to talk about the legal ethics of the torture and interrogation memos written by lawyers in the Office of Legal Counsel. Based on the publicly available sources I've studied, I believe that the memos are an ethical train wreck.

When a lawyer advises a client about what the law requires, there is one basic ethical obligation: to tell it straight, without slanting or skewing. That can be a hard thing to do if the legal answer isn't the one the client wants. Very few lawyers ever enjoy saying no to a client who is hoping for yes, but the profession's ethical standard is clear: a legal adviser must use independent judgment and give candid, unvarnished advice.

In the words of the American Bar Association, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. That is the governing standard for all lawyers in public practice or private, but it's doubly important for lawyers in the Office of Legal Counsel. The mission of the OLC is to give the president advice, to guide him in fulfilling an awesome constitutional obligation, to take care that the laws are faithfully executed. Faithful execution means interpreting the law without stretching it and without looking for loopholes.

OLC's job is not to rubber-stamp administration policies and it is not to provide legal cover for illegal actions. No lawyer's advice should do that. The rules of professional ethics forbid lawyers from counseling or assisting clients in illegal conduct. They require competence and they demand that lawyers explain enough that the client can make an informed decision, which surely means explaining the law as it is. These are standards that the entire legal profession recognizes.

Unfortunately, the torture memos fall far short of professional standards of candid advice and independent judgment. They involve a selective and, in places, deeply eccentric reading of the law. The memos cherry pick sources of law that back their conclusions and leave out sources of law that do not. They read as if they were reverse- engineered to reach a predetermined outcome, approval of waterboarding and the other CIA techniques.

Now, my written statement goes through the memos in detail, Mr. Chairman. Let me give just one example here of what I'm talking about.

Twenty-six years ago President Reagan's Justice Department prosecuted law enforcement officers for waterboarding prisoners to make them confess. The case is called United States versus Lee. Four men were convicted and drew hefty sentences that the Court of Appeals upheld. The Court of Appeals repeatedly referred to the technique of waterboarding as torture.

This is perhaps the single most relevant case in American law on the legality of waterboarding. Any lawyer can find the Lee case in a few seconds on a computer just by typing the words "water torture" into a database, but the authors of the torture memos never mentioned it. They had no trouble finding a case where lawyers didn't call harsh interrogation techniques torture. It's hard to avoid the conclusion that Mr. Yoo, Judge Bybee and Mr. Bradbury chose not to mention the Lee case because it casts doubt on their conclusion that waterboarding is legal.

Without getting further into technicalities that quite frankly only a lawyer could love -- maybe not even a lawyer, only a professor could love -- I'd like to mention briefly other ways that the torture memos twisted and distorted the law.

The first Bybee memo advances a startlingly broad theory of executive power according to which the president as commander in chief can override criminal laws. This was a theory that Jack Goldsmith, who headed the OLC after Judge Bybee's departure, described as an extreme conclusion that, quote, "has no foundation in prior OLC opinions or in judicial decisions or in any other source of law," close quote.

It comes very close to President Nixon's notorious statement that when the president does it that means it is not illegal, except that Mr. Nixon was speaking off the cuff in a high-pressure interview, not a written opinion by the Office of Legal Counsel.

The first Bybee memo also wrenches language from a Medicare statute to explain the legal definition of torture. The Medicare statute lists severe pain as a symptom that might indicate a medical emergency. Mr. Yoo flips the statute and announces that only pain equivalent in intensity to organ failure, impairment of bodily function or even death can be severe. This definition was so bizarre that the OLC itself disowned it a few months after it became public.

It is unusual for one OLC opinion to disown an earlier one and it shows just how far out of the mainstream Professor Yoo and Judge Bybee had wandered. The memos authors were obviously looking for a standard of torture so high that none of the intense enhanced interrogation techniques would count, but legal ethics does not permit lawyers to make frivolous arguments merely because it gets them the results they wanted.

I should note that on January 15th of this year Mr. Bradbury found it necessary to withdraw six additional OLC opinions by Professor Yoo or Judge Bybee.

Mr. Chairman, recent news reports have said that the Justice Department's internal ethics watchdog, the Office of Professional Responsibility, has completed a five-year investigation of the torture memos. OPR has the power to refer lawyers to their state bar disciplinary authorities and news reports say they will do so. I have no personal knowledge about what OPR has found. Presumably investigators were looking either for evidence of incompetence, evidence that the lawyers knew their memos don't accurately reflect the law, or evidence that the process was short circuited.

This morning I have called the torture memos a legal train wreck. I believe it's impossible that lawyers of such great talent and intelligence could have written these memos in the good-faith belief that they accurately state the law, but what I or anyone else believes is irrelevant. Ethics violations must be proved by clear and convincing evidence and not just asserted. That sets a high bar and it should be a high bar.

In closing, I would like to emphasize to this committee that when OLC lawyers write opinions, especially secret opinions, the stakes are high. Their advice governs the executive branch and officials must be told frankly when they are on legal thin ice or crossing over into unlawful conduct. They and the American people deserve the highest level of professionalism and independent -- let me emphasize independent -- judgment and I am sorry to say that they did not get it here.

Thank you, Mr. Chairman.

SEN. WHITEHOUSE: Thank you, Professor Luban.

One of the perils of Senate hearings is votes that happen and a vote has just happened and what I will do is recess the hearing for five minutes to give us a chance to vote. People usually take longer than that, but I will be back immediately to call the hearing back into session, and if other people need to take a bit more time, it'll be under way and we're glad to have you come back.

But for now the hearing is temporarily adjourned so that we can vote. (Sounds gavel.)


SEN. WHITEHOUSE: (Off mike) -- who is the White Burkett Miller professor of history at the University of Virginia, one of my alma maters. It's very good to have him here.

He was counselor at the Department of State, a deputy to Secretary Condoleezza Rice from 2005 to 2007. From 1998 to 2005, Mr. Zelikow directed the University of Virginia's Miller Center of Public Affairs, as well as three bipartisan commissions, including the National Commission on Terrorist Attacks upon the United States, referred to colloquially as the 9/11 commission, from 2003 to 2004.

Previously Mr. Zelikow served as a career Foreign Service officer at the State Department and on the White House National Security Council staff. He is currently a member of the board for the global development program of the Bill and Melinda Gates Foundation.

Mr. Zelikow received his baccalaureate degree from the University of Redlands, a law degree from the University of Houston and his master's and Ph.D. from the Fletcher School at Tufts University.

Mr. Zelikow, welcome. We await your testimony.

MR. ZELIKOW: Mr. Chairman, Senator Graham, thank you for giving me the opportunity to appear before you today.

The committee has my CV. I won't detail my experience. I'll just say that I was working on counterterrorism for a number of years before 9/11. I have experience looking at this as both a scholar and as a policymaker.

I was a member of the President's Foreign Intelligence Advisory Board from 2001 to 2003, so I do remember what it was like after 9/11 and what some of the issues were at the time. And I've had some responsibility in having to make tough decisions on these issues from the policy side.

I've submitted to the committee a lengthy written statement that goes into a lot of detail which I'm not going to recapitulate in detail. Basically the statement touches on some reasons why I think we chose to get into a program of this kind. Just trying to step back and analyze it, because I think in many ways, this was a large collective failure in which a lot of Americans from both parties thought they needed a program like this in order to protect the country.

I think we can now judge that to have been a mistake, as Senator Graham said in his opening statement. Therefore, it's important, since this is a collective failure and it was a mistake, to learn from that mistake, comprehend why we made it. So I have a few things in the statement that go into that.

Further, I then talk about my work on these issues as our suspicions grew about them in the 9/11 commission. The 9/11 commission included a recommendation that was designed to anticipate some of these concerns -- a recommendation that the administration ignored, which was itself an ominous sign -- and then my getting involved more directly with these issues when I joined the State Department at the beginning of 2005.

During most of 2005, the main focus in our work to get this to change -- and by our work I mean the work of Secretary Rice, legal adviser John Bellinger and I, in a series of principals' and deputies' meetings that had been put in motion by President Bush because he clearly wanted his advisers to re-evaluate all these issues -- during 2005 we mainly focused hard on getting the administration to agree to the standard the 9/11 commission had proposed, which is please accept the CID standard.

The CID standard is an acronym that stands for cruel, inhuman and degrading. In other words, please accept that we're going to have all our intelligence programs covered by this basic provision of the Law of Armed Conflict, which is codified in various ways, including in our domestic law, I believe, through the federal war crimes statute.

By the end of 2005, those efforts had been successful. The various battles that went on are detailed in my statement, including a couple of documents that reflect the positions that I adopted along with the deputy secretary of Defense and others that give you some illustration of the way we were making these arguments in June and July of '05.

By December of '05 that battle had been won, both because of internal work but also because of the McCain Amendment. It was clear that CIA and the government were going to have to accept a CID compliance analysis.

Thus, by early 2006, there was not way for the administration to avoid the need to re-evaluate the CIA program against a CID standard. The work of the NSC deputies that I was involved in intensified. The OLC had guarded against the contingency of a substantive CID review in its May 30th, 2005 opinion.

OLC had held that even if the standard did apply, the full CIA program, including waterboarding, complied with it. That is, the full CIA program, including waterboarding, did not violate proscriptions against cruel, inhuman and degrading treatment.

The OLC view also meant, in effect, that the McCain Amendment was a nullity. It would not prohibit the very program and procedures Senator McCain and his supporters thought they had targeted.

So with the battle to apply the standard having been won, my colleagues and I at the State Department then had to fight another battle over how to define the standards' meaning. That meant coming to grips with OLC's substantive analysis. OLC contended that these subjective terms like cruel or humane should be interpreted in light of the well-developed and analogous restrictions found in American constitutional law.

Therefore, to challenge OLC's interpretation, it was necessary to challenge the Justice Department's interpretation of U.S. constitutional law. This was not easy, since OLC is the authoritative interpreter of such law for the executive branch of the government.

Many years earlier I had worked in this area of law. It seemed to me that the OLC interpretation of U.S. con law in this area was strained and indefensible, in a whole variety of ways. My view was that I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution.

While CIA's -- while OLC's interpretations of other areas of law were well known to be controversial, I did not believe my colleagues had ever heard arguments challenging the way OLC had analyzed these constitutional protections.

Further, the OLC position had implications way beyond the interpretation of international treaties. If the CIA program passed muster under an American constitutional compliance analysis, then, at least in principle, a program of this kind would pass American constitutional muster even if employed anywhere in the United States on American citizens.

We'll reflect on that for a moment.

So I distributed my memo analyzing these legal issues to other deputies at one of our meetings in February 2006. I then took off to the Middle East on other work. When I came back I heard the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed.

That particular request, passed along informally, did not seem proper and I ignored it. This particular memo has evidently been located in State's files and is being reviewed for declassification.

The broader arguments over the future of the CIA program went on for months, even though the old program had effectively been discontinued. Internal debate continued into July of '06 after the Hamdan decision, culminating in several decisions by President Bush.

Accepting positions that Secretary Rice had urged again and again, the president set the goal of closing the Guantanamo facility, deciding to bring all the high-value detainees out of the black sites and move them toward trial, seek legislation from the Congress that would address these developments, and defend the need for some continuing CIA program but one that would comply with relevant law. And President Bush announced those decisions on September 6, 2006.

I left the government at the end of 2006 and returned to the University of Virginia. Secretary Rice and Mr. Bellinger remained deeply involved in these issues for the following two years, working for constructive change.

But in sum, the U.S. government over the past seven years adopted an unprecedented program in American history of coolly calculated dehumanizing abuse and physical torment to extract information. This was a mistake, perhaps a disastrous one.

It was a collective failure in which a number of officials and members of Congress and staffers of both parties played a part -- endorsing a CIA program of physical coercion even after the McCain Amendment was passed and even after the Hamdan decision.

Precisely because this was a collective failure, it is all the more important to comprehend it and learn from it. For several years our government has been fighting terrorism without using these extreme methods. I can comment on that both worldwide and in Iraq.

We've been doing this under international standards for years. Now we face some serious obstacles in defeating al Qaeda and its allies. And we could be hit again -- hit hard -- but our decision to respect international standards does not appear to be a hindrance in this fight. In fact, if the U.S. regains higher ground in the wider struggle of ideas, our prospects in a long conflict will be better.

Others may disagree. They may believe that recent history, even since 2005, shows that America needs an elaborate program of indefinite secret detention and physical coercion in order to protect the nation. The government and the country needs to decide whether they are right. If they are right, our laws must change and our country must change. I think they are wrong.

SEN. WHITEHOUSE: Thank you, Mr. Zelikow.

Our next witness is Professor Jeffrey Addicott, an associate professor of law and the director of the Center for Terrorism Law at St. Mary's University School of Law in San Antonio, Texas. In 2000 he retired from the U.S. Army Judge Advocate General Corps after 20 years of service specializing in human rights law and national security law.

Professor Addicott holds a Doctor of Juridical Science and a Master of Laws from the University of Virginia School of Law -- we seem to be populating the place today -- and a Juris Doctor from the University of Alabama School of Law. The new ranking member of the Judiciary Committee would be very pleased.

Professor Addicott?

MR. ADDICOTT: Thank you, sir. Just for the record, I'm a full professor now, but even though I'm from Alabama, I'm going to try to talk fast because I've got five minutes.

The purpose of this testimony is to provide information from a legal perspective on the issue of enhanced interrogation practices used by -- used on certain al Qaeda operatives by CIA interrogators during the Bush administration as approved by the subject legal memorandums.

In the context of the approved interrogation methodologies, the primary concern is associated with the CIA's use of waterboarding. My full testimony, of course, is in the record.

Since the al Qaeda detainees are not entitled to prisoner of war status --

SEN. WHITEHOUSE: Professor, if you intend to read rapidly, even that won't work with 16 pages of testimony. I think --

MR. ADDICOTT: Well, I've got a --

SEN. WHITEHOUSE: -- you'll have to make some measure to summarize.

MR. ADDICOTT: Well, let me just do it off the cuff, then.

You know, the torture convention is the primary international document that we're looking at here in the context of how we're measuring what these CIA memos referred to.

And when the United States signed the torture convention, we had certain reservations in there and we said that we understood that in order to constitute torture, an act must specifically intend to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm.

The memorandums looked at the issue of torture, of course, and the word "torture" rolls off the tongue with great ease, but you have to recognize that not every alleged incident of interrogation or mistreatment necessarily satisfies the legal definition of torture. It is imperative that one view such allegations with a clear understanding of the applicable legal standards set out in law and judicial precedent.

In this matter, allegations or claims of illegal interrogation practices, e.g., waterboarding, can be properly measured as falling above or below a particular legal threshold. In my legal opinion, the so-called enhanced interrogation practices detailed in the subject legal memorandums did not constitute torture under international law.

Why do I say that? There are very few international cases that really stand on point when you look at this issue. Perhaps the leading case, though, in the Anglo-Saxon tradition is the European Court of Human Rights ruling of Ireland versus United Kingdom.

By an overwhelming majority vote of 16 to 1, the Ireland court found certain interrogation practices called the "five techniques," utilized by British authorities to investigate suspected terrorism in Northern Ireland, to be "inhuman and degrading," that is, ill- treatment but not torture, by a vote of 13 to 4.

These five techniques-- let me just describe for the committee what some of them were. One of them was wall-standing. They forced the detainees to stand for periods of hours in a stress position described as "spread-eagled against the wall with their fingers put high above their head against the wall, the legs spread apart, the feet back, causing them to stand on their toes with the weight of their body mainly on the fingers." Wall-standing was practiced for up to 30 hours with occasional periods for rest.

The British authorities also engaged in hooding, where they placed a dark hood over the head of the detainee, again for prolonged periods of time -- days. They subjected the detainees to noise in a room where there was continuous loud and hissing noise for prolonged periods of time.

They deprived them of sleep for prolonged periods of time. They deprived them of food and drink, reducing the food and drink to the suspects pending interrogations.

Now, to the reasonable mind, considering the level of interrogation standards set out in the Ireland case, the conclusion is clear. Even the worst of the CIA techniques authorized by the DOJ legal memorandums -- waterboarding -- would not constitute torture.

The CIA method of waterboarding appears similar to what we have done hundreds and hundreds of times to our own military Special Operations soldiers in military training courses on escape and survival.

I was also in the military for 20 years. I was the senior legal adviser for all the Green Berets in the world. So I'm very familiar with the concept of waterboarding. If you look at the Ireland case and use a fortiori logic -- if you look at what they did in the Ireland case and that court said that is not torture -- they said it's ill-treatment -- then even the worst of what we done -- that level is going to be way below that. So therefore my legal conclusion, based on the Ireland case, is that we have not engaged in torture.

Another international case is a public committee case that comes out of the court of Israel, which also looked at harsh interrogation tactics.

In conclusion, those who order, approve or engage in torture must be criminally prosecuted. If we conclude, in fact, that we did engage in torture -- in other words, that we're going to ignore the Ireland precedent and say, yes, our people engaged in torture -- there is no way out of this. We have to prosecute under the torture convention those that approved it, those that authorized it, and those that carried it out.

We can't say on the one hand yes, we engaged in torture and not do anything. We're violating international law if we do that. On the other hand, if we conclude that the techniques did not rise to the level of torture, which I argue, then we're under no international obligation to prosecute those individuals under the torture convention.

Thank you.

SEN. WHITEHOUSE: Thank you very much, Professor Addicott.

Our next witness -- our penultimate witness is Professor Turner, who is the associate director of the University of Virginia's Center for National Security Law. I promise we did not set this up as a University of Virginia day.

He's a former chair of the American Bar Association Standing Committee on Law and National Security, a veteran of the Reagan administration, and a former national security adviser to Senator Robert P. Griffin, a member of the Senate Foreign Relations Committee.

Professor Turner received his B.A. from Indiana University and a J.D. and SJD from the University of Virginia. He's the author or editor of more than a dozen books and monographs on national security issues and we welcome him to the committee.

Professor Turner?

MR. TURNER: Good morning, Mr. Chairman, members of the committee. I'm honored to be here.

Like most JAG officers I've dealt with, Senator Graham got these issues exactly right from the beginning. I would like to associate myself with his statement. I'm tempted just to stop there because mine's probably not going to be as good as his, but I will continue.

Shortly after the story of abusive treatment of detainees first broke, I was going on a short vacation with my 14-year-old son driving down Interstate 64 when my cell phone rang. It was Voice of America wanting a comment on the story of the abusive techniques. And my comment was it appears that some good people have made some very bad decisions.

I've been a very strong critic of the waterboarding and other abusive techniques. I co-authored an article in The Washington Post entitled "War Crimes in the White House" in July of '07. I served with pride on the drafting committee for the executive order barring torture and inhuman treatment.

Indeed, one of my suggestions was torture is not the international standard. Under international law, we are bound by Common Article 3 of all four 1949 Geneva Conventions. That standard is that all detainees are entitled to humane treatment. So spending a lot of time deciding whether something is torture or not misses the point that we have a much higher duty in our treatment of detainees.

Some of the things that have been done since then have made me furious to the point of wanting to kick a wall or something, but I continue to believe that the people who made these tragic decisions were decent, honorable and able. They were also frightened for their fellow Americans and anxious to do everything within their power to prevent the next 9/11 attack.

Now some may think that good people can't do bad things. I would remind those people that on February 19th, 1942, President Franklin Roosevelt issued Executive Order 9066 that ordered the detention and incarceration of more than 100,000 Americans without probable cause, judicial sanction, or the slightest individualized suspicion of wrongdoing. Most of those detained were U.S. citizens. Many of them had been born in this country and never even visited Japan. Their crime was to have Japanese ancestors.

Today we see this as one of the most outrageous abuses of civil liberties since the end of slavery, and yet it was strongly supported at the time, not only by the president but by California Attorney General Earl Warren, who later earned a reputation as perhaps the most liberal chief justice of the Supreme Court of the 20th century.

Another well known civil libertarian involved in that case was Justice Hugo Black, who wrote the court's opinion, the majority opinion in the Korematsu case that upheld the detention as legal.

How could so many good and able people give their support to such a horrible policy? Indeed, one of the few people to speak out against this was J. Edgar Hoover of the FBI, interestingly.

They did this because they were frightened and they desperately wanted to prevent another Pearl Harbor. And I would submit that the OLC lawyers -- I've met one of them two or three times at conferences but I don't know any of them well -- but my sense is all of them acted from precisely the same motive. They wanted to save the lives of their fellow Americans.

The title of this hearing is "What Went Wrong?" Part of the problem, I believe, is a general ignorance of some of the fundamental details of national security law, not only at OLC but elsewhere in the government and indeed throughout the law profession.

In my prepared testimony I give several examples where the country has been divided by very basic principles of international law. The Geneva Conventions, the third Geneva Convention, provides that prisoners of war are to be tried by military courts, not civilian courts, but this was not well known and so people got very unhappy.

How could bright lawyers fail to understand that Common Article 3 applies? Again, it sets the standard of humane treatment. I think it's not that hard to understand why. Common Article 3 applies to armed conflicts, quote, "of a non-international character." Well, what the OLC people said was, well, there are at least 75 countries involved in this war in one way or another against al Qaeda.

The authorization for the use of military force approved by Congress in October of 2001 clearly authorized the use of force against foreign nations -- again, the concept of an international war. It's not unreasonable to conclude that this was an international conflict, but without a sovereign state on the other side, the better view -- and the view accepted by the Supreme Court in the Hamdan case is that's not the best interpretation. That is to say, it does apply.

Common Article 3 states further that in non-international armed conflicts, it applies to conflicts, quote, "in the territory of one of the high-contracting parties." Now you can interpret that to mean that a conflict that involves more than one state is not covered by Common Article 3. Al Qaeda -- it was global in its scope; it attacked us inside the United States and Saudi Arabia, Yemen, Kenya, Tanzania and so forth.

So it was not difficult, I think, for non-experts to look at this language and say this does not apply. I think they were horribly wrong, but I don't think it was an evil decision.

There sees to be an overwhelming consensus, which I share, that waterboarding crosses both the human treatment and the torture line. I have a dear colleague who refers to it -- who is very outraged at all of this -- who refers to it as "torture-lite." And I think that's probably a good description.

It's not comparable to what was done to our POWs in Vietnam. It's not comparable to the maiming and the branding and the dismemberment that's gone on through history, but it is wrong. It should not have happened, and the most important thing is to make sure it does not happen again.

As to what we do now about those who make decisions, the Republicans came to power in 1953. They controlled the White House, both houses of Congress. To the best of my knowledge and recollection, no one demanded a truth commission to go after the ghost of FDR or Hugo Black or Earl Warren. They understood that good people, fearful for the safety of their fellow Americans, trying to stop the next attack, made some very bad decisions and I think that's what's happened here.

Thank you, Mr. Chairman.

SEN. WHITEHOUSE: Thank you, Professor Turner. It sounds as if you would agree with the observation of the old French minister, Talleyrand, that the greatest danger in times of crisis comes from the zeal of those who are inexperienced.

I will take a moment now to recess very briefly so that the necessary security measures for Mr. Soufan can be put into place. Everybody can -- the witnesses can remain in their seats; it will just take a second to clear some of the cameras out of the front of the well.


SEN. WHITEHOUSE: Thank you. Ali Soufan is the chief executive officer of the Soufan Group LLC, an international strategic consultancy firm that advises governments and corporations on policies, strategies, security, risk management and training. More significantly for our purposes, he is a former FBI supervisory special agent who investigated and supervised highly sensitive and complex international terrorism cases, including the attack on the USS Cole and the events surrounding 9/11.

Mr. Soufan has received numerous awards and commendations for his counterterrorism work. These include the director of the FBI's Award for Excellence in Investigation, the Respect for Law Enforcement Award for Relentless Pursuit of Truth and Bringing Terrorist Subjects before the Bar of Justice. And a commendation from the U.S. Department of Defense that labeled him an "important weapon in the ongoing war on terrorism."

Mr. Soufan is an Honors graduate from Mansfield University of Pennsylvania, where he received undergraduate degrees in international studies and political science. He is a magna cum laude graduate of Villanova University, where he received a Master of Arts in international relations and appears to have no connection to the University of Virginia. (Laughter.)

Mr. Soufan, thank you for being with us.

MR. SOUFAN: Thank you, sir.

Mr. Chairman, committee members, thank you for the opportunity to appear before you today. I know that each one of you cares deeply about --

SEN. WHITEHOUSE: Could you speak up and clearly with the microphone near you so that everybody can hear? Without the ability to see you, it's even more important that you be heard.

MR. SOUFAN: Mr. Chairman, committee members, thank you for the opportunity to appear before you today. I know that each one of you cares deeply about our nation's security. It was always a comfort to me during the most dangerous situations that I faced, from going undercover as an al Qaeda operative to tracking down the killers of the 17 U.S. sailors murdered on the USS. Cole, that those of us on the front line had the support and the backing of the American people. So I thank you.

The issue that I'm here to discuss today, interrogation methods used to question terrorists, is not and should not be a partisan matter. We all share a commitment to using the best interrogation method possible, that serves our national security interests and fits within the framework of our nation's principles.

As an FBI agent, I spent much of my career investigating and unraveling terrorist cells around the globe. I have had the privilege of learning and working alongside some of the most dedicated and talented individuals from the FBI and other law enforcement, military and intelligence agencies. I was the government's main witness in both trials we had in Guantanamo Bay so far, and I'm currently helping the prosecution prepare for future ones.

From my experience, I strongly believe that it is a mistake to use what has become known as enhanced interrogation techniques, a position shared by professional operatives, including CIA officers who were present at the initial phases of the Abu Zubaydah interrogation. These techniques from an operational perspective are slow, ineffective, unreliable and harmful to our efforts to defeat al Qaeda.

An example of a successful interrogation is that of an al Qaeda terrorist known as Abu Jandal. In the immediate aftermath of 9/11, together with my partner --

SEN. WHITEHOUSE: Let me interrupt for just a moment to -- with -- I ask unanimous consent that the 302s that were developed in the investigation of Abu Jandal be made a part of the record. I believe this is the first time they've been fully declassified.

Please proceed -- without objection.

MR. SOUFAN: In the immediate aftermath of 9/11, together with my partner, special agent Robert McFadden, a first-class agent from the Naval Criminal Investigative Service, we obtained a treasure trove of highly significant, actionable intelligence that proved instrumental in the war efforts against al Qaeda and the Taliban in the fall of 2001. It's included extensive information on everything from Osama bin Laden's network and modus operandi to details on individual operatives, some we later apprehended.

The approach we used was completely by the book and it can be labeled as informed interrogation approach. It is outlined in the Army Field Manual and is derived from the cumulative experiences, wisdom and successes of the most effective operatives from our country's military intelligence and law enforcement community.

The approach is based on leveraging our knowledge of a detainee's mind-set, vulnerabilities and culture, together with using intelligence already known about him. The interrogator uses a combination of interpersonal, cognitive and emotional strategies to extract the information needed. If done correctly, this approach works quickly and effectively because it outsmarts the detainee using a method that he is not trained nor able to resist.

The Army Field Manual is not about being soft; it's about outwitting, outsmarting and manipulating the detainee. The approach is in sharp contrast of the enhanced interrogation method that instead tries to subjugate the detainee into submission through humiliation and cruelty. The idea behind it is to force the detainee to see the interrogator as the master who controls his pain. It's merely an exercise in trying to force compliance rather than elicit cooperation.

A major problem is that it is ineffective. Al Qaeda are trained to resist torture. As shocking as these techniques are to us, their training prepares them for much worse -- the torture that they would receive if caught by dictatorships, for example. In a democracy, however, there is a glass ceiling the interrogator cannot breach and eventually the detainee will call the interrogator's bluff.

That's why, as we see from the recently released DOJ memos on interrogation, the contractors had to keep requesting authorization to use harsher and harsher methods. In the case of Abu Zubaydah, that continued for several months, right until waterboarding was introduced. And waterboarding itself had to be used 83 times, an indication that Abu Zubaydah had already called his interrogators' bluff.

In contrast, when we interrogated him using intelligent interrogation methods, within the first hour we gained important actionable intelligence.

The technique is also unreliable. We don't know whether the detainee is being truthful or just speaking to mitigate his discomfort. The technique is also slow. Waiting 180 hours as part of a sleep deprivation stage is time we cannot afford to waste in a ticking-bomb scenario.

Just as importantly, this amateurish technique is harmful to our long-term strategy and interests. It plays into the enemy's handbook and recreates a form of the so-called Chinese wall between the CIA and the FBI. It also taints sources, risks outcomes, ignores the end game and diminishes our moral high ground.

My interest in speaking about this issue is not to advocate the prosecution of anyone. Examining a past we cannot change is only worthwhile when it helps guide us towards claiming a future, a better future, that is yet within our reach.

For the last seven years it has not been easy objecting to these methods when they had powerful backers. I stood up then for the same reasons I'm willing to take on critics now, because I took an oath swearing to protect this great nation. I could not stand by quietly while our country's safety is endangered and our moral standing damaged. I know you are motivated by the same considerations and I hope you help ensure that these grave mistakes are never, never made again.

Thank you.

SEN. WHITEHOUSE: Thank you, Mr. Soufan.

Let me, now that we're in the questioning period, begin with questions to you and let me ask you more specifically about the interrogation of Abu Zubaydah, again reminding you not to divulge any information that is nonclassified. You were present; indeed, you were one of the first if not the first interrogators present when Abu Zubaydah was brought into custody for the first time outside of Pakistan, correct?

MR. SOUFAN: Yes, sir.

SEN. WHITEHOUSE: And your testimony indicates that within the first hour of your interrogation of him, you had gained important, actionable intelligence. Is that correct?

MR. SOUFAN: Yes, sir.

SEN. WHITEHOUSE: At that point, his condition was such that you indicated that "we had to take him to a hospital or he would die." But at the hospital, you continued your questioning. And it was during your questioning of him at the hospital that you elicited information regarding the previously unknown role of Khalid Sheikh Mohammed as the mastermind of the 9/11 attacks.

MR. SOUFAN: Correct, sir.

SEN. WHITEHOUSE: One of the more significant pieces of intelligence information we've ever obtained in the war on terror, correct?

MR. SOUFAN: It's one of them. Yes, sir.

SEN. WHITEHOUSE: And all of this happened before the CIA/CTC team and the private contractors arrived, correct?

MR. SOUFAN: Yes, sir.

SEN. WHITEHOUSE: And then they arrived and immediately you say, on the instructions of the contractor, harsh techniques were introduced which did not produce results as Abu Zubaydah shut down and stopped talking. Correct?

MR. SOUFAN: Correct, sir.

SEN. WHITEHOUSE: And with that happening, you knew he had good information. He'd shut down under the harsh techniques and so you again were given control of the interrogation. Correct?

MR. SOUFAN: Yes, sir.

SEN. WHITEHOUSE: And you used the same techniques you had originally, which were within the Army Field Manual?

MR. SOUFAN: Yes, sir. It's me, another FBI agent who was with me and a top CIA interrogator. So the interrogation team was a combination between FBI and CIA and all of us had the same opinion that contradicted with the contractor.

SEN. WHITEHOUSE: And in this third interview, or series of interviews, anyway -- the one before the hospital, one in the hospital and then one after the first round of harsh interrogation when you were brought back -- it was in the second round pursuant to appropriate tactics that Abu Zubaydah disclosed the details of Jose Padilla, the so-called dirty bomber. Correct?

MR. SOUFAN: Yes, sir.

SEN. WHITEHOUSE: And then, again, the contractor reasserted himself and began re-implementing harsh techniques and, again, Abu Zubaydah shut down and stopped producing information. Is that correct?

MR. SOUFAN: Yes, sir.

SEN. WHITEHOUSE: And once again, you were brought back in to interrogate him. Now it was more difficult because some of these harsh techniques had been applied and his resistance was increased, but eventually you succeeded and you re-engaged again, but at that point the contractor took over and begin stepping up the notches of his experiment to the point where you protested to your superiors and the FBI that this was becoming inappropriate, illegal. I believe you even threatened to arrest somebody if you weren't -- if you were to stay there, correct?

MR. SOUFAN: Yes, sir. My description was borderline torture.

SEN. WHITEHOUSE: And at that point, your participation in his interrogation ended.

MR. SOUFAN: Yes. We were asked by Director Mueller to leave the facility.

SEN. WHITEHOUSE: So when you look at the Office of Legal Counsel opinion of May 30th, 2005, on Page 10, here's what the Office of Legal Counsel said was the fact: "Interrogations of Zubaydah, again, once enhanced techniques were employed, furnished detailed information regarding al Qaeda's organizational structure, key operatives and modus operandi and identified KSM as the mastermind of the September 11th attacks. You've informed us that Zubaydah also provided significant information on two operatives, including Jose Padilla, who planned to build and detonate a dirty bond in the Washington, D.C. area," end quote.

From your position at the actual interrogation of Abu Zubaydah, you know that statement not to be true?

MR. SOUFAN: Yes, sir.

SEN. WHITEHOUSE: On September 6, 2006, President Bush stated the following: "Within months of September 11, 2001, we captured a man named Abu Zubaydah. We believed that Zubaydah was a senior terrorist leader and a trusted associate of Osama bin Laden. Zubaydah was severely wounded during the firefight that brought him into custody and he survived only because of the medical care arranged by the CIA. After he recovered, Zubaydah was defiant and evasive. He declared his hatred of America. During questioning, he at first disclosed what he thought was nominal information and then stopped all cooperation. We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that Zubaydah had received training on how to resist interrogation and so the CIA used an alternative set of procedures."

Does that statement by the president accurately reflect the interrogation of Abu Zubaydah?

MR. SOUFAN: Well, the environment that he's talking about, yes. It reflects, you know, he was injured and he needed medical care. But I think the president -- my own personal opinion here, based on my recollection, he was told probably half-truth.

SEN. WHITEHOUSE: And repeated a half-truth, obviously. His statement as presented does not conform with what you know to be the case from your experience on hand.

MR. SOUFAN: Yes, sir. Yes, sir.

SEN. WHITEHOUSE: I'm over my time.

Senator Graham.

SEN. GRAHAM: Since there's just the two of us, if you want to keep going.

Thank you, Mr. Chairman.

What we've got is four lawyers who are very bright. All have one thing in common, they like Virginia. And I counted seven opinions among you. I think two of you disagreed with yourselves somewhere along the line.

And the point is that you're very bright. I appreciate you coming.

And Mr. Soufan, thank you for serving our country.

MR. SOUFAN: Thank you, sir.

SEN. GRAHAM: And I appreciate your view of how we should behave.

The point that we're trying to make as we goes forward is that we get this right. And as we look back in the past, we don't want to shade this one way or the other unnecessarily.

Is it your testimony that enhanced interrogation techniques that were employed right after 9/11 yielded no good information?

MR. SOUFAN: I can only speak about my own personal experience.

SEN. GRAHAM: And that's the point, isn't it?


SEN. GRAHAM: And I admire you. I really do. I really appreciate what you're doing.

And Mr. Chairman, I think there's some information out there that shows that enhanced interrogation techniques did yield good information and I would like that to be part of this inquiry if we're going to have it.

But having said that, Mr. Soufan, I appreciate what you're telling us.

Were you involved in the KSM interrogation at all?

MR. SOUFAN: (Laughs.) No, sir. After my stand in the Abu Zubaydah and --


MR. SOUFAN: -- and what I believed is right -- (inaudible) -- out of the program.

SEN. GRAHAM: No, I don't doubt that at all, and I don't doubt that you're trying to help the country. I'm just saying that this idea that no good information was acquired is probably not accurate. But that doesn't justify what we did. That's all I'm saying.

Now, as to the Geneva Convention, Mr. Turner -- I appreciate the compliment, by the way -- the Geneva Convention to me has always been a warehousing agreement between the signatory nations. We catch some of your guys, we're going to treat them well and we expect like reciprocity. We catch a civilian, we're going to treat them well until the conflict is over. Is that generally the goal of the Geneva Convention?

MR. TURNER: Senator, that's exactly the term that I use in teaching about the Geneva Convention. If you go back through history, the original practice was to put them to the sword. Somebody got smart and said hey, we can turn them into slaves. They played around briefly with paroling them, which is to say, okay, go back to your flock or your farm, don't come back to the battlefield, and the king said, or the prince said, get your tail back on the battlefield, and so they finally said look, let's not kill them, let's just warehouse them, treat them humanely --


MR. TURNER: -- feed them. When the war's over, we'll trade prisoners. And that's been the practice for several hundred years.

SEN. GRAHAM: And isn't the problem in this war is that, number one, al Qaeda's not a signatory to the convention. The only way we're going to stop this enemy from attacking us is to find good information and hit them before they hit us.

MR. TURNER: Again, that's right out of my prepared testimony.

SEN. GRAHAM: I've never taken your class, by the way, but I'm liking it so far.

MR. TURNER: Unlike any war we've ever had, this war is 90 percent, if not more, intelligence. Usually you need your intelligence service to identify the location of the enemy and their plans and then you send your tanks, your armor, your aircraft carriers. In this battle, a good police department could arrest al Qaeda if we can find them and know what they're doing. So intelligence is incredibly important.

SEN. GRAHAM: Mr. Addicott, is that right?

MR. ADDICOTT: That's right.

SEN. GRAHAM: We're the only nation that I know of that considers al Qaeda operatives a military threat. Every other nation looks at this through the law enforcement prism. Is that true?

Does everyone agree with that?

MR. ZELIKOW: No, sir, I don't think that's the case any longer.

SEN. GRAHAM: Okay. What nation has adopted the enemy combatant theory?

MR. ZELIKOW: We've actually been engaged in international conferences on just this point with our key allies for about the last four years --

SEN. GRAHAM: Is there any country that holds a detainee under the theory of the Law of Armed Conflict?

MR. ZELIKOW: They don't hold detainees under that theory, but partly it's because other countries are holding them under that theory.

SEN. GRAHAM: My point is that we do hold people under the theory of the Law of Armed Conflict.

Have you ever been to an interrogation conducted by the Spanish police?

MR. ZELIKOW: I have not had that rare privilege, sir.

SEN. GRAHAM: Well, I have. (Laughter.) Have you ever been to an interrogation conducted by the Carabiniere in Italy?

MR. ZELIKOW: Neither have I.

SEN. GRAHAM: Do you believe, Mr. Turner, that these interrogations are Common Article 3-compliant?

MR. TURNER: No, sir.

SEN. GRAHAM: There is no law enforcement agency in the world dealing with terrorism interrogates in a Common Article 3 manner, because you can't say "hello" firmly under Common Article 3. I just want the world to understand, and then my time is up, that the reason we have adopted a different theory is very important, because I think we're at war and the people we're prosecuting didn't rob a liquor store, they're an ongoing military threat. And the odd thing about this is if you go down the military Law of Armed Conflict, in many ways you restrict your ability to get information versus the law enforcement model, but I think that's the right model to have.

With that, I'll yield to you. And it's just the two of us. Take any time.

SEN. WHITEHOUSE: We'll just go back and forth.


MR. TURNER: I agree, Senator, just for the record.

SEN. WHITEHOUSE: Let's go back and forth.

SEN. GRAHAM: Yeah. I mean, we've got to figure this out as a world, not just a nation.

Right, Philip? I mean --

MR. ZELIKOW: Absolutely. In fact, it's a coalition fight. We need coalition standards for the fight. And one reason we're having this discussion is let's work on standards that will also be interoperable with our allies.


SEN. WHITEHOUSE: One other question I wanted to pursue about the interrogation of Abu Zubaydah: There was obviously considerable conflict between one side that was achieving significant actionable information, I mean, so significant that when the Jose Padilla information became available, as I recall, the attorney general of the United States had a press conference in Moscow to trumpet it, and the other method, which was producing a shutdown, if you will, on the part of the detainee, and it has been often cast as the difference between the trained professionals of the CIA versus the amateurish military interrogators, teenagers who need the Army Field Manual sort of for their training wheels, and law enforcement investigators, who are constrained by Miranda and other things and therefore can't be serious interrogators.

It strikes me from your description that two elements of that framing of the issue are wrong. First of all, it seems very well that military and law enforcement investigators are actually the trained professionals. You refer to the other group as amateurish Hollywood type. And the second is that the division wasn't between the CIA and the FBI. You had CIA professionals who were with you and wanted to continue and on the other side of the equation was a private contractor who was not even a government employee.

Could you comment on those observations?

MR. SOUFAN: Yes, sir. It has been reported that there was a conflict during the interrogation between the FBI and CIA. I totally disagree with this assertion. And that's something that I mentioned in my --

SEN. WHITEHOUSE: At the field level, at least.

MR. SOUFAN: At the field level.

SEN. WHITEHOUSE: At the point of the interrogation, yes.

MR. SOUFAN: Yes. And that's why I supported the CIA officers in my op-ed in The New York Times on this issue. They were 100 percent supportive. Actually, the chief psychologist of the CIA, forensic psychologist, objected to these techniques and he even left the location before I did. Their top interrogator was 100 percent, I think, in sync with our view, with the FBI view, because he's a professional interrogator.

I think this technique, using the harsh methods or using the enhanced interrogation methods, misunderstands the threat that we face from ideological Islamic extremists like al Qaeda. And countries around the world, in the Middle East, who actually use these techniques as regularly as possible, peddled away from these techniques when it comes to the terrorists of al Qaeda and Islamic extremists. They are ideologically motivated, they are expecting a lot to happen to them when they get caught, and the best way to deal with them is to be smart and engage with them. And that's what provided a lot of actionable intelligence before 9/11 and after 9/11.

And, you know, in a classified session we can actually talk about a lot of the successes versus the failures of these techniques. I mean, one of the things that have been mentioned about this technique, the successes that have been talked about publicly are Padilla and Khalid Sheikh Mohammed. Well, waterboarding was not approved until August 1st, 2002. Padilla, after an international manhunt in three countries, was finally arrested after he landed from Switzerland to the Chicago airport on May 8, 2002 -- almost three months before these techniques were imposed. We knew about Khalid Sheikh Mohammed in April of '02. Again, waterboarding was not approved until August 1st of 2002.

So I am basing my opinion here from two things: from my recollection of the facts -- I don't have any notes; I'm just having my memory on these facts and what happened.

SEN. WHITEHOUSE: Understood.

MR. SOUFAN: That's number one. Number two, I am basing on what I've been hearing in the public domain, what had been classified --

SEN. WHITEHOUSE: I'm going to turn to Senator Durbin. I have just a few seconds left.

I just want to drop in one question to Professor Luban during this round, and that is, in your review of the OLC memos, was there any mention of the role of private contractors?

MR. LUBAN: Sir, I don't recall any specific mention of private contractors.

SEN. WHITEHOUSE: I don't recall it, either. And it would seem that that might raise legal issues. It's interesting that that would be a fact in the lengthy, lengthy OLC opinions that never appears to have surfaced.

MR. LUBAN: Well, I agree, Senator, and I should add that I was also very troubled by the chronology that Mr. Soufan just mentioned, because when Mr. Bradbury was writing the opinion and wrote that the capture of Jose Padilla resulted from enhanced interrogation techniques, that was already public information that Padilla had been captured in May and the techniques weren't approved until August. So the legal opinion that he wrote stipulates something that was common public knowledge to be untrue.

SEN. WHITEHOUSE: Yeah, he didn't have to have special knowledge to know that that assertion in the OLC opinion was false, correct?

MR. LUBAN: That's correct.

SEN. WHITEHOUSE: Senator Durbin.

SEN. RICHARD J. DURBIN (D-IL): Thank you very much, Mr. Chairman, for this hearing.

Mr. Zelikow, you've had fascinating assignments working as counselor for Secretary of State Rice and performing as executive director of the 9/11 commission. And I would like to ask you if you could amplify a little bit on what has been characterized as disclosures to leaders in Congress about interrogation techniques.

I served on the Intelligence Committee of the Senate for four years and found myself constantly in a frustrating position of being told classified information and being warned not to breathe a word of it to the public at large for fear that it would endanger the lives of people who were helping the United States.

SEN. WHITEHOUSE: Or, if I might add, Senator Durbin, our colleagues, in some cases our staff.


And so there were times when I frankly wanted to walk right out of the Senate Intelligence Committee room and call a press conference and say, if America only knew.

Now, when I've said that on the floor before, people have said to me, "I don't get it; aren't you supposed to say what you believe is true no matter what? Well, I think you know better. You know that there are limits to sharing information, particularly when it might endanger someone's life.

So when members of Congress were briefed of this, was it before the fact? Were they being asked to authorize these techniques and give their approval?

MR. ZELIKOW: Sir, I think Senator Feinstein mentioned SSCI is apparently really trying to break down the chronology. The Office of the Director of National Intelligence has been publicizing chronologies of briefings, which then need to be matched up against when we were actually doing things.

So the honest answer is I don't know whether folks were briefed before the fact. Formally what's supposed to happen is a memorandum of notification is prepared that lets key members of Congress know that a program is being undertaken with the authorization of the president pursuant to some prior presidential finding, and therefore, members of Congress are being informed that pursuant to this finding we're now doing certain things.

SEN. DURBIN: After the fact?

MR. ZELIKOW: It could be after the fact. It should be at the time the program is initiated and before the program is implemented so that it appears that you're taking the congressional consultation seriously, which the administration should.

SEN. DURBIN: And I recall only one instance where a member -- in this case Senator Rockefeller -- was briefed on the wiretap situation and in his frustration, maybe desperation, handwrote a letter to file about protesting this, which didn't surface until much later. But it was the only way that he could create tangible evidence of his displeasure or disapproval of what was happening.

I raise this because I've spoken to Senator Rockefeller and I know he was duty bound by the law and by his conscience not to make disclosures of classified information and yet felt that there was something here that was worthy of at least being on the record, as crude as his method was.

I raise this because many people seem to be suggesting that if members of Congress at the highest level are informed that they are somehow complicit, and I haven't seen that. I've seen specific limitations on that information when it's given to me in the Senate Intelligence Committee and by reference from leaders when they are briefed.

Do you understand the difference here?

MR. ZELIKOW: I think I do, and as I have listened to both side of this argument, I step away from this with some concern.

I will tell you on the inside, when I was arguing -- we were having heated arguments about these policies on the inside in the White House Situation Room and the argument would often be deployed against me and my colleagues that well, we briefed the following members of Congress, name, name, name, name, name, and they don't have a problem with it. So in other words, these briefings are being used actually to deal with arguments on the inside of the administration.

Yet I hear what you're saying and what other members of Congress have said, and so I have to ask myself, does the Congress think that the oversight process that accompanies these programs is working to their satisfaction?

SEN. DURBIN: Well, the answer from me, after four years experience on the Senate Intelligence Committee, it's not even close. Not even close. I mean, there were times when, you know, you wanted to express your disapproval and there was no means to do it. If you were privy to the most important information, there was no means.

I just have a few seconds left, if I might.

I'd like to ask Mr. Zelikow his opinion on the notion of closing down the Guantanamo facility. Do you believe that is a good decision?

MR. ZELIKOW: Yes, sir. In fact, Deputy Secretary of Defense Gordon England and I wrote a paper suggesting that the president announce his determination to close that facility in June 2005.

SEN. DURBIN: I am aware of one detainee represented by an attorney in Chicago who was advised by e-mail -- after six years of incarceration he was advised by e-mail there were no charges against him and this was 15 months ago and that he could be released. He is still at Guantanamo. And it's an indication to me of a serious miscarriage of justice.

And there are many now arguing to I guess maintain Guantanamo. I cannot imagine after President Bush and President Obama have made these statements publicly and reached that same conclusion that that is their position, but what do you think would be the consequence if we kept Guantanamo open at this point?

MR. ZELIKOW: When I was on the inside I would make the argument sometimes that Guantanamo has now become as much symbol as substance. I could ask people here has anyone ever here heard of the federal correctional institution at Marion?

SEN. DURBIN: I have --

MR. ZELIKOW: Or -- (inaudible) --

SEN. DURBIN: (It's in my ?) state.

MR. ZELIKOW: But everyone in America has heard of Alcatraz. One reason Alcatraz was closed was because it had become a symbol as much as a substance of a particular kind of facility.

Then we basically created supermax facilities that were at least maybe just as tough as Alcatraz in some ways that no one has really heard of and it doesn't become the same focal point of controversy in the same way.

Guantanamo had become in world public opinion a toxic problem for the United States of America and so we needed to address that as an issue in our foreign policy.

SEN. DURBIN: Do you have any doubt in your mind that if the decision is made that any of these prisoners from Guantanamo would be transferred to federal correctional institutions that they could be held safely and securely?

MR. ZELIKOW: Sir, we hold people who are far more dangerous in such institutions, including quite dangerous terrorists like Ramzi Yousef, who is currently residing in a supermax facility inside the United States now.

I'll also add that I've had the opportunity on behalf of one of the federal judges who'd been working through the habeas petitions to be asked to examine classified files and provide expert advice on holding these folks, and one of the things that strikes me now and struck me then is we have a vast amount of experience in how to judge the continued incarceration of highly dangerous prisoners since we do this with thousands of prisoners every month all over the United States, including some really quite dangerous people. We routinely make these decisions, and for better or worse, we've worked out a lot of ways of deciding how to make those calls, and I think that that's a whole body of knowledge that actually hasn't been tapped very well in making judgments about how long you can incapacitate a really pretty broad spectrum of people at Guantanamo, many of whom do not show large signs of future dangerousness.

SEN. DURBIN: Thank you very much.

Thank you, Mr. Chairman.

SEN. WHITEHOUSE: Senator Graham?

SEN. GRAHAM: Mr. Zelikow, what's the recidivism rate regarding the people that have been released at Guantanamo Bay? Do you know?

MR. ZELIKOW: There are no reliable statistics on the recidivism rate. What we do know is that some number of people who have been released have been encountered again on the battlefield. Numbers range -- dozens, perhaps, of people who have been released have been encountered again.

And so as with -- that's an important --

SEN. GRAHAM: Would that be a miscarriage of justice?

MR. ZELIKOW: Not necessarily.

SEN. GRAHAM: What if it were your son or daughter that was killed by one of these guys? How would you feel about it?

MR. ZELIKOW: I'd feel the same way I would if a parole board had released someone from a prison and then that person committed a crime. That problem happens all over the country and we're pretty familiar with it. And sometimes --

SEN. GRAHAM: Is there a difference between KSM and a guy that robbed a liquor store?

MR. ZELIKOW: I beg your pardon?

SEN. GRAHAM: Is there a difference between KSM and a domestic criminal?

MR. ZELIKOW: There sure is, sir. And I think that --

SEN. GRAHAM: And the only reason I mention that -- I generally agree with you. The only reason I mentioned that is we've got to understand there's two sides to this story. There's very much two sides to this story and we need to move on and get it right.

We need a facility somewhere. Senator Durbin's left; I do not take by his examination that he's volunteering Illinois as the housing site. And I'm not going to ask my friend from Rhode Island would he take these people because if you're waiting for a member of Congress to stand up and say bring them to my state, you're going to be waiting until hell freezes over because nobody is going to do that.

But I do believe we need to close Guantanamo Bay. I do believe we can handle 100 or 250 prisoners and protect our national security interests because we had 450,000 German and Japanese prisoners in the United States. So this idea that they cannot be housed somewhere safely, I disagree. But the decision to put them somewhere is very important. It needs to be well thought out.

And the idea that you have to let these people go or try them, I completely disagree with that.

Mr. Turner, how do you believe about that?

MR. TURNER: Well, I was going to suggest a correction for the record.

Senator Durbin was talking about somebody being held for years without being charged. As you well know --

SEN. GRAHAM: That's not --

MR. TURNER: -- the theory of a POW is he's being warehoused. He's not considered a wrongdoer. Now, if he's committed a war crime or murdered someone as a prisoner, you charge him and try him. But international law does not require that military combatants be charged to be detained.

Indeed, you mentioned the 400,000-plus mostly German POWs we had in more than 40 states during World War II. Two or three of them got to courts briefly because they claimed American citizenship. They were quickly sent back. None of them got a day in court. They didn't get a lawyer.

The theory of POWs is they're not wrongdoers, they're enemy soldiers who had the misfortune of falling into the hands of their enemy. You warehouse them and then you send them home. If they've committed crimes you have the option of charging them and trying them, but you're not supposed to keep them in a civilian prison and you're not supposed to try them in a civilian court.

SEN. GRAHAM: Exactly right.

Now, the point that we're trying to make, Mr. Turner and myself, is that when a member of al Qaeda is captured, all of them are not subject to war crime trials simply by their status. But if an independent judiciary agrees with the military and the CIA that the person is in fact -- the evidence supports the decision that you're a member of al Qaeda, an enemy combatant and military threat -- there is no requirement under military law to let people go.

Do you agree with that, Mr. Addicott?

MR. ADDICOTT: Yeah. I mean, part of the premise here, if we're not using the law of war --


MR. ADDICOTT: -- we've done a lot of illegal stuff. If' we're operating on the law of war, we're doing what we perfectly do in every war.

In my opinion, closing down Gitmo is a mistake. It's a propaganda victory for our enemies because we're saying to the world we have something to apologize for. We're holding these people illegally. We're torturing them -- which has never occurred at Gitmo -- and that's the exact opposite message that we should be sending.

We are in a state of war with these people. If you're trying to stop them at the airport, you're too late.

SEN. GRAHAM: Right. Well, I agree with that, but I agree with Mr. Zelikow that it is an image problem.

See, this is why we need to move on. I mean, the moral high ground, Mr. Addicott, is the place to be. The only way we're going to persuade people on the fence to come our way is to show a difference between us and our enemy.

Now, I don't want to treat these people with kid gloves, but I want to -- do you agree with this concept, that once we capture an enemy combatant it becomes about us not them?

MR. ADDICOTT: I think, you know, if we detain that individual under the law of war  and that's an issue that we have not made --

SEN. GRAHAM: But we will do things that they won't do to us and that's good.

MR. ADDICOTT: Oh, absolutely.

SEN. GRAHAM: That's a good thing, that we will treat them better than they'll treat us.

MR. ADDICOTT: Exactly. And that's why my testimony is the propaganda here is that we have tortured people is a lie. We have tortured no one.

SEN. GRAHAM: See, if I may just for a moment here: Waterboarding at the time of 2002 was not clear what law it violated. The Geneva Convention did not apply until 2006 --

SEN. WHITEHOUSE: That would depend what case you read.

SEN. GRAHAM: Yeah. Well, here's what I'm saying: The difference between law enforcement and intelligence gathering is a big difference. And what you would do to a military member, an MP who abused a detainee, would be a violation of the UCMJ. The CIA or the FBI -- you're not controlled by the UCMJ, are you, Mr. Soufan?


SEN. GRAHAM: Was your interrogation Common Article 3-compliant?

MR. SOUFAN: Not after 9/11. We get instructions that we don't read people, for example, their Miranda rights. We don't follow a lot of things that we used to do after 9/11 when it comes to --

SEN. GRAHAM: I would say that there is no FBI interrogation of a high-value target Common Article 3-complaint simply because Common Article 3 was written to make sure that military forces do not abuse civilians. It was never written to restrict the ability of a nation to defend itself.

And we have made a huge mistake here. We made two big mistakes. We adopted interrogation techniques from the Inquisition that have survived time because in some cases they do work, Mr. Soufan, but they always come back to bite you.

So I will turn it over now to the chairman and hopefully we'll find some way to move forward here.

SEN. WHITEHOUSE: Thank you, Senator.

MR. LUBAN: Senator, may I comment on something that the other witnesses have said?

SEN. WHITEHOUSE: Very briefly.

MR. LUBAN: Yeah. Okay.

First, I don't agree that everybody in Guantanamo is an enemy combatant. We do know that there have been a number of people that the CSRTs have already cleared of being enemies of the United States --

SEN. GRAHAM: Right. I agree with that.

MR. LUBAN: -- that are still being held there.

Second, I don't agree that people haven't been tortured in Guantanamo. I think that it's very clear that Mohamed al-Qahtani was. This is made I think perfectly clear in the Schmidt report. Four of the tactics that were used on al-Qahtani later surfaced to worldwide consternation.

SEN. GRAHAM: Should President Bush be prosecuted for authorizing these techniques?

MR. SOUFAN: Sir, I don't have any opinion about who should be prosecuted for what was done to al-Qahtani.

SEN. WHITEHOUSE: Well, I'd suggest that there are too many opinions on that going around. We've got prosecutors to look at that stuff professionally and we should let them do their jobs.

Mr. Zelikow, you have described the reaction to your report. And Senator Graham serves with great distinction on the Armed Services Committee, which has done a report of its own. Without objection, I'd ask that 119 to 128, those pages of the report be admitted into the record.

And selectively I can report from that that there was a great deal of disagreement with the OLC analysis and serious concerns and objections over some of the legal conclusions reached by OLC, that the Navy General Counsel Alberto Mora called the OLC memo relied on by the working group in 2003 profoundly in error and a travesty of the applicable law, that now Rear Admiral Dalton likewise said that to the extent that the working group report relied on the OLC memo, it did not include "what I consider to be a fair and complete legal analysis of the issues involved."

There was a chart that was created based on the OLC opinion and the results of that chart in a sort of green means go column for techniques that were authorized. Rear Admiral Dalton again: That green column was absolutely wrong legally; it was embarrassing to have it in there. Most, if not all, working group members and judge advocates general disagreed with significant portions of the OLC opinion but were forced to accept it.

And at Mr. Haynes' direction, the report continues, Ms. Walker instructed the working group -- instructed them -- to consider the OLC memorandum as authoritative and directed that it supplant the legal analysis being prepared by the working group action officers.

You in your testimony, Mr. Zelikow, said that when your alternative views, if you will, were made known, you heard that the memo was not considered appropriate for further discussion, to use your phrase, and that copies of your memo should be collected and destroyed.

What do those behaviors tell you about the environment for proper legal debate and discussion about this question at the highest levels of the administration?

MR. ZELIKOW: It told me that the lawyers involved in that opinion did not welcome peer review of their conclusions and indeed would shut down challenges from peers even inside the government.

SEN. WHITEHOUSE: Lawyers love to debate. It's our nature to quarrel with each other and to exchange views. Is there a suggestion that you would draw that they were less than perfectly confident in their views when they weren't willing to subject them to peer review? That's ordinarily viewed as the test of confidence in one's judgments.

MR. ZELIKOW: Well, the arguments I was making were pretty profound, because if I was right, their whole interpretation of the CID standard was fundamentally unsound and raised really quite grave issues about their interpretation of constitutional law.

Now, they have a couple of options there. One option is they or the NSC legal adviser or the White House counsel is to say, "Gee, let's take another look at this; the case law you cite has some merit; we'll take another look."

Or they could say, "Zelikow, boy, this shows how rusty you are in practicing law; we need to set you straight and tell you why you've just fundamentally misunderstood this whole area of the law."

They didn't do either of those things.

Instead what they preferred to do was C: "We don't want to talk about it."

SEN. WHITEHOUSE: Thank you very much.

I'm going to ask a question of Professor Luban, then I'm going to give the distinguished ranking member some time and then I think the hearing is already a bit over time and I have a plane to catch to an important engagement, so I'll make a closing statement after that.

My question for you, Professor Luban, has to do with the Lee decision, a Texas decision. I note that Professor Addicott didn't cite it in his opinion, despite the fact that he's from Texas and it was a Texas decision.

Lee -- I don't know if we have the diagram -- but Lee describes waterboarding and describes it as torture over and over again. I mean, here is a picture of the actual pages of the Federal Reporter highlighting the U.S. Department of Justice prosecution about all the times in which the court refers to this technique as torture.

And what's astonishing to me is that in 93 pages where they dig out Medicare reimbursement law as relevant, they don't find a case on point -- or they don't discuss a case on point in which one of the highest courts in the land, the United States Court of Appeals for the 5th Circuit, describes waterboarding and calls it, repeatedly -- and I think it's 12 times in the opinion -- torture.

I've pressed the Department of Justice on this question, because I think it's unimaginable. I've discussed this on the Senate floor. I've pursued it in hearings.

The attorney general -- Attorney General Mukasey's response was that it wasn't relevant because it was brought under the Civil Rights Act, and a case brought under the Civil Rights Act doesn't relate to a case brought under the torture statute or under the conventions -- the Convention Against Torture. And at that time I was out of time, and I didn't have the chance to follow up.

But I'd like your legal opinion on that, because it strikes me that the Civil Rights Act, under which Sheriff Lee was prosecuted, convicted and jailed for the crime of waterboarding, has no substantive elements of its own. It's a vehicle for enforcing constitutional requirements and for punishing constitutional violations, so that the Civil Rights Act leads directly -- with no interference from the statutory point of view -- directly to constitutional standards of torture.

If you look at the Convention against Torture and what OLC itself said about it, the definition of that treaty obligation is also founded -- according to OLC, itself -- directly in the constitutional standards of the United States.

And to the extent that the statute against torture applies, it is impossible for Congress by statute to overrule the Constitution. And so, as a matter of fundamental law, the statute criminalizing torture cannot create a definition of torture that narrows the constitutional definition.

So it seems to me that wherever you go with this, all roads lead to Rome -- Rome is the Constitution and what it says about torture -- and that the distinction that is drawn is yet another false device thrown out there to confuse and distract from the fundamental fact that they either missed the case on point or they found it, hated it and didn't bother to put it in the menu -- in the memo, and I guess we'll find out from the OPR which it was.

But what are your comments on this, Professor, then?

MR. LUBAN: Yeah, Senator, I agree with your diagnosis of it.

Now, the Lee case was decided in 1983; that was before the Convention --

SEN. WHITEHOUSE: Under President Reagan. This was charged --

MR. LUBAN: That's correct.

SEN. WHITEHOUSE: -- by the Department of Justice of President Reagan.

MR. LUBAN: That's correct.

It preceded the Convention against Torture and the torture statutes. So it's not surprising that it mention these, because they didn't exist yet.

The word "torture" was not defined eccentrically or in a way to change its meaning in the torture convention or the torture statutes. It's, roughly, severe mental or physical pain or suffering.

I took the liberty of looking at dictionary definitions of torture from around -- the dictionaries that would have been available to the court that was writing the Lee opinion, and that's more or less the same definition that you find in the Oxford English Dictionary edition at that time. So the word hadn't mysteriously changed its meaning.

The torture statute and the torture convention were giving the words very, very common-sense, everyday, non-technical meanings. And what's striking about the Lee case is that the court just used the word again and again and again, as if it was obvious that this technique of leaning the guy back in the chair, putting the towel over his face, pouring the water on until he thought he was suffocating and started jerking and twitching -- they had no problem calling it torture. The word means exactly the same thing in the dictionary definitions of 1983 as the definition in the treaty and the statutes that followed.

So there's absolutely no reason in the world that we should think that it was the fact that it was decided as a constitutional case rather than a torture statute case would have led to a different outcome.

SEN. GRAHAM: Professor --

SEN. WHITEHOUSE: Senator Graham.

SEN. GRAHAM: Thank you.

Would it be torture to put a spider in the jail cell of a person who was afraid of spiders?

MR. LUBAN: Conceivably.

If that person was afraid of --

SEN. GRAHAM: I need a black and white, yes or no answer.

MR. LUBAN: It depends on whether the person believes --

SEN. GRAHAM: We believe the person in the jail cell was part of a terrorist organization who had information about an impending attack, and we know he's afraid of spiders. Would you say that if we put a spider in the jail cell that we would torture that person?

MR. LUBAN: I would not. There is one circumstance in which the answer would be yes; that is if he knew or -- if it was known that he believed that spiders are deadly, because part of the torture statute says that you can inflict mental pain and suffering that's torture by threatening death to someone if it causes injury afterwards.

SEN. GRAHAM: In the point that --

MR. LUBAN: To an ordinary person, no.

SEN. GRAHAM: Okay. We're trying to exploit phobias here without -- Mr. Addicott has a different view of what happened here in terms of torture.

Do you think he's unethical if he arrives at a different view of what happened here?

MR. LUBAN: I think that he -- I don't think that he is unethical for arriving at a different view.


MR. LUBAN: I think he would be unethical if he ignored the relevant law --

SEN. GRAHAM: Have you ever met Mr. --

MR. LUBAN: -- and told in his official legal opinion that it wasn't torture.

SEN. GRAHAM: Have you ever met Mr. Bybee?

MR. LUBAN: I've never met --

SEN. GRAHAM: Have you met any of these people? So you're basing your opinion --

MR. LUBAN: I met John Yoo once.

SEN. GRAHAM: So you're basing your opinion because they didn't cite a case that you think is (despised if ?) they're a bunch of crooks. I mean, is that what this comes down to, your opinion that no reasonable lawyer could write a memo and exclude this case without being unethical? Is that what you're telling this committee?

MR. LUBAN: This case is just one example out of many. I think that no reasonable lawyer could discuss the --

SEN. GRAHAM: How could Mr. Addicott --

MR. LUBAN: commander-in-chief power and not cite Youngstown.

SEN. GRAHAM: How could Mr. Addicott come to a completely different conclusion about the common definition of torture and not be unethical?

MR. LUBAN: Well, Senator, I can't speak for Mr. Addicott --

SEN. GRAHAM: Well, let him speak for himself.

MR. LUBAN: -- but I will -- I'd be happy to mention that the Ireland case that he leaned his opinion on is not the only European court case on the meaning of torture.

SEN. GRAHAM: Well, the fact that you're going to tell me about the Ireland case --

MR. LUBAN: There have been subsequent -- there have been subsequent cases that have called, for example, hosing somebody down with water -- (inaudible) --

SEN. GRAHAM: Mr. Luban, the fact that --

MR. LUBAN: -- torture.

SEN. GRAHAM: -- please. The fact that you didn't tell me about the Ireland case -- can I assume that you were trying to hide something from me?

MR. LUBAN: Sir, I am not writing an opinion that's binding on --

SEN. GRAHAM: Why doesn't it work both ways?

MR. LUBAN: -- the entire executive branch of government --

SEN. GRAHAM: Well, you're telling the nation what's wrong and what's right. And he's told me about a case that I didn't even know about that suggests that the techniques in question have been looked at by an international body. And the ones that we used are less severe than the ones that were found not to be torture, and you didn't tell me about it. Did you know about it?

MR. LUBAN: Sir, I'm not telling you what's right and wrong, I'm telling you what is --

SEN. GRAHAM: Did you know about the case?

MR. LUBAN: -- ethical and unethical conduct by a lawyer.

SEN. GRAHAM: Did you know about the case?

MR. LUBAN: Of course I did.

SEN. GRAHAM: Well, you know what, I don't think you're unethical.

MR. LUBAN: Thank you. I greatly appreciate that, and my staffer appreciates it --

SEN. GRAHAM: Mr. Addicott.

MR. ADDICOTT: I've also got some further bad news for Mr. Soufan, who I respect very greatly, in his interrogation.

If you look at the 2003 Supreme Court Case of Chavez versus Martinez, you have an identical set of facts here. You had an individual that was interrogated while in an emergency room. He had been shot five times in the face by a police official. And Justice Stevens said that that practice was torture.

Now, thank goodness he was in the minority.

SEN. GRAHAM: This hearing is bordering on it. But -- okay --

MR. SOUFAN: Can I respond to some of --

MR. ADDICOTT: Thank goodness he was in the minority in that case, because Justice Clarence Thomas, of course --

SEN. WHITEHOUSE: Professor Addicott, wouldn't that depend on -- you're not suggesting that it's torture to interview somebody in a hospital?

MR. ADDICOTT: That's what Justice Stevens suggested in Chavez versus Martinez and --

SEN. WHITEHOUSE: So it's your opinion, as a law professor, that Chavez-Martinez stands for the proposition that it's torture for law enforcement to ever question a suspect in a hospital?

MR. ADDICOTT: My opinion is that Stevens was wrong. But I'm just saying that's what Stevens' opinion was on --

SEN. WHITEHOUSE: You think that it stands for the proposition that Stevens would oppose any interrogation of any criminal defendant in a hospital?

MR. ADDICOTT: That's what he said in his opinion -- Page 10 of my testimony.

MR. SOUFAN: Can I respond, please, to some of those assertions?


MR. SOUFAN: First, the timeline that was criticized before, the memo that the gentleman --

SEN. GRAHAM: Excuse me, we'll let you explain, but I got a few questions, and you can say anything you want, because --

MR. SOUFAN: Okay, great, sir. Thank you.

SEN. GRAHAM: -- you're a great American.

Now, about the CIA -- about the interrogation of this suspect: Do you know a gentleman named John K-i-r-i-a-k-o-u?

MR. SOUFAN: Me, myself?


MR. SOUFAN: No, I don't know him.

SEN. GRAHAM: Okay. He gave an interview -- he's a retired CIA officer and he said Abu Zubaydah -- is that the guy's name? Did I say it right?


SEN. GRAHAM: He said that they waterboarded the guy and he broke within 35 seconds.

MR. SOUFAN: Is this question for me, sir?


MR. SOUFAN: Well, last week he retracted that and he said he was misinformed, and actually he was not at the Abu Zubaydah location.

SEN. GRAHAM: Okay. So he just got mixed up?

MR. SOUFAN: He retracted that. Yes, sir.


MR. SOUFAN: That's one of the things that was mentioned before. And now we know it's 83 times, not 35 seconds.

SEN. GRAHAM: Now, do you believe that any good information was obtained through harsh interrogation techniques? Can you say that there was no good information?

MR. SOUFAN: Well, from what I know from Abu Zubaydah, I would like you to evaluate the information that we got before.

SEN. GRAHAM: The vice president's (sic/former vice president) suggesting that there was good information obtained, and I'd like the committee to get that information. Let's have both sides of the story here. I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.

MR. SOUFAN: Because, sir, there's a lot of people who don't know how to interrogate, and it's easier to hit somebody than outsmart them.

SEN. GRAHAM: Right. I understand that you believe you got it right, and you know how to do it and these other people don't. I understand. I understand that. In many ways I agree with you. But this idea that you're the complete knowledge of what happened in terms of interrogation techniques and what was gained is not accurate.

Your testimony is not a complete repository of what happened during these interrogation techniques of high-value targets. There are other interrogations going on. And there's an allegation made that these interrogations yielded information that protected Americans. If we're going to talk about it, let's talk about it in complete terms.

SEN. WHITEHOUSE: And to be fair to the witness, Senator --


SEN. WHITEHOUSE: -- I think he hasn't represented himself anything more than somebody who can correct the impression --


MR. SOUFAN: I mentioned my own personal experience in this --

SEN. WHITEHOUSE: -- that arose in the interrogation of Abu Zubaydah.

SEN. GRAHAM: Right, and I have nothing but the highest regard for this gentleman. I just know this is not it. This is not the whole story.

And the point is, do we need to keep doing this? I think we've cleaned up this mess. We've got it right, generally speaking. And the more we get into this, the more we're going to make it chilling for the next group of people who asked to do -- to defend this nation.

And that leads me to my last question: Do you believe it would be wrong for President Obama to authorize a technique outside the Army Field Manual if the CIA told him they had a high-value target that they believe possesses information about an imminent attack?

MR. SOUFAN: I believe that they should ask other professional interrogators to evaluate that detainee --

SEN. GRAHAM: I'm telling you what the -- do you believe that the CIA -- do you think Leon Panetta is qualified for his job?

MR. SOUFAN: Well, I believe he is extremely qualified for his job. I agree with a lot of -- (laughs) --

SEN. GRAHAM: Let me tell you that he's -- I'm going to read something to you.

SEN. WHITEHOUSE: (Sounds gavel.) If we're going to get into the qualifications of Panetta --

SEN. GRAHAM: Yeah. This is important, though.

MR. SOUFAN: Right.

SEN. GRAHAM: Ron Wyden asked him, "If person has critical threat information, urgent information, and you need to be able to secure that information," he asked Panetta, "what would you do?"

"In that particular situation that you mentioned where you have someone who could be a ticking time bomb, and it's absolutely necessary to find out what information that individual has, I think we would have to do everything possible" -- everything possible -- "within the law to get that information. If we had a ticking time bomb situation, obviously whatever was being used I felt was not sufficient, I would not hesitate to go to the president of the United States and request whatever additional authority I would need. But obviously, I will again state that I think this president would do nothing that would violate the laws that were in place."

Having said that --

SEN. WHITEHOUSE: You've got to wrap it up. I'm sorry.

SEN. GRAHAM: Huh? Okay. Wrap it up.

Would the president of the United States, President Obama, be wrong in considering a request from the CIA to engage in interrogation techniques beyond the Field Manual but that yet were lawful?

MR. SOUFAN: Sir, from the quote that you read, the key word in it -- from Director Panetta -- "within the law." Within the law, yes, the president can authorize whatever --

SEN. GRAHAM: Right. Is the Army Field Manual the complete law on what is law --

MR. SOUFAN: No. It's an outline for interrogations.

SEN. GRAHAM: Thank you.


Thank you all very much. I appreciate the witnesses who are here --

MR. SOUFAN: Can I -- can I just --



SEN. WHITEHOUSE: I have to end the hearing. I have a plane that I cannot miss. And I just want to wrap up by adding the following statements into the record -- form Mike Ritz, a former U.S. military interrogator; from Peter Shane, a professor at Ohio State University Moritz College of Law; from Colonel Steve Kleinman, U.S. Air Force Reserve, a professional interrogator; from Matthew Alexander, a professional interrogator in the U.S. Air Force Reserve and author of "How to Break a Terrorist"; from Elisa Massimino of Human Rights First; the Senate Armed Services Committee report I think I already put into the record; and the testimony of Michael Stokes Paulsen.

I'd like to close with the words of Matthew Alexander from his statement.

"As an interrogator in Iraq I conducted more than 300 interrogations and supervised more than 1,000. I led the interrogations team that located Abu Musaab al Zarqawi, the former leader of al Qaeda in Iraq, and one of the notorious mass murders of our generation.

"At the time that we killed Zarqawi he was the number one priority for the United States military, higher than Osama bin Laden.

"I strongly oppose the use of torture or abuse as interrogation methods for both pragmatic and moral reasons.

"There are many pragmatic reasons against torture and abuse. The first is the lack of evidence that torture or abuse, as an interrogation tactic, is faster or more efficient than other methods.

"In my experience, when an interrogator used harsh methods that fit the definition of abuse, in every instance that method served only to harden the resolve of the detainee and made them more resistant to interrogation.

"The second pragmatic argument against torture and abuse is the fact that al Qaeda used our policy that authorized and encouraged these illegal methods as their number one recruiting tool for foreign fighters.

"While I supervised interrogations in Iraq, I listened to a majority of foreign fighters state that the reason they'd come to Iraq to fight was because of the torture and abuse committed at both Abu Ghraib and Guantanamo Bay. These foreign fighters made up approximately 90 percent of the suicide bombers in Iraq at that time, in addition to leading and participating in thousands of attacks against coalition and Iraqi forces.

"It is not an exaggeration to say that hundreds, if not thousands, of American soldiers died at the hands of these foreign fighters. The policy that authorized and encouraged the torture and abuse of prisoners has cost us American lives.

"I deployed to the war with four other Air Force special agents with experience as criminal investigators. We brought with us skills and training that were unique, compared to our Army counterparts.

"We learned to interrogate criminal suspects using relationship- building and non-coercive police investigative techniques. I learned quickly that al Qaeda has much more in common with criminal organizations than with traditional rank-and-file soldiers.

"I used techniques permitted by the Army manual, under the terms, 'psychological ploys, verbal trickery or other nonviolent or non- coercive subterfuge' to great success. And I taught these techniques to other members of my interrogation team.

"I also want to address the so-called ticking time bomb scenario that is so often used as an excuse for torture and abuse. My team lived through this scenario every day in Iraq. The men that we captured and interrogated were behind Zarqawi's suicide bombing campaign. Most of our prisoners had knowledge of future suicide bombing operations that could have been prevented with a quick extraction of accurate intelligence information.

"What works best in the ticking time bomb scenario is relationship building, which is not a time-consuming effort when conducted by a properly trained interrogator at non-coercive deception.

"Contrary to popular belief, building a relationship with a prisoner is not necessarily a time-consuming exercise. I conducted point-of-capture interrogations in Iraqi homes, streets and cars, and I discovered that in these time-constrained environments where an interrogator has 10 or 15 minutes to assess a detainee and obtain accurate intelligence information, relationship building and deception were, again, the most effective interrogation tools. It is about being smarter, not being harsher.

"When I took the oath of office as a military officer I swore to uphold and defend the Constitution of the United States of America, which specifically prohibits cruelty towards any person in the 8th Amendment.

"In addition, torture and abuse are inconsistent with the basic principles of freedom liberty and justice upon which our country was founded. George Washington, during the Revolutionary War, specifically prohibited his troops from torturing prisoners. Abraham Lincoln prohibited Union troops from torturing Confederate prisoners. We have a long history of abiding by American principles while conducting war.

"I can offer no better words than those of General George C. Marshall, the orchestrator of the Allied victory in Europe during World War II, who stated, 'Once an army's involved in war, there is a beast in every fighting man which begins tugging at its chains. A good officer must learn early on how to keep the beast under control both in his men and in himself.'

"We are smart enough to effectively interrogate our adversaries, and we should not doubt our ability to convince our detainees to cooperate. American culture gives us unique advantages that we can leverage during interrogations: tolerance, cultural understanding, intellect and ingenuity.

"In closing, the same qualities that make us great Americans will make us great interrogators."

I think I had planned longer remarks, but given the hour, I think I'll conclude with those words, which are very helpful. And I would add, for the record, pages from a book called "Camp 020," describing the techniques employed by British military intelligence when the Nazi threat loomed over their country -- presumably a threat at least equal to the threat of al Qaeda to our country -- and their findings, among other things, that "violence in interrogations is appropriate (sic). For one thing, it is the act of a coward. For another, it is unintelligent."

SEN. GRAHAM: Well, thank you Mr. Chairman.

Maybe we'll end this hearing with some agreement.

If we're talking about, do I agree with what the -- was it the lieutenant that you read? The statement --

SEN. WHITEHOUSE: Captain Alexander.

SEN. GRAHAM: Yeah. I mean, I generally agree with that. I've been a military lawyer all my life. I believe in the Geneva Convention. I believe that the moment we capture somebody, the obligation falls upon us to abide by the convention. And if you don't want to live by the convention, get out of it.

Now, there's people who have a different view. There's people, quite frankly, Mr. Soufan, that if we called as witnesses would probably graphically describe what they did and that information they received gave us knowledge about the enemy we wouldn't have had otherwise.

SEN. WHITEHOUSE: I'm terribly sorry to have to do this.


SEN. WHITEHOUSE: Yes. What I would like to do is to close the hearing at this conclusion of Senator Graham's remarks. There is a week to add any testimony that anybody wishes.

I cannot miss this. And I apologize very much.

SEN. GRAHAM: You go --

SEN. WHITEHOUSE: You have the floor, and at the conclusion of your remarks, the hearing is over.

SEN. GRAHAM: They won't be long. You can go to the airport. And you'll get screened, but that's good.

Now, the point that I'm trying to make is that how you come down on this situation doesn't mean you're unethical, and it doesn't make you a criminal.

I've always believed that when you engage in harsh interrogation techniques like waterboarding, eventually it comes back to bite you. And it has. It's just not, I think, necessary to win the war. But the people who were devising these interrogation techniques right after 9/11 were not criminals. They were what you said, Mr. Turner; they were Americans who were afraid that the next attack is on its way.

And if you're going to be balanced about this --

AUDIENCE MEMBER: (Off mike) -- torture.

SEN. GRAHAM: Have a good day.

If you're really going to be balanced about this, that needs to be told, too.

And we need to look forward. And Abraham Lincoln suspended habeas corpus. Okay? That's part of his legacy, is he thought the nation was coming apart, and he was right, and he was trying to keep it together.

A hundred thousand Japanese-Americans were put in jail for being nothing other than Japanese. Did we go back and try anybody for that abuse?

All I am saying is that these interrogation techniques were shared with members of Congress who somehow can't remember what they're told. And to me, that's the best evidence that we were trying to make policy, not violate the law.

And Mr. Luban, I don't believe these people are unethical. I just think they did what Mr. Turner said: They made some mistakes out of fear. And we've learned from those mistakes.

And here's my biggest fear: that if we keep doing this, and I bring a CIA agent in that tells the country, let me tell you what I got when I waterboarded somebody, or what I did to this person, let me tell you what I learned -- we're going to tear this country apart.

I agree with you. But there are other people out there who took a different view and understood the law was subject to different interpretations.

And the British may not have torture people in Northern Ireland, but they turned the people of Northern Ireland against them. That's the downside of what they were doing. They were legally, probably not torturing people -- I agree with you, Mr. Addicott -- but they made a mistake when it came to winning over the people of Northern Ireland.

And that's the point I'm trying to make. We have made mistakes in this war. We're going to make new ones. And I don't want to take off the table for this president the ability to do things beyond the Army Field Manual to protect this nation.

If we restrict ourselves to the Army Field Manual, shame on us. It is the Field Manual, written for soldiers to make sure they don't get themselves in trouble, not to get intelligence about the next impending attack.

Isn't that right, Mr. Turner?

MR. TURNER: I agree.

SEN. GRAHAM: It's a guide to the soldier in the field. It was never written to be the end all and be all of how you protect this nation. And if we adopt that theory, we've made a huge mistake and learned nothing from the past. And if we put it online and that's the only way we can interrogate somebody, we're stupid.

So let's don't misunderstand the mistakes of the past to the point that we restrict ourselves in the future from being good Americans but understanding that we're at war.

We have put people in Guantanamo Bay that were not enemy combatants. The net was cast too large. And some people have been put there that should have never gone. There are some people who've been let go that should've never been let go.

My goal is to have a process, Mr. Zelikow, that would allow us as a nation to hold our head up high and say, no one is in jail at Guantanamo Bay because Dick Cheney said so. The only people that are in jail in Guantanamo Bay are there because the evidence presented to an independent judiciary by our military passed muster with the judicial system. They're there because they're a military threat, and that when you try these people they're tried not because we hate them but because of what they did, and that that decision will go all the way up to the Supreme Court for review.

There is a way to move forward. There's a way to learn from the past. But if we look backward and we get the wrong message, we're going to make us less safe.

The message coming from the mistakes of the past are not to unilaterally surrender, not to treat these people as common criminals, because they're certainly not. The message from the past is, when you abide by American principles you're stronger than your enemy. When you go backward from those principles, it come backs to bite you.

But the principle that I'm advocating is an aggressive, forward- leaning, hit-them-before-they-hit-us attitude. Find out what they're up to, find out where they're getting their money, and keep them on their back foot. And we can do that, Mr. Soufan, without having to go back to the Inquisition.

MR. SOUFAN: I totally agree with you. We never --

SEN. GRAHAM: And I am so afraid that what we're doing here today is going to chill out the legal advice that's to come in the future and that we're putting men and women at risk of having their reputations ruined and of prosecution or civil lawsuits who did nothing but try their best to defend this nation.

Thank you all.


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