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Senate Judiciary: Torture, Interrogation And The FBI, Part III

Prior testimony from Philippe Sands before House Judiciary regarding interrogation memos pushing tougher methods, originating from the Pentagon, raising questions about the role of Haynes, Rumsfeld, and others, and the violations of the Geneva Conventions.

The Senate Judiciary Committee is webcasting the hearing live. Testimony from this morning can be found in liveblogging threads here and here. Witness statements as prepared for today have been added to the committee website for reading as well. Testimony will resume this afternoon live at 2:00 pm ET — there was a break in the middle due to five separate votes that were held in the Senate. We have reached:

Panel II:

— Jack Cloonan, Former FBI Special Agent, West Caldwell, NJ

— Philippe Sands QC, Professor of Law and Director of the Centre of International Courts and Tribunals, University College London

— Philip B. Heymann, James Barr Ames Professor of Law, Harvard Law School, Cambridge, MA

Jack Cloonan will conclude his opening statement and the other witnesses will have an opportunity to give theirs as well, and then there will be questions from the committee. I’m going to try and do a bit more liveblogging on this, weather permitting, but we have a storm moving in that may cause problems with my connection. Cross your fingers…

Here’s my question of the day: Michael Chertoff was head of the Criminal Division at DOJ during the time that FBI agents would have been filing complaints about abuse of prisoners via "coercive techniques" by military and CIA officers for prisoners in US custody. DOJ IG Fine testified this morning that a number of such complaints were filed with DOJ. How did Chertoff claim during his confirmation hearings for Homeland Security that he "was not aware of any discussion of harsh methods being employed at Guantanamo Bay while he ran the criminal division"? Because that does not square at all with what the IG’s findings appear to be, now does it? And I’d like Chertoff to answer that in full. Because if complaints were being filed by FBI agents in the field regarding serious allegations of prisoner abuse, and Chertoff as head of the Criminal Division had no knowledge of them, I’d sure like to know who was stovepiping that information away from him. Or whether Chertoff was lying during his testimony to Congress in that regard. So, which is it?

SEN. FEINSTEIN:  Calling the committee back into session.  The GOP is objecting to the committee meeting due to prolonged voting [CHS notes:  Can you say procedural maneuver from Mitch McConnell to keep damning testimony from continuing?], but Reid is going to move to recess so that the hearing may continue.  May be an interruption for procedural machinations by Republicans who didn’t even bother to show up for the hearing in the first place (CHS notes:  am paraphrasing what I think Feinstein really means here…*g*].

JACK CLOONAN:   Walks through the al Libi interrogation at Bagram.  Agents concluded that he would be high value and would be able to provide valuable information.  Before interrogations could proceed, FBI and CIA argued over procedure on this — CIA won, and al Libi was taken to parts unknown, perhaps Egypt, and has since recanted all of the information he provided under duress.  What Cloonan did learn from rapport-building:  that al qaeda unsuccessfully attempted to obtain fissionable material, learned that al qaeda planned on using airplanes as weapons long before 9/11 (sometime in the 1990s), operational details, experiments with chemical and biological weapons, and other very useful information.

My heart tells me that torture and execessive and inhumane conduct is immoral and unAmerican, and that they do not work.

PHILIPPE SANDS:   Goes through connections to the US — and support of Britain and the US for the rule of law and human rights.  Talks about the Bush Administration abandoning the Lincoln admonition about humane treatment of prisoners.  Committee should be familiar with these precepts from the Haynes confirmation hearings and Rumsfeld testimony.  His book tells the story of the Rummy memo on standing versus stress positions for prisoners.  To write the book, he met with a great number of people who were directly involved in the prisoner treatment, questions, etc.  — including Feith, Yoo, Haynes, and a number of other Administration officials.  Says he met twice with Haynes, and twice with Spike Bowman — the FBI agent who took complaints on treatment directly to the DOD. 

Sands believes that these techniques came from the top down, that they did not produce useful information, and that they were opposed fully by the FBI.  Concerns of FBI personnel at Gitmo were communicated directly to Haynes office at DOD.   Haynes was able to adopt that approach because he had knowledge of the contents of the Bybee and Yoo memos from the OLC.  The Administration has spun a false narrative that the impetus came from the bottom up — but Sands believes this is not true.

FEINSTEIN:  Interrupts.  The GOP leadership has objected to the committee proceeding.  [CHS notes:  Apparently, McConnell doesn’t want the rest of us to hear what Sands learned.  Guess we’ll all have to buy his book, eh?  No idea at this point how soon the hearing may or may not resume.  But given that Sands flew over from Britain to testify today, this is highly suspect and incredibly shitty of McConnell.]

Reid just recessed the Senate, and the committee hearing is back up again. 

SANDS CONTINUES:   Says that Common Art. II of the Geneva Conventions was violated.  There was early and direct involvement of the people at the highest levels of government, often through their lawyers.  Talks about the information that Haynes omitted in his Congressional testimony, including the visit to Gitmo by Addington, Haynes and Gonzales.  This is not just about conduct in treatment of detainees, it is also about a cover-up.  Sands says that he was told that the coercive torture techniques produced nothing of real value with any of these detainees.  The view in Britain is that once the door is opened on these torture techniques, it is virtually impossible to close it.  Quotes George Kennan:  "We must have courage and self-confidence to cling to our own methods…the worst that we can become is like those against whom we are coping."  Uncovering the truth is necessary to re-establish this nation’s leadership role, and in more effectively combatting the very real threat of terrorism.

PHILLIP HEYMANN:  I think you may have wanted me here to defend aggressive interrogation techniques.  But I’m here on false pretenses if that is so.  [In article he wrote with others,] we recommended that the AG needed to propose to the President a list of permissible techniques consistent with the ban on torture and consistent with the ban on techniques which are banned as cruel, inhuman and degrading which shock the conscience.   That list should be made available to the Senate and the House appropriate committees for oversight.  Refers to his written testimony which says that we do not need torture — leading investigators in Spain, Britain, Israel, FBI, and elsewhere that torture is not effective.  The problem that Congress faces is that the words of the laws have lost their meaning — because the Administration says torture is not acceptable, but they don’t regard waterboarding as torture, and we have no idea what they DO regard as torture.

The Administration must be bound by whatever list, unless the President himself says that we have an emergency so severe that we have to depart from that list.  Argues that informing Congress of what is being done does not jeopardize national security — that it is necessary.  We are at a stage now where originally Yoo didn’t agree that torture is forbidden — now we all agree that it is forbidden.  Congress has returned to the former standard, but we have no agreement on what "shocking the conscience" means — this is NOT a decision to be made by the president alone, that is a matter for the American public and the Congress representing their wishes.

FEINSTEIN:  Talking about potential of replacing a vague standard with the Army Field Manual standards.  We believe that there should be one standard accepted through the government — this may be the best way to proceed.

WHITEHOUSE QUESTIONS:   Says that OLC is testifying in the Intel committee on torture today.  Talks about Cloonan’s career — expresses personal appreciation for his service.  Goes back to his questions about Cheney and Rumsfeld downplaying torture as nothing big.  Give me your view on whether those comparisons fairly and accurately represent an accurate description?  Cloonan says stress positions and waterboarding — those amount to torture.  It is not a fair way to describe it.  Waterboarding is an extreme interrogation technique — it is torture — those who have undergone it will tell you that.  Stress positions, being hung from the ceiling, etc., those are not things we should treat lightly.  Sands says he’d agree with Cloonan — waterboarding would be considered in all circumstances in Britain as torture.  Whitehouse characterizes this as either not knowing what they were talking about when Cheney and Rummy opened their mouths and/or that they were deliberately trying to mislead the American public.

If you go back to Dec. 2001/Jan 2002, the Geneva Conventions and American law prohibited this conduct, so then you had people such as Doug Feith, David Addington, Haynes, Yoo, Bybee, etc., take action.  The Administration had a deliberate plan to disregard the law on this — and that public language "greenlighted" the behavior of troops on the ground.  Whitehouse askes Heymann about the US. v. Lee case.   [CHS notes:  see LHP’s brief on that for us here.]   Heymann finds it very unusual that Yoo would miss that case — and Youngstown as well.

FEINSTEIN QUESTIONS:  Administration saying that these aggressive techniques originating from JAG lawyers or commanders is not substantiated.  Haynes testified that he did not seek an OLC memo on this, that he didn’t have a copy of the memo, etc.  Sands met with Haynes on two occasions.  Says that Haynes was not asked if he had knowledge of the contents of the memo — says that he established through many conversations with other people at DOD — several generals and Doug Feith —  that Haynes had knowledge of that memo when he went down to Gitmo in 2002.

Heymann speaks up for Haynes.  Says when he worked on the article, sent them to Haynes for review — says Haynes asked him to come down and present them to Gonzales and Harriet Miers (the then WH counsel) — and he thinks that Haynes did so to try and move the Administration from looking at these questions from such a frightened posture. 

Sands says that Bowman spoke to Bob Dietz at DOD in 2002.  Was told that Dell’Orto was dealing with these issues.  In November, 2002, contacted him — was Haynes Deputy, told Bowman  they were already aware and looking into it.  Bowman received a further communication from an agent in Gitmo in Dec. 2002, called Dell’Orto who wasn’t in the office, so he spoke with Mr. Haynes — and Mr. Haynes fobbed him off in a short conversation.  Haynes would have had knowledge before the 27th of December, 2002, when he signed his memo — based on Bowman’s recollections.

Heymann asked about Art. II claims of power by the executive branch.  Refers to work done by Marty Lederman.  President may seize these powers in a critical situation — statutes are not absolute — where there is an emergency, such as a massive earthquake, attack, catastrophic flood, etc.    Question of what we want to happen when there is a grave emergency and what the President can do about it.  [CHS notes:  Heymann fails to discuss limitations on how long such powers can last — BIG question to punt there.]  Talking about Art. II powers requiring that a declaration of war from Congress must be present — President cannot ignore that as commander in chief, and the Founders were very specific about this in putting together the Bill of Rights and the US Constitution.

Sands says that it needs to also be put into an international context in terms of treaty obligations.  You violate international law to which you are a signatory — you expose yourself to international prosecution.  Imagine these arguments being made by a foe of the US.  The danger of this argument in a global world — by adopting these actions domestically in the US, you expose US troops to the very same treatment by the enemies of this country.

Cloonan says that most of the good intel comes from good old field work and well done interrogation where you get someone to open up.  When you get valuable, useful information, it is amazing how much time and effort you save from chasing after fruitless leads.  Cloonan says that when you get to that point, they almost feel in their heart that they have a moral obligation to cooperate with you.  Cloonan says that he’s dealt with perhaps a half dozen at higher levels — three or four were prosecuted and convicted, others put in witness protection program.  Those prosecuted actually walked in a pled guilty.   We have a tendency sometimes to poke fun at our legal system — when you have a member of al qaeda and they are told what their rights are, they understand that they don’t necessarily have to speak to you, they are perplexed by it — and it starts a discussion.  When you give them discovery and they get to look at it, they think this is an amazing system and they are showing me what they have on me.

Feinstein says she cannot help contrasting this with Khalid Sheik Mohammed and his treatment in US hands.  Cloonan says that he was indicted in 1996 for his involvement in a prior case — the FBI knew a lot of information about him.  That was a difficult situation for the FBI, because we didn’t have immediate access to him.  Talks about the interview with al Jazeera — Cloonan says he was a man who was very proud of what he did, he was celebrating his conduct, all you had to do quite frankly was give him an opportunity to tell his story.  We should not have had to engage in the conduct which we did in waterboarding him to get anything from him.  [CHS notes:  the disgust in Cloonan’s voice is palpable as he is talking about this.]

Feinstein concludes hearing — it’s adjourned. 

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com