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Senate Judiciary: Torture, Interrogation And The FBI

The Senate Judiciary Committee has a hearing this morning beginning at 9:30 am ET regarding torture techniques and interrogation — and what the FBI may have known about US use of these on prisoners.  Today’s witnesses include:

Panel I: 

— The Honorable Glenn A. Fine, Inspector General, Department of Justice, Washington, DC

— Valerie Caproni, General Counsel, Federal Bureau of Investigation, Washington, DC

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

It should be an interesting morning of testimony in Senate Judiciary.  Additionally, the House Foreign Affairs Subcommittee on International Organizations and Human Rights has a hearing scheduled for 2 pm ET regarding extraordinary rendition, diplomatic assurances and State Department knowledge thereof.   Lots of witnesses today on a difficult subject to hear, but I’ll try and cover what I can of it for everyone if there is a video or audio feed available.

Some resources on these issues:

— Scott Horton on an initiative against torture.  Also, Digby has more.

—  Prior testimony and an interview with Philippe Sands.  And his article on the Torture Team in Vanity Fair.  More on the torture consiglieri here.

—  The ACLU has substantial resources on torture available at their website.

— Our film salon with Stephen Grey on FRONTLINE/World’s Extraordinary Rendition.  More on this here as well.

— FRONTLINE’s The Torture Question

— Taxi To The Dark Side.  (Trailer is above YouTube.)

— The full monty from Balkinization on torture, OLC memos, rendition and other related legal considerations, including Marty’s most recent post on the redacted report on the Maher Arar case.  We discussed that case and more civil liberties violations in the book salon on Bill of Wrongs.

9:36 am ET:  Feinstein gavels the Committee into session.  

SEN. FEINSTEIN:  Says that there are five votes scheduled for 11:00 am ET.  She will recess the hearing at that tiime — and they will reconvene at 2:00 pm ET if necessary to continue testimony.

Talking about the issue of torture and the history of the US in confronting this in a tradition of American values.  Says the Bush Administrsation decided to go, as Cheney termed it, to the "dark side."  It damages our reputation in the world and serves as a recruitment tool for our enemies.  Makes it difficult to obtain intelligence and damages our efforts to achieve any justice.   You get better intel without resorting to torture according to people who have personal experience working with al qaeda and other terrorist cells — we are told by experts that coercive methods produce non-usable methods.  Have an FBI agent there to testify regarding past interrogations with al qaeda operatives — and how non-coercive methods have proved much more successful.

This hearing will examine why coercive techniques do not yield reliable and useful information for the most part.  Will also look at the latest DOJ report on FBI involvement in coercive methods and torture at Gitmo, Afghanistan, and Iraq.  To its credit, the FBI was steadfast in its refusal to use coercive methods.  They repeatedly voiced concerns regarding methods used by DOD, CIA and others.  Why wasn’t FBI leadership notified more quickly about concerns by more than 200 agents in the field about these troubling issues?  FBI should also be praised for notifying DOD about the coercive interrogations occurring at Gitmo.

Going through the FBI’s actions in doing legal analysis and sending it as notification to DOD general counsel’s office — including Jim Haynes.  According to Mr. Bowman, Haynes claimed that he didn’t know anything about these techniques, despite the fact that he recommended to Rumsfeld months earlier that he approve these very techniques.  Were these methods approved from the bottom up?  Or the top down as evidence is showing?  Historically, the Bush Administration has argued that the military officers and JAG lawyers on the ground requested these techniques.  In June 2006, then DOD Gen. Counsel Jim Haynes said the request was made by the commanding general at Gitmo and came with concurring opinion of his JAG.  Yet as facts come out, this has been discredited.  It seems the decision to use coercive techniques came from the highest levels of the Bush Administration.

Goes through timeline on the Yoo/Bybee memos.  And the visit of Addington, Gonzales and Haynes travelling to Gitmo to view interrogations.  Rumsfeld then approved harsh interrogations.  And in Dec. 2, 2002, Rumsfeld approved the harsh techniques for Gitmo personally.  Philippe Sands, who is here to testify, will talk about whathe has learned on how the decisions were made to approve this within the Bush Administration. 

It is essential that we obtain reliable and useful intel to fight threats to the US.  But these coercive methods must stop.  It is also imperative that we examine how complaints were handled by the FBI and others — and also to determine how these techniques were approved. 

SEN. SPECTER:  These "coercive techniques" are not to be tolerated in any form.  Waterboarding — Specter noting he voted against it as a technique.  Terrorism is an ongoing threat — and we need strong law enforcement techniques, but they have to be balanced at all times against constitutional rights.  Notes they have also taken up expansion of executive power.  His sense is that historians will look back in history at this period as a vast expansion of executive power.  [CHS notes:  doesn’t seem pleased with that, either.  Specter looks exhausted from recent treatment for his cancer.]  Says he was very disappointed when the SCOTUS denied cert. on the Detroit FISA case. — says Congress could have used some help on the standing issue.  Just one instance where the president has argued that Art. II powers allow them to disregard the rule of law.

Says the executive hasn’t kept intel committees informed about their actions.  Waiting for the Rasul decision to see if habeas will be reinstated.  Specter says that he makes these comments int he broader context to restrain executive authority.  There needs to be greater restraint than what the executive branch has undertaken.

It was Specter’s hope that they would have Gen. Hayden testifying here today.  Contrasting Army field manual, FBI techniques and CIA — there have been representations that these techniques have yielded valuable information but, candidly, Specter hasn’t seen that.  Talking about varying opinions, guidelines, permissible techniques — and public statements by folks from Bush Administration.  Snarks at Dershowitz and his "torture warrant" theory.  Talk about the so-called "ticking bomb" case.  Specter says that we are dealing in very, very deep water — and that this should have a very heavy glare of Congressional analysis.

SEN. WHITEHOUSE:   Thanks Feinstein for holding the hearing.  As you know months ago when he proposed the limitation on the CIA’s use of these techniques, the only person who co-sponsored it with him was Feinstein.  [CHS notes:  kissing some serious DiFi behind, wonder what they have been negotiating behind the scenes?]  Talking about a prior Intel hearing where evidence was taken on the relative values of coercive versus regular techniques — the testimony and report have been declassified, and asks that it be entered into evidence.

Feinstein says 7 minute rounds, following the "early bird" rule, alternating between sides — and brings Panel I witnesses in for testimony.  Doing intros for both witnesses. 

GLENN FINE, DOJ IG:  Thanks committee for bringing him in for testimony.  Discussing how many witnesses, trips to Gitmo, and other investigative methods.  With limited exceptions, were not able to talk with FBI employees who may have been involved in observing CIA facilities.  Did talk with them regarding Gitmo and other US facilities abroad.  Says that the vast majority of FBI agents adhered to requirements for interrogation limitations.  CIA used techniques that would undoubtedly not be allowed under FBI’s requirements.  Said that FBI’s counsel at that time — not as effective, failed to take into account an end-game (i.e. for later trial use of evidence, etc.), and other problems.

The tension between FBI and DOD/CIA came to a head of al Quatani.  Used stress positions, 20 hour interrogations, putting a dog leash on him and making him walk around with it on, stripping him naked in front of a female, pouring water on his head, and instructing him to pray to an idol shrine.  They found no evidence that the concerns expressed to DOD by FBI had any effect on later DOD decisions.  Interrogations were held at DOD facilities, with FBI as observers only.  FBI personnel were prohibited from participating in interrogations which violated FBI policies — but FBI did not provide timely guidance to agents early on in dealing with these violations questions.  Most FBI employees adhered to FBI strategies in these military zones.

FBI could have pressed harder on abuses by other agencies, but should be commended for adhering to its own guidelines and for its efforts to change behavior of others. 

VALERIE CAPRONI:  Talking about the FBI’s role in bridging terrorist threat investigations and law enforcement within the US.  Happy to see the report from the IG’s office that most FBI agents adhered to FBI policy in not participating in interrogation activities outside what was approved conduct.  There is no evidence that any FBI agent participated in any detainee abuse such as occurred at Abu Ghraib.  

Discusses FBI policy once coercive methods were discovered to be used by other agencies — prohibition of FBI agents in participating, and asked to report any conduct where other agencies were abusing prisoners to the appropriate oversight office at that agency.  And they did so.

SEN. FEINSTEIN QUESTIONS:  Asks about waterboarding — no FBI agents reported that waterboarding was used in their presence.  Isolation was used — sometimes as long as 30 days.  There was a whole series of tactics used on al Quatani, and isolation wasn’t the most used tactic on him.  FBI agents observed a variety of techniques — Feinstein lists a number of them which have been made public through FBI e-mails made public by ACLU through FOIA requests.  FBI agents raised objections to these and sought guidance from HQ in 2002.  Finally in 2004, FBI general counsel issued an opinion policy on what agents should do if they witnessed abuses.  Why did it take 2 years?  Fine says that Mueller issued a policy statement in 2002 — agents raised more concerns with FBI HQ, DOD, DOJ and also National Security Counsel.  DOD dismissed these concerns.  DOJ and FBI believed that DOD tactics were not effective and should have been changed, but DOD declined to make changes.

Concerns were made to DOJ in the criminal division.  Ashcroft raised concerns with DOD and NSC — but Ashcroft declined IG’s request for an interview (?!?).  The concerns mainly were raised with regard to effectiveness of the techniques, not as much the legality.  Agents felt these techniques were not producing effective intel, and they were worried about the long-term investigative problems with missing  information that could have been gleaned otherwise with more effective techniques.  Going back and forth about the details on how things were handled on-scene and off-scene.  There was confusion about what was and was not authorized, and complaints varied as to what the agents in the field understood on that.

SPECTER QUESTIONS:  What did FBI do to blow the whistle on abusive techniques?  And what did Director Mueller do about this?  Seems to Specter that where there is a question of torture, there is a duty to go straight to the top in reporting abusive tactics.  To whom did Mueller report abusive violations?  Fine demurs on an answer.  Specter dissatisfied with this — did Mueller speak with AG?  WH counsel?  President?  What did Mueller say about this?  Meuller said that the legality of this was being assessed by DOJ, that it was changing, that people in OLC were "blessing" some of these tactics.  As a result, Mueller decided that hsi agents would not be involved in these techniques.  Specter says that is insufficient — saying your agents would not participate doesn’t stop the techniques from being used or prevent prisoners from being abused.

Ashcroft was aware of the complaints.  Did your investigators question Ashcroft?  He declined to be interviewed.  Dep. AG Thompson didn’t remember the complaint specifics coming to him.   Fine says they interviewed Chertoff — no follow-up on what Chertoff said, though (CHS notes:  wasn’t he chief of the criminal division at that point?  I want follow-up on this.)  Were tactics used by DOD torture, in your opinion?  Fine says they didn’t do a legal analysis — their role is to determine what happened, provide facts and provide reports on this.  Specter says give us a conclusion — were DOD tactics torture?  How about the "ticking bomb" situation that we theorize so much — is there any circumstance which would warrant these excessive interrogation circumstances?  Fine says he could see circumstances, but it should never be something that is widespread or used regularly.  Specter asks if there should be an exception for a ticking bomb?  Fine says that he’d have to think about this at more length.  Specter presses for an answer now.  Warrant? To the president?  What?  

SEN. FEINGOLD QUESTIONS:  Commends FBI agents for not participating.  Asks Caproni whether these complaints were raised with DOD, WH, NSC, or other agencies?  Caproni says when she arrived at FBI — n 2003 — director had already decided that they would not participate in these activities.  First she learned about excessive techniques was when Abu Ghraib broke — she had only been at Bureau 6 months at that point.  Caproni did not raise these concerns with DOD, NSC, and others.  Says that she’s learned historically what happened, but she did not witness any complaints directly.  Goes to Fine.  Goes through the questions about techniques — talking specifically about short-shackling — that DOD called it back as a technique, but it kept being used at Gitmo for a year after Rumsfeld called it back as authorized.  Fine says that often the information was not getting down to the lower-level ranks when decisions were made at high levels.

Were told that Chinese officials did come to interrogate Uighurs.  Prior to the Chinese interrogation visit, they were woken up every fifteen minutes the night before to put them into a position "to be cooperative" with the Chinese for this interrogation. 

How was the policy conveyed to FBI agents on the ground — it was orally conveyed to all agents in the field.  Why no written guidelines?  Caproni says she doesn’t know — as soon as they realized there was no written guidance, they issued it.  Fine says there should have been guidance, it wasn’t focused on — it’s a complicated area, not simply what you participate in, but also what other agencies are allowed to do — what you should report, when you should do it and how.  Should have been in writing.

WHITEHOUSE QUESTIONS:  Talking about reasons there were concerns.  First reason, to preserve evidence for criminal prosecutions?  Caproni says that wasn’t the major motivating factor because this was not a criminal investigation per se but the priority was higher for intel gathering.  Fine says that making these defendants unusable  for criminal cases in the US.  The agent just leaving an interrogation was not something that preserved evidence, let alone that halted the questionable conduct.

Second issue is that coercive methods were not as effective as traditional techniques.  Yes — big concern for director.  Third is legality of the conduct.  Caproni says that at the time this became crystalized, there were in fact existing opinions — it shifted the debate to "it’s illegal" to "ok, the OLC said it’s legal, but the FBI doesn’t want to be involved in something that is ineffective, potentially illegal and questionable for FBI agents who would be left exposed legally."  The answer was no.  Did FBI make any efforts to review the OLC opinions?  Not to Caproni’s knowledge.  She says OLC’s opinions are binding on FBI conduct.  Whitehouse says ultimately a court gets the last word — Caproni says perhaps, but first the issue has to be joined in a courtroom, which has not happened.  Caproni says there was a point where she asked to see these opinions and she was not given them to see — she says she didn’t press, because she did not have employees who were at risk because their employees were not participating.  Says that she has not still been able to review these opinions fully because they are still classified in part.

Has not researched on her own on this.  Whitehouse brings up that agents may have to bring this up in court and that those agents would be exposed, and she should review.  You said you have opinion on OLC opinions, what is it?  Caproni says it would not have been her opinion.

Am going to start a fresh thread… 

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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