The House Judiciary Committee is taking testimony today from three witnesses regarding the DOJ and its approval of interrogation techniques and procedures in Gitmo and beyond.  Witnesses today include:

— John D. Ashcroft, former Attorney General of the United States
— Walter Dellinger, former Assistant Attorney General and Solicitor General
— Ben Wittes, Brookings Institution

The hearing began at 10 am ET, and is covered on C-Span3.  Should be some interesting testimony today on how DOJ attorneys in the OLC could come up with a theory that "it’s only torture if I say I thought it was torture before I tortured you."

Hearing being gavelled to order at 10:08 am ET.

Chairman Conyers laying out the fact that this is the fifth hearing in a series on these issues.  They have been prevously held before the Constitution subcommittee — today’s is held before the committee as a whole.  The subject today is a narrow one, about interrogation rules — but the overall inquiry is about the rule of law.  In prior hearings, we heard testimony including claims of executive power that said that no claim or act was out of bounds if the president thought it necessary.  We heard how dissenting views were dealt with in this administration — I have great concerns about this, especially when it results in the firing of the lawyer who provided the dissenting view.

Wants to speak with the witnesses today about the rule of law, how to strengthen it, and how to move forward.  We hope that we can restore meaning and significance to the promise that America does not torture and that we respect the rule of law.

LAMAR SMITH OPENING:  Says this is the ninth hearing, and like in baseball, this should be the end of the innings.  Says no one raised objections to the interrogation program at the time the briefings were given to Congressional members briefed on it.  [CHS notes:  I have yet to see him or anyone provide documentary proof of this assertion.  Anyone know of any?  He sure throws it around a lot, though…] 

Goes through various assertions about information obtained via "special interrogation methods that do not amount to torture."  Lamar Smith, not so great at terrorist name pronunciation — but he’s going through a litany of potential "actionable" intel pulled from people subjected to enhanced interrogation techniques" which allowed disruption of maybe dozens of attacks.  [CHS notes:  Again, providing no foundation for this assertion, either.]  Any conduct which might save hundreds of thousands of American lives does not shock the conscience. 

Talks about the Schlesinger report.  Goes into Al Kitani’s information — witness from the Brookings Institution today is a promoter of these policies, and will testify later.  There should be debates about limits, but we shouldn’t persecute anyone whose efforts allow us to sleep better at night.

Oath being administered to witnesses.

ASHCROFT OPENING:  Happy to be here today.  After 7 years with no attack, itis perhaps easy to forget how perilous the time was.  We were confronted with any number of threats and the knowledge that even the slightest mistake could result in more deaths.  We were to keep the nation safe within everything in our power and within the limits of the requirements of the law.  As we turn to re-evaluate what was done, we would do well to remember the dangers we faced and still face, and the catastrophic implications of error.  Second, review of OLC opinions reflects this Administration’s commitment to the rule of law — there is no room for the DOJ to think that it’s opinions are perfect, or that they should not be re-visited.  DOJ opinions uniformly prevailed in courts of appeals, cases where SCOTUS cases are binding. We did not do so well in SCOTUS, where the justices can depart from precedent.  [CHS notes:  Ahhhh, I was wondering what the excuse talking point would be for getting roundly smacked down by SCOTUS.]

It follows where OLC is presented with a close administration position and debatable question, it is required that the OLC provide all positions to the president for his consideration.  It is difficult to imagine a more important task during a time when the US had been attacked.

Ashcroft reviewed testimony from prior hearings, and documents and other accounts to refresh his recollection. 

In March, 2002, we captured Abu Zabaydah.  The administration turned to OLC for guidance as to the standard of interrogation of al qaeda detainees held outside the US under the anti-torture statute and the convention against torture.  OLC issued its opinion Aug. 1, 2002.  In Dec. 2002, DOD requested an opinion on the scope of federal and international law standards governing military interrogation of al qaeda detainees held outside the US.  Resulting opinion issued March 14, 2003.  Yoo has testified about his opinion issuance, including a fairly detailed account of the issuance of this.  Ashcroft does generally recall an OLC opinion was provided — a draft or drafts were sent to his office — and that he approved its issuance.

He doesn’t recall the process specifically the March 2003 memo, but he has no reason to doubt the process as described by Yoo in testimony.  Goldsmith’s withdrawal of the memo occurrd at Ashcroft’s approval.  He directed DOJ professionals to re-examine the work and to make adjustments as required by the law.  Deleted unnecessary discussions regarding the scope of Presidential power and the discussions of potential defense arguments for interrogators and others.  Did not make changes to prior thoughts on interrogation techniques — redefined the outer boundaries, not the base conduct approved.  When he was informed about concerns of overly-broad advice — the outer limits of which were never tested — he made certain those questions were better defined and answered.

WITTES OPENING STATEMENT:  Thank you for asking me to testify.  I do not intend today to focus on the past but on the future – that is on the contours of the interrogation laws we need for the future that are at once effective and consistent with American values.  The McCAin Amendment successfully addressed the military requirements — that the military publish and follow its rules, and the new Army Field Manual is a more specific version of this.  The policy Congress adapted in that statute is relatively easily adaptable to the CIA — though not by simply adopting the amendment wholesale.  Relatively small number of CIA-held detainees — represents the outer limits of what the US will do in terms of conduct.  The laws are inherently absolute injunctions not to do anything "too mean," but leaves open the questions of how far is too far and how much of it is too much.  We want these people to be aggressive.  We want them to walk up to the line of legality to stop the next attack.  On the other side is illegal conduct — but we have not defined it precisely, so we are asking these men and women to walk up to the line of legal responsibility without having the courage ourselves to define what the responsibility is.

Think of this as a CIA field manual.  Congress should permit the agency the use of any technique to which it would willingly attach its name.  This should be openly disclosed.  This may not be possible for the CIA, but Congress should require as much transparency as possible.

The tiny subset of high value detainees will stress the rules.  [CHS notes:  he invokes the ticking time bomb mindset here.]  We should be honest that sometimes there is a breach of the rules, and we should ask that the rules do something extraordinary — which is contemplate a breach of the rules where it might be required.  Wittes does not approve of interrogators being subjected to a felony for conduct — the president should stand alone accountable, assuming legal and political responsibility, for those interrogations he orders.  This would require regular briefings to Congress and that they have the opportunity to object.  Law should forbid president to order any deviations from CIA policy except for written notification to intel committees, identifying the need for enhanced techniques in the specific case and the techniques being ordered in that instance.  There should not be violation of international law on these.  And should require the president’s personal signature.  Should also require annual release of how many of these are done, so that some tracking of whether these are exceptional circumstances or becoming the norm, to allow for public discussion of the policy.

DELLINGER OPENING STATEMENT:  On 9/12/01, the NYTimes had a single sentence paragraph:  "It was a moment that split history."  Because I disagree with a number of things the witnesses have said, I think we should try and recall the pressures that the government faced after the attacks on 9/11 and under those extraordinary pressures.  Compliments Ashcroft and Wittes on work.  Nonetheless, he fears that we have not had an adequate defense of the torture memos, which more than anything else are the source of these hearings.  Doesn’t think it is a process that worked well in the end.  These memos were not close questions — as Goldsmith said, they were deeply flawed, sloppily-reasoned.  Ashcroft refered us to the fact that federal courts were closely divided in Hamdan, Hamdi, Boumidiene, and others — a lot of these were extraodinary cases of unusual circumstances.  But that is away from theseparate issue of the torture memos, where is is hard to defend the extraordinary reasoning of these memos which approved even the worst techniques of Saddam Hussein if they were intended to get information and not simply to inflict pain.

The assertion of a presidential authority to disregard criminal statutes enacted by Congress, signed into law by the president — the ability to disregard those statutes was a shocking assertion of presidential authority.  I think one of the things that led the SCOTUS to push for assertion of habeas is because the court felt that it did not have confidence that the processes in the absence of judicial oversight — after overreach in torture, in FISA, in other areas where there was disregard for the rule of law — and because of that they required judicial oversight.  Wittes offers very thoughtful approach, but it seems that giving the CIA a gap between what is cruelty and what is torture between the Army Field Manual, I’m not sure we want to be a nation who approves of cruelty as a matter of government policy.

President cannot give pardon in advance to facilitate the commission of a crime.  So doesn’t think that proposal from Wittes would be workable.  Need exception for extraordinary circumstances — the law should not make an exception, though — what we would expect the president to do is to authorize what was needed and then to face sanction afterward if any were needed.

CONYERS QUESTION:  Notion we haven’t been attacked means that we are doing things right — is that safe to assume?  Ashcroft says he believes we’ve disrupted plots, so that something we have done is right enough to disrupt some dangers.  But that doesn’t mean that we are doing everything right.  We need to constantly look at what we are doing — look at things intelligently.  We should always be looking at how we can improve our performance — how can we make changes so that we don’t have to be awakened by something that costs Americans lives.  Wittes says it isn’t an argument he’s ever made.  There have obviously been some successes, but there is room for course correction.  Dellinger says the threat assessments that come in daily must be extraordinary, and that credit is due the administration where we have been successful.  At the end of the day, the long-range national security is best served by our adherence to fundamental constitutional values that should make us more respected.

SMITH QUESTIONS:  Thanks for being nice to Mr. Dellinger.  Says that he thinks that it is traditional for Gang of 8 to be informed of techniques.  Ashcroft says that he wasn’t involved in any decision-making on that and assumes that these were classified and he declines to comment on that.  Asks Wittes about whether enhanced interrogation techniques areuseful?  Wittes says that he’s somewhat agnostic about this — he’s spoken to a number of interrogators in the past who are emphatic about the best information coming from non-coercive methods.  Where there isn’t time to develop these, we really don’t know what works according to the academic data.  They get into a back and forth on what "works and doesn’t work" means.  [CHS notes:  I’m gonna need more tea…]  Unless you know that it does not work, in the highest stake situations and there is time pressure, there will be enormous pressure on you to ratchet it up.  Asks Ashcroft, what are disadvantages to taking a criminal law approach to combat terrorism — Ashcroft says that he believes that sometimes it is the right approach.  Depends on the facts.  [CHS notes:  well, there goes that talking point, too.]

NADLER QUESTIONS:  You mentioned Abu Zubaydah — his interogation was done in March 2002.  If the Bybee memo was issued in August 2002, was that done without DOJ sign-off?  One FBI agent described the interrogation as "borderline torture" as comperable to SERE techniques.  Was waterboarding used prior to DOJ sign-off?  Ashcroft doesn’t know.  Ashcrot says that it is possible that there were changes in practices both before and subsequent to the issuance of those memos.  Goes into prior testimony by Levin regarding changes in practices — required changes in interrogation policies — as a result of the OLC memo issuance.  Going back and forth on whether the memo change behavior or not.  Ashcroft says that Levin may have better information on what was actual practice than Ashcroft does, but the DOJ’s position on the conclusions is that there wasn’t a big difference in terms of what was approved. 

COBLE QUESTIONS:  Not going to insert his oars into the waterboarding waters because it’s classified.  Do you think it has served a beneficial purpose, even though it’s controversial?  Ashcroft says that it was very valuable, according to reports he has seen, and he has no reason to disbelieve them.  Refers to Tenet information.  Asks Wittes about whether waterboarding is torture?  Wittes says that it is difficult for him to reconcile it with the torture statute — because waterboarding is supposed to induce the fear of drowning, and the statute says that anything which induces the fear of death.  Asks Dellinger if President can order assassination of Osama Bin Laden?  Yes, he can.  Might require revision of executive order.  If Congress enacted order?  Then, no, he couldn’t.  Asks if Clinton administration argued about following Congressional law?  Yes — all presidents have fought those laws which were felt to be unconstitutional, but should not and cannot lawfully refuse to follow a constitutional law.

SCOTT QUESTIONS:  Torture is illegal.  There is no exception if it is done in the time of a crisis.  If you got good info from torture, is that an exception?  Ashcroft says no, the product or outcome is not an exception either.  Go through a back and forth about what is or is not torture.  Ashcroft says ultimate definition of torture will be decided in the courts.  And then a back and forth on waterboarding.  Dellinger — is US is generally believed to be a nation which inflicts torture on detainees, what ipact would that have on our troops?  Puts our own troops at serious risk if we take the position that such techniques are lawful.  Then a back and forth about who legally is responsible where an OLC memo exempts behavior that is clearly problematic — Delinger says responsibility lies in OLC, but if employees are acting on memo’s conclusions, tough to hold them legally responsible for those actions with that reliance.

GALLEGLY QUESTIONS:  Success of being able to avoid attack since 9/11.  Many, many attacks that we are aware of that have been foiled by our interrogation techniques.  He’s going on a soliloquy here.  Asks Ashcroft about the Administration asking for legal opinions — Ashcroft says that shows a sensitivity to staying within the letter of the law.  [CHS notes:  Because, apparently, it’s never occurred to him that the administration was using he and the DOJ as their fig leaf to cover their actions after the fact and otherwise.]  Asks Wittes about rapport building.  If you are trying to protect something, you ahve a lot of incentive to resist whatever interrogation techniques are being used — that’s true in the criminal justice system as well, with non-cooperative suspects.  Whenever you are an in-custody detainee from an official trying to prevent you from doing something, including in some cases high intelligence and deep-seated convictions.

LOFGREN QUESTIONS:  Troubling subject — as I think about the various issues we have faced in this country, certainly we need to be vigilent.  Surely, that isn’t greater, though, than the threat posed by the USSR during the Cold War or the nazis during WWII.  We have always been able to face off against a threat to this nation within the bounds of our rule of law.  When we give up who we are, then we have already lost.  That is the seriousness of what we are doing here today.  Goldsmith wrote that you were fully supportive of his decision to withdraw and amend OLC memos.  Can you discuss this?  Notes that Yoo is an expert in national security and intelligence and wanted to serve in good faith.  When it became apparent during further examination that there were matters of concern brought to Ashcroft’s attention — my philosophy is that if we’ve done something that we can improve, then why would we not?  Where there were questions about appropriateness of the analysis and the scope of the opinions, he wanted those questions addressed.  Asks about the FBI’s concerns at Gitmo, and whether the FBI’s lack of participation has made things less safe because we are missing their expertise in interrogations.  Ashcroft says different cultures in different bureaucracies.  [CHS notes:  so, in other words, the FBI’s culture of following the law is just their thing?]  We don’t want to pull someone in from the battlefield to try them, we want to get intel from them and detain them until the battle is over.

GOODLATTE QUESTIONS:  Yet another discussion of what constitutes torture and what doesn’t.  Ashcroft says amendments enacted since he left office have made things more clear, which is a good thing.  Do you believe that any memo contained advice that was inaccurate?  The conclusions were accurate, but some of the reasoning in some of them was dubious and that is why it was withdrawn.  And why Bradbury and others have continued to go back over it.  Ask Dellinger whether it is easy to define torture.  No, except that the definitions reached in the 2003 memo seem to be clearly within the category of torture.  Doesn’t agree with a "shocks the conscience" standard, because there are examples that go beyond that — the 2002 memo says if it’s not explicitly intended to inflict pain then it would exempt almost all instances.  Same with the "organ failure or death" standard — no one would believe this was what Congress intended with the anti-torture statutes.

WATERS QUESTIONS:  Believe that information you received about waterboarding was not in a setting where you were being advised.  Ashcroft says that a report of waterboarding would be serious, but it wouldn’t define torture.  According to Ashcroft, if the CIA said it wasn’t waterboarding, even though others might describe it as waterboarding, then it wasn’t really waterboarding under the definition of waterboarding as a violation of law.  Do you think that advice was good advice and an accurate description of what went on?  Ashcroft believes that the conclusions of the memoranda as described by the CIA’s descriptions were good definitions.  Can’t say under oath he hasn’t had a second thought about it, but the DOJ has gone back over this numerous times as well since his time there.  If these practices were applied to American soldiers under this opinion, would these techniqus be totally unacceptable and even criminal?  Ashcroft says that his belief in these memos being good persisted even with his son serving two tours of duty overseas, including his having to deal with "evil chemistry" and the like.  Says that the statutes have consistently been interpreted to say that waterboarding as the CIA requested it is not torture.

CHABOT QUESTIONS:  Is waterboarding routine?  How many times has it actually occurred?  Ashcroft says he doesn’t know precisely, but his understanding is 3 times during interrogation processes through what he’s read in the news, although also done for military SERE training.  Now bringing up the child rape death penalty issue — which has so much to do with interrogation techniques on overseas detainees.  [CHS rolls eyes at the political theater.]  Ashcroft says when you are trying to figure out what the law is, you look at precedents and the written laws.  Of course there are disputes over areas of uncertainty, which is where arguments on the law occur.  Chabot says he had the honor of visiting Gitmo, and witnesses an interrogation that was going on there and saw the type of medical care they were receiving…gosh, it’s sure is swell at Gitmo for those folks held there, they’ve even gained weight!  A back and forth discussion between detainee and interrogator is what they saw, is that typical?  I suppose.  Ashcroft says a warm and fuzzy approach to everyone is not appropriate — there need to be rules that provide the right parameters, because its unrealistic to think we will only be up against a single kind of people.  We had 3000 people who died in the streets of America on the first day of the war on terror — a small grou of individuals could pose a huge threat to America, and it shouldn’t limit our actions.

WEXLER QUESTIONS:  Going back over some of Nadler’s questions.  Did you provide the WH or anyone in the Administration, DOD, CIA, that hypothermia, waterboarding or other actions were outside the anti-torture statute before the Bybee memo was issued?  Ashcroft says that if he had a recollection about that, it would be classified, so he can’t say — that is true for any opinion given by another attorney other than him.  Ashcroft won’t comment on meetings at WH on interrogation techniques, because they were in a classified setting.  Wexler says that there are reports via ABC news and Jane Mayer and others.  Ashcroft says that he’s appalled how much information is available from classified settings, says that he would be breaking the law to do so.  Wexler says reports indicate that you were uncomfortable, to your credit — and Ashcroft says he’s not going ot break the law, even if it’s to his credit.

LUNGREN QUESTIONS:  Asks Dellinger about Truman in WWII ordering dropping of the Atomic bomb on two occasions?  Dellinger says he doesn’t know that it was unlawful at that time.  Lungren is going off on a WWII blah-bity-blah on mustard gas now.  Cue the history channel marathon music.  Blah blah blah  [CHS notes:  Sorry, Lungren’s need for attention by being obnoxious bores me.  Am getting some water…]

DELAHUNT QUESTIONS:  This is as much about the constitutional order and the relationship between the branches and what is acceptable under our law and what is not.  Delahunt now saying that information Lungren put on the record contradicted by information Delahunt has.  Discussing Goldsmith’s criticisms of the OLC memo — and questions on people acting in good faith in reliance on these memos, but that could be an open question.  Delahunt says he’s concerned if reliance on any OLC opinion gets asserted, then you have a "get out of jail free" card on auto.  Dellinger says it can also work in reverse, if the President orders an opinion specifically to cover something, reversing a prior opinion on the law. 

KELLER QUESTIONS:  Tries to trip Dellinger up on a question which is legally vapid.  Dellinger tries to explain it slowly.  And failing to make headway on the vapid question, Keller moves on to the Chebacca Defense, and rbings up death penalty for child rape.  And then Keller gets snipey with Dellinger by reading a "Clinton did it" moment from the 9/11 Commission report on the Bin Laden assassination order.  [CHS notes:  So, let me get this straight — Keller would not have approved assassinating Bin Laden prior to the 9/11 attacks?  Really?!?  This Keller?!?  Oh puh-lease!  Can you say political theater and selective outrage?  I sure as hell can.] 

SANCHEZ QUESTIONS:  Did the president order either of the OLC memos?  Ashcrofts says he doesn’t think so, but even if he remembered he did, he wouldn’t reveal that as a matter of privilege.  Can’t answer whether the president would have spoken to OLC lawyers about this.  Did president approve of tactics in OLC memos?  Can’t answer because that is classified information in that area.  Did president approve waterboarding as a technique or as applied to specific detainee?  See previous answer.  Hypothermia or stress positions?  See previous answer.  Did Vice President approve?  See previous answer.  Did you ever advise on these tactics being crimes under War Crimes Act or the Anti-Torture Act?  Privileged communications.  UCMJ crimes?  Privileged communications.  General federal criminal laws of the US?  Privileged communications.  In March 2004, Comey refused to sign FISA extension — Comey testified that WH tried to force you to sign FISA law and it may have led to conflict with WH when you refused, and Iglesias suggested that you were asked to step down as a result?  Ashcroft takes a shot at Iglesias ("not a book writer like some people"), but says whatever conversations with the President or anyone else are confidential.  Says he hasn’t read the IG report on politicized hiring.

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