Truth Commission on Bush Administration Policies - Mar 3, 2009

Transcript Text

  • SEN. LEAHY

    At 00:00:29
    8 minutes

    Thank you, all, for being here, and a very
    distinguished panel. And I couldn't help but think, in the wake of
    the tragic attacks on September 11th, we all came together as
    Americans. Party labels meant nothing, being Americans meant
    everything. We need to do so again in these difficult economic times.
    Regrettably, too many seem mesmerized by the siren call of talk-radio
    personalities and extreme special interest groups. And prior to
    grasping the bipartisan hand that President Obama has extended, many
    want to play out the conservative play book to obstruct and delay.
    This is a time when conservatives, liberals, Republicans and
    Democrats should be setting aside party labels to come together first
    and foremost as Americans. We saw nothing did more to damage
    America's place in the world than the revelation that our great nation
    stretched the law and the bounds of executive power to authorize
    torture and cruel treatment. Now, when the last administration chose
    this course, it tried to keep its policies and actions secret. I
    think they did that because they knew they couldn't stand the scrutiny
    of an open public airing.
    How many times did President Bush go before the world to say that
    we did not torture and that we acted in accordance with law? Now,
    there are some who resist any effort to look back at all, others are
    fixated only on prosecution, even if it takes all of the next eight
    years or more and divides this country.
    Over the last month, I've suggested a middle ground to get to the
    truth of what went on during the last several years and in a way that
    invites cooperation. I believe that might best be accomplished
    through a nonpartisan commission of inquiry. I'd like to see this
    done in a manner that removes it from partisan politics. Such a
    commission of inquiry would shed light on what mistakes were made so
    we can learn from these errors and not repeat them, whether in this
    administration or the next administration. So today's hearing is to
    explore that possibility.
    I'm encouraged that many have already embraced this idea,
    including several of the distinguished witnesses who will testify
    today. These are witnesses that speak from experience about the need
    to uncover the truth and shed light on our policies for the good of
    our nation, to ensure that we have strong national security policies,
    to ensure we do not repeat mistakes. I look forward to that
    discussion.
    The Supreme Court Justice Anthony Kennedy said in a recent
    Supreme Court decision, "Restoring our great writ of habeas corpus,
    the Constitution is not something that any administration is able to
    switch on or off at will." And so we shouldn't be afraid to look at
    what we've done or to hold ourselves accountable, as we do other
    nations when they make mistakes. We have to understand that national
    security mean protecting our country by advancing our laws and values
    and not by discarding them.
    This idea for a commission of inquiry is not something to be
    imposed but its potential is lost if we don't join together. Today is
    another opportunity to come forward to find the facts and join all of
    us, Republicans and Democrats, in developing a process to reach a
    mutual understanding of what went wrong and then to learn from it. If
    one party remains absent or resistant, the opportunity can be lost,
    and calls for accountability through more traditional means will then
    become more insistent and compelling.
    I held earlier hearings exploring how our detention policies and
    practices from Guantanamo to Abu Ghraib have seriously eroded
    fundamental American principles of the rule of law. I think that
    we're less safe as a result of mistakes of the last administration's
    national security policies.
    I also believe that in order to restore our moral leadership, we
    must acknowledge what was done in our name. We can't turn the page
    unless we first read the page. I do not want to see us in a case --
    (inaudible) -- the mistakes we made by countries who themselves have
    some of the worst and oppressive policies.
    President Obama, Attorney General Holder and others in the new
    administration are already hard at work on detainee interrogation
    policies to determine the best way to form effective and lawful
    national security policies. I think a commission of inquiry would
    address the rest of the picture. With a targeted mandate, it could
    focus on the issues of national security and executive power in the
    government's counterterrorism efforts, including the issues of cruel
    interrogation, extraordinary rendition and executive override of laws.
    We've had successful oversight in some areas. In others, we
    remain too much in the dark. People with firsthand knowledge are
    being invited to come forward and share their experiences and insight,
    not for the purposes of criminal indictments but to gather the facts.
    And such a process could involve subpoena power, even the authority to
    obtain immunity, to secure information or in order to get to the whole
    truth. Of course, as in any such inquiry, it would be done in
    consultation with the Justice Department. And no such inquiry rules
    out prosecution for perjury.
    Vice President Dick Cheney and others from the Bush
    administration continue to assert that their tactics, including
    torture, were appropriate and effective. I don't think we should let
    only one side define history on such important questions. It's
    important for an independent body to hear these assertions but also
    for others if we're going to make an objective and independent
    judgment about what happened and whether it did make our nation safe
    or less safe.
    And just this week, the Department of Justice released more
    alarming documents from the Office of Legal Counsel, demonstrating the
    last administration's (pinched ?) view of constitutionally protected
    rights. The memos disregard the Fourth and First Amendment, justify
    warrantless searches, the suppression of free speech, surveillance
    without warrants and transferring people to countries known to conduct
    interrogations that violate human rights. How can anyone suggest such
    policies do not deserve a thorough, objective review?
    I'm encouraged that the Obama administration is moving forward.
    I'm encouraged that a number of the issues we've been stonewalled on
    before are now becoming public. But how did we get to a point where
    we were holding a U.S. legal resident for more than five years in a
    military brig without ever bringing charges against him? How did we
    get to a point where Abu Ghraib happened? How did we get to a point
    where the United States government tried to make Guantanamo Bay a law-
    free zone in order to deny accountability for our actions? How did we
    get to a point where our premier intelligence agency, the CIA,
    destroyed nearly 100 videotapes, evidence of how detainees were being
    interrogated? How did we get to a point where the White House could
    say, if we tell you to do it, even if it breaks the law, it's all
    right because we're above the law? How do we make sure it never
    happens again?
    Senator Specter.

  • SEN. ARLEN SPECTER (R-PA)

    At 00:08:38
    5 minutes

    Thank you, Mr. Chairman.
    I have repeatedly said on the Senate floor that the period from
    9/11, 2001, to the end of the Bush administration has seen the
    greatest expansion of executive power in the history of our country.
    And as chairman and later ranking on this committee and on the Senate
    floor, I've taken very positive steps to try to deal with that. For
    example, pressing for judicial review of the terrorist surveillance
    program, pressing the 6th Circuit and later the Supreme Court of the
    United States to review the decision of the Detroit Federal Court
    declaring the terrorist surveillance program unconstitutional, offered
    amendments on the Senate floor for votes to reinstate habeas corpus in
    the wake of actions to deny habeas corpus. I've led the fight to
    eliminate the impact of signing statements, to try to provide some
    balance with the need for the fight against terrorism, which I've
    supported, managing the Patriot Act to try to provide some balance.
    When this idea of a so-called truth commission first surfaced, I
    said it was unnecessary because you had a change in administration.
    You could look in the front door, ask for directions to the relevant
    filing cabinet, go in and open the drawer and find out anything you
    wanted to know. Well, that's been done. And it's being done to a
    greater extent. You've had some rather startling disclosures with the
    publicity in recent days about unusual, to put it mildly, legal
    opinions which were issued to justify executive action, very curious
    use of the doctrine of self-defense. That's a doctrine for
    justifiable homicide. And it is a stretch to say for defense against
    potential terrorist attack the whole range of activities could be
    undertaken.
    Well, they're all being exposed now. They are in fact being
    exposed. According to The New York Times this morning, they're going
    further than just the exposes but they're starting to tread on what
    may disclose criminal conduct.
    The Times reports this, "The Office of Professional
    Responsibility at the Justice Department is examining whether certain
    political appointees in the Department knowingly signed off on an
    unreasonable interpretation of the law to provide legal cover for a
    program sought by White House officials." Well, if they did that
    knowingly, there's mens rea. I'd have to search the Criminal Code.
    But it sounds to me like it may fall within criminal conduct.
    What we do in our society is we undertake those investigations
    where we lawyers use the word "predicate," that is, "some reason to
    proceed." We don't go off helter-skelter on -- a term which has been
    frequently used, I don't care much for the term, but it articulates it
    -- "a fishing expedition" as to what, as to what we're going to do.
    So, it seems to me that we really ought to -- we ought to follow
    a regular order here. You have a Department of Justice which is fully
    capable of doing an investigation. They're not going to pull any
    punches on the prior administration.
    I would ask unanimous consent -- I don't often insert things into
    the record, and this is my first time for inserting an article in
    Politico, but there is one from yesterday's edition which is by a
    former Justice Department official, Hans A. von Spakovsky, who raises
    it, and succinctly stated that "we have never seriously indulged in
    criminalizing our political differences," and asks that -- the point
    being that the current administration will have a successor -- or all
    administrations have successors.
    I would ask -- (inaudible) -- Mr. Chairman, also to put in this
    elegant picture of the Chairman, if that can be --

  • SEN. LEAHY

    At 00:14:03
    18 seconds

    I could care less about the picture, but of course
    the article will be put in the record. And in so far as it's full of
    -- (inaudible) -- ad hominem attacks, but more strawmen than you would
    have in a hayloft, I will then put a response to it in the record.

  • SEN. SPECTER

    At 00:14:21
    2 minutes

    Well, I've seen a lot of pictures of Senator
    Leahy, few as good as this -- (laughter) -- many that I've seen with
    him -- here you are fellows -- many that I've seen with him. I'm in
    the picture too, obstructing his handsome profile. But, the substance
    here is, I think, worth noting.
    We've had the statements by President Obama wanting to look
    forward and not backward. I think that's really the generalization,
    although I would not mind looking backward if there's a reason to do
    so. If there's a predicate, if we have evidence of torture, torture
    is a violation of our law. Go after it. If there's reason to believe
    that these Justice Department officials have knowingly given the
    presidents cover for things they know not to be right and sound, go
    after them.
    I think it underscores another issue -- if I may say this
    parenthetically. The Office of Legal Counsel is a powerful office,
    and some of the opinions they -- that are now disclosed are more than
    startling, they're shocking. And we look back at prior presidents,
    most of them haven't been lawyers: President Eisenhower, President
    Kennedy, President Johnson, President Nixon was -- although he did
    questionable legal things, President Carter wasn't, President Ford
    was, neither President Bush was, and President Clinton was. So, you
    have presidents taking advice from lawyers where they don't have legal
    training themselves.
    We're considering Office of Legal Counsel today, a very, very
    important position. But, I think what we've seen Office of Legal
    Counsel do in the past ought to give us pause to do a little better
    job -- perhaps, in this committee, on whom we confirm. I regret that
    I have other commitments. I'm going to have to excuse myself but I
    hope to return to participate in the questioning.
    Thank you, Mr. Chairman.

  • SEN. LEAHY

    At 00:16:39
    21 seconds

    Thank you.
    I'd note that Ambassador Pickering also has to leave early
    because of a commitment out of the area.
    Senator Feingold is the chairman of the Constitution
    subcommittee, which has jurisdiction over this matter, and I yield for
    a brief statement.

  • SEN. RUSS FEINGOLD (D-WI)

    At 00:17:00
    1 second

    I thank you --

  • SEN. LEAHY

    At 00:17:01
    4 seconds

    Senator Kaufman, why don't you move on down here
    with us, please.

  • SEN. FEINGOLD

    At 00:17:05
    3 minutes

    Thank you, Mr. Chairman. I have to -- I really
    do regret not being able to stay. I'm going to see the British prime
    minister at a joint meeting. But, this is a terribly important
    hearing. Mr. Chairman I commend you for having this hearing and for
    your proposal to establish an independent commission of enquiry.
    Long before the election it was clear to me that one of the most
    important tasks for the new president was going to be restoring the
    rule of law in this country. I chaired a hearing on this topic in
    September, and nearly 40 law professors, historians, advocates and
    experts testified or submitted testimony, including one of our
    witnesses today, Mr. Schwarz. The record of that hearing is the most
    detailed collection of analysis and recommendations on what needs to
    be done to reverse the most damaging decisions and actions of the last
    administration.
    The Obama administration has already taken several enormously
    important steps in the right direction. Among them, ordering the
    closing of the Guantanamo Bay Detention Center in a year; requiring
    adherence to the Army Field Manual's guidance on interrogation
    techniques; reinstating the presumption in favor of disclosure under
    the Freedom of Information Act; ending the very possibly illegal
    detention of Ali al-Marri by indicting him in a criminal court; and
    just last week releasing nine Office of Legal Counsel memos that the
    Bush administration had insisted on withholding from Congress and the
    American people. So, I am pleased and gratified that President Obama
    and his advisers recognize the need to take these actions, and
    actually took them quickly. It gives me great hope for the future.
    A crucial part of restoring the rule of law, in addition, is a
    detailed accounting of exactly what happened in the last eight years
    and how the outgoing administration came to reject or ignore so many
    of the principles on which this nation was founded. I regularly hear
    from my constituents back home about this and they're absolutely
    right, there can be do doubt that we must fully understand the
    mistakes of the past in order to learn from them, address them, and,
    of course, prevent them from recurring. At the same time, there
    should not be a focus on retribution or pay-back, and such an effort
    should not be used for partisan purposes. That is why your proposal,
    Mr. Chairman, is so important. Your proposal is aimed at finding the
    truth, not settling scores.
    On the question of immunity, I think we should tread carefully.
    There are cases that may require prosecution, and I would not want a
    commission of enquiry to conclude that. Those who clearly violated
    the law and can be prosecuted, should be prosecuted. On the other
    hand, the country will really benefit from having as complete a
    telling of this story as possible. So the ability of the commission
    to seek immunity for low-level participants certainly needs to be
    considered. How to do this is one of the complex questions that I
    hope will be explored in this hearing.
    I do support the idea of an independent fact-finding commission,
    as opposed to relying solely on the regular committee structure. I'm
    on two of the relevant committees, and the members of Congress who
    serve on them are very hard working. There is much important
    investigative work that can be done in committee, but there are also
    significant time, staffing and jurisdictional constraints. I think a
    truth commission that the chairman has proposed is the best way to get
    the comprehensive story out to the American people and the world.
    One final point, Mr. Chairman: While a commission of enquiry is
    the best way to get the facts out, Congress, the Justice Department
    and the public should decide what to do with those facts. So I would
    be reluctant to task the commission with coming up with detailed
    recommendations for action. If we focus the commission on gathering
    the facts, there may be less wrangling about who is going to be on it,
    which could move the process forward a lot more quickly. I'd rather
    see investigative professionals on this commission than policymakers
    and partisans.
    So, I am looking forward to reviewing the testimony later. And,
    again, Mr. Chairman, I thank you so much for your very strong and
    important leadership on this issue, and I thank you for the
    opportunity to -- (inaudible) --

  • SEN. LEAHY

    At 00:20:43
    2 minutes

    Thank you very much. I know you're one of the
    Judiciary committee members who also serves on the Intelligence
    committee. And without going into some of the -- (inaudible) -- some
    of the briefings we've all had on that, you understand the need for
    it.
    Our first witness is Ambassador Thomas Pickering, (who) currently
    serves a vice chairman of Hills & Company. Ambassador Pickering has a
    distinguished Foreign Service career, including as under secretary of
    state for political affairs from 1997 to 2000. The ambassador holds
    the personal rank of Career Ambassador. That's the highest in the
    United States Foreign Service.
    Prior to becoming under secretary, he served as our ambassador to
    numerous countries, as well as ambassador to the United Nations under
    President George H.
    W. Bush. He won the Distinguished Presidential
    Award; the Department's Distinguished Service Award. He's received
    honors from numerous universities; a member of the International
    Institute of Strategic Studies; the Council on Foreign Relations;
    Bachelors Degree, cum laude, from Bowdoin; a member of Phi Beta Kappa;
    a Fulbright Scholarship to the University of Melbourne, where he
    received a second master's degree.
    On a personal basis, I've been briefed -- various countries, and
    at the U.N. by Ambassador Pickering. I hold out as an example to new
    ambassadors that when we come there we actually want to have briefings
    of depth and substance. He fulfilled that. We would have public
    briefings, and occasionally briefings when we'd go into a secure
    place, in one of the bubbles where -- even more depth. In every
    single instance, answered every question that was asked, by both
    Republicans and Democrats -- told us what was going right and what was
    going wrong.
    And Ambassador, I just wanted to state publicly how much I have
    appreciated those briefings over the years. Please, it's your -- go
    ahead.

  • MR. PICKERING

    At 00:22:44
    7 minutes

    Thank you, Mr. Chairman, very much. And thank
    you for your very kind introduction. And thank you, members of the
    committee, for having us here and affording the opportunity to testify
    on this extremely important subject.
    I'm honored to appear before you today and to join and be a
    member of this very distinguished panel.
    I believe the question of how we, as Americans, should come to
    grips with our handling of detainees in recent years is critically
    important for our country. It is essential to have a full
    understanding of what happened, why, and the consequences of those
    actions in order to chart the right course for the future.
    I come before you today to urge you to support the establishment
    of a commission to examine the detention, treatment, and transfer of
    post-9/11 detainees. In calling upon the president to create such a
    commission, I have joined with a number of others, including a former
    U.S. Army general, a former FBI Director, the president of the United
    Churches of Christ, an internationally respected lawyer and scholar
    and others who are experts on commissions of this nature.
    My convinced support of the commission stems from my over 45
    years of service to this country in the military, in diplomacy
    overseas and as a senior official at the Department of State. I
    believe that a commission on the handling of detainees is vital to our
    country's future -- to its security, to its standing in the world, to
    our collective commitment as a people to honor, respect and remain
    committed to our founding ideals in all that we do.
    Let me be clear as well that I am not a lawyer and not qualified
    to address technical, legal questions involving the advice of trained
    counsel. I would like to speak first very briefly on the purposes of
    the commission and then talk about some of its principal features.
    A commission of the kind we are proposing is needed in order to
    arrive at an in-depth, unbiased and impartial understanding of what
    happened, how it happened, and the consequences of those actions. By
    gathering carefully all of the facts, the commission can tell the
    whole story and not just of each individual agency, studied in
    isolation, but of how all parts of the U.S. government interacted in
    the handling of detainees. Indeed interagency aspect is critical, as
    is how the various agencies related to the most senior officials in
    government.
    On the basis of this full and comprehensive review, the
    commission can then make recommendations that will help guide us in
    the future. This process is fundamentally about understanding where
    we have been in order to determine the best way to move forward.
    Some might argue that such a commission is not needed. After
    all, President Obama has issued a series of executive orders that
    chart a new course on detention and interrogation policy. As
    important as these orders are, I believe that something more is
    needed. It's not enough to say that America is discontinuing the
    policies and practices of the recent past. We must, as a country,
    take stock of where we have been and determine what was and is not
    acceptable, what should not have been done, and what we will never do
    again.
    It is my sincere hope that this commission will confront and
    reject the notion, still powerful in our midst, that these policies
    were and are a proper choice and that could be implemented again in
    the future.
    Such a commission will strengthen our credibility in promoting
    and defending our values and advancing a better, safer world. As the
    9/11 Commission found, the United States must engage in the struggle
    of ideas around the world in order to combat extremism and ultimately
    to prevail against terrorism.
    To do that effectively, Mr. Chairman, the commission found that
    the U.S. government -- and I'm referring to the 9/11 commission --
    "should offer an example of moral leadership in the world, committed
    to treat people humanely, abide by the rule of law, and be generous
    and caring to our neighbors". It is far better for American foreign
    policy if we acknowledge willingly what went right and what went wrong
    than to address by bits and pieces of the story as they emerge over
    time this particular question.
    It's far better for our country and our standing in the world if
    we examine critically our own record and take account of what
    happened. To the extent the Guantanamo detention camp, Abu Ghraib,
    secret detention sites, and torture and abuse enhance the efforts of
    our adversaries to recruit others to join their ranks and to make a
    case against us, we cannot quietly simply turn over the page. We must
    engage in a genuine effort to take stock of these policies and
    actions. We ought to acknowledge mistakes that were made, but we also
    ought to commit not to do them again.
    It is a critical step in neutralizing our adversaries' narrative
    about the U.S. abuse of detainees. Only in so doing can we say to
    ourselves that the world -- and to the world that we have not just
    turned the page on the past, but we have confronted it, learned from
    it, and strengthened our resolve to remain true to our principles.
    Only great countries, Mr. Chairman, confident in themselves, are
    prepared to look at their most serious mistakes, to learn from them
    and to lead on forward. The United States has been and still is
    today, I believe, that kind of country.
    Let me conclude briefly by just reviewing a few principal
    features of the commission:
    The question of what such a commission would look like, its most
    important attribute is that it should stand above politics. It should
    report to and answer to the American people. To achieve its vital
    purpose, the commission ought to be comprised of persons whose duty is
    to the truth and to our nation's founding principles.
    Second, the commission should operate in public to the maximum
    extent possible. Public proceedings and reports should be the norm.
    Third, the commission should be a separate and distinct process
    from any investigation or prosecution of unlawful conduct. The
    establishment of a commission would not, in my view, in any way
    preclude the possibility of a criminal investigation or prosecution,
    but the purposes of the commission would not be prosecution. That is
    the job of the criminal justice system.
    Fourth, the commission should have subpoena power in order to
    gather and tell the full story of what transpired. I would hope that
    the president would ensure, as well, that all government documents are
    made readily available to such a commission.
    And fifth and finally, there is the difficult issue of whether
    the commission should have the power to grant immunity, which has
    engendered -- and I know will engender -- a great deal of debate. I'm
    not an expert on this technical legal issue, but I would hope that
    policymakers would consider it very carefully. Persons who are called
    upon to testify, I'm informed, can invoke their 5th Amendment right
    against self-incrimination. In my view, the commission should not
    have the power to grant blanket immunity, meaning immunity to all who
    testify truthfully or full immunity -- in effect immunity for what may
    have been done rather than just for just what is being said in the
    testimony given. Rather, the commission should grant immunity to
    witnesses only in very limited circumstances.
    Mr. Chairman, I thank you again very much for this opportunity to
    testify regarding a commission and I look forward to your questions.

  • SEN. LEAHY

    At 00:30:34
    47 seconds

    Thank you very much, Ambassador.
    Our next witness is retired Vice Admiral Lee Gunn. Admiral Gunn
    is now president of the American Security Project. He served in the
    U.S. Navy for 35 years, served as inspector general for the Department
    of the Navy for the last three years. His awards include the
    Distinguished Service Medal, the Defense Superior Service Medal, six
    Legions of Merit, two Meritorious Service Medals, the Navy
    Commendation Medal, Combat Action Ribbon -- and of course, numerous
    theater and service awards.
    Admiral Gunn holds a bachelor's degree from the University of
    California-Los Angeles, and a master's of science degree in Operations
    Research from the Naval Post-Graduate School.
    Admiral, it's good to have you here. Please go ahead, sir.

  • ADM. GUNN

    At 00:31:21
    5 minutes

    Mr. Chairman, thank you very much. It's a pleasure
    to be a part of this esteemed panel and have an opportunity to talk
    about this important issue.
    In addition to the other things you mentioned I'm involved in,
    I've been a member for the last three-plus years of a group of 49
    retired flag and general officers who have spoken extensively on the
    issue of detainee treatment and its importance both to the men and
    women in the military and for the men and women in their execution of
    their duties.
    I'd like to talk a little bit about that and in doing that,
    elaborate on the written testimony that I have submitted.
    I'd like to say at the outset that my views are those of a sailor
    conveying concerns about the serious problems created for servicemen
    and women by choices made in Washington over the last seven years. So
    what are those problems?
    Strained alliances comes first in my list. And in this day and
    age, the American military operates by itself almost never in the
    world. And the importance of being able to work with our allies and
    our friends cannot be over stressed.
    Confusion about detainee treatment -- number two on my list --
    means to me that we have provided unclear guidance. That is, choices
    made in Washington have resulted in guidance that was not clear, that
    was in many cases ambiguous and in some cases, was flat wrong about
    the requirement to treat detainees humanely and in accordance with
    international conventions and the Geneva Convention in particular --
    and also with American law.
    Third on my list is exposure to greater risk of abuse if those
    soldiers, sailors, airmen, Marines, Coast Guardsmen are captured.
    No one is going to -- we're not kidding ourselves that our
    opponents, our enemy, will be inclined to treat our people humanely if
    they fall into enemy hands. On the other hand, it's important that we
    be able to mobilize international opinion in support of people taken
    by our enemies and the treatment of them in a humane way.
    We have, as Ambassador Pickering mentioned, furnished extremists
    with recruiting materials extensively. And that is a consequence that
    we should have envisioned when we made many of the choices about how
    we were going to act and how we were going to talk about how we acted.
    And finally in the problems list is that we further damaged the
    reputations of Americans who are working in this new realm of winning
    hearts and minds and trying to convince people that America has ideals
    and ideas to which they should subscribe. And we have disadvantaged
    our military people who have been involved in that. And I would argue
    that we have similarly disadvantaged the other members of the American
    administration, other public servants, in that regard as well.
    We're not done, and that's why I think that we need a serious
    inquiry into the way we've behaved for the last seven years and the
    kind of orders we've given and decisions we've made. The enemy is
    still the enemy. The stress on our people, in uniform and out, who
    are charged with dealing with this enemy will continue. The pressure
    on our country and her leaders will remain. And we need to understand
    the circumstances under which choices were made by leaders in the past
    in order that we can anticipate those same circumstances or others in
    the future and avoid making what we consider to be mistakes.
    So the question is to me, what's happened to us? What did we do
    wrong? What did we do right? And I'd like to mention that the
    military examines itself often and in-depth. We do that with after-
    action reviews and hot wash-ups following exercises and operations.
    We do it with in-depth studies when those are called for. We conduct
    Uniform Code of Military Justice investigations, as I know you're well
    aware, Mr. Chairman. And we conduct aviation safety investigations
    and examinations as well.
    The last one is kind of an interesting case in which the
    testimony seeking the truth and having lives depend on finding the
    truth in which the testimony is generally firewalled completely from
    legal proceedings that may eventuate from these investigations.
    But whatever the appropriate means, the services together have to
    find out what happened and be in a better position in the future to
    provide the kind of clear, unambiguous guidance that is necessary on
    the pressure-filled front line and in the detainee treatment arena.
    The outcome is that soldiers, sailors, Marines, airmen, Coast
    Guardsmen deserve and require that kind of guidance and those orders.
    Structure is essential to you when you're under pressure, particularly
    in combat, and also in the elevated tension of taking care of
    detainees.
    American values have to be our test with regard to the
    application of those orders and that guidance. We have failed
    American servicemen and women over the last seven years, and we have
    to stop doing that. We need to do better and we need to get on with
    it.
    Thank you very much, Mr. Chairman.

  • SEN. LEAHY

    At 00:37:06
    1 minute

    Thank you very much, Admiral.
    The next witness is John Farmer. He's a partner at Arsenault,
    Whipple, Farmer, Fasset and Azzarello, former attorney general of New
    Jersey. He created the Office of Inspector General, served as a
    federal prosecutor, adjunct professor of national security law at
    Rutgers. He's lectured and written extensively on terrorism issues.
    He previously served as special adviser to General Jones regarding
    Middle East issues.
    He was senior counsel and team leader for the 9/11 commission --
    (inaudible) -- led the team that investigated the government's
    response to the 9/11 attacks that included evaluating the response by
    the various agencies of the executive branch, including the offices of
    the president and vice president of the United States and the
    Department of Defense. He's served on a variety of other
    investigatory commissions. Mr. Farmer received his law degree from
    Georgetown University Law Center, as did I, and his BA from Georgetown
    University.
    Mr. Farmer, we're delighted to have you here.

  • MR. FARMER

    At 00:38:15
    7 minutes

    I thank you, Mr. Chairman. And let me echo my
    colleagues in thanking you and the committee for the invitation to
    appear today. Like my colleagues, I've submitted more formal
    testimony, and my purpose in speaking now is simply to summarize in a
    more abbreviated fashion what's set forth at length in my formal
    testimony.
    The obvious threshold question facing this committee is whether
    an investigation should be conducted of the practices and policies
    that have been employed concerning the tension since 9/11 in our
    country's struggle against transnational terrorism.
    I want to emphasize at the outset that I have a lot of empathy
    for those who, like President Obama, have expressed a desire to move
    forward rather than look back. When I was attorney general of New
    Jersey, I expressed similar sentiments when my department was under
    investigation by our state Senate Judiciary Committee.
    And make no mistake about it. The time devoted to preparation
    for testimony in responding to such an investigation can be diverting,
    and for a time can disrupt normal operations. I've come to see,
    however, that there are some issues that touch so directly upon our
    identity as a people, that touch so directly upon the values that we
    profess, that no amount of internal bureaucratic review will suffice
    to allay public concern about the way its government has been
    conducting itself.
    In the absence of public fact-finding, people will be left to
    believe the worst, and the lack of public trust will ultimately
    undermine any effort to move forward. I have come to believe that our
    government's handling of detentions since 9/11 is such an issue. Why?
    The turning point for me was the convening authority's decision
    recently that Mohamed al-Kahtani, the alleged 20th hijacker, whom
    Mohammed Atta had driven to meet at the airport in Orlando, Florida on
    August 4th, 2001, but who was turned away only to be captured on
    December 2001 in Afghanistan, could not be tried because of the way he
    had been treated. She concluded that he had been tortured.
    Think about that for a moment. We have now reached a point where
    the tactics we have adopted in the struggle against terrorism have
    compromised our ability to respond to the 9/11 conspiracy itself. In
    my view, that fact calls into question exactly what we have done, to
    whom, why, when, and on what basis.
    There are many other alleged examples, but for me the dismissal
    of charges against al-Kahtani elevates the tension to one of those
    issues that touch so directly upon our identity as Americans that a
    public accounting of what occurred is necessary.
    Assuming that there is eventual agreement on the need for an
    investigation of detention practices, the next question is what form
    that investigation should take. One obvious option is a criminal
    investigation, either by the Justice Department or by a special
    prosecutor. This option has limited appeal in this context, in my
    opinion, for three reasons.
    First, prosecutions are necessarily narrowly focused on proving
    elements of crimes in specific cases. Whatever broader context they
    provide is incidental to that primary purpose.
    Second, in the absence of generally accepted neutral fact-
    finding, criminal prosecutions by a successive administration may
    appear to be politically motivated.
    And third, it is not clear that criminal prosecutors will be
    efficacious in this context. Potential targets may well be able to
    invoke a viable advice-of-counsel defense.
    Another option would be congressional hearings. Certainly
    Congress is capable of conducting thorough bipartisan investigations
    as part of its oversight responsibility of the executive branch. In
    my view, however, the highly charged politics of congressional
    hearings on this subject would frustrate any fact-finding effort.
    In my view, these considerations argue in favor of establishing
    an independent body to conduct fact-finding with regard to detentions.
    Such fact-finding need not foreclose prosecution in appropriate cases;
    indeed, it may even serve to identify those cases.
    Structuring an investigation into detention policies and
    practices involves, in my view, four interrelated considerations:
    Composition, scope, powers and product. With respect to composition,
    the commission should be independent and nonpartisan in composition.
    Bipartisan commissions can reach nonpartisan results. The 9/11
    commission, under the leadership of Governor Kean and Congressman
    Hamilton, succeeded in that respect.
    The enabling statute for a commission on detentions should spell
    out specific professional qualifications that will ensure a
    nonpartisan composition. The commission should also have a
    professional staff, a definite timetable for completion of its work,
    and a budget adequate to its mandate.
    Perhaps the most difficult aspect of structuring such an
    investigation is determining its scope. If the mission is defined too
    broadly, it may not be achievable, and the breadth of the mission will
    also drive the potential cost of the project. In the context of
    detentions, I believe a focus strictly on Guantanamo Bay would be too
    narrow, while an open-ended mandate to investigate all tactics
    employed in the War on Terror would be much too broad.
    One limiting principle the committee might consider would be to
    link the investigation to the facts and circumstances surrounding
    detentions carried out pursuant to Congress's resolution of September
    2001 authorizing the use of force to respond to the 9/11 attacks.
    The scope of the inquiry, once it's determined, will determine
    what powers the commission will need to employ in conducting its work.
    Essential to any investigation, in my view, is the ability of the
    commission to compel cooperation. Compulsory process is essential.
    It was vital to the success of the 9/11 commission, and its lack can
    be a real handicap. So at a minimum, the commission should be given
    subpoena power.
    A trickier problem is whether the commission should be allowed to
    confer immunity in order to obtain testimony from witnesses who might
    otherwise assert their Fifth Amendment privilege against self-
    incrimination. Given the extremely fact-sensitive nature of this
    inquiry where individual exposure may be an issue in every case of
    alleged abuse, some form of limited immunity may be essential. The
    issue must be handled with care, however, as a grant of even limited
    testimonial immunity may jeopardize a current or future prosecution.
    That is a potential tradeoff that must be considered by the committee
    in forming the commission.
    Finally, with respect to the product, the enabling legislation
    should also set forth the expected end product of the investigation.
    The 9/11 commission was given a broad charge to investigate the
    facts and circumstances surrounding the attacks and also to formulate
    recommendations based on those findings. In my view, such a broad
    mandate would not be appropriate to the detention context we're
    talking about.
    I believe that the commission should be charged simply with
    writing reports, setting forth the facts and circumstances surrounding
    the practices and policies relating to detentions carried out in the
    war on terror.
    Although a commission would be completely separate from any
    criminal investigation, it should have the power to refer appropriate
    cases, if it finds them, to the Justice Department for potential
    prosecution.
    To the extent possible, reports should be a strictly fact-based
    narrative, and the report should state the evidentiary bases for the
    factual conclusion it reaches, to the extent consistent with national
    security interests.
    Once the facts are known, legislators and policy makers can
    debate the broader implications of these facts and move forward with a
    clear understanding of where we have been and what we have done. I
    look forward to answering any questions you may have and to working
    with you to address these difficult issues in the future.
    Thank you.

  • SEN. LEAHY

    At 00:45:17
    58 seconds

    Thank you very much, Mr. Farmer.
    Frederick Schwarz, Professor Schwarz, is chief counsel at the
    Brennan Center for Justice at the New York Law School. In his legal
    career, he has combined a high level of private practice at Cravath,
    Swaine and Moore with a series of critically important public service
    assignments. Mr. Schwarz served as chief counsel of the Church
    Commission (sic/Committee). That's about the time when I came to the
    Senate, I think when we first met. He has also served as chief
    counsel to the Senate Select Committee on Intelligence. He chairs the
    board of the Vera Institute of Justice.
    He recently received the gold medal for distinguished service in
    the law from the New York City Bar Association. He received an AB
    magna cum laude from Harvard University and his law degree from
    Harvard Law School where he was editor of the Law Review. And Mr.
    Schwarz, it's always good to see you here. Please go ahead, sir.

  • MR. SCHWARZ

    At 00:46:15
    3 seconds

    (Off mike.) That was quite a few years ago when we
    first met.

  • SEN. LEAHY

    At 00:46:18
    9 seconds

    It was. I actually had hair back then and it was a
    little bit darker. (Scattered laughter.)

  • MR. SCHWARZ

    At 00:46:27
    4 minutes

    And I had solid black hair back then too. So thank
    you for convening this hearing. Thank you for your proposal for the
    commission, which I support.
    How wisely to handle counterterrorism is an ongoing issue for our
    nation's future. How to handle counterterrorism is too important to
    sweep the past under the rug. The public and not merely insiders need
    to understand what has happened. Those who don't understand errors of
    the past are condemned to repeat them, and surely will.
    We all want to move forward wisely but it is not possible wisely
    to move forward unless we fully understand what we have done.
    The first step must be to know all the facts. Beyond basic facts
    we need to know how were decisions made. Who was consulted and who
    was not consulted. We also need to know beyond the basic facts, what
    were the consequences of our actions. And we need to know beyond the
    basic facts, what are the root causes of having gone down a path that
    was inconsistent with our values and seems to have broken the law. I
    would put excessive governmental secrecy and limited oversight as
    among the most important root theses.
    I personally believe and have testified before that our descent
    into tactics like torture abandon the rule of law and undermined
    American values and that doing so made us less safe. That thesis
    needs to be tested. For if it is true it is surely important to our
    country and its public as we consider what to do when there is another
    terrorist attack in this country as there surely will be; hopefully
    not as horrible as the one before. But we surely will get it and we
    have to make sure that the next time we don't make mistakes of the
    sort that seem to have been made in prior -- in the prior years.
    Now the benefits of a nonpartisan commission of inquiry go --
    which you've proposed -- go far beyond understanding the facts. Such
    a commission can help bring all Americans together because after all,
    issues like belief in the rule of law, issues like understanding and
    appreciating the basic American values do not divide the parties in
    this country. So a commission that proceeds fairly and is nonpartisan
    actually can help to bring our country together.
    And secondly, a commission that investigates the facts, puts
    forward a report that tells the country and tells the world what has
    happened, admits to mistakes when we've made mistakes, praises things
    that we did well when we did them well, that commission and its action
    and its report can help restore America's reputation in the world, and
    thus increase our strength and thus make us more safe.
    The bottom line is we owe it to ourselves and to our country to
    learn the facts about our government's counterterrorism policies. We
    know that abuses may have occurred and that the perception of these
    abuses has undermined our standing in the world and our fight for the
    hearts and minds of those who could be persuaded to do us harm.
    We must not flinch from learning the truth. That is the only way
    to stay true to our principles, to correct our course and to restore
    our moral standing in the eyes of the world. That in turn will make
    us safer and stronger. For as has been true throughout our more than
    200 years of history, America is at its best when we confront our
    mistakes and resolve not to repeat them. If we do not confront our
    mistakes we will decline. But if we do, as this commission can help
    us do, our future will be worthy of the best of our past.
    Thank you, Mr. Chairman.

  • SEN. LEAHY

    At 00:50:51
    54 seconds

    Thank you very, very much, Mr. Schwarz.
    Our next witness is David Rivkin. Rivkin is a partner at Baker
    and Hostetler. Mr. Rivkin served in the Department of Justice in the
    White House during the Reagan and George H.W. Bush administration.
    He's practiced in the area of public international law. He's
    experienced international arbitration and policy advocacy on a wide
    range of issues. He's testified before this committee before.
    He's a member of the Council on Foreign Relations. He's
    published numerous papers and articles on a variety of legal foreign
    policy and other issues. He received his law degree from Columbia
    University's School of Law, his MA in Soviet Affairs from Georgetown
    University. He's written op-ed pieces saying why my idea is terrible.
    So, Mr. Rivkin, welcome. (Laughter.)

  • MR. RIVKIN

    At 00:51:45
    6 minutes

    Mr. Chairman, members of the committee, thank you
    very much. I would not use the word terrible, of course. I'll be
    much more judicious. But I'm pleased to appear before you and testify
    as a part of a distinguished panel.
    I do believe, however, that a commission of whatever variety to
    investigate the Bush administration activities and its officials is a
    profoundly bad idea, a dangerous idea, both for policy but even more
    importantly for me as a lawyer for legal and constitutional reasons.
    Now there's nothing wrong, of course, with creating blue ribbon
    commissions, provided they exercise constitutionally appropriate
    responsibilities. And on its face, the proposed commission to
    investigate the Bush administration appears advisory and geared
    towards policy review. In my view, however, many of its advocates
    expressed much more.
    In this regard, I'm somewhat discouraged by the ongoing discourse
    about the intent and purpose of this commission. Far from seeking to
    establish a body to make recommendations in policy, as was the case,
    for example, with 9/11 commission, most commission supporters clearly
    want to establish a body that would engage in what would, in essence,
    be a criminal investigation of former Bush administration.
    They decide a target, a relatively small number of the former
    Bush administration's most senior lawyers and policy makers is not
    concealed. The fact that the subject matter areas which the
    commission would investigate, and among them are interrogation and
    handling of captured enemy combatants and, as some people suggest, the
    gathering of electronic intelligence. Those areas are heavily
    regulated by comprehensive federal criminal statutes ensures that the
    commission's activities would inevitably involve areas traditionally
    the responsibility of the Department of Justice. Congress, of course,
    can also constitutionally properly delve into these matters as a part
    of its oversight and legislative activities. The proposed commission,
    I submit to you, cannot.
    Let's recall that the power to investigate and bring criminal
    charges against individuals is the government's most formidable
    domestic power. As such, it is heavily circumscribed by the
    Constitution and federal statutes. In my view, any effort to
    outsource any aspects of its power to entities operating outside the
    structure of government established by our Constitution is extremely
    troubling and must be strongly resisted by all who are concerned with
    protecting the Constitution's fabric.
    The very decision to initiate what amounts to a criminal
    investigation, whether or not it's formally designated as such, is too
    weighty to be outsourced to commissions operating outside of the
    Constitutionally-prescribed tripartite framework of our national
    government.
    In this regard, I would like to remind the committee of a
    strident criticism, which attended the alleged loosening by the FBI
    during the Bush administration of the threshold determinations that
    had to be made before national security investigations were commenced.
    I also vividly recall the indignation which attended the claims
    that the Bush administration's Justice Department may have been
    seeking to investigate Democrat-leaning groups or elected Democrat
    officials at the federal and state level for election fraud and other
    election offenses.
    In all candor, I failed to see why having Congress task a group
    of private citizens to investigate former Bush administration
    officials does not implicate exactly the same if not far greater civil
    liberty concerns. The fact that the number of people targeted for
    investigation is quite small, potentially makes commission's threat to
    civil liberties all the more acute.
    Let's also briefly reflect on how the proposed commission will
    operate.
    In order to compel people to testify, such a commission would
    have to possess subpoena power, which presumably would have to go to
    court to enforce some particular cases. Given the vague nature of the
    commission's responsibilities, as well as its blend of law enforcement
    and policy investigations, I find it difficult to imagine how the
    federal judiciary would meaningfully police such subpoena requests.
    And then there's also the question of how to balance the
    constitutionally protected interest of the commission targets -- for
    example, their 5th Amendment protection against self-incrimination,
    which is there to get information. I'm not clear, by the way, how the
    entity that's not the executive and the legislative could grant
    immunity all on its own such that it will be respected in the future
    by federal and even state law enforcement officials. To the extent
    that grants of immunity, including the specific parameters of the
    immunized testimony, would have to be approved by the executive
    branch, here again I'm troubled by the difficulty of coming up with a
    mechanism for meaningful review as distinct from rubber stamp.
    And then there's the question of how the commission would protect
    the privacy interests of its targets. The commission would go about,
    quite publicly, what are essentially law enforcement investigatory
    functions, which are typically held, despite some inevitable and
    unfortunate leaks caused by the Department of Justice, in an unusually
    public manner.
    Now, even setting aside the constitutional concerns, and there
    are several more, raised by charging the commission with the discharge
    of what are really law enforcement responsibilities, there's another
    large problem that looms in my view.
    It's important to recognize that the commission's most
    deleterious and dangerous impact would be to greatly increase the
    likelihood of former senior U.S. government officials being tried
    overseas, whether in courts of foreign nations or before their
    national tribunals. And the reason for it is because the matters to
    be investigated by the commission implicate not only U.S. criminal
    statutes, but also international law, and which are arguably subject
    to claims of universal jurisdiction by foreign states.
    I have no doubt that foreign prosecutors would eagerly seize upon
    the supposedly advisory determination that criminal conduct occurred,
    especially if it is the only authoritative statement on the subject by
    an official U.S. body as a pretext to commence investigations and
    bring charges against former government officials. If they were
    clever, and most of them are, they would argue that the mere fact that
    the commission was established vividly demonstrates that grave crimes
    must have been occurred, and interpret U.S. non-prosecution of
    individuals concerned through formal prosecutorial channels as a mere
    technicality to be repaired by their own broad assertions of
    jurisdiction.
    Indeed, in my view, all these circumstances appear to be tailor
    made to support the invocation of universal jurisdiction by foreign
    judicial bodies as a basis for launching prosecutions of Bush
    administration officials.
    Let me close by pointing out a great and perhaps unintended
    irony. Much of the anger about the Bush administration war and terror
    policies has been focused on its treatment of captured alien enemy
    combatants and especially its rendition policy. It would be kind of
    sad, in my view, in an effort to investigate these matters, the
    proponents of the commission do not appear to care very much about the
    civil liberty of Americans and are perfectly happy to outsource law
    enforcement functions to private entities, and even to be practicing a
    soft form of rendition and virtually inviting foreign courts to go
    after American citizens. I respectfully suggest that this is a very
    bad way to proceed. Thank you.

  • SEN. LEAHY

    At 00:58:27
    44 seconds

    (Off mike) -- Mr. Rivkin.
    Jeremy Rabkin is a professor of law at George Mason University
    School of Law. Prior to that, he was a professor at Cornell. An
    international law scholar, he was recently confirmed as a member of
    the board of directors for the United States Institute of Peace.
    Professor Rabkin has written numerous chapters in books, articles and
    academic journals and essays. Professor Rabkin teaches courses on
    both constitutional and international law. He has a Ph.D from the
    Department of Government at Harvard, and graduated Summa Cum Laude
    from Cornell University. Mr. Rabkin -- Professor Rabkin -- welcome,
    and go ahead. Yeah, press that little red button -- there you go.

  • MR. RABKIN

    At 00:59:11
    10 seconds

    Thank you. I also will try to avoid simply
    repeating what was in my written statement, and take advantage of
    being the last speaker here --

  • SEN. LEAHY

    At 00:59:21
    16 seconds

    Your whole statement will be made part of the
    record, of course, and also the transcript will be -- stay open after
    the hearing's over if you see things you wish to add to it. We're not
    playing gotcha here, we want to learn from this, and it will be kept
    open for that.

  • MR. RABKIN

    At 00:59:37
    1 minute

    Thank you. I want to start by talking about the
    context of this, which I think nobody has mentioned and is rather
    important. Last summer, which was the first time I met Mr. Schwarz,
    there was a hearing of the House Judiciary Committee, which was called
    a pre-impeachment hearing. And there were a lot of serious people,
    including some members of Congress, who said, even in the last months
    of the Bush administration, "He's going to be leaving office anyway.
    We have to have an impeachment because what the Bush administration
    did was not just regrettable, deplorable, mistaken, but high crimes
    and misdemeanors."
    A lot of people are so revved up with indignation. Just go on
    the Internet. We can find this in published columns. People say,
    "The Bush administration was guilty of war crimes. They are in the
    same category as notorious war criminals of foreign countries". Now I
    think that is just wildly exaggerated and really inappropriate, but a
    lot of people feel that way. If you say we're going to have a truth
    commission, people immediately think, "Oh, yes, that's what is done
    with war criminals when you can't prosecute them". And so that's the
    first point I want to get everyone to focus on. I don't think it's
    sufficient for Senator Leahy, or other -- Senator Feingold to say,
    "Well, I view it in a more moderate way". I think this will be taken
    as vatifying the background view that, "Yes, these were extraordinary
    crimes -- "

  • SEN. LEAHY

    At 01:01:08
    2 seconds

    No disagreement with you. I've had something like
    65,000 emails on this --

  • MR. RABKIN

    At 01:01:10

    Yes.

  • SEN. LEAHY

    At 01:01:10
    10 seconds

    -- I've yet to have one single email suggest that
    we're doing this as a war criminal thing. I'm not suggesting you're
    putting up a strawman here, but please feel free to --

  • MR. RABKIN

    At 01:01:20
    4 minutes

    Could I just say, we seem to have different email
    lists. When I said at that hearing last year, "Come on now, let's not
    be crazy", I got, not 60,000, but hundreds of people saying, "I saw
    you on CSPAN, and I'm not crazy, and he is a war criminal. And he
    should be tried." There are a lot of people who feel very vehemently
    about this. If you say truth commission people immediately think
    about these famous -- the Truth and Reconciliation Commission in South
    Africa, the Commission on Truth and Reconciliation in Chile.
    We are not in, remotely, that situation, and those countries that
    had to have these commissions because they couldn't have prosecutions,
    and they couldn't have prosecutions because the countries were so
    deeply divided and they had made promises in order to secure a
    peaceful transition. Peace was really in doubt in those countries.
    So they had to back off of prosecution and say, "Well, we'll have a
    truth commission instead". We're not in that situation. If people
    think that there should be prosecutions, well then there can be
    prosecutions.
    I want also to just focus attention on this. The experience of
    those truth commissions in other countries -- they had some success.
    I think they had considerable success in focusing on narrow, factual
    questions. One of the really important achievements of the Chilean
    truth commission was just to get an accounting. A lot of people had
    disappeared. What happened to them? And they were able to come up
    with a list. And they were also able to establish a number, which got
    to be readily -- generally -- accepted, about 2,000 victims of
    political killings. That was very helpful to come up with a number,
    names, some information about them.
    I don't think that's at all what we're talking about here. I
    heard Mr. Schwarz say -- and I'm talking about Mr. Schwarz because I
    think he's very thoughtful. Mr. Schwarz said, "It's not enough to get
    the facts. We also have to know the root causes, and we also have to
    test the theory that this has made us less safe, and we should all
    think about what that involves." To say that we've been made less
    safe is to make an assessment which we're going to put out to the
    country as authoritative that the world reacted to our torture, and
    that made us less safe. And that is not offset by information which
    we gained. How could a commission determine this, and why would
    people accept that because the commissioner said it -- it was true?
    And if you can do it for debates about Bush policy in regard to
    detention, why not for every act of every presidential
    administration-- (audio break) -- talking to people in the government
    of Syria.
    Does that -- (audio break) -- but I think it's really a bad idea,
    and I think we are going down this road now saying, "If there's enough
    controversy, and it's a sufficiently intense controversy, we have an
    outside commission which purports to tell us authoritatively what it
    all means and what were the causes and what were the consequences."
    And we cannot do that. That is not a substitute for people making
    political arguments which can be responded to politically.
    I want to say just briefly, in conclusion, I share many of the
    concerns of my colleague and friend there, David Rivkin. If we go
    into this with the notion that this is a substitute for criminal
    trials, you are authorizing this commission to paint particular
    individuals in the government as if they had somehow done something
    analogous to war crimes, something which undermines our values as
    Americans, something that threatens our identity as Americans, as was
    said.
    This is a pretty serious charge. Do these people get to defend
    themselves? I mean, are you sure they get to show up, but none of
    this would be tested before an ordinary criminal process. You'll have
    some people, maybe well meaning people, write a report saying, "I
    think what, John, you did has undermined our safety". And I just
    think we shouldn't be authorizing people to make categorical judgments
    like that on behalf of the American people, where you're naming names
    and shaming people, and they don't get a chance to defend themselves
    before a jury.
    And I just think we shouldn't be authorizing people to make
    categorical judgments like that on behalf of the American people. We
    are naming names and shaming people and they don't get a chance to
    defend themselves before a jury. That is not, I don't think, a
    category that we should bring into our country. That is something
    they had to do in totally traumatized countries which couldn't have
    criminal process and we're not in that situation.
    Thank you.

  • SEN. LEAHY

    At 01:05:50
    1 minute

    Thank you.
    I appreciate your testimony, but I must say -- as I said before,
    and you have plenty to time to respond -- that most haylofts, in the
    times I've been in Vermont, could not make the number of straw men
    that you and Mr. Rivkin have brought up. But I will -- we will -- and
    I know Senator Cornyn wants to ask you questions.
    What I'm going to do is again -- and you will be given plenty of
    time to respond to that -- I hear you talking about hearings that
    apparently you were at, I wasn't at and they're not the hearings we're
    holding here.
    Ambassador Pickering is going to have to leave.
    I wanted ask him
    first: During your tenure -- and I will make absolutely sure, Mr.
    Rivkin, you have plenty to time to respond to that.
    Ambassador Pickering, 45 years a Foreign Service officer all over
    the world. You've negotiated with other countries. You've worked to
    implement American foreign policy -- (audio break.)

  • MR. PICKERING

    At 01:07:10
    1 minute

    I don't have the polling data in front of me, but
    I think we're all familiar with the polling data and it's not just one
    poll. It's numerous polls.
    I think the second point to make and drive home is that this, in
    my view, provided a sense of ire, a sense of disturbance, a sense of
    deep concern among many people who began by not liking the United
    States. And so it heightened that.
    Whether that resulted in recruitment to new people to al Qaeda
    and to the Taliban -- to other organizations that are in arms against
    the United States -- is hard for me to tell in a specific sense, but I
    think it is not totally irrelevant.
    To that point, that indeed, individuals who were -- and we've
    seen many anecdotal histories of this -- privy to the Abu Ghraib tape
    and pictures were, I think, deeply offended -- offended because of the
    cultural insensitivity, offended because of the use of force, offended
    because of all aspects of the treatment.
    So it is, in my view, a serious and real and major point that
    this certainly contributed to extreme anti-Americanism and probably
    was one of those things that helped recruit people to take up arms and
    to act violently against the United States.

  • SEN. LEAHY

    At 01:09:06
    17 seconds

    If the United States is seen as doing an open and
    honest review of what happened -- setting up policies if we find that
    we did not follow our own laws and our own policies -- to make it very
    clear mistakes will not be made in the future, does that help or hurt
    us around the world?

  • MR. PICKERING

    At 01:09:23
    1 minute

    Well, I don't know that we're going to convince
    the most extreme people oriented against us merely because we've done
    this. I think a lot of people who are sitting on the fence, who have
    admired the United States over the years, who were deeply disturbed by
    what they saw the United States was doing -- which was so seemingly
    out of character with our background, our past leadership and our
    principles -- would certainly be, I think, moved.
    As I said in my statement, great countries don't often go into
    deep introspection about their problems and the difficulties and
    indeed, then move to cure them. But in my view, that is the essence
    of rational action. And it's the essence, Mr. Chairman, I think of
    what our -- what Admiral Gunn said about how the Navy behaves under
    difficult circumstances. I spent some time in the Navy as well.
    But I admire people who are prepared to look carefully at their
    mistakes and to rectify them and I suspect that that is a widely held
    belief around the world. And I suspect that people expect nothing
    less of the United States.

  • SEN. LEAHY

    At 01:10:29
    48 seconds

    I actually saw something interesting on the news
    this morning about a tragic plane crash out on the West Coast -- the
    Marines and the review that was made of the mistakes that occurred
    there.
    Mr. Farmer, I get the impression from your testimony when you
    spoke of al-Kahtani -- the man who's been referred to the as the 20th
    hijacker -- and the fact that he couldn't be prosecuted because of the
    national security policies in the last administration. I got the
    impression that that was a turning point for you.
    If so, what do you believe would be the benefit of a review, such
    as what I have suggested in this inquiry?

  • MR. FARMER

    At 01:11:17
    49 seconds

    Well, I said in my testimony the fact that the
    tactics that we've employed are now making it difficult to deal with
    the 9/11 conspiracy itself to me simply raises the question of, you
    know, how did we get here? What was done specifically, by whom, to
    whom, on what justification?
    And as I say, as a former head of a major state department, I
    appreciate the need to move forward and the disruption that
    investigation may cause, but in my judgment, a serious compromise of
    our ability to deal with the 9/11 conspiracy itself elevates the
    contention issue to the point that an independent investigation is
    warranted.

  • SEN. LEAHY

    At 01:12:06
    6 seconds

    Thank you.
    My time is up. I will come back with further questions.
    Senator Cornyn.

  • SEN. JOHN CORNYN (R-TX)

    At 01:12:12
    22 seconds

    Thank you, Mr. Chairman.
    Mr. Chairman, I'd ask unanimous consent to introduce several op-
    eds and letters in opposition into the record. The authors are R.
    James Woolsey, William Webster, Michael Hayden, John Deutch, James
    Schlesinger -- all former directors of the CIA.

  • SEN. LEAHY

    At 01:12:34
    22 seconds

    Thank you.
    And I will also introduce -- actually, we'll keep the record open
    for this, because of course, there are equally impressive people who
    take an opposite view and those letters will also be placed in the
    record. But both pro and con, the record will stay open for 24 hours
    for any such -- any such records and any such letters.

  • SEN. CORNYN

    At 01:12:56
    4 minutes

    Mr. Chairman, thank you for having this hearing. I
    am on record as saying that this -- the idea of creating an
    independent -- and I'm not sure how independent it actually would be
    -- unaccountable truth commission is a bad idea, with all due respect.
    The suggestion that this subject can be delved into somehow in a
    nonpartisan fashion to me asks us to suspend our power of disbelief --
    those who have worked here over the last six years, in my case -- and
    ignore the fact that we have already had 150 oversight hearings on
    these subjects. We've logged more than 320 hours of witness testimony
    in unclassified settings, transcribed more than 3,200 pages of witness
    testimony and printed more than 17,000 pages of unclassified publicly
    available reports.
    And to me, the idea that this so-called truth commission would
    somehow resolve the good faith disagreements that I think many of us
    have had and have divided the country over this subject is, I think,
    just asking us to believe in the tooth fairy -- that somehow this is
    going to settle the score.
    Let me just give you one example: In a statement accompanying
    the Senate Armed Services Committee's release of the December 2008
    report on terrorist detainee treatment, the Levin Report, Chairman
    Levin noted that, quote, "in the course of its more than 18-month long
    investigation, the committee reviewed hundreds of thousands of
    documents and conducted extensive interviews with more than 70
    individuals." Closed quote. The unclassified executive summary of
    the Levin Report totals 19 pages and includes the same number of
    conclusions.
    I disagree with those conclusions, but I certainly don't believe
    a truth commission is necessary to somehow arbitrate the differences
    between me and the Levin report. So I think, with all due respect
    again, I think the seeking this commission is, in fact, an indictment
    of congressional oversight responsibilities -- not that I think
    Congress has failed, because we have, as I indicted, extensively
    inquired into these matters. Congress has legislated with the
    Detainee Act, with the Military Commissions Act in response to Supreme
    Court opinions and otherwise.
    And so I'm just not willing to join in the acknowledgement of
    failure of Congress performing its vigorous oversight
    responsibilities, which I think -- (audio break) -- investigations of
    the 1970s and the Iran-Contra scandal in the '80s taught the
    intelligence community to worry about what the 1996 Council on Foreign
    Relations study decried as retroactive discipline.
    The idea that no matter how much political and legal support an
    intelligence operative gets before engaging in aggressive actions,
    that he or she will be punished after the fact by a different set of
    rules created in a different environment.
    Are you concerned about the possibility of this retroactive
    discipline and the unfairness of changing the rules of the road after
    the fact and its impact on our intelligence officials who may be
    persuaded that maybe more -- (audio break) --

  • MR. SCHWARZ

    At 01:17:03
    1 minute

    -- opinions which said that what they were doing
    was okay and because their bosses high up in the government told them
    to do what they did.
    Now turning to the actual record of the Church Committee, the
    director of the CIA said that what we had done by bringing the
    intelligence services into the realm of the law instead of being
    outside of the realm of the law helped the intelligence services. And
    the general counsel of the CIA, the famous general counsel, Lawrence
    Houston, said that the conduct of congress before the Church Committee
    in turning a blind eye to what was going on actually harmed the
    intelligence services.
    Moreover, the Church Committee in its recommendations way back in
    1976 said this country should start paying more attention to terrorism
    -- way ahead of its time. So the people who said the senate
    investigation had anything to do with injuring as opposed to
    strengthening our intelligence services were flat wrong.

  • SEN. CORNYN

    At 01:18:29
    2 seconds

    Well, you disagree with them. If you wanted, Mr.
    Schwarz --

  • MR. SCHWARZ

    At 01:18:31
    2 seconds

    No, they were wrong. I'll give you one example.

  • SEN. CORNYN

    At 01:18:33
    19 seconds

    -- so you disagree with Mr. Goldsmith's statement
    that the Church and Pike investigations resulted in what the Council
    on Foreign Relations study in 1996 called retroactive discipline. You
    disagree with that?

  • MR. SCHWARZ

    At 01:18:52
    5 seconds

    The Pike investigation was not handled as well as
    the Church investigation and the --

  • SEN. CORNYN

    At 01:18:57
    3 seconds

    Well, would you answer my question? Do you agree
    or disagree with that case?

  • MR. SCHWARZ

    At 01:19:00
    1 second

    I -- of course, I disagreed with that.

  • SEN. CORNYN

    At 01:19:01
    8 seconds

    Okay.
    (Cross talk.)
    I appreciate that you disagreed but your statement
    that it's flat wrong is a statement of your opinion and not
    necessarily fact.

  • SEN. LEAHY

    At 01:19:09
    17 seconds

    Senator Cornyn, I don't mean to cut you off but I
    kept to the five minutes myself and let you go overtime just simply
    because we want to finish so that Ambassador Pickering can leave and I
    wanted to have Senator Whitehouse, who has been here through the whole
    hearing, have a chance. Certainly, I'll go back to you if you have
    further questions.

  • SEN. SHELDON WHITEHOUSE (D-RI)

    At 01:19:26
    2 minutes

    Thank you, Mr. Chairman. First
    of all, let me thank you for your leadership in holding this hearing.
    There are very, very important questions that have been raised and
    discussed here today and you've assembled an extremely distinguished
    panel of witnesses here to help us consider them. I appreciate it
    very much.
    As the son and grandson of foreign service officers I have some
    idea of what a career ambassador is. And so, Ambassador Pickering,
    first let me thank you for your extremely distinguished service to our
    nation over many years, both in the military and in our foreign
    service. I would like to ask you first because I know you have
    obligations elsewhere -- and anybody else can chime in if they wish --
    the following question.
    We don't know yet what was done, and there has been considerable
    sentiment expressed by several of the witnesses here that it is in our
    interests for a whole variety of reasons -- because it helps define
    who we are as a nation; because it rebuilds our credibility and our
    relationships abroad; because it's a return to the rule of law and so
    forth; that it is distinctly in the public interest for this
    information to come out.
    Let me ask you if you think there is a point where the conduct in
    question was so abhorrent to decent and civilized people in America
    and around the world that at that point the public interest that
    you've described reverses itself. And at some point if it's awful
    enough does it become in our public interest as a nation to try to
    keep this swept under the rug or, to use Mr. Schwarz's phrase, that we
    must not flinch? Must we not flinch irrespective of how painful this
    view will be for our country, Ambassador Pickering?

  • MR. PICKERING

    At 01:21:43
    1 minute

    Thank you, Senator Whitehouse. Thank you for
    your kind comments. And I had the privilege and honor of working with
    your father.
    My answer to your question is a very simple no. I do not believe
    that any degree of abhorrence, any degree of violation of values,
    principles, trusts, laws should be swept under the rug because it is
    so devastating for the reputation of the United States that it must be
    kept secret.
    In fact, the laws on secrecy don't provide for that in the first
    place. Secondly, it doesn't in my view hold water to believe that
    anything quite so notorious will ever remain secret in this town --
    (laughs) -- or in this country or in this world. And thirdly, if,
    indeed, it took place and was of such character as to put it into that
    category, then it is the duty and, indeed, the requirement of all
    branches of the United States government to do everything in their
    power to make sure that it never happens again -- which is the major
    purpose for the commission that I support and the major purpose for my
    being here to try to support that type of commission.

  • SEN. WHITEHOUSE

    At 01:23:01
    2 minutes

    Thank you Ambassador Pickering. Attorney
    General Farmer, you and I were attorneys general together. I'm
    delighted to see you here with us and I appreciate very much your
    distinguished career of public service.
    The issue that a commission is going to face, as a former
    prosecutor -- the chairman is a former prosecutor, Senator Cornyn was
    attorney general with all of us also; it's sort of a little reunion
    here today. There are obviously some hindrances to a prosecution
    based on misconduct; reliance on the legal opinions of the OLC is one;
    some sort of theory of equitable estoppel might be another; what
    reliance did it have to intent might be another.
    But in each of those areas there are limited protections. For
    instance, a mobster can't paper over a racketeering conspiracy with
    his mob lawyer saying this is a legitimate business and make the risk
    of prosecution go away. The doctrine of equitable estoppel is
    disfavored against the federal government -- almost never applied,
    rigid and sparing I think is the phrase used about when its
    application is permitted. And intent obviously, as we all know, is a
    question of fact which is determined by the ultimate fact finder.
    So immunity is going to become a significant question I think in
    this. Should we try to build into -- assuming that the commission
    should have some immunity and I think most of the witnesses agree if
    they think there should be such a one that it should have power to
    grant immunity -- how should the relationship between the commission
    and prosecutors be described in any legislation that might establish
    such a committee? Should they be required to coordinate with the
    Department of Justice? Should they be required to obtain the sign-off
    from the attorney general before they grant immunity?
    You want it to kind of steer clear of an act of prosecution not
    just on the question of immunity but on the question of not trampling
    the prosecutive strategy of the Department of Justice. How would you
    work that?

  • MR. FARMER

    At 01:25:15
    1 minute

    I think the issue of immunity is one that will be
    driven by the previous issue, which is what is the scope of the
    investigation going to be? And I think that's really, I think, the
    toughest issue that the committee has to address.
    If the mission is drawn too broadly -- and I would argue if it's
    drawn so broadly that it captures issues such as did these tactics
    make us less safe as opposed to simply finding what the facts are -- I
    think the commission will lose credibility because you'll end up
    having to prove a negative.
    But assuming that the mission and the scope of the mission as
    defined by the committee does have the commission focusing on
    individual cases it seems to me that immunity is going to be an issue
    that has to be dealt with. And my suggestion would be that some form
    of coordination with the Justice Department would be appropriate.
    What the specifics of that coordination would be would depend, again,
    on how the scope of the commission's job is defined.

  • SEN. LEAHY

    At 01:26:23
    6 seconds

    Again, Ambassador Pickering I want to keep to our
    commitment and please feel free to leave, sir.

  • MR. PICKERING

    At 01:26:29
    5 seconds

    Thank you.

  • SEN. LEAHY

    At 01:26:34
    30 seconds

    You know, on the immunity, Mr. Schwarz, to follow up
    a little bit on the question you had asked before. You note in your
    testimony the Church committee had the authority to grant immunity but
    uncovered a great deal of illegal activity without ever exercising
    that authority. Am I sort of stating your testimony correctly?

  • MR. SCHWARZ

    At 01:27:04
    1 minute

    Yes you are . We had -- (audio break) -- but
    nobody asked for immunity and I don't know quite why. I think high
    level people don't want to and low level people I think they
    understand they're not going to be prosecuted. And, frankly, I think
    it might be in the public interest for the Justice Department pretty
    quickly to come to a conclusion now about low level people.
    It's -- I personally -- again, I want to say what I said to
    Senator (Cardin ?) -- I don't think we should think about prosecuting
    CIA agents. I think that's going to turn out to be inappropriate.
    And if it were taken off the table early, that would be a good thing
    too.

  • SEN. LEAHY

    At 01:28:04
    2 minutes

    What I found in some of the investigations that have
    taken place in the past, when we're going to get those corporals and
    sergeants but we don't go above -- and I really am always worried that
    in such an investigation there is an effort to go after the minor
    players. And I think the Justice Department -- I know they are
    working on this issue you raised.
    And I'm more concerned about those who made the decisions of the
    policies to basically say if the White House gives a directive to
    break the law, you're not breaking the law. From a prosecutor's point
    of view, it's awfully hard to say how you go after the person who then
    broke the law, but I would like to know why we had people who felt
    that somehow a president could be above the law.
    We saw what happened when a former president years ago, prior to
    my being in the Senate, said if the president does it, it's not
    breaking the law. And the reaction of this country, by both
    Republicans and Democrats, against such a thing and a statement as any
    of us, including the three of us on the other side of this table know,
    having been prosecutors, we don't have any provisions in our
    Constitution that puts some people, elected or otherwise, above the
    law. None of us are.
    Admiral Gunn, I discussed the image of America's laws and values
    and this country's image abroad. You've expressed similar sentiments,
    but you had a different perspective. Now, you're a long-time military
    officer. You commanded ships. You were in the field. You were in
    combat. You led large numbers of military men and women. But you
    were also the inspector general. So you've kind of seen it from all
    angles in the military.
    Based on your experience and expertise, what do you believe has
    been the effect of the past administration's justification of torture
    and other abusive treatment on this country's strategic and national
    security interests?

  • ADM. GUNN

    At 01:30:49
    7 seconds

    I would have to refrain from spreading my experience
    too broadly in my answer to this, but --

  • SEN. LEAHY

    At 01:30:56
    10 seconds

    Well, let's (put this ?) on the military morale and
    the safety of our military men and women. That stays well within your
    frame of reference. What about there?

  • ADM. GUNN

    At 01:31:06
    2 minutes

    Yes, sir. And I think the effect there has been
    profound. We have depended over the years on important alliances,
    military relationships, for decades. In my personal experience,
    members of the United States military have invested their own time and
    credibility in building relationships around the world with the
    militaries of other countries.
    I was thinking, as you were asking the question, about the
    relationship that I established while I was on active duty as a
    consequence of having certain jobs with the naval attaches who
    represent countries around the world of great importance to the United
    States, allies and friends. And when those attaches return to their
    home country, there are no more solid advocates of American military
    positions and there are no better fans of American values and how
    those are translated into the way we do business than those people are
    who go back to responsible positions in their governments.
    I can't think of a one with whom I've stayed in contact who
    hasn't told me over the last six or seven years how difficult it is in
    his or her country to be a friend of America. And that, I think, sows
    the seeds of a serious problem that has to be overcome.
    In terms of the effect on the people at the point of capture,
    when detainees are taken, the folks who are charged in the high-
    pressure cauldron of dealing with detainees once they're within the
    custody of the United States, those kinds of high-pressure
    environments in which we ask young Americans to do their duty require,
    in my view, and I think in the view of most military officers, that
    there be this clear, unambiguous set of guidelines.
    What's more, young Americans don't join the military with the
    idea that they're going to be asked to violate their own principles
    and the principles of their country. And my personal view is that the
    things they were asked to do or allowed to do, whether they were in
    uniform, whether they were military people or in the CIA, violated
    their own principles in a way that's added dramatically to their
    stress and caused them to suffer many of those same kinds of
    consequences personally that people have been involved in street
    combat have suffered under.

  • SEN. LEAHY

    At 01:33:47
    28 seconds

    My youngest son is a former Marine, and we've talked
    about this at great length. And without putting him on the spot, he
    said exactly the same thing. It was drilled into him. A lot of
    things were drilled into him in his basic training, but that was one
    of the things, and again, when he was preparing to be deployed for
    Desert Storm.
    Senator Cornyn.

  • SEN. JOHN CORNYN (R-TX)

    At 01:34:15
    42 seconds

    Thank you, Mr. Chairman.
    Mr. Rivkin, Admiral Gunn suggests that when it comes to the
    (project ?) of a truth commission, that such a truth commission, its
    byproduct will actually improve cooperation between us and our allies
    when it comes to gathering and sharing intelligence and defeating a
    common enemy when it comes to Islamic extremism.
    Do you agree that such a commission would improve intelligence
    cooperation among allies, or do you think it's more likely to make our
    foreign allies more skittish when it comes to these matters?

  • MR. RIVKIN

    At 01:34:57
    1 minute

    (Off mike.) I think it's the latter. I do not see
    how going through -- (inaudible) -- self-referential and self-absorbed
    exercise that would not lead to any kind of national consensus, but
    basically it would dwell at great length on our alleged sins.
    And by the way, we're all entitled to our opinions. I
    fundamentally disagree with the narrative that has been portrayed here
    of the Bush administration's alleged misdeeds. Yes, mistakes were
    made. Yes, some bad things happened. But compared with the
    historical base line of past wars, the conduct of the United States in
    the last eight years, Senator Cornyn, has been exemplary, measured by
    any objective indicia of misdeeds -- abuse of detainees per thousand
    captured, excessive use of force per thousand troops in the field. So
    I don't see that at all.
    But again, to me -- and I'm taking the liberty of going beyond
    your question -- it doesn't matter how you assess -- (inaudible). If
    we take the Constitution seriously, if we take our political culture
    seriously, just like critics argue that there are some things you
    should not do in terms of torturing people, no matter what utilitarian
    benefits you may have, you don't outsource law enforcement. You don't
    warp the constitutional fabric. That is not the right thing to do.
    It is the fundamentally wrong thing to do.
    So to me there is nothing to do -- even if all sorts of humongous
    benefits are going to flow from this truth commission, this is just
    not what we're supposed to do as a country.

  • SEN. CORNYN

    At 01:36:37
    1 minute

    Admiral Gunn, to give you a chance to respond,
    since I referred to your testimony, you said it's the responsibility
    of the commander in chief and of Congress to ensure and demand that
    the behavior of Americans toward those in custody complies with the
    Geneva Conventions and with the highest standards dictated by
    international conventions on detainee treatment.
    I hope you would agree with me that Congress has at least played
    some role in trying to deal with these subjects. For example, I
    mentioned the Detainee Treatment Act which we passed and was signed by
    the president in 2005 in the wake of the Supreme Court's decision in
    Hamdan versus Rumsfeld. Of course, we also passed the Military
    Commissions Act to create a tribunal where some of these detainees
    could actually be tried.
    I understand that people may agree or disagree with the wisdom of
    those individual pieces of legislation. But wouldn't you agree with
    me that Congress has been very much involved in oversight into these
    issues? And I'm just curious why it is you believe that it would now
    be necessary for Congress and the executive branch to, in effect,
    delegate our investigative function to an unaccountable so-called
    truth commission.

  • ADM. GUNN

    At 01:38:00
    2 minutes

    Yes, sir. Well, there are a number of questions
    there. And I certainly agree that Congress has been involved and has
    done things that have helped to ameliorate the situation.
    And in some cases Congress has tried to do things that were --
    where the efforts were thwarted by the president. The 2005 amendment
    that Senator McCain advocated -- and actually was the nucleus around
    which our group of retired flag and general officers organized in
    order to support him in that effort, was successful in Congress and
    not successful at the White House.
    I think -- don't get me wrong when I talk about what I think the
    government, as a unit, both the Executive and the Legislative branch,
    owe to the people in the field. The collective effect of what is done
    here must be that the people in the field understand their duty and
    their obligations entirely, and do so in a context that allows them,
    when the utmost pressure is applied, to perform in ways that we're
    proud of and they're proud of. That has been missing in very
    important ways recently.
    To the issue of whether we should have a commission of a
    particular forum or not, I am advocating not a special forum that --
    because I have no informed legal opinion on the various approaches
    that might be used, I'm advocating that we get to the bottom of things
    and that, at the end of the day, we establish what went wrong.
    And what's sort of missing in the conversation is that this same
    enquiry could identify what went right. And there's a -- that is a
    feature of the kinds of enquiries and investigations that I referred
    to in my testimony and also as I spoke before.
    The military works very hard to understand what went well so that
    we can reinforce that; as well as what went wrong, and how we can
    remedy that. And I suggest that maybe more emphasis on the
    commission's ability to identify the good things might blunt some of
    the criticism and concern about it solely focusing on errors.

  • SEN. CORNYN

    At 01:40:28
    2 seconds

    Thank you, Mr. Chairman. My time's up.

  • SEN. LEAHY

    At 01:40:30
    4 seconds

    (Off mike.)

  • SEN. WHITEHOUSE

    At 01:40:34
    1 minute

    Thank you, Mr. Chairman.
    Mr. Rivkin, you raise a sort of "gallery of horribles" of the
    things that might go wrong with such a commission. Let me ask you --
    just to sort of narrow the point, if you assume that the purpose of
    this commission is advisory and policy only; if you assume that
    criminal law enforcement is properly cabined within the Executive
    Branch, as it should be; if you assume that we set it up so that its
    coordination with law enforcement on issues like immunity -- is
    properly coordinated so that it does not intrude into that function;
    and if it is set up not, as you suggested, (as a ?) private entity,
    but rather in the proper exercise of delegated Congressional oversight
    authority, do you still oppose the commission even in the absence of
    the "parade of horribles" that you suggest?

  • MR. RIVKIN

    At 01:41:53
    27 seconds

    Thank you for your question, Senator Whitehouse.
    With respect, this assumes too much, and let me unpack it. To
    me, a law enforcement function has a variety of aspects, as you well
    know. Having a situation where the ultimate decision to proceed with
    an indictment -- bringing the case before a grand jury and proceeding
    with a prosecution, is reserved to the Department of Justice, and I'm
    sure that will be the case.
    It does not --
    (Cross talk.)

  • SEN. WHITEHOUSE

    At 01:42:20
    4 seconds

    -- nobody's suggesting --
    (Cross talk.)
    -- obviously, nobody's suggesting otherwise.

  • MR. RIVKIN

    At 01:42:24
    21 seconds

    Right, but to me, that's not enough. I can give you
    at least several examples where other aspects of law enforcement
    function, namely, deciding, as a threshold determination -- which is
    why I mentioned the controversy about the alleged loosening of the
    threshold determinations, the decision "whom to investigate,"
    particularly if you are talking of a -- about a small group --

  • SEN. WHITEHOUSE

    At 01:42:45
    1 second

    We do that in Congress every moment.

  • MR. RIVKIN

    At 01:42:46
    7 seconds

    But, you have the right, with all due respect,
    Senator, to do that in the exercise of your legislative and oversight
    function --
    (Cross talk.)

  • SEN. WHITEHOUSE

    At 01:42:53
    2 seconds

    And we (easily ?) have a right to delegate it.

  • MR. RIVKIN

    At 01:42:55
    3 seconds

    No, I do not believe -- and, you know, I don't want
    to get into --

  • SEN. WHITEHOUSE

    At 01:42:58
    4 seconds

    You don't believe that the Congressional
    oversight function is delegable?

  • MR. RIVKIN

    At 01:43:02
    3 seconds

    I do not believe that the Congressional oversight
    function is readily delegable --

  • SEN. WHITEHOUSE

    At 01:43:05
    5 seconds

    "Readily" is a big hedge. Do you believe it is
    delegable or not?

  • MR. RIVKIN

    At 01:43:10
    3 seconds

    To a private commission --
    (Cross talk.)
    -- I do not. You certainly can organize your staff

  • SEN. WHITEHOUSE

    At 01:43:13
    5 seconds

    Well, now you've used another hedge word, you
    "a private commission."

  • MR. RIVKIN

    At 01:43:18

    Well, I --

  • SEN. WHITEHOUSE

    At 01:43:18
    8 seconds

    That's not the word that I used. Assume that
    it's delegated to a public, properly appointed commission that is
    exercising delegated -- appointed authority.

  • MR. RIVKIN

    At 01:43:26
    1 minute

    Appointed in accordance of "appointments clause?"
    That would make a huge difference. Appointed in a sense that you, and
    members (of minority ?) choose people, and the president appoints some
    people -- no.
    If you could configure a commission in a way that makes it an
    extension of an Article I branch, I would not have fundamental
    problems with it. I don't see how that's practicable or possible.
    And you can call it "public," but I don't see how you can delegate
    your oversight responsibilities.
    But, consider another question: If the real intent -- and,
    again, if it, I hate to sound trite, but if it talks like a duck, and
    walks like a duck, whether it's called a policy exercise or not. Even
    today we've heard several times from my colleagues on this panel about
    the need to -- (inaudible) -- criminal prosecutions.
    What this commission does, basically it comes up with a bunch of
    files -- the kind of things that a public integrity section, national
    security section, U.S. attorney's office does on 12 or 14 people, and
    then passes the buck to the Department of Justice in the public
    spotlight.
    I would submit to you that that fundamentally subverts the most
    basic Constitutional protections. And, with respect, if this was
    contemplated in a different policy context, every law professor I know
    would be screaming about it, in terms of what a horrible violation of
    civil liberties it is, okay.
    (Moreover ?), this commission --

  • SEN. WHITEHOUSE

    At 01:44:47
    3 seconds

    Every law professor you know would be screaming
    about this?

  • MR. RIVKIN

    At 01:44:50
    3 seconds

    Yes, if it was done in a context of --

  • SEN. WHITEHOUSE

    At 01:44:53
    1 second

    Oh, "if." Okay, I'm sorry.

  • MR. RIVKIN

    At 01:44:54
    3 seconds

    Well, because -- no, if it was done in a context of
    a conservative administration --

  • SEN. WHITEHOUSE

    At 01:44:57
    2 seconds

    I'm trying to get an "unhedged" phrase out of
    you in the course of this.

  • MR. RIVKIN

    At 01:44:59
    43 seconds

    I'll give you an example. My colleague, in his
    prepared testimony -- Professor Rabkin mentions a hypothetical, of a
    Bush administration, in the aftermath of (the) 9/11 disaster, having a
    -- suggesting a private commission to investigate organizations in
    this country, charitable and otherwise, to look at their nefarious
    influence and the extent to which they made this attack possible, with
    a view towards possible prosecutions through appropriate channels.
    Do you not think that most of the law faculties in this country
    would be up in arms about this? The fact that we're Bush
    administration officials here doesn't make any difference. They're
    Americans, they're entitled to a full panoply of Constitutional
    rights. You don't get -- and the fundamental point that I make about

  • SEN. WHITEHOUSE

    At 01:45:42
    6 seconds

    The organized criticism of past administration
    officials is an offense against their civil liberties?

  • MR. RIVKIN

    At 01:45:48
    2 seconds

    Organized criticism in a policy context --

  • SEN. WHITEHOUSE

    At 01:45:50
    2 seconds

    But, that was one of the things we signed up
    for --

  • MR. RIVKIN

    At 01:45:52

    -- is not -- (inaudible) --

  • SEN. WHITEHOUSE

    At 01:45:52
    2 seconds

    -- when we took these jobs.

  • MR. RIVKIN

    At 01:45:54
    4 seconds

    Organized criticism in a context of looking at
    individual, criminal culpability -- (inaudible) --

  • SEN. WHITEHOUSE

    At 01:45:58
    7 seconds

    No, no, no. No, no, no no. There you go
    again. We just discussed that this would not be looking at individual
    criminal culpability. My assumption --

  • MR. RIVKIN

    At 01:46:05

    Oh?

  • SEN. WHITEHOUSE

    At 01:46:05
    3 seconds

    -- at the very beginning of our discussion was
    if we had properly cabined --

  • MR. RIVKIN

    At 01:46:08

    And I said --

  • SEN. WHITEHOUSE

    At 01:46:08
    2 seconds

    -- (inaudible) -- criminal law enforcement
    role.

  • MR. RIVKIN

    At 01:46:10
    3 seconds

    -- and I said, with respect, that that assumes too
    much. There is no way to cabin that.

  • SEN. WHITEHOUSE

    At 01:46:13

    Of course there is.

  • MR. RIVKIN

    At 01:46:13
    38 seconds

    Pray tell, how are you going to come up, if you are
    a member of this commission, with an analysis of -- and I don't want
    to use names, but two or three members of the Bush administration
    violated, for example, the statute against torture, which is a
    criminal statute, as you very well know. How would you exactly write
    this up in a way that does not come to conclusions about individuals?
    Because if you say, "Mr. A committed torture" -- and, by the way, if
    you say it properly, not only in terms of the acts, with adequate mens
    rea, that reads like a document that an assistant U.S. attorney
    prepares to send to his boss to get a decision on whether or not to
    prosecute. How else would you write it up?

  • SEN. WHITEHOUSE

    At 01:46:51
    22 seconds

    Well, my time has expired, but I would suggest,
    Mr. Rivkin, that until you know, and we all know what was actually
    done under the Bush administration, you not be so quick to throw other
    generations of Americans under the bus and assume that they did worse.

  • SEN. LEAHY

    At 01:47:13
    22 seconds

    Mr. Rabkin, I spoke to you earlier and I said that
    if you wanted to take a minute or so to add to anything I had to say,
    please feel free to do so. I wanted -- you were invited by the other
    side of the aisle, but they've all left -- (laughter) -- they've all
    left and so this side of the aisle will give you a chance to say
    something further if you want.

  • MR. RABKIN

    At 01:47:35
    16 seconds

    Just, very briefly, I think one difficulty that
    we've had this morning is that we don't have a bill in front of us, so
    we're speaking about a hypothetical commission, and we don't have a
    very clear notion of --

  • SEN. LEAHY

    At 01:47:51
    3 seconds

    But, isn't that something -- one of the reasons why
    you have hearings, to determine --

  • MR. RABKIN

    At 01:47:54

    Yeah, I'm not --

  • SEN. LEAHY

    At 01:47:54
    2 seconds

    -- before you write a bill?

  • MR. RABKIN

    At 01:47:56
    2 seconds

    -- I'm not criticizing anyone.

  • SEN. LEAHY

    At 01:47:58
    2 seconds

    In my 36 years here, it seems to be the way we do
    it.

  • MR. RABKIN

    At 01:48:00
    1 minute

    I'm not criticizing anyone for this, I'm just saying
    it's somewhat difficult to address a proposal that is, at this point,
    not well defined.
    And I wanted to just emphasize this before we end, which is, it's
    one thing to try to find specific facts: "What was the worst thing
    done to someone in American custody?" I'm not sure that is secret,
    but if that's what we're talking about, I think that's a different
    thing from making an assessment of what were the causes of this; what
    were the consequences of this. Then, you're really getting into a
    statement about how foreign policy should have been differently
    conducted; or how security policy should have been differently
    conducted.
    And I think that's almost certainly asking too much of a
    commission. And, putting aside whether there are Constitutional
    difficulties or civil liberties difficulties, just ask yourself, is it
    reasonable to think that any group of experts could speak to the
    country not on the specific findings of fact, but on how we should
    assess this; and the country nods and says, "That's right?" I think
    we're not that kind of a country.

  • SEN. LEAHY

    At 01:49:15
    42 seconds

    You think that we cannot find somebody at the
    highest level -- the White House, for example, who directs people to
    break the law, saying "this is an exigent situation," whether it's on
    wiretapping; on various search and seizure matters; putting people's
    names into databases, or secret databases, where their jobs have been
    affected, their abilities to get on airplanes are affected, and so
    forth, and that is done in violation of specific statutes and the
    Constitution. And you don't think we should at least ask that
    question, who did it and why?

  • MR. RABKIN

    At 01:49:57
    11 seconds

    Oh, absolutely. And if you think that there was
    legal violations, then I think there should be U.S. attorneys asking
    those questions and possibly filing indictments. I'm not quarreling
    with that at all.

  • SEN. LEAHY

    At 01:50:08
    1 minute

    Well, we've asked those questions. And of course, a
    lot of it was stonewalled. We're now getting the answers and we're
    realizing, especially with the OLC opinions being released, we're
    beginning to see why we were stonewalled because some of them, I
    think, both conservative or liberal commentators, would look at them
    and say they were completely a misstatement of the law. That's all
    we're asking for. Who said, break the law, and why? And was it
    broken?
    I mean, the ramifications, especially in the digital age, are
    amazing. We've seen on just some of the things that have become more
    publicized when a 1-year-old child, parents had bought their super-
    saver fares to take the child with them to visit relatives and the
    child can't get on the airplane because they're on -- the child, not
    the parents, the child -- is on a terrorist watch list. And they
    missed their plane, they have to get a passport, file for a passport,
    get a passport to prove this 1-year-old child is not some 45-year-old
    terrorist. The longest-serving member of this committee, Senator
    Edward Kennedy, half a dozen or a dozen times was told he could not
    board a plane he's been taking for 40 years because he's on a watch
    list. President Bush even called him to apologize. He said he
    appreciated the apology, but it wasn't the president's fault. He just
    wanted somebody to get him off the list, and they couldn't.
    I mean, some of these things worry us if on illegal wiretaps, for
    example, you're named on some of these lists, on illegal search and
    seizure, your name gets on some of these lists. We ought to at least
    know who came up with the bright idea.

  • MR. RABKIN

    At 01:51:58
    2 seconds

    Could I just respond to that?

  • SEN. LEAHY

    At 01:52:00

    Of course.

  • MR. RABKIN

    At 01:52:00
    33 seconds

    I think what you've just been talking about almost
    certainly should be reviewed and reconsidered. I'm not at all
    questioning the validity of your criticism or concern. What I'm
    concerned about is that you take one disputed policy or one series of
    mishaps or even abuses and unlawful acts from this are, you take
    another example from there, you take a third example from there. What
    you just talked about, it seems to me, to have nothing at all in
    common with allegations of --

  • SEN. LEAHY

    At 01:52:33

    Well --

  • MR. RABKIN

    At 01:52:33
    4 seconds

    -- let me just finish -- allegations of torture at
    Guantanamo.

  • SEN. LEAHY

    At 01:52:37
    4 seconds

    Well, Mr. Rabkin, we haven't even gotten to the
    torture part. I'm going through a series of things that were all --

  • MR. RABKIN

    At 01:52:41
    3 seconds

    Right, I understand. But if you --

  • SEN. LEAHY

    At 01:52:44

    Let me finish, let me finish.

  • MR. RABKIN

    At 01:52:44
    2 seconds

    Sure.

  • SEN. LEAHY

    At 01:52:46
    1 minute

    If you violate the Constitution in wiretaps and
    specific statutes, if you violate the law in not using the FISA Court,
    something set up after the Church Committee's hearings, if you violate
    the law on torture condoning things that we actually prosecuted other
    people for doing, if you then have people come before the Congress and
    lie about it, they may be all individual things but they're all part
    of the same mix. And what I want to do -- others have said let's turn
    the page. Fine. But read the page before you turn it. And it is a
    concern to me that some want to ignore that.
    Now, I (am involved here ?) of hearings and investigations going
    on in other committees. And of course, we will continue to ask
    questions in this committee. But what only worries me is I want the
    American people to see something that's outside of the political
    arena, like the 9/11 commission or others, to find out what's going
    on.

  • MR. RABKIN

    At 01:54:05
    39 seconds

    If you bundle all of these disparate things together
    and you do, as people used to say in a different context, connect the
    dots, you can draw a very, very disputable picture because you're
    saying, what was the root cause of all of these disparate things? And
    the root cause will come down to something like the general
    orientation of the Bush administration was toward lawlessness, or they
    were obsessed with terrorism. And when you get to that level of
    generalization, I think it's bound to be extraordinarily
    controversial. And the idea that this will reconcile the country,
    this will bring us all together, this will establish a consensus, the
    more general it is, the more hopeless it is.

  • SEN. LEAHY

    At 01:54:44
    11 seconds

    Mr. Rabkin, you stated what the conclusion is going
    to be. You have far more experience than I. I'd like to ask the
    questions and see what the conclusion is going to be before we have --

  • MR. RIVKIN

    At 01:54:55

    Well --

  • SEN. LEAHY

    At 01:54:55
    3 seconds

    Go ahead, Mr. Rivkin.

  • MR. RIVKIN

    At 01:54:58
    4 seconds

    Well, just some things being --

  • SEN. LEAHY

    At 01:55:02
    7 seconds

    I think another one of the Republican witnesses are
    trying to disparage you even though the Republicans who asked you to
    be here didn't want to bother to stay and listen to you. But please,
    go ahead.

  • MR. RIVKIN

    At 01:55:09
    52 seconds

    You are exceptionally fair, and I appreciate it.
    But I just wanted to say briefly the very examples you used, to me,
    clearly attest that this commission cannot fundamentally escape
    passing assessments and making judgments about criminal liability of a
    small circle of people. And with respect, that is what the executive
    branch can do through proper channels, that is what you can do
    operating in the -- (inaudible). That is not what a commission can
    do.
    And even if we agreed on the betrayal of the problem, the genius
    of the Constitution is that no matter how pressing and compelling the
    need, you cannot proceed through constitutionally improper channels.
    There has never been a case in the American history where a commission
    was set up with this heavy of a prosecutorial burden. It would be
    fundamentally illegitimate, no matter how strongly you believe it
    would have a curative effect.

  • SEN. LEAHY

    At 01:56:01
    3 seconds

    Was the 9/11 commission illegitimate? Was the
    Watergate --

  • MR. RIVKIN

    At 01:56:04
    25 seconds

    Of course not. The 9/11 commission looked at -- the
    worst thing that would have happened is some agency got slammed, their
    budget got cut, bureaucratic chairs got reshuffled. The 9/11
    commission had no mandate or interest in going after people. (Were
    you ?) competent on how analyzed intelligence? Would that lead to an
    indictment? The circumstances of how this (ballot ?) has been driven
    inescapably make it a criminal process.

  • SEN. LEAHY

    At 01:56:29
    47 seconds

    Mr. Rivkin, I'm trying to be fair to you, to the
    folks who invited you here didn't stay to ask you the questions. I've
    been trying to keep it open for you. Thank you. And I will have the
    last word, one of the advantage of being chairman, and we'll keep the
    record open if people want to add to it.
    If criminal conduct occurred, this senator wants to know about
    it. Now, I began my public career as a prosecutor. I'm trying to
    give the ability to find out if criminal conduct occurred so it would
    not occur again. It doesn't necessarily mean there's even going to be
    prosecution for it. But if crimes are committed, I don't think we
    sweep them under the rug.
    We stand in recess.

  • At 01:57:16
    2 minutes