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
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
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
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 --
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.
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
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
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.
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.
I thank you --
Senator Kaufman, why don't you move on down here
with us, please.
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
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
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) --
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
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
And Ambassador, I just wanted to state publicly how much I have
appreciated those briefings over the years. Please, it's your -- go
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
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
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
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.
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.
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
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
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
Thank you very much, Mr. Chairman.
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
Mr. Farmer, we're delighted to have you here.
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
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
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
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
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
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
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 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.
(Off mike.) That was quite a few years ago when we
It was. I actually had hair back then and it was a
little bit darker. (Scattered laughter.)
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.
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. 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
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
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
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
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
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
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.
(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.
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 --
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.
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
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 -- "
No disagreement with you. I've had something like
65,000 emails on this --
-- 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 --
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
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
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
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.
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
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.)
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.
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?
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.
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
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?
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
My time is up. I will come back with further questions.
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.
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.
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
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
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) --
-- 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
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.
Well, you disagree with them. If you wanted, Mr.
No, they were wrong. I'll give you one example.
-- 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?
The Pike investigation was not handled as well as
the Church investigation and the --
Well, would you answer my question? Do you agree
or disagree with that case?
I -- of course, I disagreed with that.
I appreciate that you disagreed but your statement
that it's flat wrong is a statement of your opinion and not
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
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
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?
Thank you, Senator Whitehouse. Thank you for
your kind comments. And I had the privilege and honor of working with
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
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.
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
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.
Again, Ambassador Pickering I want to keep to our
commitment and please feel free to leave, sir.
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?
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
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
I would have to refrain from spreading my experience
too broadly in my answer to this, but --
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?
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.
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
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?
(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.
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
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.
Thank you, Mr. Chairman. My time's up.
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?
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 --
-- nobody's suggesting --
-- obviously, nobody's suggesting otherwise.
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 --
We do that in Congress every moment.
But, you have the right, with all due respect,
Senator, to do that in the exercise of your legislative and oversight
And we (easily ?) have a right to delegate it.
No, I do not believe -- and, you know, I don't want
to get into --
You don't believe that the Congressional
oversight function is delegable?
I do not believe that the Congressional oversight
function is readily delegable --
"Readily" is a big hedge. Do you believe it is
delegable or not?
To a private commission --
-- I do not. You certainly can organize your staff
Well, now you've used another hedge word, you
"a private commission."
Well, I --
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.
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
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 --
Every law professor you know would be screaming
Yes, if it was done in a context of --
Oh, "if." Okay, I'm sorry.
Well, because -- no, if it was done in a context of
a conservative administration --
I'm trying to get an "unhedged" phrase out of
you in the course of this.
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
The organized criticism of past administration
officials is an offense against their civil liberties?
Organized criticism in a policy context --
But, that was one of the things we signed up
-- is not -- (inaudible) --
-- when we took these jobs.
Organized criticism in a context of looking at
individual, criminal culpability -- (inaudible) --
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 --
-- at the very beginning of our discussion was
if we had properly cabined --
And I said --
-- (inaudible) -- criminal law enforcement
-- and I said, with respect, that that assumes too
much. There is no way to cabin that.
Of course there is.
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?
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.
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.
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 --
But, isn't that something -- one of the reasons why
you have hearings, to determine --
Yeah, I'm not --
-- before you write a bill?
-- I'm not criticizing anyone.
In my 36 years here, it seems to be the way we do
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
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.
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?
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.
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
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.
Could I just respond to that?
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 --
-- let me just finish -- allegations of torture at
Well, Mr. Rabkin, we haven't even gotten to the
torture part. I'm going through a series of things that were all --
Right, I understand. But if you --
Let me finish, let me finish.
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
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.
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 --
Go ahead, Mr. Rivkin.
Well, just some things being --
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,
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
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.
Was the 9/11 commission illegitimate? Was the
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.
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.