Detainee Treatment and Interrogation Policy, Part 1 - May 13, 2009

Transcript Text

  • SEN. WHITEHOUSE

    At 00:45
    12 seconds

    Good morning. The hearing will come to order.
    I will make some brief opening remarks. The distinguished acting
    ranking member, ranking member?

  • SEN. LINDSEY GRAHAM (R-SC)

    At 00:57
    1 second

    Acting would be good.

  • SEN. WHITEHOUSE

    At 00:58
    7 minutes

    -- acting ranking member will make some
    remarks. The distinguished chairman will make some remarks. Chairman
    Feinstein will make some remarks. And if anybody else wishes to make
    some remarks -- I'd like to try to get opening remarks closed before
    the 10:30 vote begins, and then we'll come back and go to the
    witnesses.
    I thank everyone for being here.
    Winston Churchill said, "In wartime truth is so precious that she
    should always be attended by a bodyguard of lies." The truth of our
    country's descent into torture is not precious, it is noxious. It is
    sordid. But it has also been attended by a bodyguard of lies.
    This hearing is designed to begin a process that will expose some
    of those lies, that will prepare us to struggle with that sordid
    truth, and that will examine the battlements of legal authority
    erected to defend that truth and its bodyguard of lies.
    The lies are legion. President Bush told us, "America does not
    torture," while authorizing conduct that America has prosecuted, both
    as crime and war crime, as torture. Vice President Cheney agreed in
    an interview that waterboarding was like a dunk in the water, when it
    was used as a torture technique by tyrannical regimes from the Spanish
    Inquisition to Cambodia's killing fields.
    John Yoo told Esquire magazine that waterboarding was only done
    three times, when public reports now indicate that two detainees were
    waterboarded 83 and 183 times. About Khalid Sheikh Mohammad,
    reportedly waterboarded 183 times, a former CIA official had told ABC
    News, "KSM lasted the longest under waterboarding, about a minute and
    a half, but once he broke, it never had to be used again."
    That, too, was a lie. We were told that waterboarding was
    determined to be legal but were not told how badly the law was
    ignored, bastardized and manipulated by the Department of Justice's
    Office of Legal Counsel. Nor were we told how furiously government
    and military lawyers rejected the defective OLC opinions -- that were
    ignored.
    We were told we couldn't second-guess the brave CIA officers who
    did this. And now we hear that the program was led by private
    contractors with a profit motive and no real interrogation experience.
    Former CIA Director Hayden and former Attorney General Mukasey
    told a particularly meretricious lie: that the Army Field Manual
    restrains abuse by naive young soldiers but isn't needed by the
    experienced experts at the CIA.
    The Army Field Manual is a code of honor, as reflected by General
    Petraeus' May 10th, 2000 letter to the troops, which I ask unanimous
    consent to have admitted as a exhibit to this hearing. Without
    objection.
    Moreover, military and FBI interrogators such as Matthew
    Alexander, Steve Kleinman and Ali Soufan are the true professionals.
    We know now that the experienced interrogators referenced by
    Hayden and Mukasey had little to no experience. In fact, the CIA
    cobbled its program together from techniques used by the SERE program,
    designed to prepare captured U.S. military personnel for interrogation
    by tyrant regimes who torture to generate propaganda.
    To the proud, experienced and successful interrogators of the
    military and the FBI, I believe Judge Mukasey and General Hayden owe
    an apology.
    Finally, we were told that torturing detainees was justified by
    American lives saved -- saved as a result of actionable intelligence
    produced on the waterboard. That is far from clear. Nothing I have
    seen convinces me this was the case. FBI Director Mueller has said he
    is unaware of any evidence the waterboarding produced actionable
    information.
    The example of Zubaydah providing critical intelligence on Khalid
    Sheikh Mohammad and Jose Padilla, often given, is false, as the
    information was obtained before waterboarding was even authorized.
    And there's been no accounting of wild goose chases our national
    security personnel may have been sent on by false statements made by
    torture victims just to end the agony; no accounting of intelligence
    lost if other sources held back from dealing with us after our descent
    to what Vice President Cheney called "the dark side"; no accounting of
    the harm to our national standing or our international goodwill; no
    accounting of the benefit to our enemies' standing and goodwill,
    particularly as measured in militant recruitment or fundraising; and
    no accounting of the impact this program has on information sharing
    with foreign governments whose laws prohibit the type of treatment and
    detention policies the administration has enacted.
    I could relate other lies, a near avalanche of falsehood on the
    subject of torture and what we've been told about interrogation
    techniques.
    But I suffer a disability: I'm a legislator. Legislators have
    no authority to declassify. Our Senate procedure for
    declassification is so cumbersome that it has never been used. All of
    the de-classifiers in government are executive branch officials. And
    the Bush administration knew this, so they spouted their rhetoric,
    again, much of it outright false and much of it misleading. And
    though many of us in Congress knew it to be false, we could not reply.
    It is intensely frustrating.
    We've been told you shouldn't criminalize conduct by prosecuting
    it. You criminalize conduct by making it a crime under the law of the
    land at the time the crime was committed. Prosecution doesn't
    criminalize anything. Prosecution vindicates the law in place at the
    time, based on the facts that are admissible as evidence.
    We've been told you shouldn't prosecute people who followed
    lawful orders or relied on proper legal authorities or in good faith
    offered their best legal advice. But those are the questions, aren't
    they, and not the answers?
    This is the first of what I hope will be a series of hearings
    looking into these questions. I hope we'll soon be provided the
    Department of Justice Office of Professional Responsibility report on
    its investigation of the Office of Legal Counsel and hold more
    thorough hearings in the wake of that.
    Let me conclude by saying what a very sad day it is for American
    and for the Department of Justice that there should be such a thing as
    an OPR investigation into the United States Department of Justice
    Office of Legal Counsel and how loathsome it is what a few men did to
    bring this upon that office.
    I'd like to thank Chairman Leahy for allowing me to hold this
    hearing. No one has worked harder and cares more about this issue
    than he does.
    I also want to acknowledge the tireless work of Senator
    Feinstein, my chairman on the Intelligence Committee, who is leading
    its detailed investigation into the Bush administration's
    interrogation and detention program. I applaud her for her efforts to
    get to the bottom of this shameful period of our country's history.
    Today we will here from a distinguished panel of witnesses who
    will help us shed light on this topic. I thank them for their
    appearance this morning.
    I remind them all about unauthorized disclosure of classified
    information.
    I want to make a particular note about our last witness, Ali
    Soufan. Mr. Soufan interviewed al Qaeda terrorists and went
    undercover against al Qaeda. Threats against him have been
    documented. We ask the press to respect the security procedures we
    have in place and avoid photographing his face.
    Senator Graham, any statement you would like to give.

  • SEN. GRAHAM

    At 08:33
    10 minutes

    Thank you, Mr. Chairman.
    Well, I really don't know what to say or how to begin other than
    the difference between the nobility of the law and a political stunt
    may be soon evident one way or the other. And I don't know whether
    this is actually pursuing the nobility of the law or a political
    stunt. We'll let the American people decide.
    But I don't question the chairman's motivation. He's a very fine
    man, and I think he's rightly disturbed by some of the decisions that
    were made in the past, and so have I been.
    But I guess if we're going to talk about evil, we need to talk
    about it more than just the last administration's policy decisions
    about trying to protect the nation, or to put in context what we're
    facing and who we're fighting: people who really could care less
    about any law anywhere.
    And would we have this hearing if we were attacked this
    afternoon? Do you want to have a bunch more hearings about what
    happened in the past -- if one of our national treasures were attacked
    tomorrow, would we have more hearings or would we focus on repairing
    the damage and staying ahead of the enemy?
    If we're going to find out who did what, when, we need to find
    out who was told about it and when they were told about it. And if
    we're going to really find out what happened, it seems to me we'd want
    to know what worked and what didn't.
    So I'm calling today for any memos that show information to be --
    that was gathered from any enhanced interrogation technique -- that
    that be made available to the committee so that we can look and see
    what worked. That's only fair.
    And you've got to remember we're talking about this now many
    years after 9/11. And the people that were judging woke up one
    morning like the the rest of America and said, "Oh my god, what's
    coming next?" It's not really fair to sit here in the quiet peace of
    the moment and put ourselves in such a holier-than-thou position,
    because you don't have to make that decision. They did.
    And I've been a criminal lawyer, defense and prosecutor for most
    of my adult life. I think I know the difference between a policy
    debate where I may disagree with the conclusion and a crime.
    The idea that you would read your political opponents into your
    crime makes no sense. The idea that you would seek advice from all
    corners of the government in formulating policy and to call that a
    crime is dangerous.
    What happened on September the 11th, 2001 was unprecedented. It
    was the most vicious attack on our homeland by a foreign entity in the
    history of the nation.
    Mr. Chairman, here's what I think happened. The nation was
    rattled. The administration went on the offensive, and they looked at
    some statutes on the book as a way I wouldn't have looked at. They
    were very aggressive. They were going to make sure this didn't happen
    again. And they tried to come up with interrogation techniques
    evaluating the law in a way that I disagree with their evaluation.
    But there's not one iota of doubt in my mind that they were trying to
    protect the nation.
    But they made mistakes. They saw the law many times as a nicety
    that we couldn't afford so they took a very aggressive interpretation
    of what the law would allow. And that came back to bite us -- it
    always does -- but that's not a crime.
    What we have to understand as a nation is that the fact that we
    embraced the rule of law is strength, not a weakness. The fact that
    we will give our enemy a trial and they won't makes us better. The
    fact that our judgments are rendered based on evidence reviewed by
    independent judiciary is a strength. Their kangaroo courts are not
    the model for the world. So I have tried over these many years to
    speak up in a way that I think is best for the nation.
    As to the Army Field Manual, I think I have a pretty good
    understanding of it. I know why it exists. To say that is the only
    way you can interrogate someone within the law is not right. There
    should be interrogation techniques not on the Internet for our
    national security.
    And let's bring the CIA director into this hearing. He has
    already testified if we caught a high-value target tomorrow he would
    go to the president and ask for interrogation techniques not in the
    Army Field Manual to defend this nation, but they would be lawful.
    Is he a criminal because he would do that? No.
    I think this administration's policy, at least through the CIA
    director's sworn testimony, is that they would reserve unto themselves
    the ability to brief the commander in chief about a high-value target
    and they would suggest techniques to the commander in chief that were
    lawful that are not included in the Army Field Manual.
    So this idea that someone said the Army Field Manual is the only
    way you can lawfully interrogate somebody, I completely disagree with.
    And to those who suggest it may not be the best tool available to the
    country, I totally agree with.
    Now, I don't know what Nancy Pelosi knew and when she knew it,
    and I really don't think she's a criminal if she was told about
    waterboarding and did nothing. But I think it is important to
    understand that members of Congress allegedly were briefed by -- about
    these interrogation techniques.
    And again, it goes back to the idea of what was the
    administration trying to do? If you're trying to commit a crime,
    seems to me that'd be the last thing you'd want to do. If you had in
    your mind and your heart that you're going to disregard the law, and
    you're going to come up with interrogation techniques that you know to
    be illegal, you would not go around telling people on the other side
    of the aisle about it. You would not be getting legal advice.
    And the point of the matter is that they chose to ignore some
    pretty good legal advice. But is that a crime?
    So as we go forward, there's a purpose to everything. There's a
    reason people do what they do. And it will soon become evident, I
    think, over time, the reason for these hearings. There's a lot going
    on in this world today, at home and abroad. And I wonder where this
    fits into the average American's hierarchy of needs right now.
    I've been on the Armed Services Committee, where we did a very
    thorough investigation of these interrogation techniques and how they
    came about. The Levin report is a good one. It's there to be read.
    I'll take a back seat to no one about my love for the law and my
    desire -- the desire for my nation to be a noble nation. The moral
    high ground in this war is the high ground. It's not a location.
    The enemy we're fighting, Mr. Chairman, doesn't have a capital to
    conquer or a navy to sink or an air force to shoot down. It is an
    ideological struggle. And the decisions made in the past have had two
    sides. We did get some good information that made us safer, but we
    also hurt ourselves. We damaged our reputation. And we did some
    things that I think are not going to make us safer in the long run if
    we kept doing them.
    So I'm ready to go forward. Waterboarding has never been an
    appropriate technique for me. And if there are any military member
    listening out there today, you will be prosecuted if you waterboard a
    detainee in your charge. Under the Uniform Code of Military Justice,
    it would be a violation.
    As to other agencies, please understand that in 2001, (200)2 and
    (200)3, the Geneva Convention did not apply to the war on terror --
    only until 2006. The war crimes statute that existed in 2001 was a
    joke. It codified the Common Article 3 standard which nobody could
    adhere to, because it was so vague in terms of the notice it would
    give to someone to comply.
    We have today, I think, the best war crimes statute on the books
    of any nation in the world, that would outlaw a grave breach of the
    Geneva Convention. We passed that in a bipartisan fashion. We have
    policies now -- the Detainee Treatment Act, the McCain Amendment and
    other policies -- that give our people who are fighting this war the
    guidance they need to make sure they understand what's inbounds and
    what's not. And we have a new president.
    And I will conclude with this: President Obama, in my opinion,
    has made some very sound decisions regarding Afghanistan and Iraq. I
    had a meeting yesterday with the administration about what to do with
    Gitmo detainees -- how we can deal with these detainees in a way that
    adheres to our values and protects our nation. I want to be on record
    as saying that I think the administration has taken a very responsible
    view of Afghanistan, Iraq and Guantanamo Bay.
    And it's my belief that they may ask for another continuance
    regarding military commission trials so that the Congress and the
    administration can sit down and work out what to do with these
    detainees as we move forward. If that request is made, I applaud it.
    I do appreciate what the president is trying to do to repair our image
    and to create rules for the road as we go forward.
    But as we look back -- I will conclude with this -- as we harshly
    judge those who had to make decisions we don't have to make, please
    remember this: that what we do in looking back may determine how we
    move forward. And let's not unnecessarily impede the ability of this
    country to defend itself against an enemy who is, as I speak, thinking
    and plotting their way back into America.

  • SEN. WHITEHOUSE

    At 18:58
    4 seconds

    Thank you, Senator Graham.
    Chairman Leahy and then Chairman Feinstein.

  • SEN. PATRICK LEAHY (D-VT)

    At 19:02
    4 minutes

    Thank you.
    Thank you, Chairman Whitehouse.
    This is one of the most important hearings the Senate Judiciary
    Committee will hold this year.
    I've listened to my friend from South Carolina. I've listened to
    each of his several conclusions that he made during his opening
    statement. I also heard him speak of the nobility of the law. I
    would just urge senators not to raise straw men and try to
    predetermine this hearing. Let's listen to the witnesses who are
    going to be testifying, rather than raising hypotheses and facts
    really not in the record.
    I applaud Chairman Whitehouse for doing this. His own background
    as an attorney general, as a U.S. attorney makes him eminently suited.
    I think it's one of the most important hearings we'll have in the
    Judiciary Committee because it raises the question of how we got to a
    place where the Department of Justice's Office of Legal Counsel -- an
    office that basically sets the standards for the whole federal
    government -- came to write predetermined and premeditated legal
    opinions that allowed President Bush to authorize the torture of those
    in American custody and control, opinions that had to ignore our own
    laws, our own international agreements and our own precedents as a
    nation.
    From General George Washington's example during the Revolutionary
    War to the Civil War, the world wars, Korea and Vietnam, it was
    America that provided the model of a nation that would not engage in
    such practices. It was America that led the world in the recognition
    of human dignity and human rights. And I think that the elite legal
    office at the Justice Department responsible for guiding the executive
    branch, and with the power to issue binding interpretations of law, so
    misused its authority is one of the fundamental breakdowns of the rule
    of law that dominated during the past eight years.
    The recent release of four more Office of Legal Counsel memos
    written by two former heads of the OLC -- Jay Bybee and Steven
    Bradbury -- demonstrate in excruciating detail the methods authorized
    and used on people in American custody. We'll hear all about those --
    shackling naked people from the ceiling, keeping them inside a small
    box with insects, beating them repeatedly, waterboarding.
    These are actions that we rightly protested when they've been
    used against Americans by other countries. And the purported legal
    justifications for the policies are disturbing. Some of the opinions
    use an end-justify-the-means type of circular reasoning, saying that
    even though we would object if anybody ever did this to and American,
    it's okay for Americans to do that because we're Americans. It is not
    reasoning that stands up.
    Some seek to defend the use of these techniques by relying on
    hyper-technical interpretations that disregard the prohibitions in our
    laws. All seem to be poised on the idea that the president is somehow
    above the law or can override the law. Well, the rule of law in the
    United States means no one is above the law -- none of us as senators,
    nobody in this room, and not the president of the United States.
    So Senator Whitehouse deserves applause for having this hearing
    and for his own commitment to the rule of law and getting to the
    truth.
    I would like to go forward in a nonpartisan commission, as I've
    said before, but that's going to require support from both sides of
    the aisle -- one that could get to all the truth of what happened.
    Two weeks ago I invited Judge Jay Bybee to testify before the
    Senate Judiciary Committee. I did so after reading accounts in The
    Washington Post suggesting he had expressed regrets regarding his work
    at the OLC. And then in comments he sent a couple days later to The
    New York Times he turned around and defended the same legal opinions
    -- incidentally, legal opinions that have now been withdrawn.
    I invited him to come forward and tell the truth and the complete
    truth before the committee. Which Jay Bybee do we rely upon, the one
    that is in the press one day or the one who's in the press the next
    day?
    I ask, Mr. Chairman, if I could include in the record a copy of
    that letter to him.

  • SEN. WHITEHOUSE

    At 23:43
    2 seconds

    Without objection.

  • SEN. LEAHY

    At 23:45
    1 minute

    Now, since he's declined through his lawyers to
    testify before the committee, I assume he has no exonerating
    information to provide. I wish he would testify before us to help
    complete the record. And how and why he refused -- it is appropriate
    in this case because he's done anything but maintain silence about it.
    He has made a number of statements that certainly give his side; I'd
    like to hear it all. He's talked to friends and employees. He's
    communicated to the press. He's communicated through his lawyers to
    the Justice Department regarding the Office of Professional
    Responsibility's review of his actions while he was a government
    employee in the Office of Legal Counsel. Apparently the only people
    he will not explain his actions to are the people who granted him a
    lifetime appointment to the federal bench, the American people through
    their elected representatives in the Senate.
    So how we approach the mistakes of the past, whether we choose to
    learn from them is going to shape our way forward. Accountability can
    help restore our reputation around the world. But we have to restore
    the trust of the American public in our government.
    I'm a proud American; I think all Vermonters are. I'm proud of
    the history of this country. I'm proud of the times when our
    country's upheld the rule of law. I'm also proud of the fact that the
    United States of America, when it's made mistakes, has not been afraid
    to admit those mistakes and learn from them and pledge not to make the
    same mistakes again. That's why we have this hearing. And that's why
    the American people deserve to know what mistakes were made and what
    we intend to do about it.
    So Senator Whitehouse, I applaud you for holding this hearing. I
    think it's one of the most important hearings the Senate Judiciary
    Committee will hold this year.

  • SEN. WHITEHOUSE

    At 25:44
    6 seconds

    Thank you, Chairman.
    The distinguished chairman of the Senate Intelligence Committee
    and a member of the Judiciary Committee, Senator Feinstein.

  • SEN. DIANE FEINSTEIN (D-CA)

    At 25:50
    5 minutes

    Thank you very much, Mr. Chairman.
    I would echo the chairman's words. Thank you for your
    leadership, for holding this hearing.
    Now, last month the Obama administration released four memoranda
    from the Office of Legal Counsel, and questions have circulated ever
    since.
    Now, it is well within the Judiciary Committee's jurisdiction to
    review these opinions and make findings as to whether the committee
    does feel they fall within existing law as well as international
    treaties and conventions to which the United States is a signatory
    and, therefore, bound.
    I listened very carefully to what Senator Graham said. I do not
    agree. I agree that the prior administration made the judgment that
    they did not apply. But that judgment was repudiated in Supreme Court
    decisions. And as I read them, the finding was that those conventions
    do in fact apply. But as was the case with the program for
    warrantless surveillance, access to these legal opinions were severely
    restricted for years.
    It has been publicly reported that the Office of Professional
    Responsibility may soon recommend to the attorney general that the
    authors of these legal opinions face certain sanctions. However, the
    specifics of the OPR report have not been released.
    While the Department of Justice can and should review the
    performance of its employees, the Judiciary Committee does have the
    responsibility of independent oversight of the Department of Justice
    and how it interprets the Constitution and the law, just as the
    Intelligence Committee, which I chair, has the oversight jurisdiction
    of the 16 intelligence agencies.
    As members know, the Intelligence Committee is exercising its
    oversight responsibilities. We are conducting a major review of the
    CIA detention and interrogation program.
    This will include a detailed review of the conditions of
    detention experienced by high-value detainees at black sites -- more
    than two dozen; how interrogation techniques were applied, by whom, in
    what combination, over what period of time; what information was
    produced as a result of these interrogations and whether such
    information could have been obtained through other means, and
    evaluation of whether in fact the CIA detention and interrogation
    program complied with or exceeded the OLC opinions and other policy
    guidance and whether the Intelligence Committee was accurately briefed
    about the detention and interrogation program and given a full
    explanation of what was happening at certain sites around the world.
    I believe this particular point is very important considering our
    review responsibilities.
    All of the facts will then be placed before the committee. And
    the committee will then work its will.
    Now, this, to do right, is a major undertaking. It involves
    months of review. It involves going through millions of unredacted
    papers, documents, cables and e-mails, and a substantial number of
    personal interviews. The work will necessarily be classified in order
    to get the full scope of what has happened. And the work will be done
    fairly and professionally and in a strong, bipartisan manner. And I
    want to stress that.
    Yesterday I had a brief meeting with Mr. Soufan, who is going to
    shortly be before this committee. He will be asked at the right time,
    when we have the facts, to come before the Intelligence Committee.
    Now, we have six crossover members that sit on this committee and
    on Intelligence, including Senators Whitehouse, Feingold, Wyden,
    Hatch, Coburn and myself. So I am convinced that between the
    Intelligence Committee's review and study and the Judiciary
    Committee's oversight of DOJ and these opinions that we will be able
    to provide a substantial body of knowledge and work, within which
    judgments and assessments can be made. I very much hope that this
    will be the case. I think to make this an explosive issue without
    carefully laying out all of the facts, conditions, cables, directives
    and the whole situation will be a big, big mistake.
    So I want to thank you, Mr. Chairman, and I certainly welcome
    your hearing and the Intelligence Committee will welcome whatever
    evidence it might provide for our deliberations as well, so thank you.

  • SEN. WHITEHOUSE

    At 31:17
    9 seconds

    Thank you, Madame Chair.
    And as somebody who's seen firsthand your work on the
    Intelligence Committee, I'm very proud of it and look forward to
    supporting you in that effort.

  • SEN. FEINSTEIN

    At 31:26
    1 second

    Thank you very much. I appreciate that.

  • SEN. WHITEHOUSE

    At 31:27
    1 second

    Senator Feingold, do you wish to make a brief
    opening statement?

  • SEN. RUSS FEINGOLD (D-WI)

    At 31:28
    1 minute

    FEINGOLD (D-WI): Very brief, Mr. Chairman.
    And we want to get on to the hearing, but this hearing is such an
    important step in shedding light on one of the worst abuses of the
    past administration. Let me be clear: This socalled enhanced
    interrogation program was illegal, it was contrary to our national
    values, and it undermined our national security.
    Like Chairman Whitehouse and Chairman Feinstein, I am a member of
    the Intelligence Committee, and I can tell you that nothing I have
    seen, including the two documents to which former Vice President
    Cheney has repeatedly referred, indicates that the torture techniques
    authorized by the last administration were necessary or that they were
    the best way to get information out of detainees. So clearly, the
    former vice president is misleading the American people when he says
    otherwise.
    Mr. Chairman, I support further declassifications, including the
    rest of the Justice Department memos and letters on this program, the
    inspector general report and the work of the Intelligence Committee,
    provided their release would not jeopardize national security, and
    I've also sought the declassification of my own correspondence which I
    sent to then-CIA Director Hayden detailing my clear opposition to the
    program.
    While the revelations of the past month are uncomfortable for
    some, they are absolutely essential if our country is to return to the
    rule of law. I am pleased that the members of the Judiciary Committee
    and the Intelligence Committee are moving forward to determine exactly
    what happened. And I continue to believe that an independent
    commission of inquiry, as Chairman Leahy has proposed, is needed so
    that we can fully understand and come to terms with this dark chapter
    in our recent history.
    Thank you, Mr. Chairman.

  • SEN. WHITEHOUSE

    At 33:10
    1 minute

    Thank you, Senator Feingold.
    And just to chime in on that point, I think it's clear that I
    also agree that the time will come when it frankly becomes inevitable
    that a nonpartisan authoritative commission should take a look at the
    work of Senator Feinstein's investigations, the OPR opinions, what the
    Judiciary Committee does under the leadership of Chairman Leahy and
    other factors and draw it all together so that the American people can
    make the appropriate conclusions.
    Now, our first witness is David Luban. Professor Luban is a
    leading expert on legal ethics. He has written numerous articles and
    books on the subject, including "Legal Ethics," a leading textbook on
    the subject, and "Legal Ethics and Human Dignity," which collects
    selected essays he's written on legal ethics during the last 20 years.
    He is the university professor of law at Georgetown University Law
    Center, where he has taught since he joined the faculty of Georgetown
    University Law Center in 1997. He has previously taught at the
    University of Maryland, Yale, and Kent State Universities. He holds a
    Ph.D. from Yale University and a B.A. from the University of Chicago.
    Professor Luban's recent research interests have included the legal
    ethics implication of U.S. torture policy and the powers granted to
    the president by the Constitution.
    As a result, he's particularly
    well suited to evaluate the OLC memos and explain the ethical issues
    that they raise.
    Professor Luban?

  • MR. LUBAN

    At 34:34
    7 seconds

    Thank you, Mr. Chairman.
    Chairman Whitehouse, Ranking Member Senator Graham, Chairman
    Leahy and distinguished members of the committee --

  • SEN. WHITEHOUSE

    At 34:41
    33 seconds

    Professor Luban, let me say one thing quickly
    because you're our first witness.
    I'd like to try to keep all of the witness statements here --
    some of them are quite lengthy on paper -- to five minutes.
    And so at some point witnesses are going to start hearing this
    noise -- (sounds gavel) -- which is your warning that the five minutes
    has run out and if you could please wrap it up. And if you extend too
    far beyond it, I'll simply cut you off so that everybody has a fair
    chance and so that the senators have a chance to engage in dialogue,
    which is the most helpful part of a hearing.

  • MR. LUBAN

    At 35:14
    6 minutes

    I may go a minute or so over.
    Thank you for inviting me to testify today. You've asked me to
    talk about the legal ethics of the torture and interrogation memos
    written by lawyers in the Office of Legal Counsel. Based on the
    publicly available sources I've studied, I believe that the memos are
    an ethical train wreck.
    When a lawyer advises a client about what the law requires, there
    is one basic ethical obligation: to tell it straight, without
    slanting or skewing. That can be a hard thing to do if the legal
    answer isn't the one the client wants. Very few lawyers ever enjoy
    saying no to a client who is hoping for yes, but the profession's
    ethical standard is clear: a legal adviser must use independent
    judgment and give candid, unvarnished advice.
    In the words of the American Bar Association, a lawyer should not
    be deterred from giving candid advice by the prospect that the advice
    will be unpalatable to the client. That is the governing standard for
    all lawyers in public practice or private, but it's doubly important
    for lawyers in the Office of Legal Counsel. The mission of the OLC is
    to give the president advice, to guide him in fulfilling an awesome
    constitutional obligation, to take care that the laws are faithfully
    executed. Faithful execution means interpreting the law without
    stretching it and without looking for loopholes.
    OLC's job is not to rubber-stamp administration policies and it
    is not to provide legal cover for illegal actions. No lawyer's advice
    should do that. The rules of professional ethics forbid lawyers from
    counseling or assisting clients in illegal conduct. They require
    competence and they demand that lawyers explain enough that the client
    can make an informed decision, which surely means explaining the law
    as it is. These are standards that the entire legal profession
    recognizes.
    Unfortunately, the torture memos fall far short of professional
    standards of candid advice and independent judgment. They involve a
    selective and, in places, deeply eccentric reading of the law. The
    memos cherry pick sources of law that back their conclusions and leave
    out sources of law that do not. They read as if they were reverse-
    engineered to reach a predetermined outcome, approval of waterboarding
    and the other CIA techniques.
    Now, my written statement goes through the memos in detail, Mr.
    Chairman.
    Let me give just one example here of what I'm talking
    about.
    Twenty-six years ago President Reagan's Justice Department
    prosecuted law enforcement officers for waterboarding prisoners to
    make them confess. The case is called United States versus Lee. Four
    men were convicted and drew hefty sentences that the Court of Appeals
    upheld. The Court of Appeals repeatedly referred to the technique of
    waterboarding as torture.
    This is perhaps the single most relevant case in American law on
    the legality of waterboarding. Any lawyer can find the Lee case in a
    few seconds on a computer just by typing the words "water torture"
    into a database, but the authors of the torture memos never mentioned
    it. They had no trouble finding a case where lawyers didn't call
    harsh interrogation techniques torture. It's hard to avoid the
    conclusion that Mr. Yoo, Judge Bybee and Mr. Bradbury chose not to
    mention the Lee case because it casts doubt on their conclusion that
    waterboarding is legal.
    Without getting further into technicalities that quite frankly
    only a lawyer could love-- maybe not even a lawyer, only a professor
    could love -- I'd like to mention briefly other ways that the torture
    memos twisted and distorted the law.
    The first Bybee memo advances a startlingly broad theory of
    executive power according to which the president as commander in chief
    can override criminal laws. This was a theory that Jack Goldsmith,
    who headed the OLC after Judge Bybee's departure, described as an
    extreme conclusion that, quote, "has no foundation in prior OLC
    opinions or in judicial decisions or in any other source of law,"
    close quote.
    It comes very close to President Nixon's notorious statement that
    when the president does it that means it is not illegal, except that
    Mr. Nixon was speaking off the cuff in a high-pressure interview, not
    a written opinion by the Office of Legal Counsel.
    The first Bybee memo also wrenches language from a Medicare
    statute to explain the legal definition of torture. The Medicare
    statute lists severe pain as a symptom that might indicate a medical
    emergency. Mr. Yoo flips the statute and announces that only pain
    equivalent in intensity to organ failure, impairment of bodily
    function or even death can be severe. This definition was so bizarre
    that the OLC itself disowned it a few months after it became public.
    It is unusual for one OLC opinion to disown an earlier one and it
    shows just how far out of the mainstream Professor Yoo and Judge Bybee
    had wandered. The memos authors were obviously looking for a standard
    of torture so high that none of the intense enhanced interrogation
    techniques would count, but legal ethics does not permit lawyers to
    make frivolous arguments merely because it gets them the results they
    wanted.
    I should note that on January 15th of this year Mr. Bradbury
    found it necessary to withdraw six additional OLC opinions by
    Professor Yoo or Judge Bybee.
    Mr. Chairman, recent news reports have said that the Justice
    Department's internal ethics watchdog, the Office of Professional
    Responsibility, has completed a five-year investigation of the torture
    memos. OPR has the power to refer lawyers to their state bar
    disciplinary authorities and news reports say they will do so. I have
    no personal knowledge about what OPR has found. Presumably
    investigators were looking either for evidence of incompetence,
    evidence that the lawyers knew their memos don't accurately reflect
    the law, or evidence that the process was short circuited.
    This morning I have called the torture memos a legal train wreck.
    I believe it's impossible that lawyers of such great talent and
    intelligence could have written these memos in the good-faith belief
    that they accurately state the law, but what I or anyone else believes
    is irrelevant. Ethics violations must be proved by clear and
    convincing evidence and not just asserted. That sets a high bar and
    it should be a high bar.
    In closing, I would like to emphasize to this committee that when
    OLC lawyers write opinions, especially secret opinions, the stakes are
    high. Their advice governs the executive branch and officials must be
    told frankly when they are on legal thin ice or crossing over into
    unlawful conduct. They and the American people deserve the highest
    level of professionalism and independent -- let me emphasize
    independent -- judgment and I am sorry to say that they did not get it
    here.
    Thank you, Mr. Chairman.

  • SEN. WHITEHOUSE

    At 42:02
    2 minutes

    Thank you, Professor Luban.
    One of the perils of Senate hearings is votes that happen and a
    vote has just happened and what I will do is recess the hearing for
    five minutes to give us a chance to vote. People usually take longer
    than that, but I will be back immediately to call the hearing back
    into session, and if other people need to take a bit more time, it'll
    be under way and we're glad to have you come back.
    But for now the hearing is temporarily adjourned so that we can
    vote.