[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
FROM THE DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: ADMINISTRATION
LAWYERS AND ADMINISTRATION INTERROGATION RULES (PART III)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JUNE 26, 2008
__________
Serial No. 110-189
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
43-152 PDF WASHINGTON : 2009
----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
KEITH ELLISON, Minnesota DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
ROBERT C. ``BOBBY'' SCOTT, Virginia JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
----------
JUNE 26, 2008
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 5
WITNESSES
Mr. David Addington, Chief of Staff, Vice President of the United
States
Oral Testimony................................................. 7
Mr. John Yoo, Professor, Boalt Hall School of Law, University of
California at Berkeley
Oral Testimony................................................. 7
Prepared Statement............................................. 10
Mr. Christopher Schroeder, Charles S. Murphy Professor of Law and
Public Policy Studies at Duke University
Oral Testimony................................................. 18
Prepared Statement............................................. 20
APPENDIX
Material Submitted for the Hearing Record
Exhibits submitted by David Addington, Chief of Staff, Vice
President of the United States................................. 88
Post-Hearing Questions submitted to David Addington, Chief of
Staff, Vice President of the United States..................... 148
Post-Hearing Questions submitted to John Yoo, Professor, Boalt
Hall School of Law, University of California at Berkeley....... 157
Correspondence between Pilippe Sands, Professor of Laws and
Director, Centre for International Courts and Tribunals, and
John Yoo, Professor, Boalt Hall School of Law, University of
California at Berkeley......................................... 165
FROM THE DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: ADMINISTRATION
LAWYERS AND ADMINISTRATION INTERROGATION RULES (PART III)
----------
THURSDAY, JUNE 26, 2008
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:12 a.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Conyers, Nadler, Davis, Wasserman
Schultz, Ellison, Scott, Watt, Cohen, Franks, and King.
Also present: Representative Delahunt.
Staff present: Sam Sokol, Majority Counsel; David Lachmann,
Subcommittee Majority Chief of Staff; Caroline Mays, Majority
Professional Staff Member; and Paul B. Taylor, Minority
Counsel.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order.
Today's hearing will be the third in our series of hearings
on the role of Administration lawyers in the formulation of
interrogation policy.
I want to say at the outset that the subject matter we are
considering today is of utmost importance to the integrity and
honor of this nation.
This hearing is very important and it will not be permitted
to be disrupted by anyone in the audience for any purpose.
Anyone who is disruptive in any way will be expelled
immediately and without further proceedings.
Without objection, the Chair is authorized to declare a
recess of the hearing, which I hopefully will not have to do,
except if there are votes on the floor.
We will now proceed to Members' opening statements.
As has been the practice in this Subcommittee, I will
recognize the Chair and Ranking Members of the Subcommittee and
of the full Committee to make opening statements.
In the interest of proceeding to our witnesses and mindful
of our busy schedules, I would ask that other Members of the
Subcommittee submit their statements for the record.
Without objection, all Members will have 5 legislative days
to submit opening statements for inclusion in the record.
The Chair now recognizes himself for 5 minutes for an
opening statement.
Today, we commence the third in our series of hearings on
the role of Administration lawyers in the development and
implementation of interrogation rules, which have drawn
criticism here in the United States and around the world.
I think it does not go too far to say that the reputation
of this nation and our standing as the leading exponent of
human rights and human dignity have been besmirched by the
policies of this Administration.
Legal memos have been written defining torture out of
existence and what almost everyone except this Administration
regards torture has been inflicted on prisoners.
Today, we will look at how these policies came into being
and how they were applied.
I think I speak for many of my colleagues when I say that
the more we find about what was done and how it was concerned
and how it was justified, the more appalled we become.
These policies have been kept from the Congress and the
American people by assertions of secrecy, assorted privileges
and flat refusals to disclose what has been done and why, even
in classified settings.
As a result, the information that we do know has come out
in dribs and drabs, often through the press.
That is unacceptable.
We live in a democracy composed of three equal branches of
government. No one has the right to arrogate to themselves the
complete non-checked power of the power state. That simply
defeats the design of our system of checks and balances, which
the founders of this nation crafted to ensure our freedom and
protect us from the unaccountable monarchy against which we
rebelled and to which we do not want to return.
Today, we are joined by two of the architects of those
policies, one testifying voluntarily and one testifying under
subpoena, and I hope we will be able to have a free and open
discussion of these very important questions.
Clearly, we do not want to reveal classified information in
this open setting, but neither will we be deterred by expansive
and unjustified claims of assorted privileges.
I would ask that if the witnesses feel the need to invoke a
privilege, they do so judiciously and that they provide the
specific basis for that claim of privilege.
I look forward to the testimony of our witnesses and I hope
we can finally begin getting to the bottom of these important
questions.
I yield back the balance of my time.
I would now recognize our distinguished Ranking minority
Member, the gentleman from Arizona, Mr. Franks, for his opening
statement.
Mr. Franks. Well, thank you, Mr. Chairman.
I thank all the panelists who are here with us today.
Mr. Chairman, as I have said before, the subject of
detainee treatment has been the subject of over 60 hearings,
markups and briefings during the last Congress in the House
Armed Services Committee alone, of which I am a Member.
And I will say, then, as I have said in this Committee many
times, torture is banned by various provisions of law,
including the 2005 Senate amendment prohibiting the cruel,
inhuman or degrading treatment of anyone in U.S. custody.
Severe interrogations, by contrast, do not involve torture
and they are legal. The CIA waterboarded 9/11 mastermind,
Khalid Sheikh Mohammed, Abu Zubaydah, and Abdul Rahim al-
Nashiri.
The results of these severe interrogations were of
immeasurable benefits and perhaps saved lives in the American
society.
CIA Director Hayden has said that Mohammed and Zubaydah
provided roughly 25 percent of the information the CIA had on
al-Qaeda from human sources.
Even ultraliberal Harvard law professor Alan Dershowitz
wrote recently in the Wall Street Journal that ``Attorney
General Mukasey is absolutely correct that the issue of
waterboarding cannot be decided in the abstract. The court must
examine the nature of the governmental interest at stake and
then decide on a case-by-case basis. In several cases involving
actions at least as severe as waterboarding, courts have found
no violation of due process.''
And, again, these are Alan Dershowitz's words, not mine.
Torture, as I have said, again, should be illegal. But when
severe interrogation methods that are not torture are
contemplated, the law requires that their legitimacy be
evaluated in context.
To put some of this in context, it is useful to note that
the comments of Jack Goldsmith, who formerly served as the
assistant Attorney General with the Office of Legal Counsel, at
a November 12, 2007 discussion at Duke Law School, Jack
Goldsmith said the following, ``It is widely thought that the
Administration is exaggerating the terrorist threat for public
consumption.
In my experience, the opposite is true. The threat, as the
government perceives it, is much more intense, fear-inducing,
than the government lets on to the public.''
Mr. Goldsmith went on to say of his experience in this
Administration, ``I don't think it is right to characterize it
as policymakers using the fear of an attack to try to influence
the lawyers, because everyone understood those stakes, because
we were all reading the same reports.''
Stuart Taylor has written the following in the National
Journal, ``The CIA had reason to believe that unlocking the
secrets in Khalid Sheikh Mohammed's mind might save hundreds of
lives, perhaps many, many more, in the unlikely, but then
conceivable event that al-Qaeda was preparing a nuclear or
biological attack on an American city.''
Mr. Chairman, Mr. Taylor is correct. For example, at a May
6 Constitutional Subcommittee hearing, I asked the Democrat
witness, Marjorie Cohn, president of the National Lawyers
Guild, how she would write a statute defining how terrorists
should be treated when they refuse to provide vital information
voluntarily.
And I want to just have us listen to her reply.
[Begin audio clip.]
MS. Cohn. What kind of statute would I write? I would write
a statute that says that when you are interrogating a prisoner
and you want to get information from him, you treat him with
kindness, compassion and empathy. You gain his trust.
You get him to like and trust you and then he will turn
over information to you.
[End audio clip.]
Mr. Franks. Mr. Chairman, I want you to know, as sincerely
as I can say, that I wish that this lady were correct. I wish
it were that simple. I wish it could be that way.
But I would suggest that the statement she made is
dangerously naive and any successful effort to stop another
devastating terrorist attack must necessarily involve a more
serious and realistic response than that offered by Ms. Cohn.
And I hope our discussion today rises to a higher level of
analysis. It is critical to American national security.
And, finally, I would like to note that the dangers of
moving back toward the failed model of treating terrorists like
ordinary criminals was made perfectly clear in a recently
written article on the interrogation of Khalid Sheikh Mohammed.
The article appeared last Sunday in the New York Times and
it makes clear how we can expect terrorists to react when they
are granted the rights of criminal defendants.
According to the New York Times, Khalid Sheikh Mohammed met
his captors at first with a cocky defiance, telling one veteran
CIA officer, a former Pakistan station chief, that he would
talk only when he got to New York and was assigned a lawyer.
Of course, this was the experience of his nephew and
partner in terrorism, Ramzi Yousef, after Yousef's arrest in
1995.
Unfortunately, the Supreme Court of the United States has
taken steps to grant Khalid Sheikh Mohammed's wish, and I hope
the Congress does not make the same mistake.
Before I yield back, I would also like to ask unanimous
consent that a small set of exhibits provided by Mr. Addington
would be entered into the hearing record.
Mr. Nadler. We would have liked testimony, too, but without
objection.
[The information referred to is available in the Appendix.]
Mr. Franks. Thank you. Thank you, Mr. Chairman.
I understand Mr. Addington may be referring to some of
these things during his testimony here today. Electronic copies
have been made available to Member offices.
And I thank you for your indulgence, Mr. Chairman.
Mr. Nadler. Well, you are quite welcome. But what I was
referring to was the fact that we normally expect witnesses to
submit written testimony and Mr. Addington hasn't done that,
but has submitted these exhibits 1 through 10, which will be
entered into the record.
Before we go on to our next statement, I want to defend the
reputation of Mr. Dershowitz against allegations that he is an
ultraliberal.
He would not so regard himself and he did write a book
recently in which he advocated torture through warrant. He is
not the best witness as to what constitutes torture.
In any event, we will now recognize the distinguished
Chairman of the full Committee for 5 minutes, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Nadler, Ranking Member
Franks, and all of my colleagues here.
This is an important day. I am so glad to see the witnesses
that are here.
Now, I don't want to begin a dialogue with Trent Franks,
because have plenty time for that, but Marjorie Cohn's response
was to a question asked by Republicans on the Committee. She
didn't come here as a person to give us advice on what we ought
to do.
Someone asked her that and that is what she said.
I am more interested in what we are going to say in
response to that question, not to any individual lawyer or
individual citizen, and where we want to go with another person
that was given a lawyer in New York.
I don't know if that is shocking to anybody. We normally
provide people that are going to be tried criminally with
counsel. That has been the custom in the United States for
quite a period of time now.
So I just want to thank the Committee, this Judiciary
Committee I am so proud of, the Constitution Committee in
particular, and the way we go about making history around these
questions.
Now, we have several points here that will be examined. We
have reports stating that our witnesses today played a central
role in drafting Justice Department legal opinions on
interrogations.
Some of those opinions have been withdrawn. But let's
listen to Senator Lindsey Graham of the Armed Forces Committee,
what he said last week about these memos.
[Begin audio clip.]
Mr. Graham. What we are trying to do here today is
important. Now, the guide that was provided during this period
of time, I think, will go down in history as some of the most
irresponsible and shortsighted legal analysis ever provided to
our nation's military and intelligence communities.
[End audio clip.]
Mr. Conyers. And he also said that while he thought that
Administration lawyers may have had good intentions, but he
said ``they used bizarre legal theories to justify harsh
interrogation techniques.''
Now, Mr. Addington, Professor Yoo, I come here to give you
the benefit of the doubt and we want to hear your side of it. I
would like to understand how these memos came to be written and
why. I would like to learn more about your view of the unitary
executive theory of government in which the President is
supposed to be superior to some or all of the laws or wherever
that leads.
I am interested in Professor Yoo's description of this
public debate that he entered into of if the President could
order that a suspect's child be tortured in gruesome fashion
and that his response was ``I think it depends on why the
President thinks he needs to do that'' or is there anything
that the President could not order to be done to a suspect if
he believed it necessary for the national defense.
And that line of questions are all very important to me. We
want to understand this and we want to have a fair discussion
about it.
So thank you, Chairman Nadler, for permitting me these
opening comments.
Mr. Nadler. I thank the distinguished Chairman.
I now want to welcome our distinguished panel of witnesses
today and introduce them.
David Addington is the chief of staff and former counsel to
Vice President Dick Cheney.
Mr. Addington was assistant general counsel to the Central
Intelligence Agency from 1981 to 1984. From 1984 to 1987, he
was counsel for the House Committees on Intelligence and
International Relations.
He served as a staff attorney on the joint U.S. House-
Senate Committee investigation of the Iran Contra scandal, was
an assistant to Congressman and now Vice President Dick Cheney,
and was one of the principal authors of a controversial
minority report issued at the conclusion of the Joint
Committee's investigation.
Mr. Addington was also a special assistant to President
Ronald Reagan for 1 year in 1987, before becoming President
Reagan's deputy assistant.
From 1989 to 1992, Mr. Addington served as special
assistant to Mr. Cheney, who was then the secretary of defense,
before being confirmed as the Department of Defense's general
counsel in 1992.
From 1993 to 2001, he worked in private practice. Mr.
Addington is a graduate of the Edmond A. Walsh School of
Foreign Service at Georgetown University and holds a J.D. from
Duke University School of Law.
John Yoo is a professor of law at the University of
California at Berkeley School of Law, where he has taught since
1993. From 2001 to 2003, he served as a deputy assistant
Attorney General in the Office of Legal Counsel of the U.S.
Department of Justice.
He served as general counsel of the U.S. Senate Judiciary
Committee from 1995 to 1996. Professor Yoo received his BA
summa cum laude in American history from Harvard and his J.D.
from Yale Law School in 1992.
In law school, he was an articles editor of the law
journal. He clerked for Judge Lawrence H. Silverman of the U.S.
Court of Appeals for the District of Columbia Circuit.
He joined the Boalt faculty in 1993 and then clerked for
Justice Clarence Thomas of the U.S. Supreme Court.
Chris Schroeder is the Charles S. Murphy Professor of Law
and Public Policy Studies at Duke University.
He served in the Office of Legal Counsel for 3.5 years,
including 6 months as acting assistant Attorney General in
charge of the office.
He has also served as chief counsel to the Senate Judiciary
Committee. He is of counsel to the firm of O'Melveny and Myers,
where he works primarily on appellate matters.
He received his BA degree from Princeton University in
1968, a master of divinity from Yale University in 1971, and
his J.D. degree from the University of California at Berkeley
Boalt in 1974, where he was editor in chief of the ``California
Law Review.''
Before we begin, it is customary for the Committee to swear
in its witnesses. If the witnesses would please stand and raise
your right hands and take the oath.
Do you swear or affirm, under penalty of perjury, that the
testimony you are about to give is true and correct, to the
best of your knowledge, information and belief?
Thank you. Let the record reflect that the witnesses
answered in the affirmative. And you may be seated.
Without objection, the written statements of the witnesses
will be made a part of the record in their entirety. We would
ask each of you to summarize your testimony in 5 minutes or
less.
To help you keep time, there is a timing light at your
table. Assuming it works properly, when 1 minute remains, the
light will switch from green to yellow and then to red when the
5 minutes are up.
I will ask the first witness, Mr. Addington is recognized
for 5 minutes for the purpose of an opening statement.
TESTIMONY OF DAVID ADDINGTON, CHIEF OF STAFF,
VICE PRESIDENT OF THE UNITED STATES
Mr. Addington. Thank you, Mr. Chairman.
Just three quick points, two of which are technical.
In the introduction, you mentioned that on the Iran Contra
Committee, I was working for Mr. Cheney. I was, in fact, the
designee of Mr. Brumfield of Michigan in that Committee.
Second, I think there was a reference, and I don't remember
exactly what you said, but something like being an author or
involved in the preparation of the minority views in that
report.
I think I had actually left and gone to the White House in
the Reagan administration before it was written and I really
didn't have anything to do, that I recall, with writing the
report.
Lastly and more importantly, Chairman Conyers mentioned he
wanted to give us the benefit of the doubt, which I appreciate
very much. He has a long history of being respectful and
looking for the fact-finding and so forth.
There is one subject on which I think there is no doubt and
I thought I would point it out, given that the hallways here
are full of protests and so forth on the subject, and, that is,
I believe everyone on this Committee, and I am certain the
three witnesses, want to defend this country, protect it from
terrorism.
That is not a partisan issue. There are obviously
differences on how that is accomplished that we will be
discussing today, no doubt, but I think everyone has that view
in this group.
Thank you, Mr. Chairman.
Mr. Nadler. Is that--well, let me say, first, that I
suppose I am sorry I gave you too much credit for that 1987 or
1988 memo or whatever.
But is that the entirety of your statement?
Mr. Addington. Yes. Thank you. I am ready to answer your
questions.
Mr. Nadler. Okay. Recognize Professor Yoo for 5 minutes.
TESTIMONY OF JOHN YOO, PROFESSOR, BOALT HALL SCHOOL OF LAW,
UNIVERSITY OF CALIFORNIA AT BERKELEY
Mr. Yoo. Thank you, Mr. Chairman. I appreciate the
opportunity to appear before the Committee.
I also appreciate Mr. Conyers' commitment to having an open
and fair discussion and to clarify things for the public
record, and I appreciate that very much.
I presented extensive opening statement to the Committee
and the text. So I don't have anything more. I don't want to
waste the Committee's time in reading it.
So I will just waive the rest of my time, because I
provided the statement.
Mr. Nadler. That is rather unusual. You don't want to
summarize the statement?
Mr. Yoo. I don't need to, unless you would like me to.
Mr. Nadler. Well, I think it would serve not everyone in
this room, perhaps not even everyone on this Committee has read
your statement.
So why don't you summarize the key points of it?
Mr. Yoo. Sure. The first thing I just wanted to make clear,
in response to your comments about privilege, as you know, I
have been a lawyer in the executive and legislative branches
and I have received instructions from the Department of Justice
about exactly what kinds of things I am allowed to talk about
and which I cannot.
I provided a text of that e-mail to the Committee. I just
want to make clear, I have every desire to help the Committee,
but I also have a professional obligation to the Department of
Justice to obey their instructions.
I, myself, don't have the authority to resolve any conflict
that you as a Committee might have with them.
As a former staff member for the Senate Judiciary
Committee, I would never, of course, share conversations I had
with the Member I worked for either. And so I understand that
there could be conflict between the Committee and the----
Mr. Nadler. Let me just say, as I said at the outset, we
understand that there are legitimate privileges and all we ask
is that if any one of the witnesses asserts a privilege, you do
so judiciously and you assert--you state, rather, the exact
grounds for the assertion of the privilege.
And now, please summary, if you want to, your statement.
Mr. Yoo. Yes. I just wanted to make it clear when we start
at the beginning.
Mr. Nadler. Fine.
Mr. Yoo. Just a few points.
One point I would just like to make clear is that we are
talking about events that happened 6 to 7 years ago and I think
it is important to remember the context within which these
questions arose.
Some of the events occurred no more than 6 months after the
9/11 attacks, in which 3,000 of our fellow citizens were
killed.
I know, having worked in the government at that time and
dealt with the Congress, that Members of both branches were
very concerned that there would be follow-up attacks by al-
Qaeda, which is one of their trademarks.
I believe we in the Justice Department, in examining these
questions, did the best we could under the circumstances to
call the legal questions as best we could with the materials
that we had available under those circumstances.
I want to make clear, and I don't think anyone in the
department would make any claim of infallibility about our
legal judgments. These are very difficult legal questions. I
think they are the hardest questions that a government lawyer
can face.
I openly accept that reasonable people can differ in good
faith about their answer to these questions.
One last thing I want to make clear is also that we were
functioning as lawyers. We don't make policy. Policy choices in
these matters were up to the National Security Council or the
White House or the Department of Defense.
Our job was to provide legal advice about the meanings of
different Federal laws, but our job wasn't to--I am sorry. As
lawyers, it wasn't our purpose and we were not in the business
of choosing amongst different policy options.
Let me say, though, and, for that matter, in response to
these questions about privilege and so on, I can't provide any
information to the Committee about why different policy choices
were made, because we weren't privy to those decisions.
I do think, though, and I will close here, that as someone
who has seen the results of those policies, to the extent they
have been publicly disclosed by the head of the intelligence
agencies and the President, I think that those policies have
successfully provided information to the government that have
allowed this country to prevent terrorist attacks by al-Qaeda
on our homeland.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Yoo follows:]
Prepared Statement of John Yoo
Mr. Nadler. I thank the witness.
Now recognized for 5 minutes for an opening statement,
Professor Schroeder.
TESTIMONY OF CHRISTOPHER SCHROEDER, CHARLES S. MURPHY PROFESSOR
OF LAW AND PUBLIC POLICY STUDIES AT DUKE UNIVERSITY
Mr. Schroeder. Thank you, Chairman Nadler.
Mr. Nadler. Use your mic, please.
Mr. Schroeder. Thank you, Chairman Nadler and Mr. Franks
and Mr. Chairman. It is a privilege to be here today.
I am not here to question anyone's good faith, either my
two colleagues here before us today or anyone else who worked
in the Administration under what were extraordinarily difficult
circumstances.
We are all eager in providing the country the best and most
effective defense against any additional attacks.
At the same time, it has become clear, as events have
unfolded and been revealed, that events have taken place with
respect to how detainees have been treated, with respect to how
military commissions have been established and their procedures
with respect to how surveillance activities have been
undertaken by the National Security Agency, that we find out,
as events unfold, that behind each of these occurrences, these
policy decisions, there has frequently been a substantial legal
analysis from the Office of Legal Counsel.
And I have to say, reluctantly, that I think a number of
these analyses have serious mistakes in them. And so I think it
is important to look back in an effort so that going forward,
we can establish methods whereby the President will be getting
the best legal advice in good times, as well as bad, and to do
that to the extent that it is humanly possible.
So I would just make three points about the memorandum, and
this is mildly repetitive of my prepared statement, which you
have, but just let me emphasize three points.
One I think the memoranda reflect, starkly reflect an
extreme view of absolute and uncontrollable presidential power
that has been pursued by this Administration, not without
dissent among the lawyers inside the Justice Department and
other places, but it seems that those dissenting voices don't
remain around for very long and that the prevailing view has
been one in which the President is purported to have almost un-
definable limits on the power that he apparently is entitled to
exercise as commander in chief to control the conduct and
operations of a war.
Now, this power, if it is applied to the war on terror, is
breathtaking in its scope, because the President, first, has
warned us, and I think it is plausible to believe, that the war
on terror is going to be going on for a long time.
Secondly, we have defined, as we ought to, that the
battlefield of this war on terror includes the United States,
as much as Iraq or Afghanistan.
And, third, the tactical strategic decisions about how to
go after terrorists, about how to interrogate them once you
have detained them, about whether they can be detained for some
period of time or have to be put on trial, if they are tried,
what the conditions of those trials ought to be, are enormous
authorities.
And for the President to assert that in each and every of
these respects affecting American citizens, as well as foreign
nationals, as well as aliens who have never set foot in this
country, that the President has unilateral and unreviewable
authority, even to disobey the criminal statutes that the
Congress has passed and a President has ratified, is a position
that is far outside the mainstream of jurisprudence in this
country, of what the Supreme Court has held, and, indeed, what
prior Presidents have asserted.
The second point I want to say is this is not a criticism
that has been raised simply by President Bush's political
opponents or by liberal law professors.
Jack Goldsmith is a staunch Republican. When he came into
the Office of Legal Counsel and reviewed some of these memos,
he called them ``deeply flawed, sloppily reasoned, and
overbroad.''
When the Attorney General, the acting Attorney General, Mr.
Goldsmith, the director of the FBI were confronted with the
national security surveillance program, they refused to
reauthorize it.
They refused to agree with the analysis that had been done
earlier that purported to find that this was also something
within the President's constitutional authority, and our
understanding is that they and perhaps several other high
ranking officials in the Justice Department threatened to
resign over this legal analysis.
You have Mr. Goldsmith telling a story in his book of
needing to review and eventually to revise or reauthorize,
under quite different legal analyses, what he calls ``a small
stack'' of these memoranda.
So this is not just outsiders carping at the President.
This is reflective, I think, of a deeply flawed view of the
jurisprudence that ought to be applied in understanding both
the strengths and the limits of what the President can do in
the face of statutory prohibitions.
And the last point I will mention is just with respect to
how these memos have been put together.
In my testimony, I express some concerns that they don't
seem to have followed internally in the Office of Legal Counsel
the good practices that the office has tried to pursue over the
years.
Mr. Yoo supplied some information and some more details,
which I am glad to have received, in his prepared testimony. I
think they still leave a number of questions, in my mind, that
would be worth pursuing, but I see my red light is on and I
will stop at this point and perhaps be able to say more in
response to some of your questions.
Thank you.
[The prepared statement of Mr. Schroeder follows:]
Prepared Statement of Christopher H. Schroeder
Mr. Nadler. Thank you. I thank the witnesses for their
statements.
And we will now go to the questioning. As we ask questions
of our witnesses, the Chair will recognize Members in the order
of their seniority on the Subcommittee, alternating between
majority and minority, provided that the Member is present when
his or her turn arrives.
Members who are not present when their turn begins will be
recognized after the other Members have had the opportunity to
ask their questions.
The Chair reserves the right to accommodate a Member who is
unavoidably late or only able to be with us for a short time.
I will inform the Members of the Subcommittee that we do
anticipate having more than one round of questioning.
I will begin by recognizing myself for 5 minutes to
question the witnesses.
Mr. Addington, It has been reported in several books and in
the The Washington Post that you contributed to the analysis or
assisted in the drafting of the August 1, 2002 interrogation
memo signed by Jay Bibey.
Is this correct?
Mr. Addington. No.
Mr. Nadler. You had nothing to do with that.
Mr. Addington. No. I didn't say I had nothing to do with
it. You asked if I assisted in contribution, and let me read to
you something I think will be helpful to you.
This is an excerpt from the book that I recommend that all
of you----
Mr. Nadler. Make it briefly, because I have a number of
questions.
Mr. Addington. I will make it very brief. ``War by Other
Means'' by Professor Yoo, page 33, two sentences to read.
``Various media reports claim that his influence,'' I am the
``his,'' ``was so outsized, he even had a hand in drafting
Justice Department legal opinions in the war on terrorism. As
the drafter of many of those opinions, I,'' Professor Yoo,
``find this claim so erroneous as to be laughable, but it does
show how wrong the press can get the basic facts.''
Same book, page 169----
Mr. Nadler. Wait a minute. Mr. Addington, please, we don't
need all these quotes.
Mr. Addington. Okay.
Mr. Nadler. Just tell us what your role was, if you can.
Mr. Addington. Yes, I will.
Mr. Nadler. Because you said it wasn't nonexistant but you
didn't help shape it. So what was it?
Mr. Addington. Mr. Chairman, my recollection, first of all,
I would be interested in seeing the document you are
questioning me about. I think you are talking about a document
of August 2002.
Mr. Nadler. Yes.
Mr. Addington. It would be useful to have that in front of
me so I can make sure that what I am remembering relates to the
document you have and not a lot of other legal opinions I
looked at.
But assuming you and I are talking about the same opinion,
my memory is of Professor Yoo coming over to see the counsel of
the President and I was invited in the meeting, with the three
of us, and he gave us an outline of here are the subjects I am
going to address.
And I remember, when he was done, saying, ``Here are the
subjects I am going to address,'' saying, ``Good,'' and he goes
off and writes the opinion.
Now, in the course of my work--thank you. You have a copy
of it? Thanks. Let me just look at it. I will give it back to
you.
It is August 1, 2002, memorandum for Alberto Gonzales,
counsel of the President, re: standards of conduct for
interrogation under 18 USC Sections 2340 and 2340(a).
I believe that this is the result of the process I was just
describing where he came over and said, ``These are the
subjects I am going to address,'' and we said, ``Good.''
Now, there is one thing worth pointing out in there in
defense of Mr. Yoo, who, as any good attorney would, has, I
presume, not felt free to explain and defend himself on the
point.
I can do this in my capacity essentially as the client on
this opinion. It was later said about this opinion, ``It
unnecessarily addressed constitutional issues, defenses that
could be raised.''
You don't want to hear that, Mr. Chairman?
Mr. Nadler. Not right now, because I have a number of
questions and we are running out the clock.
Mr. Addington. Please, go ahead.
Mr. Nadler. The Washington Post reported that, ``The vice
president's lawyer,'' referring to you, I believe, ``advocated
what was considered the memo's most radical claim that the
President may authorize any interrogation method, even if it
crosses the line into torture.''
Is that accurate?
Mr. Addington. That The Washington Post said that?
Mr. Nadler. No, not that The Washington Post said it. Is
The Washington Post correct in saying that?
Mr. Addington. Could you repeat it? I have to listen
closely before I answer.
Mr. Nadler. That you advocated what was considered the
memo's most radical claim that the President may authorize any
interrogation method, even if it crosses the line into torture.
Mr. Addington. No, I don't believe I did advocate that.
What I said was, in the meeting we had with Mr. Gonzales and
Mr. Yoo and me present, Mr. Yoo ran through ``here are the
topics I am going to be addressing,'' one of which is the
constitutional authority of the President, separate from issues
of statutes.
My answer is, ``Good, I am glad you are addressing these
issues.''
Mr. Nadler. So in other words, you didn't advocate any
position. You simply said, ``I am glad you are going over these
topics.''
Mr. Addington. Correct.
Mr. Nadler. Okay. Now, do you believe that the President
can order violations of the Federal torture statute if he
believes it necessary for national security under his Article 2
or any other powers?
Mr. Addington. I will answer that carefully, because
although, in common conversation, we are used to using words
like ``torture'' and meaning a common conversation, what we are
talking about are laws here.
The Federal statute which implements a----
Mr. Nadler. Let me just read now the question. Do you
believe the President can order violations of a Federal statute
if he believes it necessary for the national security?
Mr. Addington. As a general proposition, no. I qualify that
is a general proposition because I think we all agree, in fact,
there was testimony here and I think some of the Members of
this Committee agreed that facts matter for lawyers in
rendering opinions, and I wouldn't render a legal opinion in
the absence--I wouldn't render one to the Committee----
Mr. Nadler. When do you believe that the President is
justified in violating a statute?
Mr. Addington. You are assuming a fact not in evidence. I
didn't say I did believe that.
Mr. Nadler. You said under certain circumstances.
Mr. Addington. No. I said reserving the fact that you need
to have facts in order to render legal opinions.
Mr. Nadler. Are there any----
Mr. Addington. And as I said----
Mr. Nadler. Excuse me. Is there any set of facts----
Mr. Addington. I won't render a legal opinion.
Mr. Nadler. Is there any set of facts that would justify
the President in violating a statute?
Mr. Addington. I am not going to answer. A legal opinion on
every imaginable set of facts, any human being could think of,
Mr. Chairman.
Mr. Nadler. Do you believe that the torture of--torture,
never mind how you define it, assume it is torture, do you
believe that torture of a restrained detainee could be allowed
under a theory of self-defense and necessity?
Mr. Addington. I haven't expressed an opinion on that, Mr.
Chairman.
Mr. Nadler. You have not expressed an opinion.
Do you have such an opinion?
Mr. Addington. I haven't researched the issue myself. I
have relied on opinions on the subject issued by the Department
of Justice.
Mr. Nadler. But you did express the opinion, I believe,
that the President could--or that his Article 2 powers as
commander in chief, in effect, allowed him to take actions
which the FISA statute would prohibit. Is that correct?
Mr. Addington. I don't believe I have expressed those here.
I think there is a serious question, constitutional questions
raised to the extent Congress, instead of carrying into--
helping bypassing statutes to carry into execution the
President's power would instead try to block the President's
power.
There are court cases at the circuit level, not at the
Supreme Court level, and, also, the foreign intelligence
surveillance quarter review that refer to the President's
commander in chief powers as----
Mr. Nadler. Let me ask you one further question.
Mr. King. Mr. Chairman? I would ask unanimous consent to
grant the Chairman an additional minute to complete his
questioning.
Mr. Nadler. Thank you. Without objection.
Mr. Addington, Mr. Yoo, Professor Yoo is quoted as saying
that under certain circumstances, it would be proper and legal
to torture a detainee's child to get necessary information.
Do you agree with that?
Mr. Addington. I don't agree or disagree with it, Mr.
Chairman. I don't plan to address it. You are seeking legal
opinion and, as we told you in Exhibit 4, I am not here to
render legal advice to your Committee. You do have attorneys of
your own to give you legal advice.
Mr. Nadler. Let me ask Mr. Yoo one opinion--one question.
In your memo, Professor Yoo, you talked about, the memo that
has been quoted repeatedly from August--the Bibey memo which
you helped prepare--that severe pain, as used in the Federal
statute, prohibiting torture, must rise to the level that would
ordinarily be associated with a sufficiently serious physical
condition such as death, organ failure or serious impairment of
body functions.
Where did you get that from? I mean, I know that that
language is in a different statute.
But where did you derive that that is what torture means
under the Federal statute?
Mr. Yoo. Mr. Chairman, you are referring to the August 1,
2002 memo.
Mr. Nadler. Yes.
Mr. Yoo. Not the March 2003.
Mr. Nadler. Yes.
Mr. Yoo. Again, I want to say--your question is where did
it come from.
Mr. Nadler. No. How did you reach that conclusion? You made
a very specific statement that this is what--in order to
violate the statute, it has got to meet this criterion.
Mr. Yoo. Yes.
Mr. Nadler. Where did you get that criterion from?
Mr. Yoo. So let me make clear, when Congress passed that
statute, there is no further definition of that phrase in the
statute itself.
We looked at the legislative history. There was no
legislative history from the time of the passage of the statute
that produced any kind of definition.
There was no--the United States Justice Department had
never brought a prosecution under this statute. There had been
no judicial decisions of that language.
So we applied, I think, as the memo says, a can of
construction to try to find anywhere else in the U.S. Code
where Congress, where you have defined those terms in any other
kind of statute.
And as the opinion says, and the 2003 opinion also says, we
recognize that that statute was on a subject that was different
than the torture statute, but we used a can of construction to
try to infer from what Congress has passed in other contexts to
see if it can provide some help to us in trying to interpret
what I think is--I think then, I think now is a very difficult
statutory language, because there was no further judicial
interpretation or congressional guidance.
Mr. Nadler. Thank you.
The time of the Chairman has expired.
I will now recognize the distinguished Ranking Member on
this Subcommittee, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
And thank you, Mr. Addington, Mr. Yoo and Mr. Schroeder,
for appearing here.
Is it Mr. Schroeder or Mr. Schroeder?
Mr. Schroeder. Half of my family says Schroeder, the other
half says Schroeder. You can take your pick.
Mr. Franks. I will stick with your family on this one.
Professor, are you familiar with the report of the 9/11
commission?
Mr. Schroeder. Yes, I am.
Mr. Franks. According to page 132 of that report, in
December 1998, the Clinton administration, Justice Department,
issued a legal opinion authorizing the assassination of Osama
Bin Laden on the apparent ground that he was waging war on the
United States and that assassinating him would be self-defense,
not murder.
Incidentally, I think assassinating him might have
interfered with some of his major bodily functions. I am just
positing an opinion there.
Do you believe that this is one of the implausible theories
of defenses to criminal statutes that you decry on page 3 of
your prepared testimony?
Mr. Schroeder. Well, Mr. Franks, I haven't reviewed either
that opinion or the Committee report. I do believe that if we
are talking about the formulation of the defense of self-
defense a necessity as it appears in the August 2002
memorandum, that, yes, that is--the way those defenses are
articulated there are among the pieces of legal reasoning in
that memo that I think are far-fetched.
And I am surprised actually to read in Professor Yoo's
testimony that he says the criminal division reviewed the memo.
He doesn't say the criminal division approved of the contents
of the memo, and I would be surprised if they did.
I would be interested in knowing. And by they, I mean not
only the political appointees, but the career professionals in
the Justice Department, and I say that because, in my,
experience, the prosecutors in the criminal division labor
mightily to keep those defenses as narrow as possible, as you
can imagine, since they are in the business of prosecuting
criminals.
And, in fact, in 2001, the Supreme Court had just recently
decided a case that the government argued, in which the
government argued that unless the defense of necessity was
explicitly stated in a Federal statute, it wasn't available to
a defendant in opposing----
Mr. Franks. Thank you, Mr. Schroeder.
Mr. Schroeder [continuing]. A conviction under a Federal
statute.
So it surprises me to learn that the criminal division was
part of this process, and yet nothing about their--what I think
the full range of their views would be on self-defense and
that----
Mr. Franks. Professor, thank----
Mr. Schroeder [continuing]. Have revealed in the memo.
Mr. Franks. Thank you.
It does appear a little interesting to me that the Clinton
Justice Department can issue a memo saying that assassinating
someone is a self-defense of the country, but now we are
debating today whether waterboarding someone like Khalid Sheikh
Mohammed to save perhaps thousands of American lives here is
the big question.
Mr. Yoo, let me read part of an interview that you had with
Esquire magazine. In that interview, you discussed the need for
precise legal guidance when you help draft legal opinions at
the Office of Legal Counsel (OLC).
And incidentally, I think this is very well stated. ``The
other thing I was quite conscious of was that I didn't want the
opinion to be vague so that people who actually have to carry
out these things don't have a clear line, because I think that
would be very damaging and unfair to the people who are asked
actually to do these things.''
Do you have any elaboration on that?
Mr. Yoo. Mr. Franks, I think the interview speaks for
itself, but let me just say, now, not putting myself in the
position back then, but now, I think when you are called on to
interpret a statute which provides language which Congress
hasn't otherwise defined and the courts haven't otherwise
defined, that it is important to give the client, the people
who have to undertake action very clear definition, the best we
can do, of what those terms mean.
Mr. Franks. Well, I think that is what you tried to do, Mr.
Yoo.
Mr. Chairman, I would just say, try as they might, the
majority should not be spinning matters of life and death into
a soap opera.
The fact remains that the special terrorist interrogations
program was approved through a normal process for classified
covert operations. It was disclosed to Speaker Pelosi. She did
not object at the time.
It was rarely used and it was immensely successful in
preventing future terrorist attacks.
Mr. Addington, is there anything that you would like to add
here?
Mr. Addington. Just one brief point. Professor Schroeder
mentioned that it was unnecessary or even not a good idea that
Mr. Yoo's opinion of--excuse me--Mr. Bibey's opinion of August
1, 2002 addressed the defenses of necessity and justification
and I think the constitutional issue.
In defense of Mr. Yoo, I would simply like to point out
that is what his client asked him to do. So it is the
professional obligation of the attorney to render the advice on
the subjects that the client wants advice on.
Mr. Franks. Thank you, Mr. Chairman.
Mr. Nadler. I will now recognize the distinguished Chairman
of the full Committee, Mr. Conyers.
Mr. Conyers. Thank you very much, Chairman Nadler.
Professor Yoo, I appreciate your appearance here today.
During a public debate, it was reported you were asked if
the President could order that a suspect's child be tortured in
gruesome fashion, and you responded that ``I think it depends
on why the President thinks he needs to do that.''
Is that accurate?
Mr. Yoo. Mr. Chairman, I don't believe it is accurate,
because it took what I said out of context.
The quote stopped right before I continued to explain a
number of things, which I appreciate the opportunity to do now.
Mr. Conyers. But so far, what I read was accurate, but
there was more.
Mr. Yoo. It stops like mid-sentence. So I didn't get to
finish--I mean, I finished the sentence during the debate, but
I didn't----
Mr. Conyers. Okay.
Mr. Yoo [continuing]. Get a chance to----
Mr. Conyers. Thank you.
Is there anything, Professor Yoo, that the President could
not order to be done to a suspect if he believed it necessary
for national defense?
Mr. Yoo. Mr. Chairman, I think that goes back to the quote
you just read, because----
Mr. Conyers. No. I am just asking you the question. Maybe
it does or doesn't, but what do you think?
Mr. Yoo. I think it is the same question that I was asked--
--
Mr. Conyers. Well, what is the answer?
Mr. Yoo. First, can I make clear, I am not talking about--
--
Mr. Conyers. You don't have to make anything clear. Just
answer the question, counsel.
Mr. Yoo. I just want to make sure I am not saying
anything----
Mr. Conyers. You don't have to worry about not saying--just
answer the question.
Mr. Yoo. Okay. My thinking right now----
Mr. Conyers. Yes, right now.
Mr. Yoo. My thinking right now----
Mr. Conyers. This moment.
Mr. Yoo. This moment, Mr. Chairman, is that, first, the
question you are posing----
Mr. Conyers. What is the answer?
Mr. Yoo. Mr. Chairman, I am not trying to make you----
Mr. Conyers. I get it, okay.
Mr. Yoo. Let me answer--I will answer the question.
Mr. Conyers. No. You are wasting my time. Look, counsel, we
have all practiced law.
Mr. Yoo. I don't think the President----
Mr. Conyers. Hold it. Could the President order a suspect
buried alive?
Mr. Yoo. Mr. Chairman, I don't think that I have ever----
Mr. Conyers. I am asking you that.
Mr. Yoo [continuing]. Given the advice that the President
could bury somebody alive.
Mr. Conyers. I didn't ask you if you ever gave him advice.
I asked you, do you think the President could order a suspect
buried alive.
Mr. Yoo. Mr. Chairman, my view right now is that I don't
think a President would--no American President would ever have
to order that or feel it necessary to order that.
Mr. Conyers. I think we understand the games that are being
played.
Okay. Now, let me turn to Attorney Addington about the ABC
News report that there was a so-called principals meeting in
which Vice President Cheney sat around with other cabinet level
officials to approve specific interrogation techniques.
Is this true?
Mr. Addington. I don't know of any such meeting, Mr.
Chairman. It doesn't mean one did or didn't occur. I certainly
wasn't at one.
Mr. Conyers. None.
Mr. Addington. I was not at a meeting that fits the
description you have given.
Mr. Conyers. Right. Do you feel that the unitary theory of
the executive allows the President to do things over and above
the stated law of the land?
Mr. Addington. The Constitution binds all of us,
Congressman, the President, all of you as Members of Congress,
all of the Federal judges. We all take an oath to support and
defend it.
I, frankly, don't know what you mean by unitary theory of
government. I don't have----
Mr. Conyers. Have you ever heard of that theory before?
Mr. Addington. Oh, I have. I have seen it in the newspapers
all----
Mr. Conyers. Do you support it?
Mr. Addington. I don't know what it is.
Mr. Conyers. You don't know what it is.
Mr. Addington. No, and it is always described as something
Addington is a great advocator of.
Mr. Conyers. I see.
Mr. Addington. Now, let me tell you where I have used the
word ``unitary,'' in quoting OLC opinions, in drafting signing
statements, and you will find OLC opinions that refer to the
unitary executive branch.
And by that, they simply mean----
Mr. Conyers. I don't need you to interpret to me what other
people have used.
Mr. Addington. No. I am answering your question.
Mr. Conyers. You are telling me----
Mr. Addington. I have used the word----
Mr. Conyers [continuing]. You don't know what the unitary
theory means.
Mr. Addington. I don't know what you mean by it, no, Mr.
Chairman.
Mr. Conyers. You don't know what I mean by it.
Mr. Addington. Or anyone else.
Mr. Conyers. Do you know what you mean by it?
Mr. Addington. I know exactly what I mean by it and----
Mr. Conyers. So what do you mean?
Mr. Addington [continuing]. Sentences.
Mr. Conyers. Tell me.
Mr. Addington. The use of the word ``unitary'' by me has
been in the context of unitary executive branch and all that
refers to is--I think it is the first sentence of Article 2 of
the Constitution, which says all of the executive power is
vested in, A, the President of the United States, one
President, all of the executive power, not some of it, not part
of it, not the parts Congress doesn't want to exercise itself.
That is all it refers to.
Mr. Conyers. Thank you very much.
Mr. Addington. Yes, sir.
Mr. Nadler. The gentleman from Iowa is recognized for 5
minutes.
Mr. King. Thank you, Mr. Chairman. And perhaps I would
quote the Chairman of the full Committee and we could take the
temperature down in here just a little bit, and I have always
found the Chairman to be a gentleman and I point that out to
the witnesses today.
Mr. Addington. I do, too, sir. Chairman Conyers has a long
and distinguished history.
Mr. King. That is a unanimous opinion on the Judiciary
Committee, I believe.
I wanted to take you back, Mr. Addington, and just simply
give you a little latitude to express yourself here.
The book, ``Torture Team'' by Philippe Sands, which has
been quoted here a number of times and seems to be the source
of the criticism, refuted by at least two of the witnesses here
at the panel today, and I would ask--what do you have to say
about the credibility of the information that is in that book
and without necessarily impugning the author, if that can be
done?
Mr. Addington. Yes. I have read the book. I can't, of
course, as a witness who is under oath, address every word on
every page in the book. There are things in there, as I recall
from reading it, that were accurate and there were things in
there that weren't.
Mr. King. And, Professor Yoo, the same question.
Mr. Yoo. Sir, I haven't read the book. I did read Mr.
Sands' testimony before this Committee and I noticed in the
testimony he said that he had interviewed me for the book, and
I can say that he did not interview me for the book.
He asked me for an interview and I declined. So I didn't
quite understand why he would tell the Committee that he had
actually interviewed me.
Mr. King. And with that answer, Professor Yoo, then, I am
going to interpret that to mean that at least with regard to
that statement that he had interviewed you, you find that to be
a false statement and that would perhaps reflect on the
veracity of the balance of the book.
Mr. Yoo. I can't tell what else is in the book, but I don't
understand why he would say that he interviewed me for the
book.
I can tell the Committee that he contacted me once. He
wanted an interview for the book and I said, ``I don't want to
talk to you. I wrote my own book. You can look at my own book.
Everything I have to say is in my book.
And then he told the Committee that he had interviewed me.
Mr. King. Thank you, Professor Yoo.
Let me just take this a little bit a different way. And we
are here, the Constitution Subcommittee of the House Judiciary
Committee, reviewing apparently the process by which the
Administration reached a conclusion which seems to be a little
bit amorphous at this point.
And it is still in the middle of a war, trying to put it
within the context of 2008 rather than the context of 2001,
with the smoking hole at ground zero, still a smoking hole,
with the reconstruction of the Pentagon not perhaps yet begun,
and an entirely different environment.
And I would make this point, that without regard to
constitutionality or statute with regard to torture, there was
a different environment and a different context with which the
President had to make decisions.
And I am, I believe, reliably informed that the President
has taken the position consistently that prisoners will be
treated humanely. Now, that definition of humane may be up for
question.
But within this context, it is a similar context with which
we went into liberate Iraq. And I will make this point, that
had the President not taken action, if the President had said
we are going to make sure that we treat every prisoner with the
idea, the advice that the Ranking Member of the Committee put
up on the screen at the beginning of--during his opening
statement, we are going to make friends with them and cuddle up
to them and gain their trust and then we will find out
everything we need to know and we can surely rely on somebody
we are nice to tell us the truth.
If the President had taken that approach, that the
President had also taken the approach that in spite of the
global evidence, the global intelligence evidence that weapons
of mass destruction that Iraq had, if he had either said ``I
don't believe that that exists'' and if we do send troops, they
are going to go in without, let's just say, weapons against
chemical weapons or without defense against chemical weapons of
mass destruction, the President had misstepped anywhere along
the way and misinterpreted that very cautionary evidence that
was out there, and we had been attacked again by the
terrorists, which we have not effectively been so on this soil
since September 11, 2001, any little trip along the way would
have been turned back on him as having either not taken action
against weapons of mass destruction in Iraq or not extracting
the intelligence that was necessary to protect the American
people from a terrorist attack.
If he had been soft on this, the President might well be
brought before this Committee or at least as the subject of the
Committee. We might have seen another series of hearings like
we saw in this same room in 1998 if the President hadn't taken
action.
And I would ask, Mr. Addington, if you would care to
characterize this within the context of the circumstances
during the time that is at question here today.
Mr. Addington. Yes, Mr. Chairman.
I am careful in doing so because of the point I made at the
outset, that everyone here, I recognize, wants to defend the
United States of America and their constituents from attack.
Chairman Nadler, for example, lost several thousand in his
district. I mean, he had the twin towers in his district. So I
don't want to appear to be lecturing on ``I care more about
protecting Americans than you do,'' and I don't and I know you
don't either, Mr. Franks, want to be seen that way.
I am sorry, Mr. King.
Mr. King. Thank you.
Mr. Addington. We looked--I looked, I should say, through
basically three filters as we considered these kinds of issues
back, as you say, when they were still smoking, the twin towers
and the Pentagon.
The first filter in deciding what we have to do is support
and defend the Constitution of the United States. We all have
to start there. Every one of us, Members of Congress, me,
everybody in the executive branch takes the same oath.
We have to take the oath to support and defend. The
President has a different oath, but the rest of us all took the
oath to support and defend the Constitution.
The second filter you look through in deciding how are we
going to approach these issues, at least I did, was how, within
the law, I emphasize that, within the law, I help maximize the
President's options in dealing with it.
The third filter is when you go to war, you ask a lot of
people to do very tough things. On this Committee, I know there
are some veterans. Chairman Conyers I know served in the Korean
War era and there are others who served.
You ask people to do--young men to do tough things, young
women to do tough things in wartime. Same with our intelligence
agents. You want to make sure that whatever orders they are
given, they are legally protected.
You don't want to find out later somebody things, ``Oh,
let's investigate that, maybe they are wrong.'' You want to be
careful about it.
So everything we did in that era, at least that is what I
carried in my head to measure recommendations or legal advice
as they were going through.
Now, the one thing I would add to what you said, Mr. King,
is things were different back then. The smoke is still rising.
It was fresh in our memories that 3,000 Americans were just
killed by al-Qaeda terrorists, and that is true.
Things are not as different today as people seem to think.
We are dealing with intelligence on threats every day. We have
to consider these things.
Now, there can be legitimate judgments and disputes, and
this Committee has had them and they go on throughout the
government about what combination of activities should deal
with these sorts of things.
But no American should think we are free, the war is over,
al-Qaeda is not coming and they are not interested in getting
us, because that is wrong.
Mr. King. Thank you, Mr. Addington and all the witnesses.
Mr. Chairman, I yield back.
Mr. Nadler. I thank the gentleman.
I now recognize, for 5 minutes, the gentleman from Alabama.
Mr. Davis. Thank you, Mr. Chairman.
Gentlemen, thank you for coming today.
Mr. Yoo, I have not read your book, but I did do you the
courtesy of reading your opening statement and I want to have
some conversation with you about it.
In your opening statement, your written statement, you make
the observation that it was your analysis, 2001-2002, rather,
that the anti-torture statute passed by Congress in the 1990's,
the interpretation of that statute would depend, as you put it,
``not just on the particular interrogation method, but on the
subject's mental and physical condition.''
I interpret your observations as meaning that the test of
torture is, in part, a subjective standard, that one has to do
an inquiry into what you describe as the subject's physical and
mental condition.
Now, in response to Chairman Conyers' questions, you said
that that interpretation did not come from legislative history,
because there was very little. You said it did not come from
reviewing judicial opinions, because there were none.
And your phrase today was that there was very little--there
was no congressional guidance--no congressional guidance.
One good source of congressional guidance is Members of
Congress. So I would ask you if you or, in your knowledge,
anyone else in the Administration consulted, for example, the
Chairman of the House Judiciary Committee, Mr. Sensenbrenner at
that time, or other Republicans about the meaning of the anti-
torture statute?
Mr. Yoo. Mr. Davis, thanks for the----
Mr. Davis. That is a simple question. Was Mr. Sensenbrenner
consulted?
Mr. Yoo. First, I just want to correct one thing I said
that you quoted, just to be clear here.
There are judicial opinions on a related statute called the
torture----
Mr. Davis. I understand that. Was Mr. Sensenbrenner
consulted?
Mr. Yoo. I would not know one way or the other.
Mr. Davis. Mr. Addington, do you know if Mr. Sensenbrenner
was consulted? That is a simple was he or wasn't he.
Mr. Addington. I did not consult him and I do not know
whether anyone else did or did not.
Mr. Davis. The Chairman of the Senate Judiciary Committee,
I believe, was Mr. Specter, a Republican. Do either of you know
if Mr. Specter was consulted regarding the meaning of the anti-
torture statute?
Mr. Addington. I did not consult him. I don't know whether
he was or wasn't and----
Mr. Davis. Mr. Yoo, do you happen to know----
Mr. Addington [continuing]. Not necessarily relevant to the
legal interpretation.
Mr. Davis. Mr. Yoo, do you happen to know if Chairman
Specter was consulted?
Mr. Yoo. I don't know one way or the other.
Mr. Davis. And there is a process that has been alluded to
today of consulting with Members of the House and Senate
Intelligence Committees regarding certain matters that,
frankly, we wouldn't want disclosed in open forum.
Mr. Yoo, did you or anyone else in the Administration
consult Members of the House or Senate Intelligence Committees
regarding Congress' intent regarding the anti-torture statute?
Mr. Yoo. All I know is what I have read in the newspapers.
Mr. Davis. That is a simple were they or were they not
consulted. Do you know if they were?
Mr. Yoo. Again, all I know is what I have read in the
papers about it.
Mr. Davis. To your knowledge, were they or were they not
consulted, Mr. Yoo?
Mr. Yoo. You mean to my knowledge back----
Mr. Davis. Yes. To your knowledge, they were not, were
they?
Mr. Yoo. I don't know.
Mr. Davis. Mr. Addington, to your knowledge, were any
Members of the House or Senate Intelligence Committees
consulted regarding the question of Congress' intent regarding
the anti-torture statute?
Mr. Addington. There is no reason their opinion on that
would be relevant and----
Mr. Davis. Is that a no?
Mr. Addington. I did not consult them and I do not know
whether----
Mr. Davis. Now, let me make--thank you all for answering
those questions without too much struggle.
One of the interesting things here today, Mr. Yoo and Mr.
Addington, is that, frankly, we have heard this word
``context'' over and over again and I have heard both of you
say, and I have heard my colleagues and my friends on this side
of the aisle say you have got to remember the context.
We had been threatened. We had been attacked. There was a
possibility of follow-up attacks. All of that is accurate. But
let me tell you the rest of the context.
You had a Congress that was a rubber stamp for the
Administration's entire security agenda. You had Chairmen of
the House and Senate Judiciary Committees who were strongly
supportive of your agenda.
You came to Congress and asked for the Patriot Act and you
got it easily. You came to Congress and asked for an
authorization of force resolution and you got it easily.
You got bipartisan support for both of them.
During the 107th, 108th and 109th Congresses, there was not
a single time the Bush administration was rebuffed on any issue
related to national security.
You got an expansion of FISA that met your interests. You
got a Military Tribunal Commissions Act that met your
interests.
We wouldn't be here today, gentlemen, if you had come to
this Congress and you had said one of two things, either give
us a stronger, clearer definition of what torture means or if
you had even gone to congressional leadership and said you are
a source of guidance on what Congress meant, tell us, Chairman
Sensenbrenner, you were there, tell us, Chairman Specter, you
were there.
The problem, Mr. Addington, and I will direct my last
observation to you, because you still serve with this
Administration, when you have got a Congress that is a rubber
stamp for what you want, you ought not be disrespectful of the
legislative branch of government.
If you had come to this Congress, everyone in this room
knows to an absolute certainty, they would have given you
anything you asked for in October 2001. If you had said, ``Give
me a definition that fits,'' and Mr. Yoo had written the
statute, if he had said, ``Give us a torture statute that makes
torture a subjective condition, depending on the person's
mental or physical state,'' you could have gotten that.
You didn't even trust people who were rubber stamps for
you.
And I will yield back the balance of my time.
Mr. Nadler. I thank the gentleman.
I now recognize, for 5 minutes, the gentleman from
Minnesota.
Mr. Ellison. Mr. Yoo, you wrote the Bibey memo of August
2002. Is that right?
Mr. Yoo. Mr. Ellison, as I described in the opening
statement----
Mr. Ellison. I need a yes or no, sir.
Mr. Yoo. I did not write it by myself.
Mr. Ellison. Did you write it in any part?
Mr. Yoo. I contributed to a drafting of it.
Mr. Ellison. Okay. So you contributed to a drafting of it.
What percentage of the drafting did you write?
Mr. Yoo. It is difficult for me to----
Mr. Ellison. And do you check--you checked in with
Addington about what you were going to cover. He said you did.
Mr. Yoo. Can I----
Mr. Ellison. Were you----
Mr. Yoo. We are talking about the August 1, 2002 memo.
Mr. Ellison. Of course. Did you check in with Addington, as
he just said you did?
Mr. Yoo. I, unfortunately, do not have the same----
Mr. Ellison. So you can't----
Mr. Yoo [continuing]. Guidance as Mr. Addington does,
because the Justice Department has told me I am not allowed to
talk about any individuals. I am only allowed to talk about----
Mr. Ellison. Was Mr. Addington telling the truth when he
said you checked in with him over what you were going to cover?
Mr. Yoo. Let me describe it.
Mr. Ellison. No. I want you to say yes or no.
Mr. Yoo. I gave the draft of the opinion to the White House
counsel's office, which would be----
Mr. Ellison. So when he just said you came in to tell us
what he is going to cover, you cannot confirm that. Is that
right?
Mr. Yoo. No, I am not saying that at all, Mr. Ellison.
Mr. Ellison. Well, answer my question. It is a yes or no.
Mr. Yoo. And so it is up to the White House counsel to
decide who within the White House----
Mr. Ellison. Stop, sir. I am asking you to tell me to
confirm whether what Mr. Addington reported to this Committee
was right or not right. That is simple.
I hope this isn't coming out of my time, Mr. Chairman.
Mr. Nadler. We are a little flexible.
Mr. Yoo. Mr. Ellison, I am afraid I have to follow the
guidance provided by the Justice Department on this question.
Mr. Ellison. So confirm what Addington said, deny what
Addington said, or say ``I cannot answer the question.'' And
what privilege are you asserting?
Mr. Yoo. I can't answer the question because of the
instruction by the Justice Department that----
Mr. Ellison. Thank you.
Mr. Yoo [continuing]. I am not allowed to----
Mr. Ellison. Thank you.
Mr. Yoo [continuing]. Discuss----
Mr. Ellison. Who else was present when Addington--when you
checked in with Addington?
Mr. Yoo. Sir, you are assuming I answered your last
question.
Mr. Ellison. Is that a repeat of the last answer? Do you
stick with the last answer?
Mr. Yoo. Your question was who else was in the room when I
checked in with Addington.
Mr. Ellison. Right. And you can assert your privilege
again, if you choose. Do you?
Mr. Yoo. It is not my choice. The Justice Department has
told me I can only talk about the office----
Mr. Ellison. So at some point, this 2002 memo was
implemented. Is that right?
Mr. Yoo. What do you mean by implemented, sir?
Mr. Ellison. Well, do you know what the word
``implemented''----
Mr. Nadler. If the gentleman would suspend for a moment and
stop the clock, please.
Professor, are you asserting a privilege?
Mr. Yoo. On the last question or the previous two?
Mr. Nadler. Either one of them.
Mr. Yoo. On the first two he asked me, I have to because of
the instructions by the Justice Department that I can't discuss
internal deliberations.
I can discuss----
Mr. Nadler. And exactly what privilege are you asserting?
Mr. Yoo. I assume the Justice Department--I can't say what
the Justice Department's belief for the----
Mr. Nadler. No, no. Wait a minute.
Mr. Yoo. They ordered me not to----
Mr. Nadler. Hold on. You are testifying before a
congressional Committee.
Mr. Yoo. Okay.
Mr. Nadler. The Justice Department cannot order you with
regard to your testimony. It can instruct you to take a
privilege, if you are entitled to a privilege. You can take the
privilege without their instructions, if you are entitled to
the privilege.
If you are asserting a privilege, you are entitled to do
so, but we are entitled to ask you what privilege is it is you
are asserting.
Mr. Yoo. Yes, sir.
Mr. Nadler. And whether they are ordering you to assert a
privilege or not, if the privilege is there, you can assert it.
If it isn't there, you can't assert it, whatever they say.
Mr. Yoo. I believe it is the attorney-client privilege,
sir.
Mr. Nadler. So you are asserting the attorney-client
privilege in not answering the question you were asked.
We will take that--since you are not here under subpoena,
we will take that under advisement and consider that at the end
of the hearing.
We will resume the questioning and the clock will resume.
Mr. Ellison. Mr. Yoo, are you denying knowledge of what the
word ``implement'' means?
Mr. Yoo. No. I wanted to----
Mr. Ellison. What does ``implement'' mean, sir?
Mr. Yoo. You are asking me to define what you mean by the
word?
Mr. Ellison. No. I am asking you to define what you mean by
``implement.'' What do you understand the term to mean?
Mr. Yoo. It can mean a wide number of things.
Mr. Ellison. Okay. Look, you contributed to the writing of
the 2002 memo. Is that right?
Mr. Yoo. Yes, I do----
Mr. Ellison. The name on the memo was Bibey, but you
contributed to the memo, right?
Mr. Yoo. Yes, sir.
Mr. Ellison. The memo was implemented at some point. Is
that right?
Mr. Yoo. What do you mean by implemented, sir?
Mr. Ellison. What I mean by implemented is the guidance
that was set forth in that legal memorandum was followed and
put into action. Do you understand what I mean by implemented
now, sir?
Mr. Yoo. So you are asking me was the memo followed, was
the memo followed by----
Mr. Ellison. I am not going to get into semantical games
with you in this 5 minutes. I need you to answer the question
or refuse to.
Was the memo implemented?
Mr. Yoo. The memo was signed and provided----
Mr. Ellison. I know what signed means and so do you. Stop
wasting my time, Mr. Yoo.
Mr. Yoo. I am not trying to, sir.
Mr. Ellison. Was the memo followed? Will you accept
followed?
Mr. Yoo. I don't have personal knowledge about how it was
followed, but I expect----
Mr. Ellison. I didn't ask you about how. I asked you
whether it was followed, sir.
Mr. Yoo. Sir, you are asking me about things that other
people would have done, not me.
Mr. Ellison. So the fact is--so the memo was never put into
effect. Are you making that claim?
Mr. Yoo. No, no, no, sir. Let me go back and refer to my
opening statement.
Mr. Ellison. Forget it.
Mr. Schroeder, do you understand what implement means?
Mr. Schroeder. I think I do. Yes, sir.
Mr. Ellison. Was this memo, this 2002 memo which Mr. Yoo
refuses to answer questions about, ever put into effect?
Mr. Schroeder. Of course, I have no personal knowledge. I
wasn't in the Administration----
Mr. Ellison. I am not asking you about personal knowledge.
Based on your study.
Mr. Schroeder. My understanding is that the memo was
prompted, at least in part, by a specific request of the CIA
with respect to what kinds of procedures their operatives would
be able to use in interrogating some high level al-Qaeda
detainees and that once the advice was forthcoming, my
understanding, it is all from published investigative
reporting, I have no firsthand knowledge myself, is that some
of the techniques that fell on the legal side of the line,
according to the memorandum, were employed.
Mr. Ellison. So is that right, Mr. Yoo? Were the legal
techniques that you outlined in this memo employed?
Mr. Yoo. Were the techniques that were legal--let me say
this. We did not make decisions about policy----
Mr. Ellison. I didn't ask you about that.
Mr. Yoo. We didn't----
Mr. Ellison. I did not ask you about that, sir. I want to
know if the legal advice that you gave in that memo was
followed or if you expect that it was followed.
Mr. Yoo. Again, Mr. Ellison, I don't----
Mr. Ellison. Did anyone ever come to you and ask you for an
interpretation of your memo?
Mr. Yoo. Interpretation of my memo?
Mr. Ellison. Did the interrogators ever come back and say,
``We got the memo''----
Mr. Nadler. Without objection, the gentleman will have 1
additional minute to finish his line of questioning.
Mr. Ellison. Did the interrogators ever return to you and
say, ``You know, you have given us this memo, but we want to
implement a certain technique. Do we fall within the memo?''
Was that scenario ever played out?
Mr. Yoo. Again, sir, because of the instructions of the
Justice Department, I can't tell--that is not my clock, I
assume.
Mr. Ellison. Mr. Schroeder, what----
Mr. Yoo. I can't----
Mr. Ellison. Mr. Schroeder, was the memo in effect during
Abu Ghraib?
Mr. Nadler. The gentleman will suspend, again.
Professor, are you asserting a privilege?
Mr. Yoo. Sir, I am afraid Mr. Ellison's questions may
involve a discussion of classified information, which, because
of congressional statute, I am not at liberty to discuss in a
public setting.
Mr. Nadler. So you are asserting the privilege against the
revelation of classified information in answering the question.
Mr. Yoo. I don't know if that is a privilege. I just can't
do that, sir. I am not saying it is a privilege. I just can't--
that is a violation of the law.
Mr. Nadler. You are asserting that in order to answer Mr.
Ellison's question, you would have to reveal classified
information.
Mr. Yoo. I might have to, sir.
Mr. Nadler. Might have to or do have to? Let me rephrase
the question.
Mr. Yoo. If I understand the question----
Mr. Nadler. Let me rephrase the question.
Is there any way you can answer Mr. Ellison's question
without revealing classified information?
Mr. Yoo. As I understand the question, I would have to
discuss classified information to provide him a complete
answer. I don't----
Mr. Nadler. Okay.
Mr. Yoo [continuing]. Do that, sir.
Mr. Nadler. Again, we will take that under advisement.
Mr. Davis. Mr. Chairman, may I make a parliamentary
inquiry?
Mr. Nadler. Yes. The gentleman will state his parliamentary
inquiry.
Mr. Davis. I would inquire of the Chair, after we come back
from our break from voting on the floor, if the Chair would
consider directing particularly the two government witnesses,
Mr. Yoo and Mr. Addington--I have noticed, Mr. Chairman, I have
been on the Committee for a year and a half, and I have never
seen two witnesses, frankly, struggle as much to appreciate the
ordinary use of terms and questions.
Would you consider instructing the two witnesses to answer
the questions and if they wish to elaborate or clarify, then
they can ask to do so?
But given that we have time constraints, I would ask that
the Chair admonish the witnesses to err on the side of being
responsive as opposed to constantly quibbling over word choice,
because I have never seen it to the degree I am seeing it
today.
Mr. Nadler. I will certainly consider that as we break,
which we will recess in a few minutes for the votes on the
floor.
The gentleman can finish his questioning.
Mr. Ellison. My question is: when the interrogators, the
ones who were addressing the witnesses who were being
interrogated, were those individuals--did they have a lawyer
that they could go to to ask about guidance as to what they
could do or could not do under the guidance of the memo that
you contributed to writing?
Mr. Addington. Mr. Ellison, as I understand the structure
of our government, the CIA has its own general counsel's office
and I believe it is about 100 lawyers.
So if you--I assume you believe that the CIA conducted
interrogations and if you did, they have a general counsel's
office to ask legal questions.
Mr. Ellison. Were you ever asked questions about whether
certain techniques or others were permissible under the
guidance you gave in that memo?
Mr. Yoo. As I said to the Chairman just a second ago, I am
afraid I think your question asks----
Mr. Ellison. You are asserting a privilege. Were you ever
asked whether waterboarding was permissible under the advice
you gave?
Mr. Yoo. Sir, if you will let me finish. I can't answer
your question----
Mr. Ellison. Okay.
Mr. Yoo [continuing]. Because I believe it----
Mr. Nadler. The gentleman will suspend again. You are
asserting that you cannot answer the question as to whether the
CIA asked you questions regarding the legality of waterboarding
without revealing classified information.
Is that your assertion?
Mr. Yoo. Yes, sir.
Mr. Nadler. Okay.
Mr. Ellison. Did you ever----
Mr. Nadler. We will hold that--we will hold that under
advisement, and the gentleman's time has expired.
Mr. Ellison. One last question?
Mr. Nadler. Without objection, the gentleman will have 30
additional seconds.
Mr. Ellison. Did your memo allow for the use of sicking
dogs on interrogated individuals?
Mr. Yoo. I am afraid I have to give the same answer, but I
will point out to the----
Mr. Nadler. Excuse me a second. The question was did your
memo allow for that. That is not confidential. Your memo has
been revealed to the public.
Mr. King. Mr. Chairman, parliamentary inquiry.
Mr. Nadler. One second. Let him answer the question.
Mr. Yoo. You are referring again to the August 1, 2002
memo. The memo speaks for itself. It does not discuss what you
just mentioned.
Mr. Nadler. Thank you. The gentleman's time has expired.
The gentleman----
Mr. King. I just simply want to make the parliamentary
inquiry, the procedure here, whether who is actually asking the
questions and if the privilege of the Chair is reflective of
the executive privilege that has been denied the President of
the United States, I just can't keep with the flow when the
Chair is asking questions on behalf of the Member who has been
recognized.
Mr. Nadler. Excuse me. The Chair was not asking questions,
but trying to ascertain what privilege is being asserted, and,
at one point, trying to clarify so that we don't go back and
forth with a misunderstanding, and I think I saved a little
time.
The gentlelady from Florida is recognized for 5 minutes,
after which we will recess.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
Mr. Addington, there are press reports that state that in
September of 2002, you and other Administration lawyers visited
Guantanamo Bay.
A JAG attorney in Guantanamo, Diane Beaver, is quoted in a
``Vanity Fair'' article as saying that the message from you and
the other visitors was ``do whatever needed to be done.''
And just weeks after that visit, interrogators at
Guantanamo Bay began to developing a far harsher interrogation
program than they had ever used before.
Did you visit Guantanamo Bay in September of 2002, as has
been reported?
Mr. Addington. I don't remember the exact date, but I went
there a number of times.
Ms. Wasserman Schultz. Well, do you recall going to
Guantanamo Bay around that time?
Mr. Addington. I really don't remember the dates, ma'am,
but I remember going in the----
Ms. Wasserman Schultz. How many times have you been--did
you go to Guantanamo Bay during that period?
Mr. Addington. During that--well, I am not sure what period
you are describing. I would say I have probably been to
Guantanamo, I guess, maybe five times. The first time would
have been years ago, which isn't relevant to this, when I
worked at the Department of Defense
And then I have probably been, I would guess, three or
four----
Ms. Wasserman Schultz. On one of those trips, did you meet
with JAG attorneys?
Mr. Addington. I don't recall it. I remember when Ms.
Beaver, Col. Beaver, who was referenced, I think, in Mr. Sands'
``Vanity Fair'' article, I did not remember meeting her there.
The only time I remember meeting her is over at the office
of general counsel at the Department of Defense many years
later.
Ms. Wasserman Schultz. What generally prompted your trips
to Guantanamo Bay when you made them?
Mr. Addington. I was invited by the Department of Defense
to go and I accepted. I thought it would be good to go and see
what they were doing to implement the decisions made in January
and February at the White House to have detainees held there by
the Department of Defense.
Ms. Wasserman Schultz. Did you have any discussions on
those trips about interrogation methods?
Mr. Addington. I don't know about methods. I would say we
probably did, only in the sense that I can remember, and I am
not sure it is this particular trip, but at least on some of
the trips, and it may----
Ms. Wasserman Schultz. On any of the trips?
Mr. Addington. Yes. That they would show us an
interrogation room, with no one in it, so you could see what
the room looked like and then, separately, look through, I
assume, and I don't know, that the person being interrogated
and the interrogator couldn't see us.
In other words, like a one-way mirror kind of set, where
you could see into that. So having done that, I am sure they
must have discussed----
Ms. Wasserman Schultz. On any of the trips, did you discuss
interrogation methods that were directly referenced in the memo
that we have been discussing here for this hearing?
Mr. Addington. I am not sure I remember this memo having
methods discussed in it, frankly.
Ms. Wasserman Schultz. Did you discuss specific types of
interrogation methods that interrogators should use while at
Guantanamo Bay on the detainees?
Mr. Addington. I don't recall doing that, no.
Ms. Wasserman Schultz. That means you didn't or you don't
recall doing it?
Mr. Addington. It means I don't recall doing it, as I said.
Ms. Wasserman Schultz. Well, it is hard to fathom that you
would not have a recollection on specific conversations about
types of interrogation methods as opposed to just generally
talking about interrogation.
Mr. Addington. Is there a question pending, ma'am?
Ms. Wasserman Schultz. The question is I don't believe that
you don't recall whether you discussed specific interrogation
methods. So I will ask you again.
Did you discuss specific interrogation methods on any of
your trips to Guantanamo Bay with people who would be
administering the interrogation?
Mr. Addington. And as I said to you, I don't recall. Let me
be clear to you that there are two different things that may be
helpful to you in asking your questions.
The Department of Defense interrogations----
Ms. Wasserman Schultz. I really don't need----
Mr. Addington. Well, the CIA program, and you will find
when you question me the participation with respect to the CIA
program is more extensive than the DOD program.
And I wouldn't find it so unusual that I don't recall the
details----
Ms. Wasserman Schultz. Except that interrogations, your--
there is an accusation that interrogation methods went far
beyond and up to and past torture following your visits to
Guantanamo Bay.
So I am trying to get a sense of whether you actually went
there, encouraged those specific interrogation methods and
whether they crossed the line.
Mr. Addington. I did not.
Ms. Wasserman Schultz. So I am pretty clear on why I am
asking you the questions and which one I am asking you.
On one of the trips that you took, it was weeks after the
August 1, 2002 interrogation memo was issued by the Office of
Legal Counsel.
Did you have any discussions on that trip about that recent
Department of Justice legal advice on interrogations? Did you
ever discuss the memo which offered legal advice on
interrogations with anyone at Guantanamo Bay on any of your
trips there?
Mr. Addington. I am fairly certain, I won't be absolute,
but fairly certain that I did not.
Ms. Wasserman Schultz. That you did not ever----
Mr. Addington. Discuss this August 1, 2002 legal opinion to
the counsel of the President from the Department of Justice.
Ms. Wasserman Schultz. So you deny the suggestion then in
their report that you encouraged Guantanamo Bay interrogators
to do whatever needed to be done.
Mr. Addington. No--yes, I do deny that.
Ms. Wasserman Schultz. You do deny that.
Mr. Addington. Yes. That quote is wrong.
Ms. Wasserman Schultz. Okay. Did you observe an
interrogation during the trip, as has been reported?
Mr. Addington. I think we probably did, as I described
earlier.
Ms. Wasserman Schultz. And why did you observe an
interrogation?
Mr. Addington. The Department of Defense took us around to
show us the camp and what was going on, showed us that. Now, I
emphasize, I am not sure it is the particular September 2002
trip you are describing, but on at least several of those
trips, I----
Ms. Wasserman Schultz. What did you observe?
Mr. Addington. Observed a detainee in, I believe, an orange
jumpsuit sitting in a chair.
Ms. Wasserman Schultz. What kind of interrogation was used?
Mr. Addington. They were talking to him during the brief
time that we went.
Ms. Wasserman Schultz. Simply just conversation, no other
methods, just conversation.
Mr. Addington. During the brief time that we were there,
yes. And I don't recall that we could actually hear what was
being said. You could look and see mouths moving. I infer that
there was communication going on.
Ms. Wasserman Schultz. But you saw no physical contact with
the interrogators.
Mr. Addington. Correct.
Ms. Wasserman Schultz. The only thing you witnessed----
Mr. Addington. It was a very brief look.
Ms. Wasserman Schultz [continuing]. Was discussion.
Mr. Addington. Yes.
Ms. Wasserman Schultz. Okay. I yield back the balance of my
time.
Mr. Nadler. Thank the gentlelady.
There are now three votes on the floor. The Subcommittee
will stand in recess until immediately after the third vote.
We ask the witnesses to remain. We thank you for your
participation and for your indulgence and patience.
The Committee is in recess.
[Recess.]
Mr. Nadler. The Committee will come to order again. I thank
the witnesses for their patience in awaiting our votes on the
House floor.
Without objection, the two quotes from the ``War by any
Means'' by Mr. Yoo that I think it was Mr. Addington asked be
entered into the record, are entered into the record.
Mr. Addington. Thank you. It is Exhibits 10 and 11.
Mr. Nadler. Well, they are entered into the record,
whatever they are.
Before we proceed, let me simply, again, admonish those
present in the room that this is a very serious hearing
involving very serious and very emotional questions and we must
consider them as dispassionately as possible.
And any disruption or demonstration of any kind will not be
tolerated and any person engaging in such will be immediately
escorted from the room. So I hope we don't have the necessity
to do that.
When we recessed, we were about to recognize the gentleman
from Virginia.
The gentleman from Virginia is now recognized for 5 minutes
for the purposes of asking questions.
Mr. Scott. Thank you, Mr. Chairman.
Let me see if I can get a quick answer to the question,
because there was much discussion of military training
techniques in the Senate Armed Services Committee last week.
These are called the SERE techniques, S-E-R-E, survival,
evasion, resistance and escape.
Now, Mr. Yoo, did you ever discuss or get information about
that program as you prepared the August 1, 2002 memorandum?
Mr. Yoo. Mr. Scott, I am afraid the Justice Department has
instructed me that I can't answer questions of that nature.
Mr. Scott. Mr. Addington, did you ever discuss the SERE
program in connection with the----
Mr. Nadler. The gentleman will suspend.
Mr. Yoo, in order for you to assert a privilege as a basis
for refusing to answer a question, we need you to tell us what
the privilege is and the specific basis on which you are
asserting it.
That is, precisely why and what aspect of the question you
cannot answer further and still maintain the privilege.
We need you to be specific and detailed enough that we can
determine whether the basis you are asserting is valid for the
line you are drawing in refusing or limitin your answer.
Mr. Yoo. Mr. Chairman, according to the Justice
Department's instructions, I believe the privileges would be
both the attorney-client privilege and the protection of
classified information.
Mr. Nadler. So you are asserting that the answer to Mr.
Scott's question would necessitate the revelation of classified
information.
Mr. Yoo. As I understand the instructions the Justice
Department----
Mr. Nadler. No, no, no, I am not asking you that. You are
asserting the privilege, not the Justice Department.
You are asserting their privilege. You have to be satisfied
that--well, let me just back up a bit.
The attorney-client privilege is not a valid privilege in
Congress. It may be in court, but it is a common law privilege.
It is not a valid privilege here, number one.
But your classified information is. That is, it is valid if
it applies.
So what I am asking you is that you must state that an
answer to Mr. Scott's question would necessitate the revelation
of classified information, not that someone else believes it,
you believe it.
Mr. Yoo. I have to say this, sir, that the Justice
Department gave me these instructions. I can't go out beyond
them, sir. I am not sure what you are asking me to say.
I mean, if your view is that my saying that this is the
privilege, this is what the Justice Department communicated to
me in an e-mail. So I have to follow it, sir.
I don't have the right to go beyond or to go----
Mr. Nadler. It is difficult to credit your assertion of
privilege on this question because Steven Bradbury, the current
assistant Attorney General of the OLC, testified before this
Committee earlier this year.
When he testified, he said that ``The CIA's use of the
waterboarding procedure was adapted from the SERE training
program.''
In light of his saying that, how can your answer to Mr.
Scott's question be privileged?
Mr. Yoo. Sir, I recognize that it is your view that the
attorney-client privilege does not apply. However, sir, that is
the instructions I received from the Justice Department.
It is their privilege to raise and those are the
instructions I received.
I don't want to be in the middle of a privilege fight
myself if you and the Justice Department have a disagreement
about it.
Mr. Nadler. It is difficult. I gather Steven Bradbury is, I
am told, the person giving these instructions to the Justice
Department. He answered this question before this Committee.
So I fail to see how, in effect, the repetition of the
answer could be--unless you are going to disagree with him--
could be privileged.
Mr. Yoo. Sir, I recognize that Mr. Bradbury gave me the
instructions, but I personally can't go beyond what he has----
Mr. Nadler. All right. The Chair will have to--I can't say
anything further. The Chair will take your assertion of
privilege regarding this question under advisement and we will
come back to you later as may be warranted.
The gentleman from Virginia's time is resumed.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Addington, did you ever discuss the SERE program in
connection with the August 1, 2002 memorandum?
Mr. Addington. No. I didn't think I did so, but I don't
have any reason to dispute the quotation from Mr. Bradbury that
the Chairman just read.
Mr. Scott. Mr. Yoo, let me ask a kind of basic question. Is
torture by United States officials illegal?
Mr. Yoo. You are asking me--my current view is if it is a
violation of torture as it is defined in the statute, in the
criminal code, then it would be illegal under that statute.
Mr. Scott. Thank you. Now, is there an international
agreement of what torture is and what it isn't? I mean, doesn't
everybody in the world kind of know when it is torture and when
it isn't?
Mr. Yoo. Mr. Scott, you are referring to the convention
against torture, I believe.
Mr. Scott. Sure.
Mr. Yoo. So there is a treaty in effect called the
convention against torture.
Mr. Scott. Don't most countries kind of understand when it
is torture and when it is not?
Mr. Yoo. I think, looking at that treaty, that there has
been disagreement by the United States itself as to----
Mr. Scott. You put some disagreement in it. I am talking
about everybody else in the world.
Mr. Yoo. No, sir. When the Senate ratified the treaty, the
convention against torture, it put in a reservation about its
definition of torture.
Mr. Scott. Okay. Whatever the definition is, did 9/11
change that definition?
Mr. Yoo. 9/11 did not change the definition of torture
under the convention against torture, no.
Mr. Scott. Now, if people--if United States officials
torture people based on your memo, would they be protected if
they follow your memo? If they followed your memo, would they
be protected from prosecution, even though your memo has been
pretty much disparaged?
Mr. Yoo. Mr. Scott, putting aside whether it has been
disparaged or not, the purpose of the memo was to define
torture so that people would not commit torture.
The memo itself does not----
Mr. Scott. Mr. Schroeder, Professor Schroeder, can a legal
opinion be so ridiculous that it does not protect those who
follow the definition in such a memo?
Mr. Schroeder. Well, it could be, Congressman. But if you
are talking about the effect it would have on somebody, say,
down the line, actually, an operative in the field and hasn't
had a chance to read the memo, but is simply getting advice
that an authoritative interpretation exists, then I think it
would be very difficult for that person to be held responsible
for having analyzed and rejected the law on his or her own
behalf.
Mr. Scott. Well, can the opinion be so ridiculous that as
it goes down the line, people ought to have the common sense to
reject the analysis and use their common sense as to when it is
torture and when it is not, or does the Administration have the
power to just write up such a memo and protect people who
torture people based on a ridiculous legal opinion?
Mr. Schroeder. No. I don't believe they do. I think that
people--and you would expect that members of the military would
use their own common sense as to what is permissible or not.
Mr. Scott. Now, is it an excuse to torture if you got good
information from the torture?
Mr. Schroeder. Not under the treaty and I think not under
the statute that implements the treaty, no.
Mr. Scott. Is it an excuse to torture if you can't get the
information you are looking for using less aggressive
techniques?
Mr. Schroeder. No, sir. The treaty admits of no exceptions.
Mr. Scott. Now, Mr. Yoo, if you are going to go around
torturing people based on your memo, how do you know before you
get information whether or not you are going to get good
information from someone?
Mr. Yoo. Sir, I am not going around torturing people, as
you just said, and the memo does not authorize anyone to
torture anybody.
So unfortunately, I don't agree with the premise of your
question.
Mr. Scott. Are you suggesting that the activities allowable
under your memo do not constitute torture by everybody's
definition in the world except yours?
Mr. Yoo. Sir, I don't know what everybody else's definition
in the world is.
Mr. Scott. Now, is it an excuse to use more aggressive
techniques, the techniques that you can use, do you get--do you
consider the information you are going to get or the fact that
you couldn't get it using less aggressive techniques?
Does that excuse more aggressive techniques?
Mr. Yoo. Sir, as I understand the statute, as it is written
now, does not provide--it does not provide an exception for
whether the information is good, as you said, or whether the
interrogation techniques are less--you could less or more
aggressive interrogation techniques.
There is nothing in the statute that says anything about
that.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Nadler. Thank you.
The gentleman from North Carolina is recognized for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman.
I thank the witnesses for being here.
I have kind of observed from the earlier questioning that
if I really want some answers, I probably ought to focus on
Professor Schroeder here.
Otherwise, I will probably be just pretty much banging my
head against the wall and wasting my 5 minutes.
So let me ask Mr. Schroeder a couple of questions here.
I am fascinated by the comment on the first page of your
written testimony, where you say we must be mindful of the
difference between law and policy.
I was kind of reflecting on that during the time we went to
vote and recalled that in the 22 years that I practiced law, I
had a particular client who, when he didn't like the legal
advice I would give him, would always tell me that the Lord
told him to do otherwise.
And I was very insistent with him that I never wanted to
argue with the Lord, but I stood by the legal advice that I
gave him. And so I have some appreciation for the difference
between policy and law.
I guess when somebody, the Lord or somebody other than a
lawyer, tells you that you should do something that the lawyer
has told you he thinks is illegal, that is the distinction you
are drawing between policy and legal advice, I take it.
Mr. Schroeder. Yes, sir.
Mr. Watt. All right. I think I understand the concept then.
Well, let me, first of all, ask you, are there things that
you understand--I know you have not been a party to all of the
torture techniques and what have you that this Administration
has pursued.
Are there things that you understand that this
Administration has pursued that go beyond Mr. Yoo's memo and
basically the President was told or the Vice President or
somebody in the CIA was told by somebody other than Mr. Yoo
that the Lord or whoever told them, that--have those kinds of
things been engaged in based on what you understand?
Mr. Schroeder. Congressman, I hope I am now not going to
join Mr. Yoo and Mr. Addington in being unable to respond to
your question, but I really don't have knowledge of what
exactly was being--now, we have read reports that waterboarding
was used on some suspects.
Mr. Watt. Would that be authorized by Mr. Yoo's memo?
Mr. Schroeder. I would have to, frankly, know more about
waterboarding than I do.
Mr. Watt. That is fine. This is not a trick question. I am
just trying to get----
Mr. Schroeder. I wish I could be helpful, but I just don't
have----
Mr. Watt. Assume that a policy decision was made to go
beyond the legal memorandum and advice that Mr. Yoo gave. The
recourse that I suppose the public and Congress would have,
only recourse probably would be an impeachment proceeding.
Isn't that correct or is that correct?
Don't ponder too long. My clock is ticking here.
Mr. Schroeder. I just hate to use the word in this
Committee, which has had to consider these matters in the past.
It would be difficult under the legal theory in the August
2002 memo to think of what remedy would be available other than
impeachment.
Mr. Watt. And I guess this is the same question that Mr.
Scott was asking at some level. When an attorney gives a piece
of advice that is legal advice, we presume attorneys have a
sense of responsibility to the law, to the Constitution.
What recourse does Congress or the public have against the
attorney, if any?
Mr. Schroeder. Well, proceedings with a bar association is
one possibility. But you have to understand that I am not
remotely in a position to say anything----
Mr. Watt. I am not suggesting that----
Mr. Schroeder [continuing]. That the advice being given by
the individuals who gave them was under their understanding of
the law, at the time, the best advice that they could give.
I happen to think it was wrong, but there is a big
difference between being wrong----
Mr. Watt. Just a hypothetical question that has nothing--I
am separating it from Mr. Yoo's opinion.
Is there some recourse that Congress has if we find that
the advice was outrageous, as Mr. Scott said?
Mr. Schroeder. Well, I think as far as this institution
goes, I am not aware of laws on the books that would reach that
situation.
Certainly, the bar associations responsible for someone's
professional license could evaluate the advice that was being
given and seeing if it constituted malpractice or an abuse of
that person's responsibility as an officer of the court to
uphold the law.
Mr. Watt. So really Congress and the public really have
little recourse other than malpractice.
Mr. Schroeder. I would think a disciplinary proceeding
before the bar association leading to disbarment would be the
kind of remedy that I would think of first. But this is not a
question I have investigated.
Mr. Watt. Okay. My time has expired, and I appreciate you
being responsive to my questions.
I yield back.
Mr. Nadler. I thank the gentleman.
I now recognize for 5 minutes the gentleman from Tennessee.
Mr. Cohen. Thank you, Mr. Chairman.
And thank you, the gentleman from North Carolina.
Mr. Yoo, you worked for Mr. Ashcroft, did you not?
Mr. Yoo. Mr. Ashcroft was the Attorney General when I was
at the Justice Department.
Mr. Cohen. Right. Did you consider yourself an employee of
his?
Mr. Yoo. I am sorry, sir?
Mr. Cohen. You were an employee of his. You were in the
chain of command. You were underneath him, correct? Is that
right?
Mr. Yoo. Yes, sir.
Mr. Cohen. Did you communicate with Mr. Addington sometimes
and not relay those communications through Mr. Ashcroft's
office and keep him outside the loop?
Mr. Yoo. Sir, I never did anything to keep Mr. Ashcroft out
of the loop.
Mr. Cohen. So Mr. Ashcroft had knowledge of everything that
you discussed with Mr. Addington, is that correct, sir?
Mr. Yoo. As I explained in my opening statement, in the
development of the August 2002 memo, we notified the Attorney
General's office that we had received a request for the memo.
They, the Attorney General's office, dictated who and whom
we could not discuss it with. We shared drafts of the memo with
the office of the Attorney General and the office of Attorney
General approved the memo.
There is no way that we----
Mr. Cohen. Did General Ashcroft ever express to you
concerns about your relationship to his office vis-a-vis the
communications you had had with Mr. Addington and keeping him
outside of the loop?
Mr. Yoo. I don't think that I--I don't think, according to
the Justice Department's guidelines, I am allowed to discuss
with you any particular conversation that I had with Mr.
Ashcroft----
Mr. Cohen. Did the conversation exist?
Mr. Nadler. The gentleman will suspend.
Again, Mr. Yoo, in order for you to assert a privilege as a
basis for answering a question, we need you to tell us what the
privilege is and the specific basis on which you are asserting
it.
Mr. Yoo. Sir, any information or conversations I had with
any individual in the executive branch is covered by the
instruction of the Justice Department by either attorney-client
privilege or deliberative process privilege, and that is the
decision of the Justice Department, sir.
Mr. Nadler. No, no, no, no. This particular question, which
privilege are you asserting?
Mr. Yoo. First of all, I just want to make clear it is the
Justice Department that is asserting it and it is the attorney-
client privilege, along with, as I said before, in response to
the previous questions.
Mr. Nadler. Well, wait a minute. How is the attorney-client
privilege implicated in a question about your communication
with your superior in the--you weren't his attorney.
The Justice Department may be--I mean, are you the attorney
in your position or were you the attorney in your position at
OLC of the attorney of the Attorney General?
Was he your client?
Mr. Yoo. Sir, it is the Justice Department that has already
decided, in giving me these instructions, that all these
communications are covered by either the attorney-client
privilege or the executive deliberation privilege.
Mr. Nadler. The instructions, we were given a copy of the
instructions. He is not authorized to discuss the specific
deliberative communications, including the substance of
comments on opinions or policy questions or the confidential
pre-decisional advice, recommendations or other positions taken
by individuals or entities of the executive branch.
The question, as I understand it, was did Attorney General
Ashcroft express concerns about your relationship with Mr.
Addington.
That does not seem to fall within these instructions. He
either did or did not express concerns. The question does not
ask about specific deliberative communications or the substance
of comments or opinions.
Mr. Yoo. Can I just consult with my attorney?
Mr. Nadler. Certainly.
Mr. Yoo. After consultation with our attorneys, I will
answer the question, which is my recollection is that, no, I
never had such a conversation with the Attorney General.
Mr. Cohen. Did you have any discussions with the Attorney
General at all where he expressed any concern that you were not
operating within your line of authorities?
Mr. Yoo. Mr. Cohen, I do not recall any conversation of
that nature.
Mr. Cohen. So if The Washington Post reported that General
Ashcroft was upset and if General Ashcroft said he was upset
about communications between you and Mr. Yoo, The Washington
Post and General Ashcroft would be mistaken or not have proper
recall. Is that correct?
Mr. Yoo. No, sir. Let me explain.
First of all, what General Ashcroft expressed to other
people or if he talked to The Washington Post at all is beyond
my knowledge.
Mr. Cohen. Right, beyond you. Let me ask you this.
Mr. Yoo. Your question was whether he expressed it to me.
Mr. Cohen. To you, and you don't recall that.
Mr. Yoo. And my answer is he----
Mr. Cohen. You don't recall it. I have been here for a
while.
You articulated a definition of illegal conduct in
interrogations, explaining that it must ``shock the
conscience.''
Do you remember that? Is that accurate?
Mr. Yoo. Sir, I believe you are referring to the memo that
was sent by the Justice Department to the Department of Defense
in 2003 that defined cruel, inhumane and degrading treatment.
Mr. Cohen. Yes. What is the answer, yes or no? Do you
remember that, ``shock the conscience?''
Mr. Yoo. I am just saying that the--I am just trying to
tell you where it arises, sir, which was in this memo, where
the Justice Department was interpreting the phrase ``cruel,
inhumane and degrading treatment,'' which was subject to a
reservation by the United States that said it is equivalent
to--and it cited the 5th and 8th and 14th amendments, which
those amendments use the phrase ``shock the conscience.''
Mr. Cohen. All right. But you also said that and you
explained that whether the conduct is conscience-shocking
depends, in part, on whether it is without any justification.
Is that right?
Mr. Yoo. I am sorry, sir. Can you repeat the question?
Mr. Cohen. Right. Did you also go further and say that
whether the conduct is conscience-shocking depends on whether
it is without any justification? Do you recall that?
Mr. Yoo. Well, sir, it is in the memo. The memo----
Mr. Cohen. So that is true, then, yes. The answer is yes.
Mr. Yoo. The memo says that.
Mr. Cohen. And it would have to be inspired by malice or
sadism before it could be prosecuted. Is that right?
Mr. Yoo. Sir, I think that language is taken out of context
in the sense that the memo, as I read it, does not say that you
must have those characteristics.
Mr. Cohen. Where did those words come from?
Mr. Yoo. They come from, sir--in the memo, they come from
the case law. They come from the decisions of the Federal
courts interpreting--when they interpret what does the due
process clause require and then they say--the courts have said
we interpret it to mean shocks the conscience standard.
There are Federal courts that have--I did not create those
words. They are----
Mr. Cohen. Are you saying that the law states it is not how
the person that is being tortured is receiving the treatment,
but the intent of the person who is torturing?
So if I want to take somebody's fingernails out, if I think
it is for the good of the country, that is not torture? If I
want to cut somebody's appendage off, it is okay as long as I
think it is important for the country?
Mr. Yoo. Sir, the memo does not say that. The memo quotes
Federal cases that cite this as one amongst many factors that
courts consider when they to determine what shocks the
conscience.
Mr. Cohen. Let me ask you this. Is there anything you think
that the President cannot order in the terms of interrogation
of these prisoners in a state of war?
Mr. Yoo. Sir, you are asking my opinion now, not what we
addressed in the opinion, because the opinion----
Mr. Cohen. Right. Now, what is your opinion now?
Mr. Yoo. The opinions in 2002 and 2003 do not address that
question.
Mr. Cohen. What is your opinion now?
Mr. Yoo. Because they were not at the----
Mr. Cohen. What is your opinion now?
Mr. Yoo. Sir, let me finish. I am just trying to finish my
answer, sir.
Mr. Cohen. No. You are trying to stretch out 5 minutes.
Mr. Yoo. No, I am not. I have no idea what time it is.
Mr. Cohen. You guys are great on ``Beat the Clock.''
Mr. Yoo. I don't play basketball, but I watch it.
Mr. Cohen. That was a game show. Maybe it was BYT.
Mr. Yoo. I guess it was before my time, sir.
Mr. Cohen. That is it, BYT.
Mr. Yoo. Sir, to answer the question. Those questions are
not addressed in those memos. They were not before us.
Today, I would say there are a number of things a
President--I don't think any American President would order, in
order to protect the national security, and I think one of
those things is the torture of detainees.
I do not believe, and I have said so many times, that the
President--I don't think the President should ever----
Mr. Nadler. Without objection, the gentleman is granted 1
additional minute.
Would the gentleman yield for a second?
Mr. Cohen. Yes, sir.
Mr. Nadler. Thank you.
Mr. Yoo, this is the second or third time today that you
have said that you don't believe an American President would
order certain heinous acts.
Would you answer the question not would he order it, but
could he order it under the law, in your opinion?
That is your question. The question is to you.
Mr. Cohen. I am not Edgar Bergen. That was a question.
Mr. Yoo. That is your question, whether----
Mr. Nadler. No. The question is not would an American
President order such terrible things, but could he legally do
so.
Mr. Yoo. I think it is not fair to ask that question
without any kind of facts, any kind of--I mean, you are asking
me to state some kind of----
Mr. Nadler. So in other words, there is nothing
conceivable----
Mr. Yoo. No, sir, I am not saying that.
Mr. Nadler. No, no. Let me finish the question, because you
don't know what I am going to ask.
There is nothing conceivable to which you could answer, no,
an American President could not order that without knowing
facts and context.
Mr. Yoo. Sir, I have told you I don't agree with that,
because you are trying to put words in my mouth about--
attempting to get me to answer some broad question covering all
circumstances, and I can't do that.
I don't agree with the way you are characterizing my
answer.
Mr. Nadler. I will yield back to the gentleman.
Mr. Cohen. Let me ask Mr. Addington. What branch of
government is the Vice President's office in?
Mr. King. Mr. Chairman, can we return to regular order?
Mr. Nadler. We just did.
Mr. Cohen. If I can pursue the question.
Mr. Nadler. The gentleman is granted another additional
minute.
Mr. Cohen. Mr. Addington, what branch of government----
Mr. King. Objection.
Mr. Cohen [continuing]. Is the Vice President in?
Mr. King. Objection, Mr. Chairman.
Mr. Nadler. Objection to 1 additional minute?
Mr. King. I am objecting to the extenuation of this
interrogation that is going on and some of this process. And
there wasn't a unanimous request for that additional minute.
Mr. Nadler. I will ask unanimous request for an additional
minute.
Mr. King. Now I don't object.
Mr. Nadler. Thank you.
The gentleman is granted an additional minute by unanimous
consent.
Mr. Cohen. Thank you, Mr. Chairman.
Mr. Addington, what branch are we in?
Mr. Addington. Sir, perhaps the best that can be said is
that the Vice President belongs neither to the executive nor to
the legislative branch, but is attached by the Constitution to
the latter. Closed quote. That is from two legal opinions
issued by the Office of Legal Counsel of the Department of
Justice dated March 9, 1961 and April, I believe it is 18, 1961
by, I believe, Mr. Katzenbach, if I remember.
Mr. Cohen. So he is a member of the legislative branch.
Mr. Addington. To Vice President Johnson, and I offer those
as Exhibits 13 and 14----
Mr. Cohen. Mr. Addington, is he a member then, you are
saying----
Mr. Nadler. Without objection, they will be entered into
the record.
Mr. Cohen [continuing]. So he is a member of the
legislative branch.
Mr. Addington. No. I said attached by the Constitution to
the latter. He is not a member of the legislative branch,
because the Constitution says that the Congress consists of a
Senate and a House of Representatives.
The Constitution further says that the Senate consists of
Senators and the House of Representatives consists of
Representatives, and he is neither a Senator nor a
Representative.
Mr. Cohen. But he is attached to the legislative branch.
Mr. Addington. That is the quote I read you.
Mr. Cohen. So he is kind of a barnacle.
Mr. Addington. He is attached by the Constitution to the
latter. I don't consider the Constitution a barnacle, Mr.
Cohen.
Mr. Cohen. No, the Vice President. Since he is really not
fish nor fowl, he is just attached to something.
Mr. Addington. It is not exclusive in the Constitution to
have that situation.
Mr. Nadler. The time of the gentleman has expired.
Mr. Cohen. Thank you, Mr. Chairman.
Mr. Nadler. You are quite welcome.
The gentleman from Massachusetts, Mr. Delahunt, who is a
Member of the Committee, but not the Subcommittee, has
requested an opportunity to question the witnesses.
As a matter of courtesy, without objection, I will grant
that.
Mr. King. Mr. Chairman?
Mr. Nadler. The gentleman from Iowa.
Mr. King. I thank the Chairman.
Mr. Chairman, at the request of the Ranking Member Smith, I
object to the participation of a non-Subcommittee Member.
House rules provide for participation in hearings only by
Members of the Committee or Subcommittee. House Rule 11 states
``Each committee shall apply the 5-minute rule during the
questioning of witnesses in a hearing until such time as each
member of the committee would so desire an opportunity to
question each witness.''
The Committee rules explicitly allow only the participation
of non-members of a Subcommittee in one instance, and that is
the Chairman and Ranking Member to participate as ex officio
Members of any Subcommittee.
Subcommittee membership should mean something. It allows
Members the privilege of participation.
Setting a precedent that allows a non-Member of a
Subcommittee to participate could lead to a situation where 10
other Members might also want to participate.
That would not serve the Committee well, Mr. Chairman.
This objection has nothing to do with the Member in
question, as you well know, or the subject matter at hand;
rather, participation in a hearing that should be a privilege
of the Members of the Subcommittee.
And so I, therefore, object to his participation.
Mr. Nadler. The gentleman's objection is, unfortunately,
grounded in the rules and the gentleman's objection is correct.
I would observe that the precedent of allowing Members of
the full Committee who are not Members of the Subcommittee to
participate in Subcommittee hearings by asking questions of
witnesses has been set many times over, and I regret--without
causing chaos--and I regret that the gentleman insists on the
point of order.
But if he does insist, it must be enforced.
I apologize to the gentleman from Massachusetts.
The Chair recognizes himself for 5 minutes to question the
witnesses.
Mr. Addington, you stated to Ms. Wasserman Schultz earlier
in this hearing that your involvement in the CIA interrogation
program was greater than your involvement in the military
program.
What was your involvement in the CIA interrogation program?
Mr. Addington. We had a number of meetings, as you might
imagine. An example was the one I described earlier with the
Justice Department to obtain legal advice on the program.
A number of the lawyers and the relevant parts of the
executive branch would be involved in working on the legal
advice on such a matter.
Mr. Nadler. Firstly, you just said you are part of the
executive branch or the Vice President's office, but leave that
aside.
Mr. Addington. There is a number of us lawyers. All I am,
sir, is an employee of the Vice President.
Mr. Nadler. Why was a lawyer from the Vice President's
office involved in CIA business?
Mr. Addington. As you know, in modern times, the Vice
Presidents often provide advice and assistance to Presidents.
In fact, that is what they spend a majority of their time
doing.
Vice Presidents are not in charge of anything. They simply
gather information. They provide advice. They have whatever
functions Presidents give them, but it is basically advice and
assistance.
Mr. Nadler. And they participate in various agencies'
business?
Mr. Addington. No. Congress has recognized that function.
If you look at Section 106 of Title 3, that modern Presidents
provide advice and assistance, and they provide staffs.
Part of the Vice President's staff is paid for under the
appropriation that goes with the statute I just cited. Part of
the Vice President's staff is paid out of the legislative
branch appropriation.
And when the President's staff wishes to have us
participate and provide advice, then we----
Mr. Nadler. So the President asked you, in effect, or
someone on behalf of the President authorized that.
Mr. Addington. We were included because it is the practice
in this Administration, stronger at some times than others, but
generally, that the President's staff and the Vice President's
staff----
Mr. Nadler. In other words, pursuant to the President----
Mr. Addington [continuing]. Work together.
Mr. Nadler. Okay. Pursuant to the President's
authorization.
Did you have any involvement in the CIA's decision to
destroy any interrogation videotapes?
Mr. Addington. To destroy? No, sir.
Mr. Nadler. If the CIA program is found to be unlawful,
would you bear any responsibility for that?
Mr. Addington. If the CIA program is found to be unlawful?
Mr. Nadler. Yes.
Mr. Addington. Would I bear responsibility for that?
Mr. Nadler. Any responsibility.
Mr. Addington. Is that a moral question or a legal
question? Let me distinguish----
Mr. Nadler. Interpret it as you will, either way.
Mr. Addington. I believe, and I am somewhat sympathetic to
the approach Professor Schroeder took, that the legal opinions
issued by the Department of Justice, to the extent they are
relied upon by those who are implementing the----
Mr. Nadler. No. We are not talking about legal opinions.
Excuse me. We are not talking about legal opinions of the
Department of Justice.
Given your involvement in discussions with the CIA, did
these discussions implicate what they did and if what they did
was unlawful, would your discussions have any bearing on that?
That is my real question.
Mr. Addington. No. I wouldn't be responsible is the answer
to your question.
Mr. Nadler. Thank you.
Mr. Yoo?
Mr. Addington. Legally or morally.
Mr. Nadler. Mr. Yoo, The Washington Post has reported that
Attorney General Ashcroft and his deputy, Larry Thompson, were
not aware of the March 2003 memorandum when you wrote it and
transmitted it to the Pentagon.
Is that accurate that the Attorney General and his deputy
AG were not aware of that memo?
Mr. Yoo. Mr. Nadler--I am sorry. Mr. Chairman, we received
a request from the Defense Department. We notified the office
of the Attorney General immediately that we had received the
request.
Mr. Nadler. You notified them of the request. Did you
notify them and send them a copy of the memo?
Mr. Yoo. Sir, we also notified the deputy Attorney
General's office and----
Mr. Nadler. Did you notify them and send them a copy of the
memo when you sent it to----
Mr. Yoo. We sent them drafts of the memo, both offices.
Mr. Nadler. And the final one?
Mr. Yoo. Yes, sir. We also sent versions of the final ones
to both the deputy Attorney General's office and the office of
the Attorney General.
Mr. Nadler. Thank you. What?
What do you mean versions? You sent them a copy of the
final memo?
Mr. Yoo. Yes, sir.
Mr. Nadler. Okay. Thank you.
Your prepared testimony says that the offices of the
Attorney General and the deputy AG and the criminal division
received drafts of the opinion. You just said that.
Who in those offices received those drafts?
Mr. Yoo. In response to your question, sir, as you know,
the Justice Department has instructed me not to discuss the
particular individuals----
Mr. Nadler. Not to name those who received the draft? I
don't think that was in the instructions, number one, and I
don't think they have the power to issue such an instruction.
Mr. Yoo. Excuse me 1 second, sir.
Mr. Chairman, I think that my recollection at the time was
that in delivering the drafts of the memo to the office of the
Attorney General, that we delivered it to the counselor to the
Attorney General.
Mr. Nadler. And who is the counselor?
Mr. Yoo. His name was Adam Ciongoli.
Mr. Nadler. Thank you.
Mr. Yoo. And my recollection as to the deputy Attorney
General's office--and let me--also, I can't say definitively
everybody who got a copy either.
I am just saying because these were sensitive matters, we
had to transmit them. I believe we may have given it to the
principal associate deputy Attorney General at the time, who
name was Chris Wray.
Mr. Nadler. Chris Wray. Thank you.
Now, without divulging the contents of any discussions, did
those offices make comments or revisions to the opinions?
Mr. Yoo. Without divulging the----
Mr. Nadler. Without divulging the content, did they make
any----
Mr. Yoo. Yes, they did. I can say that there were--is your
questions comments or----
Mr. Nadler. Comments or revisions.
Mr. Yoo. I can say that we received----
Mr. Nadler. Well, how about separating that? Comments? Yes.
Revisions?
Mr. Yoo. I would say we received comments. I don't recall
revisions one way or the other, sir.
Mr. Nadler. Okay. And can you say who made those comments?
Mr. Yoo. Any comments we would have received would have
come from the people I just mentioned, the counselor to the
Attorney General or the principal associate deputy Attorney
General.
Mr. Nadler. Thank you. Without objection, I will grant the
Chairman 1 additional minute.
Did you ever understand that the Attorney General or the
deputy AG had personally approved this opinion, that is, the
March 2003 memorandum?
Mr. Yoo. Let me say, sir, we could not have issued such an
opinion without the approval of the office of the Attorney
General or the office of the deputy Attorney General. I can't
recall whether----
Mr. Nadler. But you don't whether they personally approved
it.
Mr. Yoo. Well, I can't recall whether they sent a memo or
something signing it, signing off on it.
Mr. Nadler. When you say the office--you couldn't have
issued it without the approval of the office of the AG or
deputy AG, what do you mean by that other than by them
personally?
Mr. Yoo. Sir, you are asking--I mean, I wouldn't know, sir,
just personally, whether the Attorney General himself
personally approved it, but we would receive--the way the
Justice Department works, we received communications from the
office of the Attorney General.
Mr. Nadler. Okay. And finally, why was the memo or the
opinion, rather, signed by you instead of by the head of the
OLC at the time?
Mr. Yoo. The 2003, March 2003 memo.
Mr. Nadler. Yes.
Mr. Yoo. I don't have the dates in front of me, right in
front of me, but my recollection is that Jay Bibey, who was the
head of the office, was just about to go onto the bench.
As you know, he is now currently a judge of the U.S. court
of appeals for the ninth circuit. And so I believe that the
timing of the memo and when he was going to go on the bench
were very close to each other and couldn't be certain whether
he would still----
Mr. Nadler. Have been there or not.
Mr. Yoo [continuing]. Been in office at the time the
opinion issued.
Mr. Nadler. Professor Schroeder, could you comment briefly
on that answer--on that question, rather?
Mr. Schroeder. Well, I only know what has been reported
back, which is that Jay Bibey went onto the bench about 10 days
after the memo was signed on March 14. So at the time, so far
as I think the public record discloses, he was still assistant
Attorney General in the Office of Legal Counsel.
Mr. Nadler. And after he went on the bench, who was the
assistant Attorney General? Who took that position immediately
thereafter? Anybody?
Mr. Yoo. There was an acting assistant. There was no
nominee or there was----
Mr. Nadler. But there was someone acting in that.
Mr. Yoo. There was an acting assistant Attorney General.
Mr. Nadler. And if it was too late for Mr. Bibey to sign
it, why didn't that gentleman or lady sign it?
Mr. Yoo. As you know, Mr. Chairman, classified matters can
only be discussed with people who are cleared to know about
them. When the Justice Department----
Mr. Nadler. So just to cut to the chase, that person may
not have been cleared at that point.
Mr. Yoo. I am trying to remember, sir, but I do not
believe, at that time--my recollection is I don't believe they
were cleared at that time.
Mr. Nadler. Okay. Thank you. My time has expired.
I will recognize, for 5 minutes, the distinguished Chairman
of the full Committee, Mr. Conyers.
Just for information, since we normally rotate by parties,
Mr. King has asked to pass for a number of witnesses, and we
are granting him that privilege.
Mr. Conyers. Thank you, Steve King.
Professor Schroeder, as the former acting director of the
Office of Legal Counsel in the department, can you elaborate on
any irregularities or improprieties that you may see in how the
OLC memos we are discussing today were put together?
Mr. Schroeder. Yes, Mr. Chairman.
It is unusual, in my experience, for memoranda as
significant as the March 2003 memo and, say, the September 25,
2001 memo on the commander in chief authority to be signed by a
deputy.
If the assistant position was vacant, I can understand how
that might happen. But otherwise, in my experience, those would
be the kind of detailed memoranda that would be--and
significant memoranda that would be issued by the assistant
Attorney General.
It is also the practice, as Professor Yoo has said in his
testimony, to solicit the advice of other components of the
Justice Department and where there are any disagreements about
the content of the memos, to note that fact in the memos
themselves.
In this case, there was either unanimity throughout the
Justice Department on the controversial legal interpretations
that were being given or that some disagreements were not noted
for the record.
Finally, with respect to the memoranda that deal with
interrogation techniques and torture specifically, there is
some expertise in the executive branch on what torture means,
because both the State Department and the INS have
responsibilities for applying the idea of torture in the
context of requests for aliens to seek relief from removal
decisions in immigration matters or the State Department
receiving asylum requests from aliens.
And in both of those contexts, the two departments have
developed their own administrative understanding of what
constitutes torture or not.
I would have expected that those internal executive branch
reservoirs of knowledge on what torture means would have been
accessed by OLC.
Now, I understand from Professor Yoo's prepared testimony
that the CIA specifically prohibited the State Department from
participating or didn't allow them to be contacted.
That strikes me as very unusual, because it is cutting out
a source of knowledge within the Administration that I think
could have been quite helpful in articulating the working
standard of what constitutes torture or not under the statute
and under the treaty.
Mr. Conyers. Our witness, Professor Yoo, has claimed that
there was a lack of guidance on the meaning of torture, which
was why he used a health care-related statute in drafting the
2002 opinion.
Do you have any comment on that circumstance?
Mr. Schroeder. Well, I think, to amplify on what I just
said, I think there are sources of understanding, working
knowledge as to what constitutes torture or not, that would
have provided more guidance, not necessarily in statutory law,
but in the working experience of expert agencies who have
handled the matters.
Some of them, like the immigration process, result in
decisions by the board of immigration appeals that could have
been accessed to give you some reference points at least for
purposes of discussion.
Now, maybe they are not going to be conclusive, because
torture--I think if you try to define the precise boundary
where just an inch to one side it is torture and just an inch
to the other side it is not torture, you are going to have a
very difficult time.
Mr. Conyers. Of course.
And the last comment with reference to Professor Yoo's
testimony. It seems he has claimed that even though the August
2002 memo was revoked, that there is a footnote in the
revocation memo stating that the conclusions in the memo remain
in force.
Am I missing something there?
Mr. Schroeder. Well, Mr. Chairman, that is not my
understanding. Dan Levin, who authored the December 31, 2004
memo, has testified before this Committee that that is an
erroneous interpretation of that footnote and that, in fact, he
had not completed a review of any of the specific interrogation
techniques at the time the December 2004 memo issued, and that
footnote is not be interpreted as endorsing the outcomes of the
2002 evaluation process.
Mr. Conyers. Thank you very much.
Mr. Nadler. I thank the gentleman.
The gentleman from Minnesota is recognized for 5 minutes.
Mr. Ellison. Professor Schroeder, when a person who was at
the OLC or in a policy--well, a lawyer at the OLC drafts a
memorandum advising agencies on any legal matter, I don't want
us to drill down just on torture right now, but when they offer
advice, legal advice in the form of memoranda, do they--in your
experience, is there an ongoing role after the memoranda is
written in helping to advise how to implement that advice that
is offered?
Mr. Schroeder. Well, it will vary from topic to topic, but
it would not be unusual for Office of Legal Counsel attorneys,
after issuing a written opinion, to be asked follow-on
questions or variations on the first question that had been
asked or questions about what certain language in the opinion
ought--how that ought to be applied in light of circumstances
that the agency or the executive office of the President is
considering.
And some back-and-forth is not at all unusual, I think.
Mr. Ellison. And in your experience, would it be at all
unusual if somebody who was actually trying to carry out and
implement an activity which they received guidance on from a
legal memoranda would say, ``Well, the memo doesn't speak
specifically to this instance. Does it apply or how would it
apply in a given situation?''
Mr. Schroeder. No, that wouldn't be unusual at all.
Mr. Ellison. So I guess my question is--one of the things I
would like--that I think that we should know more about is to
what degree did people who were doing interrogation, in the
light of the memo, the August 2002 memo, get advice on how to
implement and how to interpret that memo.
Now, I know you weren't part of that, but do you have any
views on this subject? Is there anything you could tell us
about it?
Mr. Schroeder. Well, typically, those sorts of additional
questions would come, I think, first, if you are talking about
an administrative agency or a branch of the services, would
tend to go through their lawyer chain of command and it
wouldn't be necessarily, and I think it would probably be
unusual for somebody in the field to call an Office of Legal
Counsel lawyer directly.
What they typically do, and because most--many of the
requests that the Office of Legal Counsel receives for legal
advice come, in the first instance, from a general counsel or a
chief counsel.
So the communication is lawyer to lawyer. So there would be
a communication. If someone in the other department or branch
was confused, the tendency would be for them to inquire of
their general counsel's office and then for a communication to
come over to the Office of Legal Counsel from there.
Mr. Ellison. Now, Mr. Addington, you have been to
Guantanamo Bay, obviously. Were you there during an
interrogation of suspects?
Mr. Addington. As I mentioned this morning to Ms. Wasserman
Schultz, I have a recollection, perhaps not on the September
2000 trip she was referring to, but perhaps, at least on one of
the trips, I can recall seeing people in a room, I guess you
would call it, and we could see through an observation window
or up on a video screen, or maybe both.
I do remember that.
Mr. Ellison. Now, did the interrogators ever ask you any
questions about how the interrogation could be legally
conducted as it was going on?
Mr. Addington. I don't recall them doing that, no, sir, and
I don't believe they did. It wouldn't be appropriate for me to
be talking to an interrogator about what he would be doing
outside of his chain of command, or her.
Mr. Ellison. What about indirect? What about indirect? For
example, if an interrogator went out, they might talk to
someone in their agency, do you have occasion for somebody in
the agency to confer with them about how the interrogation
might be continued on?
Mr. Addington. I spoke with the general counsel's office of
the Central Intelligence Agency, as did a number of other
folks, as I described, when the executive branch would have a
meeting that they would invite me to and we would talk about
it, both at the CIA and at DOD, although less so at DOD, the
Department of Defense.
Mr. Ellison. So at DOD, you are speaking with regard to Mr.
Haynes, is that right?
Mr. Addington. The general counsel.
Mr. Ellison. And who is the individual you have in mind at
the Central Intelligence Agency?
Mr. Addington. Well, early on, it was their general counsel
and he left and went back to New York to practice law and there
was----
Mr. Ellison. What is his name?
Mr. Addington [continuing]. An acting general counsel. The
general counsel is a fellow named Scott Muller, M-U-L-L-E-R.
And then he left, as I say, and there was as acting general
counsel, who I believe is still the acting general counsel.
Mr. Ellison. Did you witness the interrogation process
going forward while you were in Gitmo?
Mr. Addington. I don't know what else to say other than
what I have already said, that I remember seeing, through the
observation window, an orange suit in there and someone
talking.
Mr. Ellison. Could you hear it?
Mr. Addington. I don't recall you could hear it. You could
just see it.
Mr. Ellison. Were you part of a group of folks who made
legal decisions on a regular and routine basis that would
include Alberto Gonzales, William Haynes, Jim Haynes, and
yourself?
Were you part of that?
Mr. Addington. I talked regularly in lots of different
meetings with the counsel of the President and his deputy, with
the department of defense general counsel, less frequently with
the CIA general counsel or acting general counsel, but yes.
Mr. Ellison. So did you and Messrs. Gonzales and Haynes
have sort of an ongoing responsibility or authority to guide
and make decisions about legal matters for the Administration
with regard to torture of detainees, the conduct of the war on
terror?
Mr. Addington. No. I think it is more monitoring what is
going on, discussing it and if you need legal advice on the
subject, you would ask a question to the Office of Legal
Counsel, which typically would be done either by the counsel to
the President, if it is the White House that wants the advice,
which the law, by the way, that you all passed provides for.
It is 28 UCS something like 511, 512, in that range. And
also heads of agencies have the authority to go to OLC and get
that legal advice. So they usually do that through their
general counsels, either DOD or CIA.
Mr. Ellison. Do you deny being a member of a war council
that includes Alberto Gonzales, Mr. Haynes and yourself?
Mr. Addington. No, that--it is interesting. I never heard
that label until Jack Goldsmith wrote his book, ``The Terror
Presidency,'' which has been quoted earlier in this hearing.
We had meetings all the time. That is the same group of
folks I was talking about earlier.
I asked Jim about it once and he said, ``Oh, yeah, we call
it the war council over here.'' I am not actually a fan of cute
little names for meetings. It is a common executive branch
habit and I think that is where it came from.
Mr. Ellison. So do you deny it or do you admit it?
Mr. Addington. No. I think I just said--I just answered
that question.
Mr. Ellison. I don't think you did.
Mr. Addington. Well, as I said, I met regularly with Mr.
Haynes, sometimes the CIA general counsel, the counsel of the
President and deputy counsel of the President, and me on a
range of issues, some of which dealt with interrogation of
enemy combatants in the war on terror.
At the Department of Defense, apparently, when some of
those meetings were held, they were list on their schedules
``war council,'' as if that is some great name for this group.
To me, it was just the lawyers getting together to talk.
Mr. Nadler. [OFF MIKE]
Mr. Ellison. That fast?
Mr. Nadler. The time of the gentleman has expired.
The gentleman from Iowa is recognized for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
Just to bring this back to a bit of a focus here, this
hearing is about focusing on the role of Administration lawyers
in developing, approving and implementing aggressive
interrogation techniques.
I will concede that much of this has focused on how that is
developed and focused and refocused and reworded and reposed
the questions, and so I am wondering what a person that is
watching on C-SPAN thinks of all of this that they have seen
and heard.
And I realize that is a rhetorical question to the
witnesses, but I do want to ask a more specific question,
first, to Mr. Addington and then perhaps to Professor Yoo.
And that is, do you believe that it is possible to
precisely define torture in law?
Mr. Addington. Just off the top of my head, you are getting
me here in front of the cameras and the microphones----
Mr. King. I am not trying to.
Mr. Addington. And as I said earlier, lawyers have to be
very precise and careful, as you all clearly do when you
actually draft and pass legislation.
About the only way I could think of it doing is something
like you did with the Military Commissions Act of 2006, which
is you laid out you can't do this, you can't do this, you can't
do this, you can't do this.
And then you got to the end and there was a catch-all in
there for dealing with certain categories of other things that
aren't listed here.
The difficulty in drafting such a thing, of course, is you
have to think of everything. You have to think of every
circumstance.
So I think you all would have a challenge trying to come up
with a statute that could contemplate everything and put those
who do these sorts of things in our intelligence agencies on
the fair notice they are constitutionally entitled to that
their conduct would be illegal.
Mr. King. I appreciate that.
Mr. Yoo?
Mr. Yoo. Again, speaking now, I think that it is a
difficult problem. I think the way that the statute was first
written was--it did use language that was vague or ambiguous
and was not defined by Congress.
And I think over time, Congress has become more specific
referring to, for example, Army manuals and so on is a much
better way to do it.
It is much clearer. I will say that even in attempting to
interpret that language in the opinion, we attached, as an
appendix, every judicial decision we could find in the Federal
system that did define torture and exactly what acts, some of
them involving some of the issues that Professor Schroeder
mentioned involving INS and so on.
So we tried to provide a complete appendix in that fashion.
But Congress didn't do that. It only did that later in the
Military Commissions Act.
Mr. King. And just to restate my question, is it possible
to precisely define torture in law? And to add some
completeness to the question, but with regard to the Army
manual, do you believe there is room between the manual and the
law to expand beyond the level that is part of the manual?
Mr. Yoo. Well, I think that----
Mr. King. To take torture to a level--is there a level
between the Army manual and that is limited by the law?
Mr. Yoo. Sir, let me say that I haven't written any
opinions about this issue. This all happened after I left
government.
My understanding is that the statute directly incorporates
the manual. So it seems to me the law and the manual--there is
no space.
There is a difference in which agency it applies to. My
understanding of the McCain amendment is that it applies the
manual to the military, but not to the CIA.
Mr. King. Mr. Addington, on that same----
Mr. Addington. Repeat the question, please.
Mr. King. Is there room, do you believe, between United
States Army Field Manual on Intelligence Interrogation and
between the controlling statutes against torture?
Mr. Addington. In other words, are there things that are
not permitted by the Army manual that are, nevertheless, short
of torture?
Mr. King. Yes.
Mr. Addington. I believe the legal opinions of the Office
of Legal Counsel or Department of Justice indicate yes and
that, if you will recall, the Military Commissions Act of 2006
and the executive order that the President issued under that, I
believe, sometime early, I think, but sometime in 2007, in
fact, were all about that, what could the Central Intelligence
Agency do that was beyond was in the Army field manual.
Mr. King. And I would agree with that answer. And so as we
sit here and the military interrogators and their legal
advisers are watching these hearings today, can you enlighten
us a little bit about what you might think they can draw from
this?
Does it further define the law? Do they know what is the
law? Will that intimidate them, do you believe, from gathering
information in a legal fashion to help our intelligence to
protect the American people?
What can you tell us that came out of this hearing at this
point that is constructive that secures the American people?
Mr. Addington. As I mentioned at the beginning, there were
three filters, I said, were in my mind, as I looked at all
these issues over the years, and the third filter--the third
filter is the crucial one of making sure that after all the
policy level and senior lawyer level review of this is done and
somebody gets an order to do something, that person who gets
that order, especially on a subject matter like this, needs to
know.
I have got an order here, it has been reviewed carefully by
the senior lawyers of this government that I am entitled to
rely on legally to know that my activity is lawful.
That is what going to the Office of Legal Counsel was all
about in getting those legal opinions and as you know, this
August 1, 2002 opinion is not the only legal opinion issued by
the Office of Legal Counsel.
I can think of five off the top of my head on this subject.
Those people out in the field, particularly the folks at the
CIA, would not have engaged in their conduct and the head of
the CIA would not have ordered them to engage in that conduct
without knowing that the Attorney General of the United States
or his authorized designee, which is what OLC is, had said this
is lawful and they relied on that.
And they need to be able to rely on that. We can't leave
the folks in the field hanging out there because we are going
to have battles, whether you characterize them as political or
otherwise, here in Washington.
Mr. King. Thank you.
Thank you, Mr. Chairman. Yield back.
Mr. Nadler. The time of the gentleman has expired.
I now recognize the gentleman from Alabama for 5 minutes.
Mr. Davis. Mr. Chairman, thank you for forgiving me not
being in place when my turn came up earlier.
I want to go back, Mr. Addington and Mr. Yoo, to the line
of questions I pursued earlier, because the clock cut us off
before I had a chance to make some points I wanted to make.
A lot of what we are talking about today, Professor Yoo, is
the interpretation of the statute. You have conceded that there
was a relevant on point anti-torture statute in place in early
2001-2002. It was passed by Congress.
You have correctly pointed out it is not at all unusual.
There wasn't a massive amount of legislative history.
I questioned you earlier about why it would not have been
helpful or important for the Administration to reach out to the
body that drafted the statute to get its own interpretation of
what the words meant.
Mr. Addington, I think you were telling me, at one point,
or you were conceding that Mr. Specter, the Republican Chairman
of judiciary, wasn't consulted, Mr. Sensenbrenner wasn't
consulted.
Tell me, sir, why it would not have been helpful for the
Bush administration to have reached out to the congressional
leadership, even of its own party, to ask what the statute
meant.
Mr. Addington. Sir, you asked that question earlier today
and I would give you the same answer.
Actually, as a legal matter, I think you are wrong and that
doing so would be irrelevant.
As a political matter----
Mr. Davis. I didn't ask you as a matter of policy.
Mr. Addington [continuing]. That is different. As a matter
of policy, that can be different.
As a practical matter, back when all this first came up, I
am not sure the exact timeframe, let's say the year 2002, these
were highly classified. This was a highly classified program
conducted by the----
Mr. Davis. No, sir. Very simple question.
Mr. Addington. I am explaining to you why some members----
Mr. Davis. Let me reframe my question then and perhaps make
it a little bit easier, sir.
All I am asking--I am picking up on the analysis Mr. Yoo
makes in his opening statement.
He talks about a particular interpretation of the anti-
torture statute.
And, Professor, you said that he believed that the anti-
torture statute was a subjective test that depended on the
physical and mental condition of the individual being
interrogated.
That is an interpretation of Congress' intent.
I happen to think, sir, from a policy standpoint, as well
as from a legal standpoint, there were two options for the
people you work for. They could have come to Congress and they
could have asked for the statute to be clarified.
They could have asked for new powers. You all did that with
respect to the Patriot Act.
I suppose, theoretically, the Bush administration could
have said we don't need a Patriot Act, we are just going to
assume that we have some plenary executive power, but you
didn't do that.
You came to Congress and you asked for new intelligence-
gathering, new information-gathering capabilities and the
Congress gave it to you in overwhelming bipartisan fashion.
Authorization of force. You could have said there is some
plenary executive power to protect the United States using all
means necessary. You came to Congress.
All of those things involve potentially confidential,
classified matters.
Was there even anyone in the executive branch who
advocated, Mr. Addington, coming to Congress and asking for a
new torture statute?
Mr. Addington. Of course, I can't answer for everyone in
the executive branch. I don't know what they thought about.
Mr. Davis. Did you advocate it?
Mr. Addington. As for me----
Mr. Davis. That is a simple yes or no. Did you advocate it?
Mr. Addington. I don't recall advocating that to anyone and
I wouldn't today.
Mr. Davis. Just a simple yes or no.
Do you know of anyone, Professor Yoo, I include you in
this, do either of you know of anyone in the executive branch
or the Department of Justice who advocated coming to Congress
and asking for a new statute?
That is a simple yes or no.
Mr. Addington. On the subject of interrogations?
Mr. Davis. Torture, the definition of it.
Mr. Addington. No. I don't recall it.
Mr. Davis. Professor Yoo, do you know of anyone who even
advocated coming to Congress and asking for a new statute?
Mr. Yoo. I don't remember anyone doing that.
Mr. Davis. Do you know of anyone who advocated going to the
House and Senate Intelligence Committees and asking for their
judgment as to what the torture statutes meant?
Mr. Yoo. No, and I wouldn't recommend that. I would
recommend going where the law requires, which is OLC.
Mr. Davis. And this is the problem, gentlemen.
If your Administration had come to what was a Republican
Congress and gotten its imprimatur for your definition of
torture, you would have shared responsibility.
If you haven't figured it out by now, one of the critiques
that a number of Members on both sides of the aisle have of the
way you all have done business is, frankly, you haven't shared
the responsibility of making the decisions.
Sometimes you have had to, when the Supreme Court has told
you you had to with respect to tribunals and FISA. But,
frankly, on your own, you have never done it.
And I would submit that that is the core thing that this
Committee ought to be focused on, a policy that was derived by
the executive branch.
You didn't even feel the need to even consult or to share
your thoughts or your analysis of congressional intent with
Congress. It has left you now with a policy that has only your
fingerprints on it.
It has left you with a policy with which the legislative
branch was completely cut out. That is a very negative legacy
for your Administration.
Mr. Addington. You are leaving one bad implication on the
record that I want to clear up that is not accurate, which it
sounds like you are implying that the House and Senate
Intelligence Committees didn't know anything about the CIA
program.
Mr. Davis. No, no, no. I am talking about your
interpretation of the definition of torture. You are not
suggesting the House and Senate Intelligence Committees knew
about the interpretation of torture that Mr. Yoo advanced in
his opening statement, are you?
Mr. Addington. At some point they did, I don't know when.
Mr. Davis. Would you tell us that point?
Mr. Addington. I said I don't know when. I am fairly
confident that these were discussed and they have held a lot of
hearings on it. But I don't know when it first occurred.
Mr. Nadler. The time of the gentleman has expired.
I now recognize, for 5 minutes, the gentleman from North
Carolina.
Mr. Watt. Thank you, Mr. Chairman.
Before I start, I wanted to do this while Mr. King was
here, the basis of his objection to allowing Mr. Delahunt to
ask questions was that it would prolong the hearing.
I wanted to ask a different unanimous consent request that
he be allowed to take my time in the rotation so that he--and I
didn't want to do it----
Mr. Nadler. Do you want to do that now?
Mr. Watt. I would like to do that.
Mr. Nadler. Without objection.
Mr. Watt. Well, I just wanted to make it clear that I
wasn't doing it because he was out of the room. I actually sent
a message to him that I was planning to do that.
Mr. Nadler. Okay. Well, he apparently didn't care enough to
stay. Without objection.
Mr. Delahunt. Well, Mr. Chairman, I don't want to proceed
unless staff has been able to communicate.
Well, I won't take all the 5 minutes. I will try to be very
brief. In fact, I----
Mr. Watt. Whatever you don't use I will use myself.
Mr. Delahunt. Well, thank you. And this has been a very
informative hearing.
And I am going to request both witnesses or I will extend
an invitation to both witnesses to appear before the
Subcommittee that I Chair, because this obviously has foreign
policy implications, which is the Foreign Affairs Subcommittee
on Oversight, and I would hope they would accept that
invitation for a more expansive conversation and dialogue about
this very important issues.
It is true that the United States is a signatory to the
convention against torture. Is that accurate, Professor?
Mr. Schroeder. Yes.
Mr. Delahunt. Either one.
Mr. Yoo. Yes, it is.
Mr. Delahunt. And the domestic legislation we are talking
about was to implement the convention against torture.
Mr. Schroeder. That is correct.
Mr. Delahunt. And the whole issue of what constitutes
torture, what techniques are implicated in that definition,
would you all agree that there are some techniques that are,
per se, considered torture, such as electric shocks?
Professor Yoo?
Mr. Yoo. I am sorry. It is Yoo.
Mr. Delahunt. Yoo. I apologize.
Mr. Yoo. In the memo, we have a list--an appendix.
Mr. Delahunt. I haven't had an opportunity to review the
memo. But would you consider the use of electric shock----
Mr. Yoo. Yes. It is one of the things that are listed in
the back of the memo as things that courts have found to
violate the--not this statute, but the other statute, because
there was a second statute, the Torture Victim Protection Act,
which is a little different than the criminal statute, but we
thought close enough.
Mr. Delahunt. What about waterboarding?
Mr. Yoo. I would have to know exactly what you mean by
waterboarding, but there is a description in the appendix of--
in the appendix to the 2002 memo that talks about trying to
drown somebody.
But when people say waterboarding, they seem to have lots
of different--they are referring to lots of different things.
So I think it is important to be precise if we are talking
about what the courts approve. I am sorry. Not that courts
approve--courts have interpreted the language to mean or not.
Mr. Delahunt. Well, it has been reported that on three
different occasions, the Central Intelligence Agency utilized
waterboarding and at least that was the term that was used in
the reports in the media.
Is that your understanding, Professor? Professor Yoo? Are
you aware of that?
Mr. Yoo. Well, sir, I have read the same press accounts
that you have, I am sure, and I have seen it in the press
accounts and I have also seen it in, I believe, a statement
made by the President or, I am sorry, by the head of the CIA.
Mr. Delahunt. By the head of the CIA. And that was my
understanding, as well, that it was acknowledged by the head of
the CIA.
And I think you, Mr. Addington, indicated that you had
multiple conversations regarding enhanced interrogation
techniques at the CIA.
Mr. Addington. With the Office of Legal Counsel, office of
general counsel at CIA.
Mr. Delahunt. Did the issue of waterboarding arise during
the course of those conversations?
Mr. Addington. I think you will find that over the years,
as lawyers in the group talk, at various times, there would be
discussion of particular techniques.
As I indicated to the Chairman at the beginning of this,
when the subject came up----
Mr. Delahunt. Was waterboarding one of them?
Mr. Addington. That is what I am answering, because I know
where you are headed. As I indicated to the Chairman at the
beginning of this thing, I am not in a position to talk about
particular techniques, whether they are or aren't used or could
or couldn't be used or their legal status.
And the reasons I would give for that, if you will look at,
I think, Exhibit 9, the President's speech of September 6,
2006, explains why he doesn't talk about what particular
techniques----
Mr. Delahunt. Oh, I can understand why he doesn't talk
about it.
Mr. Addington. But you have got to communicate with al-
Qaeda. I can't talk to you. Al Qaeda may watch C-SPAN.
Mr. Delahunt. Right. Well, I am sure they are watching and
I am glad they finally have a chance to see you, Mr. Addington.
Mr. Addington. I am sure you are pleased.
Mr. Delahunt. Given your pension for being unobtrusive.
In any event, there would appear to be a question then as
to whether the use on those three occasions that have been
acknowledged by the CIA and reported on the media as to the
technique that was used, as to whether it was a violation, a
per se violation of the convention against torture or not.
Would you agree with me, Professor Yoo?
Mr. Yoo. Your question is you are saying there is an open
question whether waterboarding in the way used by the CIA
violated the convention against torture.
Mr. Delahunt. That is what I am saying. It is an open
question.
Mr. Yoo. I understand. I just want to make sure.
Mr. Delahunt. Sure.
Mr. Yoo. I think one of the problems is that the convention
against torture is interpreted different ways by different
countries. And so if your question is does waterboarding--is
the way it has been described by the director of the CIA, Mr.
Hayden, violate the treaty, it may violate the treaty as
understood by some countries.
Our understanding of the treaty is defined by the criminal
statute and the Torture Victims Protection Act.
Mr. Nadler. Without objection, Mr. Watt has 1 additional
minute, which he has yielded to Mr. Delahunt.
Mr. Delahunt. I would pose this. The techniques, whatever
was utilized on those occasions, and I think we can agree it is
an open question, if they were used on American military
personnel, it would still be an open question as to whether
they violated the convention against torture then.
Mr. Yoo. I assume you are still asking me.
Mr. Delahunt. I am asking you.
Mr. Yoo. Mr. Delahunt, my understanding of the testimony
that the head of OLC gave before the Committee was that it was
his view that if we were using it as part of the training on
our own servicemen and officials who might be captured, that I
thought it was his view and his testimony that that would not
be a violation of the statute.
Mr. Delahunt. So if it was used by an enemy, because we
considered that it did not constitute torture, then the enemy
that utilized that on American military personnel would not be
in violation of the convention against torture.
Is that a fair statement?
Mr. Nadler. The time of the gentleman has expired.
The witness will answer this question, please.
Mr. Yoo. Sir, I don't remember whether Mr. Bradbury went
that far and reached that conclusion. That could be an
implication of what his statement was, but I don't----
Mr. Nadler. The question was of you, not of Mr. Bradbury.
Mr. Yoo. I know, sir, but I wanted to make sure that I am
not--that it is clear what the Administration's position is. I
understand it is, because they directly answered the question
to the Committee.
Mr. Nadler. But would you answer the question? If some
enemy interrogator used that technique on an American prisoner
of war, would that be----
Mr. Yoo. My view now is that it would depend on the
circumstances. I think that there would--I agree with the
Congressman that----
Mr. Nadler. Okay. Thank you. Thank you.
It would depend on the circumstances.
Mr. Yoo. But I just want to--okay.
Mr. Nadler. Go ahead.
Mr. Yoo. I mean, I just want to fully answer your question,
sir, and you are cutting me off.
Mr. Nadler. Go ahead, go ahead. Go ahead.
Mr. Yoo. Oh, I am sorry. I thought you were cutting me off
again and I was accepting the cutoff that time.
My only point is it would depend on the circumstances, but
I am not saying it would never--that it would always not be
torture, sir. Again, there is an appendix at the back of the
opinion that lists trying to drown somebody as something that
violates the Torture Victims Protection Act.
Mr. Nadler. Thank you.
The time of the gentleman has expired. All time has
expired.
Before we conclude the hearing, I want to observe there
have been a number of unanswered questions today, some on
grounds of privilege, others on the basis that any answer to
the question would unavoidably get into classified information.
We will take those matters under advisement. Depending on
our determination, we may need to revisit some of these
questions with you, perhaps in executive session for any
matters that are classified.
Can I get a commitment from each of you to make ourselves
available for any follow-up hearings that may be warranted?
Mr. Addington. No, Mr. Chairman, but I will wait here as
long as you like, if you have more questions today.
Mr. Nadler. We have to take under advisement the question
of----
Mr. Addington. I didn't invoke any privileges in my
communications.
Mr. Nadler. No, but you invoked classified information.
Mr. Addington. I think what I said was for the same reasons
the President, in his speech, stated that I couldn't discuss--
--
Mr. Nadler. That is invoking classified information. We may
have to----
Mr. Addington. I didn't.
Mr. Nadler. What?
Mr. Addington. I didn't do that. I didn't invoke any
privilege.
Mr. Nadler. Well, we will decide.
We will determine if you did and if--I don't think you
invoked any privileges except for classified information. But
if we determine that we have to have a session, an executive
session to go into those classified matters, would you make
yourself available?
Mr. Addington. If you issue a subpoena, we will go through
this again. But I am willing to stay here as long as you like
today.
Mr. Nadler. And, Mr. Yoo--and, Professor Yoo?
Mr. Yoo. Subject to reasonable accommodation of schedule,
which there has been so far.
Mr. Nadler. Fine, of course.
Mr. Yoo. I would be willing to, yes, sir.
Mr. Nadler. Professor Schroeder didn't invoke any
privileges.
Mr. Conyers. Mr. Chairman, Conyers here.
Mr. Nadler. The Chairman is recognized.
Mr. Conyers. Thank you.
On balance, I would like to thank all the witnesses for
coming forward today. They, from their perspective, have been
as candid as they could and I think I sense an impression that
for reasonable reasons and coordinating with all of our
schedules, they might most probably be likely to return.
And I want to thank them for that.
Mr. Nadler. I thank the gentleman.
I thank the witnesses for their appearances and their
cooperation.
I want to just clarify one other thing. I made a hasty
observation with respect to a Member's not objecting to--not
repeating his objection to Mr. Delahunt's testimony.
I didn't mean to cast any aspersions on his being here or
his caring or anything else. And I want to correct the record
in that respect.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward, and for the witnesses to
respond as promptly as they can so their answers may be made
part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
Again, I want to thank the witnesses and the Members.
And with that, this hearing is adjourned.
[Whereupon, at 1:48 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Exhibits submitted by David Addington, Chief of Staff,
Vice President of the United States
EXHIBIT NO. DSA 1
EXHIBIT NO. DSA 2
EXHIBIT NO. DSA 3
EXHIBIT NO. DSA 4
EXHIBIT NO. DSA 5
EXHIBIT NO. DSA 6
EXHIBIT NO. DSA 7
EXHIBIT NO. DSA 8
EXHIBIT NO. DSA 9
EXHIBIT NO. DSA 10
EXHIBIT NO. DSA 11
EXHIBIT NO. DSA 12
EXHIBIT NO. DSA 13
EXHIBIT NO. DSA 14
Post-Hearing Questions submitted to David Addington, Chief of Staff,
Vice President of the United States*
--------
* Note: The Subcommittee had not received a response to these questions
prior to the printing of this hearing.
Post-Hearing Questions submitted to John Yoo, Professor, Boalt Hall
School of Law, University of California at Berkeley*
--------
* Note: The Subcommittee had not received a response to these questions
prior to the printing of this hearing.
Correspondence between Pilippe Sands, Professor of Laws and Director,
Centre for International Courts and Tribunals, and John Yoo, Professor,
Boalt Hall School of Law, University of California at Berkeley