[Senate Hearing 110-257]
[From the U.S. Government Publishing Office]
S. Hrg. 110-257
EXTRAORDINARY RENDITION, EXTRATERRITORIAL DETENTION AND TREATMENT OF
DETAINEES: RESTORING OUR MORAL CREDIBILITY AND STRENGTHENING OUR
DIPLOMATIC STANDING
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JULY 26, 2007
__________
Printed for the use of the Committee on Foreign Relations
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COMMITTEE ON FOREIGN RELATIONS
JOSEPH R. BIDEN, Jr., Delaware, Chairman
CHRISTOPHER J. DODD, Connecticut RICHARD G. LUGAR, Indiana
JOHN F. KERRY, Massachusetts CHUCK HAGEL, Nebraska
RUSSELL D. FEINGOLD, Wisconsin NORM COLEMAN, Minnesota
BARBARA BOXER, California BOB CORKER, Tennessee
BILL NELSON, Florida JOHN E. SUNUNU, New Hampshire
BARACK OBAMA, Illinois GEORGE V. VOINOVICH, Ohio
ROBERT MENENDEZ, New Jersey LISA MURKOWSKI, Alaska
BENJAMIN L. CARDIN, Maryland JIM DeMINT, South Carolina
ROBERT P. CASEY, Jr., Pennsylvania JOHNNY ISAKSON, Georgia
JIM WEBB, Virginia DAVID VITTER, Louisiana
Antony J. Blinken, Staff Director
Kenneth A. Myers, Jr., Republican Staff Director
(ii)
C O N T E N T S
----------
Page
Biden, Hon. Joseph R., Jr., U.S. Senator from Delaware, opening
statement...................................................... 1
Press release dated July 26, 2007............................ 58
Byman, Dr. Daniel, director, Center for Peace and Security
Studies, Edmund A. Walsh School of Foreign Service, Georgetown
University, Washington, DC..................................... 30
Prepared statement........................................... 33
Eaton, MG Paul, USA (Ret.), former Commanding General, Office of
Security Transition, Baghdad, Iraq............................. 38
Prepared statement........................................... 40
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening
statement...................................................... 3
Malinowski, Tom, Washington Advocacy Director, Human Rights
Watch, Washington, DC.......................................... 6
Prepared statement........................................... 9
Zelikow, Dr. Philip, White Burkett Miller Professor of History,
University of Virginia, Charlottesville, VA.................... 15
Prepared statement........................................... 19
Responses to questions submitted by Senator Feingold......... 60
Additional Material Submitted for the Record
American Civil Liberties Union, news release dated July 26, 2007. 63
Amnesty International USA, Washington, DC, prepared statement.... 60
(iii)
EXTRAORDINARY RENDITION, EXTRATERRITORIAL DETENTION, AND TREATMENT OF
DETAINEES: RESTORING OUR MORAL CREDIBILITY AND STRENGTHENING OUR
DIPLOMATIC STANDING
----------
THURSDAY, JULY 26, 2007
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The Committee met, pursuant to notice, at 9:47 a.m., in
room SD-419, Dirksen Senate Office Building, Hon. Joseph R.
Biden, Jr. (chairman of the committee) presiding.
Present: Senators Biden, Feingold, Cardin, Casey, Lugar,
Corker, Sununu, and Isakson.
OPENING STATEMENT OF HON. JOSEPH R. BIDEN, JR.,
U.S. SENATOR FROM DELAWARE
The Chairman. The hearing will come to order. Good morning
gentlemen, thank you for being here. I'm glad you all could be
here today to discuss one of the--I think--defining challenges
of this decade, is how to effectively combat international
terrorism while both maintaining our national values and our
commitment to the rule of law, and respecting individual rights
and civil liberties. Some have suggested that we need make a
Faustian bargain that gives up one in order to accomplish the
other. That's what I'd kind of like to discuss with you all
today.
We meet today against the backdrop of the most recent
national intelligence estimate, which concluded that the
terrorist threat to the United States of America from al-Qaeda
is back in full force. One conclusion, I believe, we can draw
from this is that the administration's policies dealing with
terrorism, thus far, are not working.
Today's hearing focuses on two of the less often discussed,
but no less controversial counterterrorism policies we've
employed since September the 11: Extraordinary rendition and
extraterritorial detention.
Rendition is the practice of detaining a terrorist
operative in a foreign country and transferring him or her to
the United States or to another foreign country. It has proved
to be an effective way to take terrorists off the street and
collect, on occasion, some valuable information.
But the U.S. Government's use of rendition has been
extremely controversial. Foreign governments have criticized
the practice because it operates outside the rule of law and
has allegedly been used to transfer suspects to countries that
torture or mistreat them or to seek extraterritorial prisons,
in countries where we have listed the countries as abusing the
human rights of their fellow citizens.
As a result, the current rendition program has taken a toll
on the relationships with some of our closest foreign partners.
Consider the following: Italy has indicted 26 Americans for
their alleged role in a rendition. Germany has issued arrest
warrants for an additional 13 United States intelligence
officers. The Canadian Government Commission has censured the
United States for rendering a Canadian-Syrian dual-citizen to
Syria, where he was allegedly tortured. The Counsel of Europe
and the European Union have each issued reports critical of the
United States Government's rendition program and the European
countries' involvement in, or complicity with, that program.
Sweden and Switzerland have each initiated investigations
of us, as well. Just yesterday, the United Kingdom issued a
report on the United States rendition program, concluding that
it would have, ``serious implications,'' for future
intelligence relationships between the United States and the
United Kingdom, one of our most important partners.
Rendition as currently practiced, in my view, is
undermining our moral credibility and standing abroad and, more
importantly, I guess in the minds of the real politik crowd of
which I occasionally consider myself one, weakening, weakening
the coalition with foreign governments, the very governments
that we need if we're going to be able to combat international
terrorism. We also put our intelligence officers at risk by not
providing them with clear guidelines to govern their conduct.
As one of the witnesses today recently wrote, ``Successful
counterterrorism depends in part on convincing the world that
there is no moral equivalency between the terrorist and the
government they oppose. When the United States muddies those
waters, this distinction begins to blur.''
More ominous, the controversial aspects of the U.S.
Government use of renditions have been used by propagandists
and recruiters to fuel and sustain international terrorist
organizations with a constant stream of new recruits. That's
not my judgment, that's the judgment of many in the
intelligence community.
Allegations of U.S. lawlessness and mistreatment make their
job easier--that is the recruiters--adding a refrain to the
recruitment pitch, and increasing the receptivity of their
target audience. Our counterterrorism authorities have not
only--our counterterrorism authorities should not only thwart
attacks, take dangerous terrorists off the street, and bring
them to justice--these authorities should also strengthen
international coalitions, win the hearts and minds of Muslim
populations that are--would otherwise be prepared to cooperate
with us and help diminish, if not deprive, recruitment, the
narrative that they now have.
In our long-term effort to stem the tide of international
terrorism, our commitments to the rule of law and individual
rights and civil liberties are among our most formidable
weapons, in my view. They are what unite foreign governments
behind us in effective antiterrorism coalitions. They are what
unite public opinion in this country in support of our
counterterrorism efforts. They are what prevent the recruitment
of the next generation of international terrorists, or at least
slow it up.
If we continue to pursue a rendition program ungoverned by
law, without sufficient safeguards and oversight, we will take
individual terrorists off the streets at the expense of foreign
coalitions that are significantly more consequential long term
and essential to our efforts to combat international terrorism
at the expense of facilitating the recruitment of a new
generation of terrorists who are just as dangerous--and what we
know from the intelligence report--far more numerous.
There is not a tradeoff--this is not a tradeoff I believe
we have to make. We can have a robust and agile rendition
capacity governed by the rule of law and subject to sufficient
safeguards and oversight. In this way, we can take terrorists
off the streets, while at the same time strengthening our
standing and credibility among foreign governments and the
global community and diminishing the recruitment efforts of
tomorrow's--for tomorrow's terrorist.
Yesterday I introduced a bill, the National Security with
Justice Act, which maintains rendition as a robust and agile
tool in our fight against international terrorism, but brings
that tool within the rule of law, provides additional
safeguards against error, prohibits rendering of individual to
countries that will torture or mistreat them or to secret
extraterritorial prisons.
My bill also closes a hole intentionally left open by the
President's recent Executive order on the treatment of
detainees. The President's order is notably silent on some of
the more controversial techniques the CIA has allegedly used in
the past, such as waterboarding, sleep deprivation, sensory
deprivation, and extremes of heat and cold. When we countenance
this treatment of detainees, we diminish our ability to argue
that some techniques should not be used against our own troops.
I wonder what the response is in this country if we find
that those techniques are being used. We can't continue to
equivocate and dissemble on this matter. We need to send a
clear message that torture, inhumane, and degrading treatment
of detainees is unacceptable, is not permitted by U.S. law,
period. Therefore, my bill prohibits all officers and agents of
the U.S. Government from using techniques of interrogation not
authorized by, and listed in, the U.S. Army field manual on
intelligence interrogation.
Today we have several distinguished experts who will help
us understand how we can maintain these vital tools in our
fight against terrorism, without endangering the safety of our
troops, jeopardizing the international partnerships so critical
in this long-term fight, and alienating modern Muslim
populations, and meeting our standard of what we consider, what
the average person considers fairness; the rule of law.
I now invite my good friend, Chairman Lugar, to offer some
opening comments.
OPENING STATEMENT OF HON. RICHARD G. LUGAR,
U.S. SENATOR FROM INDIANA
Senator Lugar. Thank you very much, Mr. Chairman.
I would just comment that in the current fight against
terrorism, we have employed some of our most talented minds to
leverage America's overwhelming technical capabilities. Yet we
realize that many terrorists employ tactics designed to
frustrate our technological advantages. Terrorists' orders are
now seldom transmitted over the Internet or by mobile phones,
both of which are prone to electronic eavesdropping. Instead,
messages are couriered by hand, or passed by word of mouth. And
terrorist cells often deliberately keep small and isolated from
one another to avoid penetration.
In this environment, our ability to disrupt terrorist
organizations depends greatly on the oldest form of espionage,
namely human intelligence. Identifying, locating, and obtaining
access to individuals with information about terrorist cells is
now one of our most vital national security tasks. As a result
of these facts on the ground, the U.S. policymakers have been
forced to contend with moral, legal, and tactical questions
that defy easy answers.
How do we handle terrorists who have been pinpointed
outside of countries where the U.S. military and intelligence
agencies can operate with the cooperation of the local
government? Where should suspected terrorists be detained, and
under what regulations? To what length should we go to obtain
information from a prisoner that could prove vital to saving
the lives of hundreds, or even thousands, of people? And how
can we be sure that the information we obtain is truthful and
valuable?
We all agree that actionable intelligence items that enable
us to destroy terrorist cells or disrupt terrorist activities
are essential in our current struggle. But we have not
developed a national consensus on how far the U.S. Government
can go in seeking such items. We also have not come to grips
with the question of whether information obtained through
methods that draw international criticism is worth the loss of
United States standing.
Last summer, the Foreign Relations Committee held a hearing
on counterterrorism, in which we discussed the growing ability
of terrorist organizations to conduct anti-American propaganda,
and to franchise themselves. Decisions about individual cases
can not be made in a policy vacuum with no reference to broader
antiterrorism strategy. The policy of rendition has proven in
the past to be a useful tool in bringing to justice
narcotraffickers and other international criminals. In most of
those instances, individuals were sent to the United States
with the consent of the countries where they were located.
Either because the country's judicial system was inadequate and
prone to corruption, or because the country in question
believed that the U.S. judicial system was better suited to
handle the case.
The issue before us is the impact of so-called
``extraordinary rendition.'' When suspected terrorists are
rendered to justice, not in the United States, but to other
countries, many of whose judicial systems have questionable
levels of human rights protection and due process procedures.
Today's hearing is an opportunity to grapple with the
complexities of that issue. And I appreciate the study that our
witnesses have given to those questions. I look forward to
their insights.
Thank you, Mr. Chairman.
The Chairman. Thank you very much.
We have a very distinguished panel this morning. Tom
Malinowski has been the Washington advocacy director for Human
Rights Watch, an organization dedicated to protecting human
rights around the world since 2001.
Prior to his joining Human Rights Watch, he was Special
Assistant to President Bill Clinton and Senior Director of
Foreign Policy Speech Writing at the National Security Council.
From 1994 to 1998, he was a speech writer for Secretaries of
State Christopher and Albright and a member of the State
Department Policy Planning staff. He has also worked for the
Ford Foundation as a legislative aide and as a legislative aide
to our great colleague, who's no longer with us, Daniel Patrick
Moynihan.
Professor Daniel Byman--Professor Byman has been director
for the Center for Peace and Security Studies and the Security
Studies Program at the Edmund A. Walsh School of Foreign
Service at Georgetown University since 2005. He also serves as
an associate professor, and since 2003 has been a nonresident
senior fellow at the Saban Center for Middle Eastern Policy at
the Brookings Institution. From 2002 to 2004, he was a
professional staff member of the 9/11 Commission and prior to
that worked as a professional staff member in the Joint 9/11
Inquiry for the U.S. House and Senate Intelligence Committee.
He's worked from 1997 to 2002 as a policy analyst and director
of research for the Center for Mideast Policy, Public Policy at
the Rand Corporation, and worked from 1990 to 1993 as a
political analyst for the CIA. He has a Ph.D. in political
science from the Massachusetts Institute of Technology.
Dr. Philip D. Zelikow--Dr. Zelikow is the White Burkett
Miller Professor of History at the University of Virginia. From
February 2005 until December 2006, he was counselor to the U.S.
Department of State where he served as a senior policy advisor
to the Secretary of State. He also served as the executive
director of the 9/11 Commission and is a member of the
President's Foreign Intelligence Advisory Board. He also taught
at Harvard University Kennedy School of Government and director
at the University of Virginia's Miller Center for Public
Affairs. He has a Ph.D. in international law and diplomacy from
Tufts University, the Fletcher School, and a law degree from
the University of Houston.
And MG Paul Eaton. General Eaton, who is not a stranger to
us, is retired from the U.S. Army, 2006, after more than 33
years of distinguished service. From 2003 to 2004, he was a
commanding general charged with reestablishing Iraqi security
forces, where he built the command and established the
structure and infrastructure for the Iraqi Armed Forces. He has
commanded infantry from the company to the brigade levels,
commanded the infantry center at Fort Benning and has been
Chief of Infantry. He's also served the Joint Chiefs as Deputy
Commanding General for the transformation and striker unit
development and has operational--and has had operational
assignments in Somalia, Bosnia, and Albania.
I welcome you all, gentlemen, and why don't you begin your
testimony in the order that you were recognized. Thank you.
STATEMENT OF TOM MALINOWSKI, WASHINGTON ADVOCACY DIRECTOR,
HUMAN RIGHTS WATCH, WASHINGTON, DC
Mr. Malinowski. Thank you very much, Senator Biden, Senator
Lugar, members of the committee. Thank you for holding this
hearing and inviting me to testify.
I'll start with a simple observation that when I joined
Human Rights Watch about 6 years ago, I thought I'd be spending
most of my time dealing with situations in places like Sudan
and Burma and China. I never thought for a moment that I'd end
up as preoccupied as I've been with the policies that you're
focused on here.
But here we are and here we must be, because as you said,
Mr. Chairman, these policies have done so much to diminish
America's standing, it's influence in the world. And because
they have hindered, ironically, not helped, our efforts in
fighting terrorism. So, I'm really glad that you're doing this
and particular that you're focusing on the most difficult and
the most complicated aspects of this problem, those involving
rendition and CIA detention.
As Senator Lugar mentioned, rendition is nothing new, but
there is a difference. In the past when we've seized people
overseas, we brought them to justice, we brought them to face
criminal trial in the United States or elsewhere. What we're
doing now, what we have been doing is essentially hiding people
from justice. People have been sent to secret facilities or
they've been held for years without any process, not even
visits from the International Committee for the Red Cross. Some
subjected to interrogation methods that, well, methods that I
first learned about when I was reading accounts by Soviet
dissidents of what they endured in KGB prisons years ago. Now,
some of these men committed terrible acts, inevitably a few
turned out to be innocent. Some have since been transferred to
Guantanamo Bay, many others were rendered to countries where
torture is standard operating procedure and those people
remain, essentially, disappeared, vanished.
Now those are the facts. They were meant to be secret. Of
course, they were not going to be secret for long, that was
inevitable. What I'm particularly interested in is the argument
that these policies are making to the rest of the world. Here's
the argument I think the administration is making, in a
nutshell.
First, that the whole world is a battlefield in an open-
ended war against terror. Anyone, the Chief Executive of a
country believes to be associated with terrorism is a combatant
in that war and can, therefore, be attacked on sight or held
without charge. Such people can be seized anywhere, anytime,
without judicial authorization and if they're considered
especially dangerous, they can be held in secret for as long as
a country likes. So long as these people are in the custody of
an intelligence agency, governments can also subject them to
interrogation procedures that would normally be prohibited in
wartime.
Now, I've deliberately stated these propositions in their
generic form, not as statements of what the United States can
do, but as statements of what any country can do. Because
that's, essentially, the implication of the arguments that
we're making. And I think it's extremely dangerous. Imagine,
for example, if the Government of Iran were to seize a bunch of
Americans in Iraq, take them across the border back to Iran,
and held them in a secret prison with no judicial process.
Would we accept that that was OK, just because, for example,
they were being held by the Iranian Intelligence Agency and not
the Iranian military?
Imagine if China or Burma accused an American of aiding
rebels in their country, as they often do. And on that basis,
seized that American off the streets of Wilmington or
Indianapolis, bundled that person on a plane, took them back to
China or Burma, held them for years in secret. Would the
President of the United States say, ``Well, you know, no
problem, I guess the leaders of China and Burma thought that
guy was an enemy combatant and they have a right to do that.''
Or just for the sake of argument, imagine if the President
of Russia declared that his country was engaged in a global war
on terror and that anyone with any connection to any group that
supported separatist elements, in a place like Chechnya, was a
combatant in that war who could be detained or shot or
poisoned, wherever he was found, whether in Moscow or Berlin
or, just for the sake of argument, London.
Now clearly, we live in a world where such things are
possible; they happen. But do we want to live in a world where
they are considered legitimate? That's what's at stake here--
whether we're going to preserve a set of legal and moral rules
that this country has struggled to develop over generations,
and whether the United States is going to remain the world's
preeminent champion of those rules.
Right now we're obviously losing that status. When we go
around the world, talk about freedom and democracy, these
policies are thrown in our face, whether we're a human rights
organization or the U.S. Government. Dictators all around the
world take pleasure now in saying to their people, that even
America, which preaches all these fine moral ideals to the
world, tortures prisoners and locks them away without charge.
Even America throws away the legal niceties and behaves
ruthlessly when it feels threatened. The Americans use all this
human rights talk to beat up their enemies, but you know,
they're really just the same as us. I hate the fact that
dictators and authoritarian leaders like Vladimir Putin can now
say that with some degree of legitimacy to their people.
Now, those are some of the costs. The question is: Do we
benefit at all, are there national security benefits to these
policies? I agree with Senator Biden that the answer to that is
no. It's certainly no if--you know--if you agree, for example,
with what General Petraeus has been saying to his troops in
Iraq. He recently said, ``This fight depends on securing the
population, which must understand that we, not our enemies,
occupy the moral high ground.'' We're losing the moral high
ground because of these policies, in a way that creates far
more enemies than they could ever take off the battlefield.
Now, it's also vital to get good intelligence, as you
suggested, Senator Lugar. But I don't think these policies are
the answer to that challenge. Partly because folks who live in
communities where terrorists hide are going to be much less
likely to give us information to turn over their neighbors and
friends if they think those neighbors and friends are going to
be subjected to torture or shipped off to a secret prison. And
partly because these practices, you know, they're designed to
elicit false confessions from people, they're not really
designed to get at the truth.
And I think one of the best examples of this is one of the
first known cases of extraordinary rendition, one that we
haven't mentioned yet. An al-Qaeda member named Ibn al-Sheikh
al-Libi, who was taken in Afghanistan after the fall of the
Taliban regime, first interrogated by the FBI, which was making
progress, reportedly. Then given to the CIA, which rolled out
its enhanced interrogation techniques and then shipped to Egypt
for, I suppose, further enhancement. What did Libi say to his
interrogators? Precisely what they wanted to hear: That Saddam
Hussein was training al-Qaeda in the use of chemical weapons.
And where did that piece of information end up? It ended up
being the closing argument in Secretary of State Powell's
famous speech to the U.N. Security Council on Iraq's weapons of
mass destruction program.
So you can say, I think, with credibility that one of the
greatest intelligence failures in American history came about,
in part, because somebody trusted the tortured confession of a
man who went through the extraordinary rendition program. And
that ought to give us pause.
Then there's the whole problem of not being to bring
terrorists to justice. Not a single 9/11 planner has been
successfully prosecuted in this system. The only person the
administration has managed to convict, in the system that
they've created, is a minor al-Qaeda guy, if he was at all, an
Australian kangaroo trapper by the name of David Hicks, who got
a 9-month sentence and is now serving it in Australia.
At the same time our Federal courts, which have been
disparaged as not being capable of dealing with terrorism, have
quietly prosecuted and put away dozens of international
terrorists for sentences up to, and including, life. And you
know what? Nobody is saying that those people who our Federal
courts have processed were treated unfairly. Nobody is
clamoring for their release. Nobody--terrorists are not using
their fate to recruit new terrorists. To use one of President
Bush's favorite expressions, ``Those people who got justice
with due process are no longer a problem for the United States
of America.'' Every single person who's gone through this
rendition program remains a problem for the United States of
America.
Now legislation you've proposed, Senator Biden, addresses
the most complicated aspects of that problem and Human Rights
Watch strongly supports the goals of your bill: To protect
legitimate intelligence activities while getting the CIA out of
this long-term detention business and limiting rendition to
cases where a prisoner is sent to face justice with due
process. Drafting the language to accomplish those goals is
really, really hard. Particularly when we have some lawyers in
this administration who believe the constitutional function of
Congress is to enact loopholes not laws, and they will scour
your legislation for any loophole that they can find. So, I
would urge you, as this legislation moves forward, to be
extremely careful, look at the language again and again, make
sure that it's absolutely airtight.
In my written testimony I suggest a few adjustments that I
hope you'll consider making. For example, granting the Red
Cross access to every prisoner in U.S. custody. And I ask
whether the FISA Court procedure that you outlined in the
legislation is the best way of overseeing this process. So, I
look forward to working with you, your staff, and other
Senators as that process moves forward.
I also want to just strongly commend you for including in
the legislation a provision that establishes a single
interrogation standard for the entire U.S. Government, one that
is humane, one that is effective, one that is lawful. Clearly,
the message of the Executive order and some of the statements
the administration has made in the last few days suggests that
they want to go back to at least some elements of the enhanced
interrogation program. I think that would be a tragic, tragic
mistake for the reasons that you outlined, Mr. Chairman. And
again, I commend you for trying to prevent that.
The very fact we're even having this discussion, I suppose,
is kind of sad. You know, how this country treats its enemies
ought to be what distinguishes us from our enemies. And the
story of how we've actually done so in the last few years
doesn't always make me proud, but I think that there's another
story out there that's waiting to be written, and that is that,
you know, the United States was hit hard on 9/11, we responded
mostly in ways that were honorable and smart. We made some
mistakes out of fear. Our institutions, the Congress, the
court, our military are now correcting those mistakes and
bringing us back to a path of which we can be proud. I think
that's a really good story that I hope will be told. And I'm
very glad that this committee is playing its part in helping to
write it.
Thank you.
[The prepared statement of Mr. Malinowski follows:]
Prepared Statement of Tom Malinowski, Washington Advocacy Director,
Human Rights Watch, Washington, DC
Mr. Chairman, thank you for holding this hearing and for inviting
me to testify.
When I joined the staff of Human Rights Watch 6 years ago, I
assumed I would be spending most of my time dealing with outrages
committed by governments in countries like Sudan and China and Burma,
and urging the United States to be a force for good in such places. I
never imagined that I would see my own government engaging in the kinds
of activities it has long condemned around the world: Disappearing
prisoners in secret facilities for years without any legal process,
sending them to be interrogated in countries where torture is standard
practice, and subjecting them to interrogation methods that I first
learned about while reading accounts by Soviet dissidents of what they
endured in KGB prisons.
These policies have undermined standards that defenders of human
rights everywhere rely upon to fight for their cause. They have
diminished America's moral standing and influence in the world. They
have hindered, not aided, the fight against terrorism, handing
America's enemies a victory they could never have achieved on their
own.
For the last 6 years, a growing number of voices have been pushing
back: Members of Congress, the Supreme Court, active and retired
members of the U.S. military and intelligence community, not to mention
organizations dedicated to promoting civil liberties and human rights.
We have made considerable progress in righting the wrongs of the last
few years and encouraging a counterterrorism strategy that will be more
effective as well as lawful. But much more needs to be done. And I am
very glad, Mr. Chairman, to see you taking the lead in addressing some
of the most complex and important aspects of the problem, including
extraordinary rendition and secret detention.
What I'd like to do is discuss what we know about the CIA's
detention, interrogation, and rendition program, as well as its
consequences and the importance of fundamentally changing it. I will
then offer a few comments on the legislation you have introduced.
the program
The administration has acknowledged that around 100 prisoners have
been held in the CIA program, in facilities operated by the Agency in
undisclosed locations around the world. The International Committee of
the Red Cross has repeatedly asked for access to these facilities and
been denied. These prisoners were effectively disappeared. In
international law, an enforced disappearance is considered to be ``the
arrest, detention, abduction or any other form of deprivation of
liberty committed by agents of the State . . . followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person
outside the protection of the law.'' That is precisely what happened to
prisoners held by the CIA.
Some of the prisoners were subjected to what the administration has
euphemistically termed ``enhanced interrogation.'' These methods
reportedly included ``waterboarding''--in which interrogators strap the
prisoner to a board with his feet above his head, cover his mouth and
nose with cellophane, and pour water over his face to create the
sensation of drowning. They also apparently included a technique known
as ``long-time standing,'' in which a prisoner is forced to stand
motionless for up to 48 straight hours, and extreme sleep deprivation
for days on end--methods that survivors of some of the world's most
brutal regimes have said cause as much suffering as the worst physical
torture.
Last September, the President announced that the last (at that
point) 14 prisoners held in CIA facilities were being transferred to
military detention at Guantanamo Bay. But of course many more prisoners
had been in CIA custody at some point before that. Human Rights Watch
has identified 21 people who were almost certainly held in CIA
facilities, and another 18 who may have been held, whose whereabouts
remain unknown. Most, presumably, were rendered to other countries,
most likely in the Middle East.
The administration says that it does not render people to torture.
But the only safeguard it appears to have obtained in these cases was a
promise from the receiving state that it would not mistreat the
rendered prisoners. Such promises, coming from countries like Egypt and
Syria and Uzbekistan where torture is routine, are unverifiable and
utterly untrustworthy. I seriously doubt that anyone in the
administration actually believed them.
We also know that the CIA detention and rendition program remains
in operation today. This spring, four more prisoners were delivered to
Guantanamo, some reportedly from secret CIA custody. At least one had
actually been arrested months earlier. There is also strong evidence
that the Agency may have participated in or condoned the rendition to
Somalia and Ethiopia of a number of people who had escaped the conflict
in Somalia earlier this year.
consequences for global human rights and america's moral authority
Here, in a nutshell, are the arguments the administration has made
to the world through these detention policies: First, the whole world
is a battlefield in an open-ended war on terror. Anyone the Chief
Executive of a country believes to be supporting or associated with
terrorism is a combatant in that war, and can therefore be attacked on
sight or held without charge. Second, such people can be seized
anywhere, at any time, without judicial authorization, and if the
leader of a country considers them especially dangerous, he can hold
them in secret for as long as he likes. So long as these people are in
the custody of an intelligence agency, governments can also subject
them to interrogation procedures that would normally be prohibited in
wartime, even though such practices have been prosecuted as torture by
the United States for over a hundred years.
I have deliberately stated these propositions in their generic
form--not as statements of what the United States can lawfully do, but
as statements of what any government can lawfully do. This is how this
debate should have been framed from the beginning--because America's
policies inevitably set an example for others. But it was not framed
that way. The administration failed to consider, before it embarked on
its interrogation and detention policies, how the United States might
react if others mimicked those policies and the arguments it was using
to justify them.
Imagine if another government--let's say, for the sake of argument,
the Government of Iran--set up a prison camp on some island to which it
claimed its domestic laws did not apply, and that it held there,
without charge or trial, several hundred men of multiple nationalities,
captured outside of Iran, who it accused, based on classified evidence,
of supporting groups it claimed were hostile to Iran.
Imagine if some of these prisoners were Americans--not soldiers,
but say a contractor the Iranians accused of housing or feeding U.S.
troops, or a Treasury Department official they accused of financing the
Pentagon. Imagine if Iran transferred those Americans to the custody of
its intelligence agency, and on that basis claimed that it could hold
them in secret without any legal process for as long as it wanted.
Imagine if those Americans were ultimately given a makeshift military
hearing, in which they tried to say that they had been tortured by
their interrogators, but that the Iranian tribunal kept this testimony
secret because it didn't want Iran's enemies to learn how it
interrogates prisoners.
Imagine if the intelligence service of the United Kingdom suspected
a lawful U.S. resident of sending money to the IRA in Northern Ireland,
or the secret police in China or Burma accused an American of
supporting rebels in their country, and on that basis, kidnapped that
American off the streets of Wilmington or Indianapolis, bundled him on
a plane, and held him for years in a secret facility, hidden even from
the International Committee of the Red Cross. How would the U.S.
Government react? Would the President say ``sure, no problem, I guess
the leader of China or Burma decided that guy was an enemy combatant,
so I can't really complain?'' If it happened to one of your
constituents, Mr. Chairman, would it matter to you if some official in
the U.S. intelligence community had given Burma or China permission to
whisk that American away?
Or, just for the sake of argument, imagine if the President of
Russia declared that his country was engaged in a global war on terror,
and that anyone with any connection to any group that supported
separatist elements in places like Chechnya was a combatant in that war
who could be detained or shot or poisoned wherever he was found,
whether in Moscow or Berlin or just for the sake of argument, London.
Clearly, we live in a world in which such things are possible. But
do we want to live in a world where they are considered legitimate?
That is what is at stake here. Whether we will preserve the legal and
moral rules we have struggled to develop over generations to limit what
governments--and here I mean not just the United States but all
governments--can and can't do to people in their power. And whether the
United States will have the credibility to be the world's preeminent
champion of those rules.
Now, it is important to note that nothing the administration has
done can compare in its scale to what happens every day to victims of
cruel dictatorship around the world. The United States is not Sudan or
Cuba or North Korea. The United States is an open, democratic country
with strong institutions--its Congress, its courts, its professional
military leadership--which are striving to undo these mistakes and
uphold the rule of law.
But the United States is also the most influential country on the
face of the earth. The United States is a standard setter in everything
it does, for better or for worse.
When Saddam Hussein tortures a thousand people in a dark dungeon,
when Kim Jong Il throws a hundred thousand people in a prison camp
without any judicial process, no one says: ``Hey, if those dictators
can do that, it's legitimate, and therefore so can we.'' But when the
United States bends the rules to torture or to secretly and unlawfully
detain even one person, when the country that is supposed to be the
world's leading protector of human rights begins to do--and to
justify--such things, then all bets are off. The entire framework upon
which we depend to protect human rights--from the Geneva Conventions
and treaties against torture--begins to fall apart.
It is simply an undeniable, objective fact that when President Bush
talks about his freedom agenda today, most people around the world do
not conjure images of women voting in Afghanistan or of Ukrainians and
Georgians marching for democracy or of American aid dollars helping
activists in Egypt or Morocco fight for reform. Even America's closest
friends now turn their minds to Guantanamo, to renditions, to secret
prisons, and to the administration's tortured justifications for
torture.
These policies have not only discredited President Bush as a
messenger of freedom, they also risk discrediting the message itself.
Because the whole idea of promoting democracy and human rights is so
associated with the United States, America's fall from grace has
emboldened authoritarian governments to challenge the idea as never
before. As the United States loses its moral leadership, the vacuum is
filled by forces profoundly hostile to the cause of human rights.
A couple of years ago, Human Rights Watch was meeting with the
Prime Minister of Egypt, and we raised a case in which hundreds of
prisoners rounded up after a terrorist bombing were tortured by
Egyptian security forces. The Prime Minister didn't deny the charge. He
answered, ``We're just doing what the United States does.'' We've had
Guantanamo and the administration's interrogation policies thrown back
in our face in meetings with officials from many other countries,
including Saudi Arabia, Jordan, Pakistan, and Lebanon. U.S. diplomats
have told us they face the same problem. A U.S. Ambassador to a major
Middle Eastern country, for example, has told us that he can no longer
raise the issue of torture in that country as a result.
The master of the tactic is Russia's President, Vladimir Putin, who
uses it preemptively to ward off criticism of Russia's slide back to
authoritarianism. Just before the recent G-8 summit, a reporter asked
Putin about his human rights record, and he immediately shifted the
subject: ``Let's see what's happening in North America,'' he said.
``Just horrible torture . . . Guantanamo. Detentions without normal
court proceedings.''
Now, don't get me wrong: Putin doesn't need American renditions and
secret prisons as an excuse to persecute his critics in Russia. These
policies are not the reason why Egypt or any other country tortures and
detains prisoners without charge. Still, America's detention policies
are a gift to dictators everywhere. They can use America's poor example
to shield themselves from international criticism and pressure, to say,
to their own people as well as to the world, ``we are just the same as
everybody else.''
In the days of the cold war, the Communist leaders of Eastern
Europe tried to do the same thing. But it didn't work. Dissidents and
ordinary people behind the Iron Curtain knew that America wasn't
perfect. But they believed that the United States was at least
dedicated to the principle that governments were bound by law to
respect human rights. It was profoundly important to them to know that
the government of the world's other superpower limited its power in
accordance with this principle. It gave them hope that a different way
of life was possible, and the courage to fight for it.
Leaders like Putin understand how powerful America's example has
been in the past, and they use the administration's policies to tear
that example to shreds. They use it to tell their people that all this
American-inspired talk about human rights is hypocritical rubbish.
``Even self-righteous America,'' they say, ``which preaches moral
ideals to the world, tortures prisoners, and locks people up without a
trial. Even America throws away the legal niceties and behaves
ruthlessly when it feels threatened. The Americans use human rights
talk to beat up their enemies, but they're really just the same as us.
And if you think that things can ever be different here or anywhere
else, you're just naive.''
harm to counterterrorism
These are some of the costs of the administration's detention and
interrogation policies. Do these policies have national security
benefits that justify such costs? I believe the answer is ``No.''
I believe that the fight against terror is as much a moral and
political struggle as it is a military one. That's not just my view.
Listen to former Marine Corps Commandant Charles Krulak and former
CENTCOM Commander Joseph Hoar, who have written: ``This war will be won
or lost not on the battlefield but in the minds of potential supporters
who have not yet thrown in their lot with the enemy.'' Listen to
General David Petraeus, who recently told his troops in Iraq: ``This
fight depends on securing the population, which must understand that
we--not our enemies--occupy the moral high ground.'' Look at the most
recent National Intelligence Estimate, which says that the United
States needs to ``divide [terrorists] from the audiences they seek to
persuade'' and make ``the Muslim mainstream . . . the most powerful
weapon in the war on terror.'' Read the U.S. Army's Counterinsurgency
Manual, which says that in a war like this, you can't kill or capture
every enemy fighter; the challenge instead is to diminish the enemy's
``recuperative power''--its ability to recruit new fighters--by
diminishing its legitimacy while increasing your own.
When America violates its own principles by secretly detaining,
abusing, and rendering prisoners to torture, it cedes the moral high
ground and loses the Muslim mainstream. These policies are one of the
main sources of the terrorists' recuperative power.
What's more, secret detention, torture, and rendition hurt, rather
than help, efforts to collect accurate intelligence about the enemy.
One of the best sources of intelligence on terrorist plots are the
communities in which terrorists hide. Public cooperation has been the
key to preventing many potentially deadly attacks: For example, it was
a tip from a member of the Muslim community in London that allowed
British investigators to foil a plot to bomb several transatlantic
flights last year. But people who live in those communities are much
less likely to come forward with information about their neighbors,
acquaintances, and relatives if they think the people they're turning
in are liable to be abused, or held for years in a secret prison, or
sent to a dungeon in a country where torture is rampant.
Interrogation of prisoners is also an important source of
intelligence. But torture is not a reliable method of interrogation.
Sure, if you waterboard a prisoner or strip him naked in a freezing
room or deny him sleep for days on end, sometimes he'll blurt out the
truth. But more often than not, tortured prisoners will say whatever
they think their interrogator wants to hear, whether true or not, to
end their suffering. And keep in mind: When prisoners confirm what
their interrogators already believe to be true, interrogators are often
highly tempted to believe it. Torture tends to confirm whatever false
assumptions the intelligence community brings into an interrogation.
Perhaps the best example of this involves one of the first
prisoners to be subjected to extraordinary rendition after September
11--a suspected al-Qaeda member named Ibn al-Sheikh al-Libi. At first,
al-Libi was held by the FBI, which used traditional, tried and true,
psychological interrogation methods. The FBI was apparently making
progress. But the administration lost patience, turned him over to the
CIA, which applied its enhanced procedures, and eventually sent him to
be interrogated in Egypt. Reportedly, Libi's family was threatened; he
was waterboarded; and he was forced to remain standing overnight in a
cold cell while being repeatedly doused with icy water.
Libi eventually told his interrogators exactly what the
administration wanted to hear: That Saddam Hussein was helping al-Qaeda
obtain chemical weapons. This false information became one of the most
powerful arguments for the war in Iraq, and the closing argument in
Colin Powell's presentation to the U.N. Security Council in February,
2003. One of the greatest intelligence failures in American history
came about in part because the administration believed in the CIA
program and the tortured confessions it produced.
How much more good intelligence was lost because of the use of
these methods? How many false leads have intelligence agencies wasted
their time following as a result? How many innocent people have been
detained, and how many guilty people have escaped capture? We will
probably never know. But the damage has surely been great. And the
United States did not have to endure it.
Talk to the military interrogators who are using the professional,
humane interrogation methods outlined in the U.S. Army Field Manual on
Intelligence Interrogation. They will tell you that these methods are
far more reliable in obtaining truthful, useful intelligence than the
amateurish and cruel methods the CIA used in its facilities. As for
detention of dangerous terrorists--talk to the career prosecutors at
the Justice Department. They will tell you that they know how to bring
terrorists to justice in ways that showcase America's commitment to the
rule of law.
Consider this: In the 6 years since September 11, the
administration's system of holding terrorists in secret detention while
creating an entirely new system of military justice to handle terrorism
crimes has resulted in exactly zero prosecutions of anyone remotely
connected to those attacks. Only one man has been convicted in this
system--an Australian former kangaroo trapper who was at best a bit
player in al-Qaeda, and who got just 9 months in prison, which he's
serving in Australia.
Meanwhile, U.S. Federal courts have successfully tried and
convicted dozens of persons for international terrorist offenses,
sentencing many to long prison sentences.
What's more, no one is complaining that the men sentenced in the
Federal courts were treated unjustly. No one is clamoring for their
release. Al-Qaeda cannot exploit their fate to recruit more terrorists
to its ranks. To use one of President Bush's favorite phrases, those
terrorists who got justice with due process are no longer a problem for
the United States of America. Every single person who's been held in
Guantanamo, or in a secret prison, or subject to extraordinary
rendition remains a profound problem for the United States.
legislative solutions
The legislation you've proposed, Senator Biden, addresses a major
part of this problem. Human Rights Watch strongly supports the
fundamental goals of your bill--to protect legitimate intelligence
activities, while getting the CIA out of the detention business,
limiting rendition to cases where a prisoner is sent to face justice
with due process, and having an independent court review transfers to
ensure that no one is sent to face torture or detention without charge.
Drafting language to accomplish these goals is extraordinarily
difficult, especially when we have an administration that believes that
Congress's job is to enact loopholes, not laws. This administration has
a long track record of interpreting what appear to be clear
prohibitions on outrageous government conduct in ways that allow the
President to do virtually whatever he wants--and of keeping these
interpretations secret so that no one can challenge them. As your bill
moves forward, Mr. Chairman, I trust that you will continue to look
carefully at the language, and to make any adjustments that may be
necessary to ensure that it definitively shuts the door on the
extraterritorial detention and rendition to torture that you seek to
prohibit.
Based on our initial reading of the bill, there are a few
adjustments I would encourage you to make:
First, while your bill requires the FISA Court to evaluate humane
treatment assurances from a foreign government in light of that
government's overall record on torture and the individual circumstances
of the detainee--rather than simply accepting humane treatment
assurances--the detainee himself has no opportunity to raise fears of
torture or persecution to the court. As we've seen in the case of
Guantanamo detainees, each of these cases is highly individualized.
Some prisoners from countries with poor human rights records very much
want to go home; others have legitimate, personal reasons to fear
mistreatment, based on their own past activities and dealings with
their home governments. The process you seek to create should give
prisoners an opportunity to make such concerns known to the court, with
proper representation, so that they can be fairly evaluated, and to
challenge assurances the United States receives from their home
countries.
Second, this raises the question of whether the FISA Court provides
the best oversight mechanism for this process. While I understand your
desire to respect the sensitive nature of intelligence activities, it
may prove very difficult to design a process in the FISA Court, which
operates on an ex parte basis, that allows prisoners a fair chance to
raise legitimate concerns about torture and persecution before their
transfer. An alternative would be to mandate a special article III
court to sit by designation--abroad if necessary--on cases involving
overseas detention. Designated panels of Federal judges, with existing
rules of procedure and experienced in trials, fact-finding, and strong,
tested rules for dealing with classified evidence, could well prove
better able to handle the hearings envisioned in your legislation, and
to give the process the legitimacy it needs. Congress has created
numerous courts in the past to sit on cases involving particular topics
or places, even courts in foreign countries.
I would add that the prisoners in Guantanamo Bay also need a
process that gives them advance notice of transfers to other countries
and an opportunity to raise concerns about torture. I know your
legislation is not intended to deal with the special issues raised by
Guantanamo--but that is an important piece of the larger puzzle that
Congress needs to address somewhere.
Third, while your bill requires prisoners taken into custody by the
CIA to be transferred in a timely manner to face justice with due
process--as soon as a rendition order is received from the oversight
court--it doesn't set a time limit within which such an order must be
issued. A limit would be important to prevent the government from
deliberately prolonging CIA detention by, for example, not providing
the court with the information it needs in a timely manner.
Even if the process is conducted in a ``timely'' manner, prisoners
would still spend some period of time in CIA detention. This raises a
number of important legal concerns. At the very least, I would urge you
to require that the International Committee of the Red Cross have
access to all detainees in U.S. custody, including those held by the
CIA. There is simply no logical reason why any prisoner should be
hidden from the ICRC, unless the CIA wants to use interrogation
techniques that are in any case illegal, immoral, and unreliable.
Allowing ICRC access to all detainees would not interfere with any
legitimate intelligence gathering activities, while assuring the world
that the United States is abiding by its values and the law, and
preserving America's ability to demand ICRC access to its own soldiers
and citizens being held in conflicts abroad.
I would also recommend that your bill require the administration to
report on the fate of rendered prisoners in a public way, rather than
in classified form to the Intelligence committees. The clear intent of
the legislation is for rendered detainees to be prosecuted in their
home countries in accordance with international due process standards.
The United States would have no need to keep the fate of these people
secret if it were asking the receiving governments to settle their fate
in an open, transparent process--as you intend.
Finally, Mr. Chairman, I want to commend you for including a
provision in your bill that limits all agencies of the U.S. Government
to the interrogation techniques described in the Army Field Manual on
Intelligence Interrogation.
Ever since the Congress passed the McCain amendment in 2005, the
CIA has reportedly limited itself to those humane techniques. In that
time, it has repeatedly claimed that it was getting good intelligence
from prisoners in its custody.
The Executive order President Bush issued July 20 appears to
prohibit torture and cruel treatment. But the administration has not
released the actual guidance it is giving the CIA. Administration
officials have said that guidance is designed to allow the CIA to
return to at least some aspects of the old ``enhanced'' interrogation
program. The administration clearly believes that the CIA now has the
authority to go beyond the guidelines the U.S. military lives by.
Officials--including Attorney General Alberto Gonzales testifying to
the Senate 2 days ago--have categorically refused to rule out
interrogation techniques like waterboarding that clearly constitute
torture. The Director of National Intelligence, Admiral John McConnell,
even acknowledged on ``Meet the Press'' on Sunday that he would not
want to see American citizens subjected to the techniques the CIA can
now use again. All he could say by way of reassurance was that those
subject to these methods would not suffer ``permanent harm.''
Admiral McConnell seems to be missing an elementary point: If the
U.S. Government does not want American citizens or soldiers to be
subjected to these techniques, then it cannot employ them itself.
Remember: Everyone now agrees that Common Article 3 of the Geneva
Conventions governs all interrogations conducted by all agencies. If
the CIA is allowed to use a particular method under the new Executive
order, that means the U.S. Government considers that method to be
compliant with Common Article 3. And if it's compliant, that means U.S.
enemies can use it against captured Americans in any situation governed
by Common Article 3.
Your legislation fixes this problem in the right way. The United
States Government should not have two different standards of morality
and lawful behavior, depending on which agency is holding a prisoner.
It cannot teach its soldiers in Iraq and Afghanistan that harsh
interrogation techniques are counterproductive and wrong, while telling
its intelligence agencies that the same techniques are productive and
right. And it can't expect the techniques the CIA is using to remain
secret. Eventually, these methods always come to light. And America
will not regain its moral authority unless it can speak with absolute
moral clarity on the issue of torture.
Mr. Chairman, that we are even having this discussion in America is
profoundly sad. How this country treats its enemies ought to be what
distinguishes it from its enemies. The story of how it has actually
done so in the last few years is not one of which we can be proud. But
the full story has not yet been written. And when historians tell it
many years from now, a more hopeful narrative may emerge. It will, I
hope, go like this. That America was hit hard on September 11, 2001. It
tried to react in ways that were honorable and smart, but also made
some terrible mistakes out of fear. But in a relatively short period of
time, its democratic institutions corrected those mistakes, just as
they were designed to do. That is a story of which, on balance, I would
be proud. I'm glad to see that this committee wants to play its part in
writing it.
The Chairman. Thank you very much.
Doctor.
STATEMENT OF DR. PHILIP ZELIKOW, WHITE BURKETT MILLER PROFESSOR
OF HISTORY, UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE, VA
Dr. Zelikow. Chairman Biden, Senator Lugar, members of the
committee, thank you for the opportunity to offer my views on
this important subject.
We are now nearly 6 years into a greatly intensified global
struggle against violent Islamist extremism. In several ways,
we are involved in armed conflicts. But though we are at war,
the struggle is much more than a war and the American military
will not be the main shield of our Republic.
I've had unusual opportunities to consider these issues
from several perspectives: As a lawyer, investigator, and
policymaker. And I'm here today as a private individual, not as
a representative of the administration.
There is a pattern in how our country tends to react to the
trauma of surprising reversals or attack. In 1917-18, 1940 to
1942, or 1950 to 1952, the United States mobilized everything
that was to hand followed by a vast outpouring of spending and
energy, trying whatever it could, making many mistakes, but
also getting some things right. These past episodes have always
been followed by a period when we catch our collective breath,
reflect a little on what we have been doing, and decide how or
whether to make lasting changes in the way we protect our
country. We are in just such a period today. That means a good,
healthy national debate.
I've contributed to the public debate about how to treat
captives. Rather than repeat those remarks, they're attached as
an annex to my statement. As you'll see, I agree with many of
the premises that Chairman Biden announced for this hearing.
Our ideals do matter. They matter, not just for public opinion,
they matter concretely in the quality of operational
collaboration and what must be a coalition effort, to succeed
in this struggle.
Today I want to focus more directly on some of the policy
ideas under consideration by the committee, especially
concerning renditions, and make four basic points.
One, renditions are an indispensable instrument of policy
in order to protect the United States. Two, concerns about
rendition have less to do with the practice itself, than with
arguments about how the captives may be treated at their point
of arrival. If that is the concern, then confront it directly
and substantively. Three, the practice of renditions has
already changed from what it was in 2002 and 2003. It is
continuing to evolve along with many other facets of American
policy. So, I urge the committee to be careful not to overreact
now, to the way you think people may have overreacted then,
years ago. Four, the particular proposed remedy of banning
participation in renditions, except if approved by FISA Court,
could create lasting risks that might outweigh the original
concerns.
Renditions are vital. There are many situations when formal
extradition of deportation of terrorist suspects is not a
viable option. The practice of rendition itself has repeatedly
been upheld in cases, both in the United States and in Europe.
To give you a sense of how this works in practice, I tried
in my statement to give you the concrete hypothetical
illustration of a Yemeni terrorist suspect in Malaysia and the
options people would confront in figuring out what to do with
that person. I won't recapitulate all that in detail here,
except to say that dilemmas like these involve an intricate
weighing of circumstances and risks: The risk to America; the
risk to the person if he is sent to Yemen; appraisals of
opportunities to gather further intelligence about the person's
plans or associates; U.S. assessments of and relationships with
both Malaysia and Yemen; and so on.
So then you have to decide who is best positioned and what
institutions are best positioned to make those complicated
judgments, often under very severe time pressure.
But we should get at the heart of the problem. The practice
of renditions itself is not the main concern. So called
``extraordinary renditions'' appear to be focused, not on
renditions to trial, instead the concern is with renditions for
purposes of interrogation outside the normal legal system with
the expectation that the detainee will be tortured or subjected
to other cruel or inhuman treatment.
So my suggestion, which I elaborate in the statement, if
you're concerned about the way people are treated at
Guantanamo, address that directly. If you're concerned with how
people are treated in Yemen, or how people are treated in Saudi
Arabia, then let's look at that problem. But again, however,
the various obligations must be considered together, including
the obligation to protect the people of the United States.
If Guantanamo is closed down with no replacement under the
Law of Armed Conflict, if practically all the home countries of
captives are regarded as inhumane destinations for a terrorist
suspect, then the default mode for everyone involved--the path
of least resistance, will be to do nothing.
Third, I suggested using oversight. Practices may be
changing. Most, if not all, of the principal allegations of
abusive rendition are several years old and appear to date from
the period of initial mobilization after the 9/11 attacks.
Therefore, to avoid the possibility of overreacting to
practices that may already have changed or be changing, I
suggest Congress might use its oversight powers to look at
specific cases, make a diagnosis, see if lessons have been
learned. The Congress will also find, I think, that some of the
accountable senior officials have changed and it can judge
whether the current office holders are worthy of public trust.
Because I think, actually, a lot of this legislation is,
frankly, a symptom of a breakdown of trust in executive
discretion.
Beginning in 2005, the U.S. Government began
comprehensively reviewing a number of aspects of its treatment
of persons captured in the struggle against violent extremism.
This review occurred for many reasons. And one, as I mentioned
earlier, is that this is not just a problem of public opinion.
It interferes concretely with our coalition warfare against
terrorism around the world. The Congress and the Supreme Court
played important parts in these reevaluations, culminating in
President Bush's statement of September 2006. The
administration made a number of moves, many of which are not
well understood and which are recounted in more detail in the
remarks I put into the statement.
Look, some of you may be satisfied with the
administration's progress so far, some not. My main point is
this. These issues can, and should now be, handled in a genuine
partnership of shared powers between the President and
Congress. They are now working in more of a partnership than
they were. That partnership also extends to foreign
governments.
In 2004, the 9/11 Commission, which I had the honor to
direct, bluntly recommended that the United States turn a
national strategy into a coalition strategy, and in fact, adopt
Geneva Convention Common Article 3 as the floor for treatment
of captives. That is now the law and policy of the United
States.
In September 2006, President Bush pledged that the
administration would, ``work with the international community
to construct a common foundation to defend our Nation and
protect our freedoms.'' The administration and State Department
specifically have been working hard to develop a coalition
approach.
I have noted that the draft legislation also includes a
requirement that all questioning conducted by intelligence
officials should conform with the requirements of the Army
field manual. As some of you can tell from my earlier remarks
on this subject, which I'm not recapitulating in detail today,
I sympathize strongly with the concern about interrogation
practices. But I believe that members may have underestimated
the significance of the President's recent Executive order.
That order not only defines the scope of prohibited conduct
just as strongly as the draft bill, equating cruel and inhuman
treatment to the prohibitions of the 5th, 8th, and 14th
amendments. The Executive order goes beyond the draft
legislation. It adds prohibitions that also conform to
generally recognized international standards as well, that have
come out of the international trials of Yugoslav criminals, for
example.
Properly applied, I believe the Executive order can set
interrogation practices on a sustainable path and does address
concerns about some of the practices that have been alleged in
the media. As, in part because of the new partnership with
Congress, all the members of the intelligence committees know
what practices are going to be allowed under that Executive
order. And there can be a colloquy between the administration
and Members of Congress now, a much healthier colloquy about
whether the dial has been set in the right place.
But the circumstances of the intelligence community and
this program may warrant a bit more flexibility than is needed
or wanted in the Army field manual. In other words, though the
balance may not satisfy everyone, these policies are on a
healthier path. I do support new legislation on Guantanamo. But
on rendition and interrogation, I urge the appropriate
committees to look hard at what is being done and be sure they
still believe there is a systemic problem before they legislate
new systemic solutions.
My final point, my statement now is that the risks of the
cure might outweigh the risks of the problem. There are real
risks of executive abuse. You've heard about those risks
already. In my statement I tried to illuminate the risks of the
other side. And what I did, is I re-ran the circumstances of
the 9/11 plot itself against this new legislation.
For example, in late 1999 and early 2000 we tracked two
members who later participated in the 9/11 attacks to a meeting
with some of their colleagues in Kuala Lumpur, Malaysia. So
what I did is imagine--let's suppose that we had done just the
job the 9/11 Commission wanted the intelligence community to do
about that Kuala Lumpur meeting. They've now done all of our
recommendations. They're doing it just the right way. They've
tracked the people, they've assimilated what they know about
them, they're ready to act. And then what I did in this
hypothetical is, I then ran the requirements of the legislation
against what they would have to do about those people in Kuala
Lumpur, and I go through it point by point. I won't go through
that again now in my oral statement, but I think it's a pretty
intimidating set of hurdles that they would have to confront.
And, my conclusion was then, that you would have a scenario
in which all the problems that the 9/11 Commission identified
having been wondrously and happily solved. New hurdles have
arisen, officials would hesitate about whether they should
strenuously lobby Malaysian officials to detain these
individuals at all. Due efforts would then be made to keep
watching the men before they moved on, but they would move on
with their planning and with their actions.
As I mentioned earlier, there is a balance of risks
involved in calculating how to deal with the problem of
renditions, as with so many other aspects of this global
struggle. Congress and the Executive should shoulder directly
the burden of setting this country's core values and policies
for this difficult struggle. I don't think that you should
respond, essentially, to the breakdown of trust in executive
discretion by creating a whole new set of statutory
requirements and then a whole new court process to overcome
that breakdown of trust and concern about discretion. Instead,
I think it's too early to give up on solving that problem, if
you look hard at how this is already changing in the last year
or two and could change further aided by congressional
oversight.
Thank you.
[The prepared statement of Dr. Zelikow follows:]
Prepared Statement of Philip Zelikow, White Burkett Miller Professor of
History, University of Virginia, Charlottesville, VA
Chairman Biden, Senator Lugar, and members of the committee, thank
you for the opportunity to offer my views in your consideration of this
subject.
We are now nearly 6 years into a greatly intensified, global
struggle against violent Islamist extremism. In several ways we are
involved in armed conflicts. But, though we are at war, this struggle
is much more than a war. And the American military will not be the main
shield of our Republic.
I have had unusual opportunities to consider these issues from
several perspectives, as a lawyer, investigator, and policymaker.
--As a civil rights lawyer in Texas more than 25 years ago, I
represented Vietnamese shrimpers being attacked by domestic
terrorists, the Knights of the Ku Klux Klan. Based on our
successful experience, my colleague in that case--an Alabama
lawyer named Morris Dees--and I later offered advice to
Congress after the bombing in Oklahoma City.
--In the 1990s, while teaching at Harvard, I prepared a set of case
studies, after fieldwork in Belfast and London, on policing in
Northern Ireland.
--In 1997-1998, along with John Deutch and Ash Carter, I coauthored a
study of how to counter a coming danger that we called
``catastrophic terrorism.''
--During the last 6 years I was a member of the President's Foreign
Intelligence Advisory Board, directed the Markle Foundation's
bipartisan work on national security in the information age,
served as the executive director of the 9/11 Commission, and in
2005-2006--as counselor of the State Department--was a deputy
to the Secretary for terrorism, homeland security, and
intelligence policy.
So I've tried to understand these problems from several different
angles. And I am here today as a private individual, not as a
representative of the administration.
There is a pattern in how our country tends to react to the trauma
of surprising reversals or attack. In 1917-18, 1940-42, or 1950-52, the
United States mobilized everything that was to hand, followed by a vast
outpouring of spending and energy, trying whatever it could, making
many mistakes, but also getting some things right.
These past episodes have always been followed by a period when we
catch our collective breath, reflect a little on what we have been
doing, and decide how or whether to make lasting changes in the way we
protect our country. We are in such a period today. That means a good,
healthy national debate.
I have contributed to the public debate about how to treat
captives. Rather than repeat those remarks, they are attached as an
annex to this statement. As readers will see, I agree with many of the
premises of this hearing. Our ideals do matter.
Today I want to focus more directly on some of the policy ideas
under consideration by the committee, especially concerning renditions
and make four basic points:
1. Renditions are an indispensable instrument of policy in
order to protect the United States.
2. Concerns about renditions have less to do with the
practice itself, than with arguments about how the captives may
be treated at their point of arrival. If that is the concern,
then confront it directly and substantively.
3. The practice of renditions has already changed from what it
was in 2002 and 2003. It is continuing to evolve, along with
many other facets of American policy. So be careful not to
overreact now to the way you think people may have overreacted
then.
4. The particular proposed remedy of banning participation in
renditions except if approved by a FISA Court could create
lasting risks that outweigh the original concern.
renditions are vital
There are many situations when formal extradition or deportation of
terrorist suspects is not a viable option. The practice of rendition
itself has repeatedly been upheld in cases both in the United States
and in Europe.\1\
---------------------------------------------------------------------------
\1\ See, e.g., United States v. Alvarez-Machain, 504 U.S. 655
(1992) (abduction from Mexico, without Mexican permission, of Mexican
national involved in torture/murder of a DEA agent); United States v.
Yunis, 924 F.2d 1086 (D.C. Cir. 1991) (rendition of Fawaz Yunis, wanted
for a 1985 hijacking, lured out of Lebanon onto a yacht and then
transported back to the United States). Or, in Europe, Case of Ocalan
v. Turkey, European Court of Human Rights (May 2005) (Turkish abduction
of PKK leader from Kenya), esp. paras 87-90; or Ramirez v. France,
European Commission of Human Rights (June 1996) (French rendition of
``Carlos the Jackal'' from Sudan).
---------------------------------------------------------------------------
Take the case of a Yemeni, living in Malaysia. Let us say that the
United States has gained signals intelligence indicating that this
Yemeni national is involved in planning to attack some nearby American
target, perhaps having taken detailed photographs of the American
Embassies in Singapore and Bangkok--but taking care not to violate
local Malaysian law.
--The activities and protection of a citizen of a foreign country
living in a third country is first, the responsibility of the
country of residence--in this case, Malaysia.
--Second, his activities and protection is the responsibility of the
country of which he has the good or bad fortune to be a
citizen--in this case, Yemen.
The United States must protect Americans and act honorably in their
name. Therefore, if it knows that the person is involved in potential
terrorist activity against America, U.S. officials cannot let this
slide. Since Malaysia has a responsible, sovereign government, the
United States would work with Malaysian officials. If those authorities
are persuaded that the United States concerns deserve action, they may
help.
But Malaysia's ability to act is bounded by its laws, its politics,
and its lack of access to some U.S. intelligence information. Formal
extradition may not be available. Indeed, most countries do not have
established bilateral extradition treaties with each other.
The dilemmas for the United States may thus be real and immediate.
Do nothing? Take the person into American custody even if the case is
not indictable in Federal court?
The Malaysian authorities also may feel uneasy about the situation.
So all concerned may decide that it is time for this Yemeni citizen to
go home. And the Yemeni Government, of course, is entitled to know why.
It may even be asked to help contain the risk of this person going back
to his terrorist work.
Since even many Yemenis cannot reliably predict what will happen to
them in government custody, especially over time, it will be even
harder for Americans and Malaysians to make a reliable guess. Yet, to
the Yemeni resident in Malaysia the United States Government owes the
obligations it owes to any of the billions of human beings in the
world, such as the duty not to send anyone, knowingly, off to be
tortured.
Dilemmas like these involve an intricate weighing of circumstances
and risks: The risk to America; the risk to the person if he is sent to
Yemen; appraisals of opportunities to gather further intelligence about
the person's plans or associates; U.S. assessments of, and
relationships with, both Malaysia and Yemen and so on.
get at the heart of the problem
The practice of renditions itself is not the main concern. So-
called ``extraordinary renditions'' appear to be focused not on
renditions to trial. Instead the concern is with renditions for
purposes of interrogation outside the normal legal system, with the
expectation that the detainee will be tortured or subjected to other
cruel or inhuman treatment.
So, is the real concern with renditions that the captive will be
detained at Guantanamo as an enemy combatant, or questioned inhumanely
by U.S. officials? Then the Congress could again take on the policy
issue of how or whether it wants Executive officials to detain and
question captives under the international law of armed conflict. Nor is
it really an answer to just set up new rights of habeas access to the
Federal courts.\2\
---------------------------------------------------------------------------
\2\ Bills now being proposed would also provide much broader habeas
corpus rights for any detainees in Guantanamo. This remedy is not well
connected to the fundamental problem. On this point I cannot add much
to the observations of Benjamin Wittes, ``Punt Return,'' The New
Republic Online, July 23, 2007.
---------------------------------------------------------------------------
Or, is the real concern that Yemen or some other country will
mistreat its own citizens if they are involuntarily repatriated? This
then becomes part of a larger set of issues, about the responsibility
of the United States for how other countries treat their citizens, on
their territory.
The United States has moral and legal responsibility if it has
arranged or participated in the involuntary repatriation of a person
back to his home country. Therefore, as Secretary Rice explained
publicly in December 2005: ``In conducting such renditions, it is the
policy of the United States, and I presume of any other democracies who
use this procedure, to comply with its laws and comply with its treaty
obligations, including those under the Convention Against Torture. . .
. The United States has not transported anyone, and will not transport
anyone, to a country when we believe he will be tortured. Where
appropriate, the United States seeks assurances that transferred
persons will not be tortured.''
Again, however, the various obligations must be considered
together, including the obligation to protect the people of the United
States. If Guantanamo is closed down with no replacement under the law
of armed conflict, if practically all the home countries of captives
are regarded as inhumane destinations for a terrorist suspect, then the
default mode for everyone involved--the path of least resistance--will
be to do nothing.
use oversight . . . practices may be changing
Most, if not all, of the principal allegations of abuse of
rendition are several years old, and appear to date from the period of
initial mobilization after the 9/11 attacks. Therefore, to avoid the
possibility of overreacting to practices that may already have changed,
or be changing, Congress might use its oversight powers to review
specific cases. Make a diagnosis. See if lessons have been learned. The
Congress will also find that some of the accountable senior officials
have changed and it can judge whether the current officeholders are
worthy of public trust.
I was recently impressed by the British Parliament's own
investigation of its government's involvement in renditions. This was
an oversight report of the Intelligence and Security Committee, which
in turn elicited an appropriate government response. Although the
investigators sheltered themselves a bit too cozily from the hard
dilemmas I have outlined above, they did display sensible
professionalism in sifting myth from fact, and there is quite a bit of
myth surrounding allegations about ``extraordinary rendition.'' \3\
---------------------------------------------------------------------------
\3\ Both the committee report and the government's response can be
found at www.cabinetoffice.gov.uk/intelligence.
---------------------------------------------------------------------------
Beginning in 2005, the U.S. Government began comprehensively
reviewing a number of aspects of its treatment of persons captured in
the struggle against violent Islamist extremism. This review occurred
for many reasons. One was that increasing international concern is not
just a problem of public opinion; such concern creates concrete
obstacles to effective international operations.
The Congress and the Supreme Court also played important parts in
these reevaluations. Culminating in President Bush's statement of
September 2006 the administration made a number of moves, which are
recounted in more detail in the remarks I have appended to this
statement.
Some of you may be satisfied with the administration's progress so
far; some not. My main point is this: These issues can and should now
be handled in a genuine partnership of shared powers between the
President and Congress. That partnership also extends to foreign
governments.
In 2004 the 9/11 Commission bluntly recommended that the United
States turn ``a national strategy into a coalition strategy,'' adding
that ``coalition warfare also requires coalition policies on what to do
with enemy captives.'' \4\ That is one reason why, to make an armed
conflict approach sustainable, the Commission was the first major
public report to endorse adoption of Geneva Convention Common Article 3
as a common foundation.
---------------------------------------------------------------------------
\4\ The 9/11 Commission Report (New York: Norton, 2004), p. 379.
---------------------------------------------------------------------------
In September 2006 President Bush pledged that the administration
would ``work with the international community to construct a common
foundation to defend our Nation and protect our freedoms.'' The
administration, and the State Department specifically, has been working
hard to develop a coalition approach. As a result of meetings in many
countries over the last year and a half, there is growing recognition
of how difficult the challenge is and of the need for creative,
practical solutions to sustain the rule of law in what some European
officials concede is the ``grey area'' between established procedures
and approaches that fall outside of recognized legal principles.\5\
---------------------------------------------------------------------------
\5\ For a description of these efforts and the basic approach, see
the testimony of the State Department's Legal Adviser, John Bellinger,
to the Helsinki Commission (June 21, 2007).
---------------------------------------------------------------------------
I have noted that the draft legislation also includes a requirement
that all questioning conducted by intelligence officials would conform
with the requirements of the Army Field Manual. As you can tell from my
earlier remarks on this subject, I sympathize strongly with the concern
about interrogation practices. But I believe that members may have
underestimated the significance of the President's recent Executive
order.
That order not only defines the scope of prohibited conduct just as
strongly as the draft bill, equating cruel and inhuman treatment to the
prohibitions of the 5th, 8th, and 14th amendments; the EO goes beyond
the draft legislation. It adds prohibitions that also conform to
generally recognized international standards as well. Properly applied,
I believe the EO can set interrogation practices on a sustainable path,
addressing concerns about some of the practices that have been alleged
in the media. But the circumstances of the intelligence community and
this program may warrant a bit more flexibility than is needed or
wanted in the Army Field Manual.
In other words, though the balance may not satisfy everyone, these
policies are on a healthier path. I do support new legislation on
Guantanamo. But on rendition and interrogation, I urge the appropriate
committees to look hard at what is being done and be sure they believe
there is still a systemic problem before legislating a new, systemic
solution.
risks of a cure may outweigh the problem
There are real risks of Executive abuse. You have heard about those
risks already. So I will say more about the risks on the other side,
the risk of hobbling vital action. As an illustration we can use part
of the 9/11 plot.
In late 1999 the NSA analyzed communications associated with
individuals who later participated in the 9/11 attacks--especially
Khalid al-Mihdhar and Nawaf al-Hazmi. Intelligence officials correctly
concluded these two people were part of an operational cadre. They were
tracked to Kuala Lumpur, Malaysia. The United States did not know it,
but those two were joined there by two other members of the cell
involved in an early version of the ``planes operation.'' Those four
men also met with and were aided by a top Southeast Asian operative
named Hambali, who set them up at the home of another important
terrorist, Yazid Sufaat.
Supposing that it had some of the management practices, tools, and
procedures now in place, the U.S. Government might have done more than
just track Mihdhar and Hazmi to Kuala Lumpur. It might have more fully
assimilated what its agencies knew about these two men and prepared
rapidly to act on that information.
Officials then would have the following options, with very little
time to decide what to do:
--Leave the two men alone and try to keep tracking them. All these
individuals soon began traveling in different directions. The
United States did not know it, but Mihdhar and Hazmi were going
to Bangkok, where the trail might be lost (as it was in January
2000).
--Ask Malaysian authorities to detain them. Since the U.S. officials
had key information about Mihdhar and Hazmi, the United States
probably needed to participate directly in the detention,
questioning, and rapid exploitation of captured materials,
perhaps leading them to Hambali, Sufaat, and the others.
--But the United States probably would not have captured hard
evidence about the planned ``planes operation.'' So any further
decisions would be based on intelligence about evident planning
for some operation, still unclear.
--Even if the Malaysian security services had obliged with some
temporary arrest or detention, the Malaysians might well feel
no wish to hold Mihdhar and Hazmi, or any other individuals who
might have been detained in this operation. None, besides
Sufaat, were Malaysian. They had committed no evident crimes in
Malaysia. They were not planning any attacks in Malaysia.
Malaysia was then ruled by Prime Minister Mahathir Mohamed, who
was not very receptive to U.S. concerns about Islamist
extremism and would have had little appetite for any public
proceedings, even if the grounds had been firmer. And, anyway,
little if any of the key American evidence could be used in a
public court.
--So the United States could then either release the men or, under
current options, render them into American custody with a
possible end destination at Guantanamo, with all that implies.
--If that option seemed unappealing, the best alternative to
indefinite and problematical American custody would be a
rendition to send the men back to their home countries. For
Mihdhar and Hazmi that would be Saudi Arabia (though Mihdhar
also retained strong ties to Yemen).
Under the draft proposed legislation that I have reviewed, called
the ``National Security with Justice Act of 2007,'' the U.S. Government
officials would then face the following hurdles, perhaps with the clock
ticking on Malaysian willingness to hold these men for even another
hour:
--Overcome a statutory presumption firmly against rendition, or even
participating in such a rendition;
--Prepare an application to a Federal judge in Washington, DC, and
first get it reviewed by the Attorney General or his deputy;
--Affirm in writing that each individual is ``an international
terrorist'';
--Pledge that the Saudi Government will not subject either man to
cruel or inhuman treatment;
--Pledge that the Saudi Government will initiate timely legal
proceedings against the men that comport with fundamental due
process;
--State in writing why Malaysian courts (or its politics) are not
likely to succeed in handling these men adequately (presumably
getting State Department clearance for the depiction of Prime
Minister Mahathir's government);
--Make sure the Federal judge can consult all the State Department
and U.N. reports about Saudi Arabia that the law expressly
requires the judge to check;
--Hope that the Federal judge will make a positive finding of
``substantial likelihood'' that Saudi Arabia will not subject
either man to cruel or inhuman treatment;
--Promise that the State Department will regularly monitor Saudi
treatment of both these men for as many months or years as they
may be confined, reporting on their status to the Congress
every 6 months; and
--Persuade his agency heads to assume the risk of the civil suit
provided for by law if the rendition violated the above rules,
with the litigant entitled to sue for punitive damages and
attorney's fees.
Thus a scenario in which, all the problems that the 9/11 Commission
identified having been wondrously and happily solved, new hurdles have
arisen. Officials hesitate about whether they should strenuously lobby
Malaysian officials to detain these individuals at all. Due efforts
would be made to keep watching the men before they moved on. And they
would move on with their planning and with their actions.
As mentioned earlier, there is a balance of risks involved in
calculating how to deal with the problem of renditions, as with so many
other aspects of this global struggle. Congress and the Executive
should shoulder, directly, the burden of setting this country's core
values and policies for this difficult struggle.
ANNEX
``Legal Policy for a Twilight War'' by Philip Zelikow, White Burkett
Miller Professor of History, University of Virginia--Annual Lecture,
Houston Journal of International Law, April 26, 2007
After the 9/11 attack on the United States, the U.S. Government
adopted a different approach to defending the country against attack
from the al-Qaeda organization, its affiliates, and its allies. The new
approach was fundamentally sound. Yet it was developed and implemented
in a flawed manner, and these problems were then greatly compounded by
the way law and lawyers were used to rationalize the policy and frame
the debate.
In 2006 the policy approach was greatly revised, though the
character and significance of the changes are still largely
unrecognized. A difficult, healthy transition is now well under way and
will need to continue for some time to come. As part of that
transition, the United States Government, and those who follow its work
should deeply reflect upon and reconsider the role that law and lawyers
have played in framing the policy choices. I come at these issues as
both a lawyer and former policymaker.
Before 9/11 our conceptual framework was mainly the framework of
traditional American criminal justice. Bin Ladin was indicted in the
Southern District of New York. Naturally, neither the FBI nor the U.S.
Marshals service could apprehend him or his principal associates.
Therefore the United States Government asked foreign governments to
help and also secretly hired foreign friends to try to capture him,
using deadly force only if necessary. There were brief exceptions to
this approach in 1998, but the government had lapsed back into this
default position by the middle of 1999. The story is recounted in the
report of the 9/11 Commission.
The 9/11 attack was at least the third major intercontinental
operation that al-Qaeda had carried out against the United States. Al-
Qaeda's leaders had asserted for years that their organization and its
allies were at war with the United States. And, after the 9/11 attack,
the United States Government finally, completely agreed with them. The
United States then began engaging in an armed conflict with al-Qaeda,
its affiliates, and its allies. That worldwide conflict continues
today.
An enormous debate also began in this country and around the world
about the appropriate way to conduct such a conflict. In this country,
as in every other developed country, the debate has been dominated by
lawyers arguing with other lawyers. Their debate is about what the
law--U.S. law or international law--allows and does not allow.
i. how lawyers found themselves at the center of the policy debate
The policy choices in the conduct of this armed conflict were
novel. Put aside the rules governing combat operations in Afghanistan
itself in 2001-2002. In other operations the administration had to set
policies for lethal engagement of enemy members of al-Qaeda, its
affiliates, and its allies; for the transfer of captives to preferred
jurisdictions; for the questioning of captives; and for their longer
term detention. For many of these choices there was no established body
of experience or precedents.
For the CIA and DOD in particular, some of these activities
involved developing entirely new organizational capacities that did not
exist, or no longer existed, in their institutions. Any seasoned
manager or student of organizations knows how challenging it can be for
an organization to develop new capacities, with all the requirements to
define tasks, guide implementation, build physical capacities, and
recruit/train/manage people to perform these new jobs.
Operating under broad legal parameters set shortly after the 9/11
attacks, a series of policy choices were made, especially in 2002 and
2003, about how to conduct the armed conflict. Especially in the case
of CIA, it appears from publicly available sources that, responding to
some informal guidance from the White House, the Agency designed,
developed, and implemented various techniques and capabilities with
little substantive policy analysis or interagency consideration.
Lawyers from other agencies and departments, as well as the White
House, were apparently assembled to consider and approve the legality
of the proposed methods as, or after, the critical policy choices were
being or had already been made. The legal defense then became the
public face of the policies. The debate became framed as a legal
debate. Legal opinions became policy guides. Opinions to sustain the
CIA program had an indirect effect on the guidelines developed for DOD
activities as well, since DOD did not wish to develop positions
inconsistent with those already in place.
Able bureaucratic players in the Bush administration were able to
use legal opinions to provide formal policy cover for Agency operations
and deal with internal dissent and unease (``the Attorney General has
said it is legal''). Above all, using the legal defenses as the public
face of the issue moved the terrain of debate to the President's legal
powers in wartime--strong ground indeed. Also interesting is that
opponents of the policies found this battleground congenial too. Habits
of thinking in legal terms were reinforced. Constitutional and civil
liberties lawyers eagerly stepped forward, and they could do so without
having to soil their hands by confronting the concrete policy
necessities at hand. Thus the public debate was decisively framed--and
deformed.
ii. reframing the debate: from ``can'' to ``should''
In other words, instead of asking: What can we do?, start by
asking: What should we do? Just this difference, changing ``can or
cannot'' to ``should or should not'' changes the framework of debate,
changes the evidence and reasoning you use, and changes the role that
lawyers should play in the policy process.
By ``legal policy,'' I mean those policies for the enforcement of
international, criminal, or civil law and the policies for the
effective administration of justice.
Lawyers are not generally trained in legal policy. Even some of the
finest lawyers cannot be considered expert in it. Confronted with a
novel problem, the habit of thought developed in law schools, and
practice, is to spot the legal issue and determine an authoritative, or
at least arguable, position on what the law requires. It is important
for lawyers, and those who use them, to know the strengths and
limitations of these skills. Two examples:
First, moral reasoning. Moral reasoning, which most people think
has something to do with ``right and wrong,'' is not taught in law
school. The relationship of law to morality is an interesting question,
wonderfully explored by thinkers as diverse as Edmond Cahn and James Q.
Wilson. But, for better or worse, moral reasoning is not generally
taught in law school. Nor is it generally taught--by the way--in
schools of public policy. ``Ethics'' is taught, but that is actually a
different set of ideas, though the two subjects overlap.
Second, policing and public order. Generally law schools do not
teach about policing, or how societies go about preserving public
order. Of course you will find courses on criminal law and criminal
procedure, but that is quite different. In fact, in our most elite
universities, policing is vaguely regarded as left to vocational
schools. To be even blunter, it's perceived as a blue-collar subject.
There are rare exceptions. And there are rare policemen and
policewomen, or court administrators or corrections officials who can
step up to engage in the wider issues of public policy that frame what
they do. But I've seen firsthand--in places like Iraq and Afghanistan--
just how difficult it has been for this country to find experts and
help others in tackling the basic policy issues of policing and public
order that are so evident in so much of the world.
So, as the United States Government developed a new approach to
combating Islamist terrorists around the world, many of the formative
deliberations were defaulted to being conducted, at the subcabinet
level and below, by lawyers--mainly constitutional lawyers. It was the
hour of experts like John Yoo, a brilliant scholar who has recently
published an illustrative memoir of these experiences.
And these lawyers tended to look for the legal answer. And so the
problem tended to be framed less as a detailed analysis of what should
be done, and more as a problem of what could be done.
And the lawyers naturally look to legal sources to find the
answers. Then they construct whatever answers they can from the
available legal sources and pronounce it as a legal opinion.
The worldwide conduct of armed conflict and other actions against
al-Qaeda, its affiliates, and its allies presents an exceptionally
complex and uncertain set of rules. There are arguments over the scope
and reach of international law and the meaning of the relevant
international legal concepts even if they do apply. There are arguments
over the boundaries between international law, military law, and
ordinary domestic (``municipal'' is the technical term) laws. And the
arguments over these boundaries set off various theological disputes
that have political resonance in the United States and other countries.
So by applying legal interpretation to this set of issues, instead
of legal policymaking, we do so in an area where the legal sources are
few and fragmentary, uncertain and contested. The arguments immediately
become polarized, because they invoke clashing philosophies of
international and constitutional law.
To the public at large, the arguments quickly become technical. And
they are therefore coarsened into: Are you for civil liberties? Are you
for fighting terrorism? And the polarization of ``liberty versus
security'' is one of the most vicious byproducts of the debate. This
can be politically useful, but it is bad policy.
The direct results were indeed simple and bipolar. For the
administration, in such a murky and contested area of law, it was easy
to make plausible arguments that a great many things could be done.
Indeed the administration feared it would set limiting legal precedents
to take any other view as a matter of law.
For the enemies of the administration, it was obvious that they
should argue established legal protections were being trampled. And if
one takes the view that the original pre-9/11 paradigm--criminal
justice plus diplomacy--remains in force, then everything needs to be
done in accordance with established precedents, Article III courts, and
the Bill of Rights.
iii. a legal policy perspective: should we treat this as an armed
conflict?
The first stage after 9/11 was the transition of the core paradigm
from criminal justice to the paradigm of armed conflict. Viewed from a
policy perspective, that transition needs to be defended as something
we should do, and continue doing, not just as something we can do, and
are legally able to continue doing. From this same policy perspective,
it would be wise to achieve the essential assent of the Congress and
key allies that it was--and is--now necessary to deal with this problem
as an armed conflict, and then work with relevant partners to develop
effective, common rules of engagement.
Why should we treat this struggle as an armed conflict?
--The criminal justice framework has been developed for use against a
finite group with a relatively small number of individuals who
are within a given jurisdiction. With al-Qaeda, its affiliates,
and its allies the United States confronted large,
transnational substate groups that had a partnership with at
least one former regime (Taliban Afghanistan). These groups
still prefer to operate in areas where nominal state
sovereignty is ineffective or nonexistent.
--There are special problems of scale. The problem is well beyond the
scale we would traditionally associate with a criminal
conspiracy, even with the kind of terrorist groups that we had
become used to dealing with in the 1980s, which tended to be
associated more with state sponsors of terrorism.
--The threat is also qualitatively different. Societies tolerate
certain risks and limitations when they deal with more ordinary
crime. But now the United States was confronting groups with
the demonstrated capacity to carry out acts that can kill
thousands of Americans on a beautiful fall morning and inflict
at least tens of billions of dollars worth of prompt, direct
damage to the American economy just within the first hour. That
level of risk challenges the usual assumptions in fashioning
legal policy.
--It is harder to apprehend suspects. The problem with al-Qaida in
Afghanistan was obvious, but other, similar challenges exist
today. In some cases local governments cannot or will not
arrest enemies planning to attack the United States or its
friends. In some cases the local governments may wish to help,
but such arrests, or judicial extradition, is beyond their
capacity. The governments involved will often concede their
incapacity--in private.
--Then there are problems in gathering evidence. Some of the pre-9/11
indictments were triumphs of investigation under extremely
adverse circumstances. But in many circumstances, it will be
hard to overcome those limits or be able to find the resources
for the fantastically labor-intensive effort that's required to
construct the criminal case from so many scattered fragments,
when dealing with large numbers of individuals involved in many
different kinds of violent acts.
--And those evidentiary investigations were all after the fact. Often
they were triumphs of forensic reconstruction. But policymakers
aren't paid to wait for the bodies and debris.
There were and are compelling reasons to sustain the armed conflict
approach, complemented by respect for local laws and responsible
sovereignty.
It is therefore striking and regrettable that the United States has
not persuaded most states, including many of our allies, to agree that
a policy of armed conflict is appropriate. This is partly their fault,
partly ours.
--Many governments, including practically all of Western Europe, have
never accepted any change from the pre-9/11 criminal justice/
diplomacy approach. Many of their leading politicians and
lawyers are fundamentally pacifist and believe that armed
conflict is rarely, if ever, a solution to a problem--and
certainly not if it is proposed by Americans.
--Some of these same governments feel they know the problem well, yet
they have not actually been attacked or threatened on the scale
suffered by the United States. And, while they still assess the
risk as being more ordinary, they also lack the capabilities to
join very effectively in more forceful or distasteful measures.
So they turn such necessities into virtue.
And the problem is our fault too. It is tempting for some local
governments to let the Americans do the distasteful things that protect
their people, too. Then these free riders can criticize and distance
themselves as they wish. But it is unwise for America to play along
with that game. When Americans design processes that are exclusively
American--``our show''--because we do not want foreign intrusion, we
contradict our argument that this is a global struggle waged in common
with others and we encourage free riders.
To build an appropriate coaliton, at home and abroad, a leading
government needs to do four things:
(1) Accept the need for a real partnership where the other
side gets to have some say and offer a process for policy
cooperation--not just tactical help on the case du jour.
(2) Get out and make the policy case--not just a legal
argument--for why a fundamentally different approach is needed.
(3) Develop an interpretation of the new approach that, with
work, can plausibly be sustained in the partner's politics. In
other words, if they are receptive to the basic policy
argument, develop a design for implementing it that they can
defend.
(4) If they want to help, identify tasks that they can do,
with or without help, that commit them to the common
enterprise.
Despite many, many bilateral relationships and contacts, usually to
solve a tactical problem of the moment, the United States Government
did not begin such a systematic effort to build a coalition for this
armed conflict against Islamist terrorism until 2005. Legal policy
development is part of such an effort because, in running a
multinational enterprise, policymakers need to ask their lawyers to
develop a legal foundation that can work in foreign markets.
The obvious counterargument, of course, is that the prospective
partners will offer aid so limpid and legal policies so unrealistic
that it is worse than useless to lash up with them. To this the answers
are also apparent:
--Set the right terms for given partners.
--It will help that you made your policy case and sought a coalition,
even if you fail. And the effort will be remembered if the
prospective partner changes their views--reevaluating the risk
of attack or if other circumstances change.
--Sliding into habits of growing noncooperation and alienation is not
just a problem of world opinion. It will eventually interfere--
and interfere very concretely--with the conduct of worldwide
operations.
So far I have focused on the nature of the conflict itself. And, as
President Bush says, it is a war. This is not a metaphorical point.
Though the expression ``armed conflict'' is technically more precise,
the United States is engaged in war against al-Qaeda, its affiliates,
and allies in at least four ways.
--A war in Afghanistan. That partly involves an enemy that is a
transnational enemy, not simply a participant in an internal
Afghan conflict.
--A war in Iraq. The war going on in Iraq is mainly internal. But it
also has a transnational quality because transnational
combatants and transnational organizations are combatants in
that war. That fight, layered on the various internal
struggles, is another reason why U.S. operations should be
governed under international law and policies for armed
conflict.
--Occasional operations to target terrorists in effectively
ungoverned areas of the world where there is complete state
failure or effective state failure. If terrorist organizations
are actively planning violent attacks against Americans in
places that are effectively ungoverned, the United States then
has to have some kind of way of dealing with those
organizations, which are at war with the United States.
--Advising and partnering with local governments in their military
and paramilitary operations against Islamist terrorist
organizations.
``War'' is not a misnomer. But it is insufficient. The struggle
includes armed conflict but it is more than an armed conflict. It is
not just a war.
Armed conflict is one aspect, and not even the most important
aspect, of a wider struggle to defeat violent Islamist extremism and
help moderate Arab and Muslim governments adapt peacefully to the
modern world. And using ``war'' as the umbrella label signals to people
that the U.S. Government doesn't ``get'' that fact. (Although I believe
President Bush actually does get it.)
iv. a legal policy perspective: questioning captives
The most important policy choices are guidelines on the
circumstances for killing people; guidelines on how and when to
transfer captives to different jurisdictions; guidelines on how to
question captives; and guidelines on whether and how to detain them--
and for how long. In all these matters the guidelines extend to cover
the character of cooperation with local partners who may help us with
all these tasks.
These are all large subjects. I'll focus on just one, which is the
most important: How we question captives.
Beliefs in how the United States questions captives colors
discussion of every other aspect of the conduct of operations. For
example, the controversy over transferring captives--the quite
defensible policy of renditions--is fired by beliefs about how these
people will be questioned when they arrive at their destination.
The administration has disclosed that, in 2002, the United States
began making a series of important decisions about how it would
question captives. In essence, the United States made careful,
deliberate choices to place extreme physical pressure on captives, with
accompanying psychological effects. The limits of those practices were
set at the limits of Federal criminal prohibitions. The international
legal strictures were interpreted so that they would not add any
constraints beyond the chosen reading of American law. In other words,
the policy guidelines devolved into legal guidelines, which were to do
everything you can, so long as it is not punishable as a crime under
American law.
Brilliant lawyers worked hard on how they could then construe the
limits of vague, untested laws. They were operating so close to the
frontiers of our law that, within only a couple of years, the
Department of Justice eventually felt obliged to offer a second legal
opinion, rewriting their original views of the subject. The policy
results are imaginable and will someday become more fully known.
My point, though, is not to debate the delineation of the legal
frontier. That focus obscures the core of the issue. The core of the
issue, for legal policy, is this: What is moral--not, what is legal?
What is cost-beneficial?
A. The moral question
The moral question is subjective, of course. It is closely related
to another question: What standard of civilized behavior should the
United States exemplify, in a fight to preserve civilization against
barbarism?
My own view is that the cool, carefully considered, methodical,
prolonged, and repeated subjection of captives to physical torment, and
the accompanying psychological terror, is immoral. I offer no opinion
as to whether such conduct is a Federal crime; merely that it is
immoral.
My moral standards are entitled to no special regard. My argument
is not that others should adopt my morality. It is that the responsible
policy officials should explicitly, thoughtfully, employ moral
reasoning of their own. And, further, my argument is that the
substitution of detailed legal formulations for detailed moral ones is
a deflection of responsibility. Such deflections, often unconscious,
are too common in our modern age.
The quick moral justification is that a greater good is being
served--saving more lives. Three initial cautions are in order, before
turning to this argument on its merits.
--In most moral lexicons, there is some absolute core of behavior
that is improper, whatever the policy gain.
--For that conduct which is morally problematical, but justifiable by
necessity, the burden of proof may be high. Consider that the
enemies we are fighting have used, even celebrated, the most
barbaric and nihilistic tactics of violence ever employed by
any terrorist organization in history. To the civilized world,
this gives our Nation moral ground about as high as one could
have. The policy case would need to be compelling indeed to
persuade our officials that they should slide and stumble their
way down into the valley.
--These dilemmas are not new in American history. There is a long
history of experience with questioning captives, both in law
enforcement and in several recent American wars. In World War
II, for example, the United States had a special program for
high-value captives; the British had a comparable program. The
threats were very great; the fate of thousands of lives could
hang in the balance in many ways and on many issues (from
antisubmarine warfare to
A-bomb research to campaign plans, etc.). There was much
trickery and deception. But, as far as I know, neither
government found it necessary to use methods analogous to those
our government has more recently chosen.
Some of these periods, like World War II, were hard and degrading.
The moral climate was not quaint. Horrifying methods were authorized to
win the war. But men like Henry Stimson or George Marshall--or Winston
Churchill--did not rely on lawyers to tell them what was right and
wrong. It is difficult to imagine such men recommending analogous
interrogation techniques for President Roosevelt, much less doing the
clever work of developing and designing them.
B. Analyzing Cost-Effectiveness
Good intelligence can be gained by physically tormenting captives.
Some critics argue that physical coercion is always worthless and
elicits garbage. This goes too far. Various experiences have shown that
these methods can have value in breaking captives, and in doing it more
quickly.
But the issue of how to obtain intelligence from questioning
captives is a first-class intelligence collection problem. In every
sense, it deserves the same professional attention that the United
States devotes to its most important and powerful collection systems--
like those we use for signals and imagery.
A revealing study of the state of scientific knowledge on ways to
elicit information from captives, euphemistically termed ``educing,''
was recently prepared by a panel of the Intelligence Science Board. It
is unclassified and available on the web at http://www.fas.org/irp/dni/
educing.pdf. The Israelis and the British have considerable recent
experience with all the pros and cons, much of it a process of painful
trial and error. My own 1994 case study of ``Policing Northern
Ireland'' is available from the case program at Harvard University's
Kennedy School of Government. There are many other sources.
It is not evident that those who developed such methods, mainly at
the CIA, drew on the available evidence and applied adequate
professional analysis to consider it. From the evidence available in
the unclassified literature, in 2002 the CIA had little organizational
capability or experience in the interrogation of hostile captives. The
FBI and other law enforcement agencies had much more relevant
experience. The Department of Defense had some.
Everyone knows the scenario of the imminent terrorist operation
that can be averted with desperately tough methods. But the ``ticking
time-bomb'' scenario is mainly the invention of scriptwriters.
Intelligence is usually more of a patiently assembled mosaic, where
many pieces are usually missing, and leads are pursued to find more
pieces. And even broken captives can reveal much, while hiding a
little.
The administration cites examples of people who have been caught or
operations that may have been stopped. It would be useful to have a
professional, objective analysis of such successes in order to
determine and illustrate the contributions of various forms of
intelligence.
In such an analysis, the elementary question would not be: Did you
get information that proved useful? Instead it would be: Did you get
information that could have been usefully gained only from these
methods?
--This question is especially apt because the United States has been
employing other sets of methods, under different rules, against
extremely dangerous and hardened captives in places like Iraq.
So there are many fruitful bases for comparison and learning.
--It is also apt because--contrary to much public understanding--a
special intelligence program can actually derive its main added
value from the readiness to devote a great deal of
individualized time and expert attention to a high-value
captive--not from coercing him.
No institution would benefit more from such an objective appraisal
than the CIA itself. A reputation for relying on physical coercion can
have some benefits, of course. But, over the long run, it might be
better for the institution if CIA was regarded as special for its
willingness to apply patient, labor-intensive expertise, rather than a
(largely false) reputation of having the opposite preference.
Finally, once the gain from coercive techniques is better and more
professionally understood, there is still the next step in the policy
analysis, of balancing these gains against the moral stain and the
political cost of relying, or appearing to rely, on physical torment.
All these suggestions can be criticized as a time-consuming,
academic effort for which there was no time during the threatening days
of 2002 and beyond. Yet, if the problem had been properly framed, the
analytical effort suggested here could have been done quite rapidly, in
days or weeks. And there were months and years to deepen understanding.
To get some perspective, also reflect a moment on the effort private
firms will devote to the analysis of far less consequential matters,
from acquiring a company to building a refinery.
My hypothesis is that the problem was not properly framed, and that
lawyerly interpretation was often substituted for thorough policy
analysis at the critical and formative subcabinet and expert level. The
result produced a situation in which cabinet principals, and the
President, were not well served--even if at the time they thought they
were getting what they wanted in those very anxious days. In time,
perhaps, more information will allow a firmer judgment on whether my
hypothesis is correct.
v. the transition of the american approach during 2006
This process of transition was spurred on by congressional action,
especially the role of John McCain, and by the Supreme Court's decision
last year. But the transition was already well underway in 2005 and all
the main options had been fully developed before the Supreme Court
ruled.
The United States Government has made a comprehensive adjustment in
its approach to the conduct of the armed conflict and associated
operations against violent Islamist extremist groups such as al-Qaeda.
The public debate is still dominated by the lawyers, arguing over
the details of the legislation passed last year. But it is important to
recognize all the elements of the policy change embedded in and
surrounding President Bush's more narrowly focused September 2006
address. I'll list just nine of the elements in this new paradigm.
1. The decision that we need a sustainable policy for the long haul
built on partnership: Domestically with the Congress; internationally
with allies and partners.
2. A new and public Army field manual and DOD directive providing
baseline policies for the detention and treatment of captured
terrorists.
3. A new approach to military commissions, already underway before
the Supreme Court's decision and then informed by it as well.
4. Employing those military commissions for major war criminals and
al-Qaeda's leaders, not Osama's driver. These commissions will finally
bring the 9/11 conspirators to justice and, I hope, usher in a process
where America will be reminded what the struggle is really about.
5. The decision announced in the East Room of the White House that
America does intend to close Guantanamo. The glide path is necessarily
lengthy and difficult, working on problems involving 33 different
countries, many of whom don't want their people back. There are still
decisions to be made about how to replace and improve the Guantanamo
detention system.
6. The vital decision to disclose and explain a particular CIA
interrogation program, implicit in the decision to bring the 9/11
conspirators to justice (and one reason that decision was so difficult
for the administration).
7. The decision to transition such a special interrogation program
so that it has different capabilities, different goals, and different
methods. Guidelines for future treatment of such captives will be
developed in consultation with Congress so that the Executive can
sustain an important intelligence collection program for the future.
8. Putting the program in a more durable legal framework. Such a
framework reiterates America's commitment against torture, but also
accepts, as a minimum standard, that America will adhere to Common
Article III of the Geneva Conventions.
--Incidentally, the legislation passed in 2006 did not reinterpret
the meaning of the terms in Article III. Congress and the
United States, do not have the authority to reinterpret such
international treaty terms unilaterally. The legislation did
clarify the relation between those binding treaty provisions
and the scope of Federal criminal liability for violating them,
specified in Title 18 of the United States Code.
9. An offer to foreign governments, telling them that the United
States Government has listened to their concerns and challenging them
to work with us on what President Bush called ``a common foundation to
protect our nations and our freedoms.''
The work of now building a more viable coalition, at home and
abroad, is well begun. Foreign governments are now quietly wrestling
with hard questions they had hitherto avoided, and in turn posing hard
questions to American officials about the scope and character of their
policies.
This process is healthy. With this framework, and the predictable
policy and political deliberations that are already unfolding, the
United States has an excellent opportunity to develop a durable and
effective legal policy approach for worldwide operations against
Islamist terrorist groups. To keep the pendulum from swinging too hard
back and forth, America's leaders need to strike the right policy
balance, avoiding an unconscious slide back toward the magnetic poles
of absolutist legal propositions.
The Chairman. Thank you very much.
Doctor.
STATEMENT OF DR. DANIEL BYMAN, DIRECTOR, CENTER FOR PEACE AND
SECURITY STUDIES, EDMUND A. WALSH SCHOOL OF FOREIGN SERVICE,
GEORGETOWN UNIVERSITY, WASHINGTON, DC
Dr. Byman. Mr. Chairman, Senator Lugar, members of the
committee, thank you for allowing me to testify before you
today.
Renditions are a vital counterterrorism tool, so vital that
they must be used sparingly so that they can remain an
effective part of the U.S. counterterrorism arsenal. Rather
than stop renditions altogether, policymakers should increase
the programs transparency, strengthen oversight efforts, and
embed within the process procedures that ensure more accord
with the rule of law.
For counterterrorism purposes, renditions are attractive
for several reasons. Most important, they are often the only
option for interrogating a suspect and bringing him to justice,
when extradition is not politically or legally possible. In
some countries of the world the formal court system is not a
true alternative because the judges and those who would try
suspects are sympathetic to terrorists, or because they are
vulnerable to intimidation.
When Pakistan allowed Mir Amal Kanzi--who murdered two CIA
employees in Virginia in 1993, to be sent to the United
States--several cities in Pakistan saw demonstrations. That was
1993 when the opinion of the United States in Pakistan was not
nearly as low as it is today. Imagine if Pakistan captured bin
Laden tomorrow, would the Musharraf Government really want him
tried in a Pakistani court or even to go through the
extradition process? Pakistan would rather dodge this political
bullet.
Many governments of the world are weak, but some are
actively hostile. And here renditions become vital. In those
cases, renditions are truly the only option for getting
terrorists off the street.
Renditions can also produce considerable information, even
when they do not lead to a trial and a lengthy imprisonment.
Security forces can question suspects, examine the documents
they have, and otherwise gather information that might be
relevant to past or future attacks.
Renditions would be far less controversial if they only
involved cases like Ramzi Yousef, the mastermind of the first
World Trade Center bombing, who was brought home to the United
States for trial. However, U.S. counterterrorism officials at
times find it better to send suspects to the Middle East rather
than bringing them to the United States. There has been a focus
in the public discourse on the use of torture on this, which I
believe is somewhat misguided, and I'd like to point out the
other advantages for extraordinary renditions to the Middle
East.
One obvious one is that in some cases the terrorists and
the evidence against them can not meet the ``beyond a
reasonable doubt'' standard of a U.S. court. Hearsay, rumor,
and circumstantial evidence are often the only available
intelligence and information can be maddeningly imprecise,
incomplete, or at times even contradictory. Many allies of the
United States in the Middle East, however, have a far lower
standard of evidence, and are at times willing to bend some
rules they have in response to a U.S. request.
Interrogations abroad also have their advantages. Jordan,
for example, has contended with radical terrorism for decades.
Its officials know a remarkable amount about the motivations,
world view, and desires of jihadists. This is knowledge that
countries like Sweden or Germany and even the United States are
only slowly gaining. And even when evidence is plentiful, it
must be available for use in the court of law without revealing
sources or methods. To jeopardize a well-placed informant would
actually, overall, hurt U.S. counterterrorism efforts, rather
than help them.
Ironically and rather painfully, the operational value of
renditions has grown as the U.S. detention of enemy combatants
in Guantanamo has become legally, politically, and
diplomatically problematic. Renditions, when successful, are a
behind-the-scenes program. They do not require new legal
systems and codes. But to be clear, this is a failure of U.S.
policy. The United States has no established legal procedures
for suspected terrorists who are not U.S. citizens beyond
sending them through the U.S. court system where they are
essentially treated as U.S. citizens.
I will add as an aside that I am somewhat skeptical of very
recent European criticism about renditions that occurred from
Europe in the immediate aftermath of 9/11. I would be very
surprised, based on my knowledge of this program, if this did
not occur without the knowledge of--excuse me--I believe this
occurred with the knowledge of the European governments and, in
particular, their intelligence agencies.
All this said, renditions are a flawed instrument even
though I believe they are necessary. Renditions, of course,
often violate the laws of the country in which they occur and
at times they have involved truly horrible human rights
violations. In particular, if individuals are sent to countries
like Syria. And sending anyone to face these violations is a
heavy moral burden, but this should weigh on policymakers
extremely heavily because the United States will, at times,
render the wrong people.
The lower evidentiary standards I mentioned, makes
rendering the wrong person almost inevitable if this program is
done enough times. This is simply a risk that is inherent to
the program. Human rights abuses, however, arresting the wrong
people, hurt Americas standing in the eyes of the world and, in
particular, in the Muslim world, which is vital for U.S.
counterterrorism today.
So, how do we square the circle? Unfortunately, there's no
easy way to do so, no simple way. But I do believe that there
are ways to reduce the level of abuses, and also, over time, to
restore the credibility of this program to a degree that would
satisfy most Americans. In general, Washington should return to
the practice of sending suspects only to countries where they
are wanted under that country's legal system in order to ensure
that a legal procedure of some sort is eventually followed and
that the individual will not simply disappear within the
country's darkest prisons.
Reducing the likelihood of torture is particularly
important. The United States should avoid the worst offenders,
like Damascus. In addition, the United States must redouble
efforts to make sure that the assurances it receives regarding
torture are honored by the governments in question, as the
human rights records of countries like Egypt are poor.
This increased care regarding the treatment of the
detainees and greater attention to the legal dimensions of
renditions is particularly important today, because the program
as a whole is tainted by the lack of transparency and its
association with torture. In the public mind today, torture is
the purpose of renditions, a perception that is even stronger
among the public of U.S. allies. If this program were in 2000,
I believe that many of these problems would be easily
surmountable. Unfortunately today, the barriers are much
higher.
Essential for the legitimacy of this process is some degree
of legal review and, in general, bureaucratic review outside
the intelligence community. And here, I'd like to applaud the
chairman's efforts to increase oversight and I will note that
this effort has to balance efficiency and prudence. That we
need a program that can remain as efficient as renditions are,
while at the same time reducing the likelihood of risks. At the
very least, there should be a senior official in the Department
of Justice who has some degree of separation from the executive
branch officials involved in the program itself. And that
person should be consulted to vet the quality of the
intelligence and, overall, to examine the rendition operation
and procedure.
I'm going to conclude, Mr. Chairman, by noting that for
controversial programs like renditions, we need a degree of
public consensus. As Dr. Zelikow mentioned, early on after a
crisis the United States often oscillates between unfortunate
extremes. What we need is a degree of consensus that will allow
our programs and procedures to last for, truly for decades. And
with that we need to have hearings like this, even if they
discuss a rather grim subject, and in so doing, build programs
that will sustain different administrations and, over time,
lead to the results we want.
Thank you very much.
[The prepared statement of Dr. Byman follows:]
Prepared Statement of Dr. Daniel Byman, Director, Center for Peace and
Security Studies, Edmund A. Walsh School of Foreign Service, Georgetown
University; Senior Fellow, Saban Center for Middle East Policy at the
Brookings Institution, Washington, DC
Chairman Biden, Ranking Member Lugar, distinguished members of the
committee, and committee staff, I am grateful for this opportunity to
speak before you today.
Renditions are a vital counterterrorism tool--so vital, that they
must be used sparingly so they can remain an effective part of the U.S.
counterterrorism arsenal. Renditions are troubling because they can
exact a high human and diplomatic price, but dangerous terrorists would
go free if the program were abandoned. Unfortunately, this flawed
instrument is often the only one available. Rather then stop renditions
altogether, policymakers should increase the program's transparency,
strengthen oversight efforts, and embed within the process procedures
that ensure more accord with the rule of law.
The renditions program is under attack today, in part due to
legitimate faults of the program and in part because of preventable
misunderstandings. Critics have blasted renditions as outsourcing
torture because the recipient countries often have abysmal human rights
records.\1\ New York Times columnist Bob Herbert even declared that
renditions stand ``side by side with contract killings.'' \2\ Not
surprisingly, calls to end or curtail renditions are growing.
---------------------------------------------------------------------------
\1\ Jane Mayer, ``Outsourcing Torture,'' New Yorker, February 14,
2005.
\2\ Bob Herbert, ``Torture, American Style,'' New York Times,
February 11, 2005, p. 25.
---------------------------------------------------------------------------
The contrast to this ever-louder criticism is the quiet embrace
that both Republican and Democratic administrations have given to the
program. Former Director of Central Intelligence George Tenet testified
that before September 11 the CIA and the FBI had rendered 70 terrorists
(about 20 of whom went to the United States for trial), and newspaper
reports dating from 2005 indicate that over 100 suspects have been
rendered since then.\3\
---------------------------------------------------------------------------
\3\ Statement of Director Tenet before the Congressional 9/11 Joint
Inquiry, (p. 11); Dana Priest, ``CIA's Assurances on Transferred
Suspects Doubted,'' Washington Post, March 17, 2005, p. A1; Douglas
Jehl and David Johnston, ``Rule Change Lets CIA Freely Send Suspects
Abroad,'' New York Times, March 6, 2005, p. 1.
---------------------------------------------------------------------------
Typically a rendition occurs when the local government, in
cooperation with U.S. officials, bundles a suspect on a plane and sends
him to another country. In contrast to an extradition, the suspect does
not go through the legal system of the country where he is arrested.
More rarely, U.S. officials or their agents may pull a suspect off the
streets without the cooperation of the host government, but in the vast
majority of cases the local police or intelligence services make the
initial arrest. Contrary to some conspiracy theories, the CIA does not
help render suspects without the approval of White House officials and
government lawyers.
Although several notable terrorists, including Ramzi Yousef who
masterminded the first World Trade Center bombing, were rendered to
face justice in the United States, the usual destination is a country
in the Middle East--one article claims that Egypt, Morocco, Jordan, and
Syria are all common destinations.\4\ Sending suspects to face justice
in the United States is far less morally, legally, and diplomatically
controversial than is rendering suspects to countries in the Middle
East. The latter is the focus of my testimony.
---------------------------------------------------------------------------
\4\ Mayer, ``Outsourcing Torture.''
---------------------------------------------------------------------------
My statement first outlines the advantages of the renditions
program from a counterterrorism point of view. It then describes the
very real costs and faults of the program, some of which are inherent
to it and others of which can be reduced. The statement concludes by
offering a set of recommendations for how to improve the program, with
an emphasis on ways to improve oversight, reduce the abuses, and make
the program more in accord with U.S. values and thus more sustainable
in the long run.
advantages of the renditions program
Counterterrorism officials find renditions attractive because they
get terrorists off the streets. Although the world is not safe now that
Ramzi Yousef is in a supermax prison in Colorado, it is safer. In 1998,
the Wall Street Journal reported that CIA officers and the Albanian
police closed down an Egyptian Islamic Jihad cell that planned to bomb
the U.S. Embassy in Tirana. The suspects were sent to Egypt, where two
were executed and others jailed. Their interrogations also led to the
arrests of numerous affiliates, dealing a crushing blow to the
organization and removing them as a threat to U.S. facilities.\5\
---------------------------------------------------------------------------
\5\ Rajiv Chandrasekaran and Peter Finn, ``U.S. Behind Secret
Transfer,'' Washington Post, March 11, 2002, p. Al; Andrew Higgins and
Christopher Cooper, ``Cloak and Dagger: A CIA-Backed Team Used Brutal
Means to Crack Terror Cell,'' Wall Street Journal, November 20, 2001,
p. Al.
---------------------------------------------------------------------------
Renditions can also produce considerable information even when they
do not lead to a trial and lengthy imprisonment. Security forces can
question suspects, examine their documents, and otherwise gather
information that might be relevant to past or future attacks. ``Pocket
litter'' often produces particularly important evidence. As Michael
Scheuer, the former chief of the CIA's bin Ladin unit, has testified,
one goal of renditions is ``to seize hard copy or electronic documents
in [the suspected terrorists'] possession when arrested. Americans were
never expected to read those, and they could provide options for
follow-on operations.'' \6\
---------------------------------------------------------------------------
\6\ Statement of Mr. Michael F. Scheuer, ``Extraordinary Rendition
in U.S. Counterterrorism Policy: The Impact on Transatlantic
Relations,'' House Foreign Affairs Committee, April 17, 2007.
---------------------------------------------------------------------------
Renditions are often the only option for interrogating a suspect
and bringing him to justice when extradition is not politically or
legally possible. In some countries the formal court system is not a
true alternative because judges are sympathetic to terrorists or
vulnerable to intimidation. Even more worrisome, given rock-bottom
approval ratings of the United States in much of the world, a highly
publicized extradition hearing could increase sympathy for the suspect
and damage the government's popularity. Historically, the United States
has shielded such cooperative but weak regimes from the adverse
publicity associated with extraditions.
When Pakistan allowed Mir Amal Kansi, who murdered two CIA
employees in Virginia in 1993, to be sent to the United States, several
cities in Pakistan saw demonstrations. Many Pakistanis saw Kansi's
actions as heroic. Pakistanis' approval of jihadist violence against
the United States has grown since then.\7\ Imagine if Pakistan captured
bin Ladin tomorrow. Would the Musharraf government really want him to
be tried in a Pakistani court or even have an extradition request go
through the country's legal system? Pakistan would prefer to dodge this
political bullet.
---------------------------------------------------------------------------
\7\ Leslie Wayne, ``Jury Recommends Death for Pakistani,'' New York
Times, November 15, 1997, p. 1; John Burns, ``Spiriting Off of Fugitive
by U.S. Irks Pakistanis,'' New York Times, June 23, 1997, p. 9.
---------------------------------------------------------------------------
Some governments are hostile, not weak, and here renditions become
vital. In the spring of 1998, intelligence officials plotted to render
bin Ladin from Taliban-controlled Afghanistan, an operation made
necessary because the Afghan regime supported the terrorist leader. No
standard legal measure would have worked in place of a rendition.
Although the value of renditions is clearest when the government is
weak or hostile, even strong democratic governments have acquiesced in
renditions. Several European countries, notably Italy and Germany,
apparently cooperated with U.S. officials after 9/11 to render several
suspects to the Middle East. As Scheuer notes, ``Any operation in
Europe was done with the cognizance, support, and approval of the
European security services involved.'' \8\ These governments chose a
covert path because they recognized that their own legal systems would
not be able to take these suspects off the street. Their own
counterterrorism laws were weak and allowed individuals to recruit and
organize with little impediment. In addition, their legal systems often
were not able to incorporate their own intelligence agencies'
information, let alone that of U.S. agencies.
---------------------------------------------------------------------------
\8\ Statement of Mr. Michael F. Scheuer. See also Dana Priest,
``Italy Knew About Plan to Grab Suspect,'' Washington Post, June 30,
2005, p. Al.
---------------------------------------------------------------------------
U.S. officials may seek to transfer suspects from a Western ally to
the Middle East because the Western ally's laws or inclinations prevent
the close monitoring or aggressive interrogation of a terrorism
suspect--in contrast to many Middle Eastern countries with poor human
rights records and a long record of combating domestic radicals.
Mohammed Haydar Zammar, a Syrian-born citizen of Germany, was arrested
when he traveled from Germany to Morocco and then was secretly
transferred for questioning in Syria. Zammar is believed to have been
al-Qaeda's top recruiter in Hamburg and to have helped form the Hamburg
cell at the center of the September 11 attacks. He had refused to
cooperate with German police in their investigation, and lacking enough
evidence to charge him, they allowed him to leave for Morocco.\9\ As
Zammar quickly discovered, the laws that protected him in Germany did
not apply in Syria and Morocco. Probably for similar reasons, U.S.
officials detained Maher Arar, a Canadian citizen born in Syria, when
he was changing planes in Kennedy Airport. Arar was sent to Syria for
questioning, where he was reportedly tortured repeatedly but released a
year later with no charge.\10\
---------------------------------------------------------------------------
\9\ Peter Finn, ``Al-Qaeda Recruiter Reportedly Tortured,'' The
Washington Post, January 31, 2003, p. A14.
\10\ Douglas Jehl and David Johnston, ``Rule Change Lets CIA Freely
Send Suspects Abroad,'' New York Times, March 6, 2005, p. 1.
---------------------------------------------------------------------------
This problem is not unique to America's European allies. U.S.
counterterrorism officials at times find it better to send suspects to
the Middle East rather than bring them to the United States because of
the high bar U.S. law sets for convicting suspected terrorists. Some
cases against terrorists cannot meet the ``beyond a reasonable doubt''
legal standard. Hearsay, rumor, and circumstantial evidence are often
the only available intelligence, and information can be maddeningly
imprecise, incomplete, and at times contradictory. Many U.S. allies in
the Middle East have a far lower standard of evidence and are willing
to bend what rules they have in response to a U.S. request.
Even when evidence is plentiful and solid, it must be available for
use in a court of law without revealing sources and methods.
Jeopardizing a well-placed informant would turn a conviction into a
pyrrhic victory, making it harder to stop future attacks.
Ironically, the operational value of renditions has grown as the
U.S. detention of enemy combatants in Guantanamo has become legally,
politically, and diplomatically problematic. Renditions, when
successful, are a behind-the-scenes program. They do not require new
legal systems and codes. Also maintaining jails to hold suspected
terrorists indefinitely is labor-intensive.\11\ To be clear, this is a
failure of U.S. policy: The United States has no established legal
procedures for suspected terrorists who are not U.S. citizens beyond
sending them through the U.S. court systems where they are essentially
treated as U.S. citizens.
---------------------------------------------------------------------------
\11\ Statement of Mr. Michael F. Scheuer.
---------------------------------------------------------------------------
Interrogations abroad also have their advantages. Jordan has
contended with Islamist terrorism for decades, and its officials know a
remarkable amount about the motivations, worldview, and desires of
jihadists--knowledge that countries like Sweden and Germany still lack
and U.S. interrogators are only slowly gaining. Officials like those in
Jordan are often able to sort through the confusing array of family
names, nicknames, and aliases that are often particularly hard for
analysts not fluent in Arabic. Saudi Arabia has used respected clerics
to ``deprogram'' terrorists, convincing detainees that their actions
are contrary to Islam and will lead them to Hell.\12\ Some Middle
Eastern countries also can persuade or coerce a suspect's relatives. In
societies where family ties are paramount, this pressure can be
decisive in convincing a suspect to talk.
---------------------------------------------------------------------------
\12\ Dana Priest and Joe Stephens, ``Secret World of U.S.
Interrogation,'' Washington Post, May 11, 2004, p. Al.
---------------------------------------------------------------------------
a flawed instrument
Renditions often violate the laws of the country in which they
occur. Although violating other countries' laws to preserve U.S.
security is at times necessary, the United States in general should
keep to a policy of supporting the rule of law, particularly in allied
countries.
The most controversial aspect of renditions is sending suspects to
third countries where human rights abuses are common. Under the Clinton
administration, rendered suspects could only be sent to a country where
they were wanted under the country's legal system. Moreover, Clinton
administration officials claimed that they demanded that rendered
suspects be treated as they would be under the U.S. legal system--a
demand that Scheuer denies, instead claiming that U.S. officials like
him demanded that subjects be treated fairly according to that
country's own laws. The need to send someone to a country where they
faced legal charges changed under the Bush administration, but the Bush
administration also arranged for many of the high-level suspects to be
held directly by the United States.\13\ President Bush has also stated
that the United States receives a promise from the recipient country
that they will not torture the suspect.\14\
---------------------------------------------------------------------------
\13\ Statement of Mr. Michael F. Scheuer.
\14\ President's Press Conference, White House, Office of the Press
Secretary, March 16, 2005.
---------------------------------------------------------------------------
A number of countries favored for renditions, such as Egypt,
Jordan, Morocco, and particularly Syria are often brutal to
prisoners.\15\ Though the U.S. Government demands that foreign
governments promise not to use torture, officials have little control
over those arrested once they leave U.S custody--one CIA officer called
these promises a ``farce.'' \16\ Scheuer notes that he regularly told
senior lawyers and policymakers that ``Egypt was Egypt'' and that in
response they simply inserted a ``legal nicety.'' \17\
---------------------------------------------------------------------------
\15\ U.S. interpretations of the U.N. Convention against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which
the U.S. ratified in 1994, in theory prohibit rendering suspects to
countries where they might be tortured, but an exception is possible if
there are credible assurances that the person will not be tortured. See
Michael John Garcia, ``Renditions: Constraints Imposed by Laws on
Torture,'' Congressional Research Service, updated April 5, 2006, p. 1.
Garcia also notes that the State Department defines torture narrowly,
well beyond what the U.S. legal system would consider cruel treatment
(see note 32). A key uncertainty is whether the state in question
regularly goes back on its diplomatic assurances. Some experts would
note, however, that if assurances are needed, then you are already over
the Convention Against Torture's standard. Hina Shamsi, e-mail
correspondence, July 23, 2007.
\16\ Dana Priest, ``CIA's Assurances on Transferred Suspects
Doubted,'' Washington Post, March 17, 2005, p. Al.
\17\ Michael Scheuer, ``A Find Rendition,'' New York Times, March
11, 2005.
---------------------------------------------------------------------------
Sending anyone to face torture is a heavy moral burden, but this
problem should weigh even more heavily on policymakers' shoulders
because the United States will at times inevitably render the wrong
people. The lower evidentiary standard that makes renditions attractive
also makes mistakes more likely. German prosecutors are investigating
the claims of Khaled al-Masri, a German citizen, who says that on New
Year's Eve 2003 he was kidnapped while traveling in Macedonia,
imprisoned and interrogated in Afghanistan. When his interrogators
realized he had little to say, he was unceremoniously deposited in
Albania's mountains.\18\ Al-Masri was lucky: He claims he ended up in
U.S. hands. Maher Arar, on the other hand, ended up in Syria where,
according to a Canadian investigation, ``he was interrogated and
tortured.'' \19\
---------------------------------------------------------------------------
\18\ Jeffrey Fleishman, ``Man's Claims May Be a Look at Dark Side
of War on Terror,'' Los Angeles Times, April 12, 2005.
\19\ For a description of the Arar case, see the Commission of
Inquiry into the Actions of Canadian Officials in Relation to Maher
Arar, ``Overview of Findings, Report of the Events Relating to Maher
Arar,'' 2006. For the finding of torture, see pp. 53-58.
---------------------------------------------------------------------------
Human rights abuses and arresting the wrong people are both a
diplomatic problem and a broader practical one for intelligence
officials. Such stories hurt America's standing in the eyes of its
allies and erode support for U.S. counterterrorism efforts, something
even the best public diplomacy cannot undue. Many German elites, for
example, have bitterly criticized the rendition of Zammar to Syria.
Canada, Sweden, Germany, and Italy have or are now investigating U.S.
renditions.\20\ Weakened ties to friendly governments are felt later
when they refuse to send troops to Iraq, resist trade overtures, or
otherwise demonstrate their displeasure.
---------------------------------------------------------------------------
\20\ Dana Priest, ``CIA's Assurances on Transferred Suspects
Doubted,'' Washington Post, March 17, 2005, p. Al.
---------------------------------------------------------------------------
More broadly, successful counterterrorism depends in part on
convincing the world that there is no moral equivalency between the
terrorists and the government they oppose. When the United States
muddies these waters, this distinction begins to blur. This is
particularly problematic for U.S. attempts to woo fence-sitters in the
Muslim world--the very hearts and minds that the United States most
needs.
Not is all the information gained from renditions necessarily
useful. U.S. officials are aware that the information received from
suspects often comes from torture. Even when the means are gentler, the
information is filtered through foreign intelligence services which,
even when they are friendly, still are usually selective in what they
pass on. Too much reliance on information from rendered suspects would
lead to a faulty analysis.
building a better program
The decision to render a suspect to a third country is seldom easy,
but a more sustainable program that is less prone to mistakes can be
fashioned.
One rule of thumb is that renditions are unnecessary when the local
intelligence services and court system are good, such as in Britain and
France. Similarly, a suspect should never be rendered from the United
States. In contrast, renditions are more useful when the government in
question is hostile, when the locals will not act, or when an
extradition is too sensitive politically.
The trickiest cases are those like Arar, al-Masri, and others where
the allies offended are close U.S. friends whose intelligence services
and court systems, while far from ideal, are capable. In such cases,
counterterrorism officials must judge whether the host government will
properly gather intelligence and use its powers to prevent the suspect
from fleeing. Inevitably, walking this line will lead to terrorists
successfully fleeing when countries are not vigilant enough while other
suspects (including some innocents) are nabbed to the outrage of our
friends. When in doubt, the presumption should be to trust the allies'
legal system.
The United States should exercise greater care with regard to the
country that receives a rendered suspect and modify the program to
better comport more with the rule of law. In general, Washington should
return to the practice of sending suspects to countries where they are
wanted under that country's legal system in order to ensure that a
legal procedure of some sort is eventually followed and that the
individual will not simply ``disappear'' within the country's darkest
prisons. Americans should not pretend that Middle Eastern states' legal
systems will respect the defendants' rights as would a U.S. or European
system, but having the accused appear at a trial at some point is
vital. Reducing the likelihood of torture is particularly important.
Although judging harsh treatment involves discerning shades of gray
rather than black and white, the United States should avoid the worst
offenders such as Damascus. Egypt and Jordan, while often brutal, are
far less harsh than is a country like Syria, which should never be the
recipient of a rendered suspect. In addition, the United States must
redouble efforts to make sure that the assurances it receives regarding
torture are honored by the governments in question, as the human rights
records of countries like Egypt are poor. Renditions have many
advantages that have nothing to do with torture's theoretical benefits.
This increased care regarding treatment and greater attention to
the legal dimensions of renditions is particularly important today
given that the program is tainted by its lack of transparency and
association with torture. In the public mind, torture is the purpose of
renditions--a perception even stronger among the publics of U.S.
allies. The lack of debate and clear understanding of the program's
parameters allow such speculation to flourish. Similarly, one prominent
newspaper story claimed that a mistaken rendition occurred because of
the ``hunch'' of an intelligence official.\21\ The lack of transparency
about the program in general makes it difficult to say whether this
report is false, describes a violation of standard procedures, or is
indicative of a broader problem.
---------------------------------------------------------------------------
\21\ Dana Priest, ``Wrongful Imprisonment: Anatomy of a CIA
Mistake,'' Washington Post, December 4, 2005.
---------------------------------------------------------------------------
Essential for the legitimacy of this process is legal review. At
the very least, a senior official in the Department of Justice who has
some degree of separation from the executive branch officials involved
in the program should be consulted to ensure that the intelligence used
to finger the suspected terrorist is carefully vetted. To add more
legitimacy, a small court appointed by the Chief Justice could be used
to review the names and evidence--an idea that is currently being
considered by Members of Congress. As with the Foreign Intelligence
Surveillance Court, the judges would be capable of rapid action, even
though that would not usually be necessary as most of the names would
be added to the list well in advance of any operation. To be clear, the
criteria would not be equivalent to that used in finding a guilty
verdict for U.S. courts, as intelligence is often limited and
fragmentary. However, the legal review would ensure that at least some
standards are maintained and that evidence is carefully vetted. As with
the Foreign Intelligence Surveillance Court, the process is likely to
make involved agencies especially careful when they propose that any
name should be added to the target list.
The United States also needs to ensure that the renditions process
regularly involves senior political leaders. This process, in many
ways, speaks to the heart of the policy: The moral claims are
conflicting, so the question becomes who compares them and how they do
so. The burden should be on elected officials, not civil servants.
Congressional leaders should be kept informed of both the criteria used
to put individuals on the list for renditions and given briefings on
the results of past actions to facilitate oversight. Then the worst
abuses common to the program can be curbed without jettisoning a vital
counterterrorism instrument.
Having no well-defined process in advance of an operation risks
either a slow response that allows the terrorist to escape or a rapid
one that does not involve careful vetting of intelligence and thus
increases the likelihood of costly mistakes. Much of the inevitable
lawyering over the quality of the intelligence and the risks involved
will act as a de facto vetting process. Moreover, although politicians
will inevitably make the policy more cautious, this over the long term
will make it more sustainable as it ensures accountability to the
people and a proper consideration of the broader diplomatic and
strategic picture.
Because renditions lie in the gray area between the rule of law and
the Nation's security, an honest debate would serve our country well--
and thus I particularly welcome hearings like these, even though the
subject matter is grim. Liberal voices must answer the painful question
of whether suspected terrorists who are not U.S. citizens should be
allowed to flee without hindrance when we have some evidence of
wrongdoing, but not enough to try them in U.S. courts. Conservatives,
in turn, must be open about the moral problem of torture and the
political consequences of angering our allies, even when it saves
lives. Drawing on this debate, political leaders of both parties must
build a consensus behind the general parameters of this program that
will enable it to help protect our country in the years to come.
The Chairman. Thank you.
General.
STATEMENT OF MG PAUL EATON, USA (RET.), FORMER COMMANDING
GENERAL, OFFICE OF SECURITY TRANSITION, BAGHDAD, IRAQ
General Eaton. Thank you, Mr. Chairman, for the invitation
to speak before this body and thank you for your leadership in
this matter.
I've been asked to comment upon the administration's
policies regarding torture, Geneva Convention, et al., and
their impact upon the American soldier of the Army and Marine
Corps in the United States.
First, good order and discipline. Within days of an
American soldier's arrival on active duty, training begins to
shape him for the difficult duty to fight and win the Nation's
wars. He is developed physically, intellectually, and morally.
Within the moral component, we have always stressed the proper
treatment of prisoners of war, including the so-called five
S's: Seize, secure, separate, safeguard, and speed to the rear.
We have recently emphasized the proper and prudent behaviors at
the point of capture. The legal discussion, where some would
deliver different treatment based on POW status or not is
simply unwarranted.
For our soldiers to hear their Vice President allegedly say
on radio that a dunk in the water is a no-brainer if it can
save lives is a threat to the good order and discipline of our
Armed Forces. Waterboarding is not safeguarding a prisoner,
regardless of the conditions of their capture. To hear our CIA
describe waterboarding as a professional interrogation
technique, is at once appalling and confusing to our men and
women under arms. The good order and discipline of our Armed
Forces begins with our Commander in Chief and must weave
through the entire rank structure. The President must set the
tone for our youngest private soldier and the administration's
policies today do not set the right tone.
This is not a natural event. Our men and women arrive in
the Armed Forces with a strong Judeo-Christian ethic to do the
right thing. And we pride ourselves in returning good men and
women back to civilian life, better people than they were
before they put on the American uniform. I am convinced that
the disaster of Abu Ghraib is directly attributable to, among
other factors, administration policies on detainee treatment.
Isolation of the American soldier. When the drama of Abu
Ghraib hit the news, my senior Iraqi advisor, now second in
command of the Iraqi Armed Forces and a secular Shia, came into
my office with his arms outstretched and the question: ``How
can this be?'' The immediate and profound impact on me and my
mission was serious. I had lost face before my Iraqi soldiers
and no amount of explanation could overcome the images of the
hooded man and electrodes. The United States has enjoyed, until
recently, a wonderful reputation for humanitarian excellence,
ably imaged by our Statue of Liberty. Today, it is difficult to
lecture our Iraqi soldiers, let alone the Chinese or the
Russians or anybody else, on human rights abuses.
Our soldiers became more isolated from our allies. We
undoubtedly lost allies in the fight for Iraq because of our
policies on extraordinary renditions, secret detention, and the
use of torture. The French Army has yet to recover from the
images of genital electric shock used during the battle of
Algiers. Indeed, the risk of attack against the American
soldier has increased. The comment, ``these are different
times,'' well, we are in different times, and at no more
important time, while we were at war with ideologues do we need
to display the strong moral code that has set the United States
apart from so many other nations.
The argument, ``the ticking timebomb,'' Jack Bauer, the
program ``24 Hours'' gets a lot of press for his solutions to
the threats of our Nation. Recently, his performance under the
pressure of the ticking timebomb scenario was favorably
received by many people, with criminal behavior excused for the
greater good. Ladies and gentlemen, as a retired Marine four-
star general observed, squad leaders in Iraq are faced with a
ticking timebomb scenario every day. The question is: Do we
want our soldiers and Marines to play Jack Bauer?
At a recent Republican candidate debate, Senator McCain
demonstrated the moral courage to reject the use of torture. He
was the only man on stage to do so, rejected on the basis that
it is immoral and doesn't work. As one man stated, ``The only
thing you are sure of with torture is that pain is involved.''
The information you get may waste your time or worse. Senator
McCain understands that the exception does become the rule,
leading him to author the McCain amendment, designed to ban
cruel, inhumane, or degrading treatment.
Recently, Human Rights First invited our Presidential
candidates to sit down with a group of retired general officers
to hear them discuss the impact of some of these policies on
the military. Our distinguished chairman today was among the
three candidates to accept that invitation. For me, the most
compelling story was by a retired Marine major general who,
while serving during World War II, described the capture of a
Japanese soldier, with subsequent appropriate treatment, an
eventual windfall of information and help. That is the real
story for our troops and our civilian leadership. The rule of
law and the Geneva Convention taken at face value.
Thank you.
[The prepared statement of General Eaton follows:]
Prepared Statement of MG Paul Eaton, USA (Ret.), Former Commanding
General, Office of Security Transition, Baghdad, Iraq
Thank you, Mr. Chairman, for the invitation to speak before this
body and thank you for your leadership in this matter.
I am Paul D. Eaton, retired now 18 months from the United States
Army in the rank of major general. My last operational assignment was
commander of the organization charged with the mission to rebuild the
Iraqi Security Forces, from 2003 to 2004.
My remarks will address this administration's policies regarding
torture, the Geneva Conventions, Military Commissions, habeas corpus,
extraordinary rendition and secret detention, and their impact upon the
American soldier, the U.S. Army, and Marine Corps and the United
States.
good order and discipline
Within days of an American soldier's arrival on active duty,
training begins to shape him for the difficult duty to fight and win
the Nation's wars. He is developed physically, intellectually, and
morally.
Within the moral component, we have always stressed the proper
treatment of Prisoner's of War, including the so-called five S's--
seize, secure, separate, safeguard, and speed to the rear. We have
recently emphasized the proper and prudent behaviors at the point of
capture. The legal discussion where some would deliver different
treatment because of technical POW status is simply not warranted.
For our soldiers to hear their Vice President say on radio that a
``dunk in the water'' is a ``no brainer'' if it can save lives, is a
threat to the good order and discipline of our Armed Forces.
Waterboarding is not safeguarding a prisoner, regardless of the
conditions of their capture. To hear our CIA describe waterboarding as
a ``professional interrogation technique'' is at once appalling and
confusing to our men and women under arms.
The good order and discipline of our Armed Forces begins with our
Commander in Chief and must weave through the entire rank structure.
The President must set the tone for our youngest private soldier and
the administration's policies today do not set the right tone. This is
not a natural event--our men and women arrive in the Armed Forces with
a strong Judeo-Christian ethic to do the right thing. And we pride
ourselves in returning a good man or woman back to civilian life a
better person than they were before putting on the American uniform.
I am convinced that the disaster of Abu Ghraib is directly
attributable to, among other factors, administration policies on
detainee treatment.
isolation of the american soldier
When the drama of Abu Ghraib hit the news, my senior Iraqi advisor,
now the second in command of the Iraqi Armed Forces and a secular Shia,
came into my office with his hands outstretched and the question, ``How
can this be?'' The immediate and profound impact on me and my mission
was serious--I had lost face before my Iraqi soldiers and no amount of
explanation could overcome the images of the hooded man and electrodes.
The United States has enjoyed until recently a wonderful reputation
for humanitarian excellence ably imaged by the Statue of Liberty.
Today, it is difficult to lecture our Iraqi soldiers, let alone the
Chinese, the Russians, or anyone else, on human rights abuses.
Our soldiers became more isolated from our allies, we undoubtedly
lost allies in the fight for Iraq, because of our policies on
extraordinary rendition, secret detention, and the use of torture. The
French Army has yet to recover from the images of genital electric
shock used during the Battle of Algiers.
Indeed, the risk of attack against the American soldier increased.
These are different times . . .
Indeed, we are in different times. And at no more important time,
while we are at war with ideologs, do we need to display the strong
moral code that has set the United States apart from so many other
nations.
The ticking timebomb . . .
Jack Bauer gets a lot of press on his solutions to the threats to
our Nation. Recently, his performance under the pressure of the ticking
timebomb scenario was favorably received by many people, with criminal
behavior excused for the greater good. Ladies and gentlemen, as a
retired Marine four-star general observed, ``Squad Leaders in Iraq are
faced with the `ticking timebomb' scenario every day. Do we want our
soldiers and Marines playing Jack Bauer''?
At a recent Republican candidate debate, Senator McCain
demonstrated the moral courage to reject the use of torture. He was the
only man on that stage to do so. Rejected on the basis that it is
immoral and doesn't work. As one man stated, the only thing you are
sure of with torture is that pain is involved--the information you get
may waste your time or worse. Senator McCain understands that the
exception does become the rule, leading him to author the McCain
amendment designed to ban cruel, inhuman, or degrading treatment.
Recently, Human Rights First invited our Presidential candidates to
sit down with a group of retired general officers to hear them discuss
the impact of some of these policies on the military. Our distinguished
chairman today was among the three candidates to accept the invitation.
For me, the most compelling story was by a retired Marine major
general, who described the capture of a Japanese soldier, subsequent
appropriate treatment and eventual windfall of information and help.
That is the real story for our troops and our civilian leadership.
The Chairman. Thank you very much, General.
We'll do 7-minute rounds. Is that OK?
General, let me begin with you. I must tell you, one of the
most extraordinary meetings I've ever attended--I've been here
a long while, I mean it sincerely--was when I got a call from
your fellow retired general who's now the dean of Franklin
Pierce Law School, would I fly to Concord and meet with, I
don't know the number, I think it was 15, 16, 17 three- and
four-stars. There may have been a two-star there, I didn't see
it, there may have been, admirals and generals.
I, quite frankly, thought you all were wanting to speak
with me because of a speech I had made at Drake Law School,
where I made the case against utility, the morality or the
notion that we learned anything with torture. And I must tell
you, say it publicly here, it was the most gratifying moment in
my 34-year career. Because I came down here as a young 29-year-
old Senator, thinking all you guys wearing four stars were like
Slim Pickens jumping out of--and Dr. Strangelove--jumping out
of the back of a plane and an atom bomb yelling ``yippee-ky-
aye.''
It's a bit of an exaggeration, but I had, and I must tell
you I've had a profound, for the last 30 years, profound
respect for the people who lead our military, including you.
And, one of the things that was raised at that meeting with
those, whatever the number was, more than a dozen retired
generals, commandants in the Marine Corps, Supreme Allied
Commanders, Chairman of the
Joint Chiefs of Staff, et cetera, was the point you made, that
it (a) endangers our troops, (b) undermines your mission, and
(c) ends up many times producing--seldom ends up producing
actionable information.
Can you elaborate on what the attitude was of your guys
under your command, the kids you go out and speak to who are in
the field in Iraq, what their reaction was when they read and
they heard about Abu Ghraib? I know that's a generalization,
you've got a lot of troops under your command, but could you
characterize the response?
General Eaton. Sure, Senator.
First I was in immediate and direct contact with my two
sons who are soldiers. And one, an infantry lieutenant at that
time in Iraq, and the feedback was just basically disbelief on
their part. And, then throughout my command, the question: How
did this happen? What's the basis for it? How do you explain
the behaviors that led to Abu Ghraib? And, multiple command
failures, and we've had this investigated pretty well, but it
is, the initial reaction was, how did it happen? And what do we
do to prevent its recurrence?
The Chairman. I obviously didn't spend anywhere near the
time you spent in Iraq, but I've been in and out of there seven
times so far, and right after Abu Ghraib. And the guys I'd sit
in the mess with, or whether I was out in Fallujah or in
Baghdad or wherever, Marines, Army, there was this thing like,
``Whoa,'' you know, like ``What in the heck, what in the heck
are we doing?'' You know, it wasn't like, you know, ``Glad they
got those guys.'' You know what I mean. ``These guys are really
bad guys, these guys are.'' It was like, ``Oh man.'' I mean, it
was almost uniform. I'm sure there were people who said,
``Right on, you know, that's the way to treat these guys.''
But, I must tell you, General, I was pleased that, you know,
whether I'm talking to privates or colonels, it was like,
``This is a giant mistake.''
Because they, I think, immediately in my discussions got
the message that that put them in--more in jeopardy. It didn't
help their mission at all.
Let me go to Dr. Zelikow, as well as you, Dr. Byman. You
both had a similar message, which was that, you know, this
warrants, the distrust of a single administration doesn't
warrant legislative actions that may be beyond what is needed.
You should arrive at a consensus. The President is, in 2006,
says he's looking for a common foundation to deal with other
countries as well, our allies and what constitutes appropriate
behavior. And you reference Executive order, maybe you both
did. Is it your reading of the President's Executive order that
he has disavowed the White House position up to that point that
under the Geneva Convention torture only exists if there is
organ failure or death? Is this an absolute refutation of that?
Section C of the order says, 2C, ``Cruel, inhumane, and
degrading treatment or punishment means the cruel, unusual,
inhumane treatment of punishment prohibited by the 5th, 8th,
and 14th amendments of the Constitution of the United States.''
Does that supplant the original meaning we operated on for a
while, with the President's consent?
Dr. Zelikow. Yes; a hundred percent.
The Chairman. A hundred percent.
Dr. Zelikow. In fact, that extreme legal interpretation,
which I thought was appalling, was actually disavowed by the
administration and rewritten by the Department of Justice in, I
think, 2004.
The Chairman. It was disavowed, but we kept getting reports
that it wasn't--where would you think waterboarding would fall
into? I happen to, you know, there's an old, bad joke. If you
want to learn a subject, teach it. The last 18 years I've been
teaching separation of powers and the eighth amendment, as
well. And I--what's your judgment, Doctor, as to whether or not
under the eighth amendment waterboarding would be considered,
in any case, appropriate?
Dr. Zelikow. I used to be an eighth amendment lawyer many
years ago. It would be prohibited.
The Chairman. Right. It's not even close.
Dr. Zelikow. In my personal opinion, it would be prohibited
under the EO. It would not be a close call.
The Chairman. But, why do they keep using that as an
example of something that is appropriate?
Dr. Zelikow. I don't think the administration----
The Chairman. Read the memo.
Dr. Zelikow [continuing]. Will--does or will use
waterboarding as an example of a currently appropriate
interrogation technique.
The Chairman. Well, you would think, since it's received so
much publicity, so much publicity and was by the Vice President
and others, looked at as sort of, I forget the phrase, a no-
brainer if you want to get information. Don't you think in
order for us to regain some trust in this administration, an
outright disavow by the President of the United States of
America or the Attorney General or someone saying, ``By the
way, waterboarding is absolutely prohibited''? Because as I
travel around the world, our friends still think it's, we think
it's appropriate and they think we're using it. Do you have a
different impression?
Dr. Zelikow. I don't, Senator, and I think that's wise
counsel.
The Chairman. And you can maybe understand why guys like me
put zero faith in this administration's assertions, with
generic language like the 5th, 8th, and 14th amendments. And I
admit to you--my time is up--I admit to you that in my years
here with seven Presidents, there is a direct correlation
between legislative actions on the part of the Congress and the
degree of trust and confidence they have in a President. We've
seen this swing about, you know, the famous dictum, the War
Clause of the Constitution just invites the Senate, excuse me,
the Congress and the President to compete for who has what
responsibility--I'm paraphrasing it. And it just is, it's
amazing how difficult it is to get a straight answer out of the
Attorney General. Well, the Attorney General doesn't know how
to give a straight answer to anything, in his recent hearing
again. And that's not just coming from me, it's coming from
Republicans, as well, in that committee.
But, to get a straight answer from the administration on a
simple thing that is doing us incredible damage around the
world, like waterboarding, is absolutely prohibited.
Anyway, I just wanted you to understand, Doctor, why I
waited as long as I did to draft the legislation, hoping that
this could be, actually could be a consensus arrived at. But
anyway, my time is up. I'll come back. I yield to the ranking
member.
Senator Lugar. Well, thank you very much, Mr. Chairman.
I want to yield for a moment to my colleague from Tennessee
because he will have to leave and so I want him to have a
moment.
Senator Corker. Thank you, Senator Lugar and Mr. Chairman.
I do want to say, Mr. Chairman, that I think the comment
you made at the very end about the relationship to legislation
and trust is direct and I would also say that, obviously,
legislation transcends many administrations and, certainly all
of us, I know, want to keep that in mind as we look at this.
But I want to thank you for, I think, bringing excellent
witnesses who have framed this debate, I think, very, very well
and have educated us in a way that hopefully will lead to very
appropriate legislation. I want to thank you for this hearing.
Senator Lugar. I thank my colleague.
Let me just comment, Mr. Chairman, that I share Senator
Corker's views that this has been a remarkable education for us
and for all who will be witnessing this hearing. I suspect that
as someone pointed out already, our Nation faced, after 9/11, a
existential problem. Many felt that without trying to frame the
War on Terror and progress immediately, we were all in great
danger.
As someone pointed out, this has occurred before in
history, and I think Mr. Malinowski's testimony went through
various periods, perhaps not so extreme, and a lot argue that.
But, I would say that there is the possibility that after we
face the moment, we move ahead and we begin to reshape, rethink
what we are doing.
So, in the best light, perhaps by the time we come to 2007,
there is more thought about how the executive and legislative
branches might cooperate, how there could be, as you've all
pointed out, greater transparency, at least among us who have
some responsibility in the Government, legislators and
President and his administration. And from that, a dialog and
the checks and balances inherent in our system, perhaps better
policies. At least I hope that that is the case.
I appreciate when we get into forums of this sort, that
there will be at least some discussion of whether this
administration is more protective of executive privilege and
executive possibilities than have been others. And I don't want
to get into a constitutional argument on a scale of one to ten.
But nevertheless, there have been a great number of assertions
by this administration, which have not really been inviting to
those of us who might have had interest in these questions.
Conceivably, members of our Intelligence committees dwell
on such subjects from time to time behind closed doors and that
may be appropriate for security purposes to have closure and to
some extent. But I think, Mr. Chairman, you and I are not
members of either of the Intelligence committees, although I've
served 18 years during my time on the Senate Intelligence
Committee. And so I suppose I would resent the thought that--
the fact that I'm not a member of the committee precludes our
becoming involved in a dialog with the President or the
Secretary of State of Defense, whoever, on these issues. I
think it's very important.
I sort of come, first of all, to the basic thought that you
presented, General Eaton, and that is that as you enlist
members in the Armed Forces, you start with the thought that,
at least, that there is going to be a moral aspect to their
service. You've identified the Judeo-Christian tradition, maybe
some would expand that larger, but clearly that's maybe a good
standard to think about to begin with. And therefore, if, as a
part of training, or experience coming out of training, there
are at least violations of that moral code or tradition, on the
basis of expediency this is going to be a great problem. And
not just for those young men and women, but for our country,
for the continuity of our traditions. I think that's very
serious.
I don't think for a moment the thought that somehow people
are saying it's a common sense matter we're at war. So, that
was then, this is now, and so forth. Let's get over that. But
the thought, it's been 6 years since 9/11 and that we are still
at war and some would say, and that's part of the rendition
question, I guess, that it's sort of universal over many
countries, many involved.
But, I like the idea that was presented by, I think, Mr.
Zelikow, that national strategy here, in addition to being a
shared power situation, also should be a shared coalition
strategy. In other words, we have to get used to the fact that
we are going to have to have many partners, many countries who
share our ethic. It may be Judeo-Christian, it may be a broader
moral tone, but without that, why we're going to have continual
trouble. As we perceive now, potential negotiations in moving
the situation in Iraq along. We're really going to have to have
a lot of partners around the table, a very vigorous, continuous
diplomacy with people who trust us.
And so, I applaud the chairman's pushing to, at least,
bring greater clarification to this. I'm not endorsing the
legislation, I'm not familiar all the aspects. It seems to me,
however, the whole idea of rendition, as some of you have
pointed out as a practical matter of finding leads. I think you
said, Dr. Byman, the thought that the wrong person, in some
cases is almost inevitable given the hazards of the trail here.
Well, that's--that's a serious problem. And if you say, ``Well,
one in a hundred or two or so forth,'' is still serious. Under
our system of law we are not perfect, but we try to be. So,
even the concession that somehow this is almost bound to be
difficult.
And then furthermore, the thought that's one of the big
issues for much of our public that has thought about this, is
that it's expedient to send a prisoner to a country, one of you
have cited Syria as being especially egregious, but there have
been other candidates for this, which is well known. That the
problems of torture are likely to await somebody in that
situation. To knowingly send somebody into that situation
probably is worthy of a debate in the Congress, sort of a show
of hands. I'm not certain how many Senators would vote, simply
to say, ``Well after all, we're at war. You've got to be tough
about these things.''
Well, some of you have testified, even after you're tough
about some of these things, the information coming after the
torture in Syria or elsewhere may not be particularly useful.
And we're still, if it is utilized by our Government, as you've
suggested Dr. Malinowski, so the testimony even by our public
officials is informed by this sort of information.
So, I apologize for not asking any questions, but simply
editorializing.
The Chairman. Go ahead and take some more time.
Senator Lugar. But, I think this is a set of serious issues
that, sort of, come to a head at this point. What I would hope,
and maybe you're not in a position to judge this, but let me
just ask you, General Eaton. After all is said and done and you
say you've tried to train young men and women as they face
military service with high moral standards, and that's tough in
a war situation. And people have philosophized about that for a
long time. Where do things stand in your judgment now? What is
the outlook of our troops with regard to the sorts of things
we're talking about today? Do they regard this as something
that is above their pay grade? Somehow the President and his
people have ordained or the Congress, likewise, along with the
President. In other words, how do they look at these commands
of leadership that you're suggesting might have failed at Abu
Ghraib or elsewhere in which some people were asked, maybe, to
do some things that they morally felt were reprehensible. And
why did they go along with it in any event? What sort of
problems have led you to testify, as you have, publicly on
these subjects?
General Eaton. Thank you Senator. The American soldier, as
I observed, is an extraordinary wonderful human being. And he
will do the right thing. The tone that I discussed, that does
come through the chain of command, is vital to the good order
and discipline of any unit, from our largest command down to a
rifle squad. And that tone has to be aggressively transmitted.
When you are engaged in a war like what we have going on
right now in Iraq, where there are racial differences, where
you have men with white skin and men with brown skin, the chain
of command must address that cultural difference and must deep
down focus and provide the instruction of cultural awareness
with our soldiers.
So, men and women 18 years of age deserve that. They
deserve the anecdotal training. They deserve the, ``What now,
Sergeant?'' ``What now, Private?''-type of case-study approach
to managing situations, so our soldiers are inclined to do the
right thing. The chain of command is vital to ensure that that
happens.
Senator Lugar. And Dr. Zelikow, let me just ask a final
question of my time, and that is, your experience in government
and even this administration, as well as in the past, has been
extensive. What is an appropriate course of action for the
Congress or for the Senate, this body, at least where we have
some possibilities? How should we approach the President or the
Attorney General or others? With legislation? Should we wait
upon officials with committees of some of the leadership of
Congress? As a practical matter, if we are in process of moving
from the crisis of 2001 to something that is sustainable as a
nation policy, how do we go about this?
Dr. Zelikow. Several suggestions, Senator, with due
humility. Whenever making suggestions as to how Senators should
be affected.
Senator Lugar. I understand.
Dr. Zelikow. All right. First, where you have an enormous
comparative advantage is: You're supposed to represent the
values of the American people. So an administration, I think,
should draw on that.
Frankly, they're stronger and they're in a more sustainable
position with their policies if they feel like there's a basic
partnership of understanding that, here's what we think the
American people want us to do and here's the way we think the
American people want us to strike the balance. And to check
that and to check to see that our values are calibrated right,
we have a colloquy with the Congress and a partnership with the
Congress.
Where I think you have the comparative advantage is in
helping them sense where the balance should be struck. I think
you have a comparative advantage in that regard over executive
officials and should be part of the process.
You can be part of the process in several ways. In formal
legislation, I actually think we do need additional formal
legislation to address the future of Guantanamo and the future
incarceration of enemy combatants under the Law of Armed
Conflict, which is an option I think we need to retain, but
then do this in a way that's sustainable as a coalition and
sustainable under international law.
On rendition and interrogation, what I suggest here is, for
now, reliance on your oversight powers, not on new legislation.
Now the prerequisite to that was the administration had to make
the move to bring you in and brief committees more fully on
what was being done and treat this as a partnership with
Congress. I think that has now happened. Those decisions were
made last year and that is now working its way forward.
On the oversight side, for example, I gave the example of
what the British Parliament has recently done, in my statement.
You can look at the particular rendition cases that trouble
you. Dig into them. Figure out what you think went wrong in
those cases. Do a diagnosis. See if you think the executive
branch has learned its lessons and has adopted management
procedures that reassure you that this is now being run in a
more credible way. If they're not, recommend it. If you think
the accountable officials have failed in their public duties,
say so and use your tools that way.
If, in the final analysis, you think the situation simply
can't be resolved through oversight, and you really need a
systemic answer, and the problem is not just of a particular
official or a particular moment in time, then maybe
legislation, new laws, and courts as a last resort. I don't
think you're at that point yet. After all, the opposition party
has been in control of this body for only 6 months, too soon
for you to give up on your oversight role.
Senator Lugar. Let me just conclude by saying I think
there's merit in the suggestion that this committee or others
might take up half a dozen rendition cases and explore exactly
what has occurred. My guess is, just following up your idea,
that we are representatives of the people, our constituents,
and their feelings. My guess is they, our constituents, have no
more idea about these rendition cases than we do--except
anecdotally or press accounts or occasionally somebody who
happened to actually stumble into one.
But after you have, sort of, a dose of this, then there's
likely to be much more of a public opinion about whether this
is vital for our international security or important, in terms
of our national ethic and all. So, I'm intrigued by that
possibility. If we can't have these cases in a public session,
why I'd be prepared to look at some in private or at least on
paper, if somebody wanted to write them up and give my own
opinion.
Thank you, Mr. Chairman.
The Chairman. Thank you very much.
A point of clarification, if I may, and I'll yield to my
friend from Wisconsin.
The legislation that was briefly referenced that I
introduced, and we will have a hearing on it later, but I want
to make it clear. It doesn't end rendition. It says that
somebody other than the President--whose track record in 6
years has not been particularly admirable in terms of rule of
law--somebody gets to see what it is the President wants to do.
And that's the FISA Court.
I was one of the three drafters of that legislation back in
the old days when I was on this committee and Judiciary. And
for people out there listening, it's a secret court in the
sense that the Government walks in, talks to a Federal judge
having special responsibilities, and says, ``We want to do
this, Judge. This is the thing we want to do, is it
applicable?'' Basically, we're saying, ``Is it applicable under
the Constitution?'' And the values of the American people, I
kind of thought were embodied in the Constitution. That's why
we ultimately have a court. Because sometimes Presidents do
things that are not good, and sometimes Senators and Senate
bodies, in the heat of battle, in the heat of fear and concern,
do things that don't make any sense.
But, I just want to make it clear--all this requires is
each application for rendition go to that court and has to
include what date that the Attorney General looked at it and
says he wants to do this. That you have to specifically
identify the person you're rendering, and you have to give the
statement of why you're rendering him, just the facts. And, you
can't render him in a country which you know uses torture.
Now, I know of no other way and I'm wide open. I publicly
invite the administration to sit down and talk with me about
this, or any of us. But thus far, there has been not a whole
lot of forthrightness coming from the administration. So maybe
this will prompt it. I just wanted you to understand, that's
the operative element, piece of this legislation relating to
rendition.
Senator, thank you. I'm sorry.
Senator Feingold. Absolutely. Thank you, Mr. Chairman, very
much, and both the chairman and ranking member for their
comments.
It's long past time that we, as a nation, consider the
damage that the Bush administration's policies have done, not
only to our standing in the world, but to our ability to fight
al-Qaeda and its affiliates. I have opposed the CIA detention
and interrogation program authorized by this President on
moral, legal, and national security grounds. I strongly support
efforts to pursue, detain, and interrogate suspected members of
al-Qaeda. But in interrogating these detainees we should follow
the letter and the spirit of the U.S. Army field manual.
It is also my firm belief, which is widely shared in this
country, including in the military, that the refusal to abide
by this simple principle endangers our personnel overseas.
Whatever value the administration believes this program may
have, the cost to our larger strategic effort to mobilize
governments and populations in the fight against al-Qaeda has
been immense and it has made us less safe.
I understand this has already been alluded to, but I've
asked each member during my time here, each member of the panel
to address the impact that the administration's detention and
other related policies have had on U.S. credibility and
standing among the international community. How have they
affected our ability to be a leader in combating human rights
and other related atrocities, as well as our ability to lead a
strong and effective coalition against al-Qaeda and its
affiliates?
Let's start with Mr. Malinowski.
Mr. Malinowski. Well, as I suggested in my opening
statement, I think the impact has been devastating, both in
terms of our ability to protect our values and protect our
interests. I can tell you anecdotally, as a member of an
organization that goes around the world and tries to confront
governments that commit terrible human rights abuses, that
increasingly this is the answer that we get. They say, ``Hey,
we're just doing what the American's do. We're no different
than you.'' And, it's an exaggeration, of course. The United
States is not a dictatorship. We are not North Korea, we are
not Cuba, not even close. But we are the most influential
country in the world. We are a standard-setter.
Let me put it this way. If Saddam Hussein tortures a
thousand people in some dark dungeon, no one around the world
says, ``Oh, Saddam can do it. That means that's the new
standard. It's legitimate. So can we.'' The United States does
that to one person, then all bets are off. The whole framework
that we rely upon to protect our values around the world begins
to fall apart.
In terms of the impact on the war on terror, a number of
people have discussed that. I think it's devastating, as well.
Mainly because the fundamental task I think we have in this
conflict is to diminish the number of people who can be
recruited by the enemy. You know, we can't kill or capture all
of them. We have to diminish that population. We have to appear
legitimate in their eyes. Our enemy needs to appear
illegitimate. This makes that task impossible.
Senator Feingold. I find that interesting because I
remember meeting with the President in Congo in 1999 before 9/
11, before all of this and I was pressing him on this,
outrageous things were being done to journalists. And his
response was, ``You have a death penalty,'' which of course, I
happened to agree with him on that. That was, sort of, what
they had. And now, there's this menu of things that can be
thrown back in our face. I think that's a powerful observation.
Dr. Zelikow.
Dr. Zelikow. Well, I think foreign leaders judge us on two,
really on, well, on three main grounds. One, are we doing
things they like? Second, do they think we're competent? And
third, they do make judgments about our values, either to
strengthen a sense of solidarity with us or to accuse us of
hypocrisy and find solace for practices that they want to
condone.
So, I agreed with General Eaton's statement. I agree with,
actually, many of the things Tom Malinowski has said. And I
think that there were some serious problems in the way we
applied, not so much legal analysis, but moral analysis. And
policy analysis about what works in a systematic way, when we
made some early decisions as we mobilized to combat the war on
terror.
And so now we are left with the issue of what to do now?
But the issue of what to do now, in addition to restoring a
sense of credibility about our values, also has to address the
issue of competence. And people still have to regard us as
competent and formidable in being able to serve our own
interests, protect our countries. Because that's also a source
of respect and cooperation among these foreign governments. And
ultimately, you're going to sustain the value balance you want
with the American people if they think that you can manage to
protect the country while you're doing it. If they think you're
falling down in protecting the country and they become more
fearful, that's the most dangerous threat to civil liberties.
Senator Feingold. Thank you.
Dr. Byman.
Dr. Byman. Thank you.
There's no question that our interrogation policies have
hurt the U.S. image tremendously around the world. And I
applaud recent moves to bring this into accord with traditional
interpretations of U.S. law. I will point out, however, that
the pre-9/11 rendition program did not cause serious damage to
the U.S. reputation around the world, yet was quite an
effective program. And the question to me is: Can we go back to
retaining this program, using it at times in a way that I think
many critics would still be uncomfortable with? And, because
the image of the program is so tarnished by accusations of
torture, to me the key is trying to make sure the procedures
for reducing the abuses are clear, for embedding it more in
law, and in general for trying to make this more transparent.
So, we can point to any mistakes or problems as aberrations,
rather than as part and parcel of the program.
Senator Feingold. Very good.
General.
General Eaton. Thank you, Senator.
The tone that this administration has set has imposed upon
the military chain of command a far greater load than would
otherwise be necessary. Abu Ghraib is a--is symptomatic of that
drama, and Abu Ghraib is directly related to a command failure
in Iraq. So, I don't put the entire thing on the
administration, but the tone the administration sets today, has
imposed upon the military chain of command a far greater load
to ensure appropriate behavior on the part of the rank and file
in the military to ensure they do not interpret the use of
waterboarding and other unusual interrogation techniques as
appropriate and available to them for use at point of capture
or further down the processing of the prisoner.
Senator Feingold. Thank you all.
The Chairman. Senator Casey.
Senator Casey. Thank you, Mr. Chairman. I want to thank you
and Ranking Member Lugar for being with us today and getting us
together for this hearing. And, I think what you've seen here
today with this distinguished panel and with these two members
of our committee, the chairman and ranking member, you see the
way it should work, in the sense that these two Senators, both
chairman at one time or another, bring to bear about three-
quarters of a century of combined experience and are a great
example of what we should be doing in the Congress. And this
panel is, as well. Not everyone on this panel agrees, there's a
lot of difference of opinion.
The problem I have--and the problem a lot of people in this
capital have, not to mention millions of Americans--is that the
administration, in my judgment, doesn't share that basic
belief. Doesn't share the belief that we should have debates,
doesn't share the belief that we should have differences of
opinion and try to work things out. This is a ``my way or the
highway'' administration.
And look, I know some people will say, ``Well this guy's a
Democrat, and it's the usual Democratic line.'' But I'll tell
you, when it comes to an issue like this, that is so difficult,
and so complex, and balances very difficult principles.
On the one hand, the urgent matter of finding and
destroying terrorists around the world and on the other hand,
the other side of the balance, the rule of law and our values.
And I have to say, Doctor, your testimony today was very
compelling. In terms of the scholarship, in terms of the
underpinning that you put in your testimony, in American law,
in our history and our traditions, and the urgent fight we have
against terrorists. And I appreciate the fact that, contained
within your testimony, you talk about oversight and you talk
about the role that Congress can play.
But I have to say, I don't think this administration really
believes that, and it pains me to say that. And I also believe
that it's different than almost any administration we've seen
in 50 years, some believed it more than others. But this crowd
is different. This is a different group of people that are in
charge of the executive branch. And I know that there are a lot
people that support the President who would say, ``You know,
when allies complain that we're not working with them, that we
have a kind of unilateral policy, they're just whiners.'' The
administration says, ``All those allies are complaining.''
But you know what? I think there are a lot of people in the
House and the Senate--I've only been here 6 months and I feel
it--a lot of people in the House and Senate who understand what
those allies are telling us--that there's little collaboration,
that there's not a belief in oversight, and all of that, I
don't want to belabor it, but all that brings me back to your
testimony, Doctor.
On page seven, you talk about the President's Executive
order and you say, ``I believe the Executive order can set
interrogation practices on a sustainable path, addressing
concerns about some of the practices that have been alleged in
the media.'' And you go on from there. But before you say I
believe, you have these two words, ``properly applied.'' And
that's the problem. There are too few people in the Congress, I
would argue with good reason, that believe that no matter what
the Congress does, that no matter what the rules are, no matter
what the law says, that this administration will not properly
apply it, because it is their belief that the rules don't
matter. That as long as they have a goal in mind, that anything
goes to get to that. And I don't like saying that, I don't like
saying that at all. And, I think that's at the foundation of
this discussion, is that lack of confidence that this
administration really believes in the rule of law when it comes
to these things and really believes in congressional oversight.
And I hate to ask you to comment on that because I'm putting
you in a bad position, but I just want to give you a few
minutes to respond to that and I also want to ask a question of
the General.
Dr. Zelikow. Well, my first answer, Senator, is: Since when
do you need administrations to believe in your oversight
powers? They'll always say they believe in it, but they never
like it when they see it. So, you just need to do what you need
to do and you need to----
Senator Casey. We will.
Dr. Zelikow. The Constitution was----
Senator Casey. We will.
Dr. Zelikow. OK. And the Constitution wasn't designed so
that the Executive and the Congress would like the way each
play their roles, but you've each got your roles to play in the
design. And I think there's an opportunity here to do that. My
worry is, and the reason I stressed the oversight
opportunities, which I think could be more explored. That would
be constructive. You're seeing concerns about abuses. You need
a constructive answer to that, better than just saying: I
really don't care that much about this.
But, I do worry that sometimes if you act for a legislative
cure because of breakdown in trust in executive discretion in a
particular administration, you'll set in motion things that
will have effects you can't foresee. I remember what happened,
for example, after the Church Committee disclosures of
executive abuse in the 1950s and 1960s. We did a lot of things
in the 1970s where the pendulum swung pretty hard the other
way, and it had some pretty fateful consequences we later came
to regret.
When I worked on the 9/11 Commission we did the whole
history of the wall between criminal and intelligence sharing
of information--and we went through, where did this wall come
from? How was it erected? And there was a whole story there and
it was erected, basically, as an understandable response to
executive abuses, but once you've built it, it was there for a
long time, and it grew, and it actually began to cast
bureaucratic shadows that were far larger than, actually, the
formal legal rules underneath it, and then became a really
important aspect in the story that led to the catastrophic
attack on the United States.
So, I just approach the issue of systemic legislative
remedies in a really difficult area like this with great
wariness and care because of the unforeseen consequences of
adopting entirely new legal requirements and court
requirements. And I tried to spell out how that might actually
work in practice.
But fundamentally, you're going to have to have--you're
going to have to have some ability to trust the exercise of
executive discretion and feel that it's being done credibly if
you're going to grant the executive discretion in such a
terribly dangerous and awesome area as this.
Senator Casey. Well, and I appreciate that. We need to have
that trust, but they've got a role to play as well. And when
you see what's transpired, just think of what happened in the
last 24 to 48 hours. We have an Attorney General who's been on
Capitol Hill, hour after hour now, for many weeks. His
credibility now has been questioned to the point where a
Republican member of the committee is questioning now, not
whether or not something was a little misleading, but whether
or not he committed perjury or something very close to that.
Now, even if you could wave a magic wand and say nothing
about the top law enforcement officer in the country, nothing
about his credibility is based upon some dishonesty or some
breach of the public trust. The lack of confidence alone is
reason that he should not be there. But the reason he stays
there, in my judgment, is because this administration, on a
fight like this, has a two-word strategy, ``Just win.''
So if people on Capitol Hill are calling for a change
there, they're going to resist that to the end of the earth.
They'll never make a change there. I think the country expects
that. Even if you say, ``We're going to replace him with
someone of a like-minded point of view or ideology, that's
fine.'' But when the top law enforcement officer's credibility
is questioned to the degree it's been questioned to this point
in time, my God it's time for some kind of change. And that's
the problem. I mean, how do they expect Americans to believe
them when he's still there and he's the Attorney General? And
they make pronouncements about legal doctrine on torture, or on
any other significant legal issue.
So, I'll tell you, we certainly have our role to play, but
I think the administration has a long way to go to restoring
some measure of the confidence that has to be the--has to
undergird the way the executive and legislative branches
interact. And I think that's been, been pretty close to being
destroyed, but at a minimum has been frayed in a way that I
don't think we've seen in recent American history. But that's
only one man's opinion.
The Chairman. You can have more time, Senator.
Senator Casey. I know I'm over, but I did want to ask the
General one quick question. You make some very compelling
statements about the meaning and the impact, I should say, of
the administration's policy on the military. And, in
particular, you say on the second page of your statement,
``Indeed the risk of attack against the American soldier
increased,'' after you had made the assertion that we've
undoubtedly lost allies in the fight for Iraq because of our
policies on extraordinary rendition, secret detention, and the
use of torture. And I just wanted to have you expand upon that
and what your sense of that is. Because I think that's what
people are concerned about, in addition to the fine points of
the legal issue.
General Eaton. Thank you, Senator. The wise commander in
Iraq will always ask at the end of the day: Did we create more
enemies than we captured or killed by the actions of the
American soldier on the ground in Iraq? And the way you treat
the individuals when you--when you break into their house, when
you go into their home to convince yourself that there are no
weapons, contraband, enemy in the home. Your behavior when you
do that, will create a legacy within that house.
I mentioned that my senior Iraqi advisor, now the No. 2
man, had two home incursions by the American soldier. The first
one went very, very well, very polite. ``Sir, we need to come
into your home,'' and he opened the door. The soldiers went
through the house and were convinced that all was well. The
second incursion did not go that well. We had a long talk about
the outcome. And he said, ``What happens, particularly to an
Arab, when you go into a house and do not treat the men and the
women with respect, is the legacy is very serious, and the
issue of revenge is very much on the table.''
And we have created, by certain misbehaviors, more enemy
than we needed to. And they weren't--they didn't want in the
beginning to be an enemy, but every prisoner that you mistreat,
when you put them back on the street is going to come back and
exact his revenge. So, it has become, clearly, more dangerous
for the American soldier because we have created vengeful men
where they did not exist before our treatment of them.
Senator Casey. Thank you.
I know I'm over time. Thank you.
The Chairman. General, is it, this is Monday-morning
quarterbacking, and you're a pretty precise guy, so you might
not want to do this, and it may not even be a fair question to
the President, or to you. But, do you think that had Abu Ghraib
not occurred or had--when it occurred, we took really
extraordinary action. For example, I think--I'm not sure
whether you and I went down to see the President after Abu
Ghraib together. The President had asked me to come down. He
often asked Senator Lugar and I over the years, the last 4 or 5
years, and I asked him about Abu Ghraib. It was right on the
heels of it, within days of it being made public. He said,
``Well we have a serious,'' and he was being serious, he said,
``We have a serious''--I'm paraphrasing now--``a serious
cosmetic problem,'' in other words an appearance problem.
And, my response was, ``We do, and it requires a serious,
serious public relations response.'' And he asked what I would
suggest and I said, ``Bulldoze down Abu Ghraib, literally
bulldoze it to the ground. Let the whole world see it, and turn
around, and build a hospital on that site. Turn around and
build a library on that site, do something.''
And it was interesting, a couple years after, recent, not
in the distant past, the President made an aside to me in one
of the meetings that something that drastic should have
happened because he underestimated the impact of it, or
something to that effect. He didn't use the words, ``I
underestimated the impact.'' Had we either not been engaged in
the behavior some of our military was in that prison, or had we
acted with overwhelming response to demonstrate how disgusting
it was to us, do you think--and I mean this in a literal
sense--do you think there would have been more cooperation when
we knocked on doors? Or do you think it is, I know that's hard
to judge, I mean, but can you talk to me about that? I mean, I
guess what I'm getting at here is what do we do when we make
serious mistakes like Abu Ghraib obviously was? Is there
anything after that point we can do to better our circumstances
and our chances in the field? Or do we just, it's a watermark
we pass and there's not much we can do beyond that?
General Eaton. Thank you, Mr. Chairman.
We have a saying in the Army that ``bad things happen to
good units,'' as well. And when something bad happens to the
unit, then you open it up, you shine the bright light on it and
you investigate it and you solve it as quickly as you can and
if somebody's to be found guilty then you handle that with
great speed.
Abu Ghraib was allowed to fester. It came to the light of
day by means of the press rather than the President of the
United States or the Secretary of Defense coming up and taking
the podium and say, ``Ladies and gentlemen we have a problem.
This is what's happened and this is what we're doing about
it.'' Had we done that, it would have saved me, personally, and
a lot of other Americans in Iraq, a lot of pain trying to
explain to the Iraqis they were working with what was going on
in Abu Ghraib. And your comments about its impact, and would it
have changed things? Absolutely. Had Abu Ghraib not happened,
we would have kept that moral high ground that we had
heretofore enjoyed.
The Chairman. The thing you often hear, and I like a
closing question, ask any of you to comment on, but start with
you again, General, is, when I said that there was someone in
the meeting, as I recall it, in the Oval Office, who said that
the--I'm again paraphrasing--said that the Iraqis are used to
torture, that it was engaged in by Saddam Hussein. In that part
of the world it's not viewed the same way, with the sense of
moral outrage that it's viewed in countries that don't engage
or haven't engaged in torture.
And you heard that, sort of, reverberate. I can't name a
time, a person, but that sort of was a counterdefense, like,
you know, do you think they're surprised?
I mean, do you think it matters to them very much because
look, Saddam did that, everybody does that in this region and,
you know, so the idea that we're going to be damaged very badly
is a vast exaggeration. That was a subtext, that I read anyway.
Maybe I'm mistaken. That was, sort of, a subtext justification
for not having acted swiftly, for not having acted more
strongly, for not having held people accountable, for not
having done something of visual consequence to demonstrate to
the Arab world that we found it reprehensible.
Because it was, ``Well they expected that, they expect, you
know, people who arrest countries or individuals, arrest bad
guys, that you're going to engage in that torture.'' So, it
really didn't have any impact on us. I mean, did you hear any
of that justification bounced around or was I the only one
that, kind of, you know, got a sense of that every time I'd
press someone in administration or others who are defenders of
the administrations?
I'd like any of you to comment on that, if you could.
General Eaton. The reaction on the part of the Iraqis to
Abu Ghraib was profound and immediate. And my colleague's
testimony, ``If Syria does that, no surprise. It the United
States does it, it is a huge event.''
The Chairman. Because I assume--because they assumed that
we had higher standards and higher values.
General Eaton. Absolutely.
The Chairman. How would you all respond to that? I'd like
each of you, if you wouldn't mind.
Mr. Malinowski. Well, I'd agree with you, with the General.
We are different, and we say we're different. It's part of our
self-image, it was part of the justification for the war. There
was a moral justification for the war, which we made, and I
think many believed. And, what these policies did was just to
foster a tremendous cynicism among Iraqis, among others. So
that whenever we made that moral justification, whenever we
said that we are about is a set of interests and values that
unite all of us. They were just profoundly cynical about that.
The Chairman. Gentlemen, either of you have any comment?
Dr. Zelikow. Well, two, Senator. First is, we actually
looked at bulldozing Abu Ghraib.
The Chairman. I--say again?
Dr. Zelikow. We actually looked at bulldozing Abu Ghraib
and razing it to the ground, for exactly the reasons you
commended the idea. I don't know whether your idea somehow
percolated into the State Department by osmosis or whether we
had it on our own, but I remember looking at it personally. I
thought it was actually a pretty intriguing idea. And then it
turned out we needed the bed space for detaining Iraqi
prisoners and there was a story.
The Chairman. Yeah. No; but I think that's probably true.
When the President asked me, why don't you just say it's your
intention to bulldoze it down? It just takes time to remove
these prisoners.
Dr. Zelikow. No; and you're making a larger point now about
the tone that leadership sets in trying to find some way of
dramatically illustrating the conviction with which you mean
these principles. And I think those are, I think those are
important points.
And the second comment I just wanted to offer is: If you
heard people talking about, kind of, Arab values and how they
go along with stuff like that, you see how totally inconsistent
that is with the President's repeated and insistent and, I
believe, completely sincere views that it's not just our
values, that they have these values too----
The Chairman. Right.
Dr. Zelikow [continuing]. And you shouldn't be patronizing
and thinking that they actually don't care about freedom and
they actually don't care about human rights. I mean, the
President practically bristles when people use that kind of
phrase around him. And of course, it's just that patronizing
attitude that is evident in the kind of whispering you heard.
And I think the President would be the first in adamantly
disavowing that kind of argument as being an admissible
argument for Americans to consider.
Dr. Byman. Senator, I'll briefly add two additional
problems this created. One was, we're foreigners in Iraq and we
were doing abuses that we're not only morally outrageous, but
they were being done by an occupying power and that resentment
was especially large because it was not the government of the
people, in terms of how they saw their own representatives,
their own government doing it. But perhaps an even bigger
problem for counterterrorism was that the reverberations were
felt for other detention programs of the United States, for
Guantanamo, for the secret prison program. When abuses--when
problems happened in these programs, immediately much of the
world, and many Americans, thought of Abu Ghraib. And they
thought that this is what is going on. And it was extremely
hard to shake this perception, even though in several
individual cases what was going on was not necessarily
wonderful, but was quite distinct.
The Chairman. Well, gentlemen, I really appreciate your
testimony.
You all gave equally good testimony, but I just want to go
back to you, General.
One of the things that I've been worried about--and I'll
end with this--that I've been worried about from what I
consider to be a debacle in Iraq, in the way in which it was
handled. I don't mean just Abu Ghraib, is that people who are
most upset about the war--and that's many people--I think,
instinctively, lay the blame on the military. And I find myself
constantly on the road talking about this and having to say, to
set the record straight, that my deep involvement as Senator
Lugar's deep involvement from day one in trying to affect,
alter, support, change this policy was that the most reluctant
partner, the most reluctant force in the U.S. Government about
going to war, when we went to war, how we went to war, what we
did during the war, what their strategy should have been--has
been the military.
All of the things I come back, when I come back, or the
chairman comes back, and we go on these, you know, meet the
presses and we say, ``We found this.'' I'm not hearing it from
press people, I'm hearing it from military guys and women,
people wearing stars and bars and stripes on their sleeves.
And so, I just want the record to show, and the reason why
it's so important for you to be here. That, this wasn't a case
where, you know, you've got a military run amuck, either in its
strategy or in its actions. I think it's important because what
I'm worried about, is I'm worried about, to use an old
neighborhood expression, you guys are going to wear the jacket.
I remember us sitting in Oman with a--I think we were all
together. I was coming back from--no, I'm sorry, I was with
another Senator--it was my first trip into Kirkuk, I mean into,
excuse me, Arbil before the war began because I wanted to meet
with Talibani and Brazani to see what the deal was with them.
And we went down to Oman and we were, General Franks, and we
walked into a room twice as big as this with a giant screen,
literally as big as that back wall. And I was told there were
101 generals and command officers at consoles, sitting there
with computer consoles and you were doing war games on that
screen in case the President asked you to go.
And I was asked to speak to these folks. Each one had
forgot more about military tactics than I'm going to learn. And
I looked at General Franks and I said, ``What do you want me to
say?'' He said, ``Just tell them the truth.'' And I realized
what he meant. And I got up, and the first thing I got asked by
a three-star general, Special Forces guy, ``If we're asked to
go, are the people going to be with us, remain with us,
Senator?'' And I said, ``Well, it depends on what the President
tells them about how hard this is going to be afterwards.'' And
that generated a discussion among these generals.
I want to say for the record, there was not enthusiasm in
that room. There was absolute resolve, that if you asked us to
go, we will go, and get the job done. But the idea that we, the
military--they the military--are the architects of this policy
and signed on. I just remind people--remind people of what the
Chief of Staff of the Army said beforehand and what happened. I
remind people how hard it was to get a new commander in the
region. I want to remind people how difficult it was to get a
Chairman of the Joint Chiefs of Staff and the people that got
passed over, who passed it over.
So, I just want to thank you, General. It's very important
to me as a U.S Senator, that the reputation and the leadership
and the confidence of the American people in the military
leaders of this country not be, take the hit here, because
there's a lot of guys, of women. The vast majority with whom
I've spoken to, in country, out of country, retired and still
there, who are men like you who would have done it, you're not
saying it, a different way had you been able to do it the way
you wanted to do. And you're showing up here.
I bet it surprises people that a four-star general is
coming here, talking about ``We can't torture, we shouldn't do
these things, we should have a better.'' I just want to put
that down for the record. Because as I said, I'm afraid--and
I've been saying this for 3 years--I'm afraid when all is said
and done, when this chapter in our history is over--there's
going to be a lot of revisionist history talking about how you
guys who put your life on the line, and many lost their lives,
somehow, one of the--would have done it the way it was done.
I'm not asking you to comment, get you in trouble, but I
want to thank you and tell you how much I appreciate you and
all your colleagues.
I thank you all. I'd end by saying that if--I would really
appreciate the constructive criticism of the legislation. I
don't have any--my pride of authorship is that I'm trying to
figure out how to do something rational so that we set basic
standards. And so, I invite both of you or--actually, all of
you--to give me any constructive criticism you have about, not
only whether to do it, but if you do it, what to do and what's
wrong with the legislation and how it should be changed, if you
can. I know that's asking a lot, but I'd appreciate it if you'd
consider it.
Again, I thank you very much.
This hearing is adjourned.
[Whereupon, at 12:45 p.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
Press Release of Senator Joseph R. Biden, Jr.--July 26, 2007
biden champions legislation to strengthen counterterrorism authorities,
restore rule of law
Washington, DC.--In advance of today's Senate Foreign Relations
Committee hearing to examine the practice of extraordinary rendition,
chairman of the Senate Foreign Relations Committee and senior member of
the Senate Judiciary Committee, Senator Joseph R. Biden, Jr. (D-DE)
introduced the National Security with Justice Act of 2007. The
legislation offers sweeping reforms of United States policies governing
the apprehension, detention, treatment, and transfer of suspected
terrorists. The practice of detaining a suspect in one country and
transferring him to another is known as ``rendition.''
``We need to get terrorism suspects off the street so that they're
no longer a threat. But that's a short-term solution and terrorism is a
long-term problem,'' said Senator Joe Biden. ``To solve the long-term
problem, we need policies that will help us build effective
counterterrorism coalitions with foreign governments and diminish
recruitment. This is a fight we won't win by ourselves and we won't win
by force of arms alone. By bringing rendition within the rule of law,
banning torture, and shutting down black site prisons, this legislation
does that.
Rendition is an effective means of capturing terrorism suspects and
gathering valuable intelligence. Despite its effectiveness, however,
the United States Government's use of rendition has been controversial.
Foreign governments have criticized the practice as ungoverned by law.
Moreover, they have decried the alleged use of rendition to transfer
suspects to countries that torture or mistreat them or to secret,
extraterritorial prisons. Our relations with several key foreign
governments have eroded as a result, throwing a stumbling block into
our efforts to build the effective international coalitions we need to
combat terrorism.
Italy has indicted 26 Americans for their alleged role in a
rendition. Germany has issued arrest warrants for 13 United States
intelligence officers for their role in another alleged rendition. A
Canadian Government commission has censured the United States for
rendering a Canadian-Syrian dual citizen to Syria. The Council of
Europe and the European Union have each issued reports critical of the
U.S. rendition program and European countries' involvement or
complicity in it. Sweden, Switzerland, and the United Kingdom have each
initiated investigations as well.
The National Security with Justice Act also closes a hole
intentionally left open by the President's recent Executive order on
the CIA's treatment of detainees. The President's order is notably
silent on some of the more controversial techniques the CIA has
allegedly used in the past, such as waterboarding, sleep deprivation,
sensory deprivation, and extremes of heat and cold. Senator Biden's
bill closes this hole by prohibiting all officers and agents of the
United States from using techniques of interrogation not authorized by
the United States Army Field Manual on Intelligence Interrogation.
``The United States has always been the pole star by which the
world has set its moral compass. The world is looking to us again to
develop counterterrorism authorities that comport with human rights and
the rule of law. This legislation does that by keeping rendition in our
arsenal of counterterrorism weapons, but ensuring that it reflects core
American values--protection of basic human rights and respect for the
rule of law,'' said Senator Biden.
More specifically, the legislation will:
Prohibit Extraordinary Rendition
This legislation creates new safeguards by requiring intelligence
services to apply for and obtain an order of rendition--similar to an
arrest warrant for national security purposes--from the FISA Court
prior to any rendition. The application and order process ensures that
rendition is used only if we have solid intelligence indicating that
the suspect is a dangerous terrorist. Most importantly, the bill
prohibits rendition to countries that torture or mistreat detainees or
to secret prisons. The bill includes an emergency exception allowing
intelligence services to obtain an order of rendition after taking an
individual into custody (but always before that individual is turned
over to another country) when special circumstances exist.
Close Black Sites and Extra-Judicial Prisons
This legislation will prohibits U.S. detention of terrorism
suspects in secret, extraterritorial prisons such as CIA ``black
sites.'' Under this legislation, the United States must timely transfer
terrorism suspects to legal custody in the United States or a foreign
country that will not torture or mistreat them.
Prohibit the Torture or Mistreatment of Detainees in U.S. Custody
This legislation closes gaps intentionally left in the President's
July 20, 2007, Executive order to allow the CIA to use interrogation
techniques prohibited by the Army Field Manual. The legislation
prohibits all U.S. personnel, including the CIA, from using
interrogation techniques not authorized in the Field Manual.
Modify the Definition of ``Unlawful Enemy Combatant''
This legislation changes the Military Commission Act's definition
of the term to clarify that U.S. citizens or lawfully admitted aliens
taken into custody within the territorial jurisdiction of the United
States cannot be considered unlawful enemy combatants. These
individuals must be prosecuted within the criminal justice system.
Extend Habeas Corpus to Detainees
This legislation repeals the provisions in the Detainee Treatment
Act and Military Commission Act that purport to deprive Guantanamo
detainees of the writ of habeas corpus--the ability to argue to a court
of law that they are being held in error. The legislation clarifies
that all detained terrorism suspects held by the United States can
invoke habeas corpus to challenge their classification as an unlawful
enemy combatant and their conviction by a military commission of a war
crime.
______
Responses of Dr. Zelikow to Questions Submitted by Senator Feingold
Question. In your recent speech about the administration's
counterterrorism policies you indicated that dubious legal
interpretations became a substitute for moral and policy deliberations.
Can you provide any specific examples from your time in the
administration? Can you offer examples you have personally observed?
Answer. The formative policy development that I discussed in my
April 2007 address was during the first Bush administration. I was not
an official in that administration. My address did describe the policy
choices of concern, including policies on the treatment of terrorist
captives.
Question. You describe the failure of administration lawyers to
apply moral reasoning to their analyses, which in turn perverted the
policymaking process. Did no one raise moral concerns, or were those
concerns overridden? Do you believe that administration policies have
been immoral or amoral?
Answer. I went as far as I could, given my limited first-hand
knowledge of the details of how these matters were actually decided in
those earlier years and the agreements I have signed concerning the
disclosure of classified information learned during my government
service. My address was worded accordingly.
Question. You have described a ``deformed'' public debate on
counterterrorism policy. In fact, you have said that the public
discourse became ``coarsened'' into questions like ``are you for civil
liberties?'' or ``are you for fighting terrorism?'' You describe the
polarizing false choice of ``liberty versus security'' as ``one of the
most vicious byproducts of the debate.'' I couldn't agree more. I
believe that the administration's repeated attempts to cast its critics
as somehow opposed to fighting terrorism has been worse than unfair. It
has been highly damaging to our country. In your speech you stated that
this polarizing rhetoric ``can be politically useful, but it is bad
policy.'' In your view, what came first, the polarizing political
rhetoric or the bad policy, and which informed the other?
Answer. I don't know. So I commented on what was evident. As a
sometime historian, I expect that these choices will eventually be
analyzed with care. I offered what I called a ``hypothesis'' that later
study, with access to much more evidence, may confirm.
______
Prepared Statement of Amnesty International USA, Washington, DC
Amnesty International commends the Senate Committee on Foreign
Relations for having the first open hearing in the Senate to
investigate the current practice of extraordinary renditions.
Amnesty International's 1.8 million members worldwide are dedicated
to working against human rights abuses committed by governments and
armed groups around the world. For more than four decades, our work has
been guided by the Universal Declaration of Human Rights and other
international laws and standards, including the Geneva Conventions and
the Convention Against Torture, which the United States championed and
helped create over many decades. Our annual report summarizes human
rights concerns in 149 countries and territories. We strive to be
objective and impartial.
Amnesty International joined the world in condemning the brutal
attacks on September 11, 2001, denouncing them as crimes against
humanity and demanding justice in accordance with the law. Amnesty
International recognizes that governments not only have the right, but
the obligation to ensure the security of their people. The best and
most effective way to promote security is to preserve human rights and
the rule of law. Departure from long established, fundamental legal
protections only promotes lawlessness and ultimately makes everyone
less safe.
The world looks to the United States as a leader to set the
standards for protecting and promoting human rights, human dignity, and
the rule of law. That is why it is especially devastating that policies
and practices of the U.S. Government today are inconsistent with U.S.
law and international human rights standards. Evidence continues to
mount of U.S. complicity in the extralegal transfer of people into the
custody of countries where they are at risk of torture and other human
rights abuses.
Amnesty International uses the term ``rendition'' to describe the
transfer of individuals from one country to another, by means that
bypass all judicial and administrative due process. In the ``war on
terror'' context, the practice is mainly--although not exclusively--
initiated by the United States, and carried out with the collaboration,
complicity, or acquiescence of other governments. The most widely known
manifestation of rendition is the secret transfer of terror suspects
into the custody of other states--including Egypt, Jordan, and Syria--
where physical and psychological brutality feature prominently in
interrogations. The rendition network's aim is to use whatever means
necessary to gather intelligence, and to keep detainees away from any
judicial oversight.
However, the rendition network has also served to transfer people
into U.S. custody, where they may end up in detention centers in
Guantanamo Bay, Cuba, Iraq, or Afghanistan, or in secret facilities
known as ``black sites'' run by the Central Intelligence Agency (CIA).
In a number of cases, individuals have been transferred in and out of
U.S. custody several times.
Rendition is sometimes presented simply as an efficient means of
transporting terror suspects from one place to another without redtape.
Such benign characterizations conceal the truth about a system that
puts the victim beyond the protection of the law, and sets the
perpetrator above it.
Renditions involve multiple layers of human rights violations. Most
victims of rendition were arrested and detained illegally in the first
place: Some were abducted; others were denied access to any legal
process, including the ability to challenge the decision to transfer
them because of the risk of torture. There is also a close link between
renditions and enforced disappearances. Many of those who have been
illegally detained in one country and illegally transported to another
have subsequently ``disappeared,'' including dozens who have
``disappeared'' in U.S. custody. Every one of the victims of rendition
interviewed by Amnesty International has described incidents of torture
and other ill-treatment.
Because of the secrecy surrounding the practice of rendition, and
because many of the victims have ``disappeared,'' it is difficult to
estimate the scope of the program. In many countries, families are
reluctant to report their relatives as missing for fear that
intelligence officials will turn their attention on them. The number of
renditions cases currently appears to be in the hundreds: Egypt's Prime
Minister noted in 2005 that the United States had transferred some 60-
70 detainees to Egypt alone, and a former CIA agent with experience in
the region believes that hundreds of detainees have been sent by the
United States to prisons in the Middle East. However, this is a minimum
estimate. Rendition, like ``disappearance,'' is designed to evade
public and judicial scrutiny, to hide the identity of the perpetrators
and the fate of the victims.
Amnesty International welcomes Senator Biden's commitment to
holding oversight hearings and passing legislation to curb this
unlawful practice. Any legislation addressing the practice of
extraordinary rendition must also address the use of diplomatic
assurances. AI considers diplomatic assurances, which the U.S.
Government relies on in certain cases, to be unacceptable as evidence
that no substantial risk of torture or ill-treatment exists in the
receiving state. We note also that, in his interim report to the
General Assembly, the U.N. Special Rapporteur on torture also expressed
the firm view that such assurances are unreliable and ineffective in
the protection against torture and ill-treatment; that such assurances
are sought usually from states where the practice of torture is
systematic; and that states cannot resort to them as a safeguard where
there are substantial grounds for believing that a person would be
subjected to such treatment upon return.\1\
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\1\ Report of the Special Rapporteur on torture and other cruel,
inhuman, or degrading treatment or punishment, U.N. Doc. A/60/316, 30
August 2005, paras. 51-2.
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Experience has shown that monitoring alone does not mitigate the
threat of torture when diplomatic assurances are obtained from
countries with a record of using torture and ill-treatment on suspects
in custody. The U.N. Committee Against Torture laid out four factors
that must be taken into consideration before accepting such assurances
from any country. In its periodic review of U.S. compliance with the
Convention against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, the committee stated: ``When determining the
applicability of its nonrefoulement obligations under article 3 of the
Convention, the State party should only rely on `diplomatic assurances'
in regard to States which do not systematically violate the
Convention's provisions, and after a thorough examination of the merits
of each individual case. The State party should establish and implement
clear procedures for obtaining such assurances, with adequate judicial
mechanisms for review, and effective post-return monitoring
arrangements.'' \2\
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\2\ http://www.ohchr.org/english/bodies/cat/docs/AdvanceVersions/
CAT.C.USA.CO.2.pdf.
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The need for these critical safeguards was brought to light by the
cases of Mohammed El Zari and Ahmed Agiza. Following their forcible
return to Egypt, Mohammed El Zari and Ahmed Agiza alleged that they
were tortured while in custody. The Swedish Government has stated that
there had been discussions with the Egyptian Government about the right
to visit them in prison. The Swedish authorities also requested that
personnel from the Swedish Embassy in Egypt would be allowed to attend
their trial.
In the end, notwithstanding the diplomatic assurances, Mohammed El
Zari and Ahmed Agiza were, in fact, held incommunicado after their
summary expulsion to Egypt. When they did get to see the Swedish
Ambassador during his first visit, which only took place 5 weeks after
they had been returned to Egypt, they both told him that they had been
tortured or otherwise ill-treated in detention.
During the Swedish Ambassador's first prison visit to Ahmed Agiza
on January 23, 2002, Ahmed Agiza complained of being forced to remain
in a painful position during the flight from Sweden to Egypt, of being
blindfolded during interrogation, of beatings by prison guards, and of
threats against his family by interrogators.
Mohammed El Zari has subsequently complained that he was
interrogated for a further 5 weeks during which he was subjected to
torture or other ill-treatment, including by having electric shocks
applied to his genitals, nipples, and ears. Further, he has stated that
his torture was monitored by doctors who made sure that it would not
leave him with visible scars. He has recounted how, eventually, he was
forced to confess to crimes that he had not committed. Mohammed El Zari
has also stated that he continued to attempt to alert the Swedish
Ambassador to what was going on. In addition, the Swedish Ambassador's
first and subsequent prison visits were not conducted in private;
Egyptian prison personnel were present and took notes.\3\
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\3\ For more information on this case, see Amnesty International's
report ``The case of Mohammed El Zari and Ahmed Agiza: Violations of
fundamental human rights by Sweden confirmed,'' http://web.amnesty.org/
library/Index/ENGEUR420012006?open&of=ENG-SWE.
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This case--in which Sweden relied on ``diplomatic assurances''
purporting to sufficiently reduce the well-founded risk of torture
faced by the two men upon return to Egypt--illustrates the flaws
inherent in resorting to such assurances. Diplomatic assurances are, in
effect, attempts to replace insistence on full, statewide
implementation of binding multilateral treaties and customary
obligations prohibiting torture and other ill-treatment absolutely,
with bilateral arrangements secured with states which fail to respect
their multilateral international obligations in the first place.
Diplomatic assurances' inherent flaws have prompted Amnesty
International and other human rights nongovernmental organizations, as
well as U.N. and other international experts and mechanisms, to oppose
their use in principle, and to denounce them as practices that
circumvent, and therefore undermine, the absolute prohibition on
torture and other ill-treatment generally, and the prohibition of
refoulement, in particular.
Amnesty International will continue to press the U.S. Government
not to accept diplomatic assurances as a basis for return, to cooperate
with any and all investigations into this reprehensible practice, and
to ensure accountability for any of its agents who are found to have
violated the laws of the countries in which they are operating. The
practice of extraordinary renditions violates U.S. and international
law, has led to false confessions under torture, and has interfered
with U.S. relations with its allies. Recently, John Bellinger, legal
advisor to Secretary of State Condoleezza Rice, told journalists in
Brussels ``I do think these continuing investigations can harm
intelligence cooperation--that's simply a fact of life.\4\ It is
Amnesty International's position that it is the illegal behavior of
U.S. agents overseas and policies that directly contravene
international law that have interfered with U.S. relations with its
allies. Rather than criticize European bodies for investigating alleged
human rights abuses, the United States should fulfill its own
responsibility to conduct investigations and cooperate with others in
order to ensure transparency and accountability for policies that
violate its laws and treaty obligations. This hearing is an important
step in that process.
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\4\ Craig Whitlock, ``U.S. Won't Send CIA Defendants To Italy,''
Washington Post, March 1, 2007.
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Amnesty International recommendations:
Stop the practice of Extraordinary Renditions
--Do not render or otherwise transfer to the custody of another state
anyone suspected or accused of security offences unless the
transfer is carried out under judicial supervision and in full
observance of due legal process.
--Ensure that anyone subject to transfer--prior to being transferred--
has the right to challenge its legality before an independent
tribunal, and that they have access to an independent lawyer and an
effective right of appeal.
--Do not receive into custody anyone suspected or accused of security
offences unless the transfer is carried out under judicial
supervision and in full observance of due legal process.
--Investigate any allegations that their territory hosts or has hosted
secret detention facilities, and make public the results of such
investigations.
No diplomatic assurances
--Prohibit the return or transfer of people to places where they are at
risk of torture or other ill-treatment.
--Do not require or accept ``diplomatic assurances'' or similar
bilateral agreements to justify renditions or any other form of
involuntary transfers of individuals to countries where there is a
risk of torture or other ill-treatment.
No renditions flights
--Ensure that airports and airspace are not used to support and
facilitate renditions or rendition flights.
Investigate violations
--Ensure the accountability of intelligence agencies, including by
prohibiting the practice of mutual assistance in circumstances
where there is a substantial risk that such cooperation would
contribute to unlawful detention, torture or other ill-treatment,
enforced disappearance, unfair trial, or the imposition of the
death penalty.
--Ensure countries' full cooperation with ongoing national and
international investigations on rendition and secret detention,
including by providing them with access to all relevant people and
information.
______
American Civil Liberties Union News Release--July 26, 2007
aclu encouraged with senate hearing on extraordinary rendition
Washington, DC.--The American Civil Liberties Union was encouraged
today by the Senate Foreign Relations Committee hearing titled
``Treatment of Detainees.'' The committee met to discuss extraordinary
rendition, extraterritorial detention, and the treatment of detainees
held in U.S. custody. The ACLU hopes the hearing is a step toward
passage of legislation aimed at ending these un-American practices.
``The ACLU is glad to see the Senate Foreign Relations Committee
meeting to discuss America's policies of extraordinary rendition and
secret prisons. The idea of sending people to foreign countries where
they are tortured is illegal and immoral,'' said Caroline Fredrickson,
director of the ACLU Washington Legislative Office. ``This is the first
time that the Senate has held a public hearing on the issues of
extraordinary rendition and secret prisons, and we hope that it is the
start of a full investigation of these horrific practices. The United
States must live up to our own high standards of freedom and
democracy.''
Extraordinary rendition is the practice of kidnapping or capturing
people and sending them, without any legal process, to countries that
use torture or abuse. The Government has sent detainees to countries
infamous for their mistreatment of prisoners, including Syria, Jordan,
Morocco, and Egypt.
The administration's rendition policy was disclosed by Jane Mayer
in February 2005, in her piece, ``Outsourcing Torture--The Battle Over
`Extraordinary Rendition' '' in the New Yorker. Since then, the ACLU
has been vigorously working to end the policy, including a recent
lawsuit aimed at the Boeing subsidiary that serviced the flights. The
CIA also operates secret prisons, which were first disclosed in 2005 by
the Washington Post.
``The Senate needs to ensure that the Government's use of torture,
abuse, and illegal detention ends,'' said Christopher Anders,
legislative counsel for the ACLU. ``There could not be anything less
American, or more illegal, than the Federal Government running secret
prisons in Europe, or outsourcing torture by shipping people off to
torture countries such as Syria and Egypt.''