[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
CIVIL LIBERTIES AND NATIONAL SECURITY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
DECEMBER 9, 2010
__________
Serial No. 111-159
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona
Georgia LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois TED POE, Texas
JUDY CHU, California JASON CHAFFETZ, Utah
TED DEUTCH, Florida TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,
ROBERT C. ``BOBBY'' SCOTT, Virginia Wisconsin
WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, Iowa
Georgia TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
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DECEMBER 9, 2010
Page
OPENING STATEMENTS
The Honorable John Conyers, Jr., a Representative in Congress
from the State of New York, Chairman, Committee on the
Judiciary, and Member, Subcommittee on the Constitution, Civil
Rights, and Civil Liberties.................................... 1
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Ranking Member,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 3
WITNESSES
The Honorable Thomas R. Pickering, former Under Secretary of
State for Political Affairs and former United States Ambassador
to the United Nations
Oral Testimony................................................. 4
Prepared Statement............................................. 8
Ms. Laura W. Murphy, Director, American Civil Liberties Union
Oral Testimony................................................. 26
Prepared Statement............................................. 28
Mr. Jamil N. Jaffer, Kellogg, Huber, Hansen, Todd, Evans & Figel
Law Firm
Oral Testimony................................................. 43
Prepared Statement............................................. 45
Mr. Michael W. Lewis, Associate Professor of Law, Ohio Northern
University, Pettit College of Law
Oral Testimony................................................. 53
Prepared Statement............................................. 62
Mr. Jeremy Scahill, Investigative Reporter and Correspondent for
Democracy Now!
Oral Testimony................................................. 69
Prepared Statement............................................. 72
Mr. Bruce Fein, former Associate Deputy Attorney General
Oral Testimony................................................. 80
Prepared Statement............................................. 85
Ms. Mary Ellen O'Connell, Robert and Marion Short Chair in Law
and Research Professor of the American Society of International
Law, University of Notre Dame Law School
Oral Testimony................................................. 103
Prepared Statement............................................. 105
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Supplemental Statement of Michael W. Lewis, Associate Professor
of Law, Ohio Northern University, Pettit College of Law........ 54
Material submitted by Mary Ellen O'Connell, Robert and Marion
Short Chair in Law and Research Professor of the American
Society of International Law, University of Notre Dame Law
School......................................................... 116
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 150
CIVIL LIBERTIES AND NATIONAL SECURITY
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THURSDAY, DECEMBER 9, 2010
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:42 a.m., in
room 2141, Rayburn House Office Building, the Honorable John
Conyers, Jr. presiding.
Present: Representatives Conyers and Sensenbrenner.
Staff Present: Sam Sokol, Majority Counsel; and Paul
Taylor, Minority Counsel.
Mr. Conyers. Good morning. The Subcommittee will come to
order. This is the Constitution, Civil Rights, and Civil
Liberties Subcommittee chaired by Jerry Nadler and the Ranking
Member is Jim Sensenbrenner.
I want to welcome our witnesses to what I consider an
unusually important hearing in this Subcommittee. And I begin
by welcoming this distinguished list of witnesses, Former
Associate Deputy Attorney General Bruce Fein is with us this
morning; Ms. Mary Ellen O'Connell from the University of Notre
Dame Law School is on a plane that is delayed, she will be here
shortly; Mr. Jeremy Scahill, investigative reporter; Mr.
Michael W. Lewis, associate professor of law at Ohio Northern
University, Petit College of Law; Jamil Jaffer of the Kellogg,
Huber, Hansen law firm; the director of the American Civil
Liberties Union Washington office, Laura Murphy; and the
Honorable Thomas R. Pickering, the former Under Secretary of
State and former United States ambassador to the United
Nations. Without objection, of course, all of the witnesses
statements will appear in the record.
And before I ask you to begin Ambassador Pickering, I and
Mr. Sensenbrenner wanted to make a couple of comments with
reference to the issue that brings us here today. The subject
is a hearing on national security and civil liberties.
Obviously the first question is, is there a tension between the
two, or are there areas of compatibility? The power of what has
begun to be termed the imperial presidency grows, and the
ability of our democratic institutions, especially the Federal
legislative branch, us, to constrain it, seems more uncertain.
And so to begin with, there seems to be agreement that in
the 43rd presidency, there was left behind a grossly expanded
national security state, and a tragic legacy of civil rights
abuses. To wit: the creation of off-the-books Black sites, the
use of waterboarding and other tortures, an apparent violation
of United States and international law. The cover-up of these
crimes by the admitted destruction of videotapes of some of
these brutal interrogations, a destruction that appears to have
been not only intentional, but in violation of court orders.
The construction of a vast domestic surveillance apparatus
in widespread warrantless wiretapping. The mass detentions at
Guantanamo Bay prison, a scheme so ill-conceived that the
Supreme Court and the lower Federal courts have overruled the
previous Administration's judgment more than one dozen times.
Extraordinary rendition of suspects to foreign governments for
abusive interrogation.
The Guantanamo situation is further complicated by the fact
that, last night, there was found out in the continuing
resolution that there was a provision inserted by still no one
knows who, that allowed--that prevented anyone on Guantanamo--
the prosecutors would no longer determine whether they would
prosecute under an Article 3 Federal court or whether there
would be a military commission.
There was language in there that said there would be only
military commissions. That never went to Judiciary Committee,
and it nearly resulted in the whole bill collapsing, because
myself and at least three or four other Members were prepared
to vote against the whole resolution. We did not and the bill
barely passed.
The extraordinary rendition of suspects to foreign
governments for what is more likely to be expected abuse of
interrogation. The ignoring of congressional enactments such as
the McCain amendment, preventing abuse of detainees, through
illegitimate signing statements. The repeated invocation of the
state secrets privilege, with has gone on in recent years,
including this Administration, to an incredible new height, to
shut down complaints, investigations and lawsuits challenging
executive branch action, such as illegal domestic surveillance,
torture and rendition. The making of numerous unsubstantiated
claims of executive privilege to create legal immunity from
congressional subpoena, to avoid legislative oversight claims.
When challenged in Federal court by the House Judiciary
Committee, the House Judiciary Committee prevailed.
And then on top of all these, the USA PATRIOT Act passed by
a compliant and overreactive Congress in the weeks following 9/
11. Multiple Department of Justice reviews have found abuse of
the PATRIOT Act provisions on National Security letters, which
allows records to be seized on the thinnest legal showing of
mere relevance, and require abusive gag orders. Other
provisions of the PATRIOT Act such as the so-called library
provision and the sneak and peek searches equally threaten, in
my view, our liberty.
The 44th President started his term on a positive note when
he said he would ban torture, the use of secret prisons or
Black site, ordered the Guantanamo detention camp closed,
revoked gravely flawed office of legal counsel memos on torture
and other related subjects.
But the Administration has failed to adequately
investigate, much less prosecute apparent national security
crimes, including torture and waterboarding, and does not
appear to have even investigated who approved or ordered these
activities in the first place. This would include investigation
of the 43rd President, who has written a book personally
admitting and giving details of how and why he did what he did.
The present Administration has refused to prosecute the
intentional destruction of the evidence of the crimes of what
he did. That is known for anybody that has been around a few
years, the cover-up, which is usually more prosecutable than
the crime itself, evidence of these crimes, CIA videotapes of
the interrogations themselves.
The formerly secret State Department cables recently
released show that in addition to refusing to carry out its own
investigation of torture, the Administration, this
Administration, worked to squelch other countries investigating
the same subject matter. And I have citations that will be
brought in on all of these.
The Administration continues to rely on clearly overbroad
interpretations of the state secrets privilege, to shut down
lawsuits challenging executive branch activity that can be
termed as misconduct, inappropriate or illegal.
Public reports describe the extensive use of drones not
only in the battlefield but where villages and huge civilian
populations can be destroyed, which amounts to an incredible
extension of war in a new sense unlike any that we have
experienced before.
I know everyone has read about the claim that this
Administration and previous ones have claimed the power to
target and assassinate anyone determined to be an enemy,
including Americans. This President has implied that the
Administration may resort to detaining individuals indefinitely
without trial.
Fortunately, it hasn't gone beyond the thinking out loud
about it, but to me and to other Members on this Committee, it
is fundamentally at odds with the Constitution and the
traditions of freedom and due process of law. And despite the
effort of the President's task force, Guantanamo Bay detention
camp remains open with 170 people still in limbo; detainees or
prisoners, still in limbo. And while we in the Congress, and I
am not trying to exclude us from receiving some of the
criticism that I am directing to the other branch of
government, it is an important and critical subject matter that
brings us here today. I am very proud of the fact that the
former Chairman of Judiciary Committee, Jim Sensenbrenner, is
with us as the Ranking Member and I would recognize him at this
time, thank you.
Mr. Sensenbrenner. Well, thank you very much, Mr. Chairman.
And listening to the opening statement of my esteemed friend,
the gentleman from Michigan, I think he has turned the calendar
back 2 years, because this sounds like the speech that he gave
indicting the Bush administration 2 years ago and there just
hasn't been any hope and change around here.
Mr. Conyers. That is right.
Mr. Sensenbrenner. Okay. Well, you were supposed to bring
about the hope and change and you know we are still waiting for
it. What I can say is that this Committee approved a
reauthorization of the PATRIOT Act without any change. That is
the PATRIOT Act that I wrote following 9/11 and the national
security letters issue was not one of the expanded law
enforcement functions in the PATRIOT Act, but was a law that
was originally enacted in 1986 sponsored by Senator Leahy and
Representative Kastenmeier.
Now, just yesterday in the continuing resolution, which my
good friend Mr. Conyers and our Subcommittee Chair, Mr. Nadler
voted for, contained a provision that prevents the
Administration from closing Guantanamo and relocating the
detainees in the United States and prohibits the transfer of
any detainee who is not a U.S. citizen and who is held in the
Guantanamo detention center on or after June 24th, 2009. And
that is despite the efforts of the Administration and the
executive order the President signed earlier in his tenure in
office.
So, you know, I don't see why we need to have this hearing
today, because it is talking about things in the past, it is
talking about things that my friend, Mr. Conyers and Mr.
Nadler, voted to continue when they voted for the continuation
resolution yesterday. So if he wishes to continue with this
hearing, I think that is fine, he is the Chairman. But I want
to wish him and everybody in the room a very blessed Christmas
season and a productive new year, because next year when this
Committee is under new management, we will be much more
productive, much more relevant and we won't be looking at the
calendar of last year or 2 years ago. Thank you.
Mr. Conyers. Well, I thank you, at least for coming to the
meeting to make your statement, Mr. Sensenbrenner.
Of course, a hearing can only be held on things that
happened in the past. I have never heard of a hearing--well,
around here I have heard of hearings on things that are going
to happen in the future, but more than normally, they are in
the past.
Mr. Conyers. Ambassador Thomas Pickering is vice chairman
of Hills and Company, an international consulting firm and
serves as the member of the Constitution Projects Liberty and
Security Committee.
He has had a distinguished career spanning over five
decades as a United States diplomat serving as Under Secretary
of State for political affairs, ambassador to the United
Nations. Ambassador to Russia, ambassador to India, Israel,
Nigeria, Jordan and El Salvador.
I must say, Ambassador, I read your submitted statement,
which is now being printed in the record and was amazed at the
depth and breadth and conviction that keeps you coming before
us and working in government in your own way. We thank you and
appreciate you being here and invite you to make your statement
at this time.
TESTIMONY OF THE HONORABLE THOMAS R. PICKERING, FORMER UNDER
SECRETARY OF STATE FOR POLITICAL AFFAIRS AND FORMER UNITED
STATES AMBASSADOR TO THE UNITED NATIONS
Mr. Pickering. Thank you, Mr. Chairman and Members, and
thank you for your kind words. I am pleased to come before you
as a diplomat with extensive service in the country with a
single simple message. I don't believe that our national
security and protection of our civil liberties are mutually
exclusive. In fact, I believe they are intimately tied
together. The key task is to work together to find ways to
assure both priorities are met in the interest of our people
and of their government. What we do as a Nation in this area
determines whether we have the support and backing of our
friends around the world and the respect of all who look to us
for leadership. Failure to follow our principals regarding
civil liberty loses that respect. Even more, it sets an example
for others that either we don't care or we have made expediency
and compromises with our principles an overriding necessity.
Once we do that, others will, of course, follow.
The limits on their actions will not be set by us or
others, but by what they believe they can and need to do to
meet their immediate needs with little or no respect for human
rights. We will then be in a position where our own citizens
from whatever walk of life will be fitted into their construct
and held for an indefinite period, and be subject to trials
that do not assure the high standards to which we aspire and
left with little for our diplomats to use to assist our
personnel, our people, our citizens under these conditions.
All of this reflects on our role as a state, which aspires
to lead in the field of human rights, which is looked to by
many to do so, and where we play a role that deeply impacts on
our interests, including our security at home.
The trial of terrorism suspects is obviously of deep
concern, the recent Ghailani terrorism prosecution in New York.
Despite the disappointment of many that the convictions were
not more sweeping is an example of the United States pursuing
the right procedures in the correct court in trying terrorism
suspects.
The Ghailani trial was only one out of over 400 terrorism-
related trials that demonstrate that we can use Article III
courts. I have already explained why I believe the use of our
traditional criminal justice system has helped us to preserve
and to protect our foreign policy interests.
The American justice system is the established standard,
maybe even the gold standard around the world. An effort on the
part of the United States to strengthen and preserve the use of
alternative methods, specifically for terror-related crimes has
appeared to the rest of the world to detract from, rather than
strengthen our system of justice and by alternative methods, I
am obviously here referring to military commissions.
Within our own judicial arrangements during the last review
by the United States Supreme Court of military commissions, it
appeared that they failed to meet constitutional standards.
Recently, there have been increased calls for the use of
indefinite or preventive detention, instead of trying suspected
terrorist detainees at all. I believe that indefinite detention
of individuals without charge under any guise short of
prisoners of war, and traditional state-to-state military
conflicts, either declared or undeclared, raises all of the
problems of abuse of state power to the detriment of individual
rights.
In my view, a system of indefinite detention without charge
contravenes central principles of our own Constitution and
national standards of a right to notice of charges and to
trial. The detention issue presents a central conundrum of what
to do when we believe all of the information at our disposal
indicates that the detainee is guilty, but we cannot put him or
her through a Federal trial for one or more reasons. One such
reason is that the information to be used at trial has been
tainted by illegal and unacceptable methods of interrogation.
One example is information found to be inadmissible, such as
that in the Ghailani trial.
We have a treaty obligation not no engage in torture or
cruel, inhuman or degrading treatment. These practices also
contravene domestic legislation. Although we all now agree that
torture must be prohibited, the value of information obtained
through so-called enhanced interrogation techniques is widely
debated in the intelligence world. The preponderance of
evidence in my view is against the utility of such practices
based on a reading of the materials which discuss it
extensively.
In addition to the moral and legal issues, many studies
have found that evidence obtained through coercion is
inherently unreliable. That raises the question about what to
do with defendants in this category. The options are stark and
challenging. They can be tried on the admissible evidence as
Ghailani was. They can be sent to jurisdictions which may have
more evidence or different charges against which to try them
outside our country. They can be, in the end, released.
That, in my view, of course, is a serious and difficult
option, but it is not an option that obviously we can ignore.
The danger here is that they will attempt once again to launch
attacks on our country and its people. The danger has to be
balanced against the fact that the high-level leadership of al-
Qaeda, bin Laden and Zawahiri and others also remain at large.
These are not easy choices, Mr. Chairman. But the shorter term
tactical considerations need also to be balanced against the
longer-term human rights and strategic issues for our country.
The second reason with respect to trial is that information
was derived through intelligence collection where the tradition
and the national interest are to protect the sources and
methods of collection. The government has developed a practice
of clearing and briefing judges and attorneys for a use of this
protected evidence in courts under the Classified Information
Procedures Act of 1980. There are, in that legislation, ways to
protect sources and methods while making the principal elements
of the evidence clear to those who need to know, including the
defendant. This seems to be a respectable and responsible way
to proceed.
Safeguarding privacy and avoiding unnecessarily secrecy. As
you yourself have just told us, it is self-evident that the
rule of law requires appropriate safeguards to protect
individuals right to privacy. States traditionally for fiscal
and security purposes at their borders have exercised the right
to examine persons and goods entering their territory on an
absolute basis with exceptions only for diplomatic and State
immunity. It is obvious that that needs to be done for the
purpose of protecting the country in carrying out its laws on
trade and commerce, but such searches must also be conducted in
a manner that minimizes intrusion into individual privacy.
In addition, we use the process of issuing visas to permit
people to present themselves at our borders for admission into
the country. We do so in a way that, among other things,
reduces security risks.
We should, however, avoid a blanked selection of everyone
from one or a number of countries for special treatment and
review, wherever possible, including in their background.
Instead, we should rely on actual intelligence and the
application of standards of reasonable suspicion to determine
which individuals actually pose threats. Ethnic, racial,
national or other profiling have brought growing antagonism to
the United States on the part of many, many innocent people who
have been affected by these practices. This, in turn, has
fostered resentment against the country which terrorists and
others have used to recruit individuals to act against the
United States.
Mr. Chairman, the sum total of this is that we must comport
ourselves in the prosecution, and indeed, the detention, and
the other aspects of our concern, rightful concern about
terrorism in ways that continue to enhance our capacity to lead
in the world, particularly in the areas of human rights and
civil rights. We must treat individuals in accordance with our
Constitution as we would expect to have our citizens treated
around the world. And we should do so in ways that balance the
security needs that we have with the rights to civil and the
human rights in this country. That is the essence of my
discussion here this morning and I thank you for the
opportunity.
Mr. Conyers. Ambassador Pickering, I want to congratulate
you and hope that you continue to speak and read and write on
the subject of your experience for a long time to come.
Mr. Pickering. Thank you, Mr. Chairman.
Mr. Conyers. Thank you very much for opening this
discussion up.
[The prepared statement of Mr. Pickering follows:]
Prepared Statement of the Honorable Thomas R. Pickering
ATTACHMENT
__________
Mr. Conyers. I turn now to the director of the American
Civil Liberties Union, Laura Murphy. Her family is very well
known. Her father created, was it the Pittsburgh Courier?
Ms. Murphy. My great grandfather created the Afro-American
newspapers.
Mr. Conyers. What were they called?
Ms. Murphy. The Afro-American newspapers.
Mr. Conyers. And they were nationwide?
Ms. Murphy. They were in five cities, Richmond,
Philadelphia, Newark, Baltimore, Washington, D.C., Richmond.
Mr. Conyers. Well, I used to deliver something that had
Murphy on it.
Ms. Murphy. It was the Afro.
Mr. Conyers. Yes. And her brother is a distinguished civil
rights lawyer now in New York. She herself has 30 years of
policymaking and political expertise at both the national,
State and local levels. In previous professional positions, Ms.
Murphy has served as chief of staff to the California assembly
speaker, a cabinet member for the mayor of the District of
Columbia, an account executive for a public affairs
organization, and a legislative assistant for two Members of
the House of Representatives.
She represents the Washington branch of an organization
that is very distinguished and is well-known to the House
Judiciary Committee because they come before us so regularly.
The one comment I have about her paper, because it was in small
print and it had to be enlarged for my reading, is that it is
the longest and one of the best papers.
Normally, when we get large quantities of speech
preparation, we say, uh-oh, but this was not the case in your
case. I want to commend you for the thorough review of the
subject matter before us and the work of ACLU in this regard.
And we welcome you this morning before our Committee.
TESTIMONY OF LAURA W. MURPHY, DIRECTOR,
AMERICAN CIVIL LIBERTIES UNION
Ms. Murphy. Thank you, Mr. Chairman. And it has been my
honor since I first became a lobbyist for the ACLU in 1979 to
have known you and worked with you over all of these years. And
we so appreciate your stewardship of this Committee. Thank you
for being here today.
I appreciate the opportunity to testify on behalf of the
ACLU on this important subject. There is no question that the
9/11 attacks were a serious blow to our Nation. And the risk of
significant future attacks is a frightening prospect and
something our government must work to prevent. But we must work
intelligently to prevent attacks, and we must do so with the
integrity that we as Americans owe to our constitutional
heritage, ourselves, and to future generations.
In particular, history teaches us that the executive branch
of the U.S. Government regardless of the party in power always
seizes opportunities to expand its own power, and the American
people need Congress to serve as a healthy check on that
tendency. We need to make sure that the steps we take to
protect ourselves are smart ones. And we need to keep faith
with our Nation's highest ideals as outlined in the bill of
rights, which are the source of the real strength of our
Nation.
In recent years in the wake of 9/11, unfortunately we have
not done this. The examples are many, and as you say, my staff
has prepared excellent testimony illustrating many of these
examples: Illegal warrantless wiretapping; the targeted
killings of Americans without trial far from any battlefield;
unjustifiably intrusive airline security measures; military
commission; state secrets; indefinite detention; out-of-control
watchlists; the PATRIOT Act.
Never before has the executive branch had such sweeping
powers. This is a radical departure for our country. Despite
the summer clamoring to give even more broad powers to the
executive branch. Let me briefly mention three that the
Congress is likely to confront: Authorization for the use of
military force. One absolutely crucial issue is indefinite
detention and the authorization for use of military force.
Twice introduced by the incoming full Committee Chairman, Lamar
Smith and Senator Lindsey Graham their legislation would
declare that the U.S. is in a worldwide war without end. It is
just two simple sentences in their proposal, but it would
drastically expand the power of executive even further and
forever alter the course of U.S. history.
We wonder how many Members of Congress realize the
monumental effect that the proposed new declaration of war
would have. It has no time limits or geographic boundaries; it
authorizes indefinite imprisonment without charge or trial,
including against Americans in America. Is this the heritage
our generations wants to pass along to future Americans?
A second issue that Congress will be confronting is the
Obama administration's reported plans to change the very
architecture of the Internet to make eavesdropping easier. As
reported, this radical proposal would require all on line
services, even those which operate by putting individuals in
direct contact with each other using encryption to restructure
the way their services work in order to make it easier for the
government to eavesdrop upon demand. This step would interfere
with technological innovation, create significant new
cybersecurity vulnerabilities, reduce privacy and chill
expression on the Internet, impose great dangers of abuse.
The third upcoming issue I wanted to mention, which will be
before this Committee very shortly, is the reauthorization of
the PATRIOT Act. There are a couple of sections up for
reauthorization before February 28th, including section 215,
the so-called library provisions, which gives the government
sweeping new powers to seize records or goods from anyone, even
people who aren't suspected of doing anything wrong, who are
somehow just relevant to an investigation. Roving John Doe wire
taps.
The Fourth Amendment Requires warrants to state with
particularity the things to be search or seized. But this
sweeping authority permits the government to get an order
without naming either the place or the person to be tapped.
Either one or the other should be required.
Protecting the Constitution is not a partisan issue. The
executive branch, whether under control of Democrats or
Republicans, tends to push for expanded powers of monitoring
and control over the American people. It is up to the
legislative branch to push back.
In closing, Mr. Conyers, I am sorry that Mr. Sensenbrenner
wasn't able to stay longer, but I would ask that the Committee
allow to be put in the record a report recently issued by the
ACLU called the New Normal, talking about how many of the
expanded executive branch powers have been carried over by the
Obama administration.
Mr. Conyers. Without objection, we will do that.
Ms. Murphy. Thank you.
[The prepared statement of Ms. Murphy follows:]
Prepared Statement of Laura W. Murphy
__________
Mr. Conyers. Thank you very, very much.
I am now pleased to welcome Jamil Jaffer, Esquire of the
Kellogg firm. He has previously served as associate counsel to
the President from 2008 to 2009, as a counsel to assistant
Attorney General at the Department of Justice, the National
Security Division, and as counsel to the Department's Office of
Legal Policy from 2005 to 2006. We have your statement,
Attorney Jaffer, and we welcome you to the hearing this
morning, you may proceed.
TESTIMONY OF JAMIL N. JAFFER, KELLOGG, HUBER,
HANSEN, TODD, EVANS & FIGEL LAW FIRM
Mr. Jaffer. Thank you, Mr. Chairman. I would like to thank
the Chairman and the Ranking Member for inviting me here to
testify today.
I would like to spend my opening statement discussing the
difficult questions that arise with respect to what to do about
the detainees in Guantanamo Bay, the remaining 170 detainees.
There are basically four options: We can try these
detainees in Federal courts, we can try them in military
commissions, we can create a new national security court and
try them there, or we can detain them with no trial, no process
other than the evaluation of status, and detain them until the
duration of conflict is over.
Now, the current approach of this Administration and the
prior Administration, largely not changed, is a combination of
the first two approaches, try them in Federal court or try them
in military commissions. There is a fundamental problem with
this approach though. First, I would note that under the law,
these individuals detained at Guantanamo Bay have no
constitutional rights except what the Supreme Court has given
them. And those constitutional rights are fairly limited. They
are limited to a review in Federal court of their status as
enemy combatants. These are folks captured on the battlefield,
captured abroad and held abroad in Cuba.
Now they have no right to a trial in Federal court. They
have no rights that come with the right to a trial in Federal
court: the right to a jury, the right to the exclusionary rule
and other similar rights.
The criminal justice system that we have in this country is
designed to exonerate the innocent and convict the guilty. And
in doing so, we build in a strong presumption in favor of
innocence. In essence, we stack the decks against conviction.
This makes a lot of sense. This is as it should be in the
criminal context. Because based on our view--long held in this
country--that it is better if many of the guilty get off in
order to save one innocent from being convicted.
So we confront then a policy question, not a legal
question, but a policy question whether this same approach
should be applied to enemy combatants captured abroad on the
battlefield of war. And if we do so, we must consider the very
real consequences. That is, if we fail to convict these
detainees in Federal court, the typical analysis would suggest
release. But in an era when we are engaged on a global war on
terrorism and we have recently learned that the individuals
released from Gitmo, the ones that have been cleared for
release, and have been sent abroad, return to the fight at a
rate of 25 percent, one must wonder whether it makes a lot
sense to take the remaining 170 detainees, try them in Federal
court, and run the risk that we will be presented with the
Hobson's choice of releasing them because they haven't been
convicted, or continuing to detain them after they have been
held not guilty by a jury.
If we take the latter approach, which the current Attorney
General said may very well happen and could very well happen
with Khalid Sheikh Mohammed if he is tried in a Federal court,
and you have to wonder what is this project of trying folks in
Federal court really about? If it is about showing justice
being done and justice being done in the American way, well
then, how can we possibly justify continuing to detain these
folks after they have been found not guilty by a Federal jury?
And yet, we can't help but do that, because these are the
highest value detainees. This Administration has gone through a
review process determining that these 170, other than the ones
who have been scheduled for release and some can't be released
because of the challenges of countries we would release them
to, are a serious problem.
Now, in addition to these issues with respect to the
release of individuals who aren't convicted, it is simply the
case that many of the evidentiary rules in the Federal courts
don't make a lot of sense when the evidence and the witness
come from abroad and on the battlefield. Moreover, there are
security issues for the people who live near the courthouse,
think New York City, the judges and the court staff, and
civilian jurors who will be sitting in on these trials.
Moreover, there are issues of classified information, and
having worked with the talented prosecutors in the Department
of Justice's National Security Division, I can tell you that
while the Classified Information Procedures Act is extremely
helpful, it is certainly not a panacea.
I would like to close briefly by returning to the basic
options available to the government moving forward. Again, we
can try these detainees in the Federal courts, we can try them
in military commissions, we can create a new national security
court with different rules and different approaches, and
perhaps then have justice seem to be done or you can detain
them, no trial and no process, save for status reviews. In my
view, it is critical that this Committee is considering that we
balance national security and civil liberties and yet we be
seen to do justice.
The Federal court project, as we have just discussed, is
fraught with a number of difficulties. The military
commissions, while better, also face significant public
perception issues because of the nature of the military
criminal justice system and the fact of having the very
individuals who capture these folks try them in court. Many
have argued the creation of a national security court staffed
by sitting Federal judges, nominated by the President,
confirmed by the Senate, and prosecutions brought by the
talented, outstanding prosecutors in the Department of Justice,
and rules that make more sense than the current criminal
Federal court system for the trial of national security
detainees is a reasonable approach.
My view, expressed in other settings, is that the latter
approach has many of the benefits of trials in Federal court
without the downside, and it also lacks many of the downsides
that come from the public perception associated with military
commissions.
Now this is not an easy project. The creation of a new
court will be a substantial challenge. It would take a lot of
work, but it is something to consider. And with that, I
appreciate the Committee's time, and would be happy to answer
any questions the Committee might have.
Mr. Conyers. Thank you very much, Attorney Jaffer.
[The prepared statement of Mr. Jaffer follows:]
Prepared Statement of Jamil N. Jaffer
__________
Mr. Conyers. I now turn to Michael Lewis, welcome. An
associate professor of law at Ohio Northern University. Before
that, he was a Naval aviator in the United States Navy, and he
is a cum laude Harvard Law School graduate, which we do not
hold against anybody in the Judiciary Committee. But we do
welcome you, we have your statement and we would like to hear
from you at this time, sir.
TESTIMONY OF MICHAEL W. LEWIS, ASSOCIATE PROFESSOR OF LAW, OHIO
NORTHERN UNIVERSITY, PETTIT COLLEGE OF LAW
Mr. Lewis. Thank you, Mr. Chairman. I would also like to
thank Ranking Member Sensenbrenner for inviting me to testify
here today.
In reading the other submissions, I noted that there was
also an extensive discussion of scope of the laws of armed
conflict and the boundaries of the battlefield, and I actually
filed a supplemental submission on that issue that I would like
to be entered into the record.
Mr. Conyers. We will be happy to take it into the record.
[The information referred to follows:]
__________
Mr. Lewis. As my written testimony focuses on the choice
between Article III courts and military commissions for trying
terrorists and al-Qaeda members, there is no question that
Article III courts are capable of trying terrorist and al-Qaeda
members. We have seen that with Richard Reid, the shoe bomber,
Zacarias Moussaoui as well as Timothy McVeigh. I believe that
there is a subset of terrorists or al-Qaeda defendants whose
proper place is before military commissions rather than Article
III courts. That subset would be the group of defendants who
are apprehended overseas by members of the United States
military. And the reason for that is that the Federal Rules of
Evidence that determine what evidence gets before criminal
juries in Federal court is based upon the police apprehension
assumption, basically, the idea that law enforcement
individuals who are trained in the preservation and collection
of evidence in chain of custody and Mirandizing defendants and
interrogating them appropriately under Miranda; in drafting
very detailed police reports that will stand up to cross
examination by skilled defense counsel; and, perhaps most
importantly, to be available weeks, months or even years after
the event to return to testify about the specifics of the
arrest, again, subject to the cross examination of skilled
defense counsel.
These assumptions underlie the Federal Rules of Evidence,
and none of these assumptions are valid for that subset of
defendants who are apprehended overseas by members of the U.S.
military. Because the members of the U.S. military combat
troops are not trained, nor should they be trained in the
collection and preservation of evidence or in the Mirandizing
of defendants, or in the writing of police reports. And they
are very likely to not be available weeks, months or years
later to come back and testify about the specifics of the
arrest, which gives a great deal of hearsay problems to any
evidence that was collected at the time.
As a result of this, I think there are two major concerns
that I have. The first is, obviously, there is a great deal of
evidence that is likely to be excluded from any trial because
of the fact that these people are not trained in the
preservation of such evidence, and we saw some of that in the
Ghailani trial, and that was even where you had law enforcement
agents that had gone over to Kenya and Tanzania to do much of
the investigation.
But the other problem, and this is one that is less
discussed and I think equally as important, is that if you
decide to tell the military that all al-Qaeda members, all
terrorists will be tried before Article III courts, you are
going to make the military become better police officers, and
that is not something we want to do.
In my submissions, if you look at page 4, 5 and 6, there
are a couple of different forms that I have copied for the
Committee to look at. On page 4, you have a standard what is
called capture tag that was used in Afghanistan, and that is a
very short piece of information that is required by the Geneva
Conventions anytime you capture someone. It can be filled out
in a minute and a half by anyone, whether they understand the
Federal Rules of Evidence or not.
Pages 5 and 6 contain a form that has been used by the
coalition forces in Iraq and looks far more like a traditional
police report. It requires a great deal of detailed information
be secured by the combat forces that are doing the
apprehension, and it also requires some understanding of chain
of custody, evidence collection, et cetera. And the reason why
this is a problem is because our combat soldiers only have a
limited amount of time to maintain their skills. And as someone
who, at least for a brief period of time, myself, achieved a
high degree of combat proficiency, I can tell you that that
combat proficiency is very perishable. And to the extent you
take away training time from combat proficiency in order to
learn how to properly withstand cross examinations, fill out
police reports, and keep evidence, you are likely to degrade
the combat effectiveness of the troops that are being asked to
do that.
So I would ask that we do not make that requirement of our
men and women overseas that are in combat. Thank you for the
time.
[The prepared statement of Mr. Lewis follows:]
Prepared Statement of Michael W. Lewis
__________
Mr. Conyers. Thank you very much, Professor Lewis. We turn
now to a Puffin Foundation writing fellow at the Nation
Institute, a non profit media center. Mr. Jeremy Scahill, he is
investigative journalist, an author and a correspondent on both
radio and television programs. We welcome you here this
morning, your statement will be included in the record,
welcome.
TESTIMONY OF JEREMY SCAHILL, INVESTIGATIVE REPORTER AND
CORRESPONDENT FOR DEMOCRACY NOW!
Mr. Scahill. Thank you very much, Mr. Chairman. I am the
national security correspondent for the Nation Magazine and
proud of our editor, Katrina vanden Heuvel.
I would like to thank the Chairman in this Committee. I
wish that Ranking Member Sensenbrenner was here, I am from his
State of Wisconsin. I would have liked to engage with him on
some of these issues.
As we sit here today in Washington across the world, the
United States is engaged in multiple wars, some like those in
Afghanistan and Iraq are well-known, but there is another war,
a covert shadow war, being waged in darkness by U.S. special
operations forces and the CIA across the globe. This war is
largely void of any effective or meaningful congressional
oversight, and takes place in countries like Yemen, Somalia and
Pakistan, nations with which the U.S. is not officially at war.
The actions and consequences of this shadow war are seldom
discussed in public, or investigated by the Congress. And yet
they have a direct impact on the debates and legislation on
national security and civil liberties here at home.
Far from discussing the distant past, as Mr. Sensenbrenner
indicated, I intend to talk about current U.S. policy and how
the Obama administration has continued some of the most
outrageous policies and dangerous policies of the Bush
administration.
The current U.S. strategy in the shadow war can be summed
up as follows, we are trying to kill our way to peace, and the
killing fields are growing in number. Congress has a
responsibility to soberly and seriously address crucial
questions. What impact are these clandestine operations having
on U.S. national security? Are they making us more safe or less
safe? When U.S. forces kill innocent civilians in so-called
counterterrorism operations, are we inspiring a new generation
of insurgents to rise against our country. And what is the
oversight role of U.S. Congress in the shadow wars that expand
the Bush and Obama administration. The most visible among these
shadow wars, Mr. Chairman, is in Pakistan where the U.S.
regularly bombs that country using weaponized drones. At the
same time, U.S. special operations forces are engaged in covert
offensive actions in Pakistan, including hunting down so-called
high value targets and conducting raids with Pakistani forces
in north and south Waziristan. These actions are carried out in
secret and have been publicly denied by senior Pentagon and
State Department officials who stated that there are no U.S.
troops in Pakistan, or that the only role of U.S. troops there
is to train Pakistani forces. Such statements made recently by
Ambassador Richard Holbrooke and Pentagon spokesperson Geoff
Morrell, their statements are demonstrably false.
U.S. Officials have consistently misled the American public
and the Pakistani people on the extent of U.S. military
operations in Pakistan. If Congress is kept in the dark about
these operations, Mr. Chairman, how can it expect to honestly
and effectively debate U.S. on Pakistan?
One of the most off-the-radar wars the U.S. is currently
waging is in the Horn of Africa and the Gulf of Aden, where
U.S. Forces are increasingly attacking forces from al-Qaeda and
the Arabian Peninsula. As with the presence of U.S. Forces in
Pakistan, publicly the Obama administration insists that its
role in Yemen is limited to training and equipping the
country's military forces.
This is false. On multiple occasions, the United States has
launched cruise missiles carrying cluster bombs at villages in
Yemen, killing scores of people, among them, women and
children. Two such attacks took place last December. One of
them was reportedly aimed at targeting a U.S. citizen, Anwar
al-Awlaki to execute him without trial. Special operation
sources have told me that elite U.S. Special ops have also
engaged in lethal ground operations directly in Yemen. As in
the case of U.S. drone strikes in Pakistan, the Yemeni
authorities are colluding with American officials to cover up
and mask the extent of U.S. involvement.
In a meeting with General David Petraeus in early January
2010, Yemen's president reportedly told the General, ``We will
continue to saying the bombs are ours, not yours.'' U.S.
special ops forces have launched at least six attacks in
Somalia in recent years, including multiple helicopter assaults
and Tomahawk missile attacks.
The most recent operation we know of in Somalia was a
helicopter attack in September 2009 under the current
President's command.
These ongoing shadow wars, Mr. Chairman, confirm an open
secret that few in Congress are willing to discuss publicly,
particularly Democrats. When it comes to U.S. counterterrorism
policy, there has been almost no substantive change from the
Bush to the Obama administration. In fact, my sources within
the CIA and the special operations community tell me that if
there is any change, it is that President Obama is hitting
harder, hitting in more countries than President Bush. The
Obama administration is expanding covert actions of the
military in the number of countries where U.S. special forces
are operating. The Administration has taken the Bush era
doctrine that the world is a battlefield, a favorite of the
neocons, and run with it and widen its scope.
Under the Bush administration, special forces were in 60
countries around the world; under President Obama, they are in
75. As a special operations veteran told me, President Obama
has, ``Let U.S. special operations forces off the leash.''
As I just returned from Afghanistan, Mr. Chairman, I would
like to share with this Committee part of my investigation into
deadly U.S. Night raids in that country where innocent
civilians were killed. These operations carried out by the same
special ops team that operate in Yemen, Pakistan and Somalia
are part of what is effectively a shadow war within the more
publicly visible war in Afghanistan.
In one incident in February of this year, U.S. special
operations forces raided a civilian compound in the Gardez
district of Paktia Province. They killed two pregnant women, a
teenage girl and two men. U.S. forces tried to cover up their
responsibility for the killings and blame the Taliban and said
the women were executed in an honor killing. That was a blatant
lie, Mr. Chairman, and eventually the U.S. was forced to admit
its responsibility. These innocent Afghans were killed by
soldiers from the joint special operations command.
I went to visit with that family in their home in Gardez.
They were pro American and anti Taliban before this raid. In
fact, the night U.S. Forces stormed their compound, they
thought it was a Taliban attack. The two men who were killed
were actively working with U.S. forces. One of them was a top
police commander trained by the United States. The other was a
local prosecutor in the Karzai government. One man who saw his
pregnant wife gunned down by U.S. Forces was hooded, and
handcuffed, and taken prisoner for days by American forces.
When he was released, he told me he wanted to become a suicide
bomber and blow himself up among the Americans. To date, the
only remedy that the United States has offered this family were
two sheep for them to sacrifice.
A similar story happened when I visited Nangarhar Province,
U.S. forces raided the Kashkaki family's compound in May of
2010, killing 8 civilians. Local police officials told me the
family had no connection to the Taliban. That family is left
asking why they should support the U.S. presence in their
country after watching their loved ones shot dead before their
eyes by a military that claims to be there to liberate them and
free their country. These raids and the civilian death they
cause are hardly isolated incidents.
In closing, Mr. Chairman, I told both of these families
targeted in those raids that I described that I would bring
their cases before the U.S. Congress and ask that they be
investigated and that those responsible be held accountable. On
behalf of those families I humbly ask this Committee to
consider this request. Thank you, Mr. Chairman.
[The prepared statement of Mr. Scahill follows:]
Prepared Statement of Jeremy Scahill
__________
Mr. Conyers. I would like to get the details on both of
them. And would you also, when you submit, would you identify
the 75 nations that you say we have gone up from 60 to 75.
Mr. Scahill. Mr. Chairman, that information remains
classified. I have been able to gather about a dozen of them
from Special Operation sources, but I will submit to you the
information that I have thus far and documentation to support
the 75 statistic.*
---------------------------------------------------------------------------
*The material referred to was not received by the Subcommittee at
the time of the printing of this hearing.
---------------------------------------------------------------------------
Mr. Conyers. Thank you very much.
I now am very pleased to introduce as our next witness
Bruce Fein. For years he served as Assistant Director of the
Office of Legal Policy, legal adviser to the Assistant Attorney
General for Antitrust, and the Associate Deputy Attorney
General of the United States.
Mr. Fein has also served as the general counsel of the
Federal Communications Commission, followed by an appointment
as research director for the Joint Congressional Committee on
Covert Armed Sales to Iran. And I hesitate to add this, but he
also is a graduate from Harvard Law School with honors.
We welcome you, Bruce Fein, to this hearing.
TESTIMONY OF BRUCE FEIN, FORMER
ASSOCIATE DEPUTY ATTORNEY GENERAL
Mr. Fein. Thank you, Mr. Chairman.
The law reflects the moral deposit of the time. And I think
the issue that you have raised at this hearing, civil liberties
and national security, represents a revolution for the worse in
the American political culture and psychology.
The United States was born with the idea that the
individual was the center of the universe and due process was
to be praised and venerated above all else. And the reason
wasn't to win foreign allies and international support,
although that was something that would not be unwelcome, but it
was because of who we are as a people, who we are as a people.
Do we care about freedom more than absolute safety? Do we care
about due process more than domination for the sake of
domination?
And I think I would like to illustrate the degradation in
our political culture to a way that we resemble more China and
Russia than we do the United States in 1776 or 1787 by some
comparisons.
I think the first is are we at war? It is the
characteristic of all empires to inflate danger from a
reasonable level into thousands or millions of times above that
level in order to justify an extra increment of safety. And if
you examine today the enemy-to-soldier ratio of the United
States and Afghanistan and Pakistan--and our CIA and our
counterterrorism experts estimate we have 50 to 100 al-Qaeda in
Afghanistan at present, maybe 300 in Pakistan--if you take that
current enemy-to-soldier ratio and apply it to what our Armed
Forces would have looked like in World War II fighting Japan
and Germany, we would have fielded a military of 3\1/2\ billion
soldiers. Including conscripting every single American, we
would have to multiply the population by 126. And our enemies
in World War II were not those who were in caves and had
primitive access to technology or weapons; these were people in
Germany and Japan building V-1, V-2 rockets, Zero airplanes,
kamikaze pilots, et cetera. And yet we did not suspend due
process of law.
In my judgment, one of the greatest errors that we have
made in addressing this whole issue is to conclude that 9/11
did cross the threshold of danger that put us at war. And that
is very critical, Mr. Chairman, because war is very unique
because it makes what is customary murder legal. That doesn't
mean it should never happen, but that is a very grave step to
take. What is customarily murder becomes legal.
And that is where we are today with, I think, the
authorization to use military force and really without much
debate or discourse at all, saying al-Qaeda represents that
level of danger that justifies moving from a criminal justice
system to where we treat these people as international thugs
and dangers to being warriors subject to the rules of war.
But that is just one example.
Another example, if we look at where we were at the outset
and where we are today, you remember the Boston Massacre, and
we had someone named John Adams, and he was a lawyer. He
defended some of the British soldiers who were accused of
massacring protesting Americans at the time, and he was placed
under much criticism. He was actually defending the rule of
law, and he won acquittal from those British soldiers. He later
became a President of the United States. He was the first Vice
President as well.
Today this culture treats those who would defend those
accused of crimes. If you call them a terrorist crime, would
you get elected President? No. You would get on the banned
list. No one should hire you. You should be treated as a pariah
if you are defending the rule of law. Indeed, we have lowered
to the situation where we have had a former Solicitor General
of the United States say that someone who defends an
organization allegedly listed as a--false, wrong as a foreign
terrorist organization, to provide legal assistance is a
material assistance prohibited under a material assistance law.
Now, that sounds like a lawyer practicing in Russia or in
China, not the United States of America.
Now, let me give you the odyssey of Khalid El-Masri to show
again how far we have come in degrading the rule of law.
Khalid El-Masri was a German citizen of Lebanese ancestry,
and after 9/11, he was picked up--kidnapped, if you will--from
Macedonia, taken to Afghanistan, imprisoned there. He was
tortured. He was abused. He was dumped back in Albania. All of
this never being accused of any crime whatsoever.
In Germany, there are 13 arrest warrants that were
initially issued in order to try to bring to justice CIA
operatives. The United States of America urged and exhorted the
Germans to stop, don't go this far; you will upset the
international opinion toward us. The rule of law should be
crucified on a national security cross. And those arrest
warrants were then never executed.
Mr. El-Masri then comes to the United States, and he brings
a lawsuit claiming that the Constitution has been violated, and
he is suing CIA Director then George Tenet and others for
constitutional violations of his rights. And what is he
confronted with? State secrets privilege. You can't prosecute
your case, the U.S. Court of Appeals for the Fourth Circuit
said, because you will have to disclose who the culprits were
who tortured and beat you, and that will disclose intelligence
sources and methods. Therefore, you are out of court. And that
kind of Catch-22, again, it smacks of Soviet or Chinese
justice. This is the United States of America, and this is what
happened to Mr. Khalid El-Masri. Just one example.
If we were to read in the newspapers that Vladimir
Putin could put on a list, you know, Russians who he
thought--Mr. Berezovsky or others who are outside--a list to be
assassinated because he thought they were endangering political
stability in Russia, we would think, what a monstrosity. This
shows how bad and lawless Russia is. They really haven't
changed since Gorbachev left.
And yet here we have today a President of the United States
claiming identical authority, unilaterally authorized to
identify an American citizen abroad, no judicial review, no
congressional oversight. You are on an assassination list
because I am declaring that you are an imminent threat to the
United States. He is not on a battlefield. He is not engaged in
active hostilities against the United States. There is no due
process whatsoever. And indeed, just 2 days ago, a U.S.
district court here held, well, there is no way that the
judiciary can review this particular power. Only Congress can
do it. Only Congress can do it.
I want to take you back, Mr. Chairman, to the days when I
think you and I were here some 30 or 40 years ago concerning
President Nixon's impeachment and to examine how again far we
have fallen since those times.
You remember those three articles of impeachment that were
voted by the House Judiciary Committee? They were strong. And
Barbara Jordan was there. One of one, he, President Nixon, had
failed to faithfully execute the laws. There were law
violations that he knew about, and he was not faithfully
executing laws. Indeed with the tapes we heard he was
encouraging obstruction of justice, et cetera. And he was
impeached for that.
And as you pointed out in your opening statement, we have a
President now who sees out there waterboarding, torture. He
knows the people who are complicit because they have confessed.
Now, there is no exception in Article II of the
Constitution to decline to faithfully execute the laws because
it would be politically difficult. No exceptions. Indeed, if
there is some awkwardness, there is a remedy, if you will. It
is called the pardon power. President Ford, as you well know
and remember, Chairman Conyers, decided he would pardon Richard
Nixon because he thought the country would be too convulsed
with a trial. But he took accountability. A pardon requires the
recipient to acknowledge guilt or wrongdoing, and it does not
then wound the rule of law.
To just shut your eyes to violations of law of the most
heinous sort is a flagrant violation of that duty to faithfully
execute the law, and yet nothing happens.
Let us go to another area. Another article of impeachment
against Richard Nixon was obstruction of justice. Remember the
18-minute gap and all of the things that disappeared?
Obstruction of justice.
As you point out, we have open acknowledgment that those
interrogation videotapes were destroyed. And what happens?
Nothing. Nothing. Where is the oversight? That is an unflagging
obligation to enforce the laws. And I go back. If you don't
think it will be politically healthy, you have to pardon them.
And pardoning requires the recipient to say, ``I did wrong.''
The third article of impeachment was flouting a
congressional subpoena, an impeachable offense. Today it
happens every day. You know, Mr. Chairman, you had to go to
court. Ultimately you won at the district level, and it became
moot because Congress expired, et cetera. Had to fight the case
again.
This Administration, previous Administration, ignores
subpoenas all the time. I don't want to answer. It doesn't even
have to be classified information, sensitive information. We
don't want to tell you. It is why you know more about the
United States from reading WikiLeaks than you get in classified
briefings from this executive branch and previous ones. It is
not a partisan issue; it transcends politics.
And then we had Mr. Sensenbrenner talk with, I think,
rather a breezy air about these national security letters.
These are letters that the FBI and others can issue
unilaterally, no judicial review. If you say that some
investigation has any relation to terrorism, which can be
anything under the sun--and today, when we are at least
semientrapping 18- and 19-year-olds that we read in the
newspapers to plan bomb plots or whatever, you know, a
terrorism investigation can cover the waterfront, and even with
that breadth, their own inspector general in the Justice
Department said it was violated thousands of times where there
is not proper certification given.
These kinds of infringements in our day, Mr. Chairman, it
was called the Houston Plan, and the Houston Plan was rejected
even by J. Edgar Hoover. J. Edgar Hoover says this is not
acceptable in the United States. He then becomes a civil
libertarian like John Ashcroft in the hospital where at least
he wouldn't do some of the things in flouting the Foreign
Intelligence Surveillance Act that the Bush administration
wanted.
And perhaps to me most shocking, although the incidents are
so numerous you get numb to them, was a statement made by a
Member of Congress, and I won't identify him, after the verdict
up in New York on one of the alleged--those complicit in the
bombings in Tanzania and Kenyan Embassies where the gist of his
statement was, we can't have trials if you are going to have
not guilty verdicts. We only do trials if you know you are
going to bring in guilty and punish them.
This is like a world of Joe Stalin. You only have show
trials. Due process isn't there to try to ferret out what is
truthful and what is not, who is innocent and who is not
guilty. The fact that a statement like that could be made from
someone whose oath of office is to uphold and defend the
Constitution of the United States--and it goes unremarked--is
truly shocking. Truly shocking.
The last example I want to give--and I was involved in some
sense as amicus curiae--concerns our treatment of Uighurs. Now,
it may sound very exotic. Uighurs are an ethnic minority in
Northeast China. They are Muslims. And there was about two
dozen of them detained at Guantanamo Bay. Two dozen were
detained at Guantanamo Bay, allegedly enemy combatants,
although they despise Communist China, never threatened
Americans ever, but they are said to be enemy combatants
because they trained on the same field that Osama bin Laden
once put a foot on or his car drove over.
They were there for almost 8 years. Finally, the Supreme
Court gave them habeas corpus in the Boumediene case. And they
come to the district court here, and the Justice Department
finally says--this is Obama--we really don't have any evidence
that they are enemy combatants at all. We have no evidence that
really they have been detained illegally for 7 years. The judge
says, well, I guess they should come to the United States.
Indeed their leader, semileader, is a woman called Rebiya
Kadeer, who has received the Nobel Peace Prize nomination three
times. Her offices are catty-corner from the White House's.
Well, I will take care of them. There are only 17. I will give
you my bond that they won't become public charges. And the
Obama administration says, no, they are illegal aliens. They
don't have green cards. They can't come to the United States.
They have to go back and rot in Guantanamo even though they are
being held illegally. And that argument prevailed in the
executive branch.
The case went up on appeal. Meanwhile, the United States of
America then shocked the world offering bribes, would you
please take these Uighurs off our hands? We don't want them
here. We are frightened. The Chinese might not buy our bonds.
So we will then sell their liberty to somebody else, Vanuatu or
the Bahamas or Bermuda or something like that.
That is what the United States has come to. It has come to
resemble the King George III monarchy, the tyrannies that we
were fighting about. And this is not something that is a trade-
off between civil liberties and national security.
The greatest national security of any nation is the loyalty
of its people, its devotion to the country because it respects
the rule of law. The British may have thought that they were
getting security when they quartered soldiers in American
colonists' homes, when they issued writs of assistance, when
they impressed U.S. seamen, American seamen, into their own
Navy, and they ended up with a revolution, and they lost
everything. That is what the French thought, too, on the eve of
the French Revolution. The escalation of the oppression of
freedom ends up endangering the state rather than making it
more secure.
And on that score, as when stated as by my previous
witness, we also, by acting in a lawless way abroad, are
creating more enemies than we are killing. We are making
ourselves less safe. We have the illusion with the body count
that, oh, yes, now I don't feel quite as fearful that tomorrow
there will be a caliphate in Washington, D.C.
But ultimately, Mr. Chairman, this will change only if our
political culture and our leadership changes to say we prefer
freedom to absolute safety. Now is the time to understand our
goal is not an empire. Restore the individual and freedoms as
the center of our constitutional universe, and other things are
subordinate to that overriding goal.
Thank you, Mr. Chairman.
Mr. Conyers. Thank you, sir.
[The prepared statement of Mr. Fein follows:]
Prepared Statement of Bruce Fein
__________
Mr. Conyers. You six witnesses have provided us with some
of the most important discussion that the Judiciary Committee
has held in the 111th session. I am grateful to you.
I am going to ask you now, starting with Ambassador
Pickering, where do you think we ought to--or how might members
of the legislative branch and citizens begin to weigh in on a
discussion such as the one that has been held here this morning
that many people are going to look much further into and become
more aware of some of these tensions between constitutional
liberties and security?
Mr. Pickering. Mr. Chairman, that is an important and
significant challenge. All of us, I think, have great respect
for the Committee and great respect for your work and role. I
hesitated to provide prescriptory ideas, but let me begin with
a few.
I think you have several powers that are very important
here. One, the simplest and the easiest, but perhaps one of the
most effective, is the simple power of reporting, reporting to
your fellow Members of Congress, reporting to the public,
reporting in that way to the executive branch about the areas
that you are concerned about.
I particularly expressed my concern about the issue of the
use of Article III courts and the concern I had that military
commissions and other substitutes, if they were not equal to
Article III courts in their protection of the rights of the
individual, would be failing to meet the constitutional norms.
I am concerned about detention without trial on an
indefinite basis. Some of us have suggested some ways to
proceed.
I am concerned about the protection of privacy while at the
same time, obviously, administering effectively the law and
security and the adequate control of trade and commerce.
I am concerned about the exercise of state immunity as a
blanket way to evade the use of the judicial process to find
redress for issues and problems that come up that are otherwise
open to citizens of this country.
The second question that you will have to face and the
second important power you have as individual Members is to
institute legislation where you feel legislative remedies may
be required to deal with the problem. I don't have in mind
specific remedial legislation, others may have, but it is an
important activity.
The third is obviously what you are doing here today,
bringing people together who have an interest in this problem.
We don't all have unanimity of views, obviously, but we have
serious concerns about what we see as the derogation of
constitutional rights and privileges and the creation of sets
of activities which could well lead to serious abuses now and
in the future of the human rights of our citizens and indeed
all others who enjoy rights under our Constitution.
And those kinds of activities, I think, coming together can
provide both a powerful voice and institutionally a powerful
set of arrangements to correct what we believe have been abuses
and tendencies to continue and expand abuses of these
particular actions on the part of the executive branch.
Mr. Conyers. Thank you very much.
I would like to ask my two witnesses, Professor Lewis and
Attorney Jaffer, in a hearing like this, do you see any
recommendations, or do any suggestions come to your mind about
ways that we might be able to improve the delivery of justice
and fairness in this country both in our courts and in
relationship between the three branches of government here and
with the countries and the peoples of the world? Have you been
thinking about that at all?
Mr. Jaffer. Thank you, Chairman Conyers. It is a very
important question, and, as with Ambassador Pickering, I was
always cautious to suggest prescriptive ideas.
Congressman, I do think that with respect to the question
of how to deal with Guantanamo Bay detainees that the system is
broke. We are trying folks in Federal court, and yet we are
saying if they are not convicted, we are going to continue to
detain them. Well, that may actually make a lot of sense
because these are folks who have engaged in war against the
United States. They have gone through a review process, and
this Administration, and the prior Administration, have
determined that these individuals are of the highest value and
should continue to be detained. So it makes sense that if they
are not convicted, that we are going to need to keep them off
the battlefield, particularly when folks are returning at high
rates.
But then you have to ask yourself, well, perhaps we should
be looking at a different judicial system that doesn't ensure
convictions--that is not what folks are looking for--but that
sets the balance differently than we do in the criminal justice
system where instead of the default presumption being innocence
and complete--you know, we let 99 guilty men off in order to
ensure that 1 innocent man is not convicted--perhaps it makes
sense to try a different set of rules.
Certainly we don't want to abandon the presumption of
innocence. That is not what I am suggesting. What I am
suggesting, however, is a set of rules that makes sense in the
context of war; a set of judges who have been through the
Federal system, who were confirmed by the Senate, nominated by
the President; prosecutors, career prosecutors, in the
Department of Justice; cleared defense counsel who have high-
level security clearances; a system that makes sense and yet
can be seen to do justice without the problems raised by our
current criminal justice system around the challenges, security
issues, outside information issues, and all of those challenges
that we have talked about earlier today.
Mr. Conyers. Attorney Jaffer--before you begin, Professor
Lewis--let me ask you, isn't there a possibility that among
those 70, there may be some that even you and I could agree
ought to be released, and that there are not appropriate
charges to bring against them?
Mr. Jaffer. Well, Chairman Conyers, certainly there is the
possibility that among the remaining 170, that there are folks
who deserve to be released.
I would note that the current Administration, when it first
came in, appointed a terrific team of lawyers from the National
Security Division, many folks that I worked with, headed by
Matt Olsen, currently the general counsel at the National
Security Agency, a gentleman who I worked with and who I have a
tremendous amount of respect for, who actually did the very
review that you are talking about. And so I would be hard
pressed to question that review.
Certainly Congress should take a close look at the results
of that review, but given that they spent a lot of time looking
at the classified information, working with analysts from CIA,
DIA, the National Security Agency, working with the operators,
and actually recommended a number of folks to be released and a
number of folks to be detained, continued detention, and some
for prosecution, I think it makes a lot of sense--the process
has been gone through.
The question now becomes what happens with those detainees
who we have determined are either too high-value to be released
and/or we simply don't have the kind of evidence that would
work in a Federal court; what do you do with those things? The
basic options are currently military commissions or just
detention without any sort of trial. A national security court
might be an option that presents some of the benefits of
Federal court without the whole perception issue associated
with the military commissions.
Mr. Conyers. What are the problems that you envision could
happen in a Federal court that create a little bit of
apprehension in your mind about them being the appropriate
court of jurisdiction? I mean, they are nothing--I mean, that
is the same court with the same set of rules that Americans are
called upon to visit, and that we create the laws for, and that
we select the judges for every--almost every day in the year.
Mr. Jaffer. Absolutely. And the only thing I mean to
suggest is that it is policy question. These folks don't have
the same constitutional rights that folks in this country have.
And the question becomes, as a matter of policy, do we want to
put these detainees in Federal court and give them the same
rights and benefits that Americans have, including this very
strong bias against conviction, very strong bias against
putting--sacrificing 99 guilty, letting them on the street----
Mr. Conyers. Well, we are not playing the numbers game.
Here is what I am suggesting; that going through a Title
III court, we would have to prove their guilt. What is wrong
with that?
Mr. Jaffer. There is nothing wrong with that, and I
actually think that it makes a lot of sense to have to prove
the guilt of folks that we want to detain particularly beyond
the duration of hostilities. Certainly there are folks at
Guantanamo Bay who we don't ever want to have to see released
including after the current set of hostilities, the immediate
set of hostilities ends, because they have killed Americans and
deserve perhaps a life sentence, perhaps even the death
penalty.
Mr. Conyers. Who has determined that?
Mr. Jaffer. So, for example, an individual like Khalid
Sheikh Mohammed, who has been accused of crimes, right, that
would suggest a life sentence or the death penalty, Khalid
Sheikh Mohammed we would want to, if we believe that, in fact,
he is guilty of those crimes which he has been accused of, to
be detained, incarcerated beyond the scope of any hostilities
ongoing. And so the question becomes you have got to find a way
to do that, and the Federal courts are one option, certainly.
And it is an option that applies to American citizens, applies
to folks inside the United States. And it is not a crazy
option; it is a very reasonable option.
The problem is there are huge challenges with the use of
the Federal courts, both to the safety of the folks in New
York, to the jurors who might be called, the judges, the
classified information that might be used to convict Mr.
Mohammed.
Mr. Conyers. What is the problem? I mean, sure, all of that
would happen, but what dangers does that present to you in
terms of determining guilt or innocence?
Mr. Jaffer. Well, imagine a world in which the evidence
obtained that we have against Mr. Mohammed was obtained in ways
that wouldn't----
Mr. Conyers. Were illegal.
Mr. Jaffer. Well, no. Put aside enhanced interrogation for
the sake of argument. Take the example of information obtained
in Afghanistan, bad chain of custody, obtained on the
battlefield of war. That evidence you would want brought before
you.
Mr. Conyers. Would you want evidence that was gained by
torture to be usable against terrorists?
Mr. Jaffer. I think that we have to look at the evidence
that was obtained.
Mr. Conyers. You wouldn't want that, would you?
Mr. Jaffer. I don't think we should be torturing people. I
would never support the use of torture against----
Mr. Conyers. And you wouldn't want people whose evidence
was secured through torture to be found guilty on the basis of
that evidence. Or water torture, for example, you don't support
that.
Mr. Jaffer. Chairman Conyers, certainly I don't think
that--if we are torturing folks, we should not be doing it.
And, you know, there are a lot of concerns about the enhanced
interrogation techniques that were used in the CIA program.
Nobody can doubt that. A lot of people talk a lot about
waterboarding. There were other techniques that have now been
publicly released by the current Administration.
Mr. Conyers. They are probably just as bad.
Mr. Jaffer. Walling, sleep deprivation.
Mr. Conyers. But what would you do with evidence gained
through those techniques in a court?
Mr. Jaffer. If those techniques constitute torture under
the law of the United States, and that is a legal question, one
that no court has yet determined, and one that different folks
disagree about----
Mr. Conyers. On the contrary. It has been determined--
waterboarding has been determined pretty definitively as not
being appropriate, and for all that we can determine, it is
ordered to have been stopped, and we don't have any reports
that it is still going on. Do you know of any?
Mr. Jaffer. No, Mr. Chairman. In fact, both Administrations
have indicated clearly that there were only three individuals
subject to waterboarding, and they disclosed the names of those
individuals, including the number of applications of
waterboarding. So it was a very--that particular technique
obviously being on the farthest edge of the enhanced
interrogation techniques that were used in the CIA program, the
sort of the least invasive being perhaps the facial slap,
right, all the way to the waterboarding. And there were a
number of techniques in between as now has been declassified by
the Administration.
The real concern here, though, is, you know, when we are
looking at these techniques, people of reasonable minds put
aside the really extreme techniques and take other techniques
that may be used, whether it is the ones that are approved in
the Army Field Manual or others. There are people of reasonable
minds who will disagree about whether those techniques should
be used in a free society like America. There is no doubt that
that disagreement is a valid, reasonable disagreement to have.
The question then becomes what happens when a technique you
don't want, whether it is an extreme technique--and put aside,
again, the most extreme technique--but enhanced----
Mr. Conyers. In other words, you might see your way to
endorse modestly enhanced techniques. Could that satisfy your
sense of fairness?
Mr. Jaffer. Mr. Chairman, I think that is a decision well
above my pay grade. And it is----
Mr. Conyers. No. It is a decision that each of us can
individually possess that might--yours might be different from
someone else's, but it doesn't make it any less important to
you.
Mr. Jaffer. Well, Mr. Chairman, I think what I would say
is, you know, the CIA program yielded its most highly valuable
intelligence gained on the war on terror, period, bar none.
There is no question that the information gained from that
program, whether you agree or disagree with the techniques
used, but the fact that they were detained, held as high-value
detainees and were questioned in a particular set of
circumstances, led to the further capture of some of the
highest-value detainees that we have in our custody and the
biggest efforts against the al-Qaeda network. And so, you know,
I am not sure that I know which techniques are good----
Mr. Conyers. Why is it that judges seem to be prone to not
allow admissible evidence from witnesses who have been subject
to enhanced interrogation? Are they soft-headed or sentimental,
or what is the problem here?
Mr. Jaffer. Not at all. We have a long history in this
country of excluding evidence obtained from coercion because,
A) we don't think coercion is right, and, B) we don't think
necessarily that the information that came from coercion is
reliable.
Mr. Conyers. And neither do you.
Mr. Jaffer. And I think that there are serious questions
there. There are serious questions about whether information
obtained from coercion is reliable. And there are serious
questions about whether these are techniques that we want to
use in America, in a free country.
Mr. Conyers. Could you understand how a person subject to
these kind of techniques would say anything that anybody wanted
them to say?
Mr. Jaffer. Absolutely. Absolutely. There is no doubt that
the history of the use of coercive techniques has suggested
that there are serious issues with the information obtained
from such coercion.
That being said, there is also no question that the folks
who went through the CIA program yielded tremendously valuable,
accurate intelligence, actionable intelligence that we acted
upon and protected this Nation; that there are now--as part of
the release of the CIA memos, other documents were released at
the request of the previous Administration, that evidence, that
information obtained from individuals in U.S. Custody as part
of the CIA and other detainee programs, allowed us to protect
this Nation from actual, ongoing, day-to-day plots.
Mr. Conyers. Let me summarize here because I want to
recognize Laura Murphy. Then I am coming back to Professor
Lewis.
Would you be willing to submit at your earliest convenience
a list of cases in which there was known enhanced interrogation
or torture used in which the witness elicited valuable and
correct information?
That is for you, Attorney Jaffer.
Mr. Jaffer. I am not aware--you know, the information that
has been declassified by the current Administration is very
limited, especially with respect to the information obtained
from----
Mr. Conyers. Well, I don't want classified information.
Although I am cleared for it, maybe several hundred million
Americans may not be.
Mr. Jaffer. And I am no longer cleared for it either, Mr.
Chairman.
Mr. Conyers. So let us take that off. Let us take that off.
We are talking about trials or evidentiary proceedings or
investigations in which enhanced torture, enhanced
interrogation or torture, revealed valuable and important and
accurate information.
Mr. Jaffer. Well, Mr. Chairman, I would just say even if
you look at the Agency's program alone, as we know, Abu
Zubayda, who was subjected to extreme enhanced interrogation
techniques, including the waterboard, ultimately gave us
information that led us to Khalid Sheikh Mohammed. That much
has been declassified and is in the public record.
So I can't speak to whether, you know, in the entire
history of the criminal justice system we have found folks who
have been----
Mr. Conyers. Neither can I. That is why I am asking you.
Mr. Jaffer. But I share the concern, Mr. Chairman.
Mr. Conyers. Okay. Then we agree that it would be pretty
difficult to do.
Mr. Jaffer. Absolutely, Mr. Chairman. We agree on that.
Let me be clear. I do not support the use of coerced
testimony, nor do I support the use of techniques that
constitute torture or anything even approaching that, Mr.
Chairman.
What I do want to note, though, however, is that this
program that the CIA engaged in where they held high-value
detainees abroad and sat down with them and went through these
issues yielded tremendously valuable intelligence and protected
Americans from ongoing plots. There can be no doubt about that;
the public record on that is clear. It is not as fulsome as one
might hope. One might hope for even more information that would
allow us to really judge the program, right? And perhaps this
Administration will declassify additional information, if
appropriate.
But I guess my concern is that when you look at this
classified information, to declassify, you must step very, very
cautiously. And I would submit that even some of the
declassifications taking place to date have been perhaps
unnecessary. So it may be necessary to say, look, here are the
techniques that were used in the program, but to give a
detailed description of how many degrees you incline someone's
head, what amounts of water you might use, I mean, this is just
a recipe for how to torture Americans or how to use enhanced
interrogation techniques against Americans and more
aggressively, right, if you believe that such technique
constitute torture, right?
So if you are a person who believes that waterboard is
torture, and I think most people tend to feel that it is the
most extreme of the enhanced interrogation techniques, whether
you use the term ``torture'' or whatever to describe it, right,
why would you then give everybody in the world, including our
enemies, a detailed recipe of how to carry that out? It seems--
what is the national security benefit of that?
Mr. Conyers. Ambassador Pickering, you seem disturbed, and
I would like to recognize you before I go on.
Mr. Pickering. I have been following with interest the line
of questioning, Mr. Chairman. I have two concerns. One, the
Federal court does not answer the question, at least in terms
of how it has been explained--it is a new Federal court idea--
of what to do about detainees who are not convicted. So we know
that that is a problem.
Secondly, I personally have no objection to finding useful
ways to bring together the judicial system with the protection
of classified information, and we have a statute that does
that. If Mr. Jaffer feels that is inadequate, then maybe there
is an opportunity here to propose something for your
delectation that would, in fact, improve that particular
process. We have no objection to that. At least I have no
objection to that.
I have a serious concern that if, with all the euphemisms
that have been used, the new Federal court is designed to
prejudice the trial in a way to assure convictions by denying
rights that are otherwise available to Americans and others
under our judicial system, then I have an objection. Why not
just use the Article III courts? If it is an attempt to get
halfway between the old military commission struck down by the
Supreme Court and the Article III courts, then we are, in a
sense, moving in the right direction, but not sufficiently, in
my view. So those remain important.
The whole question of torture and its role I addressed in a
few brief words. I am not the expert on this issue. I have read
a lot about it. I am convinced it is a highly unreliable and
reprehensible technique, and that it shouldn't be used; that it
has muddied the process of bringing people who, with every
other piece of evidence, are undoubtedly convictable in court,
and it, as a result, has destroyed the capacity to deal with
that set of issues.
I would think it would require an act of the most careful,
painstaking, and infinitely detailed kind of research, with
total access to every interchange with the gentlemen concerned
who have been subject to these techniques to begin to make head
or tails out of whether a particular technique, a particular
line of questioning produced a particular result.
I know from what I have read that experienced interrogators
find the use of these kinds of techniques in the main as
destroying their capacity to effect the kind of relationship
with the person being interrogated that produces the kind of
useful information that is very valuable.
But I think your question is entirely germane, it is an
extremely useful one, but I think it points down the road of
the frustration of trying to find the answer to this question:
Under any circumstances that we can conceive of, has this
particular set of techniques produced the reliable sort of
information that is the kind of silver bullet that Mr. Jaffer
would like to have us believe is, in fact, the product of this,
but where everything else is in an inscrutable and unopenable
black box.
Mr. Conyers. Attorney Bruce Fein.
Mr. Fein. I would like to make three observations about Mr.
Jaffer's remarks, which I find a little frightening.
First, I think it is specious to say because torture,
waterboarding was used, and some information by that individual
who was interrogated was useful, therefore only the torture was
the way to bring it about, because, as I think Ambassador
Pickering pointed out, there are those skilled interrogators
who said, well, many of these individuals were giving useful
information before the waterboarding occurred, and there is no
reason why they couldn't have gotten the information otherwise.
But putting that aside, there really is no limit I see,
principle, to stopping at waterboarding. How about the rack and
screw? How about threatening the family of the individual and
say, we are going to kill your son or your daughter? If
everything is subordinate to trying to get reliable
information, then we have lost our badge of being civilized
people. Anything goes.
And then the last thing that is also very troublesome is we
do not have a culture whereby you can have a deterrent effect
on these heinous techniques, because even though you could use
the information against the alleged terrorist, you prosecuted
the individual who was violating our own laws in the process,
because we have a situation where they act with impunity, and
Mr. Jaffer didn't say, well, we should be prosecuting those who
used waterboarding or things that violated our laws that this
Congress enacted. It was just like they washed out of the
picture. But if you want to have any deterrence right now, the
only way you get it is by excluding that evidence at a criminal
trial.
Mr. Conyers. The ever-patient Laura Murphy.
Ms. Murphy. You see me wiggling over here.
Mr. Chairman, I don't even know where to begin with some of
these ideas.
Our Article III courts are in great shape. They have worked
for over 150 years. We have the Classified Information
Procedures Act that is working.
We need to prosecute terrorists in Article III court. We
elevate them as war heroes when we try to use military
commissions that are deeply flawed, that allow hearsay evidence
that has not been tested through the Supreme Court process.
Military commissions have tried five people. The Justice
Department has prosecuted over 400 people in Article III
courts.
We need accountability for terrorism. We know that
terrorism--I am sorry--for torture. We know that torture is
illegal. We need to make sure that Mr. Durham fully
investigates people all the way up the food chain in the former
Administration who authorized this.
That the President, the former President, can walk around
with impunity and say that he gladly authorized waterboarding
is just an insult and an offense to our values and to the
treaty obligations that we hold dear in our American law and
jurisprudence.
But the other thing, I wanted to go back to your first
question about what should you do. I think that if you recall
those days right after 9/11, we worked very closely together,
Mr. Chairman. And the Congress was put under so much pressure
not to hold hearings, and you and Mr. Sensenbrenner figured out
how to hold hearings nonetheless.
We need hearings on the PATRIOT Act, and we need to start
as soon as possible. There are many abuses of the PATRIOT Act
that are still unresolved. There are a number of inspector
general reports that specifically go to the use of national
security letters where the FBI has egregiously violated the
statute. There is section 215 that needs to be fixed. There is
the ``lone wolf'' provision, which the Justice Department says
it rarely, if ever, uses.
So I think we need to start the 112th Congress with a
strong defense of Article III courts. We need to get ready for
the PATRIOT Act reauthorization as soon as possible, and even
though you don't--you will not control the hearings, Mr.
Conyers, I think it is very important that we host
conversations.
And there were bipartisan discussions about the PATRIOT
Act, patriots defending the Bill of Rights. There are
organizations and institutions that want to work in a
bipartisan fashion to look at the PATRIOT Act, reopen it, and
make sure that Congress has serious consideration.
And the last thing that I will say is this whole issue
around the authorization for the use of military force makes
the issues that you have just been discussing go on steroids.
We will be confronted with so many new challenges if this
Congress abrogates its responsibility and just quickly expands
a declaration of war.
The Constitution gave the United States the Congress to
declare war for a reason. And so if there is any expansion of
our war efforts away from the original authorization of the use
of military force, Congress should have very, very detailed
hearings about that.
And you will be under particular pressure, Mr. Conyers,
because Chairman Buck McKeon has said--incoming Chairman Buck
McKeon has said that he wants to persist in the Armed Services
Committee. Incoming Chairman Lamar Smith has said that he wants
to look at this. Senator Lindsey Graham has said that he is
going to push for this. So you will be confronted in very short
order at the very beginning of the next Congress with several
issues.
So accountability for torture, taking the reauthorization
of the PATRIOT Act seriously, making sure that there is no
expansion of the authorization for the use of military force
are just three issues.
And you have a remarkable track record of bringing groups
together from all sides of the aisle, and even if you don't
have hearings, you should have meetings. You should invite us
in to meet with you and to brief Members on your side of the
aisle if at all possible.
Mr. Conyers. But we can have forums which are not official
meetings.
Ms. Murphy. Absolutely. Public forums. And that is what we
did when we had the PATRIOT Act. Remember the leadership of the
House refused to give you the permission to hold those
hearings, but you held them anyway, and they were highly----
Mr. Conyers. I think they were down in the basement
somewhere.
Ms. Murphy. They were. They were in the basement of the
Rayburn Building.
But that is what we are going to have to go back to.
Thank you, Mr. Chairman.
Mr. Conyers. I now turn to Professor Michael Lewis, who has
been very patient.
Ms. Murphy. I thank you, Mr. Chairman.
I wanted to mention one thing Mr. Fein had said about the
information obtained from Abu Zubayda using waterboarding. He
said that there is no evidence that supports that the use of
that technique was the result, but the fact of the matter is
that Zubayda had resisted all the other techniques. He had been
in the hands of trained interrogators for long periods of time
without having given up the information that eventually led to
the capture of Khalid Sheikh Mohammed. It was only after he was
waterboarded that that occurred.
Now, having said all of that, there is no question that
enhanced interrogation techniques and information obtained from
them should have--has no place in criminal courts or criminal
trials. However, that doesn't mean that it has not affected
intelligence gathering. Those are two separate issues and two
separate ways or reasons for using the techniques.
So you may have a need to gather intelligence in a short
period of time that might include the use of enhanced
interrogation techniques; however, those cannot possibly be
used to convict the people afterwards.
And you had asked about where we should go in terms of
process for these individuals. And the fact of the matter is
the Congress of the United States has gone through three
iterations to try to make the Military Commissions Act better
and better and better, and in each iteration it has come closer
and closer to being, I think, the full protections required to
give, I think, fair and legitimate trials. I think the
greatest----
Mr. Conyers. But, of course, people conducting the trials
can be sergeants on the battlefield or anybody, whatever group
of people get called together.
I am still extremely skeptical that military commissions
and the way that they are brought together could ever even come
close to the safeguards in a regular court.
Mr. Lewis. There is no doubt that they are not going to be
the same as the safeguards in the regular court, and part of
the reason for that is the evidentiary problems that I
discussed previously. The evidentiary problems where soldiers
are the ones gathering the information just are not going to
meet Article III court standards, and therefore you are not
going to have the evidence necessary in the Article III court
to convict people that otherwise probably would be.
Mr. Conyers. And that is why I thought that I heard you
suggesting that you were in somewhat favor of Article III
courts yourself.
Mr. Lewis. I am in favor of Article III courts where the
defendants are apprehended by law enforcement, even overseas. I
don't have any problem with the idea of Ghailani being tried in
Article III courts; however, I think you would have a very
different case with trying to try Khalid Sheikh Mohammed or Abu
Zubayda or others like that in Article III courts because the
evidentiary basis is fundamentally flawed based upon who it is
that brought them in.
The other question that you asked earlier that I think will
also segue to Mr. Scahill at some level is the question of our
relation with foreign nations and how we can best work with
them in terms of the way we are prosecuting the war on terror.
There are a lot of anecdotal discussions, such as the one that
Mr. Scahill presented today, where al-Qaeda members or al-Qaeda
supporters being enhanced by some of the actions that our
Special Forces people take and some of the tragic mistakes that
they have made on occasion. And there is no question that
anecdotally that that is true.
But I think it is important to look at much broader
studies, and there are some metastudies that have been done,
particularly in the border regions of Pakistan, that indicate
that overall the effect of the U.S. military's actions there is
a net positive rather than a net negative.
And I would strongly commend the study done by Professor
Echeverri-Gent down at the University of Virginia because he
did a very detailed analysis of public opinion in Afghanistan
based upon open-source information over there. And while, yes,
an individual might be turned against us because of a poorly
planned or poorly executed attack, broadly al-Qaeda is not
popular in that region. And the two choices to oust al-Qaeda
are either the United States or the Pakistani military. And the
fact of the matter is the Pakistani military tends to use
artillery, tends to use artillery very indiscriminately, and
has caused tremendous amounts of civilian havoc when they have
attempted to--rather ineffectively in the opinion of the people
in Pakistan--attempted to fight al-Qaeda. And they see the
United States drone strikes and the United States Special
Forces operations as being far more effective in countering al-
Qaeda. They are not saying they are perfect, but they are the
better of the choices, according to the people on the ground in
Pakistan.
As I said, I would commend that study to you for that
review.
Mr. Conyers. Thank you. We will examine that study.
I will recognize now Jeremy Scahill.
Mr. Scahill. Just to respond to what Professor Lewis just
said. I think that one thing that we have learned over the past
10 years is that these polls that are done in Pakistan and
Afghanistan are just wildly inaccurate. It was abundantly clear
to me not just anecdotally, but also from talking to U.S.
forces as well, that the strength of the Taliban is growing
within Afghanistan and also within Pakistan. And let us
remember, we are not fighting al-Qaeda in Afghanistan.
According to the outgoing National Security Adviser,
General Jim Jones, there are less than 100 al-Qaeda operatives
in Afghanistan with no effective ability to strike the United
States.
I also talked to senior Taliban officials from the Mullah
Omar government, who expressed a concern that when the United
States is killing the leadership of the Taliban, that they are
killing the only people that would be capable of negotiating a
nonviolent solution to the conflict there, and in some cases
the individual commanders who are killed are replaced by
commanders who are far more radical. And, in fact, some of
Mullah Omar's envoys--Mullah Omar being the head of the Taliban
in Afghanistan--some of his envoys have actually been butchered
by new Taliban commanders because they feel that Mullah Omar
isn't radical enough.
So I think we have to be very careful when we take any poll
and hold it up and suggest that it is evidence that we are sort
of winning hearts and minds, because I think it is clear to
many within our Armed Forces that that is just not the case.
To respond to something that Mr. Jaffer said, I think that
I would echo Professor Fein's comments as well, that if we do
not hold past committers of torture accountable, we have no
mechanism by which to dissuade future acts of torture. The most
effective way to stop torture is to hold torturers accountable.
I think it is outrageous that we didn't have congressional
intervention of any strength in the case of the destruction of
the CIA torture tapes. I think that there should have been
subpoenas issued to Jose Rodriguez and other CIA officials to
ask them about their role, to ask them if there were only three
tapes, or if more had been destroyed.
I think Congress should have used its subpoena power to go
after those who were committing torture and also the officials
who ordered it and authorized it. I think that is one of the
great shames of the era of the Democratic control of both
Houses of Congress is that there was not enough done to ensure
that if the President wasn't going to hold the torturers
accountable, that the Congress would.
I would also recommend that people read Matthew Alexander's
book, How to Break a Terrorist. He was an interrogator in Iraq,
and he was instrumental to gathering intelligence using
nontorture techniques that led to the capture of Abu Musab al-
Zarqawi, and I would recommend that the Committee review his
work as well.
In closing, I want to say that I think that the Congress
needs to not just limit its investigation of these torture
techniques to the CIA. Torture was also committed at Camp Nama
in Iraq, which was run by the Joint Special Operations Command.
And I think that the failure to use the subpoena power is
failing the American people. We have to have accountability, or
it is going to continue under Democratic and Republican
administrations.
Mr. Conyers. Yes, Attorney Jaffer.
Mr. Jaffer. Mr. Chairman, I appreciate the opportunity.
Let me be clear. Torture is wrong under any and all
circumstances, and there is no question that people who engage
in torture should and must be prosecuted to the fullest extent
of the law. Let there be no lack of clarity on that question. I
think that everybody on this panel can agree on that question.
With respect to the CIA program, you have to remember that,
first of all, there are a very narrow number of detainees that
were held in this program. This was not a program sort of run
sort of, you know, behind closed doors with no monitoring at
all. This was a program where the CIA said, look, we have got
these folks we are capturing. We need to figure out what to do
with them. They are high value. We believe they have immediate
intelligence value. What should we do?
So they came up with a series of plans. They went to the
policy structure of the White House and the Department of
Justice and they said, what should we do as a policy matter and
as a legal matter? And the Department of Justice came back with
a set of legal opinions.
Now, those legal opinions, I think the fact of the matter
is there were deep flaws in many of the legal opinions
associated with that time period. Now, the time constraints
were huge. People were working very quickly. Whatever excuses
you might make, there is no question that there were challenges
to the legal opinions, and they were properly withdrawn by the
Justice Department later on down the road, and other ones
were--continued to be withdrawn. And a better, more careful
legal analysis was done down the road.
That being said, the CIA came to the Administration and
said--they came to the White House and said, what should we do
as a policy matter, and what can we do within the law? And then
they were given legal guidance, and they were given policy
guidance. They were told, here is what the law says you can do.
And they were told as a matter of policy, the policy of the
United States is to engage in these certain techniques. Certain
techniques, as the President has now said in his book, were
taken off the table. Certain techniques were left on the table.
And then the CIA went forward and executed what the Justice
Department told them was lawful and what the policy part of the
government said is what we wanted to do.
Now, how can we prosecute line CIA officers? How can we
justify prosecuting line CIA officers who did what they were
told the law permitted them to do and the government's policy
was to do? And that seems to me to be just as much of a crisis
as all of the problems with military commissions and other
levels of process or holding people without trial.
How can you possibly take a government employee, any
government employee sitting in this room, and say, here is what
the law lets you do, and here is what I, as your boss, the
Commander in Chief, and the head of the executive branch want
you to do, and then say, oh, but down the road we are going to
prosecute you for doing just what we told you to do? That seems
to me to be just as much of a crime.
Mr. Conyers. We have been joined by Professor Mary Ellen
O'Connell, professor of law at the University of Notre Dame.
She is a designated professor of law at Moritz College of Law
at Ohio State University.
We know why she was detained, and we would like, even at
this late date, to invite her to discuss her statement with us
and any conversations among the panel that you may have heard
coming in the room.
Welcome, Professor O'Connell.
TESTIMONY OF MARY ELLEN O'CONNELL, ROBERT AND MARION SHORT
CHAIR IN LAW AND RESEARCH PROFESSOR OF THE AMERICAN SOCIETY OF
INTERNATIONAL LAW, UNIVERSITY OF NOTRE DAME LAW SCHOOL
Ms. O'Connell. Thank you very much, Mr. Chairman.
In fact, my statement does touch on the comments that were
just being made. So with your permission, I have a very
succinct 5-minute statement. And I do begin with apologies from
Delta. They are very sorry about my delay.
Mr. Chairman, ladies and gentlemen, let me also express my
deep appreciation for the invitation to speak before you today.
In my very brief time I will focus on the issue of perhaps
greatest concern to many of us today, and that is targeted
killing of persons away from any battlefield.
Through the use of drones and other means, the United
States is carrying out killings that fundamentally violate the
human right to life. The justification we have been given for
these killings is fundamentally the same justification we were
given for the use of torture. It consists of an erroneous
definition of ``combatant'' accompanied by a plea of necessity
along the lines you just heard. But as with the arguments in
favor of torture, the arguments for targeted killing do not
meet the test of legality, morality, or effectiveness.
Let me address each of these tests very, very briefly.
First, international law absolutely prohibits the intentional
targeting of persons for killing outside of the hostility
situations of armed conflict. International law does not relax
this prohibition, except in the clear situation of actual armed
conflict hostilities. In such hostilities, the regular armed
forces of the sovereign state may intentionally kill members of
the opposing armed forces and any civilians who are directly
participating in armed conflict.
International law defines armed conflict as situations of
organized armed groups engaged in intense armed fighting.
Today, the United States is engaged in such fighting in only
one place, and that is Afghanistan. Ask any soldier where U.S.
combat operations are occurring today, and they will tell you,
Afghanistan. It is only there that the United States may
lawfully carry out targeted killing.
Second, not only is this the law, it is the right ethical
position. All human beings are endowed with dignity which we
protect through human rights, including the human right to
life. Through the centuries, humanity has constantly striven to
enhance respect for life. We have prohibited war through the
U.N. Charter, and we have condemned terrorism because of its
violence against human life. America's targeted killing program
is a serious retrograde step in the moral advancement of
humanity. It demonstrates grave disregard for the right to
life. But ladies and gentlemen, if law and morality are not
enough, we can also add that empirical data clearly shows that
military force is ineffective to end terrorist groups.
In 2008, the Rand Corporation released a study that
concluded: All terrorist groups will eventually end, but how do
they end? Answers to this question have enormous implication
for counterterrorism efforts. The evidence since 1968 indicates
that most groups have ended because 1, they joined the
political process; or two, local police and intelligence
agencies arrested or killed key members. Military force has
rarely been the primary reason for the end of terrorist groups.
This has significant implications for dealing with al-Qaeda and
suggests fundamentally rethinking post September 11th U.S.
Counterterrorism strategy.''
We are told with respect to targeted killing as we were
with regard to torture that post 9/11 circumstances require
extraordinary measures. However, some of our leading ethicists
responded forcefully to the arguments in favor of torture by
saying that the absolute ban on torture in existence at the
time that legal memos were prepared by the White House and DOJ,
a moral imperative required that absolute ban regardless of the
consequences. And we could say the same for targeted killing.
But as in the case of torture, it turns out that doing the
moral thing, doing the legal thing is doing the effective thing
against terrorism. Targeted killing is unreliable--against
terrorism.
Torture is an unreliable means of interrogation that
trained interrogators, including my husband, have rejected out
of hand. Similarly, some of the best counterterrorism experts
reject the use of military force in efforts against terrorism.
Terrorists seek to undermine lawful institutions to sow chaos
and discord and to foment hatred and violence. Upholding our
lawful institution, holding to our legal and moral principles
in the face of such challenges is not only the right thing to
do, it is a form of success against terrorism that can lead to
the end of terrorist groups.
Apparently, President Obama himself is aware that targeted
killing by drones will not achieve greater national security in
the face of terrorist threats. Bob Woodward writes in his new
book, Obama's Wars, ``despite the CIA's love affair with
unmanned aerial vehicles such as Predators, Obama understood
with increasing clarity that the United States would not get a
lasting durable effect with drone attacks.'' If we care about
the rule of law, fundamental morality and national security, we
will call on President Obama to end targeted killing. Thank
you.
[The prepared statement of Ms. O'Connell follows:]
Prepared Statement of Mary Ellen O'Connell
__________
Mr. Conyers. Professor Lewis, you are the beginning of
everyone having the last word.
Mr. Lewis. I just actually wanted to comment on the
assertion that international law has clearly determined that
the boundaries of the battlefield are based on geopolitical
lines. That has never been how that has been understood in the
past. In order to make international law, you have to either
have a clear treaty statement indicating what international law
says, and there is no clear treaty that indicates what the
boundaries of the battlefield are or where the law of armed
conflict applies or does not apply.
And so what you are left with is customary international
law. In order to make customary international law, you must
show not only an agreement of jurists and commentators about
its content, which I don't believe exists, but even more
importantly, you have to show some form of state practice that
supports the recognition that there is a legal obligation to
perform in that way.
And I can think of no example at all of state practice in
which a state has said I will not strike an enemy because they
have crossed a geopolitical line. And I can think of many
examples in which the exact opposite is true. One that was
brought before the Government Oversight Committee earlier this
year by Professor Glazier, who is generally an opponent of the
Bush administration policies and these sorts of actions in
general, was the fact that the United States pursued the
Vietcong and the North Vietnamese army across the border into
Laos and Cambodia, and yet that was not a violation of
international law. Those forces were attempting to escape by
finding sanctuary across a line. And more importantly, where
you have non state actors doing the same thing, the FARC
attempting to find sanctuary in Colombia--not in Colombia,
sorry, from Colombia in Ecuador, and Colombia crossed the
border and struck into FARC camps there. That was not deemed to
be a violation of international law. And perhaps the best
example is the Hezbollah war in Lebanon.
According to Professor O'Connell's test, there was no armed
conflict in Lebanon at the beginning of that war. There were
sporadic rocket attacks, sporadic cross-border raids by
Hezbollah, but that was it. And the Israeli response was to use
the tools of armed conflict and invade Lebanon to go after
Hezbollah. And the conflict between Hezbollah and Israel was
understood by everyone to be governed by the laws of armed
conflict, not to be an improper use of force. Where Israel was
criticized, and it was heavily, was because they had allegedly
violated the laws of armed conflict, they hadn't been
proportional, they hadn't used military necessity, they had
used banned cluster munitions, et cetera.
But the whole conversation throughout the whole
international legal community was: Have they complied with the
laws of war? The laws the war clearly applied to that conflict.
And yet Professor O'Connell now is saying if the Taliban can
cross into Pakistan, they are safe. If they can get to Yemen,
they are safe. They cannot be struck there. We have to use law
enforcement and that is the only method of attempting to
capture them.
And if there is either an incapable government in Yemen or
Somalia, or an unfriendly government that is unwilling to
effect that capture, then they have found a sanctuary. And the
claim that international law grants terrorists of all people a
sanctuary in the war on terror, I don't believe is
international law.
Mr. Conyers. Professor O'Connell, what say you?
Ms. O'Connell. Thank you, Mr. Chairman. I really do
appreciate that. I have just heard such a mixture of unusual
and confusing comments about the law of armed conflict. I will
just say very briefly a few things. First the definition of
armed conflict is well-known, and it has a territorial aspect.
I just lead a 5-year study, produced a report of 42 pages for
the International Law Association, the chief scholarly
organization of international lawyers throughout the world.
My committee included the 18 most highly qualified experts
on the law of armed conflict from 15 different countries, every
region of the world. Our study concluded that, in fact, armed
conflict takes place within a particular zone. And in internal
armed conflict of the kind that is occurring in Afghanistan
right now, a counterinsurgency armed conflict, is taking place
within Afghanistan. It is the U.S.'s official position to
respect the border between Pakistan and Afghanistan. And the
U.S. well knows our lawyers well know that there is no right of
hot pursuit on land to follow those individuals who may be
crossing from Pakistan into Afghanistan to join the fight.
What is America's option? It is, of course, first and
foremost to work with our ally, Afghanistan. We are in
Afghanistan at the request of that government. And if they wish
for us to work with the Pakistani authorities about preventing
cross-border provocation, that is our obligation under
international law.
If Afghanistan feels that it is being attacked by Pakistan,
then it has the right, under U.N. charter, Article 51, to
respond in self-defense. Afghanistan has said that it has not
been a victim of an armed attack from Pakistan. Pakistan is
well aware and is taking steps to pursue militant and violent
action on its border. The International Court of Justice has
told us that it is the obligation of Afghanistan and the U.S.,
when dealing with provocations that are less than the kind of
armed attack that would give rise to Afghanistan's right of
self-defense against Pakistan, that Pakistan's obligation is on
its side of the border.
The U.S. can offer to help, but we cannot pretend that
there is no sovereign boundary there and take the law into our
own hands. These are very clear precedents. Professor Lewis
should know all about them, I am very sorry that he has
presented to you a different story today.
Mr. Conyers. Professor Lewis, I will allow you a brief
comment and then I will turn to Attorney Jaffer.
Mr. Lewis. The only thing I say is there has to be some
evidence of state practice to back up the idea to say I will
not strike an enemy because they have crossed the geopolitical
line and I am not aware of any state practice. Colombia didn't
do it with the FARC; Israel didn't do it with Hezbollah; and we
didn't do it with the Vietcong and the North Vietnamese army;
Turkey doesn't do it with the PKK. I don't believe there is a
state practice that says we agree that geopolitical lines are
the end when the enemy is seeking sanctuary.
Ms. O'Connell. In addition to our report, I would like to
also refer Professor Lewis to the Congo versus Uganda case in
2005 in the International Court of Justice, there is plenty of
authority in that decision by the International Court of
Justice, and that is where he needs to look for answers to his
questions.
Mr. Conyers. Would you submit that additionally to the
Committee?
Ms. O'Connell. I would be very happy to. I brought a copy
of my latest article that also has all the correct citations
and responds to many of the other specific points that
Professor Lewis made.
[The information referred to follows:]
__________
Mr. Conyers. Attorney Jaffer.
Mr. Jaffer. Mr. Chairman, thank you for the opportunity to
appear before you today. You know, I think a lot of issues that
have been raised here are very important. I would like to
associate myself with Professor Lewis's remarks with respect to
the use of--that topic we discussed earlier, obtained from
coercive methods, whether they are called enhanced
interrogation techniques or torture, or whatever you want to
call them. That type of evidence is inadmissible in court, in
criminal court, it should not be admitted. And that is
absolutely, without a doubt, one of the core principles of the
American justice system.
In fact, the Department of Justice in the Ghailani trial
stipulated for the purposes of that case, that the information
obtained with respect to the witness against Mr. Ghailani had
been obtained through coercive methods. Therefore it was not
expected to be introduced.
Mr. Conyers. But of course, we don't have that safeguard in
military commissions, do we?
Mr. Jaffer. As I understand it, Mr. Chairman, I think that
the current Military Commissions Act of 2009, the one passed by
Congress, does not permit the use of information obtained from
coercive techniques in the military commissions either.
Mr. Conyers. No, it doesn't, but the practice, I mean, you
are an a battlefield. How many people that are drafted into a
military commission knows about the law that we just passed
cautioning them to be careful about torture or enhanced
interrogation techniques?
Mr. Jaffer. That is an important question, Mr. Chairman. As
you know, just like in the Federal courts, in the military
commissions there are judges who make the legal determinations.
And so one would presume that in the military commissions
context----
Mr. Conyers. Yes, they are judges, but they are appointed
judges. They are not really judges. They are not even lawyers.
Mr. Jaffer. I believe, and I could be mistaken, but I
believe that the judges for the military commission are JAG's,
are military lawyers. I could be mistaken.
Mr. Conyers. Well, let us clear it up. Are they, or aren't
they? They are JAG lawyers?
Mr. Lewis. Yes. The judge must not only be a JAG lawyer,
the judge must also have gone through judicial training in
addition to being a JAG lawyer. That is the judge. The members
could be otherwise.
Mr. Fein. Your Honor, if I could just interject here. In
the Federalist Papers the Founding Fathers described the very
definition of tyranny: combining within the same branch law
enforcement, and law adjudication and lawmaking. And that is
what a military commissions is. In the executive branch they
play judge, jury, prosecutor, and define what a war crime is.
Now putting aside whether they have legal training, they
know that they report to the Commander in Chief. And the whole
reason why we have an independent judiciary with life tenures
is because--and is the crown jewel of the Constitution--because
that is how you get an unfettered, impartial mind. He is not
worried about whether his superiors are going to want one thing
or another. But it was the Founding Fathers who described
military commissions as the very definition of tyranny.
Mr. Conyers. Does anybody on the panel take any exception
or want to qualify what Professor Fein--Attorney Fein has said?
Laura Murphy.
Ms. Murphy. I think one of the things that we need to be
clear about is that even though you may--we believe that you
have to be a JAG lawyer to be a judge, you don't have to have
to have ever tried an international terrorism or other complex
criminal case. And so, you know, I don't think that--as much
talent as there is in military commissions, it doesn't compare
to the talent that a Federal district court judge has or that
the U.S. attorneys have in prosecuting complex criminal
conspiracy cases, which is essentially what terrorism trials
are.
And so, you know, there were some improvements made in the
Military Commissions Act of 2009, but we don't think that the
training for the lawyers or the judges is adequate to deliver
justice.
Mr. Conyers. Attorney Jaffer seems to nod his approval.
Mr. Jaffer. Well, I think that I agree to the extent that I
believe that Federal district court judges have a tremendous
amount of experience in trying complex criminal cases,
including in some instances international terrorism cases. Our
Federal prosecutors at the Department of Justice are phenomenal
folks. These are career prosecutors in AUSA offices across the
country and at main Justice. These are the people who would be
ideal to prosecute these terrorists and to be tried before
these judges.
My view is simply that--and I share actually Attorney
Fein's concerns about the appearance of the folks who capture
the individuals also trying them and acting as judges.
Now let me also be clear that these military judges, these
military lawyers are among the best lawyers that America has to
offer. They sit up and serve our country. They get immediate
trial experience. JAG lawyers, their first day on the job is
going to trial, as I understand it. And so these are not
lawyers with little experience who are not capable. These are
terrific Americans, who have chosen to serve their country.
They have decided to go to law school, become lawyers, admitted
to the bar. They have engaged in numerous trials.
So the fact that they haven't necessarily tried complex
criminal cases, I agree Federal courts are better. There is no
doubt. And in an ideal world, I think the Federal courts are
the best option as the ones that make us appear to do justice
and there----
Mr. Conyers. Professor Lewis seems to agree with you on
that point.
Mr. Jaffer. They simply don't work in the context of
national security detainees. There is an option out there that
you could appear to do justice and use Federal sitting judges,
and AUSAs, and cleared defense counsel with experience in these
cases. That is important, too, for the protection of the
individual being tried.
Mr. Lewis. I do agree that Article III courts are a better
option. As I mentioned in my opening, though, I think that
there are a certain subset of cases in which the evidentiary
hurdles that it presents and the people who are gathering the
information from overseas are just not a good fit.
Mr. Conyers. Jeremy Scahill.
Mr. Scahill. You know, it is pretty clear that when it
comes to the issue of torture and accountability for it that
the United States Government holds itself to one standard and
the rest of the world to a different standard.
I also wanted to add that when it became clear that the
Obama administration had authorized the assassination of United
States citizen Anwar al-Awlaki by either the Central
Intelligence Agency or the Joint Special Operations Command,
Representative Dennis Kucinich put forward a very simple piece
of legislation that said the United States shouldn't
assassinate its own citizens without due process. I think five
Members of Congress cosigned or cosponsored that legislation.
That is a shocking commentary on the state of affairs in
the Capitol today that only six American politicians,
legislators would sign on to such a simple piece of legislation
that said we shouldn't assassinate our own citizens without due
process.
What I think what we are seeing unfold around the world
today is a situation where in Afghanistan we are propping up
drug dealers, war criminals and mass murderers in the name of
democracy. We are bombing countries that we are not at war
with, Yemen, Somalia, Pakistan. We are creating a new
generation of insurgents that want and have every justification
or reason to rise up against the United States because they
actually have grievances now because members of their families
have been killed.
I feel very sad when I think about the future of our
democracy, because I think that what we are doing right now is
sending a message to the rest of the world that in many ways
our foreign policy represents that of the very rogue states
that we denounce on a regular basis. And I don't say that
lightly. I say it with a great sense of sobriety because I
think it is shocking, and when you go to these war zones and
you meet with the victims that live on the other end of the
barrel of the gun that is our foreign policy, and they ask
journalists, well, what can you do for us? The only thing we
can do is come back to this body and ask that you do something
about it, or try to give them access it to the lawyers.
One the ironies of the dark years of the Bush
administration was that trial lawyers emerged as some the
strongest freedom fighters we had in this society. But for the
Center for Constitutional Rights and the ACLU, I think we would
be in a much darker situation right now.
So I am very disturbed by a lot of what I have heard today
and a lot of what is going on in the world. And I think a lot
of it, when it comes down to Congress, boils down, as I said
earlier, to the failure to use subpoena power. I think that is
one of the actions that Congress can take that is a way of
actually effecting some kind of responsibility or
accountability when the other branches of government fail. And
yet we have seen almost none of it with the Democrats in power
in this Congress, and I hope that if the Democrats do regain
the Congress, control of the House, that the subpoena power is
used on these life-and-death issues.
Mr. Conyers. But can these hearings begin the commencement
of a potentially more optimistic view on your part in the
coming Congress?
Mr. Scahill. Well, I think the empty chair next to you is
an indication of where things are headed, Mr. Chairman. And I
think we are going to see the targeting of the great enemy to
our society ACORN, and, you know, maybe Van Jones will be
subpoenaed, you know, these great threats to U.S. National
security. But I think we have to hold our own people
accountable, and I wish this Committee had used its subpoena
power more, quite frankly, and the oversight committee as well.
Yes, it is a sign of optimism, to directly answer your
question, that you so kindly agreed or initiated this hearing,
but I think that the work has just begun, and hopefully if you
are Chair again, we will see some subpoenas flying out of this
office.
Mr. Conyers. Professor O'Connell.
Ms. O'Connell. I am more optimistic than Mr. Scahill. I
recall the great tradition of the Republican Party in terms of
fidelity to international law. It was Abraham Lincoln, a
Republican, who asked to have the first set of Code of Armed
Conflict for the Law of Land Warfare to be written, and those
rules are the fundamental rules that should be guiding how the
United States conducts itself today.
One of our greatest Secretaries of State, Elihu Root,
founded the American Society of International Law with its
object of promoting understanding and international relations
under the rule of international law.
I think if Republicans respect their tradition, the
tradition of this country, where our Founding Fathers were well
versed in international law, understood what it took to be a
good citizen in the world, respecting international borders,
respecting the authorities of international courts and
tribunals, respecting what the well-versed, well-trained,
proficient authorities, professors, publicists in international
law had to say; I think if we see that--and I will do my level
best from my position at Notre Dame to remind our Republican
colleagues, our Republican elected Representatives that this is
their tradition, that is the tradition of this country. And we
can continue to add the counter example, which Mr. Scahill and
I absolutely share.
We tried these expansive lawless approaches, these
extraordinary arguments that were not based in authority or
good faith analysis of the law, and where are we today? We have
so little to show. We have not regained our standing in the
world. There is only one way to do that, and that is return to
fidelity of the rule of law for which this country was founded.
I think if we proceed in goodwill and those of us in a position
to speak out and write out and continue to teach students, I
have hope that this country will not further stray from our
path and from who we are as Americans.
Mr. Conyers. I appreciate that.
Ms. O'Connell. If I could just add one brief comment. I am
married to a combat veteran, who was a United States Army
interrogator, and I think that his sacrifice and that of all of
our serving men and women is to be respected. And he fought for
the rule of law. He fought in the Gulf War, which he knew was
on behalf of enforcing the United Nation's Charter. He fought
under orders and respect for the Constitution. But that is what
we owe all of our serving men and women, respect for law, and
we should not continue on this path that disregards that.
Mr. Conyers. Thank you so very much.
Mr. Scahill, are you aware if the Chairman of this
Committee was on H.R. 6010, prohibiting the extraterritorial
killing of United States citizens?
Mr. Scahill. Yes.
Mr. Conyers. Yes, you were aware?
Mr. Scahill. Yes.
Mr. Conyers. So that you know that I am a cosponsor.
Mr. Scahill. Yes.
Mr. Conyers. All right.
Mr. Scahill. Oh, yeah, no, and I commend you for that. Yes,
of course.
Mr. Conyers. Had you mentioned that before now?
Mr. Scahill. Oh, well, it is your Committee, Mr. Chairman.
Mr. Conyers. I should know that I am on the bill.
Mr. Scahill. I think you were one of the half dozen brave
Members of Congress that had the audacity to stand up against
our government assassinating our own citizens without due
process.
Mr. Conyers. Well, I don't think it takes that much
audacity.
Mr. Scahill. I don't think it does. What I think is
audacious is that only six of you, I believe I am correct,
actually cosponsored that legislation. I congratulate you for
it.
Mr. Conyers. Attorney Fein.
Mr. Fein. To add to that, I would compliment you as also
being a supporter of a bill that I drafted with Walter Jones to
have the audacious prohibition on a President intentionally and
knowingly lying to Congress to obtain authorization for war,
sort of a revolutionary principle. And that, again, had a
handful of cosponsors.
But just a couple of final closing points. One, due process
is not simply a slogan. On Guantanamo Bay, after the Supreme
Court declared that habeas corpus was available to the
detainees, the vast majority that had hearings have been
concluded not to be enemy combatants, and this is even though
the Administration is able to rely on secret evidence to prove
enemy combatant status. And these are people that, as words of
former Secretary of Defense Rumsfeld said, were the worst of
the worst.
So due process matters. They don't get it right all of the
time.
With regard to the idea of battlefield, what is and is not,
what to me is rather alarming is that when you declare or find
yourself at war with a tactic as opposed to a country, there
are no boundaries; that if you say you are at war with
international terrorism, the boundary is all of the planet. It
can go interplanetary, intergalactic, wherever the tactic could
be conceivably be used. That is what makes so dangerous the
idea that we have the legal architecture of war in fighting
international terrorism, because it means you can use military
force anywhere you think someone is a terrorist, including in
this very Committee room.
Lastly at least with regard to waterboarding, if it really
works so well, I am puzzled as to why those on this panel and
maybe others who supported it aren't championing that it be
reinstituted. I don't know anyone saying, we need Congress to
pass a law saying the Administration shall use waterboarding
because it is so effective at gathering useful information of
thwarting terrorist attacks. I think the fact that it was
abandoned once it came under the sunshine exemplifies that it
was hardly the necessary tool to prevent future terrorist
attacks.
Thank you, Mr. Chairman.
Mr. Conyers. Thank you.
I would like to say on behalf of the Committee that there
is nobody here on this Committee that sanctions waterboarding,
among the witnesses in this discussion. I think that is
accurate.
Ambassador Pickering, you started us off, and I would ask
you to make any closing comments that you would like to make
before we adjourn.
Mr. Pickering. Two or three points, Mr. Chairman. Before I
begin, there is a tendency in this town and sometimes up here
on the Hill that while everything has been said, not everybody
has said it yet. I will try to resile from that.
I want to thank you for having the hearings. I think they
brought out a number of very interesting points. It has been
interesting that while the debate has had something of a
partisan flavor from time to time, there are enough home truths
that I think one can draw from this and your very vital and
interesting cross examination of us all that there is a way
ahead.
My own sense is that there is an entire compatibility
between national security and honoring and observing human and
civil rights. This is where I began. My sense is that that
still remains the deep underlying theme of this particular
hearing. And even though we have had differences in degree
about how the various pieces of this could come together, I
think we have no difference across the group here in any way in
principle.
Thank you, Mr. Chairman.
Mr. Conyers. Thank you very much. This hearing stands
adjourned.
[Whereupon, at 12:11 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record