the hearing will come to water expect shortly the arrival of the ranking member mr rohrabacher but i thought what i would do is i would proceed once the ranking member arrives give him his opportunity to make his observations well today we're continuing the examination of the topic of diplomatic assurances and with the appearance of the state department's legal advisor john bellinger will turn our attention to the are not familiar with the term refers to the commitment another country may not to torture a particular individual we decide to send the under a variety of various scenarios under the convention against torture and for are we obligated not to send someone to a country where they will be tortured so we use these diplomatic pressure and says to hopefully constrain the actions of the country to which the individual is sent my concern with this practice of utilizing so called assurances arise out of my interest in the case of may  all on the basis of reports now discredited reports that linked him to al qaida he was rendered to syria and according to a independent commission report  under the auspices of the canadian government was tortured despite having assurances that he would not be the same assurances were the subject of a recently released redacted report from the department of homeland security inspector general just last thursday  the inspector general mr skinner made the report available to the subcommittee and the judiciary subcommittee on the constitution that report had some rather disturbing comment to make about these surance but they were ambiguous as to the source and the authority the person within syria providing th and it appeared that no one checked to determine the sufficiency of these assurances so to sum it up there was nothing particularly assuring about the details of this case which is classified even on the basis of the un classified information the iraq case demonstrates the dangerous practice of relying on the diplomatic pressure and in this isn't just a concern in the rendition program we use such assurances on a regular basis and  and withholding of removal cases not to mention in transfers from one tunnel it's purpose today to examine how the process works makes the call on whether or not they are accepted who exactly is the administration willing to take assurances from and what colleagues appear to believe that foreign service personnel just really don't care a whit about people that our foreign service people and our members of our intelligence agencies and our military personnel our reserves and national guard that they will come up with any old excuse to basically deport every body who they want and torture people and they will just do this because this is something that attracts them as individuals i will tell you  that members of this committee have to understand and i think the public understand that the people that we're talking about are american citizens who have taken on grave responsibility to defend this country our foreign service officers hostage in order to get information and we're told that is not a way to get information from someone who is a suspected terrorist suspect that's not a way to get information but they will just continue doing this  a torturous pattern because this is just the way they are i guess if indeed the professionals found that using physical force against suggest to suggest that these people are just doing this and it's just going on even though it doesn't work is really an attack on the integrity of those people involved in our system and i do not share this belief that americans were engaged at that level of defending this country are cool and are some way to enjoy giving physical torture to people and  especially but what we have to keep in mind of course is we're not just talking about people we're not talking about individuals we're talking about terrorist suspects and in the hearing that we just have recently we were talking about a specific terrorist who the f b i had suggested it was not appropriate to use the tactics that were used against the word torture has been bandied around so often and but without placing weight on his body they placed women's underwear on his head and placed abroad his clothing a female interrogator in back and neck region over his clothing they described his mother and  sister they showed him pictures of women they discussed his repressed homosexual tendencies in his presence male interrogator danced with him they told him that people would tell other detainees that he got arouse them and let us make sure we give them the benefit of the doubt because they are defenders of these other people as i say don't not deserve our respect but they do deserve look they are guilty of the terrorist charges that have been leveled against them thank you very much i thank the gentleman i want to be very clear when the gentleman refers to the professionals the foreign service offices and those personnel were caught every day for those countries i obviously concur but the gentleman is also right when there are mistakes when there are policy when there  because we hold ourselves to a different standard we are america and as i've said on multiple occasions mistakes happen and particularly in the fog of war but when we inquire of the executive branch and information is withheld there comes a point in time when a certain level of trust that's necessary for the functioning of our democracy begins to roll and it's our obligation to see that that does not occur and doesn't occur in the next administration whether it be a president mccain or a president obama but let me note the presence of the gentleman from pennsylvania mr joseph pitts who has for some time now take taken a particular interest in a case involving a coptic christian from egypt i wish to commend him publicly he's the case itself is another example of what can occur when things go wrong badly wrong when our system fails and i would put forth a unanimous consent request that mr pitts be considered for purposes of this particular hearing as a member of the subcommittee to inquire of and post questions and hearing no objection call on mr pitts any comments he wishes to the hearing as someone who has been involved in human rights issues around the world the issue of diplomatic assurances and returning individuals to countries where they will likely be tortured is of great concern  each year the u s department of state publishes the country report on human rights practices included under each country is a section on torture strangely a number of countries to attend vigils have been sent or to which the us is intending to send people or countries in which the state department describes torture as widespread it is concerning and troubling that individuals who technically should be staying in the united states and be granted asylum may be sent back to a country that no matter what their government says most likely will be tortured for example there's one case which my constituents brought to my attention about a year ago mr samake coptic christian who was about to be deported back to egypt his country of origin mr fled egypt for a number of reasons including detentions by security officials and threats against himself and his family u s government lawyers told mr karzai that in january of two thousand and seven they received diplomatic assurances from egypt that he would not be tortured if he were to be returned to egypt interestingly in the country reports the state department consistently finds incidents of torture there i worked on human rights issues in egypt for a number of years and it was shocking that despite clear evidence of widespread torture certain officials in the u s government would accept at face value a promise that an individual would not be tortured where he to be sent to the us acceptance of these assurances was even more disturbing in light of the diplomatic assurances given to sweden surrounding the case of mister swedish government the ported mr again after receiving diplomatic assurances that he would not be tortured upon his return to that country not surprisingly given the egyptian government's history of human rights violations mr gaiser was indeed tortured upon his return further despite egyptian government assurances swedish officials frequently were denied access to mr gates and when finally granted access we're not allowed to meet with him alone this year state department country reports reveal once again that quote police security personnel and prison guards routinely tortured and abused prisoners and detainees close quote the egypt section goes on to report that quote there were numerous credible reports that security forces tortured and mistreated prisoners and detainees domestic and international human rights groups reported that the s asked police the other government entities continued to employ torture to extract information or forced confessions in numerous trials defendants allege that police tortured them during questioning although the government investigated torture complaints and some criminal cases and punished some offending police officers punishments generally did not conform to the seriousness of the offenses and quote in two news programs last year on an australian t v station former agency official bob baer made it clear that the us government knows of the widespread torture in egypt and in fact considers that knowledge and decisions to send individuals when asked if there was any doubt someone would be tortured if he were returned to egypt mr bear answered absolutely no doubt at all if you send them to egypt it might as well tantamount to condemning them to death and quote in another part of the program mr baer stated regarding sending people overseas quote if you never want to hear from them again send them to egypt that's pretty much the rule in quote when i ask again when someone is rendered egypt is there any doubt that they're going to be tortured mr baer said oh absolutely no doubt at all yet the u s government is willing to accept the diplomatic assurances egyptian government that an individual who has already been tortured by the egyptians will not be tortured if he were to be deported egypt is not the only country that should be examined we should not be sending people who really should receive asylum to countries where the likelihood of their being tortured is extremely high diplomatic assurances to the contrary so thank you again mr chairman for holding this important hearing i look forward to hearing from our distinguished with thank you m very extensive and a very impressive resume he was sworn in as the legal adviser to the secretary of state on april eighth two thousand and five the principal advise on all domestic and international law matters to the department of state the foreign service and the diplomatic and consular posts abroad from february two thousand and one to two thousand five hundred served as senior associate counsel to the president and legal advisor to the national security council at the white house as legal advisor he provided legal advice to the president the national security adviser and princip s and white house staff on a broad range of national security and international legal matters he was one of the principal drafting of the two thousand and four law that created the director of national intelligence as general counsel to the commission on the roles and capabilities of the us intelligence committee and a special assistant to director of the central intelligence agency william webster from ninety one to he also received a master's degree in foreign affairs and ninety one from the university of virginia where he was awarded a woodrow wilson pharmacy is a fellowship there's more here to read but we'll just o that conclude by saying it's an impressive resume we welcome you and would you proceed with your statement and take your time because as you can see this is a small subcommittee in terms of our numbers and we tend to have a dialogue as opposed to a five minute rule and we don't want to we want to listen carefully mr chairman and members of the committee i do really appreciate the chance to be here to talk about what is an important and difficult topic to appreciate your reading my long background in government the one little piece that you didn't mention was that i got my start in government as an intern here for one of your colleagues now sadly no longer on the committee jim leach that's how i got my start in the foreign affairs if i can interrupt you on the board of advisors of the institute of politics at the kennedy school and you well know then the former representative is the director of the institute of politics and is doing everything that one would anticipate from  i do appreciate the chance to be here today to discuss the use of diplomatic to protect individuals against torture in other countries the use of diplomatic assurances in the practice of the department of state arises  different context first and the surrender of fugitive extradition from the united states second and immigration removal proceedings initiated by the department of homeland security and of course previously by the immigration and naturalization service of the department of justice and lastly as you mentioned mr chairman in the transfer of individuals from detention in guantanamo bay cuba my testimony today will describe the use of diplomatic assurances and explain the reason why we believe such assurances can be an important tool i have a longer statement for the record because i think this is a useful topic for all of us to discuss but i will keep my oral statement quite short at the outset it is important to understand the united states legal obligations and related policies with respect to sending individuals to countries where they might be tortured the touchstone of our legal obligations with respect to transfer of individuals is article three of the convention against torture and other cruel inhuman or degrading treatment or punishment which we also call the cat as a state party to the catch the united states has an international legal obligation under article three not to expel return or extradite a person from the united states to a country quote from article three where there are substantial grounds for believing that the person would be in danger of being subjected to torture so that's the legal standard that we observe as a matter of international law i want to note three things about this obligation first the united states interprets article three operative language to prohibit extradition or removal the words substantial grounds to mean if it is more likely than not that the person would be tortured there's been some criticism about that standard more likely than not standard but i want to make clear that that's the interpretation that was given to us by the senate in one thousand nine hundred and included in the u s instrument of ratification in one thousand nine hundred four the standard we use is if it is more likely than not that a person would be tortured if returned to another country second the obligation in article three does not apply with respect individuals who are outside the territory of the united states this interpretation is supported by the text of the convention against torture it's negotiating history and the yes record of ratification  interpretation that accords with the way the refugee convention is interpreted which the supreme court has held with precisely the same words do not apply to transfers to take place out the united states now i  have but clearly you can make the distinction between the convention on refugees and you do later in your written testimony in that on the convention against torture as well as the position of at least one of your predecessors in the office of legal advise and i am not aware that the position of the u s government on transfers outside the united states has changed the legal standards that i'm describing to you have been the longstanding legal positions of the u s government since the convention against torture was ratified in one thousand nine hundred four so these are not the changes in legal position taken by the bush administration i do i do know the point that you're making and that's why as a matter of policy outside the united states and a policy that has in fact been stated by congress in the statute we apply and that statute would be that is the that is statute that was passed by this congress and the fact is domestic law well it's a statement of policy of course as you know there are statements of policy that can be  think that we have a very divergent view on whether a law passed by the united states congress must be complied with by the executive under those applies it's not about geography it's not about the physical territory of the united states it goes to the behavior of the united states now i don't know whether there was a signing statement at the making as a matter of policy even where we take the position that as a matter of international law that by its terms doesn't apply outside united states we comply as a matter of policy that's why we take such a long time with the assurance that we seek for individuals who are returned from guantanamo but i do appreciate the question now the last point i wanted to make on the law is that the obligation in article three and are related policy are absolute they are not subject to any exceptions or any kind of balancing act or harms even in cases involving the possible removal or extradition of dangerous individuals who may pose a threat to the safety and security of the american people what that legal background i'd like now to explain how diplomatic when properly employed come into play let me present it this way when confronted with the presence in the united states of a dangerous foreign national for example a suspected terrorist or a person who has been charged with a violent crime abroad such as murder what are our options trying to detain the person is certainly one option but we are limited and the legal regimes for detention in many cases we may not have the ability to detain someone we might lack admissible evidence to support charging the individual with a crime even though we may have reliable information that the person actually does pose a threat to our people other than let me interrupt wonderful other than lacking  have i guess my concern is as a former prosecutor myself i like to see the evidence i'd like to hear about it i like to have trials before i reach conclusion isn't the hold if that is the only impediment problem someone we're concerned about well it's not and that's only one and honestly i appreciate the chance to talk this through because i think it is a serious policy problem between congress and the executive as to what to do with these individuals and i can tell you i talked to countries all around the world who have exactly the same problems with foreign nationals in their country who damage potential damage to their citizens and who they would like to send back to the countries they came from so you're right one is a pos an individual who we suspect might commit a crime but we cannot charge for lack of evidence another might be someone who we have in fact charged tried and convicted of a crime but may only have served a year or two we wouldn't want to then simply let that individual go into the general population of the united states after they have served their sentence if they were foreign nationals who is in the united states illegally we would not lie my response would be that any good assistant u s attorney deputy attorney general who had information that was of grave concern to the government of the united states ought to an individual state for that matter in the course of developing a sentencing memorandum for purposes of imposing sentence that clearly would be appropriate to present that information to the court and under the guidelines it exists now to talk about a year or two  really don't think translates into into reality i've had an opportunity to observe the federal courts for some time and i see very long lengthy sentences that are meted out on charges that as a state prosecutor i might describe as not that the senses would be surprisingly long i hear your argument but to be candid and respectful i find it difficult to accept if the evidence is there that i as an assistant u s attorney cannot get the sentences as long as we'd like we may be able to try someone for a lesser sentence and you face the same thing for example in massachusetts or in any state where we try someone we get them to plead for maybe five y our prosecutors do want to get the longest sentence they can but securely if they think it's someone who is very dangerous at that point two years five years in your case twenty years we still don't want to let that person go in the united states we want to have them go back to the country that they came from or another country now one last example which comes up quite frequently is a person who is in the country illegally to begin with in general if we have someone who has entered the country illegally we don't want to then prosecute the person and put them in our jail and hold them here what we want to do is simply remove them or deport them from the country and send them back to the country that they came from or otherwise we would be detaining tens or hundreds of thousands of people who have come in the united states illegally so overall there are a number of individuals who pose can pose a threat to our national they are foreigners who either because we believe it is more likely than not that they will be tortured and i'll just finish i'll dispense with the rest of my oral statement because we're having a discussion here just to make the last couple of points that  turn someone back to has a questionable human rights record as a general matter but whether a particular individual is more likely than not to be tortured if we send them back and back where the diplomatic rendering to those countries whether it be through extradition whether it be through extraordinary rendition which i know you haven't addressed your opening statement but maybe we can get to it through again we move all through the issue of guantanamo is a country if we can agree that there's a number of countries that have a record that demonstrates time and time again that there is the systematic use of torture does that for your purposes in terms of securing diplomatic a country with that kind of record has not been inquired of what has not been the object of an effort by the department of state by any branch time well let me i would consider i would consider that not rare i would consider that a significant number particularly when anyone has been abused or tortured after the diplomatic we're not aware of no cases a lot of course depends upon the capacity of the department to create a mechanism to monitor and this is an area hopefully we can get into as well absolutely and that's very important i do want to mention the guantanamo cases and wanted him a we have returned more than five hundred people from totally different and i hope you know something that we don't i think we can certainly talk about the facts but i don't think we ever had seventy egypt in custody in guantanamo there were only under five  my only one person has been sent back to egypt and i'm not personally aware that there have been any allegation maybe maybe i'm being unclear when i have been sixty to seventy that have been rendered  as opposed to well i'm i'm not aware of those cases from guantanamo we've sent one person back to egypt but i mean i will get into that i went on to hold you up i understand the concerns overall we have had some cases from guantanamo where there have been allegations that individuals even though we have gotten assurances that there has been mistreatment and we have been deeply concerned about those cases  that is in a small handful of five or so out of like out of a number of five hundred who the department of defense has returned so that's about one percent of the  cases where people been transferred from guantanamo have there been issues of possible mistreatment now the alternative though is to leave them all in guantanamo and that's why the diplomatic assurances are very important if we want to transfer i'm out to question two countries almost all of whom have had some questionable human rights record we have to seek diplomatic assurances and in ninety nine percent of those cases the diplomatic assurances  have been fine i think the overall point that i'm trying to make here is we are certainly aware of the concerns that you raise we have a international law obligation we have a statutory obligation we have policy concerns going back several administrations that we do not want to send an individual to any country where it's more likely than not that they will be tortured on the other hand if someone poses a threat to our country nor do we want to let them go into our general population and so if they're in guantanamo it either means that they just stay in guantanamo or if they're in the continental united states and you can't keep them in prison it means that they go loose in the general population and the tool of diplomatic assurances is an important one that allows us to seek assurances from a foreign country that an individual will not be mistreated and there are not really other good alternatives deportation removals and they were not individuals from guantanamo which is where we have been involved in getting to the matter i simply do not know whether that is an accurate statement and if we have diplomatic assurances do we have any kind of tracking mechanism in place to ensure that these individuals are not tortured it's an important question and it is if we if there's a question about a human rights record in a country and we do decide to seek diplomatic assurances then there are a number of mechanisms that we can use to follow up one of them may be to have the state department be able to and i can tell you this is something that's not unique to our country is the legal adviser for the state department i talk to countries around the world all of whom face the same problem with the brits and others who have individuals in their countries who they want to  so i'd have to look back at the past practice again this is something that is a practice that is ten or fifteen years in terms of diplomatic assurances this is not an invention of ministration but it is part of the carrying on with all due respect do not bother to take the question back to see if you can work with us on it because i think it would be inappropriate deference member of congress myself and any member not only have a right to that information we have a responsibility that has been imposed on us by the fact  are the first branch of government to have that information so that we can determine what is happening in secret in our government and with that i yield back to the john and his chair and i might just add one thing when it applies to one of your constituents it's even more compelling that we have the the ability to see that kind of evidence you mentioned in your your statement when confronted with a dangerous for national of evidence when you're defining serious criminal what kind of evidence does u s require regarding someone who is called a serious criminal by another country that may or may not have a transparent judicial system in which an individual is innocent until proven guilty in order to even consider accepting diplomatic assurances that there are there are tens of thousands of cases where we have simply been unwilling to let an individual stay in the united states even when they have otherwise violated our immigration laws even violated our laws and a loud them in the united states if they can show that they would face a risk of torture or persecution but there is a handful of cases in this i have said that is extremely small and which are other agencies and this is not something that is left with the state department this is left with our department of justice with our immigration service with the department of homeland security so you would have to put the question to them to ask what does that category of cases where they feel that it is so important for the security of our country that rather than allow an individual to stay on in the united states go free in our population that they would rather ask the state department to get the diplomatic assurances  to ensure the person is not mistreated if returned elsewhere we don't we don't quibble with other agencies and say to them this person doesn't look bad enough to us if they ask us to go get the  diplomatic because they've reached the conclusion that the individual poses a threat and it's our job to get the assurance do you require the foreign government to give you the evidence show you the evidence you maintain any kind of records of the crime for someone to be extradited to another country we would they would have to satisfy the conditions of our extradition treaty they would have to show that it fit the elements of criminality in the extradition treaty and there would ultimately be shown to a federal judge who would determine whether the individual was extraditable to a foreign country and that in the case of extradition again like the previous question that i ask enough to get back to i just don't know what the past practices ban with respect to law enforcement and the details of extradition that would be information that would be provided by a foreign country to our department of about why it has taken so long to transfer people out of montana one of the reasons is and we don't talk about much about this publicly is that it will often take months if not years to obtain written high level countries that they come from i can certainly tell you and i gather you will be meeting with my colleague the ambassador for war crimes and ask later on this week to get a briefing on how the negotiations for returns from lawyer is a transfer of an individual outside of the extradition or other legal framework in this case mr arar was removed from the united states pursuant to a legal framework he was domain despite his objection and if what i'm hearing from you is and i want to be very clear that in particular case the department of state had no communication with the jordanian with the syrians regarding another question that i have at the time you were legal advisor to the national security council you weren't in your current capacity as legal advisor in those cases where there is clearly going to be controversy as was in the case of iraq and i presume in the egyptian case  ordered an individual to be released from an afghan prison where he had been imprisoned for five months does that provoke litigation well again it raises an issue in terms of the role of me without speaking specifically to a case and in litigation the role of the national security council and you at the time were advised to that that body where there are cases without being specific in which kind of issues were brought to the say the national security council staff got bogged down into every individual who was captured by the department of defense removed by the department of justice by the department of  and i've been working for seven years for better laws and better policies in the area of detention i'd be happy to go through the details of what i have done but i am proud of the work that i have done behavior not what you did a good job i can assure you that the members of this panel i have gone through two was took some very tough vote and there are some very profound disagreements right here in this pan l as to the basis for much of our foreign policy you understand i can assure you that i stay up late at night getting myself prepared to inquire  individuals such as yourself this is not meant to be an adversarial hearing this is to exchange ideas and i'm hoping that we can continue this over the course of the next several years so that we can really gras p whether the need to be significant changes in terms of how we function as a relates to diplomatic pressure and says you know what that let me yield before he takes the gavel to my friend from california torture physical pain being intentionally collected on someone who is in captivity and that may well not be what people mean when they are claiming that torture is being used  suspect we also are talking about whether or not once you define torture whether or not it is actually effective in obtaining information that might save innocent lives a definition and once you have talked about the definition what point is it effective and then there is a debate as to whether or not even if it saves innocent lives whether or not  inflicting pain on a captive is a moral thing to do even though that captive is a criminal and gaijin murdering other people to save the innocent people is it right to inflict pain upon it and those are the questions some of our military people who work for a foreign service these people are not cool and they're trying to be effective they do not pick people up off the street to waste their time just flippantly taking somebody and but they do make mistakes like everybody everybody in the world makes mistakes and sometimes they do but they are not flippant about their job they are very serious and if they found certain inflicting pain in order to extract information i was ineffective i'm sure they wouldn't do it or if it if you define torture beyond that and saying just believing someone and using pressure other than physical pain is not permitted as but let us look at whether or not waterboarding is torture ok where again a false sense of panic is created and i was challenged to come up with some sources saying that it was effective and i would like to submit those for the record right now n the five years after the september eleventh attacks we also have coupled with that report that prisoners held out until they were waterboarding and we put these quotes in the record and basically having held out to give any information shortly after being water boarded they to give information that led to the un masking of several terrorist operations which are also details that will be for the relationship between the waterboarding and he was opening up information if my friend would continue to yell i have no doubt that after thirty five seconds he started talking i'm sure the i'm sure they want to i'm sure he is not inconceivable to me now first of all it's a debatable thing whether or not waterboarding which is a false sense of panic in which someone is not really life is not in danger and is not a physical pain but instead a psychological panic that's created whether or not that is to be considered torture other people would suggest that as i mentioned this list of what the f b i had been so upset with about the behavior or the patterns of of  interrogation used against the twentieth hijacker and none of them seem to me to fit into physical pain being inflicted intentionally to get information which is what i would call torture i'm not sure whether or not the definition of what the definition of torture is in some of the cases that we're talking about i know when torture if you reply the word torture to waterboarding of these gentlemen who were engaged in nine eleven or th twentieth hijacker when he was humiliated whether or not those are considered to be torture or not i personally do not think so i don't believe the american people generally think of that they also but the american people do understand we have not had a major attack on disc country since nine eleven there have been a lot of other smaller attacks throughout the world but that has not been simply just our luck it has not been dialogue it has been because guys like you are doing your job people like the people who give you information are doing their job the people on the front lines are doing their job and i think that they've done a darn good job and they've made some mistakes and we should know when they make a mistake and try to correct it but we should make sure that we are indicating that the basic strategy of the united states has been good because it has prevented another nine eleven with the types of conduct that you are alluding to but for example in the case of egypt i think that you would agree with that and this is from the department of state's own country reports principal methods of torture and abuse reportedly employed by the police and the secret service is included stripping in blindfolding victims victim by the wrist and ankles and contorted positions off from a ceiling or a door frame with just touching the floor beating victim's with metal rods or other muslim terrorists is an act of torture that i think is very debatable and quite frankly we are up against people who clearly as i say one of the gentlemen who how horrible it is that we waterboard what to terrorize the population of other countries and to terrorize the people united states now is it ok to waterboard that guy and say ok who's working with you on this idea where you're kidnapping people and beheading them on tape is that  hearings have been about last week was an f b i official f b i report detailing the techniques of interrogation and it wasn't about that it was about exactly what was in that f b i report which i just read into the record of all the things they you know you have to deal with people giving you information and people engaged in the activities that we're talking about now would you think that those people that you're dealing with are intentionally wasting their time focusing on individuals that they think may or may not have some information or may or may not be involved in terrorist activities or do they try to go out of their way to make sure they're not wasting their time and resources and do their very best in trying to focus on people who might be involved in activities that would threaten the lives of americans i think the question that all three of you have been asking me is what do we do in cases where we have got someone who poses a threat to the united states but if we would turn them to the country that they came from or another country that wants to prosecute them that has a bad human rights record and would torture them the definition of torture is something that is defined in the convention against torture it is defined in the u s statute what do we do with that individual none that we have a legal obligation not to send an individual back to a country where it's more likely than not that they would be tortured and certainly mr chairman that we look at the the reports and the human rights report that we prepare extremely seriously and that is going to be a a yellow flag and in some cases a red flag that would caution against sending someone back but i do have to say it is an individual determination simply that a country has a bad human rights record and we may be pounding on every day with respect to their human rights record doesn't mean that every individual who is returned to that country would be tortured and it raises a assurances come in because if we don't have a good alternative if the alternative is to let the person go into the united states i think you will be hearing from your constituents as to why are we letting someone go  well that i can tell you the department does not interrogate people but i what i will say is that with respect to other our government the defense department at the justice department and our intelligence agencies activity if they are stupid enough to continue using a tactic like physical abuse if it is not being effective in gathering information or indeed  individuals talk to those departments about the techniques that they use but your basic point which is are they are they there to waste their time no sir i can imagine they are there to waste their time they're trying to do  we get all of this is talking about a relatively small number of people and relatively small number of people again we have had our own officials doing their very best job to make sure that their focus was on admitted but let's not try to look at the talking about thousands of people of american policy and blown out of proportion which is what i believe of course every time you use the word torture dealing with non department of justice inspector general report had a very interesting and relevant footnote hundred thirty four where the i g revealed that an f b i agent told me that the chinese government officials came to detainees were subjected first to for sleeplessness and then low temperature room for a night and day before questioning by the chinese officials the key point here is that u s government officials invited the very chinese government mistreated mistreated the wiggers cause them to flee china and they were they were allowed by the u s to interrogate them at a highly restricted u s military base where ironically members of congress are not even allowed to talk to them and allegedly the u s military personnel were directed to soften them up abuse them whatever you want to call it before getting ready for questioning by the chinese officials who made the decision to allow the chinese government to interrogate a persecuted religious minority and a u s military base who would make that decision that would be the department of you would have to put that number of years back we had concluded not they were wrongly picked up they were picked up because they were in a training camp in afghanistan but it was concluded rapidly that they were not trying to fight but they were trying to fight the chinese so we made the decision early on that they need to be sent somewhere but they couldn't be sent back to china but as far as that decision in guantanamo so you have to ask the defense department are there any other foreign for access to their nationals and who we want to take their nationals are invited in now that's not in all cases so it's not across the board but the gentleman  diplomatic assurances could you provide that to the the committee we do have that information and i know the chairman will be meeting with my colleague the ambassador for war crimes who is the one who has the lead responsibility and travels around the but putting that aside for a moment i think that when we well first of all let me ask you this for foreign intelligence agents  deal miami i don't mean to put my i mean on the spot but to get there does it require approval by the department of state i don't know the details of how the visits are handled i am aware that while some countries have been invited their nationals other countries have not been invited to visit their nationals and in some cases in some cases individuals countries who wanted to visit their nationals the people who they wanted to send have been excluded but i don't know the details but we can certainly get them for you on that would be most welcome because we did have testimony from an attorney that represents an individual pakistan security forces now i don't have to read to you the record of the use back when it comes to the practice of torture they are well known they boil people alive i'm sure that you are intimately familiar with the massacre and john and yet that the united states is what how do we respond to that i'm not aware whether that happens or not but what i can presume for the sake of our discussion that happened what i can what i can say is that i would given of the problem is the balance which is significant because guantanamo as you're well aware is symbolic at this point in time it's revealed in all of the polling data that the department of state has conducted regarding america's image in the world and that stigma is clearly a deterrent to relocating the individuals that there's a consensus now should be allowed to leave guantanamo and resettle someplace else and we can't find a nation to take them it's  it's a real problem and what i find frustrating is that i'm visited and i'm sure other members of the committee a visit by representatives of other governments that are saying to us  independent of the executive branch because they read the newspapers they know that the said ministration is six months or seven months to go and so everything is looking forward prospectively yet none of us want to see individuals continue to be detained there that don't deserve to be there if they deserve to be fine let's charge so much give them a trial  on but this is hurting us and yet there is no reaching out if you will on the part of the administration whether it's true you  whether it's to others to utilize maybe whatever whatever political capital that i might have along with the ranking member to assist in what i would suspect is a common goal because people do walk into his office and mr pitts office and my office who say we want to see some demonstration on the part of the you united states to accept responsibility for their mistakes and if that happens we will do what we can to resolve the issue now some might like to keep  forever but it's not the next president of the united states we know that we know senator mccain's position we know senator obama's position we know secretary gates his position and yes and bob our position who's a friend and colleague from years ago so that everybody wants to come close guantanamo secretary gates speaks to that issue i think very eloquent eloquently and i should note for the record that i've said it in a publicly i respect secretary gates but he's a man of integrity and i think he is is thoughtful and understands the implications for the united states long after he's gone as secretary of defense so i would hope that some of the discussions that we've had him on ourselves whether it be in the case of mr pitts a mr roboto myself that may be as the this administration acts that we can achieve something in terms of restoring america's claim to moral authority in this country very very important because collectively it's us it's us and we've got we've got to take strides but we have to continue to have these hearings to know what went wrong and how you know and how do we address it you know my friend talks about physical torture and we know that mr hirai was sent to jordan and then to syria and i really found it amusing when i read the the the united nations wrap up tool report on the jordanians that he got there on a jordanian airline got off the playing and after a couple of conversations said i want to go to syria and about syria's record according to you according to your the public not according to me a robot or a pitts but according to you he's worried about the methods of torture  well i'm sure he would concur that electric shocks pulling out fingernails burning gentilly are forcing objects into the rectum sometimes while the victim was suspended from the ceiling alternately dousing victims with freezing water and beating them in extremely cold coal rooms bending the detainee's into the frame of a wheel and with being exposed body parts using a backward bending chair to sixty eight the victim a fracture fracture of the victims binah stripping prisoners naked for a purpose and according to amnesty international there's thirty eight types of torture in ill treatment used against detainees in syria what kind of diplomatic assurances would be satisfactory would be sufficient that's the trip while you are reports of the trip w forty can talk all legally so we want if we had had some sort of independent board to review the sufficient you the sufficiency of diplomatic to show i'm not talking about people of any particular bias i'm just talking about getting the facts terminating them and then making recommendations and those recommendations could be advisory or they could be binding well let me ask you this what about the missions i've only been legal advisor for three and a half years and i would have to go back to look at that apartment during your three and a half years and i know you can't give me a specific number but give me a range i have i'm speculating that there might be some agencies that don't seek your your intervention good offices if you will in an attempt to secure upset our friends on the northern side of our border where i can tell you clear according the polling data the image of the united states has suffered as one another and that was something that stands out of iraq and that i know secretary rice made clear to you personally that the communication could have been handled better and so we serve as a watchdog force and an incentive for people to do their job but by and large i would say that i believe our people done a terrific job with limited resources limited information trying to  prevent not trying to convict somebody after an attack happened or trying to prevent future attacks we haven't had this massive attack on our country since nine eleven and that's a very good thing and i'm very grateful to it so thank you very much mr chairman  reagan administration actually participated in the craft and they seem to have a divergent point of view with respect to the reach of the reach of the convention in terms of congress confirmed the cat obligation not to expel grounds for believing the person would be in danger i was subject to torture regardless of whether the person is physically present in the united states i think that's clear in my own belief however you interpret and they have been disagreement as far as the is the committee on torture in the us position is articulated by yourself but from a congressional perspective i think the statute as somewhere in your testimony and you refer to it as a policy i think it's more than a policy i think it's the law of the land binding on the executive for you to respond i just want to be clear as a matter of  that the congressional act the statute itself has a binding obligations upon the executive that's my interpretation and i wonder if you would agree with me o obligations outside the united states quite seriously and as a matter of policy i guess where we disagree is that what i'm submitting to you is that it's not a matter of policy domestic policy it is the  statement itself and what i read to you is reflective of congressional intent as it relates to the so called i have serious reservations about confidentiality and in this context i mean if we're going to have confidentiality then why do we produce annual reports  country we're talking about i mean i had staff all of these countries and clearly there's a predicate that if  you if you have to secure diplomatic assurances usually not going to ask the canadian despite the fact that there was a finding that it would be detrimental to u s interests if we had sent mr arar back to the deputy attorney general i always thought they were pretty friendly and clearly i've never seen them on a state sponsored terrorism list but be that as it may i mean whether it's egypt i mean jordan  syria iran our report in your report there were numerous credible reports of security forces and prison personnel to let you detainees in prison this is iran tajikistan confessions obtained by torture beatings and mistreatment were common libya reported methods of torture and abuse including chaining prisoners to a wall for hours clubbing applying electric shock applying corkscrews to the back pouring lemon juice and suffocating with  banker people have been sent from guantanamo to libya according to mr bank declaration which i'm sure you're familiar with a matter of public record people have been sent from one town almost to sudan said that they want to go back to those countries and do not believe that they will be mistreated they will be turned back to those countries which i think the point that even if a country has a terrible human rights record something that we have outlined and our human rights record that nonetheless not every person who goes back to that country will be mistreated we are not aware in fact  some validity to diplomatic assurances i have yet to see any evidence whatsoever of an effective mechanism to review what occurred in the after are they going to you know open up their prisons and and say come on you know bring a doctor and i mean as a practical real world either in guantanamo for years and years and years or we can try to negotiate their return to different countries and i encourage you know particularly those that are not a  system that didn't work and that has caused a real embarrassment and i can go on and on and on but i also know that we've got to do something about it or as i said earlier our credibility internationally and i'm risk and earlier on in your written statement you talk about it being an absolute terms a bright red line or a black and white  i guess what i'm suggesting is is that there has to be a better way than to rely on diplomatic assurances given all of the problems that we've seen and i'm not talking just about a policy that really needs to be reviewed and i know that you know the committee on on on the on cat has recommended the use of diplomatic assurances i agree with you it is not an easy area but i think what you do have to look at is the alternatives the alternatives are one you just leave people in guantanamo or if they are people in the united states you let people go free in the united states who would pose a risk to our citizens and that's not acceptable either so what we do is we try to take the best middle road but what i'm what i'm what i'm suggesting is that  review and investigation into the background of many of these cases now let's go on title i think reveals that many not all  there at the wrong time at the wrong place and we came out with a policy that the three thousand to four thousand five thousand dollars you give us someone from al qaeda you know what if i did that with the informants that i utilized during my previous career i would have had them lined up from here over to the white house for the handoff and they would have given me exactly what i wanted to hear exactly what i wanted to hear and i took a lot of pride in minimizing the use of inform and i did that this is a mistake that was made early on to create a bounty system and now we got ourselves into this mess three thousand five thousand dollars to an afghan to a pakistani in a while i conditions of course you're going to say you know when it comes to torture you know my friend talks about all this great information i can i want to do i want to do a piano and have the professional you know interrogators out there that tell you that the information that they get in the ways that they do it is far more valuable than you know the let's let's break you know collegiate muhammad down and twenty five seconds he's going to tell us you know that's great in the movies ok you know what that's good cowboy material but it in real life good f b i good a good military interrogator is a good cia interrogator will tell you you're not going to get it you're not going to get good information and that's why we have particularly military personnel that are currently active that are saying don't use torture not because of any moral implications putting them aside but there's a work in the answer is no i would like to think it works because when you go back to that those cases where you know we're saving the  lives of tens of thousands americans everybody wants to save the lives of thousands americans no one wants to have you know that to even contemplate another nine eleven but we want to do it in a way where we stay true to our bad news and at the same time a much more effective idea that if twenty years from now we open up all the books we'll find out more i find it really fascinating there's good hard evidence solid f b i have nothing to do with you know the evidence in venezuela or cuba let's put all that aside and yet i hear the position of the state department is that as i look at the venezuelan record on torture compared to some of the countries that i've alluded to i mean it's it's you know it's a camp camp mehdi karoubi a club compared to what we have heard previously  since this is on diplomatic assurances but we won't extradite despite the fact that we have an extradition treaty because the cubans might come over some of these countries make the cubans look my old career i had the un enviable task of investigating and prosecuting crimes in most of the commonwealth of massachusetts penitentiary it was lot of lessons learned we did everything by videotape but in any event i find this and i understand that there's not a good relationship between george bush and a good job for us i understand the realit would not be rendered if you will cuban agents would not be allowed to participate or interview mr posada career and he would not be subject to  is evidence and i don't know what do you had an opportunity to review the files that indicate a probability that he was implicit in the destruction of a cuban airliner with seventy three civilians on board and yet here we are dealing with terror and terrorism and mean do these kind of political concerns and i don't mean it in a partisan way but in terms of a public diplomacy do they are they factored into the decision don't believe in the part of some government that i personally have communicated with a willingness to do something if there is some action on the part of the united states to accept