hearing of the subcommittee of the constitution civil rights and civil liberties it will now come to order without objection the chair is authorized to declare recess of the hearing which i will endeavor to do only if there are votes on the floor with that proceed to members opening statements as be will have five legislative days to submit opening statements for inclusion in the record the chair recognizes themself of five minutes for an opening statement today the subcommittee continues its investigation into the administration's interrogation policies their source  legal justification for those policies and how they were carried out the more we look at this question the more disturbing the facts appear to be the practices appear to have been more widespread and the legal justification is more flimsy than was initially report evidence also appears to be mounting that officials at the highest levels of the administration may have been directly involved to a far greater extent and far earlier in the process in ordering these techniques which many characterize as torture that had been previously represented to congress and to the american people we need to get the facts the purpose of these hearings is to get those facts or the one of the witnesses who would appear to have direct personal knowledge of the as mad as douglas fight withdrew from the hearing this morning we have colonel wilkerson here who will be able to provide important information and important perspective on these events and the issues they raise from personal knowledge and mr feith will appear before this committee before too much more time has elapsed i've endeavored to ensure that we get on the record testimony from people with actual knowledge of these matters and the perspective and expertise of military people who i believe served by political appointees this is not as some of suggested a witch hunt or a lynching high or low tech the american people have a right to know what their government has done in their name and what it is continuing to do and that is why we're here today we all want to america to be secure but our national security and our nation's values have not been well served by what i believe have been dangerous novel and illegal you mr chairman mr chairman the subject of detainee treatment was actually the subject of all were sixty hearings markups and briefings during the last congress in the armed services committee alone of which i'm a member and i just want to reiterate like i try to do every time that torture is banned by various provisions of law and i agree with that torture should be banned including a two thousand and five senate amendment prohibiting the cruel inhuman or degrading treatment of anyone in u s custody incidentally if you break that law if the if the person dies the person that did it is subject to death penalty severe interrogations by contrast do not involve torture and they are still legal the fact is if waterboarding is torture then we are torturing our own soldiers in the training process so we're interrogation is rarely ever used cia director michael hayden has confirmed that despite the incessant hysteria in some quarters the waterboarding technique has only been used on three high level captured terrorists the very worst of the worst the cia waterboarding nine one one the c water boarded nine one one master mind colleague shaikh mohammad who's a beta and abdul nashiri for approximately one minute each the result of a total of three minutes of the severe interrogations measurable benefit to the american people cia director hayden has said that muhammad and debated provided roughly twenty five percent of all of the information the cia had on al qaeda from human sources a full twenty five committee hearing on terror policy on june eighth two thousand and four and it should come up on the we ought to be reasonable about this i think there are probably very few people in this room or in america who would say that torture should never ever be used particularly if thousands of lives are its stake take the hypothetical if we knew that there was a nuclear bomb hidden in an american city and we believe that some kind of torture fairly severe maybe would give us the chance of finding that bomb before it went off my guess is most americans and most senators maybe all would say do what you have to do so it's easy to sit back in the armchair and say that torture can never be used but when you're in the foxhole it's a very different deal and i respect i think we all respect the fact that the president's in the foxhole every day so mr chairman the fact is i don't know that i agree with everything that mr schumer said we're talking in this particular situation about not torture but severe interrogations and i would take issue with some of the things the senator said so i think it's very important to somehow separate these two kinds of of activities after the may sixth two thousand occurring and i can only respond to that i mean he has certainly we don't know what those ticking bomb scenario so we have not been able to to nail those down but it's stuart sailors stuart taylor said and wrote in the national journal quote the cia had reason to believe that unlocking the secrets in colleague shaikh mohammed's head might save hundreds of lives and perhaps many many more in the unlikely but then conceivable event that al qaida was preparing a nuclear or biological attack on a major american city this tough smart committed jihad ist was not about to betray his cohorts to his hated enemies if interrogators stuck to the kid glove interrogation rules demanded by human rights groups and recently by most congressional democrats mr chairman i believe that mr taylor is correct al qaeda leader osama bin laden has said it is our duty this is his quote it is our duty to gain access to nuclear weapons for example at a may sixteenth subcommittee hearing i asked the democrat witness marjorie cohen president of the national lawyers guild how she would write a statute defining how terrorists should be treated when they refused to provide vital life saving information voluntarily ny i left it open to her i said tell me what it should be and listen her reply what kind of statute i write i would write a statute that says that when you're interrogating a prisoner and you want to get information from you you treat him with compassion and empathy you gain his trust you get him to like him trust you and then he will turn over information to you mr chairman i'm just suggesting that it might be a little bit more difficult to get al dedicated to the destruction of the western world to like and trust us i'm afraid it's a little more complicated than that i wish it weren't but i would suggest that the statement was indeed dangerously naive and i thank you and the chairman of the full committee and to my good friend trent franks the ranking member of the subcommittee we have some excellent witnesses to continue the responsibility  much good here in this committee we've got our own individual responsibilities and i'm i'm glad you take exceptions with some of senator schumer's comments i do too but what difference does it make he's one of the five hundred thirty five of us i take exception on occasion with your statements but i'm not going to play him back and then tell i don't agree with some of them and marjorie cohen wonderfully gifted lawyer  i'm sorry you thought that she was naive but here is what we're trying to do is what i think the focus of this very important committee in the judiciary is about what we're trying to determine how clear the legal advice intended for the central intelligence agency made its way to military interrogators at guantanamo bay yesterday and i don't have the voice over senator carl levin the chairman of the armed services committee but he reveal comments by a particular attorney cia attorney at guantanamo that according to the justice department whether something is torture is quote basically subject to perception unquote this lawyer also stated that quote if the detainee dies you're doing it wrong  quotation these comments i think demonstrate some of the flaws in some of the legal opinions in this area and i am hoping our witnesses reaction to these statements will help bring clarification know some of our research here has brought to my attention the central intelligence agency's network of secret reasons of their own is this use of beating in what is generally regarded as torture this was not the role of a civilian intelligence service in a democratic society but it seemed to  clearly what the white house wanted the cia to do and so i've been talking with our friend from california former legislator tom hayden who's raised important questions regarding the rendition of subjects to foreign governments and the use of torture and and and foreign detention facilities in afghanistan and in iraq and so  would welcome the views of the distinguished colonel may have on any of these matters now and in the future  some reports indicate that have come to my attention when questions were raised about the proper legal analysis of these interrogation methods those asking the questions were not always given a fair hearing or were even pushed out of the way and these matters brought to my attention raise grave concerns about the management of the department of justice and i which would allow us to know more in detail about these extreme interrogation techniques were destroyed and destroyed by the orders of a relatively small group within the cia as a chairman in ten two through committee or subcommittee hold hearings or pursue an investigation within our jurisdiction on that subject since to a certain extent we're arguing about whether or not you know torture when you see it we've been denied the ability to see it i'm interested in this case the destruction of material that would have been probative as to whether or not torture occurred is well within the jurisdiction of this committee it's no longer a secret when you know they destroyed it thank you thank you very much  think that's something that we should take under thank you mr chairman and thank you for the additional time  thank you i want to welcome our distinguished panel of witnesses today and i will introduce them daniel levin is a part of the firm white and case he serves at the national security council as the senior associate counsel to the president committee mr rivkin is a partner with the firm baker and hostetler in the administration of the first president bush he was associate executive director and counsel to the of the president's council on competitiveness at the white house while there he is responsible for the review and analysis of legal issues related to the regulatory review conducted by the council he also served as the assistant as a special assistant for domestic policy to then vice president dan quayle he holds a j d from columbia diversity school of law a b s f s and m a in soviet affairs from georgetown university colonel lawrence wilkerson is a visiting pamela c harriman professor of government public policy at the college of william and mary and professorial lecturer in the university and his program at george washington ninety seven we also expected to have with us today former undersecretary of defense douglas feith mystified as important information about the approval of harsh interrogation policies for the u s military military he reportedly along with defense department general counsel jim haynes recommended to secretary rumsfeld approved such techniques in november two thousand and two mr feith has never explained that decision and it is important to hear from him on this subject despite his prior commitment to testify this morning feith inform the committee to its counsel that he would not appear today because he is not willing to a here alongside one of our other witnesses the this is a is an extraordinary disappointment for this witness and not to come here and to go back on his  to the committee to appear today individuals often must appear before congressional committees longside witnesses that they disagree with such concerns are no reason to decline to appear when you've said you will we will we schedule a hearing in which you swear or affirm and the penalty of perjury that the testimony you are about to give is true and correct to the best of your knowledge information a belief thank you you may be seated let the record reflect that the witnesses answered in the affirmative without your written statements will be made part of the record in entirety you would ask each of you to summarize your testimony in five minutes to help you keep trying this a timing light at your table when one minute remains the light will switch from green to yellow if it's working properly and then to read when the five thank you for inviting me to testify today as you can tell since leaving government in two thousand and five i have avoided making any public statements on these matters and to be perfectly honest with you i'd rather we keep that record intact but i do believe that a public discussion and debate of the legal issues involved and the process by which legal opinions were issued relied upon is important and i will do my best to answer your questions within the limits of what the justice department has authorized me to talk about i will avoid any subject discussion in the opening remarks i would like to make briefly a couple of general points first in my view the legal issues we're going to discuss in addition to being very important are also extremely difficult issues involving core presidential powers and the interplay between the president and congress are among the most difficult i've ever tries to analyze and although there's been some significant decisions by the supreme court in recent years and indeed in recent days at the time many of these issues were being addressed following the events of nine eleven there was very little case law to guide the analysis arguments from the frame rs writings or historical practice are frequently murky at best the stakes are high you're often told that lives and perhaps many many lives are at stake and classification concerns often limit whom you can consult and i'll have a little more say about that in a minute short they're just plain hard questions and i think the debate would benefit frankly if people on both sides acknowledge that fact and also perhaps showed a little more humility in stating their opinions lawyers who say the answers to these questions are either obviously yes or clearly no are either a lot smarter than i am or oversimplifying things and i'll start that process i try my very best to answer these questions correctly but i'll be the first to say that i may have gotten it wrong and i'll have more to say about that consequences of that if i did make mistakes at the end second in discussing these legal issues we need to be very precise about what question is being asked to take an obvious example of the question is a certain technique torture you first need to define exactly what the technique is and  may get into this more but many words that are used to describe techniques do not have precise definitions and they mean that cover a wide range of conduct just a simple example sleep deprivation can obviously very significantly in duration it can also vary significantly in how you keep the person awake and those differences may very well affect the legal analysis and the same is true of waterboarding which is a term that is used to cover a very wide range of conduct that may have significant differences in legal analysis it's also important frankly to be precise about what you mean by torture there's a definition under u s law where congress has defined the term although using words that i believe are very hard to apply there's a different definition or more actually definitions under international law the convention against torture being perhaps the most prominent definition under u s law and under the convention different significant respects particular when it comes to the nonphysical forms of torture there's also the colloquial use of the term which i believe differs from all these definitions and let me apologize for any disruption my daughter causes she said but i wanted to bring her along and there are the geneva conventions which use different terms in addition to torture but would certainly prohibit torture and much more this emphasis on precision and the terms used in the questions asked may sound overly loyally and i suppose in some sense it is but we are talking here about legal questions that were being analyzed by lawyers getting legal advice and i think that raises one of the most important issues in this area i think it's critical to remember that the legal analysis should begin and not and the discussion of whether to do something if something is illegal then obviously it's not an option simply can't do it but if it's legal then it's only that an option and there should be a policy discussion about whether it's a good idea and philip zelikow gave an interesting talk about this and i agree with him that in this area in particular too often the legal analysis replaced the policy analysis and the question tended to become simply is it legal and if so will do it i think there may have been understandable in the immediate aftermath of nine eleven but as time went on it became increasingly clear that many of the steps we were taking even if legal had significant costs and costs which might well outweigh any benefits we were receiving and this is just my personal view but i think that we in the government we're sometimes too slow to recognize some of those costs and adjust our policies accordingly focusing on the legal analysis i think there's a valuable process lesson to be learned from our in this area the opinions i worked on benefited enormously from comments from other parts of the justice department in the government and in particular the opinion i wrote at the end of two thousand  benefited from detailed comments from lawyers at the state department the criminal division of justice although it certainly bears repeating to any mistakes in that opinion are entirely my responsibility there's an incredible wealth of legal talent around the government and i believe it is a huge mistake not to take advantage of it you won't always agree with what other lawyers have to say but you almost always benefit from hearing it i don't know why but my understanding is that some of the earlier opinions were very tightly held or not circulated for comments i don't think that was justified by any legitimate concerns about classification or leaks rather i think it was a mistake the opinions would have benefited from broader review and i think we've paid some price for that not having taken place like two final points first there's been reporting about certain steps i may have taken in working out opinions in this area and some people have said some very flattering things some have said some not so flattering things as well but i'm not authorized to scott that matter but i can say that while it's always nice to have nice things said about you they're completely under your and i don't say that out of any the simple fact is i did nothing that thousands and thousands of members of our military had not done during training i simply took the steps that i felt i needed to take in order to do the work i was privileged to be assigned and i deserve no particular credit for that i meant many people bot c and elsewhere in the government contributed to the opinions i wrote i will not name them because i don't want them dragged into the public discussion but they know who they are and i am eternally grateful to them anything useful in the opinions is almost certainly attributable to them that said i responsible for any errors in any opinions issued while i was in charge of i o c i did my best to answer the questions correctly and i hope i succeeded but to the extent there are errors in them i am the person and the only person who is responsible for that and in particular anyone in the government act on the basis of any legal advice i gave and that if by turns out to be mistaken i'm the one who should be held accountable not some a general officer or a soldier acting in good faith reliance on that advice when someone in the government does the right thing by see be punished if you by turns out to be mistaken it's an incredible privilege to be asked to work on these issues as a lawyer for the government we've been privileged to serve as government lawyers are responsible for the advice we give and i unconditionally and absolutely accept that  responsibility i'd be happy to try to answer any questions you have but if i could just have one point as a witness sitting here and hearing this i feel like i have some obligation to say something about this and i'm very limited i think and what i can say but at the subcommittee has been informed that there was a total of three minutes of waterboarding i would suggest the subcommittee should go back and get that clarify because that i don't believe is an accurate statement and i thank i thank you very much for your testimony i never recognize mr rifkin for five minutes  again a pleasure to continue the dialogue about this very important issues i realize of course ball from these hearings and never settings but a number of administrations legal positions as become public and known have drawn considerable criticism the questions and that's not surprising to state the obvious the questions that a missed ration lawyers have sought to address particularly issues dealing with procedures for interrogating captured enemy combatants on comfortable ones surely don't sit well with us most  people who have twenty first century sensibilities many legal conclusions have reached that the bin reach strike people many people as being excessively harsh i should point out of course that some of these conclusions have been what it down and as a result of internal debates and various pressures have been brought to bear upon the administration but the important thing i want to emphasize at least being for myself is but i would not defend each and every administration's post september eleventh more time policies and we're all doing guard and i agree entirely with my good friend and live in hollywood in general vigorously defend the overall exercise of asking difficult questions and trying to work for them and and i think would be regrettable with a very exerciser of asking these questions get stigmatized i'm not surprised by evidence of vigorous internal debates had a privilege of  working properly nine years in the government and dealt with issues frankly speaking they were a lot less contentious and less momentous than the one in a version since nine eleven and i can tell you in on these issues he always had vigorous debate i think that at least in my to me the fact that this debate was undertaken at all untested and was done in such a furrow fashion of lots of ebbs and flows over a period of years attests to the vigor and strength of our democracy and the wartime and i certainly strongly defend the overarching legal framework chosen by the administration of which the interrogation procedures about a subset in fact i believe but many criticisms that seem to dwell on the interrogation related issues are really obligation not only to defeat enemy forces it must anticipate and prevent deliberate attacks on its civilian populations which is ok to prefer a target and i think we all agree that obtaining intelligence is vital and difficult in this war i think despite some arguments to the contrary there's ample evidence that the conventional interrogation techniques have not produced desired result in part some of the reasons that ranking member franks deuced in part because of  shortcuts i think that the conventional interrogation techniques have not worked i know this isn't a matter has been contested so he was contesting the last hearing i tended as to whether or not the harsh techniques have a produce good answers but i think it's a copout because if we didn't there be really nothing nothing to debate oh let me stop here and say i look forward to your questions thank you i thank you chana recognizes colonel wilkerson for five minutes thank you chairman adler ranking member franks members of the  subcommittee thank you for the opportunity to be here to talk on these important matters today from the outset let me say i'm not a lawyer i'm a soldier and a citizen and an academic specializing in national security affairs and particularly in national security decision making sense harry truman saw fit to sign the one nine hundred forty seven national security act as i was also serving after my thirty one years in the military at the state department i was a sometime diplomat i guess although sometimes i think i actually did more diplomacy as a member of the department of defense than i did at the state department as i was serving in the latter capacity at the state department as chief of staff in april two thousand and four powell came through the door that adjoined our offices and i knew by the look on his face that he had a serious matter and i better just be quiet and listen to him and he indeed began to speak and he said something like this there's going to be a news story about prisoner abuse at a facility in iraq there will be very damaging photographs some of which will be published i put will task william h half the fourth himself a former deputy secretary of defense was as legal advisor i put will tap on the legal aspects of this and i want you to work the other aspects how we got to where we are who did what to whom a timeline if you will and any other relevant facts you that you come up with i want you to work very closely and quickly i want to work very closely with will and quickly from that moment to some time early in the early fall on labor day to put together a dossier really of classified sensitive and open source information that would help me and the secretary of state understand how abu ghraib happened let me tell you that this was a particularly important thing i think for both secretary powell and myself because as you know we both were our soldiers  both veterans of the conflict in vietnam were both students of military history we both know how soldiers go astray in the heat of battle with buddies falling all around them particularly in mortars and conflicts that seem to have no win no light at the into the tunnel for the soldier or the marine in vietnam as a first lieutenant and a captain of the infantry on several occasions i had to restrain my soldiers even one or two of my officers when higher authorities took such actions as declarer declaring free fire zones that's a zone in which you can engage in kill anything oftentimes it would be difficult to decide what to do for example if it if you encountered a twelve year old girl walking down a lane in the jungle as i did once you're going to break the rules you're not going to shoot or in all cases i always had to set the example i had to personally either break the rules as i just demonstrated in zone or more often follow the rules i had to follow the rules also that have been ingrained in me by my parents by my schools by my church and by the united states army and classes about the geneva convention and what we call the law of land warfare i've been taught and i firmly believed when i took the oath of an officer to support and defend the constitution that american soldiers were different and that much of their fighting strength and spirit came from that difference and that much of that difference was wrapped up in our humaneness and our respect for the rights of all so mr chairman i saw the first photographs from the prison to double the right i had to immediate reactions first i knew such things could happen second i knew such things were wrong and i knew that they represented a failure of leadership what i didn't know was at what level that leadership failed so i set out to find the answer and i think i did secretary powell and i also knew what extreme danger to america's real power in the world could be done by such a failure america as you well know is an idea as much as it is concrete buildings sweeping prairie's stock markets and land from one ocean to another in fact that idea corrode that idea tarnish that idea and you don't just diminish perceive power you diminish real power you in fact do the terrorists job for them so we knew that this was a serious issue perhaps one of the most serious issues our nation would face in the opening days of this new century we hope as secretary powell said over and over again as he went out to the c street entrance with foreign minister after foreign minister and the first questions asked him were not about the foreign ministers country but about torture and abuse we hoped that his secretary powell said we would air our dirty laundry so to speak the world would see a democracy work there would be accountability in my particular statement which you have and i ask that you make it a part of the record i've summarized what i found about that failure of leadership and other other items that might be of interest to you not be pleased to answer any questions provided the members present when his or her turn arrives members who are not present when the term begins will be recognized after the other members had the opportunity i say questions the chair is or is the right to accommodate a members unavoidably late or only able to be with us for a issuing the december two thousand and four memo you were working on another more specific interrogation memo imposing tighter controls on interrogation techniques the report states that you never finished this memo and instead were quote forced out of the justice department when  became attorney general close quote was your departure from a c voluntary i would have preferred to have stayed i guess that's the best way to answer ok and is it true that you did not finish the a follow up memorandum because of your removal of that point that is correct and is the a b c report accurate that you were moved because your follow up memo would impose limits on waterboarding or other interrogation techniques and so you do not know if your views on opposing tighter controls interrogations would relate to the decision to have you removed from that position i do not know sir ok now newsweek reported referring to you that quote battles with the white house took their toll on your political future is that statement accurate or is that speculative i don't know again i don't know the answer to that ok now john you has written that the december two thousand for replacement opinion you drafted was done appearance sake in quotes and that quote no policies or interrogation techniques changed as a result of the withdrawal of the torture memo close quote mr yoo is also said that quote the ofcs reversal was pure politics quote that you agree that nothing changed as a result of your two thousand and four memo do you agree that the two thousand and four memo you what it was pure politics i certainly don't agree was pure politics and i don't think it's accurate that nothing changed as a result of the chang what you think was a change of heart how would you characterize it changes well i unfortunately not authorized to discuss certain matters but i believe it is the case said there were certain changes and  practices as a result of a change in legal analysis so as a result of the change in your member you think there are changes in practices that means require changes in interrogation policies i believe that's the case for us now john you told the washington post that the interrogation memos he authored were commonplace and accepted there were there were statements in them and i do not think were commonplace or accepted and you believe that those memos represent responsible scholarship consistent with their traditions of the office of legal counsel well i i'm i'm reluctant  to criticize john i think that the there were aspects of those memos that i wouldn't i would not have written that way ok and finally in a debate in two thousand and five mr yo was asked if the president could torture a suspects child if he believed that was necessary in time of war this example i'm not going to go into the specific example it was rather gruesome what of what you might do to the suspects child mr you answered i think it depends on why the president thinks he needs to do that i'm quote do you agree with john yoo that the president as commander in chief that his power as commander in chief would allow him to order detainees child to be abused if he believed was necessary for the national defense i powell and i did further research and as my views grew firm and for my need frequently to read we that memo that is to say the memoranda february seventh two thousand and two i need to balance in my own mind the overwhelming evidence that my own government it's ancient abuse and torture which at its worst has led to the murder of twenty five detainees a total of at least one hundred detainees that we had murdered twenty five or more people in detention that was the clear low chairman i think the numbers are actually higher than that now the last time i checked it was about one hundred eight and the total number that were declared homicides by the military services or by the cia or others doing investigations the id and so forth was twenty five as i know several war and they have come to different different conclusions i as an experienced military officer one of the things that indicated to me early on as i examine the results of some of these courts martial was that the punishment being rendered to these people especially the lower ranking people didn't match the crime and quickly for a military officer i know how that works we have an extremely a fair system in the military the uniform code of military justice are going to be tried that much by the retried under it and i wouldn't civilian court so what was happening was a a jury of their peers if you will officers in ceo's an enlisted personnel knew that these people had performed under great tension and suppressed and stress and so it's my view that they were rendering verdict of reduced to private first class two months of pay article fifteen type punishment for example rather than the kind of punishment that would have matched the crime that was one of the insights our early gained into this as i looked at my army in particular taking this action and i said now why are these people not being given sentences appropriate to the crime or at least what appeared to be and you supposition is my supposition is the people on the jury of your peers in the colonels the n c s and so forth and the military judges  knew the background and my i'll get to you more in the second round of questioning but i have one question to follow up on this and that is your judgment as a military as a korean military officer is that these prosecutions were handled in a way that would lead you to suspect that the conduct that resulted in these homicides was tolerated or sanctioned from higher authority i think it was fairly common knowledge throughout the very small army that we have now that individuals and both the military police military intelligence interrogators and so forth were under enormous pressure to produce intelligence and they were also being given guidance that they could do things that weren't necessarily in consonance with the laws of lam warfare certainly not in consonance with common article article three of the geneva conventions or even the conventions them selves and so that  put themselves on the line for the cause of freedom i did want to ask you something it kind of struck me you cited as a comparative a circumstance where you were in a combat zone and you were in a free fire zone and that a twelve year old girl walked up the the road and that you broke the rules and chose not to to shoot her were you under rules that would require you to shoot a twelve year old girl or was it something that you were you know it would have been up to you but you would have required you to break the rules to keep from shooting a twelve year old girl i can't tell you how many radio conversations on fox mike that i had with but that's a yes or no that was never that maybe it was as that's a yes or no question were you breaking the rules by not shooting her may i answer the question here i had conversations with higher officers in vietnam who when anything was encountered in her free fire zone essentially said you're free to engage it and then it was up to my discretion as to whether i didn't or not and clearly as i indicated in this case i wouldn't now it's not even as black and white is that had she had an a k forty seven and been shooting back at me indeed i might have but it would have taken that kind of evidence for me going gauge well i understand what your testimony was that you chose to use that you broke the rules and chose not to shoot or that you would have been and i understand that you had the option but i don't think you were ramming if i just seems astonishing to me that you  call the basics soldier test what i mean by the this is for example if you tell a soldier under pressure to produce actionable intelligence that he can use a muzzle dog he will do it faithfully and when that doesn't work and it isn't likely to the soldier will remove the muzzle and then when that doesn't work he will let the dog take a bite can what do you make of that statement well thank you occurs when franks with all due humility since i'm like kind of all concerned i've never certain combat but i fancy myself a bit of a student of military history i would strongly disagree with this statement i would i would say that and well disciplined military particular american military is probably the best institution among any other set of public institutions that is capable of very nuanced behavior operating in very different environments with different rules of engagement for example you have military units knowing the difference between operating with live ammunition using non lethal munitions versus using you know lethal munitions the military is able to operate in different drills in all sorts of different environments now i understand the dilemma of having a big us orders but if you tell people that the dividing line is  as they want to use a muzzle dogs by golly you don't take off a muzzle if you do it's a serious failed leadership at that their officer corps level and if you tell them you can take the muzzle all but there should be no biting by golly there should be no biting i just i don't understand that but in many circumstances is absolutely critical to the survival of a particular unit or more battle mystery of kenya as you've reviewed the written testimony of some of the other witnesses here today i wanted to you know i've been asked many times witnesses tell us what should be the appropriate anti terrorism policy for interrogation did you and the materials here that you reviewed related to the other witnesses testimony here today helpful in determining the contours of an appropriate anti terrorism this would cause by guards overstepping the authority or some other reasons that would not necessarily be terribly relevant to the question of interrogation routines and i think i would say and i'll draw my own experience back in my department of justice days i in prison system civilian and military federal and state you always have to ask yourself a question as a citizen as a lawyer what is your current baseline i mean that's true if you know investigating corporation for abuses worker safety or something else is is the current behavior dramatically divergent from the past historical baseline advances no doesn't mean you're resting your laurels you try to drive misconduct down to zero but you certainly don't you know stagger ballot in dramatic indignation you have believe that the president personally approved the use of these tactics by the military mr conyers when i read the president's gauri memo i saw it both as an academic and a person looking at it from the charge the secretary had rendered me as an academic i saw it as a traditional presidential decision in the post nine hundred forty five country we live in that is to say he tried to reconcile our liberties with our security that memo to me does not constitute the kind of order that others have interpreted it to constitute it constitutes a compromise  the one thing that critics of my view have said is that it gives an escape clause the escape clause is consistent with military necessity and i point out to them that presidents in the past when they wanted to scape clauses said things like consistent with national security or consistent with the dictates of the global war on terror something far more sweeping military does necessity to me as a military man means that if i have to but stroke someone in order to save a life i can do it it doesn't mean that i can hiring someone from metal screens at bog room in afghanistan and then beat him until he dies as they did to do a war on ten december two thousand and two so there's a real distinction i think between what the president authorized in that compromise and what actually happened as it got interpreted through the d o d principally and the vice president's office and went down to the field when you had discussions with secretary colin powell about whether he believed that the president personally approved aggressive techniques  what opinion did you form from those discussions those were torture if discussions if you'll pardon the play the secretary was of a mind that the president was fully complicit in everything that happened but i must add that at that time neither of us was really confident that we knew exactly what had happened so i qualify it with that and secretary powell didn't one point he suggested that he believed that vice president i don't know if he knew the full story at that time i'm quite sure that i didn't and the remarks that he made were offhand and they were something more general in that they were like you can bet that if if cheney did it he walked in the oval office and got the last bite at the apple before he did it did you conclude that anyone in the office of the vice president played a significant role in the development of administration interrogation policy it's my strong view that mr addington had a very significant role in it and was he part of what sometimes was termed an unholy alliance of the office of the vice president the secretary or rumsfeld and the office of legal counsel bringing pressure to bear on the military to use aggressive interrogation techniques i think you actually had a collusion of six people you had john you in jail bobby l l c you had jim haynes and fight at the defense department and you had addington in the vice president's office and gonzales is then counselor to the president i think they all participated initially in developing this legal opinion for a finding the president had probably signed with regard to the cia and it gravitated over migrated over if you will to the defense department then it would be fair to say that these tactics were essentially pushed from the top down that's my view and that leaves us in a difficult we're just trying to flesh this out and everyone brings their opinion but i think i think we have to as an investigating committee have to bring this to even finer detail we may have to invite some of these persons in as a matter of fact some have already been invited in and to my pleasant surprise some have agreed to come in and so i thank you for your testimony i thank you the gentleman from california is now recognized in five minutes the question the witnesses thank mr chairman mr ripken the question of whether something is torture does it hinge on whether it's effective my do not think so i think it's a very unfortunate observation as has been read about effectiveness so just to set the record straight whether or not torture yields vital important information should have no bearing on whether it's torture even if tortures effective it's wrong is that right that is true of torture i would say congressman you say in the case of lesser levels of courage as i still prescribe cruel inhuman prohibition well and i served in the army if if i knew there was an ambush a quarter of a mile ahead and i had a prisoner and i had to decide whether my unit got ambushed or whether we got out alive and the only way to get out was straight ahead i might ask later for forgiveness or a minimum punishment for what i would do in order to to get that information a timely fashion but that's sort of that's sort of what we try to protect ourselves against is the actions of individuals when they have complete control over somebody isn't that true it is true and you going to have circumstances that you know they bring out the these types of reactions i certainly would not about you know let them take to take my word for it waterboarding is either drowning the person or making him think he's going to be drowned and you said you said you don't think that's torture no on a contrary i said in my view in almost all conceivable circumstances would have boarding would be torture ok so this is ministration recognising that it had a multitude of tools including sleep deprivation and so on that he that had a lot of history chose to condone on three occasions the use of this near drowning technique called waterboarding right appears to be the case based on ok i've seen mr wilkinson you and i both went through some of the same training you went through more of it and thank you for your service we were told about the other side torturing us and things like waterboarding were part of the training that we expected we would be tortured by the enemy right right ok and when you and i went through and were commission as army officers we were told we don't do that right right and the u s army manual says we don't do that if i watch mash the cia guys would go in and out and we would assume that they would have different standards right probably knowing the cia's history and those standards would be in fact secrets right yes and usually very highly classified and so the use of  waterboarding and if you will the whole handling of how we dealt with a number of incidents has created a situation in which the cia's techniques or at least for now public right at least to that extent waterboarding and i don't condone torture when i was on the intelligence committee and was told of what waterboarding was before it became quote on classified i thought it was wrong just as senator mccain thought and i will tell you today i still think it's wrong and i think that in fact this hearing is for is valuable because in fact it has it causes us to reflect on whether or not going too far creates a situation in which the legitimate effectiveness of our secret service is compromised i want to just follow up with one question though because i do have to hold you to a high standard to you use the term article fifteen when you were talking about punishment i think you said article fifteen like punishment you're not implying that anyone who gets non judicial punishment for knowing somebody and just for the record the commanding general who was in charge of abu ghraib where is she today i don't know wasn't she court  pronounce it correctly did one dilawar deal on what was a punishment that was issued there in the case of that murder i'd actually have to have to go back and look but i don't recall it being the kind of thing you would say just as a  citizen or a soldier that it was commensurate with what happened ok mr chairman i would ask those records something could be made available to this committee could be s i would appreciate if you could follow up for the house on that and thank you and you context i want to pull out two particular events first one is the circumstances of your not being at the department i know that you were very careful in your answers to chairman adler earlier but make sure i understand you you didn't voluntarily leave the department is that correct i would have preferred to have stayed i mean when i was told i was going to say i voluntarily left that tends to be what happens when people who are over you tell you to you go that's what in the real world it's called being fired and as to the reasons i think chairman adler ask you if the reason had something to do with the opinions that you task of assembling scholarly reason the pinions for the department of justice did you fail in any way that you knew and preparing scholarly razan opinions of the department of justice i hope i did not fail i don't believe i did had you received any mark in your files or any negative evaluation regarding the competence of your performance did anyone give you any reason for your terminations no mr eleven a lot of us listening to that would reasonably conclude using our common sense that you were asked to go because you were at odds with the administration's policies which would put you in the same category with general who was the first person to correctly tell the united states congress that the war in iraq would not be a lemon it term adventure both require a significant commitment of forces he was candid in telling the congress that before the war he was asked to go on mr wilkerson you recall that your former boss general powell frankly and they catered his willingness to the bush administration to remain for a second term he was not given a chance to ring up if you will and i think there's a pattern here jim and a lot of the people who got it right have been asked to leave by this administration or as a lot of the people who got it wrong have never been asked to leave and a formulated policy is they've taken us to places we don't want to go second context mr levin is this when i'm trying to look at this administration's capacity for legal analysis i'm trying to put this in some perspective let's go through it for a moment this is ministration initially believed that there was an extra constitutional authority for the president to supersede facts while no court has ever squarely addressed that issue and even though the senior republican in congress who hold that opinion today supreme court the administration believed that hey b s corpus wasn't applicable to detainees the supreme court rejected that position last week mr levin mr wilkerson to either of you know of any administration that is so consistently found itself at odds with courts and mainstream opinion regarding the scope of its power disagree with you i think history is and i was part of this administration for four years i think history is probably going to judge this one of the most inept administrations in american history mr levin would you speak to that you are  constitutional scholar to you know of any administration that is so consistently advanced positions that are at odds with mainstream legal and judicial opinions regarding was gulp of its power i don't i mean i can't claim to have exhaustively studied the issue but  on these bad guys around the world well you missed eleven conclusively disabuse us of the that if you opposed torture you're sympathetic to al qaida torture is obviously important and against everything this country stands for and i don't know anybody who who supports torture or in the government whose work is somewhat use my time runs out just speak to that idea and disabuses once and for all of the that if you somehow opposed torture that you're sympathetic to al qaida i think it's nonsense i think it's right there with dissent is some way cowardly or something i think dissent is the highest form of patrick i do appreciate the accuracy of your original statement i couldn't resist commenting regardless i'd like to turn first to mr lemon and the discussion that was brought up by mr davis of alabama with regard to the hay vs case that we heard the decision on last week i called to get more case and i'd ask you as a constitutional scholar if you could advise this constitution subcommittee how congress might enforce article three section two whenever we might decide to pass that legislation which in those cases the cases are legion how do we enforce that when the court defies the directive of congress i would have to study that a lot more closely so i'm sorry it's just not something i'm prepared to address now i understand with the gentleman  particular cases under under such conditions as the congress shall set and we have done so and then in a series of cases that have to do with the detainee treatment act and the hamdan decision this a couple of these cases may be more of them the congress is here now having danced at the end of the supreme court string we tried to accommodate them we passed legislation on two occasions to do that and now they have moved the ball so to speak  ball the football away from the charlie brown congress now that i've expressed myself on that would you care to comment mr levin again i'd have to study more cause i do understand that the in general the court has taken a very restrictive approach towards legislation that attempts to limit your stiction in this particular case i actually thought that they concluded that congress had strict statutory jurisdiction but that there was still a might be about how congress can restrain an oligarchy gl court that seems to have been moving changing the moving the ball on a so to speak and how do we enforce that an what is the what is the bottom line on this if we keep trying to chap with the supreme court they will become the people that run this country rather than the people there is tremendous uncertainty and i cannot say enough critical things about this opinion i think is one of the two a free wors versus sincere deals of so called adequate substitute and the majority opinion written by justice kennedy just blew right past those cases very cursory manners this is not adequate my my honest opinion is there's absolute would submit that there is precedent for congress abolishing judicial abolishing to judicial districts and whatever the congress gives it we can take away at least constitutionally and all of the federal courts with the exception the supreme court of the creation of congress under the logic of justice kennedy's opinion you can do that because impermissibly billeted detainees during the navy's petition so maybe you cannot do that either anymore so perhaps we could reduce the supreme court down to chief justice roberts with his mr king that of the five justices in the majority on last week's opinion three of them were appointed by republican presidents mr wilkerson i would like to ask you a couple of questions just about so and if you can comment on some things that you have said  for for clarification recently you were quoted as day stating haynes feis you by beacons alice and at the apex addington should never travel outside the u s you continued they broke the law they violated their professional ethics code in future some government may build the case necessary to prosecute them in a foreign court or in an international court why do you have to why do you describe mr addington as at the apex of this group and what prompted you to make that statement because it's my view that mr very astute brain was integral to the development of not just the legal position to back the cia's findings program but also to back alternately the program and what was your reaction i saw some of the mud and see all of them in fact as i listened to senator levin yesterday i was stunned i knew senator levin was sitting on a lot of material that i had not seen but that i'd heard of but i had no idea he'd gotten almost all of it apparently with a few exceptions the memos that i saw all gave me the impression that lawyers were sitting in a room you will pardon my soldier's view of this trying to count how many angels could sit on the head of a pin with regard to something that was to me as a soldier quite serious torture abuse and so forth that leads me to ask you about the legal guidance that the cia had received from the department of justice mr fragments said that according to the justice department whether something is torture is basically subject to perception and he also wrote if the detainees dies then you're doing it wrong  in terms of demonstrating demonstrating that rules for covert operations eventually spilled over into standard military procedures can you can you describe your  discomfort i guess is probably an understatement between the significant difference between army field manual field manual procedures and cia intelligence gathering techniques and and where your discomfort lines right  i have some familiarity with what some of those cia teams did in vietnam for example that the military took at least the military i was a part of took some great umbrage at so i do have some historical familiarity with what the cia can do in the field has done in the feel as opposed to what the military can do in the field in this case i think there was this double effort the cia would do a highly highly classified compartment program that would is was pointed out earlier only affect high value targets they could do certain things against those high value targets i think what happened on the other side of the river so to speak was that the pentagon wanted to wage this conflict on a very wide scale basis they wanted to go after everyone from model sayyaf in the philippines to jemaah islamiah to al qaida that every terrorist that could possibly come against us mr feith writes about this quite extensively in his book war and decision and as a consequence they needed actionable intelligence to they immediately put the special operations command into the into the mix here so much so that we actually had embassadors calling in from the field at the state department and saying to the secretary who are these six foot four nineteen inch bicep male caucasians walking around in our capital known to every one course the master knew exactly who they were and we had to ask mr rumsfeld what's going on and he had to eventually fess up that he was putting these people in capital cities around the world in other places so they needed actionable intelligence for these people to take direct action or to capture terrorist in their areas and that's what cause i think the gravitation over to the d o d of the legal philosophy that backed the cia program and some of the same techniques that secretary rumsfeld admittedly so very painstakingly went through and tried to identify those that would not constitute torture but would bring results and that as the night of time expires i so basically is it your opinion that the o j crafted legal advice really intended for the c so that the it would be a political and utilized by the military and intelligence and interrogation gathering technique i don't know if that was justice is intent but i know that's what i'm ninety nine percent sure that's what happened and whether it was intentional or not it's still not just illegal conversation about the so called torture memo not the one that was revised but the one that was the one that you i think revised that that one i think it is fair to say that the people who participated in drafting that memo led by david addington and there were several others that i've mentioned been mentioned what i'd like to focus your attention on is what were the what dialogue are you aware of that may have occurred before the drafting of the memo what and who participated for example was vice president cheney involved in any in any preliminary discussions before the torture memo was actually written if you're asking about the august two thousand and two men so i just don't know sir i'm sorry i was actually chief of staff at the f b i at the time that was written and had i just had no involvement in these issues so i don't know yeah but i mean i'm just assuming that given that you did come into the role that you did you must have you walk those halls every day use you you set down people you you discuss things i mean do you know if the vice president was personally involved in any preliminary discussions to the drafting of that memo i don't know sir i'm sorry the for the record you know the president was involved in the  now when you drafted your memo why it may seem simple question but what made you revise what made you drive draft redrafted memo when i arrived that i will see that process is really sort of already underway questions had been raised about the previous memo frankly i think both internally and externally and i think the assessment jack goldsmith and who's the head of all c and new memorandum and that's that's what i worked on when i got there jacket or even weeks that kind of started that process did you talk to who did you talk to and reform in the redrafting well i've talked to a lot of people as i mentioned in my opening remarks i think one of the problems on the earlier memo was it was not the subject of sufficiently broad collaboration and discussion i talked in addition to everybody and the office of legal counsel virtually the people at the criminal division and various other people in the department people at the state department did you talk to anybody in the vice president's office i don't believe i did talk to him in the vice president's office i did submit drafts to the white house counsel's office and who they circulated to in the white house i don't know do you know did mr addington have any input into your redress not directly to me whether he did so indirectly i'm not sure it whether he may have provided comment to white house counsel or when it communicated to me as their count comments i was not ever told anything were his comments and he never spoke to me about it directly could you put your finger on exactly what the parts of the memo were that needed changing i can't there were there really were two parts of it and from the big picture i there were aspects of the actual analysis of the torture statute that i concluded were were incorrect i disagreed with and you know maybe i was i'm wrong and they're right but i disagree with some of the actual that the statute there was in a very large part of the opinion that went beyond the statute to a variety of other analysis of the president's ability to override the statute self defense mississippi defenses to the statu and my view and i think the view of others was it was simply inappropriate to even include in the memo the president's clear direction was we are not going to engage in torture so there was no reason to look for ways that you might be able to get around the statue or viol well if it is it included that definition of torture that that i frankly disagreed with and which which would have i think allowed techniques that i would have concluded violated the statute and it included this discussion of ways that you could overcome the statute even if it applied and otherwise would have been violated so if somebody were to rely on that memo the earlier memo they they would have been violating the law potentially if somebody would have relied on the first part of that memo and went up to the limits of what is allowed in my view they would be violating the law and i would get maybe i'm wrong and the earlier memo is correct if somebody relied on the other cost to tional overrides of those defenses in my view they might well have been violating the law what is obviously depend on circumstances did that ever happen i i don't i don't know i don't know i know there's been lots of investigations into sort of how things ended up happening and who was relying on what my understanding was that that memo was was house floor there are twelve minutes left to vote we have two people left as questions are going to try to finish it because otherwise about this the witnesses stay an hour or so so i'm going to have to be strict now with the with the timing the gentleman from virginia is recognized torture is the it's probably the internationally accepted definition applying it in particular circumstances may be difficult but the actual definition i think is most people would accept that it's a definition well i mean does it become ok if you instead of calling it torture call it aggressive in interrogation techniques does that make it ok no if it violated it is a convention of the statute it doesn't matter what you call it a matter and the rules do they apply you're under united states control but not technically on united states jurisdiction the statute actually a federal statute only applies if you're outside of the united states and so it would only apply in the situation where you are outside the united states if you're inside united states various other statute torture if the normal interrogation techniques do not work does that justify torture under the under the statute nothing justifies torture if it's if it's torture it's not allowed regardless of the reason if  there's it justify the torture no under the statute it doesn't there's no you know there's nothing that says you can do it if it's successful it doesn't matter whether it's successful has it become ok if the administration says it's ok complying with or not violating and this thing called rendition those that if you hand somebody over to someone who is not restrained and knowing or at least suspecting they're going to torture somebody doesn't make you complicit well it would violate the convention against torture which has a prohibition against just that whether it would constitute conspiracy to violate the u s statute i think it's not something i've ever analyzed so i don't know but i would  violate the convention against torture following up one of the questions that gentleman from minnesota asked in your two thousand and four memo you had a footnote in there that says we have reviewed this office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusion would be different under the standards set forth in this memorandum  c news reported that the white house insisted that footnote be included is not true i don't i'm not allowed to discuss that i'm sorry sir do you deny the a b c report i think i think if i answer that question i would be giving it sort of the question i'm not allowed to answer so i'm sorry i'm simply not authorized to discuss what is the meaning of that footnote i can tell you what it meant to say and to the extent it people have interpreted it differently it's it's my fault for not being clearer on it but what it what i meant was if you took the other opinions the office had written analyzing particular techniques and you took out the statutory analysis there and put in the new statutory analysis in my view the people writing those opinions would not have come to a different solution because for instance they never said this pain is really really extreme and it's just up to the line of body fat organ failure it's not quite that they never those opinions never thought they were close to the line it didn't i mean as some have interpreted and again this is my fault no doubt in drafting that we had concluded that we would have reached the same conclusions as those earlier opinions did we were in fact analyzing that at the time and we never completed that analysis just to be clear on the white house asking you to do this without revealing the contents of the discussion did you discuss the footnote with the white house yes your back fail i believe it failed at the highest levels of the pentagon in the vice president's office and perhaps even in the oval office i'm going to set aside the oval office be what was it that led you to believe that leadership failed at the vice presidential level well reasonable people can argue and how argued and probably will forever as long as the c exists about the cia doing what was essentially attempted to be verified legally my problem is with the military and that's what i'm talking about with regard to failed leadership but i actually think that in addition to jim haynes and douglas feith at the defense department and ultimately the blame goes to the sector defense donald rumsfeld there was a sharing of information from the vice president's office through david addington john  and others that allowed the defense department to rapidly build a legal argument with regard to what it was going to do with the military forces and that that legal argument ultimately wound up in my view  causing some of the problems that we saw for example most dramatically with abu ghraib show us when you were referring a failure of leadership referring to a failure of leadership in the vice president's office you're he was counselor to the vice president and able to determine whether he was acting with the authority of the vice president or without the authority i have no idea david has been with mr cheney for a long time he was in the pentagon when i was working for chairman powell when general powell was chairman of the joint chiefs of staff and when the military had some strange terms to refer to david i don't believe that david would do anything that the vice president was not aware of mr chairman i have more time but we have one more person here and it would deprive her of the opportunity if you want to texas who's a member the committee not the subcommittee i let me thank my good friend from north carolina chairman and of course the ranking member let me quickly to fast in light of the supreme court decision to the gentleman there let me thank you for your service  office by the then attorney general to the hospital bed had to do with torture and signing off on the fact that torture could be utilized that that was that ever gleaned as fact my understanding  occurred with respect to the writing of the mit and the memo the issues that were not presented to congress would you consider any of those patent violation of constitutional law as relates to how the torture memo was written or how it was ultimately utilized eleven if i could get all three of you to answer i guess i concluded that the statutory analysis in the charts original memo was incorrect in some respects again they may be right and i may be wrong but i conclude it was incorrect as a matter of stature in alice's there was a lot of constitutional now sis in there that we conclude was completely unnecessary and so i never i'm not really going through kind of line by line there are parts i don't agree with but i  i'm not a lawyer so i don't feel competent to comment on that but i will tell you that the secretary and i had all sector pal and i had an opportunity to share our views once or twice on what the things that were happening in the world particularly guantanamo abu ghraib and other revelations that were coming out we're doing a remarkable job of diminishing our influence in the world and our real power in the world i thank the gentleman that's a good way to