one two one two one two one two one two one two one t one two one t good morning the subcommittee will come to order this is the constitution civil rights and civil liberties committee chaired by jerry nadler and the ranking members  and i began by welcoming this distinguished list of witnesses former associate deputy attorney general bruce fein is with us this morning miss mary ellen o'connell from the university of notre dame law school is on a plane as delayed and she will be here shortly mr jeremy scahill investigative report of kellogg huber hanson law firm the director director of the american civil liberties union washington office laura murphy sensenbrenner wanted to make a couple comments with reference to the issue that brings us here today the subject a hearing on national security and civil liberties obviously the the first question is is there a tension between the two are are there areas of compatibility the power of what has begun to be termed the imperial presidency grows and the ability of our democratic institutions especially the federal lead just lay to branch to constrain it seems more uncertain and so to begin with there seems to be an agreement that in the forty third president there was left behind in a grossly expanded national security state and they charge a legacy of civil rights abuses to it the creation of off the books black sites the use of waterboarding and other tortures in apparent violation of united states and international law the coverup of these crimes by the admitted destruction the videotapes of some of  these brutal interrogations the destruction that appears to have been not only intention intentional but in violation of court orders the construction of a vast domestic governments for abusive and tara creation the guantanamo situation is further complicated by the fact that last night  in found out in the continuing resolution that there was a provision inserted by still no one knows who that allow that prevented anyone on guantanamo the prosecutors would no longer determine whether they would prosecute under title three federal court or whether there would be a military commission and there was language in there that said that would be only military commissions that never went to the judiciary committee and it nearly resulted in the whole bill collapsing because myself and at least three or four other members were prepared to vote against the whole resolution and we did not and the bill barely passed extraordinary rendition of suspects to foreign governments for what is more likely to be expected abusive interrogation the ignoring of congressional enactment such as the mccain amendment preventing abuse of detainees through illegitimate signing statements  the repeated invocation of the state secrets privilege which has gone on in recent years including this administration to  incredible new height to shut down complaints investigations and lawsuits challenging executive branch action such as illegal domestics surveillance torture and  n the making of members of numerous unsubstantiated claims of executive privilege to create legal immunity from congressional committee prevail and then on top of all these so that the united usa patriot act passed by a compliant overreactive congress in the weeks following nine eleven multiple department of justice reviews have found abuse of the patriot act provisions on national security letters which allows records to be seized on the thinnest legal showing a mayor elegance and require abusive gag orders other provisions of the patriot act such as the so called library provision in the sneak and peek searches equally threaten and my view our liberty another forty forty fourth president started his term on a positive note when he said he flawed office of legal counsel memos on torture and other related subjects but the administration has failed to adequately investigate much less prosecute their national security crimes including torture and waterboarding and does not appear to have even investigated it who approved or ordered these activities in the first place this would include investigation of the forty third president who has written a book personally and meddling and giving details of of how and why he did what he did the present administration has refused to prosecute the intentional destruction of the evidence of the crimes of what he did that's known for anybody  incidents the formal a secret state department cables recently released show that in addition to refusing to carry out its own investigation of torture the administration this administration worked to squelch other countries investigating the same subject matter and i have citations that will be brought in all of this the administration continues to rely on clearly over broad interpretations of the state secrets privilege to shut down lawsuits challenging executive branch activity that can be termed as misconduct inappropriate or illegal public reports describe the extensive use of drones not only in the battlefield where villages and extension of war in a new sense unlike any that we've experienced before and there may not i know everyone to read about the claim that this administration and previous ones have claimed the power to target and assassinate anyone determined to be an enemy including americans as the president has implied that the that this president has about it but to me and to other members on this committee it's fundamentally at odds with the constitution and the traditions of freedom and due process of law and despite the efforts of the president's task force one time a baby detention camp remains open with one hundred and seventy people still in limbo detainees or prisoners still in  and while we in the congress and i'm not trying to exclude us from receiving some of the criticism that i'm directing to the other branch of government it's an  important and critical subject matter that bring us here today i am very proud of the fact that the former chairman of the judiciary committee jim sensenbrenner is with us is the ranking member and i  supposed to bring about the hope and change and you know we're still waiting for what i can say is that this committee approved a reauthorization of the patriot act without any change that's patriot act that i wro by senator leahy and representative kasten meyer now you know just yesterday and the continuing resolution which my good friend mr conyers and our subcommittee chair mr  nine of the administration the executive order the president signed early in his tenure in office so i don't see why we need to have this hearing today because it's talking about things in the past under new management we will be much more productive much more relevant and we won't be looking at the calendar of last year two years ago well i thank you for coming to past i've never heard of a hearing around here i have heard of hearings things that are going to happen in the future but more than normal normally in the  past ambassador thomas pickering is chairman of hills and company and international consulting firm and serves as a member of the constitution project liberty and security committee had a distinguished career spanning over five decades as a united states diplomat serving as undersecretary of state for political affairs coming before us and working in government in your own way we thank you in the you being here and invite you to make your statement at this  to congratulate you and i hope that you continue to speak and read and write on the subject of your experience for a long time to come and i thank you very much  my great grandfather created the afro american newspaper where they were they called the afro american newspaper and they were nationwide they were in five cities richmond philadelphia  brother is a distinguished civil rights lawyer now in new york she has thirty years of policy making and political expertise at both national state and cabinet for the mayor of the district of columbia and accounting for public affairs organization and a legislative assistant for two members of the house of representatives  she she represents the washington branch of an organization that is very distinguished and is well known to preparation but this was not the case in your case i want to commend you for the thorough review of the subject matter before us and the important subject there is no question that the nine eleven attacks were a serious blow to our nation and the risk of significant future attacks is a frightening prospect and something our government must work to prevent but we must work executive branch of the u s government regardless regardless of the party in power always opportunities to expand its power and the american people need congress to serve as a healthy check on that tendency we need to make sure that the steps we take to protect ourselves are smart and we need to keep faith with our nation's highest ideals as outlined in the bill of rights which are the source of the real strength of our nation in recent years in the wake of nine eleven unfortunately we have not done the examples are many and as you say my staff has prepared excellent testimony illustrating many of these examples illegal warrantless wiretapping the targeted killings of americans without trial far from any battlefield and justifiably intrusive airline security measures military commissions indefinite detention out of control watchlist the patriot act never before has the executive branch had such powers this is a radical departure for our country despite this summer clamoring to give even more broad powers to the executive branch let me briefly mention th e congress is likely to confront authorization for the use of military force one absolutely crucial issue is indefinite detention and the authorization for use of military force twice introduced by the incoming full committee chairman lamar smith and senator lindsey graham their legislation would declare that the u s is in a world wide war without end it's just two simple sentences in their proposal but it would drastically expand the power of even further and for ever alter the course of u s history we wonder how many members of congress realize the monumental that the proposed new declaration of war would have it has no time limit or geographic boundaries it authorizes indefinite imprisonment without charge or trial including against americans in america is the heritage our generation wants to pass along to future require all online services even those which operate by putting individuals in direct contact with each other using encryption to restructure the way their services were in order to make it easier for the government to drop upon demand third upcoming issue i wanted to mention which will be before this committee very shortly is the reauthorization of the patriot act there are a couple of sections up for reauthorization before february twenty eighth including section two fifteen the so called library provision which gives the government sweeping new powers records or goods from anyone even people who aren't suspected of doing anything wrong who are somehow relevant to an investigation is a combination of the first two approaches for the federal court or try the military commission there's a fundamental problem with this approach the first i would note that under the law these individuals attain to guantanamo bay have no constitutional rights except  supreme court has given them and those cause whose rights are fairly limited they're limited to a review in federal court of their status and the combat these are folks captured on the battlefield captured abroad and held brought in cuba now they have no right to trial in federal court they have no other rights that come with the right to a trial in federal court right to a jury the right to rule and other similar rights the cruel justice system that we have in this country is designed to exonerate the innocent and convict the guilty and in doing so we build in a strong presumption in favor of innocence in essence we stack the decks against conviction and this makes a lot of sense this is as it should be in the c context based on our view long held in this country that is better of many of the guilty get off in order say one is for being convicted but we confront then a fundamental policy question not a legal question but a policy question whether this typical analysis is just released but in an era when we're engaged in a global war on terrorism and we have recently learned that the individuals released from gitmo the ones who've been cleared for release and have been sent abroad returned to fight at a rate of twenty five percent one must wonder whether it makes a lot of sense take the remaining hundred seventy try the federal court and then run the risk that will be presented with the hobson's choice of releasing them because they haven't been convicted or contain a detail them about if it's about showing justice being done and just being done the american way how can we possibly justify continuing to detain these folks after they have been really found not guilty by federal jury and yet we can't help but do that these are the highest value detainees this administration has gone through a review process running the hundred seventy other than the ones who've been scheduled so they can be released because of the challenges in the country would release them to  our our sports a serious problem now in addition to these issues with respect the release of individuals who aren't convicted it's simply simply the case that many of the evidence or rules in the federal courts don't make a lot of sense when the evidence and the witness come from abroad and on the battlefield were over there are security issues for the people who live near the courthouse think new york city the judges the court staff and the civilian jurors who will be sitting in on these trials moreover there is a classified information and having worked with the taliban prosecutors in the department of justice says nashiri division i can tell you that while the classified information procedures act is extremely helpful it is certainly not a panacea i like to close briefly by returning to the basic options available to the government moving forward again we try to try these detainees the federal courts we try the military commissions we create a new national security court with different rules and different approaches and perhaps then have justice seem to be done discussed with a number of difficulties the military commissions while better also face significant public perception issues because of the nature of the middle military justice system and the fact of having the very individual after these  national court staff by sitting federal judges nominated by the president and prosecutions brought by the talented outstanding prosecutors in the department of justice and rules that michael lewis welcome an associate professor of law at ohio northern university before that he was a naval aviator in the united states committee but we do we have your statement and we'd like to hear from you at this time chairman and also thank you to ranking member sensenbrenner for inviting me to testify or today in reading the other submissions i noted that there was also an extensive discussion of the scope of the laws of armed conflict in the boundaries the battlefield and i actually filed a supplemental submission that was on that issue that i would like to read we will be happy to take it into the record as my written testimony focuses on the choice between article three courts and military commissions for trying  of terrorists around and whose proper place is before military commissions rather than article three courts and that that would be the group of defendants who are apprehended overseas by members of the united states military and the reason for are trained in the preservation and collection of evidence in the chain of custody in mirandizing defendants and interrogating them appropriately under miranda in drafting very detailed police reports that will stand up to cross examination by skilled defense counsel and perhaps most importantly to be available weeks months or even years after the event to return to testify about the specifics of the arrest again subject to cross examination these assumptions underlie the federal rules of evidence and none of these assumptions are valid for that subset of defendants who are apprehended overseas by members of the us military because the members of the u military combat troops are not trained nor should they be trained in the collection and preservation of evidence or in the mirandizing of defendants or in the writing of police reports and they are very likely to not be available weeks months or years later to come back and testify about specifics of the arrest which is a great deal of hearsay problems to any evidence that was collected at the time and as a result of this i think there are two major concerns that i know i have the first is obviously there is a great deal of evidence that is likely to be excluded from any trial because of the fact that these people are not trained in the preservation of such evidence and we saw some of that in the golani trial and that was even where you had law enforcement agents that had gone over to kenya and tanzania to do much of the investigation but the other problem this is one that is less discussed and i think equally important is that if you decide to tell the military that all al qaeda members all terrorists will be tried before article three courts you're going to make the military become better police officers and that's not something we want to do  in my submissions if you look at page four five and six there are a couple of different forms that i have copied for the committee to look at on page four you have a standard what's called capture tag that was used in  afghanistan and that is a very short piece of information that's required by the geneva conventions anytime you capture someone it can be filled out in a minute and a half by anyone whether they understand the federals of evidence or not pages five and six contain a form that has been used by the coalition for in iraq and looks far more like a traditional police report it requires a great deal of detailed information be secured by the combat forces that are doing every engine and it also requires some understanding of chain of custody evidence collection etc and the reason why this is a problem is because our combat soldiers only have a limited amount of time to maintain their skills and as someone who at least for a brief period of time myself achieved a high degree of combat proficiency i can tell you that that combat proficiency is very perishable and to the extent you take away training time from combat proficiency in order to learn how to properly withstand cross examination spell out police reports and keep evidence you are likely to degrade the combat effectiveness of the troops that are being asked to do that and so i would ask that we do not make that requirement of our men and women overseas that are in combat thank you very much professor lewis we turn now to a pumpkin foundation writing fellow at the nation institute a nonprofit media morning your statement will be included in the record welcome thank you very much mr chairman i'm the national security correspondent for the nation magazine and proud of our editor katrina vanden heuvel i'd like to thank the chairman this committee i wish that ranking member sensenbrenner was here i'm from his state of wisconsin i would like to engage with him on some of these issues as we sit here today in washington the world united states is engaged in multiple wars some like those in afghanistan and iraq are well known but there's another war a covert shadow war being waged in darkness by u s special operations forces and the cia across the globe this war is largely void of any effective or meaningful congressional oversight and takes place in countries like yemen somalia and pakistan nations with which the us is not officially at war the actions and consequences of this shadow war are seldom discussed in public or investigated by the congress and yet they have a direct impact on the debates and legislation on national security and civil liberties here at home far from discussing the distant past as mr sensenbrenner indicated i intend to talk about current u s policy and how the obama administration has continued some of the most outrageous policies and dangerous policies of the bush administration the current u s strategy in the shadow war can be summed up as follows we're trying to kill our way to peace and the killing fields are growing in number congress has a responsibility to seriously address crucial question what impact are these clandestine operations having us national security are they making us more safe or less safe when u s forces kill innocent civilians in so called counterterrorism operations are we inspiring a new generation of insurgents to rise against our country and what is the oversight role of the u s congress in the shadow wars that have spanned the bush and obama administration the most visible among these shadow wars mr chairman is in pakistan where the u s regularly bombs that country using weaponized drones at the same time u s special operations forces are engaged in covert authentic actions in pakistan including hunting down so called high value targets and conducting raids with pakistani forces in north and south wa these actions are carried out in secret and have been publicly denied by senior pentagon and state department officials who stated that there are no u s troops in pakistan or that the only role of u s troops there is to train pakistani forces such statements have been made recently by ambassador richard holbrooke and pentagon spokesperson geoff morrell their statements are demonstrably false u s officials have consistently misled the american public in the pakistani people on the extent of u s military operations in pakistan congress is kept in the dark about these operations mr chairman how can it expect to honestly and effectively debate u s policy on pakistan one of the most off the radar wars the us is currently waging is in the horn of africa and the gulf of aden where u s forces are increasingly attacking forces from al qaeda in the arabian peninsula as with the presence of u s forces in pakistan publicly the obama administration insists that its role in yemen is limited to training and equipping the country's military forces this is false on multiple occasions the united states has launched cruise missiles carrying cluster bombs at villages in yemen killing scores of people among them women and children to such attacks took place last december one of them was reportedly aimed at targeting a u s citizen  hakim to execute him without trial special operations sources have told me that elite u s special ops have also engaged in lethal ground operations directly in yemen as in the case of the u s drone strikes in pakistan the yemeni authorities are colluding with american officials to cover up and mask the extent of u s involvement in a meeting with general david petraeus in early january of two thousand and ten yemen's president reportedly told the general quote we will continue saying the bombs are ours not yours s special ops forces have launched at least six attacks in somalia in recent years including multiple helicopter assault and tomahawk missile attacks the most recent operation we know of in somalia with a helicopter attack in september two thousand nine hundred the current president's command these ongoing shadow wars mr chairman confirm an open secret that do you in congress are willing to discuss publicly particularly democrats when it comes to u s counterterror in policy there's been almost no substantive change from the bush administration in fact my sources within the cia and the special operations community tell me that if there's any change it's that president obama is hitting harder hitting in more countries than president bush the obama administration is expanding covert actions of the military and the number of countries where u s special forces are operating the administration has taken the bush era doctrine that the world is a battlefield a favorite of the neo cons and run with it and widened its scope under the bush administration special forces were in sixty countries around the world under president obama there and seventy five of the special operations about are in told me president obama has quote let us special operations forces off the leash as i just returned from afghanistan mr chairman i'd like to share with this committee of my investigation into deadly u s night raids in that country where innocent civilians were killed these operations carried out by the same special ops teams that operate in yemen pakistan and somalia are part of what is effectively a shadow war within the more publicly visible war in afghanistan in one incident in february of this year u s special operations forces raided a civilian compound in the gardez district of poppea province they killed two pregnant women a teenage girl and two men u s forces tried to cover up their responsibility for the killing and blame the taliban and said the women were executed in an honor killing that was a blatant lie mr chairman and eventually the us was forced to admit its responsibility these innocent afghans were killed by soldiers from the joint special operations command i went to visit with that family in their home in gardez they were pro american and anti taliban before this raid in fact the night u s forces stormed their compound they thought it was a taliban attack the two men who were killed were actively working with u s forces one of them was a top police commander trained by the united states the other was a local prosecutor in the karzai government one man who saw his pregnant wife gunned down by u s forces was put and handcuffed and taken prisoner for days by american forces when he was released he told me he wanted to become a suicide bomber and blow himself up among the american to date the only remedy that the united states has offered this family were two sheep for them to sacrifice similar story happened when i visited province u s forces raided the casa cauchy family's compound in may of two thousand and ten killing eight civilians local police officials told me the family had no connection to the taliban that family is left asking why they should support the u s presence in their country after watching their loved ones shot dead before their eyes by a military that claims to be there to liberate them and free their country these raids into civilian deaths they cause are hardly isolated incidents in closing mr chairman i told both of these families targeted in those raids that i described that i bring their cases before the u s congress and ask that they be investigated and that those responsible be held accountable on behalf of those families i humbly ask this committee to consider this request thank you mr chairman well i will and i would like to get the details both of them and would you also when you submit would you identify the seventy five nations to say we've gone from sixty to seventy five mr chairman that that information remains classified i've been able to gather about a dozen of them from special operations sources but i'll submit to you the information that i have thus far and documentation to support the seventy five statistic thank you very much i know i'm very pleased to introduce our next witness bruce fein four years he's assistant director of the office of legal policy legal advisor to the assistant attorney general for any and the associate deputy attorney general of the united states mr fein has also served as the general counsel of the federal communications commission by an appointment as research director for the joint congressional committee on covert sales to a rand and  reflects the moral deposit of the time and i think the issue that you've raised at this hearing civil liberties and national security represents a revolution for the worse in the american political culture  psychology of the united states was born with the idea that the individual was the center of the universe and due process was to be praised in venerated above all else and the reason wasn't to win foreign allies and international support although that was something that would not be unwelcome but it is because of who we are as a people who we are as a people do we care about freedom more than absolute safety do we care about due process more than domination for the sake of domination and i think i'd like to illustrate the degradation in our political culture to a way the way we resemble more china and russia than we do the united states and seven hundred seventy six or seven hundred eighty seven by some comparison i think the first is are we at war it is the characteristic of all empires to inflate danger from a reasonable level into thousands or millions of times above that level in order to justify an extra increment of safety and if you examine today the enemy to soldier ratio of the united states  afghanistan and pakistan and our counterterrorism experts estimate we have fifty to one hundred al qaeda in afghanistan at present maybe three hundred pakistan if you take that current enemy soldier ratio and apply it to what our armed forces would have looked like in world war two fighting japan and germany we would have the old it a military of three and a half billion soldiers including skin scripting every single american we would have to multiply the population by one hundred twenty six and our enemies in world war two we're not those who are in caves and had primitive access to technology or weapons these were people in germany and japan building the one v two rockets zero airplanes kamikaze pilots etc and yet we did not suspend due process of law in my judgment one of the greatest errors that we've made in addressing this whole issue is to conclude that nine eleven did cross the threshold of danger that put us at war and that's very critical mr chairman because war is very unique because it makes what's customary murder legal that doesn't mean it should never happen but that's a very grave step to take what is customarily murder becomes legal and that is where we are today with i think the authorization to use military force and really without much debate or discourse at all saying al qaeda represents that level of danger that justifies moving from a criminal justice system to where we treat these people as international thugs and dangers to being warriors a subject to the rules of war but that's just one example another example if we look at where we were at the outset and where we are today you remember the boston massacre and we had someone named john adams and he was a lawyer and he defended some of the british soldiers who are accused of massacring protesting americans at the time and he was placed under much chris system he was actually defending the rule of law an acquittal from that those british soldiers he later became a president of the united states he was the first vice president as well today this culture treats those who would defend those accused of crimes if you call them a terrorist crime when you get elected  president no you get on the banned list no one should hire you should be treated as a private if you're defending the rule of law indeed we don't lower to the situation where you've had a former solicitor general of the united states say that someone who is defend an organization allegedly listed as a false wrong as a foreign terrorist organization to provide legal assistance is a material assistance prohibited under material assistance law now that sounds like a lawyer practicing in russia or in china not the united states of america let me give you the odyssey of khalid al masri to show again how far we have come in degrading the rule of law was a german citizen of lebanese ancestry and after nine eleven he was picked up kidnapped if you will from macedonia taken to afghanistan imprisoned there he was tortured he was abused he was dumped back in albania all of this never being accused of any crime stop don't go this far will upset the international opinion towards us the rule of law should be crucified on a national security cross and those arrest warrants were then never executed and mr masri then comes to the united states and he brings a lawsuit claiming that he is that the constitution has been violated in these suing the cia director george tenet and others for constitutional violations of his rights and what is he confronted with state secrets privilege you can't prosecute your case the u s court of appeals for the fourth circuit said because if you'll have to disclose who the culprits were who tortured be you and that disclose intelligence sources and methods therefore you're out of court and that kind of catch twenty two again it smacks of soviet or chinese justice this is the united states of america and this is what happened to mr khalid al masri just one example if we were to read in the newspapers that lott amir putin could put on a list no russians who he thought mr baer called you or others who are outside a list to be assassinated because he thought they were endangering political stability in russia we think what a monstrosity this shows how bad and lawless russia is they really haven't changed since gorbachev left and yet here we have today a president of the united states claiming identical authority unilaterally authorized to identify an american citizen abroad no judicial review no congressional oversight you are on the fascination list because i am declaring that you are an imminent threat to the united states is not on a battlefield is not engaged in active hostilities against the united states there's no due process whatsoever and just two days ago a u s district court here held well there's no way that the judiciary can review this particular power only congress can do it only congress can do it in one take back mr chairman the days when i think you and i were here some thirty or forty years ago concerning president nixon's impeachment and to examine how again far we have fallen since those times you remember those three articles have been pietschmann that were voted by the house judiciary committee were strong and barbara jordan was there one of one president nixon and failed to face fully execute the laws there are a lot of violations that he knew about and he was not faithfully executing laws indeed with the tapes we heard he was encouraging obstruction of justice it's that or and he was impeached for that and as you pointed out in your opening statement we have a president now who sees out there waterboarding torture he knows the people who are complicit because they've confessed now there is no exception in article two of the constitution to decline to faithfully execute the laws because it would be politically difficult though except indeed if there is some awkwardness there is a remedy if you will it's the called the pardon power president ford as you well know and remember chairman conyers decided he would pardon richard nixon because he thought the country would be too c a flagrant violation of that duty the faith let the dog and yet nothing happens go to another area another article of impeachment against richard nixon was obstruction of justice remember the eighteen minute gap and all the things that disappear obstruction of justice you point out we have open to knowledge that those interrogation videotapes were destroyed and what happened nothing nothing where is the oversight that's an unfla obligation to enforce the laws and i go back if you don't think it would be politically healthy you have to pardon them and pardoning requires the recipient to say i did wrong third article of impeachment was flouting a congressional subpoena impeachable offense that it happens every day you know you mr chairman you had to go to court ultimately you wanted the district level and it became moot because the congress expired center had to fight the case again this administration ignore subpoenas all the time i don't want to answer it doesn't even have to be classified information sensitive information we don't want to tell you it's white you know more about the united states from reading wiki leaks than you get in classified briefings from this executive branch and previous ones it is not a partisan issue it transcends politics and then we we had mr sensenbrenner talk with i think rather  breezy air about these national security letters these are letters that the f b i and others can issue unilaterally no judicial review if you say that some investigation has any relation to terrorism which can be anything under the sun in today when where at least semi entrapping eighteen and nineteen year olds that we read in the newspapers to plan bomb plots or whatever you know terrorism investigation can covered the waterfront and even with that bret their own inspector general in the justice department said it was violated thousands of times where there's not proper certification given these kinds of infringements in our day mr chairman it was called the houston plan and the houston plan was rejected even by j edgar hoover by j edgar hoover says this is not acceptable in the united states he then becomes a civil libertarian like john ashcroft now and  least he would do some of the things and flouting the foreign intelligence surveillance act that the bush administration wanted and perhaps to me motion although the incidents are so numerous you get numb to that was a statement made by a member of congress and i won't identify after the verdict up in new york on one of the alleged those complicit in the bombings  a statement what we can have trials if you're going to have not guilty verdicts we only do trials if you know you're going to bring in guilty and punish them no this is like a world of joe stalin you only have show trial due process  to ferret out what's truthful and what is not who is innocent is not guilty the fact that a statement like that could be made from someone who's ost of office is to uphold and defend the constitution of the united states and it goes unremarked is truly shocking truly shocking and the last example i want to give and i was involved in some senses and because security concerns our treatment of we guards now it may sound very exotic we go as an ethnic minority in northeast china they're muslim and there was about two dozen of them were detained at guantanamo bay two dozen were detained at guantanamo bay allegedly enemy combatants although they despise communist china never threaten americans ever but they are said to be enemy combatants because they trained on the same field that are some of bin laden once put a foot on his car drove over they were there for almost eight years finally the supreme court gave them a b s corpus in the  case they come the district court here and the justice department finally says is obama we really don't have any evidence that they're enemy combatants at all we have no evidence they've been detained illegally for seven years judges well i guess they should come to the united states indeed their leader semi leader is a woman called rev you could hear who's received the nobel peace prize nomination three times or officer cattycorner from the white house said well i'll take care of them they're only seventeen i'll give you my bond that they won't become public charges and the obama administration says no they're illegal aliens they don't have green cards can't come to the united states they have to go back and rot in guantanamo even though they're being held illegally and that argument prevailed in the executive branch the case went up on appeal and meanwhile i'll suggest the united states of america then shop the world offering bribes rather would you please take these wee guards off our hands we don't want them here we're frightened the chinese might not buy our bond so we will then sell their liberty to somebody else by a law to the behind bermuda or something like that because that's what the united states has come to it is come to resemble the king george the third monarchy the tyrannies we were fighting and this is not something that is a trade off between civil liberties and national security the greatest national security of any nation is the loyalty of its people its devotion to the country because it respects the rule of law the british may thought that they were getting security when they courted soldiers in american colonists when they issued writs of assistance when they impressed us seamen american seamen into their own navy and they ended up with a revolution they lost everything that's what the french thought too on the eve of the french revolution the escalation of the oppression of freedom ends up in danger in the state rather than making it more secure and on that score as when stated as by my previous witness we also by acting in a lawless way abroad are creating more enemies than were killed we're making us less safe we have the illusion with the body count there oh yes now i don't feel quite as fearful as tomorrow will be a caliphate in washington d c but ultimately mr chairman this will change only if our political culture and our leadership changes to say we prefer freedom to absolute safety now's the time to understand our goal is not an empire restore the individual and freedom as a center of our constitutional universe and other things are subordinate to that overriding goal thank you session i'm grateful to you i'm going to i'm going to ask you know starting with embassador pickering where do you think that's been held here this morning that many people are going to look much further into and become more aware of some of these tensions between  constitution constitutional liberties and security about the areas that you're concerned about particularly express my concern of the use of article three courts and the concern i had that military commissions and other substitutes if they were not to article three courts and their protection of the rights of the individual would be failing to meet the constitutional norm i'm concerned about detention without trial on a definite basis some of us have suggested concerned about the protection of privacy while at the same time obviously administering effectively the law and security and the adequate control of trade and commerce i'm concerned citizens of this country the second question that you have to face and the important power you have as individual members legislation where you feel legislative remed of these particular actions on the part of the executive branch thank you very much i'd like to my two witnesses professor lewis do any suggestions come to your mind about ways that we might be able to improve the delivery of justice and fairness in this country both in our courts and in between and in relationship between the three branches of government and with the countries and the peoples of the you begin professor let me ask you is there a possibility that among those seventy there may be some the even you and i could agree be released becomes what happens with those detainees who we determine are either too high value to be released and or we simply don't have the kind of evidence that would work in a federal court what you do with those basic options are currently o ing i mean that's the same court with the same set of rules that americans are called above and to visit and that we create the laws for and that we select the judges for every almost every day in the year absolutely and that all always i mean to suggest is that is is a policy question these folks don't have the same constitutional rights that folks in this country and the question because a matter of policy do we want to put these in federal court and give them the same rights and benefits that america having a very strong bias against very strong bias through title three court we would have to prove what's wrong with there's nothing wrong with that and i actually think that it makes a lot of sense to have to prove the guilt of folks that we want to detain particular beyond the duration hostilities certainly there are  torture evidence that was gained by torture to be usable against terrorists i think that we have to look at the evidence that's obtained and you would know you wouldn't want that i don't think we should be torturing people about well on the contrary it's been determined waterboarding is been determined pretty definitively is not being appropriate and and for of that we can interrogation and they've sought sentimental what's what's what's the problem here we have a long history in this country of excluding evidence obtain is reliable and there's a question about whether these are techniques that we want to use an american a free country could you understand how a person subject to these kind of techniques would say anything that anybody wanted them to say absolutely  list of cases in which there was a known enhanced interrogation or torture used in which the witness elicited in which enhanced torture enhanced interrogation or torture revealed valuable and important and accurate information i would just say process we have no objection to that at least i have no objection but i have a serious concern that with all the euphemisms that have been huge the new federal court is designed to prejudice question of torture and roll i addressed in a few brief words i'm not the expert on this issue i've read a lot about it i'm a highly unreliable and reprehensible t ambassador pickering pointed out there are those skilled interrogators well many of these individuals were given useful information before the waterboarding occurred there's no reason why they couldn't have gotten the information otherwise but putting that aside there that it's not effective in that those are two separate issues in two separate ways in which the reasons for using the technique and so you may have a need to gather intelligence in a short period of time that that might include the use of however those cannot possibly be used to convict people after and you've asked about where we should go in terms of a process where these individuals and the fact the matter is the congress the united states has gone through course of people conducting the trials can be the sergeants on the battlefield or anybody whatever group people get called  close to the safeguards in the in the regular court don't you there's no doubt that they are not to be the same as the safeguards regular court and part of the reason for that is the evidentiary problems that i discussed previously the evidentiary problems where soldiers are the ones getting information just are not going to meet article three court standard and therefore you're not going to have the evidence necessary nor the three court to convict people that otherwise probably would be and that's what i thought that i heard you suggesting that you were in somewhat favor of article three court i'm in favor of article three courts where the defendants are apprehended by law enforcement even  nations and how we can bet work with that in terms of the way we're prosecuting the war on terror there are a lot of anecdotal discussions such as the one that mr presented today where negative and i would very strongly command the study done by a professor at u very gentle down at the university of virginia because he did a very detailed analysis of public opinion in afghanistan based upon open source information over there and w the individual might be turned against this because of a poorly planned or poorly executed attack broadly al qaeda is not popular in that region and the two choices to oust outside are either the united states or the pakistani military and the fact the matter is the pakistani military tends to use artillery and fuse or kill you very indiscriminately and has caused a tremendous amount of civilian havoc when they have attempted to rather ineffectively in the pinion of people in pakistan attempted to fight al qaida and they see the united states drone strikes and special forces operations as being far more effective in countering qaida they're not saying they're perfect but it's sort of this is the better the better of the choices according to the people on the ground in pakistan and as i said it would i would commend that study to you for review thank you and we will examine that recognize no jeremy scahill well just just to respond to what professor lewis just said i think one thing that we've learned over the past ten years is that these polls that are done in pakistan and afghanistan are just wildly inaccurate it was abundantly clear to me not just anecdotally but also from talking to u s forces as well that the strength of the taliban is growing within afghanistan and also within pakistan and let's remember we're not fighting al qaeda in afghanistan according to the outgoing national security adviser general jim jones there are less than one hundred al qaeda operatives in afghanistan with no effective ability to strike the united states i also talked to senior taliban officials from the mullah omar government who expressed a concern that when the united states is killing the leadership of the taliban that they're killing the only people that would be capable of negotiating a nonviolent solution to the conflict there and in some cases the individual commanders are killed are replaced by commanders who are far more radical and in fact some of mullah omar's envoy mullah omar being the head of the taliban in afghanistan some of his envoys have actually been butchered by new taliban commanders because they feel that mullah omar isn't radical enough so i think we have to be very careful when we take any poll and hold it up and suggest that it's evidence that we're sort of winning hearts and minds because i think it's clear to many within our armed forces that's just not the case to respond to something that by which to dissuade future acts of torture the most effective way to stop torture is to hold torturers accountable i think it's outrageous that we didn't have congressional intervention of any strength in the case of the destruction of the cia torture go after those who were committing torture and also the officials who ordered it and authorized it i think that's one of the great shames of the the era of the democratic controlled both houses of congress is that there was not enough done to ensure that if the president was going to hold the torture accountable that the congress would also recommend that people read matthew alexander's book how to break a terrorist he was an interrogator in iraq and he was instrumental to gathering intelligence using non torture technique that led to the capture of abu musaab our colleague and i would recommend that the committee review his work as well in closing i want to say that i think that the congress needs to not just limit its investigation of these torture techniques to the cia torture is also committed it can't nominate iraq which is run by the joint special operations command and i think that this failure to use the subpoena power is failing the american people we have to have accountability or it's going to continue under democratic and republican administrations well yes mr attorney general let me be clear torture is wrong under any and all circumstances and got these folks we're capturing we need to fail to do it in their high value would lead to have an immediate intelligence value what should we do they came up with a series a plan they went to the paul structure of the white house and the department of justice and they and they said what should we do as a policy matter as a legal matter and the department of justice came back with a set of legal now those legal opinions i think i think the fact the matter is there are deep law and may legal opinions associated with that time now necessity along the lines you just heard but as with the arguments in favor of torture the arguments for targeted killing the test of legality morality or effectiveness situation of armed conflict international law does not rely prohibition except in the clear situation of actual armed conflict in such hostilities the regular armed forces of a sovereign state may intentionally kill members of the opposing armed forces and any civilians who are directly participating in armed conflict international law defines armed conflict as situations of organized arm occurring today and they will tell you afghanistan it is only there that the united states may lawfully carry out targeted killing sakit not only is this the law it is the right ethical position all human beings are endowed with dignity which we protect through human rights including the human right to life through the centuries humanity has constantly striven t enhance respect for life we have prohibited war through the un charter and we have condemned terrorism because of the violence against human life america's targeted killing program is a serious retrograde step in the moral advancement of humanity it demonstrates grave disregard for the right to life but ladies and gentleman if law and morality are not enough we can also add that empirical data clearly shows that military force is ineffective and terrorist groups in two thousand and eight the rand corporation released a study that concluded quote all terrorist groups will eventually or two local police and intelligence agencies arrested or killed members military force has really been the primary reason for the terrorist group this has significant implications for dealing with al qaida and suggests fundamentally rethinking post september eleventh u s counterterrorism strategy close quote we are told with respect to targeted killing as we were with regard to torture that post nine eleven circumstances require extraordinary measures however some of our leading responded forcefully to the arguments in favor of torture by saying that the ban on torture in existence at the time that the legal memos were prepared by the white house and a moral imperative required that absolute regardless of the consequences and we could say the same for targeted killing but as in the case of torture it turns out that doing the moral doing the legal thing is doing the affective thing against torture torture is unreliable against terrorism torture is an unreliable means of interrogation that trained interrogators including my husband have rejected out of hand similarly some of the best counterterrorism experts reject the use of military force in efforts against terrorism terrorists seek to undermine lawful institutions to sow chaos and discord and to foment hatred and violence upholding our lawful institutions holding to our legal and moral principles in the face of such challenges is not only the right thing to do is a form of success against terrorism that can lead to the end of terrorist groups apparently president obama himself is aware that targeted killing by drone applies or does not apply and so what you're left with is customary international law and in order to make customary international law you must show not only an agreement of commentators about its contents which i don't believe but even more importantly you have to show some form of that supports the recognition that there is a legal obligation to to perform in that way and i can think of no example at all of state government over committee earlier this year by professor glaser who was generally an opponent of the bush administration policies and these sorts of actions in general was the united states pursued vietcong and the north vietnamese army across the border into laos and cambodia and yet that was not a violation of international law those forces were attempting to escape by finding a sanctuary across the line and more importantly where you have non state actors doing the same thing the park attempting to find sanctuary in colombia and not in colombia sorry from colombia in ecuador and colombia across the border and struck into port camps there that was not deemed to be a violation of international law and perhaps the best example is the hezbollah war in lebanon according to professor o'connell test there was no armed conflict in lebanon at the beginning of that war there were sporadic rocket attacks sporadic cross border raids by hezbollah but that was it and the israeli response was to use the tools of armed conflict and invade lebanon to go after hezbollah and the conflict between hezbollah and israel was understood by everyone to be governed by the laws of armed conflict not to be an improper use of force where israel was criticized and it was criticized heavily was because they had allegedly violated the laws of armed conflict they had been fortunate they had used military necessity they used banned cluster munitions etc but the whole conversation throughout the whole international legal community was have they complied with the laws of war the laws of war clearly applied to that conflict and yet professor apollo now is saying if the taliban can cross into  pakistan if they can get to yemen they're saying they cannot be struck there we have to use law enforcement and that is the only method of attempting to capture them and if there is either and incapable government in yemen or somalia know just like in the federal courts in the military commissions or judges who make the legal determination one would presume that in the military they're judges but they're not their appointed judges they're not really judges they're not even jeremy it's pretty clear that when it comes to the issue of torture and accountability for that the united states government holds itself to one standard the rest of the world to it to a different standard you know i also want to add that when it became clear that the obama administration had authorized the assassination of a united states citizen anwar locky by either the central intelligence agency or the joint special operations command representative dennis kucinich put forward a very simple piece of legislation that said that the united states shouldn't assassinate its own citizens without due process i think five members of congress cosign or co sponsor that legislation that's a shocking commentary on the state of affairs in the capital today that only six american politicians legislators would sign on to such a simple piece of legislation that said we shouldn't fascinate our own citizens without due process but i think what we're seeing unfold around the world today is a situation where in afghanistan we're propping up drug dealers war criminals and mass murderers in the name of democracy and we are bombing countries that we're not at war with yemen somalia pockets on we are creating a new generation of insurgents that want and have every justification or reason to rise up against united states because they actually have grievances now because members of their families have been killed i feel very sad when i think about the future of our democracy because i think that what we're doing right now is sending a message to the rest of the world that in many ways our foreign policy represents that of the very rogue states that we denounce on a regular  don't say that lightly i say it with a great sense of sobriety because i think it's shocking when you go to these war zones and you meet with the victims that live on the other end of the barrel of the gun that is our foreign policy and they ask journalists well what can you do for us the only thing we can do is come back to this body and ask that you do something about it or try to give them access to lawyers one of the ironies of the of the dark years of the bush administration was that trial lawyers emerged as some of the strongest freedom fighters we had in the society but for the center for constitutional rights in the a c l u i think we would be in a much darker situation right now so i'm very disturbed by what by a lot of what i've heard today and a lot of what's going on in the world and i think a lot of it when it comes down to congress boils down as i said earlier the failure to use subpoena power i think that's one of the the actions that congress can take that is a way of actually affecting some kind of responsibility or accountability when the other branches of government fail and yet we've seen almost none of that with the democrats in power in this congress and i hope that if the democrats do the congress control the house that the subpoena power needs life and death issues but congress well i think the empty chair next to you is an indication of where things are headed mr chairman and i think that we're going to see the targeting of the great enemy to our society we'll see some subpoenas flying out of this office professor i'm more optimistic than i recall the great tradition of the republican party in terms of fidelity to international law it was abraham lincoln a republican who asked to have the code of armed conflict for the law of land warfare to be written and those rules are the fundamental rules that should be guiding how the united states conducts conduct itself today one of our greatest secretaries of state founded the american society of international law with its object of promoting that i'm on the bill and i i think you are one of the half a dozen brave members of congress that have the audacity to stand up against our government assassinating our own citizens without due process but i don't think it takes that much audacity no i'm i don't think it's what i think is i think  a bill that i drafted with walter jones to have the audacious prohibition on a president intentionally unknowing lying to congress to obtain authorization for war sort of a revolutionary principle and that again had a handful of of co sponsors but just a couple of final closing points one due process is not simply a slogan on guantanamo bay after the supreme court declared that corpus was available to the detainees the vast majority that had hearings have been concluded not to be enemy combatants and this is even though the administration is able to rely on secret evidence to prove enemy combatants that and these are people that is the words of former secretary of defense rumsfeld said were the worst of the worst due process matter they don't get it right all of the time with regard to the idea of battlefield what is and is not what to me is rather alarming is that when you declare or find yourself at war with a tactic as opposed to a country there are no bout that if you say you're at war with international terrorism the boundary is all of the planet go interplanetary intergalactic where ever that could conceivably be and that's what makes so dangerous idea that we have the legal architecture of war and fighting international terrorism because you can use military force anywhere you think someone is a terrorist including in this very committee room lastly at least with regard to waterboarding if it really works so well i'm puzzled as to why those on this panel and maybe others who supported one that came under the sunshine exemplifies that it was hardly the necessary tool to prevent future terrorist attacks thank you thank you i'd like to say on behalf of the sometimes appear on the hill i think it's been said not everybody has said it yet i'll try to resign from that i want to thank you for having the hearings i think they've brought out a number of very interesting points it's been interesting that while the debate has had something of a partisan flavor from time to time there are enough home truths that i think one can draw from this and your very vital and interesting cross examination of us all that there is a way ahead there is an entire compatibility between national security and honoring and observing human and civil rights this is where i began my sense is that that still remains the deep underlying theme of this particular hearing and even though we have had differences in degree about how the various pieces of this could come together i think we have no difference