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TORTURE AND THE CRUEL, INHUMAN AND DEGRADING TREATMENT OF DETAINEES: THE 

EFFECTIVENESS AND CONSEQUENCES OF ‘ENHANCED’ INTERROGATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

NOVEMBER 8, 2007 

Serial No. 110–94 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

NOVEMBER 8, 2007 

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 2 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 5 

WITNESSES 

Mr. Malcolm W. Nance, Anti-Terrorism/Counter-Terrorism Intelligence Specialist, former SERE Instructor 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 23 

Mr. Steven Kleinman, Colonel, USAFR, Intelligence and National Security 

Specialist, Senior Intelligence Officer/Military Interrogator 

Oral Testimony ..................................................................................................... 28 

Prepared Statement ............................................................................................. 31 

Ms. Amrit Singh, Staff Attorney, ACLU 

Oral Testimony ..................................................................................................... 36 

Prepared Statement ............................................................................................. 38 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 9 

(1) 

TORTURE AND THE CRUEL, INHUMAN AND 

DEGRADING TREATMENT OF DETAINEES: 

THE EFFECTIVENESS AND CONSEQUENCES 

OF ‘ENHANCED’ INTERROGATION 

THURSDAY, NOVEMBER 8, 2007 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:12 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Nadler, Scott, Watt, Delahunt, 

Davis, Wasserman Schultz, Pence, and Franks. 

Staff present: Heather Sawyer, Majority Counsel; Perry 

Applebaum, Majority Staff Director and Chief Counsel; and Joseph 

Gibson, Minority Chief Counsel. 

Mr. NADLER. Good morning. This hearing of the Subcommittee 

on the Constitution, Civil Rights, and Civil Liberties will come to 

order. 

Today the Subcommittee will conduct an oversight hearing on 

torture and the cruel, inhuman and degrading treatment of detainees— the effectiveness and consequences of enhanced interrogation. 

The Chair recognizes himself for 5 minutes for an opening statement. 

Since news of the mistreatment and possible torture of detainees 

in U.S. custody first surfaced, Congress has debated and legislated 

on the subject of the legal and moral limits on interrogation tactics. 

We have been told, one, it is not torture, it is only enhanced interrogation; two, none of our business; three, it is legal; four, even if 

it is not legal, the President can still order it and make it legal; 

five, we have to do it to save American lives. 

Today I hope that we can begin to get to the bottom of these difficult and important issues. A great deal of what has gone on—despite this Administration’s penchant for secrecy—has become public. Methods of interrogation so appalling they sound like—and in 

some cases are—techniques pioneered by the Spanish Inquisition. 

This conduct is unworthy of the United States and its people. It 

is unworthy of the United States government. It places every 

American, especially every American in uniform around the world, 

at great risk. 

2 

Does betraying our values make us safer? Do we need to do these 

terrible things in order to survive in this dangerous world? That 

has been the message we have gotten subtly and not so subtly. 

I have been accused on more than one occasion of trying to make 

possible another 9/11 attack, an especially terrible slur given that 

thousands of my neighbors died in the World Trade Center on that 

day in my district. 

People in nations do terrible things in war, but civilized nations 

recognized long ago that there must be limits on their conduct even 

during military conflicts. The United States historically has been 

a leader in the effort to establish and enforce the laws of war and 

conventions against torture. 

Indeed, the United States Army Field Manual is an outstanding 

example of a modern military dedicated to observing international 

norms of conduct. It is a credit to our men and women in uniform 

that they continue to abide by these rules. 

It is unforgivable that some civilians here in Washington seem 

to think that they know better, and that they need to be more brutal than our military and professional interrogators are, and that 

they have permission to break our laws and to break treaties that 

we have signed, and to try to keep it secret, because the American 

people and the Congress cannot be trusted with knowing what 

these people know and cannot be trusted with judging what these 

people have done in our name. 

Today we will try to get at some of the facts and look behind 

some of the more outlandish and extravagant claims. We have a 

very distinguished panel with us, and I look forward to their testimony. 

I yield back the balance my time. 

I would now recognize our distinguished ranking minority Member, the gentleman from Arizona, Mr. Franks, for his opening statement. 

Mr. FRANKS. Well, I thank you, Mr. Chairman. 

Mr. Chairman, we are here today because of an article that appeared in the New York Times, but nowhere in that entire New 

York Times article does it state that the confidential legal advice 

in question authorizes torture. The article simply describes a memo 

that allows what the headline characterizes as severe interrogations. 

On the American side of the ledger, let me be very clear, Mr. 

Chairman: Torture is illegal. Torture is banned by various provisions of law, including the Uniform Code of Military Justice in 19 

U.S.C. 893 and the 2005 Senate amendment prohibiting the cruel, 

inhuman or degrading treatment of anyone in U.S. custody. 

In fact, the terrorist detainees at Guantanamo Bay are treated 

so well in their confinement that they have gained an average of 

15 pounds. They have been given the best medical and dental care 

and the utmost in religious accommodation, including Korans and 

the ability to pray 5 times a day, undisturbed, in the direction of 

Mecca. 

However, Mr. Chairman, terrorists make no such reciprocal accommodations, either for American warfighters or innocent American civilians. To state the obvious, terrorist acts can have severe 

consequences, as we saw when 3,000 American lives were sudVerDate Aug 31 2005 15:46 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\CONST\110807\38765.000 HJUD1 PsN: 38765
3 

denly, brutally, and violently taken on September 11. Clearly, severe interrogations in some circumstances may be necessary to prevent severe consequences that involve the violent death of thousands of innocent Americans. 

In fact, aggressive but legal controlled interrogations have 

worked well in the past and are working now to save thousands of 

innocent American lives. Khalid Sheikh Mohammed, the driving 

force behind the 9/11 attacks, stayed quiet for months after his capture. 

The interrogators eventually reportedly used some version of 

what is called waterboarding on him for just 90 seconds, at which 

point he began to reveal information that helped authorities arrest 

at least six major terrorists, including some who were in the process of plotting the bringing down of the Brooklyn Bridge, bombing 

a hotel, blowing up U.S. gas stations, poisoning American water 

reservoirs, detonating a radioactive dirty bomb, incinerating residential high-rise buildings by igniting apartments filled with natural gas, and carrying out large-scale anthrax attacks. 

Yet, the New York Times article seems to fault the Justice Department for ‘‘preserving the broadest possible legal latitude for 

harsh tactics.’’ 

Mr. Chairman, if there was ever a time for harsh tactics, it 

should be when we are using them to defend against attacks by 

bloodthirsty terrorists who are trying to kill and maim thousands 

of innocent Americans, including our families and children. 

The New York Times article even concedes that the tactics it 

characterizes as severe interrogation simply include ‘‘interrogation 

methods used long in training our own American servicemen to 

withstand capture.’’ We use these processes to train our own 

troops. 

Furthermore, these methods are used infrequently. As the Administration has made clear, of the fewer than 100 terrorists who 

have gone through the interrogation program, fewer than a third 

required any special method of questioning. 

The 2005 Senate amendment prohibits persons in the custody or 

control of the United States from being ‘‘subjected to cruel, inhuman or degrading treatment or punishment,’’ which it defines as 

covering those acts prohibited under the fifth amendment, the 

eighth amendment and the 14th amendment to the Constitution. 

The New York Times article itself points out that ‘‘relying on the 

Supreme Court finding that only the conduct that shocks the conscience was unconstitutional, a Justice Department legal opinion 

found that, in some circumstances, not even waterboarding was 

necessarily cruel, inhuman or degrading. If, for example, a suspect 

was believed to possess crucial intelligence about a planned terrorist attack.’’ 

Now, we do not know whether or not the Department of Justice 

legal opinion actually used the example of waterboarding, but the 

general principle expressed by the Justice Department alluded to 

in the article is that the Supreme Court has found that—in some 

circumstances—certain interrogation methods are not necessarily 

cruel, inhuman or degrading, if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist atVerDate Aug 31 2005 15:46 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\CONST\110807\38765.000 HJUD1 PsN: 38765
4 

tack. In such circumstances, harsh interrogation techniques would 

not unconstitutionally shock the conscience. 

The conclusions of the legal memoranda of the Department of 

Justice, as reported by the New York Times, were supported by 

none other than Senator Charles Schumer, Judge Michael 

Mukasey’s Democratic sponsor in the Senate. 

A Senate Judiciary Committee hearing on terror policy in June 

8, 2004, is where Mr. Schumer of New York said the following at 

a Senate Judiciary Committee hearing. He said the following: 

[Beginning of audio clip.] 

Mr. SCHUMER. 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 at 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 a 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 is easy to sit back in the armchair and say that torture 

can never be used, but when you are in the foxhole, it is a very 

different deal. And I respect—I think we all respect—the fact 

that the President is in the foxhole every day. 

[End of audio clip.] 

Mr. FRANKS. Mr. Chairman, if Mr. Schumer’s comments were 

true then, then they are true now. All that has changed is the politics of the day. 

Now, let me re-emphasize: Torture is illegal. The Congressional 

Research Service has also supported the conclusions of the Justice 

Department in a report that stated the following. 

Mr. Chairman, could I ask indulgence for 11⁄2 more minutes? 

‘‘The types of acts that fall within cruel, inhuman or degrading 

treatment or punishment may change over time. It may not always 

be clear. Courts have recognized that circumstances often determine whether conduct shocks the conscience and violates a person’s 

due process right.’’ 

Mr. Chairman, it seems that the Administration, the senior Democrat from New York, and the Congressional Research Service all 

agreed on the relevant principles, and yet some on this Subcommittee are insisting that the Justice Department hand over its 

internal strategy discussions to Al Qaeda. 

The Wall Street Journal pointed out in a recent editorial, ‘‘The 

reason to keep these internal strategy discussions secret is so 

enemy combatants cannot use them as a resistance manual. If they 

know what is coming, they can psychologically prepare for it. We 

know al-Qaeda training often involves its own forms of resistance 

training, and publicly describing the rules offers our enemies a 

roadmap to resistance.’’ 

I look forward to hearing from our witnesses today, but I must 

say at the outset that I believe those who would challenge aspects 

of the current practices and procedures governing interrogation of 

terrorists have an obligation to state explicitly exactly what sorts 

of interrogation techniques they would allow. If they cannot do 

5 

that, they will have done a disservice to those who toil daily on the 

front lines of freedom and have to face exceedingly difficult decisions regarding how to best protect this country. 

Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

And I now recognize the distinguished Chairman of the full Committee, the gentleman from Michigan. 

Mr. CONYERS. Thank you, Chairman Nadler. 

This is an incredibly important hearing. I commend the Chairman for bringing us together and the witnesses that are here. 

And I want to point out how easy it is to slip off onto both sides 

of this issue, as illustrated by my friend from Arizona, Trent 

Franks. He points out the unquestionable illegality of it, and then 

cites the distinguished Senior Senator from New York, Mr. Chuck 

Schumer, who was a Member of this Committee before, as if his rationale makes it possible for us to have it both ways. 

And that is what this hearing is about, Mr. Chairman. Now, it 

is going to be critical for us to figure out whether this is illegal and 

violates treaties, laws, we repeated it or not. And if it is illegal, it 

is impermissible. 

Now, it is a wonderful notion for us to sit here and speculate, by 

using waterboarding, we will get somebody to tell the truth. That 

is precisely what has already been established, is that making a 

person think that they are facing imminent death is going to make 

them tell the truth. It means that you don’t have much military experience when you really believe that is the case, because the military experts have already refuted that repeatedly. 

And it also sounds a little bit like the posturing of the nominated 

position for the attorney generalship, Michael Mukasey, himself, 

who isn’t even sure what waterboarding is. He says he knows it 

when he sees it, but he has to do it on a case-by-case basis. That 

is what makes the discussion here in this Constitution Subcommittee absolutely critical. 

I ask unanimous consent, Mr. Chairman, to add into the record 

articles from The Nation magazine, Mother Jones for the record 

that deal with the debate around this important subject. 

Mr. NADLER. Without objection. 

[The information referred to follows:] 

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Mr. CONYERS. And I yield back the remainder of the time. 

Mr. NADLER. I thank the gentleman. 

In the interest of proceeding to our witnesses and mindful of our 

busy schedules, I would ask other Members to submit their statements for the record. 

I would also like to note the presence here of Mr. Delahunt of 

Massachusetts, who is a Member of the full Committee, but not the 

Subcommittee, but who is the Chairman of a Subcommittee on the 

Foreign Affairs Committee that has been dealing with this Subcommittee, along with this Subcommittee, and who, along with me, 

will be introducing later today a bill on the subject of torture. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record. 

Without objection, the Chair will be authorized to declare a recess of the hearing at any point. 

[The prepared statement of Mr. Cohen follows:] 

PREPARED STATEMENT OF THE HONORABLE STEVE COHEN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TENNESSEE, AND MEMBER, SUBCOMMITTEE ON THE

CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

The use of torture for any purpose is a violation of the most fundamental notions 

of human rights and an affront to human dignity. Waterboarding, physical assault, 

sexual abuse, extended sleep deprivation, hooding, and binding prisoners in awkward positions constitute torture from any civilized society’s perspective. Additionally, it is well-established that torture is an ineffective means of obtaining information, as those being tortured will often say whatever their interrogators want to 

hear just to stop the torture. Nonetheless, the Bush administration insists that none 

of these techniques of ‘‘enhanced interrogation’’ constitute torture and that they are 

necessary to obtain information in the war on terrorism. Moreover, the Administration, through secret legal memoranda sanctioning these and other harsh techniques, 

continues to attempt to thwart Congress’s clearly stated directive that the United 

States not engage in torture of detainees. It is for these reasons that I am a cosponsor of the Anti-Torture Act, which expands the McCain Amendment’s requirement 

that Defense Department interrogators adhere to the interrogation methods of the 

Army Field Manual to include interrogations of all persons under U.S. custody or 

control. 

Mr. NADLER. We will now turn to our witnesses. As we ask questions of our witnesses, the Chair will recognize Members in the 

order of their seniority on the Subcommittee, alternating between 

majority and minority, provided the Member is present when his 

or her turn arrives. Members who are not present when their turn 

begins will be recognized after the other Members have had the opportunity to ask their questions. 

The Chair reserves the right to accommodate a Member who is 

unavoidably late or only able to be with us for a short time. 

Our first witness is Malcolm Nance. Mr. Nance is the founder 

and CEO of the International Anti-Terrorism Center of Excellence. 

He is a combat veteran who has served as a collections operator, 

analyst and interrogation in naval intelligence and a specialist in 

anti-terrorism and survival, evasion, resistance and escape, or 

SERE. 

Our second witness is Steve Kleinman. Mr. Kleinman has served 

in the U.S. Air Force on both active duty and in the Reserve. He 

has served as a human intelligence officer. He was an interrogator 

and case officer during Operation Just Cause, as the chief of a joint 

combined interrogation team during Operation Desert Storm, and 

served as a senior adviser on interrogation to the commander of a 

10 

special operations task force during Operation Iraqi Freedom. He 

currently holds the rank of colonel, as the reserve senior intelligence officer at the Air Force Special Operations Command. 

Our third witness is Amrit Singh. Ms. Singh is a staff attorney 

at the ACLU’s Immigrants Rights Project, which has litigated cases 

relating to the torture and abuse of prisoners held in U.S. custody 

abroad, the Government’s use of diplomatic assurances to return 

individuals to countries known to employ torture, and the indefinite and mandatory detention of noncitizens. 

She is counsel in the case of ACLU v. Department of Defense, litigation under the Freedom of Information Act, for records concerning the treatment and detention of prisoners in Afghanistan, 

Iraq, Guantanamo Bay, and other locations abroad. She is a graduate of Cambridge University, Oxford University, and Yale Law 

School. The Subcommittee is grateful to her for agreeing to appear 

here today on very short notice. 

We also have an empty chair on the panel, and I want to explain 

for the record why the chair is empty. The Subcommittee had invited Stuart Couch, lieutenant colonel in the U.S. Marine Corps 

and an appellate judge of the Navy-Marine Corps Court of Criminal Appeals. A Marine Corps pilot and veteran prosecutor, he has 

special knowledge and expertise on the matters we are discussing 

here today. 

Colonel Couch was awarded the Defense Meritorious Service 

Medal for his work on Guantanamo prosecution. The citation, 

awarded by Secretary of Defense Donald Rumsfeld, described him 

as ‘‘steady in faith, possessed by moral courage and relentless in 

the pursuit of excellence.’’ 

He was assigned to prosecute, and let me just say that he had 

agreed to come today, and we were expecting his presence. But 

more on that in a moment. 

Colonel Couch was assigned to prosecute Mohamedou Ould Slahi, 

an alleged senior al-Qaeda operative who was charged with helping 

to assemble the Hamburg cell, which included the hijacker who piloted United Flight 175 into the South Tower of the World Trade 

Center. It was a case of personal importance to Colonel Couch. His 

old Marine buddy, Michael ‘‘Rocks’’ Horrocks, had been the pilot or 

the co-pilot on Flight 175. 

Nine months later, Colonel Couch made what he calls the toughest decision of his military career when he refused to proceed with 

the Slahi prosecution because he concluded that Mr. Slahi’s incriminating statements, the core of the Government’s case, had 

been taken through torture and were, therefore, inadmissible under 

U.S. and international law. 

Mr. Slahi was subjected to threats, mock executions, and beatings. On one occasion, he was shackled and blindfolded and taken 

for a boat ride in the waters off Guantanamo. He assumed he was 

going to be killed. 

His interrogators fabricated an official memorandum that purported to show that his mother was being transferred to Guantanamo and that officials had concerns about her safety, as the only 

woman amid hundreds of male prisoners. These facts and more are 

recounted in an article that appeared in the Wall Street Journal on 

March 31 of this year. 

11 

So where is this distinguished Marine hero? A Department of Defense—and I ask unanimous consent that it appear in the record 

at this point, without objection. 

[The information referred to follows:] 


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Mr. NADLER. So where is this distinguished Marine hero? The 

Department of Defense ordered him, that is ordered in the military 

sense, not to testify at this hearing today. 

Although we have asked the Department of Defense numerous 

times to confirm this order and the reasons for it, we have yet to 

receive the courtesy of a written confirmation. The only confirmation the Committee has received is a letter yesterday from Colonel 

Couch at 6:15 p.m. 

The letter reads as follows: ‘‘I regret to inform you that I have 

been advised by the Department of the Navy Office of Legislative 

Affairs that the Department of Defense has decided I cannot testify 

before the Subcommittee on the Constitution, Civil Rights and Civil 

Liberties oversight hearing scheduled for tomorrow. I have been 

advised that this decision was made by the Assistant Secretary of 

Defense for Legislative Affairs after consultation with the Department of Defense general counsel.’’ 

‘‘The directive not to testify was communicated to the Department of the Navy chief of legislative affairs, who advised me of it 

through official channels. Please be advised that I am willing to 

testify before the Subcommittee in the event I am allowed to do so 

by the Department of Defense.’’ 

I ask unanimous consent that Colonel Couch’s letter appear in 

the record at this point, without objection. 

[The information referred to follows:] 

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Couch.eps
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Mr. NADLER. So Colonel Couch’s chair remains empty today. I 

find it outrageous that the Administration has again chosen to 

stonewall an investigation into some very serious charges and the 

outlandish claim that torture—or whatever you want to call it—is 

legitimate and in our national interests. 

Colonel Couch was invited to appear in his personal capacity and 

to discuss matters that he has already discussed at public speeches 

and that have already appeared in the Wall Street Journal. These 

are not state secrets. 

I am very tired of the secrecy and stonewalling by this Administration. It is disgraceful that the Administration would allow Colonel Couch to make after-dinner speeches about the subject matter, 

to talk at length to the press about the subject matter, but prohibited from testifying before a duly constituted Committee of the 

Congress. 

It is disgraceful that the Congress and the American people must 

rely on leaks, lawsuits and Freedom of Information Act requests to 

find out what our own Government is doing. 

The issues before this Subcommittee today could not be more serious. And, once again, when important questions need to be answered, we are told that no one has the right to question the Administration. 

I can assure everyone that we will continue our work, that Colonel Couch will eventually be able to take a seat at the witness 

table. Indeed, it may very well be that we will invite the people or 

subpoena the people who ordered him not to testify to come here 

and explain why they did so. 

I regret that this honorable American who has served his Nation 

with such distinction has been treated so disgracefully by this Administration. 

And now I want to turn to the witnesses who are with us today. 

Your written statements will be made part of the record in its entirety. I would ask that each of you now summarize your testimony 

in 5 minutes or less. To help you stay within that time, there is 

a timing light at your table. When 1 minute remains, the light will 

switch from green to yellow and then red when the 5 minutes are 

up. 

Mr. FRANKS. Mr. Chairman? 

Mr. NADLER. Before we begin, it is customary for the Committee 

to swear in its witnesses. 

If you could please stand and raise your right hand to take the 

oath. 

Do you swear or affirm under penalty of perjury that the testimony you are about to give is true and correct, to the best of your 

knowledge, information and belief? 

Thank you. You may be seated. 

Let the record reflect that the witnesses answered in the affirmative. 

You may be seated. 

I recognize the distinguished Ranking Member at his request. 

Mr. FRANKS. Mr. Chairman, I could have done this in my question time, and I apologize, but I just wanted to ask unanimous consent to place the Wall Street Journal article explaining why Colonel Couch is not here today. 

19 

He was advised by William J. Haynes at the Pentagon that he 

is determined that, as a sitting judge and former prosecutor, it is 

improper for him to testify about matters still pending in the military court system, and that he was not to appear before the Committee today because he is a prosecutor in ongoing cases. And if 

that happened in civilian life, the same situation would occur. 

Mr. NADLER. Without objection, the article will be part of the 

record, although I will point out that it is interesting that that objection is made to his testimony here, but that objection is not 

made to his talking about the same matters to the Wall Street 

Journal or to after-dinner speeches and that a colonel, who was a 

senior prosecutor, should be judged completely able to know what 

he is allowed to say and what he is not allowed to say. 

[The information referred to follows:] 

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Mr. NADLER. The first witness is Mr. Nance. 

TESTIMONY OF MALCOLM W. NANCE, ANTI-TERRORISM/ 

COUNTER-TERRORISM INTELLIGENCE SPECIALIST, FORMER 

SERE INSTRUCTOR 

Mr. NANCE. Mr. Chairman and Members of the Committee, it is 

an honor to be here before you today. My name is Malcolm 

Wrighton Nance. I am a former member of the U.S. military intelligence community, a retired U.S. Navy senior chief cryptologic 

technician, Arabic interpreter. I have served honorably for 20 

years. 

While serving my Nation, I had the honor to be accepted for duty 

as an instructor at the U.S. Navy Survival, Evasion, Resistance 

and Escape School, SERE School, in North Island Naval Air Station California. I served in the capacity as an instructor and master training specialist in wartime prisoner of war, peacetime hostile 

government detainee, and terrorist hostage survival programs. 

At SERE, one of my most serious responsibilities was to employ, 

supervise or witness dramatic and highly kinetic coercive interrogation methods through hands-on, live demonstrations and a simulated captive environment, which inoculated our students to the experience of a high-intensity stress and duress. 

Some of these coercive physical techniques have been identified 

in the media as enhanced interrogation techniques. The most severe of those employed by SERE was waterboarding. 

Within the four SERE schools and the Joint Personnel Recovery 

community, the waterboard was rightly used as a demonstration 

tool that revealed to our students the techniques of brutal authoritarian enemies. SERE trained tens of thousands of servicemembers 

of its historical use by the Nazis, the Japanese, the North Koreans, 

Iraq, the Soviet Union, the Khmer Rouge, and the North Vietnamese. 

SERE emphasized that the enemies of democracy and rule of law 

often ignored human rights, defied the Geneva Conventions, and 

have subjected our men and women to grievous physical and psychological harm. We stressed that enduring these calumnies will 

allow our soldiers to return home with honor. 

The SERE community was designed over 50 years ago to show 

that, as a torture instrument, waterboarding is a terrifying, painful 

and humiliating tool that leaves no physical scars and which can 

be repeatedly used as an intimidation tool. Waterboarding has the 

ability to make the subject answer any question with a truth, a 

half-truth, or outright lie in order to stop the procedure. Subjects 

usually resort to all three, often in rapid sequence. 

Most media representations or recreations of the waterboarding 

are inaccurate, amateurish, and dangerous improvisations which 

do not capture the true intensity of the act. Contrary to popular 

opinion, it is not a simulation of drowning. It is drowning. 

In my case, the technique was so fast and professional that I 

didn’t know what was happening until the water entered my nose 

and throat. It then pushes down into the trachea and starts to 

process a respiratory degradation. It is an overwhelming experience 

that induces horror, triggers a frantic survival instinct. As the 

23 

event unfolded, I was fully conscious of what was happening: I was 

being tortured. 

Proponents claim that American waterboarding is acceptable because it is done rarely, professionally and only on truly deserving 

terrorists, like 9/11 planner Khalid Sheikh Mohammed. Media reporting revealed that tough interrogations were designed to show 

we had taken the gloves off and may also have led directly to prisoner abuse and murder in both Iraq and Afghanistan. 

The debate surrounding waterboarding has been lessons to a 

question of ‘‘he said, she said’’ politics, but I believe that some of 

it view it as now acceptable, and that is symptomatic of a greater 

problem. We must ask ourselves, has America unwittingly relinquished its place as guardian of human rights and the beacon of 

justice? 

Do we now agree that our unique form of justice, based on the 

concepts of fairness, honor, and the unwavering conviction that 

America is better than its enemies should no longer govern our intelligence agencies? This has now been clearly called into question. 

On the morning of September 11, at the green field next to the 

burning Pentagon, I was a witness to one of the greatest displays 

of heroism in our history. American men and women, both military 

and civilian, repeatedly and selflessly risked their lives to save 

those around them. At the same time, hundreds of American citizens gave their lives to save thousands in both Washington, D.C., 

and New York City. It was a painful day for all of us. 

But does the ultimate goal of protecting America require us to 

adopt policies that shift our mindset from righteous self-defense to 

covert cruelty? Does protecting America at all costs mean sacrificing the Constitution, our laws, and the Bill of Rights in order to 

save it? I do not believe that. 

The attacks of September 11 were horrific, but they did not give 

us the right to destroy our moral fabric as a Nation or to reverse 

a course that for 200 years led the world toward democracy, prosperity and guaranteed the rights of billions to live in peace. 

We must return to using our moral compass in the fight against 

al-Qaeda. Had we done so initially, we would have greater success 

to stamp out terrorist activity and perhaps would have captured 

Osama bin Laden long ago. 

And the rest of my statement is in the record. 

[The prepared statement of Mr. Nance follows:] 

PREPARED STATEMENT OF MALCOM W. NANCE

Chairman Conyers and members of the committee. 

My name is Malcolm Wrightson Nance. I am a former member of the US military 

intelligence community, a retired US Navy Senior Chief Cryptologic Technician, Arabic Interpreter. I have served honorably for 20 years. 

While serving my nation, I had the honor to be accepted for duty as an instructor 

at the US Navy Survival, Evasion, Resistance and Escape (SERE) school in North 

Island Naval Air Station, California. I served in the capacity as an instructor and 

Master Training Specialist in the Wartime Prisoner-of-War, Peacetime Hostile Government Detainee and Terrorist Hostage survival programs. 

At SERE, one of my most serious responsibilities was to employ, supervise or witness dramatic and highly kinetic coercive interrogation methods, through hands-on, 

live demonstrations in a simulated captive environment which inoculated our student to the experience of high intensity stress and duress. 

24 

Some of these coercive physical techniques have been identified in the media as 

Enhanced Interrogation Techniques. The most severe of those employed by SERE 

was waterboarding. 

Within the four SERE schools and Joint Personnel Recovery community, the 

waterboard was rightly used as a demonstration tool that revealed to our students 

the techniques of brutal authoritarian enemies. 

SERE trained tens of thousands of service members of its historical use by the 

Nazis, the Japanese, North Korea, Iraq, the Soviet Union, the Khmer Rouge and 

the North Vietnamese. 

SERE emphasized that enemies of democracy and rule of law often ignore human 

rights, defy the Geneva Convention and have subjected our men and women to 

grievous physical and psychological harm. We stress that enduring these calumnies 

will allow our soldiers to return home with honor. 

The SERE community was designed over 50 years ago to show that, as a torture 

instrument, waterboarding is a terrifying, painful and humiliating tool that leaves 

no physical scars and which can be repeatedly used as an intimidation tool. 

Waterboarding has the ability to make the subject answer any question with the 

truth, a half-truth or outright lie in order to stop the procedure. Subject usually resort to all three, often in rapid sequence. Most media representations or recreations 

of the waterboarding are inaccurate, amateurish and dangerous improvisations, 

which do not capture the true intensity of the act. Contrary to popular opinion, it 

is not a simulation of drowning—it is drowning. 

In my case, the technique was so fast and professional that I didn’t know what 

was happening until the water entered my nose and throat. It then pushes down 

into the trachea and starts the process of respiratory degradation. 

It is an overwhelming experience that induces horror and triggers frantic survival 

instincts. As the event unfolded, I was fully conscious of what was happening—I 

was being tortured. 

Proponents claim that American waterboarding is acceptable because it is done 

rarely, professionally and only on truly deserving terrorists like 9/11 planner Khalid 

Sheik Mohammed. Media reporting revealed that tough interrogations were designed to show we had ‘taken the gloves off.’ 

It also may have led directly to prisoner abuse and murder in both Iraq and Afghanistan. 

The debate surrounding waterboarding has been lessened to a question of he-said, 

she-said politics. But, I believe that as some view it as now acceptable, that it is 

symptomatic of a greater problem. 

We must ask ourselves, has America unwittingly relinquished its place as the 

guardian of human rights and the beacon of justice? Do we now agree that our 

unique form of justice, based on the concepts of fairness, honor, and the unwavering 

conviction that America is better than its enemies, should no longer govern our intelligence agencies? 

This has now been clearly called into question. 

On the morning of September 11, at the green field next to a burning Pentagon, 

I was a witness to one of the greatest displays of heroism in our history. American 

men and women, both military and civilian, repeatedly and selflessly risked their 

lives to save those around them. At the same time, hundreds of American citizens 

gave their lives to save thousands in both Washington DC and New York City. It 

was a painful day for all of us. 

But, does the ultimate goal of protecting America require us to adopt policies that 

shift our mindset from righteousness self defense to covert cruelty? 

Does protecting America ‘at all costs’ mean sacrificing the Constitution, our laws 

and the Bill of Rights in order to save it? I do not believe that. 

The attacks of September 11 were horrific, but they did not give us the right to 

destroy our moral fabric as a nation or to reverse a course that for two hundred 

years led the world towards democracy, prosperity and guaranteed the rights of billions to live in peace. 

We must return to using our moral compass in the fight against Al Qaeda. Had 

we done so initially we would have had greater success to stanch out terrorist activity and perhaps would have captured Osama bin Laden long ago. Shocking the 

world by bragging about how professional our brutality was counter-productive to 

the fight. There are ways to get the information we need. Perhaps less-kenetic interrogation and indoctrination techniques could have brought more Al Qaeda members 

and active supporters to our side. That edge may be lost forever. 

More importantly, our citizens once believed in the justness of our cause. Now, 

we are divided. Many have abandoned their belief in the fight because they question 

the commitment to our own core values. Allied countries, critical to the war against 

Al Qaeda, may not supply us with the assistance we need to bring terrorists to jusVerDate Aug 31 2005 15:46 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 H:\WORK\CONST\110807\38765.000 HJUD1 PsN: 38765
25 

tice. I believe that we must reject the use of the waterboard for prisoners and captives and cleanse this stain from our national honor. 

ATTACHMENT A 

Printed at Small Wars Journal 31 October, 2007 

(www.smallwarsjournals.com 

WATERBOARDING IS TORTURE . . . PERIOD

I’d like to digress from my usual analysis of insurgent strategy and tactics to 

speak out on an issue of grave important to Small Wars Journal readers. We, as 

a nation, are having a crisis of honor. 

Last week the Attorney General nominee Judge Michael Mukasey refused to define waterboarding terror suspects as torture. On the same day MSNBC television 

pundit and former Republican Congressman Joe Scarborough quickly spoke out in 

its favor. On his morning television broadcast, he asserted, without any basis in 

fact, that the efficacy of the waterboard a viable tool to be sued on Al Qaeda suspects. 

Scarborough said, ‘‘For those who don’t know, waterboarding is what we did to 

Khalid Sheikh Mohammed, who is the Al Qaeda number two guy that planned 9/ 

11. And he talked . . .’’ He then speculated that ‘‘If you ask Americans whether they 

think it’s okay for us to waterboard in a controlled environment . . . 90% of Americans will say ‘yes.’ ’’ Sensing that what he was saying sounded extreme, he then 

claimed he did not support torture but that waterboarding was debatable as a technique: ‘‘You know, that’s the debate. Is waterboarding torture? . . . I don’t want the 

United States to engage in the type of torture that [Senator] John McCain had to 

endure.’’ 

In fact, waterboarding is just the type of torture then Lt. Commander John 

McCain had to endure at the hands of the North Vietnamese. As a former Master 

Instructor and Chief of Training at the US Navy Survival, Evasion, Resistance and 

Escape School (SERE) in San Diego, California I know the waterboard personally 

and intimately. SERE staff were required undergo the waterboard at its fullest. I 

was no exception. I have personally led, witnessed and supervised waterboarding of 

hundreds of people. It has been reported that both the Army and Navy SERE 

school’s interrogation manuals were used to form the interrogation techniques used 

by the US army and the CIA for its terror suspects. What was not mentioned in 

most articles was that SERE was designed to show how an evil totalitarian, enemy 

would use torture at the slightest whim. If this is the case, then waterboarding is 

unquestionably being used as torture technique. 

The carnival-like he-said, she-said of the legality of Enhanced Interrogation Techniques has become a form of doublespeak worthy of Catch-22. Having been subjected 

to them all, I know these techniques, if in fact they are actually being used, are 

not dangerous when applied in training for short periods. However, when performed 

with even moderate intensity over an extended time on an unsuspecting prisoner— 

it is torture, without doubt. Couple that with waterboarding and the entire medley 

not only ‘‘shock the conscience’’ as the statute forbids—it would terrify you. Most 

people can not stand to watch a high intensity kinetic interrogation. One has to 

overcome basic human decency to endure watching or causing the effects. The brutality would force you into a personal moral dilemma between humanity and hatred. 

It would leave you to question the meaning of what it is to be an American. 

We live at a time where Americans, completely uninformed by an incurious media 

and enthralled by vengeance-based fantasy television shows like ‘‘24’’, are actually 

cheering and encouraging such torture as justifiable revenge for the September 11 

attacks. Having been a rescuer in one of those incidents and personally affected by 

both attacks, I am bewildered at how casually we have thrown off the mantle of 

world-leader in justice and honor. Who we have become? Because at this juncture, 

after Abu Ghraieb and other undignified exposed incidents of murder and torture, 

we appear to have become no better than our opponents. 

With regards to the waterboard, I want to set the record straight so the apologists 

can finally embrace the fact that they condone and encourage torture. 

HISTORY’S LESSONS IGNORED

Before arriving for my assignment at SERE, I traveled to Cambodia to visit the 

torture camps of the Khmer Rouge. The country had just opened for tourism and 

the effect of the genocide was still heavy in the air. I wanted to know how real torVerDate Aug 31 2005 15:46 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6621 H:\WORK\CONST\110807\38765.000 HJUD1 PsN: 38765
26 

turers and terror camp guards would behave and learn how to resist them from survivors of such horrors. I had previously visited the Nazi death camps Dachau and 

Bergen-Belsen. I had met and interviewed survivors of Buchenwald, Auschwitz and 

Magdeburg when I visited Yad Vashem in Jerusalem. However, it was in the S-21 

death camp known as Tuol Sleng, in downtown Phnom Penh, where I found a perfectly intact inclined waterboard. Next to it was the painting on how it was used. 

It was cruder than ours mainly because they used metal shackles to strap the victim 

down, and a tin flower pot sprinkler to regulate the water flow rate, but it was the 

same device I would be subjected to a few weeks later. 

On a Mekong River trip, I met a 60-year-old man, happy to be alive and a cheerful travel companion, who survived the genocide and torture . . . he spoke openly 

about it and gave me a valuable lesson: ‘‘If you want to survive, you must learn that 

‘walking through a low door means you have to be able to bow.’’’ He told his interrogators everything they wanted to know including the truth. They rarely stopped. In 

torture, he confessed to being a hermaphrodite, a CIA spy, a Buddhist Monk, a 

Catholic Bishop and the son of the king of Cambodia. He was actually just a school 

teacher whose crime was that he once spoke French. He remembered ‘‘the Barrel’’ 

version of waterboarding quite well. Head first until the water filled the lungs, then 

you talk. 

Once at SERE and tasked to rewrite the Navy SERE program for the first time 

since the Vietnam War, we incorporated interrogation and torture techniques from 

the Middle East, Latin America and South Asia into the curriculum. In the process, 

I studied hundreds of classified written reports, dozens of personal memoirs of 

American captives from the French-Indian Wars and the American Revolution to 

the Argentinean ‘Dirty War’ and Bosnia. There were endless hours of videotaped 

debriefings from World War Two, Korea, Vietnam and Gulf War POWs and interrogators. I devoured the hundreds of pages of debriefs and video reports including 

those of then Commander John McCain, Colonel Nick Rowe, Lt. Dieter Dengler and 

Admiral James Stockdale, the former Senior Ranking Officer of the Hanoi Hilton. 

All of them had been tortured by the Vietnamese, Pathet Lao or Cambodians. The 

minutiae of North Vietnamese torture techniques was discussed with our staff advisor and former Hanoi Hilton POW Doug Hegdahl as well as discussions with Admiral Stockdale himself. The waterboard was clearly one of the tools dictators and totalitarian regimes preferred. 

THERE IS NO DEBATE EXCEPT FOR TORTURE APOLOGISTS

1. Waterboarding is a torture technique. Period. There is no way to gloss 

over it or sugarcoat it. It has no justification outside of its limited role as a training 

demonstrator. Our service members have to learn that the will to survive requires 

them accept and understand that they may be subjected to torture, but that America is better than its enemies and it is one’s duty to trust in your nation and God, 

endure the hardships and return home with honor. 

2. Waterboarding is not a simulation. Unless you have been strapped down 

to the board, have endured the agonizing feeling of the water overpowering your gag 

reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word. 

Waterboarding is a controlled drowning that, in the American model, occurs under 

the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strapout team. It does not simulate drowning, as the lungs are actually filling with 

water. There is no way to simulate that. The victim is drowning. How much the 

victim is to drown depends on the desired result (in the form of answers to questions shouted into the victim’s face) and the obstinacy of the subject. A team doctor 

watches the quantity of water that is ingested and for the physiological signs which 

show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral. 

Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration—usually the person goes into hysterics on the 

board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead 

straight to terminal hypoxia. When done right it is controlled death. Its lack of 

physical scarring allows the victim to recover and be threaten with its use again 

and again. 

Call it ‘‘Chinese Water Torture,’’ ‘‘the Barrel,’’ or ‘‘the Waterfall,’’ it is all the 

same. Whether the victim is allowed to comply or not is usually left up to the interrogator. Many waterboard team members, even in training, enjoy the sadistic power 

of making the victim suffer and often ask questions as an after thought. These people are dangerous and predictable and when left unshackled, unsupervised or undetected they bring us the murderous abuses seen at Abu Ghraieb, Baghram and 

27 

Guantanamo. No doubt, to avoid human factors like fear and guilt someone has created a one-button version that probably looks like an MRI machine with high intensity waterjets. 

3. If you support the use of waterboarding on enemy captives, you support the use of that torture on any future American captives. The Small 

Wars Council had a spirited discussions about this earlier in the year, especially 

when former Marine Generals Krulak and Hoare rejected all arguments for torture. 

Evan Wallach wrote a brilliant history of the use of waterboarding as a war crime 

and the open acceptance of it by the administration in an article for Columbia Journal for Transnational Law. In it he describes how the ideological Justice Department lawyer, John Yoo validated the current dilemma we find ourselves in by asserting that the President had powers above and beyond the Constitution and the 

Congress: 

‘‘Congress doesn’t have the power to tie the President’s hands in regard to torture 

as an interrogation technique. . . . It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.’’ 

That is an astounding assertion. It reflects a basic disregard for the law of the 

United States, the Constitution and basic moral decency. 

Another MSNBC commentator defended the administration and stated that 

waterboarding is ‘‘not a new phenomenon’’ and that it had ‘‘been pinned on President Bush . . . but this has been part of interrogation for years and years and 

years.’’ He is correct, but only partially. The Washington Post reported in 2006 that 

it was mainly America’s enemies that used it as a principal interrogation method. 

After World War 2, Japanese waterboard team members were tried for war crimes. 

In Vietnam, service members were placed under investigation when a photo of a 

field-expedient waterboarding became publicly known. 

Torture in captivity simulation training reveals there are ways an enemy can inflict punishment which will render the subject wholly helpless and which will generally overcome his willpower. The torturer will trigger within the subject a survival 

instinct, in this case the ability to breathe, which makes the victim instantly pliable 

and ready to comply. It is purely and simply a tool by which to deprive a human 

being of his ability to resist through physical humiliation. The very concept of an 

American Torturer is an anathema to our values. 

I concur strongly with the opinions of professional interrogators like Colonel Stewart Herrington, and victims of torture like Senator John McCain. If you want consistent, accurate and reliable intelligence, be inquisitive, analytical, patient but 

most of all professional, amiable and compassionate. 

Who will complain about the new world-wide embrace of torture? America has justified it legally at the highest levels of government. Even worse, the administration 

has selectively leaked supposed successes of the water board such as the alleged 

Khalid Sheik Mohammed confessions. However, in the same breath the CIA sources 

for the Washington Post noted that in Mohammed’s case they got information but 

‘‘not all of it reliable.’’ Of course, when you waterboard you get all the magic answers you want—because remember, the subject will talk. They all talk! Anyone 

strapped down will say anything, absolutely anything to get the torture to stop. Torture. Does. Not. Work. 

According to the President, this is not a torture, so future torturers in other countries now have an American legal basis to perform the acts. Every hostile intelligence agency and terrorist in the world will consider it a viable tool, which can 

be used with impunity. It has been turned into perfectly acceptable behavior for information finding. 

A torture victim can be made to say anything by an evil nation that does not 

abide by humanity, morality, treaties or rule of law. Today we are on the verge of 

becoming that nation. Is it possible that September 11 hurt us so much that we 

have decided to gladly adopt the tools of KGB, the Khmer Rouge, the Nazi Gestapo, 

the North Vietnamese, the North Koreans and the Burmese Junta? 

What next if the waterboarding on a critical the captive doesn’t work and you 

have a timetable to stop the ‘‘ticking bomb’’ scenario? Electric shock to the genitals? 

Taking a pregnant woman and electrocuting the fetus inside her? Executing a captive’s children in front of him? Dropping live people from an airplane over the 

ocean? It has all been done by governments seeking information. All claimed the 

same need to stop the ticking bomb. It is not a far leap from torture to murder, 

especially if the subject is defiant. Are we willing to trade our nation’s soul for tactical intelligence? 

28 

IS THERE A PLACE FOR THE WATERBOARD?

Yes. The waterboard must go back to the realm of SERE training our operators, 

soldiers, sailors, airmen and Marines. We must now double our efforts to prepare 

for its inevitable and uncontrolled use of by our future enemies. 

Until recently, only a few countries considered it effective. Now American use of 

the waterboard as an interrogation tool has assuredly guaranteed that our service 

members and agents who are captured or detained by future enemies will be subject 

to it as part of the most routine interrogations. Forget threats, poor food, the occasional face slap and sexual assaults. This was not a dignified ‘taking off the gloves’; 

this was descending to the level of our opposition in an equally brutish and ugly 

way. Waterboarding will be one our future enemy’s go-to techniques because we took 

the gloves off to brutal interrogation. Now our enemies will take the gloves off and 

thank us for it. 

There may never again be a chance that Americans will benefit from the shield 

of outrage and public opinion when our future enemy uses of torture. Brutal interrogation, flash murder and extreme humiliation of American citizens, agents and 

members of the armed forces may now be guaranteed because we have mindlessly, 

but happily, broken the seal on the Pandora’s box of indignity, cruelty and hatred 

in the name of protecting America. To defeat Bin Laden many in this administration 

have openly embraced the methods of by Hitler, Pinochet, Pol Pot, Galtieri and Saddam Hussein. 

NOT A FAIR TRADE FOR AMERICA’S HONOR

I have stated publicly and repeatedly that I would personally cut Bin Laden’s 

heart out with a plastic MRE spoon if we per chance meet on the battlefield. Yet, 

once captive I believe that the better angels of our nature and our nation’s core values would eventually convince any terrorist that they indeed have erred in their 

murderous ways. Once convicted in a fair, public tribunal, they would have the rest 

of their lives, however short the law makes it, to come to terms with their God and 

their acts. 

This is not enough for our President. He apparently secretly ordered the core 

American values of fairness and justice to be thrown away in the name of security 

from terrorists. He somehow determined that the honor the military, the CIA and 

the nation itself was an acceptable trade for the superficial knowledge of the machinations of approximately 2,000 terrorists, most of whom are being decimated in Iraq 

or martyring themselves in Afghanistan. It is a short sighted and politically motivated trade that is simply disgraceful. There is no honor here. 

It is outrageous that American officials, including the Attorney General and a legion of minions of lower rank have not only embraced this torture but have actually 

justified it, redefined it to a misdemeanor, brought it down to the level of a college 

prank and then bragged about it. The echo chamber that is the American media 

now views torture as a heroic and macho. 

Torture advocates hide behind the argument that an open discussion about specific American interrogation techniques will aid the enemy. Yet, convicted Al Qaeda 

members and innocent captives who were released to their host nations have already debriefed the world through hundreds of interviews, movies and documentaries on exactly what methods they were subjected to and how they endured. In 

essence, our own missteps have created a cadre of highly experienced lecturers for 

Al Qaeda’s own virtual SERE school for terrorists. 

Congressional leaders from both sides of the aisle need to stand up for American 

values and clearly specify that coercive interrogation using the waterboard is torture 

and, except for limited examples of training our service members and intelligence 

officers, it should be stopped completely and finally —oh, and this time without a 

Presidential signing statement reinterpreting the law. 

Mr. NADLER. I thank the witness. 

Colonel Kleinman, you are recognized for 5 minutes. 

TESTIMONY OF STEVEN KLEINMAN, COLONEL, USAFR, INTELLIGENCE AND NATIONAL SECURITY SPECIALIST, SENIOR INTELLIGENCE OFFICER/MILITARY INTERROGATOR 

Mr. KLEINMAN. Mr. Chairman, Members of the Committee, I 

would like to begin by expressing my thanks for this unique opportunity and privilege to testify before you. 

29 

American policy on the interrogation of detainees is an exceptionally complex issue that cannot be adequately addressed absent a 

clear understanding of the vital elements involved. 

The challenge before us and the panel is then to respectfully 

offer for your consideration the sum total of our insights, concerns 

and recommendations that are informed by our collective professional experience. And at the end of the day, if we can advance a 

more thoughtful and objective examination of this matter, then our 

time shall have been worth it. 

It has been most unfortunate that the public debate about interrogation in general, and torture in specifics, has too often reflected 

emotion and unfounded presuppositions, rather than experience 

and rigorous study. Perhaps the most notable example of this has 

been the so-called ticking bomb scenario. 

As the parties argue the legal and moral implications of using coercive methods to extract information that, according to this scenario, would save thousands of lives, there has been erroneous presupposition that both sides seem far too willing to accept, and that 

is that coercive is ultimately an effective means of obtaining reliable intelligence information. This conclusion is, in my professional 

opinion, unequivocally false. 

Many Americans understandably are angry and seek revenge 

after the vicious attacks on 9/11, and they have therefore fallen 

prey to the presupposition that excessive physical, emotional, and 

psychological pressures are necessary to compel terrorists or insurgents to answer an interrogator’s question. 

Further, this form of interrogation has been viewed as an appropriate form of punishment that the detainees deserve for their malicious acts. Such beliefs are equally untrue. 

I believe it might be useful if I were to present a brief summation of what over 20 years of operational experience has taught me 

about the arcane discipline of interrogation. 

Interrogation is the systematic questioning of a detained individual who is thought to possess information of intelligence value. 

In instances where that individual resists questioning, the interrogator will seek to shape the nature of the relationship through the 

use of various principles of persuasion, many of which are little 

more than those highly adapted forms of those that we see in advertising campaigns on a daily basis. 

By carefully managing the competitive exchange of information 

in the often contentious relationship with a source, the interrogator 

seeks to obtain an operational constructive level of cooperation or 

accord, which often manifests itself and primarily manifests itself 

in the form of the source’s willingness to answer useful questions. 

While most interrogations bear absolutely no resemblance to that 

depicted on TV or in the movies, interrogation does, in fact, have 

many of the same qualities of virtual reality. Within this self-contained scenario, the interrogator plays a multifaceted role informed 

by fluency and interpersonal communications, human behavior, 

culture, linguistics, history, politics, negotiation theory and technology. 

And by skillfully blending this broad-based knowledge into a viable strategy, the interrogator seeks to gain access to the source’s 

accurate and comprehensive memory of personality, places, plans 

30 

and pursuit. Just as signals intelligence seeks to capture electronic 

emanations or imagery intelligence tries to capture photographic 

evidence, interrogation seeks to virtually capture the accurate and 

reliable memory a source might have on specific facts. 

So a key challenge that is often overlooked in interrogation is the 

fragility of human memory. The literature on eyewitness testimony 

testifies to that fact. 

My colleagues in behavioral sciences have cautioned me that a 

number of factors, including the excessive stress, insufficient sleep, 

and other environmental influences can result in substantial memory deficits. These are manifested not just in memory gaps, but in 

unattended fabrication. 

But this suggests that, after exposure to psychological, emotional, and physical stress, the source is more likely to report a 

combination of real and imagined facts, believing sincerely that 

both are true, but ultimately being sincerely wrong on many 

counts. From an intelligence perspective, this is exceptionally problematic. 

As an interrogator, I am also acutely interested in the efficacy 

of any strategy employed to secure a detainee’s cooperation, for obtaining the cooperation is key to exploring the full range of their 

knowledge ability. I cannot force a source to tell me what he 

knows, but I can foster a relationship where that source, to various 

degrees, is ready and willing to do so. 

I do so through a decision—or perhaps more accurately a series 

of decisions—that his interests will be best served by providing accurate and comprehensive answers to my questions. I have not broken him; that is an ill-defined and illusory term that does not at 

all describe what happens when an interrogator gains a source’s cooperation. 

Rather than effective interrogation unfolding as a string, rather, 

an interrogation does unfold as a string of breakthroughs through 

negotiations, and an understanding of conflicting perspectives and 

ultimately by earning their trust. And it may surprise many of the 

Members to find that trust, along with technical competence and 

enlightened cultural finesse, has proven to be the most effective 

means of getting reliable information. 

Coercion, in contrast, has been decidedly ineffective. It has been 

used as a result of our exposure to the communist interrogation 

model that unfolded after World War II and essentially scared the 

intelligence community. We performed diligent studies to understand how that model works, which was then transformed into a 

program of training with fear, but unfortunately that migrated into 

the repertoire of our terrorists. 

I have the rest of my testimony as submitted as written form. 

Thank you. 

[The prepared statement of Mr. Kleinman follows:] 

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PREPARED STATEMENT OF STEVEN M. KLEINMAN


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Mr. NADLER. Thank you. 

Ms. Singh, you are recognized for 5 minutes. 

TESTIMONY OF AMRIT SINGH, STAFF ATTORNEY, ACLU 

Ms. SINGH. Mr. Chairman and Members of the Subcommittee, it 

is an honor to be here today. 

My name is Amrit Singh. I am a staff attorney at the ACLU, the 

American Civil Liberties Union, and I am counsel to plaintiffs in 

the lawsuit ACLU v. Department of Defense, a Freedom of Information Act lawsuit challenging the withholding of documents by the 

Federal Government relating to the torture and abuse of prisoners 

held in United States custody abroad. 

While we continue to litigate the improper withholding of information, the FOIA lawsuit has forced the Government to publicly 

disclose more than 100,000 pages of its documents relating to the 

treatment of prisoners held in United States custody abroad, and 

I have personally reviewed all of these documents. 

Some of the key documents obtained through that litigation are 

collected in a book, ‘‘Administration of Torture,’’ which is available 

to the Committee. 

Three key sets of facts emerge from the FOIA documents that 

are collected and described in the book, ‘‘Administration of Torture.’’ First, Government documents demonstrate that an official 

interrogation policy that deviates from longstanding legal prohibitions on torture and cruel, inhuman and degrading treatment 

opens the door to widespread abuse and torture. 

This fact is evident from a comparison of the Abu Ghraib photographs leaked to the press in April of 2004 and the interrogation 

directives issued by Secretary Rumsfeld for use in Guantanamo 

Bay in December 2002. When the photographs were published, senior Administration officials insisted that the conduct depicted 

therein was that of rogue soldiers and that the abuse of prisoners 

was not a matter of policy. 

However, many of the Abu Ghraib photographs show the same 

kind of abusive methods—such as stress positions, the removal of 

clothing, and the exploitation of individual phobias, such as the 

fear of dogs—that Defense Secretary Donald Rumsfeld had earlier 

authorized for use on prisoners at Guantanamo Bay. 

Several other Abu Ghraib photographs depicted prisoners wearing women’s underwear on their head and being dragged across the 

floor on a leash. Those were the same methods that interrogators 

had applied on Guantanamo prisoner Mohamed al-Kahtani in the 

fall of 2002. 

Government documents similarly show that techniques such as 

stress positions, prolonged isolation, sleep and light deprivation, 

forced nudity, and intimidation with military dogs, all of which 

were authorized for use at Guantanamo Bay by Secretary Rumsfeld—also came to be used by interrogators in Afghanistan. 

While much of the widespread abuse described in Government 

documents reflect direct applications of authorized interrogation 

methods, some of this abuse is also attributable to force drift, a 

phenomenon described by former Navy General Counsel Alberto 

Mora, as a tendency for the escalation of force used to extract inforVerDate Aug 31 2005 15:46 Jul 29, 2008 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6601 H:\WORK\CONST\110807\38765.000 HJUD1 PsN: 38765
37 

mation once an initial barrier against the use of improper force has 

been breached. 

By issuing directives that violated laws requiring humane prisoner treatment and declaring that the gloves were off, senior officials in the chain of command in effect gave interrogators license 

to apply still more abusive variations of authorized enhanced interrogation methods. 

And autopsy reports received through the FOIA litigation confirm that force drift, in fact, did take place. The autopsy reports 

show that prisoners held in United States custody abroad in Iraq 

and Afghanistan were suffocated and beaten to death and subjected 

to torture under any definition of that term. 

Second, clinical descriptions of enhanced interrogation methods 

conceal the severity of the mental and physical damage caused by 

these methods. For example, in one Government document, an FBI 

agent describes the devastating consequences of interrogations in 

which military personnel employed ‘‘environmental manipulation’’ 

techniques. Environmental manipulation refers to exposure to extreme temperatures. 

And the FBI agent observes, ‘‘On a couple of occasions, I entered 

interview rooms to find a detainee chained hand and foot in a fetal 

position to the floor, with no chair, food or water. Most times they 

had urinated and defecated on themselves and had been left there 

for 18 to 24 hours or more. On one occasion, the air conditioning 

had been turned so far down and the temperature was so cold in 

the room that the barefooted detainee was shaking with cold. On 

another occasion, the air conditioning had been turned off, making 

the temperature in the unventilated room probably well over 100 

degrees. The detainee was almost unconscious on the floor, with a 

pile of hair lying next to him. He had apparently literally been 

pulling his own hair out throughout the night.’’ 

Lawyers for Majid Khan, a Guantanamo detainee, have been 

barred from discussing the enhanced interrogation techniques applied on him and the torture that was he subjected to. At a minimum, Congress should seek a classified briefing with those lawyers to find out precisely what those enhanced interrogation methods entailed. 

And finally, seasoned FBI officials documented the position that 

enhanced interrogation methods are not only illegal, but they are 

also ineffective. In fact, FBI officials repeatedly told Defense Department officials that rapport-building methods were far more effective at producing reliable intelligence. 

In sum, the dangers associated with employing such methods are 

plainly evident from the Government’s own documents. I therefore 

urge you to ensure that all Federal agencies and their personnel 

comply with longstanding legal prohibitions on torture and cruel, 

inhuman and degrading treatment, and to enact legislation that 

would extend the application of the United States Army Field Manual to agencies other than the Defense Department, including the 

CIA. 

Thank you. 

[The prepared statement of Ms. Singh follows:] 

38 

PREPARED STATEMENT OF AMRIT SINGH


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Mr. NADLER. Thank you very much, Ms. Singh. 

Now, since Colonel Couch could not be with us, in lieu of his direct testimony, I will read into the record paraphrases of his testimony that he told the Wall Street Journal. And I will limit it to 

the customary 5 minutes for his testimony. 

‘‘When the Pentagon needed someone to prosecute a Guantanamo 

Bay prisoner linked to 9/11, it turned to Lieutenant Colonel V. Stuart Couch. A Marine Corps pilot and veteran prosecutor, Colonel 

Couch brought a personal connection to the job: His old Marine 

buddy was a co-pilot on United 175, the second plane to strike the 

World Trade Center on September 11, 2001.’’ 

‘‘But, 9 months later, in what he calls the toughest decision of 

his military career, Colonel Couch refused to proceed with the prosecution of Mr. Slahi. The reason: He concluded that Mr. Slahi’s incriminating statements, the core of the Government’s case, had 

been taken through torture, rendering them inadmissible under 

U.S. and international law. 

‘‘Colonel Couch had his own misgivings. On his first visit to 

Guantanamo in October 2003, he recalls preparing to watch an interrogation of a detainee when he was distracted by heavy metal 

music. Accompanied by an escort, he saw a prisoner shackled to a 

cell floor, rocking back and forth, mumbling as strobe lights 

flashed. Two men in civilian dress shut the cell door and told Colonel Couch to move along. 

‘‘ ‘Did you see that?’ he asked his escort. The escort replied, 

‘Yeah, it’s approved.’ Col. Couch says the treatment resembled the 

abuse he had been trained to resist if captured; he never expected 

Americans would be the ones employing it. 

‘‘The incident started keeping me up at night. I couldn’t stop 

thinking about it. 

‘‘Colonel Couch says he and his case investigator, an agent detailed from the Naval Criminal Investigative Service, began an 

‘under the table’ effort to find out what made Mr. Slahi ‘break’ 

after he’d suddenly begun to testify to all kinds of things after an 

extended period of not speaking. Colonel Couch says he was suspicious about the sudden change and felt he needed to know all the 

circumstances before bringing the case to trial. 

‘‘ ‘It was like Hansel and Gretel, following bread crumbs, Colonel 

Couch says. The agent spoke to intelligence officers and others with 

more direct knowledge, pursued documents with details of the interrogations, and passed his findings on to the prosecutor. What 

emerged, Col. Couch believed, was torture. 

‘‘Initially, Mr. Slahi said he was pleased to be taken to Guantanamo. ‘I thought, this is America, not Jordan, and they are not 

going to beat you,’ he told his detention hearing. But after Mr. 

Binalshibh named him as a top al-Qaeda member, ‘my life changed 

dramatically,’ Mr. Slahi said. 

‘‘Initially, Mr. Slahi denied having al-Qaeda connections, frustrating his interrogators. On May 22, 2003, an FBI interrogator 

said, ‘This was our last session; he told me that I was not going 

to enjoy the time to come.’ 

‘‘In the following weeks, Mr. Slahi said, he was placed in isolation, subjected to extreme temperatures, beaten and sexually humiliated. The detention board transcript states that at this point, 

47 

‘the recording equipment began to malfunction.’ It summarizes Mr. 

Slahi’s missing testimony as discussing ‘how he was tortured while 

here at Gitmo by several individuals.’ 

‘‘Mr. Slahi was put under more intense interrogation. On July 

17, 2003, a masked interrogator told Mr. Slahi he had dreamed of 

watching detainees dig a grave, according to a 2005 Pentagon report into detainee abuse at Guantanamo. The interrogator said he 

saw ‘a plain, pine casket with Mr. Slahi’s identification number 

painted in orange lowered into the ground.’ Three days later, the 

interrogator told Mr. Slahi ‘that his family was incarcerated,’ the 

report said. 

‘‘On Aug. 2, an interrogation chief visited the prisoner posing as 

a White House representative named ‘Navy Captain Collins,’ the 

report said. He gave the prisoner a forged memorandum indicating 

that Mr. Slahi’s mother was being shipped to Guantanamo and 

that officials had concerns about her safety, as the only woman 

amid hundreds of male prisoners, according a person familiar with 

the matter. 

‘‘In his detention-board testimony, Mr. Slahi provided further details, as did other people familiar with the matter. Two men took 

a shackled, blindfolded Mr. Slahi to a boat for a journey into the 

waters of Guantanamo Bay. The hour-long trip apparently led Mr. 

Slahi to think he was going to be killed and, in fear, he urinated 

in his pants. 

‘‘After making land, ‘two Arab guys’ took him away, beat him, 

and turned him over to a doctor who was not a regular doctor but 

part of the team,’ Mr. Slahi said. The doctor ‘was cursing me and 

telling me very bad things. He gave me a lot of medication to make 

me sleep,’ Mr. Slahi said. After two or 3 weeks, Mr. Slahi said, he 

broke, ‘because they said to me, either I am going to talk or they 

will continue to do this.’ ’’ 

And that is some of what Colonel Couch would have testified to, 

but unfortunately he couldn’t be here now. 

We have a vote on. And before we begin, I think it is a good time 

to recess the hearing now so the Members can go vote. 

We will do the first 5 minutes of questioning. We can still do that 

and get in the vote. 

And I will recognize, at his request, the Ranking Member, Mr. 

Franks, for 5 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman. I do appreciate the 

courtesy. 

Mr. Chairman, I guess the first thing that I want to try to say 

here is to remind everyone that torture, under the laws of the 

United States, is illegal and should be illegal. And even Mr. Schumer’s comments, when the word torture was used, those were his 

words, not mine. 

I do not support, nor will I ever support, torture by the United 

States. I think it is very important that we define those terms, and 

I commend the Chairman for the efforts here to define those terms 

specifically and in practice, because it is important that we know 

that. 

The reason that I have made statements supporting severe interrogations is because I truly seek only to protect the innocent in this 

country from being tortured, from being killed. And it is too bad 

48 

that we live in a world with the kind of evil that kneels someone 

down before a television camera and cuts their head off with a 

hacksaw while the victims scream for mercy. 

It is a tragedy that beggars description, and I wish it did not 

exist. Unfortunately, it does. And sometimes we have to take measures to protect the innocent that we do not like, and I find myself 

in that untenable position. 

I would ask the Committee here for a little bit of diplomatic immunity, because I have to deal with a subject here that is rather 

difficult for me to bring up, but I find it unfortunate that sometimes the tenor of this Committee hearing, in this particular situation, is to somehow couch the Administration and Republicans, in 

general, as being for torture and the other side being, somehow 

that they are trying to protect us, constitutionally and otherwise. 

And yet, Mr. Chairman, this is the Constitution Committee. This 

is the Committee dedicated to protecting the constitutional rights 

of Americans. And not once during this term have we even considered the personhood and protection of unborn children. 

And yet last Congress, we had a bill before the Congress that 

said that, if torturous techniques were used to abort a child, that 

the mother would be offered anesthetic for the child. And most of 

the Members of this Committee that voted on that voted against 

it, against allowing anesthetic for procedures that, if done to an 

animal, would be illegal. 

So in the context of this Committee hearing and this particular 

subject, it is kind of outrageous to me to see that somehow Republicans have suggested that we are for torture, because we are not. 

I wish the evil of jihadist terrorism did not exist in the world, and 

I would do anything to change that. 

But, unfortunately, we face a reality where it is an evil ideology 

dedicated to the destruction of the innocent and our way of life. 

And sometimes we have to do what is necessary within the bounds 

of human conduct to do what is necessary to stop them from torturing our citizens. 

Mr. CONYERS. Would the gentleman yield? 

Mr. FRANKS. Yes, sir, I would. 

Mr. CONYERS. You just compromised your statement just then by 

saying, first, you are unequivocally against torture and then sometimes you have to do what you have to do. 

Mr. FRANKS. I said within the bounds of human conscience, 

which I believe excludes torture, Mr. Chairman. And reclaim the 

time. 

So the bottom line here is that I am sorry that sometimes we 

have deal with such difficult subjects, and I am going to go ahead 

and refer to one of my questions here. I think I have said what I 

needed to say. 

Colonel Kleinman, do you agree or disagree with this statement, 

that in the event we were ever confronted with having to interrogate a detainee with knowledge of an imminent threat to millions 

of Americans then the decision to depart from standard international practices must be made by the President? Do you agree 

or disagree with that, sir? 

Mr. KLEINMAN. If I were to be an adviser on how that question 

would be most effectively answered, as an operational adviser, I 

49 

would say it would be unnecessary to conduct our affairs in a way 

that is outside the boundaries. 

From a purely operational perspective, the sum total of my experience strongly suggests—I would submit even proves—that the 

legal and moral concerns are almost immaterial, because what we 

need to do operationally to be effective is well within the boundaries. 

Mr. FRANKS. I appreciate the perspective. I just wanted to point 

out to the Committee, Mr. Chairman, that that was the statement 

made by Hillary Clinton to say how she would handle it if she were 

President. 

And I am just suggesting here that the situation, to draw lines 

between one party being for torture and another being against it, 

are unfair distinctions. We are all trying desperately to protect the 

innocent in this country, I hope, and to protect the hope of human 

freedom in the world. And, unfortunately, stopping jihadist terrorism must be part of it, and severe interrogations may be part 

of doing that. 

And we need to reject torture and do what is necessary within 

the bounds of human conscience to stop jihadist terrorism from torturing our citizens. 

And I yield. 

Mr. NADLER. I thank the gentleman. I would simply point out before we recess that nobody has said anything about the Republican 

Party with respect to torture. We have raised questions about some 

of the practices of the current Administration. 

It doesn’t mean that every Republican would do the same thing 

that some of the people in this Administration have done, but we 

are duty-bound to examine the practices of whoever the current Administration is, because that is our job as an oversight Committee. 

Mr. DAVIS. Will the Chair yield for one question or one brief comment? 

Mr. NADLER. Yes. 

Mr. DAVIS. Is Senator McCain a Republican? 

Mr. NADLER. I believe Senator McCain is a Republican, and he 

has certainly taken some interesting positions. 

We will now recess. We have 4 minutes and 28 seconds left on 

the vote. That should be enough to get us there. The Committee 

will recess, pending the vote. 

I urge the Members to return as soon as the vote is over so we 

can complete the questioning. Thank you. The Committee is in recess. 

[Recess.] 

Mr. NADLER. The hearing will be called back to order, and I 

thank the witnesses for indulging our having to go vote. 

The Chair will recognize himself for 5 minutes of questioning 

first. 

Mr. Nance, waterboarding has often been described in this debate as simulated drowning, which makes it sounds like it isn’t 

particularly severe and doesn’t have long-term effects. In your testimony, you said it is actual drowning. 

Do you agree with the characterization? I mean, how would you 

characterize waterboarding, as actual drowning, as simulated 

50 

drowning, as very severe, as torture, in the grey area? Talk about 

it. 

Mr. NANCE. Well, I characterize it—waterboarding is misnamed. 

It should not be called waterboarding. That is just the device that 

we use, and that torturers have used throughout history. It should 

be called the drowning torture and has been called the drowning 

torture in the past. 

Waterboarding is a process in which we introduce quantities of 

water into the sinul passage, into the throat, down into the esophagus, past the trachea, and then, with enough response by you 

choking, we will overcome your gag reflex and water over very 

large quantities. 

If I could just say, I heard that earlier that Khalid Sheikh Mohammed was waterboarded for 90 seconds. I estimate, by our 

standards, which is very rigid—we have very rigid control standards about how it is done. I won’t get into that, because it is classified. That is approximately nine cups or 79 ounces of water, 1.2 

gallons. 

Mr. NADLER. And how much of that would go into him, as opposed to splashing off his face? 

Mr. NANCE. Thirty percent to forty percent, but that depends on 

whether they give him an opportunity to ask any questions. And 

I would think on Khalid Sheikh Mohammed they probably 

wouldn’t. 

That is going into the system, and it is degrading his respiratory 

system. And that is why we have very strict controls and medical 

controls to ensure that the person doesn’t go into respiratory arrest. 

Mr. NADLER. When you say you have very strict controls, are you 

talking about when you are training or when they are actually 

doing this to somebody? 

Mr. NANCE. I am sorry, I can only speak to the training. 

Mr. NADLER. Okay. 

Mr. NANCE. I understand, but I don’t have it for fact, because it 

is probably a classified special access program. And at some future 

point, I am sure you will learn. But I understand that the controls 

that are being used are our controls from the SERE community, 

which means they are very rigid, which means a medical team and 

a medical doctor who is watching, who is actually controlling the 

rate of the process. 

Mr. NADLER. But this is actual water going into the person’s 

lungs? 

Mr. NANCE. Oh, yes. Oh, yes, sir. 

Mr. NADLER. And, now, if this is done for, let us say, 90 seconds, 

the example used by my colleague, Mr. Franks, and I think you 

mentioned for Khalid Sheikh Mohammed, is that severe? Is that 

torture? Is that 90 seconds isn’t much? I mean, how bad is 90 seconds? 

Mr. NANCE. Well, I think I have to couch that with the concept 

that, when we do it in simulated training, it is what we call stress 

inoculation. And the person knows that this is a training environment and they are being exposed to what a totalitarian nation 

would do. 

51 

When Khalid Sheikh Mohammed or some unwitting individual, 

whether it be an innocent person or an extremely guilty person, or 

whatever you have, that person has no idea what is about to happen to them. 

Mr. NADLER. So it is worse? 

Mr. NANCE. Oh, it is far worse. 

Mr. NADLER. Thank you. 

Now, let me ask you another question. We have been told repeatedly, and the Administration has said repeatedly, it cannot—what 

we do isn’t torture, but we can’t tell you what we do because that 

is classified, and it is classified because we cannot tell the enemy, 

al-Qaeda, et cetera, what interrogation techniques they will be exposed to, because they might train their people, and so exactly 

what interrogation techniques we will use must remain classified. 

Now, we have released hundreds of people that have been previously detained or imprisoned. Do you believe, is there any reason 

to believe, that they haven’t already shared the exact details of how 

they were interrogated or treated? In other words, is there any reason to believe that this isn’t already known, what we do, that what 

we do isn’t already known to al-Qaeda because of the people who 

have been released and have gone through this? 

Mr. NANCE. That is an excellent question, because I live between 

the United States and in the United Arab Emirates. I speak Arabic, and I watch local programming. Al Jazeera Arabic, and Al 

Arabiya, and other programs that come from the Middle East, including our own Al Hurra TV out of Iraq, have constantly playing 

interviews, recreations of prisoner who have been released from 

Guantanamo Bay, who have been released from Camp Bucca, released from Abu Ghraib. 

Mr. NADLER. So they are saying, ‘‘This is what the Americans 

do’’? 

Mr. NANCE. In great detail. As a matter of fact, I learned a few 

details that were, I thought at that time, classified from our procedures from SERE by watching Al Jazeera program on a prisoner 

talk about the exact techniques he was subjected to. 

Mr. NADLER. So you believe that when the Administration says 

they cannot tell us in open testimony or they cannot discuss the 

techniques that we use, lest it be known to al-Qaeda, that it is already known to al-Qaeda? 

Mr. NANCE. I believe it is known to al-Qaeda, but I believe 

also—— 

Mr. NADLER. Did you say known or unknown? 

Mr. NANCE. I believe it is known to al-Qaeda, but I also believe 

that there is no need in having to completely confirm everything. 

I believe there is a little validity to that, but right now the only 

people that appear to be in the dark is the American people. 

Mr. NADLER. Thank you. 

Colonel Kleinman, I am sure you are familiar with the Army 

Field Manual. 

Mr. KLEINMAN. Yes, sir, I am very much so. 

Mr. NADLER. Okay, let me ask you a question, and I need you 

to set aside for a minute any moral or legal concerns and also any 

other limits that might be imposed by the Army Field Manual. 

52 

If you were in a position where you knew with absolute certainty 

that no one would ever know what you had done, and you knew 

that the intelligence you needed to get was of urgent value, is there 

anything that you would, could or should do that would go beyond 

what is permitted in the Army Field Manual? 

Mr. KLEINMAN. Absolutely not, sir. Absolutely not. The wonderful 

point we are in—and I would like to try to expand on that, if I 

may—moral, legal and operational confluence all ends in one very 

narrow circle. And that is, what we need to do to adhere to legal 

concerns, what we need to do as a Nation that would be morally 

correct, and what I would need to do as an operator all falls in that 

same circle. 

There is not an approach, there is not a strategy, there is not a 

treatment that would even come close to violating Geneva Convention guidelines, or the Constitution of the United States, and certainly not the field manual on interrogation. We talk about rapport, 

but rapport is a very inexact term. There is a lot more to it. 

But, fundamentally, to answer your question directly, I would not 

need to do anything that would be prohibited by the field manual 

and still be very, very effective. 

Mr. NADLER. So would you support extending the Army Field 

Manual standards on interrogations, which the law now limits the 

Defense Department to—the law now says that the Defense Department cannot do anything in interrogations beyond the Army 

Field Manual. Would you think it a good idea, would you support 

extending this to all Government agencies, including the CIA? 

Mr. KLEINMAN. I believe, sir, that that would be a good first step, 

but only a first step. 

Mr. NADLER. Why would it not be adequate? What further should 

be done? 

Mr. KLEINMAN. The Army Field Manual reflects a lack of science 

when it comes to interrogation. It doesn’t reflect cutting-edge understanding of human behavior. It doesn’t understand the unique 

cultural nuance of interrogation. It is really a very simplified form. 

What we understand and what we are capable of doing, in terms 

of interrogation effectively—that, again, would be well within the 

spirit and the letter of any overriding regulation—far exceeds what 

is in the field manual. Having looked at the archives, really, the 

field manual is a summation of after-action reports put together of 

tactical interrogations in World War II, with no further embellishment, no advancement in the last 60 years. 

So when I say first step, it would be excellent because it sets a 

standard that we can all abide by and still be operationally effective, but the second step is to direct that the intelligence community, writ large, take further steps to professionalize this discipline, 

to identify what it is that we don’t know, what works well. We 

don’t even have a standard for what is effective. 

Mr. NADLER. Okay. I thank you. 

I will now recognize the distinguished Chairman of the full Committee, Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Thank you very much. 

I would like to ask each of you—who have made, by the way, excellent explanations of the phenomenon that we are dealing with— 

can we get on the record, is there anything that could be construed 

53 

as effective in waterboarding or coercive interrogation or torture, in 

trying to elicit intelligence information? What kind of reliability 

does your experience and the record show in that regard? 

Mr. NANCE. I can only, again, speak to the types of training environments that we have. Anything else I discussed would be of a 

classified nature. 

However, with that experience, it is clear that, in a coercive environment, the purpose of a resistor—and we have trained thousands 

of them—the purpose of a resistor is to stop the coercion, is to stop 

the pain of the interrogation. 

That person will do anything once pushed past their limit to resist, and that means, when pain is applied, they will open their 

mouths. What comes out, we have always trained is completely and 

totally unreliable. You have to have a very large data set to crosscorrelate all of that information. It may be a truth, a half-truth, or 

a complete lie and, again, or a combination of all of the above. 

Mr. CONYERS. Ms. Singh, do you have an impression about a response for my question? 

Ms. SINGH. Certainly. The documents the ACLU has received 

under the Freedom of Information Act demonstrate that FBI officials who were stationed at Guantanamo Bay, who were closely involved in observing the use of ‘‘SERE’’ methods and other harsh interrogation methods as offensive techniques, these FBI officials 

were of the opinion that those methods were not producing reliable 

intelligence. 

And that appears again and again in the documents. In fact, the 

FBI was so concerned about the harsh methods that the Defense 

Department was employing on Guantanamo prisoners that it decided to record its objections on paper. 

There is a May 2003 electronic communication that the FBI specifically put on the record in order to demonstrate that it specifically objected to Defense Department methods, not only because 

they were illegal, but also because they were ineffective. 

Mr. CONYERS. Thank you so much. 

Colonel Kleinman, how do you weigh in on this question? 

Mr. KLEINMAN. It is an excellent question, sir, and let me characterize it this way. There is two objectives that one can achieve in 

an interrogation. One is to win compliance; the other is to win cooperation. 

Compliance is forcing somebody do something that they would 

not normally want to do and, in some cases, it means against their 

own interests—the North Koreans, the North Vietnamese, for instance, having a POW admit to dropping chemical weapons on civilian populations, which we knew were not true, but through torture was forced to do that. 

That is misinformation. That is the antithesis of what we seek 

as intelligence officers. We want information of intelligence value. 

The second objective is winning their cooperation to various degrees, where they are able to provide reliable information, where 

I am able to explore the full range of their knowledgeability, not 

just exploring areas that I suspect they know about, but my experience has often found that a source knows far more than we could 

have possibly suspected and, without his cooperation, I can’t come 

close to getting there. 

54 

Mr. CONYERS. Do we have any information, witnesses, that we 

outsource torture to private contractors? Here we are in Iraq with 

more private military, more private people working with the army 

of occupation than there is Army. And so I am trying to find out, 

to what extent is that condoned by these private contractors? 

Mr. KLEINMAN. Well, sir, I think that addresses the larger issue 

about interrogation. Interrogation has been kind of, so to speak, 

the bastard stepchild of human intelligence. Having been a human 

intelligence officer for years doing the full spectrum, we often didn’t 

look, as interrogators, as truly HUMINTers. I had a colonel—— 

Mr. CONYERS. What did you call—what was the term that you 

used? 

Mr. KLEINMAN. I am sorry, human intelligence, HUMINTer, a 

human intelligence officer. 

Mr. CONYERS. Okay. 

Mr. KLEINMAN. Forgive me for the vernacular there. 

Mr. CONYERS. All right. 

Mr. KLEINMAN. I had a colonel when I was on active duty, and 

I was still a captain, who once told me that interrogation would be 

irrelevant in the 21st century because we would be able to satisfy 

our intelligence needs through technology or the nature of combat 

would be so violent there would be nobody to interrogate. 

We know now that not to be true, but we still have 18-, 19-, 20- 

year-olds talking to people who have advanced degrees, who are 

comfortable moving through multiple cultures, speak various languages, and understand American culture far better than we understand them. I am 50 years old. I have studied interrogation for 

over 25 years, and there is still more I could learn about it. 

Mr. CONYERS. Just let me close with this, Mr. Chairman, if I can, 

because Naomi Klein in The Nation has raised the question that 

the admission that the embrace of torture by U.S. officials long predates the Bush administration and has, in fact, been integral to 

U.S. foreign policy since the Vietnam War. 

Do you have any opinion on that, Ms. Singh? 

Ms. SINGH. I am not in a position to comment on the basis of the 

documentary record that the ACLU has obtained through the FOIA 

on that particular issue. 

Mr. CONYERS. Well, these are publications—I have got a bit of 

literature here that shows—you know, we go back to water torture 

in the early—it goes back thousands and thousands of years, but 

nobody talks about what was being done with it, for example, just 

since World War II, in all the military excursions and expeditions 

we have been on. 

What do you think, Colonel and Mr. Nance? 

Mr. KLEINMAN. Here is the heart of the problem we have with 

interrogation, is our lack of progress, our lack of bringing up—I call 

it the acme of skill within human intelligence. That means we need 

to—it is one of the most important, most difficult activities that an 

operations officer can undertake, to leave it to people with limited 

life experience, to leave it to contractors, to dumb it down, so to 

speak—is going to be wholly ineffective. 

Mr. CONYERS. Mr. Nance, did you want to comment before the 

Chairman closes this down? 

55 

Mr. NANCE. Yes. I think that, as a whole, I believe that until recently we have seen an only what I would call uncontrolled field 

expedient interrogations, which may have been done in Latin 

America and other environments. 

Mr. NADLER. Meaning that someone local decided to do something that wasn’t approved or ordered from higher up? 

Mr. NANCE. Yes, sir. And I am sure the colonel can speak more 

to the experiences of the human intelligence field as it is done at 

the company, battalion and division level. 

However, we can’t say that it wasn’t done, as we saw in the 

Washington Post article, which showed that field expedient interrogation being carried out in Vietnam. These are things that require 

discipline within the ranks, which require very experienced and 

honorable NCO corps and officer corps, which listens to their NCO 

corps. 

Those things will happen on the battlefield. However, what we 

are seeing now is a systematic process. And I don’t believe that 

that is the way that the system is supposed to work. 

Mr. CONYERS. Thank you so much. 

Mr. DELAHUNT. Would the gentleman yield, Mr. Conyers? 

Mr. CONYERS. Of course. Absolutely. 

Mr. DELAHUNT. And in response to your question about the use 

of outsourcing torture, I am forgetful as to whether you were 

present at the hearing that we conducted together, both myself and 

Mr. Nadler, as joint Committees. 

Mr. CONYERS. I was only there for part of it. 

Mr. DELAHUNT. Well, I think I am not misstating to say that, in 

the case of Maher Arar, a Canadian, he was detained and sent by 

our Government, over his objections and without informing Canadian authorities, to Syria, with a noted record of torture, particularly in areas of interrogation. 

Mr. NADLER. The gentleman’s time is expired. We are going to 

have to recess the Committee to take a vote. I ask the Members 

of the Committee to come back as soon as this one vote is completed. 

I thank the witnesses for their indulgence. 

The hearing is in recess. 

[Recess.] 

Mr. NADLER. I, again, thank the witnesses for indulging our voting. The hearing will resume. 

And the Chair recognizes the gentleman from Georgia for 5 minutes. 

Mr. DAVIS. The gentleman from Alabama will respond to the inquiry. 

Mr. NADLER. Alabama, I am sorry. Please do that. 

Mr. DAVIS. I will wait for Mr. Nance to get off the phone, because 

I had a question for Mr. Nance. He is trying to worry about his 

flight, so that doesn’t come out of my time. 

Let me, because we do have a series of votes going on, and the 

Chair wants to make sure that all of us who are here to get a 

chance to ask questions, let me briefly begin, Mr. Nance, with you 

and just tick off a few factual points. 

You testified in some detail about the graphic nature of what is 

called waterboarding and about the very invasive nature of it in a 

56 

controlled setting. If waterboarding is done the wrong way, could 

it kill somebody? 

Mr. NANCE. Yes, sir. It could quite easily kill someone. 

Mr. DAVIS. If waterboarding was done the wrong way—meaning, 

if it were misadministered—could it cause someone to have a seizure? 

Mr. NANCE. That is possible, sir. It could force them to go into 

respiratory arrest. That could—— 

Mr. DAVIS. Also cause brain damage, if it is done the wrong way? 

Mr. NANCE. Yes, sir, of course. 

Mr. DAVIS. And I make that point because, obviously, if 

waterboarding happens in the adrenaline-pumped setting of a real 

interrogation, if waterboarding happened in the context of an environment where there really was an effort to extract information, as 

opposed to a simulated practice technique, it strikes me that there 

is a significant, quantifiable risk that it could cause a loss of 

human life, which, frankly, does distinguish it from a variety of 

other coercive techniques. That point needs to be made. 

I want to make another observation and get the panel’s response 

to it. In my experience—and I have spent some time as a Federal 

prosecutor—I have spent some time as a criminal defense lawyer. 

And while I certainly have not dealt with these kinds of legal 

standards around interrogation in the context of terrorist events, I 

certainly have dealt with the constitutional standards that exist 

with respect to the fourth amendment, fifth amendment, sixth 

amendment, eighth amendment. 

Earlier, the Ranking Member was making some observations and 

the Chair was making observations about the importance of having 

a codified legal standard that defines what torture is. Let me talk 

about why it is significant to have that and why I think the Administration made a major error in resisting it. 

In my experience, wherever the legal standard sits, day in, day 

out, conduct by law enforcement officers often falls short of that. 

If you have a pristine legal standard, there are day in, day out 

abuses. So it stands to reason, if you lower the legal standard or 

make the legal standard more imprecise, that you will also have a 

lowering of the bar of conduct. 

Ms. Singh, you are nodding your head. I take it you agree with 

that? 

Ms. SINGH. Absolutely. Documents that we reference in our book 

and the FOIA documents confirm that Navy General Counsel 

Alberto Mora referred to this phenomenon as force drift. And once 

there is no longer a bright line rule, that gives personnel the impression that they have a license to do anything. 

And, in fact, we have one document that is also included, mentioned in my written testimony. It describes the homicide death of 

an Iraqi general in Iraq. The Iraqi general was asphyxiated to 

death. The autopsy report classifies the death as a homicide death, 

and the military interrogator who was reprimanded for the death 

defended the use of asphyxiation as a SERE method, as a close confinement method, and said it can be very effective. 

And this is a perfect example of how, once you deviate from longestablished prohibitions on torture and cruel, inhuman and degrading treatment, it can open the door to extreme versions of torture. 

57 

Mr. DAVIS. So an Administration that is resistant to defining torture is implicitly encouraging some level of abuse, isn’t it? 

Ms. SINGH. Certainly. 

Mr. DAVIS. The last observation I want to make, given the time 

constraint—this is a point that needs to be made, also—I certainly 

understand the observation I suspect Mr. Frank might make that 

al-Qaida doesn’t play by any sort of rules anyway, so having a rule 

standard that applies to them may be inapplicable. 

But I suspect that someday, somewhere America, or more likely 

one of our allies, such as Israel, will find itself in competition with 

a conventional military, whether it is the Iranian Revolutionary 

Guard or—in Israel’s case—perhaps the Syrian military or some 

paramilitary entity like Hezbollah. 

So I want the panel to comment on this last proposition. If the 

United States has set a pattern of torture-like conduct or conduct 

that is clearly, obviously torture, does it not create an incentive for 

an Iranian Revolutionary Guard or some other military around the 

world to engage in the same kind of conduct with respect to an 

American soldier or an Israeli soldier? 

Mr. NANCE. I would like to address that. I don’t think that it creates an incentive, sir. I think it creates a guarantee. I believe that 

we have given them and will give them a legal standard to employ 

enhanced interrogation techniques, not torture, to American 

servicemembers, should they be captured in the future. 

You can only do so much preparation of members of the Armed 

Forces, but they have to believe that there is something out there 

which is going to protect them. And I think it would be quite devastating if they were to find that our own definitions would be applied to them in captivity by other nations. 

Mr. DAVIS. Mr. Kleinman, do you and Ms. Singh agree with that, 

briefly? 

Mr. KLEINMAN. Yes, sir, I concur with Mr. Nance’s observation. 

I think I would characterize it this way, that if we lower the standard and the manner in which we handle, we treat detainees, then 

we create circumstances where others can do that to our servicemen and women with impunity. 

Mr. DAVIS. Or to our allies’ servicemen and women. 

Mr. KLEINMAN. Or to our allies, yes, sir. That is an important 

distinction, as well. 

Mr. DAVIS. Ms. Singh, do you concur? 

Ms. SINGH. I would concur. 

Mr. NADLER. The gentleman’s time is expired. 

The gentleman from Virginia is recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Nance, does anybody in the world outside of the United 

States think that waterboarding is not torture? 

Mr. NANCE. Not as far as I know, sir. 

Mr. SCOTT. Now, the definition of torture as it is said in press 

conference with this Administration is somewhat circular. We do 

not torture. If we did it, therefore what we did was not torture. 

How does what you understand the Administration definition to 

be differ from the definition in the Geneva Convention? 

Mr. NANCE. I can’t speak to the definition of torture in the Geneva Convention. Geneva Convention Article 17 states that a prisoner 

58 

can only be asked certain questions and cannot be done in a coercive environment. 

Mr. SCOTT. Colonel Kleinman, can you answer the question, how 

the articulated definition of torture differs from what the Geneva 

Convention directs? 

Mr. KLEINMAN. Yes, sir. I believe I can. Let me answer that from 

an operator’s perspective. It doesn’t enjoy the distance or the legal 

nuance. 

The question of determining what is torture, some people think 

that is the application of severe pain, as opposed to moderate or 

light pain, is an exceedingly imprecise calculation that is beyond 

the ability of any interrogator. So I have defaulted to the idea that 

the application of any force, whether it be psychological, physical 

or emotional, is beyond the standard of the Geneva Convention. 

Mr. SCOTT. Is a detectable physical injury a necessary element 

of torture? 

Mr. KLEINMAN. Absolutely not. 

Mr. SCOTT. Now, advocates have suggested there is a possibility 

that someday we might have a situation where torture might get 

information that would save some lives. Are you aware of any situation where that is actually occurred, Colonel? 

Mr. KLEINMAN. No, sir, I am not. 

Mr. SCOTT. The gentleman from Alabama mentioned the effect 

that being known as a Nation that tortures would have on our own 

troops. If we are known as a Nation that tortures people, would 

that increase or decrease the chance that we would be a target of 

terrorism? 

Mr. KLEINMAN. I believe that would increase our status or the 

size of the target, writ large, on this Nation. 

Mr. SCOTT. Torture is a crime. Who is subject to the criminal 

penalties in torture? Is it just the person that does the torture? Or 

can the officers that order it also be subject to criminal prosecution? 

Mr. KLEINMAN. The answer to that—the correct answer is that 

the officers in the chain of command who ordered that are the primary responsible party, but anybody who is party to it, condones 

it, supports it, enables it, or affects it is also guilty. 

Mr. SCOTT. How far up the chain of command can you go? 

Mr. KLEINMAN. That would be a legal nuance that I think I 

would rather defer to somebody better prepared to answer that. 

But I know, as a colonel of the United States Air Force, I would 

take responsibility for anybody under my command that conducted 

themselves in that manner. 

Mr. SCOTT. Ms. Singh, is there anything that happened at Abu 

Ghraib prison that would be considered torture by this Administration’s definition? 

Ms. SINGH. I would say that, under definitions enacted in the Detainee Treatment Act and the Military Commissions Act, what happened at Abu Ghraib amounted to torture. It amounted to the application of combinations of enhanced interrogation methods, such 

as stress positions, intimidation with military working dogs, prolonged isolation, removal of clothing. 

59 

And Navy General Counsel Alberto Mora has specifically commented on how not only the combination of these techniques, but 

also these individual techniques themselves can amount to torture. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. NADLER. I now recognize the gentleman from North Carolina 

for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. I don’t think I will take 

5 minutes. I just actually have one question. 

Is the term ‘‘torture,’’ is there some worldwide definition of it? I 

noticed Mr. Nance said that the Geneva Convention doesn’t really 

define it. I am trying to figure out whether there is somewhere I 

can go and look at an articulated, written definition of torture or 

whether, as the Administration would have us believe—and perhaps Mr. Frank, based on what I was hearing him say—is kind of 

like pornography. You can’t define it, but you know it when you see 

it, and therefore it is in the eye of the beholder. 

I guess that is what I am trying to get my arms around. Can the 

three of you kind of respond to that? And that is really the only 

question I have, because as long as it is not defined, it is subject 

to the perception of the beholder, I don’t know how we get beyond 

the point that we are at now with the Administration. 

Ms. SINGH. Well, as to the first part of your question, the Convention Against Torture, which was signed and ratified by the 

United States and then implemented into domestic legislation, was 

defined—the implementing legislation defines torture as severe 

mental or physical pain or suffering. 

So it does not—the statute that implements the Convention 

Against Torture does not specifically list particular acts that 

amount to torture, but I believe that that standard certainly is instructive for informing the Committee as to what kinds of methods 

could cause severe physical or mental pain and suffering. 

And as to whether torture is identified as torture in the eye of 

the beholder, I think there may be some truth to that, but certainly 

the logical implication would be that you must then have the information that the beholder has, at a minimum, in addition to the information that the person who is being tortured has about what it 

feels like to be tortured. And I believe that the Committee has 

heard testimony to that effect. 

Mr. KLEINMAN. I think, sir, let me put it this way. Having seen 

coercive techniques being used, having stopped them, having been 

present, I am quite sure—and I think Mr. Nance would agree with 

me—if a law were enacted that required 5 members of the executive branch and 5 members of the legislative branch, appointed or 

elected, to be present during any time we use torture or severe interrogation or enhanced interrogation, what term you want to use, 

and they had to watch that, be present and experience it, even vicariously, I think any discussion about the use of those methods 

would cease immediately. 

Mr. NANCE. I would like to make one comment which—— 

Mr. WATT. That, I take it, would be kind of a collective ‘‘you 

know it if you see it.’’ 

Mr. KLEINMAN. Yes, sir, absolutely. 

Mr. WATT. Okay, that is fine. 

60 

Mr. NANCE. I can’t speak to the definition with the level of preciseness that you might have asked the question. However, knowing who I am and knowing what we as members of the Armed 

Forces and the people who serve this country know, I believe that 

we do have a pretty precise moral compass within us. 

And I believe that simple things—and we are not talking about 

the proverbial withholding of Twinkies or your coffee in the morning. We are talking about acts and calumnies and things which are 

inflicted upon a human being which, even if they are our enemy, 

would overcome our sense of righteousness or justice and would 

force us to look away for that moment. I believe, once you get to 

that point, you are at torture. 

I have seen it. I have lived in the Middle East, operated in the 

Middle East my whole life, and served this Nation well in that regard. And I have met people who have been tortured, and I know 

it when I see it. And my moral compass is quite straight on that 

point. 

Mr. WATT. Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

And we have with us the gentleman from Massachusetts, who is 

a Member of the full Committee, not of the Subcommittee, who cochaired a hearing with this Subcommittee and was asked for the 

courtesy of asking questions. And without objection—— 

Mr. FRANKS. Mr. Chairman, I am afraid I have to—at the request of the Ranking Member, I respectfully object to the participation of a non-Subcommittee Member. House rules provide for the 

participation in hearings only by Members of that Committee or 

Subcommittee. 

Mr. NADLER. He is a Member of the Committee. 

Mr. FRANKS. He is not a Member of the Subcommittee, Mr. 

Chairman. House Rule 11 states that each Committee shall apply 

the 5-minute rule during the questioning of witnesses in a hearing 

until such time as each Member of the Committee who desires has 

had an opportunity to question each witness. 

Mr. NADLER. Very well. The Committee will now go into its second round of questioning. And if Mr. Delahunt will tell me, I will 

ask the questions for him. 

The Chair recognizes himself for 5 minutes. 

Mr. DELAHUNT. I would ask the Chair of the Committee—and I 

understand the predicament that the Ranking Member finds himself in. And I know him to be a man of integrity and a fair man. 

I think that the practice by the minority in this case is not conducive to healthy discourse on this and other issues. 

But I would ask the Chair, if the Chair would pose to Mr. Nance, 

who indicated that he had observed—— 

Mr. NADLER. The Chair recognizes himself for 5 minutes. 

My question is to Colonel Kleinman and Mr. Nance, two questions, one at a time. If intelligence professionals such as the two 

of you recognize that torture or enhanced interrogation techniques, 

whatever you want to call it, are ineffective, why are we doing it? 

Why does the Administration want to—forgetting the question of 

whether it is torture or enhanced interrogation techniques, if these 

techniques, beyond the Army Field Manual, are not necessary and 

ineffective, why does the Administration want to do this? 

61 

Mr. KLEINMAN. Sir, the comments made earlier by Congressman 

Franks, his concern resonates with me, and I am sure with Mr. 

Nance. His concern for the safety and security of the American people is foremost on his mind. 

But I would respectfully submit that the method to do it, the 

method to collect the information, the intelligence we need to protect the American people needs to be pursued in a completely different fashion. It is very unfortunate that individuals, even at the 

highest levels of this Government—about interrogation from a television show such as ‘‘24’’ or a detective series, or something they 

have seen on TV. 

Mr. NADLER. So are you saying, basically, that people in the 

upper reaches of Government are simply overruling the intelligence 

professionals because they think—although they may be wrong, 

they think it is an effective way to do it? Is that what your testimony is? 

Mr. KLEINMAN. Yes, sir. In my experience with talking to people 

who are experienced interrogators, with very, very few exceptions, 

they believe that heavy pressure, coercion, enhanced techniques, so 

forth, are ineffective. 

Mr. NADLER. Well, and, again, my question is, that being the 

case, if the interrogators, professionals being that this is ineffective, why are we doing it? And your answer is basically that the 

people in high reaches of Government, who are not personally familiar with this, have a belief from other sources that it is effective 

and give instructions in accordance with that belief? 

Mr. KLEINMAN. That would be my take on that, sir. Yes, sir. 

Mr. NADLER. Thank you. 

Mr. Nance? 

Mr. NANCE. I agree with that assessment in its entirety, sir. 

What we have is we have senior decision-makers who are not looking at the body of evidence, who are not looking at the corporate 

memory and information that is held within, certainly on the colonel’s side, the human intelligence side. 

And technically they are doing a form of what we call joking 

amongst the chiefs ‘‘Tom Clancy procedures.’’ They have chosen 

their procedures from popular media, and they have thought that 

it works in the book; therefore, it must work in real life. 

Mr. NADLER. And issued instructions accordingly? 

Mr. NANCE. Aye. 

Mr. NADLER. Thank you. 

And let me ask you one further question, both of you. The various techniques we have been talking about, the various techniques 

that you know to be used or that you have heard are being used— 

from waterboarding on down—what we are told is enhanced interrogation techniques. Are some of these techniques torture? 

I think both of you have said that waterboarding is torture. Is 

that correct? 

Mr. NANCE. Yes, sir. I think torture, again, in this instance, depending on the technique, it is a question of intent, duration and 

effect, once you have executed that procedure on that person. 

If you take a cup of coffee and you accidentally spill it on yourself, it is an accident. If you take a cup of coffee and you pour it 

62 

into the eyes or nostrils or hand of a person who is your prisoner, 

that is torture. 

So, therefore, something as simple as what we would call a stress 

position, which is a person posing in one way, once it makes that 

lactic acid buildup in your thigh muscles, you can make any man 

scream. Do that repeatedly and repeatedly and repeatedly, and you 

have taken a simple pose and turned it into a torture. 

Mr. NADLER. And these are things that the United States at 

present does or has done in recent years and has been labeled not 

to be torture? 

Mr. NANCE. I am not privy to whether those actual techniques 

are used in the special actions programs. 

Mr. NADLER. Colonel Kleinman? 

Mr. KLEINMAN. Sir, I would characterize torture as an activity 

that causes somebody to act against their interests based on physical, psychological or emotional pressure rather than a thoughtful 

decision making dynamic. 

And have I seen what I would describe as torture? Yes, sir. Have 

I stopped it? Yes, sir. 

We have the Zimbardo potential out there. Even in this room, 

you would be surprised. There is a small percentage of people who, 

given absolute power, will do the most horrific things. That is why 

we do need standards and why we do need legislation to codify it. 

Mr. NADLER. Which leads to my final question. One of my colleagues asked about torture standards and concerns about torture 

or what is torture, being in the eyes of the beholder. But the Army 

Field Manual does prohibit specific acts. It prohibits 

waterboarding. It prohibits hypothermia and overheating. It prohibits mock executions, among other things. 

So your testimony is that the Army Field Manual—well, we 

know the Army Field Manual makes certain standards clear. And 

it is your testimony, both you and Mr. Nance, that our standards 

ought to be clear and that torture is not in the eyes of the beholder, 

that we are to either use the Army Field Manual or some other, 

more strict—I think you said it should be an updated version? 

Mr. KLEINMAN. Yes, sir. The reason it says that is because it is 

an intelligence manual. It is teaching interrogators how to collect 

reliable intelligence, not how to win compliance or force people to 

do things, such as make propaganda. 

It doesn’t wish to address anybody’s moral compass or even an 

in-depth legal tome about it. It is just simply, operationally, is it 

effective or not? And torture is not an effective way of getting intelligence. That is why it is outlawed. 

Mr. NADLER. Okay. Thank you. My time is expired. I am going 

to recognize the distinguished Ranking Member for 5 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, we are dealing with a very difficult subject for all 

of us today, certainly for me. 

And I want all of the panelists to know that I have the deepest 

respect for their motivations here. Regardless of any disagreement 

I have with you, I think that each Member of this panel has shown, 

at least in my mind, that their intent is sincere and they want to 

do the right thing. 

63 

Having said that, Colonel Kleinman, you had mentioned a moment ago—and I tried to make a note of it, and I failed, but you 

mentioned about the definition related to torture being physical, 

psychological, emotional. Can you say that again? 

Mr. KLEINMAN. Yes, sir. I described torture as an activity that 

applies psychological, physical or emotional pressure to cause somebody to do something against their will. 

Mr. FRANKS. Boy. 

And, Mr. Nance, you defined it—you said it is depending on the 

intent, duration and effect of the activity? 

Mr. NANCE. Yes, sir, using the techniques that we were discussing. 

Mr. FRANKS. Okay, that is an important caveat, because, when 

a judge throws a journalist in jail to get them to, say, give a source, 

the intent is to get that person to talk. The duration may be a long 

time, and the effect may be that it gets him to talk. And you can’t 

possibly say that that is torture. It may be unfriendly, but it is not 

torture. 

And the physical, psychological and emotional pressure, these 

guys do that to me all the time? I have to sit here. That is physical. 

And the psychological pressure—the Chairman is pretty good to me 

most of the time, but there is emotional pressure on all of us. 

And I think therein lies the challenge, to define torture. And I 

want to define it; I absolutely believe that our laws against torture 

are well-placed. I emphasize, again, that torture is illegal; that if 

one of our people tortures someone, that they are subject to felony; 

and that if that person dies as a result of that torture, that they 

are subject to the death penalty. I have supported those things. 

And, ironically, the death penalty sometimes gets tangled up in 

this. We have the death penalty in this country not because we 

want to get revenge on bad guys, but because we want to keep 

them from doing it to other innocent people. And so I guess I am 

struggling here. 

But I think that, Colonel Kleinman, you probably make the 

strongest case here, and I think it really goes to the heart of everything that we are doing here. And I think you are wrong, sir, but 

I am going to try to give you the benefit of the doubt related to— 

I still believe you are wrong in that, you know, that severe interrogations don’t result, at times, in gaining critically important information. 

I know all the time when we are having even friendly discussions 

with a prisoner that he lies to us at times. The interrogator has 

to take the information and analyze it and create references to 

other known pieces of information to ascertain whether or not that 

there is any reliability there, whether it is information that is received under severe interrogation or just a friendly cup of coffee, 

you know? 

So I know that is difficult, but I will say to you that Khalid 

Sheikh Mohammed—I used the example—when the interrogators 

used severe interrogation, he began to reveal information after 

being quiet for months that helped authorities—and just to repeat 

myself—arrest at least six major terrorists, including some who 

were in the process of plotting to bringing down of the Brooklyn 

Bridge, bombing a hotel, blowing up U.S. gas stations, poisoning 

64 

American water reservoirs, detonating a radioactive dirty bomb, incinerating residential high-rise buildings by igniting apartments 

filled with natural gas, and carrying out large-scale anthrax attacks. 

These were all in the process of being plotted and planned to 

carry out. And we were able to learn that from this information 

that we gained from this evil terrorist. 

And if I were absolutely convinced that we could gain nothing to 

defend the innocents here, I would be on your side. But I am not 

convinced of that, and I don’t think the evidence supports that. 

So I am going to switch over here, what I have done earlier, instead of Senator Schumer, I am going to involve one of my heroes, 

Alan Dershowitz. Now, I say that, he is a fine man, but he certainly is confused in many cases, in my opinion. But he does have 

some questions that he asked. 

He is with Harvard Law School, and he wrote these questions in 

the Wall Street Journal yesterday. And here is what he wrote 

about those who would oppose confirming Judge Mukasey because 

of his unwillingness to support an absolute prohibition on 

waterboarding. 

He said, ‘‘Such people should be asked the direct question,’’ and 

this is the question I ask you. And I hope each one of you—there 

are three of them. I hope you will kind of make a note and give 

us your response. ‘‘Would you authorize the use of 

waterboarding’’—and these are his questions—‘‘or other nonlethal 

forms of torture if you believed that it was the only possible way 

of saving the lives of hundreds of Americans in a situation?’’ That 

is one question. 

He also asked, ‘‘Would you want your President to authorize extraordinary means of interrogation in such a situation? And if so, 

what means can we use?’’ 

And finally, Professor Dershowitz asked, ‘‘If not, would you be 

prepared’’—and this is a hard one for any of us, and I am not trying to trap you here, but if you are not—‘‘would you be prepared 

to accept responsibility for the preventable deaths of hundreds of 

Americans?’’ And that is the challenge that I am having here. 

So, Colonel Kleinman, I picked on you a lot here, so please go, 

sir. 

Mr. KLEINMAN. No, sir, you are asking very penetrating questions, and I appreciate it. And if I can’t answer them to your satisfaction, then I have made an error. 

I think Mr. Dershowitz’s questions have done nothing more than 

cloud the issue further, and it reflects his lack of understanding of 

the intelligence process behind it. Number one, there is a lot of 

‘‘ifs,’’ there is a lot of ‘‘whens.’’ 

Human intelligence, if you look back, for instance, in the Vietnam War, we had Vietcong who were alleged Vietcong. How were 

they alleged Vietcong? Because another rice farmer pointed them 

out, who happened to be a competitor in the rice market. 

There are cases, if they knew where a nuclear device was or if 

we could get the information and save thousands of lives and so 

forth, interrogation, like intelligence writ large, is a very imprecise 

process. 

65 

Going back to Khalid Sheikh Mohammed, what is reported in the 

papers, the things that you have enumerated, but also allegedly 

that he personally killed, tragically, the journalist Daniel Pearl, 

which evidence suggests that he was nowhere near the area at the 

time. 

So one as an intelligence officer has to ask, well, if he gave me 

these 5 bits of information, which are consistent with what we 

want to be true, and he has given us two or three that we can 

prove that are not true, again, as an intelligence officer, I have to 

wonder about the validity of the whole take. I can’t cherry pick. 

That is the challenge we have. 

Mr. FRANKS. Colonel, don’t you have that situation all the time? 

When you have someone in a prison, say, and you just come in and 

say, ‘‘Here, have a cup of coffee, let’s talk,’’ he is still physically and 

psychologically and emotionally pressured, because he is in prison. 

It is not a fun place. 

And he is having to be interviewed here. And if he has no fear 

of any danger to him, there is still all these elements. And you 

can’t know whether he is telling you the truth then or not, either. 

You can’t be sure that that is reliable. So do we do away with all 

interrogations completely? 

Mr. KLEINMAN. No, sir, not at all. And my statement—the question about how we define torture literally in a sound bite, I am unable to address that to my satisfaction, let alone yours. 

But in terms of using coercive methods—let us say the 

waterboarding. As an interrogator, part of what I am asked to do 

is ask questions. I am evaluating not just the answers I am getting, 

but how they are being asked. I am looking for a baseline of that 

individual, their behaviors. 

If suddenly they exhibit these stereodipities, these grooming behaviors, when I asked about activities in one town, but yet the rest 

of the time they are sitting with their hands folded in front of me, 

that doesn’t indicate that they are deceiving, but you look for these 

clusters, these groupings of behaviors. 

That makes me happen to think, when I get this area, it is sensitive, and he feels stressed, and that stress is manifested, in his 

case, in certain ways. If his hands are tied, if he is shivering, I 

don’t know if he is shivering because I am talking about something 

that is sensitive or because it is 45 degrees in his cell. 

It takes away a lot of my tools, a lot of my strategies as an interrogator when I use those coercive means. And, plus, again, as an 

interrogator, I am an intelligence interrogator. I don’t want to 

make them talk, because the question we have to keep asking ourselves, talk about what? 

I want them to tell me not truth, in the sense of what I believe 

is true, but what is really true. What is causing the insurgency? 

Why did they attack on 9/11? What other attacks may be coming? 

And a recruitment model, which really informs my approach, I 

have seen it is far more successful. I was sharing with my colleague on my left an example where I had an Iraqi general who, 

through developing a very profound rapport, answered all the questions I had in the areas that I thought he knew about. 

As I put my papers together in the evening, he said—I asked, as 

a good interrogator, ‘‘Is there anything else that you know that I 

66 

haven’t asked about?’’ And he asked, ‘‘Do you want know where the 

scud missiles are?’’ At that point, it was highly critical item, but 

we, based on his background, would never suspect that he would 

know it. 

Had I used coercion, had I threatened him, he would see, ‘‘Oh, 

the session is finally over?’’ ‘‘Do you know anything more?’’ ‘‘Absolutely not.’’ Instead, we had that, and I was able to go further. 

Mr. FRANKS. I understand. I am almost yellow here, Mr. Chairman. I will just leave a closing thought here. 

I recognize so much of what you are saying is absolutely true, 

Colonel. I just would suggest that sometimes, you know, in the case 

of Khalid Sheikh Mohammed, he was silent. And yet we were able 

to find information that probably saved an awfully large number 

of lives. 

And I know there are circumstances where it may work and circumstances where it isn’t, but I hate to tie the hands of those people who are doing the very best to protect the people on this Committee and the people out there that we love from having the tools 

necessary in a crisis situation, within the bounds of human conscience, to pursue. 

And with that, I yield back. 

Mr. NADLER. Thank you. The gentleman’s time has long since expired. 

I am going to ask—that is all right—I am going to ask two questions. And if he wishes, I will give the gentleman equal time again. 

Following up on Khalid Sheikh Mohammed, during his detention, 

Khalid Sheikh Mohammed provided information on the September 

11 attacks and on the structure and operations of al-Qaida. He also 

confessed to 31 other criminal plots, including involvement in killing Wall Street Journal reporter Daniel Pearl—and you observed 

that we have reason to believe he was nowhere near where that 

happened—and alleged plans to assassinate President Clinton, 

President Carter and Pope John Paul II. 

Questions and concerns have been raised about the reliability of 

the majority of these claims. According to former CIA analyst 

Bruce Riedel, ‘‘It is difficult to give credence to any particular area 

of this larger charge sheet that he confessed to, considering the situation he found himself in. Khalid Sheikh Mohammed has no prospect of ever seen freedom again, so his only gratification in life is 

to portray himself as the James Bond of jihadism.’’ 

Could you comment on that? Would you believe, given what you 

know and what he has confessed to, that the information we received from Khalid Sheikh Mohammed is wholly reliable, partially 

reliable, or we just don’t know? 

Mr. NANCE. It is interesting. I have been doing an operational 

study of the organization of al-Qaida internally since November 

2000. The book is still unwritten. And I have taken a look at some 

of the things that were said by Khalid Sheikh Mohammed. 

And speaking from the perspective of SERE, what I would see is 

that I have a person who has learned how to resist. He went 

through the initial process, and it appears that he decided to use 

what information he had, or thought of, or heard about, or fantasized in his cell to lessen the intensity of the operation—— 

67 

Mr. NADLER. And that makes his information reliable or unreliable or what? 

Mr. NANCE. It makes—well, I am certain that some of the—I am 

not certain. I can’t say with absolute certainty. I should caveat 

that. 

Mr. NADLER. You assume. 

Mr. NANCE. That some of the information that he has was time 

expiration. And he may have given up people who he felt that were 

absolutely of no use to him or the strategic objectives of the organization. Therefore, for the purposes of the interrogators, it would appear to be a gold mine. But for him and the al-Qaida organization, 

it was trash, which would allow them to carry out their future operations. 

Mr. NADLER. So in other words, your conclusion, based on what 

you know, is that we probably didn’t get much useful information 

from him? 

Mr. NANCE. I don’t know, sir. I don’t have all the information. 

The true treasures may be classified at this point. 

Mr. NADLER. Okay. One further question, Mr. Nance. You testified earlier that you observed numerous interviews of former prisoners who claimed that they were tortured by the United States, 

and you observed these interviews in Arabic on Middle Eastern television, on Al Jazeera, I think you said. 

Mr. NANCE. Yes. 

Mr. NADLER. Do you have any knowledge whether those broadcasts of former prisoners on Al Jazeera, talking about their experience being tortured by the United States, has that has a toll on 

public opinion of the United States in the region? Has it increased 

anti-American feelings? Has it increased—that it hurts not just our 

image, but more importantly the ability to recruit terrorists against 

us and so forth? 

Mr. NANCE. It is an excellent question. I have worked in the Middle East off and on for 26 years, and I have never met the intensity 

of the hatred of the policies and actions that these people believe 

that we do out of pure malice. And I sit there and I try with my 

heart to convince them that we are a people of good people and 

that this is not what we do, this is not who we are. 

Mr. NADLER. And the policies that they believe we are doing out 

of pure malice are what, the invasion of Iraq, torture? I mean, 

what are you referring to? 

Mr. NANCE. The first thing that will always come up in Abu 

Ghraib. 

Mr. NADLER. So torture. 

Mr. NANCE. And then Guantanamo Bay, and invariably go on to 

the invasion of Iraq, and then they will shift over to the Israeli 

bombing of Qana in southern Lebanon. And then they will come up 

with their 9/11 conspiracy theory. 

Mr. NADLER. But first it is Abu Ghraib, then it is torture, Guantanamo, then it is Iraq? And then—— 

Mr. NANCE. Yes, sir. We have wholly failed in our ability to influence them via information operations or through positive media 

portrayals of us, to the point where we are going to have decades 

of very hard work. 

68 

Mr. NADLER. And these are ordinary people? These are intellectual elites? I mean, what are you talking about, opinion leaders? 

Mr. NANCE. Oh, you would be quite surprised the number of even 

emirates, our allies, who will not say this in public, but when you 

get them around the shisha pipe, and you have a small chat with 

them and their families, all of these questions that I would get on 

the streets of Iraq, or the streets of Cairo, or the streets of Jordan 

I get from some of our allies. 

Mr. NADLER. And what do they—do they really think it is out of 

pure malice, we just like hurting people? I mean, why do they 

think we are doing these, from their point of view, terrible things? 

Mr. NANCE. Well, I would have to start a history of the Middle 

East course here to answer that question. 

Mr. NADLER. Okay, never mind. 

Thank you very much. 

I want to thank the witnesses. On behalf of the Subcommittee, 

I want to thank our witnesses for appearing here today and for 

your testimony on this very important question. 

Without objection, all Members have 5 legislative days to submit 

to the Chair additional written questions for the witnesses, which 

we will forward and ask the witnesses to respond to as promptly 

as you can, so that your answers may be made part of the record. 

Without objection, all Members will have 5 legislative days to revise and extend their remarks and to submit any additional material for inclusion in the record. 

And with that, and the thanks of the Chair, this hearing is adjourned. 

[Whereupon, at 12:52 p.m., the Subcommittee was adjourned.] 

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