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DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: 

ADMINISTRATION LAWYERS AND ADMINISTRATION INTERROGATION RULES (PART I) 

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 

SECOND SESSION 

MAY 6, 2008 

Serial No. 110–97 

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 

SEAN MCLAUGHLIN, Minority Chief of Staff and General 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 

MAY 6, 2008 

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 ............. 4 

WITNESSES 

Mr. David B. Rivkin, Jr., Partner, Baker Hostetler, LLP 

Oral Testimony ..................................................................................................... 10 

Prepared Statement ............................................................................................. 12 

Mr. David J. Luban, Professor of Law, Georgetown University Law Center 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 16 

Ms. Marjorie Cohn, Professor of Law, Thomas Jefferson School of Law, President, National Lawyers Guild 

Oral Testimony ..................................................................................................... 64 

Prepared Statement ............................................................................................. 66 

Mr. Philippe Sands, Professor of Law, University College London, Barrister, 

Matrix Chambers 

Oral Testimony ..................................................................................................... 83 

Prepared Statement ............................................................................................. 85 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 131 

(1) 

DEPARTMENT OF JUSTICE TO GUANTANAMO 

BAY: ADMINISTRATION LAWYERS AND ADMINISTRATION INTERROGATION RULES 

(PART I) 

TUESDAY, MAY 6, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 9:56 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Jerrold Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Nadler, Davis, Wasserman 

Schultz, Ellison, Scott, Watt, Cohen, Franks, Pence, Issa, and King. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. Without 

objection, the Chair is authorized to declare a recess of the hearing. 

Today’s hearing will begin the Subcommittee’s investigation of 

the role of Administration lawyers in formulating the rules for conducting interrogations. The Subcommittee has been investigating 

this Administration’s interrogation policies and will continue to do 

so. 

The Chair now recognizes himself for 5 minutes for an opening 

statement. Today’s hearing begins our inquiry into the role of Administration in the formulation of our interrogation policies. 

We have a distinguished panel of witnesses. Although shrouded 

in secret, even from Members of Congress who have the requisite 

security clearances to review it, and who have the constitutional responsibility to legislate and oversee it, the legal opinions issued by 

Administration lawyers have brought our Nation into international 

disrepute. 

How we got this point, what is the legal basis for these actions, 

and what are the asserted parameters of these policies, these are 

the subjects of this first in a series of hearings. 

The more information that becomes public, often in the press 

through leaks rather than through the congressional Committees 

with the constitutional duty to oversee it, the more disturbing it becomes. 

Yet at a recent hearing and in subsequent meetings, we have 

been told that we may not be privy even on a classified, non-public 

basis, to those legal opinions. What possible constitutional excuse 

2 

there can be for saying that the non-secrecy of legal opinions could 

jeopardize the national security of the United States is beyond me. 

This is totally unacceptable. So today we hear from experts in 

the field who will discuss what is known, or what the private investigations have been able to discern, and what the law says about 

that information. 

I do not believe that this Administration or any Administration 

has some independent authority to craft secret law and apply it. I 

do not believe that this Administration or any Administration is 

free of the checks and balances in the Constitution. 

I believe that we must and will get to the bottom of what has 

been done in our name, and what is being done. Torture is abhorrent. Whether done by the Taliban or by the Bush Administration, 

it is alien to our Nation’s values, our history and our laws. 

Secrecy and stonewalling will not change that. I hope a little 

sunlight will. I welcome our witnesses. I look forward to their testimony. 

I want to reiterate that this is the first in a series of hearings 

and that we will in subsequent hearings receive testimony from 

those individuals who played a central role in the formulation and 

the implementation of these policies. 

I yield back the balance of my time. I would now recognize for 

an opening statement our distinguished Ranking minority Member, 

the gentleman from Arizona. 

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

subject of detainee treatment was the subject of over 60 hearings, 

markups and briefings during the last Congress in the House 

Armed Services Committee alone, of which I am a Member. 

The subject of this hearing is a memorandum that has long since 

been withdrawn. That memorandum regarded an interrogation program on which Speaker Pelosi was fully briefed in 2002. And at 

that briefing, no objections were made by Speaker Pelosi or anyone 

else. 

According to the Washington Post, in September 2002, four Members of the Congress met for a first look at a unique CIA program 

designed to wring vital information from reticent terrorism suspects in U.S. custody. 

For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi, was given a virtual tour of the 

CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk. 

Among the techniques described, said two officials present, was 

waterboarding. On that day, no objections were raised. 

Mr. Chairman, let me be clear as I have done so in the past by 

saying that torture is already, and should be, illegal. I am against 

torture. 

Torture is banned by various provisions of the law, including the 

2005 Senate Amendment prohibiting the cruel, inhuman or degrading treatment of anyone in U.S. custody. 

But what of severe interrogations? Mr. Chairman, were we not 

to engage in severe interrogations which could save thousands or 

even millions of lives, we would have to ask ourselves if we were 

facilitating the maiming and torture of innocent Americans by letting terrorist suspects conceal their evil plans. 

3 

Severe interrogations are rarely used. CIA Director Michael Hayden has confirmed that despite the incessant hysteria by a few, the 

waterboarding technique, for example, has only been used on three 

high-level captured terrorists, the very worst of the worst of our 

terrorist enemies. 

Director Hayden suspended the practice of waterboarding by CIA 

agents in 2006. Before the suspension, he confirmed that his agency waterboarded 9/11 mastermind Khalid Shiekh Mohammed, Abu 

Zabeda and Abd al-Rahim al-Nashiri, and each for approximately 

1 minute. 

But who are these people, Mr. Chairman? When the terrorist 

Zabeda, a logistics chief of al-Qaida, was captured, he and two 

other men were caught building a bomb. A soldering gun was used 

to make the bomb was still hot on the table, along with the building plans for a school. 

John Kiriaku, a former CIA official involved Zabeda’s interrogation, said during a recent interview, ‘‘These guys hate us more than 

they love life. And so you are not going to convince them that because you are a nice guy and they can trust you, and that they 

have rapport with you that they are going to confess and give you 

their operations.’’ 

The interrogation of Zabeda was a great success, and it led to the 

discovery of information that led to the capture of terrorists, 

thwarted terrorist plans and saved innocent American lives. 

When a former colleague of Mr. Kiriaku asked Zabeda what he 

would do if he was released, he responded, ‘‘I would kill every 

American and Jew I could get my hands on.’’ 

The results of a total of 3 minutes of severe interrogations of 

three of the worst of the worst terrorists were of immeasurable 

benefit to the American people. CIA Director Hayden said that Mohammed and Zabeda provided roughly 25 percent of the information that the CIA had on al-Qaida from all human sources. 

Now we just need to kind of back up and thought about that. A 

full 25 percent of the human intelligence we have received on alQaida from just 3 minutes worth of a rarely used interrogation tactic. 

Mr. Chairman, I just want to repeat again, as I previously said, 

torture is banned under Federal law that prohibits the cruel, inhuman or degrading treatment of anyone in U.S. custody. The nonpartisan Congressional Research Service has concluded that ‘‘The 

types of acts that fall within cruel, inhuman or degrading treatment or punishment contained in the McCain Amendment may 

change over time and may not always be clear. Courts have recognized that circumstances often determine whether conduct, ‘‘shocks 

the conscience and violates a person’s due process rights.’’ 

Even ultra-liberal Harvard Law School Professor Alan 

Dershowitz agrees, as he wrote recently in the Wall Street Journal, 

‘‘Attorney General Mukasey is absolutely correct that the issue of 

waterboarding cannot be decided in the abstract. A court must examine the nature of the governmental interest at stake and then 

decide on a case by case basis. In several cases involving actions 

at least as severe as waterboarding, the courts have found no violations of due process.’’ 

4 

Much will be made today of a memorandum regarding severe interrogations authored by John Yoo, a former lawyer at the Office 

of Legal Counsel. But as Mr. Yoo himself said during a recent 

interview, ‘‘I didn’t want the opinion to be vague so that the people 

who actually have to carry out these things don’t have a clear line, 

because I think that that would be very damaging and unfair to 

the people who are actually asked to do these things.’’ 

These things, Mr. Chairman, are efforts to save thousands of innocent American lives. Now I expect Mr. Yoo’s name will be mentioned many times today, but the name of Senator Charles Schumer probably not so many times. 

But let us remind ourselves what Senator Schumer of New York 

said at an extended Judiciary Committee hearing on terror policy 

on June 8, 2004. And I wonder if they have the—can we start 

again? 

[Recording follows:] 

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 believed 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’s in the foxhole every day. 

[Recording ends.] 

Mr. FRANKS. Mr. Chairman, I wish so much that this was all just 

an academic discussion. But unfortunately, we now live in a post9/11 world with an enemy whose leader, Osama bin-Laden, has 

said, ‘‘It is our duty to gain nuclear weapons.’’ 

Mr. Chairman, I am afraid that one such tragedy will transform 

this debate in the worst kind of way. Two airplanes hitting two 

buildings took 3,000 lives and cost this Nation $2 trillion. 

If an atomic blast or some other weapon of mass destruction 

should ever be unleashed on this Nation, it would change our concept of freedom forever. And I just hope that we can transcend the 

partisanship and maintain our focus on that because there are still 

hours on the table left when we can prevent such a tragedy, I believe, if we realize that there are ways that we can combine human 

decency and a vigilant foreign policy an interrogation technique 

process to protect this country and the concept of freedom for future generations. 

And I yield back. 

Mr. NADLER. I thank the gentleman. I now yield for an opening 

statement to the distinguished Chairman of the full Committee, 

the gentleman from Michigan. 

Mr. CONYERS. Thank you, Mr. Chairman and Members of the 

Committee. This is an important investigation and hearing, and 

these are areas that, to my knowledge, we have not gone into before. 

5 

And while I appreciate Trent Franks’ statements, I will note for 

the record that I have never heard anyone on the other side quote 

Alan Dershowitz and Senator Schumer in the same breath. And 

maybe that is a great sign that we are beginning to work across 

the aisle. 

I am going to be looking for somebody on your side to quote, too. 

And this is a great way to start us off. 

But what brings us hear today are a couple of considerations. 

There are some memos—oh, and by the way, I am glad that Speaker Nancy Pelosi was cited also, but I didn’t see what she saw, and 

that is why we are here, to try to make sure that this Committee, 

the only Committee in the Congress that has oversight over the 

Constitution and the Department of Justice, presents a true and 

accurate picture of what has happened. And that is what we are 

looking for today is the truth. 

There are three memos. One, August 1, 2002, John Yoo and Jay 

Bybee at the Office of Legal Counsel to White House Counsel 

Alberto Gonzales, where we examine what is considered by many 

to be an extremely narrow definition of torture and an assertion 

that during the war, the President can take any act that he thinks 

necessary, reminding me of former President Nixon’s admonition 

that if the President does it, it must be legal. And third, this memo 

was withdrawn by the Department of Justice in 2004. 

The second document that I hope will be discussed is dated December 2, 2002, in which Secretary Rumsfeld approved interrogation methods for Guantanamo Bay. Department of Defense Counsel 

Jim Haynes recommended that he approve it. It included a legal 

memo or contribution from Diane Beaver, a lawyer at Guantanamo, but was something based perhaps as much on the August 

1, 2002 memo that I mentioned as well. 

The third memo is dated March 14, 2003, again from John Yoo 

at the Office of Legal Counsel to Jim Haynes at the Department 

of Defense, and was very similar—well, it was similar, but maybe 

even more extreme than the original August 2002 document. It was 

withdrawn by Jack Goldsmith in December. 

Now the questions that I hope will be discussed, what was the 

role of senior government lawyers such as David Addington and 

John Yoo in the creation and approval of these interrogation practices? Second, what do the witnesses think about the legal memos 

on interrogation that the department has released? These memos 

have been widely criticized. 

And by the way, did the lawyers who wrote them violate any of 

their legal obligations or ethical obligations? And this is quite a bit 

about lawyers. 

I was reading this morning from Jack Goldsmith, himself a 

former head of the Office of Legal Counsel. And he refers constantly to the many lawyers that were involved in developing the 

laws that we use to regulate ourselves against torture and terrorism. 

And I want people not to mistake the fact that I still recommend 

to many of the brightest young people that I meet that if they 

haven’t chosen a course of professional activity, become a lawyer. 

I don’t want them to be dismayed by anything that goes on this 

morning because I still feel that this is a very noble profession, notVerDate Aug 31 2005 10:50 Aug 08, 2008 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 H:\WORK\CONST\050608\42212.000 HJUD1 PsN: 42212
6 

ing that all of the witnesses are themselves members of various 

bars, as is almost everybody up here with the Committee. 

And so I too join warmly in welcoming our witnesses and look 

forward to an interesting discussion. 

That you, Chairman Nadler. 

Mr. NADLER. Thank you. In the interest of proceeding to our witnesses and mindful of our busy schedules, I would ask that other 

Members submit their statements for the record. Without objection, 

all Members will have 5 legislative days to submit opening statements for inclusion in the record. 

Mr. ISSA. Mr. Chairman—— 

Mr. NADLER. [continuing]. Ask questions of our witness, the 

Chair will recognize Members in the order of their seniority in the 

Subcommittee, alternating between majority and minority, provided that 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. Did someone—— 

Mr. ISSA. Mr. Chairman, we would ask that regular order be followed, although I think both of us are willing to abbreviate our 

opening statements. 

Mr. NADLER. [OFF MIKE] 

Mr. ISSA. We would ask for regular order of alternation, as you 

have begun, but would agree to abbreviate in order to get onto the 

witnesses. In other words, we are disagreeing with the unanimous 

consent, Mr. Chairman. 

Mr. NADLER. Well, the objection, first of all, is not timely, since 

unanimous consent was already approved—— 

Mr. ISSA. No, it was not approved. Mr. Chairman, it was not approved. We sought recognition. 

Mr. NADLER. [continuing]. Let me just say the following. Oh, is 

that a vote? No, it can’t be. Let me just say the following. We have 

a panel of witnesses, we have a busy morning before us, and the 

policy that I follow, or try to follow, is to give the opening statement for the Chairman and the Ranking Member, and if the Chairman and Ranking Members of the full Committee are here, to give 

them that courtesy and to ask all other Members to submit their 

statements for the record. 

If Mr. Smith were here, I would call upon him for an opening 

statement if he wanted to. But I don’t want to start getting into 

everybody giving opening statements because we will never get to 

the—— 

Mr. ISSA. I appreciate that, Mr. Chairman. But the rules of the 

House, once you go beyond your opening statement, provide for alternating to each Member there. And we did object to the unanimous consent I think for good and reasonable cause. I don’t think 

anyone is planning on making this long—— 

Mr. NADLER. I am not aware of that. I will move that opening 

statements be dispensed with at this point and that all Members 

be permitted to insert opening statements into the—— 

7 

Mr. ISSA. Mr. Chairman, I object to that. It is not a parliamentary allowed movement in that you have begun regular order, you 

have alternated. 

Mr. NADLER. [continuing]. I over—— 

Mr. ISSA. I am asking for a recorded vote. 

Mr. NADLER. A recorded vote. Let’s think about what we are having a vote on. 

Mr. ISSA. Perhaps you should check with the parliamentarian for 

the rules of the House. 

Mr. NADLER. We are getting them. 

Mr. ISSA. There are people in the audience who demand, Mr. 

Chairman, there are people in the audience that demand the right 

of the first amendment, free speech. We ask no less than the rights 

within the House, consistent with the right of free speech and 

equal access to the opinion that will be from the day, in addition 

to those that will be from the witnesses. 

Mr. NADLER. Parliamentarian informs us that it is subject to a 

motion. So the motion is that further opening statements be dispensed with, that Members have the opportunity to submit it for 

the record. All in favor, say ‘‘aye.’’ 

[A chorus of ayes.] 

Mr. NADLER. Opposed? 

Mr. ISSA. Hell no! 

Mr. NADLER. The motion is carried. 

Mr. ISSA. On that I asked for a recorded vote. 

Mr. NADLER. Recorded vote has been requested, the clerk will 

call the roll. Do we have a clerk? We will have a clerk call the roll 

in a moment. 

The CLERK. Mr. Chairman, 

Mr. NADLER. Aye. 

The CLERK. Mr. Chairman votes aye. 

Mr. Davis. 

[No response.] 

The CLERK. Ms. Wasserman Schultz. 

[No response.] 

The CLERK. Ms. Ellison 

Mr. ELLISON. Aye. 

The CLERK. Mr. Ellison votes aye. 

Mr. Conyers. 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers votes aye. 

Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott votes aye. 

Mr. Watt. 

[No response.] 

The CLERK. Mr. Cohen. 

[No response.] 

The CLERK. Mr. Franks. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks votes no. 

Mr. Pence. 

[No response.] 

The CLERK. Mr. Issa. 

8 

Mr. ISSA. No. 

The CLERK. Mr. Issa votes no. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King votes no. 

Mr. Jordan. 

[No response.] 

Okay, Mr. Chairman, I have four voting in the affirmative and 

three in the negative. 

Mr. NADLER. The motion is carried. 

Mr. ISSA. Mr. Chairman, a parliamentary inquiry. Is the Chairman of the full Committee a seated Member of this Committee or 

an ex-officio? 

Mr. NADLER. He is a voting Member. And the Ranking Member 

would have been a voting Member had he been here. 

Mr. ISSA. Okay. Mr. Chairman, I would ask only that staff provide us with both of those parliamentary decisions, one that the 

full Committee Chairman is in fact a voting, seated Member of the 

Committee—— 

Mr. NADLER. That is not a parliamentary decision. That is simply 

the Rules of the Committee, which you have. We will give you a 

copy if you want. 

Mr. ISSA. I don’t interpret them that way. But we will check and 

get back at a later day, and I am reserving a point of order as to 

the outcome of the vote relative to I do not believe that the—— 

Mr. NADLER. The gentleman’s reservation is noted. How we will 

get to our witnesses. I want to welcome our distinguished panel of 

witnesses today. 

The first witness is David Rivkin, Jr., who is a partner with the 

firm Baker Hostetler, where he is a member of the firm’s litigation, 

international and environmental groups. Mr. Rivkin, from 1993 to 

December 1999 was a member of Hunton & Williams law firm. 

Prior to returning to private practice in 1993, Mr. Rivkin was associate executive director and counsel of the President’s Council on 

Competitiveness at the White House. While there, he was responsible for the review and analysis of legal issues related to the regulatory review conducted by the council and the development and 

implementation of the first President Bush’s deregulatory initiatives carried out during 1991-1992. 

He simultaneously served as a special assistant for domestic policy to then Vice President Dan Quayle. Mr. Rivkin was associate 

general counsel to the U.S. Department of Energy 1990 to 1991. 

Mr. Rivkin served in the office of then Vice President George Bush 

as legal advisor to the counsel to the President and as deputy director of the Office of Policy Development, U.S. Department of Justice. 

Prior to embarking on a legal career, Mr. Rivkin served as a defense and foreign policy analyst, focusing on Soviet affairs, arms 

control, naval strategy and NATO related issues, and worked as a 

defense consultant to numerous government agencies and Washington think tanks. 

He received his J.D. from Columbia University School of Law in 

1985, a BSFS from Georgetown University in 1980, and a M.A. in 

Soviet affairs from Georgetown University in 1984. 

9 

David Luban joined the faculty of Georgetown University Law 

Center in 1997, coming from the University of Maryland’s Institute 

for Philosophy and Public Policy and its school of law. He received 

his B.A. from the University of Chicago and Ph.D. in philosophy 

from Yale University, and taught philosophy at Yale and Kent 

State University before moving to Maryland. 

He has held visiting appointments in law at Harvard, Stanford 

and Yale law schools and visiting appointments in philosophy at 

Dartmouth College in the University of Melbourne. In 1982, he was 

a visiting scholar at the Max Plank Institute in Frankfurt and 

Hamburg. 

In addition, Luban has been a fellow of the Woodrow Wilson 

International Center for Scholars and held a Guggenheim fellowship. He recently published ‘‘Legal Ethics and Human Dignity.’’ He 

writes on legal ethics, legal theory, international criminal law, just 

war theory and most recently, U.S. torture policy. 

Marjorie Cohn is a professor of law at Thomas Jefferson School 

of Law, where she has taught since 1991. She currently serves as 

the President of the National Lawyers Guild and is the author of 

the recently published ‘‘Cowboy Republic: Six Ways the Bush Gang 

Has Defied the Law.’’ 

She has been a criminal defense attorney at the trial and appellate levels for many years and was staff counsel to the California 

Agricultural Labor Relations Board. Professor Cohn is the U.S. representative to the executive committee of the Association of American Jurists. Professor Cohn received a B.A. from Stanford University and her J.D. from Santa Clara University School of Law. 

Philippe Sands is a British lawyer. Since January 2001, he has 

been professor of law at University College London, where he also 

directs the Center for International Courts and Tribunals. He has 

also taught in the United States as a visiting professor of law, first 

at Boston College Law School 1987 to 1991, and then at New York 

University Law School in 1992 to 1993. 

He has been a practicing member of the English bar and in 2003 

was appointed by the Lord Chancellor as the Queen’s Counsel. He 

regularly appears as counsel before the highest British courts, including the Court of Appeal and the House of Lords. 

Last month, Vanity Fair magazine published his article ‘‘The 

Green Light’’ on the role of the Administration’s most senior lawyers in developing new interrogation techniques for Guantanamo. 

The article drew on more detailed material from his book ‘‘Torture 

Team,’’ which has just been released this week. 

Before we begin, it is customary for the Committee to swear in 

its witnesses. If you would please stand and raise your right hands 

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? 

Let the record reflect that the witnesses answered in the affirmative. Thank you, and you may be seated. 

We will now hear from our—and now I will recognize the first 

witness, Mr. Rivkin, for 5 minutes. 

10 

TESTIMONY OF DAVID B. RIVKIN, JR., PARTNER, 

BAKER HOSTETLER, LLP 

Mr. RIVKIN. Thank you very much, Chairman Nadler, Chairman 

Conyers, Ranking Member Franks, Members of the Committee. It 

is a pleasure to appear before you and to make some brief remarks. 

Lynching lawyers or punishing lawyers, while popular in other 

spheres, including Shakespeare, has never appealed much to the 

legal profession. But it appears that there are a lot of folks willing 

to make an exception in this area with regard to the lawyers who 

advise President Bush and his national security team in the aftermath of 9/11. 

They have been subject to criticism that, in my view, borders on 

vilification by a lot of academics, lawyers and pundits. Their legal 

competence and ethics have been questioned and we even heard 

some suggestions that they should prosecuted for war crimes. 

Now I would submit to you, there is no doubt that many legal 

positions taken by Administration attorneys laying our fundamental legal architecture in this war that the Administration has 

adopted outrage activists and legal specialists. 

It should be pointed out briefly that in a series of cases beginning with Hamdi v. Rumsfeld, which is a 2004 Supreme Court 

case, the Supreme Court has upheld most of the key tenets of this 

legal architecture, namely that the United States is engaged in a 

legally recognized armed conflict, that captured enemy combatants 

are not ordinary criminal suspects. They can be detained without 

criminal trial during hostilities and if the time comes, they may be 

punished with a military rather than a civilian justice system. 

The court has, of course, also required that detainees be given access to an administrative hearing to challenge their classification 

as enemy combatants and reserve some rights for themselves to be 

involved in this process, although the precise parameters of that 

role are still being litigated. 

Most controversial, of course, have been the Bush Administration’s insistence that the Geneva Convention has limited, if any, 

application to al-Qaida and to—and the Administration’s authorization of aggressive interrogation methods, including at least three 

cases of waterboarding, or simulated drowning. 

And in several legal memoranda that Chairman Conyers, particularly the 2002 and 2003 opinions mentioned earlier today, written by Mr. Yoo as deputy assistant attorney general for the Office 

of Legal Counsel, considered whether such methods can lawfully be 

used. 

These memoranda, some of which remain classified, probably not 

for long, explore the outer limits that are imposed on the United 

States by statute, treaties and customary international law. 

The goal, clearly, was to find legal means to give United States 

interrogators the maximum flexibility in interrogations while defining the point at which lawful interrogations ended and lawful torture begins. 

Now I realize that a number of the Administration’s positions 

have attracted—I am repeating myself—considerable criticisms. 

The questions that—and this is not surprising—the questions that 

the Administration’s lawyers sought to address, particularly dealVerDate Aug 31 2005 10:50 Aug 08, 2008 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6601 H:\WORK\CONST\050608\42212.000 HJUD1 PsN: 42212
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ing with interrogation, uncomfortable ones that did not sit well by 

21st century sensibilities. 

Many of the legal conclusions reached have struck people as 

being excessively harsh. Some of those conclusions have been watered down and retracted as a result of internal debate. 

While I would not defend each and every aspect of the Administration’s post September 11 legal policies, I would vigorously defend the merits of the whole exercise of asking difficult legal questions and trying to work through them without frankly not worrying about their reputations or subsequent career. 

To me, the fact that this exercise was undertaken attests to the 

vigor and strength of our democracy, of the Administration’s commitment to the rule of law in the most difficult circumstances. 

In this regard, I would point out the—by democratic allies have 

ever engaged in similar circumstances and that is probing and 

searching legal exegeses. 

So I would strongly defend the overarching legal framework chosen by the Administration. I certainly disagree with the proposition 

that the lawyers can be held accountable, even if they were wrong, 

with regard to their decisions. I think they acted in good faith. I 

think the overall legal analysis, while people can disagree with it, 

does have merits. 

To me, the effort to go after the lawyers borders, to put it mildly, 

on madness. These lawyers were not in any chain of command. 

They had no theoretical or practical ability to direct actions of anyone who engaged in abusive conduct. 

Moreover, if we go too far down this path, what we are doing, 

with all due respect, is chilling the ability of any future President 

to obtain candidly legal advice, which unfortunately is in the postSeptember 11 environment, is essential. 

And let’s be candid about it. A lot of people claim that the lawyers involved just gleefully and improperly spoke truth to power. 

I would close by telling you it is a lot safer in a kind political environment and projected political environment to say no to power, to 

say no to everything because the people who said yes to power have 

been substantially penalized. 

A lot of them have not been confirmed. A lot of them are being 

threatened with prosecutions. Bar associations are investigating. 

This is not a comfortable position to be in, and that is not what 

we want to do as far as inculcating the ability, again, on future 

Presidents and Administrations to get candid legal advice. 

Thank you. 

[The prepared statement of Mr. Rivkin follows:] 

12 

PREPARED STATEMENT OF DAVID B. RIVKIN, JR. 


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Mr. NADLER. And thank you. I now recognize Mr. Luban for 5 

minutes. 

TESTIMONY OF DAVID J. LUBAN, PROFESSOR OF LAW, 

GEORGETOWN UNIVERSITY LAW CENTER 

Mr. LUBAN. Mr. Chairman, honorable Committee Members, I 

would like to thank you for inviting me to testimony here today. 

I am a law professor who specializes in legal ethics, and I expect 

that that is the reason that I was asked to come and testify. 

I want to start by recalling for you an episode from Jack Goldsmith’s memoirs. Mr. Goldsmith, as you know, headed Justice Department’s Office of Legal Counsel in 2003 and 2004. When he 

joined the office, he reviewed the well-known memos written by 

Mr. Yoo that Chairman Conyers referred to earlier. 

In the memoirs, he described the August 1, 2002 memo, which 

was written for civilian interrogators, in a very striking way. He 

calls it a ‘‘golden shield.’’ And what he meant by ‘‘golden shield’’ 

was that it reassured interrogators that the tactics they were using 

were legal. 

And Mr. Goldsmith found himself in the tough position of withdrawing that golden shield memo and the other for military interrogators, the other golden shield memo. He did not withdraw them 

because he was politically at odds with Mr. Yoo. He was on the 

same side as Mr. Yoo. He withdrew them because in his words, 

they had, ‘‘no foundation in prior OLC opinions or in judicial decisions or in any—law.’’ 

The golden shield turned out to be made of thin air. Interrogators were mislead and detainees may have suffered cruel and illegal treatment because of these memos. Now specifically, what was 

it that was wrong with the golden shield? 

Well, first, it claimed that inflicting pain isn’t illegal unless the 

pain reaches the level or organ failure or death. It claimed that enforcing laws against authorized interrogators is unconstitutional, 

and it claimed that you can justify torture as a form of self-defense. 

It is easy to see that under these standards, practically anything 

goes. The trouble was that none of this was actually the law. The 

golden shield ignored Supreme Court precedents, it misrepresented 

sources, and it pulled the organ failure definition out of a Medicare 

statute. 

Mr. Chairman and honorable committee Members, when a government lawyer writes a golden shield, it has to meet the gold 

standard. We should be confident that the lawyer is describing the 

law as it really is, not the law according to the lawyer’s own pet 

theories, and not the law as the client would like to be, no matter 

who the client is. Playing the law straight is the lawyer’s basic ethical obligation. 

I propose two principles for a government lawyer who is writing 

a legal opinion. First, the opinion should say the same thing that 

it would even if the lawyer thought that the client wanted just the 

opposite of what he knows that the client actually wants. That 

guarantees that you aren’t tailoring the opinion to reach some predetermined result. 

And second, the opinion should be able to stand the light of day. 

Now obviously, before opinions are publicized, some will have to 

16 

have sensitive intelligence information about sources or whatever 

redacted out. But there is absolutely no reason for an opinion interpreting the Constitution or a statute to be a state secret. 

Now what I am proposing here is nothing novel. Playing the law 

straight is traditional legal ethics. There is a common 

misperception that lawyers are always supposed to spin the law in 

their client’s direction. That is simply untrue. 

It is true that in a courtroom, lawyers are supposed to argue the 

interpretation of the law that most favors their client. The lawyer 

on the other side argues the opposite and the judge who hears that 

strong case put strongly by both sides can reach a better informed 

decision. 

But matters are completely different when the lawyer is giving 

a client advice about what the law means. Now there is nobody arguing the other side and there is no judge to sort it out. 

That is why legal ethics rules require that a lawyer advise or 

give an independent and candid opinion of what the law really requires, even if it is not what the client wants to hear. Lawyers 

sometimes have to say no to clients, and in its prouder days, OLC 

lawyers have said no to Presidents of the United States. 

Government lawyers have an awesome responsibility. OLC opinions bind the entire executive branch. No one elected its lawyers 

to do secret re-writes of the law, and that is the reason why those 

lawyers, more than others, have to be faithful to the law. Otherwise, the executive branch is governed by secret law written by activist lawyers instead of by Congress, and its governed by a secret 

constitution, not the Constitution that was written by the Framers. 

Now I don’t want to single out only Mr. Yoo’s opinions. In my 

written testimony, I explained that other government lawyers have 

written opinions on detainee treatment that also fall far short of 

the gold standard. 

I believe this Committee can do a great service by hearing testimony from the lawyers who wrote them and the military and CIA 

officers who relied on them to sort out the damage that these 

memos have done. 

I thank you. 

[The prepared statement of Mr. Luban follows:] 

PREPARED STATEMENT OF DAVID LUBAN

Mr. Chairman and Honorable Committee members, 

I’d like to thank you for inviting me to testify today. I am not here as an insider 

with new information to give you. I am a law professor who specializes in legal ethics. I’ve written textbooks and other books on the subject. As a scholar of legal ethics, I have closely studied the role that government lawyers played in approving 

harsh interrogations. That is what I am here to testify about. 

I want to start with a story. Jack Goldsmith headed the Justice Department’s Office of Legal Counsel in 2003 and 2004. Last year, he published his memoirs of that 

period. At one point, he describes an OLC memo on interrogation written before he 

joined the Office. He calls it a ‘‘golden shield’’ for interrogators. What he meant by 

‘‘golden shield’’ was that interrogators relied on its assurance that the harsh tactics 

they were using were legal. And Goldsmith found himself in the tough position of 

withdrawing that Golden Shield as well as a second OLC memo on interrogation. 

Goldsmith did not withdraw them because he was a political opponent of John 

Yoo, the lawyer who wrote them. He was on the same side. He withdrew them because, in his words, they had ‘‘no foundation in prior OLC opinions, or in judicial 

17 

1 Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration 

149 (2007); the reference to the ‘‘golden shield’’ is at page 162. 2 ABA Model Rules of Professional Conduct, Rule 2.1 (Advisor): ‘‘In representing a client, a 

lawyer shall exercise independent professional judgment and render candid advice.’’ 3 ABA Model Rules of Professional Conduct, Rule 2.1, cmt. [1]. 

4 Here I am referring to Mr. Yoo’s August 1, 2002 memorandum, which went out over Judge 

Bybee’s name, as well as the March 14, 2003 memorandum to Mr. Haynes, which went out over 

Mr. Yoo’s name. The arguments I discuss appear in both memoranda. 5The Levin Memorandum did not include this argument, but it also did not withdraw it. And 

an earlier, published, OLC opinion—presumably still in force—also makes the commander-inchief override argument. 

decisions, or in any other source of law.’’ 1 The ‘‘golden shield’’ turned out to be made 

of hot air. Interrogators were misled, and detainees may have suffered cruel and illegal treatment because of these memos. 

The Golden Shield found that inflicting physical pain isn’t illegal unless the pain 

reaches the level of organ failure or death; that enforcing laws against authorized 

interrogators is unconstitutional; and that self-defense can include cruelty to helpless detainees. It’s easy to see that under these standards, practically anything goes. 

The trouble was that none of this is really the law. The memo ignored inconvenient 

Supreme Court precedents, misrepresented sources, and pulled the ‘‘organ failure or 

death’’ standard out of a Medicare statute on emergency medical conditions. 

Mr. Chairman and committee members, when a trusted government lawyer writes 

a ‘‘golden shield,’’ it should meet the gold standard. We should be confident that the 

lawyer has described the law as it really is. Not the law according to the lawyer’s 

pet theories, and not the law as the client would like it to be, no matter who the 

client is. Lawyers sometimes have to say ‘‘no’’ to clients, and in its prouder days 

OLC lawyers have said no to presidents of the United States. Playing it straight 

is the lawyer’s most basic obligation. 

I would propose two rules of thumb for a government lawyer writing an opinion 

on what the law means. First, the opinion should say the same thing it would even 

if you imagine your client wants the opposite from what you know he wants. That 

guarantees that you are not tailoring the opinion to reach some predetermined result. Second, the opinion should be able to stand the light of day; otherwise, it’s 

probably wrong. Obviously, before being published, some opinions will have to have 

sensitive intelligence information redacted out. But there is no reason that an opinion about the meaning of the Constitution or the interpretation of law should be a 

state secret. 

There is a common misperception that lawyers are always supposed to spin the 

law in favor of their clients. That’s simply not true. It is true that in a courtroom, 

lawyers are supposed to argue for the interpretation of law that most favors their 

client. The lawyer on the other side argues the opposite, and the judge who hears 

the strongest case from both sides can reach a better decision. 

But matters are completely different when a lawyer is giving a client advice about 

what the law means. Now there is nobody arguing the other side, and no judge to 

sort it out. For that reason, legal ethics rules require the lawyer-advisor to give an 

independent and candid opinion of what the law really requires.2 The ABA emphasizes that ‘‘a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.’’ 3

This is common sense. Otherwise, clients might go to their lawyers to say, ‘‘Give 

me an opinion that says I can do what I want’’—and then duck responsibility by 

saying, ‘‘My lawyer told me it was legal.’’ Then we would have a perfect Teflon circle: the lawyer says ‘‘I was just doing what my client instructed’’ and the client says 

‘‘I was just doing what my lawyer approved.’’ 

Government lawyers have an awesome responsibility. OLC opinions bind the entire executive branch. They have the force of law inside that branch. The idea that 

unelected lawyers are writing secret legal opinions that spin the law makes a mockery of democratic government. It means the executive branch is governed by a secret 

constitution—a constitution written by activist lawyers instead of the constitution 

written by the Framers. 

Without getting too deeply into technicalities which, quite frankly, only a lawyer 

could love, let me summarize in a bit more detail just how spun the torture memos 

were.4 First of all, they argue for a near-absolute version of executive power—a 

version that says the Commander in Chief can override any law in the statute 

book.5 The effect of this argument is that a crime is not a crime if the Commander 

in Chief orders it. Mr. Yoo paints a picture of an imperial commander in chief beyond the law that would have made the Founding Fathers’ jaws drop in astonishVerDate Aug 31 2005 10:50 Aug 08, 2008 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 H:\WORK\CONST\050608\42212.000 HJUD1 PsN: 42212
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6My own review of the founding era debates reveals deep concern about possible presidential 

abuse of the standing army. David Luban, On the Commander-in-Chief Power, 60 S. Cal. L. Rev. 

(forthcoming). Recently, David J. Barron and Martin S. Lederman have exhaustively surveyed 

historical evidence from the founding of the republic to the present and found no trace of the 

commander-in-chief override idea until after the Civil War, and very little political or legal 

precedent for it since then (although the idea won some support within the academy). David 

J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the 

Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008); Barron & 

Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. 

Rev. 941 (2008). Their review of the original understanding appears in the first of these article 

at pages 772–800. 7Thus, his opinions do not mention the leading case Youngstown Sheet & Tube v. Sawyer, 

343 U.S. 579 (1952)(holding that the President’s commander-in-chief power did not permit him 

to seize steel mills during the Korean War); nor do they mention one of the earliest and clearest 

cases in which Congress constrained the president’s commander-in-chief power and the Supreme 

Court upheld it: Little v. Barreme, 6 U.S. 170 (1804)(upholding damages against a naval officer 

who, who during the undeclared ‘‘quasi-war’’ against France, had followed President Adams’s 

orders to seize ships sailing from French ports, contrary to Congressional restrictions). 8 United States v. Oakland Cannabis Buyers’ Coop, 532 U.S. 483, 490 (2001)(expressing doubt 

that a necessity defense exists in federal criminal law absent a statute providing it). 9See ABA Model Rules of Professional Conduct, Rule 3.1 (‘‘A lawyer shall not bring or defend 

a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact 

for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.’’); Rule 3.3(a)(2) (‘‘A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be 

directly adverse to the position of the client and not disclosed by opposing counsel.’’) 10The torture statute does require that severe mental suffering must be prolonged. 18 U.S.C. 

§ 2340(2). But the very fact that Congress included no parallel requirement in the same statute’s 

treatment of physical suffering shows, under ordinary interpretive methods, that it should not 

be read in. 

ment.6 In making this argument, Mr. Yoo simply ignored Supreme Court precedents 

reining in the commander in chief.7 In the same way, arguing for a necessity defense to the crime of torture, he ignored an inconvenient Supreme Court case decided just fifteen months earlier—an opinion that cast doubt on whether necessity 

defenses actually exist in federal law.8 And he ignored the Constitution itself: far 

from granting a ‘‘commander-in-chief override’’ of the laws, the Constitution requires 

the President to ‘‘take care that the laws are faithfully executed.’’ 

Second, as I mentioned earlier, he wrenches language from a Medicare statute to 

explain the legal definition of torture. The Medicare statute lists severe pain as a 

possible symptom of a medical emergency, and Mr. Yoo flips the statute and uses 

the language of medical emergency to define severe pain. This was so bizarre that 

the OLC itself disowned his definition a few months after it became public. It is 

highly unusual for one OLC opinion to disown an earlier one, and it shows just how 

far out of the mainstream Mr. Yoo had wandered. This goes beyond the ethical limits for a legal advisor. In fact, even in the courtroom there are limits to spinning 

the law: ethics rules forbid advocates from making frivolous legal arguments, or failing to disclose adverse legal authority.9

But it would be a mistake to focus only on Mr. Yoo. Mr. Levin’s replacement 

memo also takes liberties with the law. In particular, when the Levin Memo discusses the term ‘‘severe physical suffering’’ (which is part of the statutory definition 

of torture), it states that the suffering must be ‘‘prolonged’’ to be severe—and that 

requirement simply isn’t in the statute at all.10 Under that definition, of course, 

waterboarding would not be torture because people break within seconds or minutes. This is a perfect example of a legalistic definition that looks inconspicuous but 

in reality narrows the definition of torture dramatically. Notice that the quicker a 

technique breaks the interrogation subject, the less prolonged his suffering will be— 

so the harsher the tactic, the less likely it is to qualify as ‘‘torture.’’ It goes without 

saying that if Congress had written the statute that way, OLC lawyers would be 

bound to respect it in their opinion. But it should also go without saying that lawyers ought not to rewrite a statute to include language that is not there. 

Rather than continuing to dissect the arguments of these memos and others, I am 

attaching one of my publications that does so to this written testimony. It is titled 

‘‘The Torture Lawyers of Washington,’’ and it is a chapter in my book Legal Ethics 

and Human Dignity. My main point is that the torture memos take enormous liberties with the law and reach eccentric conclusions. 

The authors may believe their conclusions represent the law as it should be. But 

the job of a legal opinion is to advise the client on the law as it is. If that dissuades 

the client from doing something the client wants to do, so be it. In the words of the 

ABA, ‘‘Almost without exception, clients come to lawyers in order to determine their 

rights and what is, in the complex of laws and regulations, deemed to be legal and 

19 

11 ABA Model Rules of Professional Conduct, Rule 1.6, cmt. [2]. 

correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.’’ 11 The lawyer’s job is emphatically not to enable 

clients to defy law by interpreting it oddly. 

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Mr. NADLER. I thank you, and now I recognize Ms. Cohn for 5 

minutes. 

TESTIMONY OF MARJORIE COHN, PROFESSOR OF LAW, 

THOMAS JEFFERSON SCHOOL OF LAW, PRESIDENT, NATIONAL LAWYERS GUILD 

Ms. COHN. Thank you, Mr. Chairman. It is an honor and a privilege to testify on this critical issue. What does torture have in common with genocide, slavery, and wars of aggression? They are all 

‘‘jus cogens’’; that is Latin for ‘‘higher law,’’ or compelling law. 

This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation 

of a jus cogens prohibition. 

The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions and treaties. 

When the U.S. ratifies a treaty, it becomes part of American law 

under the Supremacy Clause of the Constitution. 

The Convention Against Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment says, ‘‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, 

internal political instability or any other public emergency may be 

invoked as a justification for torture.’’ 

Whether someone is a POW or not, he must always be treated 

humanely. There are no gaps in the Geneva Convention. 

The U.S. War Crimes Act and 18 USC Sections 818 and 3231 

punish torture, willfully causing great suffering or serious injury to 

body and health, and inhuman, humiliating or degrading treatment. The torture statute criminalizes the commission, attempt or 

conspiracy to commit torture outside the United States. 

The Constitution gives Congress the power to make laws, and 

the President the duty to enforce them. Yet President Bush, relying 

on memos by lawyers, including John Yoo, announced the Geneva 

Conventions did not apply to alleged Taliban and al-Qaida members, but torture and inhumane treatment are never allowed under 

our laws. 

Justice Department lawyers wrote memos at the request of Bush 

officials to insulate them from prosecution for torture. In memos 

dated August 1, 2002 and March 14, 2003, John Yoo wrote the DOJ 

would not enforce U.S. laws against torture, assault, maiming and 

stalking in the detention and interrogation of enemy combatants. 

What does the maiming statute prohibit? It prohibits someone 

with the intent to torture, maim or disfigure, to cut, bite or slit the 

nose, ear or lip, or cut out or disable the tongue or put out or destroy an eye, or cut off or disable a limb, or any member of another 

person, or throw or pour upon another person any scalding water, 

corrosive acid, or caustic substance. 

John Yoo said, ‘‘Just because the statute says, that doesn’t mean 

you have to do it.’’ That is a quote. 

In a debate with Notre Dame Professor Doug Cassel, You said 

there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person’s child. It depends on 

the President’s motive, Yoo said, not withstanding the absolutely 

prohibition on torture. 

65 

John Yoo twisted the law and redefined torture much more narrowly than both the torture convention and the U.S. torture statute. Under Yoo’s definition, you have to nearly kill the person to 

constitute torture. 

Yoo wrote that self-defense or necessity could be defenses to war 

crimes prosecutions, notwithstanding the torture convention’s absolute prohibition on torture in all circumstances. 

After the August 1, 2002 memo was made public, the DOJ knew 

it was indefensible. It was withdrawn as of June 1, 2004, and a 

new opinion, dated December 30, 2004, specifically rejected Yoo’s 

definition of torture and admitted that a defendant’s motives to 

protect national security won’t shield him from prosecution. 

The rescission of the prior memo is an admission by the DOJ 

that the legal reasoning in it was wrong. But for the 22 months it 

was in effect, it sanctioned and caused the torture of myriad prisoners. Moreover, as has been stated, the March 14, 2003 memo was 

later withdrawn by Jack Goldsmith. 

Yoo and other DOJ lawyers were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable their advice would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have 

died, many from torture. 

Yoo admitted recently that he knew interrogators would take action based on what he advised. Dick Cheney, Condolezza Rice, Donald Rumsfeld, Colin Powell, George Tenet and John Ashcroft met 

in the White House and micromanaged the torture by approving 

specific torture techniques such as waterboarding, which, contrary 

to what the Republican Congressman said, I believe it was Mr. 

Franks, constitutes torture. And that is widely known. It has been 

a standard torture technique. It has been considered torture since 

the Spanish Inquisition. 

Bush admitted he knew and approved of the actions of this Committee, this National Security Council principals committee. They 

are all liable under the War Crimes Act and the torture statute. 

Under the doctrine of command responsibility enshrined in our 

law, commanders all the way up the chain of command to the commander-in-chief are liable for war crimes if they knew or should 

have known they would be committed by their subordinates and 

they did nothing to stop or prevent it. 

The Bush officials ordered the torture after seeking legal cover 

from their lawyers. The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression. 

A select Committee of Congress should launch an immediate and 

thorough investigation of the circumstances under which torture 

was authorized and rationalized. The high officials of our government and the lawyers who advise them should be investigated and 

prosecuted by a special prosecutor independent of the Justice Department for their role in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of our 

laws. 

Thank you very much. 

[The prepared statement of Ms. Cohn follows:] 

66 

PREPARED STATEMENT OF MARJORIE COHN

What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. Jus cogens is Latin for ‘‘higher law’’ or ‘‘compelling 

law.’’ This means that no country can ever pass a law that allows torture. There 

can be no immunity from criminal liability for violation of a jus cogens prohibition. 

The United States has always prohibited the use of torture in our Constitution, 

laws executive statements and judicial decisions. We have ratified three treaties 

that all outlaw torture and cruel, inhuman or degrading treatment or punishment. 

When the United States ratifies a treaty, it becomes part of the Supreme Law of 

the Land under the Supremacy Clause of the Constitution. 

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, ‘‘No exceptional circumstances whatsoever, whether a 

state of war or a threat of war, internal political instability or any other public 

emergency, may be invoked as a justification for torture.’’ 

Whether someone is a POW or not, he must always be treated humanely; there 

are no gaps in the Geneva Conventions. He must be protected against torture, mutilation, cruel treatment, and outrages upon personal dignity, particularly humiliating 

and degrading treatment under, Common Article 3. In Hamdan v. Rumsfeld, the 

Supreme Court rejected the Bush administration’s argument that Common Article 

3 doesn’t cover the prisoners at Guantμnamo. Justice Kennedy wrote that violations 

of Common Article 3 are war crimes. 

We have federal laws that criminalize torture. 

The War Crimes Act punishes any grave breach of the Geneva Conventions, as 

well as any violation of Common Article 3. That includes torture, willfully causing 

great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment. 

The Torture Statute provides for life in prison, or even the death penalty if the 

victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States. 

The U.S. Army Field Manual’s provisions governing intelligence interrogations 

prohibit the ‘‘use of force, mental torture, threats, insults, or exposure to unpleasant 

and inhumane treatment of any kind.’’ Brainwashing, mental torture, or any other 

form of mental coercion, including the use of drugs, are also prohibited. 

Military personnel who mistreat prisoners can be prosecuted by court-martial 

under provisions of the Uniform Code of Military Justice. These include conspiracy, 

cruelty and maltreatment, murder, manslaughter, maiming, sodomy, and assault. 

In Filartiga v. Pen ̃a-Irala, the Second Circuit declared the prohibition against torture is universal, obligatory, specific and definable. Since then, every U.S. circuit 

court has reaffirmed that torture violates universal and customary international 

law. In the Paquete Habana, the Supreme Court held that customary international 

law is part of U.S. law. 

The Constitution gives Congress the power to make the laws and the President 

the duty to carry them out. Yet on February 7, 2002, President Bush, relying on 

memos by lawyers including John Yoo, announced that the Geneva Conventions did 

not apply to alleged Taliban and Al Qaeda members. Bush said, however, ‘‘As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a 

manner consistent with the principles of Geneva.’’ But torture is never allowed 

under our laws. 

Lawyers in the Department of Justice’s Office of Legal Counsel wrote memos at 

the request of high-ranking government officials in order to insulate them from future prosecution for subjecting detainees to torture. In memos dated August 1, 2002 

and March 18, 2003, former Deputy Assistant Attorney General John Yoo (Jay 

Bybee, now a federal judge, signed the 2002 memo), advised the Bush administration that the Department of Justice would not enforce the U.S. criminal laws 

against torture, assault, maiming and stalking, in the detention and interrogation 

of enemy combatants. 

The federal maiming statute makes it a crime for someone ‘‘with the intent to torture, maim, or disfigure’’ to ‘‘cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any 

member of another person.’’ It further prohibits individuals from ‘‘throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance’’ 

with like intent. 

Yoo said in an interview in Esquire that ‘‘just because the statute says—that 

doesn’t mean you have to do it.’’ In a debate with Notre Dame Professor Doug 

Cassell, Yoo said there is no treaty that prohibits the President from torturing 

someone by crushing the testicles of the person’s child. In Yoo’s view, it depends on 

67 

the President’s motive, notwithstanding the absolute prohibition against torture in 

all circumstances. 

The Torture Convention defines torture as the intentional infliction of severe 

physical or mental pain or suffering. The U.S. attached an ‘‘understanding’’ to its 

ratification of the Torture Convention, which added the requirement that the torturer ‘‘specifically’’ intend to inflict the severe physical or mental pain or suffering. 

This is a distinction without a difference for three reasons. First, under well-established principles of criminal law, a person specifically intends to cause a result when 

he either consciously desires that result or when he knows the result is practically 

certain to follow. Second, unlike a ‘‘reservation’’ to a treaty provision, an ‘‘understanding’’ cannot change an international legal obligation. Third, under the Vienna 

Convention on the Law of Treaties, an ‘‘understanding’’ that violates the object and 

purpose of a treaty is void. The claim that treatment of prisoners which would 

amount to torture under the Torture Convention does not constitute torture under 

the U.S. ‘‘understanding’’ violates the object and purpose of the Convention, which 

is to ensure that ‘‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’’ The U.S. ‘‘understanding’’ that adds the specific 

intent requirement is embodied in the U.S. Torture Statute. 

Nevertheless, Yoo twisted the law and redefined torture much more narrowly 

than the definitions in the Convention Against Torture and the Torture Statute. 

Under Yoo’s definition, the victim must experience intense pain or suffering equivalent to pain associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions will likely 

result. 

Yoo wrote that self-defense or necessity could be used as a defense to war crimes 

prosecutions for torture, notwithstanding the Torture Convention’s absolute prohibition against torture in all circumstances. There can be no justification for torture. 

After the exposure of the atrocities at Abu Ghraib and the publication of the August 1, 2002 memo, the Department of Justice knew the memo could not be legally 

defended. That memo was withdrawn as of June 1, 2004. A new opinion, authored 

by Daniel Levin, Acting Assistant Attorney General Office of Legal Counsel, is dated 

December 30, 2004. It specifically rejects Yoo’s definition of torture, and admits that 

a defendant’s motives to protect national security will not shield him from a torture 

prosecution. The rescission of the August 2002 memo constitutes an admission by 

the Justice Department that the legal reasoning in that memo was wrong. But for 

22 months, the it was in effect, which sanctioned and led to the torture of prisoners 

in U.S. custody. 

John Yoo admitted the coercive interrogation ‘‘policies were part of a common, 

unifying approach to the war on terrorism.’’ Yoo and other Department of Justice 

lawyers, including Jay Bybee , David Addington, William Haynes and Alberto Gonzalez, were part of a common plan to violate U.S. and international laws outlawing 

torture. It was reasonably foreseeable that the advice they gave would result in 

great physical or mental harm or death to many detainees. Indeed, more than 100 

have died, many from torture. 

ABC News reported last month that the National Security Council Principals 

Committee consisting of Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin 

Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture of terrorism suspects by approving specific torture techniques such 

as waterboarding. Bush admitted, ‘‘yes, I’m aware our national security team met 

on this issue. And I approved.’’ 

These top U.S. officials are liable for war crimes under the U.S. War Crimes Act 

and torture under the Torture Statute. They ordered the torture that was carried 

out by the interrogators. Under the doctrine of command responsibility, used at 

Nuremberg and enshrined in the Army Field Manual, commanders, all the way up 

the chain of command to the commander in chief, can be liable for war crimes if 

they knew or should have known their subordinates would commit them, and they 

did nothing to stop or prevent it. The Bush officials ordered the torture after seeking 

legal cover from their lawyers. 

But Yoo and the other Justice Department lawyers who wrote the enabling 

memos are also liable for the same offenses. They were an integral part of a criminal conspiracy to violate our criminal laws. Yoo admitted in an Esquire interview 

last month that he knew interrogators would take action based on what he advised. 

The President can no more order the commission of torture than he can order the 

commission of genocide, or establish a system of slavery, or wage a war of aggression. 

A Select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. 

The high officials of our government and their lawyers who advised them should be 

68 

investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their crimes. John Yoo, Jay Byee, and David Addington should be subjected to particular scrutiny because of the seriousness of their roles in misusing the 

rule of law and legal analysis to justify torture and other crimes in flagrant violation of domestic and international law. 

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Mr. NADLER. Thank you, and now the Chair recognizes Mr. 

Sands for 5 minutes. 

TESTIMONY OF PHILIPPE SANDS, PROFESSOR OF LAW, UNIVERSITY COLLEGE LONDON, BARRISTER, MATRIX CHAMBERS 

Mr. SANDS. Mr. Chairman, honorable Members of the Committee, it is my privilege an honor to appear before this Committee 

to address your questions on the subject of Administration lawyers 

and interrogation rules. 

As professor of law at University College of London and as a 

practicing member of the English bar, it may be said that I appear 

before you as an outsider. I hope that you will bear in mind that 

I am from a country that is both a friend and an ally of the United 

States, and one that shares this country’s abiding respect for the 

rule of law. 

I am also from a country which was on the front line of terror 

in the 1970’s and the 1980’s, a period I personally remember. 

I have come to know America very well over more than two decades since I was first a visiting scholar at Harvard Law School and 

then taught over more than 15 years at Boston College Law School 

and then New York University Law School. I am married to an 

American, I am deeply proud of the fact that my three children 

share British and American nationality. 

Last month I published an article in Vanity Fair magazine, ‘‘The 

Green Light,’’ a copy of which is attached to my statement. It contains material drawn from my new book, ‘‘Torture Team,’’ that is 

published this month by Palgrave Macmillan. The article, and in 

more detail, the book, tell an unhappy story—the circumstances in 

which the United States military, not the CIA, was allowed by the 

hand of Secretary of Defense Donald Rumsfeld to abandon President Lincoln’s famous disposition of 1863 that ‘‘military necessity 

does not admit of cruelty.’’ 

On the 2nd of December 2002, Secretary Rumsfeld authorized 

the use of new and aggressive techniques of interrogation on detainee 063. It is by now a famous memorandum, the one in which 

he wrote, ‘‘I stand for 8 to 10 hours a day, why is standing limited 

for 4 hours?’’ 

Approval was recommended by Mr. Rumsfeld’s general counsel, 

William J. Haynes, II. The memo became public in June 2004 as 

the Administration argued that the appalling pictures of abuse at 

Abu Ghraib were unconnected to Administration policy. 

My book tells the story of that memo, the circumstances in which 

it came to be written, the circumstances in which is came to be rescinded. To write the book, I journeyed around America. I met with 

as many of the people who were directly involved as I possibly 

could. And I met with a very great number. 

I was treated with respect and with hospitality for which I remain very grateful. Over hundreds of hours I conversed or debated 

with many of those most deeply involved in that memo’s life. 

They included, for example, the combatants’ commander and his 

lawyer at Guantanamo, Major General Dunleavey and Lieutenant 

Colonel Beaver; The commander of United States Southern Command in Miami, General Hill; the Chairman of the Joint Chiefs of 

84 

Staff, General Myers; the Undersecretary of Defense Mr. Feith; the 

General Counsel of the Navy Mr. Mora; and the Deputy Assistant 

Attorney General at DOJ Mr. Yoo. 

And I met twice with Mr. Rumfeld’s general counsel at the Department of Defense, Mr. Haynes, who along with Mr. Addington, 

took a central role on the key issues. 

From these and many other exchanges, I pieced together what I 

believe to be a far truer account than which has been presented by 

the Administration. I met men and women of integrity and decency 

and professionalism, obviously doing the very best they could in 

difficult circumstances. Sadly, not everyone I met fell into that category. 

From these conversations, it became clear to me that the Administration has spun a narrative that is false. It claims that the impetus for the new interrogation techniques came from the bottom up. 

That is not true. The abuse was a result of pressures and actions 

driven from the very highest levels of the Administration. 

The Administration claims that it simply followed the law. My 

investigation indicated that driven by ideology, the Administration 

consciously sought legal advice to set aside international constraints on detainee interrogations. 

The Administration relied on a small number of political appointees, lawyers with no real background in military law, with extreme views on executive power and, frankly, with an abiding contempt for international rules like the Geneva Convention. 

These are rules that the United States has done more than any 

country to promote and put in place. As a result of these actions 

by the Administration, war crimes were committed. I have no 

doubt than Common Article III of the Geneva Conventions was violated, alongside with various provisions of the 1984 Convention 

prohibiting torture. 

The specter of war crimes was raised by the United States Supreme Court by Justice Anthony Kennedy in the 2006 judgment in 

the case of Hamdan v. Rumsfeld, a case on which I noted Mr. 

Rivkin was conspicuously silent. That judgment corrected the illegality of President Bush’s determination that none of the detainees 

at Guantanamo had any rights under Geneva. 

Mr. Chairman, honorable Members of the Committee, the story 

I uncovered is an unhappy one. It points to the early and direct involvement of those at the highest levels of government, often 

through their lawyers, the individual on whom I largely focused. 

In June 2004, after the scandal of Abu Ghraib broke, and the 

first of August 2002 Bybee/Yoo torture memo became public, Mr. 

Gonzales and Mr. Haynes appeared before the media to claim that 

the Bush Administration had not authorized such abuse. 

Contrary to the impression given by the Administration, repeated by Mr. Haynes when he appeared before the Senate Committee on the Judiciary in July 2006, his involvement and that of 

Secretary Rumsfeld began well before that stated in the official 

version. 

Mr. Haynes had visited Guantanamo together with Mr. Gonzales 

and Mr. Addington, discussed interrogations, perhaps even viewed 

an interrogation or more, and then recommended that the U.S. 

military should abandon its tradition of restraint. 

85 

My conclusion on the basis of large numbers of interviews and 

documents is that this is not only a story of crime, it is also a story 

of cover-up to protect the most senior members of the Administration from the consequences of the illegality that has stained this 

country’s reputation. 

Mr. Chairman, no country has done more to promote the international rule of law than the United States. Uncovering the truth 

is a first step in restoring this country’s necessary global leadership 

role, in undoing the damage caused, and in providing a secure and 

effective basis for responding to the very real threat of international terrorism. 

I can put it no better, sir, than George Kennan, the great American diplomat. In 1947, he wrote an anonymous telex that issued 

this warning in relation to a perceived Soviet threat. ‘‘We must 

have courage and self-confidence to cling to our own methods and 

conceptions of human society. The greatest danger that can befall 

us is that we shall allow ourselves to become like those with whom 

we are coping.’’ 

I thank you, sir, Members of the Committee, for allowing me the 

opportunity to make this brief introductory statement. 

[The prepared statement of Mr. Sands follows:] 

PREPARED STATEMENT OF PHILIPPE SANDS

Mr. Chairman, Honourable Members of the Committee, it is my privilege and 

honour to appear before this Committee to address your questions on the subject 

of Administration Lawyers and Administration Interrogation Rules. As Professor of 

Law at the University of London, and as a practising member of the English Bar, 

it may be said that I appear before you as an outsider. I hope you will bear in mind 

that I am from a country that is friend and ally, one that shares this country’s abiding respect for the rule of law. I have come to know America well over more than 

two decades, since I was a visiting scholar at Harvard Law School in the early 

1980’s, and then teaching at Boston College Law School and New York University 

Law School. I am married to an American. I am proud of the fact that my three 

children share American and British nationality. 

Last month I published an article in Vanity Fair, The Green Light, a copy of 

which is attached. It contains material drawn from my new book—Torture Team— 

that is published this month by Palgrave Macmillan. The article and—in more detail—the book tell an unhappy story: the circumstances in which the United States 

military was allowed, by the hand of Secretary of Defense Donald Rumsfeld, to 

abandon President Lincoln’s famous disposition of 1863, that ‘‘military necessity 

does not admit of cruelty’’. On December 2nd, 2002, Secretary Rumsfeld authorised 

the use of new and aggressive techniques of interrogation on Detainee 063. It is by 

now a famous memo, the one in which he wrote: ‘‘I stand for 8–10 hours a day. Why 

is standing limited to 4 hours?’’ Approval was recommended by his General Counsel, 

William J Haynes II. The memo became public in June 2004, as the Administration 

argued that the horrible pictures of abuse at Abu Ghraib were unconnected to Administration policy. 

My book tells the story of that memo. The circumstances in which it came to be 

written, and then rescinded. To write the book I journeyed around America, meeting 

with as many of the people who were directly involved as possible. I met with a 

great number, and was treated with a respect and hospitality for which I remain 

very grateful. Over hundreds of hours I conversed or debated with many of those 

most deeply involved. They included: the combatant commander and his lawyer at 

Guantanamo (Major General Dunlavey and Lieutenant Colonel Beaver); the Commander of US Southern Command (General Hill); the Chairman of the Joint Chiefs 

of Staff (General Myers); the Undersecretary of Defense (Mr Feith); the General 

Counsel of the Navy (Mr Mora); and the Deputy Assistant Attorney General at DoJ 

(Mr Yoo). I met twice with Mr Rumsfeld’s General Counsel at DoD (Mr Haynes), 

who along with Mr Addington took a central role on the key decisions. From these 

and many other exchanges I pieced together what I believe to be a truer account 

than that which has been presented by the Administration. I met men and women 

86 

of integrity and decency and professionalism, obviously doing the best they could in 

difficult circumstances. Not everyone, however, fell into that category. 

From these conversations it became clear to me that the Administration has spun 

a narrative that is false, claiming that the impetus for the new interrogation techniques came from the bottom-up. That is not true: the abuse was a result of pressures and actions driven from the highest levels of government. The Administration 

claims that it simply followed the law. My investigation indicated that—driven by 

ideology—the Administration consciously sought legal advice to set aside international constraints on detainee interrogations. The Administration relied on a 

small number of political appointees, lawyers with no real background in military 

law, with extreme views on executive power, and with an abiding contempt for 

international rules like the Geneva Conventions. These are rules that the United 

States has done more to promote and put in place than maybe any other country. 

As result, under international law war crimes were committed: I have no doubt that 

Common Article 3 of the Geneva Conventions was violated, alongside provisions of 

the 1984 Convention prohibiting Torture. The spectre of war crimes was raised by 

US Supreme Court Justice Anthony Kennedy, in the 2006 judgment in Hamdan v 

Rumsfeld. That judgment corrected the illegality of President Bush’s determination 

that none of the detainees at Guantanamo had any rights under Geneva. 

Mr Chairman, Honourable Members of the Committee, the story I uncovered is 

an unhappy one. It points to the early and direct involvement of those at the highest 

levels of government, often through their lawyers, the individuals on whom I largely 

focused. In June 2004, after the scandal of Abu Ghraib broke, and the August 1, 

2002 Bybee Torture Memo became public, Mr Gonzalez and Mr Haynes appeared 

before the media to claim that the Bush Administration had not authorized such 

abuse. Contrary to the impression given by the Administration, repeated by Mr 

Haynes when he appeared before the Senate Judiciary Committee in July 2006, his 

involvement (and that of Secretary Rumsfeld) began well before that stated in the 

official version. Mr. Haynes had visited Guantanamo, together with Mr Gonzales 

and Mr Addington, discussed interrogations, and then recommended that the U.S. 

military abandon its tradition of restraint. My conclusion, on the basis of interviews 

and documents, is that this is a story not only of crime but also of cover-up, to protect the most senior members of the Administration from the consequences of the 

illegality that has stained America’s reputation. 

Mr Chairman, no country has done more to promote the international rule of law 

than the United States. Uncovering the truth is a first step in restoring this country’s necessary, leadership role; in undoing the damage caused; and providing a secure and effective basis for responding to the very real threat of terrorism. I can 

put it no better than George Kennan, the great American diplomat. In 1947 he 

wrote a telex that issued this warning in relation to a perceived Soviet threat: ‘‘[W]e 

must have courage and self-confidence to cling to our own methods and conceptions 

of human society. [T]he greatest danger that can befall us . . . is that we shall 

allow ourselves to become like those with whom we are coping.’’ 

I thank you for allowing me the opportunity to make this brief introductory statement. 

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Mr. NADLER. I thank you and I thank the other witnesses. The 

Chair will now recognize himself for 5 minutes for the purpose of 

questioning the witnesses. 

Professor Luban, you have written that the lawyers advising the 

Bush Administration on the legality of U.S. interrogation policies, 

including Alberto Gonzales, David Addington, Jay Bybee and John 

Yoo, showed a ‘‘willingness to bend or break the law to make their 

client’s wishes come true.’’ 

Can you give a couple of concrete examples of ways that the law 

was bent or broken by their advice? 

Mr. LUBAN. Yes. A couple of examples would be this: Mr. Yoo’s 

two memos, the March 14, 2003 and August 1, 2002, both make an 

extraordinary claim of executive power, which is that the President, acting as Commander-in-Chief, can simply override any statute in the book, including the statute on torture. 

Now a lawyer is supposed to present adverse legal authority as 

well as legal authority that supports the view. And here there are 

leading Supreme Court precedents that just say the opposite, the 

famous Youngstown case. 

But there was an 1804 case called Little v. Barreme from the 

quasi war with France in which Congress had restricted what the 

navy could do. President Adams ordered a captain to violate that 

restriction, and the Supreme Court said that the President’s order 

was not a shield against liability. 

Those cases aren’t even mentioned. That is the kind of thing that 

is a violation of the craft value that lawyers have. 

Second would be this drawing of the definition of torture from a 

Medicare statute. The Medicare statute says, quite common 

sensically, that severe pain can be the symptom of a medical emergency. Mr. Yoo turns this around and says that unless the pain is 

organ failure or death, or a level associated with organ failure or 

death, it is not severe. 

When Mr. Levin withdrew that opinion and replaced it with another, he said, quite plausibly, that Medicare statute wasn’t trying 

to define severe pain. And if you took that literally, then you would 

think that, for example, if a dentist’s drill hits a root and you jump 

out of the chair, well you know that is not organ failure or death, 

so that is not severe pain. And that simply violates common sense. 

Mr. NADLER. Thank you. And in your article, ‘‘Liberalism, Torture and the Ticking Time Bomb,’’ you say that it would be a dramatic mistake to suppose that the Justice Department has abandoned its views merely because it has disowned the Bybee memo. 

Can you briefly explain what you mean? I mean, why you think 

it is clear that the Justice Department has not abandoned its 

views? 

Mr. LUBAN. Yes, for a couple of reasons. After the Bybee memo 

was withdrawn, then the Levin memo was substituted, the Levin 

memo says in a footnote that all of the techniques that had been 

approved under the Bybee memo are still approved. 

As for the commander-in-chief override argument, the Levin 

memo doesn’t disown it. It says, well, there is no need for us to discuss it. 

104 

As for the criminal defenses in the Bybee memo, it doesn’t reject 

those criminal defenses, it just says, well, since we don’t torture, 

there is no need to discuss those. 

And finally, one place that it completely stretches the law is in 

its definition of what severe physical suffering is. It states that severe physical suffering has to be prolonged. 

Now if you look at the statute, that isn’t in there at all. It was 

mentioned by Congressman Franks, I believe, that everybody who 

has been waterboarded broke in less than a minute, and it looks 

as though that language would say, well, therefore waterboarding 

can’t be severe physical suffering because it wasn’t prolonged. 

Mr. NADLER. Thank you. Mr. Cohn, does the Military Commissions Act give officials of the Bush Administration immunity from 

prosecution under the War Crimes Act? 

Ms. COHN. No. While we would argue that it tends to immunize 

those complicit in torture from criminal or civil liability is not permitted under the doctrine of jus cogens, the military can be protected—— 

Mr. NADLER. Under the doctrine of what? 

Ms. COHN. Jus cogens, Latin for ‘‘the highest compelling law,’’ 

like slavery, genocide and wars of aggression. But no, the Military 

Commissions Act does not provide immunity from prosecution. 

What the provision does is to provide that good faith reliance on 

the advice of counsel would be a defense to war crimes prosecutions. 

But it could be proved that they were not acting in good faith reliance on the advice of counsel for several reasons. Number one, the 

advice was inherently and flagrantly not a good faith interpretation 

of the law. 

Number two, they all knew that, and that is why they performed 

this so-called analysis in secret, avoiding all the normal processes 

that they usually use to arrive at these decisions. 

And number three, they lied about the matter, both to the people 

within the Administration and the public, making numerous false 

exculpatory statements which can be considered evidence of guilt. 

So the Administration’s effort to avoid accountability under the 

Military Commissions Act is further evidence of their guilt and can 

be used as an—— 

Mr. NADLER. Fine. Now one more question before my time runs 

out. In the attachment to your testimony, you outline the case for 

criminal prosecution for the lawyers involved in the formulation of 

the interrogation policies at issue. From what U.S. laws and precedent do you draw your conclusions? 

In other words, under American law, how could Administration 

lawyers face criminal liability for their counsel? 

Ms. COHN. We have statutes that prohibit conspiracy. For example, the torture statute, which is a U.S. law, prohibits the conspiracy to commit torture, and it would be, I think, not difficult to 

show that these lawyers were part of a conspiracy, a common plan. 

In fact, John Yoo said, we had a common strategy here. They got 

together on it. So I think that it clearly could come under conspiracy laws that they would be part of a criminal conspiracy to 

violate U.S. laws against torture. 

105 

Mr. NADLER. Thank you. Just one further question. How long is 

the statute of limitations on these crimes? 

Ms. COHN. The statute of limitations under jus cogens prohibition is never. There is no statute of limitations at all for violation 

of a jus cogens norm. 

Mr. NADLER. Thank you. My time is expired. I will now recognize 

for 5 minutes the distinguished Ranking Member of the Subcommittee, the gentleman from Arizona. 

Mr. FRANKS. Well, thank you, Mr. Chairman. Professor Cohn— 

forgive me, Mr. Luban, I was kind of moved by your comments relating to activist lawyers, because I happen to agree with you that 

lawyers shouldn’t spin the law to reach a predetermined conclusion 

that their definition of a statute should be the same whether or not 

they were giving this to an opponent or to a client. 

And I agree with that. In fact, with all due respect here, we have 

been hoping on the Republican side that we could get our Democrat 

friends to apply those standards to judges, because we think that 

is very, very important that the law should stand as it is written, 

not how interpreted in some way to twist it. 

So I thought I would throw that out, and I will ask you something a little bit more of a contentious nature. You criticized how 

the term ‘‘severe pain’’——[Laughter.] 

Mr. FRANKS. You know how ‘‘severe pain’’ was defined in the 

Federal Anti-Torture Statute. Pretend that we are clients here of 

yours and that we are asking you for the bottom line here. How 

would you define that term, ‘‘severe pain,’’ as written in the Federal Anti-Torture Statute? 

Mr. LUBAN. The main point that I would make is that severe 

pain is not a technical legal term of art. It is a common sense term. 

As you might well imagine there is not a huge and rich jurisprudence on the boundaries of torture. 

Mr. FRANKS. But you couldn’t give us a definition of your own in 

that regard? 

Mr. LUBAN. I think that at least one of the things that I would 

say is that it is the kind of pain that all of us would recognize as 

severe. For example, the dentist’s drill, a broken bone, pain of that 

level. 

The pain—if we are talking about waterboarding, I think we are 

talking not about pain so much as suffering, the feeling of pint 

after pint of water pouring down your throat. 

You can only define these things by example and by appealing 

to subjective experience. And I would like to say that when Mr. Yoo 

says I was trying to get specific, I don’t see anything more specific 

and less vague about saying the pain associated with organ failure 

or death. 

If you ask me, well, what is that? I would say, well, I actually 

don’t know. Haven’t been there. 

Mr. FRANKS. Well, that is why we were trying to ask you to define it. Ms. Cohn, just to respond related to waterboarding being 

torture, first of all, I want to point out that the waterboarding that 

the three terrorists that were in my testimony was done under 

very, very controlled circumstances for a very short period of time. 

But as you know, our soldiers are as a matter of a training, some 

of our special forces and other soldiers are waterboarded to train 

106 

them. Now if indeed that is torture, do you not think that we 

shouldn’t be doing that? I mean, to torture our own soldiers. So 

that is why I make the distinction between waterboarding and torture. 

The question I have for you is, if you were writing a statute on 

severe interrogations, or interrogations of any kind that would involve terrorists who may have information that would save innocent American lives and refuse to give that information, what kinds 

of techniques would you think should be—what would you recommend to the government to use? What kind of techniques, if 

they were unwilling to voluntarily give information and if the information were critical to saving American lives, what could we do? 

What is the severest thing that we could do to get that information? 

Ms. COHN. Thank you, Mr. Franks, for that question. First of all, 

no, I don’t think we should be torturing our own soldiers, or anyone 

else for that matter. Torture is illegal when practiced against anyone. 

What kind of statute would I write? I would write a statute that 

says that when you are interrogating a prisoner and you want to 

get information from him, you treat him with kindness, compassion 

and empathy. You gain his trust, you get him to like and trust you 

and then he will turn over information to you. 

Torture does not work. And for example, Khalid Sheikh Mohammed and Abu Zabeda were tortured so severely that they confessed 

to al-Qaida targeting just about every building in the world. 

Their information is virtually useless because of the torture. People will say anything to get the torture to stop. And we lost rich 

sources of intelligence because of that. 

And contrary to what you said, there are reports that say that 

Abu Zabeda did not lead the Americans to Khalid Sheikh Mohammed, that someone was responding to a $25 million reward and 

walked in. 

And also, do you believe that when the Administration says its 

waterboarding only lasts—— 

Mr. FRANKS. Mr. Chairman, Ms. Cohn, my time is about gone 

here. 

Ms. COHN. I don’t believe that. 

Mr. FRANKS. I appreciate your comments here. I just have to say 

that to think that terrorists committed to the destruction of the 

western world, if you be nice to them, we will respond favorably. 

I think that is naive and I think al-Qaida would love for you to 

write that statute. And I say that not disrespectfully toward you. 

Mr. Rivkin, do you have any closing comments on either of these 

testimony? 

Mr. RIVKIN. Very briefly. I certainly do not agree with Professor 

Cohn. I think that it is a moral cop-out to argue that coercive techniques do not work because if they don’t work, there will be nothing to debate. 

Coercive techniques do work. There is plenty of evidence to that 

effect. It doesn’t mean that anything goes, but what we need to 

have as a society is a serious dialogue along the lines of the question that you just asked, Congressman Franks, what is severe? 

107 

And let me tell you, I have debated this issue ad nauseum more 

than I care to. And most of the critics do not want to go down the 

path of defining what is severe. 

And let’s stipulate that maybe John Yoo’s definition is a little 

narrow, but nobody wants to come up with any, any techniques. 

And what is particularly appalling to me is, if you at least somebody who wants to abolish all forms of coercion in the public 

sphere, be it in boot camp for juvenile offender, be it in a police 

station, there is plenty of psychological coercion going on. 

Hopefully not physical, but plenty of psychological coercion going 

on in treatment of our own soldiers. But nobody cares about it. 

What the critics mostly want is to create only one portion of the 

public sphere that is coercion free, that is interrogating captured 

al-Qaida and Taliban detainees. 

And that to me makes absolutely no moral or legal sense. And 

by the way, the point that Professor Luban made about the appellation protracted being used with regard to mental suffering and 

not physical, with all due respect, there are plenty of cases that 

stand for the proposition that that does not necessarily prevent the 

executive from construing the statute in a way that has a temporal 

element with regard to the physical pain and suffering. Does any 

normal person disagree that there is at least, in some circumstances, a temporal element? 

That for example, the definition of severe pain and suffering 

that, for example, a stress position of 10 minutes is not mildly annoying. For 10 hours, it would be very painful. For 24 hours, it 

would be tortuous. 

So of course there is that. So the notions it will proudly proclaim 

in the Congress, put the word ‘‘protracted’’ here. Okay, actually, 

the Latin term for that is expresso unius exclusio alterius. There 

is plenty of case law that says that doesn’t necessarily mean that 

you cannot construe it this way. 

Mr. NADLER. Thank you. The gentlemen’s time has expired. I will 

now recognize for 5 minutes the distinguished Committee Chairman, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. I want to commend the 

witnesses. This is an excellent examination of torture, the documents controlling them, how they were created, and who wrote 

them. Namely, we now know, lawyers. 

So this is a good way to begin to get to the truth. And I think 

that we need to look at a number of other witnesses, some who 

have already agreed to come to our next hearing, some who will 

need more prodding through the legislative, coercive process, nonviolent, of course. 

But I didn’t think I would ask you a question, Attorney Rivkin, 

but do you have a definition of pain that you would like to leave 

with us? Because we are trying to find out. 

I am going to be working on that, and I would like to keep your 

admonitions in mind. 

Mr. RIVKIN. Chairman Conyers, I appreciate the question. Actually, I would like to reflect on it and maybe submit something in 

writing, because these are not easy decisions. 

And I also would like to point out that hopefully, just because 

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icy. One of my problems is people commingle the legal box and the 

policy box. 

The legal box can be yay-wide, doesn’t mean that the policy box 

has to follow. 

Mr. CONYERS. Well, let’s continue to work on this together. You 

are a frequent witness anyway. 

Mr. RIVKIN. Thank you. 

Mr. CONYERS. Philippe Sands, we welcome you again here from 

overseas. What do you make of this, I think, very commendable beginning of the inquiry that has gone on about this. Marjorie Cohn 

has given us a to-do list for the Committee, which we appreciate. 

And I think that is a good start. And I would like to ask you and 

any other of the witnesses, other things that they pursue and 

means of inquiry that we might engage in. 

Mr. SANDS. Thank you very much for that question. 

Mr. NADLER. Sir, would you turn on your mic, please? 

Mr. SANDS. Thank you very much for that question, sir. I think 

the country, if I may say, finds itself at an important moment, because I think it is in everyone’s interest that on this issue there 

is a degree of uniting and moving on, particularly in relation to the 

military interrogations that have, to the best of my knowledge, 

come to an end in terms of their abusive characteristics, although 

there is the issue of the CIA stuff. 

Nevertheless, looking back to history is important as part of that 

process of moving on. And the Military Commissions Act of 2006 

in that regard is extremely unhelpful, because whatever it purports 

to do in relation to immunization of lawyers or anyone else involved, it does sort of freeze the process of investigation. 

It seems to me that to enable the United States to move on, and 

its allies with it, it would be extremely useful to throw the spotlight onto what actually happened during 2002. 

I note from the exchange of letters, sir, between you and the Office of the Vice President that Mr. Addington indicates that he may 

be willing to come to address certain matters. One of the matters 

that he addresses, or says that he would possibly be willing to 

come, is to seek material information on ‘‘personal knowledge of 

key historical facts.’’ 

Those have not yet emerged in a forum such as this. Mr. 

Addington, in the story I looked at, appears throughout the story. 

He was deeply involved in the decision to get rid of Geneva. He 

was deeply involved in the decision to move to aggressive interrogation, including through the DOJ memos. 

He visited Guantanamo at the end of September 2002 and met 

with Major General Dunleavey and Lieutenant Colonel Beaver. 

And the accounts that I received from them on the record, as I describe in the book, is that he was, in effect, the leader of the pack, 

and he was the person who was driving through the policy. 

And I think questions and issues that go to that role may be extremely important. He was closely assisted by his friend and confidante, Mr. Haynes. 

When the request that essentially had been imposed from the 

top, but then made its way back up to the Pentagon via General 

Hill in SOUTHCOM, made its way to General Myers, I describe in 

the book how General Myers’ lawyer, Jane Dalton, who I think you 

109 

might also profitably talk to, described to Alberto Mora how the assessment that they would have liked to have made in Joint Chiefs 

never happened because Jim Haynes intervened to short-circuit the 

process. 

I think it would be useful, sir, to focus on the facts. And with 

great respect, I don’t think there is a great deal of utility to teasing 

out the issues of what actually constitutes severe mental pain and 

suffering. 

There is a huge jurisprudence in American law. I am not expert 

on that. I do know about the jurisprudence in international law. 

And one thing that one learns is you treat each case on its own 

merits. You can’t come up with abstract definitions. And that has 

got to be the right approach. 

Mr. CONYERS. We haven’t even hardly touched upon, in conclusion, the whole notion of the hostility toward international law and 

working as a family of nations at the global level to try to turn 

back some of the violence that characterizes the 20th and 21st centuries. 

And so this has been enormously helpful for me and we would 

invite all of our witnesses to stay in touch with us, feel free to communicate back and forth, so that we can really leave a serious 

record, not a partisan ranting type thing, but something that can 

be examined not only in the near future for all time. 

We are setting some benchmarks here, where which way the 

most powerful Nation in the world will treat these kinds of violations of human dignity that have created so much unrest, so much 

desperation, and in the end, so much violence in the world. 

And I thank you all very much. 

Mr. NADLER. I thank the gentleman. The Chair now recognizes 

for 5 minutes the gentleman from Indiana. 

Mr. PENCE. Thank you, Mr. Chairman. And I want to thank all 

of our witnesses for your testimony. 

Mr. Rivkin, a quick question for you, and then I wanted to ask 

Mr. Sands a question. The Wall Street Journal pointed out in a recent editorial the Democrat majority in Congress ‘‘wants the U.S. 

interrogation policies made public, but the reason to keep them secret is so enemy combatants can’t use them as a resistance manual.’’ 

They went on to write, ‘‘If they know what is coming, they can 

psychologically prepare for it. We know al-Qaida training often involves its own forms of resistance training, and publicly describing 

the rules offers our enemies a road map for resistance.’’ 

Mr. Rivkin, why would we want to risk offering our enemies a 

road map for resistance? Can you think of any good reason? Are 

you concerned about that? 

Mr. RIVKIN. It is of some concern, Congressman Pence. In fact, 

it is an excellent point. There is a degree of irony here that there 

may be lesser forms of coercion that if unexpected, particularly psychological coercion may be quite efficacious, sort of vitiating, or at 

least minimizing the pressure to use the more difficult things. 

But if you lay it out in advance, of course they are going to train 

for it. And again, the whole essence of the people we are dealing 

with is precisely because they are unlawful combatants, they view 

interrogations as a continuation of the fight, and happy the way it 

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is with lawful combatants and conscript soldiers who are quite 

happy to be away from combat and sitting in a prisoner of war 

camp enjoying life. 

So there is a huge problem. And I think the critics have to acknowledge that we as a society can come up with any result as long 

as the debate is honest, as long as we don’t propagate myths that 

coercive techniques don’t work, or there is no cost to disclosure of 

sensitive information along the lines. 

Again, the American people may decide in the end more or less 

along the lines of what my good friend Professor Sands says, which 

is zero coercion. But let’s decide it in a way that is accountable so 

we can revisit this decision if unfortunately bad things happen 

down the road, instead of doing it in a way that is not transparent. 

Mr. PENCE. Professor Sands, I appreciated your testimony very 

much. Whether I agree with your conclusions or not, I appreciate 

your yeoman’s work. 

David Rivkin and Lee Casey have written recently, ‘‘Some, of 

course, have suggested that relationship building interrogation 

techniques are preferable, and even more reliable I the long run 

than stress methods. 

They raise the question, though, what about the hard cases, like 

Khalid Sheikh Mohammed, who was a mastermind of the September 11 attacks in this country? How would you respond to the 

observation that Khalid Sheikh Mohammed probably is not susceptible to relationship building methods. 

And I can tell by your grin, you acknowledge the somewhat absurd thought that you could move people who have masterminded 

the death of more than 3,000 Americans by Oprah Winfrey methods. But if you could respond to that question, I mean, how would 

you have solved, how do you think the United States should seek 

to gain information from a mastermind like Khalid Sheikh Mohammed if he refuses to answer questions voluntarily when additional 

American lives could be on the line with information that he is refusing to provide? 

Mr. SANDS. Thank you, sir. I very much appreciate that question. 

That question seems to go to heart of many of the issues that we 

are discussing. I am not sure how thrilled Oprah Winfrey would be 

to the characterization of her methods in that particular way. 

I think I have got to say by way of outset, I come from a country 

which spent 15 years involved in facing terrorism on the streets. 

I grew up in a country where my mother wouldn’t let me go shopping on Oxford Street because bombs were going off at times on a 

weekly basis. 

And that experience has had a very profound effect on how the 

United Kingdom addresses precisely the question that you have addressed. And the thinking in the British military, and the thinking 

across the board politically, it is really not a left-right issue. 

It is a broad consensus in the United Kingdom is that coercion 

doesn’t work. That the experience of the United Kingdom, which 

moved in the early 1970’s to use techniques that were very similar 

to those that were used on Detainee 063, hooding, stress positions, 

humiliation, and so on and so forth, didn’t work. 

The view is taken in the United Kingdom that it extended the 

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cause what it did was that it outraged the community that was associated with those who were subject to these particular techniques, and it created a breeding ground, a recruiting ground 

which made it impossible for the British government, if you like, 

to persuade those who were associated with the IRA, but had not 

crossed the line into use of violence, to think another way. 

And so in answering your question, I am profoundly influenced 

by that experience. And one of the great regrets that I have is that 

the Administration never seemed to turn for advice to its closest 

allies and ask them what was your experience when you faced a 

similar situation? 

And the answer they would have got from whatever government 

it was, Conservative, Labour, is don’t go down the route, one, of 

using coercion, and two, don’t call it a war on terror. 

Why? Because by calling it a war on terror, you transform criminals into warriors, and you create a context in which they are able 

to recruit in their struggle. And if you noticed, neither Prime Minister Blair nor Prime Minister Brown, nor, indeed, the Conservative leader of the opposition, ever uses the phrase ‘‘war on terror’’ 

because of the experience with the IRA. 

Now in relation specifically to your question, there are hard 

cases. I did smile because, frankly, the image that weeks and 

weeks of rapport building with KSM is somehow going to produce 

results is counterintuitive. 

But the reality is, we don’t know. And I spoke in my investigation to a lot of interrogators, military, FBI who basically said coercion doesn’t work. You get information that they want to give you 

that they think is going to stop the pain from happening. 

And I listened just yesterday to a remarkable tape that I recommend to all of the Members of the Committee to listen to of Senator McCain, a man who has first-hand experience of this situation. 

A brave man describing in a 1997 interview with Dan Rather 

how he broke and owned up and signed a confession to having personally targeted men and women, children in North Vietnam because he was facing such conditions that he could no longer cope. 

And that, I think, is the reality. I firmly come to the view that 

coercion doesn’t work, and it has such a negative backlash in terms 

of the consequences that the better price to pay is not to go down 

that route at all. 

Mr. PENCE. Mr. Chairman, with your indulgence, could I have 

Mr. Rivkin respond to that as well? He was trying to cut in. 

Mr. RIVKIN. Thank you. Very briefly. I don’t doubt Professor 

Sands’ sincerity, but a couple of points. First of all, I personally 

spent a fair amount of time with various British colleagues who 

take a different interpretation of what happened in the past. 

And just like we have debates about Vietnam, they disagree. A 

more cynical interpretation is that the British efforts in 1971 and 

1972 squeezed out the names of approximately 700 IRA operatives 

and were used as the body of knowledge to follow up, number one. 

Number two, an interesting point to point out, and I hope Professor Sands would correct me if I am wrong, none of the British 

lawyers, to the best of my knowledge, will prosecuted in connection 

with aggressive interrogation, and let’s be frank, their assassination policy by SAS against senior IRA operatives. 

112 

And the third point, with all due respect, IRA was a serious 

threat, but IRA is not an existentialist threat like al-Qaida. And 

the way you adopt coercion in the context of a non-existentialist 

threat is very different that you do it in the context of an existentialist threat. 

I don’t see us settling down with al-Qaida the way you resolve 

things with IRA. 

Mr. NADLER. The gentleman’s time has long since expired. The 

gentleman from Alabama is recognized for 5 minutes. 

Mr. DAVIS. Thank you, Mr. Chairman. Mr. Rivkin, let me begin 

with you. I had a chance to read the op-ed piece that you wrote in 

the Journal last week, and some of your positions are interesting 

in that they are extremely provocative. So I want to pose a couple 

of questions to you. 

You just mentioned the Vietnam War. Did the United States 

military apply the Geneva Conventions to captured Vietcong 

operatives? 

Mr. RIVKIN. It is a complicated question, Congressman Davis. 

Basically, the position of the United States government was that 

the Vietcong was not legally entitled to Geneva protections. We extended it as a matter of policy grace, largely, as I understand it, 

I am too young, of course, to have personal knowledge, but people 

I talk to, largely because the Vietcong threatened American prisoners who, God knows, were not treated particularly well but could 

have been treated a lot worse. 

Mr. DAVIS. Well, let me take up that particular logic and apply 

it to another scenario. Let’s say that Hezbollah, a known terrorist 

organization, were to capture an Israeli soldier and to take that individual into custody and to subject that individual to sleep depravation, physical abuse, physical degradation, any number of things 

that might strike some people, most especially including that 

Israeli soldier experiencing the pain, as torture. 

Should that Israeli soldier and his government be able to invoke 

the Geneva convention against Hezbollah? 

Mr. RIVKIN. There are two answers to that, Congressman Davis. 

The legal answer is this. If you are a lawful combatant, the fact 

that the people who have captured you are unlawful combatants 

and themselves upon capture would not be entitled to the gold 

standard of the Geneva Convention does not mean that you are 

not. So this is a non-reciprocity situation. 

Mr. DAVIS. Do you think Hezbollah would adopt that interpretation, or do you think al-Qaida would adopt that interpretation. 

Mr. RIVKIN. No, I understand the question. 

Mr. DAVIS. [OFF MIKE] 

Mr. RIVKIN. The practical answer is easy. And I don’t mean to 

sound glib, but let me suggest this. Given the absolutely atrocious, 

medieval level of barbarism that is routinely inflicted by unlawful 

combatants by Taliban, al-Qaida, Hezbollah, where we are talking 

about not just torturing people but dismembering people and killing them. 

There are plenty of examples of them in Iraq. If I were captured 

and my choice was being accorded the treatment that they generally accord to westerners versus being treated as somebody in 

Guantanamo, I would settle for Guantanamo in—— 

113 

Mr. DAVIS. Well, of course, that wasn’t the question I asked you. 

Let me perhaps come at the question a little bit differently. 

Does the Israeli government apply the Geneva Convention to 

captured Hezbollah operatives, or captured Hamas operatives? 

Mr. RIVKIN. Israeli government’s position, as I understand it, is 

fairly complex. They believe that a state of armed conflict exists. 

They generally apply Geneva Conventions. They signed the Protocol One addition, which we have not signed. But it is fairly—— 

Mr. DAVIS. Is torture legal or illegal in Israel? 

Mr. RIVKIN. Excuse me? 

Mr. DAVIS. Is torture legal or illegal in Israel? 

Mr. RIVKIN. Torture in Israel is illegal. However, Israelis, in appropriate circumstances, do use stress techniques. Their court has 

been quite involved on this issue. 

Mr. DAVIS. Well, now, let me stop you at this point, because you 

are doing what witnesses like to do, which is talking fast enough 

that the questioner can’t get a question out if the time runs out. 

So let me slow you down. 

Because you have just said some very interesting things. I want 

to make sure everyone hears them. Israel, a democracy like ours, 

that is under daily siege from the most vicious murderers, assailants imaginable, which faces an existential threat to its existence, 

they are very small, 10 miles at the smallest point, makes torture 

illegal, applies the Geneva Convention, and they apply it to armies 

or quasi-armies with a history of being willing to kill women and 

children. 

It would seem to me that those aren’t incidental points to be 

talked over and talked around. Those are very significant moral 

propositions. 

Mr. Sands, would you like to comment on that? Do you see the 

point that I am making? 

Mr. SANDS. Well, I do, sir, very much see your point, and it is 

a point that is also made in relation to the United Kingdom. We 

have had, sadly, terrorist attacks on our territory. One of the 

bombs in July 7th went away 100 yards from the law school that 

teach at. 

And I have followed the Israeli situation very carefully. The 

Israeli Supreme Court, and I think Mr. Rivkin was about to refer 

to it, gave a very famous judgment in which it said in relation to 

torture, firstly, it is the lot of a democracy to fight with one arm 

tied behind its back, but the democracy is still stronger, because 

that is who we are. 

Secondly, it rejected the ticking time bomb theory. This is the 

theory that everyone raises, and yet ask anyone to find a single example in which the ticking time bomb theory, situation has arisen, 

and no one can identify one. 

And with great respect, the way the Supreme Court of Israel 

dealt with it is the right way. Never means never. If a ticking time 

bomb scenario comes up, which we say is completely hypothetical, 

we will deal with it when it arises. 

Mr. DAVIS. Mr. Rivkin, if the Chair will indulge me just one last 

hypothetical to you. Should the President of the United States 

issue a pardon to members of the executive branch who may be accused in the future of having violated statutes related to torture? 

114 

Mr. RIVKIN. In the current circumstances? 

Mr. DAVIS. It is a hypothetical. Should the President of the 

United States issue a pardon before he leaves office to members of 

his executive who may be accused in the future of having violated 

statutes relating to torture? 

Mr. RIVKIN. I have not considered this question carefully, but I 

would imagine there would be some reasons to do so. I frankly 

think as useful as the exploration of those issues is, it can go too 

far and it can certainly handicap our—— 

Mr. DAVIS. Mr. Rivkin, would you seriously suggest that a President issue a blanket pardon to members of his Administration? Because this is the standard for a pardon typically. Under precedent, 

that someone be convicted of a crime or have acknowledged culpability for a crime. 

Has any member of the Bush Administration been convicted of 

a crime related to torture? 

Mr. RIVKIN. No, but—— 

Mr. DAVIS. Have any of them acknowledged responsibility for 

this crime? 

Mr. RIVKIN. You asked me a hypothetical question. And all I am 

saying is I have not studied this question in detail. I said there 

may be some reasons to consider doing it. Let me remind you that 

the blanket pardon—— 

Mr. DAVIS. I would suggest to you that it would be extraordinary. 

Mr. RIVKIN. [continuing]. Would not be unprecedented. President 

Carter, for example, issued a blanket pardon to the Vietnam war 

related, I will say people who got in trouble in relation to the Vietnam war. 

But I am not advocating for it. You asked me a hypothetical. The 

easiest answer is to say that I don’t answer hypotheticals. I am trying to be forthcoming. I said it is something to consider. I did not 

say that it is something to do. 

But my only—10-second point is this. If you look at Israel, they 

did make a choice in a transparent fashion as accountable democratic body polity. They do use drastic means of interrogation. I 

don’t think that—in certain circumstances. I don’t think that—that 

is at least my sense from talking to a lot of Israelis. 

But yes, they have made a decision to take high risks, and that 

certainly is to consider. 

Mr. NADLER. Time of the gentleman has expired. The Chair now 

recognizes for 5 minutes the gentleman from California. 

Mr. ISSA. Thank you, Mr. Chairman. And I will try to pick up 

what I would have put in an opening statement in my questioning. 

Mr. Rivkin, since you have had time to think about that earlier 

question and to give it due consideration, since Jane Harmon and 

Nancy Pelosi were knowing accomplices to this, they were well 

aware and had virtual tours of the site and were intimately familiar with waterboarding and all the other techniques, would they be 

appropriate for that blanket pardon? 

Mr. RIVKIN. If—— 

Mr. ISSA. Since they seem to be repentant by now denying that 

it is their responsibility, but rather the responsibility of the Administration. 

115 

Mr. RIVKIN. I understand, Congressman. It is actually the point 

you make in your question is a correct one. If we are going to use 

broad conspiracy counts to bring people in who were not in an operational chain of command, a Member of Congress exercising his 

oversight power sort of acquiescing and blessing something may 

have things to be concerned about. 

But as I said, look, there is a difficult issue here. I don’t mean 

to be glib, it is a serious problem. Investigation, exploration is a 

good thing. But it can degenerate into a witch hunt. It can degenerate into an effort to smear the reputations of the people involved. 

And again, I posed the same point I made earlier, which is, how 

is the future President going to get candid legal advice when everybody who worked for the previous President, or the previous two 

Presidents having their career ruined, being vilified, portrayed as 

war criminals, even if prosecutions don’t mature, and have a bunch 

bar associations going after them and have students breaking down 

their doors when they try to teach. 

That is not a good thing. It is not a good thing at all. 

Mr. ISSA. I agree, and Ms. Cohn, I will switch to you for a second, 

because I think we may gain—I may gain some insight in this. 

You may not be aware of this, but I have actually supported the 

ban on torture, and I happen to be much more in the McCain camp 

on this. So don’t consider me a friend just because I say that, but 

I do want to—— 

Ms. COHN. You also come from my part of the country as well. 

Mr. ISSA. Yes. I do want to get this right. And although I opened 

very clearly with the idea that we have got to move on, truly move 

on from a bipartisan decision that was made that is now public, 

that in fact is no longer done, to the question of what do we go 

going forward? 

And as one Member of Congress on this side of the aisle, probably not, quotable by my friend and colleague, but perhaps, I think 

we are better than that. I think we can win this fight with one arm 

tied behind our back, as we have I World War II and other wars. 

But having said that, I want to go through a line of questioning 

to see if perhaps I can get yes’s on this. Do you think it is fair to 

lie to prisoners that we take on the battlefield, whether they be illegal combatants or just prisoners? 

Ms. COHN. To lie to them? 

Mr. ISSA. To lie to them. To tell them things that would cause 

them to spill the beans because we have lied to them, we have been 

disingenuous in what we tell them reality is. For example, the colleague that was taken with you, we have already killed him. 

Ms. COHN. Well, I think it would depend because, for example, 

if you lied to someone and say we are going to kill your wife, even 

though you don’t really intend to, we are going to kill your wife if 

you don’t give us this information, then that is severe psychological 

coercion, and I would be opposed to that. And I don’t think that 

that line—— 

Mr. ISSA. And I appreciate that. Maybe I will alter it a little bit. 

Mr. Rivkin, do you watch ‘‘Law and Order,’’ any of the 35 different 

versions? 

Mr. RIVKIN. I confess, I do not—science fiction. 

116 

Mr. ISSA. Okay. Well, for everyone else in the world, do you think 

that has watched it, do you think that in fact deceiving people, including by saying your partner just got a confession out of the 

other person taken on the battlefield. Do you think that is okay? 

Mr. RIVKIN. It is okay. There is a small range of deceptive statements relative—— 

Mr. ISSA. And of course, you know that the Supreme Court has 

held that is okay, even in law cases that we deal with. 

Mr. NADLER. Would the gentlemen yield for a second? 

Mr. ISSA. Of course, Mr. Chairman. 

Mr. NADLER. Thank you. I just want to pursue the one question. 

The Supreme Court has indeed ruled that deceiving a questioner 

saying your colleague has spilled the beans, you might as well tell 

us the rest, is okay. But is that the same law as threatening, I am 

going to kill your wife? 

Mr. ISSA. Well, and I wasn’t responding to Ms. Cohn, because I 

think it is important that we stay to the basic concept that we do 

get confessions out of prisoners in the United States and in other 

places by techniques other than physical contact or threat of torture. 

We do often say, for example, and I will pick you up on this, Mr. 

Chairman, domestically, and I think the audience of all of us think 

domestically to say that if you don’t cooperate, we are going to take 

every one in your family and we are going to arrest them, and they 

are going to serve as accomplices to your crime is in fact something 

that can be done in this country. 

The threat of, in fact, widening the net to people beyond that, I 

think just, for all of you, those kinds of techniques are many of the 

alternatives, so we do have other tools besides the ones we are concentrating on today. 

And my time is expiring, so I would appreciate it if I—— 

Mr. RIVKIN. Just 10 seconds. This is actually my favorite hypothetical, because the critics do not want any form of coercion, psychological coercion. 

My favorite example is what prosecutors of Enron did to Andy 

Fastow. They threatened him, (a) to prosecute his wife harshly, (b) 

make sure that he and his wife would serve time concurrently, in 

which case their child would have to go into foster care. 

Does anybody think that that is not a horrible psychological 

threat to make? They meant it, it broke him, and I am not holding 

a candle for him. I never represented him or anybody from Enron. 

But this permeates—custodial interrogation frequently is permeated by horrible pressure, and that is okay. If it is okay for 

Andy Fastow, how it cannot be okay with Abu Zabeda or—— 

Mr. ISSA. And if we just let the others follow up because this is 

one where we know it has been held constitutional within some of 

these guidelines we are talking about. I would like to see how they 

view that for prisoners from the battlefield. Mr. Luban. 

Mr. LUBAN. I agree with what the other witnesses have said. 

Lies that amount to death threats or threats of torture against the 

person or against their family, those are not permissible. Other 

kinds of lies are permissible. 

I think that interrogation is a game in which you are trying to 

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nition, it is adversarial. Tricking it out of a person, it may not be 

something that in everyday life we would think is moral, but in 

that setting, that is moral. The difference is between tricking it out 

of them and coercing it out of them. 

Mr. ISSA. Mr. Sands, I guess we will close with you because you 

haven’t answered, and because these are techniques of course widely used in Britain. 

Mr. SANDS. They are, but I think I am right in saying that the 

U.S. field manual permits this as a technique. And of course the 

U.S. field manual, which governs military interrogations, is an extremely sensible document. It has broad support across the spectrum politically. 

It has been followed in many other countries around he world. 

It does not exclude those types of questioning techniques subject to 

the limitations in terms of family members and related issues. 

And it is, of course, the basis for a vote, I believe, in both this 

House and the other House in relation to new legislation which, 

very sadly, I have to say, the President vetoed just a month and 

a half ago. 

And I think it is important to point out, sir, that decisions that 

are taken by the President such as vetoing legislation which would 

prohibit the use of waterboarding is watched around the rest of the 

world. And it was the subject of intense media attention in the 

United Kingdom. 

And I can go further than that. I wear two hats. I am an academic, but I am also a practicing lawyer. The area of work that I 

do is advising foreign governments. 

And I have been in a room with a president of a foreign government who, when addressing these issues and discussing them, has 

whipped out a copy of John Yoo’s legal advice and said to me, face 

to face, look, the United States allows this sort of stuff, so why not 

do it? 

I have had a foreign minister say the same thing to me. It has 

a big consequence. And so I think you have put your finger on it. 

I think the United States has a terrific leadership role. It can do 

better than that. 

It leads the world on these issues, and it needs to find a way to 

come back to that leadership role. 

Mr. ISSA. Hopefully, as an academic, you suggested that that 

head of state that he not believe a lawyer. Thank you. 

Mr. NADLER. The time of the gentleman has expired. The gentleman from Minnesota is recognized for 5 minutes. 

Mr. ELLISON. Professor Sands, does torture work? 

Mr. SANDS. That is a very general question. 

Mr. ELLSION. Of course it is. 

Mr. SANDS. I have spoken—I have never personally engaged in 

torture, so I have got no firsthand experience of knowing whether 

or not it does work. 

What I have just engaged in is a year and a half of examining 

the aggressive interrogation of one man at Guantanamo. I obtained 

professional medical advice, coming back to this question of was he 

tortured or not, and the conclusion, which is set out in the book, 

is that if you asked 12 clinical psychiatrists whether this man was 

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tortured, all 12 would say he was because of the severe mental 

pain and suffering that he suffered over a 54-day period. 

I know to the best of my abilities to find out that in the case of 

what happened to that man, who was potentially thought to be the 

20th hijacker and therefore a serious individual, it produced nothing meaningful. 

Mr. ELLISON. Here is my question. If you say that—let’s just assume for just the briefest moment in time that some things a person who is tortured says, some things they say are true and some 

things they say are said simply to stop the pain. How do you determine which are true and which are just statements to just—that 

are false, but just to give the torturer some answer to make him 

stop? 

Mr. SANDS. You can’t. There is no way to do that. And the experience with Khalid Sheikh Mohammed, of course, who has owned up 

to everything under the sun, establishes the absurdity of going 

down that route. 

It is simply impossible to know which of the multitude of things 

that man has now confessed to having done is or is not true, and 

there is no way to find it out. And the difficulty, of course, is that 

the disinformation then leads the interrogator and the state that 

is supporting the interrogation to perhaps exclude other avenues of 

investigation to determine the true facts. 

So it is not an approach for that reason also that is useful. I 

think it is clear that it doesn’t work. The British view is it doesn’t 

work. You must never do it, and never means never. 

Mr. ELLISON. Now Mr. Rivkin, I guess if I asked you that question, you probably would say sometimes it does work, right? And 

so, sir, again, I guess my question to you is, if we assume for a moment that a person who is subject to physical torture will say some 

things that are true, and will say some other things that are not 

true. 

For example, if the torturer asks him, name everybody who you 

were with, the person won’t just start giving names, particularly if 

the torturer doesn’t like the answer that the victim of the torturer 

is giving, how do you know which is the right stuff and which is 

the wrong? 

Mr. RIVKIN. I understand. And again, it is a—— 

Mr. ELLISON. But I guess I know you understand, but I need you 

to answer my question. How do you determine which is right and 

which is wrong? 

Mr. RIVKIN. My answer would be this. In most situations, we 

have an opportunity to go back and cross-examine, if a person 

being interrogated says the safe house is in this building on this 

street, and you go and it is not there, you can go back—— 

Mr. ELLISON. Cross-examine like a court proceeding? You mean 

like check it against other facts—— 

Mr. RIVKIN. Well, no, no. You could go back to the same person. 

Look, there are people who will tell you that you can learn as much 

from a person lying as a person telling you the truth as long as you 

understand the context. 

The worst situation for you an interrogator is, you are not getting anything. No information at all. 

119 

Mr. ELLISON. Now wait a minute. Now Mr. Rivkin, let’s just say 

you get an answer and that answer is false. The torturer believes 

that you know, and let’s just say that the torture victim does not 

know, but the torture victim gives the torturer an answer because 

this guy is going to keep shocking me or beating me or drowning 

me until I tell him something. 

So you tell him something, so he names the kids who are on his 

baseball team, or soccer team. Don’t you now have to go and use 

investigative time and resources to either verify or reject that false 

information? 

Mr. RIVKIN. That is correct. 

Mr. ELLISON. Does that take time? 

Mr. RIVKIN. It does take time. 

Mr. ELLISON. Does it take money? 

Mr. RIVKIN. And as always in life, you can have false leads. But 

I repeat, from everything I have heard—— 

Mr. ELLISON. Can you give me an example of a true ticking time 

bomb situation, a specific example in which there was a time and 

a place and a person who was believed to have information about 

some explosion or something, where in fact this particular case 

saved somebody’s life even. Can you give us an example of that? 

Mr. RIVKIN. Well, yes. While I am at a disadvantage because I 

personally do not have—being legalistic—I personally don’t have 

complete proof. But I would point out there is an excellent article 

in the last issue of the National Journal by Stewart Taylor, who 

is widely regarded as a very objective and non-partisan commentator. 

Mr. ELLISON. What is the name of the case that you are referring 

to. 

Mr. RIVKIN. He argues that Khalid Sheikh Mohammed in the circumstances so close post-September 11 was as close as you can get 

to a ticking time bomb, because here was the man who we believe 

to have some information—— 

Mr. ELLISON. Wait a minute, Mr. Rivkin. I am not asking close 

as you can get, I am asking there—— 

Mr. RIVKIN. Well, but he was—— 

Mr. ELLISON. [continuing]. The ticking—I am talking about if you 

don’t—we have to torture you because within 3 hours the bomb is 

going to go off and we have to torture you to stop that bomb from 

going off. Do we have a situation like that? I will even give you 4 

hours. 

Mr. RIVKIN. Well, with all due respect, that is very generous of 

you, Congressman—3 or 4 hours does not—— 

Mr. ELLISON. Five. 

Mr. RIVKIN. It is like arguing what severe is. The view of the Administration, as I understand had, was somebody like KSM who 

has information about impending attacks, could have been matter 

of days or weeks. It does not make it any less—— 

Mr. ELLISON. Okay, Mr. Rivkin, thank you. Mr. Chairman, I 

would just ask the other panelists if they know of a ticking time 

bomb case? Mr. Sands, Ms. Cohn, Mr. Luban, do you know of a 

ticking time bomb, the real case? 

Ms. COHN. I know of one. It is on the show ‘‘24.’’ [Laughter.] 

Mr. ELLISON. It is fictional. 

120 

Ms. COHN. And that is the only one I know of. 

Mr. ELLISON. Mr. Sands? 

Mr. SANDS. I know of none other. And I have never seen the 

show ‘‘24,’’ so I don’t even know of that one. 

Mr. ELLISON. Mr. Luban? 

Mr. LUBAN. Yes, I have been trying to chase down true ticking 

time bomb cases for a couple of years. There have been a couple 

that have been alleged to be ticking time bomb cases. They turned 

out not to be true. 

If I could take a second to describe one, I think the poster child 

was the bomb maker, al-Qaida bomb maker in the Philippines, his 

name was Morad, who was captured because the bomb went off. 

The Philippine police tortured him brutally, and he revealed in 

the end that there was a plot to blow up American Airliners and 

to assassinate the Pope. Now that looks like the ticking time bomb 

case, except for two things. 

First, the torture was not the thing that broke him. What broke 

him was the threat that he was going to be turned over to the 

Israelis, who apparently, according to one journalist, he feared even 

more than he hated. 

And secondly, all the information was already on his laptop, 

which the Philippine police had, except that when you take torture 

as your ‘‘A’’ option, you don’t look at the ‘‘B’’ options. 

And so the idea that a ticking time bomb case is one where only 

torture produces the information, that is crucial. And torture oriented interrogation organizations, police forces begin to gravitate 

toward torture and they leave aside all the non-torture methods. 

All of that information was on Morad’s computer. 

Mr. NADLER. The time of the gentleman has expired. The Chair 

now recognizes for 5 minutes the gentleman from Iowa. 

Mr. KING. Thank you, Mr. Chairman. I would like to thank all 

the witnesses for your testimony. And there has been a lot of information poured forth from this panel. 

It has answered some questions and it has created some curiosity 

on my part. And as I listen, I would lift out of some of the testimony Lieutenant Calley in the My Lai Massacre was raised, and 

the Abu Ghraib prison issues were raised. 

And I would draw those two comparisons as the critics of American conduct in Southeast Asia invariably focused on Abu Ghraib. 

That is the lens through which they would like to have history review the Vietnam conflict. 

The critics of the military operations that liberated Iraq from 

Saddam’s reign of terror would like to have had us view that experience through the lens of focusing on the Abu Ghraib prison incidents, rather than the broader picture and a broader view. 

I will submit that the American soldiers and the American military and our American intelligence security personnel have conducted themselves, by and large, extraordinarily honorably 

throughout history. And I think it is a disservice to focus on the 

exceptions as narrow as they in fact are in the breadth of the history of this country. 

And so this question emerges in my mind, and I ask, I think, 

first from Mr. Sands, who may be more objective about this because of his country of nationality and origin. But is there an exVerDate Aug 31 2005 10:50 Aug 08, 2008 Jkt 000000 PO 00000 Frm 00124 Fmt 6633 Sfmt 6601 H:\WORK\CONST\050608\42212.000 HJUD1 PsN: 42212
121 

ample throughout the history of the United States of America, and 

I will take us back 1776, where the United States has been in a 

conflict against an enemy, militarily, cultural or just an enemy, 

where our enemy took a more moral posture toward our soldiers 

and our combatants and maybe our spies and intelligence people 

than we have ourselves? 

The posture of the United States vis-&-vis our enemies, are we 

viewed—is there is a historical exception where on balance, for the 

conflict that you might choose, that the enemy has taken a stand 

superior in moral authority than the United States? 

Mr. SANDS. Sir, I am afraid I am not an expert on military history, and I am therefore not able to answer that question beyond 

a number of general observations. 

Firstly, I would agree with your observation that the United 

States has been a global leader in relation to these issues, both historically and also in relation to more recent conflicts, and also in 

relation to the vast majority of practice in relation to current conflicts. 

I have had the opportunity to meet a very large number of serving members of the United States military who have been involved 

in Afghanistan, who have been involved in Iraq, and who are involved in other parts of the world. And I leave with an enormously 

positive impression of the role that they have played. 

The story that I have told is not a story about things going 

wrong in relation to the military. It is a story in relation to political 

appointees, and I—— 

Mr. KING. Mr. Sands, in the interest of time, I want to concede 

your point that you are about to make and acknowledge that the 

breadth of this is not a broad criticism, it is very narrow. We agree. 

Mr. SANDS. I believe it is narrow, but its narrowness does not diminish its importance because of the recent—— 

Mr. KING. And I will concede that point to you, and I know it 

is what we are examining here. And I thank you for your response. 

And I turn to Ms. Cohn, and you are advocating for the gaining 

the trust of the person who would be questioned and as one who 

is every day involved in this business of folks gaining my trust, we 

are very resistant to that tactic here in Congress. 

Because there are confidences that we must maintain, or our leverage and influence is significantly diminished. And I would ask 

if you could point out a case where there has been a successful interrogation of enemy personnel by gaining trust that has saved 

lives in the fashion that has been illustrated in the equivalency of 

lives and intelligence that might be comparable to that of Ranking 

Member Trent Franks as he talked about the three incidents of 

waterboarding. 

Can you eclipse that in your historical knowledge of gaining trust 

of the enemy? 

Ms. COHN. Thank you for that question, Mr. King. It is my understanding that when Saddam Hussein was in custody after the 

United States came in and took over that country, that he was 

treated with kindness and in fact, he provided a very rich source 

of information for the people who were interrogating him. 

So that would be example that comes to mind. But I want to say 

one other thing—— 

122 

Mr. KING. Is that quantified? 

Ms. COHN. Pardon me? 

Mr. KING. Is that quantified? I mean, I understand that, too. But 

have we quantified the intelligence gains from Saddam in a fashion 

that measures up against the intelligence gains that referenced by 

Mr. Franks in his opening statement? 

Ms. COHN. Well, the problem is that the intelligence gains that 

were referenced by Mr. Franks in his opening statements are also 

not verifiable because of top secrecy and, quite frankly, given the 

number of misrepresentations coming from the high levels of the 

Bush Administration, I don’t have great confidence in the statements that come from that Administration. 

But I want to say one other thing. And that is that I agree with 

you that our soldiers have been admirable, our troops in this conflict. And we are not talking about our troops, we are talking about 

interrogators, many of whom are mercenaries who are following 

policies that come from the top of the highest levels of this government, and we are not talking just about an isolated case of Abu 

Ghraib. 

We are talking about torture and cruel, inhuman or degrading 

treatment and punishment that has come at Guantanamo, in Iraq, 

in Afghanistan and in the CIA—this is not just an isolated incident. 

Mr. KING. Thank you, Ms. Cohn. I would like to slip in one question in conclusion here, if I might. And it focuses back on the statement made by Mr. Sands. 

And as you illustrated, the IRA and the—by the way, I want to 

say, I agree with you and we shouldn’t call it a war on terror. I 

think that is a misnomer. 

But you made the statement that the IRA, the Irish Republican 

Army, that conflict was extended by 15 to 20 years because of the, 

I believe it was humiliation that was imposed upon some of them 

that extended it because of the outrage. 

And now I would make the point to you that wallowing in selfguilt as a Nation and bringing hearings before this Congress and 

pumping this into the media constantly when we have identified 

that these are narrow, very narrow exceptional circumstances. 

And our knowledge on it isn’t complete, that it extends the outrage, and this panel and this testimony and those things that supplement it across this media also extend the outrage and may well 

be extending this global war against these people whom we won’t 

call terrorists, we will call them Islamic Jihadists. Mr. Sands? 

Mr. SANDS. I would very much like to respond to that, sir. I 

would be very happy to share with the Committee, it is not my 

area of expertise, but I do have access to some of the information 

of the views of the British military and the British political circles 

as to the consequences of using the so-called five techniques on the 

IRA. 

And in fact, the situation I can segueway into your question, sir, 

but—— 

Mr. KING. I want to know if your testimony extends the outrage. 

Mr. SANDS. But Mr. Rivkin said he didn’t believe that any of the 

lawyers involved in the U.K. techniques would ever hold up before 

a court. But the United Kingdom was, and what enabled the 

123 

United Kingdom to move on in that relationship and to get closure 

on that terrible period were judgments of the European Commission on Human Rights and the European Court on Human Rights. 

And my hope, sir, would be that either this Committee or some 

other Committee is able to bring closure to this issue by accepting 

that errors were made and allowing the country to move on. 

Because the consequence of not going down that route is that 

there will be investigations and possibly prosecutions abroad after 

the failure of the United States to have acted. So it is about finding 

closure and moving on. 

Mr. KING. I would ask unanimous consent to allow Mr. Rivkin 

to answer that question. 

Mr. RIVKIN. Very briefly—thank you, very briefly. I want the 

record to show that none of the senior British officials were prosecuted in connection with any of the activities, including assassination, which if the laws of war did not apply would be legal killings 

of IRA operatives. 

So there are different—even if you assume the importance of 

bringing closure to that, there is a right way of bringing closure, 

there is a wrong way of bringing closure. And criminal investigations are prosecutions for the next two decades ain’t the right way 

to bring closure. 

And that is what Britain has done. That is not what Israel has 

done. 

Mr. LUBAN. Mr. Chairman, may I add one comment to this? That 

is that the government of the United Kingdom at that time made 

a clean breast of the five techniques and publicly acknowledged 

that it had been using the five techniques. 

Mr. SANDS. Very briefly sir, it is not accurate to say that no individuals faced individual sanction or responsibility. And I will be 

pleased to provide the Committee with detailed information as to 

what has happened in the United Kingdom. 

Mr. KING. I yield back. 

Mr. NADLER. Thank you. The Chair now recognizes for 5 minutes 

the gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. I thank our witnesses for 

their testimony. 

Ms. Cohn, you mentioned jus cogens and indicated there is no 

statute of limitations for prosecution. 

Ms. COHN. Correct. 

Mr. SCOTT. Is there anywhere in the United States criminal code 

where we can find a basis for prosecution of that concept generally? 

Ms. COHN. Yes. Several Supreme Court decisions have referred 

to jus cogens and customary international law, and it is part of 

U.S. law, just the same way as treaties are once we ratify them. 

Mr. SCOTT. Thank you. We have all agreed that torture is illegal. 

Is there any basis for retroactive immunity if you get good, life-saving information? 

Ms. COHN. No. There is no justification for torture under the Geneva Conventions, under the Torture Convention and under the 

International Covenant on Civil and Political Rights, all three of 

which are treaties the United States has ratified, and therefore 

part of U.S. law under the supremacy clause of the Constitution. 

124 

Mr. SCOTT. And the fact that you got good information does not 

retroactively immunize you for the torture? 

Ms. COHN. No, it doesn’t. No exceptional circumstances whatsoever will ever allow torture under those three treaties. 

Mr. SCOTT. And one of the problems with this is that you don’t 

even know if you are going to get good information when you decide to torture, that you start torturing and you may or may not— 

you may find it didn’t work or you may find the person didn’t even 

have information. 

How many people—if we were to allow torture in the cases where 

you can get good information, how would you know that you are 

going to get good information when you decide to torture? 

Ms. COHN. There is no way or knowing, Mr. Scott. That is the 

problem. 

Mr. SCOTT. Mr. Sands, you have talked about this generally. 

Could you just specifically say the effect of allowing torture, what 

effect that would have on United States troops? 

Mr. SANDS. Well, firstly, I think that there is considerable evidence that the use of abusive interrogation techniques has undermined morale. I have even in the past few days from the publication of the article in Vanity Fair and the book coming out received 

rather amazing e-mails from military, very upper-echelon individuals who are, shall we say, feeling very positive about the way in 

which steps are going to draw a line under this historical moment. 

But more significantly, and I think one need only reverse the situation. If President Bush vetoes legislation that this House has 

passed and that the Senate has passed, which outlaws these techniques of interrogation because he wants to leave them open to possible use in the future, imagine what that does to someone who is 

holding American troops or American nationals and also wishes to 

use the same techniques. 

It simply creates a basis for exposing American nationals or 

American troops to abusive techniques of interrogation that are not 

permitted. And so it creates, I think, an additional risk for American troops in the field and for American nationals, business community, NGOs, individuals traveling around the world doing their 

honest business. 

And that is the fundamental problem with what has happened. 

It has created a fundamental risk for the good men and women of 

the United States, in particular in the military. And that is what 

makes this so pernicious. 

Mr. SCOTT. Thank you. Ms. Cohn, does anybody outside of this 

Administration think that waterboarding is not torture? 

Ms. COHN. This Administration? Well, at Michael Mukasey’s confirmation hearing to be attorney general, retired navy Rear Admiral—he is retired—navy Rear Admiral John Hutson testified that 

aside from the rack and thumbscrews, waterboarding is perhaps 

the most iconic form of torture going back to the Spanish Inquisition. 

The United States pushed for an got prosecutions of Japanese 

leaders after World War II for waterboarding. It is called the water 

torture, the water cure. 

There is really no good argument that in fact waterboarding is 

not torture, and that is why I was so puzzled that Michael 

125 

Mukasey refused to say that waterboarding was torture. I think 

the reason for that was two-fold. 

First of all, he would have been calling his bosses criminals because they admitted engaging in waterboarding. And if 

waterboarding is torture and torture is a war crime, they could be 

liable under the War Crimes Act. 

And secondly, under the Military Commissions Act, evidence obtained by torture is inadmissible, but evidence obtained by coercion 

is admission if it took place before December 30, 2005. 

And so Michael Mukasey knew that information presumably was 

obtained by waterboarding, and if that was torture, then that could 

not be used in some of these military commissions trials. Those are 

the only two reasons I can think of that Michael Mukasey would 

refuse to say what everyone else knows, and that is that 

waterboarding is torture. 

Mr. SCOTT. Well, can this Administration change the law by 

memo? 

Ms. COHN. Can they change the law? It is either torture or it is 

not torture, and waterboarding, if you were almost drowning, and 

some people actually do drown, and so then we are talking about 

homicide, we are talking about murder. 

I mean, there is torture leading to murder, but if you are pouring 

water down someone’s nose and mouth until they almost drown, 

there are just no two explanations for that. There is no good argument that that is not torture. 

And so if the U.S. passed a law saying waterboarding is not torture, it would be like saying the sun doesn’t rise in the east and 

set in the west. It just would not make sense. 

Mr. SCOTT. Thank you. 

Mr. NADLER. I thank the gentleman. I now recognize the gentleman from North Carolina for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. I just have one question, 

but before I ask the question, I just want to express how proud I 

feel that this hearing is being held and the manner in which it is 

being held. And I associate myself with the Chairman’s statement 

that we have a high responsibility here. 

And I would have to say when I came in, I had this fear that 

it was going to deteriorate into a partisan tit or tat, and there has 

been some of that, as there always is in these hearings. 

But by and large, it has just been a very informative, and I think 

a very important hearing to start a process that I think is very important. And I want to commend the Chair and the Chair of the 

full Committee and others who have conducted it at that level. 

Now, the question and I am going to ask this question to Mr. 

Rivkin and Professor Luban because I think they are the only two 

that have not answered it, but I want to express what I think I 

heard from Professor Sands and Professor Cohn already in response. 

And if I misheard them, I hope they will correct what I think I 

heard. I think I heard Professor Cohn say that we ought to be seriously contemplating as a next step pursuing the possibility of a 

special prosecutor to pursue this and pushing this further in that 

way. 

126 

I think I heard Professor Sands say that he thinks that a more 

productive course would be to document more or less for history 

and for future purposes what has occurred so that we make sure 

that we have some rules of the road going forward, but not focus 

so much on pursuing those who may have engaged in—now I may 

be misstating that, and I hope you will correct me if I am. 

Mr. Rivkin, I don’t think you have expressed an opinion on this, 

so what I think is—my question generally is, where do you think 

this Committee should take this, if anywhere, beyond today? 

Should we just let bygones by bygones and go on and keep trucking down the road? Or what do you think we should be doing next 

in this process? 

Mr. RIVKIN. I appreciate the question, Congressman. You are obviously seized of this issue, and you were doing it, how to bring it 

to a responsible conclusion. 

I guess it depends on what is your narrative as to what has transpired. My narrative is entirely different. I think that—— 

Mr. WATT. Well, I appreciate you giving me your narrative. I 

think I know your narrative. But I am more interested in where 

you think we should go from here rather than a restatement of 

your narrative. 

Mr. RIVKIN. Well, I guess, I am—forgive me. I guess I am with 

Professor Sands, which is document the history as fairly and as objectively as you can. I think doing anything beyond that would be 

a gross disservice. 

Even if you think the laws were broken, prosecutorial discretion 

implies exercising law enforcement function wisely. In a time 

where people in good faith, not for any other reason, on both sides 

of the aisle—— 

Mr. WATT. Well, we are not prosecutors, we are a Committee of 

Congress, so—— 

Mr. RIVKIN. Well, but you can—judgment of you are right—you 

have a right to reflect as representatives of the people and your 

own personal capacity, of course, you have a right to express an 

opinion. 

And all I am saying is that to the extent the Congress sometimes 

recommends prosecutions, sometimes it doesn’t. I know technically 

law enforcement belongs to the executive branch. I think it would 

be madness to prosecute anybody, given the facts involved. 

Mr. WATT. I want to come back to you if I have time. But I want 

to make sure that Professor Sands seemed to be a little 

discomforted by the way I characterized what he said, and then I 

want to get Professor Luban’s opinion. But I want to give Professor 

Sands a chance to get a level of comfort if I didn’t correctly state 

what he was saying. 

Mr. SANDS. Sir, not discomforted at all, but if there was an inaccuracy in what I conveyed, then the inaccuracy would be my responsibility and I am sure not yours. 

My position is as follows. There are facts which need to be explored. And it seems to me, and I say this with great deference, 

that that is one thing this Committee can usefully do. 

You are going to have some of these lawyers appear before you. 

You will have an opportunity to put to them specific factual issues 

127 

that have not previously been tested and examined. And that is a 

vitally important function. 

With regards to other aspects, I think one has to accept the following situation. The Torture Convention and the Geneva Convention were violated. Crimes I think on the basis of the material I 

have seen, were committed. 

Under the Torture Convention of 1984, the United States has an 

obligation to investigate and, if appropriate, to prosecute or to extradite to a country where the individual would be prosecuted. 

The position as follows is that, and I set out in the book, there 

are likely to be investigations outside this jurisdiction in relation 

to what has happened. Foreign countries, friendly allies of the 

United States, will have prosecutors, and I described two of them 

in the book that I met with confidentially, who have asked me for 

all of my materials. 

I think that the reason they are able to do that, and they told 

me the reason they are able to do that, is that nothing has happened in the United States. And my point, and I probably did not 

put it as clearly as I could have, is that it is first and foremost for 

the United States to investigate these matters. 

It could do so to begin with within this Committee, whether it 

is by special prosecutor or other means. That is a matter for others 

to decide. But if the United States doesn’t address it, other countries will. 

Ms. COHN. Mr. Watt, may I clarify—— 

Mr. WATT. Mr. Chairman, the—— 

Mr. NADLER. Without objection—— 

Mr. WATT. The one witness we have not heard from on this is 

Professor Luban. 

Mr. NADLER. And without objection—— 

Mr. WATT. I would at least like to get his response. 

Mr. NADLER. Professor Luban. 

Mr. LUBAN. I will put my mike on and then I will be brief. I 

think that it is much more important for this Committee to find 

out what happened to publicize the memos that are still secret 

than—I think prosecutions are much further down the road. I don’t 

think that it would be madness, but I think as somebody who believes strongly that people are innocent until they are proven 

guilty, that it is really premature to be talking about this. 

I would like to find out whether there were ethics violations committed, and there is no right against self-incrimination for ethics 

violations. 

I think that getting the full story out is the most important job 

of this Committee. And if I could say one other thing, I don’t think 

that there is any worry about revealing secret interrogation techniques because the interrogation techniques have been known for 

over 3 years. And al-Qaida reads newspapers. 

And the idea that this would humiliate the United States and 

make things worse I think is wrong. It would show that the United 

States rights its own ship when the ship is listing. 

Mr. NADLER. Ms. Cohn, you wanted to answer that, too. 

Ms. COHN. Yes. I just wanted to follow up on what Professor 

Sands was saying about other countries prosecuting our leaders, 

because that may be kind of a foreign concept to people. 

128 

What I believe Professor Sands is talking about is the concept of 

universal jurisdiction, which is well established in U.S. law as well 

as the laws of most other countries. And universal jurisdiction says 

that if a country such as the United States is unwilling or unable 

to prosecute its own nationals for these heinous crimes, they are 

crimes that are so heinous that they are crimes against all of humanity, and any country can prosecute and punish them. 

And Israel used the doctrine of universal jurisdiction to convict, 

to try, convict and execute Adolf Eichmann for his crimes during 

the holocaust, even though they had no direct relationship with 

Israel. So this is—an there have been investigations. 

My organization, the National Lawyers Guild, together with 

other organizations, have talked to prosecutors in other countries 

to try to encourage them to do these investigations because they 

are not being done in this country. 

Mr. NADLER. Thank you. The gentleman’s time is now truly expired. 

Mr. WATT. Thank you, Mr. Chairman. 

Mr. NADLER. The gentleman from Tennessee is recognized for 5 

minutes. 

Mr. COHEN. Thank you, Mr. Chairman, and Chairman Conyers, 

for holding this hearing. 

Professor Sands, you wrote in your book about a gentleman by 

the name of Spike, aka Marion Bowman. What basis did he have 

to believe that people at the FBI felt that the interrogation techniques being used by our government were illegal? 

Mr. SANDS. I had, as I describe in the book, two meetings with 

Mr. Bowman, whose given birth name was Marion. As he explained 

to me in our first meeting, that was a name that, as a gentleman, 

has got him into some difficulties, so he changed it unilaterally to 

Spike. 

He described to me memoranda that he received and communications that came directly from Guantanamo, for he was not himself 

at Guantanamo, but I think he was an associate general counsel 

for the FBI counterterrorism division. 

He began to receive in late October and early November information from Guantanamo that there was a move toward aggressive 

interrogation at the push of the Pentagon. It is important to recall 

down at Guantanamo, you had not only military interrogators, you 

also had FBI interrogators, and the CIA were also present. 

And there was a tremendous tension going on down at Guantanamo as to what was right and what was wrong. And it would be 

very wrong to portray a situation, it was all one side in favor of 

aggressive interrogation. 

That is not the case. There were a lot of people who were very 

strongly opposed to it. They communicated their concerns to Mr. 

Bowman, and Mr. Bowman then took steps, as I describe in the 

book, to raise the issue directly with the Office of the General 

Counsel in the Department of Defense. 

Now that is one issue that factually this Committee, I think, 

would profitably use its powers to get to the bottom of. Because one 

of the things that I was as I describe in the book is that Mr. Bowman spoke to Mr. Haynes, and from Mr. Haynes he got a brushoff about these issues. 

129 

Now if my account is accurate, and I believe that it is, Mr. 

Haynes would, by the time he received Mr. Bowman’s account and 

expressions of concern, have already have been deeply involved in 

this story. 

And I think that is one area that this Committee would, I respectfully suggest, very carefully look at. What, precisely, was Mr. 

Haynes’ role in the decision on Geneva? When did he first become 

aware of the fact that Mr. Al-Qahtani was being held down at 

Guantanamo? What did he do when he got that information, and 

what conversations did he have with Mr. Rumsfeld about it? 

What meetings did he have and conversations with Mr. Yoo 

about the memo of the first of August, 2002? Now this is an absolutely central point, and I apologize for belaboring it. 

The Administration has stood up and has said time after time 

the August 1, 2002 memo of Yoo and Bybee had nothing to do with 

Administration policies and decisions. That is plain wrong. 

Mr. Haynes went down to Guantanamo at the end of September 

2002, he had knowledge of the contents of the opinion written by 

Mr. Yoo. And to all intents and purposes, the legal advice that he 

claims to have relied on from the staff judge advocate at Guantanamo was irrelevant because he already knew he had Department 

of Justice sign-off. 

And frankly, that is what makes, to my mind, the story that I 

uncovered the most unhappy story, it is that in the face of signoff by Department of Justice of the techniques that were used on 

detainee 063, when Mr. Haynes appeared before the Senate in July 

2006, he pointed to Major General Dunleavey and Lieutenant Colonel Beaver essentially as being responsible for what had happened. 

Those two people have suffered considerable unhappiness as a 

result of that. They have been prosecuted, they have been singled 

out. Neither was given any warning that their memoranda were 

going to be made public. 

Diane Beaver’s legal advice, which of course normally ought to 

have been kept confidential, as all legal advice usually is, was released without her being given any proper warning. Her name was 

left on the legal advice. 

It could have been blacked out. There was no need to reveal publicly that a person who had served honorably in the U.S. military 

for many years should be outed in this way. 

And these are the kinds of facts that as you will see I feel rather 

passionately this Committee can usefully investigate as a way of 

setting the account straight and ensuring that those who truly took 

the decisions are responsible, and that honorable individuals associated with the U.S. military are not tarred with the responsibility 

which they should not have. 

Mr. COHEN. As my time has expired, further Congressman asketh not. Thank you. I yield back. 

Mr. NADLER. [continuing]. The responsibility gentleman. All 

questioning having been concluded, without objection, all Members 

will 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 as promptly at you can so that their answers 

may be made part of the record. 

130 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion into the record. The 

Chair wants to take this opportunity particularly to thank the witnesses. 

And with that, this hearing is adjourned. 

[Whereupon, at 12:17 p.m., the Subcommittee was adjourned.] 

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