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APPLICABILITY OF FEDERAL CRIMINAL LAWS TO 

THE INTERROGATION OF DETAINEES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

DECEMBER 20, 2007 

Serial No. 110–168 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

(III) 

C O N T E N T S 

DECEMBER 20, 2007 

Page 

OPENING STATEMENTS 

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

State of Michigan, and Chairman, Committee on the Judiciary ..................... 1 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 3 

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

of New York, and Member, Committee on the Judiciary ................................. 5 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Member, Committee on the Judiciary .................... 6 

The Honorable Sheila Jackson Lee, a Representative in Congress from the 

State of Texas, and Member, Committee on the Judiciary .............................. 7 

WITNESSES 

Professor Stephen A. Saltzburg, The George Washington University Law 

School 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 10 

Professor John Radsan, William Mitchell College of Law 

Oral Testimony ..................................................................................................... 14 

David B. Rivkin, Jr., Esquire, Baker & Hostetler 

Oral Testimony ..................................................................................................... 16 

Prepared Statement ............................................................................................. 19 

Ms. Elisa Massimino, Washington Director, Human Rights First 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 24 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter dated December 17, 2007, from the Honorable John Conyers, Jr., 

to the Honorable Michael B. Mukasey, Attorney General of the United 

States .................................................................................................................... 66 

Letter dated December 7, 2007, from the Honorable John Conyers, Jr., the 

Honorable Robert C. Scott, the Honorable Jerrold Nadler, and the Honorable William Delahunt to the Honorable Michael B. Mukasey, Attorney 

General of the United States .............................................................................. 68 

Letter dated December 13, 2007, from the Honorable Michael B. Mukasey 

to the Honorable John Conyers, Jr., the Honorable Robert C. Scott, the 

Honorable Jerrold Nadler, and the Honorable William Delahunt, with enclosure ................................................................................................................... 70 

(1) 

APPLICABILITY OF FEDERAL CRIMINAL LAWS 

TO THE INTERROGATION OF DETAINEES 

THURSDAY, DECEMBER 20, 2007 

HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, Washington, DC. 

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

room 2141, Rayburn House Office Building, the Honorable John 

Conyers, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Nadler, Scott, Jackson Lee, 

Cohen, and Smith. 

Staff Present: Sean McLaughlin, Minority Deputy Chief of Staff; 

and Allison Beach, Minority Counsel. 

Mr. CONYERS. Good morning, the Committee will come to order. 

I welcome everyone for coming. The purpose of this hearing of 

course derives from the recent revelation of the destruction of the 

CIA videotapes, which involve hundreds of hours of audio and visual and we are concerned about the decision to destroy them and 

a number of questions have been raised that are ripe for congressional oversight. 

The enhanced interrogation techniques reportedly depicted on 

the tapes implicate various laws governing the proper use of interrogation techniques as we have come to understand them. And the 

destruction of the tapes and the issues surrounding the investigation of the matter raises obvious questions of obstruction of justice, 

as well as the ability of coequal branches of government to initiate 

their own inquiries. 

So I welcome our witnesses here, and I regret the absence of a 

representative from the Department of Justice despite repeated requests, including my letter of December 17. Attorney General 

Mukasey hasn’t sent anyone here to testify. We have not even gotten a letter explaining why, although I am encouraged by reports 

in the press this morning that the Department may be yielding to 

the demands for a congressional oversight with reference to the 

House Intelligence Committee. We will look forward to a long overdue discussion with the head of the Department of Justice when we 

return in January. 

Now another reason for this gathering today is that this is the 

first public hearing and discussion on the issues connected with the 

government’s interrogation of detainees since the incredible news of 

the CIA’s destruction of videotapes. Up until now, the Senate Intelligence Committee has had a hearing, but it was secret. The Department of Justice tells us that they have an inquiry going on. 

2 

That is secret. And so it is important that we try to get an understanding, not only between ourselves and our experts invited here 

today, but that the American people be given a little more understandable information about the very serious matters raised in connection with this subject matter. 

One of the most important responsibilities of the Judiciary Committee is its oversight capacity. That was demonstrated when we 

illustrated the firing of the U.S. attorneys, some nine of them, and 

the politicization that was involved in that. And so oversight is 

something we, all of the Members, are very zealous about maintaining. 

Now the purpose of this hearing is to explore the who, how, 

when, where, why of the destruction of the videotapes and, as importantly, what might have been shown on them. Now there are 

those that say, well, they are gone now, there is nothing that we 

can do. Well, I wish I knew that with any particular certainty. I 

don’t know if there are any copies around. There are certainly people who do know what went on and are still around. There are 

those that seem to know what was on these tapes and that becomes another very important reason for our inquiry. And then to 

separate out all the various laws that govern such activity. 

You start from my point of view with the Geneva Conventions 

and the Convention Against Torture ratified in 1941, 1977, 1984. 

These are international obligations that we urged other nations to 

join with us on. We were the leaders in this brave new examination 

of how we should treat those with whom we don’t agree. And we 

urged others to sign and that required our country as well to prohibit and to criminalize acts of cruel and inhuman and degrading 

treatment. We criminalize those kinds of violations of treaty which 

of course are law in this country. 

The Administration originally claimed that these obligations 

didn’t apply to detainees held or connected with the war on terror, 

but the United States Supreme Court objected to that position in 

the Hamdan case. This is the first time we have had a chance to 

hear and discuss the issues that are involved. We want to have it 

made clear that the Geneva Convention applies to the treatment 

even of people that may be or are connected in this anti-terrorist 

activity. 

Although the Administration convinced the previous Congress to 

enact laws to try to mitigate that decision, we will hear from experts today that torture is still cruel and inhumane and degrading, 

including waterboarding, and may well subject those interrogators 

and those above them who approved it to legal liability. That is an 

important reason why the destruction of the tapes may well have 

been an obstruction of justice. 

Like many others, I believe that the idea of appointing a special 

counsel to independently investigate and prosecute violations of 

Federal criminal laws regarding the interrogation of detainees and 

others is a prudent way for a variety of reasons. First, there is 

credible evidence, numerous Federal crimes; second, that the White 

House itself attempted to shield government officials from criminal 

prosecution; third, the Attorney General Mukasey has still not told 

us whether waterboarding and other forms of torture are outright 

3 

illegal; and, fourth, the Department of Justice wrote the legal opinions authorizing torture. 

So tomorrow we will be hearing from a Federal court that has 

gone into this matter and we will be waiting for their results. So 

I congratulate those Members of the Committee that were able to 

be with us today. We thank them for their interest and cooperation. There is no way we can tell when we were going to get out 

of here. Things got better and we were able to officially close the 

proceedings on the floor yesterday. So I look forward to the Members of the Committee’s inquiry about these important issues, and 

I am very grateful that the witnesses are here today. 

I would now like to recognize Lamar Smith, who is the senior 

Ranking Member of the minority from Texas who has worked with 

me this first year in a way that has surprised and pleased us all. 

We are grateful for his cooperation and insight into the objectives 

of the Judiciary Committee, and I am pleased to recognize him at 

this time. 

Mr. SMITH. Thank you, Mr. Chairman. Mr. Chairman, you were 

complimentary of the Members who are able to be here today. Unfortunately, that compliment can only apply to me for a very short 

period of time because I am trying to get to the airport, but I appreciate your having the hearing and if I may, I will make my 

opening comments even if I have to leave shortly after that. 

Mr. CONYERS. Thank you. 

Mr. SMITH. Mr. Chairman, the Justice Department in conjunction with the CIA’s Office of the Inspector General has already 

begun a preliminary inquiry into the circumstances surrounding 

the discarding of two videotapes of CIA interrogations of terrorists. 

I understand that all records and documentation that would facilitate the inquiry are in fact being preserved. 

What we do know is that members of both political parties had 

been fully briefed on the CIA’s interrogation program and no objections were raised. According to The Washington Post in September 

2002, four Members of Congress met in secret for a first look at a 

unique CIA program designed to bring 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 CIA’s 

overseas detention sites and the harsh techniques interrogators 

had devised to try to make prisoners talk. Among the techniques 

described, said two officials present, was waterboarding. On that 

day, no objections were raised. The enhanced interrogation program would be treated as one of the Nation’s top secrets for fear 

of warning al-Qaeda members about what they might expect. 

The Post continued, saying U.S. officials knowledgeable about the 

CIA’s use of the technique say it was used on three individuals, the 

alleged master mind of the September 11, 2001 terrorist attacks, 

a senior al-Qaeda member and Osama bin Laden associate captured in Pakistan in March 2002 and a third detainee who has not 

been publicly identified. 

According to CIA Director Hayden, the videotapes of the terrorist 

interrogations were discarded to both protect the identities of the 

interrogators and keep them out of the hands of terrorists who 

might use the information to develop effective counter strategies. 

4 

But while we can’t watch the videotapes, ABC News conducted a 

very telling interview with one of the former CIA officials, John 

Kiriakou, who was involved in one of the videotaped interrogations 

of terrorist Abu Zubaydah. 

When the terrorist Zubaydah, a logistics chief of al-Qaeda, was 

captured, he and two other men were caught in the act of building 

a bomb. A soldering gun that was used to make the bomb was still 

hot on the table along with building plans for a school. Zubaydah 

refused to offer any actual intelligence until he was waterboarded 

for between 30 and 35 seconds. According to Mr. Kiriakou, from 

that day on he answered every question. The threat information 

that he provided disrupted a number of attacks, perhaps dozens of 

attacks. 

When a former colleague of Kiriakou asked Zubaydah what he 

would do if he was released, he responded, I would kill every American and Jew I could get my hands on. Near the end of the ABC 

interview Mr. Kiriakou was asked what happens if we don’t 

waterboard a person and we don’t get that nugget of information 

and there is an attack on a movie theater or shopping mall or in 

midtown Manhattan, you know, at rush hour, then what would we 

do? I would have trouble forgiving myself. 

According to reports, Khalid Sheikh Mohammed, the mastermind 

behind the 9/11 attacks that killed 3,000 people, stayed quiet for 

months until he was waterboarded for just 90 seconds. After that 

he revealed information that led to the capture of many other terrorists, including those who were plotting to derail trains, to use 

acetylene torches to bring down the Brooklyn Bridge, to bomb hotels and nightclubs, detonate U.S. gas stations, poison American 

water reservoirs, trigger radioactive dirty bomb attacks, incinerate 

residential high-rises by igniting apartments filled with natural gas 

and cultivating anthrax. 

There are clear laws governing CIA interrogation. Specifically, 

U.S. law prohibits persons in the custody or control of the U.S. 

Government, regardless of nationality or physical location, from 

being subjected to cruel, inhuman or degrading treatment or punishment. The Supreme Court has made it clear that such unconstitutional acts are only those that shock the conscience. 

What shocks the conscience depends entirely on the circumstances and purpose of the interrogation. For example, if someone were picked at random on the streets of New York and 

waterboarded, that would undoubtedly shock the conscience. But 

what if that person was one of the 9/11 terrorists or perhaps a 

known terrorist with information that could save hundreds or thousands of lives? Waterboarding a member of al-Qaeda or a known 

terrorist as a last resort to save the lives of thousands of people 

would not shock the conscience. 

Mr. Chairman, we should be careful not to unjustly persecute 

anyone, especially those whose efforts enable us and our families 

to sleep better at night. 

Thank you, Mr. Chairman, I yield back. 

Mr. CONYERS. I thank the gentleman. I am glad that he made 

his opening statement. 

I am now pleased to call upon the Chairman of the Constitution 

Committee of the House Judiciary. His name is Jerry Nadler, senVerDate Aug 31 2005 15:48 Mar 17, 2009 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 H:\WORK\FULL\122007\39807.000 HJUD1 PsN: 39807
5 

ior member of the Judiciary Committee, and we recognize him now 

for his opening comments. 

Mr. NADLER. I thank you, Mr. Chairman. Mr. Chairman, I want 

to commend you for scheduling this timely hearing into some very 

disturbing reports. It is important that we investigate these allegations carefully, because it is true we may be facing the possibility 

of a dangerous and criminal abuse of power at the highest levels 

of our government. 

The matters at stake here are far from trivial. We have been investigating the abuse of prisoners in U.S. custody, as well as the 

practice of turning over individuals to other countries designated 

by our government in those countries that routinely engage in torture. We have also investigated the practice of holding individuals, 

many of whom our government now concedes are innocent of any 

wrongdoing, for years without any hearing or due process of any 

sort. We have also investigated widespread spying on Americans 

without any legal authorization. 

We have been told that the surveillance was not a violation of 

criminal law, but I know of no possible excuse other than those absurd ones told by the Administration that could justify that conclusion. At every turn we have run into concerted efforts to stonewall 

the public, the Congress and the courts. They have refused to testify, they have withheld vital information, they have flouted subpoenas. 

Today we examine perhaps the most disturbing of all allegations 

that our government destroyed tapes of interrogation which employed what it euphemistically called extreme interrogation techniques and what civilized people call torture. These tapes clearly 

spoke to many of the cases in question that the Congress, the public, and the 9/11 Commission have debated, including unlawfulness 

of the interrogation methods used, evidence for proceedings against 

those held as unlawful enemy combatants. The destruction of these 

tapes may have occurred in violation of a court order and while it 

was known that the matter was under investigation, they were concealed from the 9/11 Commission, the existence as well as the destruction of the tapes. They concealed it from the 9/11 Commission, 

from the Intelligence Committee, and the Congress. 

These tapes may very well have been relevant in at least one 

criminal prosecution, and their destruction may ultimately result 

in the release of a convicted terrorist. These actions raise some 

very disturbing questions, the answers to which may determine 

whether we remain a Nation of law. 

Who ordered the destruction of the tapes and why? Who knew 

about the existence of the tapes and their destruction? What did 

the President and the Vice President know and when did they 

know it? Who in the White House was involved in the decisions 

leading up to the destruction of these tapes? What other evidence, 

if any, has been concealed or destroyed? Did the destruction of the 

tapes constitute a crime? And if so, who in the Administration is 

criminally liable? Did the acts recorded in the tapes constitute a 

crime or crimes? Were any of the decisions made by our government and Congress, including the decision to declare detainees not 

to be prisoners of war but to allow the President to define retroactively what constitutes illegal torture? Were any of these deciVerDate Aug 31 2005 15:48 Mar 17, 2009 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 H:\WORK\FULL\122007\39807.000 HJUD1 PsN: 39807
6 

sions made to protect people in this Administration from prosecution for criminal acts? These are very disturbing questions and 

ones to which we need answers. 

Mr. Chairman, in times of crisis it is always beneficial to remember the principles upon which this Nation was founded. It was 

John Adams who observed that, ‘‘Power always thinks that it is 

doing God’s service when it is violating all the laws.’’ We are supposed to be a Nation of laws and we are a free and democratic Nation but, as we are often reminded, freedom isn’t free. Today is the 

day when we must decide whether we are going to pursue the difficult questions that are necessary to pursue in order to protect our 

freedoms. 

I look forward to the testimony of our witness, and I thank our 

Chairman again for calling this important and timely hearing. I 

yield back the balance of my time. 

Mr. CONYERS. Thank you very much. I would like to inquire if 

the Chair of the Crime Committee would like to make an opening 

statement. 

Mr. SCOTT. Just very briefly, Mr. Chairman. 

Mr. CONYERS. The gentleman from Virginia is recognized for that 

purpose. 

Mr. SCOTT. Thank you, Mr. Chairman. I thank you for holding 

the hearing because I think it is important for us to know exactly 

what the laws are against torture. We have heard an interesting 

response from the Administration that goes along the lines of 

United States does not torture. If we did it, therefore that must not 

have been torture because we don’t torture, and furthermore the 

torture worked. We need to know what the laws are and who may 

have violated the laws. 

What was on the tape? Were criminal laws documented? We 

have heard we can’t tell whether or not a particular technique is 

torture until we have some more specifics. If we had it on tape, 

people could look at the tape and ascertain whether or not that was 

torture, but the tape, the evidence has been destroyed. Who was responsible for the destruction and what criminal laws could be implicated by the destruction itself? 

We have heard that four Members of Congress were briefed on 

this. Some have publicly contradicted some of the statements by 

the Administration. But even if there is no complaint, four Members of Congress can’t change the criminal laws. So insofar as Administration officials have been publicly implicated, from writing 

legal memos justifying both what seems to be torture to most people and the destruction of the documents, many had knowledge of 

the tapes before the destruction, the tapes were not disclosed when 

required apparently to the 9/11 Commission, to Congress, and to 

the courts. 

Mr. Chairman, for those reasons I think it is essential that we 

have an independent counsel appointed, because so many Administration officials from top to bottom from the CIA, Department of 

Justice, and the White House have been implicated in this matter. 

So I join your call for an independent counsel. I yield back the balance of my time. 

Mr. CONYERS. Thank you very much. 

7 

I don’t think I have to ask Sheila Jackson Lee if she wants to 

make a comment because she takes full advantage of the experience that she brings to the Judiciary Committee, and I’d be happy 

to recognize the gentlelady from Texas at this time. 

Ms. JACKSON LEE. Good morning. Thank you, Mr. Chairman, and 

thank you for being the kind of responsive chairperson that is 

made aware or is aware, if you will, of some of the important challenges that this Nation faces. We do know that we live in a different world after 9/11 and we respect that difference. It is the obligation of this country to ensure the safety of all Americans. But I 

believe that the American people did not want us to extinguish the 

Constitution in the backdrop of protecting our security. 

Let me acknowledge the distinguished witnesses that we will listen to and offer a few thoughts about the importance of this hearing. 

The representation is that the CIA in 2005 destroyed at least two 

videotapes documenting the interrogation of two senior al-Qaeda 

operatives in the agency’s custody. The CIA reportedly took this 

step in the midst of congressional and legal scrutiny pertaining to 

the CIA’s detention program, a major challenge to the Constitution. 

It is also important to note that Congressman Peter Hoekstra, the 

Intelligence Chairman from 2004 to 2006, explained that he was 

never briefed or advised that the tapes existed or that they were 

going to be destroyed. Furthermore, it is also noted that Congresswoman Jane Harman, the Ranking Member of the Intelligence 

Committee, explained that she had told CIA officials several years 

ago that destroying any interrogation tapes would be a bad idea. 

I too want to protect the operatives and certainly don’t want to 

put their families in jeopardy, but we cannot have a government 

that is out of control. Questions of obstruction of justice rage 

throughout this incident, and I believe it is important for this congressional Committee to chiefly have oversight as to whether or not 

the Constitution has been violated. 

It has been alleged, and I say alleged, that several then White 

House lawyers, Alberto Gonzales, David S. Addington, Don 

Bellinger, III, and Harriet Miers, allegedly had some involvement 

in counseling regarding the tapes in question. 

The destruction of the tapes has raised questions about both the 

possibility that the tapes documented unlawful conduct and that 

their destruction in and of itself was unlawful. It is sad to note 

that many institutions were forbidden from getting information regarding the tapes, including Congress, the Federal courts and the 

9/11 Commission. This government has to be based upon truth and 

transparency and it certainly must be based upon security and the 

protection of America. But the United States does not make those 

practices violating the laws, violating the Constitution, violating 

the International Convention on Torture. It must not make that 

the norm and acceptable practices. Therefore, we must not draw to 

the practices of foreign dictators, but we must stand alone as a beacon of light, shining around the world, to ensure that the principles 

of democracy and freedom and equality and justice reign strong in 

this Nation. 

And so I am grateful for this hearing and look forward enthusiastically to the testimony of the witnesses. I join with my colVerDate Aug 31 2005 15:48 Mar 17, 2009 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 H:\WORK\FULL\122007\39807.000 HJUD1 PsN: 39807
8 

leagues in calling on an independent prosecutor to ensure that justice reign strong. I look forward to the testimony, and I yield back 

my time and ask that my complete statement be submitted into the 

record. 

Mr. CONYERS. Without objection, so ordered. 

We welcome from the Human Rights First, Lisa Massimino. We 

welcome Attorney David Rivkin of Baker & Hostetler. We are delighted to have with us Professor John Radsan, and we begin our 

testimony with Professor Steven Saltzburg, Wallace and Beverly 

Woodbury University Professor of Law at George Washington University. 

He has had extensive prosecutorial experience. He has been Associate Independent Counsel in the Iran-Contra investigation, was 

later Deputy Assistant Attorney General in the Criminal Division, 

and we are pleased that he has prepared a statement. And his 

statement, like every one here, will be entered into the record and 

you may make your presentation at this point. Professor, welcome 

this morning. 

TESTIMONY OF PROFESSOR STEPHEN A. SALTZBURG, 

THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. SALTZBURG. Thank you, Mr. Chairman, Members of the Committee. I don’t intend to read my testimony since you already have 

it, but I would like to highlight some points. 

First, there isn’t any dispute about the destruction of the tapes 

and that it happened. Second, the rationale for destroying the 

tapes to protect the identity of the interrogators is almost as embarrassing as the destruction itself. There are four facts that demonstrate this. One, the tapes could have been modified to make the 

faces and voices unrecognizable. Second, one copy of each tape 

could have been maintained in a secure place. Third, the CIA keeps 

a record of who interrogates in an interrogation. So even with the 

tape gone there is a record. And fourth, the interrogators and others in the CIA know who did the interrogation. 

And so the explanation for destruction fails the straight face test. 

It is unnecessary to prevent the tapes from revealing the identities 

of the interrogators and the destruction doesn’t protect their identities. 

And so the question is what does it tell us when an agency gives 

an excuse that plainly is frivolous? It says that there is another 

reason why these tapes were destroyed. And the only plausible explanation I believe is that the CIA wanted to assure that those 

tapes would never be seen by any judicial tribunal, not even a military commission, and they would never be seen by a Committee of 

Congress or any individuals in Congress. 

Over the last several years, when this House and the Senate considered the Detainee Treatment Act of 2005 and the Military Commission Act of 2006, Members have been asked their opinion about 

whether waterboarding is torture. They have been asked whether 

or not they support restrictions on CIA interrogation. And one of 

the problems is that terms like ‘‘waterboarding’’ are tossed around 

as though everybody seems to believe that they know what they 

are talking about. 

9 

One of the things that we would love to know is whether what 

those tapes showed was that the actual implementation of 

waterboarding was quite a bit different than people assumed it 

would be. In fact it might have been quite a bit different from what 

the Members of Congress, the four Members who had a secret session, were told in an earlier year. I mean, if they showed nothing 

more than what was already known to Congress, there would be 

no need for them to be destroyed. 

The destruction of the tapes means that there will inevitably be 

disputes about what actually occurred during the interrogations. 

The tapes themselves would have been indisputable, but with them 

gone we have the ultimate coverup. The indisputable evidence no 

longer exists and memories will undoubtedly differ about what happened. 

Now despite the fact that the tapes have been destroyed the Department of Justice originally asked Congress to stay its hand, not 

to investigate, and I think that would be a major mistake. The Department seems to have changed its mind at least to some extent. 

It is vitally important for this Congress to recognize that it is part 

of the interrogation process, that it regulated to some extent interrogation when it enacted those two statutes in 2005 and 2006. This 

Congress decided not to restrict the CIA, at least not explicitly, and 

it decided not to confine the CIA to interrogation techniques that 

are contained in the Army Field Manual. And one of the issues 

that the Congress may well want to consider is should the CIA be 

restricted. 

This is not a Republican issue and it is not a Democratic issue. 

This is an issue about credibility of the United States. When 

United States officers act in a way that is regarded as torture 

around the world; when United States officers engage in practices 

which, if inflicted upon our own military, we would regard as reprehensible, we would regard as violations of the Geneva Conventions, we would regard as war crimes, and we would regard as 

things that should be prosecuted; then it is important for Congress 

to look and make its own judgment about whether or not what is 

going on is something that can be done in the name of the United 

States. 

There are a number of questions for Congress to ask and demand 

answers to. Some of these are: What specific reasons were actually 

advanced for the tapes’ destruction in 2005 and are those reasons 

set forth in writing? If they are, who wrote those reasons? And 

were those reasons vetted inside and outside the agency? If so, 

what were the responses? Were they vetted by the Department of 

Justice? If so, what were its responses? 

Two other questions that should be asked are these: Are the frivolous explanations that are being offered in 2007 the same explanations that were actually given in 2005? And why was the destruction of these tapes kept secret for some period of time? The 

longer the time, the harder it is to reconstruct what actually happened. Congress already has a 2-year gap to worry about and it is 

important that Congress not wait any longer to do an investigation. 

Another issue for Congress to consider is whether there should 

be restrictions on destruction of other forms of evidence. Whether 

or not the CIA should be required to maintain certain records for 

10 

an extended period of time or perhaps forever is a debatable question. I don’t think the answer is clear, but I do think it is important 

that Congress should look to the practices of the agency and decide 

whether or not those practice are acceptable. 

Without meaning to be insulting, I think the fact is that Congress was effectively absent for 4 or 5 years from the debate about 

the war on terror after the attacks of 9/11. Congress watched as 

Guantanamo unfolded and Congress did nothing to restrain an Administration committed to creating a new detention regime and 

new system of justice if you think that term can accurately be used 

to describe Guantanamo. 

Congress finally awoke and exercised some oversight responsibility in 2005 and 2006, but that oversight responsibility largely 

rubber stamped everything that the Administration did. With the 

destruction of these tapes it is clear that Congress no longer can 

afford to be a rubber stamp. Congress must be a coequal, co-responsible branch of government, exercising the oversight function the 

framers of the Constitution so clearly intended. 

Congress can exercise this oversight role without interfering with 

or infringing upon the Department of Justice. The Intelligence 

Committees have the ability to consider classified information in 

very secure situations. This Committee can hold closed hearings as 

well as open hearings and therefore adjust the hearings to deal 

with the sensitivity of the information before it. 

As the Chairman noted back in the 1980’s, I served as Associate 

Independent Counsel on Iran-Contra. I also then represented the 

Department of Justice in dealing with classified information in that 

case. It was important that Congress get to the bottom of IranContra and it is important that Congress get to the bottom of the 

destruction of these tapes. There is no reason to believe the congressional investigation would jeopardize any future criminal prosecutions. 

What we learned is Congress has got to be careful about immunizing testimony, particularly public testimony. That is a lesson of 

Iran-Contra. But we also learned that Congress can proceed full 

bore if it proceeds carefully with its own investigation and criminal 

prosecutions can still ensue. 

There are a number of questions that Congress needs to ask, a 

number of answers that Congress needs to provide. The most important thing, I believe, is that Congress needs to exert itself to 

demonstrate that it can fulfill and is committed to fulfilling its constitutional role of oversight over all branches of the executive. 

Thank you. 

[The prepared statement of Mr. Saltzburg follows:] 

PREPARED STATEMENT OF STEPHEN A. SALTZBURG

Chairman Conyers, Ranking Member Smith, Members of the Committee, it is always an honor and a privilege to appear before you. Today, it is also an opportunity, 

an opportunity to discuss with you the importance of Congress investigating without 

delay the destruction of interrogation tapes by the Central Intelligence Agency 

(C.I.A.). 

We know very little about the tapes that were admittedly destroyed in 2005, and 

even less about the decision-making process that led to their destruction. News reports indicate that lawyers in the White House and possibly in other parts of the 

Administration advised the C.I.A. not to destroy the tapes, and that despite this adVerDate Aug 31 2005 15:48 Mar 17, 2009 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 H:\WORK\FULL\122007\39807.000 HJUD1 PsN: 39807
11 

vice lawyers within the C.I.A. signed off on the legality of the destruction before it 

was approved by a high agency official. 

The only justification offered thus far for destroying the tapes—i.e., to protect the 

identity of interrogators—is completely unpersuasive. Indeed, the explanation is almost as embarrassing as the destruction. Consider these facts: 

1. The tapes could have been modified to make the faces and voices of the interrogators unrecognizable. 

2. One copy of the tapes could have been maintained in a secure place with limited access. 

3. The C.I.A. must keep a record of who interrogated whom for various reasons, 

so that even with the tapes destroyed there is a record of who the interrogators were. 

4. The interrogators and others within the C.I.A. know who conducted the interrogations, and as long as they are alive there is the possibility that the 

identity of an interrogator will be revealed. 

In sum, the explanation offered for the destruction of the tapes does not pass the 

straight-face test. It is flawed in two fundamental ways. First, the destruction was 

unnecessary to prevent the tapes from revealing the identities of interrogators. Second, the destruction does not prevent the disclosure of identities. 

When an agency’s explanation for its actions is plainly frivolous, one must consider what the real explanation for that action must be and why the agency is desperate to conceal this explanation. In my judgment, the only plausible explanation 

for the destruction of the tapes is that they were destroyed to assure that they 

would never be viewed by any judicial tribunal, not even a military commission, or 

by a congressional oversight committee. 

Over the last several years, Congress has debated whether certain forms of interrogation constitute torture. But, the debate has been at a certain level of abstraction. Both this House and the Senate in various hearings have asked witnesses 

whether techniques like waterboarding constitute torture, but the testimony has assumed that members of Congress and witnesses share a common understanding of 

how techniques were and are actually employed. Videotapes of interrogations—particularly interrogations of ‘‘high value’’ detainees—would provide concrete details 

and permit members of Congress to see how techniques are employed against actual 

human beings. 

It is probable that during military commission trials and perhaps future proceedings in federal civilian courts, issues will arise as to whether confessions were 

coerced and whether they are reliable enough to be used as evidence. It will not be 

surprising if conflicting testimony arises as to what interrogators did, how long they 

did it, the frequency of their actions, and the physical and mental hardships inflicted upon detainees. A videotape of an interrogation of one detainee might provide 

circumstantial evidence as to how other detainees were interrogated, especially if 

they were interrogated by the same individuals or individuals trained by the same 

agency. 

Destruction of the videotapes assured that what might have been incontrovertible 

evidence of what occurred during interrogation sessions will never be available to 

any court, congressional committee, or government investigator. It is the ultimate 

cover-up. With the tapes destroyed, anyone seeking to determine with precision 

what occurred during an interrogation will be forced to depend on testimony from 

witnesses who have different perspectives and biases and whose recollections are 

virtually guaranteed to differ. 

Now that the tapes have been destroyed, the Attorney General has asked Congress not to investigate their destruction for some period of time and to defer to the 

Department of Justice’s own investigation. I applaud the Department’s immediate 

reaction to learning that the tapes were destroyed and its initiation of an investigation. But, I believe it would not only be a mistake for Congress to do nothing at 

this point; it would be an abdication of responsibility. 

The Administration persuaded Congress to address the treatment of detainees 

and interrogation methods in two major pieces of litigation: the Detainee Treatment 

Act of 2005, and the Military Commission Act of 2006. This legislation restricted 

the interrogation methods that may be employed by the Department of Defense and 

its components, but did not restrict the methods used by the C.I.A. Moreover, Congress has provided that statements obtained from detainees through coercive methods may be admitted in military commission trials. Congress therefore has both declined to impose upon the C.I.A. the same interrogation restrictions it imposed upon 

DOD, and Congress has adopted evidence rules for military commission proceedings 

based upon its understanding of the types of interrogation actually conducted by 

United States officers. 

12 

The destruction of the videotapes surely requires Congress to ask itself what it 

might have learned had its intelligence committees been aware of the tapes and 

been permitted to review them. For several years now, Congress has debated whether interrogation techniques constitute torture, how torture should be defined, and 

how it should be punished. Congress enacted legislation based upon assumptions. 

The videotapes might well have informed the debate by replacing assumptions with 

undisputed facts. So, Congress has an obligation to ask what it might have learned 

from those tapes, and there is no time to waste and no reason to wait to decide 

whether the legislation previously passed needs reconsideration. 

The Department of Justice investigation will focus on whether laws were broken 

when the tapes were destroyed, and perhaps that inquiry will lead to an inquiry 

into whether the tapes reveal criminal acts (which might well not be prosecuted as 

a result of the Military Commission Act of 2006). The inquiry by Congress ought 

to focus on other, equally important issues. These include, but are not limited to, 

the following: 

Who was alerted to the fact that the C.I.A. was considering destroying the tapes? 

When were they alerted? And what advice, if any, did the knowledgeable individuals 

give to the C.I.A.? The reason for asking these questions is to determine how decisions were made, which agencies were involved, and the quality of advice, both legal 

and practical, that was provided. I note that the New York Times reported last week 

that the Department of Justice has refused to indicate to Congress what role it 

might have played in the destruction of the tapes. This refusal is all the more reason for Congress to investigate and to investigate now. It is important for Congress 

to know which agencies were consulted before the tapes were destroyed and the nature and quality of any counsel provided by these agencies. 

What specific reasons were advanced for their destruction at the time the tapes 

were destroyed? Are those reasons set forth in writing, and if so, by whom? Were 

those reasons vetted inside and outside the agency, and if so, what were the responses? Since it is inconceivable that anyone could truly believe that the destruction was either necessary or sufficient to protect identities, the question that naturally arises is whether the explanation given in 2007 squares with the reasons set 

forth in 2005. If it should turn out that a deliberate decision was made to deny 

courts and Congress ‘‘evidence,’’ Congress might well decide that new legislation on 

record preservation is required. 

Why was the destruction kept secret for as long as it was? A delay between an 

action and review of that action means that memories will fade, and reconstruction 

of events will be more difficult. It will be hard enough for Congress to obtain accurate, complete answers concerning events that are now more then two years old, but 

it becomes more difficult with the passage of time. 

Should the restrictions on interrogation imposed on the Department of Defense 

be extended to the C.I.A.? This question has been debated over several years, but 

the destruction of the tapes is a reason to revisit it. I do not mean to suggest that 

the answer will suddenly be agreed upon by all. But, destruction of the tapes may 

suggest that there are reasons why the C.I.A. did not want them to be seen by a 

Congress that has considered imposing interrogation limits. 

Should there be prohibitions on destruction of videotaped interrogation sessions 

and possibly other evidence gathered in the ‘‘war on terror?’’ Perhaps the answer 

is no, but the question is important and requires some careful thought—now, not 

tomorrow, and not next year. It is possible, despite the adverse public reaction to 

the disclosure of the destruction of the tapes, that C.I.A., the Department of Defense 

or some other federal agency will destroy additional material in months to come. 

Congress needs to know sooner rather than later the advice that was given to the 

C.I.A., the true rationale for its action, and whether destruction of additional evidence is planned or possible. Only with knowledge can Congress decide whether legislation is needed to protect and preserve evidence. 

Congress was effectively absent after the attacks of 9/11 for years while it gave 

almost complete deference to the Executive to detain and interrogate those deemed 

‘‘suspected terrorists.’’ Congress watched as Guantanamo unfolded and did nothing 

to restrain an Administration committed to creating a new detention regime and 

system of justice if that term may be used to describe Guantanamo. 

Congress finally awoke and enacted two major statutes in 2005 and 2006. These 

statutes ratified rather than restricted much of what the Administration had put 

in place. Congress therefore shares responsibility for the types of interrogation that 

United States officers may utilize and for the evidentiary use that may be made of 

the results. That responsibility should require Congress to find out what was lost 

when the videotapes were destroyed and to consider whether changes in United 

States law should be made with respect to interrogation and use of evidence in military commission proceedings. Congress also should consider whether, in its overVerDate Aug 31 2005 15:48 Mar 17, 2009 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 H:\WORK\FULL\122007\39807.000 HJUD1 PsN: 39807
13 

sight of the Executive it is necessary to prevent destruction of evidence that might 

inform the oversight function. Congress might even consider whether new laws are 

needed to assure that Executive agencies do not inhibit congressional inquiry or reduce the reliability of judicial proceedings. 

Congress can exercise its oversight role without interfering with or damaging the 

investigation by the Department of Justice. Congress can utilize its intelligence committees to consider certain sensitive information in secure settings. It can hold 

closed hearings on matters that are less sensitive but cannot be publicly disclosed 

without risk of compromising important governmental interests. And Congress can 

hold public hearings on broad questions such as whether governmental agencies 

should be required to maintain certain types of evidence for specified periods of time 

and whether notice to Congress should be provided before certain types of evidence 

are destroyed. 

Back in the 1980’s, I served as Associate Independent Counsel in the Iran-Contra 

investigation. Later, I served as Deputy Assistant Attorney General in the Criminal 

Division of the Department of Justice and was responsible for handling classified 

information on behalf of the United States as Independent Counsel Lawrence Walsh 

prosecuted Lt. Col. Oliver North, Admiral John Poindexter and others. Judge Walsh 

asked Congress to delay its inquiry into Iran-Contra while he investigated, and Congress acceded to his request by postponing for several months its public inquiry. We 

learned that Congress can damage the ability of a prosecutor to prosecute a case 

successfully if Congress grants immunity to witnesses and forces their testimony in 

public. But we also learned that Congress has a role to play in boosting public confidence that the rule of law is alive and well in America through its investigative 

function. 

There is no reason to believe that an investigation into the destruction of the 

tapes would require Congress to immunize witnesses or to conduct all of its proceedings in open session. As I have indicated, there exist a range of options for Congress to protect classified and sensitive information while satisfying itself that it is 

meeting its responsibilities as a co-equal branch of government. Assistant Attorney 

General Kenneth L. Wainstein and John L. Helgerson, the C.I.A.’s inspector general, have written to Congress and have claimed that ‘‘[o]ur ability to obtain the 

most reliable and complete information would likely be jeopardized if the C.I.A. undertakes the steps necessary to respond to your requests in a comprehensive fashion 

at this time.’’ There is reason for concern here. It would be an unnecessary drain 

on resources and distraction for the C.I.A. to respond to overlapping inquiries by 

this Committee, the House Intelligence Committee and other committees of the 

House and Senate. This is a time for the House and the Senate to exercise leadership and allocate the oversight responsibility so that the C.I.A. is not required to 

repeatedly answer the same questions. It is possible to have oversight that is tailored, efficient and respectful of national security concerns. It is that oversight that 

I encourage Congress to undertake. 

Earlier this year, in an article which I attach entitled A Different War: Ten Key 

Questions About the War on Terror, I wrote the following about the Detainee Treatment Act and the Military Commission Act: ‘‘As a result, it may well be that the 

judiciary will find that its ability to serve as a check on executive power is weakened, and that Congress has given the President the virtual blank check to act that 

he previously did not have. If this is so, the above questions, which contend are 

vital, lead me, and may well lead many others, to wonder whether our cherished 

system of checks and balances now provides inadequate checks and too little balance. . . .’’ Congress needs to exert itself to demonstrate that it is an adequate 

check on executive excess and arrogance. 

Mr. CONYERS. Thank you so much. 

Might I inquire if Steve Cohen, the gentleman from Tennessee, 

had a comment that he’d like to make at this time? 

Mr. COHEN. Thank you, Mr. Chairman. The only thing I would 

like to say is how proud I am to serve in this Congress and on this 

Committee with you as Chair. It is the end of my first year in Congress and the first year on this Committee, which I chose as my 

Committee because of issues such as this. I think our Constitution 

and our laws are so important, and being on this Committee and 

you having this hearing is the reason why I am so proud to be a 

Member of this Congress. And I thank you for not allowing me to 

be the Rodney Dangerfield of the Committee. I thank you. 

14 

Mr. CONYERS. You are more than welcome. As a matter of fact, 

I should give you more time. 

But at any rate, moving to Professor John Radsan, we thank you, 

Professor Saltzburg, for your opening comments. 

Professor John Radsan, Associate Professor of Law at William 

Mitchell College of Law. A leading authority on national security 

issues with a unique combination of professional experience in both 

law enforcement and intelligence activities. He served as a Federal 

prosecutor at the Justice Department and later as Assistant General Counsel to the CIA from 2002 to 2004. We are very pleased 

you could join us today, and we yield the floor to you at this time. 

TESTIMONY OF PROFESSOR JOHN RADSAN, 

WILLIAM MITCHELL COLLEGE OF LAW 

Mr. RADSAN. Thank you very much, Mr. Chairman. Thank you, 

Members of Congress. I apologize that I was not able to share with 

you my prepared remarks, long remarks. I am even amazed that 

I was able to get the one-page outline cleared by the Publication 

Review Board at the CIA. So I will even summarize my outline 

here. 

I am also sorry, Mr. Chairman, that the Committee was not able 

to have a representative from the Department of Justice at this 

hearing, as you noted. I think it is clear that as a former prosecutor, I am not speaking for the Department, I am not speaking 

for the agency. I think it is also clear that my stock does not rise 

with my colleagues from the Justice Department or the CIA by 

being here, but I welcome your invitation to speak to these very 

important issues. 

It is much easier for us as former officials to talk about the CIA 

detention and interrogation program since September 6th, 2006. 

That is an important date because for the first time the President 

acknowledged what the American public knew what Members of 

Congress knew, that we had a secret detention and interrogation 

program. That became clear then the debate was going to be on the 

details of the program, the type of oversight that we would have. 

What I would like to do with my few minutes is to make some 

general observations about this program and then to go very specifically to your question about the destruction of the CIA tapes. I 

am fortunate that I was out of the agency during much of this relevant period, so I can comment in a way that Professor Saltzburg 

has as an informed observer of these events, and I share these observations with you all. 

I agree with the Committee’s work that it will serve the American people to have more transparency, more openness on what 

kind of interrogation techniques the CIA is using, the Department 

of Defense is using and our law enforcement people are using. The 

Administration to counter says that if we are too explicit the terrorists, the bad guys, will train in counter interrogation, they will 

prepare themselves for whatever is in store. I am not saying that 

this is a frivolous argument but I believe strongly on balance that 

it makes more sense for the American public and for support overseas to be a bit more transparent, and more transparent than we 

are today after the Military Commissions Act, after the President’s 

Executive order part of which is classified. 

15 

Congress can be explicit if it doesn’t like a technique such as 

waterboarding, it can ban it. If it doesn’t like seep depravation, it 

can ban it. And I commend any work in that direction to be more 

open about what is on the table and what is off the table. 

I would also like us to be sympathetic though to the CIA, and 

we speak broadly about an agency, that this department learned 

the lessons of the Church Committee hearings, it learned the lessons of Iran-Contra. And there are two broad lessons, one to do 

anything that is aggressive or controversial there must be presidential authorization. And two, even if you have authorization it is 

not sufficient because the President cannot authorize us to break 

the law. 

What many of my colleagues believe is that they accomplish both 

those tasks. According to the press, we had a comprehensive finding by the President soon after 9/11 for very aggressive actions 

against al-Qaeda and other terrorists so that there was a presidential finding. Similarly we have reportings that there was a lot 

of lawyering from the Justice Department to the CIA on the specific techniques or a specific aspect of the program. You and I may 

disagree on the quality of that analysis, but if you are looking at 

it from the perspective of a CIA officer, who is not a lawyer, that 

person may shrug and say, what else could we have done? We had 

a presidential finding, we also had advice from the lawyers, we are 

trying to comply with the law. I agree with you that the destruction of the tapes is different and much more alarming for the reasons that you identified. 

It has become fashionable now for Democrats and Republicans to 

talk about a national security court, a FISA type court, to sort out 

these interrogation issues, what is allowed, what is not, to have 

oversight from an additional branch of government. I support those 

ideas. I also plug people from the Midwest that we had come up 

with some of these ideas even before it was fashionable for professors at Georgetown or Harvard. And if you look at a 2006 National 

Law Journal article written by yours truly, you will see that someone was thinking about this as a way to balance these legitimate 

interests of oversight and allowing the CIA to do what is necessary 

to protect us. 

What is the context in 2005? And I close my remarks on why this 

was important that the tapes were destroyed then, and I agree 

with Professor Saltzburg that we know that the tapes were destroyed. The question is why and why then? I don’t agree with Professor Saltzburg when he implies that the CIA is a monolith, it has 

one brain or one soul. So far from what we can tell it was a decision by the head of the clandestine service, Jose Rodriguez, to destroy the tapes in November ’05. What was going on in November 

of ’05. This was after Abu Ghraib and the revelations that occurred 

in the spring of ’04. That was a Department of Defense program, 

abuses related to their program, but it had an effect on the CIA’s 

program. 

In this period we have had legal guidance from the Justice Department, the so-called torture memo of August 2002 that had been 

withdrawn. The Justice Department was starting to withdraw or 

back away from some of the more aggressive guidance that had 

been given the CIA. It is also very important that another part of 

16 

check on the CIA is the media, and this is right around the time 

that Dana Priest in The Washington Post broke her story about secret prisons in Eastern Europe. She knew the countries, but in the 

back and forth with the CIA, The Washington Post chose not to 

identify the countries. The media reported that some of these interrogations that were on the tapes might have been in those secret 

facilities, so this would have been of concern to people running that 

very secret program. 

We also know at that time, as I am sure all the Members of Congress recall, that Senator McCain was gaining support for the 

McCain amendment that was going to restrict permissible interrogation. The McCain amendment was passed in December of 2005, 

but it was cleared in November that the political lines were changing and that what would have been permissible early in our 

counterterrorism policies was no longer likely—— 

Mr. CONYERS. You can finish your thought, please. 

Mr. RADSAN. From one other, and I will credit your staff members on this, another development you mentioned the Hamdan decision, that did have an effect on the CIA when Common Article 

3 started to affect CIA policies. This is before the Military Commissions Act. If we go back to that period we will see that the Hamdan 

v. Rumsfeld case had been granted cert by the Supreme Court and 

that would have been another concern by Jose Rodriguez and others at the CIA. 

Thank you very much, Mr. Chair. 

Mr. CONYERS. Thank you very much, Professor Radsan. We appreciate your views. And our next witness is Attorney David 

Rivkin, partner at Baker & Hostetler, Visiting Fellow at the Nixon 

Center, Contributing Editor at the National Review. Mr. Rivkin 

has extensive experience in a wide range of international and domestic policy issues. He served in a variety of legal and policy positions in at least two Administrations in the White House Counsel’s 

Office, the Office of the Vice President and the Departments of Justice and Energy. He has also had an earlier career as a defense and 

foreign policy analyst focusing on Soviet affairs, arms control, naval 

strategy and NATO-related issues. 

We are delighted, sir, you can join us, and your statement will 

appear fully in the record as we proceed. Welcome. 

TESTIMONY OF DAVID B. RIVKIN, ESQUIRE, 

BAKER & HOSTETLER 

Mr. RIVKIN. Thank you very much. Thank you very much, Chairman Conyers and other distinguished Members of the Committee, 

for asking me to testify about this important set of issues, I am delighted to be here. Whatever circumstances surrounding the destruction of interrogation videotapes—and let me just say that 

there are certain explanations that are far less sinister than some 

have proffered and I agree in that respect with some of the points 

made by Professor Radsan—it is the law that governs interrogations that should be our foremost concern and it is in this area that 

I will make some remarks this morning. 

There is frequently a misperception that this law bans and absolutely prohibits all coercive stressful interrogation techniques. That 

is not the case. 

17 

As you all know, the most direct set of statutory provisions governing interrogations is contained in the so-called McCain amendment, and the first provision of the McCain amendment specifies 

that no person in the custody or effective control of the Department 

of Defense or detained at DOD facilities shall be subjected to an 

interrogation treatment or technique that is not authorized by the 

United States Army Field Manual, and let me add that this is a 

2005 version of that manual and waterboarding is not authorized 

by that manual. 

Crucially, however, the McCain amendment does not limit other 

U.S. Government agencies with responsibility for interrogations, 

particularly the Central Intelligence Agency, with techniques listed 

in the manual. As to these other agencies, the McCain amendment 

simply provides that no person in the custody or control of the 

United States Government, regardless of their nationality or physical origin, will be subjected to ‘‘cruel, inhuman or degrading treatment of punishment.’’ And in deciding whether the treatment falls 

below the standard the McCain amendment defines as cruel and 

unusual, inhuman treatment a punishment to mean those acts prohibited a by 5th, 8th and 14th amendments of the Constitution. It 

is worth noting here—I am sure it does not come as any surprise 

to you—that the duality, the distinction between two sets of procedures governing the military and CIA interrogations that was 

adopted by Congress with after some back and forth supported by 

the White House came after extensive and informed debate and reflected in my view a joint belief by the two political branches that 

the two agencies, DOD and CIA, interrogated different sets of combatants with vastly different policy equities in place. 

I would say briefly that point was made by Ranking Member 

Smith that as far as the relevant constitutional standards in forming their definition of the term ‘‘cruel, inhuman and degrading’’ are 

concerned, the Supreme Court and lower courts have long recognized that these constitutional standards are inherently contextual. 

There is a case law, a number of cases like Sacramento v. Lewis. 

By the way, I should admit that none of those cases deal with 

interrogations. Those cases deal with far more mundane matters 

like high speed chases, denial of a right to counsel in Betts v. 

Brady; ex parte aspects of child custody proceedings in Miller v. 

The City of Philadelphia. But all of them present not an absolutely 

contextual, all facts and circumstances type analysis of what is it 

that the 5th, 8th and 14th amendments of the Constitution provides and what shocks our conscience and what not. 

To me it is really a matter of common sense and is not particularly surprising. 

Let me briefly make a couple of other points. I happen to think 

that while the legal parameters that govern our interrogations are 

not infinitely elastic, in fact are quite restrictive, they are not as 

inflexible as some would have you believe. 

The real questions are policy questions. Put differently, our legal 

box in my opinion is wider from the policy box. There may well be 

reasons to set interrogation standards tighter than the law requires, and we should not be debating only about the law. That to 

me is a real set of issues for your consideration. 

18 

We need to ask ourselves a couple of questions. The first one is 

whether coercive interrogation techniques are actually useful. I 

heard many critics argue that while building rapport of captured 

enemy combatants invariably produces success, by contrast coercive 

efforts are inherently unreliable because they produce lies. I think 

it is overly simplistic. In fact, I would hope that our government 

takes nothing to al-Qaeda operatives or Taliban operatives or any 

other terrorist groups waging combat against the United States at 

face value, whether the fruit of milder or more coercive interrogation methods. Every bit of intelligence must be carefully vetted and 

cross-checked regardless of the interrogation method used. 

Just as the context is important in deciding what shocks our conscience, what techniques work better is also inherently a contextual matter. There cannot be in my opinion any empirical data as 

to which are the best under all circumstances. In many cases, from 

what we hear, inducing detainees to speak at all is remarkably difficult. Coercive methods of some kind may be appropriate in such 

circumstances. Other detainees by contrast may speak freely, making coercive efforts less necessary. In my opinion, the best interrogation technique is whatever technique within the law produces 

the best results upon a specific detainee in a specific factual context. 

My second point is that I find it extremely unfortunate that so 

much of our discussion is focused on waterboarding. This is just 

one coercive interrogation technique and a very harsh one and 

frankly the one that gives me and some people some pause. But 

there are many other coercive techniques that are much milder, 

still beyond the narrow scope Army Field Manual. And that scope 

I want to emphasize is very narrow. I will give you one example. 

One of the toughest techniques authorized by the manual is called 

Mutt and Jeff, which is essentially another word for good cop, bad 

cop routine, but it is enormously circumscribed here. This is from 

the 2005 manual, page 17. The bad cop, in that situation the bad 

interrogator, may go as far as ‘‘convey an unfeeling attitude’’ while 

being ‘‘careful not to threaten or coerce the source’’ in any way 

while the other individual adopts a more friendly tone. Let me suggest to you that for better or worse a far more aggressive version 

of a good cop and bad cop technique are practiced daily in the police stations in this country in the interrogation of suspected purse 

snatchers or bank robbers. 

I realize that discussion of coercion as used is difficult, it jars our 

21st century sensibilities, it is a very difficult task for any democracy. But I personally cannot conceive of any practical possibility 

but in the foreseeable future, especially given the threats we face, 

we live in a world in which we can abandon the use of coercion in 

a public sphere across the board, over employing training routines 

of our military forces, interrogation of criminal suspects or engagement from unlawful enemy combatants. 

Let me be very emphatic, I am even less capable of envisioning 

of a moral practical reasons for adopting a legal regime that would 

advantage interrogationwise unlawful enemy combatants as compared with ordinary criminal suspects. Yet adopting across the 

board, as you heard a number of people suggest, including previous 

witnesses, the Army Field Manual procedures across the board to 

19 

CIA interrogations to precisely accomplish this outcome would be 

interrogating detainees, high valued detainees less sternly—it has 

nothing to do with waterboarding—than bank robbers or purse 

snatchers. I think with all due respect it makes no sense. 

I thank you for your patience and look for to your questions. 

[The prepared statement of Mr. Rivkin follows:] 

PREPARED STATEMENT OF DAVID B. RIVKIN, JR. 

I want to thank Chairman Conyers, Ranking Member Smith, and the other Members of the Committee for inviting me to testify at this important hearing. 

Whatever the circumstances regarding the destruction of the interrogation videotapes, the law governing interrogations must be our foremost concern. It is on this 

law that I will focus my remarks this morning. It is frequently misunderstood to 

mean that all coercive or stressful interrogation techniques are unlawful. This is not 

the case. 

The most direct set of statutory proscriptions, governing interrogations, is contained in the so-called McCain Amendment. The first provision of the McCain 

Amendment specifies that no person in the custody or effective control of the Department of Defense (‘‘DOD’’) or detained in a DOD facility shall be subjected to any 

interrogation treatment or technique that is not authorized by and listed in the 

United States Army Field Manual on Intelligence Interrogation. P.L. 109–148, Title 

X, § 1002 (2005); P.L. 109–163, Title XIV, § 1402 (2006). I note that ‘‘waterboarding’’ 

is not authorized by the Manual. 

Crucially, however, the McCain Amendment does not limit other U.S. government 

entities with responsibility for interrogations, such as the Central Intelligence Agency (‘‘CIA’’), to the techniques listed in the Field Manual. 

As to these, the McCain Amendment simply provides that no person in the custody or control of the United States government, regardless of their nationality or 

physical location, shall be subjected to ‘‘cruel, inhuman or degrading treatment or 

punishment.’’ 42 U.S.C. § 2200dd. In deciding whether treatment falls below this 

standard, the McCain Amendment defines ‘‘cruel, unusual, and inhuman treatment 

or punishment’’ to mean those acts prohibited by the Fifth, Eighth, and Fourteenth 

Amendments to the Constitution. It is worth noting that this distinction between 

the procedures governing military and CIA interrogations was adopted by Congress, 

with the White House’s support, after an extensive and informed debate, which reflected a joint belief by the two political branches that the two agencies interrogated 

different types of enemy combatants, with vastly different policy equities in place. 

As far as the relevant constitutional standards informing the definition of the 

term ‘‘cruel, unusual and inhuman treatment or punishment’’ are concerned, the Supreme Court and lower courts have long recognized that these constitutional standards are inherently contextual. I point the Committee to the case of Sacramento v. 

Lewis, 523 U.S. 833, 850–51 (1998). As Justice Souter noted, ‘‘[r]ules of due process 

are not subject to mechanical application in unfamiliar territory. . . . [P]reserving 

the constitutional proportions of substantive due process demands an exact analysis 

of circumstances before any abuse of power is condemned as conscience-shocking.’’ 

Similarly, in Betts v. Brady, 316 U.S. 455, 462 (1942), the Court explained that 

‘‘due process of law’’ denotes a right ‘‘more fluid’’ than others guaranteed by more 

specific provisions of the Bill of Rights. Claims of a denial of due process are, the 

Court explained, ‘‘to be tested by an appraisal of the totality of facts in a given 

case.’’ 

More recently, in Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999), 

the Third Circuit explained that ‘‘the exact degree of wrongfulness necessary to 

reach the ’conscience-shocking’ level depends upon the circumstances of a particular 

case.’’ 

Simply put, that which is cruel, inhuman and degrading in one set of circumstances will not necessarily be so in another. This is common sense. The ‘‘ticking 

bomb’’ example may be overused, but it is directly on point here. The law recognizes 

that, whether an interrogation technique ‘‘shocks the conscience’’ depends, in the 

final analysis, on the kind of information that interrogators are trying to elicit and 

the circumstances in which they are doing so. The McCain Amendment is, of course, 

binding law. At the same time, its language should—and must—be interpreted in 

a manner informed by the wisdom of these judicial pronouncements. 

I would like to make two further points. 

First, given that the legal parameters within which the United States government 

conducts interrogations of terrorist detainees are relatively flexible, the real question for the Committee is one of policy. In this regard, we must first ask ourselves 

20 

1 Headquarters, Department of the Army, Field Manual 2–223 (FM 34–52), Human Intelligence Collector Operations ch. 8, 17 (2005). 

whether coercive interrogation methods are actually useful. Some critics argue that, 

while building rapport with captured unlawful enemy combatants invariably produces success, by contrast, coercive methods are inherently unreliable, that they 

produce lies. This is overly simplistic. I hope our government takes nothing that alQaida operatives say at face value, whether the fruit of milder or more coercive interrogation methods. Every bit of the intelligence ‘‘take’’ must be carefully vetted 

and cross-checked, regardless of the interrogation method used. 

Which techniques work better is a contextual matter, and there is not—indeed, 

there cannot be—any empirical data as to which are the ‘‘best’’ under all circumstances. In many cases, inducing detainees to speak at all is remarkably difficult. Coercive methods may be appropriate in such situations. Other detainees may 

speak freely, making coercive methods less necessary. The ‘‘best’’ interrogation technique is whichever technique, within the law, produces the best results upon a specific detainee in a specific factual context. 

Second, I find it unfortunate that so much of our discussion has focused on 

‘‘waterboarding.’’ This is just one coercive interrogation technique. There are many 

other ‘‘coercive techniques’’ that are much milder, but still beyond the narrow scope 

of the Army Field Manual. And that scope is very narrow, indeed. In fact, the toughest technique authorized by the Manual is called the ‘‘Mutt and Jeff.’’ This is a good 

cop/bad cop routine in which one interrogator may go so far as to ‘‘convey an unfeeling attitude’’ while being ‘‘careful not to threaten or coerce the source,’’ while the 

other adopts a more friendly tone.1 Let us remember that, for better or worse, more 

aggressive treatment is daily meted out in police interrogations of criminal suspects. 

I realize that discussion of coercion and its use jar our 21st Century sensibilities 

and it is an inherently difficult task for any idealistic democracy. However, I cannot 

conceive of any practical possibility that, in the foreseeable future, we would live 

in a world in which we can abandon the use of coercion in the public sphere across 

the board, whether employed in the training routines of our military forces, interrogation of criminal suspects, or engagement with captured unlawful enemy combatants. Frankly, I am even less capable of envisioning either moral or practical reasons for adopting a legal regime, which would advantage, interrogation-wise, unlawful enemy combatants as compared, for example, with ordinary criminal suspects. 

Yet, adopting the Army Field Manual procedures across the board would accomplish 

precisely this outcome. 

I thank the Committee for its patience and look forward to the members’ questions. 

Mr. CONYERS. Thank you, David Rivkin. Your testimony raises a 

number of questions that compare what we do in the private sector 

and what we do among governments. 

We now turn to the Washington Director of Human Rights First, 

Elisa Massimino, an expert on a range of international human 

rights issues, a national authority on U.S. compliance with human 

rights laws. Attorney Massimino has taught international human 

rights law at the University of Virginia and teaches human rights 

advocacy at Georgetown University. As a litigation associate at 

Hogan-Hartson, she was pro bono counsel in a number of human 

rights cases and joined Human Rights First as a staff attorney in 

1991 and has directed its Washington office since 1997. 

Human Rights First and Physicians For Human Rights recently 

released a report entitled ‘‘Leave No Marks, Enhanced Interrogation Techniques and the Risk of Criminality.’’ It provides the first 

comprehensive analysis of ten techniques widely reported to have 

been authorized for use in the CIA’s secret interrogation program, 

including sleep depravation, simulated drowning, stress positions, 

beating and induced hypothermia. We are delighted you could join 

us and we welcome you at this time. 

21 

TESTIMONY OF ELISA MASSIMINO, WASHINGTON DIRECTOR, 

HUMAN RIGHTS FIRST 

Ms. MASSIMINO. Thank you, Mr. Chairman. And I have a longer 

statement as well prepared for the record, which I will try to summarize as quickly as I can. I want to thank you for your leadership 

and for the work of the Committee and its excellent staff in persistently staying on top of these important issues. As a human rights 

advocate based in the United States, it is very important for my 

own ability to do my work in pressing other governments to respect 

human rights, that my government do its best to play a leadership 

role in promoting those standards. We have heard a lot this week 

from Attorney General Mukasey and others about the need to modernize outdated surveillance laws to reflect 21st century technologies. But there is one area of our counterterrorism policy that 

is quite literally stuck in the dark ages, and that is our interrogation policy. 

When I left private practice to help open the Washington office 

of Human Rights First more than 16 years ago, I never imagined 

that in 2007, I would find myself in the middle of a debate with 

my own government about whether waterboarding, the 21st Century euphemism for a form of torture that dates back to the time 

of witch-hunts and the Inquisition is illegal. But that is where we 

are today. 

On December 6 the CIA director, General Michael Hayden, acknowledged that the Agency destroyed videotapes of two senior alQaeda members being subjected to interrogation techniques that 

reportedly included waterboarding, stress positions, exposure to extreme cold and other interrogation methods that leave no marks. 

The tapes were destroyed in November 2005, 3 years after the interrogations took place. At around that same time, Congress was 

scrutinizing the secret CIA detention program and Vice President 

Cheney was engaged in an aggressive lobbying campaign to carve 

out an exception for the CIA from the McCain amendment’s prohibition on cruel, inhuman and degrading treatment. 

The New York Times reported yesterday that high level White 

House and CIA lawyers were involved in the discussion that led to 

the tapes’ destruction. The CIA’s decision to destroy the interrogation tapes indicates that at least some in the Administration understood what we know: that the acts depicted on those tapes were 

unlawful and would shock the conscience of any decent American 

who saw them. 

The Administration now appears willing to acknowledge the legitimate role of Congress in investigating these matters. And we 

welcome its decision late yesterday to permit CIA Acting General 

Counsel John Rizzo to testify about the decision to destroy the 

tapes. He and others have much to answer for, not only with respect to the destruction of the tapes, but also about who authorized 

the acts depicted on those tapes. 

Throughout the torture scandal, beginning with the revelations 

of abuses at Abu Ghraib, accountability for these policies has come 

only at the lowest level. I hope as Congress begins this investigation, it will break the pattern that it has held so far; punish the 

monkey and let the organ grinder go. I hope my testimony today, 

which derives heavily from the report that you mentioned, Mr. 

22 

Chairman, will help shed some light on the legal standards governing interrogation which the Administration has sought for so 

long to distort, obscure and evade. 

You have asked me to address the applicability of Federal criminal law to the interrogation of detainees. I start from the premise 

that intelligence gathering is a necessary and perhaps the most important tool in disrupting terrorist networks. Effective interrogations designed to produce actionable intelligence are a legitimate 

part of that effort. Such interrogations can and must be conducted 

consistent with the laws and values of the United States. But that 

has not been the case. The Administration’s approach to interrogations after 9/11 was to assert broad executive power and seek to 

redefine the rules governing treatment of prisons. 

During his confirmation hearing, Attorney General Mukasey was 

asked whether he felt waterboarding, which creates in its victims 

the terrifying fear of imminent death by drowning, is illegal. He 

equivocated claiming that the answer would depend on a complex 

statutory analysis that he could not undertake without access to 

classified information. But a group of retired generals and admirals 

who served as the top uniformed lawyers in the Army, Navy and 

Marine Corps had a more straightforward answer to that question. 

As they said in a letter to the Senate Judiciary Committee, ‘‘The 

law has long been clear: waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise or even to 

give credence to such a suggestion represents both an affront to the 

law and to the core values of our Nation.’’ 

Judge Mukasey seems have to missed the most fundamental 

point about U.S. interrogation policy after the Hamdan decision, a 

point that he should bear foremost in mind during his deliberations 

about the legality of waterboarding and other enhanced techniques 

that he is reportedly undertaking now. If the U.S. Government 

does not want American citizens or soldiers to be subjected to these 

techniques then it may not employ them itself. The Supreme Court 

ruled that Common Article 3 of the Geneva Convention governs 

U.S. treatment of al-Qaeda detainees, including all interrogations 

conducted anywhere by any U.S. agency. 

If the CIA is authorized to use a particular interrogation method 

under the executive order that the President issued in July, it 

means the United States Government considers that method to be 

compliant with Common Article 3. And if it is compliant with Common Article 3, then U.S. enemies can use it against captured Americans in any situation governed by Common Article 3. Some, including Admiral McConnell, Director of National Intelligence, have 

implied that the United States wants detainees to believe that they 

will be tortured by American captors. Yet it wants the rest of the 

world to believe just the opposite. We cannot have it both ways. 

Our biggest problem now is not that the enemy knows what to 

expect from us. It is that the rest of the world does not. Ambiguity 

about U.S. interrogation practices has not benefited U.S. security. 

Quite the opposite. This ambiguity combined with the Abu Ghraib 

scandal and the deaths of prisoners in U.S. custody has severely 

damaged U.S. efforts to defeat al-Qaeda. And for what? In the case 

of Abu Zubaida, tapes of whose interrogation were among those destroyed by the CIA, the FBI claims that the use of enhanced techVerDate Aug 31 2005 15:48 Mar 17, 2009 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6601 H:\WORK\FULL\122007\39807.000 HJUD1 PsN: 39807
23 

niques rather than producing reliable intelligence, interrupted and 

corrupted the flow of intelligence they were getting from Zubaida. 

That assertion comports with mainstream military opinion. 

For example, in releasing the new U.S. Army Field Manual on 

interrogations last year, Lieutenant General John F. Kimmons, 

deputy chief of staff for Army Intelligence said that, ‘‘No good intelligence is going to come from abusive practices. I think history tells 

us that. I think the empirical evidence of the last 5 years, hard 

years, tells us that.’’ Likewise, General David Petraeus, commander 

of U.S. forces in Iraq, wrote earlier this year in an open letter to 

U.S. troops serving there, ‘‘Some may argue that we would be more 

effective if we sanctioned torture or other expedient methods to obtain information from the enemy they would be wrong. Beyond the 

basic fact that such actions are illegal, history shows that they are 

also frequently neither useful nor necessary.’’ 

Moreover, military officers have said that any suggestion by the 

White House that such techniques can be used by the CIA will undermine the authority of military commanders in the field where 

troops face ticking time bombs every day in the form of improvised 

explosive devices, but are told by their commanding officers that 

such techniques are never acceptable. 

Mr. CONYERS. Thank you. 

[The prepared statement of Ms. Massimino follows:] 

24 

PREPARED STATEMENT OF ELISA MASSIMINO


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41 

Mr. CONYERS. We are indebted to all of you for your excellent 

evaluations and analysis. I am struck, Attorney Rivkin, by the fact 

that you refer to this good cop, bad cop thing, which seems to be 

common practice. The Chairman of the Crime Committee, Bobby 

Scott, has listened to police violence and brutality down through 

the years, long before he became Chairman of this part of Judiciary 

Committee. And I was thinking, you suggested that maybe some of 

these restrictions on people held at Abu Ghraib and other places 

may be under more coercion or may have more rights or less harshly treated than what happens in police stations in the common 

course around here. And that is very interesting to me because we 

have been working on that in a number of ways, prosecutorial 

abuse and police violence, which, by the way, is up as I recall. 

And so I hope we get a chance to go into that some more. Now, 

we have the question of whether a special prosecutor makes a good 

next step or whether we should create a FISA like court or whether 

we should try to engage in effective oversight. And Professor 

Saltzburg, do you have a feeling about what direction we might 

want to consider moving in when we come back for the last half 

of the 110th Congress. 

Mr. SALTZBURG. I do. Maybe I ought to address that in just three 

specifics. I think Professor Radsan’s suggestion, and he does deserve credit for talking early on about the idea of a new court, 

which basically might be an expansion of a FISA kind of court, I 

think it is certainly worth serious consideration. But it is a longerterm solution, I believe. Right now, we have facing you the question of what are we going to do about these tapes that were destroyed and what kind of an inquiry should take place. Ordinarily, 

I think the lessons of special prosecutors are not happy ones. And 

ordinarily I would say I have a strong presumption to let the Department of Justice investigate. 

The problem here, however, is that the Department itself has refused to answer questions about whether it was asked about destruction or whether it advised on destruction. And if, in fact, there 

is a possibility that it was asked and it did advise, and if it in fact 

authorized in any way the destruction of the tapes, it seems inappropriate to have it investigate itself. And I think this is a big 

issue. Now, The Washington Post yesterday, 2 days ago actually, 

had a story which indicated that—and Congressman Scott was 

talking about this, I have the article right here—that indicated 

when Judge Mukasey was the judge in the Padilla case, or Padilla, 

he has now said it both ways, he approved a material witness warrant, and some of the information that was obtained and used in 

the warrant was obtained in the interrogation of Abu Zubaida. 

Now, that means that Judge Mukasey himself has had a case 

which may, in fact, have been tainted in a way by that interrogation, or at least affected. ‘‘Tainted’’ may be the wrong word. That 

raises a question about whether he is the right person right now 

to be leading this investigation. One thing that the Committee is 

surely going to be aware of is that there is a movement in this 

country in major police departments, the District of Columbia being 

one, and the American Bar Association supports this, to require the 

videotaping of all interrogations. And the reason is so that we 

know exactly what happened. And if there is a challenge to the 

42 

lawfulness of what happened we have incontrovertible evidence. If 

a police department destroyed a videotape of an interrogation in 

the District of Columbia, you can bet a judge would be saying why, 

I want to know why, and I am not sure I am going let a confession 

in where there is now only testimony and no tape. 

This Committee, I think, needs to exercise its oversight function 

to answer the questions that you raise, Mr. Chairman, and some 

of us have suggested, into why it was that those tapes actually 

were destroyed. Now, Professor Radsan may be right, there may be 

a whole lot of things that were going on. But most of those things 

end up being things which the CIA seems to have feared that if 

tapes ever saw the light of day that people would see things that 

they might find profoundly disturbing. 

As I said earlier, I don’t know exactly what the CIA is doing in 

the secret interrogation facilities. I don’t know whether there is one 

form of waterboarding only or whether or not the CIA has perfected it and advanced it. I suspect that videotapes would have told 

us a lot. I just can’t resist the one comment about what goes on 

in police stations and what goes on in secret interrogation facilities. 

Since 1966, when somebody is interrogated in custody, he or she 

is given the Miranda warnings. They are told they have a right to 

remain silent, they are told they have a right to a lawyer. There 

is no good cop, bad cop until those people decide they don’t want 

a lawyer and they are willing to talk, and then we have certain 

rules on top of it. We don’t give Miranda warnings, and I don’t 

think we should, to people who are detained for intelligence interrogations. But to compare the two and say we are tougher on people who are arrested and charged with crime in the United States 

than we are on terrorists is ridiculous. It ignores what goes on 

daily in every police station in the United States where police officers conform to the law. 

So basically, I think you make a good case given the peculiar circumstances that we face now that there should be a special prosecutor. I think that some consideration given to a court that has 

expertise in intelligence matters that would canvas more than just 

interrogation, including surveillance and the like, can make a lot 

of sense, but that this Committee and this Congress has an obligation to proceed to investigate and not wait for a new court. 

Mr. CONYERS. Thank you. Professor Radsan. 

Mr. RADSAN. Mr. Chairman, when I was a student, I didn’t like 

when professors answered my questions with a double negative, 

but I am going to do that here. I am not opposed to a special prosecutor for the reasons that you have highlighted. The Justice Department was actively involved in giving guidance on the detention 

and interrogation program. We are going to find out whether the 

Justice Department was involved in any way in advising about the 

destruction of the tapes. We know that there is at least one case, 

the Padilla case, that may have bee influenced by something that 

went on in one of those interrogations. It is going to cloud some of 

the existing criminal cases that the Department of Justice has. 

I know that people were concerned about the attorney general’s 

reticence about waterboarding. If I were in the Department and 

you asked me, I think it is a cleaner way to get to the bottom of 

what happened with the tapes. To alarm the Committee a bit more, 

43 

it is only a few weeks ago that The New York Times reported that 

Director of the CIA, Michael Hayden, had set up an internal unit 

to inspect the Inspector General. That we didn’t trust our internal 

affairs, we had another internal affairs. 

The reporting has been that this is a joint investigation into the 

tapes between the Justice Department and the inspector general. 

That complication, the complication between the inspector general, 

the general counsel, the inspector general and the director may be 

another reason suggesting that we should have a special prosecutor 

on the tapes. 

Mr. CONYERS. Thank you very much. Attorney Rivkin. 

Mr. RIVKIN. Thank you, Mr. Chairman. On the question of special counsel, these are in many respects the kind of institutional 

issues that I don’t think that the two branches would ever see eye 

to eye across the board. But let me just point out a couple of 

things. And let me quote The Washington Post editorial from a couple of days ago. We do have a new attorney general, a man of exceptional property, I have not heard anybody challenge that, who 

has said very clearly that we have normal investigatory procedures 

by the career people in the Department involving career attorneys 

from both our national security division and public integrity section. 

In some sense, when somebody says that per se this is inadequate, we are impugning the integrity of people who spend their 

lives in the government who are not partisan who are looking presumably at the facts as they are. If at some point in time information comes to light that suggests there is real conflict here, I have 

no doubt that the attorney general would reach a decision to appoint a special counsel. Not an independent counsel. There are no 

more independent counsels. But a special counsel in accordance 

with the Department of Justice regulations. But the notion that it 

should just be done at the outset without going through a normal 

process, it seems to me somewhat unfair. 

Mr. CONYERS. You don’t see any existing conflict? 

Mr. RIVKIN. Not on the facts—let us assume for example, and I 

hate to speculate, but these are speculations in the media—let us 

assume that, I know it is not an assumption that everybody in this 

room would share, that while the destruction of the tapes may have 

been foolhardy or their creation may not have been wise, because 

with all due respect to my colleague, the normal procedure in the 

FBI and the police department right now is not, repeat, not, to create videotapes. 

I think the decision to destroy them would have been foolhardy. 

Whatever it is worth, if it was up to me, I wouldn’t have done it. 

But let us assume it is a policy question. You have a whole bunch 

of lawyers, including the White House counsel’s office and the Justice Department who said our advice to you is not to do it. But because we are modest lawyers, we are not trying to play a policymaking role here because there is no legal bar, our advice as a prudential matter, don’t do it, but always it is up to you. 

If it is that kind of situation, I don’t see any conflict here. And 

I think nobody has suggested in any of the stories in the media so 

far that the attorney urged or encouraged them to destroy it. I 

mean, every single person, including some individuals who I am 

44 

sure you would have policy difficulties, including David Addington 

and Harriet Miers have urged them reportedly not to destroy them. 

So where is the conflict for the lawyers involved. If it appears to 

be a problem I am sure that the attorney general would do that. 

But let me take 30 seconds and make the point, which I think, 

frankly, is far more important on how this investigation will proceed. I am not advocating rough techniques in police stations. All 

I am saying to you is this. That the particular parameters for the 

good cop, bad cop routine outlined in the Army Field Manual with 

all due respect are far more restrained than nonabusive lawful interrogation techniques. For example, you are not supposed to 

threaten somebody. 

Let us think about what it means. Then the police interrogators 

or investigators are going to interrogate a fellow by the name of 

Fastow, who was one of the key players in Enron, and tell him if 

he doesn’t cooperate they are going to nail his wife and put her in 

prison. If it not a threat, if it is not a coercion, I don’t know what 

coercion is. And that technique is available to you in the context 

of a normal criminal investigation. And yet, under the plain language of a manual, it doesn’t appear to be available to an interrogator because you cannot use intimidation of any kind. We should 

hear at least an honest mature discussion why we cannot have a 

baseline across the board in public sphere as to what level of coercion is appropriate instead of only talking about it in this context. 

Because I cannot imagine why we should be treating Andy Fastow, 

who I am not holding any candle for, who undoubtedly is a bad guy 

and a criminal, why should we be treating him better than Abu 

Zubaida. That makes no sense to me. 

Mr. CONYERS. We should also notify the producers of television 

cop shows that they ought to use a little bit more legal restraint 

in the course of their activities, because people get the idea that 

it is okay because you see it every night. Ms. Massimino, help us 

out here. 

Ms. MASSIMINO. I have a couple of points I would like to make 

on this. One is Mr. Rivkin referred early on to the importance of 

the question of the legality of the underlying conduct even being 

more important than the tapes. And I think that is where the conflict arises, which leads to a requirement of having a special counsel here. Because we are talking about questions about whether or 

not techniques that are depicted on those videotapes are unlawful. 

That relates to the question of whether or not the destruction of 

the tapes would be the obstruction of investigation into criminal activity. 

So I think that is really for me the strongest argument for a special counsel. I do need to take issue with one thing that my friend 

to my right said. And that is that I wouldn’t want this Committee 

to get the impression that what we are talking about here when 

we are discussing interrogation techniques is whether or not interrogators can yell at a prisoner or be mean. 

The enhanced techniques that we are talking about and that we 

outline in our report ‘‘Leave No Marks,’’ are serious forms of torture and cruel inhuman and degrading treatment. Long-time 

standing, another euphemism for stress positions that the United 

States has prosecuted as a war crime, waterboarding, forced hypoVerDate Aug 31 2005 15:48 Mar 17, 2009 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6601 H:\WORK\FULL\122007\39807.000 HJUD1 PsN: 39807
45 

thermia, forced nakedness, the use of dogs, these are techniques 

that have been reported to have been used under this enhanced interrogation program. 

We are not talking here about whether or not you can yell at a 

prisoner or make them uncomfortable. 

Mr. CONYERS. Thank you so much. If you want to put your document into the record we will accept it at this point. 

Ms. MASSIMINO. Thank you, sir, very much. I would like to do 

that. 

Mr. CONYERS. I would like to now turn to the Chairman of the 

Constitution Subcommittee, Jerry Nadler. 

Mr. NADLER. Thank you Mr. Chairman. Let me start with Professor—well, either Professor Saltzburg or Professor Radsan. There 

is—we are talking about the destruction of tapes that the CIA has 

admitted being destroyed about the interrogation of two alleged 

terrorists, Abu Zubaida and I forget the name of the second fellow. 

But there is also evidence that other tapes were destroyed. A number of the interrogation tapes of Padilla, Jose Padilla, were released 

to his attorneys early this year, but the tapes of a crucial interrogation had, as one government lawyer explained, mysteriously disappeared, unquote. 

It disappeared even though the Federal judge presiding over 

Padilla’s criminal case which was initiated by the Federal Government to avoid Supreme Court review of his prolonged military confinement, even though the judge in that case had ordered the government to preserve all interrogation tapes and tapes of more than 

a dozen other interrogations were never turned over, do you believe 

that the destruction of these tapes is part of a larger phenomena, 

not phenomena, of a larger situation in which the government is 

destroying evidence. 

Mr. SALTZBURG. I don’t want to believe that. 

Mr. NADLER. But does the evidence indicate that? 

Mr. SALTZBURG. Every time—what we know about the CIA’s destruction is that it was willful, that it was carefully thought out, 

that it was done after seeking some advice at least. We don’t know 

all the advice, that is one of the questions. The Padilla tape is, in 

some ways, more disturbing, equally disturbing I guess, because we 

have a criminal prosecution where the government has the highest 

obligation to preserve evidence and a missing tape is a big deal. 

And the interrogation presumably took place during a time when 

Padilla was deemed to be a terrorist suspect. That is why he was 

originally detained. There appears to be some effort to prevent 

judges, and perhaps Congress, from actually seeing what goes on 

in some of these interrogations. That is the disturbing thing. You 

asked whether it is a pattern. I think that is one of the things that 

this Congress needs to look at. I don’t think you know or have any 

idea how many interrogation tapes actually exist. 

There are rumors in the intelligence community, there are rumors that there are videotapes of interrogations conducted by foreign officials on detainees who were transferred to them by Americans who were present during the interrogations but weren’t the 

interrogators. Now, if those tapes exist I would think that this Congress would want to have a look at them and want to be sure that 

they were not destroyed. But we don’t know about what tapes 

46 

exist, and then we don’t know that they have been destroyed until 

there has been a disclosure after the fact, which is what happened 

both in the CIA situation and in the Padilla situation. It is surely 

disturbing. 

Mr. NADLER. Let me ask you a follow-up question, if I may. Your 

testimony suggests that there are other tapes that may exist that 

may indicate all kinds of perhaps misconduct, perhaps not misconduct in interrogation situations. Congress certainly has a right 

to see them. Now, if we were to subpoena, issue a subpoena for all 

interrogation tapes, would there be any legal, I am sure the Administration would find some excuse, but would there be any legitimate legal reason for the Administration to say no we refuse to 

supply them? 

Mr. SALTZBURG. Let me answer that question in two parts. First 

of all, I have absolutely no doubt if you issued a subpoena it would 

not be obeyed. And the reason it would not be obeyed is there 

would be a claim of national security privilege. Second, is that 

claim valid against the United States Congress. The answer is no. 

If it were, then any claim of national security would prevent this 

Congress from ever seeing anything the government didn’t want to 

produce. 

Mr. NADLER. So a claim of national security privilege is never 

valid against a subpoena from Congress? 

Mr. SALTZBURG. The problem is enforcing it. 

Mr. NADLER. As a matter of law, you would say because Congress 

has—our rights under the national security law is never valid. 

Mr. SALTZBURG. I believe this is one of those issues on which people who believe in absolute executive power will tell you the executive has the right to make the final decision on national security. 

Those of us who believe that no branch is absolute, believe that 

checks and balances require that, in some fashion now, the executive is responsible to Congress and that, for example, the Intelligence Committee ought to be able to review tapes, again in a very 

secure manner, I am not suggesting that the subpoena ought to 

mean that Congress gets to see it and disclose it, but certainly Congress, in order to exercise its oversight role, is entitled to be exposed to some of the most important secrets we have. Otherwise 

you couldn’t legislate, and actually you couldn’t fund the things the 

executive wants to do. 

Mr. NADLER. We are certainly finding that to be the case with 

some of our other things like FISA. Professor Radsan, will you comment on the same questions? 

Mr. RADSAN. The second question first. I agree with Professor 

Saltzburg. It would be a very interesting constitutional law question. I agree that the executive would not easily comply with the 

subpoena. If you went to the courts, I don’t think the courts would 

take it. They would avoid the issue through the political question 

doctrine. They would leave it to the two branches to sort out. That 

is a prediction about constitutional law. You can ask the constitutional law professors to speculate. This would be a great hypothetical for next year’s examination. On your first question about 

the tapes—— 

47 

Mr. NADLER. In that case, our only recourse would be the power 

of the purse, the CIA gets no money unless they give us the tapes? 

Would that be what we should do? 

Mr. RADSAN. The branches have other ways to put pressure on 

each other. And if you go down that road, it will be a very interesting interaction between the two political branches. If there is a 

pattern of destroying tapes as you suggest, and I have no reason 

to believe that there is, the pattern may even be broader than we 

are talking about. It is not—if your theory is true it is not just the 

CIA for this reason. I don’t know that the Padilla tapes were necessarily CIA tapes. They may have been Department of Defense 

tapes, Justice Department tapes. If there was a pattern, if your 

facts are right, then it would be a pattern that links up something 

that went on in that case and a known destruction in a CIA case. 

We do have another set of tapes though, tapes that were referred 

to in the filing that the Justice Department made in the Moussaoui 

case, and those tapes seem to be different from any other tapes. 

And as far as we know from the public record, those tapes have 

been intained. I have read that filing. My conclusion, and I am not 

confirming anything from the classified record, my conclusion by 

that affidavit is those tapes were tapes that were made by a foreign liaison service during those interrogations that the Justice Department was aware of. But you could ask for those tapes. The Intelligence Committee could ask for those tapes. We could confirm 

that those tapes still exist. That is what the reporting has been. 

Mr. NADLER. Thank you, Professor. Mr. Rivkin. 

Mr. RIVKIN. Thank you, Congressman Nadler, let me just say a 

couple of things. It is hard to predict how the court would work 

here. But the broader the more open-ended your request is the 

more difficult, I think, for you to vindicate this, you are right. The 

more targeted, the more circumscribed the request is, the more limited to the Intelligence Committee, the greater is the chance that 

it will be both complied with in my opinion. I would be vindicated 

if you were prosecuted here. On the underlying issue, let me give 

you a slightly different perspective, and again as a lawyer, I do not 

like the destruction of any documents that exist, and if I were 

asked about it without the benefit of hindsight even I would have 

said no destroyed. But in some respects, these problems reflect the 

difficulty we have in applying the full blown criminal justice oversight paradigm that has developed, been honed in in decades of remarkable peace and prosperity to very difficult circumstances. Because to embellish the point made by Professor Radsan, do you not 

think, Congressman, that the vivid power of visual images is such 

if you think about all the damage done by Abu Ghraib tapes, and 

I am not saying that they didn’t reveal bad conduct, is it not possible for the honorable men and women in the Intelligence Committee to wonder? 

Mr. NADLER. Excuse me, we are not talking about Congress reviewing this, not necessarily the public. 

Mr. RIVKIN. No, no, I am not talking about that. But they would 

have been leaked. 

Mr. NADLER. Maybe they would and maybe they wouldn’t have. 

I have limited time. I want to get in another question. Again to 

Professor Saltzburg, we have been asked in this entire question of 

48 

the destroyed tapes, we have been asked by the Justice Department to delay our investigation lest it interfere with the Justice 

Department investigation or with the CIA investigation. Do you 

think it makes any sense at all for us to do that, especially in light 

of the question that perhaps we can’t trust anybody. Certainly we 

can’t trust the Justice Department. We had to call for a special 

prosecutor. But should this Committee, should Congress delay investigations waiting for the Justice Department? 

And if the answer is no, what is the justification or is there any 

justification in law for the Justice Department to simply refuse to 

supply the documents to Congress on the grounds that they are investigating it and supplying us with documents that might inhibit, 

in some way, their investigation. 

Mr. SALTZBURG. My answer is no, that you shouldn’t wait. One 

of the reasons is time is flying. You got more than 2 years that has 

already gone by. Memories will fade. People may die while you 

wait. Now, what is the justification. I don’t think you should ask 

the Justice Department to produce its investigative file, what it is 

investigating. I think you ought to ask the Justice Department to 

produce any advice, copies of any documents it created with respect 

to the destruction in 2005. And I think you ought to deal directly 

with the CIA. 

Every case is a little bit different in terms of whether you can 

interfere in some way with an investigation. I just don’t see that 

here. Much of what happened is known. We already know the 

tapes were destroyed. That is not going to be new. We have some 

of the names of people who were consulted. What you don’t know 

is exactly what they said. You don’t know exactly what the rationale was. What we know is there is a lot of lawyering that was going 

on here. What the advice was we are not sure about. But I think 

you have got to get to the bottom of what happened. 

By the way, there are two things here. There is the criminal investigation whether people get prosecuted. I think unless you immunize witnesses and put them out for public testimony, the 

chances you will disrupt a legitimate investigation and ability to 

prosecute are very small. But there is the other part of this, of finding out what happened, even if it is just bad policy and not criminal, and figuring out what you are going to do about that. That is 

part of the oversight function. God forbid that this Congress will 

limit itself to deciding the only oversight is to look into criminal activity. 

Mr. NADLER. Thank you. One more question for Ms. Massimino, 

and this is slightly different. Starting in 2003, the Administration 

argued that the Geneva Convention did not apply to members of 

al-Qaeda. The Supreme Court decided to review a case which became known as Hamdan versus Rumsfeld. On November 7, 2005, 

I think it granted cert. The tapes were destroyed that same month. 

What were the potential implications with respect to the tapes of 

the Supreme Court rejecting the Administration’s position that the 

Geneva Convention did not apply, as indeed the Court ultimately 

did when it issued its ruling in Hamdan in June of 2006. In other 

words, could the destruction of the tapes be connected with the decision by the Supreme Court to accept that case? 

49 

Ms. MASSIMINO. Yes, I think so. I don’t think we have to speculate too much about that because we know that when the case was 

decided it sent shock waves through the CIA and the enhanced interrogation program was put on hold immediately. There was already some pullback from it after the passage of the McCain 

amendment. But then in July of last year when the case came 

down, the reports are that that was a shocking development for the 

CIA. 

And they started to understand finally that not only was Congress withdrawing its political support for a program like this, but 

that the Administration was wrong in its argument that the Geneva Conventions did not apply. Remember, early on in the deliberations inside the White House about whether or not the Geneva 

Conventions applied, a key consideration leading to the conclusion 

that the Geneva Conventions did not apply was the fear that, well, 

if they did, we might find ourselves subjected to prosecution for 

war crimes. 

Mr. NADLER. Thank you, Professor Radsan. That will be it. 

Mr. CONYERS. Thank you so much. The gentleman from Virginia, 

Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I have a series of questions. Let me just begin with whether or not torture is illegal? Is 

there any question that torturing people is illegal, Professor 

Radsan? 

Mr. RADSAN. Torture is clearly illegal. 

Mr. SCOTT. Now, where in the criminal law can we find the prohibition against torture? 

Mr. RADSAN. You will find it in other statutes. But we did not 

feel it necessary when we incorporated the convention against torture to pass a torture statute within the United States. A torture 

statute applies to anything outside of the United States. But any 

conduct that would be torture would be unconstitutional, would be 

illegal, I don’t think there is any doubt about that. The doubt is 

on how we define these studies. 

Mr. SCOTT. Now, is the definition of torture so subjective that 

people can’t understand what it is? 

Mr. RADSAN. With respect, I think there are some clear examples 

of things that are not torture; providing National Geographic magazines. There are clear examples of things that are torture; electroshock, cutting off limbs. 

Mr. SCOTT. Do other countries have problems with the definition? 

Mr. RADSAN. I think in the various courts they are going to have 

difficulties on what the line is, even if we all agree that 

waterboarding is torture. 

Mr. SCOTT. Does anybody outside of this Administration anywhere in the world think that waterboarding is not torture? 

Mr. RADSAN. I take your point, and I am not aware of anyone 

that defends waterboarding outside of the United States. 

Mr. SCOTT. Outside of this Administration, because other Administrations have specifically found waterboarding to be torture. 

Mr. RADSAN. And I am not here speaking for the Department or 

the Agency. I think it is fairly clear waterboarding is something 

prohibited by statutes. 

50 

Mr. SCOTT. According to public reports, the Department of Defense and the CIA have referred 20 cases to the Department of Justice, including two deaths. There has only been one indictment. So 

if the—let me go to another point. If the tapes clearly depict torture, let us kind of think of who could be guilty of a criminal offense. Those who are actually doing the torture, any question that 

they would have liability under the criminal statutes? 

Mr. RADSAN. If we agree that the conduct on those tapes crossed 

any line that person that did the conduct is guilty and anyone that 

aided and abetted, anyone that ordered would be drawn into that 

criminal conduct, that is for sure. 

Mr. SCOTT. What about others who watched while others did it? 

Mr. RADSAN. Watching while others did it, that is difficult. But 

I think you would make an argument that it is aiding and abetting, 

or you would make an argument that it is part of a conspiracy to 

commit that criminal conduct. 

Mr. SCOTT. What about those who authorized it? 

Mr. RADSAN. The same analysis. We would have to pursue the 

facts. But if this was part of a pattern and it had the intent to do 

something that was illegal and was known to be illegal, that is a 

problem, clearly. 

Mr. RIVKIN. May I make a point, Congressman? It seems, with 

all due respect, to be somewhat anomalous to simultaneously scurry the Department of Justice for providing allegedly legal opinions 

that defined these types of techniques is not torture, and then simultaneously say that individuals are not lawyers who followed 

that advice. And let us assume that they stayed within the parameters of permissible procedures not due to any criminal conduct. 

You are certainly entitled to rely on the, in good faith on the advice 

proffered by the appropriate lawyers. 

Mr. SCOTT. Let us assume that we have concluded that the technique involved is clearly torture, can the Department of Justice by 

memo immunize everyone doing it? 

Mr. RIVKIN. That is a difficult question, but your hypothetical in 

a way contains the answer. If we determine. Who are we? It is the 

province of, in the first instance of executive, in the second instance 

of Judiciary, to pronounce what the law is. If duly constituted officers of the United States concluded that given conduct construing 

a given statute does not amount to violation of a statute that would 

go to great length to immunize individuals who rely on that conduct, which is why I personally don’t think we have any evidence 

that it was an obstruction of justice. 

Mr. SCOTT. There are a lot of people who think the memo is absurd on its face to suggest that waterboarding is not torture and 

the Department of Justice can’t immunize people from doing what 

everybody in the world knew was torture. Ms. Massimino. 

Ms. MASSIMINO. I think that it is not correct to suggest that 

there was no fear of prosecution. There clearly was. That is why 

the memo was sought in the first place. And section 2340 of 18 

U.S. Code, which is the Federal anti-torture statute, was never 

thought to be vague or unclear until there was a desire to get 

around it. And a memo was drafted that construed it in such a way 

that drained those powerful words of all of their meaning. 

51 

Mr. SALTZBURG. Congressman, if I could add a point. Congress 

has sort of made this a bigger problem than it otherwise might 

have been in the Military Commissions Act when it put in that provision which essentially said that if you are charged with torture 

between 9/11 and 2005 when the Detainee Treatment Act was 

passed, you have the right to rely on advice of counsel as a defense. 

And I think that was clearly intended to say that people could be 

prosecuted, but then they can wave around that memo and say I 

relied on it. It doesn’t mean they shouldn’t be prosecuted. It just 

means that Congress has expanded their possibility of arguing advice of counsel as a defense. 

Mr. SCOTT. Well, let us talk about the independent counsel. If 

the Department of Justice, CIA and White House, if they define 

torture in such a way that people could I guess retroactively rely 

on it when the memo legally misstated the law, would that be a 

reason to have an independent counsel rather than having the Department of Justice try to defend the memo subsequently determined to be legally incorrect? 

Mr. SALTZBURG. I don’t believe, my own opinion, standing alone, 

that that would be enough with a new attorney general who was 

not responsible for the memo. Let us be clear, that 2002 torture 

memo was probably one of the most embarrassing poorly written 

poorly reasoned documents I have ever seen. And I believe you are 

right, Congressman, no one with a straight face could defend that 

document as stating accurately the law. And I think that any attorney general who was independent would repudiate that document. 

I think this attorney general would repudiate that document today. 

But the other circumstances added to it, I think, do make a case 

for a special prosecutor. 

Mr. RIVKIN. As I understand, with all due respect, the facts are 

as follows, that opinion was withdrawn long before this attorney 

general came in. But if you look carefully at how it was withdrawn, 

the language, my reading of it suggests that the breadth for it, and 

the reason we are repudiated, not the bottom line, and again, the 

speculation in the media is the two subsequent more narrow opinions written by the Department of Justice. The parameters have always permitted, Congressman, the memo change. 

If I may just say one thing. The thing I am troubled a bit is this 

notion that you can have the entire executive branch of United 

States Government, whose duty is execute the law, parse the law 

and conclude that they disagree, with all due respect, to my good 

friend, Ms. Massimino, and flesh out a statutory term in a given 

way. If that happens I don’t know who else is supposed to come in 

unless the matter is somehow justiciable in an Article 3 court 

which is a different conclusion, I don’t see anything in your powers 

frankly in Article 1 that gives Congress the right to interpret the 

law. It is a problem. 

Mr. SCOTT. Well, in all due respect, there is not a lot of interpretation that needs to be done. This Administration has suggested 

that waterboarding is not torture. They are having trouble trying 

to figure out when it is and when it isn’t, and when you have it 

on tape the tape is destroyed. I don’t know that you can change the 

law by legal memo. And you have the Department of Justice—is 

the Department of Justice involved in possibly authorizing some of 

52 

this torture by virtue of their memos? Did they authorize the destruction of the tapes? Was the Department of Justice present—the 

Department of Justice investigating itself on who authorized it, 

who failed to disclose to the 9/11 Commission and to Congress and 

to the courts whether the existence of the tapes—well, let me ask 

another question. What is the statute of limitations on all of these 

crimes? 

Mr. RADSAN. Congressman, I am not aware. I don’t know that 

there is a statute. I will be corrected by my colleagues. But if I 

could take a minute to clarify my answer to a prior question. I 

think I am agreeing with you, but perhaps not in the way that you 

would like. We can look at conduct that occurred on the tape, and 

we may all look at that and agree that it crossed the line. That will 

be reason to be concerned and continue the investigation. But then 

there is a second step, and this is alluded to by Professor 

Saltzburg. We will have to figure out why that interrogator did 

this. And if that interrogator reasonably relied on advice, and that 

advice, as we can tell, would have been issued in a classified channel, that interrogator more likely than not was not a lawyer. If that 

interrogator reasonably relied on advice, even though it went past 

the line, whether it is waterboarding or any other conduct, that 

prosecution is going to be very difficult. And that is a situation that 

many of these officers find themselves in. I agree with you. 

Mr. SCOTT. And I agree with you. If you have a legal memo that 

says what everybody believes is illegal and you can proclaim it to 

be legal and someone reasonably believes the memo, then you have 

a mens rea problem in a criminal prosecution. However, if the 

memo is just clearly ridiculous you can’t just change the law by 

memo. I yield back. 

Mr. CONYERS. The Chair is pleased to recognize the gentlelady 

from Texas, Sheila Jackson Lee. 

Ms. JACKSON LEE. Again, let me thank the witnesses for this instructive testimony. And if I might, let me lay the groundwork for 

my line of questioning with a citation from the article from The 

New York Times. And I recognize that any information exposed in 

public is questioned—is subject to questioning. But let me lay this 

groundwork so that I can pursue a line of questioning. 

Mr. Bennett, who is a lawyer for Mr. Rodriguez insisted that his 

client had done nothing wrong and suggested that Mr. Rodriguez 

had been authorized to order the destruction of the tapes. He had 

a green light to destroy them. To me, that is a billboard of obstruction of justice. There is a reference or a suggestion that the destruction came about to protect the identity of the CIA agents. And 

might I have a PS and say it is our obligation to protect our 

operatives who are around the world. 

And let me pointedly say to the CIA, take that duty extremely 

seriously and hold them in high esteem for the role they play in 

national security. I don’t think that we should argue with that 

premise. However, another comment in the article dated the 19th, 

I believe, indicates until their destruction, the tapes were stored in 

a safe in the CIA station in the country where the interrogation 

took place. Current and former officials said, according to one 

former senior intelligence official the tapes were never sent back to 

the CIA headquarters, which I would imagine might have an unVerDate Aug 31 2005 15:48 Mar 17, 2009 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 H:\WORK\FULL\122007\39807.000 HJUD1 PsN: 39807
53 

derground, if you will, secure, safe or other chamber, despite what 

the official described as a concern by keeping such highly classified 

material overseas, lays the groundwork if you will whether there 

is sufficient truth to document that, that there is question as to 

how much security the CIA was giving to these tapes as a basis 

upon which they use to destroy them. 

I would like to also take note of the fact that, if I might also put 

into the record, the comments of Senator McCain as he was trying 

to make the argument on how torture demeans and debases those 

of us who represent a certain degree of values. And so just if I 

might just quickly indicate his words when he was asked, where 

did the brave men I was privileged to serve with in Vietnam draw 

the strength to resist to the best of their ability the cruelties inflicted on them by our enemies? They drew their strength from our 

faith in each other, from our faith in God and from our faith in our 

country. Our enemies didn’t adhere to the Geneva Convention. 

Many of my comrades were subjected to the very cruel and very 

inhuman and degrading treatment and a few of them were unto 

their death. The enemies we fight today hold such liberal notions 

in contempt as they hold in contempt the international conventions 

that enshrine them. But we are better than them and we are 

stronger in our faith. Another comment indicates that one might 

question the kind of testimony one would get from someone subjected to torture and whether or not that can actually or that testimony or that, if you will, information can truly be counted as, if 

you will, accurate. 

So let me, if I can, both professors raise these questions on this 

whole issue of the obstruction of justice which pushes more urgently forward the need for a special prosecutor, slash, independent 

counsel terminology interchange even though the statute has expired in light of where we are today. As has been in the press and 

as stated by the testimony today, the CIA interrogation tapes were 

destroyed around the same time that conspicuous congressional 

oversight scrutiny was increasing. The photos from Abu Ghraib 

were uncovered, the DOJ began to withdraw memos rationalizing 

exceptions to the Geneva Convention and the McCain amendment 

against torture was gaining momentum. Some of Mr. McCain’s 

comments were in the public domain. 

Does this not raise very serious issues of obstruction of justice or 

of violating or undermining congressional prerogatives and isn’t 

this the best argument for the need for an immediate appointment 

of a special prosecutor that is, indeed, independent from the White 

House and the DOJ investigation. And my question goes to the 

point of the DOJ asking the House Intelligence Committee and others to delay their investigation while they are moving forward. I 

believe there is such a fracture in the constitutional protection that 

it is urgent that we move forward now. Would you two professors 

comment on that? 

Mr. SALTZBURG. One of the anomalies in the law, is at least as 

I understand it, is that it is not obstruction of justice in the criminal sense for the executive to destroy evidence so that Congress 

won’t see it. It is obstruction of justice to interfere with a judicial 

proceeding under the statute and destroy evidence with that in 

mind. It would not surprise me when all is said and done if lawyers 

54 

advising Mr. Rodriguez concluded that there was no judicial proceeding in which a request was pending for this particular evidence, and therefore, they could destroy the tapes without being 

guilty. He could order them destroyed or approve them destroyed 

without committing obstruction of justice. The executive, unfortunately I think, feels that it is quite free to deny Congress evidence 

when Congress requests it. 

And even to destroy evidence that Congress might want to see. 

And basically, in the noncriminal sense, it is a classic obstruction 

of justice. It is obstruction of oversight. It is infringing upon the legitimate oversight function of Congress. But there is very little that 

Congress has done about that in the past. And that is one of the 

issues, I think, Congress probably needs to address. 

Ms. JACKSON LEE. Can I just pursue that with you. Do we not 

have a basic legitimacy in pursuing that because of the independent branches of government. Are you suggesting we write law, 

are you suggesting that we take advantage of our oversight responsibility? What is the tool that you are suggesting we use? 

Mr. SALTZBURG. I think that—all I suggested earlier was something that needs careful examination and more careful than I could 

do in the limited time we had available. And that is whether Congress should, in fact, legislate to require certain records to be preserved and maintained—for its inspection over time. 

Ms. JACKSON LEE. Professor Radsan. 

Mr. RADSAN. Ms. Jackson, we thank you very much. I agree with 

you that these facts, as they have unfolded, are very disturbing. I 

did cases for 6 years. I am going to speak about how I did cases. 

But I think many prosecutors pursue it in the same way, is they 

are going to gather the facts. They are not going to try to pigeonhole it necessarily into a particular statute. There are difficulties 

in the various obstruction of justice statutes with those elements. 

But if there has been wrongdoing intent, then there are statutes 

in the Federal Code that can cover the wrongdoing. One friend of 

all Federal prosecutors is 18 U.S.C. 1001, the false statute that 

makes it a crime to make a false statement or a material omission 

to Congress, to the Judiciary or, and the case law will bear this 

out, even intrabranch. So that if there were false statements made 

related to these tapes by Mr. Rodriguez to a lawyer, Mr. Rodriguez 

to a supervisor, then the joint investigation or any special investigation should and will pursue that. And the false statement statute is available. It is a very broad statute that Federal prosecutors 

have. 

Ms. JACKSON LEE. Do you have any—do you care to comment on 

the fact that we should be denied our rights to investigate simply 

because the Department of Justice is proceeding as well. 

Mr. RADSAN. It is a difficult issue. But I agree that we need vigorous oversight. Where I think Professor Saltzburg and I agreed, 

and maybe this was whispering, is that it becomes especially difficult if and when anybody of congress is issuing immunity. I 

haven’t heard anything. No one has mentioned that today. We 

learned that from Iran contra, the complications, even with very 

scrupulous prosecutors when you have immunized testimony. That 

is the concern that the Department has. But we are not at that 

stage yet, so I don’t see any reason for Congress to delay its inVerDate Aug 31 2005 15:48 Mar 17, 2009 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 H:\WORK\FULL\122007\39807.000 HJUD1 PsN: 39807
55 

quiry. I think we need vigorous oversight. And I agree that these 

ideas that you should delay, as far as I understand, I don’t have 

all their reasoning, that they seem to be weak to me. 

Ms. JACKSON LEE. I am sorry, were you—I saw somebody—— 

Mr. RIVKIN. If I may briefly shed a different light on this. If a 

delay is finite in time and if you are sure that given the commencement of internal investigations, all the documents are being kept, 

and also very importantly, individuals involved are not communicating with each other because that would be viewed as obstruction, I see absolutely no good reason not to give the Justice Department a certain amount of time to get to the bottom of it. Because 

let me just suggest this: Quite aside from the immunity issue, if 

you were to invite to testify one of the people involved and he 

came, he or she came and prepared for testimony, and other individuals involved in this same matter or had an opportunity to listen to what his or her story is, any prosecutor will tell you that 

it is a horrible thing. What you do is you slowly build the case, you 

go to the junior people, then you go up the food chain. 

Ms. JACKSON LEE. Mr. Rivkin, I have a short period of time and 

I have another question here, and I appreciate it. I think your 

premise is based upon Congress having confidence in the present 

Department of Justice and others, and certainly we don’t malign 

all, but we have had difficulties in documents being preserved in 

the past. 

Let me just quickly raise this question, and I would like Ms. 

Massimino and the others to answer it. I have Mr. Rivkin as pointedly, but I will get to him last. Based upon—Mr. Rivkin, you testified that evidence exists, that coercive and severe interrogation 

techniques can work. But I ask you, are potential results, as I mentioned in my comments, a legal justification with potential or merely ex post facto rationalization and an excuse for violating Federal 

laws international conventions and American values. And moreover, if these severe and coercive techniques do indeed yield an otherwise unattainable information regarding imminent threats, then 

why was Congress not briefed? Why were these tapes destroyed 

and why are our efforts being hampered in the ongoing investigations that we have? 

So I guess, in essence, the question is why would the Bush administration have something to hide if these techniques work and 

are lawful and they can show that they prove results and there is 

a basis of constitutionality and complies with the national conventions. It seems that there is a fracture in the utilization of these 

techniques because now we have to investigate why we were never 

told about the destruction of tapes. Why don’t I start with you, Ms. 

Massimino. 

Ms. MASSIMINO. Thank you. 

Well, this Committee, actually, I think, as recently as last week, 

held an excellent hearing on the question of the efficacy of the use 

of torture and other cruel, inhumane and degrading treatment, 

which I think was quite enlightening for many people. 

There is, as I mentioned in my own testimony, but there is also 

a growing body of expertise that calls into serious question claims 

that these kinds of enhanced techniques produce actionable intelligence. 

56 

That is not the same thing as saying that they never result in 

a detainee divulging true information. This is another point to 

which Senator McCain spoke very eloquently about his own experiences under torture in which he, when asked for the names of men 

in his unit, gave the starting line-up of the Green Bay Packers. 

But experienced interrogators have repeatedly said and military 

commanders have agreed, from General Petraeus on down, that 

these techniques are not only immoral and illegal but unnecessary 

and counterproductive. 

You know, there is, I suppose, one sense in which the coercive 

and abusive techniques used, not just by military but by the CIA, 

at Abu Ghraib and elsewhere worked, and that is as a recruitment 

tool for al-Qaeda. We have to look at the broader question here and 

the cost of a policy of official cruelty, which undermines not only 

our moral authority but our security. 

This is what I have heard repeatedly from a number of retired 

flag and general officers who I have had the privilege of working 

with over the last several years. They are emphatic and uniform 

on this point, that these are not only rules based on experience in 

the Field Manual, decades of experience, including recent experience—the manual was revised last year—but they reflect values 

that all U.S. agencies should comply with. 

Ms. JACKSON LEE. Professor Radsan and Saltzburg? 

Mr. RADSAN. Ms. Jackson Lee, let me take your question as an 

opportunity to be critical of the three branches of Government and 

the American people on this issue. I am going to make many 

friends today. 

I think that we need a national dialogue on what sort of techniques we are comfortable with—it needs to be open—techniques 

that go beyond what might be permitted in the criminal justice system, but techniques below what is defined reasonably as torture. 

Even if we resolve the issue of waterboarding, we have many other 

issues that we need to resolve and we have not resolved, even with 

this Executive order from the President, after the Military Commissions Act. 

For example, sleep deprivation, is this something that is acceptable or not? Another example, bombarding somebody with music. 

I don’t care for Nirvana; maybe you like Nirvana. But we have to 

figure out, if we play this all day at a loud volume, does this cross 

this line? These are very serious issues. 

Where I differ with the Administration is I think it makes more 

sense for us to be open, as a people, as members of our Government: This is the line; this is what we are going to do and what 

we are not going to do. 

Because what happens is, if we have someone in a site, a secret 

site, and that person might have had information and we have an 

attack, there will be other kinds of recriminations—recriminations 

that come out of shows like ‘‘24.’’ Why didn’t we send Jack Bauer 

in there to get the information? 

This is a difficult place for elected Members of Congress and for 

our elected President to figure out what is the line, what will we 

defend and what will we not defend. 

Ms. JACKSON LEE. Professor Saltzburg? 

57 

Mr. SALTZBURG. I think I agree with every word that was said 

by my two colleagues here. My experience is the same. I think that 

when you talk to military leaders, they tell you that harsh interrogation techniques and torture do not produce actionable intelligence. They are counterproductive, for the most part. They are 

not saying you never get anything. 

But, you know, one of the things I just didn’t want to leave unsaid, you might think, from what we have heard today, that the 

Army Field Manual was drafted by a Scout troop, you know, which 

had no experience fighting wars. The military drafted that, and 

they take enormous pride in it. They think that they are leading 

the world, that other militaries will look at that Field Manual and 

say, ‘‘The United States is proud that these are our techniques.’’ 

I mean, when we look at Europe and other countries, they don’t 

look at us and say, ‘‘Why are you soft on the people you are detaining?’’ They look with pride at what we have done. And we have 

squandered, we have squandered our image in the world in so 

many ways. But, boy, one of the things we have done right is that 

Army Field Manual. 

And I don’t know anybody in the Department of Defense, in the 

military side of it who is embarrassed by it. They are pleased that 

they did it and proud that they did it. And the only people who 

seem to attack it are the civilians who are supposed to be leading 

this country and leading the world. And they got it backwards, and 

they got it wrong. 

Mr. CONYERS. Gentlelady’s time has expired. 

Gentleman from Tennessee, Steve Cohen. 

Mr. COHEN. Thank you, Mr. Chairman. 

I am not sure who to ask this to, maybe Mr. Rivkin. Why do you 

think they made the tapes to start with? I mean, generally police 

and law enforcement folks do interrogation; sometimes they audiotape them. They don’t generally videotape them. Why do they videotape them anyway? 

Mr. RIVKIN. My total speculation would be, Congressman, precisely because they felt, especially at the time it took place, in the 

post-September 11 atmosphere, we have to get at the facts. And, 

quite frankly, in this situation where I think there is plenty of evidence that the Intelligence Committees were briefed about this 

these techniques, they wanted to get as much intelligence mileage 

out of it. And I suppose facial expressions, gestures can yield additional insight into whether or not somebody—you know, if you look 

at Bill O’Reilly these days, he puts on experts almost every day—— 

Mr. CONYERS. Who? 

Mr. RIVKIN. Fox’s Bill O’Reilly. 

Mr. COHEN. Never heard of him. [Laughter.] 

Mr. RIVKIN. Well, there are people who make careers out of interpreting people’s gestures. If you tilt your head this way, you are 

telling the truth. If you lower your eyes, you are lying. So there is 

probably an additional element of intelligence value that could be 

squeezed from videotaping—— 

Mr. COHEN. I think they want you to turn your mike on. 

Mr. RIVKIN. No, what I was saying is it was probably entirely innocuous that he wanted to gain additional intelligence insight, because looking at people’s facial expressions, the ones you are interVerDate Aug 31 2005 15:48 Mar 17, 2009 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6601 H:\WORK\FULL\122007\39807.000 HJUD1 PsN: 39807
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rogating, their gestures, would tell you more about the credibility 

of their statements. 

I am saying, in popular culture, there are lots of people who put 

in their shows experts who analyze politicians, depending on how 

they look on camera, what is the sincerity of statements. So that 

would be my interpretation. 

Mr. COHEN. Does anybody else have an opinion on this? 

Ms. MASSIMINO. Yes. If we can express our opinions, this is one 

of the things that hopefully you will find out in your investigations. 

But I think the Administration has, for some years, dismissed the 

claims, until it was faced with the photographs of Abu Ghraib, 

claims of abuse by detainees by arguing that those complaints are 

part of al-Qaeda’s strategy. And it very well may be true that complaining about abuse is part of the al-Qaeda manual of what to do 

when you get captured. 

One of the ways that the Administration could prove that point 

is by videotaping. This is why videotaping has become so popular, 

I think, in domestic law enforcement agencies, is to be able to defend against erroneous claims of abuse by people who have been interrogated. 

One of your colleagues here in the House, Congressman Rush 

Holt of New Jersey, has for several years proposed legislation that 

we have supported that would have required the videotaping of interrogations for the purpose of inhibiting abuse and protecting 

against erroneous claims of abuse. And perhaps that is something 

the Committee ought to examine coming out of this incident. 

Mr. COHEN. Thank you. 

Professor? 

Mr. RADSAN. Thank you, Congressman Cohen. 

General Hayden, in his letter to CIA employees, offered an explanation of why they kept tapes of these two interrogations that went 

over many hours. One was to monitor the compliance with the program by the interrogators, to make sure that they were following 

the law. I am not saying whether that is right or wrong; this is his 

offered explanation. 

The second is the point that Mr. Rivkin made, that they wanted 

to have a record, a complete record for intelligence value to figure 

out whether the information was good, whether the person was 

being deceptive, the person that was being interrogated. 

But I think, as your question suggests, there are benefits and 

there are burdens to having a very complete record—and a video 

is going to be more graphic than a transcript or an audio—benefits 

and burdens that may come back to hurt you. 

And maybe I can give the third point by passing a question to 

Professor Saltzburg. It is the same issue or a similar issue of why 

does the FBI not record its interviews with witnesses? Why does 

the FBI not videotape? Because they have determined, on that balance of burden and benefit, that is better for them to have the only 

record. They do it through an FBI 302, a report of the interview. 

There are States that have gone the other way on their law enforcement and said, ‘‘We want these things videotaped because we 

don’t necessarily trust the record.’’ But I think the FBI, in its case, 

says, well, they would rather have FBI agents testifying about 

59 

what actually happened, and you could draw the analogy to the 

CIA. 

Mr. COHEN. And you were going to pass the question to Professor 

Saltzburg. And based on your vitae, I think you probably have a 

good question. 

Mr. SALTZBURG. I think the question was, isn’t this why the FBI 

does what it does, and I think it is. 

But there is another reason why they might have videotaped, 

very closely related to what was stated to the CIA employees, and 

that is you will remember that the FBI was telling the CIA not to 

do what it was doing, that these techniques don’t work and that 

they are harsh and unnecessary. And one of the reasons for making 

the tapes is I think the CIA probably wanted to show that it works. 

They had a record. Their view is they got a lot of intelligence, and 

if anybody doubts it, they can show you exactly what they did and 

that it worked, in their view. 

The problem is when it came time to show these tapes, they may 

have looked back and said, ‘‘Uh-oh, even if it worked, we don’t 

want people to see what we did.’’ 

Mr. COHEN. Does anybody on the panel believe that the tapes 

were destroyed to preserve the anonymity of CIA operatives? Does 

anybody buy that at all? 

Mr. Rivkin? 

Mr. RIVKIN. I would only buy it in the context with the following 

observation, which I made several times today. It is not that you, 

as Congress, would reveal this information, but in a time where everything leaks—and that is not an overstatement—having those 

tapes posted on the Internet, being leaked the same way the Abu 

Ghraib tapes were, in a situation where individuals doing the interrogation were shown—these individuals are overseas. It would 

either destroy their careers or would may well put their lives in 

jeopardy. 

Mr. COHEN. But wasn’t it possible to easily block out their face 

or their identity and still have the tape but to secure the anonymity of the CIA operative? 

Mr. RIVKIN. Well, again, this assumes that one can guarantee 

that an unredacted tape would not be leaked or, even if somehow 

the identify was obscured, that it could not be restored. And that 

is a big assumption, given what else has happened with the most 

secret of programs that this Government has employed in the last 

several years. 

Mr. COHEN. Thank you, sir. 

Professor? 

Mr. RADSAN. With respect, I disagree with Mr. Rivkin. It doesn’t 

make sense to me that the tapes needed to be destroyed to protect 

identities. You have alluded to one possibility of redacting, but the 

other basic possibility—there was no indication that they wanted 

to share this with anybody. If they were worried about a leak—and 

the CIA protects a lot of classified information—if you had tapes 

at an overseas location, then have the tape moved back to headquarters, as Ms. Jackson Lee said, put it in a safe in the Director’s 

office. If a tape is not safe in the Central Intelligence Agency, in 

the office of the Director of the Central Intelligence Agency, we are 

in trouble. 

60 

A historical note is you remember with the Bay of Pigs, there 

was a very controversial Inspector General investigation that was 

done internally. The Director of Central Intelligence at that time 

didn’t want this leaking and didn’t want it well-known. The Director of Central Intelligence said, ‘‘We will take back the copies of the 

report. I will keep one. I will put it in the safe.’’ And it was safe 

for a long period of time. 

Mr. COHEN. From Ranking Member Smith’s testimony, assuming 

it be entirely accurate—and I have no reason to believe otherwise— 

waterboarding apparently is a very successful or effective tool at 

ferreting out information. 

And is there any other techniques that you all know of that 

might be just as effective but within the law? 

Mr. RIVKIN. I personally have serious problems with 

waterboarding. I think it is a very difficult thing to justify. 

The thing that concerns me, Congressman—and I think it is an 

excellent question—is the critics are painting everything with a 

broad brush. If we were to adopt the procedures in the Army Field 

Manual, no coercive technique of any kind—including sleep deprivation, even in modest amounts; temperature manipulation, even 

in modest amounts—would be tolerated. That would take us way 

beyond. 

Look, everybody agrees, I don’t know anybody who holds a candle 

for torture or even for cruel, inhumane and degrading treatment. 

We are talking about things way below that level. And if we are 

going to do that, I agree with one fundamental respect, let’s have 

an honest debate as a society, as a country, to say we are not going 

to sully our hands with any kind of coercive techniques. And let’s 

also explain to the American people why it is okay to do it to our 

own personnel in the course of training, why it is okay to have coercion in penitentiaries and police stations, different doses, but 

here there would be one coercion-free corner in the entire public 

sphere for interrogating combatants. 

If you can make the case where American people buy into it, that 

is fine. What worries me is the case is not being made and is being 

done through indirection. 

Mr. COHEN. Yes, sir. 

Professor? 

Mr. RADSAN. Congressman, I agree that we should have a special 

program for the CIA, that we may need some enhanced techniques. 

Where we are going to disagree or where the discussion goes are 

what sort of techniques will we allow. And I am fortunate to be in 

the middle, I am right down the middle there with the Chairman. 

I think where the discussion will get very interesting for enhanced techniques that we allow the CIA to use is not on 

waterboarding. I think most of us will agree we are going to take 

waterboarding off the table. But what about sleep deprivation? 

Menachem Begin, who was the leader of Israel, was tortured himself, and he said that, of all the techniques, the most defective was 

depriving him of sleep. He said that the quest for sleep is far greater than the need for food or water. 

And we would figure out—this is something you can’t do in the 

criminal justice system. You can’t keep somebody up for a day or 

2 to try to find out whether they robbed the bank. But perhaps for 

61 

this interrogation and detention program that we allow the CIA, 

perhaps this is something that is going to be acceptable. 

I haven’t made up my mind, but I would like to hear the debate. 

And the effects of sleep deprivation we know are different from the 

effects of some of these other techniques. 

Mr. COHEN. Professor, let me ask you this. You suggested in your 

testimony maybe some type of FISA court to determine what might 

be proper techniques. Are you satisfied with the FISA court’s jurisdiction and their powers, that they are sufficient to protect the 

American public? Because they have a very limited scope. 

Mr. RADSAN. They have limited scope, but we don’t have any evidence that any information is leaked from the FISA court, that it 

does provide some sort of review. It is close, and we don’t have people advocating on behalf of the person that might be surveilled. We 

may need to adjust the statute, I think we probably would, to set 

up some FISA-type court for interrogation. 

And where I would go—and I have laid this out in articles—is 

I might put an annual cap on how many people can into the program. I might have an ombudsman in the special court, not a defense lawyer, to protect the classified information, but to have some 

more of a check to figure out whether this is someone who deserves 

to be in the program or not. 

And perhaps with a FISA-type court, we could have the court reviewing what sort of techniques are permissible or not. It is not full 

oversight, but it is something better than complete black sites, 

which I am opposed to. 

Mr. COHEN. And I appreciate what you suggested, because I have 

thought we do have to have certain techniques to be able to ferret 

out information and protect our people. At the same time, we have 

to respect our laws. And one of the major conflicts is, if we permit 

something, the other countries may use it against our own folks. 

And certainly Senator McCain, who was a prisoner of war, could 

have been subjected to, and probably was, different techniques. We 

want to protect our folks. 

If we have a court that decides these things—and a FISA court 

would be not so publicized and not so public. And I am not saying 

that al-Qaeda or Iraq or whoever is going to say, ‘‘Oh, America lets 

this happen, so we will; if they don’t, we won’t.’’ How can we say 

that, if we have these courts, that some other country won’t have 

a court, and how can we have faith in their courts to have rules 

that protect our folks? 

Mr. RADSAN. Congressman, I recognize that I am trying to have 

it both way ways, that I want to have a very limited program to 

allow some techniques that are not permitted in the criminal justice system, that I would not permit to the Department of Defense. 

And I would hope, by containing it and having additional oversight 

through this special court, that we could prevent those arguments 

from being made that you suggested, that if one of our service people falls into the hands of the enemy, that we don’t want the argument that this technique, whether it is sleep deprivation or some 

enhanced technique, is permissible. 

I am trying to cabin this off to say that we may need aggressive 

techniques on someone like Khalid Sheikh Mohammed, the presumed mastermind of 9/11. We may need them on Abu Zubaydah. 

62 

But we don’t want this to spread to Guantanamo, to Abu Ghraib. 

I am trying to carve out an exception and maintain it within the 

rule of law. It is difficult, but I don’t know of a better solution. 

Mr. RIVKIN. You guys forget one point. There is legal basis—— 

Mr. CONYERS. Could we let Ms. Massimino have the last word, 

Mr. Cohen? 

Mr. COHEN. Yes, sir. 

Ms. MASSIMINO. Thank you, Mr. Chairman. 

Mr. CONYERS. Before we do that, I didn’t want to cut off Mr. 

Rivkin. 

Mr. RIVKIN. Thank you, Mr. Chairman, for your indulgence. 

There is a very simple legal basis to have your cake and eat it 

too, which is when you deal with lawful enemy combatants who, 

upon capture, become POWs, you cannot use any coercive techniques whatsoever. When you deal with unlawful enemy combatants, the entitlement is a great deal less, entitled to humane treatment. You cannot torture them, but you certainly can use stress 

techniques that fall below that level. 

Ms. MASSIMINO. Thank you. I just want to correct one impression 

about sleep deprivation and what Menachem Begin said about it, 

and that was that he would have said anything in order to get an 

hour of sleep—not that he would have told the truth, but he would 

have said anything. And that is the problem with a lot of these 

techniques. 

I also want to say I am not an interrogations expert, but I would 

commend to you, Mr. Cohen, the letter from 35 retired flag and 

general officers, including six four-star officers of each of the four 

branches of service. And these are not flower children. They are 

combat-hardened men, all men who have overseen troops who have 

had to face very dangerous enemies. 

And they say in their letter, ‘‘The Field Manual is the product 

of decades of practical experience and was updated last year to reflect lessons learned from the current conflict. Interrogation methods authorized by the Field Manual have proven effective in eliciting vital intelligence from dangerous enemy prisoners. Some have 

argued that the Field Manual rules are too simplistic for civilian 

interrogators. We reject that argument. Interrogation methods authorized in the Field Manual are sophisticated and flexible. And 

the principles reflected in the Field Manual are values that no U.S. 

agencies should violate.’’ 

This idea that we can somehow cabin it, a little bit of torture or 

something less than torture, only in certain circumstances, only by 

certain people, is a fantasy. That is exactly what the Administration tried to do. I don’t believe that the Administration set out to 

have Abu Ghraib happen or to have there be widespread abuse of 

prisoners: 100 deaths in custody, 34 homicides, eight people literally tortured to death. I do not believe that that was the intent 

of this Administration. But it happened because there was a simplistic belief that you could do a little bit here, a little bit there and 

not, as Senator McCain pointed out, change who we are as a Nation. 

That is where we are right now. This is not a theoretical debate 

that we are having. We are in that hole right now, and whether 

we stay there or climb out is largely up to you all. 

63 

Thank you. 

Mr. COHEN. I would like to thank the panel. 

And I would also like to suggest to the Chair and Members of 

the Committee—and I respect the Members of the Committee, and 

serving with them, just as with the Chairman, has been a great 

honor this year. This Committee, particularly on my side of the 

aisle, has some outstanding Americans who believe in the Constitution, and so it is so special to serve here. 

I think we have learned a couple of things today. First of all, 

sleep deprivation is a very effective tool. And the Senate should 

have gone ahead and let the Republicans filibuster. Maybe they 

would have said some things that they shouldn’t that we should 

have heard over the last year. And they should think about that 

for next year. 

And the second thing is, Mr. Chairman, as I look at the Department of Justice again having an empty seat, I think back upon this 

year when this Committee saw officials from the Department of 

Justice, particularly Ms. Miers, not show up before this panel and 

not bring information. 

And I hope at the beginning of the next year we will bring our 

contempt citation to the floor and show this Administration that 

this Committee and this Congress is not going to take it any longer 

and that we are going to be an independent branch, in the tradition of John Yarmuth and the freshman, and believe Article 1 and 

assert our power, as the American people have invested in this and 

as we took an oath to uphold it. 

Thank you, Mr. Chairman. 

Mr. CONYERS. And I think the witnesses and all the Members 

and those who have joined us today. 

This is an excellent beginning, and we look forward to examining 

the record so that we can move forward to continued hearings. 

Thank you very much. 

The Committee is adjourned. 

[Whereupon, at 12:32 p.m., the Committee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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LETTER DATED DECEMBER 17, 2007, FROM THE HONORABLE JOHN CONYERS, JR., TO

THE HONORABLE MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES


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LETTER DATED DECEMBER 7, 2007, FROM THE HONORABLE JOHN CONYERS, JR., THE

HONORABLE ROBERT C. SCOTT, THE HONORABLE JERROLD NADLER, AND THE HONORABLE WILLIAM DELAHUNT TO THE HONORABLE MICHAEL B. MUKASEY, ATTORNEY

GENERAL OF THE UNITED STATES


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LETTER DATED DECEMBER 13, 2007, FROM THE HONORABLE MICHAEL B. MUKASEY TO

THE HONORABLE JOHN CONYERS, JR., THE HONORABLE ROBERT C. SCOTT, THE

HONORABLE JERROLD NADLER, AND THE HONORABLE WILLIAM DELAHUNT, WITH

ENCLOSURE


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Enclosure 

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