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FROM THE DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: ADMINISTRATION LAWYERS 

AND ADMINISTRATION INTERROGATION RULES 

(PART IV) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JULY 15, 2008 

Serial No. 110–192 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

JULY 15, 2008 

Page 

OPENING STATEMENTS 

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

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

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

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

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

Rights, and Civil Liberties .................................................................................. 4 

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

State of Michigan, and Chairman, Committee on the Judiciary ..................... 5 

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 7 

WITNESSES 

Mr. Douglas Feith, Professor, Georgetown University, and former Defense 

Undersecretary for Policy 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 15 

Ms. Deborah N. Pearlstein, Associate Research Scholar, Law and Public Affairs Program, Woodrow Wilson School for Public and International Affairs, 

Princeton University 

Oral Testimony ..................................................................................................... 65 

Prepared Statement ............................................................................................. 67 

Mr. Philippe Sands, Professor, International Law, University College London 

Oral Testimony ..................................................................................................... 78 

Prepared Statement ............................................................................................. 82 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 135 

(1) 

FROM THE DEPARTMENT OF JUSTICE TO 

GUANTANAMO BAY: ADMINISTRATION LAWYERS AND ADMINISTRATION INTERROGATION RULES (PART IV) 

TUESDAY, JULY 15, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:15 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Davis, Wasserman Schultz, 

Ellison, Conyers, Scott, Watt, Franks, Pence, Issa, and King. 

Staff Present: David Lachmann, Subcommittee Chief of Staff; 

Sam Sokol, Majority Counsel; Heather Sawyer, Majority Counsel; 

Caroline Mays, Majority Professional Staff Member; Paul Taylor, 

Minority Counsel; and Charlotte Sellmeyer, Minority Professional 

Staff Member. 

Mr. NADLER. Ladies and gentlemen, before we start this hearing, 

may I remind everybody that this is an official hearing of the Subcommittee. No disruption or calling out will be tolerated. Anyone 

who does will be instantly evicted from the room. We have had 

pretty good decorum at previous hearings on this subject. Please, 

let’s not change that. I don’t like to evict anybody from the room. 

But if I have to, I will, and I won’t hesitate, because we have to 

do this in a business-like manner and respect the rights of the witnesses, the Committee Members and, for that matter, everybody 

watching. 

So those who have the privilege of having a seat in the room to 

observe this, you are observers. Observe. You’re not participants in 

the sense of calling out or voicing opinions. You can voice opinions 

through blogs, e-mails, anything else you want after the hearing. 

Thank you. 

This hearing of the Subcommittee on the Constitution, Civil 

Rights and Civil Liberties is called to order. Without objection, the 

Chair is authorized to declare a recess of the hearing. 

Mr. KING. Objection. Objection, Mr. Chairman. 

Mr. NADLER. The gentleman wants us to sit here through votes, 

is that the point? 

2 

Mr. KING. Mr. Chairman, I object to granting unanimous consent 

to the Chair, and that is an issue that can be dealt with when the 

situation arises. 

Mr. NADLER. Members of the Committee, I move that the Chair 

be authorized to declare a recess at the Chair’s discretion. All in 

favor? Opposed? The ayes have it. The Clerk will call the roll. Is 

there a Clerk? 

Mr. ISSA. Mr. Chairman. 

Mr. NADLER. Who seeks recognition? 

Mr. ISSA. Mr. Chairman, might I suggest in the absence of a recording clerk that—— 

Mr. NADLER. There is a recording clerk. 

Mr. ISSA. Might I suggest before the reporting clerk gets down 

to call the roll, that if the Chairman and Ranking Member were 

to agree to, and whoever is sitting as Ranking Member, were to 

agree to a recess at any time, I am quite sure there would be no 

objection. 

Mr. NADLER. I will accept that assurance. I do not anticipate 

having controversy between the Chairman and the Ranking Member over whether to call a recess. That has never occurred, to my 

knowledge, or my memory, certainly. So with that assurance, the 

Committee will proceed, in the understanding that if it is necessary 

to call a recess because of votes on the floor, or any other unforeseen event, that we will call a recess. 

We will now begin by proceeding to Members’ opening statements. As has been the practice in this Subcommittee, I will recognize the Chairs and Ranking Members of the Subcommittees and 

of the full Committee to make opening statements. In the interest 

of proceeding through our witnesses, and mindful of our busy 

schedule, I would ask that other Members submit their statements 

for the record. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record. 

The Chair now recognizes himself for 5 minutes for an opening 

statement. 

Today, this Subcommittee continues its investigation into this 

Administration’s interrogation policies, which have brought disgrace to our Nation. Whatever euphemism one chooses, harsh interrogation, enhanced interrogation, or whatever justification might 

be offered, I believe, given all we know now, that it is clear that 

this Administration has authorized torture and that under its auspices, torture has been inflicted on people in U.S. custody and that 

assurances that this Nation does not use torture, when it clearly 

does, does not make the situation any better. 

The testimony we have received so far has been deeply troubling. 

Perhaps nothing was so troubling as discovering that the Chief of 

Staff to the Vice President of the United States could not bring 

himself to make an unequivocal statement that the President 

lacked the authority to order someone buried alive. 

I have also been astonished to discover that despite the radical 

departure from past practice and the past understanding of the law 

governing interrogation and treatment of detainees, no one appears 

to have been responsible for the changed understanding of the 

word ‘‘torture.’’ In fact, it has been surprisingly difficult to find 

3 

anyone who can remember much about the decision-making process 

at all. Perhaps there is something in the White House drinking 

water these days that causes amnesia. 

The facts have also been obscured by expansive claims of privilege, extraordinary claims of secrecy, sometimes concerning matters that were later made public without so much as a ripple, and 

claims that some matters were so super secret that Members of 

Congress couldn’t be told even in a classified setting. 

I do not believe that this country has ever had an Administration 

that was as obsessed with secrecy as this one. The public is illserved by concealing questions of law and policy from the public or 

from other branches government. Not questions of execution, but 

questions of law. 

Nonetheless, the picture that has emerged from our investigations, despite the Administration’s stonewalling, is deeply disturbing. It seems clear from the evidence that we have been able 

to assemble so far that the Administration decided early on to engage in torture, to use any rationale to do what generations of soldiers understood we could not do, and to conceal that fact from the 

American people and from the world. As a result, our Nation, and 

especially our men and women in uniform, are unsafe today. 

It was also interesting to hear from Mr. Yoo at a previous hearing that he could not say that a foreign power or enemy power that 

waterboarded our troops would be doing anything illegal. That is 

the consequence of our adopting policies of torture. 

Instead of uniting our allies and isolating our enemies, the Administration has accomplished the exact opposite. We must find out 

who is responsible for this and must determine how we can prevent 

this from happening again. 

Today, we will hear from Douglas Feith, one of the individuals 

most closely associated with the decision-making process concerning detainees. Mr. Feith was a top ranking official at the Department of Defense when many of these matters were considered 

and many of the policies set in place. I hope that Mr. Feith will 

be able to enlighten the Subcommittee about how some of these decisions were made and what the justification was for these policies. 

Before we begin, I need to address the issue of the subpoena that 

Chairman Conyers issued to Mr. Feith compelling his testimony before the Subcommittee. I had not intended to raise it, but Mr. Feith 

has included in his prepared testimony a discussion of the subpoena. So I want to make sure everyone understands our understanding of the facts. 

We would rather proceed without having to authorize subpoenas, 

and I know the Chairman of the full Committee does not like 

issuing them. But they are an important tool available to the Congress to ensure that individuals with information necessary to the 

work of the Congress will cooperate. 

In Mr. Feith’s case, the Committee worked with him and his 

counsel for several months, finally obtaining his voluntary agreement to appear at a hearing. He cancelled that appearance the 

morning of the hearing. His attorney gave as the reason for the 

last minute cancellation Mr. Feith’s objection to one of the other 

witnesses and his stated belief that the hearing would not be businesslike. 

4 

We cannot permit a witness whose testimony we require to censor the Committee’s choice of other witnesses. 

After the Subcommittee authorized the subpoena, Committee 

staff again contacted Mr. Feith’s attorney, attempting to obtain his 

voluntary agreement to appear. Although counsel did make an oral 

statement that Mr. Feith was available to appear, Committee staff 

were unable to obtain unambiguous written commitment that there 

were no circumstances in which he would fail to appear. As a result, issuing the subpoena was only prudent. 

Mr. Feith’s failure to cooperate with this investigation so far goes 

beyond his earlier refusal to appear. Nearly 2 months ago, Subcommittee staff met with Mr. Feith’s counsel and informed him 

that Committee Members would be interested in Mr. Feith’s role in 

Secretary Rumsfeld’s approval of harsh interrogation measures for 

Guantanamo Bay. Staff even identified the particular document in 

which Defense Department General Counsel Jim Haynes states 

that he discussed the issue with Mr. Feith. 

While Mr. Feith has provided us with a lengthy statement for 

this morning a couple of days ago, it is striking in its failure to address his role in the Administration’s interrogation program beyond 

the narrow question of the Geneva Conventions. Yet, Mr. Feith 

simply ignores this issue in his statement. 

Given our prior experience, it was clear that the only way to ensure the appearance today was to issue the subpoena. I hope my 

colleagues will agree that witnesses do not decide what we will investigate or which witnesses we will invite to assist us in our work. 

Especially the case in which the accountability of public servants 

is involved, those public servants do not have the option of refusing 

to account for their actions. 

The subject matter of this hearing is extremely important, and 

I hope that despite earlier difficulties, we will be able to conduct 

our work in a businesslike manner and that the witnesses will endeavor to assist the Members in getting the facts as easily as possible. 

I thank the witnesses for their cooperation. I yield back the balance of my time. 

I now recognize for his opening statement our distinguished 

Ranking minority Member, the gentleman from Arizona, Mr. 

Franks. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Mr. Chairman, the subject of detainee treatment was the subject 

of over 60 hearings, markups, and briefings during the last Congress in the Armed Services Committee alone, of which I am a 

Member. This hearing is yet another on terrorist interrogation programs, including those Speaker Pelosi was fully briefed on many 

years ago, and during those briefings, no objections were made by 

Speaker Pelosi or anyone else. 

Let me be clear again, as I have been in the past, by saying that 

torture is illegal. Torture is banned by the various provisions of 

law, including the 2005 Senate amendment prohibiting the cruel, 

inhumane, or degrading treatment of anyone in U.S. custody. But 

special interrogations, while legal, are very infrequent. 

CIA Director Michael Hayden has confirmed that despite the incessant hysteria in some quarters, the waterboarding technique 

5 

has only been used on three high-level captured terrorists, the very 

worst of the worst of our terrorist enemies. 

What are these people like, Mr. Chairman? When the terrorist 

Zabaydah, a logistics chief of al-Qaeda was captured, he and two 

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

make the bomb was still hot on the table, along with the building 

plans for a school. 

John Kiriakou, a former CIA official involved in Zabaydah’s as 

interrogation, said during a recent interview, ‘‘These guys hate us 

more than they love life and so you’re not going to convince them 

that because you’re a nice guy and that they can trust you and that 

they have a rapport with you, that they are going to confess and 

give you their operations.’’ 

He said the interrogation was a great success and that it led to 

the discovery of information that led to the capture of terrorists, 

thwarted their future plans, and saved innocent American lives. 

The result of these brief special interrogations of three of the 

worst of the worst terrorists were of immeasurable benefit to the 

American people. CIA Director Hayden has said that Mohammad 

and Zabaydah provided roughly 25 percent of the information CIA 

had on al-Qaeda from all human sources. The President has also 

described in some detail other crucial information we received 

through special interrogations programs. 

Now after the May 6, 2008 House Constitution Subcommittee 

hearing, our Chairman said that silence was the response when today’s witnesses were asked to identify a single example of a ticking 

bomb scenario ever occurring. But, unfortunately, that gives a misleading impression. If they are asking about specific incidents, then 

maybe we are a little bit to obsessed with the television show 24. 

But if we are talking about general threats and imminent threats 

generally, then the case of Khalil Sheikh Mohammad should be 

placed front and center. 

As Benjamin Wittes of the Brookings Institute has written in his 

book, Law and the Long War, ‘‘Khalil Sheikh Mohammad is far 

more than a ticking bomb. He is all of the bombs in various stages 

of imagination and construction. While the United States has not 

captured many such people, he was not the only one. And for leaders and operatives dedicated to protecting the country, failing to 

get all available information from such people is simply not an outcome.’’ 

Mr. Chairman, just a personal note. I believe this is about the 

10th hearing that we have had in this Subcommittee that was 

dedicated primarily to making sure that we are protecting the right 

of terrorists. I understand that. But we have had none that I know 

of that are dedicated to trying to protect the lives of American citizens. I think ten to zero is a little out of balance. 

So with that, I want to yield back. Thank you. 

Mr. NADLER. I thank the gentleman. I now recognize the distinguished Chairman of the full Committee, the gentleman from 

Michigan, Mr. Conyers, for an opening statement. 

Mr. CONYERS. Thank you, Mr. Chairman. I begin by expressing 

my pride at the work of you and this Subcommittee, all of its Members, in continuing to press for the truth on these important matters. 

6 

My dear friend from Arizona, the Ranking Member, Mr. Trent 

Franks, said, ‘‘This is the 10th hearing we have had protecting the 

rights of terrorists.’’ I would like to yield to the gentleman to tell 

us about these 10 hearings. Which 10 hearings are you referring 

to? 

I yield. 

Mr. FRANKS. Mr. Chairman, thank you. We would be glad. I 

think this is one of the examples. I think that this is a repetitive 

hearing that we have had certainly on this subject. 

Mr. CONYERS. Would you provide me after the hearing with a list 

of the 10 hearings? 

Mr. FRANKS. We will try to do that, Mr. Chairman. Thank you. 

Mr. CONYERS. Thank you very much. 

We are not here to protect rights of terrorists. This is the Constitutional Committee of the Judiciary. It is to protect the rights 

of Americans. That is what brings us here. That is what this proceeding I think is all about, and to prevent our own government 

from violating the laws and treaties that obtain to torture. That is 

what we are hearing. 

I counted some hearings myself. This is the fourth hearing. The 

first hearing was when Professor Philippe Sands, who we welcome 

to the Committee today, who is with us again, explained in detail 

that the torture that was visited in Guantanamo was ordered from 

the top and not from a few bad apples on the bottom. 

The second hearing that this Committee had, we had Dan Levin 

of the Office of Legal Counsel, who told us about flaws in Professor 

Yoo’s memos and how he was forced out of the OLC while attempting to impose constraints on torture. Mr. Wilkerson told us that 

Colin Powell was worried about torture and that the President was 

complicit. 

The third hearing of this Committee we had Messrs. Yoo and 

Addington, who refused to take responsibility for approving torture 

or the memos and documents surrounding them and could not or 

would not remember the facts. So here we are at the fourth hearing. 

Now the fourth hearing was necessitated because we had trouble 

getting Professor Feith to the hearing. It’s quite likely that we 

would not have had this hearing if he had been able to fit his 

schedule in with the other three previous ones that I noted. I will 

give him plenty of opportunity to respond to that at the appropriate 

time. 

Now what have we learned here? We have had disturbing information coming out in an unbroken stream about the way we have 

treated detainees. We heard about numerous deaths in the United 

States’ custody. We have heard about extreme methods of questioning involving the harshest possible treatment. 

Just today, we heard reports of a young Canadian detainee deprived of sleep for over 50 consecutive days. Last week, we had 

news of a Red Cross report that determined that it was Administration officials who approved torture, and that in their judgment, 

in this report, that they had committed war crimes. A respected 

Major General Taguba also has written that war crimes were committed. And the question is: How high does this responsibility go. 

7 

So it is clear that the current leadership is not going to do the investigation that our Nation requires. 

Last week, I received a letter from Attorney General Mukasey, 

refusing to appoint a special prosecutor to investigate the advice 

givers and policymakers who apparently directed this abuse. Attorney General Mukasey said that these people acted in good faith 

and so it would not be fair to prosecute them. 

Well, that starts off sounding fairly reasonably, 

but let’s look at it more closely. How does anyone know they 

acted in good faith without having an investigation beforehand. 

How can we start off with that assumption. Final decisions on 

what to do in this area can’t be responsibly made until after the 

facts are given a full and independent investigation. 

When the Attorney General appeared before us, this Committee, 

in February, I asked if he would investigate those who use 

waterboarding. He said no. He said the reason was because, ‘‘Whatever was done, was part of a CIA program at the time that it was 

done, was the subject of a Department of Justice opinion, and was 

found to be permissible.’’ 

Well, after that, we get to a question of calling for a special counsel is not to prove guilt, it is to inquire into whether these folks 

did act in a normal and reasonable manner and were acting under 

instructions. So we asked for an investigation of the people who 

gave the legal approval and of other policymakers that were involved. The Attorney General says that they cannot be investigated 

either because they were simply responding in good faith to a CIA 

request for approval. 

So here is the problem the Committee on the Constitution find 

itself engaged in this morning. We can’t investigate those who did 

the waterboarding because they had legal approval. We can’t investigate those who gave the approvals because our intelligence agents 

relied on them for advice. It is a perfect circle that leads us round 

and round and round and nowhere closer to the truth. 

So I say to all the Members of the Committee, this isn’t repetition. We are just trying to find out what has happened. 

I thank the Chairman for his giving me additional time to make 

this statement. 

Mr. NADLER. I thank the distinguished Chairman. I now want to 

welcome our—— 

Mr. KING. Mr. Chairman. Mr. Chairman, I seek time for an opening statement. 

Mr. NADLER. The gentleman is recognized for an opening statement. 

Mr. KING. I thank you, Mr. Chairman. I appreciate the opportunity, and I know that it’s not standard procedure, but our Ranking Member is not here and in that 5-minute period of time, I 

would appreciate the full Ranking Member of the full Committee, 

as in Mr. Conyers’ counterpart. 

So I just think it is important for us to frame this hearing today 

within the context of the work and the service of the people that 

are under this scrutiny. I would ask us to role our minds back to 

that terrible day of September 11, 2001, the day that my sons came 

together in our household, grown men, some with families, and 

said, One more attack and we are all going to join the military 

8 

today; the day that all of us looked at that blazing inferno tumbling 

down in New York and thought the planes that were in the air that 

aren’t grounded may be planes that still come into the Capitol, into 

the White House, other places unknown across this country. The 

day that, when the sun set on September 11, 2001, no one in this 

country would have logically predicted that we would be sitting 

here today on this date in 2008, having not suffered an attack, a 

successful attack by al-Qaeda or other significant terrorists in the 

entire continent of the United States, and Hawaii and Alaska included. 

That has been the success of this Administration. That was not 

even a dream then. It would not have been uttered by our leadership back in September of 2001, because it would considered to be 

a pipe dream. In fact, if President Bush would have stepped up and 

said, I can hear you now, and you hear me now; there will be no 

American who is suffering from this kind of attack on our sovereign 

soils during the Bush administration, you would have all been busy 

here trying to discredit the President for the audacity of a statement like that. But that is the reality of where we are today. 

The reality that these men who are under scrutiny for the decisions that made at that time was that they were working while 

that smoking hole in New York was still burning, and while that 

burning rubble, and as bodies and ashes were brought out of there, 

they were trying to protect this country from seeing that kind of 

inferno again, they were using the legal guidelines that they had, 

and as I read through those guidelines and I try to second-guess 

that logic, I think all of us have to second-guess that logic if we 

are going to do it within the context of the scenario that I have 

painted. 

I think it is inappropriate for us to bring people up now and turn 

them slowly on a spit because there are people on the Committee 

that despite the Administration. I remind you that this Administration will be over January 20, 2009, and it is time for us to turn 

our focus to the future of the United States of America, not to the 

past, and turning people on a spit that have been serving America 

in the fashion that they have, who have a legal foundation for their 

analysis, because there are people that disagree with that legal 

analysis, I think is an inappropriate kind of show for us to have 

before the American people. 

I have disagreements with the majority party on how they analyze those definitions of torture, and in fact, it is just not possible 

to write a complete definition of what torture is. So that will allow 

Monday morning quarterbacks, any time there is any pressure 

made, to draw that kind of a judgment. 

So I would caution this Committee to, when we listen to Mr. 

Feith’s testimony in particular, to think about what he was thinking, what was in his mind, how recent and how current the smoking hole in New York was, the smoking ground in Pennsylvania 

was, and the Pentagon and the United States. That is the context 

that this hearing should be considered in. 

I thank the Chairman for recognizing me for the opportunity to 

frame that, and I would yield back the balance of my time. 

Mr. NADLER. I thank the gentleman. I would simply like to point 

out that regardless of the situation of the country, we can all judge 

9 

that for ourselves at any given point. We do have laws in this country, and that is what distinguishes us from other countries. Those 

laws are not set aside by difficult circumstances. Among the questions we are considering is whether those laws were violated. We 

can differ on that question. But no one can take the position that 

our laws against torture or any other laws can be simply set aside 

at the whim of the Administration, which thinks that that is the 

best way to deal with the challenges with which we are faced. 

We are a Nation of laws. Those laws must be obeyed. If they are 

inadequate, they should be changed through constitutional processes. That is what this Committee is examining, whether those 

laws were obeyed, whether they were disobeyed, and if so, why and 

what we can do about it in the future. 

Mr. ISSA. Mr. Chairman. 

Mr. NADLER. That is a legitimate inquiry. 

Mr. ISSA. Mr. Chairman, point of parliamentary inquiry. 

Mr. NADLER. Yes, sir. 

Mr. ISSA. Isn’t it true that we are having another hearing on 

Thursday, the fifth in the series? 

Mr. NADLER. That is a hearing of the full Committee. 

Mr. ISSA. Further inquiry. Isn’t it true that under the law, this 

alleged torture had to be reported to Congress, and that it was reported to Congress? 

Mr. NADLER. First of all, I don’t know the answer to your question. In any event, that is not a parliamentary inquiry. 

Mr. ISSA. Then a further inquiry of the Chair. Isn’t it true that 

Speaker Pelosi and Jane Harman of California both were briefed, 

and would thus fall under the Chairman’s definition of advice and 

counsel? 

Mr. NADLER. That, again, is not a parliamentary, and you might 

want to address any questions to the witnesses. 

Mr. ISSA. One final parliamentary inquiry. 

Mr. NADLER. I am yet to hear the first one. But go ahead. 

Mr. ISSA. Do we have the ability to summon Members of Congress who may know about the torture at Guantanamo or other 

places? Do we have that authority, Mr. Chairman? 

Perhaps the full Committee Chairman can tell us whether we 

can bring a Member of Congress to answer those answers. Can we 

even invite a Member of Congress to give testimony or to tell us 

what they knew? 

Mr. NADLER. We can certainly invite a Member of Congress to 

testify about anything. We have had Members of Congress in front 

of our Committee. Whether we can compel a Member of Congress, 

frankly, I don’t know. We would have to consult the Parliamentarian. 

Mr. ISSA. Thank you, Mr. Chairman. I then move that we invite 

Speaker Pelosi and Ms. Harman to give us the knowledge they 

knew, since my understanding, as a Member of the Intel Committee, is that they were both fully briefed in real-time on what we 

are going to hear today, and that we do it for Thursday, since before we come to an end of these endless hearings, we certainly 

should know what did they know and when did they know it. 

10 

Mr. NADLER. The gentleman’s suggestion, which I will take as a 

suggestion since a motion would not be in order, will be taken 

under advisement. 

Mr. ISSA. I thank the Chairman. 

Mr. KING. Would the Chairman yield? 

Mr. NADLER. For what purpose does the gentleman seek recognition? 

Mr. KING. For further clarification on your remarks, Mr. Chairman. 

I appreciate that. I wanted to clarify. I hope no one misunderstood my remarks. I think I was clear that I didn’t advocate for violation of the law or the law of torture. My remarks were that it 

is not possible to define torture precisely enough. That we will always have a debate on it. So I hope there wasn’t a misunderstanding on my advocacy and my statement. 

Mr. NADLER. I thank the gentleman for the clarification. 

Ladies and gentlemen, I want to welcome our distinguished 

panel of witnesses, at last, today. Douglas Feith is professor and 

a distinguished practitioner in national security policy at Georgetown University. He is a Belfor Center visiting scholar at Harvard’s 

University’s Kennedy School of Government. And a distinguished 

visiting fellow at the Hoover Institution at Stamford University. 

Professor Feith served as the Under Secretary of Defense for Policy, the number three position in the Department, from July, 2001, 

until August, 2005. In the Reagan administration, Professor Feith 

worked at the White House as a Middle East specialist for the National Security Council, and then served as Deputy Assistant Secretary of Defense for negotiations policy. Professor Feith holds a JD 

from Georgetown University Law Center and an AB from Harvard 

College. 

Philippe Sands QC is on the faculty of the University College at 

London, where he has been a Professor of Law and Director of the 

Center on International Courts and Tribunals in the faculty, and 

a member of the staff of the Center for Law and the Environment. 

Professor Sands has litigated cases before the International Court 

of Justice, the International Tribunal for the Law of the Sea, the 

International Center for the Settlement of Investment Disputes, 

and the European Court of Justice. 

He is the author of Torture Team: Cruelty, Deception and the 

Compromise of Law, and of Lawless World: America and the Making and Breaking of Global Rules. 

Deborah Pearlstein is currently a visiting scholar at the Woodrow Wilson School of Public and International Affairs at Princeton 

University. From 2003 to 2006, she was the director of the law and 

security program at the nonprofit organization Human Rights 

First. She clerked for Judge Michael Boudin of the U.S. Court of 

Appeals for the First Circuit, and Justice John Paul Stevens of the 

United States Supreme Court. Professor Pearlstein is a graduate of 

Harvard Law School. 

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

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

to take the oath. 

[Witnesses sworn.] 

11 

Mr. NADLER. Let the record reflect that the witnesses answered 

in the affirmative. 

You may be seated, as you already have been. 

Without objection, your written statements will be made a part 

of the record in their entirety. We would ask each of you to summarize your testimony in 5 minutes or less. To help you keep time, 

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

light will switch from green to yellow, and then to red when the 

5 minutes are up. 

Our first witness I will recognize now is Professor Feith for 5 

minutes. 

TESTIMONY OF DOUGLAS FEITH, PROFESSOR, GEORGETOWN 

UNIVERSITY, AND FORMER DEFENSE UNDER SECRETARY 

FOR POLICY 

Mr. FEITH. Mr. Chairman, Mr. Franks, Members of the Committee, I am pleased to testify today. All I will say in my opening 

statement is that the subpoena was unnecessary. I am happy to 

have the opportunity to counter some widely believed falsehoods 

about the Administration’s policies. 

The history of war on terrorism detainee policy goes back nearly 

7 years. Some critics of the Administration have twisted that history into what has been called the torture narrative. It is an unsubstantiated accusation that top level Administration officials 

sanctioned abuse and torture of detainees. 

The book by Philippe Sands is an important prop for that false 

narrative. Central to the book is its story about me and my work 

on the Geneva Convention. Mr. Sands says I was hostile to Geneva 

and that I devised the argument that Gitmo detainees shouldn’t receive any protections at all under Geneva. Those assertions are 

wrong. In fact, I strongly championed a policy of respect for Geneva, and I did not recommend that the President set aside Common 

Article 3. 

In January and February 2, 2002, Administration lawyers 

brought to the President the question of the detainees’ legal status. 

A key issue was whether the war with the Taliban was subject to 

the Geneva Convention. Some lawyers argued that the President 

could say that Geneva didn’t apply, even though Afghanistan was 

a party to the Convention. Their argument was that Afghanistan 

at that time was a failed state and the Taliban was not a proper 

government. 

General Myers, the Chairman of the Joint Chiefs of Staff, didn’t 

like that argument. He said the United States should not try, in 

his words, to weasel out of its obligations under Geneva. I agreed 

with him wholeheartedly. The two of us argued to Secretary Rumsfeld that the United States had a compelling interest in showing 

its respect for Geneva. 

I drafted a memo on the subject for Mr. Rumsfeld, and cleared 

it with General Myers. The memo stressed that Geneva is crucial 

for our own Armed Forces. I described Geneva as a good treaty 

that requires its parties to treat prisoners of war the way we want 

our captured military personnel treated. I noted that U.S. troops 

are trained to uphold Geneva, and this training is an essential element of U.S. military culture. 

12 

I wrote that Geneva is morally important, crucial to U.S. morale, 

and it is also practically important, for it makes U.S. Forces the 

gold standard in the world, facilitating our winning cooperation 

from other countries. 

My memo made the case that Geneva should apply to our war 

with the Taliban. Secretary Rumsfeld arranged for me to make 

these points to the President at the National Security Council 

meeting, which I did. The Department’s leadership took a strongly 

pro-Geneva position. 

The Committee can therefore see that the charge that the department’s leadership was hostile to Geneva is untrue. The picture 

that Mr. Sands’ book paints of me as an enemy of the Geneva Convention is wildly inaccurate. 

Mr. Sands also misstates my position on the treatment detainees 

were entitled to under Geneva. He writes that I argued that they 

were entitled to none at all. But that is false. I argued simply that 

they were not entitled to POW status. 

There was a question whether the President should grant POW 

status to all the detainees as a magnanimous gesture, without regard to whether they were entitled to it. I believe that would be 

a bad idea. Geneva sets conditions for POW eligibility. It uses POW 

status as an incentive to encourage fighters to wear uniforms and 

comply with the other rules designed to protect noncombatants. 

Giving that status to terrorists would undermine the Convention’s 

incentive to mechanism. 

Also, giving POW status to undeserving terrorists would make it 

impossible to get intelligence from many of them. It was legal and 

proper. Furthermore, it was necessary and urgent that U.S. officials interrogate war-on-terrorism detainees effectively. 

In fighting the enemy after 9/11, the key intelligence was not discoverable by satellite, as it was during the Cold War, when we 

could watch the Soviet Western military district from space for 

signs of a planned attack. In our post-9/11 challenge, the most important intelligence was not visible from space. We aimed to prevent future 9/11-type attacks, as Congressman King pointed out, by 

learning what was in the heads of a few individuals, by learning 

what captured terrorists knew about their groups’ plans and capabilities. It would have made no sense for the President to throw 

away the possibility of effective interrogations by bestowing POW 

status on detainees who were not actually entitled to it under Geneva. 

The President ultimately decided Geneva applied in Afghanistan 

and that none of the Gitmo detainees qualified for POW status. 

So what standard of treatment then should the detainees receive? President Bush said they should be given humane treatment, which brings us to the essence of the books’ attack on me. 

It is the claim that in the deliberations leading up to the President’s decision on humane treatment, I not only argued against relying on Common Article 3 for the definition of humane treatment, 

but I somehow invented that argument. 

Those assertions are false. There is no evidence for them. I did 

not invent any argument against Common Article 3. I was not even 

making such an argument. In fact, I was receptive to the view that 

Common Article 3 should be used. 

13 

So Mr. Sands’ account about me is fundamentally wrong. This is 

important not simply because that account smears me, it is significant because it exposes the astonishing carelessness or recklessness of his book and his Vanity Fair article. It impeaches Mr. 

Sands as a commentator. 

I was a policy official and didn’t serve in the Administration as 

a lawyer, but I asked the lawyers occasional-Questions about detainee matters being handled in legal channels. I asked, ‘‘Why not 

use Common Article 3 to define humane treatment and why not 

use so-called Article 5 tribunals to make individual determinations 

that the detainees are not entitled to POW status?’’ 

The lawyers in charge, however, opposed using Article 5 tribunals. They said they were unnecessary. The lawyers also decided 

that Common Article 3 was not applicable because, according to its 

language, it applies to only non-international conflicts. 

On February 7, 2002, the President declared that he accepted the 

Justice Department’s legal conclusion that Common Article 3 

doesn’t apply to the detainees. Contrary to Mr. Sands’ story, I had 

nothing whatever to do with that Justice Department legal conclusion. 

Now I know that various lawyers dispute the legal conclusion 

adopted by the President on Common Article 3. Reasonable people 

differ on the matter. When the U.S. Supreme Court eventually 

dealt with Common Article 3’s applicability to the Gitmo detainees, 

a question of first impression, the Justices split. The majority ruled 

against the Administration, but there were justices who went the 

other way. The President has deferred to the Supreme Court, as he 

must. 

In no way does the record bear out Mr. Sands’ allegation that I 

argued against using Common Article 3, much less that I invented 

the legal argument against it. Mr. Sands dragged me into his book 

and painted me as a villain without any evidence for his key accusation that I opposed the use of Common Article 3. 

Mr. Sands’ book is a weave of inaccuracies and distortions. He 

misquotes me by using phrases of mine like, ‘‘that is the point,’’ 

and making the word ‘‘that’’ refer to something different. 

Mr. NADLER. The witness will suspend. 

Mr. CONYERS. I ask unanimous consent that the witness be given 

additional time. 

Mr. FEITH. I only need a minute more. 

Mr. NADLER. Without objection, the witness will be given an additional minute, loosely interpreted. 

Mr. FEITH. Thank you. 

As I was saying, Mr. Sands’ book is a weave of inaccuracies and 

distortions. He misquotes me by using phrases of mine like, ‘‘that’s 

the point,’’ and making the word that refer to something different 

from what I referred to in our interview. I challenge Mr. Sands to 

publish whatever on-the-record audio he has of our interview. I believe it will clearly show that he has given a twisted account. 

Likewise, Mr. Sands’ book presents a skewed account of the 

Rumsfeld memo referred to in the book’s subtitle. I hope we will 

get into in this during today’s hearing. 

I want to conclude this statement by 

14 

reiterating that I have focused on issues relating to me, not because they are necessarily the most important but because I can 

authoritatively say that Mr. Sands has presented those issues inaccurately. His ill-informed attack on me is a pillar of the broader argument of his book, and that flawed book is a pillar of the argument that Bush administration officials despise the Geneva Convention and encouraged abuse and torture of detainees. 

Congress and the American people should know that this socalled torture narrative is built on sloppy research, misquotations, 

and unsubstantiated allegations. 

Mr. NADLER. I thank the witness. 

[The prepared statement of Mr. Feith follows:] 

15 

PREPARED STATEMENT OF DOUGLAS FEITH


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Mr. NADLER. Our next witness will be Professor Pearlstein, who 

is recognized for 5 minutes. 

TESTIMONY OF DEBORAH N. PEARLSTEIN, ASSOCIATE RESEARCH SCHOLAR, LAW AND PUBLIC AFFAIRS PROGRAM, 

WOODROW WILSON SCHOOL FOR PUBLIC AND INTERNATIONAL AFFAIRS, PRINCETON UNIVERSITY 

Ms. PEARLSTEIN. Thank you, Mr. Chairman, Ranking Minority 

Member Franks, Members of the Committee. Thank you very much 

for the opportunity to testify before you today. 

My testimony today is about the consequences of the Administration’s legal policy, and it is informed by my work both as a scholar 

of U.S. constitutional and national security law and as a human 

rights lawyer. In the course of my work I have been privileged to 

meet an array of senior retired military leaders, JAG officers, civilian intelligence, and defense department officials who spent their 

careers devoted to pursuing national security interests, and who 

have been overwhelmingly deeply troubled by the Administration’s 

approach to human intelligence collection and detainee treatment. 

I have also met with Iraqi and Afghan nationals who have been 

victims of gross abuse in U.S. detention facilities, and have reviewed hundreds of pages of government documents detailing our 

treatment of the many thousands of detainees who have passed 

through U.S. custody since 2002. 

Based on this work, it has become clear to me that the U.S. 

record of detainee treatment has fallen far short of what our laws 

require and what our security interests demand. 

Well beyond the few highly publicized incidents of torture at Abu 

Ghraib, as of 2006, there have been more than 330 cases in which 

U.S. military and civilian personnel have been credibly alleged to 

have abused or killed detainees. These figures are based almost entirely on the U.S. Government’s own documentation. 

These cases involved more than 600 U.S. Personnel and more 

than 460 detainees held at U.S. facilities throughout Afghanistan, 

Iraq, and Guantanamo Bay. They include some 100-plus detainees 

who died in U.S. custody, including 34 whose deaths the Defense 

Department reports as homicides. At least eight of these detainees 

were, by any definition of the term, tortured to death. 

Beyond these obviously dismaying human rights consequences, 

multiple U.S. defense and intelligence officials have now described 

the negative strategic and tactical security consequences or our 

treatment of detainees. Polling in Iraq has underscored how U.S. 

Detention practices helped galvanize public opinion against the 

United States. Extremist group Web sites now invoke the image of 

Abu Ghraib to spur followers to action against the U.S. 

Arguably, even more alarming, a remarkable recent study by the 

British parliament found that U.S. detainee treatment practices led 

the U.K. to withdraw from previously planned covert operations 

with the CIA because the U.S. failed to offer adequate assurances 

against inhumane treatment. 

But I think it was the statement of the young army intelligence 

office who put the intelligence impact most succinctly. The more a 

prisoner hates America, the harder he will be to break. The more 

66 

a population hates America, the less likely its citizens will be to 

lead us to a suspect. 

Over the course of my work it has become clear to me that these 

effects were not merely the consequences of misconduct by a few 

wrongdoers. Rather, senior civilian legal and policy guidance was, 

in my judgment, a key factor that led to the record just described. 

In addition to Mr. Sands’ important work, I highlight here two 

other factors that led me to this conclusion. First, the abuse I have 

described followed a series of legal decisions to change what had 

been for decades settled U.S. law. This law embodied in military 

doctrine, field manuals, and training had unambiguously provided 

that detention operations in situations of armed conflict were controlled by the Geneva Conventions, including Common Article 3 of 

those treaties affording all detainees a right to humane treatment, 

not just prisoner of war detainees. 

The Administration’s 2002 legal interpretation to the contrary, as 

the Supreme Court later made clear in Hamdan versus Rumsfeld, 

was wrong as a matter of law. It was also disastrous as a matter 

of policy. In suspending application of Common Article 3, the Administration offered no consistent set of rules to replace those it 

had summarily rejected, producing rampant confusion and ultimately gross abuse by frontline troops. 

Although troops moved seamlessly from Afghanistan to Guantanamo to Iraq, the operative interrogation orders in each theater 

differed. The orders differed further within each detention center, 

depending on the month, the Agency affiliation of the interrogator, 

and the legal status assigned, which itself shifted repeatedly, to the 

prisoner himself. These policies and orders and the confusion they 

engendered unquestionably played a role in facilitating abuse. 

Second, and critically, gross acts of abuse continued long after 

senior Pentagon officers, including that of Secretary of Defense 

Rumsfeld, knew it was happening, and yet no meaningful action 

was taken to stop it. By February 2004, the Pentagon had seen extensive press accounts, NGO reports, FBI memoranda, Army criminal investigations, and even the report of Army Major General Antonio Taguba detaining detainee torture and abuse, yet essentially 

no investigative progress had been made by 2004 in some of the 

most serious cases, including the interrogation-related homicides of 

detainees in U.S. custody. 

On the contrary, shortly after the Taguba report was leaked to 

the press in early May, 2004, Mr. Feith’s office sent an urgent email around the Pentagon, warning officials not to read the report. 

The e-mail, according to a News Week report, warned that no one 

should mention the Taguba report to anyone, including family 

members. 

This is not the response of an Administration, in my judgment, 

that takes either human rights or law enforcement seriously. 

I am deeply supportive of this Committee’s efforts to review the 

record on these matters, and I am grateful for the opportunity to 

share my views. I look forward to your questions. 

Mr. NADLER. I thank Professor Pearlstein. 

[The prepared statement of Ms. Pearlstein follows:] 

67 

PREPARED STATEMENT OF DEBORAH N. PEARLSTEIN


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Mr. NADLER. I now recognize for 5 minutes for his opening statement, Professor Sands. 

TESTIMONY OF PHILIPPE SANDS, PROFESSOR, 

INTERNATIONAL LAW, UNIVERSITY COLLEGE LONDON 

Mr. SANDS. Thank you very much. 

Mr. Chairman, Subcommittee, it is a pleasure to be back for the 

second time, and a privilege also to share this table with my two 

colleagues to my right. 

Since I last appeared on the 6th of May, important details have 

emerged, filling out and developing accounts that I and others have 

given, and that account, my account, other accounts have been sustained and strengthened by what has emerged. 

I then described really four simple steps to what happened. First, 

get rid of Geneva and the international rules prohibiting aggressive 

interrogations. Second, find new interrogation techniques and disarm their opponents by circumventing the usual consultations. 

Third, deploy those techniques. And fourth, make it look as though 

the initiative came from the bottom up. 

New information and testimony conclusively shows the decision 

to move to aggressive military interrogations at Guantanamo came 

from the top. We now know, for example, since the hearing before 

the Senate Armed Services Committee, that as early as July, 2002, 

the Office of General Counsel at DOD was actively engaged in exploring sources for new techniques of interrogation, including from 

the SERE program. That seems to have pre-dated the efforts at 

Guantanamo. 

There has been, until this morning, no challenge to my conclusion that the Geneva Conventions were set aside to allow new interrogation techniques to be developed and applied. That Act created a legal vacuum within which the torture memo of August 1, 

2002, was written by Jay Bybee and John Yoo. Nothing has 

emerged, frankly, to contradict my conclusion and that of others 

that it was Professor Yoo’s memo rather than Colonel Beaver’s 

legal advice that served as the true basis for Mr. Haynes’ recommendation and Mr. Rumsfeld’s authorization of cruelty on the 

2nd of December, 2002. 

Most significantly, in my view, in her testimony before the Senate Armed Services Committee on June 17, Jane Dalton, who was 

the general counsel to General Myers, the Chairman of the Joint 

Chiefs of Staff, confirmed my account that Mr. Haynes actively and 

directly short-circuited the decision-making process. 

Admiral Dalton went further. She revealed that there was serious objections already by November from military lawyers, that 

these were known to General Myers and Mr. Haynes, and that 

steps were taken to prevent them from being taken any further. 

That is entirely consistent with my belief that a conscious decision 

was taken at the upper echelons of the Administration to avoid 

unhelpful legal advice. 

These are very serious matters that, in my humble submission, 

do require further investigation. That is an important role for this 

Committee and for Congress and perhaps also for others. 

Professor Yoo testified before this Committee on June 26. Whether deliberately or by accident, he fell into error with respect to my 

79 

previous testimony. Professor Yoo said that I had never interviewed him for my book, and that is right, but he also asserted in 

my testimony that I had claimed to have done so, and that is 

wrong. It seems that if he did read my testimony, he did so with 

insufficient care. 

I didn’t say to this Committee that I had interviewed him. I 

chose my words with great care. What I said on May 6 was, and 

I quote, ‘‘Over hundreds of hours I conversed or debated with many 

of those most deeply involved in that memo’s life. They included, 

for example, the Deputy Assistant Attorney General at DOJ, Mr. 

Yoo.’’ 

I was, of course, referring to the debate I had with Professor Yoo 

in the autumn of 2005 at the World Affairs Council in San Francisco. It is fully described in my book. If you are interested, you can 

listen to it on the Web. 

Congressman King seized on Professor Yoo’s words with impressive speed. The Congressman seemed to be under the impression 

that I had made a full statement to the Committee, and suggested 

that might reflect on the veracity of the balance of my book. That 

avenue, I fear, is not available to him because I made no claim in 

my testimony or in the book to having interviewed Professor Yoo. 

And because the allegation is serious, I wrote to Professor Yoo, inviting him to correct his error. I have attached a copy of that letter 

in my written statement. I haven’t yet received a reply. I did also 

copy the letter to Congressman King, and I trust he accepts that 

if any false statement was made before this House, I was not its 

author. 

Mr. Addington also appeared before this Committee on June 26. 

His appearance was striking in many respects, not the least for his 

apparently generous failure of memory. On many key issues he 

simply said he couldn’t remember. He couldn’t remember, for example, whether he had been to Guantanamo in September, 2002. He 

couldn’t remember whether they had discussions on interrogation 

techniques. He couldn’t even remember whether he then met Colonel Beaver, Staff Judge Advocate. And yet, he was curiously able 

to recall one point during this meeting with crystal clarity. Asked 

by Congressman Wasserman Schultz whether he had encouraged 

Guantanamo Bay interrogators, ‘‘to do whatever needed to be 

done,’’ Mr. Addington was suddenly be able to provide a clear response. I do deny that, he said. That quote is wrong. 

You will appreciate my skepticism at his sudden and selective capacity for recollection. Either he remembers what happened that 

day, or he does not. 

I did interview Mr. Feith for my book. He told me much that was 

of interest. He told me the decision not to follow the rules reflected 

in Geneva was taken in the knowledge that it would remove constraints on military interrogations. He told me the decision to move 

to aggressive military interrogations followed what he called a 

thoroughly interagency piece of work involving DOJ. 

I learned also that Mr. Feith was somewhat reticent about his 

own role in the decision to treat Al Qahtani, detainee 063, with 

cruelty. I was able to help him recall that his involvement in that 

decision came rather earlier than he had wanted me to believe. You 

can see that for yourself in Mr. Haynes’ one-page memo that I inVerDate Aug 31 2005 15:53 Mar 26, 2009 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6601 H:\WORK\CONST\071508\43523.000 HJUD1 PsN: 43523
80 

cluded as an attachment to my statement. ‘‘I have discussed this 

with Doug Feith,’’ wrote Mr. Haynes. 

Mr. Feith later wrote a letter to the editor of Vanity Fair complaining that my article contained more misquotations and errors 

that can be addressed in this letter. He didn’t, however, provide 

even a single example of misquotation. I believe that I provided an 

accurate and fair account of that conversation and was able to deal 

shortly with his allegation when the editor gave me an opportunity 

to respond. He may not recall that our conversation was recorded, 

I wrote of Mr. Feith. The quotations are accurate. 

Since he has not identified any errors, I wasn’t in a position to 

respond to his allegations. Subsequently, Mr. Feith took matters to 

another level. Last month, in the course of an interview on the Canadian Broadcasting Corporation program, The Current, he expressed his belief that my book was dishonest. That is a serious 

charge. Perhaps it is was made in a moment of excess. Even so, it 

is wrong. It has been made, once again, until this morning, without 

substantiation. 

Now this morning, for the first time I have got an indication of 

what it is that seems to bother Mr. Feith. I should say I am entirely open to reviewing all the documents in a spirit of transparency if I have got things wrong, but I don’t think I have. 

This morning, Mr. Feith said, and I read from his introductory 

statement, that, Sands writes that I argued that the Gitmo detainees were entitled to no rights at all under Geneva. But that is not 

true, he writes. I argued simply they were not entitled to POW 

privileges. 

Now that, I am afraid, is not an accurate account of what he said 

to me. And I quote from an extract that I will circulate and make 

available, and I should say that I am very happy to accede to his 

request, and if the Committee would like it, to make available to 

the Committee the audio and the transcript of my interview with 

him. I leave that to the Committee to indicate. 

This is what he said to me. ‘‘The point is that the al-Qaeda people were not entitled to have the convention applied at all, period.’’ 

Obvious. ‘‘Al Qaeda people were not entitled to have the convention 

applied at all, period.’’ End of quote. That word admits of no ambiguity. I understood those words to include what it says: All of Geneva, including Common Article 3. And the thing that is so curious 

is that in the document that he put in this morning attached to his 

introductory statement he refers to his contemporaneous memo of 

February, 2002, and we find no reference in that to his strong and 

burning desire to ensure that Common Article 3 provisions are respected. 

So with respect, I stand to be correct, but I do not see that I have 

misquoted or miscited in any way what he told me or what the 

record shows. 

Now, Mr. Feith held an important position. He was head of policy, number three, at Pentagon. And yet it seems that he and his 

colleagues failed to turn their minds to all the possible consequences of—— 

Mr. NADLER. Without objection, the witness will have an additional minute and a half. 

81 

Mr. SANDS. Thank you very much, sir. I will try to wrap within 

that time. 

Having decided to circumvent these international constraints on 

aggressive interrogation, it seems that some key questions were not 

asked. Was the Administration satisfied that these new techniques 

could produce reliable information? Could the techniques undermine the war on terror by alienating allies? Would the fact of aggressive interrogation be used as a recruiting tool? 

It seems that Mr. Feith was involved in many aspects of these 

decisions, from the denial of Geneva rights to all the detainees at 

Guantanamo, to the appointment of Major General Dunlavey, the 

combatant commander at Guantanamo, to the adoption of aggressive interrogation techniques. 

You would not know that from his recent book, in which six 

pages out of 900 are devoted to the Geneva decision and the issue 

of aggressive interrogations is reduced to a mere single paragraph. 

No mention is made of Detainee 063 or Mr. Feith’s role on the interrogation rules or the way in which the Department of Defense 

Inspector General concluded that the Guantanamo techniques approved on his watch migrated to Abu Ghraib. All this is simply 

airbrushed out of the story. 

Mr. Chairman, Members of the Subcommittee, at the heart of 

these hearings lie issues of fact. If Congress cannot sort this out, 

and if a desire for foreign investigations is to be avoided, the need 

to investigate the facts fully in this House and the other House is 

an important one. And foreign investigations may become impossible to resist if that does not happen. 

I thank you, sir, for allowing me to make this introductory statement. 

[The prepared statement of Mr. Sands follows:] 

82 

PREPARED STATEMENT OF PHILIPPE SANDS


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Mr. NADLER. I thank you, sir. 

We will now begin the questioning of the witnesses. As we ask 

questions of our witnesses, the Chair will recognize Members in the 

order of their seniority in the Subcommittee, alternating between 

majority and minority, provided that the Member is present when 

his or her turn arrives. 

Members who are not present when their turn begins will be recognized after the other Members have had the opportunity to ask 

their questions. The Chair reserves the right to accommodate a 

Member who is unavoidably late or only able to be with us for a 

short time. 

I will begin by recognizing myself for 5 minutes to begin the 

questioning. 

Mr. Feith, I want to ask you about your role in Secretary Rumsfeld’s December 2002 approval of techniques for use in interrogations at Guantanamo Bay. The cover memo from the Department 

of Defense counsel Jim Haynes to Secretary Rumsfeld says, and I 

quote, ‘‘I have discussed this with the deputy, with Doug Feith, and 

General Myers. I believe that all join in my recommendation,’’ unquote. 

Did you undertake your own review of legality of the requested 

techniques? 

Mr. FEITH. No. 

Mr. NADLER. And if you didn’t, whose legal advice did you rely 

upon? 

Mr. FEITH. We were relying on the general counsel. 

Mr. NADLER. That is Mr.—— 

Mr. FEITH. Mr. Haynes. 

Mr. NADLER. Mr. Haynes. And had you seen the August 2002 

OLC illegal memo? 

Mr. FEITH. I don’t think so. I don’t remember when I first saw 

that. I’ve been doing so much work on this subject in recent years 

and doing research, that I can’t—I don’t remember when I first saw 

that document. 

Mr. NADLER. But is it your recollection that that document would 

not have been influential in your deciding to accede to the Secretary’s memo in December? 

Mr. FEITH. It’s possible that I hadn’t seen it at all. But, I mean, 

I can’t say that it’s influential, when I don’t know that I saw it. 

Mr. NADLER. So you’re saying it wasn’t influential? Even if you 

had seen it, it wasn’t influential? You don’t remember seeing it. 

Mr. FEITH. I don’t remember seeing it. 

Mr. NADLER. Okay, fine. 

In your written testimony, you state that you argued for application of common Article 3’s humane treatment requirements. 

Do you believe that the interrogation techniques which you recommended Secretary Rumsfeld give blanket approval—stress positions, isolation, nudity, the use of dogs—qualify as humane—that 

would in categories 2—qualify as human treatment under the Geneva? 

Mr. FEITH. I think it’s important, when we discuss this document—there’s so much discussion of this document on the Haynes 

memo and counter-resistance techniques. To understand the way it 

94 

looked to us, I think it’s extremely important to go back and look 

at the memo. 

Mr. NADLER. We have the memo. 

Mr. FEITH. And I would encourage everybody to do that. I attached it as part—as an attachment to my—— 

Mr. NADLER. We all have the memo, sir. 

Mr. FEITH. Okay. I attached it as part of my statement. 

When we looked at this statement, what it does is—SOUTHCOM 

requested some additional techniques. I think there were 18 of 

them. And it put the techniques into three categories, and—— 

Mr. NADLER. Excuse me. To cut to the chase, you said that categories 1 and 2 were okay—— 

Mr. FEITH. No, no, no, cutting to the chase I think leads—— 

Mr. NADLER. Hold on a second. Tell me if I’m wrong or if my 

summary is wrong. You said that categories 1 and 2 are okay, 

could be used. Category 3, while legal, is inadvisable, shouldn’t be 

used. 

Mr. FEITH. I think that’s largely correct. I think the question 

that, Mr. Chairman, you seem to be getting at is, shouldn’t alarm 

bells have gone off when we saw this memo that—— 

Mr. NADLER. No, no. No, sir, the question is that you’re acceding 

to a memo which said that the use of categories 1 and 2 were okay, 

legal and okay. And category 2 includes such things as the use of 

28-hour interrogations, hooding—— 

Mr. FEITH. No, no, 20-hour. 

Mr. NADLER. What? Oh, 20. It looks like 28 here. I don’t know 

if there is a great difference. 

These are 20-hour interrogations, hooding, removal of clothing, 

use of detainee individual phobia, such as fear of dogs, to induce 

stress. 

Wouldn’t that be the normal definition of anyone’s concept of torture? Hadn’t it always been? 

Mr. FEITH. I don’t believe so, but especially not—— 

Mr. NADLER. I’m sorry, let me rephrase that. It shouldn’t be torture. Are those humane treatments that we should apply? 

Mr. FEITH. Okay, this—I imagine one could apply these things 

in an inhumane fashion, or one could apply them in a humane 

fashion. The general guidance—— 

Mr. NADLER. Well, let me ask you, how could you force someone 

to be naked and undergo a 20-hour interrogation? 

Mr. FEITH. It doesn’t say naked. 

Mr. NADLER. The removal of clothing. Removal of clothing doesn’t 

mean naked? 

Mr. FEITH. Removal of clothing is different from naked. 

Mr. NADLER. Really? 

Mr. FEITH. It talks about removal of comfort item and of clothing 

that would make—the idea was to induce stress, they talked about, 

but one could induce—in our police stations around America every 

day, American citizens are subjected to stress as part of interrogations. It can be done in an inhumane way; it could be done in a 

humane way. 

The general guidance—— 

Mr. NADLER. Wait, wait. Are you saying—I find it hard to believe—hard to imagine, I should say, how someone could have a 

95 

hood placed over his head or be restricting his breathing, undergo 

a 20-hour interrogation, while having had his clothing removed and 

using his fear of dogs or other—— 

Mr. KING. Mr. Chairman, point of order. 

Mr. NADLER [continuing]. And how that could be considered humane. 

Mr. KING. Mr. Chairman, point of order. 

Mr. NADLER. The gentleman will state his point of order. 

Mr. KING. The Chairman is ignoring the 5-minute rule. Under 

rule 11, clause 2(j), it requires that questioning of the witnesses 

occur under the 5-minute rule until each Member has had an opportunity to question the witnesses. When you allow the Members 

to take more than 5 minutes, it’s a violation of the rules, and it 

potentially derives—— 

Mr. NADLER. The gentleman is 5 seconds over the 5-minute rule. 

Mr. CONYERS. I’m going to ask that the Chairman be granted an 

additional minute. 

Mr. NADLER. Without objection, the Chairman is granted an additional minute so Professor Feith can finish answering these questions. 

Mr. FEITH. When one looks at this memo, what one sees is people 

were saying in SOUTHCOM that the interrogations under the field 

manual were not working with respect to some particularly important and difficult detainees. And they said, ‘‘We would like to go 

beyond the field manual.’’ 

Our understanding was, at the policy level, that there were legal 

limits—the limits, for example, set by Geneva to the extent they 

were applicable, the limits set by the torture stature. We understood there were important legal limits—— 

Mr. NADLER. I understand the circumstances of which—— 

Mr. FEITH. Mr. Chairman, I would really—— 

Mr. NADLER. We are proceeding under Mr. King’s strict time instructions, so I have to get the question in. 

So your testimony is that the use of these techniques meet the 

humane treatment standards and that—and let me ask you last, if 

common Article 3 of the Geneva Convention applied, would these 

techniques be allowed? 

Mr. KING. Mr. Chairman, point of order. 

Mr. NADLER. I will recognize your point of order when the gentleman has finished his answer to that question. 

Mr. FEITH. Mr. Chairman, I would really like to try to answer 

this in a way that gives the picture that explains how we read this 

memo. 

Mr. NADLER. If Mr. King will not object, we’ll allow additional 

minutes to answer. 

Mr. ISSA. I object, Mr. Chairman. I think the minority—if I may 

speak, the minority fully intends and wants questions to be answered fully. We’re not trying to cut off answers, only follow-up 

questions after a time has expired, if the Chair would observe that. 

We certainly want full answers by the witnesses. 

Mr. CONYERS. I move that the Chairman be given an additional 

minute. 

Mr. NADLER. Without objection. 

Mr. Feith? 

96 

Mr. FEITH. Mr. Chairman, the way we looked at—the way I 

looked at this memo was there were important legal lines that everybody understood cannot be crossed. Whatever was the law of the 

United States—the Geneva Convention is part of the law of the 

United States, the torture statute is part of the law of the United 

States, the torture treaty—whatever the legal limits were, they had 

to be respected. 

The President, furthermore, eventually—well, before this point, 

the President, furthermore, said, all detainees must get humane 

treatment. 

Mr. NADLER. You have not answered the question. The question 

is, if common article 3 of the Geneva Convention applied, would 

these techniques be allowed? 

Mr. FEITH. It depends how they are used. They could be used in 

a way that violated the convention; they could be used in a way 

that’s consistent with the convention. There was guidance given, 

and all of this was under that guidance. 

Mr. NADLER. So they are not per se—— 

Mr. FEITH. The guidance was that everything had to be done—— 

Mr. ISSA. Point of order. 

Mr. FEITH [continuing]. Lawful and humane. 

And one of the things that I would urge you to do, if people 

would actually read the October 11th memo, you will see that it 

shows great care, it shows concern for humane treatment, it shows 

concern for the kind of issues that you raised, Mr. Chairman—— 

Mr. NADLER. In the—— 

Mr. FEITH [continuing]. That if they were used in combination, 

there could be a problem. 

Mr. NADLER. In the second round of questioning, perhaps you 

could show which words in that memo show that. 

My time has expired. I’ll now recognize for 5 minutes the distinguished Ranking minority Member of the Subcommittee, the gentleman from Arizona, Mr. Franks. 

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

Mr. Chairman, let me begin by, in deference to the Chairman of 

the full Committee—he had asked for information related to the 

number of hearings. Let me first say that my comment was focused 

on the notion that if this Government has failed at any time in the 

last 10 years related to terrorism, it’s in failing to being able to 

thwart the tragedy of 9/11. 

Now, I’m not suggesting that—I’m not blaming anyone, but certainly there were mistakes led up to that situation. And if we fail, 

our first purpose is to protect the citizens of the United States of 

America. 

And I had mentioned that there had been approximately 10 hearings here in this Committee that worked to try to protect terrorist 

rights or thwart our ability to defend American citizens against terrorists, whereas I’m not aware of any hearing that we’ve had that 

has tried to specifically protect victims in the United States from 

terrorism. 

And I was asked to—I’ve just got a rough thing—there were 10— 

I mentioned the number 10. There was one hearing on habeas corpus litigation rights for terrorists. There was another one on preVerDate Aug 31 2005 15:53 Mar 26, 2009 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6601 H:\WORK\CONST\071508\43523.000 HJUD1 PsN: 43523
97 

venting access to business records and terrorist investigations. And 

this is the eighth hearing on this issue. That’s 10. 

Now, I’d like unanimous consent to place the official list in the 

record. 

Mr. NADLER. Without objection. 

[The information referred to follows:] 

Mr. FRANKS. And I don’t challenge the Chairman’s motivations 

in the slightest. I believe that the Chairman wants to do the right 

thing. We may perhaps have a different perspective of it. 

But my big concern here is the whole direction of our country 

here. To suggest that the President of the United States is more 

committed to perpetrating torture than trying to protect the American people is a ridiculous notion. And, yet, that has been the ultimate effect of a lot of these hearings. 

Let me also say that I was, of course, at the hearing that Mr. 

Addington appeared, and he did—he couldn’t remember exactly 

when he had been to Guantanamo. He said he had been there several times, Professor Sands. I’ve been to Iraq a couple times; I can’t 

recall exactly which years those were. Now, maybe that explains a 

lot of things. I don’t know, maybe I’m gathering wool. But I don’t 

remember exactly what year sometimes the places I’ve been. 


L.eps
98 

What he did say was he had clear memory that he hadn’t said, 

‘‘Do whatever is necessary.’’ I think that’s reasonable. 

And, unfortunately, here, in a country where we have the right 

to our own opinion, we sometimes suggest that that gives us the 

ability to consider ourselves unconstrained to the facts and the 

truth. And there is a difference. 

But, Mr. Feith, let me calm down here a little bit and just suggest that—I want to give you an opportunity to describe any more 

of the inaccuracies that you feel like you’ve been subjected to here. 

Mr. FEITH. Thank you, Mr. Franks. 

I think that—I’ll give you a quick list of what I think are errors 

and distortions in Mr. Sands’s book. 

He says that this memo from Mr. Haynes was completely silent 

on the use of multiple techniques. And, Mr. Chairman, this is 

something that you just asked about, whether this memo talked 

about multiple techniques. The memo said that if multiple techniques were used, they would have to be used, quote, ‘‘in a carefully coordinated manner.’’ 

Second, Mr. Sands says that I wanted the detainees to receive no 

protection at all under Geneva and that I worked to ensure that 

none of the detainees could rely on Geneva. On the contrary, I argued that Geneva applied to the conflict with the Taliban, and 

what I said is they should not get POW status. That’s very different. 

And what Mr. Sands said actually confirms my point, because 

the quote that he cited applied to al-Qaeda detainees, and there 

was a general view within the Administration that the Geneva 

Conventions did not apply at all to the al-Qaeda detainees. This is 

something that, ultimately, the Supreme Court disagreed with the 

Administration on, but it was not even a controversial issue at the 

beginning where—I mean, I don’t recall any part of the U.S. Government making the argument that our conflict with al-Qaeda was 

governed by the Geneva Conventions. 

Mr. Sands says that if detainees do not get POW or common Article 3 protections, then, quote, ‘‘No one at Guantanamo was entitled to protection under any of the rules reflected in Geneva.’’ 

That’s not true. There are various protections that they might get, 

including ICRC visits, repatriation after the conflict, possibly Article 5 tribunals and other matters. 

Mr. Sands says that I solidly resisted—— 

Mr. NADLER. The gentleman from Iowa has insisted on strict enforcement of the 5-minute rule. I will have to—— 

Mr. CONYERS. Mr. Chairman—— 

Mr. NADLER. I will have to—— 

Mr. CONYERS [continuing]. Be given an additional—— 

Mr. NADLER. I will have to accede to his demand, and will do so 

with apologies to Members of the Subcommittee. 

And I will now ask for unanimous consent to give the gentleman 

from Arizona an additional minute to continue his questioning Professor Feith. 

Without objection, so ordered. 

Mr. FRANKS. Thank you, Mr. Chairman. I would respectfully 

yield back. 

99 

Mr. FEITH. Mr. Sands said that I solidly resisted the idea of returning—— 

Mr. NADLER. I’m sorry. The gentleman yielded back. 

Mr. KING. Mr. Chairman, I would ask unanimous consent to accede to Mr. Watt’s request of unanimous consent to allow the witness to answer the question. 

Mr. NADLER. Without objection, the witness will have additional 

minute. 

Mr. FEITH. I misinterpreted the comment about yielding back. 

Mr. Sands said I solidly resisted the idea of returning any detainees. The fact is I favored returning detainees and, in fact, wrote 

the policy for doing so. 

Mr. Sands says that Secretary Rumsfeld did not reject the Category 3 interrogation techniques in the SOUTHCOM proposal. But 

he did reject them. They were proposed, and he did not authorize 

them. By any common definition of ‘‘reject,’’ they were rejected. 

Mr. Sands says that I hoodwinked General Myers. I spoke to 

General Myers yesterday, and he says that he was, in fact, in 

agreement about Geneva. And the General authorized me to say 

that he believes the Sands book is wrong to say that he was hoodwinked. 

Mr. Sands accuses me of circumventing Geneva. I never did that 

or advocated that. 

And with respect to common Article 3, while I raised the question while it was being debated before the President made his decision in February 2007, later, when the issue came up again, my office was active in raising the question about why common Article 

3 can’t be used, and if it can’t be used as a matter of law, why 

should it not be used as a matter of policy to define humane treatment. 

The Deputy Assistant Secretary of Defense for Detainee Affairs, 

who worked for me, Matt Waxman, was well-known within the Administration as somebody who was championing the idea that common Article 3 could be used. 

And given that the entire case against me in Mr. Sands’s book 

relates to common article Article 3, this is an enormously important, and I do believe it impeaches him as a commentator. 

Mr. NADLER. The gentleman’s time has expired. 

I now recognize for the purpose of questioning for 5 minutes the 

distinguished Chairman of the full Committee, the gentleman from 

Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Professor Feith, you said that there was no argument about the 

fact that al-Qaeda shouldn’t get any protection under the Geneva 

Convention until the United States Supreme Court said otherwise. 

Mr. FEITH. No. What I said, Mr. Conyers, was that, at the time 

this was initially debated in the run-up to the February 2002 NSC 

meeting, where the President made his decision on this subject, I 

don’t recall any agency of the U.S. Government making the 

case—— 

Mr. CONYERS. All right. 

Mr. FEITH [continuing]. That our conflict with al-Qaeda was governed by the Geneva Convention. 

100 

Mr. CONYERS. Thank you. You don’t remember William Taft, general counsel of the State Department, ever arguing or presenting 

a contrary position? 

Mr. FEITH. No. I don’t think he said that the Geneva Conventions apply to the conflict. 

Mr. CONYERS. What about Alberto Mora, general counsel? 

Mr. FEITH. I’m not aware that he made that argument either. 

Mr. CONYERS. What about the Secretary of State, Colin Powell? 

Mr. FEITH. I was in the meeting where this was discussed. And 

I reviewed my notes, and I didn’t see that he made that argument 

either. 

Mr. CONYERS. So, in other words, you never heard any of these 

people or anybody else taking a contrary position? 

Mr. FEITH. What happened was—— 

Mr. CONYERS. Isn’t that right? 

Mr. FEITH [continuing]. The lawyers in the Administration—— 

Mr. CONYERS. Is that right? 

Mr. FEITH. As I said, I do not recall any agency of the U.S. Government making—— 

Mr. CONYERS. Okay. I heard you say that. That’s fine. All right. 

We accept that. 

Now, let me just ask Professor Pearlstein, you mentioned the importance of these hearings, and I have too. Do these hearings protect America more than torture does? Or what kind of thoughts do 

you have on this issue? 

Ms. PEARLSTEIN. Let me explain why I think these hearings are 

important, if that’s an answer to your question. 

It is clear by the facts—and by the facts, I mean the facts as recorded and kept by our own Government—that the United States 

has engaged in torture. Saying that we haven’t has not only proven 

false, it has done, in the judgment of the intelligence and military 

community members I have spoken with, significant harm to both 

our strategic and tactical interests in engaging in counterterrorism. 

What can we do to correct what is now an ongoing security problem, namely, the United States’ reputation as a country that does 

engage in torture? I think that one of the most important things 

we can do is engage in fact-finding that ensures that the full record 

is known. 

As we sit here 7 years later, there are still many OLC memos 

from the Department of Justice and elsewhere that, to my knowledge, have yet to be made public on the public record. As we sit 

here, the reportedly two-volume-thick report by the CIA Inspector 

General on the treatment of detainees held in the secret program 

at sites that remain undisclosed has yet to be made public or, to 

my knowledge, even be fully disclosed to this body. 

Mr. CONYERS. Thank you very much. 

Mr. Feith, as Under Secretary of Defense for Policy, is it not correct that you were responsible for treatment of detainees? 

Mr. FEITH. My office had some responsibility in that area, together with the various other parts of the Defense Department. 

Mr. CONYERS. Well, the Under Secretary of Defense, Stephen 

Cambone, testified before the Senate that the overall policy for 

handling of detainees rests with the Under Secretary of Defense for 

Policy. That was you. 

101 

Mr. FEITH. There were a number of—— 

Mr. CONYERS. Well, who else was it besides yourself? 

Mr. FEITH. I’ll be happy to explain. 

My office had what was called primary staff responsibility, and 

we basically were in charge of pulling matters together for presentation to the Secretary. 

But the Secretary of the Army was the executive agent for administration of the detainee interrogation program. The secretaries 

of the military departments were in charge of ensuring appropriate 

training and the prompt reporting of suspected or alleged violations. The combatant commanders were in charge of—— 

Mr. CONYERS. I see. It was really spread out all over the place, 

wasn’t it? 

Mr. FEITH. There were various responsibilities. 

Mr. CONYERS. Yes, great. Okay. 

I ask for an additional minute, Mr. Chairman. 

Mr. NADLER. Without objection. 

Mr. CONYERS. Could I elicit a response from Professor Sands on 

this and anything else you’ve heard here this morning. 

Mr. SANDS. I would offer just a single response in relation to the 

question of the compatibility of the techniques that were authorized on the 2nd of December, 2002, with the standard reflected in 

Geneva Convention common Article 3. 

I think I heard Mr. Feith this morning say—please correct me 

if I got it wrong—that you always believed Geneva Convention, in 

particular common Article 3, applied to the detainees in Gitmo. 

And that would certainly be a fine statement—or at least at the 

standard reflected in common Article 3. 

Mr. FEITH. No, I didn’t quite say that. What I said was, when 

this was initially debated before the February 2002 NSC meeting, 

I raised the question—I had not come to a conclusion on the subject. I considered it a difficult subject. But based on work that I 

had done on the Geneva Convention in the Reagan administration, 

I knew enough to know that there was an argument that common 

Article 3 might be useful or even legally applicable here, and I 

raised that question. 

So, in other words, I was open to the idea—— 

Mr. NADLER. Without objection, the gentleman will have an additional minute so that this colloquy between Mr. Sands and Professor Feith will be completed. 

Mr. FEITH. Okay. 

And then some years later, when the common Article 3 issue revived within the Administration, my office went further, because, 

when I had raised that question—this was a matter that was largely handled in legal channels, rather than policy channels. So when 

I raised the question to the lawyers that were handling it, they 

came back and said, ‘‘No, the common Article 3, by its language, 

doesn’t apply. It only applies to non-international conflicts.’’ 

Mr. CONYERS. Okay. 

Mr. FEITH. Later, when the issue came up, my office went beyond 

that. It said, ‘‘Even if it doesn’t apply as matter of law, might we 

not use it as a matter of policy?’’ And, again, the lawyers who were 

running the process said no. 

Mr. CONYERS. All right. Okay, thank you. 

102 

Mr. SANDS. I would simply note that those are fine words, indeed, and they were not shared with me on the occasion. 

Let me make my point very, very simple. None of the techniques 

listed in the memo for approval and the three category 3 techniques not approved are compatible with the standard reflected in 

common Article 3 of Geneva. 

And you can test that in the simplest possible way: If any of the 

techniques were used on an American serviceman or servicewoman 

or an American national in any circumstances, this country, quite 

rightly, would say, ‘‘These standards are not being met. They are 

being violated.’’ 

I challenge Mr. Feith to identify a single military lawyer in the 

United States who would say these techniques all are compatible 

with common Article 3. 

Mr. CONYERS. Mr. Chairman, I ask for another minute. 

Mr. NADLER. Without objection. 

Mr. FEITH. If I heard you correctly, I’m amazed at that statement. Because the techniques that Mr. Sands just said are, on 

their face, incompatible, are—number one, yelling at the detainee, 

not directly in his ear or to the level that would cause physical pain 

or hearing problems. Another one, techniques of deception, in other 

words, telling the detainee, ‘‘Your buddy over there blew the whistle on you,’’ and it’s not true. That’s one of the techniques that 

went beyond the field manual that they were asking for permission 

for. Multiple interrogator techniques, which we understood was 

good cop/bad cop. This goes on in American jails every day. 

I mean, the suggestion—— 

Mr. CONYERS. And they may be illegal, too. 

Mr. FEITH. Well, the good-cop/bad-cop interrogation technique 

is—anyway, I find—— 

Mr. CONYERS. Well, I didn’t mean that, but there are illegal techniques going on in American prisons and police stations that are 

clearly illegal as well. 

Mr. FEITH. You’re quite right. Mr. Conyers, you’re making an 

enormously important point that I would like to sharpen. And that 

is, what we just read in the newspaper the other day, that there 

was a terrible case, I believe it was in Maryland, where somebody 

in a jail was murdered—— 

Mr. CONYERS. Mr. Chairman, I will require another minute. 

Mr. ISSA. If you don’t mind, I’m next. I’d be happy to let him finish on my time, so we could move on. 

Mr. CONYERS. I would like another minute. I want you to move 

on. 

Mr. NADLER. The Chairman of the full Committee requests an 

additional minute. If I don’t hear objection, I will grant it. 

Without objection. 

Mr. CONYERS. Thank you. 

Mr. FEITH. There was this case that we read about just the other 

day, that someone was murdered in a jail in Maryland. I want to 

make it clear that the essence of the argument that we are hearing 

this morning when people are saying things like, ‘‘The United 

States had engaged in torture,’’ I believe that statement is no more 

well-grounded and no more responsible than saying Maryland has 

103 

engaged in torture or murder because somebody in a Maryland jail 

got murdered. 

Mr. CONYERS. All right. 

Mr. FEITH. The fact is we had a clear policy from the top of this 

Government that was against torture, against illegality, against inhumane treatment. I don’t deny that there were terrible, reprehensible cases of abuse and bad behavior and possibly even torture in 

various places against detainees. None of them was sanctioned by 

law or policy. 

Mr. CONYERS. Have you ever been considered an uncontrollable 

witness? 

Mr. FEITH. Well, I’ve been on the receiving end of a lot of allegations that are easy to—— 

Mr. NADLER. The gentleman’s time has expired, and the witness 

need not answer the rhetorical-Question. 

Mr. CONYERS. Why not? 

Mr. NADLER. The gentleman from California is recognized for 5 

minutes. 

Mr. ISSA. Thank you, Mr. Chairman. 

Professor Feith, good to see you again. I’ll try to be short in my 

questions, short in the answers, and we’ll get through a couple of 

things that I think I would like to have on the record. 

First of all, have you ever been to Guantanamo? 

Mr. FEITH. Once. 

Mr. ISSA. Second of all, have you ever been to a briefing up in 

the House Select Intelligence hearing room? 

Mr. FEITH. Yes. 

Mr. ISSA. In those meetings, was now-Speaker Pelosi or Ranking 

Member Jane Harman present? 

Mr. FEITH. Ms. Harman was present. 

Mr. ISSA. And were techniques, enhanced techniques or treatment of detainees ever discussed at those meetings? Nothing more 

specific than that. 

Mr. FEITH. I believe so. 

Mr. ISSA. So your testimony here today is that Jane Harman, 

now a Chairwoman, in fact was aware of at least some of techniques that are today being characterized as torture. 

Mr. FEITH. I believe so. 

Mr. ISSA. Are you familiar with what the Iraqi Government authorized and allowed to be done to some of our prisoners of war and 

other detainees, civilian and military, in the first Gulf war? 

Mr. FEITH. Not in any detail. 

Mr. ISSA. Are you familiar to what has been done to some people 

caught by al-Qaeda? 

Mr. FEITH. Well, we have seen videos of beheadings and the like. 

Mr. ISSA. So it is very clear that we have documented proof of 

what is undeniably torture and murder by our enemies. Is that correct? 

Mr. FEITH. Yes. 

Mr. ISSA. And if I understood you correctly earlier, you have a 

series of memos—they are in the record—that make it clear that 

you were neither authorizing torture nor inhumane treatment nor 

murder or any other crimes in anything other than these enhanced 

techniques which are on the record, were briefed to the Speaker, 

104 

certainly briefed to then-Ranking Member Jane Harman, that are 

the subject of essentially these hearings today. Is that correct? 

Mr. FEITH. Yes. And the techniques were not an exception to the 

rule against torture or complying with the law. Those techniques 

were supposed to be done within the law and within the President’s 

decision that all detainees were to be treated humanely. 

Mr. ISSA. Now—— 

Mr. FEITH. So there was no excuse whatsoever for inhumane 

treatment. And if anybody abused these techniques, they were 

doing so in the violation of the policies set down by the President. 

And one of the key policies was complying with the law. 

Mr. ISSA. And speaking of the law, I want to circle one more time 

back to the same point, because it is important to me today because of what is being characterized as torture. 

The law requires any Administration—this one, the Clinton administration the Reagan administration—you are required to brief 

certain select Members of Congress, either the intelligence Committees, both sides, or, if it is extremely sensitive, then a select group, 

which includes the Speaker and the Chair and Ranking Member of 

those Committees. Is that correct? 

Mr. FEITH. I assume that’s correct. I’m not an expert on that 

area of law, but it sounds right. 

Mr. ISSA. So you’re aware that these briefings occurred? 

Mr. FEITH. Yes. 

Mr. ISSA. Either of the other two professors aware of any claims 

that the briefings did not occur? In other words, do either of you 

have knowledge here today that Speaker Pelosi or then-Ranking 

Member Harman were not properly briefed, as required by law? It’s 

a yes or no. 

Ms. PEARLSTEIN. I simply have no knowledge of those facts one 

way or another. 

Mr. ISSA. Okay. 

Mr. SANDS. I have never heard it said that, in relation to the interrogation of Detainee 063, that issue ever came to Congress. My 

understanding is that that issue did not come before Congress, but 

I don’t have hard information on that. 

Mr. ISSA. Okay. I will just make, not in his testimony, but to go 

on the record, when I went to the Intelligence Committee, Select 

Intelligence Committee, within a matter of weeks I was both 

briefed on these techniques in excruciating detail, and that they 

were limited to certain areas, and briefed on the fact that this had 

been briefed and rebriefed to the Committee on a regular basis. 

So, here today, my question for Professor Feith is, do you know 

of any interrogations or any of these techniques that were ever 

used that, to your knowledge, failed to be briefed to the Congress, 

including the appropriate—at least the Speaker and Ranking Members? 

Mr. FEITH. I have no particular knowledge on that, but—— 

Mr. ISSA. Were you ever in any meeting where somebody said, 

‘‘Oh, we can’t tell that to the Congress, we can’t tell that to the 

Speaker’’? 

Mr. FEITH. I don’t recollect anything of that kind. The general 

rule was that intelligence operations were briefed to a small group 

of the most senior—— 

105 

Mr. NADLER. The gentleman’s time has expired. 

Mr. ISSA. I thank the Chairman. Regular order is fine. I yield 

back. 

Mr. NADLER. I will now recognize the gentleman from Alabama 

for 5 minutes. 

Mr. DAVIS. Thank you, Mr. Chairman. 

Professor Pearlstein, let me pick up on the last line of questions 

from Mr. Issa. Mr. Issa had a clever set of questions, I thought, 

that implied that the Speaker of the House and former Ranking 

Member of the Intelligence Committee may have had some knowledge about these knowledge of these techniques. 

Of course, he does not point out one very important detail. As he 

knows very well from his time on the Intelligence Committee, 

Members of Congress cannot share with their colleagues that 

which they learn on the Intelligence Committee. If they were to do 

so, they would be violating Federal criminal statutes, which most 

Members of Congress try to avoid doing. 

Mr. ISSA. Will the gentleman yield for a moment? 

Mr. DAVIS. No, I will not. I would like to ask my questions. 

And that’s an important point, I think, to make. The issue is not 

whether certain selected members of the leadership were given a 

confidential briefing that they couldn’t share with their colleagues. 

The issue is whether the making of interrogation policy, the formulation of detainee policy was shared between the executive and legislative branch. I think it is in dispute that that did not happen. 

Professor Sands, you would agree with me, and you just said, I 

believe, that at no point did the Bush administration come to Congress and ask Congress to shape its position on whether Article 3 

applied, whether Geneva applied, whether or not the torture statutes applied, what the torture statutes meant, when Geneva 

meant. 

None of that was brought before Congress in a formal debate, 

was it, Professor Sands? 

Mr. SANDS. If it was, I’ve not come across it. 

Mr. DAVIS. Professor Pearlstein, do you have any knowledge of 

Congress debating any of these subjects, or the Administration 

coming to Congress and asking for its input? 

Ms. PEARLSTEIN. Not until Congress insisted upon it in 2005 

with the passage of the Detainee Treatment Act. 

Mr. DAVIS. An important point, Professor Feith, I understand 

there are some things you profess to be expert on; depending on the 

question, many things you profess to not be expert on. 

But there is this interest—may I see the Constitution, Mr. Chairman? It is right in front of you there. Let me borrow it for 1 second. 

It is an interesting document. It has all kinds of good stuff in it 

that is incredibly relevant to a lot of disputes that we have. 

There is a provision that talks about the war-making authority. 

And it says, if I recall it correctly, that Congress shall declare war, 

that Congress shall raise and support armies, that Congress shall 

provide for the common defense. It’s pretty broad stuff. 

Professor Feith, tell me why the United States Congress should 

not have had a role in 2002, at the time these decisions were made, 

in shaping detainee policy? 

106 

Mr. FEITH. I believe Congress did have a role. I mean, Congress 

should address any issues that it believes is important. And Congress can have hearings—— 

Mr. DAVIS. How can issues be addressed, Professor Feith, if Congress—— 

Mr. FEITH [continuing]. And Congress can have debates and Congress can propose legislation 

Mr. DAVIS. Sir, we can’t talk at the same time. 

How can Congress have a role if the policy debate is confidential, 

the Intelligence Committee Members can’t share it with their colleagues? 

I don’t want to waste 5 minutes going back and forth playing 

word games with you, because I think you get the point. For Congress to be involved and to have a role, there has to be transparency. 

And certainly the Administration could have come to the United 

States Congress and could have said, ‘‘We have a disagreement 

over whether or not Article 3 should apply, whether Geneva should 

apply. Let’s have a debate about it.’’ That could have been done in 

a wide variety of—— 

Mr. FEITH. But—— 

Mr. DAVIS. Let me finish my question, sir. 

You cite in your opening statement editorials written in 1987 

complimenting the Reagan administration for what I think was the 

correct position that it took regarding Protocol 1 of Geneva. That 

makes a point that I think you may have missed, sir. 

For The New York Times and The Washington Post to even be 

writing about this subject means that there was a debate and a 

discussion that aired in public view. If there had been a debate and 

discussion that aired in public view about what all of these provisions meant, it would have put in much more transparency. 

And I’m a little bit intrigued, also, by your arguments that, 

‘‘Well, I wasn’t involved in formulating the detainee policy. I made 

some general arguments about Geneva.’’ 

I’ll close with an old story about Franklin Roosevelt. Mr. Roosevelt was campaigning for re-election in 1936 and got carried 

away in Philadelphia and made some rather extravagant campaign 

promises, and they got caught on tape. So he went back to his 

chairman, and Mr. Farley said to him, ‘‘Well, just deny you said it.’’ 

And he said, ‘‘Well, I can’t do that. It is on tape.’’ He said, ‘‘Well, 

then just deny you were ever in Philadelphia.’’ 

That’s what I think of, Mr. Feith, when I hear you today. 

Mr. FEITH. Well, I think that’s very unfair, because—— 

Mr. NADLER. The time of the gentleman is expired. 

Mr. CONYERS. I ask unanimous consent that the gentleman be 

given additional minute. 

Mr. NADLER. Without objection. 

Mr. FEITH. I mean, on your point about things being done in secret, the President’s decision on February 7th, 2002, on the applicability of the Geneva Conventions and his point about common Article 3 and various other aspects of this were done in a public statement. There was nothing secret about it. The White House issued 

a statement to the world. Every Member of Congress could have 

seen that. If there was any concern, if there was any thought that 

107 

he had done anything wrong, there would have been nothing whatsoever to stop any Member of Congress from asking a question, and 

you would have had an answer. And if you wanted to engage in 

that and say that the President made the wrong policy, nobody 

would stop—— 

Mr. DAVIS. Is that correct, Professor Sands, that in 2002 the Administration announced its position that its interpretation that Geneva would not apply to detainees? Was that on the record in 2002? 

Mr. SANDS. I think the actual decision only came out much later. 

There were news reports that a decision had been taken, but what 

had not come out what was going on in July, August, September, 

October, November, and the decision to move, for the first time in 

American history since 1863, to abandon President Lincoln’s prohibition on cruelty. That happened on Mr. Feith’s watch. Torture occurred, and Mr. Feith is—— 

Mr. DAVIS. An additional 30 seconds, Mr. Chairman, just to respond. 

Mr. NADLER. Without objection. 

Mr. DAVIS. Professor Feith, this is the point that I think you 

miss. The issue wasn’t whether a piece of paper applied or whether 

a set of words were ritualistically invoked. The issue was what 

those words meant in application and in practice. That debate was 

an impossible one to have, because it wasn’t shared with the Congress at the time decisions were made. Only after 3 years of extensive newspaper reporting was the extent of the program crystalclear. 

Mr. FEITH. Mr. Davis, that’s just not correct. The Administration 

announced publicly the President’s decision when he made it. 

There are talking points that the White House issued. It was published on the White House and State Department Web sites. It is 

just not correct. And if Congress, any Member of Congress wanted 

to talk about it and debate it, they could have done so. And any 

inquiries that you would’ve made would’ve been answered. 

Mr. DAVIS. Professor, the issue was not the ritualistic invocation 

of the words. The issue was what they meant in practice, how it 

was informed, what ‘‘inhumane treatment’’ meant. To adopt a 

paper standard without inviting Congress to codify it statutorily 

was an important omission, in my opinion. 

Mr. NADLER. The gentleman’s time has expired. 

Mr. King of Iowa is recognized for 5 minutes—I’m sorry. I am 

sorry. Mr. Pence of Indiana is recognized for 5 minutes. 

Mr. PENCE. Thank you, Mr. Chairman. There is no need to apologize when you confuse me with Mr. King. 

Mr. NADLER. Excuse me. I would never confuse you with Mr. 

King. I simply didn’t see you. 

Mr. PENCE. I thank the Chairman for this hearing, and thank all 

the witnesses for their testimony. 

Mr. Feith, I haven’t always found myself in agreement with your 

interpretation of events in recent years, but I am grateful for your 

service to the country, particularly in the matter about which this 

hearing has been convened. 

I want to get a little bit more into your testimony as someone 

that was centrally involved in this. Because I have to be honest 

with you, I went to law school, I graduated, I got the degree on the 

108 

wall, but I try to get over it. I try to not think like a lawyer. I try 

to think like an American in this job. And I try and find myself 

thinking in very plain terms. I think, you know, very few people 

back in my hometown worry too much about common Article 3 and 

Geneva. 

I want you to explain, if you can, before this hearing what was 

the significance of your conclusion that Geneva should cover the 

conflict with the Taliban, but because Taliban fighters didn’t wear 

uniforms, didn’t carry guns openly or operate within a chain of 

command or obey laws of war, that they didn’t qualify for POW 

privileges. 

Now, a lot of this comes across as really interesting law school 

debate, but we are talking about American lives. We are talking 

about people who got up every day to figure out new ways to kill 

Americans in uniform and in the streets of this country. This is not 

a theoretical debate. 

And I want to acknowledge to you that the decisions that you 

made, and more importantly the President made, were made with 

an eye toward the safety and security of this country. And to my 

way of thinking, we put real limitations on our ability to obtain information to save American lives if we attached the letters ‘‘POW’’ 

to the people that were in our custody. 

Can you explain that, in as brief a time as possible? Because I 

have a very important follow-up. Why would it have been a bridge 

too far to say that these detainees at Guantanamo or elsewhere 

were POWs under the Geneva Convention? 

Mr. FEITH. Mr. Pence, we had a number of large interests that 

we had to pursue simultaneously, and there was tension among 

those interests. One of them was we had an interest, obviously, in 

preserving the rule of law in America and making sure that laws 

were obeyed and that we, as a country, behaved humanly. And the 

President laid that down as a major interest. 

At the same time, we had just been attacked on 9/11, and it was 

clear that in this challenge the most important information that we 

needed in order to prosecute the war was in the heads of individuals. And if we captured terrorists, we had to interrogate them effectively. 

There was tension between effective interrogation and complying 

with the law. We had to make sure that people understood that 

they needed to be vigorous in pursuing that information but they 

needed to be vigorous within the law. And it was clear that people 

could be vigorous beyond the law, and that was not permitted. 

Mr. PENCE. Well, let me interject, if I can, Mr. Feith. To get to 

this issue of POW, had it been the conclusion of the Administration 

to denominate these detainees as POWs, as some in Congress 

would prefer that they did? Could we have exerted any pressure to 

obtain any information beyond name, rank and serial number? 

Mr. FEITH. No, one other problems that—I mean, had the detainees been entitled to POW status under the law, they would’ve gotten it. But, as I said—and this gets to the important point that 

you’re raising—the question was, should we give POW status to 

people who are not entitled to it? 

And one the major arguments against it is, if you had given 

POW status to people who are not entitled to it under Geneva, you 

109 

would effectively be precluding interrogations of them, because 

POWs are not held for purposes of interrogation. POWs had held 

simply to keep them out of combat. The people we were holding on 

the war on terrorism were being held for two main reasons: to keep 

them out of combat and to interrogate them. 

Mr. NADLER. The gentleman’s time—— 

Mr. FRANKS. I ask the gentleman be given additional time. 

Mr. NADLER. How much time? 

Mr. PENCE. Could I have another 3 minutes? I, kind of, kept 

count on the last one. It went about 3 over. 

Mr. NADLER. Why don’t we do 2 minutes and we’ll see how it 

goes? 

Mr. PENCE. Thank you, Mr. Chairman. 

Mr. NADLER. Without objection, the gentleman will be awarded 

an extra 2 minutes. 

Mr. PENCE. To get to the point here, though, Mr. Feith, had they 

been entitled to POW status under Geneva under the law, they 

would have been required to. But to have extended the status of 

POW would’ve taken the United States America out of the interrogation business—— 

Mr. FEITH. Correct. 

Mr. PENCE [continuing]. With regard to the people who had all 

the information about past and future attacks against this country. 

Mr. FEITH. That’s correct. 

Mr. PENCE. Let me say clearly, I want to associate with comments of the Ranking Member, that torture is illegal, torture is 

banned by various provisions of the law. I support that. I associate 

myself strongly with your statement that it is imperative that the 

United States America be about the rule of law. 

But it’s also imperative that anyone looking into this hearing understand that to have gone as far as many would have you have 

gone that day and had the President gone to extend POW status 

to detainees in Guantanamo Bay would have meant that Khalid 

Sheikh Mohammed could not have been interrogated beyond his 

name, rank and serial number. 

Is that correct? 

Mr. FEITH. I believe so. 

Mr. PENCE. And so, I just want people to understand this. And 

as I have mused at previous numerous hearings on this topic and 

will muse again this week at another, it is seems to me that, when 

you look at the terrorist handbooks that have been uncovered and 

found, they train—isn’t it your understanding, Mr. Feith—to endure pressure, to endure interrogation, and also to claim that they 

were tortured, regardless of the circumstances of their incarceration. 

And it seems to me that it is imperative, as Mr. King said before, 

that we remember that we are talking about protecting the American people and doing so in a way that reflects favorably on the 

United States, that shows our devotion to the rule of law, our veneration for the Geneva Conventions, but also recognizing that to 

have extended the status that many would us have extended would 

have constrained us from any interrogation beyond rank and serial 

number. 

Mr. FEITH. That’s correct. 

110 

Mr. NADLER. Gentleman’s time has expired. 

Mr. KING. Mr. Chairman, point of order. 

Mr. NADLER. The gentleman will state his point of order. 

Mr. KING. Mr. Chairman, in your opening remarks you made the 

statement that signs and demonstrations would be disallowed in 

this room. I know it is out of the sight of the Chairman, but there 

is a sign—— 

Mr. NADLER. I’m sorry. Say that again. You spoke too fast. You 

know what? 

Mr. KING. Okay. In your opening statement—— 

Mr. NADLER. No, no, I heard that. You then said, I know 

that—— 

Mr. KING. It is out of the vision of Chairman, so I wouldn’t hold 

you responsible to be able to see it. They have just pulled the sign 

down that was posted on the back of a chair, and it has been there 

for some time. 

Mr. NADLER. The back of the chair? 

Mr. KING. On the front chair of the chair, where one sits with 

their back leaning against it. I would ask that that sign be removed from this room. 

Mr. NADLER. I don’t see any sign. 

Mr. KING. They have just taken it down. It’s on the chair directly 

across from me. The gentleman’s picking it up, in the red tie. I’d 

ask that it be removed. 

Mr. NADLER. All right. He is leaving, so I won’t have to rule on 

that. 

I will remind everyone no demonstrations, no visible signs. I’d 

have to repeat that again. 

Mr. CONYERS. Mr. Chairman, could we give an additional minute 

so that Mr. Pence’s question can be responded to? 

Mr. NADLER. Without objection, if anybody remembers what the 

question was. 

Ms. PEARLSTEIN. Thank you. I’m happy to respond. 

Let me just, in particular, clarify one point about the significance 

of the designation of the detainees as POW under the law, which 

I think does matter. 

The critical distinction under the Geneva regime—there are four 

conventions; two are relevant here: the convention on POWs and 

convention on civilians, essentially anybody else who is not a POW 

caught up in armed conflict. 

The critical significance between declaring somebody a POW and 

declaring them any other detainee in U.S. custody is that a POW 

cannot be prosecuted for engaging in lawful acts of war. Our soldiers can’t be criminally tried for engaging in lawful combat. 

It is not a distinction between the treatment of POWs and the 

treatment of anybody else that common Article 3 and a host of 

basic protections for the humane treatment of detainees apply. 

They apply to POWs. They apply equally to everybody else. 

There is nothing under law, in my judgment, to be gained, even 

if one believes that coercive interrogation is useful—and I believe 

it is not—there is nothing to be gained under law by denying those 

POW protections. The same standards of treatment apply. 

Mr. PENCE. Well, if I could ask Professor Pearlstein—— 

111 

Mr. NADLER. Without objection, the gentleman will have 1 additional minute. 

Mr. PENCE. I thank the Chairman for his extraordinary courtesy, 

and the Chairman of the full Committee. 

Am I right to understand, as Mr. Feith has testified, that the 

status of POW would essentially eliminate any interrogation, any 

pressure whatsoever, beyond the obtaining of name, rank, serial 

number, as the cliche is known? 

Ms. PEARLSTEIN. There is no prohibition under the third Geneva 

convention for the protection of prisoners of war, against asking 

prisoners of war questions. You can no more coerce a prisoner of 

war into answers those questions than you can coerce—— 

Mr. PENCE. But it would be—excuse me for interrupting—it 

would be constrained from being placed under any kind of pressure 

whatsoever, they could be asked questions, but they could not be 

put any kind of pressure as a POW. 

Ms. PEARLSTEIN. Nor can they be subject to cruel, inhumane, degrading—— 

Mr. PENCE. Are you effectively, then, eliminating all interrogation of prisoners who have information about the next terrorist attack on this country? 

Ms. PEARLSTEIN. Not necessarily at all. As most of the—in fact, 

all of the FBI investigators with whom I spoke and the vast majority of military investigators with whom I spoke described, many detainees are interested in speaking and have information to share. 

It is not the case that the limit of human intelligence collection 

is either you torture them and treat them cruelly and get information or you get no information at all. That’s not the difference. 

Mr. NADLER. The time—— 

Mr. PENCE. Excuse me. 

Mr. NADLER [continuing]. Of the gentleman has expired. 

Mr. PENCE. I appreciate it. 

Mr. NADLER. The Chair now recognizes for 5 minutes the 

gentlelady from Florida, Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. 

Professor Pearlstein, it seems pretty simple, from what you’re 

saying, as inconvenient as the minority might find treating detainees humanely and not torturing them, doesn’t it just boil down to 

that you can question a POW, you can question a detainee, you just 

can’t torture them and treat them inhumanely? Is this what you’re 

saying? 

Ms. PEARLSTEIN. That’s the simple answer. I think the designation of POW in that question is a significant distraction from the 

question of how can any detainee in U.S. custody in the course of 

armed conflict be treated. The answer to that question is provided 

in common Article 3, in our own laws and constitutions, in the convention against torture, and the Army’s own field manual. 

Ms. WASSERMAN SCHULTZ. Is it not possible to get information 

from a detainee without torturing them? 

Ms. PEARLSTEIN. The experts that I have spoken to—and I don’t 

portend to be one myself—assure me that the only thing torture 

guarantees you is pain—that, according to Joe Navarro, a long-time 

FBI interrogator—and that, on the contrary, the most effective 

112 

techniques tend to, in fact, invariably involve no torture or cruel 

treatment. 

Ms. WASSERMAN SCHULTZ. Thank you. 

Professor Feith, I want to, sort of, get to the kernel of the information that we need here, and that’s the role that you played or 

did not play in making the recommendations and developing the 

Administration’s policy on interrogation. 

There was a recent report of the Department of Justice Inspector 

General Glenn Fine that described the role of the NSC’s principles 

committee and policy coordinating committee in formulating the interrogation policy for the Administration. 

What was the role of the NSC in developing and implementing 

interrogation policy? And did you participate in any of those discussions? And who else participated as you did? 

Mr. FEITH. The first time that I believe that the principles committee or the National Security Council got involved in this matter, 

at least the first time that I know of, that I can recollect, is the 

February 2002 meeting that we’ve been discussing. When it came 

to—— 

Ms. WASSERMAN SCHULTZ. Did you participate in any—— 

Mr. FEITH. I was at that meeting. 

Ms. WASSERMAN SCHULTZ. Who else participated? 

Mr. FEITH. It was the whole National Security Council. 

Ms. WASSERMAN SCHULTZ. Who? 

Mr. FEITH. The President chairs it, Secretary of State Powell, 

Secretary of Defense Rumsfeld, General Myers as the Chairman of 

the Joint Chiefs. 

Ms. WASSERMAN SCHULTZ. Were any of the legal opinions of the 

Department of Justice on interrogation discussed at any of those 

meetings? 

Mr. FEITH. I believe so. 

Ms. WASSERMAN SCHULTZ. Did you raise any concerns about the 

legality or consequences of the Administration’s interrogation policy at any of those meetings? You represent in your testimony you 

strongly advocated—— 

Mr. FEITH. I don’t believe that interrogation techniques as such 

were discussed there. 

Ms. WASSERMAN SCHULTZ. Interrogation policy. If interrogation 

policy was discussed, what would have been discussed, if not interrogation techniques? 

Mr. FEITH. Well, I don’t recall precisely, but it would not surprise 

me if what was discussed at that time related to the kinds of questions that Mr. Pence was asking, which was if these people are 

POWs, does that mean you can interrogate them. 

Ms. WASSERMAN SCHULTZ. I am asking you a specific question. 

Did you, at any of these meetings, raise concern about the direction 

that the Administration’s interrogation policy was going, whether 

it was on techniques, whether or not they were going in the right 

direction, whether or not they were going too far. You do represent 

in your testimony that you were a strong Geneva Convention advocate. 

Mr. FEITH. Correct. Those concerns were certainly raised. 

Ms. WASSERMAN SCHULTZ. Are you? 

113 

Mr. FEITH. We were quite emphatic that it is important that we 

comply with the Geneva Convention; be seen to comply. That we 

not make arguments that would bring disrespect to the Geneva 

Convention. 

Ms. WASSERMAN SCHULTZ. So was your advice ignored? 

Mr. FEITH. No, on the contrary. The President rejected the advice 

that he got from some of the lawyers in the Administration not to 

apply the Geneva Convention to the conflict with the Taliban. 

Ms. WASSERMAN SCHULTZ. The President rejected that? 

Mr. FEITH. The President rejected that. What the President decided on that point was in line with what General Myers and I and 

Secretary Rumsfeld had advocated in the meeting, which is that we 

should not refuse to apply the Geneva Convention to the conflict 

with the Taliban because we argued that Afghanistan was a party 

to the Convention. The Convention is part of U.S. Law. 

Ms. WASSERMAN SCHULTZ. Secretary Rumsfeld rescinded his November 2002 approval of additional interrogation techniques on 

January 15, 2003, and he convened a working group. What role did 

you play in that working group? 

Mr. FEITH. I don’t believe that I ever attended any of those working group meetings. I am fairly confident I didn’t attend any of 

them. 

Ms. WASSERMAN SCHULTZ. What role did the Office of Legal 

Counsel advice or memos play in the deliberations of that group? 

Mr. FEITH. I wasn’t in on the meetings 

Ms. WASSERMAN SCHULTZ. So you don’t know anything about 

that group itself? 

Mr. NADLER. The time of the gentlelady has expired. Without objection, she will have one additional minute if she wants it. 

Ms. WASSERMAN SCHULTZ. Thank you very much. 

I just want to ask you one additional-Question. Newsweek Magazine has reported that your office sent an urgent e-mail directing 

the Defense Department staff not to read or discuss the report on 

Abu Ghraib abuses by Major General Tagubu. Why did your office 

do that? 

Mr. FEITH. I am glad you raise that because that doesn’t ring any 

bells at all. I don’t know about that memo. Maybe there was a 

memo sent by somebody in my office. I was very surprised when 

I saw that in the testimony. 

Ms. WASSERMAN SCHULTZ. The Newsweek report is inaccurate. It 

shortly after the Tagubu report leaked in early May, your subordinates sent an urgent e-mail around the Pentagon warning officials 

not to read the report. 

Mr. FEITH. I am not aware of that 

Ms. WASSERMAN SCHULTZ. You have never seen any e-mail like 

that? 

Mr. FEITH. I don’t remember seeing any e-mail like that. 

Ms. WASSERMAN SCHULTZ. You don’t remember. 

Mr. FEITH. I was completely surprised. 

Mr. NADLER. Will the gentlelady yield? 

Mr. FEITH. Sometimes press reports are wrong. 

Mr. NADLER. When you saw Newsweek or others report that your 

subordinates sent such a memo, you didn’t check into it? 

114 

Mr. FEITH. To tell you the truth, I don’t remember even hearing 

about it until I read Professor Pearlstein’s testimony. 

Ms. WASSERMAN SCHULTZ. I am finished 

Mr. NADLER. The gentlelady’s time has expired. I now recognize 

the gentleman from Iowa, Mr. King, for 5 minutes. 

Mr. KING. Mr. Chairman, with consent, I would be happy to yield 

to another Democrat witness and temporarily pass my turn. 

Mr. NADLER. Are you yielding your time? 

Mr. KING. Just temporarily passing my turn. 

Mr. NADLER. Either you yield your time or you will ask your 

questions now. 

Mr. KING. Mr. Chairman, I would be happy to take advantage of 

this 5 minutes that you so graciously allowed me, and I will start 

this out this way: 

Mr. Sands, I am looking through your written testimony. I am 

not able to find this. But this is what I think I heard you say and 

I would ask you if you can clarify or agree. 

Speaking of Mr. Feith, when you said, and I believe this is what 

I heard, al-Qaeda are not entitled to Geneva Convention protection 

at all, would that be the exact quote that I heard from you and is 

that in your written testimony and I missed? 

Mr. SANDS. I will happily give you the exact quote again. It is 

from an abstract, which I will give if the Committee wishes it, the 

point is that, ‘‘the al-Qaeda people were not entitled to have a convention applied at all, period.’’ I interpreted that to include the 

rules reflected in Common Article 3. The reason it was of interest 

to me was that my book was about an al-Qaeda individual. 

Mr. KING. At least, in essence, I have characterized this relatively accurately, and I think Mr. Feith agrees with that by 

watching his head nod. 

I take you back to a statement that you made in response to Mr. 

Yoo’s testimony in the previous hearing. By the way, we are still 

looking for that letter that was copied to us. I have no doubt it was 

sent, but there is a copy in my testimony. 

In any case, you say that Mr. Yoo is incorrect, and when he characterizes you as having interviewed him for the book. And here’s 

the quote that says, ‘‘Over hundreds of hours I conversed or debated with many of those most deeply involved in that memo’s life. 

They included, for example, the Deputy Assistant Attorney General 

at DOJ, Mr. Yoo.’’ Accurate statement from your testimony. 

So, Mr. Sands, I would ask can you understand how it would be 

that Mr. Yoo might have misunderstood, having missed that nuance ‘‘I conversed or debated’’ in that phrase? 

Mr. SANDS. I think there is a great difference between the word 

‘‘interviewed’’ on the one hand and the words ‘‘conversed or debated’’ on the other hand. 

Mr. KING. Would you concede, perhaps, if he is debating you, he 

didn’t think about whether or not he was being interviewed for a 

book and that statement ‘‘conversed or debated?’’ To me, that is a 

nuance. 

Mr. SANDS. I am happy to read you what he said. 

Mr. KING. I am going to run out of time and I don’t expect the 

Chairman is going to grant me an additional minute so I’m going 

to have to trudge onward here. 

115 

*The tapes submitted by Mr. Conyers have been made a permanent part of this hearing 

record and are available at the Committee. 

I would point out that I think perhaps Professor Feith has chosen his words as carefully as you, Mr. Sands. I would turn to Mr. 

Feith and ask him if he can clarify the statement that the al-Qaeda 

are not entitled to Geneva Convention protection at all. 

Mr. FEITH. The decision that the President made on February 7, 

2002, was that the Geneva Conventions don’t apply to our conflict 

with al-Qaeda. The lawyers in the government made a distinction 

between the conflict that we had worldwide with al-Qaeda and the 

conflict we had with the Taliban in Afghanistan. And what the 

President said is the Geneva Conventions do not apply to our conflict worldwide with al-Qaeda, because al-Qaeda is not a party to 

the Geneva Conventions. It does apply to our conflict with the 

Taliban. 

Now I understand that there is a controversy over whether Common Article 3 should apply even to groups like al-Qaeda. What I 

am saying is at the time, I don’t recall that anybody in the Administration made that argument. The people who counted, the lawyers who worked this, and I did not work this with them other 

than ask a question why not use Common Article 3. But the lawyers who actually worked this came up with a recommendation and 

the President in his statement cited the Justice Department’s conclusion that Common Article 3 did not apply. 

I realize that reasonable people differ on the subject, as I said, 

and the Supreme Court ultimately said the Administration was 

wrong on the subject. But when I was talking with Mr. Sands, I 

was reflecting the views of the President on the subject. 

Mr. KING. Thank you, Mr. Feith. Now there has been some disagreement in your opening statement, yours with Mr. Sands, on 

who said what, when. Would you like to address that. Are you willing to stand on the statements that are part of your testimony and 

your rejection of Mr. Sands’ accuracy of those? 

Mr. FEITH. I think that Mr. Sands essentially confirmed that 

what he said was inaccurate because he said that I said that no 

one at Gitmo was entitled to any Geneva Convention protections at 

all. Then, when he was asked to produce the statement, he produced a statement that applied only to al-Qaeda. 

Mr. KING. Mr. Sands, would you release those tapes? 

Mr. SANDS. I have already said so. If the Committee wishes to 

have a copy, I would make them available to the Committee. 

Mr. KING. This Committee Member would like to have a copy. 

I thank you very much. I thank all the witnesses for your testimony, and yield back the balance of my time with time left over, 

and I credit it to the Chairman, Mr. Conyers. 

Mr. CONYERS. Mr. Chairman, I ask unanimous consent that the 

tapes in question be made a part of the record.* 

Mr. NADLER. Without objection. 

The Chair now recognizes the gentleman from Minnesota, Mr. 

Ellison. 

Mr. ELLISON. Thank you, Mr. Chairman. 

116 

Mr. Feith, just to clear this up, do you concede that people designated as POWs are subject to questioning by authorities that 

have them in custody? 

Mr. FEITH. They can be questioned. According to the Geneva 

Convention, no form of coercion to secure information can be used. 

Mr. ELLISON. So you agree they can be questioned, you just believe they ought—well, I think your answer is clear on the record. 

Thank you. 

Let me also ask this question. In an earlier hearing, we had 

Colonel Wilkerson here, and I heard you object to being here because of his presence. Was that true? 

Mr. FEITH. Yes 

Mr. ELLISON. What is your objection to Colonel Wilkerson? 

Mr. FEITH. That was laid out in a letter that I sent. 

Mr. ELLISON. I want to hear it now. 

Mr. FEITH. He has made a number of very personal and vicious 

remarks. He has accused me of being a card-carrying member of 

the Likud party in Israel and he has accused me of having loyalty 

to Israel rather than the United States. I think that is a vicious, 

false, and bigoted remark. 

Mr. ELLISON. Is that the only basis for your objection? 

Mr. FEITH. He made other nasty statements too. I don’t think I 

am interested in rehearsing all of them. 

Mr. ELLISON. I don’t really care if you are interested. He was a 

witness, you are a witness. You gave a public reason for not being 

here. And I think the Committee is entitled to know what it is. 

Mr. FEITH. I think that remark, in and of itself, establishes why 

I think he was not an appropriate person for this. 

Mr. ELLISON. Is there anything he said with regard to your role 

in the policy regarding detainee questioning that caused you to 

refuse to appear on the panel? 

Mr. FEITH. I believe he has made a number of very reckless remarks describing top Administration officials as war criminals, and 

I just think that it’s—I think he is a reckless guy. I mean in the 

hearing here he said an absolutely extraordinary thing. He said 

that he had to violate the rules when he was a soldier in Vietnam 

not to shoot a 12-year-old girl. He said it two or three times. 

Mr. ELLISON. Mr. Feith, that can’t be the basis of your objecting 

to being here. 

Mr. FEITH. It is a sign of the kind of irresponsibility. 

Mr. ELLISON. I control the time, Mr. Feith. I am trying to get at 

why you objected to being here. One is a personal comment that 

he made about you, another one is that you think he criticized 

some members of the Administration and you didn’t appreciate 

that criticism. 

Mr. FEITH. Third, he speaks recklessly. 

Mr. ELLISON. Is there anything that he said about your role with 

regard to detainee interrogation that was the basis of your refusal 

to appear? 

Mr. FEITH. He is lumping me together with other people in the 

Administration that he said reckless things about, about war 

crimes and the like. 

Mr. ELLISON. So I am trying to get into did he make a statement 

regarding your role? 

117 

Mr. FEITH. Why don’t you tell me what you have in mind. 

Mr. ELLISON. Why don’t you tell me the truth. I am trying to figure out—— 

Mr. FRANKS. Regular order here. Badgering the witness here. 

Mr. ELLISON. We are not in court. 

Mr. NADLER. The gentleman will suspend. 

This is not a courtroom. I don’t think badgering the witness is 

an objection. 

Mr. FRANKS. But he is certainly doing that. 

Mr. NADLER. The gentleman will continue. 

Mr. ELLISON. Moving along. I am just going to say there is nothing that he said about your role in regard to detainee questioning 

policy that formed the basis of your refusal to appear, it’s just you 

don’t like him so you didn’t appear. That is what I gather. 

Mr. FEITH. That is not what I said. 

Mr. ELLISON. Then make the record clear, Mr. Feith. 

Mr. FEITH. I don’t understand what you are getting at. 

Mr. ELLISON. It doesn’t matter whether you understand, you 

have to answer the question or refuse to. What is the factual basis 

with regard to detainee policy? 

Mr. FEITH. I laid it out in the letter that we sent you. I will pull 

the letter out. 

Mr. ELLISON. So you are refusing to answer now. Are you refusing to answer? 

Mr. FEITH. I will read you what I said. 

Mr. ELLISON. The answer is I am trying to get at the facts as 

to why he refused to appear with Colonel Wilkerson, not at who he 

didn’t like or any kind of personal invectives. 

Mr. FEITH. Mr. Ellison, here’s what my lawyer said in his letter 

to Chairman Conyers: What I object to is not that Mr. Wilkerson 

disagrees with Mr. Feith about the issues. In discussion of issues 

of public importance, disagreements are inevitable and welcome. 

But what should neither be expected nor tolerated are the kinds of 

personal vicious, groundless attacks that Mr. Wilkerson has repeatedly directed at my client. 

Mr. ELLISON. That is all, Mr. Feith. You have pretty much made 

it clear, it is personal invective. In your book, War and Decision, 

you state that Attorney General John Ashcroft said the main problem with applying the Geneva Conventions is that it would preclude effective interrogation. I want to make sure I understand 

that correctly. Did Attorney General Ashcroft tell you that prisoners could not be effectively interrogated under Geneva Conventions? 

Mr. FEITH. I think what he was addressing was under POW— 

if they had POW status under the Geneva Convention. 

Mr. ELLISON. The first thing you told me is you can question a 

POW. We don’t have to retry that. I want to know, did the Attorney General tell you that prisoners could not be interrogated at Geneva Conventions? 

Mr. FEITH. I believe he was saying they couldn’t be interrogated 

effectively. 

Mr. ELLISON. Did he tell you? 

Mr. FEITH. They couldn’t be interrogated effectively if they had 

POW status. 

118 

Mr. ELLISON. So he said to you they could not be interrogated—— 

Mr. FEITH. It wasn’t to me. 

Mr. ELLISON. I am going to finish my question. Did Attorney 

General Ashcroft tell you that prisoners could not be effectively interrogated under Geneva? 

Mr. FEITH. If they had POW status. 

Mr. ELLISON. All right. Now do you know why he was under the 

impression that they could not be interrogated effectively if they 

are in the circumstance you described? 

Mr. FEITH. I believe it is because the general view, as I understand it, of the lawyers in the military—— 

Mr. ELLISON. Is it because—— 

Mr. FEITH. May I please answer your question? 

Mr. ELLISON. Is it because you cannot use coercive methods? 

Mr. NADLER. The time of the gentleman has expired 

Mr. ELLISON. One more minute. 

Mr. NADLER. Without objection, the gentleman may have 1 additional minute. 

Mr. ISSA. I object. It’s timely. I object. 

Mr. NADLER. The gentleman’s objection is heard. 

I recognize the gentleman from Virginia for 5 minutes. 

Mr. ELLISON. Mr. Chairman, can I be heard? How come everybody gets an extra minute but I don’t? 

Mr. NADLER. Because no one objected. The gentleman from California objected to the request for unanimous consent for an additional minute. The Chair has no power beyond that. 

Mr. ELLISON. Mr. Chairman, it has been a practice in this hearing people have had an extra minute. 

Mr. NADLER. I understand that. And previously when I requested 

or someone requested unanimous consent, no objection was heard. 

In this instance, for some reason, an objection was heard. Apparently, continues to be heard. 

Mr. ISSA. Mr. Chairman. 

Mr. NADLER. The gentleman from California. 

Mr. ISSA. In the spirit that we are going to have a normal-Question and answer, I certainly want a proper opportunity, and would 

withdraw my objection at this time. 

Mr. NADLER. I thank the gentleman for withdrawing his objection. 

Without objection, the gentleman from Minnesota has an additional minute. 

Mr. ELLISON. Mr. Feith, do you know why the Attorney General 

would believe that you could not effectively interrogate a detainee? 

Mr. FEITH. I would assume that he was reflecting the view of our 

military lawyers that the way the Geneva Convention provision on 

POW interrogation reads, you can’t even offer any kind of inducement, positive or negative, to a POW to answer a question. You 

can’t say we will give you cigarettes if you answer the question. 

Anything of that type. 

And so the view that many people have is that unless a detainee 

is completely voluntary and offering information, you are not going 

to be able to get any information from him if he has POW status. 

Mr. ELLISON. Ms. Pearlstein, do you have any reaction to that? 

119 

Ms. PEARLSTEIN. I guess I have two reactions. One is that to clarify, if I may, Mr. Feith’s testimony. He was speculating that the 

reason that the Attorney General believed that interrogation would 

not be effective if conducted as against a detainee who is a established POW was because he imagined that was the advice that the 

military lawyers were giving. First, that is supposition. 

Secondly, based on my own extensive conversations with military 

lawyers, I have not encountered one who would have taken that position. So I leave that as an open question before the Committee, 

what position a military lawyer would take with respect to the efficacy of interrogation under Geneva 3. 

Mr. NADLER. The time of the gentleman has expired. The Chair 

now recognizes for 5 minutes the gentleman from Virginia. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. Professor 

Feith, does the present policy of the United States allow torture or 

not? 

Mr. FEITH. It does not 

Mr. SCOTT. What you call aggressive techniques or humane 

treatment doesn’t make a technique that everybody considers torture not torture just because you described it. There are a lot of 

memos that have been discussed. Was the policy changed as to 

what techniques would be allowable? That is to say, were there 

some techniques that have previously been prohibited that would 

be allowed under your guidance? 

Mr. FEITH. There were various changes in detainee policy. But 

what didn’t change was the directive that everybody had to comply 

with the law. Torture was against the law. Everybody had to give 

the detainees humane treatment. That didn’t change. 

Mr. SCOTT. Was there any functional difference then as to what 

was allowed and what was not allowed? 

Mr. FEITH. Yes. Absolutely. There were various discussions of 

what was allowed and not allowed. 

Mr. SCOTT. Those concepts were there before, they were there 

after. Was there any functional difference in what was allowed and 

what was prohibited before allowed under the new interpretations? 

Mr. FEITH. Yes. 

Mr. SCOTT. What? What was the difference? 

Mr. FEITH. Initially, the interrogators at Gitmo were operating 

under the Army Field Manual. General Hill, in October 2002, sent 

up a memo and said the techniques that we are using under the 

Field Manual are not adequate with respect to a small number of 

especially important detainees and we would like to use some additional techniques that are within the law but beyond the limits of 

the field manual. 

They were considered. Secretary Rumsfeld approved some of the 

techniques that were before him and then later, when Secretary 

Rumsfeld was told there was concern on some of the part of service 

lawyers about the legality of the arrangement that he had just approved, he, in the middle of January of 2003, said, If there are concerns among lawyers, then I want it stopped. I want all the new 

procedures stopped. I want all the relevant lawyers brought together in a working group. I want them to study this matter and 

I want them to come back to me. 

120 

I think his reaction was actually very admirable. He did exactly 

what I think any of you and any of us concerned about civil liberties and respect for the law would have done. He was told there 

was unease. He said if there’s unease, I want all the new procedures stopped. I want this studied. If there are people who are not 

part of the original process who should be part of the process, I 

want them brought in. 

Mr. SCOTT. Is it your testimony that it was based on everybody 

else, the interpretation of everybody else in the world, that there 

was no policy of the United States that people would be subjected 

to techniques that everybody else in the world considered torture? 

Mr. FEITH. By the way, if you are talking about waterboarding, 

that was one of the techniques mentioned that Secretary Rumsfeld 

did not approve. When the memo came up, he rejected that. 

Mr. SCOTT. Let me ask a more direct question. To the best of 

your knowledge, were any detainees tortured? 

Mr. FEITH. My understanding is that there were detainees who 

were killed and murdered. I base that, in part, on what Professor 

Pearlstein said, and various news reports. 

Mr. SCOTT. What happened to those? 

Mr. FEITH. What we did is what a proper government does under 

these circumstances. Those things were investigated, people were 

identified as criminally culpable, they were prosecuted, and when 

convicted, punished. 

Mr. SCOTT. Why do they think they could do what they did? 

Mr. FEITH. I don’t believe that they necessarily believe they could 

do what they did. They just did it. There are people who do bad 

things that are against law and against policy. 

Mr. SCOTT. Let me ask Professor Pearlstein. Why did the people 

who were doing that torturing think they could do what they did? 

Ms. PEARLSTEIN. Well, I think there were different reasons that 

people acted as they did. But I think there is no question that part 

of the reason that some acted as they did was that they believed 

they had the authority to do so. 

If I may, just from the report you have in your record, I submitted it with the testimony in 2006, in one of the court martial 

proceedings against a young officer, chief warrant officer, young 

troop, Chief Warrant Officer Welshoff for the murder of one of the 

detainees, Welshoff claimed that he was not at all trained for the 

interrogation of captured detainees. 

This is the young soldier put on trial for the murder of a detainee stuffed into a sleeping bag wrapped with rope and suffocated 

to death. He testified that he understood that he was authorized 

to force this detainee into a sleeping bag, based in part on a memorandum from General Ricardo Sanchez, the highest ranking military official in Iraq and the time. In that memo, General Sanchez 

authorized harsh interrogation techniques, including sleep and environmental manipulation, the use of aggressive dogs, and stress 

positions, even as General Sanchez acknowledged that other countries would view these techniques as inconsistent with the Geneva 

Conventions. 

That memorandum was the only in-theater guidance that 

Welshoff testified he received. The use of the sleeping bag technique was authorized by his immediate company commander. 

121 

The reason I testified earlier as I did that limits—— 

Mr. NADLER. The time of the gentleman is expired. Without objection, the gentleman will have an additional minute. 

Mr. KING. In the interim, I have a parliamentary inquiry. 

Mr. NADLER. The gentleman will state his parliamentary inquiry. 

Mr. KING. Mr. Chairman, I am watching the witnesses and some 

of them are undergoing water torture, having drank nearly a pitcher of water. One is undergoing fluid deprivation. All of them are 

undergoing food deprivation. And I don’t know if it’s cruel and inhumane at this point but it’s 2 hours and 45 minutes into this 

hearing. I would ask if the Chairman would grant the witnesses 45 

minutes to have a break and have some lunch and get some relief 

from this relentless pressure. 

Mr. NADLER. That is not a parliamentary inquiry. But I will 

state that there is another hearing scheduled for this room and we 

have to vacate the room by about 1:15 or perhaps 1:30. So, unfortunately, we are not going to be able to do that. I would love to take 

lunch now, but we can’t do that. The hearing will end by 1:15 or 

1:30 because we will be chased out of here. 

Mr. KING. Mr. Chairman, do you have an opinion on whether 

this is cruel and inhuman? 

Mr. CONYERS. Will the gentleman yield? 

Mr. NADLER. I will be happy to yield to the Chairman. 

Mr. CONYERS. The question is whether it is cruel and inhuman 

to the Members of the Committee. I mean, we have all been here, 

too. 

Mr. NADLER. I would also state that none of us are POWs and 

therefore entitled to the benefits of such treatment. 

Mr. CONYERS. I think the professor was in the middle of an answer. 

Mr. NADLER. The gentleman had been granted an additional 

minute of time. We will resume that. 

Which professor? Professor Pearlstein. 

Ms. PEARLSTEIN. I was just concluding, if I may, and without 

prejudice to the further consideration of the possibility of a break, 

the point I was making was simply the ambiguity of guidance and 

the existence of the authorization of the techniques we have been 

discussing. Without clarification, not just after 9/11, but over a period of years, clearly in the findings of Defense Department investigations themselves contributed to the record of torture and abuse 

I discussed. 

Mr. SCOTT. Thank you. Now is it a defense to torture that you 

got good information as a result of the torture? 

Ms. PEARLSTEIN. To my knowledge, not a defense to torture 

under international law. In fact, I know it is not a defense to torture under international law that you got good information. 

Mr. SCOTT. Is it a defense that you couldn’t get the information 

under traditional interrogation techniques but you thought you 

could get it with a little torture? 

Ms. PEARLSTEIN. No, that is not a defense. 

Mr. SCOTT. Whose responsibility is it to ensure that detainees 

were not tortured or killed and that our troop are properly trained 

to avoid torturing and killing people? Let me ask Professor Feith, 

122 

since he was in the Department of Defense. Whose responsibility 

is it? 

Mr. NADLER. The gentleman’s time has expired, but the witness 

can answer the question. 

Mr. FEITH. My understanding is that the combatant commanders 

are responsible for proper treatment classification, administrative 

processing, and custody of detainees, and ensuring prompt reporting of suspected or alleged violations. 

Mr. NADLER. The gentleman’s time has expired. 

The gentleman from North Carolina is recognized for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

Professor Feith, are you intending to imply by that, that responsibility for any kind of conduct that takes place in the military is 

down at the level that you just described? 

Mr. FEITH. It is not down. You are talking about a Four-Star 

General. I am just telling you what DOD directives say. If it were 

to be the case that a combatant commander was not fulfilling his 

responsibility to investigate, prosecute violations of law and policy, 

then that would be a serious breach of the combatant commander’s 

responsibility and his superior, the Secretary of Defense, would be 

responsible for remedying that problem. 

I mean, the way the U.S. Government works is people have responsibility at various levels. And if people are not fulfilling those 

responsibilities, people at a higher level have to make sure those 

get fulfilled. 

Mr. WATT. I am not arguing with you, I am just trying to get 

clarification of whether you were saying that there is no upward 

responsibility for decisions that get made. I presume the buck stops 

with the Commander in Chief. 

Mr. FEITH. No. The buck stops with the President. That is what 

Harry Truman said. 

Mr. WATT. That wasn’t a trick question. I am just trying to get 

clarification on what it was you were saying. 

There has been a lot of dispute about who has responsibility 

here. Is there any dispute about Professor Pearlstein’s testimony 

that there has, in fact, been torture? 

Mr. FEITH. No. 

Mr. WATT. Is there dispute about that? The answer to that is no? 

Mr. FEITH. There was no dispute there was torture. 

Mr. WATT. That is all I am asking, Professor Feith. Is there a 

dispute about what was reported by the Human Rights First and 

Human Rights Watch reports that suggest that there were 100- 

plus detainees who died in U.S. custody, including 34 whose death 

the Defense Department reported as homicides? 

Mr. FEITH. I don’t know if that is right or wrong. 

Mr. WATT. Professor Pearlstein, is there dispute about that? 

Ms. PEARLSTEIN. No, not to my knowledge. 

Mr. WATT. Professor Sands. 

Mr. SANDS. I am not familiar with the facts, sir. 

Mr. WATT. Is there any dispute about the fact that at least eight 

of those detainees were tortured to death? 

Mr. FEITH. If they were, it is disgusting and horrible and they 

should be punished. 

123 

Mr. WATT. I didn’t ask you whether it was disgusting and horrible. I am trying to find out whether the facts are in dispute. Is 

it a fact or is it not a fact? That is all I am trying to find out. 

Mr. FEITH. I don’t know. I don’t have personal knowledge about 

it. 

Mr. WATT. So regardless of who has the responsibility for it, 

whether it is a general down at the command level, or the Secretary of Defense, or the Commander in Chief, there is no dispute 

that the United States has engaged in torture. Or somebody who 

worked for the United States has engaged in torture. Let me put 

it that way. Is there a dispute about that? 

Mr. FEITH. I don’t think there is a dispute that there were people 

who misbehaved and did terrible things. 

Mr. WATT. The question I want to get to, Professor Feith, is to 

what extent if any, in your estimation, and then I would like the 

response of Professor Pearlstein and Professor Sands to the same 

question, to what extent if any did that torture take place as a result of either clear communication of what the standards were by 

whoever had responsibility, or a wink and a nod, or, yeah, you’re 

not supposed to engage in this, but it’s okay with us as your superiors if you do. 

Professor. 

Mr. ISSA. Mr. Chairman, I would ask unanimous consent for 1 

additional minute for the gentleman. 

Mr. FEITH. I can say that I never saw a wink or a nod from any 

senior Administration official on these enormously important 

points for us that the law had to be complied with, the torture statute had to be complied with and all detainees should get humane 

treatment. 

Mr. WATT. So no notice occurred as a result of kind of an implicit 

approval of it. 

Mr. FEITH. That is right. 

Mr. WATT. Okay. 

Professor Pearlstein and then Professor Sands. 

Ms. PEARLSTEIN. I would emphasize two points. In addition to 

whatever was specifically authorized at any point time, there are 

two things to me that on the record already seems clear. One is 

that we sent a bunch of troops into a war zone with completely inadequate guidance about how detainees were to be treated. And, 

two, is that even after it became clear that the guidance was completely inadequate and unclear and that as a result it was leading 

to a massive problem of detainee abuse and torture, the Defense 

Department took years to take any action at all in response to 

what was going on. 

Mr. SANDS. I focused on detainee 063, and in his case there was 

no need for a nod and a wink or anything implicit because there 

was an explicit authorization to use techniques that, at the very 

least, amounted to inhumane treatment and most people now believe amounted to torture. So that was directed explicitly as a result of the memorandum signed by Mr. Rumsfeld on the 2nd of December 2002. 

Mr. NADLER. The time of the gentleman has expired. We will 

now go to a second round of questioning. 

Mr. KING. Mr. Chairman. 

124 

Mr. NADLER. Who seeks recognition? 

Mr. KING. Mr. Chairman, I would ask unanimous consent that 

the witnesses be able to let us know if they would like a short 

break in this interim. I am actually feeling sorry for them. 

Mr. NADLER. If any witness needs to take a short break, they 

may do so. But the fact is we only have about 40 minutes at the 

outside, and I hope we can complete our business within that. So 

I can’t agree to that. 

Mr. KING. I yield back. 

Mr. NADLER. Thank you. 

The Chair now recognizes himself for 5 minutes. I am going to 

be a little more strict in this round on the 5 minutes because of 

the timing. 

I want to just ask, first of all, Professor Pearlstein and Professor 

Sands, very quickly. I read before from the definitions of category 

2 and category 3; category 2, including 20-hour interrogations, 

hooding, removal of clothing, use of detainee’s phobias such as fear 

of dogs to induce stress; category 3, including waterboarding, cold 

weather and cold water, the use of scenarios designed to convince 

the detainee that death or severely painful consequences are imminent to him or his family. And that the memo that we talked about 

before said that category 3 was legal but not advised and category 

2 was okay. 

I asked Professor Feith if these techniques were humane under 

the Geneva Conventions, he said depending on how they were applied, depending on the circumstances. 

Professor Pearlstein, Professor Sands, very quickly, are these 

techniques under any circumstances proper? 

Mr. SANDS. They are under no circumstances compatible with 

Common Article 3. They are clearly prohibited. 

Mr. NADLER. That includes category 2. 

Mr. SANDS. Includes almost all of category 2 and all of category 

3. 

Mr. FEITH. Mr. Chairman. 

Mr. NADLER. Getting back to detainee number 063, detainee 063 

was forced to perform dog tricks on a leash, straddled by female 

interrogator, told that his mother and sister were whores, forced to 

wear a woman’s bra and thong on his head during interrogation, 

forced to dance with a male interrogator, and subjected to an 

unmuzzled dog to scare him. These seem to be category 2 treatments. 

Professor Sands, you would assert that this was completely illegal. 

Mr. SANDS. He was also forced to stand naked, he was also hospitalized for hypothermia. They are clearly in violation of the minimum standards of international law. There is no question about 

that. 

Mr. NADLER. Did Secretary Rumsfeld approve of the plan for detainee 063, to your knowledge? 

Mr. SANDS. He approved the techniques being used. There was 

then a plan adopted, which we have not seen because it has not 

entered into the public domain. But it reflected the standards reflected in his memo. 

125 

Mr. NADLER. Do you know who reviewed or approved the interrogation plan for Mr. Al Khatani? 

Mr. SANDS. I know certainly General Miller, who was down at 

Guantanamo at the time, approved it. 

Mr. NADLER. You don’t know of anybody else? 

Professor Feith, do you know, did you review or approve the interrogation plan for Mr. Al Khatani? 

Mr. FEITH. No. 

Mr. NADLER. Do you know who did? 

Mr. FEITH. No, I don’t. 

Mr. NADLER. Professor Sands, do you know if the International 

Security Council or their deputies discussed it? 

Mr. SANDS. I don’t know. But my understanding is the treatment 

of detainee 063 did not go to the National Security Counsel. 

Mr. NADLER. Professor Pearlstein, would you agree or not that 

the category 2, and not to mention the category 3 measures, would 

be categorically illegal and not dependent, as Professor Feith said, 

on how they were administered under the circumstances? 

Ms. PEARLSTEIN. Everything under category 3 is categorically 

prohibited under Geneva. 

Mr. NADLER. Category 2? 

Ms. PEARLSTEIN. Stress positions, yes. I am reading through 

these to refresh my recollection. 

Mr. NADLER. Placing a hood over his head. 

Ms. PEARLSTEIN. All of these are, at a minimum, cruel, inhuman, 

and degrading treatment. 

Mr. NADLER. Professor Feith, you do not think these are, per se, 

cruel and inhuman? 

Mr. FEITH. I do not. I want to clarify something. The 18 techniques were brought forward, and General Hill, in bringing them 

forward, specifically called into doubt the legality of the category 

3 techniques. So it is important to point that out. 

Then, when Mr. Haynes presented his memo to Secretary Rumsfeld, he specifically said we do not recommend that you approve 

any of the category 3—— 

Mr. NADLER. What he said, to be precise, was, 

‘‘While all category 3 techniques may be legally available, we believe as a matter of policy a blanket approval of category 3 techniques is not warranted at this time.’’ 

Mr. FEITH. I understand that. I was in the meeting. What I remember—— 

Mr. NADLER. Excuse me. That is the memo signed by Bill 

Haynes, a memo to Secretary of Defense Rumsfeld, and it is granted it didn’t recommend using it, but he did find it legal and did 

say they could use category 2. 

My time has now expired. I recognize the Ranking Member of the 

Subcommittee, the gentleman from Arizona, for 5 minutes. 

Mr. KING. Mr. Chairman, point of order. Another protest sign 

just came in the room as you were speaking. It is just to the right 

of camera underneath one of those pink caps. I would ask it be removed from the room. 

Mr. NADLER. I don’t see a sign. 

Mr. KING. It is on a shirt. 

126 

Mr. NADLER. If it is on a shirt and the person is sitting down so 

it is not visible, I will allow that. 

Mr. KING. The person walks in and out of the room. 

Mr. NADLER. Don’t walk out in the half hour or so remaining to 

the hearing. 

The gentleman is recognized for 5 minutes. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Ms. Pearlstein, I just wanted to get a yes or no answer, then I 

will let you expand on the next question. In Mr. Witte’s book he 

said, ‘‘In Iraq and Afghanistan, detainees actually died in custody 

in incidents the military deemed homicides, though none of the interrogation tactics used in these case were authorized.’’ 

Do you know, of those people who died in custody, do you know 

of any technique that was used that caused their death that was 

specifically authorized by the United States Government? 

Ms. PEARLSTEIN. I think the answer to that question remains unclear. I quoted before the testimony of the young officer who said 

he believed that he was authorized to stuff a detainee in a sleeping 

bag. 

Mr. FRANKS. I understand. But you don’t know of anything that 

was authorized like that, yes or no. 

Ms. PEARLSTEIN. Some of the soldiers believed it was authorized. 

Mr. FRANKS. So I am not going to get an answer. Let me just ask 

you this then. What specific, specific interrogation techniques 

would you recommend under the framework that you choose that 

the government use to obtain information from known terrorists 

who are resisting the questions when those terrorists refuse to provide information voluntarily. What techniques would you use, Ms. 

Pearlstein? 

Ms. PEARLSTEIN. I think the techniques—— 

Mr. FRANKS. Specifically. 

Ms. PEARLSTEIN. What it is elaborated in the Army Field Manual 

is an excellent start. 

Mr. FRANKS. Enlighten me. What specific techniques would you 

use? 

Ms. PEARLSTEIN. Do you want me to read to you—— 

Mr. FRANKS. I would like you to give me your opinion. 

Ms. PEARLSTEIN. I am not an interrogator, so I am not sure I am 

the witness best qualified to give that. 

Mr. FRANKS. So would you like to make a shot? 

Ms. PEARLSTEIN. I think the answer is the U.S. Army Field Manual has multiple sections that describe appropriate interrogation 

techniques. I think that is a good approach. 

Mr. FRANKS. You don’t know anything you would use that would 

get reluctant information from a terrorist. 

Ms. PEARLSTEIN. I would prefer to receive some training before 

I was sent into a room like that. 

Mr. FRANKS. That is great. Professor Feith, read one more time 

the specific phrase that you read earlier about POWs, how they can 

be questioned and what the course of nature of that could be or 

could not be. 

Mr. FEITH. In Article 17 of the Geneva Convention it says that 

no physical or mental torture nor any other form of coercion may 

127 

be inflicted on prisoners of war to secure from them information of 

any kind whatever. 

It says, ‘‘Prisoners of war who refuse to answer may not be 

threatened, insulted, or exposed to unpleasant or disadvantageous 

treatment of any kind.’’ 

Mr. FRANKS. That is pretty clear to me. That may escape a lot 

of us, but that is pretty clear to me. That means if you said you 

don’t answer that question, we are not going to let you play checkers this afternoon. You wouldn’t be able to do that, is that correct? 

Mr. FEITH. I believe that is right. 

Mr. FRANKS. Well, I think that if we said that you were a prisoner of war, under that language, Mr. Ellison’s questions would 

have been out of bounds. I think that the entire Committee hearing 

would be out of bounds. I think that, unfortunately, if Osama bin 

Laden and Khalil Sheikh Mohammad were sitting in the corner, 

they would be laughing at this Committee right now because they 

understand our system better sometimes than we do. 

In terms of a wink and a nod, don’t you think terrorists wink and 

nod about being tortured to each other? 

Mr. FEITH. As we know, and as was referred to earlier, part of 

the training that al-Qaeda people have received, and it is in writing, is to always claim that they were tortured when they are in 

detention. 

Mr. Franks, may I use your time to clarify something that I 

wanted to say with regard to what the Chairman was talking 

about. When I said that the techniques from the 18 techniques 

memo were consistent with humane treatment, depending on how 

they were done, I was referring only to those that Secretary Rumsfeld had actually approved because the several that he hadn’t approved, there were legal-Questions that were raised by General 

Hill about them, and it was not recommended that they be used 

and Secretary Rumsfeld did not approve them. 

So I just want to make it absolutely clear that I am not saying— 

I am not offering an opinion on whether the techniques that were 

rejected by Secretary Rumsfeld could have been used properly. 

Mr. FRANKS. My last thought here. 

Mr. FEITH. In other words, Secretary Rumsfeld only approved, of 

the category 3 items, the only one that he approved was use of 

mild, non-injurious physical contact such as grabbing, poking in the 

chest with the finger, and light pushing. 

Mr. NADLER. Would the gentleman yield. Did he approve anything or everything or disapprove anything in category 2? 

Mr. FEITH. Yes, he approved category 2, but in category 3—— 

Mr. NADLER. Thank you. But he approved category 2? 

Mr. FEITH. Yes. 

Mr. FRANKS. Mr. Chairman, essentially, under the rationale of 

the Committee here, if someone in prison in our American prisons 

gets beat up tomorrow, we can blame the President. 

I yield back. 

Mr. NADLER. I thank the gentleman. 

I now recognize for 5 minutes the gentleman from Minnesota. 

Mr. ELLISON. Professor Pearlstein, some questions haves been 

raised about whether you could use interrogation techniques that 

are designed to get the suspect’s trust, and then get information 

128 

out of them that way. For example, earlier I think Mr. Feith said 

you couldn’t offer them cigarettes. Is that true? 

Ms. PEARLSTEIN. I’m sorry; who cigarettes? 

Mr. ELLISON. Detainees. 

Ms. PEARLSTEIN. To clarify, it is currently, although I wish it 

were otherwise, constitutional under U.S. law in U.S. prisons to engage—for police to engage in questioning designed to illicit the 

trust of a detainee and then get information under that way. 

Mr. ELLISON. Under Geneva, Mr. Feith read out a description of 

what would be permissible questioning strategy for a detainee, and 

essentially it prescribed or prohibited a course of techniques. What 

other kinds of interrogation techniques that are non-coercive would 

be permissible? 

Ms. PEARLSTEIN. I think, as the FBI has long called rapportbuilding techniques are entirely permissible under that standard, 

among others. 

Mr. ELLISON. These are effective at gleaning information, is that 

right? 

Ms. PEARLSTEIN. As the one of the FBI interrogators put to me, 

all I need to get good information is a room and time. 

Mr. ELLISON. You don’t need waterboards. Is that what he said? 

Ms. PEARLSTEIN. He didn’t even get there. 

Mr. ELLISON. Let me ask you this question, Mr. Feith. There was 

a November, 2002, meeting in which I believe the issue of the categories arose. Would you mind describing that meeting for us 

today? 

Mr. FEITH. What I remember is that Jim Haynes, the general 

counsel of the Defense Department, said that the commander of 

SOUTHCOM, General Hill, believed that the techniques that were 

allowed under the field manual, which were those that weren’t in 

effect at the time, while they were sufficient for many of the detainees, were not sufficient for some of the key detainees. And so 

he said that General Hill wanted authority from the Secretary of 

Defense to go beyond the field manual but still to stay within the 

law. And then we looked over the memo and it talked about things 

like yelling at the detainee and good cop-bad cop. 

So what we understood sitting around the table was that the 

people who were proposing this were proposing something that was 

very careful, very circumscribed, reflected a good attitude toward 

the law, toward humane treatment, and the like. If you actually 

read through this memo you will see—— 

Mr. ELLISON. I don’t want to be rude to you, but I have got only 

5 minutes. So General Hill and Jim Haynes were present, you were 

present. Is that right? 

Mr. FEITH. I don’t know that General Hill was present. 

Mr. ELLISON. Who else was present besides Mr. Haynes? 

Mr. FEITH. I don’t remember precisely. We went to lots of meetings. 

Mr. ELLISON. You were there. 

Mr. FEITH. I was there. 

Mr. ELLISON. Was it just you and Haynes? 

Mr. FEITH. No. In a case like that, I would assume that General 

Myers or General Pace or both of them was there. I don’t know. 

129 

One would have to check the record. It is easy enough to find out 

who was at that meeting. 

Mr. ELLISON. Did anybody object to the use of the category 3 

techniques? 

Mr. FEITH. Yes, absolutely. 

Mr. ELLISON. Who objected? 

Mr. FEITH. We all did. 

Mr. ELLISON. You all did. 

Mr. FEITH. They weren’t approved. Except for the poke in the 

chest. 

Mr. ELLISON. Did anyone object to any category 2 techniques? 

Mr. FEITH. They were considered to be, again, if done within the 

bounds of no torture, no inhumane treatment, they could have been 

done in a way that was considered okay. 

Mr. ELLISON. Professor Sands, do you have a view of this issue? 

Mr. SANDS. I do. What emerged, I had written about it, and what 

emerged during the course of Admiral Dalton’s testimony was there 

was a review initiated by Admiral Dalton, who was the General 

Counsel of the Joint Chiefs of Staff to consult with military lawyers. That was terminated early at the intervention of Mr. Haynes. 

Before that happened, senior military lawyers expressed strong objections to category 2 techniques on the grounds that they were inconsistent with the United States’ international obligations and 

they amounted to cruel, inhuman, and degrading treatment. 

It may well be that Mr. Feith was not aware that they had occurred. Admiral Dalton was very clear that the intervention had 

occurred at the instigation of Mr. Haynes directly, and apparently, 

on her account, with the knowledge of General Myers. 

Mr. NADLER. The gentleman’s time has expired. The gentleman 

from California is recognized for 5 minutes. 

Mr. ISSA. Thank you, Mr. Chairman. 

Mr. Feith, I would like to take you back to a discussion that went 

on a little while ago about POW status. First, I would like to ask 

one question. Looking back now as a professor and in the private 

sector, if you were back at DOD again and you were dealing with 

the prisoners of this war, would you, knowing what you know now, 

have essentially said the Army, Navy, Air Force is not generally 

equipped or trained to do interrogations that are outside that 

which is in the Field Manual? Would that be a fair statement to 

say, that at the beginning of this war, we were trained to do interrogations to that level. CIA, other groups might have been better 

equipped, the FBI, but not our uniformed military. Is that a lesson 

learned? 

Mr. FEITH. I think so. I think there have been, as you know, I 

am sure, 15 or 20 investigations, studies of various aspects of the 

problems, and they came to conclusions along the lines that you 

just mentioned. 

Mr. ISSA. Going back, though, to POW, because I think it is important, first of all, all of the accusations and statements made 

here today about people who died in captivity, people who clearly 

were tortured, put into a bag, suffocated, those are all criminal acts 

under existing law, and as far as you know, nobody above the individuals present at the time of those incidents ever authorized 

130 

them. In other words, everyone who we know of that was involved 

has been punished. Is that correct, to your understanding? 

Mr. FEITH. I would say that no senior officials of the Administration ever authorized them. I don’t know the details about way 

down. 

Mr. ISSA. Combatant commanders and above had nothing to do 

with it. 

Mr. FEITH. There is no evidence whatever that they were ever 

authorized. 

Mr. ISSA. I would like to take you through a short line of questioning on POWs for a moment. I was an Army enlisted man and 

an Army officer so I have been through this drill a bunch of times. 

Isn’t it a true a prisoner of war is limited to only answering name, 

rank, and serial number, essentially? 

Mr. FEITH. Yes. 

Mr. ISSA. Isn’t it true a prisoner of war is entitled to essentially 

be independently interviewed by outsiders? The Geneva Convention 

generally calls for the Red Cross. Is that correct? 

Mr. FEITH. Yes. 

Ms. ISSA. Isn’t it true that a POW has a right to its chain of command to be intact? In other words, you can’t simply put all of 

these—totally segregate people and deny them their chain of command. You can’t put them in solitary confinement. And in fact, the 

senior officer or senior noncommissioned officer is, in fact, part of 

that system, much like Presidential candidate Senator McCain and 

how they reassembled while they were in captivity, their chain of 

command. 

Mr. FEITH. I think that is right. Whether somebody could be put 

in solitary for disruptive behavior or something, I can’t comment on 

that. 

Mr. ISSA. There are some nuances. But, in general, POWs are not 

housed in separate facilities and POWs are, in fact, considered to 

be a unit. In other words, they are allowed to maintain their normal military presence as a group. Isn’t that correct? 

Mr. FEITH. Yes. Because they are viewed as lawful combatants. 

Mr. ISSA. So, essentially there would have been no way to take 

al-Qaeda and other jihadists who were simply choosing to be on the 

field and maybe a whole bunch of independents and bring them together in a conventional POW way without essentially allowing 

people who may have been young and misguided and essentially 

mixing them in with the most dedicated jihadists of al-Qaeda. Isn’t 

that correct? 

Mr. FEITH. That may be. 

Mr. ISSA. So, in a sense, although we can have a discussion about 

lawful and unlawful things that occurred while in captivity, aren’t 

we faced with a responsibility as the U.S. Government to treat 

these people in a way that does not treat them as conventional 

combatants because they are not, both for reasons of our benefit, 

but also for reasons of their benefit? 

Mr. FEITH. Yes. I believe there are multiple reasons why we 

should not give POW protections to terrorist detainees who are not 

entitled to it. 

Mr. ISSA. Thank you very much. 

131 

Mr. Chairman, I have got all my questions answered. I yield 

back. 

Mr. NADLER. I thank the gentleman. The gentleman from Iowa 

is recognized for 5 minutes. I am sorry, the gentleman from Virginia. I didn’t see him here. 

Mr. SCOTT. Thank you. I was in the back, watching it on the 

monitor. 

Professor Pearlstein, Professor Sands, do you want to respond to 

that last colloquy? 

Ms. PEARLSTEIN. Really, my only response is to emphasize that 

the designation of al-Qaeda detainees as POWs or not is not the 

issue. I think it, in many respects, is correct, unlike with respect 

to the Taliban, that al-Qaeda are not entitled to the full panoply 

of POW protections. Having said that, it is irrelevant. What they 

are entitled to, among other things, at a minimum is the protection 

of Common Article 3, a provision of law that would prohibit the set 

of techniques that we are discussing here today. 

Mr. SANDS. I think I would agree with that. The issue of POW 

status is a complete red herring. I don’t think Mr. Feith and I are 

in disagreement about the POW issue. I think it may well be worth 

sharing that in the United Kingdom, this issue doesn’t arise because there is no war against al-Qaeda and so the issue of designation of POWs or Geneva Convention simply does not arise. They 

are treated by reference to the criminal law and they are prosecuted accordingly. That is the way it is done. 

So, in a sense, the Administration has created a rod for its own 

bag by embarking on the direction of a war on terror and getting 

stuck into issues of the Geneva Conventions. But I think Professor 

Pearlstein is absolutely correct, the issue of POWs is of total irrelevance. What matters is the standards reflected in Common Article 

3. 

Mr. SCOTT. Well, if you redefine what constitutes torture, what 

effect does that have? They have written memos that suggest that 

what everybody else thought was torture is not torture. Does that 

mean that that it is because they called it aggressive interrogation 

techniques or they declare it to be humane, therefore it is? 

Mr. SANDS. Well, I’ve listened with interest during the course of 

the morning, and of course I accept entirely that there is no Member of this House that would wish to engage in torture. That is a 

given. 

But, of course, if you then engage in a redefinition of torture, as 

happened in August 2002 in the memo written by Mr. Bybee and 

Mr. Yoo, and weighs it in terms of a threshold which basically excludes everything short of pain associated with organ failure or 

death, a great deal is permitted. 

And in those circumstances I think is important to come back to 

a point in relation to something Mr. Feith said earlier. General Hill 

did make a request on the 25th of October 2002, but that request 

was for legal advice, not just from DOD but from Department of 

Justice. And people often forget that. 

When I was engaged in my conversation with Mr. Feith, one of 

the things we did talk about, I’ll sure he’ll recall, was the extent 

to which the Department of Justice was involved. And the audio 

132 

will show that his belief was this was a full interagency operation. 

No one believes this was the Department of Defense off on a frolic. 

And in that sense, I got from that, as I got from others, a strong 

sense of confirmation that the Department of Justice memorandum 

of August 2002 provided a basis for the decision-making, which allowed the Administration to conclude that certain acts would not 

constitute torture. 

Mr. SCOTT. Well, if you can’t get information from the traditional 

interrogation techniques, and if this Administration thinks with a 

little torture that you can get some good information, what’s wrong 

with torturing people to get the good information? 

Mr. SANDS. Well, like Professor Pearlstein, and I’m sure Mr. 

Feith, we’ve spoken to a lot of interrogators, and what have I 

picked up, as Professor Pearlstein has picked up, from professional 

interrogators in the military, in the FBI, in the Naval Criminal Investigative Service, and anywhere else is you don’t need to go to 

those techniques, because they don’t produce useful and reliable information. What works is rapport-building and related techniques. 

And it’s the main problem with torture, is that it doesn’t provide 

useful information. And, indeed, in the story that I told, as I describe, the aggressive interrogation amounting to inhumanity or 

torture of Detainee 063 did not produce, as I was told, useful information. 

Mr. SCOTT. Professor Feith, what responsibility does the Under 

Secretary of Defense for Policy have to make sure the troops are 

properly trained so that they do not torture people? 

Mr. FEITH. I don’t believe any. That’s not what the job of the 

Under Secretary of Defense for Policy is. The issue for training of 

military forces is within the services—in other words, within the 

Army, the Navy, the Air Force. And that’s not an issue that is dealt 

with in the Office of the Under Secretary of Defense for Policy. 

Mr. SCOTT. Detainee-related policies don’t come under that purview? 

Mr. FEITH. Basically, the way—— 

Mr. NADLER. The time of the gentleman is expired. The professor 

may answer the question. 

Mr. FEITH. I mean, I would answer it similar to what I said before. If it were clear that the services were falling down on their 

job of training people, so that the problem could not properly be 

handled in the service, that would be an argument for people working for the Secretary to say, ‘‘Mr. Secretary, you need to intervene.’’ 

But the way the system is set up, the training of military forces 

is handled within the services. 

Mr. NADLER. Thank you. The time of the gentleman has expired. 

The gentleman from Iowa is recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. I move we adjourn. 

Mr. NADLER. There are no more people to be questioned. I will 

entertain the motion to adjourn in one moment. I must get some 

boilerplate procedure out of the way. 

Mr. KING. Mr. Chairman, there is a proper motion on the floor 

to adjourn. 

Mr. NADLER. If there are no further questions, we will adjourn 

in a moment, but we must take care of this one paragraph of 

boilerplate. 

133 

Oh, we’ll take a vote on the motion to adjourn. 

Mr. KING. I would agree if there is boilerplate to be processed 

pending a vote to adjourn. 

Mr. NADLER. We’ll adjourn at that point without a vote, but 

okay. 

Without objection, all Members have 5 legislative days to submit 

to the Chair additional written questions for the witnesses, which 

we will forward and ask the witnesses to respond as promptly as 

they can, so that their answers may be made part of the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

Before we adjourn, I would remind people that this hearing is 

conducted with decorum. And I would ask that there be no demonstrations as we leave the room and that no one get up with any 

signs or anything else that could cause anybody to object. 

And without the necessity for a motion to adjourn, the hearing 

is adjourned. 

[Whereupon, at 1:21 p.m., the Subcommittee was adjourned.] 

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