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FROM THE DEPARTMENT OF JUSTICE TO GUANTANAMO BAY: ADMINISTRATION LAWYERS 

AND ADMINISTRATION INTERROGATION RULES 

(PART III) 

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 

JUNE 26, 2008 

Serial No. 110–189 

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 

JUNE 26, 2008 

Page 

OPENING STATEMENTS 

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

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

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

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

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

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

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

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

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

WITNESSES 

Mr. David Addington, Chief of Staff, Vice President of the United States 

Oral Testimony ..................................................................................................... 7 

Mr. John Yoo, Professor, Boalt Hall School of Law, University of California 

at Berkeley 

Oral Testimony ..................................................................................................... 7 

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

Mr. Christopher Schroeder, Charles S. Murphy Professor of Law and Public 

Policy Studies at Duke University 

Oral Testimony ..................................................................................................... 18 

Prepared Statement ............................................................................................. 20 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Exhibits submitted by David Addington, Chief of Staff, Vice President of 

the United States ................................................................................................. 88 

Post-Hearing Questions submitted to David Addington, Chief of Staff, Vice 

President of the United States ............................................................................ 148 

Post-Hearing Questions submitted to John Yoo, Professor, Boalt Hall School 

of Law, University of California at Berkeley ..................................................... 157 

Correspondence between Pilippe Sands, Professor of Laws and Director, Centre for International Courts and Tribunals, and John Yoo, Professor, Boalt 

Hall School of Law, University of California at Berkeley ................................ 165 

(1) 

FROM THE DEPARTMENT OF JUSTICE TO 

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

THURSDAY, JUNE 26, 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 10:12 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Nadler, Davis, Wasserman 

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

Also present: Representative Delahunt. 

Staff present: Sam Sokol, Majority Counsel; David Lachmann, 

Subcommittee Majority Chief of Staff; Caroline Mays, Majority Professional Staff Member; and Paul B. Taylor, Minority Counsel. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. 

Today’s hearing will be the third in our series of hearings on the 

role of Administration lawyers in the formulation of interrogation 

policy. 

I want to say at the outset that the subject matter we are considering today is of utmost importance to the integrity and honor of 

this nation. 

This hearing is very important and it will not be permitted to be 

disrupted by anyone in the audience for any purpose. Anyone who 

is disruptive in any way will be expelled immediately and without 

further proceedings. 

Without objection, the Chair is authorized to declare a recess of 

the hearing, which I hopefully will not have to do, except if there 

are votes on the floor. 

We will now proceed to Members’ opening statements. 

As has been the practice in this Subcommittee, I will recognize 

the Chair and Ranking Members of the Subcommittee and of the 

full Committee to make opening statements. 

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

busy schedules, I would ask that other Members of the Subcommittee submit their statements for the record. 

2 

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, we commence the third in our series of hearings on the 

role of Administration lawyers in the development and implementation of interrogation rules, which have drawn criticism here in 

the United States and around the world. 

I think it does not go too far to say that the reputation of this 

nation and our standing as the leading exponent of human rights 

and human dignity have been besmirched by the policies of this 

Administration. 

Legal memos have been written defining torture out of existence 

and what almost everyone except this Administration regards torture has been inflicted on prisoners. 

Today, we will look at how these policies came into being and 

how they were applied. 

I think I speak for many of my colleagues when I say that the 

more we find about what was done and how it was concerned and 

how it was justified, the more appalled we become. 

These policies have been kept from the Congress and the American people by assertions of secrecy, assorted privileges and flat refusals to disclose what has been done and why, even in classified 

settings. 

As a result, the information that we do know has come out in 

dribs and drabs, often through the press. 

That is unacceptable. 

We live in a democracy composed of three equal branches of government. No one has the right to arrogate to themselves the complete non-checked power of the power state. That simply defeats 

the design of our system of checks and balances, which the founders of this nation crafted to ensure our freedom and protect us from 

the unaccountable monarchy against which we rebelled and to 

which we do not want to return. 

Today, we are joined by two of the architects of those policies, 

one testifying voluntarily and one testifying under subpoena, and 

I hope we will be able to have a free and open discussion of these 

very important questions. 

Clearly, we do not want to reveal classified information in this 

open setting, but neither will we be deterred by expansive and unjustified claims of assorted privileges. 

I would ask that if the witnesses feel the need to invoke a privilege, they do so judiciously and that they provide the specific basis 

for that claim of privilege. 

I look forward to the testimony of our witnesses and I hope we 

can finally begin getting to the bottom of these important questions. 

I yield back the balance of my time. 

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

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

I thank all the panelists who are here with us today. 

3 

Mr. Chairman, as I have said before, the subject of detainee 

treatment has been the subject of over 60 hearings, markups and 

briefings during the last Congress in the House Armed Services 

Committee alone, of which I am a Member. 

And I will say, then, as I have said in this Committee many 

times, torture is banned by various provisions of law, including the 

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

Severe interrogations, by contrast, do not involve torture and 

they are legal. The CIA waterboarded 9/11 mastermind, Khalid 

Sheikh Mohammed, Abu Zubaydah, and Abdul Rahim al-Nashiri. 

The results of these severe interrogations were of immeasurable 

benefits and perhaps saved lives in the American society. 

CIA Director Hayden has said that Mohammed and Zubaydah 

provided roughly 25 percent of the information the CIA had on alQaeda from human sources. 

Even ultraliberal Harvard law professor Alan Dershowitz wrote 

recently in the Wall Street Journal that ‘‘Attorney General 

Mukasey is absolutely correct that the issue of waterboarding cannot be decided in the abstract. The court must examine the nature 

of the governmental interest at stake and then decide on a caseby-case basis. In several cases involving actions at least as severe 

as waterboarding, courts have found no violation of due process.’’ 

And, again, these are Alan Dershowitz’s words, not mine. 

Torture, as I have said, again, should be illegal. But when severe 

interrogation methods that are not torture are contemplated, the 

law requires that their legitimacy be evaluated in context. 

To put some of this in context, it is useful to note that the comments of Jack Goldsmith, who formerly served as the assistant Attorney General with the Office of Legal Counsel, at a November 12, 

2007 discussion at Duke Law School, Jack Goldsmith said the following, ‘‘It is widely thought that the Administration is exaggerating the terrorist threat for public consumption. 

In my experience, the opposite is true. The threat, as the government perceives it, is much more intense, fear-inducing, than the 

government lets on to the public.’’ 

Mr. Goldsmith went on to say of his experience in this Administration, ‘‘I don’t think it is right to characterize it as policymakers 

using the fear of an attack to try to influence the lawyers, because 

everyone understood those stakes, because we were all reading the 

same reports.’’ 

Stuart Taylor has written the following in the National Journal, 

‘‘The CIA had reason to believe that unlocking the secrets in 

Khalid Sheikh Mohammed’s mind might save hundreds of lives, 

perhaps many, many more, in the unlikely, but then conceivable 

event that al-Qaeda was preparing a nuclear or biological attack on 

an American city.’’ 

Mr. Chairman, Mr. Taylor is correct. For example, at a May 6 

Constitutional Subcommittee hearing, I asked the Democrat witness, Marjorie Cohn, president of the National Lawyers Guild, how 

she would write a statute defining how terrorists should be treated 

when they refuse to provide vital information voluntarily. 

And I want to just have us listen to her reply. 

[Begin audio clip.] 

4 

MS. COHN. What kind of statute would I write? I would write a 

statute that says that when you are interrogating a prisoner and 

you want to get information from him, you treat him with kindness, compassion and empathy. You gain his trust. 

You get him to like and trust you and then he will turn over information to you. 

[End audio clip.] 

Mr. FRANKS. Mr. Chairman, I want you to know, as sincerely as 

I can say, that I wish that this lady were correct. I wish it were 

that simple. I wish it could be that way. 

But I would suggest that the statement she made is dangerously 

naive and any successful effort to stop another devastating terrorist attack must necessarily involve a more serious and realistic 

response than that offered by Ms. Cohn. 

And I hope our discussion today rises to a higher level of analysis. It is critical to American national security. 

And, finally, I would like to note that the dangers of moving back 

toward the failed model of treating terrorists like ordinary criminals was made perfectly clear in a recently written article on the 

interrogation of Khalid Sheikh Mohammed. 

The article appeared last Sunday in the New York Times and it 

makes clear how we can expect terrorists to react when they are 

granted the rights of criminal defendants. 

According to the New York Times, Khalid Sheikh Mohammed 

met his captors at first with a cocky defiance, telling one veteran 

CIA officer, a former Pakistan station chief, that he would talk only 

when he got to New York and was assigned a lawyer. 

Of course, this was the experience of his nephew and partner in 

terrorism, Ramzi Yousef, after Yousef’s arrest in 1995. 

Unfortunately, the Supreme Court of the United States has 

taken steps to grant Khalid Sheikh Mohammed’s wish, and I hope 

the Congress does not make the same mistake. 

Before I yield back, I would also like to ask unanimous consent 

that a small set of exhibits provided by Mr. Addington would be entered into the hearing record. 

Mr. NADLER. We would have liked testimony, too, but without objection. 

[The information referred to is available in the Appendix.] 

Mr. FRANKS. Thank you. Thank you, Mr. Chairman. 

I understand Mr. Addington may be referring to some of these 

things during his testimony here today. Electronic copies have been 

made available to Member offices. 

And I thank you for your indulgence, Mr. Chairman. 

Mr. NADLER. Well, you are quite welcome. But what I was referring to was the fact that we normally expect witnesses to submit 

written testimony and Mr. Addington hasn’t done that, but has 

submitted these exhibits 1 through 10, which will be entered into 

the record. 

Before we go on to our next statement, I want to defend the reputation of Mr. Dershowitz against allegations that he is an 

ultraliberal. 

He would not so regard himself and he did write a book recently 

in which he advocated torture through warrant. He is not the best 

witness as to what constitutes torture. 

5 

In any event, we will now recognize the distinguished Chairman 

of the full Committee for 5 minutes, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Nadler, Ranking Member 

Franks, and all of my colleagues here. 

This is an important day. I am so glad to see the witnesses that 

are here. 

Now, I don’t want to begin a dialogue with Trent Franks, because have plenty time for that, but Marjorie Cohn’s response was 

to a question asked by Republicans on the Committee. She didn’t 

come here as a person to give us advice on what we ought to do. 

Someone asked her that and that is what she said. 

I am more interested in what we are going to say in response to 

that question, not to any individual lawyer or individual citizen, 

and where we want to go with another person that was given a 

lawyer in New York. 

I don’t know if that is shocking to anybody. We normally provide 

people that are going to be tried criminally with counsel. That has 

been the custom in the United States for quite a period of time 

now. 

So I just want to thank the Committee, this Judiciary Committee 

I am so proud of, the Constitution Committee in particular, and the 

way we go about making history around these questions. 

Now, we have several points here that will be examined. We 

have reports stating that our witnesses today played a central role 

in drafting Justice Department legal opinions on interrogations. 

Some of those opinions have been withdrawn. But let’s listen to 

Senator Lindsey Graham of the Armed Forces Committee, what he 

said last week about these memos. 

[Begin audio clip.] 

Mr. GRAHAM. What we are trying to do here today is important. 

Now, the guide that was provided during this period of time, I 

think, will go down in history as some of the most irresponsible 

and shortsighted legal analysis ever provided to our nation’s military and intelligence communities. 

[End audio clip.] 

Mr. CONYERS. And he also said that while he thought that Administration lawyers may have had good intentions, but he said 

‘‘they used bizarre legal theories to justify harsh interrogation techniques.’’ 

Now, Mr. Addington, Professor Yoo, I come here to give you the 

benefit of the doubt and we want to hear your side of it. I would 

like to understand how these memos came to be written and why. 

I would like to learn more about your view of the unitary executive 

theory of government in which the President is supposed to be superior to some or all of the laws or wherever that leads. 

I am interested in Professor Yoo’s description of this public debate that he entered into of if the President could order that a suspect’s child be tortured in gruesome fashion and that his response 

was ‘‘I think it depends on why the President thinks he needs to 

do that’’ or is there anything that the President could not order to 

be done to a suspect if he believed it necessary for the national defense. 

And that line of questions are all very important to me. We want 

to understand this and we want to have a fair discussion about it. 

6 

So thank you, Chairman Nadler, for permitting me these opening 

comments. 

Mr. NADLER. I thank the distinguished Chairman. 

I now want to welcome our distinguished panel of witnesses 

today and introduce them. 

David Addington is the chief of staff and former counsel to Vice 

President Dick Cheney. 

Mr. Addington was assistant general counsel to the Central Intelligence Agency from 1981 to 1984. From 1984 to 1987, he was 

counsel for the House Committees on Intelligence and International Relations. 

He served as a staff attorney on the joint U.S. House-Senate 

Committee investigation of the Iran Contra scandal, was an assistant to Congressman and now Vice President Dick Cheney, and was 

one of the principal authors of a controversial minority report 

issued at the conclusion of the Joint Committee’s investigation. 

Mr. Addington was also a special assistant to President Ronald 

Reagan for 1 year in 1987, before becoming President Reagan’s 

deputy assistant. 

From 1989 to 1992, Mr. Addington served as special assistant to 

Mr. Cheney, who was then the secretary of defense, before being 

confirmed as the Department of Defense’s general counsel in 1992. 

From 1993 to 2001, he worked in private practice. Mr. Addington 

is a graduate of the Edmond A. Walsh School of Foreign Service 

at Georgetown University and holds a J.D. from Duke University 

School of Law. 

John Yoo is a professor of law at the University of California at 

Berkeley School of Law, where he has taught since 1993. From 

2001 to 2003, he served as a deputy assistant Attorney General in 

the Office of Legal Counsel of the U.S. Department of Justice. 

He served as general counsel of the U.S. Senate Judiciary Committee from 1995 to 1996. Professor Yoo received his BA summa 

cum laude in American history from Harvard and his J.D. from 

Yale Law School in 1992. 

In law school, he was an articles editor of the law journal. He 

clerked for Judge Lawrence H. Silverman of the U.S. Court of Appeals for the District of Columbia Circuit. 

He joined the Boalt faculty in 1993 and then clerked for Justice 

Clarence Thomas of the U.S. Supreme Court. 

Chris Schroeder is the Charles S. Murphy Professor of Law and 

Public Policy Studies at Duke University. 

He served in the Office of Legal Counsel for 3.5 years, including 

6 months as acting assistant Attorney General in charge of the office. 

He has also served as chief counsel to the Senate Judiciary Committee. He is of counsel to the firm of O’Melveny and Myers, where 

he works primarily on appellate matters. 

He received his BA degree from Princeton University in 1968, a 

master of divinity from Yale University in 1971, and his J.D. degree from the University of California at Berkeley Boalt in 1974, 

where he was editor in chief of the ‘‘California Law Review.’’ 

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

its witnesses. If the witnesses would please stand and raise your 

right hands and take the oath. 

7 

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

knowledge, information and belief? 

Thank you. Let the record reflect that the witnesses answered in 

the affirmative. And you may be seated. 

Without objection, the written statements of the witnesses 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. Assuming it works properly, when 1 minute remains, the light will 

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

are up. 

I will ask the first witness, Mr. Addington is recognized for 5 

minutes for the purpose of an opening statement. 

TESTIMONY OF DAVID ADDINGTON, CHIEF OF STAFF, 

VICE PRESIDENT OF THE UNITED STATES 

Mr. ADDINGTON. Thank you, Mr. Chairman. 

Just three quick points, two of which are technical. 

In the introduction, you mentioned that on the Iran Contra Committee, I was working for Mr. Cheney. I was, in fact, the designee 

of Mr. Brumfield of Michigan in that Committee. 

Second, I think there was a reference, and I don’t remember exactly what you said, but something like being an author or involved 

in the preparation of the minority views in that report. 

I think I had actually left and gone to the White House in the 

Reagan administration before it was written and I really didn’t 

have anything to do, that I recall, with writing the report. 

Lastly and more importantly, Chairman Conyers mentioned he 

wanted to give us the benefit of the doubt, which I appreciate very 

much. He has a long history of being respectful and looking for the 

fact-finding and so forth. 

There is one subject on which I think there is no doubt and I 

thought I would point it out, given that the hallways here are full 

of protests and so forth on the subject, and, that is, I believe everyone on this Committee, and I am certain the three witnesses, want 

to defend this country, protect it from terrorism. 

That is not a partisan issue. There are obviously differences on 

how that is accomplished that we will be discussing today, no 

doubt, but I think everyone has that view in this group. 

Thank you, Mr. Chairman. 

Mr. NADLER. Is that—well, let me say, first, that I suppose I am 

sorry I gave you too much credit for that 1987 or 1988 memo or 

whatever. 

But is that the entirety of your statement? 

Mr. ADDINGTON. Yes. Thank you. I am ready to answer your 

questions. 

Mr. NADLER. Okay. Recognize Professor Yoo for 5 minutes. 

TESTIMONY OF JOHN YOO, PROFESSOR, BOALT HALL SCHOOL 

OF LAW, UNIVERSITY OF CALIFORNIA AT BERKELEY 

Mr. YOO. Thank you, Mr. Chairman. I appreciate the opportunity 

to appear before the Committee. 

8 

I also appreciate Mr. Conyers’ commitment to having an open 

and fair discussion and to clarify things for the public record, and 

I appreciate that very much. 

I presented extensive opening statement to the Committee and 

the text. So I don’t have anything more. I don’t want to waste the 

Committee’s time in reading it. 

So I will just waive the rest of my time, because I provided the 

statement. 

Mr. NADLER. That is rather unusual. You don’t want to summarize the statement? 

Mr. YOO. I don’t need to, unless you would like me to. 

Mr. NADLER. Well, I think it would serve not everyone in this 

room, perhaps not even everyone on this Committee has read your 

statement. 

So why don’t you summarize the key points of it? 

Mr. YOO. Sure. The first thing I just wanted to make clear, in 

response to your comments about privilege, as you know, I have 

been a lawyer in the executive and legislative branches and I have 

received instructions from the Department of Justice about exactly 

what kinds of things I am allowed to talk about and which I cannot. 

I provided a text of that e-mail to the Committee. I just want to 

make clear, I have every desire to help the Committee, but I also 

have a professional obligation to the Department of Justice to obey 

their instructions. 

I, myself, don’t have the authority to resolve any conflict that you 

as a Committee might have with them. 

As a former staff member for the Senate Judiciary Committee, 

I would never, of course, share conversations I had with the Member I worked for either. And so I understand that there could be 

conflict between the Committee and the—— 

Mr. NADLER. Let me just say, as I said at the outset, we understand that there are legitimate privileges and all we ask is that if 

any one of the witnesses asserts a privilege, you do so judiciously 

and you assert—you state, rather, the exact grounds for the assertion of the privilege. 

And now, please summary, if you want to, your statement. 

Mr. YOO. Yes. I just wanted to make it clear when we start at 

the beginning. 

Mr. NADLER. Fine. 

Mr. YOO. Just a few points. 

One point I would just like to make clear is that we are talking 

about events that happened 6 to 7 years ago and I think it is important to remember the context within which these questions 

arose. 

Some of the events occurred no more than 6 months after the 9/ 

11 attacks, in which 3,000 of our fellow citizens were killed. 

I know, having worked in the government at that time and dealt 

with the Congress, that Members of both branches were very concerned that there would be follow-up attacks by al-Qaeda, which is 

one of their trademarks. 

I believe we in the Justice Department, in examining these questions, did the best we could under the circumstances to call the 

9 

legal questions as best we could with the materials that we had 

available under those circumstances. 

I want to make clear, and I don’t think anyone in the department 

would make any claim of infallibility about our legal judgments. 

These are very difficult legal questions. I think they are the hardest questions that a government lawyer can face. 

I openly accept that reasonable people can differ in good faith 

about their answer to these questions. 

One last thing I want to make clear is also that we were functioning as lawyers. We don’t make policy. Policy choices in these 

matters were up to the National Security Council or the White 

House or the Department of Defense. 

Our job was to provide legal advice about the meanings of different Federal laws, but our job wasn’t to—I am sorry. As lawyers, 

it wasn’t our purpose and we were not in the business of choosing 

amongst different policy options. 

Let me say, though, and, for that matter, in response to these 

questions about privilege and so on, I can’t provide any information 

to the Committee about why different policy choices were made, because we weren’t privy to those decisions. 

I do think, though, and I will close here, that as someone who 

has seen the results of those policies, to the extent they have been 

publicly disclosed by the head of the intelligence agencies and the 

President, I think that those policies have successfully provided information to the government that have allowed this country to prevent terrorist attacks by al-Qaeda on our homeland. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Yoo follows:] 

10 

PREPARED STATEMENT OF JOHN YOO


Yoo-1.eps
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Yoo-2.eps
12 


Yoo-3.eps
13 


Yoo-4.eps
14 


Yoo-5.eps
15 


Yoo-6.eps
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Yoo-7.eps
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Yoo-8.eps
18 

Mr. NADLER. I thank the witness. 

Now recognized for 5 minutes for an opening statement, Professor Schroeder. 

TESTIMONY OF CHRISTOPHER SCHROEDER, CHARLES S. MURPHY PROFESSOR OF LAW AND PUBLIC POLICY STUDIES AT 

DUKE UNIVERSITY 

Mr. SCHROEDER. Thank you, Chairman Nadler. 

Mr. NADLER. Use your mic, please. 

Mr. SCHROEDER. Thank you, Chairman Nadler and Mr. Franks 

and Mr. Chairman. It is a privilege to be here today. 

I am not here to question anyone’s good faith, either my two colleagues here before us today or anyone else who worked in the Administration under what were extraordinarily difficult circumstances. 

We are all eager in providing the country the best and most effective defense against any additional attacks. 

At the same time, it has become clear, as events have unfolded 

and been revealed, that events have taken place with respect to 

how detainees have been treated, with respect to how military commissions have been established and their procedures with respect 

to how surveillance activities have been undertaken by the National Security Agency, that we find out, as events unfold, that behind each of these occurrences, these policy decisions, there has frequently been a substantial legal analysis from the Office of Legal 

Counsel. 

And I have to say, reluctantly, that I think a number of these 

analyses have serious mistakes in them. And so I think it is important to look back in an effort so that going forward, we can establish methods whereby the President will be getting the best legal 

advice in good times, as well as bad, and to do that to the extent 

that it is humanly possible. 

So I would just make three points about the memorandum, and 

this is mildly repetitive of my prepared statement, which you have, 

but just let me emphasize three points. 

One I think the memoranda reflect, starkly reflect an extreme 

view of absolute and uncontrollable presidential power that has 

been pursued by this Administration, not without dissent among 

the lawyers inside the Justice Department and other places, but it 

seems that those dissenting voices don’t remain around for very 

long and that the prevailing view has been one in which the President is purported to have almost un-definable limits on the power 

that he apparently is entitled to exercise as commander in chief to 

control the conduct and operations of a war. 

Now, this power, if it is applied to the war on terror, is breathtaking in its scope, because the President, first, has warned us, and 

I think it is plausible to believe, that the war on terror is going to 

be going on for a long time. 

Secondly, we have defined, as we ought to, that the battlefield of 

this war on terror includes the United States, as much as Iraq or 

Afghanistan. 

And, third, the tactical strategic decisions about how to go after 

terrorists, about how to interrogate them once you have detained 

them, about whether they can be detained for some period of time 

19 

or have to be put on trial, if they are tried, what the conditions of 

those trials ought to be, are enormous authorities. 

And for the President to assert that in each and every of these 

respects affecting American citizens, as well as foreign nationals, 

as well as aliens who have never set foot in this country, that the 

President has unilateral and unreviewable authority, even to disobey the criminal statutes that the Congress has passed and a 

President has ratified, is a position that is far outside the mainstream of jurisprudence in this country, of what the Supreme Court 

has held, and, indeed, what prior Presidents have asserted. 

The second point I want to say is this is not a criticism that has 

been raised simply by President Bush’s political opponents or by 

liberal law professors. 

Jack Goldsmith is a staunch Republican. When he came into the 

Office of Legal Counsel and reviewed some of these memos, he 

called them ‘‘deeply flawed, sloppily reasoned, and overbroad.’’ 

When the Attorney General, the acting Attorney General, Mr. 

Goldsmith, the director of the FBI were confronted with the national security surveillance program, they refused to reauthorize it. 

They refused to agree with the analysis that had been done earlier that purported to find that this was also something within the 

President’s constitutional authority, and our understanding is that 

they and perhaps several other high ranking officials in the Justice 

Department threatened to resign over this legal analysis. 

You have Mr. Goldsmith telling a story in his book of needing to 

review and eventually to revise or reauthorize, under quite different legal analyses, what he calls ‘‘a small stack’’ of these memoranda. 

So this is not just outsiders carping at the President. This is reflective, I think, of a deeply flawed view of the jurisprudence that 

ought to be applied in understanding both the strengths and the 

limits of what the President can do in the face of statutory prohibitions. 

And the last point I will mention is just with respect to how 

these memos have been put together. 

In my testimony, I express some concerns that they don’t seem 

to have followed internally in the Office of Legal Counsel the good 

practices that the office has tried to pursue over the years. 

Mr. Yoo supplied some information and some more details, which 

I am glad to have received, in his prepared testimony. I think they 

still leave a number of questions, in my mind, that would be worth 

pursuing, but I see my red light is on and I will stop at this point 

and perhaps be able to say more in response to some of your questions. 

Thank you. 

[The prepared statement of Mr. Schroeder follows:] 

20 

PREPARED STATEMENT OF CHRISTOPHER H. SCHROEDER


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Mr. NADLER. Thank you. I thank the witnesses for their statements. 

And we will now go to the questioning. As we ask questions of 

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

their seniority on the Subcommittee, alternating between majority 

and minority, provided 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 inform the Members of the Subcommittee that we do anticipate having more than one round of questioning. 

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

witnesses. 

Mr. Addington, It has been reported in several books and in the 

The Washington Post that you contributed to the analysis or assisted in the drafting of the August 1, 2002 interrogation memo 

signed by Jay Bibey. 

Is this correct? 

Mr. ADDINGTON. No. 

Mr. NADLER. You had nothing to do with that. 

Mr. ADDINGTON. No. I didn’t say I had nothing to do with it. You 

asked if I assisted in contribution, and let me read to you something I think will be helpful to you. 

This is an excerpt from the book that I recommend that all of 

you—— 

Mr. NADLER. Make it briefly, because I have a number of questions. 

Mr. ADDINGTON. I will make it very brief. ‘‘War by Other Means’’ 

by Professor Yoo, page 33, two sentences to read. ‘‘Various media 

reports claim that his influence,’’ I am the ‘‘his,’’ ‘‘was so outsized, 

he even had a hand in drafting Justice Department legal opinions 

in the war on terrorism. As the drafter of many of those opinions, 

I,’’ Professor Yoo, ‘‘find this claim so erroneous as to be laughable, 

but it does show how wrong the press can get the basic facts.’’ 

Same book, page 169—— 

Mr. NADLER. Wait a minute. Mr. Addington, please, we don’t 

need all these quotes. 

Mr. ADDINGTON. Okay. 

Mr. NADLER. Just tell us what your role was, if you can. 

Mr. ADDINGTON. Yes, I will. 

Mr. NADLER. Because you said it wasn’t nonexistant but you 

didn’t help shape it. So what was it? 

Mr. ADDINGTON. Mr. Chairman, my recollection, first of all, I 

would be interested in seeing the document you are questioning me 

about. I think you are talking about a document of August 2002. 

Mr. NADLER. Yes. 

Mr. ADDINGTON. It would be useful to have that in front of me 

so I can make sure that what I am remembering relates to the document you have and not a lot of other legal opinions I looked at. 

But assuming you and I are talking about the same opinion, my 

memory is of Professor Yoo coming over to see the counsel of the 

38 

President and I was invited in the meeting, with the three of us, 

and he gave us an outline of here are the subjects I am going to 

address. 

And I remember, when he was done, saying, ‘‘Here are the subjects I am going to address,’’ saying, ‘‘Good,’’ and he goes off and 

writes the opinion. 

Now, in the course of my work—thank you. You have a copy of 

it? Thanks. Let me just look at it. I will give it back to you. 

It is August 1, 2002, memorandum for Alberto Gonzales, counsel 

of the President, re: standards of conduct for interrogation under 

18 USC Sections 2340 and 2340(a). 

I believe that this is the result of the process I was just describing where he came over and said, ‘‘These are the subjects I am 

going to address,’’ and we said, ‘‘Good.’’ 

Now, there is one thing worth pointing out in there in defense 

of Mr. Yoo, who, as any good attorney would, has, I presume, not 

felt free to explain and defend himself on the point. 

I can do this in my capacity essentially as the client on this opinion. It was later said about this opinion, ‘‘It unnecessarily addressed constitutional issues, defenses that could be raised.’’ 

You don’t want to hear that, Mr. Chairman? 

Mr. NADLER. Not right now, because I have a number of questions and we are running out the clock. 

Mr. ADDINGTON. Please, go ahead. 

Mr. NADLER. The Washington Post reported that, ‘‘The vice president’s lawyer,’’ referring to you, I believe, ‘‘advocated what was considered the memo’s most radical claim that the President may authorize any interrogation method, even if it crosses the line into 

torture.’’ 

Is that accurate? 

Mr. ADDINGTON. That The Washington Post said that? 

Mr. NADLER. No, not that The Washington Post said it. Is The 

Washington Post correct in saying that? 

Mr. ADDINGTON. Could you repeat it? I have to listen closely before I answer. 

Mr. NADLER. That you advocated what was considered the 

memo’s most radical claim that the President may authorize any 

interrogation method, even if it crosses the line into torture. 

Mr. ADDINGTON. No, I don’t believe I did advocate that. What I 

said was, in the meeting we had with Mr. Gonzales and Mr. Yoo 

and me present, Mr. Yoo ran through ‘‘here are the topics I am 

going to be addressing,’’ one of which is the constitutional authority 

of the President, separate from issues of statutes. 

My answer is, ‘‘Good, I am glad you are addressing these issues.’’ 

Mr. NADLER. So in other words, you didn’t advocate any position. 

You simply said, ‘‘I am glad you are going over these topics.’’ 

Mr. ADDINGTON. Correct. 

Mr. NADLER. Okay. Now, do you believe that the President can 

order violations of the Federal torture statute if he believes it necessary for national security under his Article 2 or any other powers? 

Mr. ADDINGTON. I will answer that carefully, because although, 

in common conversation, we are used to using words like ‘‘torture’’ 

39 

and meaning a common conversation, what we are talking about 

are laws here. 

The Federal statute which implements a—— 

Mr. NADLER. Let me just read now the question. Do you believe 

the President can order violations of a Federal statute if he believes it necessary for the national security? 

Mr. ADDINGTON. As a general proposition, no. I qualify that is a 

general proposition because I think we all agree, in fact, there was 

testimony here and I think some of the Members of this Committee 

agreed that facts matter for lawyers in rendering opinions, and I 

wouldn’t render a legal opinion in the absence—I wouldn’t render 

one to the Committee—— 

Mr. NADLER. When do you believe that the President is justified 

in violating a statute? 

Mr. ADDINGTON. You are assuming a fact not in evidence. I didn’t 

say I did believe that. 

Mr. NADLER. You said under certain circumstances. 

Mr. ADDINGTON. No. I said reserving the fact that you need to 

have facts in order to render legal opinions. 

Mr. NADLER. Are there any—— 

Mr. ADDINGTON. And as I said—— 

Mr. NADLER. Excuse me. Is there any set of facts—— 

Mr. ADDINGTON. I won’t render a legal opinion. 

Mr. NADLER. Is there any set of facts that would justify the 

President in violating a statute? 

Mr. ADDINGTON. I am not going to answer. A legal opinion on 

every imaginable set of facts, any human being could think of, Mr. 

Chairman. 

Mr. NADLER. Do you believe that the torture of—torture, never 

mind how you define it, assume it is torture, do you believe that 

torture of a restrained detainee could be allowed under a theory of 

self-defense and necessity? 

Mr. ADDINGTON. I haven’t expressed an opinion on that, Mr. 

Chairman. 

Mr. NADLER. You have not expressed an opinion. 

Do you have such an opinion? 

Mr. ADDINGTON. I haven’t researched the issue myself. I have relied on opinions on the subject issued by the Department of Justice. 

Mr. NADLER. But you did express the opinion, I believe, that the 

President could—or that his Article 2 powers as commander in 

chief, in effect, allowed him to take actions which the FISA statute 

would prohibit. Is that correct? 

Mr. ADDINGTON. I don’t believe I have expressed those here. I 

think there is a serious question, constitutional questions raised to 

the extent Congress, instead of carrying into—helping bypassing 

statutes to carry into execution the President’s power would instead try to block the President’s power. 

There are court cases at the circuit level, not at the Supreme 

Court level, and, also, the foreign intelligence surveillance quarter 

review that refer to the President’s commander in chief powers 

as—— 

Mr. NADLER. Let me ask you one further question. 

40 

Mr. KING. Mr. Chairman? I would ask unanimous consent to 

grant the Chairman an additional minute to complete his questioning. 

Mr. NADLER. Thank you. Without objection. 

Mr. Addington, Mr. Yoo, Professor Yoo is quoted as saying that 

under certain circumstances, it would be proper and legal to torture a detainee’s child to get necessary information. 

Do you agree with that? 

Mr. ADDINGTON. I don’t agree or disagree with it, Mr. Chairman. 

I don’t plan to address it. You are seeking legal opinion and, as we 

told you in Exhibit 4, I am not here to render legal advice to your 

Committee. You do have attorneys of your own to give you legal advice. 

Mr. NADLER. Let me ask Mr. Yoo one opinion—one question. In 

your memo, Professor Yoo, you talked about, the memo that has 

been quoted repeatedly from August—the Bibey memo which you 

helped prepare—that severe pain, as used in the Federal statute, 

prohibiting torture, must rise to the level that would ordinarily be 

associated with a sufficiently serious physical condition such as 

death, organ failure or serious impairment of body functions. 

Where did you get that from? I mean, I know that that language 

is in a different statute. 

But where did you derive that that is what torture means under 

the Federal statute? 

Mr. YOO. Mr. Chairman, you are referring to the August 1, 2002 

memo. 

Mr. NADLER. Yes. 

Mr. YOO. Not the March 2003. 

Mr. NADLER. Yes. 

Mr. YOO. Again, I want to say—your question is where did it 

come from. 

Mr. NADLER. No. How did you reach that conclusion? You made 

a very specific statement that this is what—in order to violate the 

statute, it has got to meet this criterion. 

Mr. YOO. Yes. 

Mr. NADLER. Where did you get that criterion from? 

Mr. YOO. So let me make clear, when Congress passed that statute, there is no further definition of that phrase in the statute 

itself. 

We looked at the legislative history. There was no legislative history from the time of the passage of the statute that produced any 

kind of definition. 

There was no—the United States Justice Department had never 

brought a prosecution under this statute. There had been no judicial decisions of that language. 

So we applied, I think, as the memo says, a can of construction 

to try to find anywhere else in the U.S. Code where Congress, 

where you have defined those terms in any other kind of statute. 

And as the opinion says, and the 2003 opinion also says, we recognize that that statute was on a subject that was different than 

the torture statute, but we used a can of construction to try to infer 

from what Congress has passed in other contexts to see if it can 

provide some help to us in trying to interpret what I think is—I 

think then, I think now is a very difficult statutory language, beVerDate Aug 31 2005 14:24 Mar 26, 2009 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6601 H:\WORK\CONST\062608\43152.000 HJUD1 PsN: 43152
41 

cause there was no further judicial interpretation or congressional 

guidance. 

Mr. NADLER. Thank you. 

The time of the Chairman has expired. 

I will now recognize the distinguished Ranking Member on this 

Subcommittee, Mr. Franks. 

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

And thank you, Mr. Addington, Mr. Yoo and Mr. Schroeder, for 

appearing here. 

Is it Mr. Schroeder or Mr. Schroeder? 

Mr. SCHROEDER. Half of my family says Schroeder, the other half 

says Schroeder. You can take your pick. 

Mr. FRANKS. I will stick with your family on this one. 

Professor, are you familiar with the report of the 9/11 commission? 

Mr. SCHROEDER. Yes, I am. 

Mr. FRANKS. According to page 132 of that report, in December 

1998, the Clinton administration, Justice Department, issued a 

legal opinion authorizing the assassination of Osama Bin Laden on 

the apparent ground that he was waging war on the United States 

and that assassinating him would be self-defense, not murder. 

Incidentally, I think assassinating him might have interfered 

with some of his major bodily functions. I am just positing an opinion there. 

Do you believe that this is one of the implausible theories of defenses to criminal statutes that you decry on page 3 of your prepared testimony? 

Mr. SCHROEDER. Well, Mr. Franks, I haven’t reviewed either that 

opinion or the Committee report. I do believe that if we are talking 

about the formulation of the defense of self-defense a necessity as 

it appears in the August 2002 memorandum, that, yes, that is—the 

way those defenses are articulated there are among the pieces of 

legal reasoning in that memo that I think are far-fetched. 

And I am surprised actually to read in Professor Yoo’s testimony 

that he says the criminal division reviewed the memo. He doesn’t 

say the criminal division approved of the contents of the memo, 

and I would be surprised if they did. 

I would be interested in knowing. And by they, I mean not only 

the political appointees, but the career professionals in the Justice 

Department, and I say that because, in my, experience, the prosecutors in the criminal division labor mightily to keep those defenses as narrow as possible, as you can imagine, since they are in 

the business of prosecuting criminals. 

And, in fact, in 2001, the Supreme Court had just recently decided a case that the government argued, in which the government 

argued that unless the defense of necessity was explicitly stated in 

a Federal statute, it wasn’t available to a defendant in opposing—— 

Mr. FRANKS. Thank you, Mr. Schroeder. 

Mr. SCHROEDER [continuing]. A conviction under a Federal statute. 

So it surprises me to learn that the criminal division was part 

of this process, and yet nothing about their—what I think the full 

range of their views would be on self-defense and that—— 

42 

Mr. FRANKS. Professor, thank—— 

Mr. SCHROEDER [continuing]. Have revealed in the memo. 

Mr. FRANKS. Thank you. 

It does appear a little interesting to me that the Clinton Justice 

Department can issue a memo saying that assassinating someone 

is a self-defense of the country, but now we are debating today 

whether waterboarding someone like Khalid Sheikh Mohammed to 

save perhaps thousands of American lives here is the big question. 

Mr. Yoo, let me read part of an interview that you had with Esquire magazine. In that interview, you discussed the need for precise legal guidance when you help draft legal opinions at the Office 

of Legal Counsel (OLC). 

And incidentally, I think this is very well stated. ‘‘The other 

thing I was quite conscious of was that I didn’t want the opinion 

to be vague so that people who actually have to carry out these 

things don’t have a clear line, because I think that would be very 

damaging and unfair to the people who are asked actually to do 

these things.’’ 

Do you have any elaboration on that? 

Mr. YOO. Mr. Franks, I think the interview speaks for itself, but 

let me just say, now, not putting myself in the position back then, 

but now, I think when you are called on to interpret a statute 

which provides language which Congress hasn’t otherwise defined 

and the courts haven’t otherwise defined, that it is important to 

give the client, the people who have to undertake action very clear 

definition, the best we can do, of what those terms mean. 

Mr. FRANKS. Well, I think that is what you tried to do, Mr. Yoo. 

Mr. Chairman, I would just say, try as they might, the majority 

should not be spinning matters of life and death into a soap opera. 

The fact remains that the special terrorist interrogations program was approved through a normal process for classified covert 

operations. It was disclosed to Speaker Pelosi. She did not object 

at the time. 

It was rarely used and it was immensely successful in preventing 

future terrorist attacks. 

Mr. Addington, is there anything that you would like to add 

here? 

Mr. ADDINGTON. Just one brief point. Professor Schroeder mentioned that it was unnecessary or even not a good idea that Mr. 

Yoo’s opinion of—excuse me—Mr. Bibey’s opinion of August 1, 2002 

addressed the defenses of necessity and justification and I think 

the constitutional issue. 

In defense of Mr. Yoo, I would simply like to point out that is 

what his client asked him to do. So it is the professional obligation 

of the attorney to render the advice on the subjects that the client 

wants advice on. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Mr. NADLER. I will now recognize the distinguished Chairman of 

the full Committee, Mr. Conyers. 

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

Professor Yoo, I appreciate your appearance here today. 

During a public debate, it was reported you were asked if the 

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43 

some fashion, and you responded that ‘‘I think it depends on why 

the President thinks he needs to do that.’’ 

Is that accurate? 

Mr. YOO. Mr. Chairman, I don’t believe it is accurate, because it 

took what I said out of context. 

The quote stopped right before I continued to explain a number 

of things, which I appreciate the opportunity to do now. 

Mr. CONYERS. But so far, what I read was accurate, but there 

was more. 

Mr. YOO. It stops like mid-sentence. So I didn’t get to finish— 

I mean, I finished the sentence during the debate, but I didn’t—— 

Mr. CONYERS. Okay. 

Mr. YOO [continuing]. Get a chance to—— 

Mr. CONYERS. Thank you. 

Is there anything, Professor Yoo, that the President could not 

order to be done to a suspect if he believed it necessary for national 

defense? 

Mr. YOO. Mr. Chairman, I think that goes back to the quote you 

just read, because—— 

Mr. CONYERS. No. I am just asking you the question. Maybe it 

does or doesn’t, but what do you think? 

Mr. YOO. I think it is the same question that I was asked—— 

Mr. CONYERS. Well, what is the answer? 

Mr. YOO. First, can I make clear, I am not talking about—— 

Mr. CONYERS. You don’t have to make anything clear. Just answer the question, counsel. 

Mr. YOO. I just want to make sure I am not saying anything—— 

Mr. CONYERS. You don’t have to worry about not saying—just answer the question. 

Mr. YOO. Okay. My thinking right now—— 

Mr. CONYERS. Yes, right now. 

Mr. YOO. My thinking right now—— 

Mr. CONYERS. This moment. 

Mr. YOO. This moment, Mr. Chairman, is that, first, the question 

you are posing—— 

Mr. CONYERS. What is the answer? 

Mr. YOO. Mr. Chairman, I am not trying to make you—— 

Mr. CONYERS. I get it, okay. 

Mr. YOO. Let me answer—I will answer the question. 

Mr. CONYERS. No. You are wasting my time. Look, counsel, we 

have all practiced law. 

Mr. YOO. I don’t think the President—— 

Mr. CONYERS. Hold it. Could the President order a suspect buried alive? 

Mr. YOO. Mr. Chairman, I don’t think that I have ever—— 

Mr. CONYERS. I am asking you that. 

Mr. YOO [continuing]. Given the advice that the President could 

bury somebody alive. 

Mr. CONYERS. I didn’t ask you if you ever gave him advice. I 

asked you, do you think the President could order a suspect buried 

alive. 

Mr. YOO. Mr. Chairman, my view right now is that I don’t think 

a President would—no American President would ever have to 

order that or feel it necessary to order that. 

44 

Mr. CONYERS. I think we understand the games that are being 

played. 

Okay. Now, let me turn to Attorney Addington about the ABC 

News report that there was a so-called principals meeting in which 

Vice President Cheney sat around with other cabinet level officials 

to approve specific interrogation techniques. 

Is this true? 

Mr. ADDINGTON. I don’t know of any such meeting, Mr. Chairman. It doesn’t mean one did or didn’t occur. I certainly wasn’t at 

one. 

Mr. CONYERS. None. 

Mr. ADDINGTON. I was not at a meeting that fits the description 

you have given. 

Mr. CONYERS. Right. Do you feel that the unitary theory of the 

executive allows the President to do things over and above the stated law of the land? 

Mr. ADDINGTON. The Constitution binds all of us, Congressman, 

the President, all of you as Members of Congress, all of the Federal 

judges. We all take an oath to support and defend it. 

I, frankly, don’t know what you mean by unitary theory of government. I don’t have—— 

Mr. CONYERS. Have you ever heard of that theory before? 

Mr. ADDINGTON. Oh, I have. I have seen it in the newspapers 

all—— 

Mr. CONYERS. Do you support it? 

Mr. ADDINGTON. I don’t know what it is. 

Mr. CONYERS. You don’t know what it is. 

Mr. ADDINGTON. No, and it is always described as something 

Addington is a great advocator of. 

Mr. CONYERS. I see. 

Mr. ADDINGTON. Now, let me tell you where I have used the word 

‘‘unitary,’’ in quoting OLC opinions, in drafting signing statements, 

and you will find OLC opinions that refer to the unitary executive 

branch. 

And by that, they simply mean—— 

Mr. CONYERS. I don’t need you to interpret to me what other people have used. 

Mr. ADDINGTON. No. I am answering your question. 

Mr. CONYERS. You are telling me—— 

Mr. ADDINGTON. I have used the word—— 

Mr. CONYERS [continuing]. You don’t know what the unitary theory means. 

Mr. ADDINGTON. I don’t know what you mean by it, no, Mr. 

Chairman. 

Mr. CONYERS. You don’t know what I mean by it. 

Mr. ADDINGTON. Or anyone else. 

Mr. CONYERS. Do you know what you mean by it? 

Mr. ADDINGTON. I know exactly what I mean by it and—— 

Mr. CONYERS. So what do you mean? 

Mr. ADDINGTON [continuing]. Sentences. 

Mr. CONYERS. Tell me. 

Mr. ADDINGTON. The use of the word ‘‘unitary’’ by me has been 

in the context of unitary executive branch and all that refers to 

is—I think it is the first sentence of Article 2 of the Constitution, 

45 

which says all of the executive power is vested in, A, the President 

of the United States, one President, all of the executive power, not 

some of it, not part of it, not the parts Congress doesn’t want to 

exercise itself. 

That is all it refers to. 

Mr. CONYERS. Thank you very much. 

Mr. ADDINGTON. Yes, sir. 

Mr. NADLER. The gentleman from Iowa is recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. And perhaps I would quote 

the Chairman of the full Committee and we could take the temperature down in here just a little bit, and I have always found the 

Chairman to be a gentleman and I point that out to the witnesses 

today. 

Mr. ADDINGTON. I do, too, sir. Chairman Conyers has a long and 

distinguished history. 

Mr. KING. That is a unanimous opinion on the Judiciary Committee, I believe. 

I wanted to take you back, Mr. Addington, and just simply give 

you a little latitude to express yourself here. 

The book, ‘‘Torture Team’’ by Philippe Sands, which has been 

quoted here a number of times and seems to be the source of the 

criticism, refuted by at least two of the witnesses here at the panel 

today, and I would ask—what do you have to say about the credibility of the information that is in that book and without necessarily impugning the author, if that can be done? 

Mr. ADDINGTON. Yes. I have read the book. I can’t, of course, as 

a witness who is under oath, address every word on every page in 

the book. There are things in there, as I recall from reading it, that 

were accurate and there were things in there that weren’t. 

Mr. KING. And, Professor Yoo, the same question. 

Mr. YOO. Sir, I haven’t read the book. I did read Mr. Sands’ testimony before this Committee and I noticed in the testimony he said 

that he had interviewed me for the book, and I can say that he did 

not interview me for the book. 

He asked me for an interview and I declined. So I didn’t quite 

understand why he would tell the Committee that he had actually 

interviewed me. 

Mr. KING. And with that answer, Professor Yoo, then, I am going 

to interpret that to mean that at least with regard to that statement that he had interviewed you, you find that to be a false statement and that would perhaps reflect on the veracity of the balance 

of the book. 

Mr. YOO. I can’t tell what else is in the book, but I don’t understand why he would say that he interviewed me for the book. 

I can tell the Committee that he contacted me once. He wanted 

an interview for the book and I said, ‘‘I don’t want to talk to you. 

I wrote my own book. You can look at my own book. Everything 

I have to say is in my book. 

And then he told the Committee that he had interviewed me. 

Mr. KING. Thank you, Professor Yoo. 

Let me just take this a little bit a different way. And we are 

here, the Constitution Subcommittee of the House Judiciary Committee, reviewing apparently the process by which the AdministraVerDate Aug 31 2005 14:24 Mar 26, 2009 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 H:\WORK\CONST\062608\43152.000 HJUD1 PsN: 43152
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tion reached a conclusion which seems to be a little bit amorphous 

at this point. 

And it is still in the middle of a war, trying to put it within the 

context of 2008 rather than the context of 2001, with the smoking 

hole at ground zero, still a smoking hole, with the reconstruction 

of the Pentagon not perhaps yet begun, and an entirely different 

environment. 

And I would make this point, that without regard to constitutionality or statute with regard to torture, there was a different environment and a different context with which the President had to 

make decisions. 

And I am, I believe, reliably informed that the President has 

taken the position consistently that prisoners will be treated humanely. Now, that definition of humane may be up for question. 

But within this context, it is a similar context with which we 

went into liberate Iraq. And I will make this point, that had the 

President not taken action, if the President had said we are going 

to make sure that we treat every prisoner with the idea, the advice 

that the Ranking Member of the Committee put up on the screen 

at the beginning of—during his opening statement, we are going to 

make friends with them and cuddle up to them and gain their trust 

and then we will find out everything we need to know and we can 

surely rely on somebody we are nice to tell us the truth. 

If the President had taken that approach, that the President had 

also taken the approach that in spite of the global evidence, the 

global intelligence evidence that weapons of mass destruction that 

Iraq had, if he had either said ‘‘I don’t believe that that exists’’ and 

if we do send troops, they are going to go in without, let’s just say, 

weapons against chemical weapons or without defense against 

chemical weapons of mass destruction, the President had 

misstepped anywhere along the way and misinterpreted that very 

cautionary evidence that was out there, and we had been attacked 

again by the terrorists, which we have not effectively been so on 

this soil since September 11, 2001, any little trip along the way 

would have been turned back on him as having either not taken 

action against weapons of mass destruction in Iraq or not extracting the intelligence that was necessary to protect the American 

people from a terrorist attack. 

If he had been soft on this, the President might well be brought 

before this Committee or at least as the subject of the Committee. 

We might have seen another series of hearings like we saw in this 

same room in 1998 if the President hadn’t taken action. 

And I would ask, Mr. Addington, if you would care to characterize this within the context of the circumstances during the time 

that is at question here today. 

Mr. ADDINGTON. Yes, Mr. Chairman. 

I am careful in doing so because of the point I made at the outset, that everyone here, I recognize, wants to defend the United 

States of America and their constituents from attack. 

Chairman Nadler, for example, lost several thousand in his district. I mean, he had the twin towers in his district. So I don’t want 

to appear to be lecturing on ‘‘I care more about protecting Americans than you do,’’ and I don’t and I know you don’t either, Mr. 

Franks, want to be seen that way. 

47 

I am sorry, Mr. King. 

Mr. KING. Thank you. 

Mr. ADDINGTON. We looked—I looked, I should say, through basically three filters as we considered these kinds of issues back, as 

you say, when they were still smoking, the twin towers and the 

Pentagon. 

The first filter in deciding what we have to do is support and defend the Constitution of the United States. We all have to start 

there. Every one of us, Members of Congress, me, everybody in the 

executive branch takes the same oath. 

We have to take the oath to support and defend. The President 

has a different oath, but the rest of us all took the oath to support 

and defend the Constitution. 

The second filter you look through in deciding how are we going 

to approach these issues, at least I did, was how, within the law, 

I emphasize that, within the law, I help maximize the President’s 

options in dealing with it. 

The third filter is when you go to war, you ask a lot of people 

to do very tough things. On this Committee, I know there are some 

veterans. Chairman Conyers I know served in the Korean War era 

and there are others who served. 

You ask people to do—young men to do tough things, young 

women to do tough things in wartime. Same with our intelligence 

agents. You want to make sure that whatever orders they are 

given, they are legally protected. 

You don’t want to find out later somebody things, ‘‘Oh, let’s investigate that, maybe they are wrong.’’ You want to be careful 

about it. 

So everything we did in that era, at least that is what I carried 

in my head to measure recommendations or legal advice as they 

were going through. 

Now, the one thing I would add to what you said, Mr. King, is 

things were different back then. The smoke is still rising. It was 

fresh in our memories that 3,000 Americans were just killed by alQaeda terrorists, and that is true. 

Things are not as different today as people seem to think. We are 

dealing with intelligence on threats every day. We have to consider 

these things. 

Now, there can be legitimate judgments and disputes, and this 

Committee has had them and they go on throughout the government about what combination of activities should deal with these 

sorts of things. 

But no American should think we are free, the war is over, alQaeda is not coming and they are not interested in getting us, because that is wrong. 

Mr. KING. Thank you, Mr. Addington and all the witnesses. 

Mr. Chairman, I yield back. 

Mr. NADLER. I thank the gentleman. 

I now recognize, for 5 minutes, the gentleman from Alabama. 

Mr. DAVIS. Thank you, Mr. Chairman. 

Gentlemen, thank you for coming today. 

Mr. Yoo, I have not read your book, but I did do you the courtesy 

of reading your opening statement and I want to have some conversation with you about it. 

48 

In your opening statement, your written statement, you make 

the observation that it was your analysis, 2001-2002, rather, that 

the anti-torture statute passed by Congress in the 1990’s, the interpretation of that statute would depend, as you put it, ‘‘not just on 

the particular interrogation method, but on the subject’s mental 

and physical condition.’’ 

I interpret your observations as meaning that the test of torture 

is, in part, a subjective standard, that one has to do an inquiry into 

what you describe as the subject’s physical and mental condition. 

Now, in response to Chairman Conyers’ questions, you said that 

that interpretation did not come from legislative history, because 

there was very little. You said it did not come from reviewing judicial opinions, because there were none. 

And your phrase today was that there was very little—there was 

no congressional guidance—no congressional guidance. 

One good source of congressional guidance is Members of Congress. So I would ask you if you or, in your knowledge, anyone else 

in the Administration consulted, for example, the Chairman of the 

House Judiciary Committee, Mr. Sensenbrenner at that time, or 

other Republicans about the meaning of the anti-torture statute? 

Mr. YOO. Mr. Davis, thanks for the—— 

Mr. DAVIS. That is a simple question. Was Mr. Sensenbrenner 

consulted? 

Mr. YOO. First, I just want to correct one thing I said that you 

quoted, just to be clear here. 

There are judicial opinions on a related statute called the torture—— 

Mr. DAVIS. I understand that. Was Mr. Sensenbrenner consulted? 

Mr. YOO. I would not know one way or the other. 

Mr. DAVIS. Mr. Addington, do you know if Mr. Sensenbrenner 

was consulted? That is a simple was he or wasn’t he. 

Mr. ADDINGTON. I did not consult him and I do not know whether anyone else did or did not. 

Mr. DAVIS. The Chairman of the Senate Judiciary Committee, I 

believe, was Mr. Specter, a Republican. Do either of you know if 

Mr. Specter was consulted regarding the meaning of the anti-torture statute? 

Mr. ADDINGTON. I did not consult him. I don’t know whether he 

was or wasn’t and—— 

Mr. DAVIS. Mr. Yoo, do you happen to know—— 

Mr. ADDINGTON [continuing]. Not necessarily relevant to the 

legal interpretation. 

Mr. DAVIS. Mr. Yoo, do you happen to know if Chairman Specter 

was consulted? 

Mr. YOO. I don’t know one way or the other. 

Mr. DAVIS. And there is a process that has been alluded to today 

of consulting with Members of the House and Senate Intelligence 

Committees regarding certain matters that, frankly, we wouldn’t 

want disclosed in open forum. 

Mr. Yoo, did you or anyone else in the Administration consult 

Members of the House or Senate Intelligence Committees regarding Congress’ intent regarding the anti-torture statute? 

Mr. YOO. All I know is what I have read in the newspapers. 

49 

Mr. DAVIS. That is a simple were they or were they not consulted. Do you know if they were? 

Mr. YOO. Again, all I know is what I have read in the papers 

about it. 

Mr. DAVIS. To your knowledge, were they or were they not consulted, Mr. Yoo? 

Mr. YOO. You mean to my knowledge back—— 

Mr. DAVIS. Yes. To your knowledge, they were not, were they? 

Mr. YOO. I don’t know. 

Mr. DAVIS. Mr. Addington, to your knowledge, were any Members of the House or Senate Intelligence Committees consulted regarding the question of Congress’ intent regarding the anti-torture 

statute? 

Mr. ADDINGTON. There is no reason their opinion on that would 

be relevant and—— 

Mr. DAVIS. Is that a no? 

Mr. ADDINGTON. I did not consult them and I do not know whether—— 

Mr. DAVIS. Now, let me make—thank you all for answering those 

questions without too much struggle. 

One of the interesting things here today, Mr. Yoo and Mr. 

Addington, is that, frankly, we have heard this word ‘‘context’’ over 

and over again and I have heard both of you say, and I have heard 

my colleagues and my friends on this side of the aisle say you have 

got to remember the context. 

We had been threatened. We had been attacked. There was a 

possibility of follow-up attacks. All of that is accurate. But let me 

tell you the rest of the context. 

You had a Congress that was a rubber stamp for the Administration’s entire security agenda. You had Chairmen of the House and 

Senate Judiciary Committees who were strongly supportive of your 

agenda. 

You came to Congress and asked for the Patriot Act and you got 

it easily. You came to Congress and asked for an authorization of 

force resolution and you got it easily. 

You got bipartisan support for both of them. 

During the 107th, 108th and 109th Congresses, there was not a 

single time the Bush administration was rebuffed on any issue related to national security. 

You got an expansion of FISA that met your interests. You got 

a Military Tribunal Commissions Act that met your interests. 

We wouldn’t be here today, gentlemen, if you had come to this 

Congress and you had said one of two things, either give us a 

stronger, clearer definition of what torture means or if you had 

even gone to congressional leadership and said you are a source of 

guidance on what Congress meant, tell us, Chairman Sensenbrenner, you were there, tell us, Chairman Specter, you were there. 

The problem, Mr. Addington, and I will direct my last observation to you, because you still serve with this Administration, when 

you have got a Congress that is a rubber stamp for what you want, 

you ought not be disrespectful of the legislative branch of government. 

If you had come to this Congress, everyone in this room knows 

to an absolute certainty, they would have given you anything you 

50 

asked for in October 2001. If you had said, ‘‘Give me a definition 

that fits,’’ and Mr. Yoo had written the statute, if he had said, 

‘‘Give us a torture statute that makes torture a subjective condition, depending on the person’s mental or physical state,’’ you could 

have gotten that. 

You didn’t even trust people who were rubber stamps for you. 

And I will yield back the balance of my time. 

Mr. NADLER. I thank the gentleman. 

I now recognize, for 5 minutes, the gentleman from Minnesota. 

Mr. ELLISON. Mr. Yoo, you wrote the Bibey memo of August 

2002. Is that right? 

Mr. YOO. Mr. Ellison, as I described in the opening statement—— 

Mr. ELLISON. I need a yes or no, sir. 

Mr. YOO. I did not write it by myself. 

Mr. ELLISON. Did you write it in any part? 

Mr. YOO. I contributed to a drafting of it. 

Mr. ELLISON. Okay. So you contributed to a drafting of it. 

What percentage of the drafting did you write? 

Mr. YOO. It is difficult for me to—— 

Mr. ELLISON. And do you check—you checked in with Addington 

about what you were going to cover. He said you did. 

Mr. YOO. Can I—— 

Mr. ELLISON. Were you—— 

Mr. YOO. We are talking about the August 1, 2002 memo. 

Mr. ELLISON. Of course. Did you check in with Addington, as he 

just said you did? 

Mr. YOO. I, unfortunately, do not have the same—— 

Mr. ELLISON. So you can’t—— 

Mr. YOO [continuing]. Guidance as Mr. Addington does, because 

the Justice Department has told me I am not allowed to talk about 

any individuals. I am only allowed to talk about—— 

Mr. ELLISON. Was Mr. Addington telling the truth when he said 

you checked in with him over what you were going to cover? 

Mr. YOO. Let me describe it. 

Mr. ELLISON. No. I want you to say yes or no. 

Mr. YOO. I gave the draft of the opinion to the White House 

counsel’s office, which would be—— 

Mr. ELLISON. So when he just said you came in to tell us what 

he is going to cover, you cannot confirm that. Is that right? 

Mr. YOO. No, I am not saying that at all, Mr. Ellison. 

Mr. ELLISON. Well, answer my question. It is a yes or no. 

Mr. YOO. And so it is up to the White House counsel to decide 

who within the White House—— 

Mr. ELLISON. Stop, sir. I am asking you to tell me to confirm 

whether what Mr. Addington reported to this Committee was right 

or not right. That is simple. 

I hope this isn’t coming out of my time, Mr. Chairman. 

Mr. NADLER. We are a little flexible. 

Mr. YOO. Mr. Ellison, I am afraid I have to follow the guidance 

provided by the Justice Department on this question. 

Mr. ELLISON. So confirm what Addington said, deny what 

Addington said, or say ‘‘I cannot answer the question.’’ And what 

privilege are you asserting? 

51 

Mr. YOO. I can’t answer the question because of the instruction 

by the Justice Department that—— 

Mr. ELLISON. Thank you. 

Mr. YOO [continuing]. I am not allowed to—— 

Mr. ELLISON. Thank you. 

Mr. YOO [continuing]. Discuss—— 

Mr. ELLISON. Who else was present when Addington—when you 

checked in with Addington? 

Mr. YOO. Sir, you are assuming I answered your last question. 

Mr. ELLISON. Is that a repeat of the last answer? Do you stick 

with the last answer? 

Mr. YOO. Your question was who else was in the room when I 

checked in with Addington. 

Mr. ELLISON. Right. And you can assert your privilege again, if 

you choose. Do you? 

Mr. YOO. It is not my choice. The Justice Department has told 

me I can only talk about the office—— 

Mr. ELLISON. So at some point, this 2002 memo was implemented. Is that right? 

Mr. YOO. What do you mean by implemented, sir? 

Mr. ELLISON. Well, do you know what the word ‘‘implemented’’—— 

Mr. NADLER. If the gentleman would suspend for a moment and 

stop the clock, please. 

Professor, are you asserting a privilege? 

Mr. YOO. On the last question or the previous two? 

Mr. NADLER. Either one of them. 

Mr. YOO. On the first two he asked me, I have to because of the 

instructions by the Justice Department that I can’t discuss internal 

deliberations. 

I can discuss—— 

Mr. NADLER. And exactly what privilege are you asserting? 

Mr. YOO. I assume the Justice Department—I can’t say what the 

Justice Department’s belief for the—— 

Mr. NADLER. No, no. Wait a minute. 

Mr. YOO. They ordered me not to—— 

Mr. NADLER. Hold on. You are testifying before a congressional 

Committee. 

Mr. YOO. Okay. 

Mr. NADLER. The Justice Department cannot order you with regard to your testimony. It can instruct you to take a privilege, if 

you are entitled to a privilege. You can take the privilege without 

their instructions, if you are entitled to the privilege. 

If you are asserting a privilege, you are entitled to do so, but we 

are entitled to ask you what privilege is it is you are asserting. 

Mr. YOO. Yes, sir. 

Mr. NADLER. And whether they are ordering you to assert a 

privilege or not, if the privilege is there, you can assert it. If it isn’t 

there, you can’t assert it, whatever they say. 

Mr. YOO. I believe it is the attorney-client privilege, sir. 

Mr. NADLER. So you are asserting the attorney-client privilege in 

not answering the question you were asked. 

52 

We will take that—since you are not here under subpoena, we 

will take that under advisement and consider that at the end of the 

hearing. 

We will resume the questioning and the clock will resume. 

Mr. ELLISON. Mr. Yoo, are you denying knowledge of what the 

word ‘‘implement’’ means? 

Mr. YOO. No. I wanted to—— 

Mr. ELLISON. What does ‘‘implement’’ mean, sir? 

Mr. YOO. You are asking me to define what you mean by the 

word? 

Mr. ELLISON. No. I am asking you to define what you mean by 

‘‘implement.’’ What do you understand the term to mean? 

Mr. YOO. It can mean a wide number of things. 

Mr. ELLISON. Okay. Look, you contributed to the writing of the 

2002 memo. Is that right? 

Mr. YOO. Yes, I do—— 

Mr. ELLISON. The name on the memo was Bibey, but you contributed to the memo, right? 

Mr. YOO. Yes, sir. 

Mr. ELLISON. The memo was implemented at some point. Is that 

right? 

Mr. YOO. What do you mean by implemented, sir? 

Mr. ELLISON. What I mean by implemented is the guidance that 

was set forth in that legal memorandum was followed and put into 

action. Do you understand what I mean by implemented now, sir? 

Mr. YOO. So you are asking me was the memo followed, was the 

memo followed by—— 

Mr. ELLISON. I am not going to get into semantical games with 

you in this 5 minutes. I need you to answer the question or refuse 

to. 

Was the memo implemented? 

Mr. YOO. The memo was signed and provided—— 

Mr. ELLISON. I know what signed means and so do you. Stop 

wasting my time, Mr. Yoo. 

Mr. YOO. I am not trying to, sir. 

Mr. ELLISON. Was the memo followed? Will you accept followed? 

Mr. YOO. I don’t have personal knowledge about how it was followed, but I expect—— 

Mr. ELLISON. I didn’t ask you about how. I asked you whether 

it was followed, sir. 

Mr. YOO. Sir, you are asking me about things that other people 

would have done, not me. 

Mr. ELLISON. So the fact is—so the memo was never put into effect. Are you making that claim? 

Mr. YOO. No, no, no, sir. Let me go back and refer to my opening 

statement. 

Mr. ELLISON. Forget it. 

Mr. Schroeder, do you understand what implement means? 

Mr. SCHROEDER. I think I do. Yes, sir. 

Mr. ELLISON. Was this memo, this 2002 memo which Mr. Yoo refuses to answer questions about, ever put into effect? 

Mr. SCHROEDER. Of course, I have no personal knowledge. I 

wasn’t in the Administration—— 

53 

Mr. ELLISON. I am not asking you about personal knowledge. 

Based on your study. 

Mr. SCHROEDER. My understanding is that the memo was 

prompted, at least in part, by a specific request of the CIA with respect to what kinds of procedures their operatives would be able to 

use in interrogating some high level al-Qaeda detainees and that 

once the advice was forthcoming, my understanding, it is all from 

published investigative reporting, I have no firsthand knowledge 

myself, is that some of the techniques that fell on the legal side of 

the line, according to the memorandum, were employed. 

Mr. ELLISON. So is that right, Mr. Yoo? Were the legal techniques that you outlined in this memo employed? 

Mr. YOO. Were the techniques that were legal—let me say this. 

We did not make decisions about policy—— 

Mr. ELLISON. I didn’t ask you about that. 

Mr. YOO. We didn’t—— 

Mr. ELLISON. I did not ask you about that, sir. I want to know 

if the legal advice that you gave in that memo was followed or if 

you expect that it was followed. 

Mr. YOO. Again, Mr. Ellison, I don’t—— 

Mr. ELLISON. Did anyone ever come to you and ask you for an 

interpretation of your memo? 

Mr. YOO. Interpretation of my memo? 

Mr. ELLISON. Did the interrogators ever come back and say, ‘‘We 

got the memo’’—— 

Mr. NADLER. Without objection, the gentleman will have 1 additional minute to finish his line of questioning. 

Mr. ELLISON. Did the interrogators ever return to you and say, 

‘‘You know, you have given us this memo, but we want to implement a certain technique. Do we fall within the memo?’’ Was that 

scenario ever played out? 

Mr. YOO. Again, sir, because of the instructions of the Justice Department, I can’t tell—that is not my clock, I assume. 

Mr. ELLISON. Mr. Schroeder, what—— 

Mr. YOO. I can’t—— 

Mr. ELLISON. Mr. Schroeder, was the memo in effect during Abu 

Ghraib? 

Mr. NADLER. The gentleman will suspend, again. 

Professor, are you asserting a privilege? 

Mr. YOO. Sir, I am afraid Mr. Ellison’s questions may involve a 

discussion of classified information, which, because of congressional 

statute, I am not at liberty to discuss in a public setting. 

Mr. NADLER. So you are asserting the privilege against the revelation of classified information in answering the question. 

Mr. YOO. I don’t know if that is a privilege. I just can’t do that, 

sir. I am not saying it is a privilege. I just can’t—that is a violation 

of the law. 

Mr. NADLER. You are asserting that in order to answer Mr. 

Ellison’s question, you would have to reveal classified information. 

Mr. YOO. I might have to, sir. 

Mr. NADLER. Might have to or do have to? Let me rephrase the 

question. 

Mr. YOO. If I understand the question—— 

Mr. NADLER. Let me rephrase the question. 

54 

Is there any way you can answer Mr. Ellison’s question without 

revealing classified information? 

Mr. YOO. As I understand the question, I would have to discuss 

classified information to provide him a complete answer. I 

don’t—— 

Mr. NADLER. Okay. 

Mr. YOO [continuing]. Do that, sir. 

Mr. NADLER. Again, we will take that under advisement. 

Mr. DAVIS. Mr. Chairman, may I make a parliamentary inquiry? 

Mr. NADLER. Yes. The gentleman will state his parliamentary inquiry. 

Mr. DAVIS. I would inquire of the Chair, after we come back from 

our break from voting on the floor, if the Chair would consider directing particularly the two government witnesses, Mr. Yoo and 

Mr. Addington—I have noticed, Mr. Chairman, I have been on the 

Committee for a year and a half, and I have never seen two witnesses, frankly, struggle as much to appreciate the ordinary use of 

terms and questions. 

Would you consider instructing the two witnesses to answer the 

questions and if they wish to elaborate or clarify, then they can ask 

to do so? 

But given that we have time constraints, I would ask that the 

Chair admonish the witnesses to err on the side of being responsive 

as opposed to constantly quibbling over word choice, because I have 

never seen it to the degree I am seeing it today. 

Mr. NADLER. I will certainly consider that as we break, which we 

will recess in a few minutes for the votes on the floor. 

The gentleman can finish his questioning. 

Mr. ELLISON. My question is: when the interrogators, the ones 

who were addressing the witnesses who were being interrogated, 

were those individuals—did they have a lawyer that they could go 

to to ask about guidance as to what they could do or could not do 

under the guidance of the memo that you contributed to writing? 

Mr. ADDINGTON. Mr. Ellison, as I understand the structure of our 

government, the CIA has its own general counsel’s office and I believe it is about 100 lawyers. 

So if you—I assume you believe that the CIA conducted interrogations and if you did, they have a general counsel’s office to ask 

legal questions. 

Mr. ELLISON. Were you ever asked questions about whether certain techniques or others were permissible under the guidance you 

gave in that memo? 

Mr. YOO. As I said to the Chairman just a second ago, I am 

afraid I think your question asks—— 

Mr. ELLISON. You are asserting a privilege. Were you ever asked 

whether waterboarding was permissible under the advice you gave? 

Mr. YOO. Sir, if you will let me finish. I can’t answer your question—— 

Mr. ELLISON. Okay. 

Mr. YOO [continuing]. Because I believe it—— 

Mr. NADLER. The gentleman will suspend again. You are asserting that you cannot answer the question as to whether the CIA 

asked you questions regarding the legality of waterboarding without revealing classified information. 

55 

Is that your assertion? 

Mr. YOO. Yes, sir. 

Mr. NADLER. Okay. 

Mr. ELLISON. Did you ever—— 

Mr. NADLER. We will hold that—we will hold that under advisement, and the gentleman’s time has expired. 

Mr. ELLISON. One last question? 

Mr. NADLER. Without objection, the gentleman will have 30 additional seconds. 

Mr. ELLISON. Did your memo allow for the use of sicking dogs 

on interrogated individuals? 

Mr. YOO. I am afraid I have to give the same answer, but I will 

point out to the—— 

Mr. NADLER. Excuse me a second. The question was did your 

memo allow for that. That is not confidential. Your memo has been 

revealed to the public. 

Mr. KING. Mr. Chairman, parliamentary inquiry. 

Mr. NADLER. One second. Let him answer the question. 

Mr. YOO. You are referring again to the August 1, 2002 memo. 

The memo speaks for itself. It does not discuss what you just mentioned. 

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

The gentleman—— 

Mr. KING. I just simply want to make the parliamentary inquiry, 

the procedure here, whether who is actually asking the questions 

and if the privilege of the Chair is reflective of the executive privilege that has been denied the President of the United States, I just 

can’t keep with the flow when the Chair is asking questions on behalf of the Member who has been recognized. 

Mr. NADLER. Excuse me. The Chair was not asking questions, 

but trying to ascertain what privilege is being asserted, and, at one 

point, trying to clarify so that we don’t go back and forth with a 

misunderstanding, and I think I saved a little time. 

The gentlelady from Florida is recognized for 5 minutes, after 

which we will recess. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. 

Mr. Addington, there are press reports that state that in September of 2002, you and other Administration lawyers visited 

Guantanamo Bay. 

A JAG attorney in Guantanamo, Diane Beaver, is quoted in a 

‘‘Vanity Fair’’ article as saying that the message from you and the 

other visitors was ‘‘do whatever needed to be done.’’ 

And just weeks after that visit, interrogators at Guantanamo 

Bay began to developing a far harsher interrogation program than 

they had ever used before. 

Did you visit Guantanamo Bay in September of 2002, as has 

been reported? 

Mr. ADDINGTON. I don’t remember the exact date, but I went 

there a number of times. 

Ms. WASSERMAN SCHULTZ. Well, do you recall going to Guantanamo Bay around that time? 

Mr. ADDINGTON. I really don’t remember the dates, ma’am, but 

I remember going in the—— 

56 

Ms. WASSERMAN SCHULTZ. How many times have you been—did 

you go to Guantanamo Bay during that period? 

Mr. ADDINGTON. During that—well, I am not sure what period 

you are describing. I would say I have probably been to Guantanamo, I guess, maybe five times. The first time would have been 

years ago, which isn’t relevant to this, when I worked at the Department of Defense 

And then I have probably been, I would guess, three or four—— 

Ms. WASSERMAN SCHULTZ. On one of those trips, did you meet 

with JAG attorneys? 

Mr. ADDINGTON. I don’t recall it. I remember when Ms. Beaver, 

Col. Beaver, who was referenced, I think, in Mr. Sands’ ‘‘Vanity 

Fair’’ article, I did not remember meeting her there. 

The only time I remember meeting her is over at the office of 

general counsel at the Department of Defense many years later. 

Ms. WASSERMAN SCHULTZ. What generally prompted your trips 

to Guantanamo Bay when you made them? 

Mr. ADDINGTON. I was invited by the Department of Defense to 

go and I accepted. I thought it would be good to go and see what 

they were doing to implement the decisions made in January and 

February at the White House to have detainees held there by the 

Department of Defense. 

Ms. WASSERMAN SCHULTZ. Did you have any discussions on those 

trips about interrogation methods? 

Mr. ADDINGTON. I don’t know about methods. I would say we 

probably did, only in the sense that I can remember, and I am not 

sure it is this particular trip, but at least on some of the trips, and 

it may—— 

Ms. WASSERMAN SCHULTZ. On any of the trips? 

Mr. ADDINGTON. Yes. That they would show us an interrogation 

room, with no one in it, so you could see what the room looked like 

and then, separately, look through, I assume, and I don’t know, 

that the person being interrogated and the interrogator couldn’t see 

us. 

In other words, like a one-way mirror kind of set, where you 

could see into that. So having done that, I am sure they must have 

discussed—— 

Ms. WASSERMAN SCHULTZ. On any of the trips, did you discuss 

interrogation methods that were directly referenced in the memo 

that we have been discussing here for this hearing? 

Mr. ADDINGTON. I am not sure I remember this memo having 

methods discussed in it, frankly. 

Ms. WASSERMAN SCHULTZ. Did you discuss specific types of interrogation methods that interrogators should use while at Guantanamo Bay on the detainees? 

Mr. ADDINGTON. I don’t recall doing that, no. 

Ms. WASSERMAN SCHULTZ. That means you didn’t or you don’t recall doing it? 

Mr. ADDINGTON. It means I don’t recall doing it, as I said. 

Ms. WASSERMAN SCHULTZ. Well, it is hard to fathom that you 

would not have a recollection on specific conversations about types 

of interrogation methods as opposed to just generally talking about 

interrogation. 

Mr. ADDINGTON. Is there a question pending, ma’am? 

57 

Ms. WASSERMAN SCHULTZ. The question is I don’t believe that 

you don’t recall whether you discussed specific interrogation methods. So I will ask you again. 

Did you discuss specific interrogation methods on any of your 

trips to Guantanamo Bay with people who would be administering 

the interrogation? 

Mr. ADDINGTON. And as I said to you, I don’t recall. Let me be 

clear to you that there are two different things that may be helpful 

to you in asking your questions. 

The Department of Defense interrogations—— 

Ms. WASSERMAN SCHULTZ. I really don’t need—— 

Mr. ADDINGTON. Well, the CIA program, and you will find when 

you question me the participation with respect to the CIA program 

is more extensive than the DOD program. 

And I wouldn’t find it so unusual that I don’t recall the details—— 

Ms. WASSERMAN SCHULTZ. Except that interrogations, your— 

there is an accusation that interrogation methods went far beyond 

and up to and past torture following your visits to Guantanamo 

Bay. 

So I am trying to get a sense of whether you actually went there, 

encouraged those specific interrogation methods and whether they 

crossed the line. 

Mr. ADDINGTON. I did not. 

Ms. WASSERMAN SCHULTZ. So I am pretty clear on why I am asking you the questions and which one I am asking you. 

On one of the trips that you took, it was weeks after the August 

1, 2002 interrogation memo was issued by the Office of Legal Counsel. 

Did you have any discussions on that trip about that recent Department of Justice legal advice on interrogations? Did you ever 

discuss the memo which offered legal advice on interrogations with 

anyone at Guantanamo Bay on any of your trips there? 

Mr. ADDINGTON. I am fairly certain, I won’t be absolute, but fairly certain that I did not. 

Ms. WASSERMAN SCHULTZ. That you did not ever—— 

Mr. ADDINGTON. Discuss this August 1, 2002 legal opinion to the 

counsel of the President from the Department of Justice. 

Ms. WASSERMAN SCHULTZ. So you deny the suggestion then in 

their report that you encouraged Guantanamo Bay interrogators to 

do whatever needed to be done. 

Mr. ADDINGTON. No—yes, I do deny that. 

Ms. WASSERMAN SCHULTZ. You do deny that. 

Mr. ADDINGTON. Yes. That quote is wrong. 

Ms. WASSERMAN SCHULTZ. Okay. Did you observe an interrogation during the trip, as has been reported? 

Mr. ADDINGTON. I think we probably did, as I described earlier. 

Ms. WASSERMAN SCHULTZ. And why did you observe an interrogation? 

Mr. ADDINGTON. The Department of Defense took us around to 

show us the camp and what was going on, showed us that. Now, 

I emphasize, I am not sure it is the particular September 2002 trip 

you are describing, but on at least several of those trips, I—— 

Ms. WASSERMAN SCHULTZ. What did you observe? 

58 

Mr. ADDINGTON. Observed a detainee in, I believe, an orange 

jumpsuit sitting in a chair. 

Ms. WASSERMAN SCHULTZ. What kind of interrogation was used? 

Mr. ADDINGTON. They were talking to him during the brief time 

that we went. 

Ms. WASSERMAN SCHULTZ. Simply just conversation, no other 

methods, just conversation. 

Mr. ADDINGTON. During the brief time that we were there, yes. 

And I don’t recall that we could actually hear what was being said. 

You could look and see mouths moving. I infer that there was communication going on. 

Ms. WASSERMAN SCHULTZ. But you saw no physical contact with 

the interrogators. 

Mr. ADDINGTON. Correct. 

Ms. WASSERMAN SCHULTZ. The only thing you witnessed—— 

Mr. ADDINGTON. It was a very brief look. 

Ms. WASSERMAN SCHULTZ [continuing]. Was discussion. 

Mr. ADDINGTON. Yes. 

Ms. WASSERMAN SCHULTZ. Okay. I yield back the balance of my 

time. 

Mr. NADLER. Thank the gentlelady. 

There are now three votes on the floor. The Subcommittee will 

stand in recess until immediately after the third vote. 

We ask the witnesses to remain. We thank you for your participation and for your indulgence and patience. 

The Committee is in recess. 

[Recess.] 

Mr. NADLER. The Committee will come to order again. I thank 

the witnesses for their patience in awaiting our votes on the House 

floor. 

Without objection, the two quotes from the ‘‘War by any Means’’ 

by Mr. Yoo that I think it was Mr. Addington asked be entered into 

the record, are entered into the record. 

Mr. ADDINGTON. Thank you. It is Exhibits 10 and 11. 

Mr. NADLER. Well, they are entered into the record, whatever 

they are. 

Before we proceed, let me simply, again, admonish those present 

in the room that this is a very serious hearing involving very serious and very emotional questions and we must consider them as 

dispassionately as possible. 

And any disruption or demonstration of any kind will not be tolerated and any person engaging in such will be immediately escorted from the room. So I hope we don’t have the necessity to do 

that. 

When we recessed, we were about to recognize the gentleman 

from Virginia. 

The gentleman from Virginia is now recognized for 5 minutes for 

the purposes of asking questions. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Let me see if I can get a quick answer to the question, because 

there was much discussion of military training techniques in the 

Senate Armed Services Committee last week. 

These are called the SERE techniques, S-E-R-E, survival, evasion, resistance and escape. 

59 

Now, Mr. Yoo, did you ever discuss or get information about that 

program as you prepared the August 1, 2002 memorandum? 

Mr. YOO. Mr. Scott, I am afraid the Justice Department has instructed me that I can’t answer questions of that nature. 

Mr. SCOTT. Mr. Addington, did you ever discuss the SERE program in connection with the—— 

Mr. NADLER. The gentleman will suspend. 

Mr. Yoo, in order for you to assert a privilege as a basis for refusing to answer a question, we need you to tell us what the privilege 

is and the specific basis on which you are asserting it. 

That is, precisely why and what aspect of the question you cannot answer further and still maintain the privilege. 

We need you to be specific and detailed enough that we can determine whether the basis you are asserting is valid for the line 

you are drawing in refusing or limitin your answer. 

Mr. YOO. Mr. Chairman, according to the Justice Department’s 

instructions, I believe the privileges would be both the attorney-client privilege and the protection of classified information. 

Mr. NADLER. So you are asserting that the answer to Mr. Scott’s 

question would necessitate the revelation of classified information. 

Mr. YOO. As I understand the instructions the Justice Department—— 

Mr. NADLER. No, no, no, I am not asking you that. You are asserting the privilege, not the Justice Department. 

You are asserting their privilege. You have to be satisfied that— 

well, let me just back up a bit. 

The attorney-client privilege is not a valid privilege in Congress. 

It may be in court, but it is a common law privilege. It is not a 

valid privilege here, number one. 

But your classified information is. That is, it is valid if it applies. 

So what I am asking you is that you must state that an answer 

to Mr. Scott’s question would necessitate the revelation of classified 

information, not that someone else believes it, you believe it. 

Mr. YOO. I have to say this, sir, that the Justice Department 

gave me these instructions. I can’t go out beyond them, sir. I am 

not sure what you are asking me to say. 

I mean, if your view is that my saying that this is the privilege, 

this is what the Justice Department communicated to me in an email. So I have to follow it, sir. 

I don’t have the right to go beyond or to go—— 

Mr. NADLER. It is difficult to credit your assertion of privilege on 

this question because Steven Bradbury, the current assistant Attorney General of the OLC, testified before this Committee earlier 

this year. 

When he testified, he said that ‘‘The CIA’s use of the 

waterboarding procedure was adapted from the SERE training program.’’ 

In light of his saying that, how can your answer to Mr. Scott’s 

question be privileged? 

Mr. YOO. Sir, I recognize that it is your view that the attorneyclient privilege does not apply. However, sir, that is the instructions I received from the Justice Department. 

It is their privilege to raise and those are the instructions I received. 

60 

I don’t want to be in the middle of a privilege fight myself if you 

and the Justice Department have a disagreement about it. 

Mr. NADLER. It is difficult. I gather Steven Bradbury is, I am 

told, the person giving these instructions to the Justice Department. He answered this question before this Committee. 

So I fail to see how, in effect, the repetition of the answer could 

be—unless you are going to disagree with him—could be privileged. 

Mr. YOO. Sir, I recognize that Mr. Bradbury gave me the instructions, but I personally can’t go beyond what he has—— 

Mr. NADLER. All right. The Chair will have to—I can’t say anything further. The Chair will take your assertion of privilege regarding this question under advisement and we will come back to 

you later as may be warranted. 

The gentleman from Virginia’s time is resumed. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Addington, did you ever discuss the SERE program in connection with the August 1, 2002 memorandum? 

Mr. ADDINGTON. No. I didn’t think I did so, but I don’t have any 

reason to dispute the quotation from Mr. Bradbury that the Chairman just read. 

Mr. SCOTT. Mr. Yoo, let me ask a kind of basic question. Is torture by United States officials illegal? 

Mr. YOO. You are asking me—my current view is if it is a violation of torture as it is defined in the statute, in the criminal code, 

then it would be illegal under that statute. 

Mr. SCOTT. Thank you. Now, is there an international agreement 

of what torture is and what it isn’t? I mean, doesn’t everybody in 

the world kind of know when it is torture and when it isn’t? 

Mr. YOO. Mr. Scott, you are referring to the convention against 

torture, I believe. 

Mr. SCOTT. Sure. 

Mr. YOO. So there is a treaty in effect called the convention 

against torture. 

Mr. SCOTT. Don’t most countries kind of understand when it is 

torture and when it is not? 

Mr. YOO. I think, looking at that treaty, that there has been disagreement by the United States itself as to—— 

Mr. SCOTT. You put some disagreement in it. I am talking about 

everybody else in the world. 

Mr. YOO. No, sir. When the Senate ratified the treaty, the convention against torture, it put in a reservation about its definition 

of torture. 

Mr. SCOTT. Okay. Whatever the definition is, did 9/11 change 

that definition? 

Mr. YOO. 9/11 did not change the definition of torture under the 

convention against torture, no. 

Mr. SCOTT. Now, if people—if United States officials torture people based on your memo, would they be protected if they follow 

your memo? If they followed your memo, would they be protected 

from prosecution, even though your memo has been pretty much 

disparaged? 

Mr. YOO. Mr. Scott, putting aside whether it has been disparaged 

or not, the purpose of the memo was to define torture so that people would not commit torture. 

61 

The memo itself does not—— 

Mr. SCOTT. Mr. Schroeder, Professor Schroeder, can a legal opinion be so ridiculous that it does not protect those who follow the 

definition in such a memo? 

Mr. SCHROEDER. Well, it could be, Congressman. But if you are 

talking about the effect it would have on somebody, say, down the 

line, actually, an operative in the field and hasn’t had a chance to 

read the memo, but is simply getting advice that an authoritative 

interpretation exists, then I think it would be very difficult for that 

person to be held responsible for having analyzed and rejected the 

law on his or her own behalf. 

Mr. SCOTT. Well, can the opinion be so ridiculous that as it goes 

down the line, people ought to have the common sense to reject the 

analysis and use their common sense as to when it is torture and 

when it is not, or does the Administration have the power to just 

write up such a memo and protect people who torture people based 

on a ridiculous legal opinion? 

Mr. SCHROEDER. No. I don’t believe they do. I think that people— 

and you would expect that members of the military would use their 

own common sense as to what is permissible or not. 

Mr. SCOTT. Now, is it an excuse to torture if you got good information from the torture? 

Mr. SCHROEDER. Not under the treaty and I think not under the 

statute that implements the treaty, no. 

Mr. SCOTT. Is it an excuse to torture if you can’t get the information you are looking for using less aggressive techniques? 

Mr. SCHROEDER. No, sir. The treaty admits of no exceptions. 

Mr. SCOTT. Now, Mr. Yoo, if you are going to go around torturing 

people based on your memo, how do you know before you get information whether or not you are going to get good information from 

someone? 

Mr. YOO. Sir, I am not going around torturing people, as you just 

said, and the memo does not authorize anyone to torture anybody. 

So unfortunately, I don’t agree with the premise of your question. 

Mr. SCOTT. Are you suggesting that the activities allowable 

under your memo do not constitute torture by everybody’s definition in the world except yours? 

Mr. YOO. Sir, I don’t know what everybody else’s definition in the 

world is. 

Mr. SCOTT. Now, is it an excuse to use more aggressive techniques, the techniques that you can use, do you get—do you consider the information you are going to get or the fact that you 

couldn’t get it using less aggressive techniques? 

Does that excuse more aggressive techniques? 

Mr. YOO. Sir, as I understand the statute, as it is written now, 

does not provide—it does not provide an exception for whether the 

information is good, as you said, or whether the interrogation techniques are less—you could less or more aggressive interrogation 

techniques. 

There is nothing in the statute that says anything about that. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

The gentleman from North Carolina is recognized for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

62 

I thank the witnesses for being here. 

I have kind of observed from the earlier questioning that if I 

really want some answers, I probably ought to focus on Professor 

Schroeder here. 

Otherwise, I will probably be just pretty much banging my head 

against the wall and wasting my 5 minutes. 

So let me ask Mr. Schroeder a couple of questions here. 

I am fascinated by the comment on the first page of your written 

testimony, where you say we must be mindful of the difference between law and policy. 

I was kind of reflecting on that during the time we went to vote 

and recalled that in the 22 years that I practiced law, I had a particular client who, when he didn’t like the legal advice I would give 

him, would always tell me that the Lord told him to do otherwise. 

And I was very insistent with him that I never wanted to argue 

with the Lord, but I stood by the legal advice that I gave him. And 

so I have some appreciation for the difference between policy and 

law. 

I guess when somebody, the Lord or somebody other than a lawyer, tells you that you should do something that the lawyer has 

told you he thinks is illegal, that is the distinction you are drawing 

between policy and legal advice, I take it. 

Mr. SCHROEDER. Yes, sir. 

Mr. WATT. All right. I think I understand the concept then. 

Well, let me, first of all, ask you, are there things that you understand—I know you have not been a party to all of the torture 

techniques and what have you that this Administration has pursued. 

Are there things that you understand that this Administration 

has pursued that go beyond Mr. Yoo’s memo and basically the 

President was told or the Vice President or somebody in the CIA 

was told by somebody other than Mr. Yoo that the Lord or whoever 

told them, that—have those kinds of things been engaged in based 

on what you understand? 

Mr. SCHROEDER. Congressman, I hope I am now not going to join 

Mr. Yoo and Mr. Addington in being unable to respond to your 

question, but I really don’t have knowledge of what exactly was 

being—now, we have read reports that waterboarding was used on 

some suspects. 

Mr. WATT. Would that be authorized by Mr. Yoo’s memo? 

Mr. SCHROEDER. I would have to, frankly, know more about 

waterboarding than I do. 

Mr. WATT. That is fine. This is not a trick question. I am just 

trying to get—— 

Mr. SCHROEDER. I wish I could be helpful, but I just don’t 

have—— 

Mr. WATT. Assume that a policy decision was made to go beyond 

the legal memorandum and advice that Mr. Yoo gave. The recourse 

that I suppose the public and Congress would have, only recourse 

probably would be an impeachment proceeding. Isn’t that correct or 

is that correct? 

Don’t ponder too long. My clock is ticking here. 

Mr. SCHROEDER. I just hate to use the word in this Committee, 

which has had to consider these matters in the past. 

63 

It would be difficult under the legal theory in the August 2002 

memo to think of what remedy would be available other than impeachment. 

Mr. WATT. And I guess this is the same question that Mr. Scott 

was asking at some level. When an attorney gives a piece of advice 

that is legal advice, we presume attorneys have a sense of responsibility to the law, to the Constitution. 

What recourse does Congress or the public have against the attorney, if any? 

Mr. SCHROEDER. Well, proceedings with a bar association is one 

possibility. But you have to understand that I am not remotely in 

a position to say anything—— 

Mr. WATT. I am not suggesting that—— 

Mr. SCHROEDER [continuing]. That the advice being given by the 

individuals who gave them was under their understanding of the 

law, at the time, the best advice that they could give. 

I happen to think it was wrong, but there is a big difference between being wrong—— 

Mr. WATT. Just a hypothetical question that has nothing—I am 

separating it from Mr. Yoo’s opinion. 

Is there some recourse that Congress has if we find that the advice was outrageous, as Mr. Scott said? 

Mr. SCHROEDER. Well, I think as far as this institution goes, I 

am not aware of laws on the books that would reach that situation. 

Certainly, the bar associations responsible for someone’s professional license could evaluate the advice that was being given and 

seeing if it constituted malpractice or an abuse of that person’s responsibility as an officer of the court to uphold the law. 

Mr. WATT. So really Congress and the public really have little recourse other than malpractice. 

Mr. SCHROEDER. I would think a disciplinary proceeding before 

the bar association leading to disbarment would be the kind of 

remedy that I would think of first. But this is not a question I have 

investigated. 

Mr. WATT. Okay. My time has expired, and I appreciate you 

being responsive to my questions. 

I yield back. 

Mr. NADLER. I thank the gentleman. 

I now recognize for 5 minutes the gentleman from Tennessee. 

Mr. COHEN. Thank you, Mr. Chairman. 

And thank you, the gentleman from North Carolina. 

Mr. Yoo, you worked for Mr. Ashcroft, did you not? 

Mr. YOO. Mr. Ashcroft was the Attorney General when I was at 

the Justice Department. 

Mr. COHEN. Right. Did you consider yourself an employee of his? 

Mr. YOO. I am sorry, sir? 

Mr. COHEN. You were an employee of his. You were in the chain 

of command. You were underneath him, correct? Is that right? 

Mr. YOO. Yes, sir. 

Mr. COHEN. Did you communicate with Mr. Addington sometimes 

and not relay those communications through Mr. Ashcroft’s office 

and keep him outside the loop? 

Mr. YOO. Sir, I never did anything to keep Mr. Ashcroft out of 

the loop. 

64 

Mr. COHEN. So Mr. Ashcroft had knowledge of everything that 

you discussed with Mr. Addington, is that correct, sir? 

Mr. YOO. As I explained in my opening statement, in the development of the August 2002 memo, we notified the Attorney General’s office that we had received a request for the memo. 

They, the Attorney General’s office, dictated who and whom we 

could not discuss it with. We shared drafts of the memo with the 

office of the Attorney General and the office of Attorney General 

approved the memo. 

There is no way that we—— 

Mr. COHEN. Did General Ashcroft ever express to you concerns 

about your relationship to his office vis-a-vis the communications 

you had had with Mr. Addington and keeping him outside of the 

loop? 

Mr. YOO. I don’t think that I—I don’t think, according to the Justice Department’s guidelines, I am allowed to discuss with you any 

particular conversation that I had with Mr. Ashcroft—— 

Mr. COHEN. Did the conversation exist? 

Mr. NADLER. The gentleman will suspend. 

Again, Mr. Yoo, in order for you to assert a privilege as a basis 

for answering a question, we need you to tell us what the privilege 

is and the specific basis on which you are asserting it. 

Mr. YOO. Sir, any information or conversations I had with any 

individual in the executive branch is covered by the instruction of 

the Justice Department by either attorney-client privilege or deliberative process privilege, and that is the decision of the Justice Department, sir. 

Mr. NADLER. No, no, no, no. This particular question, which 

privilege are you asserting? 

Mr. YOO. First of all, I just want to make clear it is the Justice 

Department that is asserting it and it is the attorney-client privilege, along with, as I said before, in response to the previous questions. 

Mr. NADLER. Well, wait a minute. How is the attorney-client 

privilege implicated in a question about your communication with 

your superior in the—you weren’t his attorney. 

The Justice Department may be—I mean, are you the attorney 

in your position or were you the attorney in your position at OLC 

of the attorney of the Attorney General? 

Was he your client? 

Mr. YOO. Sir, it is the Justice Department that has already decided, in giving me these instructions, that all these communications are covered by either the attorney-client privilege or the executive deliberation privilege. 

Mr. NADLER. The instructions, we were given a copy of the instructions. He is not authorized to discuss the specific deliberative 

communications, including the substance of comments on opinions 

or policy questions or the confidential pre-decisional advice, recommendations or other positions taken by individuals or entities of 

the executive branch. 

The question, as I understand it, was did Attorney General 

Ashcroft express concerns about your relationship with Mr. 

Addington. 

65 

That does not seem to fall within these instructions. He either 

did or did not express concerns. The question does not ask about 

specific deliberative communications or the substance of comments 

or opinions. 

Mr. YOO. Can I just consult with my attorney? 

Mr. NADLER. Certainly. 

Mr. YOO. After consultation with our attorneys, I will answer the 

question, which is my recollection is that, no, I never had such a 

conversation with the Attorney General. 

Mr. COHEN. Did you have any discussions with the Attorney 

General at all where he expressed any concern that you were not 

operating within your line of authorities? 

Mr. YOO. Mr. Cohen, I do not recall any conversation of that nature. 

Mr. COHEN. So if The Washington Post reported that General 

Ashcroft was upset and if General Ashcroft said he was upset 

about communications between you and Mr. Yoo, The Washington 

Post and General Ashcroft would be mistaken or not have proper 

recall. Is that correct? 

Mr. YOO. No, sir. Let me explain. 

First of all, what General Ashcroft expressed to other people or 

if he talked to The Washington Post at all is beyond my knowledge. 

Mr. COHEN. Right, beyond you. Let me ask you this. 

Mr. YOO. Your question was whether he expressed it to me. 

Mr. COHEN. To you, and you don’t recall that. 

Mr. YOO. And my answer is he—— 

Mr. COHEN. You don’t recall it. I have been here for a while. 

You articulated a definition of illegal conduct in interrogations, 

explaining that it must ‘‘shock the conscience.’’ 

Do you remember that? Is that accurate? 

Mr. YOO. Sir, I believe you are referring to the memo that was 

sent by the Justice Department to the Department of Defense in 

2003 that defined cruel, inhumane and degrading treatment. 

Mr. COHEN. Yes. What is the answer, yes or no? Do you remember that, ‘‘shock the conscience?’’ 

Mr. YOO. I am just saying that the—I am just trying to tell you 

where it arises, sir, which was in this memo, where the Justice Department was interpreting the phrase ‘‘cruel, inhumane and degrading treatment,’’ which was subject to a reservation by the 

United States that said it is equivalent to—and it cited the 5th and 

8th and 14th amendments, which those amendments use the 

phrase ‘‘shock the conscience.’’ 

Mr. COHEN. All right. But you also said that and you explained 

that whether the conduct is conscience-shocking depends, in part, 

on whether it is without any justification. Is that right? 

Mr. YOO. I am sorry, sir. Can you repeat the question? 

Mr. COHEN. Right. Did you also go further and say that whether 

the conduct is conscience-shocking depends on whether it is without any justification? Do you recall that? 

Mr. YOO. Well, sir, it is in the memo. The memo—— 

Mr. COHEN. So that is true, then, yes. The answer is yes. 

Mr. YOO. The memo says that. 

Mr. COHEN. And it would have to be inspired by malice or sadism 

before it could be prosecuted. Is that right? 

66 

Mr. YOO. Sir, I think that language is taken out of context in the 

sense that the memo, as I read it, does not say that you must have 

those characteristics. 

Mr. COHEN. Where did those words come from? 

Mr. YOO. They come from, sir—in the memo, they come from the 

case law. They come from the decisions of the Federal courts interpreting—when they interpret what does the due process clause require and then they say—the courts have said we interpret it to 

mean shocks the conscience standard. 

There are Federal courts that have—I did not create those words. 

They are—— 

Mr. COHEN. Are you saying that the law states it is not how the 

person that is being tortured is receiving the treatment, but the intent of the person who is torturing? 

So if I want to take somebody’s fingernails out, if I think it is 

for the good of the country, that is not torture? If I want to cut 

somebody’s appendage off, it is okay as long as I think it is important for the country? 

Mr. YOO. Sir, the memo does not say that. The memo quotes Federal cases that cite this as one amongst many factors that courts 

consider when they to determine what shocks the conscience. 

Mr. COHEN. Let me ask you this. Is there anything you think 

that the President cannot order in the terms of interrogation of 

these prisoners in a state of war? 

Mr. YOO. Sir, you are asking my opinion now, not what we addressed in the opinion, because the opinion—— 

Mr. COHEN. Right. Now, what is your opinion now? 

Mr. YOO. The opinions in 2002 and 2003 do not address that 

question. 

Mr. COHEN. What is your opinion now? 

Mr. YOO. Because they were not at the—— 

Mr. COHEN. What is your opinion now? 

Mr. YOO. Sir, let me finish. I am just trying to finish my answer, 

sir. 

Mr. COHEN. No. You are trying to stretch out 5 minutes. 

Mr. YOO. No, I am not. I have no idea what time it is. 

Mr. COHEN. You guys are great on ‘‘Beat the Clock.’’ 

Mr. YOO. I don’t play basketball, but I watch it. 

Mr. COHEN. That was a game show. Maybe it was BYT. 

Mr. YOO. I guess it was before my time, sir. 

Mr. COHEN. That is it, BYT. 

Mr. YOO. Sir, to answer the question. Those questions are not addressed in those memos. They were not before us. 

Today, I would say there are a number of things a President— 

I don’t think any American President would order, in order to protect the national security, and I think one of those things is the torture of detainees. 

I do not believe, and I have said so many times, that the President—I don’t think the President should ever—— 

Mr. NADLER. Without objection, the gentleman is granted 1 additional minute. 

Would the gentleman yield for a second? 

Mr. COHEN. Yes, sir. 

Mr. NADLER. Thank you. 

67 

Mr. Yoo, this is the second or third time today that you have said 

that you don’t believe an American President would order certain 

heinous acts. 

Would you answer the question not would he order it, but could 

he order it under the law, in your opinion? 

That is your question. The question is to you. 

Mr. COHEN. I am not Edgar Bergen. That was a question. 

Mr. YOO. That is your question, whether—— 

Mr. NADLER. No. The question is not would an American President order such terrible things, but could he legally do so. 

Mr. YOO. I think it is not fair to ask that question without any 

kind of facts, any kind of—I mean, you are asking me to state some 

kind of—— 

Mr. NADLER. So in other words, there is nothing conceivable—— 

Mr. YOO. No, sir, I am not saying that. 

Mr. NADLER. No, no. Let me finish the question, because you 

don’t know what I am going to ask. 

There is nothing conceivable to which you could answer, no, an 

American President could not order that without knowing facts and 

context. 

Mr. YOO. Sir, I have told you I don’t agree with that, because you 

are trying to put words in my mouth about—attempting to get me 

to answer some broad question covering all circumstances, and I 

can’t do that. 

I don’t agree with the way you are characterizing my answer. 

Mr. NADLER. I will yield back to the gentleman. 

Mr. COHEN. Let me ask Mr. Addington. What branch of government is the Vice President’s office in? 

Mr. KING. Mr. Chairman, can we return to regular order? 

Mr. NADLER. We just did. 

Mr. COHEN. If I can pursue the question. 

Mr. NADLER. The gentleman is granted another additional 

minute. 

Mr. COHEN. Mr. Addington, what branch of government—— 

Mr. KING. Objection. 

Mr. COHEN [continuing]. Is the Vice President in? 

Mr. KING. Objection, Mr. Chairman. 

Mr. NADLER. Objection to 1 additional minute? 

Mr. KING. I am objecting to the extenuation of this interrogation 

that is going on and some of this process. And there wasn’t a unanimous request for that additional minute. 

Mr. NADLER. I will ask unanimous request for an additional 

minute. 

Mr. KING. Now I don’t object. 

Mr. NADLER. Thank you. 

The gentleman is granted an additional minute by unanimous 

consent. 

Mr. COHEN. Thank you, Mr. Chairman. 

Mr. Addington, what branch are we in? 

Mr. ADDINGTON. Sir, perhaps the best that can be said is that 

the Vice President belongs neither to the executive nor to the legislative branch, but is attached by the Constitution to the latter. 

Closed quote. That is from two legal opinions issued by the Office 

of Legal Counsel of the Department of Justice dated March 9, 1961 

68 

and April, I believe it is 18, 1961 by, I believe, Mr. Katzenbach, if 

I remember. 

Mr. COHEN. So he is a member of the legislative branch. 

Mr. ADDINGTON. To Vice President Johnson, and I offer those as 

Exhibits 13 and 14—— 

Mr. COHEN. Mr. Addington, is he a member then, you are saying—— 

Mr. NADLER. Without objection, they will be entered into the 

record. 

Mr. COHEN [continuing]. So he is a member of the legislative 

branch. 

Mr. ADDINGTON. No. I said attached by the Constitution to the 

latter. He is not a member of the legislative branch, because the 

Constitution says that the Congress consists of a Senate and a 

House of Representatives. 

The Constitution further says that the Senate consists of Senators and the House of Representatives consists of Representatives, 

and he is neither a Senator nor a Representative. 

Mr. COHEN. But he is attached to the legislative branch. 

Mr. ADDINGTON. That is the quote I read you. 

Mr. COHEN. So he is kind of a barnacle. 

Mr. ADDINGTON. He is attached by the Constitution to the latter. 

I don’t consider the Constitution a barnacle, Mr. Cohen. 

Mr. COHEN. No, the Vice President. Since he is really not fish nor 

fowl, he is just attached to something. 

Mr. ADDINGTON. It is not exclusive in the Constitution to have 

that situation. 

Mr. NADLER. The time of the gentleman has expired. 

Mr. COHEN. Thank you, Mr. Chairman. 

Mr. NADLER. You are quite welcome. 

The gentleman from Massachusetts, Mr. Delahunt, who is a 

Member of the Committee, but not the Subcommittee, has requested an opportunity to question the witnesses. 

As a matter of courtesy, without objection, I will grant that. 

Mr. KING. Mr. Chairman? 

Mr. NADLER. The gentleman from Iowa. 

Mr. KING. I thank the Chairman. 

Mr. Chairman, at the request of the Ranking Member Smith, I 

object to the participation of a non-Subcommittee Member. 

House rules provide for participation in hearings only by Members of the Committee or Subcommittee. House Rule 11 states 

‘‘Each committee shall apply the 5-minute rule during the questioning of witnesses in a hearing until such time as each member 

of the committee would so desire an opportunity to question each 

witness.’’ 

The Committee rules explicitly allow only the participation of 

non-members of a Subcommittee in one instance, and that is the 

Chairman and Ranking Member to participate as ex officio Members of any Subcommittee. 

Subcommittee membership should mean something. It allows 

Members the privilege of participation. 

Setting a precedent that allows a non-Member of a Subcommittee 

to participate could lead to a situation where 10 other Members 

might also want to participate. 

69 

That would not serve the Committee well, Mr. Chairman. 

This objection has nothing to do with the Member in question, 

as you well know, or the subject matter at hand; rather, participation in a hearing that should be a privilege of the Members of the 

Subcommittee. 

And so I, therefore, object to his participation. 

Mr. NADLER. The gentleman’s objection is, unfortunately, grounded in the rules and the gentleman’s objection is correct. 

I would observe that the precedent of allowing Members of the 

full Committee who are not Members of the Subcommittee to participate in Subcommittee hearings by asking questions of witnesses 

has been set many times over, and I regret—without causing 

chaos—and I regret that the gentleman insists on the point of 

order. 

But if he does insist, it must be enforced. 

I apologize to the gentleman from Massachusetts. 

The Chair recognizes himself for 5 minutes to question the witnesses. 

Mr. Addington, you stated to Ms. Wasserman Schultz earlier in 

this hearing that your involvement in the CIA interrogation program was greater than your involvement in the military program. 

What was your involvement in the CIA interrogation program? 

Mr. ADDINGTON. We had a number of meetings, as you might 

imagine. An example was the one I described earlier with the Justice Department to obtain legal advice on the program. 

A number of the lawyers and the relevant parts of the executive 

branch would be involved in working on the legal advice on such 

a matter. 

Mr. NADLER. Firstly, you just said you are part of the executive 

branch or the Vice President’s office, but leave that aside. 

Mr. ADDINGTON. There is a number of us lawyers. All I am, sir, 

is an employee of the Vice President. 

Mr. NADLER. Why was a lawyer from the Vice President’s office 

involved in CIA business? 

Mr. ADDINGTON. As you know, in modern times, the Vice Presidents often provide advice and assistance to Presidents. In fact, 

that is what they spend a majority of their time doing. 

Vice Presidents are not in charge of anything. They simply gather information. They provide advice. They have whatever functions 

Presidents give them, but it is basically advice and assistance. 

Mr. NADLER. And they participate in various agencies’ business? 

Mr. ADDINGTON. No. Congress has recognized that function. If 

you look at Section 106 of Title 3, that modern Presidents provide 

advice and assistance, and they provide staffs. 

Part of the Vice President’s staff is paid for under the appropriation that goes with the statute I just cited. Part of the Vice President’s staff is paid out of the legislative branch appropriation. 

And when the President’s staff wishes to have us participate and 

provide advice, then we—— 

Mr. NADLER. So the President asked you, in effect, or someone 

on behalf of the President authorized that. 

Mr. ADDINGTON. We were included because it is the practice in 

this Administration, stronger at some times than others, but generally, that the President’s staff and the Vice President’s staff—— 

70 

Mr. NADLER. In other words, pursuant to the President—— 

Mr. ADDINGTON [continuing]. Work together. 

Mr. NADLER. Okay. Pursuant to the President’s authorization. 

Did you have any involvement in the CIA’s decision to destroy 

any interrogation videotapes? 

Mr. ADDINGTON. To destroy? No, sir. 

Mr. NADLER. If the CIA program is found to be unlawful, would 

you bear any responsibility for that? 

Mr. ADDINGTON. If the CIA program is found to be unlawful? 

Mr. NADLER. Yes. 

Mr. ADDINGTON. Would I bear responsibility for that? 

Mr. NADLER. Any responsibility. 

Mr. ADDINGTON. Is that a moral question or a legal question? Let 

me distinguish—— 

Mr. NADLER. Interpret it as you will, either way. 

Mr. ADDINGTON. I believe, and I am somewhat sympathetic to 

the approach Professor Schroeder took, that the legal opinions 

issued by the Department of Justice, to the extent they are relied 

upon by those who are implementing the—— 

Mr. NADLER. No. We are not talking about legal opinions. Excuse 

me. We are not talking about legal opinions of the Department of 

Justice. 

Given your involvement in discussions with the CIA, did these 

discussions implicate what they did and if what they did was unlawful, would your discussions have any bearing on that? That is 

my real question. 

Mr. ADDINGTON. No. I wouldn’t be responsible is the answer to 

your question. 

Mr. NADLER. Thank you. 

Mr. Yoo? 

Mr. ADDINGTON. Legally or morally. 

Mr. NADLER. Mr. Yoo, The Washington Post has reported that Attorney General Ashcroft and his deputy, Larry Thompson, were not 

aware of the March 2003 memorandum when you wrote it and 

transmitted it to the Pentagon. 

Is that accurate that the Attorney General and his deputy AG 

were not aware of that memo? 

Mr. YOO. Mr. Nadler—I am sorry. Mr. Chairman, we received a 

request from the Defense Department. We notified the office of the 

Attorney General immediately that we had received the request. 

Mr. NADLER. You notified them of the request. Did you notify 

them and send them a copy of the memo? 

Mr. YOO. Sir, we also notified the deputy Attorney General’s office and—— 

Mr. NADLER. Did you notify them and send them a copy of the 

memo when you sent it to—— 

Mr. YOO. We sent them drafts of the memo, both offices. 

Mr. NADLER. And the final one? 

Mr. YOO. Yes, sir. We also sent versions of the final ones to both 

the deputy Attorney General’s office and the office of the Attorney 

General. 

Mr. NADLER. Thank you. What? 

What do you mean versions? You sent them a copy of the final 

memo? 

71 

Mr. YOO. Yes, sir. 

Mr. NADLER. Okay. Thank you. 

Your prepared testimony says that the offices of the Attorney 

General and the deputy AG and the criminal division received 

drafts of the opinion. You just said that. 

Who in those offices received those drafts? 

Mr. YOO. In response to your question, sir, as you know, the Justice Department has instructed me not to discuss the particular individuals—— 

Mr. NADLER. Not to name those who received the draft? I don’t 

think that was in the instructions, number one, and I don’t think 

they have the power to issue such an instruction. 

Mr. YOO. Excuse me 1 second, sir. 

Mr. Chairman, I think that my recollection at the time was that 

in delivering the drafts of the memo to the office of the Attorney 

General, that we delivered it to the counselor to the Attorney General. 

Mr. NADLER. And who is the counselor? 

Mr. YOO. His name was Adam Ciongoli. 

Mr. NADLER. Thank you. 

Mr. YOO. And my recollection as to the deputy Attorney General’s office—and let me—also, I can’t say definitively everybody 

who got a copy either. 

I am just saying because these were sensitive matters, we had 

to transmit them. I believe we may have given it to the principal 

associate deputy Attorney General at the time, who name was 

Chris Wray. 

Mr. NADLER. Chris Wray. Thank you. 

Now, without divulging the contents of any discussions, did those 

offices make comments or revisions to the opinions? 

Mr. YOO. Without divulging the—— 

Mr. NADLER. Without divulging the content, did they make 

any—— 

Mr. YOO. Yes, they did. I can say that there were—is your questions comments or—— 

Mr. NADLER. Comments or revisions. 

Mr. YOO. I can say that we received—— 

Mr. NADLER. Well, how about separating that? Comments? Yes. 

Revisions? 

Mr. YOO. I would say we received comments. I don’t recall revisions one way or the other, sir. 

Mr. NADLER. Okay. And can you say who made those comments? 

Mr. YOO. Any comments we would have received would have 

come from the people I just mentioned, the counselor to the Attorney General or the principal associate deputy Attorney General. 

Mr. NADLER. Thank you. Without objection, I will grant the 

Chairman 1 additional minute. 

Did you ever understand that the Attorney General or the deputy 

AG had personally approved this opinion, that is, the March 2003 

memorandum? 

Mr. YOO. Let me say, sir, we could not have issued such an opinion without the approval of the office of the Attorney General or 

the office of the deputy Attorney General. I can’t recall whether—— 

72 

Mr. NADLER. But you don’t whether they personally approved it. 

Mr. YOO. Well, I can’t recall whether they sent a memo or something signing it, signing off on it. 

Mr. NADLER. When you say the office—you couldn’t have issued 

it without the approval of the office of the AG or deputy AG, what 

do you mean by that other than by them personally? 

Mr. YOO. Sir, you are asking—I mean, I wouldn’t know, sir, just 

personally, whether the Attorney General himself personally approved it, but we would receive—the way the Justice Department 

works, we received communications from the office of the Attorney 

General. 

Mr. NADLER. Okay. And finally, why was the memo or the opinion, rather, signed by you instead of by the head of the OLC at the 

time? 

Mr. YOO. The 2003, March 2003 memo. 

Mr. NADLER. Yes. 

Mr. YOO. I don’t have the dates in front of me, right in front of 

me, but my recollection is that Jay Bibey, who was the head of the 

office, was just about to go onto the bench. 

As you know, he is now currently a judge of the U.S. court of appeals for the ninth circuit. And so I believe that the timing of the 

memo and when he was going to go on the bench were very close 

to each other and couldn’t be certain whether he would still—— 

Mr. NADLER. Have been there or not. 

Mr. YOO [continuing]. Been in office at the time the opinion 

issued. 

Mr. NADLER. Professor Schroeder, could you comment briefly on 

that answer—on that question, rather? 

Mr. SCHROEDER. Well, I only know what has been reported back, 

which is that Jay Bibey went onto the bench about 10 days after 

the memo was signed on March 14. So at the time, so far as I think 

the public record discloses, he was still assistant Attorney General 

in the Office of Legal Counsel. 

Mr. NADLER. And after he went on the bench, who was the assistant Attorney General? Who took that position immediately 

thereafter? Anybody? 

Mr. YOO. There was an acting assistant. There was no nominee 

or there was—— 

Mr. NADLER. But there was someone acting in that. 

Mr. YOO. There was an acting assistant Attorney General. 

Mr. NADLER. And if it was too late for Mr. Bibey to sign it, why 

didn’t that gentleman or lady sign it? 

Mr. YOO. As you know, Mr. Chairman, classified matters can 

only be discussed with people who are cleared to know about them. 

When the Justice Department—— 

Mr. NADLER. So just to cut to the chase, that person may not 

have been cleared at that point. 

Mr. YOO. I am trying to remember, sir, but I do not believe, at 

that time—my recollection is I don’t believe they were cleared at 

that time. 

Mr. NADLER. Okay. Thank you. My time has expired. 

I will recognize, for 5 minutes, the distinguished Chairman of the 

full Committee, Mr. Conyers. 

73 

Just for information, since we normally rotate by parties, Mr. 

King has asked to pass for a number of witnesses, and we are 

granting him that privilege. 

Mr. CONYERS. Thank you, Steve King. 

Professor Schroeder, as the former acting director of the Office 

of Legal Counsel in the department, can you elaborate on any 

irregularities or improprieties that you may see in how the OLC 

memos we are discussing today were put together? 

Mr. SCHROEDER. Yes, Mr. Chairman. 

It is unusual, in my experience, for memoranda as significant as 

the March 2003 memo and, say, the September 25, 2001 memo on 

the commander in chief authority to be signed by a deputy. 

If the assistant position was vacant, I can understand how that 

might happen. But otherwise, in my experience, those would be the 

kind of detailed memoranda that would be—and significant memoranda that would be issued by the assistant Attorney General. 

It is also the practice, as Professor Yoo has said in his testimony, 

to solicit the advice of other components of the Justice Department 

and where there are any disagreements about the content of the 

memos, to note that fact in the memos themselves. 

In this case, there was either unanimity throughout the Justice 

Department on the controversial legal interpretations that were 

being given or that some disagreements were not noted for the 

record. 

Finally, with respect to the memoranda that deal with interrogation techniques and torture specifically, there is some expertise in 

the executive branch on what torture means, because both the 

State Department and the INS have responsibilities for applying 

the idea of torture in the context of requests for aliens to seek relief 

from removal decisions in immigration matters or the State Department receiving asylum requests from aliens. 

And in both of those contexts, the two departments have developed their own administrative understanding of what constitutes 

torture or not. 

I would have expected that those internal executive branch reservoirs of knowledge on what torture means would have been 

accessed by OLC. 

Now, I understand from Professor Yoo’s prepared testimony that 

the CIA specifically prohibited the State Department from participating or didn’t allow them to be contacted. 

That strikes me as very unusual, because it is cutting out a 

source of knowledge within the Administration that I think could 

have been quite helpful in articulating the working standard of 

what constitutes torture or not under the statute and under the 

treaty. 

Mr. CONYERS. Our witness, Professor Yoo, has claimed that there 

was a lack of guidance on the meaning of torture, which was why 

he used a health care-related statute in drafting the 2002 opinion. 

Do you have any comment on that circumstance? 

Mr. SCHROEDER. Well, I think, to amplify on what I just said, I 

think there are sources of understanding, working knowledge as to 

what constitutes torture or not, that would have provided more 

guidance, not necessarily in statutory law, but in the working experience of expert agencies who have handled the matters. 

74 

Some of them, like the immigration process, result in decisions 

by the board of immigration appeals that could have been accessed 

to give you some reference points at least for purposes of discussion. 

Now, maybe they are not going to be conclusive, because torture—I think if you try to define the precise boundary where just 

an inch to one side it is torture and just an inch to the other side 

it is not torture, you are going to have a very difficult time. 

Mr. CONYERS. Of course. 

And the last comment with reference to Professor Yoo’s testimony. It seems he has claimed that even though the August 2002 

memo was revoked, that there is a footnote in the revocation memo 

stating that the conclusions in the memo remain in force. 

Am I missing something there? 

Mr. SCHROEDER. Well, Mr. Chairman, that is not my understanding. Dan Levin, who authored the December 31, 2004 memo, 

has testified before this Committee that that is an erroneous interpretation of that footnote and that, in fact, he had not completed 

a review of any of the specific interrogation techniques at the time 

the December 2004 memo issued, and that footnote is not be interpreted as endorsing the outcomes of the 2002 evaluation process. 

Mr. CONYERS. Thank you very much. 

Mr. NADLER. I thank the gentleman. 

The gentleman from Minnesota is recognized for 5 minutes. 

Mr. ELLISON. Professor Schroeder, when a person who was at the 

OLC or in a policy—well, a lawyer at the OLC drafts a memorandum advising agencies on any legal matter, I don’t want us to 

drill down just on torture right now, but when they offer advice, 

legal advice in the form of memoranda, do they—in your experience, is there an ongoing role after the memoranda is written in 

helping to advise how to implement that advice that is offered? 

Mr. SCHROEDER. Well, it will vary from topic to topic, but it 

would not be unusual for Office of Legal Counsel attorneys, after 

issuing a written opinion, to be asked follow-on questions or variations on the first question that had been asked or questions about 

what certain language in the opinion ought—how that ought to be 

applied in light of circumstances that the agency or the executive 

office of the President is considering. 

And some back-and-forth is not at all unusual, I think. 

Mr. ELLISON. And in your experience, would it be at all unusual 

if somebody who was actually trying to carry out and implement 

an activity which they received guidance on from a legal memoranda would say, ‘‘Well, the memo doesn’t speak specifically to this 

instance. Does it apply or how would it apply in a given situation?’’ 

Mr. SCHROEDER. No, that wouldn’t be unusual at all. 

Mr. ELLISON. So I guess my question is—one of the things I 

would like—that I think that we should know more about is to 

what degree did people who were doing interrogation, in the light 

of the memo, the August 2002 memo, get advice on how to implement and how to interpret that memo. 

Now, I know you weren’t part of that, but do you have any views 

on this subject? Is there anything you could tell us about it? 

Mr. SCHROEDER. Well, typically, those sorts of additional questions would come, I think, first, if you are talking about an adminVerDate Aug 31 2005 14:24 Mar 26, 2009 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6601 H:\WORK\CONST\062608\43152.000 HJUD1 PsN: 43152
75 

istrative agency or a branch of the services, would tend to go 

through their lawyer chain of command and it wouldn’t be necessarily, and I think it would probably be unusual for somebody in 

the field to call an Office of Legal Counsel lawyer directly. 

What they typically do, and because most—many of the requests 

that the Office of Legal Counsel receives for legal advice come, in 

the first instance, from a general counsel or a chief counsel. 

So the communication is lawyer to lawyer. So there would be a 

communication. If someone in the other department or branch was 

confused, the tendency would be for them to inquire of their general counsel’s office and then for a communication to come over to 

the Office of Legal Counsel from there. 

Mr. ELLISON. Now, Mr. Addington, you have been to Guantanamo Bay, obviously. Were you there during an interrogation of 

suspects? 

Mr. ADDINGTON. As I mentioned this morning to Ms. Wasserman 

Schultz, I have a recollection, perhaps not on the September 2000 

trip she was referring to, but perhaps, at least on one of the trips, 

I can recall seeing people in a room, I guess you would call it, and 

we could see through an observation window or up on a video 

screen, or maybe both. 

I do remember that. 

Mr. ELLISON. Now, did the interrogators ever ask you any questions about how the interrogation could be legally conducted as it 

was going on? 

Mr. ADDINGTON. I don’t recall them doing that, no, sir, and I 

don’t believe they did. It wouldn’t be appropriate for me to be talking to an interrogator about what he would be doing outside of his 

chain of command, or her. 

Mr. ELLISON. What about indirect? What about indirect? For example, if an interrogator went out, they might talk to someone in 

their agency, do you have occasion for somebody in the agency to 

confer with them about how the interrogation might be continued 

on? 

Mr. ADDINGTON. I spoke with the general counsel’s office of the 

Central Intelligence Agency, as did a number of other folks, as I 

described, when the executive branch would have a meeting that 

they would invite me to and we would talk about it, both at the 

CIA and at DOD, although less so at DOD, the Department of Defense. 

Mr. ELLISON. So at DOD, you are speaking with regard to Mr. 

Haynes, is that right? 

Mr. ADDINGTON. The general counsel. 

Mr. ELLISON. And who is the individual you have in mind at the 

Central Intelligence Agency? 

Mr. ADDINGTON. Well, early on, it was their general counsel and 

he left and went back to New York to practice law and there 

was—— 

Mr. ELLISON. What is his name? 

Mr. ADDINGTON [continuing]. An acting general counsel. The general counsel is a fellow named Scott Muller, M-U-L-L-E-R. And 

then he left, as I say, and there was as acting general counsel, who 

I believe is still the acting general counsel. 

76 

Mr. ELLISON. Did you witness the interrogation process going forward while you were in Gitmo? 

Mr. ADDINGTON. I don’t know what else to say other than what 

I have already said, that I remember seeing, through the observation window, an orange suit in there and someone talking. 

Mr. ELLISON. Could you hear it? 

Mr. ADDINGTON. I don’t recall you could hear it. You could just 

see it. 

Mr. ELLISON. Were you part of a group of folks who made legal 

decisions on a regular and routine basis that would include Alberto 

Gonzales, William Haynes, Jim Haynes, and yourself? 

Were you part of that? 

Mr. ADDINGTON. I talked regularly in lots of different meetings 

with the counsel of the President and his deputy, with the department of defense general counsel, less frequently with the CIA general counsel or acting general counsel, but yes. 

Mr. ELLISON. So did you and Messrs. Gonzales and Haynes have 

sort of an ongoing responsibility or authority to guide and make decisions about legal matters for the Administration with regard to 

torture of detainees, the conduct of the war on terror? 

Mr. ADDINGTON. No. I think it is more monitoring what is going 

on, discussing it and if you need legal advice on the subject, you 

would ask a question to the Office of Legal Counsel, which typically 

would be done either by the counsel to the President, if it is the 

White House that wants the advice, which the law, by the way, 

that you all passed provides for. 

It is 28 UCS something like 511, 512, in that range. And also 

heads of agencies have the authority to go to OLC and get that 

legal advice. So they usually do that through their general counsels, either DOD or CIA. 

Mr. ELLISON. Do you deny being a member of a war council that 

includes Alberto Gonzales, Mr. Haynes and yourself? 

Mr. ADDINGTON. No, that—it is interesting. I never heard that 

label until Jack Goldsmith wrote his book, ‘‘The Terror Presidency,’’ 

which has been quoted earlier in this hearing. 

We had meetings all the time. That is the same group of folks 

I was talking about earlier. 

I asked Jim about it once and he said, ‘‘Oh, yeah, we call it the 

war council over here.’’ I am not actually a fan of cute little names 

for meetings. It is a common executive branch habit and I think 

that is where it came from. 

Mr. ELLISON. So do you deny it or do you admit it? 

Mr. ADDINGTON. No. I think I just said—I just answered that 

question. 

Mr. ELLISON. I don’t think you did. 

Mr. ADDINGTON. Well, as I said, I met regularly with Mr. 

Haynes, sometimes the CIA general counsel, the counsel of the 

President and deputy counsel of the President, and me on a range 

of issues, some of which dealt with interrogation of enemy combatants in the war on terror. 

At the Department of Defense, apparently, when some of those 

meetings were held, they were list on their schedules ‘‘war council,’’ 

as if that is some great name for this group. 

To me, it was just the lawyers getting together to talk. 

77 

Mr. NADLER. [OFF MIKE] 

Mr. ELLISON. That fast? 

Mr. NADLER. The time of the gentleman has expired. 

The gentleman from Iowa is recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. 

Just to bring this back to a bit of a focus here, this hearing is 

about focusing on the role of Administration lawyers in developing, 

approving and implementing aggressive interrogation techniques. 

I will concede that much of this has focused on how that is developed and focused and refocused and reworded and reposed the 

questions, and so I am wondering what a person that is watching 

on C-SPAN thinks of all of this that they have seen and heard. 

And I realize that is a rhetorical question to the witnesses, but 

I do want to ask a more specific question, first, to Mr. Addington 

and then perhaps to Professor Yoo. 

And that is, do you believe that it is possible to precisely define 

torture in law? 

Mr. ADDINGTON. Just off the top of my head, you are getting me 

here in front of the cameras and the microphones—— 

Mr. KING. I am not trying to. 

Mr. ADDINGTON. And as I said earlier, lawyers have to be very 

precise and careful, as you all clearly do when you actually draft 

and pass legislation. 

About the only way I could think of it doing is something like 

you did with the Military Commissions Act of 2006, which is you 

laid out you can’t do this, you can’t do this, you can’t do this, you 

can’t do this. 

And then you got to the end and there was a catch-all in there 

for dealing with certain categories of other things that aren’t listed 

here. 

The difficulty in drafting such a thing, of course, is you have to 

think of everything. You have to think of every circumstance. 

So I think you all would have a challenge trying to come up with 

a statute that could contemplate everything and put those who do 

these sorts of things in our intelligence agencies on the fair notice 

they are constitutionally entitled to that their conduct would be illegal. 

Mr. KING. I appreciate that. 

Mr. Yoo? 

Mr. YOO. Again, speaking now, I think that it is a difficult problem. I think the way that the statute was first written was—it did 

use language that was vague or ambiguous and was not defined by 

Congress. 

And I think over time, Congress has become more specific referring to, for example, Army manuals and so on is a much better way 

to do it. 

It is much clearer. I will say that even in attempting to interpret 

that language in the opinion, we attached, as an appendix, every 

judicial decision we could find in the Federal system that did define 

torture and exactly what acts, some of them involving some of the 

issues that Professor Schroeder mentioned involving INS and so on. 

So we tried to provide a complete appendix in that fashion. But 

Congress didn’t do that. It only did that later in the Military Commissions Act. 

78 

Mr. KING. And just to restate my question, is it possible to precisely define torture in law? And to add some completeness to the 

question, but with regard to the Army manual, do you believe there 

is room between the manual and the law to expand beyond the 

level that is part of the manual? 

Mr. YOO. Well, I think that—— 

Mr. KING. To take torture to a level—is there a level between the 

Army manual and that is limited by the law? 

Mr. YOO. Sir, let me say that I haven’t written any opinions 

about this issue. This all happened after I left government. 

My understanding is that the statute directly incorporates the 

manual. So it seems to me the law and the manual—there is no 

space. 

There is a difference in which agency it applies to. My understanding of the McCain amendment is that it applies the manual 

to the military, but not to the CIA. 

Mr. KING. Mr. Addington, on that same—— 

Mr. ADDINGTON. Repeat the question, please. 

Mr. KING. Is there room, do you believe, between United States 

Army Field Manual on Intelligence Interrogation and between the 

controlling statutes against torture? 

Mr. ADDINGTON. In other words, are there things that are not 

permitted by the Army manual that are, nevertheless, short of torture? 

Mr. KING. Yes. 

Mr. ADDINGTON. I believe the legal opinions of the Office of Legal 

Counsel or Department of Justice indicate yes and that, if you will 

recall, the Military Commissions Act of 2006 and the executive 

order that the President issued under that, I believe, sometime 

early, I think, but sometime in 2007, in fact, were all about that, 

what could the Central Intelligence Agency do that was beyond was 

in the Army field manual. 

Mr. KING. And I would agree with that answer. And so as we sit 

here and the military interrogators and their legal advisers are 

watching these hearings today, can you enlighten us a little bit 

about what you might think they can draw from this? 

Does it further define the law? Do they know what is the law? 

Will that intimidate them, do you believe, from gathering information in a legal fashion to help our intelligence to protect the American people? 

What can you tell us that came out of this hearing at this point 

that is constructive that secures the American people? 

Mr. ADDINGTON. As I mentioned at the beginning, there were 

three filters, I said, were in my mind, as I looked at all these issues 

over the years, and the third filter—the third filter is the crucial 

one of making sure that after all the policy level and senior lawyer 

level review of this is done and somebody gets an order to do something, that person who gets that order, especially on a subject matter like this, needs to know. 

I have got an order here, it has been reviewed carefully by the 

senior lawyers of this government that I am entitled to rely on legally to know that my activity is lawful. 

That is what going to the Office of Legal Counsel was all about 

in getting those legal opinions and as you know, this August 1, 

79 

2002 opinion is not the only legal opinion issued by the Office of 

Legal Counsel. 

I can think of five off the top of my head on this subject. Those 

people out in the field, particularly the folks at the CIA, would not 

have engaged in their conduct and the head of the CIA would not 

have ordered them to engage in that conduct without knowing that 

the Attorney General of the United States or his authorized designee, which is what OLC is, had said this is lawful and they relied 

on that. 

And they need to be able to rely on that. We can’t leave the folks 

in the field hanging out there because we are going to have battles, 

whether you characterize them as political or otherwise, here in 

Washington. 

Mr. KING. Thank you. 

Thank you, Mr. Chairman. Yield back. 

Mr. NADLER. The time of the gentleman has expired. 

I now recognize the gentleman from Alabama for 5 minutes. 

Mr. DAVIS. Mr. Chairman, thank you for forgiving me not being 

in place when my turn came up earlier. 

I want to go back, Mr. Addington and Mr. Yoo, to the line of 

questions I pursued earlier, because the clock cut us off before I 

had a chance to make some points I wanted to make. 

A lot of what we are talking about today, Professor Yoo, is the 

interpretation of the statute. You have conceded that there was a 

relevant on point anti-torture statute in place in early 2001-2002. 

It was passed by Congress. 

You have correctly pointed out it is not at all unusual. There 

wasn’t a massive amount of legislative history. 

I questioned you earlier about why it would not have been helpful or important for the Administration to reach out to the body 

that drafted the statute to get its own interpretation of what the 

words meant. 

Mr. Addington, I think you were telling me, at one point, or you 

were conceding that Mr. Specter, the Republican Chairman of judiciary, wasn’t consulted, Mr. Sensenbrenner wasn’t consulted. 

Tell me, sir, why it would not have been helpful for the Bush administration to have reached out to the congressional leadership, 

even of its own party, to ask what the statute meant. 

Mr. ADDINGTON. Sir, you asked that question earlier today and 

I would give you the same answer. 

Actually, as a legal matter, I think you are wrong and that doing 

so would be irrelevant. 

As a political matter—— 

Mr. DAVIS. I didn’t ask you as a matter of policy. 

Mr. ADDINGTON [continuing]. That is different. As a matter of 

policy, that can be different. 

As a practical matter, back when all this first came up, I am not 

sure the exact timeframe, let’s say the year 2002, these were highly 

classified. This was a highly classified program conducted by 

the—— 

Mr. DAVIS. No, sir. Very simple question. 

Mr. ADDINGTON. I am explaining to you why some members—— 

Mr. DAVIS. Let me reframe my question then and perhaps make 

it a little bit easier, sir. 

80 

All I am asking—I am picking up on the analysis Mr. Yoo makes 

in his opening statement. 

He talks about a particular interpretation of the anti-torture 

statute. 

And, Professor, you said that he believed that the anti-torture 

statute was a subjective test that depended on the physical and 

mental condition of the individual being interrogated. 

That is an interpretation of Congress’ intent. 

I happen to think, sir, from a policy standpoint, as well as from 

a legal standpoint, there were two options for the people you work 

for. They could have come to Congress and they could have asked 

for the statute to be clarified. 

They could have asked for new powers. You all did that with respect to the Patriot Act. 

I suppose, theoretically, the Bush administration could have said 

we don’t need a Patriot Act, we are just going to assume that we 

have some plenary executive power, but you didn’t do that. 

You came to Congress and you asked for new intelligence-gathering, new information-gathering capabilities and the Congress 

gave it to you in overwhelming bipartisan fashion. 

Authorization of force. You could have said there is some plenary 

executive power to protect the United States using all means necessary. You came to Congress. 

All of those things involve potentially confidential, classified matters. 

Was there even anyone in the executive branch who advocated, 

Mr. Addington, coming to Congress and asking for a new torture 

statute? 

Mr. ADDINGTON. Of course, I can’t answer for everyone in the executive branch. I don’t know what they thought about. 

Mr. DAVIS. Did you advocate it? 

Mr. ADDINGTON. As for me—— 

Mr. DAVIS. That is a simple yes or no. Did you advocate it? 

Mr. ADDINGTON. I don’t recall advocating that to anyone and I 

wouldn’t today. 

Mr. DAVIS. Just a simple yes or no. 

Do you know of anyone, Professor Yoo, I include you in this, do 

either of you know of anyone in the executive branch or the Department of Justice who advocated coming to Congress and asking 

for a new statute? 

That is a simple yes or no. 

Mr. ADDINGTON. On the subject of interrogations? 

Mr. DAVIS. Torture, the definition of it. 

Mr. ADDINGTON. No. I don’t recall it. 

Mr. DAVIS. Professor Yoo, do you know of anyone who even advocated coming to Congress and asking for a new statute? 

Mr. YOO. I don’t remember anyone doing that. 

Mr. DAVIS. Do you know of anyone who advocated going to the 

House and Senate Intelligence Committees and asking for their 

judgment as to what the torture statutes meant? 

Mr. YOO. No, and I wouldn’t recommend that. I would recommend going where the law requires, which is OLC. 

Mr. DAVIS. And this is the problem, gentlemen. 

81 

If your Administration had come to what was a Republican Congress and gotten its imprimatur for your definition of torture, you 

would have shared responsibility. 

If you haven’t figured it out by now, one of the critiques that a 

number of Members on both sides of the aisle have of the way you 

all have done business is, frankly, you haven’t shared the responsibility of making the decisions. 

Sometimes you have had to, when the Supreme Court has told 

you you had to with respect to tribunals and FISA. But, frankly, 

on your own, you have never done it. 

And I would submit that that is the core thing that this Committee ought to be focused on, a policy that was derived by the executive branch. 

You didn’t even feel the need to even consult or to share your 

thoughts or your analysis of congressional intent with Congress. It 

has left you now with a policy that has only your fingerprints on 

it. 

It has left you with a policy with which the legislative branch 

was completely cut out. That is a very negative legacy for your Administration. 

Mr. ADDINGTON. You are leaving one bad implication on the 

record that I want to clear up that is not accurate, which it sounds 

like you are implying that the House and Senate Intelligence Committees didn’t know anything about the CIA program. 

Mr. DAVIS. No, no, no. I am talking about your interpretation of 

the definition of torture. You are not suggesting the House and 

Senate Intelligence Committees knew about the interpretation of 

torture that Mr. Yoo advanced in his opening statement, are you? 

Mr. ADDINGTON. At some point they did, I don’t know when. 

Mr. DAVIS. Would you tell us that point? 

Mr. ADDINGTON. I said I don’t know when. I am fairly confident 

that these were discussed and they have held a lot of hearings on 

it. But I don’t know when it first occurred. 

Mr. NADLER. The time of the gentleman has expired. 

I now recognize, for 5 minutes, the gentleman from North Carolina. 

Mr. WATT. Thank you, Mr. Chairman. 

Before I start, I wanted to do this while Mr. King was here, the 

basis of his objection to allowing Mr. Delahunt to ask questions 

was that it would prolong the hearing. 

I wanted to ask a different unanimous consent request that he 

be allowed to take my time in the rotation so that he—and I didn’t 

want to do it—— 

Mr. NADLER. Do you want to do that now? 

Mr. WATT. I would like to do that. 

Mr. NADLER. Without objection. 

Mr. WATT. Well, I just wanted to make it clear that I wasn’t 

doing it because he was out of the room. I actually sent a message 

to him that I was planning to do that. 

Mr. NADLER. Okay. Well, he apparently didn’t care enough to 

stay. Without objection. 

Mr. DELAHUNT. Well, Mr. Chairman, I don’t want to proceed unless staff has been able to communicate. 

82 

Well, I won’t take all the 5 minutes. I will try to be very brief. 

In fact, I—— 

Mr. WATT. Whatever you don’t use I will use myself. 

Mr. DELAHUNT. Well, thank you. And this has been a very informative hearing. 

And I am going to request both witnesses or I will extend an invitation to both witnesses to appear before the Subcommittee that 

I Chair, because this obviously has foreign policy implications, 

which is the Foreign Affairs Subcommittee on Oversight, and I 

would hope they would accept that invitation for a more expansive 

conversation and dialogue about this very important issues. 

It is true that the United States is a signatory to the convention 

against torture. Is that accurate, Professor? 

Mr. SCHROEDER. Yes. 

Mr. DELAHUNT. Either one. 

Mr. YOO. Yes, it is. 

Mr. DELAHUNT. And the domestic legislation we are talking 

about was to implement the convention against torture. 

Mr. SCHROEDER. That is correct. 

Mr. DELAHUNT. And the whole issue of what constitutes torture, 

what techniques are implicated in that definition, would you all 

agree that there are some techniques that are, per se, considered 

torture, such as electric shocks? 

Professor Yoo? 

Mr. YOO. I am sorry. It is Yoo. 

Mr. DELAHUNT. Yoo. I apologize. 

Mr. YOO. In the memo, we have a list—an appendix. 

Mr. DELAHUNT. I haven’t had an opportunity to review the 

memo. But would you consider the use of electric shock—— 

Mr. YOO. Yes. It is one of the things that are listed in the back 

of the memo as things that courts have found to violate the—not 

this statute, but the other statute, because there was a second statute, the Torture Victim Protection Act, which is a little different 

than the criminal statute, but we thought close enough. 

Mr. DELAHUNT. What about waterboarding? 

Mr. YOO. I would have to know exactly what you mean by 

waterboarding, but there is a description in the appendix of—in the 

appendix to the 2002 memo that talks about trying to drown somebody. 

But when people say waterboarding, they seem to have lots of 

different—they are referring to lots of different things. 

So I think it is important to be precise if we are talking about 

what the courts approve. I am sorry. Not that courts approve— 

courts have interpreted the language to mean or not. 

Mr. DELAHUNT. Well, it has been reported that on three different 

occasions, the Central Intelligence Agency utilized waterboarding 

and at least that was the term that was used in the reports in the 

media. 

Is that your understanding, Professor? Professor Yoo? Are you 

aware of that? 

Mr. YOO. Well, sir, I have read the same press accounts that you 

have, I am sure, and I have seen it in the press accounts and I 

have also seen it in, I believe, a statement made by the President 

or, I am sorry, by the head of the CIA. 

83 

Mr. DELAHUNT. By the head of the CIA. And that was my understanding, as well, that it was acknowledged by the head of the CIA. 

And I think you, Mr. Addington, indicated that you had multiple 

conversations regarding enhanced interrogation techniques at the 

CIA. 

Mr. ADDINGTON. With the Office of Legal Counsel, office of general counsel at CIA. 

Mr. DELAHUNT. Did the issue of waterboarding arise during the 

course of those conversations? 

Mr. ADDINGTON. I think you will find that over the years, as lawyers in the group talk, at various times, there would be discussion 

of particular techniques. 

As I indicated to the Chairman at the beginning of this, when 

the subject came up—— 

Mr. DELAHUNT. Was waterboarding one of them? 

Mr. ADDINGTON. That is what I am answering, because I know 

where you are headed. As I indicated to the Chairman at the beginning of this thing, I am not in a position to talk about particular 

techniques, whether they are or aren’t used or could or couldn’t be 

used or their legal status. 

And the reasons I would give for that, if you will look at, I think, 

Exhibit 9, the President’s speech of September 6, 2006, explains 

why he doesn’t talk about what particular techniques—— 

Mr. DELAHUNT. Oh, I can understand why he doesn’t talk about 

it. 

Mr. ADDINGTON. But you have got to communicate with alQaeda. I can’t talk to you. Al Qaeda may watch C-SPAN. 

Mr. DELAHUNT. Right. Well, I am sure they are watching and I 

am glad they finally have a chance to see you, Mr. Addington. 

Mr. ADDINGTON. I am sure you are pleased. 

Mr. DELAHUNT. Given your pension for being unobtrusive. 

In any event, there would appear to be a question then as to 

whether the use on those three occasions that have been acknowledged by the CIA and reported on the media as to the technique 

that was used, as to whether it was a violation, a per se violation 

of the convention against torture or not. 

Would you agree with me, Professor Yoo? 

Mr. YOO. Your question is you are saying there is an open question whether waterboarding in the way used by the CIA violated 

the convention against torture. 

Mr. DELAHUNT. That is what I am saying. It is an open question. 

Mr. YOO. I understand. I just want to make sure. 

Mr. DELAHUNT. Sure. 

Mr. YOO. I think one of the problems is that the convention 

against torture is interpreted different ways by different countries. 

And so if your question is does waterboarding—is the way it has 

been described by the director of the CIA, Mr. Hayden, violate the 

treaty, it may violate the treaty as understood by some countries. 

Our understanding of the treaty is defined by the criminal statute and the Torture Victims Protection Act. 

Mr. NADLER. Without objection, Mr. Watt has 1 additional 

minute, which he has yielded to Mr. Delahunt. 

Mr. DELAHUNT. I would pose this. The techniques, whatever was 

utilized on those occasions, and I think we can agree it is an open 

84 

question, if they were used on American military personnel, it 

would still be an open question as to whether they violated the convention against torture then. 

Mr. YOO. I assume you are still asking me. 

Mr. DELAHUNT. I am asking you. 

Mr. YOO. Mr. Delahunt, my understanding of the testimony that 

the head of OLC gave before the Committee was that it was his 

view that if we were using it as part of the training on our own 

servicemen and officials who might be captured, that I thought it 

was his view and his testimony that that would not be a violation 

of the statute. 

Mr. DELAHUNT. So if it was used by an enemy, because we considered that it did not constitute torture, then the enemy that utilized that on American military personnel would not be in violation 

of the convention against torture. 

Is that a fair statement? 

Mr. NADLER. The time of the gentleman has expired. 

The witness will answer this question, please. 

Mr. YOO. Sir, I don’t remember whether Mr. Bradbury went that 

far and reached that conclusion. That could be an implication of 

what his statement was, but I don’t—— 

Mr. NADLER. The question was of you, not of Mr. Bradbury. 

Mr. YOO. I know, sir, but I wanted to make sure that I am not— 

that it is clear what the Administration’s position is. I understand 

it is, because they directly answered the question to the Committee. 

Mr. NADLER. But would you answer the question? If some enemy 

interrogator used that technique on an American prisoner of war, 

would that be—— 

Mr. YOO. My view now is that it would depend on the circumstances. I think that there would—I agree with the Congressman that—— 

Mr. NADLER. Okay. Thank you. Thank you. 

It would depend on the circumstances. 

Mr. YOO. But I just want to—okay. 

Mr. NADLER. Go ahead. 

Mr. YOO. I mean, I just want to fully answer your question, sir, 

and you are cutting me off. 

Mr. NADLER. Go ahead, go ahead. Go ahead. 

Mr. YOO. Oh, I am sorry. I thought you were cutting me off again 

and I was accepting the cutoff that time. 

My only point is it would depend on the circumstances, but I am 

not saying it would never—that it would always not be torture, sir. 

Again, there is an appendix at the back of the opinion that lists 

trying to drown somebody as something that violates the Torture 

Victims Protection Act. 

Mr. NADLER. Thank you. 

The time of the gentleman has expired. All time has expired. 

Before we conclude the hearing, I want to observe there have 

been a number of unanswered questions today, some on grounds of 

privilege, others on the basis that any answer to the question 

would unavoidably get into classified information. 

We will take those matters under advisement. Depending on our 

determination, we may need to revisit some of these questions with 

85 

you, perhaps in executive session for any matters that are classified. 

Can I get a commitment from each of you to make ourselves 

available for any follow-up hearings that may be warranted? 

Mr. ADDINGTON. No, Mr. Chairman, but I will wait here as long 

as you like, if you have more questions today. 

Mr. NADLER. We have to take under advisement the question 

of—— 

Mr. ADDINGTON. I didn’t invoke any privileges in my communications. 

Mr. NADLER. No, but you invoked classified information. 

Mr. ADDINGTON. I think what I said was for the same reasons 

the President, in his speech, stated that I couldn’t discuss—— 

Mr. NADLER. That is invoking classified information. We may 

have to—— 

Mr. ADDINGTON. I didn’t. 

Mr. NADLER. What? 

Mr. ADDINGTON. I didn’t do that. I didn’t invoke any privilege. 

Mr. NADLER. Well, we will decide. 

We will determine if you did and if—I don’t think you invoked 

any privileges except for classified information. But if we determine 

that we have to have a session, an executive session to go into 

those classified matters, would you make yourself available? 

Mr. ADDINGTON. If you issue a subpoena, we will go through this 

again. But I am willing to stay here as long as you like today. 

Mr. NADLER. And, Mr. Yoo—and, Professor Yoo? 

Mr. YOO. Subject to reasonable accommodation of schedule, 

which there has been so far. 

Mr. NADLER. Fine, of course. 

Mr. YOO. I would be willing to, yes, sir. 

Mr. NADLER. Professor Schroeder didn’t invoke any privileges. 

Mr. CONYERS. Mr. Chairman, Conyers here. 

Mr. NADLER. The Chairman is recognized. 

Mr. CONYERS. Thank you. 

On balance, I would like to thank all the witnesses for coming 

forward today. They, from their perspective, have been as candid 

as they could and I think I sense an impression that for reasonable 

reasons and coordinating with all of our schedules, they might 

most probably be likely to return. 

And I want to thank them for that. 

Mr. NADLER. I thank the gentleman. 

I thank the witnesses for their appearances and their cooperation. 

I want to just clarify one other thing. I made a hasty observation 

with respect to a Member’s not objecting to—not repeating his objection to Mr. Delahunt’s testimony. 

I didn’t mean to cast any aspersions on his being here or his caring or anything else. And I want to correct the record in that respect. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward, and for the witnesses to respond as promptly as they can so their answers may be made part of the record. 

86 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

Again, I want to thank the witnesses and the Members. 

And with that, this hearing is adjourned. 

[Whereupon, at 1:48 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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EXHIBITS SUBMITTED BY DAVID ADDINGTON, CHIEF OF STAFF, 

VICE PRESIDENT OF THE UNITED STATES


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POST-HEARING QUESTIONS SUBMITTED TO DAVID ADDINGTON, CHIEF OF STAFF, 

VICE PRESIDENT OF THE UNITED STATES* 

———— 

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POST-HEARING QUESTIONS SUBMITTED TO JOHN YOO, PROFESSOR, BOALT HALL

SCHOOL OF LAW, UNIVERSITY OF CALIFORNIA AT BERKELEY* 

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CORRESPONDENCE BETWEEN PILIPPE SANDS, PROFESSOR OF LAWS AND DIRECTOR, 

CENTRE FOR INTERNATIONAL COURTS AND TRIBUNALS, AND JOHN YOO, PROFESSOR, 

BOALT HALL SCHOOL OF LAW, UNIVERSITY OF CALIFORNIA AT BERKELEY


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