U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

62–958 PDF 2011

CIVIL LIBERTIES AND NATIONAL SECURITY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

DECEMBER 9, 2010 

Serial No. 111–159 

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 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority 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 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

SHEILA JACKSON LEE, Texas 

JUDY CHU, California 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

DECEMBER 9, 2010 

Page 

OPENING STATEMENTS 

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

State of New York, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 1 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Ranking Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 3 

WITNESSES 

The Honorable Thomas R. Pickering, former Under Secretary of State for 

Political Affairs and former United States Ambassador to the United Nations 

Oral Testimony ..................................................................................................... 4 

Prepared Statement ............................................................................................. 8 

Ms. Laura W. Murphy, Director, American Civil Liberties Union 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 28 

Mr. Jamil N. Jaffer, Kellogg, Huber, Hansen, Todd, Evans & Figel Law 

Firm 

Oral Testimony ..................................................................................................... 43 

Prepared Statement ............................................................................................. 45 

Mr. Michael W. Lewis, Associate Professor of Law, Ohio Northern University, 

Pettit College of Law 

Oral Testimony ..................................................................................................... 53 

Prepared Statement ............................................................................................. 62 

Mr. Jeremy Scahill, Investigative Reporter and Correspondent for Democracy 

Now! 

Oral Testimony ..................................................................................................... 69 

Prepared Statement ............................................................................................. 72 

Mr. Bruce Fein, former Associate Deputy Attorney General 

Oral Testimony ..................................................................................................... 80 

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

Ms. Mary Ellen O’Connell, Robert and Marion Short Chair in Law and 

Research Professor of the American Society of International Law, University of Notre Dame Law School 

Oral Testimony ..................................................................................................... 103 

Prepared Statement ............................................................................................. 105 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Supplemental Statement of Michael W. Lewis, Associate Professor of Law, 

Ohio Northern University, Pettit College of Law .............................................. 54 

Material submitted by Mary Ellen O’Connell, Robert and Marion Short Chair 

in Law and Research Professor of the American Society of International 

Law, University of Notre Dame Law School ...................................................... 116 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties .................... 150 

(1) 

CIVIL LIBERTIES AND NATIONAL SECURITY 

THURSDAY, DECEMBER 9, 2010 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 9:42 a.m., in room 

2141, Rayburn House Office Building, the Honorable John Conyers, 

Jr. presiding. 

Present: Representatives Conyers and Sensenbrenner. 

Staff Present: Sam Sokol, Majority Counsel; and Paul Taylor, Minority Counsel. 

Mr. CONYERS. Good morning. The Subcommittee will come to 

order. This is the Constitution, Civil Rights, and Civil Liberties 

Subcommittee chaired by Jerry Nadler and the Ranking Member 

is Jim Sensenbrenner. 

I want to welcome our witnesses to what I consider an unusually 

important hearing in this Subcommittee. And I begin by welcoming 

this distinguished list of witnesses, Former Associate Deputy Attorney General Bruce Fein is with us this morning; Ms. Mary Ellen 

O’Connell from the University of Notre Dame Law School is on a 

plane that is delayed, she will be here shortly; Mr. Jeremy Scahill, 

investigative reporter; Mr. Michael W. Lewis, associate professor of 

law at Ohio Northern University, Petit College of Law; Jamil Jaffer 

of the Kellogg, Huber, Hansen law firm; the director of the American Civil Liberties Union Washington office, Laura Murphy; and 

the Honorable Thomas R. Pickering, the former Under Secretary of 

State and former United States ambassador to the United Nations. 

Without objection, of course, all of the witnesses statements will 

appear in the record. 

And before I ask you to begin Ambassador Pickering, I and Mr. 

Sensenbrenner wanted to make a couple of comments with reference to the issue that brings us here today. The subject is a hearing on national security and civil liberties. Obviously the first question is, is there a tension between the two, or are there areas of 

compatibility? The power of what has begun to be termed the imperial presidency grows, and the ability of our democratic institutions, especially the Federal legislative branch, us, to constrain it, 

seems more uncertain. 

And so to begin with, there seems to be agreement that in the 

43rd presidency, there was left behind a grossly expanded national 

security state, and a tragic legacy of civil rights abuses. To wit: the 

2 

creation of off-the-books Black sites, the use of waterboarding and 

other tortures, an apparent violation of United States and international law. The cover-up of these crimes by the admitted destruction of videotapes of some of these brutal interrogations, a destruction that appears to have been not only intentional, but in violation 

of court orders. 

The construction of a vast domestic surveillance apparatus in 

widespread warrantless wiretapping. The mass detentions at 

Guantanamo Bay prison, a scheme so ill-conceived that the Supreme Court and the lower Federal courts have overruled the previous Administration’s judgment more than one dozen times. Extraordinary rendition of suspects to foreign governments for abusive interrogation. 

The Guantanamo situation is further complicated by the fact 

that, last night, there was found out in the continuing resolution 

that there was a provision inserted by still no one knows who, that 

allowed—that prevented anyone on Guantanamo—the prosecutors 

would no longer determine whether they would prosecute under an 

Article 3 Federal court or whether there would be a military commission. 

There was language in there that said there would be only military commissions. That never went to Judiciary Committee, and it 

nearly resulted in the whole bill collapsing, because myself and at 

least three or four other Members were prepared to vote against 

the whole resolution. We did not and the bill barely passed. 

The extraordinary rendition of suspects to foreign governments 

for what is more likely to be expected abuse of interrogation. The 

ignoring of congressional enactments such as the McCain amendment, preventing abuse of detainees, through illegitimate signing 

statements. The repeated invocation of the state secrets privilege, 

with has gone on in recent years, including this Administration, to 

an incredible new height, to shut down complaints, investigations 

and lawsuits challenging executive branch action, such as illegal 

domestic surveillance, torture and rendition. The making of numerous unsubstantiated claims of executive privilege to create legal immunity from congressional subpoena, to avoid legislative oversight 

claims. When challenged in Federal court by the House Judiciary 

Committee, the House Judiciary Committee prevailed. 

And then on top of all these, the USA PATRIOT Act passed by 

a compliant and overreactive Congress in the weeks following 9/11. 

Multiple Department of Justice reviews have found abuse of the 

PATRIOT Act provisions on National Security letters, which allows 

records to be seized on the thinnest legal showing of mere relevance, and require abusive gag orders. Other provisions of the PATRIOT Act such as the so-called library provision and the sneak 

and peek searches equally threaten, in my view, our liberty. 

The 44th President started his term on a positive note when he 

said he would ban torture, the use of secret prisons or Black site, 

ordered the Guantanamo detention camp closed, revoked gravely 

flawed office of legal counsel memos on torture and other related 

subjects. 

But the Administration has failed to adequately investigate, 

much less prosecute apparent national security crimes, including 

torture and waterboarding, and does not appear to have even inVerDate Aug 31 2005 13:42 Jan 20, 2011 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\CONST\120910\62958.000 HJUD1 PsN: 62958
3 

vestigated who approved or ordered these activities in the first 

place. This would include investigation of the 43rd President, who 

has written a book personally admitting and giving details of how 

and why he did what he did. 

The present Administration has refused to prosecute the intentional destruction of the evidence of the crimes of what he did. 

That is known for anybody that has been around a few years, the 

cover-up, which is usually more prosecutable than the crime itself, 

evidence of these crimes, CIA videotapes of the interrogations 

themselves. 

The formerly secret State Department cables recently released 

show that in addition to refusing to carry out its own investigation 

of torture, the Administration, this Administration, worked to 

squelch other countries investigating the same subject matter. And 

I have citations that will be brought in on all of these. 

The Administration continues to rely on clearly overbroad interpretations of the state secrets privilege, to shut down lawsuits challenging executive branch activity that can be termed as misconduct, inappropriate or illegal. 

Public reports describe the extensive use of drones not only in 

the battlefield but where villages and huge civilian populations can 

be destroyed, which amounts to an incredible extension of war in 

a new sense unlike any that we have experienced before. 

I know everyone has read about the claim that this Administration and previous ones have claimed the power to target and assassinate anyone determined to be an enemy, including Americans. 

This President has implied that the Administration may resort to 

detaining individuals indefinitely without trial. 

Fortunately, it hasn’t gone beyond the thinking out loud about 

it, but to me and to other Members on this Committee, it is fundamentally at odds with the Constitution and the traditions of freedom and due process of law. And despite the effort of the President’s task force, Guantanamo Bay detention camp remains open 

with 170 people still in limbo; detainees or prisoners, still in limbo. 

And while we in the Congress, and I am not trying to exclude us 

from receiving some of the criticism that I am directing to the other 

branch of government, it is an important and critical subject matter that brings us here today. I am very proud of the fact that the 

former Chairman of Judiciary Committee, Jim Sensenbrenner, is 

with us as the Ranking Member and I would recognize him at this 

time, thank you. 

Mr. SENSENBRENNER. Well, thank you very much, Mr. Chairman. 

And listening to the opening statement of my esteemed friend, the 

gentleman from Michigan, I think he has turned the calendar back 

2 years, because this sounds like the speech that he gave indicting 

the Bush administration 2 years ago and there just hasn’t been any 

hope and change around here. 

Mr. CONYERS. That is right. 

Mr. SENSENBRENNER. Okay. Well, you were supposed to bring 

about the hope and change and you know we are still waiting for 

it. What I can say is that this Committee approved a reauthorization of the PATRIOT Act without any change. That is the PATRIOT Act that I wrote following 9/11 and the national security 

letters issue was not one of the expanded law enforcement funcVerDate Aug 31 2005 13:42 Jan 20, 2011 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\CONST\120910\62958.000 HJUD1 PsN: 62958
4 

tions in the PATRIOT Act, but was a law that was originally enacted in 1986 sponsored by Senator Leahy and Representative Kastenmeier. 

Now, just yesterday in the continuing resolution, which my good 

friend Mr. Conyers and our Subcommittee Chair, Mr. Nadler voted 

for, contained a provision that prevents the Administration from 

closing Guantanamo and relocating the detainees in the United 

States and prohibits the transfer of any detainee who is not a U.S. 

citizen and who is held in the Guantanamo detention center on or 

after June 24th, 2009. And that is despite the efforts of the Administration and the executive order the President signed earlier in his 

tenure in office. 

So, you know, I don’t see why we need to have this hearing 

today, because it is talking about things in the past, it is talking 

about things that my friend, Mr. Conyers and Mr. Nadler, voted to 

continue when they voted for the continuation resolution yesterday. 

So if he wishes to continue with this hearing, I think that is fine, 

he is the Chairman. But I want to wish him and everybody in the 

room a very blessed Christmas season and a productive new year, 

because next year when this Committee is under new management, 

we will be much more productive, much more relevant and we 

won’t be looking at the calendar of last year or 2 years ago. Thank 

you. 

Mr. CONYERS. Well, I thank you, at least for coming to the meeting to make your statement, Mr. Sensenbrenner. 

Of course, a hearing can only be held on things that happened 

in the past. I have never heard of a hearing—well, around here I 

have heard of hearings on things that are going to happen in the 

future, but more than normally, they are in the past. 

Mr. CONYERS. Ambassador Thomas Pickering is vice chairman of 

Hills and Company, an international consulting firm and serves as 

the member of the Constitution Projects Liberty and Security Committee. 

He has had a distinguished career spanning over five decades as 

a United States diplomat serving as Under Secretary of State for 

political affairs, ambassador to the United Nations. Ambassador to 

Russia, ambassador to India, Israel, Nigeria, Jordan and El Salvador. 

I must say, Ambassador, I read your submitted statement, which 

is now being printed in the record and was amazed at the depth 

and breadth and conviction that keeps you coming before us and 

working in government in your own way. We thank you and appreciate you being here and invite you to make your statement at this 

time. 

TESTIMONY OF THE HONORABLE THOMAS R. PICKERING, 

FORMER UNDER SECRETARY OF STATE FOR POLITICAL AFFAIRS AND FORMER UNITED STATES AMBASSADOR TO THE 

UNITED NATIONS 

Mr. PICKERING. Thank you, Mr. Chairman and Members, and 

thank you for your kind words. I am pleased to come before you 

as a diplomat with extensive service in the country with a single 

simple message. I don’t believe that our national security and protection of our civil liberties are mutually exclusive. In fact, I believe 

5 

they are intimately tied together. The key task is to work together 

to find ways to assure both priorities are met in the interest of our 

people and of their government. What we do as a Nation in this 

area determines whether we have the support and backing of our 

friends around the world and the respect of all who look to us for 

leadership. Failure to follow our principals regarding civil liberty 

loses that respect. Even more, it sets an example for others that 

either we don’t care or we have made expediency and compromises 

with our principles an overriding necessity. Once we do that, others 

will, of course, follow. 

The limits on their actions will not be set by us or others, but 

by what they believe they can and need to do to meet their immediate needs with little or no respect for human rights. We will then 

be in a position where our own citizens from whatever walk of life 

will be fitted into their construct and held for an indefinite period, 

and be subject to trials that do not assure the high standards to 

which we aspire and left with little for our diplomats to use to assist our personnel, our people, our citizens under these conditions. 

All of this reflects on our role as a state, which aspires to lead 

in the field of human rights, which is looked to by many to do so, 

and where we play a role that deeply impacts on our interests, including our security at home. 

The trial of terrorism suspects is obviously of deep concern, the 

recent Ghailani terrorism prosecution in New York. Despite the 

disappointment of many that the convictions were not more sweeping is an example of the United States pursuing the right procedures in the correct court in trying terrorism suspects. 

The Ghailani trial was only one out of over 400 terrorism-related 

trials that demonstrate that we can use Article III courts. I have 

already explained why I believe the use of our traditional criminal 

justice system has helped us to preserve and to protect our foreign 

policy interests. 

The American justice system is the established standard, maybe 

even the gold standard around the world. An effort on the part of 

the United States to strengthen and preserve the use of alternative 

methods, specifically for terror-related crimes has appeared to the 

rest of the world to detract from, rather than strengthen our system of justice and by alternative methods, I am obviously here referring to military commissions. 

Within our own judicial arrangements during the last review by 

the United States Supreme Court of military commissions, it appeared that they failed to meet constitutional standards. Recently, 

there have been increased calls for the use of indefinite or preventive detention, instead of trying suspected terrorist detainees at all. 

I believe that indefinite detention of individuals without charge 

under any guise short of prisoners of war, and traditional state-tostate military conflicts, either declared or undeclared, raises all of 

the problems of abuse of state power to the detriment of individual 

rights. 

In my view, a system of indefinite detention without charge contravenes central principles of our own Constitution and national 

standards of a right to notice of charges and to trial. The detention 

issue presents a central conundrum of what to do when we believe 

all of the information at our disposal indicates that the detainee is 

6 

guilty, but we cannot put him or her through a Federal trial for 

one or more reasons. One such reason is that the information to be 

used at trial has been tainted by illegal and unacceptable methods 

of interrogation. One example is information found to be inadmissible, such as that in the Ghailani trial. 

We have a treaty obligation not no engage in torture or cruel, inhuman or degrading treatment. These practices also contravene domestic legislation. Although we all now agree that torture must be 

prohibited, the value of information obtained through so-called enhanced interrogation techniques is widely debated in the intelligence world. The preponderance of evidence in my view is against 

the utility of such practices based on a reading of the materials 

which discuss it extensively. 

In addition to the moral and legal issues, many studies have 

found that evidence obtained through coercion is inherently unreliable. That raises the question about what to do with defendants in 

this category. The options are stark and challenging. They can be 

tried on the admissible evidence as Ghailani was. They can be sent 

to jurisdictions which may have more evidence or different charges 

against which to try them outside our country. They can be, in the 

end, released. 

That, in my view, of course, is a serious and difficult option, but 

it is not an option that obviously we can ignore. The danger here 

is that they will attempt once again to launch attacks on our country and its people. The danger has to be balanced against the fact 

that the high-level leadership of al-Qaeda, bin Laden and Zawahiri 

and others also remain at large. These are not easy choices, Mr. 

Chairman. But the shorter term tactical considerations need also 

to be balanced against the longer-term human rights and strategic 

issues for our country. 

The second reason with respect to trial is that information was 

derived through intelligence collection where the tradition and the 

national interest are to protect the sources and methods of collection. The government has developed a practice of clearing and 

briefing judges and attorneys for a use of this protected evidence 

in courts under the Classified Information Procedures Act of 1980. 

There are, in that legislation, ways to protect sources and methods 

while making the principal elements of the evidence clear to those 

who need to know, including the defendant. This seems to be a respectable and responsible way to proceed. 

Safeguarding privacy and avoiding unnecessarily secrecy. As you 

yourself have just told us, it is self-evident that the rule of law requires appropriate safeguards to protect individuals right to privacy. States traditionally for fiscal and security purposes at their 

borders have exercised the right to examine persons and goods entering their territory on an absolute basis with exceptions only for 

diplomatic and State immunity. It is obvious that that needs to be 

done for the purpose of protecting the country in carrying out its 

laws on trade and commerce, but such searches must also be conducted in a manner that minimizes intrusion into individual privacy. 

In addition, we use the process of issuing visas to permit people 

to present themselves at our borders for admission into the counVerDate Aug 31 2005 13:42 Jan 20, 2011 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 H:\WORK\CONST\120910\62958.000 HJUD1 PsN: 62958
7 

try. We do so in a way that, among other things, reduces security 

risks. 

We should, however, avoid a blanked selection of everyone from 

one or a number of countries for special treatment and review, 

wherever possible, including in their background. Instead, we 

should rely on actual intelligence and the application of standards 

of reasonable suspicion to determine which individuals actually 

pose threats. Ethnic, racial, national or other profiling have 

brought growing antagonism to the United States on the part of 

many, many innocent people who have been affected by these practices. This, in turn, has fostered resentment against the country 

which terrorists and others have used to recruit individuals to act 

against the United States. 

Mr. Chairman, the sum total of this is that we must comport 

ourselves in the prosecution, and indeed, the detention, and the 

other aspects of our concern, rightful concern about terrorism in 

ways that continue to enhance our capacity to lead in the world, 

particularly in the areas of human rights and civil rights. We must 

treat individuals in accordance with our Constitution as we would 

expect to have our citizens treated around the world. And we 

should do so in ways that balance the security needs that we have 

with the rights to civil and the human rights in this country. That 

is the essence of my discussion here this morning and I thank you 

for the opportunity. 

Mr. CONYERS. Ambassador Pickering, I want to congratulate you 

and hope that you continue to speak and read and write on the 

subject of your experience for a long time to come. 

Mr. PICKERING. Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you very much for opening this discussion 

up. 

[The prepared statement of Mr. Pickering follows:] 

8 

PREPARED STATEMENT OF THE HONORABLE THOMAS R. PICKERING


TP-1.eps
9 


TP-2.eps
10 


TP-3.eps
11 


TP-4.eps
12 


TP-5.eps
13 


TP-6.eps
14 

ATTACHMENT 


TPA-1.eps
15 


TPA-2.eps
16 


TPA-3.eps
17 


TPA-4.eps
18 


TPA-5.eps
19 


TPA-6.eps
20 


TPA-7.eps
21 


TPA-8.eps
22 


TPA-9.eps
23 


TPA-10.eps
24 


TPA-11.eps
25 

Mr. CONYERS. I turn now to the director of the American Civil 

Liberties Union, Laura Murphy. Her family is very well known. 

Her father created, was it the Pittsburgh Courier? 

Ms. MURPHY. My great grandfather created the Afro-American 

newspapers. 

Mr. CONYERS. What were they called? 

Ms. MURPHY. The Afro-American newspapers. 


TPA-12.eps
26 

Mr. CONYERS. And they were nationwide? 

Ms. MURPHY. They were in five cities, Richmond, Philadelphia, 

Newark, Baltimore, Washington, D.C., Richmond. 

Mr. CONYERS. Well, I used to deliver something that had Murphy 

on it. 

Ms. MURPHY. It was the Afro. 

Mr. CONYERS. Yes. And her brother is a distinguished civil rights 

lawyer now in New York. She herself has 30 years of policymaking 

and political expertise at both the national, State and local levels. 

In previous professional positions, Ms. Murphy has served as chief 

of staff to the California assembly speaker, a cabinet member for 

the mayor of the District of Columbia, an account executive for a 

public affairs organization, and a legislative assistant for two Members of the House of Representatives. 

She represents the Washington branch of an organization that is 

very distinguished and is well-known to the House Judiciary Committee because they come before us so regularly. The one comment 

I have about her paper, because it was in small print and it had 

to be enlarged for my reading, is that it is the longest and one of 

the best papers. 

Normally, when we get large quantities of speech preparation, 

we say, uh-oh, but this was not the case in your case. I want to 

commend you for the thorough review of the subject matter before 

us and the work of ACLU in this regard. And we welcome you this 

morning before our Committee. 

TESTIMONY OF LAURA W. MURPHY, DIRECTOR, 

AMERICAN CIVIL LIBERTIES UNION 

Ms. MURPHY. Thank you, Mr. Chairman. And it has been my 

honor since I first became a lobbyist for the ACLU in 1979 to have 

known you and worked with you over all of these years. And we 

so appreciate your stewardship of this Committee. Thank you for 

being here today. 

I appreciate the opportunity to testify on behalf of the ACLU on 

this important subject. There is no question that the 9/11 attacks 

were a serious blow to our Nation. And the risk of significant future attacks is a frightening prospect and something our government must work to prevent. But we must work intelligently to prevent attacks, and we must do so with the integrity that we as 

Americans owe to our constitutional heritage, ourselves, and to future generations. 

In particular, history teaches us that the executive branch of the 

U.S. Government regardless of the party in power always seizes opportunities to expand its own power, and the American people need 

Congress to serve as a healthy check on that tendency. We need 

to make sure that the steps we take to protect ourselves are smart 

ones. And we need to keep faith with our Nation’s highest ideals 

as outlined in the bill of rights, which are the source of the real 

strength of our Nation. 

In recent years in the wake of 9/11, unfortunately we have not 

done this. The examples are many, and as you say, my staff has 

prepared excellent testimony illustrating many of these examples: 

Illegal warrantless wiretapping; the targeted killings of Americans 

without trial far from any battlefield; unjustifiably intrusive airline 

27 

security measures; military commission; state secrets; indefinite detention; out-of-control watchlists; the PATRIOT Act. 

Never before has the executive branch had such sweeping powers. This is a radical departure for our country. Despite the summer clamoring to give even more broad powers to the executive 

branch. Let me briefly mention three that the Congress is likely to 

confront: Authorization for the use of military force. One absolutely 

crucial issue is indefinite detention and the authorization for use 

of military force. Twice introduced by the incoming full Committee 

Chairman, Lamar Smith and Senator Lindsey Graham their legislation would declare that the U.S. is in a worldwide war without 

end. It is just two simple sentences in their proposal, but it would 

drastically expand the power of executive even further and forever 

alter the course of U.S. history. 

We wonder how many Members of Congress realize the monumental effect that the proposed new declaration of war would have. 

It has no time limits or geographic boundaries; it authorizes indefinite imprisonment without charge or trial, including against Americans in America. Is this the heritage our generations wants to 

pass along to future Americans? 

A second issue that Congress will be confronting is the Obama 

administration’s reported plans to change the very architecture of 

the Internet to make eavesdropping easier. As reported, this radical proposal would require all on line services, even those which 

operate by putting individuals in direct contact with each other 

using encryption to restructure the way their services work in 

order to make it easier for the government to eavesdrop upon demand. This step would interfere with technological innovation, create significant new cybersecurity vulnerabilities, reduce privacy 

and chill expression on the Internet, impose great dangers of 

abuse. 

The third upcoming issue I wanted to mention, which will be before this Committee very shortly, is the reauthorization of the PATRIOT Act. There are a couple of sections up for reauthorization 

before February 28th, including section 215, the so-called library 

provisions, which gives the government sweeping new powers to 

seize records or goods from anyone, even people who aren’t suspected of doing anything wrong, who are somehow just relevant to 

an investigation. Roving John Doe wire taps. 

The Fourth Amendment Requires warrants to state with particularity the things to be search or seized. But this sweeping authority 

permits the government to get an order without naming either the 

place or the person to be tapped. Either one or the other should be 

required. 

Protecting the Constitution is not a partisan issue. The executive 

branch, whether under control of Democrats or Republicans, tends 

to push for expanded powers of monitoring and control over the 

American people. It is up to the legislative branch to push back. 

In closing, Mr. Conyers, I am sorry that Mr. Sensenbrenner 

wasn’t able to stay longer, but I would ask that the Committee 

allow to be put in the record a report recently issued by the ACLU 

called the New Normal, talking about how many of the expanded 

executive branch powers have been carried over by the Obama administration. 

28 

Mr. CONYERS. Without objection, we will do that. 

Ms. MURPHY. Thank you. 

[The prepared statement of Ms. Murphy follows:] 

PREPARED STATEMENT OF LAURA W. MURPHY


LM-1.eps
29 


LM-2.eps
30 


LM-3.eps
31 


LM-4.eps
32 


LM-5.eps
33 


LM-6.eps
34 


LM-7.eps
35 


LM-8.eps
36 


LM-9.eps
37 


LM-10.eps
38 


LM-11.eps
39 


LM-12.eps
40 


LM-13.eps
41 


LM-14.eps
42 

Mr. CONYERS. Thank you very, very much. 

I am now pleased to welcome Jamil Jaffer, Esquire of the Kellogg 

firm. He has previously served as associate counsel to the President from 2008 to 2009, as a counsel to assistant Attorney General 

at the Department of Justice, the National Security Division, and 

as counsel to the Department’s Office of Legal Policy from 2005 to 


LM-15.eps
43 

2006. We have your statement, Attorney Jaffer, and we welcome 

you to the hearing this morning, you may proceed. 

TESTIMONY OF JAMIL N. JAFFER, KELLOGG, HUBER, 

HANSEN, TODD, EVANS & FIGEL LAW FIRM 

Mr. JAFFER. Thank you, Mr. Chairman. I would like to thank the 

Chairman and the Ranking Member for inviting me here to testify 

today. 

I would like to spend my opening statement discussing the difficult questions that arise with respect to what to do about the detainees in Guantanamo Bay, the remaining 170 detainees. 

There are basically four options: We can try these detainees in 

Federal courts, we can try them in military commissions, we can 

create a new national security court and try them there, or we can 

detain them with no trial, no process other than the evaluation of 

status, and detain them until the duration of conflict is over. 

Now, the current approach of this Administration and the prior 

Administration, largely not changed, is a combination of the first 

two approaches, try them in Federal court or try them in military 

commissions. There is a fundamental problem with this approach 

though. First, I would note that under the law, these individuals 

detained at Guantanamo Bay have no constitutional rights except 

what the Supreme Court has given them. And those constitutional 

rights are fairly limited. They are limited to a review in Federal 

court of their status as enemy combatants. These are folks captured on the battlefield, captured abroad and held abroad in Cuba. 

Now they have no right to a trial in Federal court. They have no 

rights that come with the right to a trial in Federal court: the right 

to a jury, the right to the exclusionary rule and other similar 

rights. 

The criminal justice system that we have in this country is designed to exonerate the innocent and convict the guilty. And in 

doing so, we build in a strong presumption in favor of innocence. 

In essence, we stack the decks against conviction. This makes a lot 

of sense. This is as it should be in the criminal context. Because 

based on our view—long held in this country—that it is better if 

many of the guilty get off in order to save one innocent from being 

convicted. 

So we confront then a policy question, not a legal question, but 

a policy question whether this same approach should be applied to 

enemy combatants captured abroad on the battlefield of war. And 

if we do so, we must consider the very real consequences. That is, 

if we fail to convict these detainees in Federal court, the typical 

analysis would suggest release. But in an era when we are engaged 

on a global war on terrorism and we have recently learned that the 

individuals released from Gitmo, the ones that have been cleared 

for release, and have been sent abroad, return to the fight at a rate 

of 25 percent, one must wonder whether it makes a lot sense to 

take the remaining 170 detainees, try them in Federal court, and 

run the risk that we will be presented with the Hobson’s choice of 

releasing them because they haven’t been convicted, or continuing 

to detain them after they have been held not guilty by a jury. 

If we take the latter approach, which the current Attorney General said may very well happen and could very well happen with 

44 

Khalid Sheikh Mohammed if he is tried in a Federal court, and you 

have to wonder what is this project of trying folks in Federal court 

really about? If it is about showing justice being done and justice 

being done in the American way, well then, how can we possibly 

justify continuing to detain these folks after they have been found 

not guilty by a Federal jury? And yet, we can’t help but do that, 

because these are the highest value detainees. This Administration 

has gone through a review process determining that these 170, 

other than the ones who have been scheduled for release and some 

can’t be released because of the challenges of countries we would 

release them to, are a serious problem. 

Now, in addition to these issues with respect to the release of individuals who aren’t convicted, it is simply the case that many of 

the evidentiary rules in the Federal courts don’t make a lot of 

sense when the evidence and the witness come from abroad and on 

the battlefield. Moreover, there are security issues for the people 

who live near the courthouse, think New York City, the judges and 

the court staff, and civilian jurors who will be sitting in on these 

trials. Moreover, there are issues of classified information, and having worked with the talented prosecutors in the Department of Justice’s National Security Division, I can tell you that while the Classified Information Procedures Act is extremely helpful, it is certainly not a panacea. 

I would like to close briefly by returning to the basic options 

available to the government moving forward. Again, we can try 

these detainees in the Federal courts, we can try them in military 

commissions, we can create a new national security court with different rules and different approaches, and perhaps then have justice seem to be done or you can detain them, no trial and no process, save for status reviews. In my view, it is critical that this Committee is considering that we balance national security and civil 

liberties and yet we be seen to do justice. 

The Federal court project, as we have just discussed, is fraught 

with a number of difficulties. The military commissions, while better, also face significant public perception issues because of the nature of the military criminal justice system and the fact of having 

the very individuals who capture these folks try them in court. 

Many have argued the creation of a national security court staffed 

by sitting Federal judges, nominated by the President, confirmed 

by the Senate, and prosecutions brought by the talented, outstanding prosecutors in the Department of Justice, and rules that 

make more sense than the current criminal Federal court system 

for the trial of national security detainees is a reasonable approach. 

My view, expressed in other settings, is that the latter approach 

has many of the benefits of trials in Federal court without the 

downside, and it also lacks many of the downsides that come from 

the public perception associated with military commissions. 

Now this is not an easy project. The creation of a new court will 

be a substantial challenge. It would take a lot of work, but it is 

something to consider. And with that, I appreciate the Committee’s 

time, and would be happy to answer any questions the Committee 

might have. 

Mr. CONYERS. Thank you very much, Attorney Jaffer. 

[The prepared statement of Mr. Jaffer follows:] 

45 

PREPARED STATEMENT OF JAMIL N. JAFFER


JNF-1.eps
46 


JNF-2.eps
47 


JNF-3.eps
48 


JNF-4.eps
49 


JNF-5.eps
50 


JNF-6.eps
51 


JNF-7.eps
52 


JNF-8.eps
53 

Mr. CONYERS. I now turn to Michael Lewis, welcome. An associate professor of law at Ohio Northern University. Before that, he 

was a Naval aviator in the United States Navy, and he is a cum 

laude Harvard Law School graduate, which we do not hold against 

anybody in the Judiciary Committee. But we do welcome you, we 

have your statement and we would like to hear from you at this 

time, sir. 

TESTIMONY OF MICHAEL W. LEWIS, ASSOCIATE PROFESSOR 

OF LAW, OHIO NORTHERN UNIVERSITY, PETTIT COLLEGE 

OF LAW 

Mr. LEWIS. Thank you, Mr. Chairman. I would also like to thank 

Ranking Member Sensenbrenner for inviting me to testify here 

today. 

In reading the other submissions, I noted that there was also an 

extensive discussion of scope of the laws of armed conflict and the 

boundaries of the battlefield, and I actually filed a supplemental 

submission on that issue that I would like to be entered into the 

record. 

Mr. CONYERS. We will be happy to take it into the record. 

[The information referred to follows:] 

54 


MLS-1.eps
55 


MLS-2.eps
56 


MLS-3.eps
57 


MLS-4.eps
58 


MLS-5.eps
59 

Mr. LEWIS. As my written testimony focuses on the choice between Article III courts and military commissions for trying terrorists and al-Qaeda members, there is no question that Article III 

courts are capable of trying terrorist and al-Qaeda members. We 


MLS-6.eps
60 

have seen that with Richard Reid, the shoe bomber, Zacarias 

Moussaoui as well as Timothy McVeigh. I believe that there is a 

subset of terrorists or al-Qaeda defendants whose proper place is 

before military commissions rather than Article III courts. That 

subset would be the group of defendants who are apprehended 

overseas by members of the United States military. And the reason 

for that is that the Federal Rules of Evidence that determine what 

evidence gets before criminal juries in Federal court is based upon 

the police apprehension assumption, basically, the idea that law 

enforcement individuals who are trained in the preservation and 

collection of evidence in chain of custody and Mirandizing defendants and interrogating them appropriately under Miranda; in drafting very detailed police reports that will stand up to cross examination by skilled defense counsel; and, perhaps most importantly, to 

be available weeks, months or even years after the event to return 

to testify about the specifics of the arrest, again, subject to the 

cross examination of skilled defense counsel. 

These assumptions underlie the Federal Rules of Evidence, and 

none of these assumptions are valid for that subset of defendants 

who are apprehended overseas by members of the U.S. military. 

Because the members of the U.S. military combat troops are not 

trained, nor should they be trained in the collection and preservation of evidence or in the Mirandizing of defendants, or in the writing of police reports. And they are very likely to not be available 

weeks, months or years later to come back and testify about the 

specifics of the arrest, which gives a great deal of hearsay problems 

to any evidence that was collected at the time. 

As a result of this, I think there are two major concerns that I 

have. The first is, obviously, there is a great deal of evidence that 

is likely to be excluded from any trial because of the fact that these 

people are not trained in the preservation of such evidence, and we 

saw some of that in the Ghailani trial, and that was even where 

you had law enforcement agents that had gone over to Kenya and 

Tanzania to do much of the investigation. 

But the other problem, and this is one that is less discussed and 

I think equally as important, is that if you decide to tell the military that all al-Qaeda members, all terrorists will be tried before 

Article III courts, you are going to make the military become better 

police officers, and that is not something we want to do. 

In my submissions, if you look at page 4, 5 and 6, there are a 

couple of different forms that I have copied for the Committee to 

look at. On page 4, you have a standard what is called capture tag 

that was used in Afghanistan, and that is a very short piece of information that is required by the Geneva Conventions anytime you 

capture someone. It can be filled out in a minute and a half by anyone, whether they understand the Federal Rules of Evidence or 

not. 

Pages 5 and 6 contain a form that has been used by the coalition 

forces in Iraq and looks far more like a traditional police report. It 

requires a great deal of detailed information be secured by the combat forces that are doing the apprehension, and it also requires 

some understanding of chain of custody, evidence collection, et 

cetera. And the reason why this is a problem is because our combat 

soldiers only have a limited amount of time to maintain their 

61 

skills. And as someone who, at least for a brief period of time, myself, achieved a high degree of combat proficiency, I can tell you 

that that combat proficiency is very perishable. And to the extent 

you take away training time from combat proficiency in order to 

learn how to properly withstand cross examinations, fill out police 

reports, and keep evidence, you are likely to degrade the combat 

effectiveness of the troops that are being asked to do that. 

So I would ask that we do not make that requirement of our men 

and women overseas that are in combat. Thank you for the time. 

[The prepared statement of Mr. Lewis follows:] 

62 

PREPARED STATEMENT OF MICHAEL W. LEWIS


Lewis-1.eps
63 


Lewis-2.eps
64 


Lewis-3.eps
65 


Lewis-4.eps
66 


Lewis-5.eps
67 


Lewis-6.eps
68 

Mr. CONYERS. Thank you very much, Professor Lewis. We turn 

now to a Puffin Foundation writing fellow at the Nation Institute, 

a non profit media center. Mr. Jeremy Scahill, he is investigative 

journalist, an author and a correspondent on both radio and television programs. We welcome you here this morning, your statement will be included in the record, welcome. 


Lewis-7.eps
69 

TESTIMONY OF JEREMY SCAHILL, INVESTIGATIVE REPORTER 

AND CORRESPONDENT FOR DEMOCRACY NOW! 

Mr. SCAHILL. Thank you very much, Mr. Chairman. I am the national security correspondent for the Nation Magazine and proud of 

our editor, Katrina vanden Heuvel. 

I would like to thank the Chairman in this Committee. I wish 

that Ranking Member Sensenbrenner was here, I am from his 

State of Wisconsin. I would have liked to engage with him on some 

of these issues. 

As we sit here today in Washington across the world, the United 

States is engaged in multiple wars, some like those in Afghanistan 

and Iraq are well-known, but there is another war, a covert shadow 

war, being waged in darkness by U.S. special operations forces and 

the CIA across the globe. This war is largely void of any effective 

or meaningful congressional oversight, and takes place in countries 

like Yemen, Somalia and Pakistan, nations with which the U.S. is 

not officially at war. 

The actions and consequences of this shadow war are seldom discussed in public, or investigated by the Congress. And yet they 

have a direct impact on the debates and legislation on national security and civil liberties here at home. 

Far from discussing the distant past, as Mr. Sensenbrenner indicated, I intend to talk about current U.S. policy and how the 

Obama administration has continued some of the most outrageous 

policies and dangerous policies of the Bush administration. 

The current U.S. strategy in the shadow war can be summed up 

as follows, we are trying to kill our way to peace, and the killing 

fields are growing in number. Congress has a responsibility to soberly and seriously address crucial questions. What impact are 

these clandestine operations having on U.S. national security? Are 

they making us more safe or less safe? When U.S. forces kill innocent civilians in so-called counterterrorism operations, are we inspiring a new generation of insurgents to rise against our country. 

And what is the oversight role of U.S. Congress in the shadow wars 

that expand the Bush and Obama administration. The most visible 

among these shadow wars, Mr. Chairman, is in Pakistan where the 

U.S. regularly bombs that country using weaponized drones. At the 

same time, U.S. special operations forces are engaged in covert offensive actions in Pakistan, including hunting down so-called high 

value targets and conducting raids with Pakistani forces in north 

and south Waziristan. These actions are carried out in secret and 

have been publicly denied by senior Pentagon and State Department officials who stated that there are no U.S. troops in Pakistan, 

or that the only role of U.S. troops there is to train Pakistani 

forces. Such statements made recently by Ambassador Richard 

Holbrooke and Pentagon spokesperson Geoff Morrell, their statements are demonstrably false. 

U.S. Officials have consistently misled the American public and 

the Pakistani people on the extent of U.S. military operations in 

Pakistan. If Congress is kept in the dark about these operations, 

Mr. Chairman, how can it expect to honestly and effectively debate 

U.S. on Pakistan? 

One of the most off-the-radar wars the U.S. is currently waging 

is in the Horn of Africa and the Gulf of Aden, where U.S. Forces 

70 

are increasingly attacking forces from al-Qaeda and the Arabian 

Peninsula. As with the presence of U.S. Forces in Pakistan, publicly the Obama administration insists that its role in Yemen is 

limited to training and equipping the country’s military forces. 

This is false. On multiple occasions, the United States has 

launched cruise missiles carrying cluster bombs at villages in 

Yemen, killing scores of people, among them, women and children. 

Two such attacks took place last December. One of them was reportedly aimed at targeting a U.S. citizen, Anwar al-Awlaki to execute him without trial. Special operation sources have told me that 

elite U.S. Special ops have also engaged in lethal ground operations 

directly in Yemen. As in the case of U.S. drone strikes in Pakistan, 

the Yemeni authorities are colluding with American officials to 

cover up and mask the extent of U.S. involvement. 

In a meeting with General David Petraeus in early January 

2010, Yemen’s president reportedly told the General, ‘‘We will continue to saying the bombs are ours, not yours.’’ U.S. special ops 

forces have launched at least six attacks in Somalia in recent 

years, including multiple helicopter assaults and Tomahawk missile attacks. 

The most recent operation we know of in Somalia was a helicopter attack in September 2009 under the current President’s 

command. 

These ongoing shadow wars, Mr. Chairman, confirm an open secret that few in Congress are willing to discuss publicly, particularly Democrats. When it comes to U.S. counterterrorism policy, 

there has been almost no substantive change from the Bush to the 

Obama administration. In fact, my sources within the CIA and the 

special operations community tell me that if there is any change, 

it is that President Obama is hitting harder, hitting in more countries than President Bush. The Obama administration is expanding 

covert actions of the military in the number of countries where U.S. 

special forces are operating. The Administration has taken the 

Bush era doctrine that the world is a battlefield, a favorite of the 

neocons, and run with it and widen its scope. 

Under the Bush administration, special forces were in 60 countries around the world; under President Obama, they are in 75. As 

a special operations veteran told me, President Obama has, ‘‘Let 

U.S. special operations forces off the leash.’’ 

As I just returned from Afghanistan, Mr. Chairman, I would like 

to share with this Committee part of my investigation into deadly 

U.S. Night raids in that country where innocent civilians were 

killed. These operations carried out by the same special ops team 

that operate in Yemen, Pakistan and Somalia are part of what is 

effectively a shadow war within the more publicly visible war in Afghanistan. 

In one incident in February of this year, U.S. special operations 

forces raided a civilian compound in the Gardez district of Paktia 

Province. They killed two pregnant women, a teenage girl and two 

men. U.S. forces tried to cover up their responsibility for the 

killings and blame the Taliban and said the women were executed 

in an honor killing. That was a blatant lie, Mr. Chairman, and 

eventually the U.S. was forced to admit its responsibility. These inVerDate Aug 31 2005 13:42 Jan 20, 2011 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6601 H:\WORK\CONST\120910\62958.000 HJUD1 PsN: 62958
71 

nocent Afghans were killed by soldiers from the joint special operations command. 

I went to visit with that family in their home in Gardez. They 

were pro American and anti Taliban before this raid. In fact, the 

night U.S. Forces stormed their compound, they thought it was a 

Taliban attack. The two men who were killed were actively working with U.S. forces. One of them was a top police commander 

trained by the United States. The other was a local prosecutor in 

the Karzai government. One man who saw his pregnant wife 

gunned down by U.S. Forces was hooded, and handcuffed, and 

taken prisoner for days by American forces. When he was released, 

he told me he wanted to become a suicide bomber and blow himself 

up among the Americans. To date, the only remedy that the United 

States has offered this family were two sheep for them to sacrifice. 

A similar story happened when I visited Nangarhar Province, 

U.S. forces raided the Kashkaki family’s compound in May of 2010, 

killing 8 civilians. Local police officials told me the family had no 

connection to the Taliban. That family is left asking why they 

should support the U.S. presence in their country after watching 

their loved ones shot dead before their eyes by a military that 

claims to be there to liberate them and free their country. These 

raids and the civilian death they cause are hardly isolated incidents. 

In closing, Mr. Chairman, I told both of these families targeted 

in those raids that I described that I would bring their cases before 

the U.S. Congress and ask that they be investigated and that those 

responsible be held accountable. On behalf of those families I humbly ask this Committee to consider this request. Thank you, Mr. 

Chairman. 

[The prepared statement of Mr. Scahill follows:] 

72 

PREPARED STATEMENT OF JEREMY SCAHILL


JS-1.eps
73 


JS-2.eps
74 


JS-3.eps
75 


JS-4.eps
76 


JS-5.eps
77 


JS-6.eps
78 


JS-7.eps
79 

Mr. CONYERS. I would like to get the details on both of them. 

And would you also, when you submit, would you identify the 75 

nations that you say we have gone up from 60 to 75. 


JS-8.eps
80 

*The material referred to was not received by the Subcommittee at the time of the printing 

of this hearing. 

Mr. SCAHILL. Mr. Chairman, that information remains classified. 

I have been able to gather about a dozen of them from Special Operation sources, but I will submit to you the information that I 

have thus far and documentation to support the 75 statistic.* 

Mr. CONYERS. Thank you very much. 

I now am very pleased to introduce as our next witness Bruce 

Fein. For years he served as Assistant Director of the Office of 

Legal Policy, legal adviser to the Assistant Attorney General for 

Antitrust, and the Associate Deputy Attorney General of the 

United States. 

Mr. Fein has also served as the general counsel of the Federal 

Communications Commission, followed by an appointment as research director for the Joint Congressional Committee on Covert 

Armed Sales to Iran. And I hesitate to add this, but he also is a 

graduate from Harvard Law School with honors. 

We welcome you, Bruce Fein, to this hearing. 

TESTIMONY OF BRUCE FEIN, FORMER 

ASSOCIATE DEPUTY ATTORNEY GENERAL 

Mr. FEIN. Thank you, Mr. Chairman. 

The law reflects the moral deposit of the time. And I think the 

issue that you have raised at this hearing, civil liberties and national security, represents a revolution for the worse in the American political culture and psychology. 

The United States was born with the idea that the individual 

was the center of the universe and due process was to be praised 

and venerated above all else. And the reason wasn’t to win foreign 

allies and international support, although that was something that 

would not be unwelcome, but it was because of who we are as a 

people, who we are as a people. Do we care about freedom more 

than absolute safety? Do we care about due process more than 

domination for the sake of domination? 

And I think I would like to illustrate the degradation in our political culture to a way that we resemble more China and Russia 

than we do the United States in 1776 or 1787 by some comparisons. 

I think the first is are we at war? It is the characteristic of all 

empires to inflate danger from a reasonable level into thousands or 

millions of times above that level in order to justify an extra increment of safety. And if you examine today the enemy-to-soldier ratio 

of the United States and Afghanistan and Pakistan—and our CIA 

and our counterterrorism experts estimate we have 50 to 100 alQaeda in Afghanistan at present, maybe 300 in Pakistan—if you 

take that current enemy-to-soldier ratio and apply it to what our 

Armed Forces would have looked like in World War II fighting 

Japan and Germany, we would have fielded a military of 31⁄2 billion soldiers. Including conscripting every single American, we 

would have to multiply the population by 126. And our enemies in 

World War II were not those who were in caves and had primitive 

access to technology or weapons; these were people in Germany 

81 

and Japan building V-1, V-2 rockets, Zero airplanes, kamikaze pilots, et cetera. And yet we did not suspend due process of law. 

In my judgment, one of the greatest errors that we have made 

in addressing this whole issue is to conclude that 9/11 did cross the 

threshold of danger that put us at war. And that is very critical, 

Mr. Chairman, because war is very unique because it makes what 

is customary murder legal. That doesn’t mean it should never happen, but that is a very grave step to take. What is customarily 

murder becomes legal. 

And that is where we are today with, I think, the authorization 

to use military force and really without much debate or discourse 

at all, saying al-Qaeda represents that level of danger that justifies 

moving from a criminal justice system to where we treat these people as international thugs and dangers to being warriors subject to 

the rules of war. 

But that is just one example. 

Another example, if we look at where we were at the outset and 

where we are today, you remember the Boston Massacre, and we 

had someone named John Adams, and he was a lawyer. He defended some of the British soldiers who were accused of massacring 

protesting Americans at the time, and he was placed under much 

criticism. He was actually defending the rule of law, and he won 

acquittal from those British soldiers. He later became a President 

of the United States. He was the first Vice President as well. 

Today this culture treats those who would defend those accused 

of crimes. If you call them a terrorist crime, would you get elected 

President? No. You would get on the banned list. No one should 

hire you. You should be treated as a pariah if you are defending 

the rule of law. Indeed, we have lowered to the situation where we 

have had a former Solicitor General of the United States say that 

someone who defends an organization allegedly listed as a—false, 

wrong as a foreign terrorist organization, to provide legal assistance is a material assistance prohibited under a material assistance law. Now, that sounds like a lawyer practicing in Russia or 

in China, not the United States of America. 

Now, let me give you the odyssey of Khalid El-Masri to show 

again how far we have come in degrading the rule of law. 

Khalid El-Masri was a German citizen of Lebanese ancestry, and 

after 9/11, he was picked up—kidnapped, if you will—from Macedonia, taken to Afghanistan, imprisoned there. He was tortured. 

He was abused. He was dumped back in Albania. All of this never 

being accused of any crime whatsoever. 

In Germany, there are 13 arrest warrants that were initially 

issued in order to try to bring to justice CIA operatives. The United 

States of America urged and exhorted the Germans to stop, don’t 

go this far; you will upset the international opinion toward us. The 

rule of law should be crucified on a national security cross. And 

those arrest warrants were then never executed. 

Mr. El-Masri then comes to the United States, and he brings a 

lawsuit claiming that the Constitution has been violated, and he is 

suing CIA Director then George Tenet and others for constitutional 

violations of his rights. And what is he confronted with? State secrets privilege. You can’t prosecute your case, the U.S. Court of Appeals for the Fourth Circuit said, because you will have to disclose 

82 

who the culprits were who tortured and beat you, and that will disclose intelligence sources and methods. Therefore, you are out of 

court. And that kind of Catch-22, again, it smacks of Soviet or Chinese justice. This is the United States of America, and this is what 

happened to Mr. Khalid El-Masri. Just one example. 

If we were to read in the newspapers that Vladimir 

Putin could put on a list, you know, Russians who he thought— 

Mr. Berezovsky or others who are outside—a list to be assassinated 

because he thought they were endangering political stability in 

Russia, we would think, what a monstrosity. This shows how bad 

and lawless Russia is. They really haven’t changed since Gorbachev 

left. 

And yet here we have today a President of the United States 

claiming identical authority, unilaterally authorized to identify an 

American citizen abroad, no judicial review, no congressional oversight. You are on an assassination list because I am declaring that 

you are an imminent threat to the United States. He is not on a 

battlefield. He is not engaged in active hostilities against the 

United States. There is no due process whatsoever. And indeed, 

just 2 days ago, a U.S. district court here held, well, there is no 

way that the judiciary can review this particular power. Only Congress can do it. Only Congress can do it. 

I want to take you back, Mr. Chairman, to the days when I think 

you and I were here some 30 or 40 years ago concerning President 

Nixon’s impeachment and to examine how again far we have fallen 

since those times. 

You remember those three articles of impeachment that were 

voted by the House Judiciary Committee? They were strong. And 

Barbara Jordan was there. One of one, he, President Nixon, had 

failed to faithfully execute the laws. There were law violations that 

he knew about, and he was not faithfully executing laws. Indeed 

with the tapes we heard he was encouraging obstruction of justice, 

et cetera. And he was impeached for that. 

And as you pointed out in your opening statement, we have a 

President now who sees out there waterboarding, torture. He 

knows the people who are complicit because they have confessed. 

Now, there is no exception in Article II of the Constitution to decline to faithfully execute the laws because it would be politically 

difficult. No exceptions. Indeed, if there is some awkwardness, 

there is a remedy, if you will. It is called the pardon power. President Ford, as you well know and remember, Chairman Conyers, decided he would pardon Richard Nixon because he thought the country would be too convulsed with a trial. But he took accountability. 

A pardon requires the recipient to acknowledge guilt or wrongdoing, and it does not then wound the rule of law. 

To just shut your eyes to violations of law of the most heinous 

sort is a flagrant violation of that duty to faithfully execute the 

law, and yet nothing happens. 

Let us go to another area. Another article of impeachment 

against Richard Nixon was obstruction of justice. Remember the 

18-minute gap and all of the things that disappeared? Obstruction 

of justice. 

As you point out, we have open acknowledgment that those interrogation videotapes were destroyed. And what happens? Nothing. 

83 

Nothing. Where is the oversight? That is an unflagging obligation 

to enforce the laws. And I go back. If you don’t think it will be politically healthy, you have to pardon them. And pardoning requires 

the recipient to say, ‘‘I did wrong.’’ 

The third article of impeachment was flouting a congressional 

subpoena, an impeachable offense. Today it happens every day. 

You know, Mr. Chairman, you had to go to court. Ultimately you 

won at the district level, and it became moot because Congress expired, et cetera. Had to fight the case again. 

This Administration, previous Administration, ignores subpoenas 

all the time. I don’t want to answer. It doesn’t even have to be classified information, sensitive information. We don’t want to tell you. 

It is why you know more about the United States from reading 

WikiLeaks than you get in classified briefings from this executive 

branch and previous ones. It is not a partisan issue; it transcends 

politics. 

And then we had Mr. Sensenbrenner talk with, I think, rather 

a breezy air about these national security letters. These are letters 

that the FBI and others can issue unilaterally, no judicial review. 

If you say that some investigation has any relation to terrorism, 

which can be anything under the sun—and today, when we are at 

least semientrapping 18- and 19-year-olds that we read in the 

newspapers to plan bomb plots or whatever, you know, a terrorism 

investigation can cover the waterfront, and even with that breadth, 

their own inspector general in the Justice Department said it was 

violated thousands of times where there is not proper certification 

given. 

These kinds of infringements in our day, Mr. Chairman, it was 

called the Houston Plan, and the Houston Plan was rejected even 

by J. Edgar Hoover. J. Edgar Hoover says this is not acceptable in 

the United States. He then becomes a civil libertarian like John 

Ashcroft in the hospital where at least he wouldn’t do some of the 

things in flouting the Foreign Intelligence Surveillance Act that the 

Bush administration wanted. 

And perhaps to me most shocking, although the incidents are so 

numerous you get numb to them, was a statement made by a Member of Congress, and I won’t identify him, after the verdict up in 

New York on one of the alleged—those complicit in the bombings 

in Tanzania and Kenyan Embassies where the gist of his statement 

was, we can’t have trials if you are going to have not guilty verdicts. We only do trials if you know you are going to bring in guilty 

and punish them. 

This is like a world of Joe Stalin. You only have show trials. Due 

process isn’t there to try to ferret out what is truthful and what 

is not, who is innocent and who is not guilty. The fact that a statement like that could be made from someone whose oath of office is 

to uphold and defend the Constitution of the United States—and 

it goes unremarked—is truly shocking. Truly shocking. 

The last example I want to give—and I was involved in some 

sense as amicus curiae—concerns our treatment of Uighurs. Now, 

it may sound very exotic. Uighurs are an ethnic minority in Northeast China. They are Muslims. And there was about two dozen of 

them detained at Guantanamo Bay. Two dozen were detained at 

Guantanamo Bay, allegedly enemy combatants, although they deVerDate Aug 31 2005 13:42 Jan 20, 2011 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6601 H:\WORK\CONST\120910\62958.000 HJUD1 PsN: 62958
84 

spise Communist China, never threatened Americans ever, but 

they are said to be enemy combatants because they trained on the 

same field that Osama bin Laden once put a foot on or his car 

drove over. 

They were there for almost 8 years. Finally, the Supreme Court 

gave them habeas corpus in the Boumediene case. And they come 

to the district court here, and the Justice Department finally 

says—this is Obama—we really don’t have any evidence that they 

are enemy combatants at all. We have no evidence that really they 

have been detained illegally for 7 years. The judge says, well, I 

guess they should come to the United States. 

Indeed their leader, semileader, is a woman called Rebiya 

Kadeer, who has received the Nobel Peace Prize nomination three 

times. Her offices are catty-corner from the White House’s. Well, I 

will take care of them. There are only 17. I will give you my bond 

that they won’t become public charges. And the Obama administration says, no, they are illegal aliens. They don’t have green cards. 

They can’t come to the United States. They have to go back and 

rot in Guantanamo even though they are being held illegally. And 

that argument prevailed in the executive branch. 

The case went up on appeal. Meanwhile, the United States of 

America then shocked the world offering bribes, would you please 

take these Uighurs off our hands? We don’t want them here. We 

are frightened. The Chinese might not buy our bonds. So we will 

then sell their liberty to somebody else, Vanuatu or the Bahamas 

or Bermuda or something like that. 

That is what the United States has come to. It has come to resemble the King George III monarchy, the tyrannies that we were 

fighting about. And this is not something that is a trade-off between civil liberties and national security. 

The greatest national security of any nation is the loyalty of its 

people, its devotion to the country because it respects the rule of 

law. The British may have thought that they were getting security 

when they quartered soldiers in American colonists’ homes, when 

they issued writs of assistance, when they impressed U.S. seamen, 

American seamen, into their own Navy, and they ended up with a 

revolution, and they lost everything. That is what the French 

thought, too, on the eve of the French Revolution. The escalation 

of the oppression of freedom ends up endangering the state rather 

than making it more secure. 

And on that score, as when stated as by my previous witness, we 

also, by acting in a lawless way abroad, are creating more enemies 

than we are killing. We are making ourselves less safe. We have 

the illusion with the body count that, oh, yes, now I don’t feel quite 

as fearful that tomorrow there will be a caliphate in Washington, 

D.C. 

But ultimately, Mr. Chairman, this will change only if our political culture and our leadership changes to say we prefer freedom 

to absolute safety. Now is the time to understand our goal is not 

an empire. Restore the individual and freedoms as the center of our 

constitutional universe, and other things are subordinate to that 

overriding goal. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you, sir. 

85 

[The prepared statement of Mr. Fein follows:] 

PREPARED STATEMENT OF BRUCE FEIN


Fein-1.eps
86 


Fein-2.eps
87 


Fein-3.eps
88 


Fein-4.eps
89 

Mr. CONYERS. You six witnesses have provided us with some of 

the most important discussion that the Judiciary Committee has 

held in the 111th session. I am grateful to you. 

I am going to ask you now, starting with Ambassador Pickering, 

where do you think we ought to—or how might members of the legislative branch and citizens begin to weigh in on a discussion such 

as the one that has been held here this morning that many people 

are going to look much further into and become more aware of 

some of these tensions between constitutional liberties and security? 


Fein-5.eps
90 

Mr. PICKERING. Mr. Chairman, that is an important and significant challenge. All of us, I think, have great respect for the Committee and great respect for your work and role. I hesitated to provide prescriptory ideas, but let me begin with a few. 

I think you have several powers that are very important here. 

One, the simplest and the easiest, but perhaps one of the most effective, is the simple power of reporting, reporting to your fellow 

Members of Congress, reporting to the public, reporting in that way 

to the executive branch about the areas that you are concerned 

about. 

I particularly expressed my concern about the issue of the use of 

Article III courts and the concern I had that military commissions 

and other substitutes, if they were not equal to Article III courts 

in their protection of the rights of the individual, would be failing 

to meet the constitutional norms. 

I am concerned about detention without trial on an indefinite 

basis. Some of us have suggested some ways to proceed. 

I am concerned about the protection of privacy while at the same 

time, obviously, administering effectively the law and security and 

the adequate control of trade and commerce. 

I am concerned about the exercise of state immunity as a blanket 

way to evade the use of the judicial process to find redress for 

issues and problems that come up that are otherwise open to citizens of this country. 

The second question that you will have to face and the second 

important power you have as individual Members is to institute 

legislation where you feel legislative remedies may be required to 

deal with the problem. I don’t have in mind specific remedial legislation, others may have, but it is an important activity. 

The third is obviously what you are doing here today, bringing 

people together who have an interest in this problem. We don’t all 

have unanimity of views, obviously, but we have serious concerns 

about what we see as the derogation of constitutional rights and 

privileges and the creation of sets of activities which could well 

lead to serious abuses now and in the future of the human rights 

of our citizens and indeed all others who enjoy rights under our 

Constitution. 

And those kinds of activities, I think, coming together can provide both a powerful voice and institutionally a powerful set of arrangements to correct what we believe have been abuses and tendencies to continue and expand abuses of these particular actions 

on the part of the executive branch. 

Mr. CONYERS. Thank you very much. 

I would like to ask my two witnesses, Professor Lewis and Attorney Jaffer, in a hearing like this, do you see any recommendations, 

or do any suggestions come to your mind about ways that we might 

be able to improve the delivery of justice and fairness in this country both in our courts and in relationship between the three 

branches of government here and with the countries and the peoples of the world? Have you been thinking about that at all? 

Mr. JAFFER. Thank you, Chairman Conyers. It is a very important question, and, as with Ambassador Pickering, I was always 

cautious to suggest prescriptive ideas. 

91 

Congressman, I do think that with respect to the question of how 

to deal with Guantanamo Bay detainees that the system is broke. 

We are trying folks in Federal court, and yet we are saying if they 

are not convicted, we are going to continue to detain them. Well, 

that may actually make a lot of sense because these are folks who 

have engaged in war against the United States. They have gone 

through a review process, and this Administration, and the prior 

Administration, have determined that these individuals are of the 

highest value and should continue to be detained. So it makes 

sense that if they are not convicted, that we are going to need to 

keep them off the battlefield, particularly when folks are returning 

at high rates. 

But then you have to ask yourself, well, perhaps we should be 

looking at a different judicial system that doesn’t ensure convictions—that is not what folks are looking for—but that sets the balance differently than we do in the criminal justice system where 

instead of the default presumption being innocence and complete— 

you know, we let 99 guilty men off in order to ensure that 1 innocent man is not convicted—perhaps it makes sense to try a different set of rules. 

Certainly we don’t want to abandon the presumption of innocence. That is not what I am suggesting. What I am suggesting, 

however, is a set of rules that makes sense in the context of war; 

a set of judges who have been through the Federal system, who 

were confirmed by the Senate, nominated by the President; prosecutors, career prosecutors, in the Department of Justice; cleared 

defense counsel who have high-level security clearances; a system 

that makes sense and yet can be seen to do justice without the 

problems raised by our current criminal justice system around the 

challenges, security issues, outside information issues, and all of 

those challenges that we have talked about earlier today. 

Mr. CONYERS. Attorney Jaffer—before you begin, Professor 

Lewis—let me ask you, isn’t there a possibility that among those 

70, there may be some that even you and I could agree ought to 

be released, and that there are not appropriate charges to bring 

against them? 

Mr. JAFFER. Well, Chairman Conyers, certainly there is the possibility that among the remaining 170, that there are folks who deserve to be released. 

I would note that the current Administration, when it first came 

in, appointed a terrific team of lawyers from the National Security 

Division, many folks that I worked with, headed by Matt Olsen, 

currently the general counsel at the National Security Agency, a 

gentleman who I worked with and who I have a tremendous 

amount of respect for, who actually did the very review that you 

are talking about. And so I would be hard pressed to question that 

review. 

Certainly Congress should take a close look at the results of that 

review, but given that they spent a lot of time looking at the classified information, working with analysts from CIA, DIA, the National Security Agency, working with the operators, and actually 

recommended a number of folks to be released and a number of 

folks to be detained, continued detention, and some for prosecution, 

I think it makes a lot of sense—the process has been gone through. 

92 

The question now becomes what happens with those detainees 

who we have determined are either too high-value to be released 

and/or we simply don’t have the kind of evidence that would work 

in a Federal court; what do you do with those things? The basic options are currently military commissions or just detention without 

any sort of trial. A national security court might be an option that 

presents some of the benefits of Federal court without the whole 

perception issue associated with the military commissions. 

Mr. CONYERS. What are the problems that you envision could 

happen in a Federal court that create a little bit of apprehension 

in your mind about them being the appropriate court of jurisdiction? I mean, they are nothing—I mean, that is the same court 

with the same set of rules that Americans are called upon to visit, 

and that we create the laws for, and that we select the judges for 

every—almost every day in the year. 

Mr. JAFFER. Absolutely. And the only thing I mean to suggest is 

that it is policy question. These folks don’t have the same constitutional rights that folks in this country have. And the question becomes, as a matter of policy, do we want to put these detainees in 

Federal court and give them the same rights and benefits that 

Americans have, including this very strong bias against conviction, 

very strong bias against putting—sacrificing 99 guilty, letting them 

on the street—— 

Mr. CONYERS. Well, we are not playing the numbers game. 

Here is what I am suggesting; that going through a Title III 

court, we would have to prove their guilt. What is wrong with that? 

Mr. JAFFER. There is nothing wrong with that, and I actually 

think that it makes a lot of sense to have to prove the guilt of folks 

that we want to detain particularly beyond the duration of hostilities. Certainly there are folks at Guantanamo Bay who we don’t 

ever want to have to see released including after the current set 

of hostilities, the immediate set of hostilities ends, because they 

have killed Americans and deserve perhaps a life sentence, perhaps 

even the death penalty. 

Mr. CONYERS. Who has determined that? 

Mr. JAFFER. So, for example, an individual like Khalid Sheikh 

Mohammed, who has been accused of crimes, right, that would suggest a life sentence or the death penalty, Khalid Sheikh Mohammed we would want to, if we believe that, in fact, he is guilty of 

those crimes which he has been accused of, to be detained, incarcerated beyond the scope of any hostilities ongoing. And so the 

question becomes you have got to find a way to do that, and the 

Federal courts are one option, certainly. And it is an option that 

applies to American citizens, applies to folks inside the United 

States. And it is not a crazy option; it is a very reasonable option. 

The problem is there are huge challenges with the use of the 

Federal courts, both to the safety of the folks in New York, to the 

jurors who might be called, the judges, the classified information 

that might be used to convict Mr. Mohammed. 

Mr. CONYERS. What is the problem? I mean, sure, all of that 

would happen, but what dangers does that present to you in terms 

of determining guilt or innocence? 

93 

Mr. JAFFER. Well, imagine a world in which the evidence obtained that we have against Mr. Mohammed was obtained in ways 

that wouldn’t—— 

Mr. CONYERS. Were illegal. 

Mr. JAFFER. Well, no. Put aside enhanced interrogation for the 

sake of argument. Take the example of information obtained in Afghanistan, bad chain of custody, obtained on the battlefield of war. 

That evidence you would want brought before you. 

Mr. CONYERS. Would you want evidence that was gained by torture to be usable against terrorists? 

Mr. JAFFER. I think that we have to look at the evidence that 

was obtained. 

Mr. CONYERS. You wouldn’t want that, would you? 

Mr. JAFFER. I don’t think we should be torturing people. I would 

never support the use of torture against—— 

Mr. CONYERS. And you wouldn’t want people whose evidence was 

secured through torture to be found guilty on the basis of that evidence. Or water torture, for example, you don’t support that. 

Mr. JAFFER. Chairman Conyers, certainly I don’t think that—if 

we are torturing folks, we should not be doing it. And, you know, 

there are a lot of concerns about the enhanced interrogation techniques that were used in the CIA program. Nobody can doubt that. 

A lot of people talk a lot about waterboarding. There were other 

techniques that have now been publicly released by the current Administration. 

Mr. CONYERS. They are probably just as bad. 

Mr. JAFFER. Walling, sleep deprivation. 

Mr. CONYERS. But what would you do with evidence gained 

through those techniques in a court? 

Mr. JAFFER. If those techniques constitute torture under the law 

of the United States, and that is a legal question, one that no court 

has yet determined, and one that different folks disagree about—— 

Mr. CONYERS. On the contrary. It has been determined— 

waterboarding has been determined pretty definitively as not being 

appropriate, and for all that we can determine, it is ordered to 

have been stopped, and we don’t have any reports that it is still 

going on. Do you know of any? 

Mr. JAFFER. No, Mr. Chairman. In fact, both Administrations 

have indicated clearly that there were only three individuals subject to waterboarding, and they disclosed the names of those individuals, including the number of applications of waterboarding. So 

it was a very—that particular technique obviously being on the farthest edge of the enhanced interrogation techniques that were used 

in the CIA program, the sort of the least invasive being perhaps 

the facial slap, right, all the way to the waterboarding. And there 

were a number of techniques in between as now has been declassified by the Administration. 

The real concern here, though, is, you know, when we are looking 

at these techniques, people of reasonable minds put aside the really 

extreme techniques and take other techniques that may be used, 

whether it is the ones that are approved in the Army Field Manual 

or others. There are people of reasonable minds who will disagree 

about whether those techniques should be used in a free society 

94 

like America. There is no doubt that that disagreement is a valid, 

reasonable disagreement to have. 

The question then becomes what happens when a technique you 

don’t want, whether it is an extreme technique—and put aside, 

again, the most extreme technique—but enhanced—— 

Mr. CONYERS. In other words, you might see your way to endorse 

modestly enhanced techniques. Could that satisfy your sense of 

fairness? 

Mr. JAFFER. Mr. Chairman, I think that is a decision well above 

my pay grade. And it is—— 

Mr. CONYERS. No. It is a decision that each of us can individually 

possess that might—yours might be different from someone else’s, 

but it doesn’t make it any less important to you. 

Mr. JAFFER. Well, Mr. Chairman, I think what I would say is, 

you know, the CIA program yielded its most highly valuable intelligence gained on the war on terror, period, bar none. There is no 

question that the information gained from that program, whether 

you agree or disagree with the techniques used, but the fact that 

they were detained, held as high-value detainees and were questioned in a particular set of circumstances, led to the further capture of some of the highest-value detainees that we have in our 

custody and the biggest efforts against the al-Qaeda network. And 

so, you know, I am not sure that I know which techniques are 

good—— 

Mr. CONYERS. Why is it that judges seem to be prone to not allow 

admissible evidence from witnesses who have been subject to enhanced interrogation? Are they soft-headed or sentimental, or what 

is the problem here? 

Mr. JAFFER. Not at all. We have a long history in this country 

of excluding evidence obtained from coercion because, A) we don’t 

think coercion is right, and, B) we don’t think necessarily that the 

information that came from coercion is reliable. 

Mr. CONYERS. And neither do you. 

Mr. JAFFER. And I think that there are serious questions there. 

There are serious questions about whether information obtained 

from coercion is reliable. And there are serious questions about 

whether these are techniques that we want to use in America, in 

a free country. 

Mr. CONYERS. Could you understand how a person subject to 

these kind of techniques would say anything that anybody wanted 

them to say? 

Mr. JAFFER. Absolutely. Absolutely. There is no doubt that the 

history of the use of coercive techniques has suggested that there 

are serious issues with the information obtained from such coercion. 

That being said, there is also no question that the folks who 

went through the CIA program yielded tremendously valuable, accurate intelligence, actionable intelligence that we acted upon and 

protected this Nation; that there are now—as part of the release 

of the CIA memos, other documents were released at the request 

of the previous Administration, that evidence, that information obtained from individuals in U.S. Custody as part of the CIA and 

other detainee programs, allowed us to protect this Nation from actual, ongoing, day-to-day plots. 

95 

Mr. CONYERS. Let me summarize here because I want to recognize Laura Murphy. Then I am coming back to Professor Lewis. 

Would you be willing to submit at your earliest convenience a list 

of cases in which there was known enhanced interrogation or torture used in which the witness elicited valuable and correct information? 

That is for you, Attorney Jaffer. 

Mr. JAFFER. I am not aware—you know, the information that has 

been declassified by the current Administration is very limited, especially with respect to the information obtained from—— 

Mr. CONYERS. Well, I don’t want classified information. Although 

I am cleared for it, maybe several hundred million Americans may 

not be. 

Mr. JAFFER. And I am no longer cleared for it either, Mr. Chairman. 

Mr. CONYERS. So let us take that off. Let us take that off. 

We are talking about trials or evidentiary proceedings or investigations in which enhanced torture, enhanced interrogation or torture, revealed valuable and important and accurate information. 

Mr. JAFFER. Well, Mr. Chairman, I would just say even if you 

look at the Agency’s program alone, as we know, Abu Zubayda, 

who was subjected to extreme enhanced interrogation techniques, 

including the waterboard, ultimately gave us information that led 

us to Khalid Sheikh Mohammed. That much has been declassified 

and is in the public record. 

So I can’t speak to whether, you know, in the entire history of 

the criminal justice system we have found folks who have been—— 

Mr. CONYERS. Neither can I. That is why I am asking you. 

Mr. JAFFER. But I share the concern, Mr. Chairman. 

Mr. CONYERS. Okay. Then we agree that it would be pretty difficult to do. 

Mr. JAFFER. Absolutely, Mr. Chairman. We agree on that. 

Let me be clear. I do not support the use of coerced testimony, 

nor do I support the use of techniques that constitute torture or 

anything even approaching that, Mr. Chairman. 

What I do want to note, though, however, is that this program 

that the CIA engaged in where they held high-value detainees 

abroad and sat down with them and went through these issues 

yielded tremendously valuable intelligence and protected Americans from ongoing plots. There can be no doubt about that; the 

public record on that is clear. It is not as fulsome as one might 

hope. One might hope for even more information that would allow 

us to really judge the program, right? And perhaps this Administration will declassify additional information, if appropriate. 

But I guess my concern is that when you look at this classified 

information, to declassify, you must step very, very cautiously. And 

I would submit that even some of the declassifications taking place 

to date have been perhaps unnecessary. So it may be necessary to 

say, look, here are the techniques that were used in the program, 

but to give a detailed description of how many degrees you incline 

someone’s head, what amounts of water you might use, I mean, 

this is just a recipe for how to torture Americans or how to use enhanced interrogation techniques against Americans and more agVerDate Aug 31 2005 13:42 Jan 20, 2011 Jkt 000000 PO 00000 Frm 00099 Fmt 6633 Sfmt 6601 H:\WORK\CONST\120910\62958.000 HJUD1 PsN: 62958
96 

gressively, right, if you believe that such technique constitute torture, right? 

So if you are a person who believes that waterboard is torture, 

and I think most people tend to feel that it is the most extreme 

of the enhanced interrogation techniques, whether you use the 

term ‘‘torture’’ or whatever to describe it, right, why would you 

then give everybody in the world, including our enemies, a detailed 

recipe of how to carry that out? It seems—what is the national security benefit of that? 

Mr. CONYERS. Ambassador Pickering, you seem disturbed, and I 

would like to recognize you before I go on. 

Mr. PICKERING. I have been following with interest the line of 

questioning, Mr. Chairman. I have two concerns. One, the Federal 

court does not answer the question, at least in terms of how it has 

been explained—it is a new Federal court idea—of what to do 

about detainees who are not convicted. So we know that that is a 

problem. 

Secondly, I personally have no objection to finding useful ways 

to bring together the judicial system with the protection of classified information, and we have a statute that does that. If Mr. 

Jaffer feels that is inadequate, then maybe there is an opportunity 

here to propose something for your delectation that would, in fact, 

improve that particular process. We have no objection to that. At 

least I have no objection to that. 

I have a serious concern that if, with all the euphemisms that 

have been used, the new Federal court is designed to prejudice the 

trial in a way to assure convictions by denying rights that are otherwise available to Americans and others under our judicial system, then I have an objection. Why not just use the Article III 

courts? If it is an attempt to get halfway between the old military 

commission struck down by the Supreme Court and the Article III 

courts, then we are, in a sense, moving in the right direction, but 

not sufficiently, in my view. So those remain important. 

The whole question of torture and its role I addressed in a few 

brief words. I am not the expert on this issue. I have read a lot 

about it. I am convinced it is a highly unreliable and reprehensible 

technique, and that it shouldn’t be used; that it has muddied the 

process of bringing people who, with every other piece of evidence, 

are undoubtedly convictable in court, and it, as a result, has destroyed the capacity to deal with that set of issues. 

I would think it would require an act of the most careful, painstaking, and infinitely detailed kind of research, with total access to 

every interchange with the gentlemen concerned who have been 

subject to these techniques to begin to make head or tails out of 

whether a particular technique, a particular line of questioning 

produced a particular result. 

I know from what I have read that experienced interrogators find 

the use of these kinds of techniques in the main as destroying their 

capacity to effect the kind of relationship with the person being interrogated that produces the kind of useful information that is very 

valuable. 

But I think your question is entirely germane, it is an extremely 

useful one, but I think it points down the road of the frustration 

of trying to find the answer to this question: Under any cirVerDate Aug 31 2005 13:42 Jan 20, 2011 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6601 H:\WORK\CONST\120910\62958.000 HJUD1 PsN: 62958
97 

cumstances that we can conceive of, has this particular set of techniques produced the reliable sort of information that is the kind of 

silver bullet that Mr. Jaffer would like to have us believe is, in fact, 

the product of this, but where everything else is in an inscrutable 

and unopenable black box. 

Mr. CONYERS. Attorney Bruce Fein. 

Mr. FEIN. I would like to make three observations about Mr. 

Jaffer’s remarks, which I find a little frightening. 

First, I think it is specious to say because torture, waterboarding 

was used, and some information by that individual who was interrogated was useful, therefore only the torture was the way to bring 

it about, because, as I think Ambassador Pickering pointed out, 

there are those skilled interrogators who said, well, many of these 

individuals were giving useful information before the 

waterboarding occurred, and there is no reason why they couldn’t 

have gotten the information otherwise. 

But putting that aside, there really is no limit I see, principle, 

to stopping at waterboarding. How about the rack and screw? How 

about threatening the family of the individual and say, we are 

going to kill your son or your daughter? If everything is subordinate to trying to get reliable information, then we have lost our 

badge of being civilized people. Anything goes. 

And then the last thing that is also very troublesome is we do 

not have a culture whereby you can have a deterrent effect on 

these heinous techniques, because even though you could use the 

information against the alleged terrorist, you prosecuted the individual who was violating our own laws in the process, because we 

have a situation where they act with impunity, and Mr. Jaffer 

didn’t say, well, we should be prosecuting those who used 

waterboarding or things that violated our laws that this Congress 

enacted. It was just like they washed out of the picture. But if you 

want to have any deterrence right now, the only way you get it is 

by excluding that evidence at a criminal trial. 

Mr. CONYERS. The ever-patient Laura Murphy. 

Ms. MURPHY. You see me wiggling over here. 

Mr. Chairman, I don’t even know where to begin with some of 

these ideas. 

Our Article III courts are in great shape. They have worked for 

over 150 years. We have the Classified Information Procedures Act 

that is working. 

We need to prosecute terrorists in Article III court. We elevate 

them as war heroes when we try to use military commissions that 

are deeply flawed, that allow hearsay evidence that has not been 

tested through the Supreme Court process. 

Military commissions have tried five people. The Justice Department has prosecuted over 400 people in Article III courts. 

We need accountability for terrorism. We know that terrorism— 

I am sorry—for torture. We know that torture is illegal. We need 

to make sure that Mr. Durham fully investigates people all the way 

up the food chain in the former Administration who authorized 

this. 

That the President, the former President, can walk around with 

impunity and say that he gladly authorized waterboarding is just 

98 

an insult and an offense to our values and to the treaty obligations 

that we hold dear in our American law and jurisprudence. 

But the other thing, I wanted to go back to your first question 

about what should you do. I think that if you recall those days 

right after 9/11, we worked very closely together, Mr. Chairman. 

And the Congress was put under so much pressure not to hold 

hearings, and you and Mr. Sensenbrenner figured out how to hold 

hearings nonetheless. 

We need hearings on the PATRIOT Act, and we need to start as 

soon as possible. There are many abuses of the PATRIOT Act that 

are still unresolved. There are a number of inspector general reports that specifically go to the use of national security letters 

where the FBI has egregiously violated the statute. There is section 

215 that needs to be fixed. There is the ‘‘lone wolf’’ provision, which 

the Justice Department says it rarely, if ever, uses. 

So I think we need to start the 112th Congress with a strong defense of Article III courts. We need to get ready for the PATRIOT 

Act reauthorization as soon as possible, and even though you 

don’t—you will not control the hearings, Mr. Conyers, I think it is 

very important that we host conversations. 

And there were bipartisan discussions about the PATRIOT Act, 

patriots defending the Bill of Rights. There are organizations and 

institutions that want to work in a bipartisan fashion to look at the 

PATRIOT Act, reopen it, and make sure that Congress has serious 

consideration. 

And the last thing that I will say is this whole issue around the 

authorization for the use of military force makes the issues that 

you have just been discussing go on steroids. We will be confronted 

with so many new challenges if this Congress abrogates its responsibility and just quickly expands a declaration of war. 

The Constitution gave the United States the Congress to declare 

war for a reason. And so if there is any expansion of our war efforts away from the original authorization of the use of military 

force, Congress should have very, very detailed hearings about 

that. 

And you will be under particular pressure, Mr. Conyers, because 

Chairman Buck McKeon has said—incoming Chairman Buck 

McKeon has said that he wants to persist in the Armed Services 

Committee. Incoming Chairman Lamar Smith has said that he 

wants to look at this. Senator Lindsey Graham has said that he is 

going to push for this. So you will be confronted in very short order 

at the very beginning of the next Congress with several issues. 

So accountability for torture, taking the reauthorization of the 

PATRIOT Act seriously, making sure that there is no expansion of 

the authorization for the use of military force are just three issues. 

And you have a remarkable track record of bringing groups together from all sides of the aisle, and even if you don’t have hearings, you should have meetings. You should invite us in to meet 

with you and to brief Members on your side of the aisle if at all 

possible. 

Mr. CONYERS. But we can have forums which are not official 

meetings. 

Ms. MURPHY. Absolutely. Public forums. And that is what we did 

when we had the PATRIOT Act. Remember the leadership of the 

99 

House refused to give you the permission to hold those hearings, 

but you held them anyway, and they were highly—— 

Mr. CONYERS. I think they were down in the basement somewhere. 

Ms. MURPHY. They were. They were in the basement of the Rayburn Building. 

But that is what we are going to have to go back to. 

Thank you, Mr. Chairman. 

Mr. CONYERS. I now turn to Professor Michael Lewis, who has 

been very patient. 

Ms. MURPHY. I thank you, Mr. Chairman. 

I wanted to mention one thing Mr. Fein had said about the information obtained from Abu Zubayda using waterboarding. He said 

that there is no evidence that supports that the use of that technique was the result, but the fact of the matter is that Zubayda 

had resisted all the other techniques. He had been in the hands of 

trained interrogators for long periods of time without having given 

up the information that eventually led to the capture of Khalid 

Sheikh Mohammed. It was only after he was waterboarded that 

that occurred. 

Now, having said all of that, there is no question that enhanced 

interrogation techniques and information obtained from them 

should have—has no place in criminal courts or criminal trials. 

However, that doesn’t mean that it has not affected intelligence 

gathering. Those are two separate issues and two separate ways or 

reasons for using the techniques. 

So you may have a need to gather intelligence in a short period 

of time that might include the use of enhanced interrogation techniques; however, those cannot possibly be used to convict the people afterwards. 

And you had asked about where we should go in terms of process 

for these individuals. And the fact of the matter is the Congress of 

the United States has gone through three iterations to try to make 

the Military Commissions Act better and better and better, and in 

each iteration it has come closer and closer to being, I think, the 

full protections required to give, I think, fair and legitimate trials. 

I think the greatest—— 

Mr. CONYERS. But, of course, people conducting the trials can be 

sergeants on the battlefield or anybody, whatever group of people 

get called together. 

I am still extremely skeptical that military commissions and the 

way that they are brought together could ever even come close to 

the safeguards in a regular court. 

Mr. LEWIS. There is no doubt that they are not going to be the 

same as the safeguards in the regular court, and part of the reason 

for that is the evidentiary problems that I discussed previously. 

The evidentiary problems where soldiers are the ones gathering the 

information just are not going to meet Article III court standards, 

and therefore you are not going to have the evidence necessary in 

the Article III court to convict people that otherwise probably 

would be. 

Mr. CONYERS. And that is why I thought that I heard you suggesting that you were in somewhat favor of Article III courts yourself. 

100 

Mr. LEWIS. I am in favor of Article III courts where the defendants are apprehended by law enforcement, even overseas. I don’t 

have any problem with the idea of Ghailani being tried in Article 

III courts; however, I think you would have a very different case 

with trying to try Khalid Sheikh Mohammed or Abu Zubayda or 

others like that in Article III courts because the evidentiary basis 

is fundamentally flawed based upon who it is that brought them 

in. 

The other question that you asked earlier that I think will also 

segue to Mr. Scahill at some level is the question of our relation 

with foreign nations and how we can best work with them in terms 

of the way we are prosecuting the war on terror. There are a lot 

of anecdotal discussions, such as the one that Mr. Scahill presented 

today, where al-Qaeda members or al-Qaeda supporters being enhanced by some of the actions that our Special Forces people take 

and some of the tragic mistakes that they have made on occasion. 

And there is no question that anecdotally that that is true. 

But I think it is important to look at much broader studies, and 

there are some metastudies that have been done, particularly in 

the border regions of Pakistan, that indicate that overall the effect 

of the U.S. military’s actions there is a net positive rather than a 

net negative. 

And I would strongly commend the study done by Professor 

Echeverri-Gent down at the University of Virginia because he did 

a very detailed analysis of public opinion in Afghanistan based 

upon open-source information over there. And while, yes, an individual might be turned against us because of a poorly planned or 

poorly executed attack, broadly al-Qaeda is not popular in that region. And the two choices to oust al-Qaeda are either the United 

States or the Pakistani military. And the fact of the matter is the 

Pakistani military tends to use artillery, tends to use artillery very 

indiscriminately, and has caused tremendous amounts of civilian 

havoc when they have attempted to—rather ineffectively in the 

opinion of the people in Pakistan—attempted to fight al-Qaeda. 

And they see the United States drone strikes and the United 

States Special Forces operations as being far more effective in 

countering al-Qaeda. They are not saying they are perfect, but they 

are the better of the choices, according to the people on the ground 

in Pakistan. 

As I said, I would commend that study to you for that review. 

Mr. CONYERS. Thank you. We will examine that study. 

I will recognize now Jeremy Scahill. 

Mr. SCAHILL. Just to respond to what Professor Lewis just said. 

I think that one thing that we have learned over the past 10 years 

is that these polls that are done in Pakistan and Afghanistan are 

just wildly inaccurate. It was abundantly clear to me not just 

anecdotally, but also from talking to U.S. forces as well, that the 

strength of the Taliban is growing within Afghanistan and also 

within Pakistan. And let us remember, we are not fighting alQaeda in Afghanistan. 

According to the outgoing National Security Adviser, General 

Jim Jones, there are less than 100 al-Qaeda operatives in Afghanistan with no effective ability to strike the United States. 

101 

I also talked to senior Taliban officials from the Mullah Omar 

government, who expressed a concern that when the United States 

is killing the leadership of the Taliban, that they are killing the 

only people that would be capable of negotiating a nonviolent solution to the conflict there, and in some cases the individual commanders who are killed are replaced by commanders who are far 

more radical. And, in fact, some of Mullah Omar’s envoys—Mullah 

Omar being the head of the Taliban in Afghanistan—some of his 

envoys have actually been butchered by new Taliban commanders 

because they feel that Mullah Omar isn’t radical enough. 

So I think we have to be very careful when we take any poll and 

hold it up and suggest that it is evidence that we are sort of winning hearts and minds, because I think it is clear to many within 

our Armed Forces that that is just not the case. 

To respond to something that Mr. Jaffer said, I think that I 

would echo Professor Fein’s comments as well, that if we do not 

hold past committers of torture accountable, we have no mechanism by which to dissuade future acts of torture. The most effective 

way to stop torture is to hold torturers accountable. 

I think it is outrageous that we didn’t have congressional intervention of any strength in the case of the destruction of the CIA 

torture tapes. I think that there should have been subpoenas 

issued to Jose Rodriguez and other CIA officials to ask them about 

their role, to ask them if there were only three tapes, or if more 

had been destroyed. 

I think Congress should have used its subpoena power to go after 

those who were committing torture and also the officials who ordered it and authorized it. I think that is one of the great shames 

of the era of the Democratic control of both Houses of Congress is 

that there was not enough done to ensure that if the President 

wasn’t going to hold the torturers accountable, that the Congress 

would. 

I would also recommend that people read Matthew Alexander’s 

book, How to Break a Terrorist. He was an interrogator in Iraq, 

and he was instrumental to gathering intelligence using nontorture 

techniques that led to the capture of Abu Musab al-Zarqawi, and 

I would recommend that the Committee review his work as well. 

In closing, I want to say that I think that the Congress needs to 

not just limit its investigation of these torture techniques to the 

CIA. Torture was also committed at Camp Nama in Iraq, which 

was run by the Joint Special Operations Command. And I think 

that the failure to use the subpoena power is failing the American 

people. We have to have accountability, or it is going to continue 

under Democratic and Republican administrations. 

Mr. CONYERS. Yes, Attorney Jaffer. 

Mr. JAFFER. Mr. Chairman, I appreciate the opportunity. 

Let me be clear. Torture is wrong under any and all circumstances, and there is no question that people who engage in 

torture should and must be prosecuted to the fullest extent of the 

law. Let there be no lack of clarity on that question. I think that 

everybody on this panel can agree on that question. 

With respect to the CIA program, you have to remember that, 

first of all, there are a very narrow number of detainees that were 

held in this program. This was not a program sort of run sort of, 

102 

you know, behind closed doors with no monitoring at all. This was 

a program where the CIA said, look, we have got these folks we 

are capturing. We need to figure out what to do with them. They 

are high value. We believe they have immediate intelligence value. 

What should we do? 

So they came up with a series of plans. They went to the policy 

structure of the White House and the Department of Justice and 

they said, what should we do as a policy matter and as a legal matter? And the Department of Justice came back with a set of legal 

opinions. 

Now, those legal opinions, I think the fact of the matter is there 

were deep flaws in many of the legal opinions associated with that 

time period. Now, the time constraints were huge. People were 

working very quickly. Whatever excuses you might make, there is 

no question that there were challenges to the legal opinions, and 

they were properly withdrawn by the Justice Department later on 

down the road, and other ones were—continued to be withdrawn. 

And a better, more careful legal analysis was done down the road. 

That being said, the CIA came to the Administration and said— 

they came to the White House and said, what should we do as a 

policy matter, and what can we do within the law? And then they 

were given legal guidance, and they were given policy guidance. 

They were told, here is what the law says you can do. And they 

were told as a matter of policy, the policy of the United States is 

to engage in these certain techniques. Certain techniques, as the 

President has now said in his book, were taken off the table. Certain techniques were left on the table. And then the CIA went forward and executed what the Justice Department told them was 

lawful and what the policy part of the government said is what we 

wanted to do. 

Now, how can we prosecute line CIA officers? How can we justify 

prosecuting line CIA officers who did what they were told the law 

permitted them to do and the government’s policy was to do? And 

that seems to me to be just as much of a crisis as all of the problems with military commissions and other levels of process or holding people without trial. 

How can you possibly take a government employee, any government employee sitting in this room, and say, here is what the law 

lets you do, and here is what I, as your boss, the Commander in 

Chief, and the head of the executive branch want you to do, and 

then say, oh, but down the road we are going to prosecute you for 

doing just what we told you to do? That seems to me to be just as 

much of a crime. 

Mr. CONYERS. We have been joined by Professor Mary Ellen 

O’Connell, professor of law at the University of Notre Dame. She 

is a designated professor of law at Moritz College of Law at Ohio 

State University. 

We know why she was detained, and we would like, even at this 

late date, to invite her to discuss her statement with us and any 

conversations among the panel that you may have heard coming in 

the room. 

Welcome, Professor O’Connell. 

103 

TESTIMONY OF MARY ELLEN O’CONNELL, ROBERT AND MARION SHORT CHAIR IN LAW AND RESEARCH PROFESSOR OF 

THE AMERICAN SOCIETY OF INTERNATIONAL LAW, UNIVERSITY OF NOTRE DAME LAW SCHOOL 

Ms. O’CONNELL. Thank you very much, Mr. Chairman. 

In fact, my statement does touch on the comments that were just 

being made. So with your permission, I have a very succinct 5- 

minute statement. And I do begin with apologies from Delta. They 

are very sorry about my delay. 

Mr. Chairman, ladies and gentlemen, let me also express my 

deep appreciation for the invitation to speak before you today. In 

my very brief time I will focus on the issue of perhaps greatest concern to many of us today, and that is targeted killing of persons 

away from any battlefield. 

Through the use of drones and other means, the United States 

is carrying out killings that fundamentally violate the human right 

to life. The justification we have been given for these killings is 

fundamentally the same justification we were given for the use of 

torture. It consists of an erroneous definition of ‘‘combatant’’ accompanied by a plea of necessity along the lines you just heard. But 

as with the arguments in favor of torture, the arguments for targeted killing do not meet the test of legality, morality, or effectiveness. 

Let me address each of these tests very, very briefly. First, international law absolutely prohibits the intentional targeting of persons for killing outside of the hostility situations of armed conflict. 

International law does not relax this prohibition, except in the 

clear situation of actual armed conflict hostilities. In such hostilities, the regular armed forces of the sovereign state may intentionally kill members of the opposing armed forces and any civilians who are directly participating in armed conflict. 

International law defines armed conflict as situations of organized armed groups engaged in intense armed fighting. Today, the 

United States is engaged in such fighting in only one place, and 

that is Afghanistan. Ask any soldier where U.S. combat operations 

are occurring today, and they will tell you, Afghanistan. It is only 

there that the United States may lawfully carry out targeted killing. 

Second, not only is this the law, it is the right ethical position. 

All human beings are endowed with dignity which we protect 

through human rights, including the human right to life. Through 

the centuries, humanity has constantly striven to enhance respect 

for life. We have prohibited war through the U.N. Charter, and we 

have condemned terrorism because of its violence against human 

life. America’s targeted killing program is a serious retrograde step 

in the moral advancement of humanity. It demonstrates grave disregard for the right to life. But ladies and gentlemen, if law and 

morality are not enough, we can also add that empirical data clearly shows that military force is ineffective to end terrorist groups. 

In 2008, the Rand Corporation released a study that concluded: 

All terrorist groups will eventually end, but how do they end? Answers to this question have enormous implication for 

counterterrorism efforts. The evidence since 1968 indicates that 

most groups have ended because 1, they joined the political procVerDate Aug 31 2005 13:42 Jan 20, 2011 Jkt 000000 PO 00000 Frm 00107 Fmt 6633 Sfmt 6601 H:\WORK\CONST\120910\62958.000 HJUD1 PsN: 62958
104 

ess; or two, local police and intelligence agencies arrested or killed 

key members. Military force has rarely been the primary reason for 

the end of terrorist groups. This has significant implications for 

dealing with al-Qaeda and suggests fundamentally rethinking post 

September 11th U.S. Counterterrorism strategy.’’ 

We are told with respect to targeted killing as we were with regard to torture that post 9/11 circumstances require extraordinary 

measures. However, some of our leading ethicists responded forcefully to the arguments in favor of torture by saying that the absolute ban on torture in existence at the time that legal memos were 

prepared by the White House and DOJ, a moral imperative required that absolute ban regardless of the consequences. And we 

could say the same for targeted killing. 

But as in the case of torture, it turns out that doing the moral 

thing, doing the legal thing is doing the effective thing against terrorism. Targeted killing is unreliable—against terrorism. 

Torture is an unreliable means of interrogation that trained interrogators, including my husband, have rejected out of hand. Similarly, some of the best counterterrorism experts reject the use of 

military force in efforts against terrorism. Terrorists seek to undermine lawful institutions to sow chaos and discord and to foment 

hatred and violence. Upholding our lawful institution, holding to 

our legal and moral principles in the face of such challenges is not 

only the right thing to do, it is a form of success against terrorism 

that can lead to the end of terrorist groups. 

Apparently, President Obama himself is aware that targeted killing by drones will not achieve greater national security in the face 

of terrorist threats. Bob Woodward writes in his new book, 

Obama’s Wars, ‘‘despite the CIA’s love affair with unmanned aerial 

vehicles such as Predators, Obama understood with increasing clarity that the United States would not get a lasting durable effect 

with drone attacks.’’ If we care about the rule of law, fundamental 

morality and national security, we will call on President Obama to 

end targeted killing. Thank you. 

[The prepared statement of Ms. O’Connell follows:] 

105 

PREPARED STATEMENT OF MARY ELLEN O’CONNELL


MEO-1.eps
106 


MEO-2.eps
107 


MEO-3.eps
108 


MEO-4.eps
109 


MEO-5.eps
110 


MEO-6.eps
111 


MEO-7.eps
112 

Mr. CONYERS. Professor Lewis, you are the beginning of everyone 

having the last word. 

Mr. LEWIS. I just actually wanted to comment on the assertion 

that international law has clearly determined that the boundaries 

of the battlefield are based on geopolitical lines. That has never 

been how that has been understood in the past. In order to make 

international law, you have to either have a clear treaty statement 


MEO-8.eps
113 

indicating what international law says, and there is no clear treaty 

that indicates what the boundaries of the battlefield are or where 

the law of armed conflict applies or does not apply. 

And so what you are left with is customary international law. In 

order to make customary international law, you must show not 

only an agreement of jurists and commentators about its content, 

which I don’t believe exists, but even more importantly, you have 

to show some form of state practice that supports the recognition 

that there is a legal obligation to perform in that way. 

And I can think of no example at all of state practice in which 

a state has said I will not strike an enemy because they have 

crossed a geopolitical line. And I can think of many examples in 

which the exact opposite is true. One that was brought before the 

Government Oversight Committee earlier this year by Professor 

Glazier, who is generally an opponent of the Bush administration 

policies and these sorts of actions in general, was the fact that the 

United States pursued the Vietcong and the North Vietnamese 

army across the border into Laos and Cambodia, and yet that was 

not a violation of international law. Those forces were attempting 

to escape by finding sanctuary across a line. And more importantly, 

where you have non state actors doing the same thing, the FARC 

attempting to find sanctuary in Colombia—not in Colombia, sorry, 

from Colombia in Ecuador, and Colombia crossed the border and 

struck into FARC camps there. That was not deemed to be a violation of international law. And perhaps the best example is the 

Hezbollah war in Lebanon. 

According to Professor O’Connell’s test, there was no armed conflict in Lebanon at the beginning of that war. There were sporadic 

rocket attacks, sporadic cross-border raids by Hezbollah, but that 

was it. And the Israeli response was to use the tools of armed conflict and invade Lebanon to go after Hezbollah. And the conflict between Hezbollah and Israel was understood by everyone to be governed by the laws of armed conflict, not to be an improper use of 

force. Where Israel was criticized, and it was heavily, was because 

they had allegedly violated the laws of armed conflict, they hadn’t 

been proportional, they hadn’t used military necessity, they had 

used banned cluster munitions, et cetera. 

But the whole conversation throughout the whole international 

legal community was: Have they complied with the laws of war? 

The laws the war clearly applied to that conflict. And yet Professor 

O’Connell now is saying if the Taliban can cross into Pakistan, they 

are safe. If they can get to Yemen, they are safe. They cannot be 

struck there. We have to use law enforcement and that is the only 

method of attempting to capture them. 

And if there is either an incapable government in Yemen or Somalia, or an unfriendly government that is unwilling to effect that 

capture, then they have found a sanctuary. And the claim that 

international law grants terrorists of all people a sanctuary in the 

war on terror, I don’t believe is international law. 

Mr. CONYERS. Professor O’Connell, what say you? 

Ms. O’CONNELL. Thank you, Mr. Chairman. I really do appreciate that. I have just heard such a mixture of unusual and confusing comments about the law of armed conflict. I will just say 

very briefly a few things. First the definition of armed conflict is 

114 

well-known, and it has a territorial aspect. I just lead a 5-year 

study, produced a report of 42 pages for the International Law Association, the chief scholarly organization of international lawyers 

throughout the world. 

My committee included the 18 most highly qualified experts on 

the law of armed conflict from 15 different countries, every region 

of the world. Our study concluded that, in fact, armed conflict takes 

place within a particular zone. And in internal armed conflict of 

the kind that is occurring in Afghanistan right now, a 

counterinsurgency armed conflict, is taking place within Afghanistan. It is the U.S.’s official position to respect the border between 

Pakistan and Afghanistan. And the U.S. well knows our lawyers 

well know that there is no right of hot pursuit on land to follow 

those individuals who may be crossing from Pakistan into Afghanistan to join the fight. 

What is America’s option? It is, of course, first and foremost to 

work with our ally, Afghanistan. We are in Afghanistan at the request of that government. And if they wish for us to work with the 

Pakistani authorities about preventing cross-border provocation, 

that is our obligation under international law. 

If Afghanistan feels that it is being attacked by Pakistan, then 

it has the right, under U.N. charter, Article 51, to respond in selfdefense. Afghanistan has said that it has not been a victim of an 

armed attack from Pakistan. Pakistan is well aware and is taking 

steps to pursue militant and violent action on its border. The International Court of Justice has told us that it is the obligation of Afghanistan and the U.S., when dealing with provocations that are 

less than the kind of armed attack that would give rise to Afghanistan’s right of self-defense against Pakistan, that Pakistan’s obligation is on its side of the border. 

The U.S. can offer to help, but we cannot pretend that there is 

no sovereign boundary there and take the law into our own hands. 

These are very clear precedents. Professor Lewis should know all 

about them, I am very sorry that he has presented to you a different story today. 

Mr. CONYERS. Professor Lewis, I will allow you a brief comment 

and then I will turn to Attorney Jaffer. 

Mr. LEWIS. The only thing I say is there has to be some evidence 

of state practice to back up the idea to say I will not strike an 

enemy because they have crossed the geopolitical line and I am not 

aware of any state practice. Colombia didn’t do it with the FARC; 

Israel didn’t do it with Hezbollah; and we didn’t do it with the Vietcong and the North Vietnamese army; Turkey doesn’t do it with 

the PKK. I don’t believe there is a state practice that says we agree 

that geopolitical lines are the end when the enemy is seeking sanctuary. 

Ms. O’CONNELL. In addition to our report, I would like to also 

refer Professor Lewis to the Congo versus Uganda case in 2005 in 

the International Court of Justice, there is plenty of authority in 

that decision by the International Court of Justice, and that is 

where he needs to look for answers to his questions. 

Mr. CONYERS. Would you submit that additionally to the Committee? 

115 

Ms. O’CONNELL. I would be very happy to. I brought a copy of 

my latest article that also has all the correct citations and responds 

to many of the other specific points that Professor Lewis made. 

[The information referred to follows:] 

116 


EOA-1.eps
117 


EOA-2.eps
118 


EOA-3.eps
119 


EOA-4.eps
120 


EOA-5.eps
121 


EOA-6.eps
122 


EOA-7.eps
123 


EOA-8.eps
124 


EOA-9.eps
125 


EOA-10.eps
126 


EOA-11.eps
127 


EOA-12.eps
128 


EOA-13.eps
129 


EOA-14.eps
130 


EOA-15.eps
131 


EOA-16.eps
132 


EOA-17.eps
133 


EOA-18.eps
134 


EOA-19.eps
135 


EOA-20.eps
136 


EOA-21.eps
137 


EOA-22.eps
138 


EOA-23.eps
139 


EOA-24.eps
140 


EOA-25.eps
141 


EOA-26.eps
142 

Mr. CONYERS. Attorney Jaffer. 

Mr. JAFFER. Mr. Chairman, thank you for the opportunity to appear before you today. You know, I think a lot of issues that have 

been raised here are very important. I would like to associate myself with Professor Lewis’s remarks with respect to the use of—that 

topic we discussed earlier, obtained from coercive methods, whether 

they are called enhanced interrogation techniques or torture, or 

whatever you want to call them. That type of evidence is inadmissible in court, in criminal court, it should not be admitted. And 

that is absolutely, without a doubt, one of the core principles of the 

American justice system. 

In fact, the Department of Justice in the Ghailani trial stipulated 

for the purposes of that case, that the information obtained with 

respect to the witness against Mr. Ghailani had been obtained 

through coercive methods. Therefore it was not expected to be introduced. 

Mr. CONYERS. But of course, we don’t have that safeguard in 

military commissions, do we? 

Mr. JAFFER. As I understand it, Mr. Chairman, I think that the 

current Military Commissions Act of 2009, the one passed by Congress, does not permit the use of information obtained from coercive techniques in the military commissions either. 

Mr. CONYERS. No, it doesn’t, but the practice, I mean, you are an 

a battlefield. How many people that are drafted into a military 

commission knows about the law that we just passed cautioning 

them to be careful about torture or enhanced interrogation techniques? 

Mr. JAFFER. That is an important question, Mr. Chairman. As 

you know, just like in the Federal courts, in the military commissions there are judges who make the legal determinations. And so 

one would presume that in the military commissions context—— 

Mr. CONYERS. Yes, they are judges, but they are appointed 

judges. They are not really judges. They are not even lawyers. 

Mr. JAFFER. I believe, and I could be mistaken, but I believe that 

the judges for the military commission are JAG’s, are military lawyers. I could be mistaken. 

Mr. CONYERS. Well, let us clear it up. Are they, or aren’t they? 

They are JAG lawyers? 

Mr. LEWIS. Yes. The judge must not only be a JAG lawyer, the 

judge must also have gone through judicial training in addition to 

being a JAG lawyer. That is the judge. The members could be otherwise. 

Mr. FEIN. Your Honor, if I could just interject here. In the Federalist Papers the Founding Fathers described the very definition 

of tyranny: combining within the same branch law enforcement, 

and law adjudication and lawmaking. And that is what a military 

commissions is. In the executive branch they play judge, jury, prosecutor, and define what a war crime is. 

Now putting aside whether they have legal training, they know 

that they report to the Commander in Chief. And the whole reason 

why we have an independent judiciary with life tenures is because—and is the crown jewel of the Constitution—because that is 

how you get an unfettered, impartial mind. He is not worried about 

whether his superiors are going to want one thing or another. But 

143 

it was the Founding Fathers who described military commissions 

as the very definition of tyranny. 

Mr. CONYERS. Does anybody on the panel take any exception or 

want to qualify what Professor Fein—Attorney Fein has said? 

Laura Murphy. 

Ms. MURPHY. I think one of the things that we need to be clear 

about is that even though you may—we believe that you have to 

be a JAG lawyer to be a judge, you don’t have to have to have ever 

tried an international terrorism or other complex criminal case. 

And so, you know, I don’t think that—as much talent as there is 

in military commissions, it doesn’t compare to the talent that a 

Federal district court judge has or that the U.S. attorneys have in 

prosecuting complex criminal conspiracy cases, which is essentially 

what terrorism trials are. 

And so, you know, there were some improvements made in the 

Military Commissions Act of 2009, but we don’t think that the 

training for the lawyers or the judges is adequate to deliver justice. 

Mr. CONYERS. Attorney Jaffer seems to nod his approval. 

Mr. JAFFER. Well, I think that I agree to the extent that I believe 

that Federal district court judges have a tremendous amount of experience in trying complex criminal cases, including in some instances international terrorism cases. Our Federal prosecutors at 

the Department of Justice are phenomenal folks. These are career 

prosecutors in AUSA offices across the country and at main Justice. These are the people who would be ideal to prosecute these 

terrorists and to be tried before these judges. 

My view is simply that—and I share actually Attorney Fein’s 

concerns about the appearance of the folks who capture the individuals also trying them and acting as judges. 

Now let me also be clear that these military judges, these military lawyers are among the best lawyers that America has to offer. 

They sit up and serve our country. They get immediate trial experience. JAG lawyers, their first day on the job is going to trial, as 

I understand it. And so these are not lawyers with little experience 

who are not capable. These are terrific Americans, who have chosen to serve their country. They have decided to go to law school, 

become lawyers, admitted to the bar. They have engaged in numerous trials. 

So the fact that they haven’t necessarily tried complex criminal 

cases, I agree Federal courts are better. There is no doubt. And in 

an ideal world, I think the Federal courts are the best option as 

the ones that make us appear to do justice and there—— 

Mr. CONYERS. Professor Lewis seems to agree with you on that 

point. 

Mr. JAFFER. They simply don’t work in the context of national security detainees. There is an option out there that you could appear 

to do justice and use Federal sitting judges, and AUSAs, and 

cleared defense counsel with experience in these cases. That is important, too, for the protection of the individual being tried. 

Mr. LEWIS. I do agree that Article III courts are a better option. 

As I mentioned in my opening, though, I think that there are a certain subset of cases in which the evidentiary hurdles that it presents and the people who are gathering the information from overseas are just not a good fit. 

144 

Mr. CONYERS. Jeremy Scahill. 

Mr. SCAHILL. You know, it is pretty clear that when it comes to 

the issue of torture and accountability for it that the United States 

Government holds itself to one standard and the rest of the world 

to a different standard. 

I also wanted to add that when it became clear that the Obama 

administration had authorized the assassination of United States 

citizen Anwar al-Awlaki by either the Central Intelligence Agency 

or the Joint Special Operations Command, Representative Dennis 

Kucinich put forward a very simple piece of legislation that said 

the United States shouldn’t assassinate its own citizens without 

due process. I think five Members of Congress cosigned or cosponsored that legislation. 

That is a shocking commentary on the state of affairs in the Capitol today that only six American politicians, legislators would sign 

on to such a simple piece of legislation that said we shouldn’t assassinate our own citizens without due process. 

What I think what we are seeing unfold around the world today 

is a situation where in Afghanistan we are propping up drug dealers, war criminals and mass murderers in the name of democracy. 

We are bombing countries that we are not at war with, Yemen, Somalia, Pakistan. We are creating a new generation of insurgents 

that want and have every justification or reason to rise up against 

the United States because they actually have grievances now because members of their families have been killed. 

I feel very sad when I think about the future of our democracy, 

because I think that what we are doing right now is sending a message to the rest of the world that in many ways our foreign policy 

represents that of the very rogue states that we denounce on a regular basis. And I don’t say that lightly. I say it with a great sense 

of sobriety because I think it is shocking, and when you go to these 

war zones and you meet with the victims that live on the other end 

of the barrel of the gun that is our foreign policy, and they ask 

journalists, well, what can you do for us? The only thing we can 

do is come back to this body and ask that you do something about 

it, or try to give them access it to the lawyers. 

One the ironies of the dark years of the Bush administration was 

that trial lawyers emerged as some the strongest freedom fighters 

we had in this society. But for the Center for Constitutional Rights 

and the ACLU, I think we would be in a much darker situation 

right now. 

So I am very disturbed by a lot of what I have heard today and 

a lot of what is going on in the world. And I think a lot of it, when 

it comes down to Congress, boils down, as I said earlier, to the failure to use subpoena power. I think that is one of the actions that 

Congress can take that is a way of actually effecting some kind of 

responsibility or accountability when the other branches of government fail. And yet we have seen almost none of it with the Democrats in power in this Congress, and I hope that if the Democrats 

do regain the Congress, control of the House, that the subpoena 

power is used on these life-and-death issues. 

Mr. CONYERS. But can these hearings begin the commencement 

of a potentially more optimistic view on your part in the coming 

Congress? 

145 

Mr. SCAHILL. Well, I think the empty chair next to you is an indication of where things are headed, Mr. Chairman. And I think 

we are going to see the targeting of the great enemy to our society 

ACORN, and, you know, maybe Van Jones will be subpoenaed, you 

know, these great threats to U.S. National security. But I think we 

have to hold our own people accountable, and I wish this Committee had used its subpoena power more, quite frankly, and the 

oversight committee as well. 

Yes, it is a sign of optimism, to directly answer your question, 

that you so kindly agreed or initiated this hearing, but I think that 

the work has just begun, and hopefully if you are Chair again, we 

will see some subpoenas flying out of this office. 

Mr. CONYERS. Professor O’Connell. 

Ms. O’CONNELL. I am more optimistic than Mr. Scahill. I recall 

the great tradition of the Republican Party in terms of fidelity to 

international law. It was Abraham Lincoln, a Republican, who 

asked to have the first set of Code of Armed Conflict for the Law 

of Land Warfare to be written, and those rules are the fundamental rules that should be guiding how the United States conducts itself today. 

One of our greatest Secretaries of State, Elihu Root, founded the 

American Society of International Law with its object of promoting 

understanding and international relations under the rule of international law. 

I think if Republicans respect their tradition, the tradition of this 

country, where our Founding Fathers were well versed in international law, understood what it took to be a good citizen in the 

world, respecting international borders, respecting the authorities 

of international courts and tribunals, respecting what the wellversed, well-trained, proficient authorities, professors, publicists in 

international law had to say; I think if we see that—and I will do 

my level best from my position at Notre Dame to remind our Republican colleagues, our Republican elected Representatives that 

this is their tradition, that is the tradition of this country. And we 

can continue to add the counter example, which Mr. Scahill and I 

absolutely share. 

We tried these expansive lawless approaches, these extraordinary arguments that were not based in authority or good faith 

analysis of the law, and where are we today? We have so little to 

show. We have not regained our standing in the world. There is 

only one way to do that, and that is return to fidelity of the rule 

of law for which this country was founded. I think if we proceed 

in goodwill and those of us in a position to speak out and write out 

and continue to teach students, I have hope that this country will 

not further stray from our path and from who we are as Americans. 

Mr. CONYERS. I appreciate that. 

Ms. O’CONNELL. If I could just add one brief comment. I am married to a combat veteran, who was a United States Army interrogator, and I think that his sacrifice and that of all of our serving 

men and women is to be respected. And he fought for the rule of 

law. He fought in the Gulf War, which he knew was on behalf of 

enforcing the United Nation’s Charter. He fought under orders and 

respect for the Constitution. But that is what we owe all of our 

146 

serving men and women, respect for law, and we should not continue on this path that disregards that. 

Mr. CONYERS. Thank you so very much. 

Mr. Scahill, are you aware if the Chairman of this Committee 

was on H.R. 6010, prohibiting the extraterritorial killing of United 

States citizens? 

Mr. SCAHILL. Yes. 

Mr. CONYERS. Yes, you were aware? 

Mr. SCAHILL. Yes. 

Mr. CONYERS. So that you know that I am a cosponsor. 

Mr. SCAHILL. Yes. 

Mr. CONYERS. All right. 

Mr. SCAHILL. Oh, yeah, no, and I commend you for that. Yes, of 

course. 

Mr. CONYERS. Had you mentioned that before now? 

Mr. SCAHILL. Oh, well, it is your Committee, Mr. Chairman. 

Mr. CONYERS. I should know that I am on the bill. 

Mr. SCAHILL. I think you were one of the half dozen brave Members of Congress that had the audacity to stand up against our government assassinating our own citizens without due process. 

Mr. CONYERS. Well, I don’t think it takes that much audacity. 

Mr. SCAHILL. I don’t think it does. What I think is audacious is 

that only six of you, I believe I am correct, actually cosponsored 

that legislation. I congratulate you for it. 

Mr. CONYERS. Attorney Fein. 

Mr. FEIN. To add to that, I would compliment you as also being 

a supporter of a bill that I drafted with Walter Jones to have the 

audacious prohibition on a President intentionally and knowingly 

lying to Congress to obtain authorization for war, sort of a revolutionary principle. And that, again, had a handful of cosponsors. 

But just a couple of final closing points. One, due process is not 

simply a slogan. On Guantanamo Bay, after the Supreme Court declared that habeas corpus was available to the detainees, the vast 

majority that had hearings have been concluded not to be enemy 

combatants, and this is even though the Administration is able to 

rely on secret evidence to prove enemy combatant status. And 

these are people that, as words of former Secretary of Defense 

Rumsfeld said, were the worst of the worst. 

So due process matters. They don’t get it right all of the time. 

With regard to the idea of battlefield, what is and is not, what 

to me is rather alarming is that when you declare or find yourself 

at war with a tactic as opposed to a country, there are no boundaries; that if you say you are at war with international terrorism, 

the boundary is all of the planet. It can go interplanetary, intergalactic, wherever the tactic could be conceivably be used. That is 

what makes so dangerous the idea that we have the legal architecture of war in fighting international terrorism, because it means 

you can use military force anywhere you think someone is a terrorist, including in this very Committee room. 

Lastly at least with regard to waterboarding, if it really works 

so well, I am puzzled as to why those on this panel and maybe others who supported it aren’t championing that it be reinstituted. I 

don’t know anyone saying, we need Congress to pass a law saying 

the Administration shall use waterboarding because it is so effecVerDate Aug 31 2005 13:42 Jan 20, 2011 Jkt 000000 PO 00000 Frm 00150 Fmt 6633 Sfmt 6601 H:\WORK\CONST\120910\62958.000 HJUD1 PsN: 62958
147 

tive at gathering useful information of thwarting terrorist attacks. 

I think the fact that it was abandoned once it came under the sunshine exemplifies that it was hardly the necessary tool to prevent 

future terrorist attacks. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you. 

I would like to say on behalf of the Committee that there is nobody here on this Committee that sanctions waterboarding, among 

the witnesses in this discussion. I think that is accurate. 

Ambassador Pickering, you started us off, and I would ask you 

to make any closing comments that you would like to make before 

we adjourn. 

Mr. PICKERING. Two or three points, Mr. Chairman. Before I 

begin, there is a tendency in this town and sometimes up here on 

the Hill that while everything has been said, not everybody has 

said it yet. I will try to resile from that. 

I want to thank you for having the hearings. I think they 

brought out a number of very interesting points. It has been interesting that while the debate has had something of a partisan flavor 

from time to time, there are enough home truths that I think one 

can draw from this and your very vital and interesting cross examination of us all that there is a way ahead. 

My own sense is that there is an entire compatibility between 

national security and honoring and observing human and civil 

rights. This is where I began. My sense is that that still remains 

the deep underlying theme of this particular hearing. And even 

though we have had differences in degree about how the various 

pieces of this could come together, I think we have no difference 

across the group here in any way in principle. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you very much. This hearing stands adjourned. 

[Whereupon, at 12:11 p.m., the Subcommittee was adjourned.] 

(149) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

150 


HJ-1.eps
151 


HJ-2.eps
152 

Æ 


HJ-3.eps