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53–740 PDF 2009

S. HRG. 110–941 

COERCIVE INTERROGATION TECHNIQUES: DO 

THEY WORK, ARE THEY RELIABLE, AND WHAT 

DID THE FBI KNOW ABOUT THEM? 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JUNE 10, 2008 

Serial No. J–110–98 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 123 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 1 

prepared statement .......................................................................................... 125 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 159 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 4 

WITNESSES 

Caproni, Valerie E., General Counsel, Federal Bureau of Investigation, Washington, D.C. ........................................................................................................... 9 

Cloonan, John E., retired Special Agent, West Caldwell, New Jersey ................ 32 

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C ... 7 

Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law 

School, Cambridge, Massachusetts ..................................................................... 40 

Sands, Philippe, QC, Professor of Law and Director of the Centre of International Courts and Tribunals, University College London ............................. 37 

QUESTIONS AND ANSWERS 

Responses of Valerie Caproni to questions submitted by Senators Kennedy, 

Feingold and Schumer ......................................................................................... 51 

Responses of John (Jack) Cloonan to questions submitted by Senator Kennedy ....................................................................................................................... 65 

Responses of Glenn A. Fine to questions submitted by Senators Schumer, 

Feingold and Kennedy ......................................................................................... 67 

Responses of Philip B. Heymann to questions submitted by Senator Kennedy . 73 

Responses of Philippe Sands to questions submitted by Senator Kennedy ........ 108 

SUBMISSIONS FOR THE RECORD 

Caproni, Valerie E., General Counsel, federal Bureau of Investigation, Washington, D.C., statement ........................................................................................ 112 

Cloonan, John E., retired Special Agent, West Caldwell, New Jersey, statement ...................................................................................................................... 116 

Fine, Gleen A., Inspector General, Department of Justice, Washington, D.C., 

statement .............................................................................................................. 130 

Heymann, Philip B., James Barr Ames Professor of Law, Harvard Law 

School, Cambridge, Massachusetts, statement .................................................. 144 

Legal Analysis of Interrogation Techniquies ......................................................... 161 

Sands, Philippe, AC, Professor of Law and Director of the Centre of International Courts and Tribunals, University College London, statement and 

attachment ............................................................................................................ 164 

Whitehouse, Sheldon, a U.S. Senator from the State of Rhode Island, Intelligence hearing transcript ................................................................................... 206 

(1) 

COERCIVE INTERROGATION TECHNIQUES: DO 

THEY WORK, ARE THEY RELIABLE, AND 

WHAT DID THE FBI KNOW ABOUT THEM? 

TUESDAY, JUNE 10, 2008 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:36 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Dianne Feinstein, 

presiding. 

Present: Senators Feinstein, Feingold, Schumer, Durbin, Cardin, 

Whitehouse, and Specter. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. 

SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. I would like to quickly announce that there 

are five votes at 11 o’clock. Our witnesses this morning and I think 

the members are aware of that. My plan would be to recess the 

Committee at 11, and if we are not concluded, we will be able to 

recess and reconvene here at 2 o’clock in the afternoon. 

I might say this: For me, this is a very important hearing. I 

serve on the Intelligence Committee, so I am well aware of enhanced interrogation techniques. And the question before us is a 

very difficult and important subject: coercive interrogations and 

torture. 

Historically, the United States has been steadfast in its resolve 

that torture is unnecessary, unreliable, and un-American. Without 

torture, we succeeded in conflicts that threatened the very existence of our country, including a Civil War, a World War, and numerous other conflicts and enemies. 

Despite President Bush’s promise that the United States would 

fight the war on terror consistent with American values and ‘‘in the 

finest traditions of valor,’’ the administration decided, as the Vice 

President said in 2001, to ‘‘go to the dark side’’—to use coercive interrogation. 

This decision by the Bush administration has had profound effects. 

Cruel, inhuman, and degrading treatment of prisoners under 

American control I believe violates our Nation’s laws and values. 

It damages our reputation in the world, and it serves as a recruitment tool for our enemies. Perhaps more importantly, it has also 

limited our ability to obtain reliable and usable intelligence to help 

2 

combat the war on terror, prevent additional threats, and bring to 

justice those who have sought to harm our country. 

I have listened to the experts, such as FBI Director Mueller, DIA 

Director General Maples, and General David Petraeus. All insist 

that even with hardened terrorists, you get more and better intelligence without resorting to coercive interrogations and torture. 

The bottom line is that there are many interrogation techniques 

that work, even against al Qaeda, without resorting to torture. One 

of today’s witnesses, former FBI Special Agent Jack Cloonan, has 

personally interrogated members of al Qaeda within the confines of 

the Geneva Conventions and obtained valuable, reliable, and usable intelligence. 

Mr. Cloonan was involved in the interrogation of Ibn al-Sheik AlLibi, the first high-profile al Qaeda member captured after September 11th, and Ali Abdul Saud Mohammed, one of Osama bin 

Laden’s trainers. In both cases, the FBI used non-coercive interrogations to obtain valuable information about al Qaeda. I look forward to Mr. Cloonan’s testimony about how the non-coercive interrogation techniques used by the FBI work to provide reliable and 

usable intelligence. 

The FBI has long recognized the unreliability of information obtained from coercion and torture. It has based its belief on years 

of experience and behavioral science. This hearing will examine 

how non-coercive interrogation techniques can be used effectively 

and why coercive interrogations and torture do not yield reliable 

and useful intelligence for the most part. 

The hearing will also review the recently released Department of 

Justice Inspector General’s report detailing the FBI’s knowledge 

and involvement in the coercive interrogation techniques and torture that occurred in Guantanamo, Afghanistan, and Iraq after the 

September 11, 2001, attack. 

Both Senator Specter, our Ranking Member today, and I have 

heard numerous times the Inspector General report on the FBI, 

and let me just say I believe he is a very square shooter and one 

of our finest Inspector Generals. 

To its credit, the FBI was steadfast in its unwillingness to use 

coercion and torture as a means to obtain information. FBI agents 

on the ground at Guantanamo and other sites repeatedly voiced 

concerns about the harsh interrogations being conducted by military and DOD interrogators. In total, over 200 FBI agents raised 

these concerns. For that, the FBI should be commended. 

Questions remain, however, about why FBI leadership was not 

notified more quickly about the agents’ concerns at Guantanamo 

and why formal guidance was not provided to FBI agents in the 

field until May of 2004–2 years after the first complaints were received at FBI Headquarters about coercive interrogations. I hope 

Mr. Fine and Ms. Caproni, the legal counsel of the FBI, can address these issues. 

The FBI should also be credited for raising the alarm to the Department of Defense about what was happening at Guantanamo. 

We now know that as early as October 2002, FBI agents at Guantanamo alerted Marion Bowman, the FBI’s Deputy General Counsel in charge of national security, about coercive interrogations occurring at Guantanamo. On November 27, 2002, an FBI agent at 

3 

Guantanamo sent a written legal analysis questioning the legality 

of coercive interrogations and noting that these techniques appeared to violate the U.S. torture statue. 

In November and December 2002, Mr. Bowman personally contacted officials in the DOD General Counsel’s office, including General Counsel Jim Haynes, about the FBI’s concerns. According to 

Mr. Bowman, Haynes claimed he did not know anything about the 

coercive interrogation techniques that were occurring at Guantanamo, despite the fact that he recommended on November 27, 

2002, that Secretary Rumsfeld formally approve the very techniques that were being used at Guantanamo. 

Clearly, there are questions that need to be answered regarding 

how the interrogation policies at Guantanamo were formulated and 

authorized, whether they were from the bottom up, as the Administration has stated, or from the top down, as the evidence is beginning to show. Whose idea was it? Who was consulted? And when 

complaints were raised about what was happening at Guantanamo, 

what was done? 

Historically, the Bush administration has argued that the military commanders and JAG lawyers on the ground requested the 

initial authorization and provided the legal justification to use coercive interrogation techniques against detainees. In June of 2006, in 

testimony before this Committee, then-DOD General Counsel Jim 

Haynes said that the request to use these harsh interrogation techniques was made by the commanding general at Guantanamo, and 

that the request ‘‘came with a concurring legal opinion of his Judge 

Advocate.’’ 

Yet, as time goes by and more facts come out, the administration’s explanation has become increasingly discredited. More and 

more evidence shows that the decision to use coercive interrogation 

techniques was made at the highest levels of the Bush administration. 

Just a moment on the timeline: 

On August 1, 2002, the DOJ Office of Legal Counsel completed 

the so-called Yoo-Bybee memos providing a legal justification for 

coercive interrogation techniques and torture. 

On September 25 and 26, just about a month later, a month and 

a half, DOD General Counsel Haynes, White House Counsel 

Alberto Gonzales, and Vice Presidential Counsel David Addington 

visited Guantanamo and witnessed detainee interrogations. 

On November 23, 2002, Secretary of Defense Rumsfeld verbally 

authorized harsh interrogations of Muhammad Al Qahtani, a highvalue detainee at Guantanamo. 

On November 27, 2002, Haynes recommended that Secretary 

Rumsfeld formally authorize coercive interrogation techniques at 

Guantanamo. 

On December 2, 2002, Secretary Rumsfeld approved, in writing, 

the coercive interrogations at Guantanamo. 

Philippe Sands, who is testifying today—and I very much appreciate the fact he has come from London to provide this testimony, 

and this is one of the reasons that if we are not concluded, we will 

recess at 11 and come back at 2:00—has interviewed many of the 

Bush administration officials involved in the authorization to use 

coercive interrogation techniques at Guantanamo, including former 

4 

DOD General Counsel Jim Haynes. He has asked to take the oath, 

because he wants to be sure that everybody knows he will be telling us the truth as he knows it. And I will administer the oath at 

that time. 

I look forward to hearing what he has learned about how the decision to use coercive interrogations and torture was made in the 

Bush administration. 

It is absolutely essential that we obtain reliable and usable intelligence to successfully fight the war on terror. I believe it is wrong 

to use coercive interrogation and torture to try to accomplish that 

goal. I believe we must stop it, and as a member of the Intelligence 

Committee, I am doing everything I can think of to do just that. 

It is also imperative, however, that we examine how complaints 

about coercive interrogations were handled by the FBI and how 

those harsh interrogation techniques were first authorized. 

So I would like now, if I might, to turn it over to my very distinguished Ranking Member. I am delighted that you are apparently 

substituting for Senator Kyl today. I thank you very much for 

being here as Ranking Member of the entire Judiciary Committee, 

Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Well, thank you, Madam Chairwoman. I do not 

believe that I am substituting for anybody. I am the Ranking Member. This is my position. So I am glad to be here on this— 

Senator FEINSTEIN. All right. Thank you. 

Senator SPECTER [continuing]. Very important subject. 

Senator FEINSTEIN. I misspoke. I did not realize this is a full 

Committee hearing. I thought it was my Subcommittee hearing. 

But I am delighted as such to give you due deference, and I do so 

immediately. 

Senator SPECTER. I am not that concerned about deference, due 

or not, but I think you should note that you are the Chairman of 

the full Committee today, so your status is a status which has been 

clarified. But on to the subject. 

This is obviously a very, very important hearing to have an airing and public disclosure as to what our interrogation techniques 

are. There is no doubt that torture is against the law of the United 

States, the Geneva Convention, and it ought not to be countenanced in any way, shape, or form. We have the famous Bybee 

memorandum, which has been thoroughly discredited. We have 

voted on issues like waterboarding, where I voted against having 

waterboarding as a technique. And as Senator Feinstein has noted, 

there is obviously a very, very high value on getting important intelligence information. 

The war on terrorism is with us all the time. We do not have to 

talk about the ravages of 9/11 or about terrorism around the world, 

and it is an ongoing threat. And we need strong law enforcement 

techniques, but they have to be balanced at all times—at all 

times—against constitutional rights. And this Committee has been 

very diligent on a whole range of analyses. 

We have taken up the expansion of Executive power with the 

Terrorist Surveillance Program. My sense is that decades from 

5 

now, historians will look back upon this period in our history for 

the very vast increase of Executive power. And, finally, we brought 

the Terrorist Surveillance Program under the jurisdiction of the 

Foreign Intelligence Surveillance Court. Senator Feinstein and I labored long and hard to structure some legislation on that subject. 

We have seen the signing statements where the executive branch 

has disregarded the will of Congress. We have seen grave problems 

on rendition, on state secrets, and it is an ongoing battle. And Congress has not been very effective, in my judgment, on restraining 

the expansion of Executive authority. Candidly, neither have the 

courts. 

I was very disappointed when the Supreme Court of the United 

States denied cert. on the litigation challenging the constitutionality of the Terrorist Surveillance Program. It was declared unconstitutional by a Federal judge. In a 2–1 decision, the Sixth Circuit said there was no standing, and the Supreme Court denied 

cert. We could have used some help on the standing issue. That is 

just one case where the executive branch has insisted that Article 

II powers as Commander-in-Chief enable the President to disregard 

the statutes, the Foreign Intelligence Surveillance Act, just as the 

administration has disregarded the National Security Act of 1947 

in not informing the Intelligence Committees as to what was going 

on. 

And now we have the habeas corpus issue, where the Supreme 

Court has in effect ducked the issue. We have the Boumediene case 

where the District of Columbia Circuit ignored the Rasul decision, 

waiting to see if habeas corpus will be reinstated on what in my 

legal judgment was a clear-cut opinion by Justice Stevens, that habeas corpus is grounded in the Constitution as well as in the statute. 

I make these comments in a broader context of our efforts to restrain Executive authority. And when you come down to the focus 

as to interrogation techniques, there obviously has to be greater restraint than what the executive branch has undertaken. 

It was my hope that we would have General Hayden testify here 

today. There is a debate in the intelligence agencies about the various levels of responsibility of what the Army needs to do by way 

of interrogation defined by the Army Field Manual, contrasted with 

what the FBI does, which is significantly different, contrasted yet 

again with what the CIA does, which is significantly different. 

There have been representations that these interrogation techniques have yielded very, very valuable information to prevent terrorist attacks. Candidly, I have not seen that. And perhaps it has 

to be disclosed in a closed session, but those are issues which we 

have to weigh carefully. But it is a great credit to our system that 

we have a former FBI agent, Jack Cloonan, stepping forward to 

blow the whistle, in effect, about what is going on with the intelligence tactics at Guantanamo. It is a credit to our system that the 

Inspector General, Mr. Fine, and counsel, Ms. Caproni, come forward with critical analysis and that this Committee is ready to put 

a microscope under what is being done. 

We have Phil Heymann, former Deputy Attorney General, who 

has written extensively on this subject and has offered a somewhat 

different opinion that highly coercive interrogation techniques that 

6 

fall short of torture may be necessary and legal, but only if strict 

guidelines are in place. Well, let’s explore that. Let’s explore what 

the guidelines should be and what are those highly coercive interrogation techniques are permissible which fall short of torture. 

We all agree that torture is illegal and ought not to be countenanced. You have very extensive writing by a notable civil libertarian, Professor Alan Dershowitz from Harvard, who talks about 

torture warrants and going to a judicial official. We talk about presenting the matter to the highest authorities in our civil government, including the President of the United States. And we talk 

about the so-called ticking bomb case. What do you do if hundreds 

of thousands of people are about to be killed? So we are dealing in 

very, very deep water, and this ought to have a very heavy glare 

of congressional analysis. And we are going to try to do that today 

and in the future. 

I am 37 seconds over, Madam Chairwoman. I hope that does not 

foul up the timing too much. 

Senator FEINSTEIN. Yes, I am surprised by that. Thank you very 

much, and it is good to have you here. 

Senator SPECTER. Thank you. 

Senator FEINSTEIN. I would like to ask Senator Whitehouse—we 

serve together on the Intelligence Committee and have worked together on these issues and, I think, see things similarly. Senator 

Whitehouse, would you like to make a statement? 

Senator WHITEHOUSE. Thank you, Chairman. I just want to congratulate you on holding this hearing and express my appreciation 

that the Ranking Member is here. As you know, months ago when 

I proposed the first limitation on the CIA’s use of these abusive 

techniques, the only Senator who cosponsored it was you, Chairman, and it was your amendment that ended up passing in the Intelligence authorization, and you have been in the Committee, both 

behind closed doors and in public, very firm and strong in your 

views on the subject. And it has been an inspiration for this new 

Senator to see you in action, and I appreciate that this is going on. 

I would like to ask, do you remember we had an interesting hearing in the Intelligence Committee in which a colonel who had 22 

years of interrogation experience with the United States Air Force 

Special Operations Command testified about the relative value of 

abusive techniques versus effective techniques? I think you and I 

were perhaps the only people left in the Intelligence hearing at the 

time that that evidence was taken. But it has been declassified, 

and I would ask unanimous consent that it be made a part of the 

record of this hearing. 

Senator FEINSTEIN. Without objection. 

Senator WHITEHOUSE. And I thank Chair for her courtesy and for 

this hearing. 

Senator FEINSTEIN. Thank you very much. 

We will now proceed with panel No. 1. I would like both Mr. Fine 

and Ms. Caproni, if possible, to summarize. We do have a 5-minute 

rule. I am going to change it today, but, please, recognize that we 

have a vote at 11, and we would like to start with the second 

panel. And so I would appreciate your being relatively concise. 

There will be 7-minute rounds for the Committee, and we will 

follow the early-bird rule, alternating between sides. 

7 

So if I may begin with you, Mr. Fine, I would like to introduce 

you. You have served as the United States Inspector General for 

the Department of Justice since December 15, 2000. You are 

charged with conducting independent investigations, audits, and 

inspections of the United States Department of Justice personnel 

and programs. Your office recently released a report reviewing the 

FBI’s involvement in and observations of detainee interrogations in 

Guantanamo, Afghanistan, and Iraq. Prior to becoming Inspector 

General, Mr. Fine worked in the Office of the Inspector General for 

over a decade. He has also served as an Assistant United States 

Attorney. 

At this time, I would like to introduce Valerie Caproni as well. 

She has served as the General Counsel of the FBI’s Office of General Counsel since August of 2003. She is responsible for advising 

FBI officials on all legal issues, including national security law and 

terrorism. Prior to joining the FBI’s General Counsel Office, Ms. 

Caproni worked as a regional director for the Securities and Exchange Commission. Over the course of her career, she has had extensive experience in both the private and public sector, including 

time as an Assistant U.S. Attorney in the Eastern District of New 

York. 

Welcome, Mr. Fine. Welcome, Ms. Caproni. Mr. Fine, if you 

would begin. 

STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, U.S. 

DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. FINE. Thank you, Madam Chairwoman, Senator Specter, 

members of the Committee. Thank you for inviting me to testify 

about the Office of the Inspector General’s report on the FBI’s involvement in and observations of detainee interrogations in Guantanamo Bay, Afghanistan, and Iraq. As part of our investigation, 

the OIG team surveyed over 1,000 FBI employees who were deployed overseas to one of the military zones between 2001 and 

2004. In addition, the team interviewed more than 230 witnesses 

and reviewed more than half a million pages of documents. Our 

team also made two trips to Guantanamo. 

Our investigation focused on detainee treatment in facilities 

under the control of the Department of Defense. With limited exceptions, we were not able to investigate the observations of FBI 

employees regarding detainees held at CIA facilities. In my testimony this morning, I will briefly summarize some of our major 

findings. In line with the subject of this hearing, I will also focus 

on the FBI’s decision not to participate in joint interrogations of detainees with other agencies who were using techniques not permitted by the FBI. 

Our investigation found that the vast majority of the FBI agents 

deployed to the military zones adhered to FBI policies. FBI officials 

and agents told us that the FBI’s approach, coupled with a strong 

substantive knowledge of al Qaeda, had produced extensive useful 

information in both pre-September 11th terrorism investigations as 

well as in the post-September 11th context. DOJ officials also said 

they agreed with the FBI’s approach. 

FBI agents, however, encountered interrogators from other agencies who used aggressive interrogation techniques. In August 2002, 

8 

FBI Director Mueller decided that the FBI would not participate in 

the joint interrogation of detainees with other agencies in which 

techniques not allowed by the FBI were used. This policy was established as a result of the interrogation of Abu Zubaydah, who 

was captured in Pakistan in March 2002 and interrogated at a CIA 

facility. We determined that FBI agents observed the CIA use techniques that undoubtedly would not be permitted under FBI interview policies. 

The head of the FBI’s Counterterrorism Division at the time, 

Pasquale D’Amuro, gave the OIG several reasons for the FBI’s position. First, he said he believed that the military’s aggressive techniques were not as effective for developing accurate information as 

the FBI’s rapport-based approach, which he stated was used successfully to obtain cooperation from al Qaeda members. 

Second, D’Amuro said that the use of aggressive techniques 

failed to take into account an ‘‘end game.’’ He stated that even a 

military tribunal would require some standard for admissibility of 

evidence. 

And, third, D’Amuro stated that using these techniques helped al 

Qaeda in spreading negative views of the United States. 

Our investigation found that in 2002, the friction between the 

FBI and the military increased regarding the interrogation of Muhammad Al Qahtani at Guantanamo. The FBI advocated a longterm rapport-based strategy, while the military insisted on a different, more aggressive approach. Despite the FBI’s objections, the 

military proceeded with its interrogation plan for Al Qahtani. The 

techniques used on him during this time period included stress positions, 20-hour interrogations, tying a dog leash to his chain and 

leading him through a series of dog tricks, stripping him naked in 

the presence of a female, repeatedly pouring water on his head, 

and instructing him to pray to an idol shrine. 

We were unable to determine definitively whether the concerns 

of the FBI and the Department of Justice about DOD interrogation 

techniques were addressed by any of the Federal Government’s 

interagency groups that resolve disputes about antiterrorism 

issues. Several senior Department of Justice officials told us that 

the DOJ raised concerns about particular DOD practices in 2003 

with the National Security Council and the DOD. We found no evidence that these concerns influenced Department of Defense interrogation policies. Ultimately, the DOD made the decisions regarding what interrogation techniques were used by military interrogators because the detainees were held in DOD facilities and the FBI 

was there in a support capacity. 

As part of our review, we also examined the training that FBI 

agents received regarding issues of detainee interrogation. In May 

2004, following the Abu Ghraib disclosures, the FBI issued written 

guidance stating that the FBI personnel may not participate in interrogation techniques that violate FBI policies regardless of 

whether the co-interrogators were in compliance with their own 

policies. We concluded that while the FBI eventually provided some 

guidance to its agents about conduct in military zones, FBI headquarters did not provide timely guidance or fully respond to requests from its agents for additional guidance. 

9 

We also investigated several specific allegations that FBI agents 

participated in abuse of detainees in connection with interrogations 

in military zones. In general, we did not substantiate these allegations. We found that most FBI employees adhered to the FBI’s traditional interview strategies in the military zones 

In conclusion, we believe that while the FBI could have provided 

clearer guidance earlier and could have pressed harder its concerns 

about detainee abuse by other agencies, the FBI should be credited 

for its conduct and professionalism and for generally avoiding participation in detainee abuse. 

That concludes my testimony, and I would be pleased to answer 

any questions. 

[The prepared statement of Mr. Fine appears as a submission for 

the record.] 

Senator FEINSTEIN. Thank you very much, Mr. Fine. 

Ms. Caproni. 

STATEMENT OF VALERIE E. CAPRONI, GENERAL COUNSEL, 

FEDERAL BUREAU OF INVESTIGATION, WASHINGTON, D.C. 

Ms. CAPRONI. Good morning, Madam Chairwoman, Ranking 

Member Specter, and members of the Committee. It is my pleasure 

to appear before you today to discuss with the Committee the FBI’s 

knowledge of interrogation techniques used by other agencies. The 

FBI is pleased that the Office of the Inspector General credited the 

FBI in its recent report on this subject for its ‘‘...conduct and professionalism in the military zones of Guantanamo Bay, Afghanistan, and Iraq.’’ 

As you know, the primary mission of the FBI is to lead law enforcement and domestic intelligence efforts to protect the United 

States and its interests from terrorism. FBI intelligence derived 

from Iraq, Afghanistan, and Guantanamo Bay has led to numerous 

investigations to identify and disrupt terrorist threats in the 

United States and has provided important intelligence in ongoing 

investigations. 

We were gratified to read the conclusion of the IG that ‘‘the vast 

majority of FBI agents in the military zones understood that existing FBI policies prohibiting coercive interrogation tactics continued 

to apply in the military zones and that they should not engage in 

conduct overseas that would not be permitted under FBI policy in 

the United States.’’ 

The FBI decided in 2002 that, regardless of what other agencies 

might be authorized to do, the FBI would continue to apply FBI interrogation policies regardless of where the interrogation was occurring and regardless of who was being interrogated. The IG’s report confirmed that our agents complied with that policy with very 

few exceptions. Significantly, the IG found no instance in which an 

FBI agent participated in the sort of clear detainee abuse that 

some members of the military used at Abu Ghraib prison. 

Consistent with the FBI’s long history of success in custodial interrogations, FBI policy is to employ non-coercive, rapport-based 

interview techniques, whether we are questioning detainees captured in a military zone or individuals arrested in the United 

States. The most significant difference between interviews of foreign detainees and interviews of defendants under arrest in the 

10 

United States is that foreign detainees are generally not read Miranda warnings. 

As the IG’s report makes clear, the FBI Director determined in 

2002 that the FBI would not participate with other Government 

agencies in joint interrogations in which techniques that would not 

be permissible in the United States were used. That decision was 

consistent with the FBI’s longstanding belief that the most effective 

way to obtain accurate information is to use rapport-building techniques in interviews. 

After the Abu Ghraib disclosures, the FBI issued written policy 

which reaffirmed existing FBI policy and reminded FBI agents that 

they were prohibited from using coercive or abusive techniques, regardless of whether the technique was authorized by any other 

agency. The policy also directed agents that they were not to participate in any treatment or interrogation technique that is in violation of FBI guidelines and that they were required to report any 

incident in which a detainee was abused or mistreated. All allegations of detainee mistreatment during the course of interrogations 

were reviewed by FBI headquarters and referred to the appropriate 

agency for investigation. 

In short, we are proud of the fact that FBI agents acted consistently with our policies despite the existence of circumstances where 

it might have been very easy to go along with other agencies’ techniques in the interest of interagency harmony. The FBI will continue to use rapport-building techniques when conducting interviews in the military zones because we believe these techniques are 

the most efficacious way to obtain reliable information during interrogations. 

I appreciate the opportunity to appear before the Committee and 

look forward to your questions. Thank you. 

[The prepared statement of Ms. Caproni appears as a submission 

for the record.] 

Senator FEINSTEIN. Thank you very much. The order will be myself, Senator Specter, early bird, Senator Whitehouse, and then 

Senator Feingold—oh, Senator Feingold was here before Senator 

Whitehouse? All right. Senator Feingold, then Senator Whitehouse. 

Mr. Fine, if I could begin, in your report, did you get any information about FBI agents observing waterboarding? 

Mr. FINE. No. We talk about the FBI’s involvement with the interrogation of Abu Zubaydah. They did not witness waterboarding. 

I think the CIA has subsequently acknowledged waterboarding 

Zubaydah, but they did not report to us that they witnessed that 

conduct. 

Senator FEINSTEIN. Did any of them comment on long periods of 

isolation? 

Mr. FINE. Yes, isolation was a tactic used by the military, and 

there were periods of isolation, sometimes more than 30 days, that 

were used in Guantanamo. 

Senator FEINSTEIN. And on Al Qahtani, what information do you 

have on how long he has been held in isolation? 

Mr. FINE. I am not sure he was one that was the subject of the 

long-term isolation. There was a whole series of tactics used on 

him. Isolation was not the most coercive tactic used on him. 

11 

Senator FEINSTEIN. Okay. Now, you pointed out or your report 

points out that over 200 agents observed or heard military interrogators using a variety of harsh techniques, and you spell them out: 

stress positions, short shackling, the isolation, growling military 

dogs, twisting thumbs back, using a female interrogator to touch or 

provoke a detainee in a sexual manner. And these allegations were 

made public in FBI e-mails that were obtained by the ACLU 

through Freedom of Information requests. 

The report also states that these agents expressed strong concern 

about what they observed to senior officials at FBI headquarters 

and that, in early 2003, FBI agents continued to raise objections 

and sought guidance, but no response was forthcoming. 

Finally, on May 19, 2004, FBI General Counsel finally issued an 

official policy on what FBI agents should do if they saw coercive 

or abusive techniques. 

I would like you to explain, if you can, what happened to concerns or complaints that were raised prior to when the official policy was finally issued, who received them, how did they go up the 

chain of command, what was done to follow up on them, and have 

they ever been dealt with. 

Mr. FINE. We talk about that in the report in that the concerns 

originally arose when the Abu Zubaydah case and the Al Qahtani 

case, the concerns were raised to FBI headquarters. They eventually resulted in the policy that Director Mueller instituted that the 

FBI agents were not to participate— 

Senator FEINSTEIN. Two years later. 

Mr. FINE. Well, that happened in 2002, August of 2002, and the 

concerns continued. We did find that the concerns went to the Department of Justice, that there were senior officials in the Department of Justice who heard about the concerns and raised the concerns with the Department of Defense, and we also heard that they 

raised it with the National Security Council. 

The issue that was raised, though, from the interviews that we 

conducted, was more an issue of effectiveness. Was this an effectiveness tactic to obtain reliable and accurate information? They 

raised the concerns with the Department of Defense, but the Department of Defense, from what we were told, dismissed those concerns and no changes were made in the Department of Defense’s 

strategy. Ultimately, it was the Department of Defense’s decision. 

These detainees were under their control. The Department of Justice and the FBI believed that the Department of Defense tactics 

that were used were not effective and should have been changed, 

but they were not successful in— 

Senator FEINSTEIN. Did you raise them with the Department of 

Justice? 

Mr. FINE. Did? 

Senator FEINSTEIN. Did the FBI raise those concerns with the 

Department of Justice? 

Mr. FINE. Yes, with officials in the Criminal Division, and ultimately we heard that even Attorney General Ashcroft heard about 

the concerns, particularly with regard to Al Qahtani and raised 

those codncerns. We were not able to definitively find out what he 

did because he declined our request to interview him. 

12 

Senator FEINSTEIN. Did Department of Justice at any time say 

that those techniques were legal? 

Mr. FINE. Well, that is an issue about what the Office of Legal 

Counsel has done and its legal opinions, and you talked about the 

Bybee-Yoo memo. There are other classified memos. So it was— 

Senator FEINSTEIN. No, I am not talking about the memos. We 

are now, fortunately, all aware of them. 

Mr. FINE. Right. 

Senator FEINSTEIN. I am talking about when these reports came 

in and somebody in the upper echelons of the FBI—and I will get 

to who in a minute—called Justice, I would assume they called 

Justice to say, ‘‘Is this legal? ’’ What I am asking is what was the 

answer that came back. 

Mr. FINE. What we were told was that the concerns mostly related not to the legality of it, but to the effectiveness of it. That is 

what the people told us that the concerns that were raised— 

Senator FEINSTEIN. Well, why would they raise effectiveness with 

DOJ? 

Mr. FINE. Pardon me? 

Senator FEINSTEIN. Why would they raise effectiveness with Justice? 

Mr. FINE. Because Justice is the component overseeing the FBI 

and had participation in interagency councils, and the FBI believed 

that these techniques were not getting actionable information, that 

they were unsophisticated and unproductive, and that they asked 

the Department of Justice to get involved. 

Senator FEINSTEIN. Now, how far up the line at the FBI did 

these complaints go? 

Mr. FINE. In general, the complaints went to the Counterterrorism Division. We talked about it going up higher and that there 

were some—the concerns were raised at the highest levels, not constant concerns or not in lots of specificity, but particularly with regard to Al Qahtani, those concerns were raised at high levels. 

Senator FEINSTEIN. Did they reach the Director? 

Mr. FINE. He recalled general concerns. I do not think he recalled 

in specifics and in clear detail, but he was aware of concerns about 

the Department of Defense interrogation tactics. 

Senator FEINSTEIN. And what did the Director do about those 

concerns? 

Mr. FINE. The first thing he did was institute the policy that the 

FBI was not to participate in it. In terms of further issues, it is 

not clear that he was the one who was raising the concerns over 

to the Department of Defense; rather, we found that officials in the 

Counterterrorism Division, the Military Liaison and Detainee Unit, 

and also Spike Bowman, raised concerns with other agencies. 

Senator FEINSTEIN. Could one conclude—and I am just asking 

this question now—that Director Mueller raised these concerns and 

was rebuffed and, therefore, decided that the FBI would not cooperate in these interrogations? 

Mr. FINE. I think what we were told was that when the concerns 

were raised, he made that decision for the reasons that Pasquale 

D’Amuro stated that I stated in my oral statement. I do not think 

it was because he was rebuffed. I think it was because he decided 

that this was not something that the FBI should participate in. 

13 

Senator FEINSTEIN. Thank you very much. 

Can you tell me how many reports were made? 

Mr. FINE. How many? 

Senator FEINSTEIN. Yes. 

Mr. FINE. It is not clear how many reports were made, but there 

were concerns being raised— 

Senator FEINSTEIN. Are we talking about dozens of reports coming back? 

Mr. FINE. Well, the reports would go through the on-scene commander. The on-scene commander would sometimes raise it in the 

Counterterrorism Division. The problem was that the people did 

not know what was authorized and what was not authorized, and 

at some point they assumed these tactics were authorized. So they 

sort of stopped making complaints about them because they did not 

know what was authorized and what was not authorized. 

Senator FEINSTEIN. Thank you very much. 

Senator Specter. 

Senator SPECTER. Mr. Fine, there is a clear distinction as to what 

the FBI’s duty was on the issue of not engaging in these kinds of 

interrogation techniques and blowing the whistle on them. Now, 

what did the FBI do by way of blowing the whistle? And the really 

critical factor, as I listened to your testimony, is how far it went 

up the chain of command and precisely what did Director Mueller 

do. It seems to me that where the FBI witnesses interrogation 

techniques which the FBI believes are improper, perhaps even illegal, perhaps even torture, that there is a duty to take it to the top. 

And that requires not generalizations but did you interview Director Mueller? 

Mr. FINE. Our investigators did interview Director Mueller. 

Senator SPECTER. I asked you if you interviewed Director 

Mueller. 

Mr. FINE. No. 

Senator SPECTER. Why not? 

Mr. FINE. Because our investigation was conducted by trained investigators. I do not conduct the investigations. All the investigations we participated in— 

Senator SPECTER. Okay. The trained investigators questioned 

him. Did they ask him specifically whom he reported these abusive 

tactics to? 

Mr. FINE. I believe they asked him if he made reports of this. 

Senator SPECTER. But wait a minute. I do not want to know 

what you believe. This is a very critical question. It seems to me 

that if the Director is to be acting properly and he finds out something that is going on which is improper or illegal, he ought to take 

it up with the Attorney General, and he ought to find out what the 

Attorney General is doing about it. And if he is not satisfied with 

what the Attorney General is doing about it, he ought to take it 

up with White House Counsel, or he ought to take it up with the 

President. The FBI Director has access to the President. What are 

the specifics? What did Mueller say or at least what was Mueller 

asked? 

Mr. FINE. I think what Director Mueller said, Senator Specter, 

was that he was aware that the legality of this was being assessed 

by the Department of Justice, it was changing; that there were peoVerDate Nov 24 2008 12:58 Dec 10, 2009 Jkt 053740 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53740.TXT SJUD1 PsN: CMORC
14 

ple in the Department of Justice, the Office of Legal Counsel, who 

were blessing some of these tactics; and that the Department of 

Justice had reviewed it and as a result, he decided that his agents 

would not be involved with this. 

Senator SPECTER. Well, it seems to me that that is insufficient. 

To say that the practices were changing—your words—that is not 

to say that they were changed. That is not to say that they were 

stopped. 

Now, you made a brief comment about Attorney General Ashcroft 

specifically. What did your investigation show as to what Attorney 

General Ashcroft was told? 

Mr. FINE. We were informed that Attorney General Ashcroft was 

aware of the complaints, mostly in terms of the effectiveness of the 

tactics that were being used. 

Senator SPECTER. Well, could you be more specific? Did your investigators question Ashcroft? 

Mr. FINE. No. We asked to, and he declined our request for an 

interview. 

Senator SPECTER. So when he declined, what did you do about 

that? 

Mr. FINE. We asked the people around him. We asked—we interviewed Deputy Attorney General Thompson. We interviewed Michael Chertoff. We interviewed— 

Senator SPECTER. You asked the Deputy Attorney General, and 

what did he say—Thompson? 

Mr. FINE. He did not remember the complaints or the specific 

complaints— 

Senator SPECTER. He did not remember the complaints? 

Mr. FINE. No. 

Senator SPECTER. Did not amount to much in Thompson’s opinion? 

Mr. FINE. I don’t know about that, but he did not remember the 

specific complaints coming to him. 

Senator SPECTER. Well, it seems to me that the investigation— 

and this is a critical point. You make a distinction in your concluding statement that the FBI could have provided clearer guidance, but they should be credited with generally avoiding participation in detainee abuse. It seems to me it is not sufficient not to participate in improper or illegal conduct; that if they see it, they 

ought to blow the whistle and do what is necessary to stop it. Isn’t 

that the way it ought to be done? 

Mr. FINE. I think that is a fair statement, Senator Specter, and 

one of the things I did say was not only should they have provided 

clearer guidance, but they could have pressed harder their concerns. I think they should have pressed harder their concerns. 

Senator SPECTER. Well, to say that they should have pressed 

harder is not to say very much. On your testimony, they did not 

press much at all. 

In your judgment, Mr. Fine, were the tactics used by DOD torture? 

Mr. FINE. We did not do a legal analysis of this based upon— 

Senator SPECTER. You did not do a legal analysis? 

Mr. FINE. No. What we— 

Senator SPECTER. Why not? 

15 

Mr. FINE. Because that is not our role as the Inspector General. 

Our role is to provide the facts and to discuss what happened and 

discuss what the FBI witnessed— 

Senator SPECTER. Well, you have got a lawyer, you have got a 

General Counsel to make a legal judgment. 

Mr. FINE. That is correct, and also I am a lawyer. But our role 

is to provide the facts and to provide reports on this. 

Senator SPECTER. Let me ask you—my time is growing short. Let 

me ask you to review the facts and give this Committee a conclusion. Give us a conclusion as to whether DOD tactics were torture. 

You are a lot closer to it than we are. We have got 7 minutes to 

sift through a lot of material. I would like to know what your conclusions are. 

How about in 26 seconds, Mr. Fine? We have got a lot of time 

for these—it does not amount to a whole lot. How about the ticking 

bomb situation which we theorize about so much? There is an opinion by an Israeli dissenting justice and there are comments by 

some pretty noted people about unusual circumstances if there is 

a ticking bomb and hundreds of thousands of people are in jeopardy of being killed. Is there any circumstance which would warrant these excessive interrogation tactics? 

Mr. FINE. I can envision certain circumstances, but the problem 

with that is, you know, were they used widespread and not in a 

ticking time bomb context, and that is the concern that I would 

have and the concern that— 

Senator SPECTER. So you think it would be appropriate to have 

an exception in the ticking bomb circumstance? 

Mr. FINE. I certainly think we ought to consider that and establish processes and procedures to deal with it. 

Senator SPECTER. We ought to consider that? We are considering 

it. I want your judgment. In a ticking bomb circumstance, should 

we use these excessive interrogation tactics? 

Mr. FINE. I am not sure. I am not sure about that, Senator Specter. I would have to think about that more. 

Senator SPECTER. Well, give us your judgment. You are in the 

middle of it. We are trying to come to conclusions. 

Mr. FINE. I think the problem that we saw was that these were 

not ticking time bomb situations and that there was— 

Senator SPECTER. Okay, I grant you that. This is a hypothetical 

that we have to come to grips with. And if you conclude that in the 

ticking bomb circumstance these tactics ought to be used, I would 

like your judgment as to how we do it. Should we have a warrant, 

which Dershowitz suggests? Should it go to the President? Why not 

take it to the President if you are in that kind of extremis? We 

would like to go beyond, Mr. Fine. We have great respect for what 

you have done and your independence, but, candidly, I do not think 

you have gone far enough. And we need more hard facts and more 

pursuit of the facts as to Ashcroft and as to what is going on, and 

I know we need your judgment as to what we ought to be doing. 

We are not necessarily going to follow it. That is our responsibility. 

But we ought to have the benefit of it. 

Thank you, Madam Chair. 

Senator FEINSTEIN. Thank you very much, Senator Specter. 

16 

First of all, the votes have been moved to 11:20 from 11 o’clock, 

so there is a little more time. For those that were not here, we will 

continue at 2 o’clock in this room, and we will recess when the 

votes begin. 

Senator Feingold, I believe you are next, then Senator Whitehouse, and then Senator Durbin. 

Senator FEINGOLD. Thanks, Madam Chairman. Thank you for 

holding this hearing. I ask that my full statement be placed in the 

record, but I just wanted to say that I commend the FBI agents 

discussed in the Inspector General’s report who recognized that the 

kinds of abusive interrogation practices they witnessed other agencies employing were wrong and, just as important, ineffective. They 

deserve our credit and they deserve our thanks. 

Ms. Caproni, did you personally ever raise concerns about the 

CIA or Defense Department’s use of abusive interrogation techniques with the White House, the National Security Council, or directly with the agencies at issue? 

Ms. CAPRONI. A little bit of history might be helpful in terms of 

when I came to the Bureau. I came to the Bureau in August 2003, 

so at the point that I arrived, the Director had already determined 

that the FBI would not participate in these techniques. There were 

existing OLC opinions that were highly classified and that we did 

not have access to, though the Bureau, kind of writ large, generally 

understood that there were existing memos. 

The first I learned that aggressive interrogations were being 

used was when Abu Ghraib broke and when we then started trying 

to find out what did FBI agents know either about what was going 

on at Abu Ghraib—actually, that was our first focus, and that then 

flushed out a lot of other information that was at this point—again, 

I had only been at the Bureau about 6 months at this point. 

Senator FEINGOLD. Is that your way of saying no to my question 

then, that you personally— 

Ms. CAPRONI. I personally did not— 

Senator FEINGOLD. Did you ever personally raise questions or 

concerns about the CIA or Defense Department’s use of abusive interrogation techniques with the White House, the National Security Council, or directly with the agencies at issue? 

Ms. CAPRONI. I did not. 

Senator FEINGOLD. Okay. Did you witness other FBI or DOJ officials raising such concerns with those entities? 

Ms. CAPRONI. Again, I was not here when all of this started, so 

no. 

Senator FEINGOLD. So the answer is no. 

Ms. CAPRONI. I have heard—I mean, I have learned historically 

what was done. 

Senator FEINGOLD. Okay. The answer is no in terms of your own 

role or what you observed. 

Inspector General Fine, your report concludes that ultimately 

‘‘neither the FBI nor the DOJ had a significant impact on the practice of the military.’’ Your report also explained that the Office of 

Legal Counsel at DOJ had opined that ‘‘several interrogation techniques sought to be used by the CIA were legal’’ and that the Secretary of Defense had personally authorized the use of certain abusive techniques at Guantanamo Bay. 

17 

Did the OLC opinions and the fact that the techniques were 

being approved at the highest levels of the Pentagon make it more 

difficult for the FBI or DOJ to raise concerns? And might it have 

even dissuaded some from raising these issues at all? 

Mr. FINE. I think it did. I think the fact that these opinions existed out there did have an impact on what FBI agents believed 

was authorized and what they believed was acceptable for other 

agencies. And I think at a certain point it dissuaded them from 

raising continuous concerns about this. 

Senator FEINGOLD. Inspector General, your report explains in detail how Defense Department interrogation policies changed repeatedly from 2001 to 2004. Just to take an example, in late 2002 Secretary Rumsfeld authorized a series of what I would consider abusive interrogation techniques for use at Guantanamo Bay, but he 

then rescinded that authorization in early 2003. One of the techniques no longer authorized, as I understand it, was short shackling. Yet FBI agents reported that the use of this technique continued for at least another year at Guantanamo. And I do understand 

that the focus of your report was on the FBI. 

But is it your sense that military interrogators did not know 

what they were permitted to do given the constantly shifting policies and mixed messages that they were getting? 

Mr. FINE. I think there was some sense that with the changes 

in the policies that did not always get down to the level of the interrogators who were actually conducting the interrogation, and so 

that at points they were not sure or aware what exactly was authorized. 

Senator FEINGOLD. So not necessarily willful defiance of what 

they understood to be the procedures, but some confusion perhaps. 

Mr. FINE. I think to some extent, yes. 

Senator FEINGOLD. Mr. Fine, according to your report, an FBI 

agent told you that Chinese authorities came to Guantanamo Bay 

to interrogate several Uighur detainees. I know we are in an unclassified setting, so what can you tell me about this incident? 

Mr. FINE. What we can tell you is that we were informed by FBI 

agents at Guantanamo that Chinese authorities did come to interview the Uigurs in Guantanamo, that they were informed that 

prior to the Chinese officials’ visit that the Uigurs were subject to 

what was called the ‘‘frequent flyer program’’—that is, they were 

woken up at regular intervals, every 15 minutes, the night before 

to put them in a position to be interrogated by the Chinese officials. 

Senator FEINGOLD. Ms. Caproni, according to the Inspector General’s report, you sent an e-mail in May 2004 to determine whether 

FBI agents had ever received written guidance about when they 

should decline to participate in interrogations conducted by the Department of Defense or should report on techniques that they witnessed. You found no such written guidance, as I understand it. Director Mueller determined in 2002 that FBI agents should not participate in any interrogations involving techniques that violated 

FBI policy. If no written guidance was issued, how was that decision communicated to the agents on the ground? 

Ms. CAPRONI. It is my belief, and having read the IG’s report, 

who looked extensively, that it was orally conveyed and that there 

18 

was fairly consistent knowledge, despite the fact that it was not 

written down, that they were supposed to only use FBI technique, 

regardless of what their co-interrogators might be authorized to do. 

Senator FEINGOLD. Why had the FBI not issued any guidance 

prior to May 2004, despite the fact that FBI agents had been dealing with military detainees for 2 years at that point? 

Ms. CAPRONI. Senator, I do not know. I do not know the answer 

to that. I mean, again, as soon as we realized that it had never— 

there had never been written guidance 

provided, we provided it. But I cannot answer why it was not 

given earlier. 

Senator FEINGOLD. Mr. Fine, what about you? Do you draw any 

conclusions as to why there was no written guidance prior to May 

2004? 

Mr. FINE. I think there should have been guidance. I think that 

it was not focused on, and I think that that was a problem, not providing written guidance. It is one thing to orally tell people things, 

but some of the agents had different understandings. It is a complicated area. It is not simply what you participate in but what 

other agencies are authorized to do, what you should report, whether you can interview a detainee who has been subjected to the 

other agency’s interrogation tactics, when can you do that, how you 

should do that. It is a complicated area, and I think that written 

guidance was appropriate and should have been issued. 

Senator FEINGOLD. I thank both of you and I thank the Chair. 

Senator FEINSTEIN. Thank you very much, Senator. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you. 

In response to the FBI decision that you would not participate 

in the coercive methods of interrogation, it strikes me that there 

are a number of reasons why that might have taken place, and I 

would like to explore those reasons a little bit with both of you. 

The first reason would be to protect statements that were obtained for judicial use in future criminal prosecutions, correct? 

Ms. CAPRONI. I think that it accomplished that, but I am not 

sure that was a motivating factor. 

Senator WHITEHOUSE. You are not sure that was a motivating 

factor. 

Ms. CAPRONI. No. I think, again, these interrogations were largely being done for intelligence purposes, and so while it is, in fact, 

a benefit of our techniques, I do not think that was the major—it 

was a motivating factor in the sense that, as Agent D’Amuro said, 

you need an end game, and— 

Senator WHITEHOUSE. Would that have been the motivating factor? In the report, page 115 to 116, there is a discussion in November of 2003 in which the concern was raised that the DOD’s interrogation methods were making Gitmo detainees unusable in U.S. 

cases. The unusable-ness, is that what you are referring to? 

Mr. FINE. Yes. I think that was one of the reasons why they were 

concerned about it. I am not sure that is, as Ms. Caproni said, the 

first reason, but it certainly was a factor, one of the reasons, yes. 

Senator WHITEHOUSE. Would you agree with me that for an FBI 

agent simply to leave when coercive methods are being applied and 

then come back and resume after they are over clearly would not 

19 

be an adequate response in terms—if the goal really were just to 

preserve evidence for future use judicially? 

Mr. FINE. I think that is an important issue, and that is the 

question of what kind of attenuation there is, from the time that 

the coercive tactics are used and the FBI gets involved, what do 

you have to do, how long a period of time it is, what do you have 

to tell the detainee, what are the circumstances of the interrogation 

that the FBI does after the military interrogation. That is a complicated issue, and simply coming in a few hours later probably is 

not sufficient. 

Senator WHITEHOUSE. So that takes us to a second issue, which 

I think you have already discussed in your testimony, which is that 

the coercive methods are either not effective or not as effective as 

traditional expert interrogation techniques. Was that another motivating factor in the Director’s decision, as best you know, to refuse 

to participate in the coercive methods. 

Ms. CAPRONI. Yes. 

Senator WHITEHOUSE. Okay. A third would be concern about the 

legality of the techniques and of agent or agency liability for participating in them. Was that a concern? 

Ms. CAPRONI. It is my belief, as I have tried to reconstruct who 

knew what when, that at the time that this became crystallized, 

after Abu Zubaydah was captured, that there were, in fact, existing 

opinions so that—again, I was not at the Bureau at the time, so 

I was trying to reconstruct how this happened—is that that actually shifted the debate from it is illegal to, okay, OLC may have 

said it is legal, but we have still got to decide whether we are going 

to participate in it, we, the FBI, are going to be involved in something that, A, we do not think is effective; B, it is going to make 

the statements unusable in whatever the judicial end game is; and, 

three, do we want to expose our agents, who eventually, unlike CIA 

employees, unlike DOD employees, will be testifying in Article III 

courtrooms, do we want them involved in this. And I think all of 

those all came together, but it was with a backdrop of OLC had 

been involved in— 

Senator WHITEHOUSE. Let’s talk about OLC for a minute. Are 

you comfortable with the OLC opinions? One of them has already 

been publicly withdrawn. 

Ms. CAPRONI. Again, I am the General Counsel of the FBI. OLC 

is the agency within the Department who is charged with the responsibility of making those decisions. So OLC’s decision ultimately 

controls. 

Senator WHITEHOUSE. Did the FBI make any effort to either review the OLC decisions or to reach its own internal determination 

as to the merits of the conclusions drawn by those decisions? 

Ms. CAPRONI. Not to my knowledge. 

Senator WHITEHOUSE. To date, still? 

Ms. CAPRONI. I mean, I have my opinion on the merits of those 

decisions, but, again, OLC’s decisions are binding on the Department of Justice in terms of what is lawful and what is not, what 

is the meaning of statutes. They get the last word. 

Senator WHITEHOUSE. Well, ultimately a court gets the last 

word. 

Ms. CAPRONI. Perhaps. 

20 

Senator WHITEHOUSE. That is a very scary word you just used. 

Ms. CAPRONI. No, no. I mean, Senator, a court gets the last word 

if the issue is joined in a courtroom. Of course, the court gets the 

last word. 

Senator WHITEHOUSE. And with respect to the ultimate prospect 

that a court might get the last word, the FBI never did its own sort 

of double-checking or kind of due diligence to take a look at the 

OLC opinions even after one was withdrawn? 

Ms. CAPRONI. There was a point when I requested to see the 

opinions, and I was not shown the opinions. In fact, I did not really 

press the issue because we were not participating. So from the 

standpoint of our agents, we were not involved in the techniques. 

My understanding was that OLC had passed on them. And so from 

our perspective, we were not—I did not have employees that were 

at risk. 

Senator WHITEHOUSE. When did you first become aware of the 

OLC opinions, of their content? When did you first have a chance 

to review them? 

Ms. CAPRONI. I still have not reviewed them. 

Senator WHITEHOUSE. Just the declassified ones? 

Ms. CAPRONI. Correct. 

Senator WHITEHOUSE. But the classified ones you still have not 

had a chance to review? 

Ms. CAPRONI. No. 

Senator WHITEHOUSE. Have you done research of your own on 

this subject? 

Ms. CAPRONI. No. 

Senator WHITEHOUSE. Well, maybe you should. 

Ms. CAPRONI. Again, FBI agents are not participating in techniques that go beyond what the FBI— 

Senator WHITEHOUSE. No, but FBI agents may take cases into 

court, and as the case agent, they may be obliged to have to manage a prosecution that brings to light that these coercive techniques and methods were used. So it could very well become a part 

of their role as a case agent to have to respond to this, and in that 

guise, you would think that they would be wanting some guidance 

from their General Counsel. 

Ms. CAPRONI. I think our agents want guidance in terms of what 

is their responsibility if they are interviewing someone who has 

been subjected to these techniques, and we have had extensive discussions on that, and particularly with the high-value detainees 

that are now in Guantanamo, worked very carefully with the Department of Justice— 

Senator WHITEHOUSE. My light just went. Let me ask you one 

last question. You said you had an opinion about these OLC opinions. What is it? 

Ms. CAPRONI. It would not have been my opinion. 

Senator WHITEHOUSE. Fair enough. My time has expired. 

Senator FEINSTEIN. Thank you very much, Senator Whitehouse. 

Senator Durbin. 

Senator DURBIN. Thank you. I want to thank you, Senator Feinstein, for this hearing, and I have said on the floor and in this 

Committee that I really believe that when the history of this time 

is written, one of the most unfortunate, embarrassing chapters will 

21 

deal with this administration’s decision to set aside what had been 

time-honored for generations, our opposition to torture. The next 

President will have an awesome responsibility to restore the image 

of this great Nation in the eyes of many people around the world 

who, unfortunately, will identify us by some of the extreme conduct 

which was the subject of this effort by the Inspector General. 

It is my understanding, Mr. Fine, that you have set out to interview some 1,000 different witnesses and actually had opportunity 

to speak to over 200 of them. Is that correct? 

Mr. FINE. Well, we sent out a survey to 1,000 witnesses, FBI witnesses who were deployed overseas. About 900 of them sent back 

responses. We picked the ones where they had relevant information, and we interviewed over 200 witnesses. 

Senator DURBIN. I went to the floor of the Senate in June of 2005 

to talk about an FBI agent’s observations, which are chilling and 

I will not read back into the record, but involved short shackling, 

extreme temperatures, and the like. Four of my Republican colleagues came to the floor 2 days later, and one raised the question 

as to whether this had even happened, whether it was even possible, whether the report was accurate from this FBI agent, which 

had been obtained through normal means. 

So I would like to ask you, based on what you have seen here 

and what you have heard and the questions that have been asked, 

is there any doubt in your mind that, for example, the short shackling for prolonged periods of time, where a detainee’s hands were 

shackled close to his feet to prevent him from standing or sitting, 

occurred? 

Mr. FINE. We believe the evidence showed that it did occur. The 

FBI agents witnessed it and reported it to us. 

Senator DURBIN. The use of extreme temperatures, another commonly reported technique, did that occur? 

Mr. FINE. They reported that as well. 

Senator DURBIN. FBI agents also told you that short shackling 

was sometimes used in conjunction with holding detainees in rooms 

where these extreme temperatures were being applied as well. Is 

that correct? 

Mr. FINE. That is correct. 

Senator DURBIN. And, finally, isn’t it true that Secretary Rumsfeld approved the use of stress positions, like short shackling and 

temperature manipulation, as interrogation techniques and that 

these were not the actions of a few bad apples on the night shift, 

as we have been told? 

Mr. FINE. There was an evolution of the policies, and, yes, there 

were periods of time where those techniques were approved and 

authorized. 

Senator DURBIN. Ms. Caproni, I have struggled here in this Committee trying to understand the position of the Department of Justice, and particularly our current Attorney General, when it comes 

to waterboarding and other cocercive techniques. And throughout 

history we as a Nation have taken a pretty clear position on some 

of these issues, and I might say that the Judge Advocates General, 

the highest-ranking uniformed military lawyers, told me unequivocally that the following techniques are illegal and violate Common 

Article 3 of the Geneva Conventions: painful stress positions, 

22 

threatening detainees with dogs, forced nudity, mock execution, 

and waterboarding. 

Ms. Caproni, you are the FBI’s highest-ranking legal officer, so 

I would like to ask for your position on these interrogation techniques. Are they abusive? Are they illegal? 

Ms. CAPRONI. Again, the issue of legality or non-legality is not 

mine to reach. That truly is the responsibility of the Office of Legal 

Counsel, and as much as I might like to be able to overrule any 

other component of the Department, I cannot. It is really their responsibility to make that decision. 

Senator DURBIN. Have they made that decision? Are they illegal? 

Abusive? Do they violate the Geneva Conventions? 

Ms. CAPRONI. I have not read the OLC opinion, so I cannot answer that question. 

Senator DURBIN. Well, let me ask you, if you cannot answer the 

question, how do you expect rank-and-file FBI agents to determine 

whether these techniques are abusive? 

Ms. CAPRONI. I think there is a different question about whether 

something is abusive versus whether something violates the Geneva Accords or whether it violates— 

Senator DURBIN. I asked that question. Are they abusive, illegal, 

or violate Geneva Conventions? 

Ms. CAPRONI. I am sorry. I was running them all together, Senator. I would say they are all abusive. 

Senator DURBIN. Under all circumstances? 

Ms. CAPRONI. Short shackling, waterboarding—I am sorry, what 

was the other— 

Senator DURBIN. Painful stress positions, threatening detainees 

with dogs, forced nudity, mock execution, and waterboarding. 

Ms. CAPRONI. Yes, those are abusive under all circumstances. 

Senator DURBIN. Do you consider them torture? 

Ms. CAPRONI. Again, torture has a legal definition, and that is 

what OLC has passed on, and it is not within my pay grade to 

overrule OLC. 

Senator DURBIN. And how could it be within the pay grade of 

those below you to understand whether what they are doing is torture or not? 

Ms. CAPRONI. Again, the FBI agents’ responsibilities was, one, 

not to participate. These techniques are clearly not permissible in 

the United States. We train our agents well. They would have 

known that none of those techniques were they permitted to participate in. In terms of reporting, I believe from May 2004, when 

we made it clear that they were obligated to report abusive techniques, unless they knew it was authorized, and that was not part 

of the policy. But if they called in and they said if it was authorized, we did not need to report, the answer is no, if it is authorized, 

you do not need to report; that an agent would understand these 

to be abusive techniques. 

Senator DURBIN. Mr. Fine, I was struck by your findings that Director Mueller was unaware of the dispute between the FBI and 

the Defense Department regarding interrogation techniques which 

began in 2002 until after the Abu Ghraib scandal in May of 2004? 

Mr. FINE. He was aware of it in 2002 in connection with the Abu 

Zubaydah matter. 

23 

Senator DURBIN. So were there reports from his agents about activities at Guantanamo and other places involving these interrogation techniques? 

Mr. FINE. Mostly reports related to Abu Zubaydah. After that, 

the reporters filtered through the FBI, but most of them were handled in the Counterterrorism Division and over to the Department 

of Justice Criminal Division and through the Department of Justice. So— 

Senator DURBIN. Beyond Abu Zubaydah, do you believe that 

there was a regular communication of reported abuse and techniques that were questionable to the Director? 

Mr. FINE. I do not believe that there was a regular report to the 

Director of abusive techniques, no. 

Senator DURBIN. I quote from your report: ‘‘Director Mueller told 

the OIG that, in general, he did not recall being aware of the dispute between the military and the FBI over interrogation techniques at Guantanamo prior to the spring of 2004 after the Abu 

Ghraib disclosures. He said he didn’t recall seeing either the November 2002 EC written by Foy or the May 2003 EC written by 

McMahon.’’ 

Mr. FINE. Abu Zubaydah was not held at Guantanamo at that 

time. He was held at a CIA facility. 

Senator DURBIN. So in terms of Guantanamo, if the Director says 

it was not until after Abu Ghraib that he was given any kind of 

basic information, 2 years after this had been going on, that is 

what you found in the course of your investigation? 

Mr. FINE. We found that the reports did filter up. It filtered up 

through the Counterterrorism Division. They went over to the Department of Justice. We did not have clear evidence that these reports went up to the Director of the FBI in specificity. 

Senator DURBIN. I see my time has expired, Madam Chair. 

Thank you very much. 

Senator FEINSTEIN. Thank you very much, Senator Durbin. 

We are joined by Senator Cardin. Welcome. 

Senator CARDIN. Madam Chair, thank you very much, and let me 

thank our witnesses for being here. 

There are many reasons why this Committee and the American 

people need to be concerned about the interrogation techniques 

that have been used by the CIA and others that clearly, as reported, would violate, in my view, U.S. law, would be a moral issue 

for this country, the values that we hold so dear. The techniques, 

in my view, are torture and, therefore, are illegal not only by our 

domestic laws but by our international commitments. And I think 

my colleagues have questioned in regards to those points. 

I want to raise another issue, and that is, the reliability of the 

information that is obtained through these enhanced techniques. Is 

there anything that either one of you can report on as to whether 

the use of these enhanced techniques has produced information 

that is reliable and helpful in dealing with the threats against 

America? 

Now, just to give you—there have been several reported cases of 

misinformation that was obtained through enhanced techniques. I 

will give you one example. IBN Al-Sheikh Al-Libi, who ran al 

Qaeda’s training camp in Afghanistan, told authorities that Iraq 

24 

provided chemical and biological weapons training to al Qaeda 

operatives. That ended up in Secretary Powell’s comments to the 

United Nations. It was used as justification for U.S. military action 

in Iraq. Al-Libi later recanted, saying he made it all up under coercive interrogation and he was subsequently deemed A ‘‘FABRICATOR’’ by the CIA. 

So I would like to know whether in your investigations you have 

uncovered information that would show whether this is useful to 

America as far as intelligence gathering. We could also go back historically that if coercive practices worked, we probably had a lot of 

witches in America back a couple hundred—a couple decades ago, 

or I guess a hundred years ago. So any information you have that 

can shed light on this? 

Mr. FINE. Senator Cardin, our investigation was not an investigation of what intelligence was obtained and whether more useful 

information was obtained in one way or the other. But what I can 

tell you is the FBI believes strongly that their techniques, which 

have been used successfully in various contexts, both domestically 

and internationally, with people not wanting to give them information, have been successful and are successful in getting reliable, accurate information. 

In addition, they believe that these other techniques, which are 

used to break people or to coerce them into testifying, can have the 

effect of getting the person to say whatever he thinks the interrogator wants him to say in order to get the interrogator to stop 

using those techniques. And, therefore, the accuracy or the reliability of that information is undermined. 

They believe strongly in their rapport-based approach. I will also 

note that after the Detainee Treatment Act and the change of the 

Army Field Manual, the Army has now moved towards—closer to 

the FBI’s techniques and rapport-based approach rather than a coercive approach. So I think that tells one something as well. 

Senator CARDIN. So what you are basically telling us is that the 

FBI, the Army interrogators believe that it is not only the right 

method to interrogate by not using the so-called enhanced techniques that many of us think are illegal, but it also from a pragmatic point of view produces more reliable and timely information. 

Mr. FINE. That is clearly what the FBI believes. 

Senator CARDIN. I see that you are shaking your— 

Ms. CAPRONI. Correct. The FBI believes that the most efficacious 

way of conducting interrogations is through rapport-based interview techniques. 

Senator CARDIN. And, of course, there are many other reported 

examples. These are reported examples where we know that information obtained through coercive techniques has proved to be unreliable. We had the three British detainees at Gitmo, the ‘‘Tipton 

Three,’’ who were reportedly subject to a year and a half of coercive 

interrogation. They eventually admitted to being present at a 

speech by Osama bin Laden in an Al Qaeda training camp. The authorities later found out that they were in the United Kingdom at 

that time, so that information was inaccurate. And there are more 

and more examples of those types that have been reported. We do 

not know how much information, because of the classified nature 

of the interrogations and refusal of the CIA to release details, how 

25 

much more information we have obtained is unreliable and how we 

perhaps were delayed in getting important information because of 

the failure to follow more traditional techniques for interrogating 

detainees. 

Madam Chair, we had a hearing on this in the Helsinki Commission to try to figure out what is the most effective way, and that 

hearing is totally consistent with the testimony of our two witnesses here, that using the conventional techniques—admittedly, 

we are more sophisticated today than we were. We now know more 

sophisticated ways to interrogate, but not using the coercive tactics 

that have been reported being used by CIA. And the experts we 

heard, including people who were former interrogators, was that 

the most reliable way to get information is to use interrogation 

techniques that are not coercive or do not border on or are torture 

in nature. And for the life of me, I cannot understand why the CIA 

continues to hold out the use of techniques that clearly question 

America’s commitments to its principles and not producing the information we need in order to keep Americans safe. 

Thank you, Madam Chair. 

Senator FEINSTEIN. Thank you very much. 

I have a memo that was drafted by a supervising special agent, 

whose name is redacted, of the FBI—it is unclassified—from Guantanamo. This is the memo that was forwarded to Marion Bowman, 

and according to Mr. Bowman, this memo did not reach him for 6 

months, that for some reason it resided at Quantico for a period of 

time. 

On the second—and it is a very good memo. On the second page, 

in the legal analysis, this memo states that—first of all, it states 

the three categories of interrogation, and then it goes on to say, 

‘‘Information obtained through these methods will not be admissible in any criminal trial in the U.S. Although information obtained through these methods might be admissible in military commission cases, the judge and/or panel may determine that little or 

no weight should be given to information that is obtained under 

duress.’’ And then it gives some examples of coercive interrogation 

techniques, Categories 2 and 3. 

It finally says—and I think it is very interesting—‘‘It is possible 

that those who employee these techniques may be indicted, prosecuted, and possibly convicted if the trier of fact determines that 

the user had the requisite intent. Under these circumstances, it is 

recommended that these techniques not be utilized.’’ 

I am going to place this in the record, and I am going to ask you, 

Mr. Fine, have you looked at this memo? 

Mr. FINE. We have that memo. We discuss it on page 120 and 

121 of our report. It was by the FBI agents from the Behavioral 

Analysis Unit who were down there involved in the Al Qahtani 

matter. They raised those concerns in an electronic communication 

memo to Spike Bowman. It did take a long time to get to him. It 

took 6 months before it got to him. By that time, the interrogation 

of Al Qahtani had changed, and Spike Bowman used the memo and 

raised concerns with the Department of Defense, which we do discuss on page 121. 

Senator FEINSTEIN. What is the present mental condition of Mr. 

Al Qahtani? 

26 

Mr. FINE. The present condition? 

Senator FEINSTEIN. Yes. 

Mr. FINE. I don’t know the present condition. We did interview 

him. We interviewed him when we were at Guantanamo. 

Senator FEINSTEIN. And what did you find? 

Mr. FINE. He described things that happened to him, and he was 

able to communicate with us. 

We interviewed him in the presence of his lawyer. He seemed to 

understand our questions and was able to communicate with us. 

Senator FEINSTEIN. And what did he tell you about his conditions? 

Mr. FINE. He told us about the abusive techniques that had been 

utilized on him, which we describe. 

Senator FEINSTEIN. Okay. So that will go in the record. 

Are you aware that Spike Bowman called the DOD General 

Counsel in November or December of 2002? 

Mr. FINE. He called the General Counsel’s office. He did discuss 

the concerns. The exact timing of it I would have to get straight, 

but he did raise concerns with the Department of Defense about 

the treatment of Al Qahtani. And, really, when he called back to 

follow up, he was unable to obtain any information about what actions the DOD took in response to his concerns and his information. He basically got the response that the Department of Defense 

was handling it. 

Senator FEINSTEIN. So he was effectively stonewalled? 

Mr. FINE. His concerns were not addressed. 

Senator FEINSTEIN. One other question, and then I would like to 

turn to Senator Whitehouse. Senator Whitehouse asked the question about the effectiveness, and you both indicated that you did 

not believe that these types 

of enhanced interrogation techniques are effective. I would like 

to ask you to explore that for a moment and give us some substantiation of what you are stating for the record. 

Mr. FINE. Well, I was not giving a personal opinion. What I was 

giving is what the FBI was telling us and what their position is, 

and they have been doing this for years and years and years. They 

are trained professionals at this. They do it on a regular basis, trying to get information in custodial interrogations from all sorts of 

people in an adversarial context who do not want to give it to 

them, both before and after September 11th. They believe strongly 

that the best way to get actionable, accurate information is to use 

the rapport-based approach. By that, it is not simply being a nice 

guy. There are all sorts of techniques that they use, that they can 

pressure people, that they can make it clear to them that it is better to provide information, giving them justifications for it—a 

whole variety of techniques that they regularly employ. They believe that that was the way to approach this situation as well. 

Senator FEINSTEIN. Ms. Caproni, do you have a comment? 

Ms. CAPRONI. Again, I would agree with the Inspector General 

that, based on our experience, if you know who you are interrogating—I think that may be one of the things that our agents 

would say is most critical, is you need to know the person. You 

need to know all the information we have about them. You need 

to know the subject matter. So if you are interrogating about al 

27 

Qaeda, you need to know al Qaeda. If you are interrogating about 

the Colombo family, you need to know the Colombo family. But if 

you are well prepared, rapport-based techniques are a better way 

to go because you get reliable information, and it is an effective interrogation technique. 

Senator FEINSTEIN. Thank you very much. Well, thanks to the 

help of Senator Whitehouse, we have included in the intelligence 

authorization bill an amendment put in in the conference between 

the House and the Senate that the CIA will follow the Army Field 

Manual. That is a part of the bill. The bill will not pass without 

it. And the Chairman of Intelligence has indicated that, and we 

will make this change, that is for sure, 1 day. 

Senator Whitehouse, you wanted to say something? 

Senator WHITEHOUSE. Yes, Chairman. I just wanted to ask a couple more questions, try to punch through these relatively quickly. 

On page 106 of the report, there is a reference to Special Agent 

Brett’s legal analysis of the interrogation techniques. May I ask for 

a copy of that for the record? 

Mr. FINE. Certainly we will work with you on that, and the FBI. 

Senator WHITEHOUSE. That appears to be responsive to my earlier question about whether the FBI had done some independent 

legal analysis. I would like to see a copy of it. 

Ms. CAPRONI. That is fine. 

Senator WHITEHOUSE. The second thing is just with respect to 

what Inspector General Fine just said about the FBI being trained 

professionals. The spin that has come out of the administration on 

this subject is that the CIA are the trained professionals, they are 

the experts. By contrast, military interrogators are amateurs and 

not experienced and, therefore, need to be constrained by the Army 

Field Manual to prevent them from doing irresponsible things, but 

you can trust the trained experts of the CIA. Presumably, the same 

analysis applied to the FBI, that you can trust the trained agents 

of the CIA, but you FBI amateurs do not measure up in that respect and, therefore, have to operate under different rules. 

Is there anything that your investigation showed that would bear 

on the credibility of that argument as a defense of these techniques? 

Mr. FINE. We did not look at the relative, you know, professionalism or training of the CIA versus the FBI, but we do know 

that the FBI are trained professionals. They do this all the time. 

They have a history of success in this area, and there is, in my 

view, no reason to doubt their interrogation abilities. 

Senator WHITEHOUSE. Did you have occasion to look at the experience and the training of trained expert military interrogators as 

well? 

Mr. FINE. Well, we looked at what the military interrogators 

were doing with regard to the detainees and how they came up 

with their plans. And it was not a well-thought-out, sophisticated 

plan based upon training or experience. 

Senator FEINSTEIN. Senator Whitehouse, would you yield? 

Senator WHITEHOUSE. Of course. 

Senator FEINSTEIN. When the FBI does interrogations, they do it 

with their trained government people. The CIA uses contractors, 

and this is a huge difference, in my view. 

28 

I am sorry. Thank you. 

Senator WHITEHOUSE. No, a very good point. I am glad you interjected it. 

The Vice President indicated that waterboarding amounted to a 

dunk in the water. Secretary Rumsfeld indicated that standing 

stress positions were of no particular consequence because he 

stands at his desk longer than that every day. Do these statements, 

based on your investigation, fairly and accurately describe the effect of these coercive treatments at issue? 

Mr. FINE. Well, first of all, we did not look at waterboarding because that was not done by the military or the FBI, and the stress 

positions are not simply just standing up for a period of time. 

Senator WHITEHOUSE. No, but is it fair and accurate to equate 

a standing stress position with standing at your desk for hours? 

Mr. FINE. I do not believe so, particularly depending on the duration of the stress position. 

Senator WHITEHOUSE. That raises the question, at least with respect to Secretary Rumsfeld’s statement, as to whether he simply 

did not know what the effect is of these stress positions, which is 

kind of an alarming thought that they are signing off on these 

things so ignorant of them that they do not really know what they 

mean or what they do. The only alternative, unfortunately, is that 

he knew perfectly well what they are and what they do, and he 

was dissembling or misleading. 

Did your investigation turn up any evidence as to which of those 

is the more likely explanation of the discrepancy between his description of the technique and the actual true effect of the technique? 

Mr. FINE. No, we did not look at Secretary Rumsfeld, or his state 

of mind, or the statements of Department of Defense high-level officials. 

Senator WHITEHOUSE. Last question. Have you looked at United 

States v. Lee, the Fifth Circuit decision in which Texas sheriffs 

were prosecuted by the Department of Justice for waterboarding 

prisoners? 

Mr. FINE. I have not looked at that, no. 

Senator WHITEHOUSE. Ms. Caproni. 

Ms. CAPRONI. No. 

Senator WHITEHOUSE. Do you know if the FBI—well, a question 

for the record whether the FBI was involved in that prosecution. 

Ms. CAPRONI. I will have to check. I would guess probably. Just 

based on what you have described, that would be sort of within our 

core jurisdiction. 

Senator WHITEHOUSE. Very good. I appreciate it. 

I thank the Chair for allowing a second round here. 

Senator FEINSTEIN. You are very welcome. 

I know Senator Schumer wanted to come to ask some questions, 

so I will ask just one question in the hope that he will arrive, or 

else we will go on to the next panel. 

Mr. Fine, your report states that there was some friction between 

FBI officials and the military over the interrogation plans for Al 

Qahtani. Could you describe the nature of that friction, please? 

Mr. FINE. The friction was whether these were appropriate plans, 

effective plans to be used on Al Qahtani. The military wanted to 

29 

use this phased, aggressive approach. The FBI did not believe it 

was effective or would obtain actionable, accurate intelligence. 

They objected to it. They raised concerns about it with both the Department of Defense, and we have indications they raised it with 

the National Security Council as well. Ultimately, the Department 

of Defense had the ultimate call on what techniques were used on 

Al Qahtani. 

Senator FEINSTEIN. Thank you. 

Senator Schumer has arrived. Senator Schumer, a 7-minute 

round. If you would like to make a statement, go ahead. 

Senator SCHUMER. Well, thank you. And I first, Madam Chair, 

want to thank you for holding this very important hearing on a 

very important topic that goes right to the heart of who we are as 

a Nation and how we keep our Nation safe—the age-old balance between security and liberty, which has been one of the major topics 

of discussion in America since the days of the writing of the Constitution. 

Now, speaking for myself, I abhor torture. I believe 

waterboarding and other similar techniques are unlawful and unAmerican, and not only that, but that Congress needs to ask, as 

we are doing in this hearing, whether coercive interrogation techniques are effective. That has been one of the great debates here. 

And by ‘‘effective,’’ I mean that we need to know whether coercive 

interrogation yields accurate information that can help keep us 

safe. That is the ultimate standard. 

The FBI has determined, based on decades of experience and expertise, that non-coercive, rapport-based interrogation techniques 

are the most effective ways to obtain information; and as Mr. Fine 

noted in his excellent and thorough report, numerous FBI officials 

question the effectiveness of coercive interrogation techniques. 

So let me first ask a few questions of Ms. Caproni, and I thank 

you for being here, and you can answer them yes or no. You will 

see. 

Does the FBI want to protect America? 

Ms. CAPRONI. Yes. 

Senator SCHUMER. And does the FBI want to make sure that 

criminals and terrorists are brought to justice? 

Ms. CAPRONI. Absolutely. 

Senator SCHUMER. Is the FBI’s commitment any less strong than 

any other agency or component in the U.S. Government? 

Ms. CAPRONI. No. 

Senator SCHUMER. And the FBI has decades of experience and 

expertise in understanding what works and what does not in terms 

of investigation and interrogation, does it not? 

Ms. CAPRONI. Yes, it does. 

Senator SCHUMER. Then why the profound difference of opinion 

between the FBI and other U.S. agencies on the wisdom and effectiveness of using coercive techniques such as waterboarding? 

Ms. CAPRONI. Senator, I do not know. I do not know why the CIA 

currently believes that these are the right techniques to use. I do 

not question their good faith. They believe it. We simply disagree 

on this. 

30 

Senator SCHUMER. And the kind of people you interrogate are not 

terribly different. They are similar in a lot of ways, or in certain 

instances— 

Ms. CAPRONI. Frequently, they are the same people. 

Senator SCHUMER.—drug dealers here in America, but—pardon? 

Ms. CAPRONI. I said frequently they are the same people. 

Senator SCHUMER. Yes, exactly. Okay. Now, I have a few more 

questions about this, Madam Chair. 

The most fascinating case is provided by none other than Saddam Hussein. Ms. Caproni, isn’t it right that the interrogation of 

Saddam Hussein was handled by FBI Special Agent George Piro? 

Ms. CAPRONI. Yes, it is. 

Senator SCHUMER. And Special Agent Piro has said publicly that 

no coercive techniques were ever used in interrogating Saddam 

Hussein, just traditional rapport building and manipulation. Is 

that correct, as far as you know? 

Ms. CAPRONI. That is correct. 

Senator SCHUMER. Now, as I understand it, that 7-month interrogation of Saddam Hussein was very successful. Special Agent Piro 

was able to find out how Hussein evaded American military forces 

for so long, and he got Hussein to confirm that Iraq’s weapons of 

mass destruction had been destroyed years before our 2003 invasion. 

Ms. Caproni, would you agree that this was an effective interrogation? 

Ms. CAPRONI. Yes. 

Senator SCHUMER. Did anyone in the administration ever push 

the FBI to use coercive techniques with Saddam Hussein? 

Ms. CAPRONI. Not to my knowledge. 

Senator SCHUMER. Okay. Do you think that coercive techniques 

would have been effective with Saddam Hussein? 

Ms. CAPRONI. Again, we do not believe that coercive techniques 

are effective. We believe— 

Senator SCHUMER. Let me just—Special Agent Piro, that was the 

interrogator, he says that coercive techniques would not have 

worked with Hussein because he had ‘‘demonstrated that he would 

not respond to threats or any type of fear-based approach.’’ Do you 

have any reason to disagree with this view that coercive techniques 

would not have been effective? 

Ms. CAPRONI. I have no reason to disagree. 

Senator SCHUMER. Okay. So we are talking here about a notorious, cruel dictator, a tyrant, against whom the United States 

went to war twice, someone who hates the U.S., everything we 

stand for, we thought hiding weapons of mass destruction to use 

against us, and yet this pitiless tyrant cracked under the traditional technique of building rapport. He fell under the power of 

Special Agent Piro, gave up all kinds of information. If we did not 

use the coercive techniques with Saddam Hussein and if coercive 

methods would not have worked with Saddam Hussein, I cannot 

imagine why we would need to use them against anybody else. It 

is befuddling to me. 

Now, I just have a little bit more on these disputes that there 

are in the agencies. Again, this is for you, Ms. Caproni. It has been 

suggested that there was ‘‘trench warfare’’ between the DOJ/FBI on 

31 

the one hand and DOD/NSC on the other with respect to what 

kinds of interrogation techniques should be used on detainees. Ms. 

Caproni, is that a fair characterization? 

Ms. CAPRONI. I am not quite sure what ‘‘trench warfare’’ means 

in that context. 

Senator SCHUMER. Pretty tough stuff, though, pretty heated discussions. 

Ms. CAPRONI. There were definite disagreements between FBI/ 

DOJ on the one hand and DOD on the other hand. 

Senator SCHUMER. Okay. Let me ask you, did anyone in the Government put pressure on you, Director Mueller, or anyone else at 

the FBI to participate more directly in the coercive techniques at 

issue? 

Ms. CAPRONI. You were not here when I gave my disclaimer, 

which is that I came to the Bureau in August of 2003, after the 

Director had made the decision that we would not participate. I 

know there were discussions within the administration. I do not 

know whether there was any pressure put on— 

Senator SCHUMER. To your knowledge, you do not know one way 

or the other. 

Ms. CAPRONI. I do not know one way or the other. 

Senator SCHUMER. How about you, Mr. Fine? 

Mr. FINE. No, we are not aware of that. 

Senator FEINSTEIN. Would you yield for one moment? 

Senator SCHUMER. I would be happy to yield to you, Madam 

Chair. 

Senator FEINSTEIN. We invited Director Mueller to be here today, 

and in his stead, very ably, is Ms. Caproni. But I had hoped to be 

able to ask him that kind of question. 

Senator SCHUMER. Right. And I would ask in the interim, could 

you—I do not know who is—I guess it would be Ms. Caproni. Could 

you inquire and get back to us? Could you ask some of the leadership? 

Ms. CAPRONI. I will. 

Senator SCHUMER. Great. Okay. Let’s see. And did anyone—do 

you know this, either of you, did anyone at the FBI or DOJ threaten to resign over issues or disputes relating to the issue of coercive 

interrogation techniques on detainees? 

Ms. CAPRONI. Not to my knowledge. 

Mr. FINE. Not to my knowledge either. 

Senator SCHUMER. Okay. And so you would not know then if 

there was any retaliation or retribution of any kind against anyone 

at the FBI or DOJ based on the refusal to participate in those interrogations? 

Mr. FINE. No. 

Senator SCHUMER. Let’s see. I have 23 seconds, and you have 

been nice in waiting for me, so I will submit my last round of questions about destruction of documents for the record. And could I 

ask unanimous consent that the witnesses send written answers? 

Senator FEINSTEIN. Without objection. 

Senator SCHUMER. Thank you, Madam Chair. 

Senator FEINSTEIN. Senator, you might be interested—and I 

thank you for those questions—in the fact that this afternoon, 

former FBI Agent Cloonan, who has interrogated al Qaeda suspects 

32 

and was very successful in so doing using these techniques, and we 

will hear from him directly, I think, as to the success that he has 

had. Now, of course, that was in the 1990s after the first World 

Trade Center bombing but, nonetheless, I think highly relevant to 

this discussion today. And we will continue this at 2 o’clock here. 

We are about to start—why don’t I do this, because we are 20 minutes into the vote. Why don’t we bring up the next panel, since I 

have got two Senators here. 

Let me thank you both. You really do this Nation a service by 

being so straightforward, and it is very much appreciated. So thank 

you for being here this morning. 

Senator FEINSTEIN. We will ask the next panel to come to the 

table, and I think we will have an opportunity to begin. 

Pursuant to Mr. Sands’ request, I will ask that you gentlemen 

stand and raise your right hand, please. Do you affirm that the testimony you are about to give before the Committee will be the 

truth, the whole truth, and nothing but the truth, so help you God? 

Mr. CLOONAN. I do. 

Mr. SANDS. I do. 

Mr. HEYMANN. I do. 

Senator FEINSTEIN. Thank you very much. And I will make the 

three introductions together, and then we will begin. 

The first witness will be Jack Cloonan. He is the president of the 

security firm Clayton Consultants. He was a special agent for the 

FBI from 1977 to 2002. He was assigned to the Bureau’s Osama 

bin Laden Unit in 1996. He has personally conducted interviews of 

members of al Qaeda and has received several commendations and 

awards for his work for the FBI in counterterrorism investigations. 

Since retiring from the FBI, Mr. Cloonan has served as a counterterrorism consultant and commentator for ABC News. 

The next witness will be Philippe Sands. He is a professor of law 

at the University College of London, and, again, I thank him for 

crossing the pond to be here today. And he is director of their Centre of International Courts and Tribunals. Mr. Sands has appeared 

before many international courts, including the European Court of 

Justice, the International Court of Justice, and the Special Court 

for Sierra Leone. He has written extensively on the subject of coercive interrogations and torture, including the books ‘‘Torture 

Team,’’ published in 2008, and ‘‘Lawless World,’’ published in 2006. 

Philip B. Heymann has been the James Barr Ames Professor of 

Law at Harvard University since 1989. He has appeared before this 

Committee several times. He has authored several books addressing the balance between civil rights and security from terrorist attacks. Professor Heymann served as Deputy U.S. Attorney General 

in the Clinton administration, as Assistant Attorney General in 

charge of the Criminal Division, and as an associate prosecutor for 

the Watergate Special Task Force. 

We will begin with Jack Cloonan. Mr. Cloonan, please proceed. 

STATEMENT OF JOHN E. CLOONAN, RETIRED SPECIAL AGENT, 

WEST CALDWELL, NEW JERSEY 

Mr. CLOONAN. Senator Feinstein and distinguished members of 

the Committee. Good morning and thank you for the opportunity 

to testify about coercive interrogation techniques, their effectiveVerDate Nov 24 2008 12:58 Dec 10, 2009 Jkt 053740 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53740.TXT SJUD1 PsN: CMORC
33 

ness, the reliability of the information obtained in this way and, 

the FBI’s knowledge of these matters. It is my belief, based on a 

27-year career as a special agent and interviews with hundreds of 

subjects in custodial settings, including members of al Qaeda, that 

the use of coercive interrogation techniques is not effective. The alternative approach, sometimes referred to as ‘‘rapport building,’’ is 

more effective, efficient, and reliable. Scientists, psychiatrists, psychologists, law enforcement and intelligence agents, all of whom 

have studied both approaches, have come to the same conclusion. 

The CIA’s own training manual advises its agents that heavyhanded techniques can impair a subject’s ability to accurately recall information and, at worst, produce apathy and complete withdrawal. 

I have personally used the rapport-building approach successfully 

with al Qaeda members and other terrorists who were detained by 

U.S. authorities. The information elicited led to numerous indictments, successful prosecutions, and actionable intelligence which 

was then disseminated to the CIA and the NSA and others. This 

approach, which the FBI practices, is effective, lawful, and consistent with the principles of due process. And in addition to its intelligence-gathering potential, it can do nothing but improve our 

image in the eyes of the world community. 

A skilled interrogator, using elicitation techniques and understanding the end game, will serve the public’s safety and our national security. The ultimate outcomes might be gathering evidence 

to support a prosecution or obtaining actionable intelligence to prevent a terrorist attack. I accept the argument that coercion will obtain a certain kind of information. I do not, however, accept the argument that sleep deprivation, sensory deprivation, head slapping, 

isolation, temperature extremes, stress positions, waterboarding, 

and the like will produce accurate information. An interrogation 

using rapport building obtains more reliable information and 

changes the relationship between the interrogator and the subject. 

Once a bond is formed between the two, the latter takes the investigator on a journey of discovery and sheds light on the darkest, 

most closely held secrets of an organization like al Qaeda. U.S. intelligence and law enforcement agents seldom get the chance to interrogate al Qaeda subject matter experts like Khalid Sheikh Mohammed, Ramzi Bin Al-Shib, Jamal Ahmed Al-Fadel, L’houssaine 

Kertchtou, Ali Abelseoud Mohamed, and Ibhn Sheikh Al-Libi, and 

these opportunities are too precious to waste. I am convinced by my 

experience that the rapport-building approach is the way to go in 

these circumstances. 

As the conversion from antagonist to ally takes hold within the 

process and the recalcitrant subject begins to cooperate, the interrogator assumes the role of caretaker. He or she can then shape 

the conversation, listen intently for inconsistencies, and, finally, 

save untold man-hours chasing after false leads. 

Critics of rapport building often say that the enemy we face 

today—the radical Islamist who is ready and willing to die for 

Allah—requires a more aggressive approach. They frame the debate by injecting the ticking bomb scenario. They suggest that 

there is no time to break bread with these killers. In fact, there are 

those who believe that the 9/11 attacks occurred because we treatVerDate Nov 24 2008 12:58 Dec 10, 2009 Jkt 053740 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53740.TXT SJUD1 PsN: CMORC
34 

ed terrorism as a law enforcement issue. This was not the case. In 

the months before the attacks, the ‘‘chatter’’ suggested that ‘‘something big’’ was imminent, but neither the law enforcement nor the 

intelligence community had an agent who knew what al Qaeda intended to do on that fateful day. The rapport-building approach 

used on an al Qaeda operative might have helped to address this 

frightening and dangerous reality. 

I participated in many interviews with suspected al Qaeda members where actionable, reliable information was obtained. It was 

used in the successful prosecutions of al Qaeda operatives who 

murdered American citizens. The image of a former al Qaeda operative testifying under oath in district court and repudiating bin 

Laden and al Qaeda and its ideology of hate sent a powerful message to citizens of America and the world. Showcasing that message had an immediate impact. It highlighted the fact that bin 

Laden and al Qaeda are vulnerable, and it effectively answered 

those who believe in his omnipotence, America’s weakness, and the 

hypocrisy of her leaders. 

Bin Laden and his advisors often refer to U.S. intelligence and 

law enforcement agents as ‘‘blood’’ people. They mean simply this: 

We, according to bin Laden, use torture to extract information. Bin 

Laden has theorized that the most loyal al Qaeda sympathizer will 

break within 72 hours and give up operational information. Therefore, he has kept operational details about impending attacks 

strictly compartmentalized. In other words, those in the know or 

with a need to know were limited to a few trusted followers. My 

experiences and those of my former FBI colleagues would certainly 

support this conclusion. 

The majority of jihadists detained post-9/11 were clueless when 

it came to al Qaeda’s operational plans, and I do not believe many 

of the detainees posed a direct threat to the U.S. or were confidants 

of bin Laden or Ayman Zawahiri. A heavy-handed approach with 

these detainees was unlikely to generate any useful intelligence, 

and it served to validate bin Laden’s take on America and our intelligence-gathering propensities. 

Of course, obtaining reliable information from jihadist foot soldiers in Afghanistan and Iraq is vital to protect our troops, who are 

in harm’s way. But even on the battlefield and under exigent circumstances, rapport building is more effective in gaining information for force protection in my opinion. Enhanced and coercive interrogation techniques are ineffective even under extreme circumstances. Senator, I have spoken to a number of FBI agents who 

were seconded to Gitmo as interrogators. In confidence, they told 

me the vast majority of detainees questioned under these stressful 

conditions were of little or no value as sources of useful intelligence. 

Information is power, and the lack of reliable human intelligence 

assets, who are capable of telling us what al Qaeda is up to, is the 

greatest challenge facing U.S. law enforcement and the intelligence 

community. Technological assets, like signals intelligence, targeted 

wiretapping, and computer exploitation have preempted some terrorist attacks, and we are all grateful for that. I submit, however, 

that the most effective countermeasure to the threat posed by al 

Qaeda and like-minded groups is and always will be the apostate 

35 

who chooses to cooperate and, if you will pardon the expression, 

‘‘spills the beans.’’ Gaining the cooperation of an al Qaeda member 

is a formidable task, but it is not impossible. I have witnessed al 

Qaeda members who pledged ‘‘bayat’’ to bin Laden cross the 

threshold and cooperate with the FBI because they were treated 

humanely, understood what due process was about, and were literally seduced by our legal system, as strange as that may sound. 

I am reminded of a conversation I had with an aide to bin Laden. 

He told me al Qaeda believes in the ‘‘sleeping dog’’ theory. The 

sheik is very patient, and the brothers will wait for as long as it 

takes for the dog to nod off before they attack. I believe we cannot 

relax our vigilance in the hope that bin Laden will forget. 

There are three questions I would like this Committee to ponder. 

Has the use of coercive interrogation techniques lessened al 

Qaeda’s thirst for revenge against the U.S.? Have these methods 

helped to recruit a new generation of jihadist martyrs? Has the use 

of coercive interrogation produced the reliable information its proponents claim for it? I would suggest that the answers are no, yes, 

and no. 

Based on my experience in talking to al Qaeda members, I am 

persuaded that revenge, in the form of a catastrophic attack on the 

homeland, is coming, that a new generation of jihadist martyrs, 

motivated in part by the images from Abu Ghraib, is, as we speak, 

planning to kill Americans and that nothing gleaned from the use 

of coercive interrogation techniques will be of any significant use 

in forestalling this calamitous eventuality. 

Torture degrades our image abroad and complicates our working 

relationships with foreign law enforcement and intelligence agencies. If I were the director of marketing for al Qaeda and intent on 

replenishing the ranks of jihadists, I know what my first piece of 

marketing collateral would be. It would be a blast e-mail with an 

attachment. The attachment would contain a picture of Private 

England pointing at the stacked, naked bodies of the detainees at 

Abu Ghraib. This picture screams out for revenge, and the day of 

reckoning will come. The consequences of coercive intelligence gathering will not evaporate with time. 

I am hopeful that this Committee will use its oversight responsibility judiciously and try to move the debate in the direction of the 

prohibition of coercive interrogation techniques. This debate is a 

crucial one, and I know each member of the Committee understands that. The decisions you make will have a far-reaching impact on our national security. 

Proponents of the ticking bomb scenario seek to forestall discussions on interrogation techniques by ratcheting up the intensity of 

the debate to panic mode. There simply is no time to talk to a terrorist who might have information about an impending attack. 

Senator FEINSTEIN. Mr. Cloonan, I hate to do this because your 

statement is truly an excellent one and you are delivering it very 

well. But the time is running out on the vote, as you might be able 

to tell. So if you will permit me, I am going to recess the hearing, 

allow you to be first up to finish at 2 o’clock, and we will proceed 

from that point on and, I think, have a very interesting afternoon. 

So I apologize to the three of you, but it is the way of the Senate. 

Thank you. This meeting is recessed until 2 p.m. 

36 

[Whereupon, at 11:35 a.m., the Committee was adjourned, to reconvene at 2 p.m., this same day.] 

AFTERNOON SESSION [2:07 p.m.] 

Senator FEINSTEIN. I am going to reconvene the hearing, and I 

am particularly thankful to Senator Whitehouse for being here, because we have an Intelligence Committee meeting that I know he 

very much wants to attend. And I want to make another apology 

to the witnesses. We had our votes at 11 o’clock, and it is my information, it came to my attention that there is going to be an objection on the Republican side to committees meeting. So we may 

have to stop. But then the Majority Leader may be able to recess 

so that this testimony can be taken. 

I feel very strongly that this is an important subject, and I feel 

very strongly that we need to prepare a record and that we need 

to come to grips with what is happening out there and make some 

changes. And so I think this morning’s hearing was helpful in that 

direction, and, Mr. Cloonan, you were concluding. I would like to 

give you the opportunity to conclude, and then we will move to Mr. 

Sands and to Professor Heymann. 

Mr. CLOONAN. Thank you, Senator. I will be very quick with this. 

When I left off, I wanted to start again. Proponents of the ticking 

bomb scenario seek to forestall discussions on interrogation techniques by ratcheting up the intensity of the debate to panic mode. 

There simply is no time to talk with a terrorist who might have 

information about an impending attack. Lives are at stake and the 

clock is ticking, so it just makes sense to do whatever it takes to 

get the information. Experienced interrogators do not buy this scenario. They know that a committed terrorist caught in this conundrum will seek to throw his interrogator off the track or use it to 

his propaganda advantage. ‘‘Go ahead and kill me, God is great.’’ 

Neither the ticking bomb scenario nor the idea of a torture warrant 

makes sense to me. 

To the best of my recollection, the first time I learned that coercive interrogation techniques were being used on detainees was in 

November 2001 at Bagram Air Base in Afghanistan. One case I am 

personally aware of involved Ibhn Sheikh Al-Libi, the emir of an 

al Qaeda training camp in Afghanistan. The FBI agents on the 

scene were prepared to accord Al-Libi the due process rights he 

might expect as an American citizen. The agents concluded after 

questioning that he would be a high-value and cooperative source 

of information as well as a potential witness in the trials of Richard Reid and Zacarias Moussaoui. Before the agents could proceed, 

a robust debate ensued between the FBI and the CIA. The CIA prevailed, and Al-Libi was rendered to parts unknown, possibly Egypt. 

I do not know the exact nature of the information his interrogation 

produced, but it is common knowledge that he has since recanted 

all that he said. I feel that a very significant opportunity to utilize 

the rapport-building approach was missed. 

Without compromising delicate investigations, I can tell you that 

the FBI has amassed a considerable amount of reliable information 

on al Qaeda using rapport building. I will not attempt a full recounting in the interest of brevity, but here are a few salient examples. 

37 

I personally learned that al Qaeda tried unsuccessfully to obtain 

fissionable material in 1993 and that they experimented with 

chemical and biological agents. I also became aware of how they selected targets and conducted surveillance on them. And I learned 

of their intentions to use airplanes as weapons before this became 

a deadly reality. These interrogations also yielded information 

about al Qaeda’s finances, recruiting methods, the location of 

camps, the links between al Qaeda and Hezbollah, bin Laden’s security detail, and the identities of other al Qaeda members who 

were subsequently indicted in absentia and remain on the FBI’s 

most wanted list. I am convinced of the efficacy of rapport-building 

interrogation techniques by these and other experiences. 

Senator and gentlemen of the Committee, let me say that my 

heart tells me that torture and all forms of excessive coercion are 

inhumane and un-American, and my experience tells me that they 

just don’t work. 

With that, I conclude my comments and welcome your questions. 

[The prepared statement of Mr. Cloonan appears as a submission 

for the record.] 

Senator FEINSTEIN. Thank you very much, Mr. Cloonan. 

Professor Sands. 

STATEMENT OF PHILIPPE SANDS QC, PROFESSOR OF LAW 

AND DIRECTOR OF THE CENTRE OF INTERNATIONAL 

COURTS AND TRIBUNALS, UNIVERSITY COLLEGE LONDON 

Mr. SANDS. Madam Chairwoman, honorable members of the 

Committee, it is my privilege and honor to appear before you. As 

Professor of Law at the University of London and as a practicing 

member of the English Bar, it may be said that I appear before you 

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

am from a country that is both friend and ally, that shares this 

country’s abiding respect for the rule of law, and that has had its 

own long, painful experiences of dealing with the very real threat 

of terror. I have come to know America well over more than two 

decades, since I was a visiting scholar at Harvard Law School. I 

then taught at Boston College Law School and at NYU Law School. 

I happen to be married to an American. And I am deeply proud of 

the fact that my three children share British and American nationality. 

A few weeks ago, I published an article in Vanity Fair, ‘‘The 

Green Light,’’ and my new book, ‘‘Torture Team: The Rumsfeld 

Memo and the Betrayal of American Values.’’ These both tell an 

unhappy story: the circumstances in which the U.S. military was 

allowed to abandon President Lincoln’s famous disposition of 1863, 

that ‘‘military necessity does not admit of cruelty.’’ This Committee 

will be very familiar with those events since it was a focus of the 

judicial confirmation hearings for William J. Haynes II in July 

2006. You will recall that on December 2, 2002, on the recommendation of Mr. Haynes, Secretary Rumsfeld authorized the 

use of new, aggressive techniques of interrogation on Guantanamo 

Detainee 063. It is the famous memo, the one in which Mr. Rumsfeld wrote: ‘‘I stand for 8 to 10 hours a day. Why is standing limited to 4 hours? ’’ 

38 

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

it came to be written, relied on, and rescinded, and how the techniques migrated. It is a snapshot of the subject of these hearings. 

To write the book, I journeyed around America, meeting with many 

of the people who were directly involved. I met a great number and 

was treated with a respect and hospitality for which I remain very 

grateful. Over hundreds of hours, I conversed or debated with, 

amongst others, the combatant commander and his lawyer at 

Guantanamo, Major General Dunlavey and Lieutenant Colonel 

Beaver; the Commander of United States Southern Command, 

General Hill; the Chairman of the Joint Chiefs of Staff, General 

Myers; the Under Secretary of Defense, Mr. Feith; the General 

Counsel of the Navy, Mr. Mora; and the Deputy Assistant Attorney 

General at DOJ, Mr. Yoo. I met twice with Mr. Haynes who, along 

with the Vice President’s counsel, Mr. Addington, took a central 

role on the key decisions. I also met twice with Spike Bowman, the 

FBI Deputy General Counsel who received complaints from Guantanamo and took them to DOD. From these and many other exchanges, I pieced together what I believe to be a truer account than 

that which has been presented by the administration. In particular, 

I learned that in the case on which I focused, the aggressive techniques of interrogation selected for use on Detainee 063 came from 

the top down, not from the bottom up; that they did not produce 

reliable information, or indeed any meaningful intelligence; and 

that they were strongly opposed by the FBI. 

My account is consistent, fully consistent with that of the report 

recently published by the Inspector General at the DOJ, on which 

we heard more this morning, although I do go further on some 

points of detail, I suspect for jurisdictional reasons. I did not have 

his limitations. I learned, for example, that the concerns of FBI 

personnel at Guantanamo were communicated directly to Mr. 

Haynes’ office, in telephone conversations in November and December 2002 between Mr. Spike Bowman and, first, Mr. Bob Dietz; 

then Mr. Dan Dell’Orto, who was then Mr. Haynes’ deputy and is 

now his acting successor; and third, Mr. Haynes himself. Mr. Bowman told me it was ‘‘a very short conversation, he did not want to 

talk about it all, he just stiff-armed me.’’ You can find a full account of that at pages 112 to 121 of the U.S. edition of my book. 

My conclusion, taking into account my conversations with Mr. 

Haynes, is that he was able to adopt that approach because by 

then, contrary to the impression he sought to create when he appeared before this Committee 2 years ago, he had knowledge of the 

contents of the DOJ legal memos written by Jay Bybee and John 

Yoo on the 1st of August 2002, memo No. 1 of which was most certainly intended for use also by the DOD. 

On the basis of these conversations, I believe that the administration has spun a false narrative. It claims that the impetus for 

the new interrogation techniques came from the bottom up. It is 

not true. The abuse was the result of pressures driven from the 

highest levels of Government. It claims the so-called torture memo 

of the 1st of August 2002 had no connection with policies adopted 

by the administration. That, too, is false, as it is that memo that 

truly provided cover for Mr. Haynes. It claims that in its actions 

it simply followed the law. To the contrary— 

39 

Senator FEINSTEIN. I must interrupt you. Apparently, the Republican Leader has just objected to Committees proceeding, so for the 

moment, we will have to stop. And we will know as soon as it is 

acceptable to go ahead. 

Mr. SANDS. Thank you, Madam Chair. 

Senator FEINSTEIN. Thank you. 

[Recess 2:15 p.m. to 2:21.] 

Senator FEINSTEIN. The Majority Leader has just recessed the 

Senate so that we are now able to proceed. So, Mr. Sands, please 

proceed with your testimony. 

Mr. SANDS. Thank you, Madam Chairwoman. I will try to not 

double up what I have already done. 

I was restating the arguments of the administration and indicating the extent to which I feel those are not accurate. The administration claims, for example, that in its actions, it simply followed 

the law. To the contrary, the administration consciously sought 

legal advice to set aside international constraints on detainee interrogations, without apparently turning its mind to the consequences 

of its actions. In this regard, the position adopted by the Pentagon’s 

head of policy at the time, Mr. Feith, in failing apparently to turn 

his mind to the key issues, appears most striking. 

As a result of all of this, Common Article 3 of the Geneva Conventions was violated, along with provisions of the 1984 Convention prohibiting torture. The specter of war crimes was raised by 

United States Supreme Court, and in particular by Justice Anthony Kennedy, in the 2006 judgment in Hamdan v Rumsfeld. That 

judgment corrected the illegality of President Bush’s determination 

that none of the detainees at Guantanamo had any rights under 

Geneva. 

Madam Chairwoman, honorable members of the Committee, this 

is an unhappy story. It points to the early and direct involvement 

of those at the highest levels of Government, often through their 

lawyers. When he appeared before this Committee in July 2006, 

Mr. Haynes did not share with you his involvement—and that of 

Secretary Rumsfeld—which began well before that stated in their 

official version. He did not tell you, for example, that in September 

2002 he had visited Guantanamo, together with Mr. Gonzales and 

Mr. Addington, and discussed interrogations. This is not, sadly, 

only a story of abuse and crime opposed by the FBI; it is also a 

story about a cover-up. 

Chairman, for what purpose was this done? The administration 

claims that coercive interrogation of Detainee 063 produced meaningful information. That is not what I was told by those I interviewed. The coercive interrogations were illegal, they did not work, 

they have undermined moral authority, they have migrated, they 

have served as a recruiting tool for those who seek to do harm to 

the United States and to Britain, and they have made it more difficult for allies to transfer detainees and to cooperate in other 

ways. They have resulted in the very opposite of what was intended, contributing to an extension of the conflict and endangering the national security of this country. Astonishingly, on May 

the 14th last, the Pentagon announced that charges against Detainee 063 were being dropped. He is now, apparently, 

unprosecutable. It is not clear what future he has. 

40 

These unhappy consequences mirror Britain’s experience in using 

similar techniques against the IRA in the early 1970s, and these 

were widely believed to have extended the conflict. The five techniques, as I referred, more or less identical to those used here, 

were very soon abandoned, but not before great damage was done. 

They have never been picked up again. Across the political spectrum, from left to right, in Britain there exists a unanimous belief 

that such techniques are wrong and can never be justified. Coercive 

interrogation, aggression, and torture must never be institutionalized. The view in Britain is that once the door is open, it is difficult, if not impossible, to close. And that is why, with the greatest 

respect to Professor Heymann, we have turned our back firmly 

against the institutionalization of coercive interrogation that appears to have been recommended by some in his report of 2000. 

And that is why even more strongly we are so vigorously opposed 

to the related idea of torture warrants, as floated by Professor 

Dershowitz, an idea which, as I describe in my book, and somewhat 

to my surprise, directly undermined the efforts of those who opposed the abuse at Guantanamo. 

In conclusion, Chairwoman, I can put it no better than George 

Kennan, the great American diplomat. In 1947, he wrote a telex 

that issued this warning in relation to a perceived Soviet threat: 

‘‘[W]e must have courage,’’ he wrote, ‘‘and self-confidence to cling 

to our own methods and conceptions of human society. [T]he greatest danger that can befall us . . . is that we shall allow ourselves 

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

Chairwoman, honorable members of the Committee, no country— 

no country—has done more to promote the international rule of law 

than the United States of America. Uncovering the truth is a first 

step in restoring this country’s necessary leadership role; in 

undoing the great damage that has been caused; and in providing 

a secure, sustainable, and effective basis for responding to what is 

a very real threat of terrorism. 

I thank you for allowing me the opportunity to make this introductory statement, and, of course, I would be delighted to take your 

questions. 

[The prepared statement of Mr. Sands appears as a submission 

for the record.] 

Senator FEINSTEIN. Thank you very much, Mr. Sands. 

Professor Heymann, it is good to see you again, sir. Please proceed. 

STATEMENT OF PHILIP B. HEYMANN, JAMES BARR AMES PROFESSOR OF LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS 

Mr. HEYMANN. Thank you, Madam Chairwoman. 

I have been viciously defamed by Professor Sands and maybe the 

Ranking Minority Member. I am of course, not serious but joking. 

I think I am here under the illusion that I—that you wanted someone on the panel who would defend torture and cruel, inhuman, 

and degrading or highly coercive techniques. That’s not me. 

What Juliette Kayyem and I recommended and published was 

something that takes the step that I think has not been discussed 

at all today, Madam Chairwoman, and I think it is an essential 

41 

one. We recommended that the Attorney General should propose to 

the President a list of permissible techniques consistent with the 

ban on torture and consistent with the ban on cruel, inhuman, and 

degrading treatment; and that there be no exception to this list. 

The United States would not do anything that was torture and it 

would not do anything that violated the ban on cruel, inhuman, 

and degrading treatment, which means under the Senate’s reservation it would not do anything that the Supreme Court would hold 

‘‘shocked the conscience.’’ It does not say of whom. Presumably of 

the American people. 

We then went on and said that that list has to be made available 

to the appropriate committees of the Senate and the House. It cannot be kept secret from them. 

We said if anybody is ever going to engage in an interrogation 

technique that is not on that list, it would have to be on a published finding by the President that lives were imminently at 

stake, that this individual had the information that could save 

lives, and that there was no other technique that would work. In 

short, I think that our proposal was more protective than any proposal that has been made to this Committee, including today. 

My written testimony is very consistent with Mr. Cloonan’s testimony and Professor Sands’. It says that we do not need torture. I 

have met with the leading interrogators in France, Britain, Spain, 

Israel, the CIA, the DOD, the FBI over a 3- or 4-year period. I have 

to say that I agree with Mr. Cloonan’s description. But the problem 

that the Committee faces, the problem that the Congress faces, is 

that the words saying what is not permissible have lost their 

meaning. The administration agrees that torture is absolutely forbidden with no exception—in my testimony, I have quoted where 

they say that, ‘‘no exception’’—but they do not regard 

waterboarding as torture. And thus we have no idea what they regard as torture. 

The Detainee Treatment Act of 2005 belatedly forbids all forms 

of cruel, inhuman, and degrading treatment. But nobody knows 

whether the steps that Inspector General Fine described—putting 

in solitary confinement, environmental manipulation, food changes, 

stress positions, prolonged shackling, sleep deprivation—are cruel, 

inhuman, and degrading. They feel pretty cruel to me. But the 

problem is that we are talking in vague terms with no determinate 

meaning. 

The only way for the United States to give determinate, proud 

meaning to those terms is for either the Congress or the President, 

with congressional oversight, to list what is permissible. Nothing is 

permissible that is torture; but what is torture and what is permissible under the category of non-torture? That list must be made 

available to the Congress and the administration must be bound by 

that list unless the President himself says that we have an emergency so severe that he has to depart from the list and why. 

The President’s argument has been that if you tell the terrorists 

what can be done to them, they will be at an advantage in meeting 

that in interrogation. Well, the Congress, the relevant committees 

of Congress, will know what is on the list. The terrorists will not. 

I agree with Mr. Cloonan’s statement and the statement of a 

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42 

ring. We have not had a situation in the last 7 years since September 11th in which we have been able to identify an individual 

who has information that would prevent a lethal attack of a substantial size and that could not—and information that cannot be 

obtained as well in a different way. 

That particular event is a difficult one. It is a philosophically 

hard one. It is the example that all of the supporters of coercive 

interrogation argue from. We dealt with that—not in the only way. 

We dealt with that by saying no torture, but you could, on the 

President’s order, if all those conditions were met and if he filed 

a statement to that effect, he could depart from a list of techniques 

to choose others that were also consistent—consistent—with the 

prohibition of cruel, inhuman, and degrading. We did not give him 

a lot of leeway. We gave him very little leeway. But the real ticking 

time bomb situation has not happened, and it is not likely to happen, and we should not pay much attention to that highly unusual 

possibility in defining what the American rules are. We tried to 

leave a little bit of leeway. You can do it other ways, too. 

I think I can stop there, but, again, my point is that we are at 

a stage now where everybody agrees and says that torture is forbidden. And now the Congress has said, without providing a remedy, in 2005 that anything cruel, inhuman, and degrading, meaning ‘‘shocking the conscience’’ from the Supreme Court precedent, 

is forbidden. But we have no agreement on what ‘‘shocking the conscience’’ means or what ‘‘torture’’ means and no possibility of the 

courts filling in that gap. That should not be a decision made by 

the President alone. It is not his conscience that has to be shocked. 

It is the conscience of the American people, and the Congress can 

speak to that. 

[The prepared statement of Mr. Heymann appears as a submission for the record.] 

Senator FEINSTEIN. Thank you very much, Professor Heymann. 

Just a comment and then I want to recognize Senator Whitehouse, 

who has done so much work in this area. 

I think—well, Senator, I will save my comment. I was just going 

to say the thing that we would replace this with is the Army Field 

Manual, which prohibits eight specific interrogation tactics and has 

some 18 to 21—I forget exactly how many—various strategies 

which are comprehensive and individuals are taught how to do 

what Mr. Cloonan essentially spoke about. And we believe that 

there should be one standard throughout our entire Government, 

and because this is accepted now by the military, has been worked 

on for 4 years, revised just about a year ago, that it is really the 

best way to proceed. 

Let me turn it over to Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Madam Chair. We are having 

a slight delay in the Intelligence Committee, so I was able to come 

back for a moment. We have OLC in the Intelligence Committee, 

so torture is the theme throughout this building today. 

First, I just want to say thank you to Special Agent Cloonan for 

his career of service to our country. Anybody who has read ‘‘The 

Looming Tower’’ and seen the references to him in there knows 

how hard the FBI worked towards the end to try to be prepared 

43 

for the eventuality that became the 9/11 disaster, and I just want 

to express my personal appreciation to you for your service. 

I will ask again the question that I asked before. You had the 

Vice President of the United States publicly comparing 

waterboarding—this is a term that most Americans were not particularly familiar with—to a dunk in the water. You had the Secretary of Defense of the United States of America comparing the 

stress position interrogation method to himself standing at his 

desk. Would you first give me your view on the extent to which either of those comparisons fairly or accurately represents the effect 

and substance of those two methods? Anyone who feels qualified to 

answer. 

Mr. CLOONAN. To your question, Senator, the issue of stress positions, waterboarding, whether it is a short dunk or whether these 

prolonged stress techniques amount to torture in my view, I— 

Senator WHITEHOUSE. My question is: Do you think that is a fair 

way to describe— 

Mr. CLOONAN. I do not think it is a fair way. I do not think it 

is a fair way of describing it. I mean, waterboarding is an extreme 

interrogation technique. It is torture. Those who have been submitted to it will tell you so. I have never undergone it myself. I 

know a number of people who have. 

The stress positions that you were talking about are extreme, 

being hung from the ceiling and various other things. Those are 

very, very extreme and counterproductive. So they are not things 

that we should treat lightly. The way they were described, I would 

disagree with the way they were described. 

Senator WHITEHOUSE. Professor Sands, do you disagree with 

that? 

Mr. SANDS. I agree with what Mr. Cloonan has said. I would 

start this from the proposition of how we would look at it dealing 

with the situations in the U.K. We have English law. We have 

international obligations. We look to our international obligations. 

There is no one I can think of in the United Kingdom who would 

not immediately conclude that the use of waterboarding, which is 

creating the misperception of suffocation, is torture in all circumstances, and we are, frankly— 

Senator WHITEHOUSE. The reason that I am asking this—I have 

limited time, so forgive me if I jump in from time to time. The reason I am asking this is that we have two very significant officials 

of the Government of the United States of America who have apparently a fairly considerable misperception of what the techniques 

are that they authorized. And it strikes me that if they have authorized these techniques under the misperception that you all 

have identified, that is a pretty significant failure of communication and knowledge. It is ignorance of a very high order at a very 

high level about a very significant matter. 

The only alternative, which is not any better, is that they actually do know how devilish these techniques are and how devilish 

their application can be, and they deliberately sought to mislead 

the American people about exactly what America was now responsible for doing. And I do not see a third road. It seems it is either— 

you either knew it or you did not. You either should have known 

or you should have told the truth. 

44 

Mr. SANDS. I regret to say I think the answer is that your first 

option is excessively generous. Your second option is the one that 

I would go for, and I think I have got a pretty reasoned basis for 

doing that. 

The administration, if you go back to December 2001, January 

2002, February 2002, forms the clear view that the Geneva Conventions, and in particular Common Article 3—outrages against 

human dignity, cruel, degrading treatment, et cetera, as well as 

torture—stood in the way of aggressive techniques of interrogation. 

And they, therefore, designed an approach led by people like Doug 

Feith to set aside the Geneva Conventions. And that is consistent 

with the conclusion that they knew very well what they were doing 

and that the use of this language was actually intended to signal 

to people on the ground that the people at the highest levels have 

no problem with it. 

Senator WHITEHOUSE. Green-lighted it, to use your phrase. 

Professor Heymann, you are now a professor of law at Harvard 

University. You have served in the United States Department of 

Justice. Very briefly, the Office of Legal Counsel, what is its tradition and history within the Department? What has its reputation 

been prior to the Bush administration? 

Mr. HEYMANN. I think prior to the Bush administration it had 

a very high—was held in very high repute for the fairness and objectivity of its opinions. 

Senator WHITEHOUSE. Have you had the occasion to review the 

unclassified opinion authorizing torture? 

Mr. HEYMANN. Yes, I have. 

Senator WHITEHOUSE. Have you had occasion to review the 

sourcing of the definition of ‘‘severe pain’’ back into the Medicare 

and Medicaid reimbursement statutes? 

Mr. HEYMANN. Yes. I thought it was highly creative. It has nothing—it is a totally impermissible reading of law. Professor Sands 

had said to me earlier before you began how much he enjoyed being 

at Harvard for a year because it brought him into an open-minded 

and intelligent attitude towards what a law means. This was totally beyond the pale. 

Senator WHITEHOUSE. Let me ask you this: Are you familiar with 

the Fifth Circuit decision in United States v. Lee, in which the Department of Justice in the 1980s brought a prosecution against a 

Texas sheriff and two of his associates for waterboarding prisoners 

in order to extract confessions from them? 

Mr. HEYMANN. The first time I heard of that was when you mentioned it this morning. I did know that we have—we prosecuted 

Japanese for war crimes for waterboarding after World War II. 

Senator WHITEHOUSE. As a professor of law, would you consider 

a case that addressed waterboarding in the United States and described it as water torture to be on point to the question whether 

waterboarding was torture as a matter of law? 

Mr. HEYMANN. The Fifth Circuit case, Senator? 

Senator WHITEHOUSE. Would you consider it an on-point case to 

the questions they are trying to answer? 

Mr. HEYMANN. Not having read it, it sounds, as you describe it, 

very close. 

45 

Senator WHITEHOUSE. Would it surprise you that the Office of 

Legal Counsel would, on the one hand, find precedent in Medicare 

and Medicaid reimbursement law and, on the other hand, not find 

the case that is directly on point that was actually prosecuted by 

the Department of Justice itself? 

Mr. HEYMANN. I think that the Office of Legal Counsel was 

working hand in hand with the counterterrorism policy officials in 

the White House, was consulting with them regularly, and had 

very much in mind what decision they intended to reach and were 

expected to reach. 

Senator WHITEHOUSE. Thank you very much. 

Senator FEINSTEIN. Thank you very much, Senator. 

Mr. Sands, if I might, the Bush administration has said that the 

coercive intelligence techniques and torture used at Guantanamo 

originated from the military interrogators and JAG lawyers at 

Guantanamo, and you speak about that in your articles and your 

book. In testimony before this Committee, former DOD General 

Counsel Jim Haynes said, and I quote, that he ‘‘did not seek a written opinion from the Department of Justice’’ on coercive interrogation techniques at Guantanamo. He also said that he ‘‘did not have 

a copy of it,’’ and ‘‘it’’ is the August 1, 2002, Yoo memo, and ‘‘did 

not shape its legal analysis.’’ 

You have interviewed Mr. Haynes on how many occasions? 

Mr. SANDS. I have met with him on two occasions. 

Senator FEINSTEIN. On two occasions. Did you ask him if he had 

read or was otherwise aware of the conclusions in the August 1, 

2002, OLC memo before recommending that Secretary Rumsfeld 

authorize coercive interrogations at Guantanamo? 

Mr. SANDS. Chairman, I wonder if I can come to this in a roundabout sort of way. 

Senator FEINSTEIN. Okay. Any way you— 

Mr. SANDS. I am very familiar with his testimony before this 

Committee on, I think, the 11th of July— 

Senator FEINSTEIN. ‘‘His testimony’’ being Mr. Haynes’? 

Mr. SANDS. Mr. Haynes’ testimony of 11th of July 2006. The one 

question he was not asked was whether he had knowledge of the 

contents of the memo of the 1st of August 2002. I established to 

my complete satisfaction that he did have knowledge of the contents of that memorandum, and I established that on the basis of 

my conversations with General Myers, with General Hill, with Mr. 

Feith, amongst others. 

I then had occasion to meet with— 

Senator FEINSTEIN. You understand you are under oath. 

Mr. SANDS. I then had occasion to meet with him, and I met with 

him on an undertaking that although the fact of our meeting would 

not be confidential, I gave him an undertaking that the conversations were off the record and, therefore, I did not in the book make 

any reference to the conversations that we had. 

What I did was in the penultimate chapter indicate in the last 

sentence that my conclusions would take fully into account everything I had learned from him, and in the last chapter, I set out 

very clearly my view that he had knowledge of the content—he, 

Mr. Haynes, had knowledge of the contents of that memo, certainly 

by the time he went down to Guantanamo in September 2002. 

46 

Mr. HEYMANN. Madam Chairwoman? 

Senator FEINSTEIN. Yes, Professor Heymann? 

Mr. HEYMANN. I would like to speak up a little bit for Jim 

Haynes. 

Senator FEINSTEIN. All right. Please do. That is fine. 

Mr. HEYMANN. When Juliette Kayyem and I wrote our recommendations on the ten hardest questions—highly coercive interrogation, detention without judicial trial, targeted killings, et 

cetera—I sent them to Jim Haynes, and he asked me if I would 

come down and present them to Attorney General Gonzales and 

Harriet Miers, the White House counsel. I did that, and I think he 

did it because he thought that it was time to look at those questions in a less frightened, less knee-jerk way. And I appreciated it 

very much. I thought he was trying to move the administration— 

unsuccessfully, I may say. 

Senator FEINSTEIN. Okay. Thank you. 

I would like to proceed along this line for a moment. This morning I mentioned the special agent’s memo to Mr. Bowman, the Deputy General Counsel for national security law at the FBI. Mr. 

Sands, did Mr. Bowman tell you that he contacted Jim Haynes and 

other officials at DOD earlier in November and December 2002 

about the concerns relating to coercive interrogation techniques at 

Guantanamo? 

Mr. SANDS. He did. Mr. Bowman told me very clearly—and I met 

with him twice, and I went in great detail over these issues and 

managed to ratchet down the dates. He spoke first to his friend 

Bob Dietz, who was a senior intelligence person in DOD, whom he 

knew well; and I described that conversation in the book. Mr. Dietz 

evidently told him that the person who was dealing with this was 

Mr. Dell’Orto, so when he received a further complaint from Guantanamo, by now we are about the 19th or so of November. So this 

is well before the memorandum was written on the 27th of November 2002. He contacted Mr. Dell’Orto. Mr. Dell’Orto evidently told 

him he would look into these things, but most significantly, Mr. 

Dell’Orto, who was, of course, Mr. Haynes’ deputy, confirmed that 

he already had knowledge that there were concerns about what 

was happening. Mr. Dell’Orto did not then get back to him. Mr. 

Bowman told me he did not read anything negative into that because he just assumed it was being sorted out. It did not occur to 

him for a moment that there was actual systematic abuse taking 

place. 

Unfortunately, he then received a further communication from 

an FBI agent down at Guantanamo, and at some point in early December—he could not remember the specific date; he just remembered—telling me, ‘‘I remember that there was a lot of snow on the 

ground on that date.’’ He called Mr. Dell’Orto. Mr. Dell’Orto was 

not there. He spoke to Mr. Haynes, and Mr. Haynes fobbed him off. 

On that basis, I think it is pretty clear on Mr. Bowman’s account 

that Mr. Haynes would have had knowledge of concerns of what 

was going on down at Guantanamo by the time he signed his 

memorandum on the 27th of November and further confirmation 

after that date and before it was rescinded. 

Senator FEINSTEIN. Okay. Now, one of the presiding concepts, I 

think, of this administration has been that the Article II powers of 

47 

the President, the Commander-in-Chief authority derived thereof, 

is such that it virtually overrides anything. It has been asserted 

that the Geneva Conventions do not apply to detainees, that the 

President has the constitutional authority to violate the Convention 

Against Torture and the U.S. torture statute, and that the President’s Executive power essentially trumps the powers of the other 

branches of Government in times of war. 

Professor Heymann, I would like to get your view of that from 

a constitutional, legal point of view. 

Mr. HEYMANN. Well, I am afraid that a great deal of very detailed work, hundreds and hundreds of pages have been done by 

my colleague, David Barron and by Marty Lederman. I have a 

quite different view of the whole thing, and I can state it very simply. 

Number 1, I do not think the problem is a Commander-in-Chief 

problem. I think the President may have to violate a statute if we 

have an earthquake, like China has just had; if we have an outbreak of the plague or a smallpox epidemic; if we have a flood in 

New Orleans; that statutes are not themselves absolute. Every 

country that I know of except the United States has emergency 

powers. We do not have emergency powers, and we are probably 

better off for not having emergency powers in the Executive. But 

I think that the problem that we then have to deal with as a Nation is what do we want to have happen when there is a very grave 

emergency and there is a law that stands between the Executive 

and dealing with it. 

If I can say one other thing, as to the Commander-in-Chief powers, I think it cannot—I do not think the Framers of the Constitution, who separated powers and gave great powers in Article I to 

the Congress and in Article III to the Supreme Court, and who 

would not pass the Constitution without a Bill of Rights, could not 

have agreed that the President can decide when he can set aside 

those protections that they insisted on by deciding that we were at 

war. I think a totally clear decision by the Congress—it does not 

have to be a declaration of war—would have to be necessary. It is 

hard to imagine the writers of the Constitution saying we want 

this protection, that protection, and this and that, all against the 

Executive power, and then saying, However, when the President 

says there is a war, he can ignore it as Commander-in-Chief. 

Senator FEINSTEIN. Thank you very much. That is really the 

heart of the argument of much of what has gone on. 

I want to be concise here because the Senate is in recess, and I 

do not want to keep—there are important issues on the floor, so, 

Professor Sands, do you have a comment you would like to make? 

Mr. SANDS. Very briefly on that, and I am not an expert on the 

U.S. constitutional provision so I cannot express any view on that. 

But I think it is also important to put this in an international context. We are dealing with treaties from which, particularly in relation to torture, there is no national security or emergency exception. The ban is absolute. So whatever may be the position under 

the domestic law within the United States—or indeed any other 

country—as a matter of international law you violate that law and 

you expose yourself to the risk of international criminality and 

international investigation. That is the first point I would make. 

48 

The second point is this: Imagine the same argument being made 

by a foe of the United States. Why can’t the President of Iran or 

the President of some other country that may from time to time be 

feeling hostile toward the United States—and, actually, we too face 

such a national security emergency—that we are going to justify 

the use of these techniques? And the danger with the argument in 

a globalized world is that by adopting these techniques domestically within the United States, you expose U.S. troops to their use 

internationally. And no country is more peripatetic than the United 

States. 

Senator FEINSTEIN. Thank you. 

I would like to ask one question, if I might, of Mr. Cloonan. Mr. 

Cloonan, you were speaking in your comments that you gave earlier to the effect that there are certain instances where certain 

kinds of intelligence, SIGINT, other kinds of intelligence, have produced information that really was valuable. Do you know offhand 

of any cases where torture as we mean it in terms of the broader 

expanse of enhanced interrogation techniques has actually produced critical intelligence information? 

Mr. CLOONAN. No, Senator, I don’t. 

Senator FEINSTEIN. So it is your belief, as someone who has 

looked at this, that most of it has come from other means of intelligence gathering rather than HUMINT? 

Mr. CLOONAN. I would say— 

Senator FEINSTEIN. Other than torture, let me put it that way. 

Mr. CLOONAN. Yes, I understood what you said. Yes, back to my 

statement, yes, a lot of good information has come from the techniques that you have discussed or the technological assets we have 

deployed. But most of the good stuff, Senator, comes from good old 

field work and from that rapport-building approach that I alluded 

to. That is where the rubber meets the road. That is when the skill 

of a good interrogator who is confronted with this issue, who sits 

across the table from a member of al Qaeda, as I said in my statement, a person who has pledged their allegiance to bin Laden, a 

person who knows the information, that is where it works. 

This is the challenge that we have, and I think that when you 

do and are successful at getting that information, it is unbelievable, 

Senator, how much time and effort you save, how much resources 

you save from chasing after fruitless leads. And if you will pardon 

the expression, when you do reach that point in an interrogation 

and that subject is broken—and I have seen it happen any number 

of times—there is literally a physical reaction. And you know at 

that point that you have hit it. You know that you have hit a home 

run. And in my particular case, dealing with these people from al 

Qaeda, Egyptian Islamic Jihad, and other groups, they almost feel 

in their heart that they have a moral obligation to cooperate with 

you. 

Senator FEINSTEIN. How many al Qaeda members did you interrogate? 

Mr. CLOONAN. Many. 

Senator FEINSTEIN. Give me a number. 

Mr. CLOONAN. I would say people who pledged ‘‘bayat,’’ who were 

members of al Qaeda, I would say half a dozen. 

Senator FEINSTEIN. And how many— 

49 

Mr. CLOONAN. There were many that were on the periphery. 

Senator FEINSTEIN. Right. Of that half dozen, how many were 

prosecuted? 

Mr. CLOONAN. Several, and some were— 

Senator FEINSTEIN. Several. 

Mr. CLOONAN. Three or four, and some were put into the witness 

protection program. 

Senator FEINSTEIN. And the three or four that were prosecuted, 

what was the verdict? Were they convicted? 

Mr. CLOONAN. They are guilty. In fact, everybody that we spoke 

to and everybody that agreed to cooperate with us walked into the 

Southern District of New York in a sealed courtroom and pled 

guilty. So we were very, very successful in that. I mean, we had 

a wonderful team of prosecutors. And it is amazing, Senator, when 

you sat, again, in these situations and you explained to these people from al Qaeda what the consequences were going to be, you 

would think that the cooperation would end right there. It did not. 

They understood what the consequences were going to be, and in 

some instances, their exposure was zero to life. And I can assure 

you that pleading guilty and being sentenced to life in prison and 

spending a life at Supermax in Florence, Colorado, is something 

that is incredibly powerful. 

And I alluded in my statement, we have a tendency sometimes 

to sort of poke fun at our legal system. We complain about it. When 

you have a member from al Qaeda and you literally explain to 

them what their rights are and that they understand that they do 

not necessarily have to speak to you, they are perplexed by that. 

They are troubled by it. And, frankly, it starts a dialogue. And 

when you have the opportunity to take information that the United 

States Government has in its possession under the rules of discovery and you give those to an al Qaeda member to look at, for 

example, and he thinks this is an amazing system, the United 

States Government is allowing me to see what it has against me, 

and for them, to correct what you think to be accurate, again, is 

amazing. 

Senator FEINSTEIN. I cannot help but contrast what you are saying with Khalid Sheikh Mohammed, who has admitted that he was 

the perpetrator of the murder of the Wall Street Journal reporter 

Danny Pearl, who has admitted that he planned 9/11, and yet 

would cooperate in no way, shape, or form and wants to die. 

Mr. CLOONAN. Well, as you probably recall, Senator, Khalid 

Sheikh Mohammed was indicted in the Southern District of New 

York in 1996 for his role in the Bojinka plot. So the FBI in New 

York knew an awful lot about Khalid Sheikh Mohammed, and that 

was a real difficult situation for us, the fact that we did not have 

access to him right away. 

I think when Khalid Sheikh Mohammed, frankly, gave his interview to Al Jazeera, you might recall, on the first anniversary of 9/ 

11, I think you saw in that that he was celebrating the fact. I had 

an opportunity, frankly, to look at some of the videotape when he 

was first detained by the Pakistani authorities. And it was my conclusion, just based on looking at him very quickly, he was not going 

to be a tough nut to crack. This is a man who is very proud of what 

he did. He was celebrating what he did. This is what his life was. 

50 

And all you had to do, frankly, is have the opportunity to let him 

tell his story. And I believe that we did not have to engage in any 

techniques that are alleged to have occurred against him, 

waterboarding being one. 

Senator FEINSTEIN. Thank you very much. 

I want to take this opportunity to thank the three of you and 

once again to apologize for the vagaries of the United States Senate 

and the schedule. I am very grateful to you for being here. 

Mr. Cloonan, I want to echo what Senator Whitehouse said to 

you. Thank you for your excellent service to this country. 

Dr. Sands, thank you for, again, crossing the ocean to be here 

today. It is very much appreciated. 

And, Professor Heymann, I am sure I will see you again and 

again before this Committee. Thank you very much for your excellent testimony. 

Thank you, gentlemen, and the hearing is adjourned. 

[Whereupon, at 3:02 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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