U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

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

54–049 PDF 2009

S. HRG. 111–200 

GETTING TO THE TRUTH THROUGH A 

NONPARTISAN COMMISSION OF INQUIRY 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

MARCH 4, 2009 

Serial No. J–111–8 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

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 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

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 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and 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 ............. 5 

prepared statement ................................................................................................. 72 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement ................................................................................................. 122 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3 

WITNESSES 

Farmer, John J., Jr., Partner, Arsenault, Whipple, Farmer, Fassett and 

Azzarello, LLP, Chatham, New Jersey ............................................................... 12 

Gunn, Leet F., Vice Admiral, U.S. Navy (ret.), and President, The American 

Security Project, Washington, D.C. .................................................................... 10 

Pickering, Ambassador Thomas, Vice Chairman, Hills & Company, International Consultants, Washington, D.C. ............................................................ 7 

Rabkin, Jeremy A., Professor of Law, George Mason, University School of 

Law, Arlington, Virginia ...................................................................................... 19 

Rivkin, David B., Baker & Hostetler, LLP, Washington, D.C. ............................ 16 

Schwarz, Frederick A.O., Jr., Chief Counsel, Brennan Center for Justice, 

New York University School of Law, New York, New York ............................. 14 

SUBMISSIONS FOR THE RECORD 

Atlanta Journal-Constituion, February 13, 2009, article ..................................... 36 

AVAAZ.org, 70,000 support the U.S. Senate ......................................................... 38 

Buffalo News, March, 9, 2009, article .................................................................... 50 

RussBaker.com, March 11, 2009, article ............................................................... 51 

Bush, George, Houston, Texas, letter .................................................................... 53 

Capitol News Company, LLC, March, 3, 2009, article ......................................... 54 

Commoncause.org, Washington, D.C., statement ................................................. 57 

Constitution Project, Washington, D.C., statement .............................................. 62 

Davis Group, Austin, Texas, statement ................................................................. 64 

Farmer, John J., Jr., Partner, Arsenault, Whipple, Farmer, Fassett and 

Azzarello, LLP, Chatham, New Jersey, statement ............................................ 68 

Fidell, Eugene R., President, National Institute of Military Justice, Washington, D.C., statement ........................................................................................ 74 

Fletch, Laurel E., Director, International Human Rights Law Clinic, University of California, and Eric Stover, Faculty Director, Human Rights Center, 

University of California, Berkeley, California, statement ................................ 78 

Fredrickson, Caroline, Director, American Civil Liberties Union, Washington, 

D.C., statement .................................................................................................... 90 

Globe and Mail, a division of CTV globemedia Publishing Inc., March 4, 

2009, article .......................................................................................................... 98 

Gunn, Leet F., Vice Admiral, U.S. Navy (ret.), and President, The American 

Security Project, Washington, D.C., statement ................................................. 100 

Human Events.com, February 25, 2009, article .................................................... 106 

Human Rights Watch, March 4, 2009, statement ................................................. 110 

Investor’s Business Daily, February 11, 2009, article .......................................... 115 

Killmer, Revern Richard L., Executive Director, National Religious 

Commpaign Against Torture, statement ............................................................ 117 

Las Vegas Review-Journal, February 12, 2009, article ........................................ 120 

Lucas, Margaret M., Washington, D.C., statement .............................................. 124 

Page

IV 

Magarrell, Lisa, U.S. Accountabiltly Project Director, International Center 

or Transition on Justice, New York, New York, statement .............................. 125 

Massimino, Elisa, Chief Executive Officer and Executive Director of Human 

Rights First, Washington, D.C., statement ........................................................ 130 

Miami Herald, February 23, 2009, article ............................................................. 136 

National Religious Campaign Against Torture, Washington, DC: 

U.S.-Sponsored Torture: A call for a Commission of Inquiry, joint statement ............................................................................................................... 138 

Religious Leaders call for torture Commission, joint, statement ................. 140 

New York Times, March 4, 2009, article ............................................................... 143 

Patten, Wendy, Senior Policy Analyst, Open Society Institute, Washington, 

D.C., statement .................................................................................................... 147 

Physicians for Human Rights, A. Frank Donaghue, Chief Executive Officer, 

Washington, D.C., statement .............................................................................. 149 

Pickering, Ambassador Thomas, Vice Chairman, Hills & Company, International Consultants, Washington, D.C., statement ......................................... 153 

Rabkin, Jeremy A., Professor of Law, George Mason, University School of 

Law, Arlington, Virginia, statement ................................................................... 157 

Rivkin, David B., Baker & Hostetler, LLP, Washington, D.C., statement ......... 162 

Schwarz, Frederick A.O., Jr., Chief Counsel, Brennan Center for Justice, 

New York University School of Law, New York, New York, statement .......... 169 

Scripps Howard News Service, February 19, 2009, articles ................................ 211 

Sessions, William S., former Chief of Government Operations Section, Department of Justice, Washington, D.C., statement .................................................. 213 

U.S. Intelligence Community, R. James Woolsey, Michael Hayden, James 

Schlesinger, William Webster, and John Deutch, are all former Director 

of Central Intelligence, Washington, D.C., joint letter ..................................... 215 

USA Today, February 17, 2009, article ................................................................. 217 

Walsh, Joan, March 5, 2009, article ....................................................................... 219 

Washington Post: 

February 17, 2009, article ................................................................................ 229 

November 26, 2008, article .............................................................................. 232 

Washington Times, March 3, 2009, articles .......................................................... 234 

(1) 

GETTING TO THE TRUTH THROUGH A 

NONPARTISAN COMMISSION OF INQUIRY 

WEDNESDAY, MARCH 4, 2009 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

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

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feingold, Whitehouse, Kaufman, Specter, and Cornyn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Thank you all for being here, and a very distinguished panel. 

I could not help but think, in the wake of the tragic attacks on 

September 11th, we all came together as Americans. Party labels 

meant nothing. Being Americans meant everything. We need to do 

so again in these difficult economic times. Regrettably, too many 

seem mesmerized by the siren call of talk radio personalities and 

extreme special interest groups. And far from grasping the bipartisan hand that President Obama has extended, many want to play 

out the conservative play book to ‘‘obstruct and delay.’’ 

This is a time when conservatives, liberals, Republicans, and 

Democrats should be setting aside party labels to come together, 

first and foremost, as Americans. 

We saw nothing more to damage America’s place in the world 

than the revelation that our great Nation stretched the law and the 

bounds of executive power to authorize torture and cruel treatment. When the last administration chose this course, it tried to 

keep its policies and actions secret. I think they did that because 

they knew they could not withstand the scrutiny of an open public 

airing. How many times did President Bush go before the world 

and say that we did not torture and that we acted in accordance 

with law? 

Now, there are some who resist any effort to look back at all; 

others are fixated only on prosecution, even if it takes all of the 

next 8 years, or more, and divides this country. 

Over the last month, I have suggested a middle ground to get to 

the truth of what went on during the last several years in a way 

that invites cooperation. I believe that that might best be accomplished though a nonpartisan commission of inquiry. I would like 

to see this done in a manner that removes it from partisan politics. 

2 

Such a commission of inquiry would shed light on what mistakes 

were made so that we can learn from these errors and not repeat 

them, whether in this administration or the next administration. 

Today’s hearing is to explore that possibility. I am encouraged 

that many have already embraced this idea, including several of 

the distinguished witnesses who will testify today. These are witnesses who speak from experience about the need to uncover the 

truth and shed light on our policies for the good of our Nation, to 

ensure that we have strong national security policies and to ensure 

that we do not make repeat mistakes. I look forward to that discussion. 

As Supreme Court Justice Anthony Kennedy said in the recent 

Supreme Court decision restoring the our great writ of habeas corpus, the Constitution is not something that any administration is 

able ‘‘to switch on or off at will.’’ We should not be afraid to look 

at what we have done or to hold ourselves accountable as we do 

other nations when they make mistakes. We have to understand 

that national security means protecting our country by advancing 

our laws and values and not by discarding them. 

This idea for a commission of inquiry is not something to be imposed. Its potential is lost if we do not join together. Today is another opportunity to come forward to find the facts and join, all of 

us, Republicans and Democrats, in developing a process to reach a 

mutual understanding of what went wrong and then to learn from 

it. If one party remains absent or resistant, the opportunity can be 

lost, and calls for accountability through more traditional means 

will then become more insistent and compelling. 

I held early hearings exploring how our detention policies and 

practices, from Guantanamo to Abu Ghraib, have seriously eroded 

fundamental American principles of the rule of law. I think that we 

are less safe as a result of the mistakes of the last administration’s 

national security policies. I also believe that, in order to restore our 

moral leadership, we must acknowledge what was done in our 

name. We cannot turn the page unless we first read the page. I do 

not want to see us in a case where we are lectured for mistakes 

we made by countries who themselves have some of the worst and 

oppressive policies. 

President Obama, Attorney General Holder, and others in the 

new administration are already hard at work on detainee and interrogation policies to determine the best way to form effective and 

lawful national security policies. I think a commission of inquiry 

would address the rest of the picture. With a targeted mandate, it 

could focus on the issues of national security and executive power 

in the Government’s counterterrorism efforts, including the issues 

of cruel interrogation, extraordinary rendition, and executive override of laws. We have had successful oversight in some areas, but 

on others we have remained too much in the dark. 

People with firsthand knowledge would be invited to come forward and share their experiences and insight, not for the purposes 

of criminal indictments but to gather the facts. Such a process 

could involve subpoena powers, and even authority to obtain immunity to secure information, in order to get to the whole truth. Of 

course, as in any such inquiry, it would be done in consultation 

3 

with the Justice Department, and no such inquiry rules out prosecution for perjury. 

Vice President Dick Cheney and others from the Bush administration continue to assert that their tactics, including torture, were 

appropriate and effective. I do not think we should let only one side 

define history on such important questions. It is important for an 

independent body to hear these assertions, but also from others, if 

we are going to make an objective and independent judgment about 

what happened, and whether it did make our Nation safer or less 

safe. 

Just this week, the Department of Justice released more alarming documents from the Office of Legal Counsel demonstrating the 

last administration’s pinched view of constitutionally protected 

rights. The memos disregarded the Fourth and First Amendments, 

justifying warrantless searches, the suppression of free speech, surveillance without warrants, and transferring people to countries 

known to conduct interrogations that violate human rights. How 

can anyone suggest that such policies do not deserve a thorough, 

objective review? 

I am encouraged that the Obama administration is moving forward. I am encouraged that a number of the issues we have been 

stonewalled on before are now becoming public. But how did we get 

to a point where we were holding a legal U.S. resident for more 

than 5 years in a military brig without ever bringing charges 

against him? How did we get to a point where Abu Ghraib happened? How did we get to a point where the U.S. Government tried 

to make Guantanamo Bay a law-free zone in order to try to deny 

accountability for our actions? How did we get to a point where our 

premier intelligence agency, the CIA, destroyed nearly 100 videotapes with evidence of how detainees were being interrogated? How 

did we get to a point where the White House could say, ‘‘If we tell 

you to do it, even if it breaks the law, it is all right because we 

are above the law’’ ? How do we make sure it never happens again? 

Senator Specter? 

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

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

I have repeatedly said on the Senate floor that the period from 

9/11/2001 to the end of the Bush administration has seen the greatest expansion of executive power in the history of our country. And 

as Chairman and later Ranking on this Committee and on the Senate floor, I have taken very positive steps to try to deal with that, 

for example: pressing for judicial review of the Terrorist Surveillance Program; pressing the Sixth Circuit and later the Supreme 

Court of the United States to review the decision of the Detroit 

Federal court declaring the Terrorist Surveillance Program unconstitutional; offered amendments on the Senate floor for votes to reinstate habeas corpus in the wake of action to deny habeas corpus; 

led the fight to eliminate the impact of signing statements to try 

to provide some balance with the need for the fight against terrorism, which I supported; managing the PATRIOT Act to try to 

provide some balance. 

4 

When this idea of the so-called truth commission first surfaced, 

I said it was unnecessary because you had a change in administration. You could walk in the front door, ask for directions to the relevant filing cabinet, go in and open the drawer, and find out anything you wanted to know. Well, that has been done, and it is being 

done to a greater extent. 

You have had some rather startling disclosures with the publicity 

in recent days about unusual, to put it mildly, legal opinions which 

were issued to justify executive action; very curious use of the doctrine of self-defense. That is a doctrine for justifiable homicide. And 

it is then stretched to say for defense against potential terrorist attack, the whole range of activities could be undertaken. 

Well, they are all being exposed now. They are, in fact, being exposed. According to the New York Times this morning, they are 

going further than just the exposes, but they are starting to tread 

on what may disclose criminal conduct. But the Times reports this: 

‘‘The Office of Professional Responsibility at the Justice Department is examining whether certain political appointees in the Department knowingly signed off on an unreasonable interpretation 

of the law to provide legal cover for a program sought by...White 

House officials.’’ 

Well, if they did that knowingly, there is mens rea. I would have 

to search the criminal code. But it sounds to me like it may fall 

within criminal conduct. 

What we do in our society is we undertake those investigations 

where we lawyers use the word ‘‘predicate’’—that is, some reason 

to proceed. We do not go off helter-skelter on a term which has 

been frequently used—I do not care much for the term, but it articulates a ‘‘fishing expedition’’ as to what we are going to do. 

So it seems to me that we really ought to follow regular order 

here. You have a Department of Justice which is fully capable of 

doing an investigation. They are not going to pull any punches on 

the prior administration. 

I would ask unanimous consent—I do not often insert things into 

the record, and this is my first time inserting an article from Politico. But there is one from yesterday’s edition which is by a former 

Justice Department official, Hans A. von Spakovsky, who raises it 

and succinctly stated that ‘‘we have never seriously indulged in 

criminalizing our political differences’’—the point being that the 

current administration will have a successor; all administrations 

have successors. I would ask, Mr. Chairman, also to put in this elegant picture of the Chairman, if that can be—— 

Chairman LEAHY. I could care less about the picture, but, of 

course, the article will be put in the record. And insofar as it is full 

of not only ad hominem attacks but more straw men than you 

would have in a hayloft, I will then put a response to it in the 

record. 

Senator SPECTER. Well, I have seen a lot of pictures of Senator 

Leahy, few as good as this. 

[Laughter.] 

Senator SPECTER. Many that I have seen with him, I am in the 

picture, too, obstructing his handsome profile. But the substance 

here is, I think, worth noting. We have had the statements by 

President Obama wanting to look forward and not backward. I 

5 

think that is really the generalization, although I would not mind 

looking backward if there is a reason to do so. There is a predicate 

if we have evidence of torture. Torture is a violation of our law. Go 

after them. If there is reason to believe that these Justice Department officials have knowingly given the President’s cover for things 

they know not to be right and sound, go after them. 

I think it underscores another issue, if I may say this parenthetically. The Office of Legal Counsel is a powerful office, and some of 

the opinions that are now disclosed are more than startling. They 

are shocking. When we look back at prior Presidents, most of them 

have not been lawyers. President Eisenhower, President Kennedy, 

President Johnson, President Nixon was—although he did questionable legal things. President Carter was not. President Ford 

was. Neither President Bush was, and President Clinton was. So 

you have Presidents taking advice from lawyers where they do not 

have legal training themselves. 

We are considering Office of Legal Counsel today, a very, very 

important position, and I think what we have seen Office of Legal 

Counsel do in the past ought to give us pause to do a little better 

job perhaps in this Committee on whom we confirm. 

I regret that I have other commitments. I am going to have to 

excuse myself, but I hope to return to participate in the questioning. 

Thank you, Mr. Chairman. 

Chairman LEAHY. I have noticed that Ambassador Pickering also 

has to leave early because of a commitment out of the area. 

Senator Feingold is the Chairman of the Constitution Subcommittee, which has jurisdiction over this matter, and I yield for 

a brief statement. 

Senator Kaufman, why don’t you move on down here with us, 

please? 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. I really do regret 

not being able to stay. I am going to see the British Prime Minister 

at a joint meeting. But this is a terribly important hearing. 

Mr. Chairman, I commend you for having this hearing and for 

your proposal to establish an independent commission of inquiry. 

Long before the election, it was clear to me that one of the most 

important tasks for the new President was going to be restoring 

the rule of law in this country. I chaired a hearing on this topic 

in September, and nearly 40 law professors, historians, advocates, 

and experts testified or submitted testimony, including one of our 

witnesses today—Mr. Schwarz. The record of that hearing is the 

most detailed collection of analysis and recommendations on what 

needs to be done to reverse the most damaging decisions and actions of the last administration. 

The Obama administration has already taken several enormously 

important steps in the right direction, among them ordering the 

closing of the Guantanamo Bay detention center in a year; requiring adherence to the Army Field Manual’s guidance on interrogation techniques; reinstating the presumption in favor of disclosure 

under the Freedom of Information Act; ending the very possibly ilVerDate Nov 24 2008 11:14 Dec 31, 2009 Jkt 054049 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54049.TXT SJUD1 PsN: CMORC
6 

legal detention of Ali al-Marri by indicting him in a criminal court; 

and just last week, releasing nine Office of Legal Counsel memos 

that the Bush administration had insisted on withholding from 

Congress and the American people. 

So I am pleased and gratified that President Obama and his advisers recognized the need to take these actions and actually took 

them quickly. It gives me great hope for the future. 

A crucial part of restoring the rule of law, in addition, is a detailed accounting of exactly what happened in the last 8 years and 

how the outgoing administration came to reject or ignore so many 

of the principles on which this Nation was founded. I regularly 

hear from my constituents back home about this, and they are absolutely right. There can be no doubt that we must fully understand the mistakes of the past in order to learn from them, address 

them, and, of course, prevent them from recurring. 

At the same time, there should not be a focus on retribution or 

payback, and such an effort should not be used for partisan purposes. That is why your proposal, Mr. Chairman, is so important. 

Your proposal is aimed at finding the truth, not settling scores. 

On the question of immunity, I think we should tread carefully. 

There are cases that may require prosecution, and I would not 

want a commission of inquiry to preclude that. Those who clearly 

violated the law and can be prosecuted should be prosecuted. On 

the other hand, the country will really benefit from having as complete a telling of this story as possible. So the ability of the commission to seek immunity for low-level participants certainly needs 

to be considered. How to do this is one of the complex questions 

that I hope will be explored in this hearing. 

I do support the idea of an independent fact-finding commission 

as opposed to relying solely on the regular Committee structure. I 

am on two of the relevant Committees, and the Members of Congress who serve on them are very hard-working. There is much important investigative work that can be done in Committee, but 

there are also significant time, staffing, and jurisdictional constraints. I think a truth commission, as the Chairman has proposed, is the best way to get the comprehensive story out to the 

American people and the world. 

One final point, Mr. Chairman. While a commission of inquiry is 

the best way to get the facts out, Congress, the Justice Department, and the public should decide what to do with those facts. So 

I would be reluctant to task the commission with coming up with 

detailed recommendations for action. If we focus the commission on 

gathering the facts, there may be less wrangling about who is going 

to be on it, which could move the process forward a lot more quickly. I would rather see investigative professionals on this commission than policymakers and partisans. 

So I am looking forward to reviewing the testimony later, and, 

again, Mr. Chairman, I thank you so much for your very strong 

and important leadership on this issue, and I thank you for the opportunity to make a statement. 

Chairman LEAHY. Thank you very much. I know you are one of 

the Judiciary Committee members who also serves on the Intelligence Committee, and without going publicly into some of the 

briefings we have all had on that, you understand the need for it. 

7 

Our first witness is Ambassador Thomas Pickering, who currently serves as Vice Chairman of Hills & Company. Ambassador 

Pickering has a distinguished Foreign Service career, including as 

Under Secretary of State for Political Affairs from 1997 to 2000. 

The Ambassador holds a personal rank of Career Ambassador. 

That is the highest in the United States Foreign Service. Prior to 

becoming Under Secretary, he served as an ambassador to numerous countries, as well as Ambassador to the United Nations under 

President George H.W. Bush. He won the Distinguished Presidential Award and the Department’s Distinguished Service Award. 

He has received honors from numerous universities. He is a member of the International Institute of Strategic Studies, the Council 

on Foreign Relations; has a Bachelor’s degree cum laude from 

Bowdoin, a member of Phi Beta Kappa, a Fulbright Scholarship to 

the University of Melbourne, where he received a second Master’s 

degree. 

On a personal basis, I have been briefed in various countries and 

at the U.N. by Ambassador Pickering, and I hold that as an example to new Ambassadors. When we come there, we actually want 

to have briefings in depth and in substance. He fulfilled that. We 

would have public briefings, and then occasionally briefings when 

we would go into a secure place, one of the bubbles, go into even 

more depth. In every single instance, he answered every question 

that was asked by both Republicans and Democrats. He told us 

what was going right and what was going wrong. 

Ambassador, I just want to state publicly how much I have appreciated those briefings over the years. Please, go ahead. 

STATEMENT OF THOMAS PICKERING, VICE CHAIRMAN, HILLS 

& COMPANY, INTERNATIONAL CONSULTANTS, WASHINGTON, 

D.C. 

Ambassador PICKERING. Thank you, Mr. Chairman, very much 

and thank you for your very kind introduction, and thank you, 

members of the Committee, for having us here and affording the 

opportunity to testify on this extremely important subject. I am 

honored to appear before you today and to join and be a member 

of this very distinguished panel. 

I believe that the question of how we, as Americans, should come 

to grips with our handling of detainees in recent years is critically 

important for our country. It is essential to have a full understanding of what happened, why, and the consequences of those actions in order to chart the right course for the future. 

I come before you today to urge you to support the establishment 

of a commission to examine the detention, treatment, and transfer 

of post-9/11 detainees. In calling on the President to create such a 

commission, I have joined with a number of others, including a 

former U.S. Army general, a former FBI Director, the President of 

the United Church of Christ, and an internationally respected lawyer and scholar, and others who are experts on commissions of this 

nature. My convinced support for the commission stems from my 

over 45 years of service to this country in the military, in diplomacy overseas, and as a senior official at the Department of State. 

I believe that a commission on the handling of detainees is vital 

to our country’s future—to its security, to its standing in the world, 

8 

and to our collective commitment as a people to honor, respect, and 

remain committed to our founding ideals in all that we do. Let me 

be clear as well that I am not a lawyer and am not qualified to address technical legal questions involving the advice of trained counsel. 

I would like to speak first very briefly on the purposes of the 

commission and then talk about some of its principal features. 

A commission of the kind we are proposing is needed in order to 

arrive at an in-depth, unbiased, and impartial understanding of 

what happened, how it happened, and the consequences of those 

actions. By gathering carefully all of the facts, the commission can 

tell the whole story and not just of each individual agency, studied 

in isolation, but of how all parts of the U.S. Government interacted 

in the handling of detainees. Indeed, the sainteragency aspect is 

crucial, as is how the various agencies related to the most senior 

officials in Government. On the basis of this full and comprehensive review, the commission can then make recommendations 

which will help guide us in the future. This process is fundamentally about understanding where we have been in order to determine the best way forward. 

Some might argue that such a commission is not needed. After 

all, President Obama has issued a series of Executive orders that 

chart a new course on detention and interrogation policy. As important as these orders are, I believe that something more is needed. 

It is not enough to say that America is discontinuing the policies 

and practices of the recent past. We must, as a country, take stock 

of where we have been and determine what was and is not acceptable, what should not have been done, and what we will never do 

again. It is my sincere hope that the commission will confront and 

reject the notion, still powerful in our midst, that these policies 

were and are a proper choice and that they could be implemented 

again in the future. 

Such a commission will strengthen our credibility in promoting 

and defending our values and advancing a better and safer world. 

As the 9/11 Commission found, the United States must engage in 

the struggle of ideas around the world in order to combat extremism and ultimately to prevail against terrorism. To do that effectively, Mr. Chairman, the Commission found that the U.S. Government—and I am referring to the 9/11 Commission—‘‘should offer 

an example of moral leadership in the world, committed to treat 

people humanely, abide by the rule of law, and be generous and 

caring to our neighbors.’’ 

It is far better for American foreign policy if we acknowledge 

willingly what went right and what went wrong than to address by 

bits and pieces of the story as they emerge over time this particular question. It is far better for our country and our standing 

in the world if we examine critically our own record and take account of what happened. To the extent that the Guantanamo detention camp, Abu Ghraib, secret detention sites, and torture and 

abuse enhance the efforts of our adversaries to recruit others to 

join their ranks and to make a case against us, we simply cannot 

quietly turn over the page. We must engage in a genuine effort to 

take stock of these policies and actions. We ought to acknowledge 

9 

mistakes that were made, but we also ought to commit not to do 

them again. 

It is a crucial step in neutralizing our adversaries’ narrative 

about the U.S. abuse of detainees. Only in doing so can we say to 

ourselves and to the world that we have not just turned the page 

on the past, but we have confronted it, learned from it, and 

strengthened our resolve to remain true to our principles. Only 

great countries, Mr. Chairman, confident in themselves, are prepared to look at their most serious mistakes, to learn from them, 

and to lead on forward. The United States has been and still is 

today, I believe, that kind of country. 

Let me conclude briefly by just reviewing a few principle features 

of the commission. 

On the question of what a commission should look like, its most 

important attribute is that it should stand above politics. It should 

report to and answer to the American people. To achieve this vital 

purpose, the commission ought to be comprised of persons whose 

duty is to truth and to our Nation’s founding principles. 

Second, the commission should operate in public to the maximum 

extent possible. Public proceedings and reports should be the norm. 

Third, the commission should be a separate and distinct process 

from any investigation or prosecution of unlawful conduct. The establishment of a commission would not, in my view, in any way 

preclude the possibility of criminal investigation or prosecution, but 

the purposes of the commission would not be prosecution. That is 

the job of our national criminal justice system. 

Fourth, the commission should have the subpoena power in order 

to gather and tell the full story of what transpired. I would hope 

that the President would ensure as well that all Government documents are made readily available to such a commission. 

Fifth, and finally, there is the difficult issue of whether the commission should have the power to grant immunity which has engendered and I know will engender a great deal of debate. I am not 

an expert on this technical legal issue, but I would hope that policymakers would consider it very carefully. Persons who are called 

upon to testify, I am informed, can invoke their Fifth Amendment 

rights against self-incrimination. In my view, the commission 

should not have the power to grant blanket immunity, meaning immunity to all who testify truthfully or full immunity—in effect immunity for what may have been done rather than just for what is 

being said in the testimony being given. Rather, the commission 

should grant immunity to witnesses only in very limited circumstances. 

Mr. Chairman, I thank you again very much for this opportunity 

to testify regarding a commission, and I look forward to your questions. 

[The prepared statement of Ambassador Pickering appears as a 

submission for the record.] 

Chairman LEAHY. Thank you very much, Ambassador. 

Our next witness is Retired Vice Admiral Lee Gunn. Admiral 

Gunn is now President of the American Security Project, served in 

the U.S. Navy for 35 years, served as the Inspector General of the 

Department of the Navy for the last 3 years. His awards include 

the Distinguished Service Medal, the Defense Superior Service 

10 

Medal, six Legions of Merit, two Meritorious Service Medals, the 

Navy Commendation Medal, Combat Action Ribbon, and, of course, 

numerous theater and service awards. Admiral Gunn holds a Bachelor’s degree from the University of California, Los Angeles, and a 

Master of Science degree in Operations Research from the Naval 

Postgraduate School. 

Admiral, it is good to have you here. Please go ahead, sir. 

STATEMENT OF LEE F. GUNN, VICE ADMIRAL, UNITED STATES 

NAVY (RET.), AND PRESIDENT, THE AMERICAN SECURITY 

PROJECT, WASHINGTON, D.C. 

Admiral GUNN. Mr. Chairman, thank you very much. It is a 

pleasure to be a part of this esteemed panel and to have an opportunity to talk about this important issue. 

In addition to the other things you mentioned that I am involved 

in, I have been a member for the last 3-plus years of a group of 

49 retired flag and general officers who have spoken extensively on 

the issue of detainee treatment and its importance both to the men 

and women in the military and for the men and women in the execution of their duties. I would like to talk a little bit about that 

and, in doing that, elaborate on the written testimony that I have 

submitted. 

I would like to say at the outset that my views are those of a 

sailor conveying concerns about the serious problems created for 

service men and women by choices made in Washington over the 

last 7 years. So what are those problems? 

Strained alliances comes first in my list, and in this day and age, 

the American military operates by itself almost never in the world. 

And the importance of being able to work with our allies and our 

friends cannot be overstressed. 

Confusion about detainee treatment, number two on my list, 

means to me that we have provided unclear guidance—that is, 

choices made in Washington have resulted in guidance that was 

not clear, that was in many cases ambiguous, and in some cases 

was flat wrong about the requirement to treatment detainees humanely and in accordance with international conventions, and the 

Geneva Convention in particular, and also with American law. 

Third on my list is exposure to greater risk of abuse if those soldiers, sailors, airmen, marines, coast guardsmen are captured. No 

one is going to—we are not kidding ourselves that our opponents, 

our enemy, will be inclined to treat our people humanely if they 

fall into enemy hands. On the other hand, it is important that we 

be able to mobilize international opinion in support of people taken 

by our enemy and the treatment of them in a humane way. 

We have, as Ambassador Pickering mentioned, furnished extremists with recruiting materials extensively, and that is a consequence that we should have envisioned when we made many of 

the choices about how we were going to act and how we were going 

to talk about how we acted. 

And, finally, in the problems list is that we further damage the 

reputations of Americans who are working in this new realm of 

winning hearts and minds and trying to convince people that 

America has ideals and ideas to which they should subscribe, and 

we have disadvantaged our military people who have been involved 

11 

in that. And I would argue that we have similarly disadvantaged 

the other members of the American administration, other public 

servants in that regard as well. 

We are not done, and that is why I think that we need a serious 

inquiry into the way we have behaved for the last 7 years and the 

kind of orders we have given and decisions we have made. The 

enemy is still the enemy. The stress on our people, in uniform and 

out, who are charged with dealing with this enemy will continue. 

The pressure on our country and on our leaders will remain. And 

we need to understand the circumstances under which choices were 

made by leaders in the past in order that we can anticipate those 

same circumstances or others in the future and avoid making what 

we consider to be mistakes. 

So the question is to me: What has happened to us? What did 

we do wrong? What did we do right? And I would like to mention 

that the military examines itself often and in depth. We do that 

with after-action reviews and hot wash-ups following exercises and 

operations. We do it with in-depth studies when those are called 

for. We conduct Uniform Code of Military Justice investigations, as 

I know you are well aware, Mr. Chairman. And we conduct aviation safety investigations and examinations as well. 

The last one is kind of an interesting case in which the testimony 

seeking the truth and having lives depend on finding the truth in 

which the testimony is generally firewalled completely from legal 

proceedings that may eventuate from these investigations. 

But whatever the appropriate names, the services together have 

to find out what happened and be in a better position in the future 

to provide the kind of clear, unambiguous guidance that is necessary on the pressure-filled front line and in the detainee treatment arena. 

The outcome is that soldiers, sailors, marines, airmen, coast 

guardsmen deserve and require that kind of guidance and those orders. Structure is essential to you when you are under pressure, 

particularly in combat, and also in the elevated tension of taking 

care of detainees. 

American values have to be our test with regard to the application of those orders and that guidance. We have failed American 

service men and women over the last 7 years, and we have to stop 

doing that. We need to do better, and we need to get on with it. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Admiral Gunn appears as a submission for the record.] 

Chairman LEAHY. Thank you very much, Admiral. 

The next witness is John Farmer. He is a partner at Arsenault, 

Whipple, Farmer, Fasset and Azzarello, and former Attorney General of New Jersey. He created the Office of Inspector General and 

served as a Federal prosecutor; adjunct professor of national security law at Rutgers. He has written extensively on terrorism issues. 

He previously served as Special Adviser to General Jones regarding 

Middle East issues. He was senior counsel and team leader for the 

9/11 Commission and really led the team in investigating the Government’s response to the 9/11 attacks. That included evaluating 

the response by the various agencies of the executive branch, including the offices of the President and Vice President of the 

12 

United States and the Department of Defense. Then he served in 

a variety of other investigatory commissions. Mr. Farmer received 

his law degree from Georgetown University Law Center, as did I, 

and his B.A. from Georgetown University. 

Mr. Farmer, glad to have you here. 

STATEMENT OF JOHN J. FARMER, JR., PARTNER, ARSENAULT, 

WHIPPLE, FARMER, FASSET AND AZZARELLO, LLP, CHATHAM, NEW JERSEY 

Mr. FARMER. Thank you, Mr. Chairman, and let me echo my colleagues in thanking you and the Committee for the invitation to 

appear today. Like my colleagues, I have submitted more formal 

testimony, and my purpose in speaking now is simply to summarize in a more abbreviated fashion what is set forth at length in 

my formal testimony. 

The obvious threshold question facing this Committee is whether 

an investigation should be conducted of the practices and policies 

that have been employed concerning detention since 9/11 in our 

country’s struggle against transnational terrorism. 

I want to emphasize at the outset that I have a lot of empathy 

for those who, like President Obama, have expressed a desire to 

move forward rather than look back. When I was Attorney General 

in New Jersey, I expressed similar sentiments when my department was under investigation by our State Senate Judiciary Committee. And make no mistake about it. The time devoted to preparation for testimony and responding to such an investigation can 

be diverting and for a time can disrupt normal operations. 

I have come to see, however, that there are some issues that 

touch so directly upon our identity as a people, that touch so directly upon the values we profess, that no amount of internal bureaucratic review will suffice to allay public concern about the way 

its Government has been conducting itself. In the absence of public 

fact finding, people will be left to believe the worst, and the lack 

of public trust will ultimately undermine any effort to move forward. I have come to believe that our Government’s handling of detentions since 9/11 is such an issue. Why? The turning point for me 

was the convening authority’s decision recently that Mohammed alQahtani, the alleged 20th hijacker—whom Mohammed Atta had 

driven to meet at the airport in Orlando Florida, on August 4, 

2001, but who was turned away, only to be captured in December 

2001 in Afghanistan—could not be tried because of the way he had 

been treated. She concluded that he had been tortured. 

Think about that for a moment. We have now reached a point 

where the tactics we have adopted in the struggle against terrorism have compromised our ability to respond to the 9/11 conspiracy itself. In my view, that fact calls into question exactly what 

we have done, to whom, why, when, and on what basis. There are 

many other alleged examples, but for me the dismissal of charges 

against al-Qahtani elevates detention to one of those issues that 

touch so directly upon our identity as Americans that a public accounting of what occurred is necessary. 

Assuming that there is eventual agreement on the need for an 

investigation of detention practices, the next question is what form 

that investigation should take. One obvious option is a criminal inVerDate Nov 24 2008 11:14 Dec 31, 2009 Jkt 054049 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54049.TXT SJUD1 PsN: CMORC
13 

vestigation, either by the Justice Department or by a special prosecutor. This option has limited appeal in this context, in my opinion, for three reasons: 

First, prosecutions are necessarily narrowly focused on proving 

the elements of crimes in specific cases; whatever broader context 

they provide is incidental to that primary purpose. 

Second, in the absence of generally accepted, neutral fact finding, 

criminal prosecutions by a successive administration may appear to 

be politically motivated. 

And, third, it is not clear that criminal prosecutions will be efficacious in this context; potential targets may well be able to invoke 

a viable advice-of-counsel defense. 

Another option would be congressional hearings. Certainly, Congress is capable of conducting thorough, bipartisan investigations 

as part of its oversight responsibility of the executive branch. In 

my view, however, the highly charged politics of congressional 

hearings on this subject would frustrate any fact-finding effort. 

In my view, these considerations argue in favor of establishing 

an independent body to conduct fact finding with regard to detentions. Such fact finding need not foreclose prosecution in appropriate cases; indeed, it may even serve to identify those cases. 

Structuring an investigation into detention policies and practices 

involves, in my view, four interrelated considerations: composition, 

scope, powers, and product. 

With respect to composition, the commission should be independent and nonpartisan in composition. Bipartisan commissions 

can reach nonpartisan results; the 9/11 Commission, under the 

leadership of Governor Kean and Congressman Hamilton, succeeded in that respect. The enabling statute for a commission on 

detentions should spell out specific professional qualifications that 

will ensure a nonpartisan composition. The commission should also 

have a professional staff, a definite timetable for completion of its 

work, and a budget adequate to its mandate. 

Perhaps the most difficult aspect of structuring such an investigation is determining its scope. If the mission is defined too 

broadly, it may not be achievable, and the breadth of the mission 

will also drive the potential cost of the project. In the context of detentions, I believe a focus strictly on Guantanamo Bay would be too 

narrow, while an open-ended mandate to investigate all tactics employed in the war on terror would be much too broad. One limiting 

principle the Committee might consider would be to link the investigation to the facts and circumstances surrounding detentions carried out pursuant to Congress’ resolution of September 2001 authorizing the use of force to respond to the 9/11 attacks. 

The scope of the inquiry, once it is determined, will determine 

what powers the commission will need to employ in conducting its 

work. Essential to any investigation, in my view, will be the ability 

of the commission to compel cooperation. Compulsory process is essential; it was vital to the success of the 9/11 Commission, and its 

lack can be a real handicap. So at a minimum the commission 

should be given subpoena power. 

A trickier problem is whether the commission should be allowed 

to confer immunity in order to obtain testimony from witnesses 

who might otherwise assert their Fifth Amendment privilege 

14 

against self-incrimination. Given the extremely fact-sensitive nature of this inquiry, where individual exposure may be an issue in 

every case of alleged abuse, some form of limited immunity may be 

essential. The issue must be handled with care, however, as the 

grant of even limited testimonial immunity may jeopardize a current or future prosecution. That is a potential tradeoff that must 

be considered by the Committee in forming the commission. 

Finally, with respect to the product, the enabling legislation 

should also set forth the expected end product of the investigation. 

The 9/11 Commission was given a broad charge to investigate the 

facts and circumstances surrounding the attacks, but also to formulate recommendations based on those findings. In my view, such a 

broad mandate would be appropriate to the detention context we 

are talking about. I believe that the commission should be charged 

simply with writing a report setting forth the facts and circumstances surrounding the practices and policies relating to detentions carried out in the war on terror. Although the commission 

would be completely separate from any criminal investigation, it 

should have the power to refer appropriate cases, if it finds them, 

to the Justice Department for potential prosecution. To the extent 

possible, the report should be a strictly fact-based narrative, and 

the report should state the evidentiary bases for the factual conclusions it reaches to the extent consistent with national security interests. 

Once the facts are known, legislators and policymakers can debate the broader implications of these facts and move forward with 

a clear understanding of where we have been and what we have 

done. 

I look forward to answering any questions you may have and to 

working with you to address these difficult issues in the future. 

Thank you. 

[The prepared statement of Mr. Farmer appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Mr. Farmer. 

Frederick Schwarz, Professor Schwarz, is Chief Counsel at the 

Brennan Center for Justice at the New York University Law 

School. In his legal career, he has combined a high level of private 

practice at Cravath, Swaine & Moore, with a series of critically important public service assignments. Mr. Schwarz served as Chief 

Counsel of the Church Committee. That is about the time when I 

came to the Senate and, I think, when we first met. He has also 

served as Chief Counsel to the Senate Select Committee on Intelligence. He chairs the board of the Vera Institute of Justice, recently received the Gold Medal Award for Distinguished Service in 

the Law from the New York State Bar Association. He received an 

A.B. magna cum laude from Harvard University, his law degree 

from Harvard Law School, where he was editor of the Law Review. 

Professor Schwarz, it is always good to see you here. Please go 

ahead, sir. 

STATEMENT OF FREDERICK A. O. SCHWARZ, JR., CHIEF COUNSEL, BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK 

Mr. SCHWARZ. That was quite a few years ago when we first met. 

15 

Chairman LEAHY. It was. I actually had hair back then, and it 

was a little bit darker. 

[Laughter.] 

Mr. SCHWARZ. And I had solid black hair back then, too. Thank 

you for convening this hearing. Thank you for your proposal for the 

commission, which I support. 

How wisely to handle counterterrorism is an ongoing issue for 

our Nation’s future. How to handle counterterrorism is too important to sweep the past under the rug. The public, and not merely 

insiders, need to understand what has happened. Those who do not 

understand errors of the past are condemned to repeat them, and 

surely will. 

We all want to move forward wisely, but it is not possible wisely 

to move forward unless we fully understand what we have done. 

The first step must be to know all the facts. Beyond basic facts, 

we need to know: how were decisions made; who was consulted and 

who was not consulted. We also need to know beyond the basic 

facts what were the consequences of our actions. And we need to 

know beyond the basic facts what are the root causes of having 

gone down a path that was inconsistent with our values and seems 

to have broken the law. I would put excessive governmental secrecy 

and limited oversight as among the most important root causes. 

I personally believe and have testified before that our descent 

into tactics like torture abandoned the rule of law and undermined 

American values and that doing so made us less safe. That thesis 

needs to be tested, for if it is true, it is surely important to our 

country and its public, as we consider what to do when there is another terrorist attack in this country, as there surely will be—hopefully not as horrible as the one before. But we surely will get it, 

and we have to make sure that the next time we do not make mistakes of the sort that seem to have been made in the prior years. 

Now, the benefits of a nonpartisan commission of inquiry which 

you have proposed go far beyond understanding the facts. Such a 

commission can help bring all Americans together, because, after 

all, issues like belief in the rule of law, issues like understanding 

and appreciating the basic American values do not divide the parties in this country. So a commission that proceeds fairly and is 

nonpartisan actually can help to bring our country together. 

And, second, a commission that investigates the facts, puts forward a report that tells the country and tells the world what has 

happened, admits to mistakes when we have made mistakes, 

praises things that we did well when we did them well, that commission and its hearing and its report can help restore America’s 

reputation in the world and, thus, increase our strength and, thus, 

make us more safe. 

The bottom line is we owe it to ourselves and to our country to 

learn the facts about our Government’s counterterrorism policies. 

We know that abuses may have occurred and that the perception 

of these abuses has undermined our standing in the world and our 

fight for the hearts and minds of those who could be persuaded to 

do us harm. We must not flinch from learning the truth. That is 

the only way to stay true to our principles, to correct our course, 

and to restore our moral standing in the eyes of the world. That 

in turn will make us safer and stronger. For as has been true 

16 

throughout our more than 200 years of history, America is at its 

best when we confront our mistakes and resolve not to repeat 

them. If we do not confront our mistakes, we will decline. But if 

we do—as this commission can help us do—our future will be worthy of the best of our past. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Schwarz appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very, very much, Mr. Schwarz. 

Our next witness is David Rivkin. He is a partner at Baker & 

Hostetler. Mr. Rivkin served in the Department of Justice and the 

White House during the Reagan and George H.W. Bush administrations. He has practiced in the area of public and international 

law. He is experienced in international arbitration, policy advocacy, 

and a wide range of issues. He has testified before this Committee 

before. He is a member of the Council on Foreign Relations. He has 

published numerous papers and articles on a variety of legal, foreign policy, and other issues. He received his law degree from Columbia University School of Law, his M.A. in Soviet Affairs from 

Georgetown University. He has written op-ed pieces saying why my 

idea is terrible. 

So, Mr. Rivkin, welcome. 

[Laughter.] 

STATEMENT OF DAVID B. RIVKIN, JR., BAKER & HOSTETLER, 

LLP, WASHINGTON, D.C. 

Mr. RIVKIN. Mr. Chairman, members of the Committee, thank 

you very much. I would not use the word ‘‘terrible,’’ of course. I 

would be much more judicious. But I am pleased to appear before 

you and testify as part of a distinguished panel. I do believe, however, that a commission of whatever variety to investigate the Bush 

administration activities and its officials is a profoundly bad idea, 

a dangerous idea, both for policy but, even more importantly to me 

as a lawyer, for legal and constitutional reasons. 

Now, there is nothing wrong, of course, with creating ‘‘blue ribbon’’ commissions, provided they exercise constitutionally-appropriate responsibilities. And on its face, the proposed commission to 

investigate the Bush administration appears advisory and geared 

toward policy review. In my view, however, many of its advocates 

express much more. 

In this regard, I am somewhat discouraged by the ongoing discourse about the intent and purpose of this commission. Far from 

seeking to establish a body to make recommendations on policy, as 

was the case, for example, with the 9/11 Commission, most commission supporters clearly want to establish a body that would engage in what would in essence be the criminal investigation of the 

former Bush administration. Their desire to target a relatively 

small number of the former Bush administration’s most senior lawyers and policymakers is not concealed. The fact that the subject 

matter areas which the commission would investigate—among 

them are the interrogation and handling of captured enemy combatants and some people all suggest the gathering of electronic intelligence—are heavily regulated by comprehensive Federal criminal statutes ensures that the commission’s activities would ineviVerDate Nov 24 2008 11:14 Dec 31, 2009 Jkt 054049 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54049.TXT SJUD1 PsN: CMORC
17 

tably involve areas that are traditionally the responsibility of the 

Department of Justice. Congress, of course, can also constitutionally properly delve into these matters as a part of its oversight 

and legislative activities. The proposed commission, I submit to 

you, cannot. 

Let’s recall that the power to investigate and bring criminal 

charges against individuals is the Government’s most formidable 

domestic power. As such, it is heavily circumscribed by the Constitution and Federal statutes. In my view, any effort to outsource 

any aspects of this power to entities operating outside of the structure of Government established by our Constitution is extremely 

troubling and must be strongly resisted by all who are concerned 

with protecting the Constitution’s fabric. 

The very decision to initiate what amounts to a criminal investigation, whether or not it is formally designated as such, is too 

weighty to be outsourced to commissions operating outside of the 

constitutionally prescribed tripartite framework of our National 

Government. In this regard, I would like to remind the Committee 

of the strident criticism which attended the alleged loosening, by 

the FBI during the Bush administration, of the threshold determinations that had to be made before national security investigations were commenced. I also vividly recall the indignation which 

attended the claims that the Bush administration’s Justice Department may have been seeking to investigate Democrat-leaning 

groups and elected Democrat officials at the Federal and State 

level for election fraud and other alleged election offenses. In all 

candor, I fail to see why having Congress task a group of private 

citizens to investigate former Bush administration officials does not 

implicate exactly the same, if not far greater, civil liberty concerns. 

The fact that a number of people targeted for investigation is quite 

small potentially makes the commission’s threat to civil liberties all 

the more acute. 

Let’s also reflect briefly on how the proposed commission might 

operate. In order to compel people to testify, such a commission 

would have to possess subpoena power, which it, presumably, 

would have to go to court to enforce in particular cases. Given the 

vague nature of the commission’s responsibilities, as well as its 

blending of law enforcement and policy investigations, I find it difficult to imagine how the Federal judiciary would meaningfully police such subpoena requests. 

There is also the question of how to balance the constitutionally 

protected interests of the commission’s targets, for example, their 

Fifth Amendment protection against self-incrimination, with its desire to get information. I am not clear, by the way, how an entity 

that is neither executive nor legislative could grant immunity all 

on its own such that it would be respected in the future by Federal 

and even State law enforcement officials. 

To the extent that grants of immunity, including the specific parameters of the immunized testimony, would have to be approved 

by the executive branch, here again I am troubled by the difficulty 

of coming up with a mechanism for meaningful review, as distinct 

from a rubber stamp. 

And then there is the question of how the commission would protect the privacy interests of its targets. The commission would go 

18 

about quite publicly what are essentially law enforcement investigatory functions, which are typically held (despite some inevitable 

and unfortunate leaks) confidential by the Department of Justice, 

in a non-public manner. 

Now, even setting aside the constitutional concerns—and there 

are several more—raised by charging a commission with the discharge of what are really law enforcement responsibilities, there is 

another large problem that looms, in my view. It is important to 

recognize that the commission’s most deleterious and dangerous 

impact would be to greatly increase the likelihood of former senior 

U.S. Government officials being tried overseas, whether in courts 

of foreign nations or before international tribunals. And the reason 

for it is because the matters to be investigated by the commission 

implicate not only U.S. criminal statutes but also international 

law, and which are arguably subject to claims of ‘‘universal jurisdiction’’ by foreign states. I have no doubt that foreign prosecutors 

would eagerly seize upon a supposedly ‘‘advisory’’ determination 

that criminal conduct occurred, especially if it is the only ‘‘authoritative’’ statement on the subject by an official U.S. body as a pretext to commence investigations and bring charges against former 

Government officials. If they were clever—and most of them are— 

they would argue that the mere fact that the commission was established vividly demonstrates that grave crimes must have occurred and interpret the U.S.’ non-prosecution of the individuals 

concerned through formal prosecutorial channels as a mere technicality to be repaired by their own broad assertions of jurisdiction. 

Indeed, in my view, all of these circumstances appear to be tailor-made to support the invocation of universal jurisdiction by foreign judicial bodies as the basis to launch prosecutions of Bush administration officials. 

Let me close by pointing out a great and perhaps unintended 

irony. Much of the anger about the Bush administration’s war on 

terror policies has been focused on its treatment of captured alien 

enemy combatants and especially its rendition policy. It would be 

rather sad, in my view, that in an effort to ‘‘investigate’’ these matters, the proponents of a commission pay no heed to the civil liberties of Americans and are perfectly happy to outsource law enforcement functions to private entities, and are even willing to 

practice a soft form of rendition, and virtually inviting foreign 

courts to go after American citizens. I would respectfully suggest 

that this is a very bad way to proceed. 

Thank you. 

[The prepared statement of Mr. Rivkin appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much, Mr. Rivkin. 

Jeremy Rabkin is a professor of law at George Mason University 

School of Law. Prior to that, he was a professor at Cornell. He is 

an international law scholar. He was recently confirmed as a member of the Board of Directors for the United States Institute of 

Peace. Professor Rabkin has written numerous chapters and book 

articles in academic journals and essays. Professor Rabkin teaches 

courses on both constitutional and international law as a Ph.D. 

from the Department of Government at Harvard. He graduated 

summa cum laude from Cornell University. 

19 

Mr. Rabkin, Professor Rabkin, welcome, and go ahead. Press that 

little red button. There you go. 

STATEMENT OF JEREMY A. RABKIN, PROFESSOR OF LAW, 

GEORGE MASON UNIVERSITY SCHOOL OF LAW, ARLINGTON, 

VIRGINIA 

Mr. RABKIN. Thank you. I also will try to avoid simply repeating 

what was in my written statement and take advantage of being the 

last speaker here. 

Chairman LEAHY. The whole statement will be made part of the 

record, of course, and also the transcript will stay open after the 

hearing is over, and if you see things you wish to add to it, we are 

not playing ‘‘gotcha’’ here. We want to learn from this, and it will 

be kept open for that. 

Mr. RABKIN. Thank you. 

I want to start by talking about the context of this which I think 

nobody has mentioned and it is rather important. Last summer, 

the first time I met Mr. Schwarz, there was a hearing of the House 

Judiciary Committee which was called a ‘‘pre-impeachment hearing,’’ and there were a lot of serious people, including some Members of Congress, who said even in the last months of the Bush administration, ‘‘even though Bush will be leaving office soon anyway, 

we have to have an impeachment because what the Bush administration did was not just regrettable, deplorable, mistaken, but high 

crimes and misdemeanors.’’ A lot of people are still revved up with 

indignation. Just go on the Internet. We can find this in published 

columns, too. People say the Bush administration was ‘‘guilty of 

war crimes,’’ they are in the same category as ‘‘notorious war criminals of foreign countries.’’ 

Now, I think that is just wildly exaggerated and really inappropriate, but a lot of people feel that way. If you say we are going 

to have a truth commission, people immediately think, ‘‘Oh, yes, 

that is what is done with war criminals when you cannot prosecute 

them.’’ So that is the first point I want to get everyone to focus on. 

I do not think it is sufficient for Senator Leahy or Senator Feingold to say, ‘‘Well, I view it in a more moderate way.’’ I think this 

will be taken as ratifying the backroom view that, yes, these were 

extraordinary crimes—— 

Chairman LEAHY. Without disagreeing with you, I have had 

something like 65,000 e-mails. I have yet to have one single e-mail 

suggest that we are doing this as a war criminal thing. I am not 

suggesting you are putting up a straw man here, but please feel 

free to—— 

Mr. RABKIN. Could I just say we seem to have different e-mail 

lists? When I said at that hearing last summer, ‘‘Come on now, let’s 

not be crazy,’’ I got not 60,000 but hundreds of people saying, ‘‘I 

saw you on C–SPAN, and I am not crazy, and he is a war criminal 

and he should be tried.’’ A lot of people feel very vehemently about 

this. 

If you say ‘‘truth commission,’’ people immediately think about 

these famous—the Truth and Reconciliation Commission in South 

Africa, the Commission on Truth and Reconciliation in Chile. We 

are not in remotely that situation. In those countries, they had to 

have these commissions because they could not have prosecutions, 

20 

and they could not have prosecutions because the countries were 

so deeply divided and they had made promises in order to secure 

a peaceful transition. Peace was really in doubt in those countries, 

so they had to back off of prosecution and say, ‘‘Well, we will have 

a truth commission instead.’’ We are not in that situation. If people 

think that there should be prosecutions, well, then, there can be 

prosecutions. 

I want also to just focus attention on this. The experience of 

those truth commissions in other countries, they had some success—I think they had considerable success in focusing on narrow 

factual questions. One of the really important achievements of the 

Chilean truth commission was just to get an accounting. A lot of 

people had disappeared. What happened to them? And they were 

able to come up with a list. And they were also able to establish 

a number which got to be generally accepted, about 2,000 victims 

of political killings. That was very helpful to come up with a number, names, some information about them. 

I do not think that is at all what we are talking about here. I 

heard Mr. Schwarz say—and I am talking about Mr. Schwarz because I think he is very thoughtful. Mr. Schwarz said it is not 

enough to get the facts. We also have to know the root causes, and 

we also have to test the theory that this has made us less safe. We 

should all think about what that involves. 

To say that we have been made less safe is to make an assessment which we are going to put out through the country as authoritative that, let’s say, ‘‘The world reacted to our torture and that 

made us less safe, and that is not offset by information which we 

gained.’’ How could a commission determine this? And why would 

people accept that because the commissioners said it, it was true? 

And if you can do it for debates about Bush policy in regard to detention, why not for every act of every Presidential administration? 

Secretary Clinton is now going to talk to Iranian representatives, 

is what I hear, and she is talking to people in the Government of 

Syria. Is that making us safer or less safe? Maybe it is making us 

less safe because it is implying weakness. Why don’t we have an 

independent commission to assess that? I do not think that is silly, 

but I think it is really a bad idea, and I think we are going down 

this road now of saying if there is enough controversy and it is sufficiently intense controversy, we have an outside commission which 

purports to tell us authoritatively what it all means and what were 

the causes and what were the consequences. And we cannot do 

that. That is not a substitute for people making political arguments 

which can be responded to politically. 

I want to say just briefly in conclusion, I share many of the concerns of my colleague and friend here, David Rivkin. If we go into 

this with the notion that this is a substitute for criminal trials, you 

are authorizing this commission to paint particular individuals in 

the Government as if they had somehow done something analogous 

to war crimes, something which undermines our values as Americans, something which threatens our identity as Americans, as was 

said. 

This is a pretty serious charge. Do these people get to defend 

themselves? I mean, I am sure they get to show up, but none of 

this would be tested before an ordinary criminal process. You will 

21 

have some people, maybe well-meaning people, write a report saying, ‘‘I think what John Yoo did has undermined our safety.’’ And 

I just think we should not be authorizing people to make categorical judgments like that on behalf of the American people where 

you are naming names and shaming people, and they do not get 

a chance to defend themselves before a jury. That is not, I do not 

think, a category that we should bring into our country. That is 

something they had to do in totally traumatized countries which 

could not have criminal process, and we are not in that situation. 

Thank you. 

[The prepared statement of Mr. Rabkin appears as a submission 

for the record.] 

Chairman LEAHY. Thank you. I appreciate your testimony, but I 

must say, as I have said before—and you will have plenty of time 

to respond—that most haylofts I have been to in Vermont could not 

make the number of straw men that you and Mr. Rivkin have 

brought up. But we will—I know Senator Cornyn wants to ask you 

questions, and what I am going to do is begin, and you will be 

given plenty of time to respond to that. But I hear your talking 

about hearings that apparently you were at, I was not at, and they 

were not the hearings we are holding here. 

Ambassador Pickering is going to have to leave. I wanted to ask 

him first: During your tenure—and I will make absolutely sure, 

Mr. Rabkin, you have plenty of time to respond on that. 

Ambassador Pickering, 45 years as Foreign Service officer, all 

over the world, you have negotiated with other countries. You have 

worked to implement American foreign policy. What impact do you 

think the Bush administration detainee policies had on our foreign 

policy and on our national security? 

Ambassador PICKERING. Thank you, Mr. Chairman. I have 

thought a lot about it. As you can see in my prepared testimony, 

I listed a number of results of that. I think it is hard to contest 

the view that public opinion about the United States, not just in 

the Muslim and Islamic world but around the world, has fallen to 

a new low. I do not have the polling data in front of me, but I think 

we are all familiar with the polling data. And it is not just one poll; 

it is numerous polls. 

I think the second point to make and drive home is that this, in 

my view, provided a sense of ire, a sense of disturbance, a sense 

of deep concern among many people who began by not liking the 

United States, and so it heightened that. Whether that resulted in 

recruitment of new people to al Qaeda, to the Taliban, to other organizations that are in arms against the United States is hard for 

me to tell in a specific sense, but I think it is not totally irrelevant 

to that point; that, indeed, individuals who were—and we have 

seen many anecdotal histories of this. Parts of the Abu Ghraib tape 

and pictures were, I think, deeply offensive-offended because of the 

cultural insensitivity, offended because of the use of force, offended 

because of all aspects of the treatment. 

So it is, in my view, a serious and real and major point that this 

certainly contributed to extreme anti-Americanism and probably 

was one of those things that helped recruit people to take up arms 

and to act violently against the United States. 

22 

Chairman LEAHY. If the United States is seen as doing an open 

and honest review of what happened, setting up policies if we find 

that we did not follow our own laws and our own policies, to make 

it very clear mistakes would not be made in the future, does that 

help or hurt us around the world? 

Ambassador PICKERING. I do not know that we are going to convince the most extreme people oriented against us merely because 

we have done this. But I think a lot of people who are sitting on 

the fence who have admired the United States over the years, who 

were deeply disturbed by what they saw the United States was 

doing, which was so seemingly out of character with our background, our past leadership, and our principles, would certainly be, 

I think, moved. 

As I said in my statement, great countries do not often go into 

deep introspection about their problems and the difficulties and, indeed, then move to cure them. But, in my view, that is the essence 

of rational action, and it is the essence, Mr. Chairman, I think, of 

what Admiral Gunn said about how the Navy behaves under difficult circumstances. I spent some time in the Navy as well. I admire people who are prepared to look carefully at their mistakes 

and to rectify them, and I suspect that that is a widely held belief 

around the world, and I suspect that people expect nothing less of 

the United States. 

Chairman LEAHY. We actually saw something interesting in the 

news this morning about a tragic plane crash out on the West 

Coast of marines and the review that was made of the mistakes 

that occurred there. 

Mr. Farmer, I get the impression from your testimony, when you 

spoke of al-Qahtani, the man who has been referred to as ‘‘the 20th 

hijacker’’ and the fact that he could not be prosecuted because of 

the national security policies of the last administration, I got the 

impression that that was the turning point for you. If so, what do 

you believe would be the benefit of a review such as what I have 

suggested in this inquiry? 

Mr. FARMER. Well, as I said in my testimony, the fact that the 

tactics that we have employed are now making it difficult to deal 

with the 9/11 conspiracy itself to me simply raises the question of, 

you know, how did we get here; what was done specifically by 

whom, to whom, on what justification. And as I said, as a former 

head of a major State department, I appreciate the need to move 

forward and the disruption that investigation may cause. But, in 

my judgment, a serious compromise of our ability to deal with the 

9/11 conspiracy itself elevates the detention issue to the point that 

an independent investigation is warranted. 

Chairman LEAHY. Thank you. My time is up. I will come back 

with further questions. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. 

Mr. Chairman, I would ask unanimous consent to introduce several op-eds and letters in opposition into the record. The authors 

are James Woolsey, William Webster, Michael Hayden, John 

Deutsch, James Schlesinger—all former Directors of the CIA. 

Chairman LEAHY. Thank you, and I will also introduce—actually, 

we will keep the record open for this because, of course, there are 

23 

equally impressive people who take an opposite view, and those letters will also be placed in the record. But both pro and con, the 

record will stay open for 24 hours for any such letters. 

Senator CORNYN. Mr. Chairman, I thank you for having this 

hearing. I am on record as saying that the idea of creating an independent—and I am not sure how independent it would actually 

be—unaccountable truth commission is a bad idea, with all due respect. And the suggestion that this subject can be delved into somehow in a nonpartisan fashion to me asks us to suspend our power 

of disbelief, those who have worked here over the last 6 years, in 

my case, and ignore the fact that we have already had 150 oversight hearings on these subjects, we have logged more than 320 

hours of witness testimony in unclassified settings, transcribed 

more than 3,200 pages of witness testimony, and printed more than 

17,000 pages of unclassified, publicly available reports. And to me 

the idea that this so-called truth commission would somehow resolve the good-faith disagreements that I think many of us have 

had and that have divided the country over this subject is, I think, 

just asking us to believe in the tooth fairy, that somehow this is 

going to settle the score. 

Let me just give you one example. In a statement accompanying 

the Senate Armed Services Committee’s release of the December 

2008 report on terrorist detainee treatment, the Levin report, 

Chairman Levin noted that, ‘‘In the course of its more than 18- 

month-long investigation, the Committee reviewed hundreds of 

thousands of documents and conducted extensive interviews with 

more than 70 individuals.’’ The unclassified Executive Summary of 

the Levin report totals 19 pages and includes the same number of 

conclusions. 

I disagree with those conclusions, but I certainly do not believe 

a truth commission is necessary to somehow arbitrate the differences between me and the Levin report. 

So I think, with all due respect, again, I think seeking this commission is, in fact, an indictment of congressional oversight responsibilities—not that I think Congress has failed, because we have, 

as I indicated, extensively inquired into these matters. Congress 

has legislated, with the Detainee Act, with the Military Commissions Act, in response to Supreme Court opinions and otherwise. 

And so I am just not willing to join in the acknowledgment of failure of Congress performing its vigorous oversight responsibilities, 

which I think creation of such a commission would amount to. 

Mr. Schwarz, I recently re-read Jack Goldsmith’s book, ‘‘The Terror Presidency,’’ and in there he said that the Church and Pike investigations of the 1970s and the Iran-contra scandal in the 1980’s 

taught the intelligence community to worry about what the 1996 

Council on Foreign Relations study decried as ‘‘retroactive discipline,’’ the idea that no matter how much political and legal support an intelligence operative gets before engaging in aggressive actions that he or she will be punished after the fact by a different 

set of rules created in a different political environment. 

Are you concerned about the possibility of this retroactive discipline and the unfairness of changing the rules of the road after 

the fact and its impact on our intelligence officials who may be perVerDate Nov 24 2008 11:14 Dec 31, 2009 Jkt 054049 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54049.TXT SJUD1 PsN: CMORC
24 

suaded that maybe more passivity is to be embraced as opposed to 

aggressive gathering of actual intelligence? 

Mr. SCHWARZ. I do not personally believe that CIA operatives 

ought to be accused or brought before a criminal court. I think they 

acted in good faith because they had legal opinions which said 

what they were doing was OK, and because their bosses high up 

in the Government told them to do what they did. 

Now, turning to the actual record of the Church Committee, the 

Director of the CIA said that what we had done by bringing the 

intelligence services into the realm of the law, instead of being outside of the realm of the law, helped the intelligence services, and 

the General Counsel of the CIA, the famous General Counsel Lawrence Houston, said that the conduct of Congress before the Church 

Committee in turning a blind eye to what was going on actually 

harmed the intelligence services. 

Moreover, the Church Committee in its recommendations way 

back in 1976 said this country should start paying more attention 

to terrorism. Way ahead of its time. 

So the people who said the Senate investigation had anything to 

do with injuring as opposed to strengthening our intelligence services were flat wrong. 

Senator CORNYN. Well, you disagree with them. 

Mr. SCHWARZ. No. They were wrong. I mean, the—I will give you 

one—— 

Senator CORNYN. Well, do not—excuse me, Mr. Schwarz. So you 

disagree with Mr. Goldsmith’s statement that the Church and Pike 

investigations resulted in what the Council on Foreign Relations 

study in 1996 called ‘‘retroactive discipline.’’ You disagree with 

that. 

Mr. SCHWARZ. The Pike investigation was not handled as well as 

the Church investigation, and the—— 

Senator CORNYN. Well, would you answer my question? Do you 

disagree—— 

Mr. SCHWARZ. Of course, I disagree with that. 

Senator CORNYN. Okay. I appreciate that you disagree, but—— 

Chairman LEAHY. Senator Cornyn—— 

Senator CORNYN.—to say that it was flat wrong is a statement 

of your opinion and not necessarily fact. 

Chairman LEAHY. Senator Cornyn, I do not mean to cut you off, 

but I kept to the 5 minutes myself. I let you go over time. But just 

simply because we want to finish so Ambassador Pickering can 

leave, and I wanted to have Senator Whitehouse, who has been 

here through the whole hearing, have a chance. Certainly I will go 

back to you if you have further questions. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

First of all, let me thank you for your leadership in holding this 

hearing. There are very, very important questions that have been 

raised and discussed here today, and you have assembled an extremely distinguished panel of witnesses here to help us consider 

them. I appreciate it very much. 

As the son and grandson of Foreign Service officers, I have some 

idea of what a Career Ambassador is, and so, Ambassador Pickering, first let me thank you for your extremely distinguished service to our Nation over many years, both in the military and in our 

25 

Foreign Service. I would like to ask you first, because I know you 

have obligations elsewhere—and anybody else can chime in if they 

wish—the following question. 

We do not know yet what was done, and there has been considerable sentiment expressed by several of the witnesses here that it 

is in our interest for a whole variety of reasons—because it helps 

define who we are as a Nation, because it rebuilds our credibility 

and our relationships abroad, because it is a return to the rule of 

law, and so forth; that it is distinctly in the public interest for this 

information to come out. 

Let me ask you if you think there is a point where the conduct 

in question was so abhorrent to decent and civilized people in 

America and around the world that at that point the public interest 

that you have described reverses itself. And at some point if it is 

awful enough, does it become in our public interest as a Nation to 

try to keep this swept under the rug or, to use Mr. Schwarz’s 

phrase that ‘‘we must not flinch,’’ must we not flinch irrespective 

of how painful this view will be for our country? Ambassador Pickering? 

Ambassador PICKERING. Thank you, Senator Whitehouse. Thank 

you for your kind comments, and I had the privilege and honor of 

working with your father. 

My answer to your question is a very simple no. I do not believe 

that any degree of abhorrence, any degree of violation of values, 

principles, trust, laws, should be swept under the rug because it is 

so devastating for the reputation of the United States that it must 

be kept secret. In fact, the laws on secrecy do not provide for that 

in the first place. 

Second, it does not, in my view, hold water to believe that anything quite so notorious will ever remain secret in this town or in 

this country or in this world. 

And, third, if indeed it took place and was of such character as 

to put it into that category, then it is the duty and, indeed, the requirement of all branches of the U.S. Government to do everything 

in their power to make sure that it never happens again, which is 

the major purpose for the commission that I support and the major 

purpose for my being here to try to support that type of commission. 

Senator WHITEHOUSE. Thank you, Ambassador Pickering. 

Attorney General Farmer, you and I were Attorneys General together. I am delighted to see you here with us, and I appreciate 

very much your distinguished career of public service. 

The issue that a commission is going to face, as a former prosecutor—and the Chairman is a former prosecutor, Senator Cornyn 

was Attorney General with all of us also. It is sort of a little reunion here today. There are obviously some hindrances to a prosecution based on this conduct. Reliance on the legal opinions of the 

OLC is one. Some sort of theory of equitable estoppel might be another. What reliance did to intent might be another. But in each 

of those areas, they are of limited protection. 

For instance, a mobster cannot paper over a racketeering conspiracy with his mob lawyer saying this is a legitimate business 

and make the risk of prosecution go away. The doctrine of equitable estoppel is disfavored against the Federal Government, alVerDate Nov 24 2008 11:14 Dec 31, 2009 Jkt 054049 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54049.TXT SJUD1 PsN: CMORC
26 

most never applied, ‘‘rigid and sparing’’ I think is the phrase used 

about when its application is permitted. And intent obviously, as 

we all know, is a question of fact, which is determined by the ultimate fact finder. So immunity is going to become a significant 

question, I think, in this. 

Should we try to build into—assuming that the commission 

should have some immunity—and I think most of the witnesses 

agree, if they think there should be such a one, that it should have 

power to grant immunity. How should the relationship between the 

commission and prosecutors be described in any legislation that 

might establish such a committee? Should they be required to coordinate with the Department of Justice? Should they be required 

to obtain the sign-off from the Attorney General before they grant 

immunity? 

You wanted to kind of steer clear of an active prosecution, not 

just on the question of immunity but on the question of not trampling the prosecutive strategy of the Department of Justice. How 

would you work that? 

Mr. FARMER. I think the issue of immunity is one that will be 

driven by the previous issue, which is what is the scope of the investigation going to be. And I think that is really, I think, the 

toughest issue that the Committee has to address. If the mission 

is drawn too broadly—and I would argue if it is drawn so broadly 

that it captures issues such as did these tactics make us less safe, 

as opposed to simply finding what the facts are, I think the commission will lose credibility because you will end up having to 

prove a negative. 

But assuming that the mission and the scope of the mission as 

defined by the Committee does have the commission focusing on individual cases, it seems to me that immunity is going to be an 

issue that has to be dealt with, and my suggestion would be that 

some form of coordination with the Justice Department would be 

appropriate. What the specifics of that coordination would be would 

depend, again, on how the scope of the commission’s job is defined. 

Chairman LEAHY. Thank you. 

Ambassador Pickering, I want to keep to our commitment and 

please feel free to leave, sir. 

Ambassador PICKERING. Thank you. 

Chairman LEAHY. On the immunity, Mr. Schwarz, to follow up 

a little bit on the question you were asked before, you noted in your 

testimony the Church Committee had the authority to grant immunity, but uncovered a great deal of illegal activity without ever exercising that authority. Am I sort of stating your testimony correctly? 

Mr. SCHWARZ. Yes, you are. We had hundreds of witnesses. Many 

of them admitted to acts that could have led to prosecution. Nobody 

asked for immunity. We had one witness who would only testify 

with a bag over his face because he had been an informer and did 

not want to—— 

Chairman LEAHY. I remember that one. 

Mr. SCHWARZ. Yes. But nobody asked for immunity, and I do not 

know quite why. I think high-level people do not want to, and lowlevel people, I think they understand they are not going to be prosecuted. And, frankly, I think it might be in the public interest for 

27 

the Justice Department pretty quickly to come to a conclusion now 

about low-level people. 

I personally—again, I want to say what I said to Senator Cornyn. 

I do not think we should think about prosecuting CIA agents. I 

think that is going to turn out to be inappropriate, and if it were 

taken off the table early, that would be a good thing, too. 

Chairman LEAHY. What I have found in some of the investigations that have taken place in the past, boy, we are going to get 

those corporals and sergeants, but we do not go above. And I really 

am always worried that in such an investigation there is an effort 

to go after what are really the minor players. And I think the Justice Department—I know they are working on just the issue you 

raise. And I am more concerned about those who made the decisions or the policies to basically say if the White House gives a directive to break the law, you are not breaking the law. From a 

prosecutor’s point of view, it is awfully hard to say how you go 

after the person who then broke the law. But I would like to know 

why we had people who felt that somehow a President could be 

above the law. 

We saw what happened when a former President years ago, prior 

to my being in the Senate, said if the President does it, it is not 

breaking the law, and the reaction of this country by both Republicans and Democrats against such a thing, and the statement of 

any of us, including the three of us on the other side of this table, 

know, having been prosecutors, we do not have any provisions in 

our Constitution that puts some people, elected or otherwise, above 

the law. None of us are. 

Admiral Gunn, I discussed the damage to America’s laws and 

values and to this country’s image abroad. You have expressed 

similar sentiments, but you have a different perspective. You are 

a long-time military officer. You commanded ships. You were in the 

field. You were in combat. You led large numbers of military men 

and women. But you were also the Inspector General, so you have 

kind of seen it from all angles in the military. 

Based on your experience and expertise, what do you believe has 

been the effect of the past administration’s justification of torture 

and other abusive treatment on this country’s strategic and national security interests? 

Admiral GUNN. I would have to refrain from spreading my experience too broadly in my answer to this, but—— 

Chairman LEAHY. Well, let’s put it this way: on the military morale and the safety of our military men and women. That stays well 

within your frame of reference. What about there? 

Admiral GUNN. Yes, sir, and I think the effect there has been 

profound. We have depended over the years on important alliances, 

military relationships, for decades. In my personal experience, 

members of the United States military have invested their own 

time and credibility and building relationships around the world 

with the militaries of other countries. I was thinking, as you were 

asking the question, about the relationship that I established while 

I was on active duty as a consequence of having certain jobs with 

the naval attaches who represent countries around the world of 

great importance to the United States, allies and friends. And 

when those attaches return to their home countries, there are no 

28 

more solid advocates of American military positions and there are 

no better fans of American values and how those are translated 

into the way we do business than those people are who go back to 

responsible positions in their governments. 

I cannot think of a one with whom I have stayed in contact who 

has not told me over the last 6 or 7 years how difficult it is in his 

or her country to be a friend of America. And that, I think, sows 

the seeds of a serious problem that has to be overcome. 

In terms of the effect on the people at the point of capture, when 

detainees are taken, the folks who are charged in the high-pressure 

cauldron of dealing with detainees once they are within the custody 

of the United States, those kinds of high-pressure environments in 

which we ask young Americans to do their duty require, in my 

view—and I think in the view of most military officers—that there 

be this clear, unambiguous set of guidelines. 

What is more, young Americans do not join the military with the 

idea that they are going to be asked to violate their own principles 

and the principles of their country. And my personal view is that 

the things they were asked to do or allowed to do, whether they 

were in uniform, whether they were military people or who were 

in the CIA, violated their own principles in a way that has added 

dramatically to their stress and caused them to suffer many of the 

same kinds of consequences personally that people who have been 

involved in street combat have suffered under. 

Chairman LEAHY. My youngest son is a former marine, and we 

have talked about this at great length. And without putting him 

on the spot, he said exactly the same thing. It was drilled into 

him—a lot of things were drilled into him in his basic training, but 

that was one of the things—and, again, when he was preparing to 

be deployed for Desert Storm. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. 

Mr. Rivkin, Admiral Gunn suggests that when it comes to the 

product of a truth commission, that such a truth commission, its 

byproduct will actually improve cooperation between us and our allies when it comes to gathering and sharing intelligence and defeating a common enemy when it comes to Islamic extremism. Do 

you agree that such a commission would improve intelligence cooperation among allies? Or do you think it is more likely to make 

our foreign allies more skittish when it comes to these matters? 

Mr. RIVKIN. I think it is the latter. I do not see how going 

through another self-referential and self-absorbed exercise that 

would not lead to any kind of national consensus but basically 

would dwell at great length on our alleged sins would improve our 

relations with our allies and, by the way, we are all entitled to our 

opinions, but I fundamentally disagree with the narrative that has 

been portrayed here of the Bush administration’s alleged misdeeds. 

Yes, mistakes were made. Yes, some bad things happened. But 

compared with the historical baseline of past wars, the conduct of 

the United States in the last 8 years, Senator Cornyn, has been exemplary measured by any objective indicia of misdeeds, eg abuse 

of detainees per thousand captured, excessive use of force per thousand troops in the field, etc. So I do not see that at all. 

29 

But, again, to me—and I am taking the liberty of going beyond 

your question—it does not matter how you assess the projected policy benefits of a commission. If we take the Constitution seriously, 

if we take our political culture seriously, just like critics argue that 

there are some things you should not do in terms of torturing people, no matter what utilitarian benefits it may have, you do not 

outsource law enforcement; you do not warp the constitutional fabric. That is not the right thing to do. That is a fundamentally 

wrong thing to do. So to me, even if all sorts of huge policy benefits 

are going to flow from this truth commission, this is just not what 

we are supposed to do as a country. 

Senator CORNYN. Admiral Gunn, to give you a chance to respond, 

since I referred to your testimony, you said it is the responsibility 

of the Commander in Chief and of Congress to ensure and demand 

that the behavior of Americans toward those in custody complies 

with the Geneva Conventions and with the highest standards dictated by international conventions on detainee treatment. I hope 

you would agree with me that Congress has at least played some 

role in trying to deal with these subjects. For example, I mentioned 

the Detainee Treatment Act, which we passed and was signed by 

the President in 2005 in the wake of the Supreme Court’s decision 

in Hamdan v. Rumsfeld. Of course, we also passed the Military 

Commissions Act to create a tribunal where some of these detainees could actually be tried. 

I understand that people may agree or disagree with the wisdom 

of those individual pieces of legislation. But wouldn’t you agree 

with me that Congress has been very much involved in oversight 

into these issues? And I am just curious why it is you believe that 

it would now be necessary for Congress and the executive branch 

to, in effect, delegate our investigative function to an unaccountable 

so-called truth commission. 

Admiral GUNN. Yes, sir. Well, there are a number of questions 

there, and I certainly agree that Congress has been involved and 

has done things that have helped to ameliorate the situation. And 

in some cases, Congress has tried to do things that were—where 

the efforts were thwarted by the President. The 2005 amendment 

that Senator McCain advocated, and actually was the nucleus 

around which our group of retired flag and general officers organized in order to support him in that effort, was successful in Congress and not successful at the White House. 

Do not get me wrong when I talk about what I think the Government as a unit, both executive and the legislative branch, owe to 

the people in the field. The collective effect of what is done here 

must be that the people in the field understand their duty and 

their obligations entirely and do so in a context that allows them, 

when the utmost pressure is applied, to perform in ways that we 

are proud of and they are proud of. That has been missing in very 

important ways recently. 

To the issue of whether we should have a commission of a particular form or not, I am advocating not a special form because I 

have no informed legal opinion on the various approaches that 

might be used. I am advocating that would get to the bottom of 

things and that at the end of the day we establish what went 

wrong, and what is sort of missing in the conversation is that the 

30 

same inquiry could identify what went right. I mean, that is a feature of the kinds of inquiries and investigations that I referred to 

in my testimony and also as I spoke before. 

The military works very hard to understand what went well so 

that we can reinforce that, as well as what went wrong and how 

we can remedy that. And I suggest that maybe more emphasis on 

the commission’s ability to identify the good things might blunt 

some of the criticism and concern about its solely focusing on errors. 

Senator CORNYN. Thank you, Mr. Chairman. My time is up. 

Chairman LEAHY. Thank you, Senator. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Mr. Rivkin, you raise a sort of gallery of horribles of the things 

that might go wrong with such a commission. Let me ask you just 

to sort of narrow the point. If you assume that the purpose of this 

commission is advisory and policy only, if you assume that criminal 

law enforcement is properly cabinned then the executive branch, as 

it should be, if you assume that we set it up so that its coordination with law enforcement on issues like immunity is properly coordinated so that it does not intrude into that function, and if it 

is set up not as you suggest as a private entity but, rather, in the 

proper exercise of delegated congressional oversight authority, do 

you still oppose the commission even in the absence of the parade 

of horribles that you suggest? 

Mr. RIVKIN. Thank you for your question, Senator Whitehouse. 

With respect, this assumes too much, and let me unpack it. 

To me, a law enforcement function has a variety of aspects, as 

you well know. Having a situation where the ultimate decision to 

proceed with an indictment, bringing the case before a grand jury, 

and proceeding with a prosecution, is reserved to the Department 

of Justice, and I am sure that would be the case. This is still not 

a cure for the commission. 

Senator WHITEHOUSE. Nobody is suggesting otherwise. 

Mr. RIVKIN. Right, but to me that is not enough. I can give you 

at least several examples where other aspects of law enforcement 

function—namely, deciding as a threshold determination—which is 

why I mentioned the controversy about the alleged loosening of 

threshold determinations—whom to investigate, particularly if you 

are talking about a small group of easily—— 

Senator WHITEHOUSE. We do that in Congress every moment. 

Mr. RIVKIN. But you have the right, with all due respect, Senator, to do that in the exercise of your legislative and oversight 

function. The Constitution allows—— 

Senator WHITEHOUSE. And we usually have a right to delegate 

it. 

Mr. RIVKIN. No, I do not believe you do have this right. 

Senator WHITEHOUSE. You do not believe that the congressional 

oversight function is delegable? 

Mr. RIVKIN. I do not believe that the congressional oversight 

function is readily delegable—— 

Senator WHITEHOUSE. ‘‘Readily’’ is a big hedge. Do you believe it 

is delegable or not? 

31 

Mr. RIVKIN. To a private commission, I do not. You certainly can 

organize yourself—— 

Senator WHITEHOUSE. Well, now you have used another hedge 

word. You have said ‘‘a private commission.’’ That is not a word 

that I used. Assume that it is delegated to a public, properly appointed commission that is exercising delegated congressional authority. 

Mr. RIVKIN. Appointed in accordance with the Appointments 

Clause? That would make a huge difference. Appointed in a sense 

that you and members of the minority choose people and the President appoints some people, no. 

If you could configure a commission in a way that makes it an 

extension of an Article I branch, I would not have fundamental 

problems with it. I do not see how that is practicable or possible. 

And you can call it public, but I do not see how you can delegate 

your oversight responsibilities. 

But consider another question. If the real intent—and, again, I 

hate to sound trite, but if it talks like a duck and walks like a 

duck, whether it is called a policy exercise or not—even today we 

have heard several times from my colleagues on this panel about 

the need to come up with criminal prosecutions. What this commission does, basically, it comes up with a bunch of files, the kind of 

things that a Public Integrity Section, a National Security Section, 

the U.S. Attorney’s Office does, on 12 or 14 people and then passes 

the buck to the Department of Justice in the public spotlight. 

I would submit to you that this approval fundamentally subverts 

the most basic constitutional protections, and with respect, if this 

was contemplated in a different political context, every law professor I know would be screaming about it in terms of what a horrible violation of civil liberties it is. Okay? 

Moreover, this commission—— 

Senator WHITEHOUSE. Every law professor you know would be 

screaming about this? 

Mr. RIVKIN. Yes. If it was done in a context of a conservative—— 

Senator WHITEHOUSE. Oh, if. OK. I am sorry. 

Mr. RIVKIN. No. If it was done in a context of a conservative administration—— 

Senator WHITEHOUSE. I am trying to get an unhedged phrase out 

of you during the course of this. 

Mr. RIVKIN. I will give you an example. My colleague Professor 

Rabkin mentions in his prepared testimony, a hypothetical: the 

Bush administration, in the aftermath of the 9/11 disaster, suggesting a private commission to investigate certain organizations in 

this country, charitable and otherwise, to look at the nefarious influence and the extent to which they made this attack possible, 

with a view toward possible prosecutions through appropriate 

channels. Do you not think that most of the law faculties in this 

country would be up in arms about this? The fact that there are 

Bush administration officials here does not make any difference. 

They are Americans. They are entitled to the full panoply of constitutional rights. You do not get—and the fundamental point that 

I make about—— 

Senator WHITEHOUSE. So organized criticism of past administration officials is an offense against their civil liberties? 

32 

Mr. RIVKIN. Organized criticism in the policy context is not. 

Senator WHITEHOUSE. I thought that was another thing that you 

signed up for when you took these jobs. 

Mr. RIVKIN. Organized criticism in the context of looking at individual criminal culpability—— 

Senator WHITEHOUSE. No, no, no. No, no, no. There you go again. 

We just discussed that this would not be looking at individual culpability. My assumption at the very beginning of our discussion 

was that we had properly cabinned the criminal law enforcement 

role. 

Mr. RIVKIN. And I said, with respect, that that assumes too 

much. There is no way to cabin that. 

Senator WHITEHOUSE. Of course there is. 

Mr. RIVKIN. Pray tell how are you going to come up, if you are 

a member of this commission, with an analysis of—and I do not 

want to use names—how two or three members of the Bush administration allegedly violated, for example, a statute against torture, 

which is a criminal statute, as you very well know. How would you 

exactly write this up in a way that does not come to conclusions 

about individuals? Because if you say Mr. A committed torture— 

and, by the way, if you say it properly, not only in terms of the 

physical acts but also adequate mens rea—that reads like a document that an Assistant U.S. Attorney prepares to send to his boss 

to get a decision whether or not to prosecute. How else would you 

write it up? 

Senator WHITEHOUSE. Well, my time has expired, but I would 

suggest, Mr. Rivkin, that until you know and we all know what 

was actually done under the Bush administration, you not be so 

quick to throw other generations of Americans under the bus and 

assume that they did worse. 

Chairman LEAHY. Mr. Rabkin, I spoke to you earlier, and I said 

if you wanted to take a minute or so to add to anything I had to 

say, please feel free to do so. You were invited by the other side 

of the aisle, but they have all left. They have all left, and so this 

side of the aisle will give you a chance to say something further, 

if you want. 

Mr. RABKIN. Just very briefly, I think one difficulty that we have 

had this morning is that we do not have a bill in front of us, so 

we are speaking about a hypothetical commission, and we do not 

have a very clear notion of—— 

Chairman LEAHY. But isn’t that something, one of the reasons 

why you have hearings, before you write a bill? 

Mr. RABKIN. Yes. I am not criticizing anyone. 

Chairman LEAHY. At least that in my 36 years here seems to be 

the way we do it. 

Mr. RABKIN. I am not criticizing anyone for this. I am just saying 

it is somewhat difficult to address a proposal that is at this point 

not well defined, and I wanted to just emphasize this before we 

end, which is it is one thing to try to find specific facts—What was 

the worst thing done to someone in American custody? I am not 

sure that is secret, but if that is what we are talking about, I think 

that is a different thing from making an assessment of what were 

the causes of this, what were the consequences of this. Then you 

are really getting into a statement about how foreign policy should 

33 

have been differently conducted or how security policy should have 

been differently conducted. And I think that is almost certainly 

asking too much of a commission. 

And putting aside whether there are constitutional difficulties or 

civil liberties difficulties, just ask yourself: Is it reasonable to think 

that any group of experts could speak to the country not on the 

specific findings of fact but on how we should assess this? And the 

country nods and says, ‘‘That is right.’’ I think we are not that kind 

of country. 

Chairman LEAHY. So if somebody—you think that we cannot 

find—if somebody at the highest level—the White House, for example—directs people to break the law saying this is an exigent situation, whether it is on wiretapping, various search and seizure matters, putting people’s names into databases, secret databases where 

their jobs are then affected, their ability to get on airplanes is affected, and so forth, and that is done in violation of specific statutes and the Constitution, you do not think we should at least ask 

that question, who did it and why? 

Mr. RABKIN. Oh, absolutely, and if you think that there were 

legal violations, then I think there should be U.S. Attorneys asking 

those questions and possibly filing indictments. I am not quarreling 

with that at all. 

Chairman LEAHY. Well, we have asked those questions. Of 

course, a lot of it was stonewalled. We are now getting the answers, and we are realizing, especially with the OLC opinion that 

has been released, we are beginning to see why, why we were still 

involved, because some of them, I think by both conservative and 

liberal commentators who have looked at them and said that they 

were completely a misstatement of the law. That is all we are asking for. Who said break the law and why? And was it broken? 

I mean, the ramifications, especially in the digital age, are amazing. We have seen in just some of the things that have become 

more publicized when a year-old child, the parents bought their 

Super Saver fares to take the child with them to visit relatives, and 

the child cannot get on the airplane because they are on a—the 

child, not the parents but the child is on a terrorist watch list. 

They missed their plane. They have to get a passport, file for a 

passport, get a passport to prove this year-old child is not some 45- 

year-old terrorist. 

The longest serving member of this Committee, Senator Edward 

Kennedy, half a dozen or a dozen times was told he could not board 

a flight he has been taking for 40 years because he is on a watch 

list. President Bush even called him to apologize. He said he appreciated the apology, but it was not the President’s fault. He just 

wanted somebody to get him off the list, and they could not. 

I mean, some of these things worry us if from illegal wiretaps, 

for example, your name gets on one of these lists, if from an illegal 

search and seizure your name gets on some of these lists, we ought 

to at least know who came up with the bright idea. 

Mr. RABKIN. Could I just respond to this? 

Chairman LEAHY. Of course. 

Mr. RABKIN. I think what you have just been talking about almost certainly should be reviewed and reconsidered. I am not at all 

questioning the validity of your criticism or concern. 

34 

What I am concerned about is that you take one disputed policy 

or one series of mishaps or even abuses, unlawful acts from this 

area; you take another example from there; you take a third example from there. What you just talked about seems to me to have 

nothing at all in common with allegations of—— 

Chairman LEAHY. Well—— 

Mr. RABKIN. Let me just finish—allegations of torture at Guantanamo. 

Chairman LEAHY. But, Mr. Rabkin, we have not even got into 

the torture part. I am going through a series of things that were 

all—— 

Mr. RABKIN. I understand, but if you have—— 

Chairman LEAHY. Let me finish. Let me finish. 

Mr. RABKIN. Sure. 

Chairman LEAHY. If you violate the Constitution in wiretaps and 

specific statutes, if you violate the law in not using the FISA Court, 

something set up after the Church Committee’s hearings, if you 

violate the law on torture condoning things that we have actually 

prosecuted other people for doing, if you then have people come before the Congress and lie about it, they may be all individual 

things, but they are all part of the same mix. And what I want to 

do—others have said, ‘‘Let’s turn the page.’’ Fine. But read the 

page before you turn it. And it is a concern to me that some want 

to ignore that. 

Now, I am well aware of hearings and investigations going on in 

other committees, and, of course, we will continue to ask questions 

in this Committee. But what only worries me is I want the American people to see something that is outside of the political arena, 

like the 9/11 Commission or others, to find out what is going on. 

Mr. RABKIN. If you bundle all of these disparate things together 

and you do, as people used to say in a different context, connect 

the dots, you can draw a very, very disputable picture, because you 

are asking, ‘‘What was the root cause of all of these disparate 

things? ’’ and the root cause will come down to something like ‘‘the 

general orientation of the Bush administration was lawless’’ or 

‘‘they were obsessed with terrorism.’’ And when you get to that 

level of generalization, I think it is bound to be extraordinarily controversial. And the idea that this will reconcile the country, this 

will bring us all together, this will establish a consensus, the more 

general it is, the more hopeless it is—— 

Chairman LEAHY. Mr. Rabkin, you stated what the conclusion is 

going to be. You have far more experience than I. I would like to 

ask the questions and see what the conclusion is going to be. 

With that, we will—go ahead, Mr. Rivkin. 

Mr. RIVKIN. Thank you for your indulgence—— 

Chairman LEAHY. Another one of the Republican witnesses. I am 

trying to be fair to you even though the Republicans who asked you 

to be here did not want to bother to stay and listen. But please go 

ahead. 

Mr. RIVKIN. You are exceptionally fair, and I appreciate it. But 

I just wanted to say briefly that the very examples you used to me 

clearly attest that this commission cannot fundamentally escape 

passing assessments and making judgments about criminal liability of a small circle of people. And, with respect, that is what the 

35 

executive branch can do through proper channels; that is what you 

can do operating in the Article I oversight. That is not what a commission can do. And we can—even if we agreed on the portrayal 

of the problem, the genius of the Constitution is that no matter 

how pressing and compelling the need, you cannot proceed through 

constitutionally improper channels. There has never been a case in 

American history where a commission was set up with this heavy 

of a prosecutorial burden. It would be fundamentally illegitimate, 

no matter how strongly you believe it would have a curative effect. 

Chairman LEAHY. Was the 9/11 illegitimate? Was the Watergate 

hearing—— 

Mr. RIVKIN. Of course not. The 9/11 Commission looked at—the 

worst thing that would have happened is some agency got 

slammed, their budget got cut, bureaucratic chairs got reshuffled. 

The 9/11 Commission had no mandate or interest in going after 

people. What, you were incompetent in how you analyzed intelligence? Would that lead to an indictment? 

The circumstances of how this dialog has been driven inescapably make it a criminal process. 

Chairman LEAHY. Mr. Rivkin, I am trying to be fair to you. As 

I said, the folks who invited you here did not stay to ask you the 

questions. I have been trying to keep it open for you. Frankly, let 

me—and I will have the last word, one of the advantages of being 

Chairman, and we will keep the record open if people want to add 

to it. 

If criminal conduct occurred, this Senator wants to know about 

it. Now, I began my public career as a prosecutor. I am trying to 

give the ability to find out if criminal conduct occurred so it would 

not occur again. That does not necessarily mean there is even going 

to be prosecution for it. But if crimes are committed, I do not think 

we sweep them under the rug. 

We stand in recess. 

[Whereupon, at 12:05 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

36 


54049.001
37 


54049.002
38 


54049.003
39 


54049.004
40 


54049.005
41 


54049.006
42 


54049.007
43 


54049.008
44 


54049.009
45 


54049.010
46 


54049.011
47 


54049.012
48 


54049.013
49 


54049.014
50 


54049.015
51 


54049.016
52 


54049.017
53 


54049.018
54 


54049.019
55 


54049.020
56 


54049.021
57 


54049.022
58 


54049.023
59 


54049.024
60 


54049.025
61 


54049.026
62 


54049.027
63 


54049.028
64 


54049.029
65 


54049.030
66 


54049.031
67 


54049.032
68 


54049.033
69 


54049.034
70 


54049.035
71 


54049.036
72 


54049.037
73 


54049.038
74 


54049.039
75 


54049.040
76 


54049.041
77 


54049.042
78 


54049.043
79 


54049.044
80 


54049.045
81 


54049.046
82 


54049.047
83 


54049.048
84 


54049.049
85 


54049.050
86 


54049.051
87 


54049.052
88 


54049.053
89 


54049.054
90 


54049.055
91 


54049.056
92 


54049.057
93 


54049.058
94 


54049.059
95 


54049.060
96 


54049.061
97 


54049.062
98 


54049.063
99 


54049.064
100 


54049.065
101 


54049.066
102 


54049.067
103 


54049.068
104 


54049.069
105 


54049.070
106 


54049.071
107 


54049.072
108 


54049.073
109 


54049.074
110 


54049.075
111 


54049.076
112 


54049.077
113 


54049.078
114 


54049.079
115 


54049.080
116 


54049.081
117 


54049.082
118 


54049.083
119 


54049.084
120 


54049.085
121 


54049.086
122 


54049.087
123 


54049.088
124 


54049.089
125 


54049.090
126 


54049.091
127 


54049.092
128 


54049.093
129 


54049.094
130 


54049.095
131 


54049.096
132 


54049.097
133 


54049.098
134 


54049.099
135 


54049.100
136 


54049.101
137 


54049.102
138 


54049.103
139 


54049.104
140 


54049.105
141 


54049.106
142 


54049.107
143 


54049.109
144 


54049.110
145 


54049.111
146 


54049.112
147 


54049.113
148 


54049.114
149 


54049.115
150 


54049.116
151 


54049.117
152 


54049.118
153 


54049.119
154 


54049.120
155 


54049.121
156 


54049.122
157 


54049.123
158 


54049.124
159 


54049.125
160 


54049.126
161 


54049.127
162 


54049.128
163 


54049.129
164 


54049.130
165 


54049.131
166 


54049.132
167 


54049.133
168 


54049.134
169 


54049.135
170 


54049.136
171 


54049.137
172 


54049.138
173 


54049.139
174 


54049.140
175 


54049.141
176 


54049.142
177 


54049.143
178 


54049.144
179 


54049.145
180 


54049.146
181 


54049.147
182 


54049.148
183 


54049.149
184 


54049.150
185 


54049.151
186 


54049.152
187 


54049.153
188 


54049.154
189 


54049.155
190 


54049.156
191 


54049.157
192 


54049.158
193 


54049.159
194 


54049.160
195 


54049.161
196 


54049.162
197 


54049.163
198 


54049.164
199 


54049.165
200 


54049.166
201 


54049.167
202 


54049.168
203 


54049.169
204 


54049.170
205 


54049.171
206 


54049.172
207 


54049.173
208 


54049.174
209 


54049.175
210 


54049.176
211 


54049.177
212 


54049.178
213 


54049.179
214 


54049.180
215 


54049.181
216 


54049.182
217 


54049.183
218 


54049.184
219 


54049.185
220 


54049.186
221 


54049.187
222 


54049.188
223 


54049.189
224 


54049.190
225 


54049.191
226 


54049.192
227 


54049.193
228 


54049.194
229 


54049.195
230 


54049.196
231 


54049.197
232 


54049.198
233 


54049.199
234 


54049.200
235 


54049.201
236 

Æ 


54049.202