Hearing of the House Judiciary Committee - Applicability of the Federal Criminal Laws to the Interrogation of Detainees

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REP. JERROLD NADLER (D-NY): I thank you, Mr. Chairman.

Mr. Chairman, I want to commend you for scheduling this timely hearing into some very disturbing reports. It is important that we investigate these allegations carefully, because, if true, we may be facing the possibility of a dangerous and criminal abuse of power at the highest levels of our government.

The matters at stake here are far from trivial. We have been investigating the abuse of prisoners in U.S. custody, as well as the practice of turning over individuals to other countries designated by our government as countries that routinely engage in torture.

We have also investigated the practice of holding individuals, many of whom our government now concedes are innocent of any wrongdoing, for years without any hearing or due process of any sort.

We have also investigated widespread spying on Americans without any legal authorization. We have been told that this surveillance was not a violation of criminal law, but I know of no possible excuse other than those absurd ones told by the administration that could justify that conclusion.

At every turn, we have run into concerted efforts to stonewall the public, the Congress and the courts. They have refused to testify. They have withheld vital information. They have flouted subpoenas.

Today we examine perhaps the most disturbing of all allegations -- that our government destroyed tapes of interrogations which employed what are euphemistically called extreme interrogation techniques and what civilized people call torture.

These tapes clearly spoke to many of the cases in question that the Congress, the public and the 9/11 commission have debated, including the lawfulness of the interrogation methods used, evidence for proceedings against those held as unlawful enemy combatants.

The destruction of these tapes may have occurred in violation of a court order and while it was known that the matter was under investigation. They were concealed from the 9/11 commission -- the existence as well as the destruction of the tapes were concealed from the 9/11 commission, from the Intelligence Committee and the Congress. These tapes may very well have been relevant to at least one criminal prosecution, and their destruction may ultimately result in the release of a convicted terrorist.

These actions raise some very disturbing questions, the answers to which may determine whether we remain a nation of law. Who ordered the destruction of the tapes, and why? Who knew about the existence of the tapes and their destruction? What did the president and the vice president know, and when did they know it? Who in the White House was involved in the decisions leading up to the destruction of these tapes? What other evidence, if any, has been concealed or destroyed?

Did the destruction of the tapes constitute a crime? And, if so, who in the administration is criminally liable? Did the acts recorded in the tapes constitute a crime or crimes? Were any of the decisions made by our government and Congress, including the decision to declare detainees not to be prisoners of war or to allow the president to define retroactively what constitutes illegal torture, were any of these decisions made to protect people in this administration from prosecution for criminal acts?

These are very disturbing questions and ones to which we need answers. Mr. Chairman, in times of crisis it is always beneficial to remember the principles upon which this nation was founded. It was John Adams who observed that, quote, "Power always thinks that it is doing God's service when it is violating all the laws," closed quote.

We are supposed to be a nation of laws, and we are a free and democratic nation. But as we are often reminded, freedom isn't free. There is a day when we must decide whether we are going to pursue the difficult questions that are necessary to pursue in order to protect our freedoms.

I look forward to the testimony of our witnesses, and I thank our chairman again for calling this important and timely hearing. I yield back the balance of my time.

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REP. JERROLD NADLER (D-NY): Thank you, Mr. Chairman.

Let me start with the Professor -- well, either the Professor Saltzburg or Professor Radsan. There is a -- we're talking about the destruction of tapes that the CIA has admitted being destroyed, about the interrogation of two alleged terrorists -- Abu Zubaydah, and I forget the name of the second fellow. But there is also evidence that other tapes were destroyed. A number of the interrogation tapes of Padilla -- Jose Padilla, were released to his attorneys earlier this year, but the tapes of the crucial interrogation had, as one government lawyer explained, "mysteriously disappeared," unquote.

They disappeared even though the federal judge presiding over Padilla's criminal case -- which was initiated by the federal government to avoid Supreme Court review of his prolonged military confinement -- even though the judge in that case had ordered the government to preserve all interrogation tapes, and tapes of more than a dozen other interrogations were never turned over. Do you believe that the destruction of these tapes is part of a larger phenomenon -- or phenomenon -- of a larger situation in which the government is destroying evidence?

MR. SALTZBURG: I don't want to believe that. I --

REP. NADLER: But does the evidence indicate that?

MR. SALTZBURG: Every time -- what we, what we know about the CIA's destruction is that it was willful, that it was carefully thought out, that it was done after seeking advice -- at least we don't all the advice, that's one of the questions.

The Padilla tape is, in some ways, more disturbing -- equally disturbing, I guess, because we have a criminal prosecution, where the government has the highest obligation to preserve evidence, and a missing tape is a -- it is a big deal. And the -- and the interrogation presumably took place during the time when Padilla was deemed to be a terrorist suspect, that's why he was originally detained. Now there appears to be some effort to prevent judges and perhaps Congress from actually seeing what goes on in some of these interrogations.

I mean, that's the disturbing thing. And I'd just ask whether it's a pattern, I think that's one of the things that this Congress needs to look at. I don't think you know, or have any idea how many interrogation tapes actually exist. There are rumors in the intelligence community -- there are rumors that there are videotapes of interrogations conducted by foreign officials on detainees who are transferred to them by Americans, when Americans were present during the interrogations, but weren't the interrogators.

Now if those tapes exist, I would think that this Congress would want to have a look at them, or want to be sure that they were not destroyed. But one of the things that we don't know -- and we don't know about what tapes exist, and then we don't know that they've been destroyed until there's been a disclosure after the fact, which is what happened both in the CIA situation and in the Padilla situation. It's surely disturbing.

REP. NADLER: Let me ask you a follow-up question, if I may. Now, your testimony suggests that there are other tapes that may exist, that may indicate all kinds of -- perhaps, misconduct, perhaps not, misconduct, in interrogation situations. Congress certainly has a right to see them. Now if we were to subpoena -- issue a subpoena for all interrogation tapes, would there be any legal -- I'm sure the administration to find some excuse, but would there be any legitimate, legal reason for the administration to say, no, we refuse to supply them?

MR. SALTZBURG: Let me answer that question in two parts. First of all, I have absolutely no doubt if you issued a subpoena, it would not be obeyed. And the reason it would not be obeyed is there would be a claim of national security privilege. Second, is that claim valid against the United States Congress? The answer is no. If it were, then any claim of national security would prevent this Congress from ever seeing anything the government didn't want to produce. But --

REP. NADLER: So a claim of national security privilege is never valid against a subpoena from Congress?

MR. SALTZBURG: It is -- it's always -- the problem is enforcing it.

REP. NADLER: (Inaudible) -- as a matter of law, you would say it's -- because Congress has a -- our rights under the national security law is never valid?

MR. SALTZBURG: I believe that this is one of those issues that -- those people who believe in absolute executive power will tell you the executive has the right to make the final decision on national security. Those of us who believe that no branch is absolute believe that checks and balances require -- that in some fashion now, that the executive is responsible to Congress, and that, for example, the Intelligence committees ought to be able to review tapes -- again, in a very secure manner.

I'm not suggesting that the subpoena ought to -- ought to mean that Congress gets to see it and disclose it, but certainly Congress, in order to exercise its oversight role, Congress is required to be exposed to some of the most important secrets we have. Otherwise, you couldn't legislate, and, actually, you couldn't fund the things the executive wants to do --

(Cross talk.)

REP. NADLER: We're certainly finding that to be the on other things like FISA.

Professor Radsan, do you have a comment on the same questions?

MR. RADSAN: The second question first. I agree with Professor Saltzburg, it would be a very interesting Constitutional law question. I agree that the executive would not easily comply with a subpoena. If you went to the courts, I don't think the courts would take it, they would avoid the issue through the political question doctrine. They would leave it to the two branches to sort out. That's a prediction about Constitutional law. You can ask the Constitutional law professors to speculate. This would be a great hypothetical for next year's examination. (Laughter.)

On your first question about the tape --

REP. NADLER: And in that case, our only recourse would be the power of the purse? CIA gets no money unless they give us the tapes? I mean, it -- would that be what we should do?

MR. RADSAN: The branches have other ways to put pressure on each other. And if you go down that road, it would be a very interesting interaction between the two political branches. If there is a pattern of destroying tapes, as you suggest -- and I'm, I have no reason to believe that there is, the pattern may even be broader than we're talking about.

It's not -- if your theory is true, it's not just the CIA, for this reason. I don't know that the Padilla tapes were necessarily CIA tapes.

They may have been Department of Defense tapes, Justice Department tapes. If there was a pattern, if your facts are right, then it would be a pattern that links on something that went on in that case, and a known destruction in a CIA case.

We do have another set of tapes, though, tapes that were referred to in the filing that the Justice Department made in the Moussaoui case, and those tapes seem to be different from any other tapes. And as far as we know from the public record those tapes have been maintained.

I've read that filing. My conclusion, and I'm not confirming anything from the classified record, my conclusion by that affidavit is, those tapes were tapes that were made by a foreign liaison service during those interrogations, that the Justice Department was aware of. But you could ask -- ask for those tapes. The intelligence committee could ask for those tapes. We could confirm that those tapes still exist. That's what the reporting has been.

REP. NADLER: Thank you, Professor.

Mr. Rivkin.

MR. RIVKIN: Thank you, Congressman Nadler. Let me just say a couple of things. Hard to predict how the court would -- would work here, but the broader, the more open-ended your request is, the more difficult I think for you to vindicate this. You're right, the more targeted, the more circumscribed the request is, the more limited to the intelligence community, the greater is the chance that it would be both complied with in my opinion and would be vindicated if you became frustrated here.

On the underlying issue, look, let me give you a slightly different perspective. And again, as a lawyer, I do not like the destruction of any documents that exist, and if I were asked about it without the benefit of hindsight even, I would have said, no one destroyed it. But in some respect these problems reflect the difficulty we have in applying a full blown criminal justice oversight paradigm, is developed and honed in decades of remarkable prosperity, to be -- no, these are very difficult circumstances. Because -- to embellish on the point made by Professor Radsan -- do you think, congressman, that the vivid power of visual images is such, if you think about all the damage done by Abu Ghraib case, and I'm not say they didn't -- bad conduct -- is it not possible for the honorable men and women in the intelligence community.

REP. NADLER: Excuse me, we're talking about Congress viewing it, not necessarily the public --

MR. RIVKIN: No, no, no, I'm not talking about that. It would have been leaked, chances are.

REP. NADLER: Maybe it would and maybe it wouldn't have. I have limited time, I want to get in another question

Again to Professor Saltzburg: We have been asked in -- in -- in this entire question of the destroyed tapes, we've been asked by the Justice Department to delay our investigation lest it interfere with the Justice Department investigation or with the CIA investigation. Do you think it makes any sense at all for us to do that, especially in light of the question that we can't -- that perhaps we can't trust anybody. Certainly we can't trust the Justice Department in a request for special prosecutor. But should this committee, should Congress delay investigations waiting for the Justice Department?

And if the answer is no, what is the justification, or is there any justification in law for the Justice Department to simply refuse to supply the documents to Congress on the grounds that they are investigating it and supplying us with documents that might delay their -- might inhibit in some way their investigation?

MR. SALTZBURG: My answer is no, that you shouldn't wait. One of the reasons is, time's flying. You've got more than two years that has already -- it's already gone by. Memories will fade; people may die while you wait.

Now what is the justification? The -- I don't think you should ask the Justice Department to produce its investigative file, what's it's -- I think you ought to ask the Justice Department to produce any advice, copies of any documents it gave with respect to the destruction in 2005. And I think you ought to deal directly with the CIA.

Every case is a little bit different in terms of whether you can interfere in some way with the investigation. I just don't see that here. Much of what happened is known. We already know the tapes were destroyed; that's not going to be new. We have some of the names of people who were consulted. What you don't know is exactly what they said. You don't know exactly what the rationale was. What we know is, there's a lot of lawyering that was going on here. What the advice was, we're not sure about. But I think you've got to get to the bottom of what happened.

And, by the way there are two things here. There's the criminal investigation of whether people get prosecuted. I think unless you immunize witnesses and put them out for public testimony, the chance you will disrupt a legitimate investigation, an ability to prosecute are very small.

But there's the other part of it: finding out what happened, even if it's just bad policy and not criminal, and figuring out what you're going to do about that -- I mean that's part of the oversight function. And God forbid that this Congress will limit itself to deciding the only oversight is to look into criminal activity.

REP. NADLER: Thank you. One more question for Ms. Massimino. This is slightly different. Starting in 2003, the administration argued that the Geneva Conventions did not apply to members of al- Qaeda. The Supreme Court decided to review a case which became known as Hamdan v. Rumsfeld, on November 7th, 2005, I think it granted cert. The tapes were destroyed that same month.

What were the potential implications with respect to the tapes of the Supreme Court rejecting the administration's position with respect -- that the Geneva Convention did not apply, as indeed the Court ultimately did when it issued its ruling in Hamdan in June of 2006? In other words could the destruction of the tapes be connected with the decision by the Supreme Court to accept that case?

MS. MASSIMINO: Yes, I think so. Because, I mean, I don't think we have to speculate too much about that. Because we do -- we know what happened when the case was decided. It sent shock waves through the CIA, and its enhanced interrogation program was put on hold immediately. It was already -- there was already some feedback on it after the passage of the McCain amendment. But then in July of last year when the case came down, the reports are that that was a shocking development for the CIA, and they started to understand finally that not only was Congress withdrawing the political support for a program like this, but the administration was wrong in its argument that the Geneva Convention did not apply.

Remember early on in the deliberations inside the White House about whether or not the Geneva Convention applied, key -- a key consideration in the -- leading to the conclusion that the Geneva Conventions did not apply was the fear that, well, if they did, we might find ourselves subjected to prosecution for war crimes.

REP. NADLER: Thank you, Professor Massimino. That'll be it.

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