Hearing of the House Judiciary Committee - Applicability of the Federal Criminal Laws to the Interrogation of Detainees
Interview
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REP. SCOTT: Thank you, Mr. Chairman. I thank you for holding the hearing, because I think it's important for us to know exactly what the laws are against torture.
We've heard an interesting response from the administration that goes along the lines of United States does not torture. If we did it, therefore, that must not have been torture, because we don't torture. And furthermore, the torture worked. We need to know what the laws are and who may have violated the laws.
What is on the tape? Were criminal laws documented? We've heard that we can't tell whether or not a particular technique is torture, and here we have some more specifics. So if we had it on tape, people could look at the tape to ascertain whether or not that was torture. But the tape, the evidence has been destroyed.
Who is responsible for the destruction? And what criminal laws could be implicated by the destruction itself? We've heard that four members of Congress were briefed on this. Some have publicly contradicted some of the statements by the administration. But even if there's no complaint, four members of Congress can't change the criminal laws.
Now insofar as administration officials have been publicly implicated, from writing legal memos, justifying what seems to be torture to most people and the destruction of the document, many had knowledge of the tapes before the destruction. The tapes were not disclosed when required, apparently, to the 9/11 commission, to Congress and to the courts.
Mr. Chairman, for those reasons, I think it is essential that we have an independent counsel appointed, because so many administration officials from top to bottom, from the CIA, Department of Justice and from the White House, have been implicated in this matter. So I join your call for an independent counsel and yield back the balance of my time.
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REP. SCOTT: Thank you, Mr. Chairman.
I have a series of questions. We'll just begin with whether or not torture is illegal. Any question that torture -- torturing people is illegal? Professor Radsan?
MR. RADSAN: Torture is clearly illegal. What we've --
REP. SCOTT: Where in the criminal law can we find the prohibition against torture?
MR. RADSAN: You'll find it in other statutes, but we did not feel it necessary when we incorporated the convention against torture to pass a torture statute within the United States. The torture statute applies to anything outside the United States. But any conduct that would be torture would be unconstitutional, would be illegal; I don't think there is any doubt about that. The doubt is on how we define these --
REP. SCOTT: Okay, now -- now is the definition of torture so subjective that people can't understand what it is?
MR. RADSAN: With respect I think there are some clear examples of things that are not torture, providing National Geographic magazines. There are clear examples of things that are torture -- electroshock, cutting off limbs.
But even if we --
REP. SCOTT: Do other countries have problems with the definition?
MR. RADSAN: I think in the various courts they're going to have difficulties on what the line is. Even if we all agree that watereboarding is torture, let's --
REP. SCOTT: Outside of this administration anywhere in the world think that waterboarding is not torture?
MR. RADSAN: I take your point, and I'm not aware of anyone that defends waterboarding outside the United States.
REP. SCOTT: Outside of this administration, because other administrations have specifically found waterboarding to be torture.
MR. RADSAN: And I'm not here speaking for the department or th agency. I think it's fairly clear, waterboarding is something prohibited by statute --
REP. SCOTT: Well, we have -- according to public reports, the Department of Defense and the CIA have referred 20 cases to the Department of Justice, including two deaths .
There's only been one indictment. So if the -- let me go to another point -- if the tapes clearly depict torture, let's kind of think of who could be guilty of a criminal offense.
Those who are actually doing the torture: any question that they would be -- have liability under the criminal statutes?
MR. RADSAN: I'll just go slow. If we agree that the conduct on this case crossed any line, that person that did the conduct is guilty, and anyone that aided and abetted, anyone that ordered it, be drawn into that criminal conduct. That's for sure.
REP. SCOTT: What about those who watched while others did it?
MR. RADSAN: Watching while others did it? That's difficult, but I think you would make an argument that it's aiding and abetting, or you would make the argument that it's part of the conspiracy to commit that criminal conduct.
REP. SCOTT: What about those who authorized it?
MR. RADSAN: The same analysis. We'd have to pursue the facts. But if this was part of a pattern, and it had the intent to do something that was illegal, and was known to be illegal, that's a problem clearly.
MR. RIVKIN: May I make a point, Congressman? It seems with all due respect to be somewhat anomalous to simultaneously excoriate the Department of Justice for providing allegedly legal opinions that defined these types of techniques as not torture, and then simultaneously say that individuals who are not lawyers who followed that advice -- and let's assume that they stayed within the parameters of permissible procedures -- are guilty of any criminal conduct. You're certainly entitled to rely in good faith on the advice proffered by --
REP. SCOTT: Well, let's assume we have concluded that the technique involved is clearly torture. Can the Department of Justice by memo immunize everyone doing it?
MR. RIVKIN: That is a difficult question. But if -- you very -- your hypothetical in a way contains the answer. If we determine -- who are we? It is the province in the first instance of the executive, and in the second instance, of the judiciary, to pronounce what the law is. If duly constituted officers of the United States concluded that a given conduct construed in a given statute does not amount to a violation of the statute, that would go to great lengths to immunize individuals who relied on it. And kind of -- which is why personally I don't think we have any evidence that it was an obstruction of justice, because there is no --
REP. SCOTT: There are a lot of people who think the memo is absurd on its face to suggest that waterboarding is not torture, and the Department of Justice can't immunize people from doing what everybody in the world knew was torture.
Ms. Massimino.
MS. MASSIMINO: I think that it's not correct to suggest that there was no fear of prosecution. I mean there clearly was. That's why the email was sought in the first place. And the Section 2240 of 18 U.S. Code which is the federal anti-torture statute was never thought to be vague or unclear until there was a desire to get around it, and a memo was drafted that construed it in such a way that drained those powerful words of all of their meaning.
MR. RIVKIN: Congressman, if I could add a point. Congress has sort of made this a bigger problem than it otherwise might have been in the Military Commissions Act when it put in that provision which essentially said that if you are charged with torture between the -- 9/11 and 2005 when the Detainee Treatment Act was passed, you have a right to rely on advice of counsel as a defense.
And I think that was clearly intended to say that people could be prosecuted, but then they could wave around that memo saying I relied on it. It doesn't mean they shouldn't be prosecuted. It just means that Congress has extended their possibility of arguing advice of counsel as a defense.
REP. SCOTT: Well, let's talk about the independent counsel. If the Department of Justice, CIA and White House -- if they defined torture in such a way that people could I guess retroactively rely on it, when the memo legally misstated the law, would that be a reason to have an independent counsel rather than having the Department of Justice try to defend the memo subsequently determined to be legally incorrect?
MR. RADSAN: I don't believe -- my own opinion, standing alone, that that would be enough for a new attorney general who was not responsible for the memo. Let's be clear, that 2002 torture memo was probably one of the most embarrassing, poorly written, poorly reasoned documents I've ever seen. And I believe you're right, Congressman, no one with a straight face could defend that document as stating accurately the law.
And I think any attorney general who was independent would repudiate that document. I think this attorney general would repudiate that document today. But the other circumstances add to it, I think do make a case for a special prosecutor.
MR. RIVKIN: As I understand, with all due respect, the facts are as follows: that opinion was withdrawn long before this attorney general came in. But if you look carefully at how it was withdrawn, the language, my reading would suggest that the breadth of it and the reasoning were repudiated, not the bottom line.
And again the speculation in the media is that two subsequent more narrow opinions written by the Department of Justice, the parameters were always permitted, Congressman; they may not have changed. But if I may just say one thing, the thing I'm troubled a bit is this notion is that you can have the executive branch when I say government whose duty is to execute the law, parse the law and conclude that they disagree, with all due respect to my good friend, Ms. Massimino, and flesh out a statutory term in a given way.
If that happens, I don't know who else is supposed to come in, unless the matter is somehow justiciable -- (inaudible). I don't see anything in your powers, frankly, in Article I that gives Congress the right to interpret the law.
REP. SCOTT: You know, with all dues respect, there is not a lot of interpretation that needs to be done. This administration has suggested that waterboarding is not torture. They are having trouble to figure out what it is. And when you have it on tape, the tape is destroyed.
I don't know that you can change the law by legal memo. And you have the Department of Justice -- is the Department of Justice involved in possibly authorizing some of this torture by virtue of their memos? Did they authorize the destruction of the tapes through the Department of Justice -- present Department of Justice investigating itself on who authorized it? Who failed to disclose to the 9/11 commission and to the Congress and to the courts whether the existence of the tapes -- well, let me ask it another -- what is the statute of limitation on all these crimes? Mr. Radsan?
MR. RADSAN: I'm not aware -- I don't know that there is a statute. I'll be corrected by my colleagues. But if I could take a minute to clarify my answer to a prior question.
I think I'm agreeing with you, but perhaps not in the way that you would like. We can look at conduct that occurred on the tape. And we may all look at that and agree that it crossed the line. That will be reason to be concerned and continue the investigation.
But then there is the second step, and this is alluded to by Professor Saltzburg. We have to figure out why that interrogator did this. And if that interrogator reasonably relied on advice, and that advice as we can tell would have been issued in a classified channel, that interrogator more likely than not was not a lawyer, if that interrogator reasonably relied on advice, even though it went past the line, whether it's waterboarding or any other conduct, that prosecution is going to be very difficult. And that's the situation that many of these officers find themselves in.
REP. SCOTT: And I agree with you. If you have -- if you have a memo that says that everybody believes is illegal, and then you proclaim it to be illegal, and someone reasonably believes the memo, then you have a mens rea problem in criminal prosecution.
However if the memo is just clearly ridiculous, you can't just change the law by memo. And -- I yield back.
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