Hearing of the House Judiciary Committee - From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part I

Statement

REP. NADLER: This hearing of the Subcommittee on the Constitution, Civil Rights and Civil Liberties will come to order. Without objection, the chair is authorized to declare a recess of the hearing.

Today's hearing will begin the subcommittee's investigation of the role of administration lawyers in formulating the rules for conducting interrogations. The subcommittee has been investigating this administration's interrogation policies and will continue to do so.

The chair now recognizes himself for five minutes for an opening statement.

Today's hearing begins our inquiry into the role of administration lawyers in the formulation of our interrogation policies. We have a distinguished panel of witnesses. Although shrouded in secret, even from members of Congress who have the requisite security clearances to review it and who have the constitutional responsibility to legislate and oversee it, the legal opinions issued by administration lawyers have brought our nation into international disrepute.

How we got to this point, what is the legal basis for these actions, and what are the asserted parameters of these policies, these are the subjects of this first in a series of hearings.

The more information that becomes public, often in the press through leaks rather than through the congressional committees with a constitutional duty to oversee it, the more disturbing it becomes. Yet at a recent hearing and in subsequent meetings, we have been told that we may not be privy, even on a classified, non-public basis, to those legal opinions.

What possible constitutional excuse there can be for saying that the secrecy of legal opinions could jeopardize -- the non-secrecy of legal opinions could jeopardize the national security of the United States is beyond me. This is totally unacceptable.

So today we hear from experts in the field who will discuss what is known or what their private investigations have been able to discern and what the law says about that information. I do not believe that this administration or any administration has some independent authority to craft secret law and apply it. I do not believe that this administration or any administration is free of the checks and balances in the Constitution.

I believe that we must and will get to the bottom of what has been done in our name and what is being done. Torture is abhorrent, whether done by the Taliban or by the Bush administration. It is alien to our nation's values, our history and our laws. Secrecy and stonewalling will not change that. I hope a little sunlight will.

I welcome our witnesses. I look forward to their testimony. I want to reiterate that this is the first in a series of hearings and that we will, in subsequent hearings, receive testimony from those individuals who played a central role in the formulation and implementation of these policies.

I yield back the balance of my time.

I would now recognize for an opening statement our distinguished ranking minority member, the gentleman from Arizona.

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REP. NADLER: I thank you and I thank the other witnesses.

The chair will now recognize himself for five minutes for the purpose of questioning the witnesses.

Professor Luban, you've written that the lawyers advising the Bush administration on the legality of U.S. interrogation policies -- including Alberto Gonzales, David Addington, Jay Bybee, and John Yoo -- showed a, quote, "willingness to bend or break the law to make their clients' wishes come true," unquote.

Can you give a couple of concrete examples of ways that the law was bent or broken by their advice?

MR. LUBAN: Yeah. A couple of examples would be this. Mr. Yoo's two memos -- the March 14th, 2003, and August 1st, 2002, both make an extraordinary claim of executive power, which is that the president, acting as commander-in-chief, can simply override any statute in the book, including the statute on torture.

Now, a lawyer is supposed to present adverse legal authority, as well as legal authority that supports the view. And here there are leading Supreme Court precedents that just say the opposite -- the famous Youngstown case. But there's an 1804 case called Little versus Barreme from the quasi-war with France in which Congress had restricted what the Navy could do. President Adams ordered a captain to violate that restriction, and the Supreme Court said that the president's order was not a shield against liability. Those cases aren't even mentioned. That's the kind of thing that is a violation of the craft value that lawyers have to know.

Second would this drawing of the definition of torture from a Medicare statute. The Medicare statute says, quite commonsensically, that severe pain can be the symptom of a medical emergency. Mr. Yoo turns this around and says that unless the pain is organ failure or death, a level associated with organ failure or death, it's not severe.

When Mr. Levin withdrew that opinion and replaced it with another, he said, quite plausibly, that Medicare statute wasn't trying to define severe pain. And if you took that literally, then you would think that, for example, if a dentist's drill hits a root and you jump out of the chair, well, you know that's not organ failure or death, so that's not severe pain.

REP. NADLER: Okay. MR. LUBAN: And that simply violates common sense --

REP. NADLER: Thank you. And in your article, "Liberalism, Torture, and the Ticking Time Bomb," you say that it would be a dramatic mistake to suppose that the Justice Department has abandoned its views merely because it has disowned by Bybee memo. Can you briefly explain what you mean? I mean, why you think it's clear that the Justice Department has not abandoned its views?

MR. LUBAN: Yeah, for a couple of reasons. After the Bybee memo was withdrawn, then the Levin memo was substituted, the Levin memo says in a footnote that all of the techniques that had been approved under the Bybee memo are still approved. As for the commander-in- chief override argument, the Levin memo doesn't disown it. It says well, there's no need for us to discuss it.

As for the criminal defenses in the Bybee memo, it doesn't reject those criminal defenses. It just says well, since we don't torture, there's no need to discuss those.

And finally, one place that it completely stretches the law is in its definition of what severe physical suffering is. It states that severe physical suffering has to be prolonged. Now, if you look at the statute, that isn't in there at all.

It was mentioned that -- by Congressman Franks, I believe, that everybody who's been waterboarded broke in less than a minute, and it looks as though that language would say well, therefore, waterboarding can't be severe physical suffering because it wasn't prolonged.

REP. NADLER: Thank you.

Ms. Cohn, does the Military Commissions Act give officials of the Bush administration immunity from prosecution under the War Crimes Act?

MS. COHN: No. While we would argue that attempts to immunize those complicit in torture from criminal or civil liability is not permitted under the doctrine of jus cogens, the Military Commissions Act says --

REP. NADLER: Under the doctrine of what?

MS. COHN: Jus cogens -- j-u-s c-o-g-e-n-s -- Latin for the highest-compelling law, like slavery, genocide and wars of aggression. But no, the Military Commissions Act does not provide immunity for prosecution. What the provision does is to provide that good-faith reliance on the advice of counsel would be a defense to war crimes prosecutions.

But it could be proved that they were not acting in good-faith reliance on the advice of counsel for several reasons. Number one, the advice was inherently and flagrantly not a good-faith interpretation of the law. Number two, they all knew that, and that's why they performed this so-called analysis in secret avoiding all the normal processes that they usually use to arrive at these decisions. And number three, they lied about the matter, both to the people within the administration and the public, making numerous false, exculpatory statements which can be considered evidence of guilt.

REP. NADLER: Okay.

MS. COHN: So the administration's effort to avoid accountability under the Military Commissions Act is further evidence of their guilt --

REP. NADLER: Fine.

MS. COHN: -- and can be used as an --

REP. NADLER: Now, one more question before my time runs out. In the attachment to the your testimony, you outline the case for criminal prosecution for the lawyers involved in the formulation of the interrogation policies at issue. From what U.S. laws and precedent do you draw your conclusions? In other words, under American law, how could administration lawyers face criminal liability for their counsel?

MS. COHN: We had statutes that prohibit conspiracy. For example, the torture statute which is a U.S. law prohibits the conspiracy to commit torture. And it would be, I think, not difficult to show that these lawyers were part of a conspiracy, a common plan. In fact, John Yoo said we had a common strategy here. They got together on it. So I think that it clearly could come under a conspiracy law that they would be part of a criminal conspiracy to violate U.S. laws against torture.

REP. NADLER: Thank you. Just one further question. How long is the statute of limitations on these crimes?

MS. COHN: The statute of limitations under a jus cogens prohibition is never. There is no statute of limitations at all for violation of a jus cogens norm.

REP. NADLER: Thank you. My time is expired. I will now recognize for five minutes the distinguished ranking member of this subcommittee, the gentleman from Arizona.

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REP. NADLER: Okay. I just want to pursue that one question.

The Supreme Court has indeed ruled that the deceiving a question as saying, you know, "Your colleague has spilled the beans, you might as well tell us the rest" is okay, but is that the same law as threatening "I'm going to kill your wife"?

REP. ISSA: Well, and I wasn't responding to Ms. Cohn, because I think it's important that we stay to the basic concept that we do get confession out of prisoners in the United States and in other places by techniques other than physical contact or threat of torture.

We do often say, for example -- and I will take you up on this, Mr. Chairman -- domestically. And I think the audience of all of us, think domestically, to say that if you don't cooperate, we're going to take everyone in your family and we're going to arrest them and they're going to serve as accomplices to your crime, is in fact, something that can be done in this country. The threat of, in fact, widening the net to people beyond that I think -- for all of you, those kinds of techniques are many of the alternatives. So we do have other tools besides the ones we're concentrating on today.

And my time is expiring, so I'd appreciate a follow up.

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