Hearing of the Constitution, Civil Rights and Civil Liberties Subcommitee of the House Judiciary Committee - From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part V

Statement

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

Attorney General Ashcroft, in your testimony, you mentioned Abu Zubaydah, who was captured in March 2002. The inspector general report on the FBI's role in interrogation makes clear that he was interrogated beginning in March of that year. The Yoo-Bybee legal memo was not issued until August of 2002, so was interrogation of Abu Zubaydah before August 2002 done without DOJ legal approval?

MR. ASHCROFT: I don't know.

REP. NADLER: Well, did you offer legal approval of interrogation methods used at that time?

MR. ASHCROFT: At what time, sir?

REP. NADLER: Prior to August of 2002, March to August --

MR. ASHCROFT: I have no recollection of doing that at all.

REP. NADLER: And you don't know if anyone else from the Department of Justice did?

MR. ASHCROFT: I don't know.

REP. NADLER: One FBI agent objected to the interrogation at this time, before the Yoo-Bybee memo was issued as, quote, "borderline torture." He described the techniques used on Abu Zubaydah as comparable to harsh techniques used during military SERE training. SERE training, as we know, includes waterboarding. Do you know if waterboarding was used on Abu Zubaydah before the DOJ approved it?

MR. ASHCROFT: I do not.

REP. NADLER: Okay. Your written testimony stated that the December 2004 interrogation memo by Mr. Levin, which withdrew the August 2002 memo, did not, quote, "call into question any actual interrogation practices authorized by the prior Office of Legal Counsel opinions." You used the 65 to 85 mile-an-hour example there.

But Dan Levin, the final author of the 2004 memo testified to our subcommittee that the 2004 memo did change interrogation practices. He said, quote, "I believe it is the case that there were certain changes in practices as a result of the change in legal analysis," close quote. Do you think Mr. Levin was in error?

MR. ASHCROFT: It's possible that there have been changes in practices in a variety of times and in a variety of intervals both prior to and subsequent to the issuance of the various opinions.

My statement is not that there hasn't been an ability within the limits expressed in the opinions for those practices to be adjusted. I didn't have knowledge of that.

REP. NADLER: No, but he said that --

MR. ASHCROFT: The point is that -- the point of the opinions is that what was defined as permissible or explained as permissible in the memos did not render impermissible things that had been determined permissible --

REP. NADLER: Yeah, that was what you said. But Mr. Levin said exactly the contrary --

MR. ASHCROFT: I don't think he did. It --

REP. NADLER: Well, let me read you the --

MR. ASHCROFT: I don't want to quibble about this.

REP. NADLER: Let me read you the --

MR. ASHCROFT: He may have said the practice has changed --

REP. NADLER: Well, let me read you an exchange between myself and him in an earlier hearing.

Mr. Levin: "I don't think it's accurate that nothing changed as result of the change in legal analysis."

"What do you think was the change?"

"Well, I unfortunately am not authorized to discuss certain matters, but I believe it is the case that there were certain changes in practices as a result of the change in legal analysis.

Representative Nadler: "So as a result of the change in your memo, you think there changes in practices? That means required changes in interrogation policies?"

Mr. Levin: "I believe that is the -- that's the case, sir. Yes."

So you're saying in effect that you and he would disagree on that point?

MR. ASHCROFT: My understanding is related to what he said in the footnotes of his opinion: that while they have identified disagreements with the memorandum, we have reviewed the office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different.

REP. NADLER: But he explained at the hearing that this footnote simply -- and his view -- that this -- simply that in his view, the people who wrote the original opinions would not have reached different conclusions, even under different legal analysis. He himself was at the time drafting new, more restrictive legal opinions to address his specific practices when he was fired by Attorney General Gonzales. So what he said was that memo simply said that the people who wrote the original memo would not have believed that that memo would have changed the analysis but that he believed it did.

So you're disagreeing not with the memo -- forget the footnotes. But are you disagreeing with his opinion and his testimony at the hearing?

MR. ASHCROFT: He may have more information about what was in actual practice than I do.

REP. NADLER: Okay.

MR. ASHCROFT: But I have -- the department has on a consistent basis reiterated its conclusion, including testimony by General Mukasey last week, when he said, "But it's fair to say that the conclusion, the ultimate bottom line, is the same."

REP. NADLER: Okay.

MR. ASHCROFT: And the acting head of OLC has indicated that they have on numerous occasions revisited the various definitions of practice by agencies and have found them in each instance -- (off mike) -- with the new opinion.

REP. NADLER: Okay. I --

MR. ASHCROFT: So there seems to be a pretty substantial consensus of people who believe the fair, understandable reading of the footnotes, the subsequent statement and evaluations by OLC, and the recent -- last-week testimony by the attorney general that the second opinion had adjusted the reasoning and a number of other things. But as it relates to practices and techniques, they remained legal, as -- under the new tests.

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