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

REPRESENTATIVE ROBERT SCOTT (D-VA): Thank you, Mr. Chairman. I thank our witnesses for being with us today.

Attorney General Ashcroft, there's no question that torture is illegal.

MR. ASHCROFT: That's correct.

REP. SCOTT: Okay.

Now, is there an exception to that, if it is done during a crisis?

MR. ASHCROFT: There is no exception, that I know of, that allows people to violate the law.

REP. SCOTT: Okay.

Well, suppose you got some good information as a direct result of torture. Would that be an exemption to the statute?

MR. ASHCROFT: No. The outcome or product of torture, I mean, doesn't justify it.

REP. SCOTT: Okay.

Now, you've made a comment that we have not been attacked since 9/11. Are we to surmise that that is a direct result, of the fact that people have been tortured, and that we got good information? Or not?

MR. ASHCROFT: First of all, I don't know of any acts of torture that have been committed, by individuals in developing information. So I would not certainly make an assumption.

I would attribute the absence of an attack at least in part, because there are specific attacks that have been disrupted, to the excellent work and the dedication and commitment of people whose lives are dedicated to defending the country.

(Cross talk) -- interrogators and have used enhanced interrogation techniques but they haven't used torture.

REP. SCOTT: So you are not suggesting that we should forgive torture because we got good information and we are therefore safer. That is not your position.

MR. ASHCROFT: No, it is not.

REP. SCOTT: Is it a defense against torture that traditional techniques were not working?

MR. ASHCROFT: Not to my knowledge.

REP. SCOTT: Is it an exemption from the criminal law on torture, that a Department of Justice or an Office of Legal Counsel lawyer wrote a memo that said, what people generally perceive to be torture is okay.

MR. ASHCROFT: I think the ultimate definition of torture will be rendered in the courts.

REP. SCOTT: And if a Department of Justice or an Office of Legal Counsel writes a memo saying a technique is okay, when everybody else in the world thinks it constitutes torture, that would not -- would that be an exemption for the criminal statute?

MR. ASHCROFT: It would be a marvelous thing of unanimity if everybody else in the world agreed on one thing. (Laughter.)

REP. SCOTT: Well, I think just about everybody agrees that waterboarding is torture. There hasn't been much controversy about that. No. No, you don't believe that waterboarding is torture. Well, excuse me, everybody on this side of the aisle, I believe, believes that waterboarding is torture.

MR. ASHCROFT: Well, in all deference and respect to the members of this committee, I believe that the legal definition of torture will prevail.

One of the things about the rule of law, that the chairman eloquently brought to our attention at the beginning of the hearing, is that people are not convicted based on polls taken, from men on the street or people in the world.

People are convicted of violations of the law based on what the statute says.

(Cross talk.)

REP. SCOTT: My question was that you don't get an exemption because the Department of Justice or the Office of Legal Counsel lawyer wrote a memo excusing it.

Do you get an exemption if the CIA does it rather than the Department of Defense?

MR. ASHCROFT: I don't know of any exception in the law that relates to the different parties that are involved in the activity.

REP. SCOTT: Is there an exemption in the law if we hand someone over to another country, believing that they will torture the person, where we might not have been able to do it because of our statutes?

MR. ASHCROFT: I think you're taking me beyond my awareness of the statute at this point, and I'm going to decline to try and be exhaustive about the law. First of all, you've amended the statute, I think, several times since I left office. I wasn't an expert in this arena when I was in office. And so I'm going to have to decline to follow down a more and more intricate set of options which are obviously beyond my capacity.

REP. SCOTT: What if --

MR. ASHCROFT: If you want legal advice on this, as a member of the Congress, you've got --

REP. SCOTT: So -- General --

MR. ASHCROFT: -- your own legal counsel and you've got the attorney general.

REP. SCOTT: Yes. Let me ask --

MR. ASHCROFT: I'm not there anymore.

REP. SCOTT: Let me ask Mr. Dellinger a question. If the United States is generally believed to be a nation which inflicts torture on detainees, what impact would that have on our troops and our national security?

MR. DELLINGER: Mr. Scott, I'm not an expert on that. I think I agree with Senator McCain. His view has been that it would be -- it would put our own troops at serious risk and greater risk.

REP. SCOTT: (Off mike.)

MR. DELLINGER: He takes the position that techniques like that are lawful and others who have taken that position. May I add a word to your question to General Ashcroft?

REP. SCOTT: Yes, please.

MR. DELLINGER: I'll let you assess it. I think it seems to be the case that when the Office of Legal Counsel issues an opinion that a given activity is lawful to an officer or agent of the government that criminal prosecution of such a person is ruled out in all but the most extreme, unusual circumstances.

REP. SCOTT: Well, in that case, who would be responsible and accountable for the torture?

MR. DELLINGER: Well, I think that moral responsibility would lie with lots of people, but that in terms of legality that's the way it has to work. And you, too, ought to be very careful about who is approved to head the Office of Legal Counsel, but the office is given the delegated authority to make law for the executive branch of the government. I think that's binding. I'm not necessarily happy --

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