The Judiciary Committee is currently holding a hearing, “Applicability of Federal Criminal Laws to the Interrogation of Detainees.” Witnesses include Stephen Saltzburg of the George Washington University Law School; John Radsan of the William Mitchell College of Law; David Rivkin of Baker & Hostetler LLP; and Elisa Massimino, Washington Director of Human Rights First. The Committee is examining DoJ's role in destruction of interrogation videos and the role of federal criminal law in detainee interrogations
Watch the hearing live via committee webcast or on C Span 1.
Rep. Jerrold Nadler, Chairman of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, gives opening remarks:
| Rep. Nadler: “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 decisions leading up to the destruction of these tapes? What other evidence, if any, has been concealed or destroyed?…These are very disturbing questions, and ones to which we need answers. In times of crisis it is always beneficial to remember the principles on which this nation was founded. It was John Adams who observed that ‘Power always thinks that it is doing God's service when it is violating all the laws.’” |
Stephen Saltzburg of the George Washington University Law School gives opening testimony:
| Saltzburg: “There is not any dispute about the destruction of the tapes. It happened. The rationale for destroying the tapes to protect the identity of the interrogators is almost as embarrassing as the destruction itself. There are four facts that demonstrate this. One, the tapes could have been modified to make the voices and faces unrecognizable. Second, one copy of the tape could have been maintained in a secure place. Third, the CIA keeps a record of interrogations, so even with the tape gone, there's a record. And fourth, the interrogators and others in the CIA know who did the interrogation. And so, the explanation for destruction fails the straight face test…” |
Extended transcript:
“There is not any dispute about the destruction of the tapes. It happened. The rationale for destroying the tapes to protect the identity of the interrogators is almost as embarrassing as the destruction itself. There are four facts that demonstrate this. One, the tapes could have been modified to make the voices and faces unrecognizable. Second, one copy of the tape could have been maintained in a secure place. Third, the CIA keeps a record of interrogations, so even with the tape gone, there's a record. And fourth, the interrogators and others in the CIA know who did the interrogation. And so, the explanation for destruction fails the straight face test…The question is, what does it tell us when an agency gives an excuse that plainly is frivolous? It says that there is another reason why these tapes were destroyed. The only plausible explanation, I believe, is that the CIA wanted to assure that those tapes would never be seen by any judicial tribunal, not even a military commission. And they would never be seen by committee of Congress or any individuals in Congress.”
John Radsan of the William Mitchell College of Law, a former CIA Assistant General Counsel from 2002-2004, gives testimony:
| Radsan: “I’d also like us to be sympathetic, though, to the CIA, and we speak broadly about that agency. That this department learned the lessons of the Church Committee hearings, it learned lessons of Iran Contra. And there are two broad lessons. One, to do anything that is aggressive or controversial, there must be a Presidential authorization. And two, even if you have authorization, it is not sufficient because the President cannot authorize us to break the law. What many of my colleagues believes is that they accomplished both those tasks…” |
Extended transcript:
“I’d also like us to be sympathetic, though, to the CIA, and we speak broadly about that agency. That this department learned the lessons of the Church Committee hearings, it learned lessons of Iran Contra. And there are two broad lessons. One, to do anything that is aggressive or controversial, there must be a Presidential authorization. And two, even if you have authorization, it is not sufficient because the President cannot authorize us to break the law. What many of my colleagues believes is that they accomplished both those tasks. According to the press, we had a comprehensive finding by the President soon after 9/11 for very aggressive actions against Al Qaeda and other terrorists. So there was a presidential finding. Similarly, we have reportings that there was a lot of lawyering from the Justice Department and the CIA on the specific techniques or specific aspects of the program. You and I may disagree on the quality of that analysis, but if you are looking at it from the perspective of a CIA officer, who is not a lawyer, that person may shrug and say, ‘What else could we have done? We had a presidential finding, we also had advice from the lawyers. We’re trying to comply with the law.’ I agree with you that the destruction of the tapes is different and much more alarming for the reasons that you identified.”
Chairman John Conyers questions the witnesses, including Elisa Massimino of Human Rights First:
| Massimino: “Mr. Rivkin referred early on to the importance of the question of the legality of the underlying conduct being even more important than the tapes, and I think that is where the conflict arises, which leads to a requirement of having a special counsel here. Because we’re talking about questions about whether or not techniques which are depicted, captured on those video tapes are unlawful. That relates to the question of whether the destruction of the tapes would be the obstruction of investigation into cirminal activity. So, I think that’s really where for me the strongest argument is that you need to have that.” |
Extended transcript:
“Mr. Rivkin referred early on to the importance of the question of the legality of the underlying conduct being even more important than the tapes, and I think that is where the conflict arises, which leads to a requirement of having a special counsel here. Because we’re talking about questions about whether or not techniques which are depicted, captured on those video tapes are unlawful. That relates to the question of whether the destruction of the tapes would be the obstruction of investigation into cirminal activity. So, I think that’s really where for me the strongest argument is that you need to have that. I do have to take issue with one thing that my friend to my right [Mr. Rivkin] said, and that is that I wouldn’t want this committee to get the impression that what we are talking about here when we are discussing interrogation techniques is whether interrogators can yell at a prisoner or be mean, the enhanced techniques that we are talking about and that we outline in this report, ‘Leave No Mark,’ these are serious forms of torture and cruel, inhuman and degrading treatments. ‘Long time standing,’ this is another euphemism for stress positions that the United States has prosecuted as a war crime; waterboarding, forced hypothermia, forced nakedness, the use of dogs, these are techniques that have been reported to have been used under this enhanced interrogation program, we’re not talking about whether you can yell at a prisoner or make them uncomfortable.”