Tortured Thinking, Part II -- the Witnesses

By Carol Gee


The House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, held a hearing on the subject of torture this week. This eye-opening session was spotlighted in my May 8 post, "Tortured Thinking, Part I -- the Players." It was a summary of what House Members are seeking regarding what happened with the issue of detainee interrogations. Since the beginning of the administration, the subject of how to interrogate has been a problem. A number of legal memos have emerged, as well as the identities of the key players, top to bottom. Committee Democrats, chaired by Rep. Jerrold Nadler D-NY, and supported by the overall Committee Chairman, John Conyers D-MI, questioned a panel of legal experts, upon whom today's post focuses.

Chairman Nadler swore in a panel of witnesses who gave a more in-depth picture than we have previously known of our nation's recent history of "severe interrogation," what some see as torture. Witnesses included British law Professor Phillipe Sands and Georgetown Professor David Luban. Other witnesses were former administration Counsel's Office lawyer David B. Rivkin and Professor Marjorie Cohn, President of the National Lawyers Guild. Links to their prepared statements are included. Their statements are not covered here but summaries of the main points made by each, follow the Committee's questions:

• Witness prepared statement: Philippe Sands, QC
  Professor of Law
  University College London
  Barrister
  Matrix Chambers.
  
  Professor Sands recently researched the history of Bush administration actions around the torture issue ; it is chronicled in his illuminating article, "The Green Light."
  Chairman Conyers asked Professor Sands about what else to do. The professor said, "The country is at an important moment, and it is best to eventually unite amongst ourselves and move on from 2002. We need to find out what actually happened, however, crucial facts about the military involvement must be found out and the CIA stuff remains, Sands said. He added that David Addington's testimony is pivotal due to his "deep involvement. He was the leader of the pack, driving the policy, assisted by DOJ Counsel Haynes." Sands recounted the trip that Addington and a group of high administration officials took to visit Guantanamo "to see the place and the detainee causing all the difficulty, Mohamed al-Khatani, whom they thought was the 20th hijacker."
  Rep Mike Pence R-Indiana asked about the British experience of 15 years of bombs and the IRA. Sands said having so many lives on the line is the "heart of the matter" in every country that deals with terrorism. Sands said that the British military eventually came to consensus that coercion of detainees does not work, just as did the U.S. military and the FBI. U.K. authorities "tried all the hooding, etc. in the 1970s, and it created outrage that extended the conflict with Ireland for 15 extra years." Sands urged dropping the term "war on terror" because it makes the extremists into "warriors" and creates "good recruitment arguments." Sands noted that President Bush, unfortunately, doesn't ask advice from other countries.
  Rep. Artur Davis, D-Alabama, had an excellent discussion with Sands about the fact that Israel has fore-sworn torture, feeling that their democracy is stronger. Sands also said the the "ticking time bomb theory is completely hypothetical."
  Rep. Darrell Issa R-CA's discussion elicited from Professor Sands that, "The Army Field Manual is a sensible guide to use for interrogation. Sands regrets that the President vetoed good legislation prohibiting the use of water-boarding. He also recounted a conversation with an unnamed foreign head of state, who pulled a copy of the Yoo memo out of his pocket and asserted to Sands, "Why not do it?"
  Rep. Keith Ellison D-MN asked Phillipe Sands the question, "Does torture work?" Sands recounted his 1 and 1/2 years of investigation of the interrogation of one man, the so-called 20th hijacker, al-Khatani, "and the torture produced nothing. You cannot determine what is true with this method. For example, Khalid Sheikh Mohammed ("KSM," thought to have masterminded the 9/11 attacks) was tortured and confessed to everything. Coerced information leads to excluding the facts that are true.
  Rep. Bobby Scott D-VA asked Sands what is the affect of allowing troops to use torture. He answered, "Military morale is degraded, and exposes members of the military as well as U.S. nationals in foreign lands to higher risk from enemies." Sands reported that he has been contacted by many members of the military who are pleased by how the investigation is proceeding.
  Rep. Mel Watt D-NC asked what the committee should do next? Sands gave this advice. "Just document the facts needing exploration. Exercise prosecutorial discretion with your subpoenaes. The Committee can do this. Just ask all the lawyers about all the facts. Regarding other aspects, torture violates the Geneva Conventions. The U.S. has the obligation to investigate and prosecute or extradite officials to other countries who bring up charges against U.S. officials. "The U.S. must handle this or other countries will," he warned.
  Rep. Steve Cohen's D-TN questions to Sands elicited further leads from Sands to the Committee that should be investigated: for one, the high level of tension regarding the move towards aggressive interrogation at Guantanamo. Look into "Spike" Bowman's concerns that were brushed off by DOJ Counsel Haynes. Find out what Haynes' role was, what did he do to Khatani, and what did Donald Rumsfeld do? Sands said that Haynes already knew of Yoo's DOJ sign-off memo before the first trip to Guantanamo. Evidently, Haynes put the blame on two military officers, who've now been prosecuted. One was Diane Beavers who has been hurt by the public revelations, "outed." All these facts need to be investigated by this committee, Sands concluded. (See "The Green Light" article linked above to flesh out this imformation completely).
  

• Witness prepared statement: David J. Luban
  Professor of Law
  Georgetown University Law Center
  
  Professor Luban was questioned by Chairman Nadler. Luban discussed the intervening Supreme Court's decision regrading the application of Common Article 3 of the Geneva Conventions to detainee treatment. He also elaborated on the legal memos' words about the whole concept of measuring physical pain. Saying that the "severe pain" definition, to which the torture memos referred, is a medical emergency that was taken out of the Medicare statutes. He also discussed the memos' idea that prohibited severe physical suffering had to be applied if "prolonged." He noted that water-boarding usually takes just three minutes.
  Rep. Darrell Issa R-CA elicited the professor's information that, during interrogation death threats against the detainee's family are not legally allowed, but that some other kinds of lies to "trick-out information" is permissible, and even moral.
  Rep. Keith Ellison D-MN asked the question whether there had ever been an actual "ticking time-bomb" episode, and he replied that none has ever occurred that has been documented.
  Rep. Steve Cohen's D-TN questions to Luban also revealed that British Intelligence has admitted to using five of the 15 different severe interrogation techniques discussed during this hearing.
  Rep. Mel Watt D-NC asked, "what should be done about all this?" Luban recommended that we find out what really happened, including what techniques were actually used, publicize all the as yet unrevealed memos, get the full story out, go after legal ethics violations, but not get into the law-breaking aspects just yet, as that would be premature. He added that none of this has been a state secret for three years, denying that excuse to the administration.
  

To be continued -- "Tortured Thinking, Part III - the Final Witnesses." I encourage you to read "The Green Light" article for Sands' complete narrative of his year and a half investigation. I believe it to be very significant material because so many of the players were quite willing to talk to the professor about it.

(Cross-posted at South by Southwest.)