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


Date: June 26, 2008
Location: Washington, DC


And this has been a very informative hearing. And I'm going to request both witnesses -- or extend an invitation of both witnesses to appear before the subcommittee that I chair, because this obviously has foreign policy implications, which is the Foreign Affairs Subcommittee on Oversight. I would hope they would accept that invitation for a more expansive conversation and dialogue about these very important issues.

It's true that the United States is a signatory to the Convention Against Torture. Is that accurate, Professor? Either one.

MR. YOO: Yes, it.

REP. DELAHUNT: Okay. And the domestic legislation we're talking about was to implement the Convention Against Torture.

MR. YOO: That's correct.

REP. DELAHUNT: And the whole issue of what constitutes torture, what techniques are implicated in that definition, would you all agree that there are some techniques that are per se considered torture? Such as electric shocks, Professor Yoo?

MR. YOO: I'm sorry. It's Yoo.

REP. DELAHUNT: Yoo. I apologize.

MR. YOO: In the memo we have a list -- an appendix --

REP. DELAHUNT: I haven't had an opportunity to review the memo. But would you consider the use of electric shocks?

MR. YOO: Yes. It's one of the things that are listed in the back of the memo as things that courts have found to violate -- not this statute, but the other statute, The Torture Victim Protection Act, which is a little different than the criminal statute, but we thought close enough.

REP. DELAHUNT: What about waterboarding?

MR. YOO: I'd have to know exactly what you mean by waterboarding, but there is a description in the appendix -- in the appendix to the 2002 memo -- that talks about trying to drown somebody.

But you know, when people say waterboarding, they seem to have lots of different -- they're referring to lots of different things. So I think it's important to be precise if we're talking about what the courts approved -- I'm sorry, not what courts have approved. What courts have interpreted the language to mean or not.

REP. DELAHUNT: Well, it's been reported that on three different occasions, the Central Intelligence Agency utilized waterboarding -- at least that's the term that was used in the reports in the media. Is that your understanding, Professor -- Professor Yoo? Are you aware of that?

MR. YOO: Well, sir, I've read the same press accounts that you have, I'm sure. And I have seen it in the press accounts and I've also seen it in, I believe, a statement made by the president.

REP. DELAHUNT: And I think that --

MR. YOO: Oh, I'm sorry -- by the head of the CIA.

REP. DELAHUNT: And that was my understanding as well, that it was acknowledged by the head of the CIA.

And I think you, Mr. Addington, indicated that you had multiple conversations regarding enhanced interrogation techniques with the CIA.

MR. ADDINGTON: With the Office of Legal Counsel -- Office of General Counsel at the CIA.

REP. DELAHUNT: Did the issue of waterboarding arise during the course of those conversations?

MR. ADDINGTON: I think you'll find that over the years, as lawyers in the group talk, at various times there will be discussion of a particular technique. As I indicated to the chairman at the beginning of this -- when the subject came up --

REP. DELAHUNT: Was waterboarding one of --

MR. ADDINGTON: That's what I'm answering, because I know where you're headed.

As I indicated to the chairman at the beginning of this thing, I'm not in a position to talk about particular techniques -- whether they are or aren't used or could or couldn't be used or their legal status.

And the reasons I would give for that -- if you'll look at, I think it's exhibit nine of the president's speech of September 6, 2006 explains why he doesn't talk about what particular techniques --

REP. DELAHUNT: Oh, I can understand why he doesn't talk about --

MR. ADDINGTON: Because you've got to communicate with al Qaeda if you do. I can't talk to you. Al Qaeda may watch these meetings.

REP. DELAHUNT: Right. Well, I'm sure they are watching. I'm glad they finally have a chance to see you, Mr. Addington.

MR. ADDINGTON: I'm sure you're pleased.

REP. DELAHUNT: Given your penchant for being unobtrusive.

In any event, there would appear to be a question as to whether the use of -- on those three occasions that have been acknowledged by the CIA and reported in the media -- as to the technique that was used as to whether it was a violation -- a per se violation of the Convention Against Torture or not.

Would you agree with me, Professor Yoo?

MR. YOO: Your question is there's a -- you're saying there's an open question whether waterboarding in the way used by the CIA violated the Convention Against Torture?

REP. DELAHUNT: That's what I'm saying. It's an open question.

MR. YOO: No, I understand. I just want to make sure.


MR. YOO: I think one of the problems is that the Convention Against Torture is interpreted different ways by different countries. And so if your question is, does waterboarding -- the way it's been described by the director of the CIA, Mr. Hayden -- violates the treaty, it may violate the treaty as understood by some countries.

Our understanding --


MR. YOO: Our understanding of the treaty, as defined by the criminal statute and the Torture Victims Protection --

REP. NADLER: Without objection, Mr. Watt has one additional minute, which he has yielded to Mr. Delahunt.

REP. DELAHUNT: I would pose this: Those -- the techniques, whatever was utilized on those occasions -- and I think we could agree it's an open question -- if they were used on American military personnel, it would still be an open question as to whether they violated the Convention Against Torture then?

MR. YOO: I assume you're still asking me?

REP. DELAHUNT: I'm asking you.

MR. YOO: Yeah, Mr. Delahunt, my understanding of the testimony that the head of OLC gave before the committee, was that it was his view that if we were using it as part of the training on our own servicemen and -- (inaudible) -- officials who might be captured, that I thought it was his view, in his testimony, that that would not be a violation of a statute. But, --

REP. DELAHUNT: So, if it was used by an enemy, because we considered that it did not constitute torture, then the enemy that utilized that on American military personnel would not be in violation of the Convention Against Torture? Is that --

MR. YOO: I -- (inaudible) --

REP. DELAHUNT: -- a fair statement?

REP. NADLER: The time of the gentleman has expired. The witness will answer this question, please.

MR. YOO: Sir, I don't remember whether Mr. Bradbury went that far, or may -- and reached that conclusion. You know, that -- you know, that could be an implication of what his statement was, but he -- I don't recall --

REP. DELAHUNT: Excuse me, the question was of you, not of Mr. Bradbury.

MR. YOO: I know, sir, but I wanted to make sure that (laughs) I'm not -- that it's clear what the administration's position, as I understand it, is, because they directly answered the question to the committee.

REP. DELAHUNT: But, would you answer the question. If some enemy interrogator used that technique on an American prisoner of war, would that be --

MR. YOO: You know, my view now is that it would depend on the circumstances. I think that there would -- I agree with the Congressman --

REP. DELAHUNT: Okay, thank you. Thank you. It would depend on the circumstances.

MR. YOO: But I just want to -- okay.

REP. DELAHUNT: All right, go ahead.

MR. YOO: I mean, I just want to fully answer your question --

REP. DELAHUNT: Go ahead, go ahead.

MR. YOO: -- (inaudible) -- cutting me off.

REP. DELAHUNT: Go ahead.

MR. YOO: Oh. (Laughs). I'm sorry, I thought you were cutting me off again, and I was accepting the cut-off that time.

No, my only point is that it would depend on the circumstances. But I'm not saying it would never -- that it would always not be torture, sir. Again, there is an appendix, it's -- (inaudible) -- opinion that lists trying to drown somebody as something that's -- that violates the Torture -- (inaudible) -- Protections Act.