John Ashcroft in Davos via matt.hintsa.

The House Judiciary Committee is taking testimony today from three witnesses regarding the DOJ and its approval of interrogation techniques and procedures in Gitmo and beyond.  Witnesses today include:

– John D. Ashcroft, former Attorney General of the United States
— Walter Dellinger, former Assistant Attorney General and Solicitor General
— Ben Wittes, Brookings Institution

The hearing began at 10 am ET, and is covered on C-Span3.

PENCE QUESTIONS:  Starts with a mention of having been to Tony Snow’s funeral.  Then goes on a discussion of how he could have been 7 years dead as a result of the plane hitting the capitol had folks on the flight not fought back, talking about his family visiting the Pentagon memorial for the 9/11 attack.  How valuable was the information gathered from Kahlid Sheik Mohammed and others?  Ashcroft says that information is only valuable if you care about the lives of American citizens and then it’s extremely valuable.  Going over the different techniques for different folks argument again.  It is not a sacrifice of liberty to protect it or to enhance it — says that techniques may hev been grabbing someone’s shirt or shouting loudly or other techniques.

COHEN QUESTIONS:  Starting out with a back and forth on potential aicraft attacks on the US.  Does the president think the torture laws need to be changed to bring them in line with what they think they should be allowed to do?  Ashcroft says that from what he sees, neither of the memos would have disallowed the activities in which the Administration ould have engaged.  Can you name specific situations where you’ve given the president the benefit of the doubt.  Ashcroft says they pretty much always start with that assumption.  Doesn’t remember how Yoo came to DOJ — or whether Cheney or Addington recommended him.  Asks about history judging them — Ashcroft says confident Constitution is being upheld and will continue to be upheld.  Asking about the plots to disturb liberty — the Card and Gonzales coming to his hospital room.  Ashcroft says that there should be robust debate, and you have a situation where there are different legal opinions, the President comes down on the side of the DOJ where there are professionals who make the legal opinions.  You would expect a free society to have vigorous debate.

KING QUESTIONS:  Some blah-bity-blah about the long service given to his country and gosh haven’t people been mean to you.  [CHS notes:  No freaking clue what he's talking about with that one.  It's been fairly tame today.]  Prosecution under torture statute?  Ashcroft says there has never been a prosecution udner the statute for torture.  Attempt was made by Yoo and others at OLC.  Guessing where the SCOTUS might go is a lot harder than guessing where they might have been.  People are mean for asking you questions about why you did what you did.  [CHS notes:  Because, apparently, Steve King thinks the Congressional responsibility for oversight should include tea parties and croquet.]  Did you try and come up with things where the Democrats would be in charge and actually ask questions instead of just saying "yes, whatever you want"?  [CHS notes:  This is the point where Steve King crosses that fine line to asshole.  Yet again.]  Ashcroft says that there are challenges in writing OLC opinions, it was the same when Dellinger was there as well — it’s almost quasi-judicial, what can we ascertain from previous rulings in this arena?  If you had the political looking glass to look into the future, how might you make different decisions along the way?  I wish the opinion had been written so that it wouldn’t have to be adjusted.  But wouldn’t make any fundamental changes.  Ashcroft says that he doesn’t believe the Yoo and Bybee memos to be wrong.  He doesn’t agree with Dellinger that these constitute torture, but I could be wrong and he could be right.  It happens.

JACKSON LEE QUESTIONS:  Thinks it is crucial to go forward but be mindful of one’s past.  Should an independent prosecutor be appointed to evaluate missteps on Iraq war?  No.  What power should Congress exercise in future to be certain that President doesn’t overstep authority?  Congress has responsibility to enact laws which limit action within framework of constitution.  Colloquy on powers and overseeing on missteps and holding back on abuse of power.  Asks Dellinger.  He says that the series of hearings have helped to expose some of those bits of information.  Thinks special prosecutors are generally unwise, but bringing actions in contempt of congress or something of that nature, could be useful.  Go back to hospital room – what do you recall of the visit there by Gonzales and Card?  Can you describe your condition at that time and that you rose from the pillow and said something direct and seemingly harsh.  Ashcroft says he can’t recall the facts, he considers his health records private and discussions with administration officials are also private.  Had been in intensive care for about a week, and hadn’t had food or drink for about a week, so I was likely thirsty and grouchy. 

ISSA QUESTIONS:  Makes a joke about detainees getting better treatment than Ashcroft in the hospital.  Oh, ha ha.  Going on about the classified briefings thing again, so clearly that’s a new GOP talking wedge point.  [CHS notes:  Issa looks like he's been attacked by a tube of Bryl Cream today.] 

JOHNSON:  As AG, you were senior law enforcement officer?  Yes.  You supervised FBI?  Yes, although Dir. of FBI is a separately appointed person.  Plus, you oversaw terrorism prosecutions nationwide?  Yes.  Your position was that DOJ should have had a voice in the military tribunal process as well?  I felt that we should have some part in that discussion, yes, but not oversight, no.  Military tribunals try war crimes, and the AG has no authority to try those.  It has been reported that Yoo, who was your subordinate, had advocated keeping the DOJ out of the process of trying terrorists?  Ashcroft doesn’t recollect whether he was upset about this.  Yoo was dealing directly with the WH and office of Vice President without your knowledge about this — was that true?  Ashcroft says he’s aware of those reports.  There were individuals in the DOJ who expressed concerns that we retain independence and detachment.

Recess for two short votes.

JORDAN QUESTIONS:  What good things have you done the last few years?  Ashcroft says that he does care on how we are viewed abroad — as Reagan said, "a city shining on a hill."  There are forces who stand for different things than we do.  There are groups who seek to force people to their view by terror and other means.  In resisting that, there is always a risk that people will misinterpret what you are doing.  The mislabelling that "enhanced interrogation techniques" as torture is damaging because Ashcroft doesn’t see this as torture.  Having done what’s right, we have to do our best to market it so that people see this as not being bad.  Wittes says that there are people who would hate us regardless of what we did.  Dellinger says the pictures from Abu Ghraib have hurtus tremendously, whether or not people would hate us regardless.  Wittes adds to this — I think the question ought not to be how the terrorists feel about us, but whether we are making it easier for them to have a wider audience.

SHERMAN QUESTIONS:  Goldsmith worried about advice Yoo was providing in the AGs name.  Did you veto Yoo for the job as head of OLC?  Ashcroft says that he thinks it is very important to have independent, detached, fully vetted advice provided by OLC to the President.  During this time at DOJ, there were key individuals who served me and served the department who expressed reservations relating to the proximity of Yoo’s relationship with various individuals in the administration.  My view was to make sure that this wasn’t some singular view or an isolated conclusion — looked at this to ascertain how serious that consideration should be, and raised those issues.  Says he felt the US and president would be beest served if there was an OLC chief that would emphasize the characteristics he spoke about earlier more profoundly.  Does OLC speak for itself or the DOJ?  OLC is part of DOJ, and I’ve always taken it as the gospel — always treat it with respect.  Press reports describe heated meeting between you and Cheney regarding military tribunals — after discovering Yoo had advocated keepingDOJ out of process.  Ashcroft says he won’t comment on meetings with administratin officials.

FRANKS QUESTIONS:  Appreciate the tone of the comments and questions today.  Franks says they’ve had 11 hearings that make it easier for the terrorists [CHS notes:  First it was 5, then 9, and now 11.  They are multiplying while I sit here typing!]  Franks works in another reference to his Sunday school class for 2 year olds.  blah blah blah finally gets to a question — asks Ashcroft what was your goal at that time and in which legal framework were you trying to work?  We were trying to do everything in our power and within the law to defend America.  At one point, I said, "We should think outside the box, but we should never think outside the Constitution." 

BALDWIN QUESTIONS:  Can you describe your understanding of the role of National Security Counsel and its committees played for authorizing treatment and other detainee policies?  Ashcroft says it’s tough for him to define because he is not a member of NSC, so he’d only be able to give partial picture.  But you were part of Principles Committee?  Ashcroft says he was called to participate, usually when his legal opinion was requested.  Did you ever come across any evidence of criminal conduct by any US officials, DOD, DOJ, CIA, or any other agency?  To the extent I was involved in these meetings, they would have been classified, and I won’t comment on them.  Different agencies would have made different decisions depending on the individual circumstances of each situation — the legal opinions were to give some baseline understanding, and were to have been very limited in application, only to al qaeda detainees outside the US.  Should not have applied to detainees pulled in fighting in the war in Iraq.  Where would the ultimate choice for interrogation techniques for, say Abu Zubaydah have been made?  I don’t know.  Are you aware whether any of our allies would use techniques that would be considered torture?  Ashcroft says that he has not witnessed anything which would cause him to have that interpretation.  How about rendition to a nation who would use those techniques to take the lead on interrogations?  Ashcroft says he could not name a person that would apply to.  He can’t say.  Do you know what US policy is on rendition?  I don’t know.

GOHMERT QUESTIONS:  Would one of our US personnel be criminally liable for waterboarding one of our agents in SERE techniques?  Dellinger says that there would be a question of mens rea and a voluntary participation in that by the participant, so probably not.  Gohmert says well, golly, then there are questions of whether this would be acceptable.  Dellinger says there have been folks who have volunteered to go through waterboarding to determine whether it was proper, like Levin.  Gohmert says maybe other people ought to be waterboarded, too — the radical Islamics are willing to cut off people’s heads and mistreat our military personnel.  Dellinger says he thinks what McCain said is good.  Gohmert goes on to discuss pirates during the Jefferson administration.  [CHS notes:  Barbary Pirates equals Islamic terrorists?  Good lord.]  Gohmert asks Ashcroft about folks who have accused him of war crimes.  Ashcroft says that he doesn’t think that they know what war crimes are — glad that the public wants to keep an eye on what public officials are doing.  It stuns me that people want to run around and call other people a criminal.  Stunned that sometimes the people who do that are supposed to be the most liberal and the most rights-oriented.  One of the great aspects of America is that we are very, very tolerant of people expressing these opinions.  Shouldn’t be used recklessly, though.

SCHIFF QUESTIONS:  The OLC head choice is extremely important.  Is it fair to say that the WH was trying to foist an OLC director that was too pliable to the WH wishes?  Ashcroft disputes that "foist" terminology.  Ashcroft says that he developed a concern because others in the department raised questions that he felt were important.  President is elected to ahve people that he’s comfortable with in office, so to the extent that he can have those people in office, he should have them.  Schiff says there is a danger of circular logic — the OLC is still an obscure office for most people in the US — but the current AG says that because the OLC says things are not torture then, ipso facto, it’s not torture.  This is why this is extraordinarily important — the rationale for asking for certain people in OLC is important when it’s being used as justification.  You both seem to imply that even if it is a flawed opinion, there is no liability to be had.  Shouldn’t there be some investigation to say that if the prohibition against torture was violated, to insure that the opinions were not promulgated in order to cover questionable behavior.  I don’t know how you can say with any certainty that only lawful techniques were employed when you ahve testified that you don’t know all the techniques that were being employed.  Going through the colloquy on the opinions being withdrawn, but that the conclusions were right anyway.  Ashcroft doesn’t want to answer a hypothetical with a memo which authorized illegal conduct and how you’d hold someone accountable for that illegal conduct.  Asks Dellinger to comment on it.  Dellinger says he’s not altogether happy with the answer that the law leads him to — that you could install someone at OLC to hand them get out of jail free cards.  Unless you could show that the person engaging in the interrogation knew that the order on which he was relying was done to exempt that person from legal sanction, then absent that bad faith or other plan for using a bad opinion in that way, then you would have difficulty prosecuting someone.  There is a footnote in the 2004 (fn. 8) in the opinion, that needs more discussion — too ambiguous.

DAVIS QUESTIONS:  After 9/11, at the time there was an incredible spirit of unity in the nation.  Talks about legislation that went through with large, bi-partisan margins and support.  Fast forward to 2006, 2007 and today — intense political division over aspects of the administration’s national security actions and policies.  How do we get from a point where we had such a level of bi-partisan support to where we are now?  Dellinger says that he thinks that the biggest mistake was to take on this task unilaterally — to exclude the other branches from responsibility and inherent authority.  Refers to an op-ed that he wrote on this back in 2001.  Says that we have reached the point where we need to reclaim the balance between the three branches.  Ashcroft says that he spent a lot of time working together with Congress on the Patriot Act.  What about detainee policy, sir?  I don’t know.  We saw the recent work on the military tribunals…  Davis interrupts to ask why it wouldn’t have been beneficial to work on detainee policy together?  Ashcroft gets pissed about being interrupted.  And there’s a back and forth on working together and Ashcroft saying that it’s not "his" administration, with all due respect.

ELLISON QUESTIONS:  Asks if military prosecutions for waterboarding prisoners by soldiers in Vietnam was used in the OLC evaluation of the law?  Ashcroft says that the law was written years after those prosecutions.  Goes into unindicted co-conspirators.  Asks about the watch list, and not having a good process to clearing people off the watch list to remove people who were put on inaccurately.  Ashcroft says that it’s not in our interest to have people on the watch list who should not be on there — it impacts both success of the operation as well as the liberty and freedom of people in the US. 

Hearing concludes.  Transcript to be left open for 5 days for amendments and additions.

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  3. Ashcroft on Waterboarding Prosecutions
  4. IG Report: Ashcroft Complained He was Misled by CIA, Too
  5. When and To What Degree Was John Ashcroft Read Into the Illegal Surveillance Program?