it involves months of review. it involves going through millions of unredacted papers, documents, tables, d e-mails, and a substantial number of rsonal interviews. the work will necessarily be classified in order to get the full scope of what has happened. and the work will be done fairly and professionally nd in a strong bipartisan manner, and i want to stress that. ..

>> thank you, madam chair. and someone who is seen first hand of your work on the

intelligence committee i'm very proud of it and look forward to supporting you in th effort. >> senator feingold, do you wish to make a brief opening statement? >> i know we want to get onto the hearing but this hearing is such an important step in shedding light on one of the worst abuses in the past administration. let me declare the so-called enhanced derogation program was illegal. it was contrary to our national values, and it undermined our national security. like chairman whitehouse and chairman feinstein, i am a member othe intelligence committee. and i can tell you that nothing i have seen, include the two documes to which former vice president cheney has repeatedly referred, indicates that the torture techniques authorized by the last administrationere necessary, or that they were the best way to get information out of detainees. so clearly, the former vice president is misleadinthe american people when he says otherwise. mr. chairman, i support further

declassification including the rest of the justice department memos and letters on this program, the inspector general report, and the work of the intelligence committee provided the relee would not jeopardize national security. and i've also thought the declassification of my own correspoence, which i sent to then cia director detailing my clear opposition to the program. whe the revelation in the past month are uncomfortable for some, they are absolutely essential if our country is returned to the rule of law. i am pleased that the members of the judiciary committee and the intelligence committee are moving forward to determine exactly what happened. and i continue to believe that an independent commission of inquiry as to chairman leahy has proposed is needed so that we can fully understand and come to terms with this dark chapter in our recent history. thank you, mr. chairman. >>hank you, senator fngold. and just to chime in on that point. i think it's clear that i also agree that time will come when frankly it becomes inevitable that a nonpartisan authoritative

commission should take a look at the work of senator feinstein's investigations, the opr opinions, the jewish year he committee does under the adership of chairman leahy and dried altogether so the american people can make the appropriate conclusions. our first witness is david luban. professor luban is a leading expert on the legal ethics turkey h wtten numerous articles and books on the subject, including legal ethics, leading textbook on the subject and legal eics and human dignity, which collect selected essays is written on during the last 20 years. he is the professor of law at georgetown university law center where he has taught since he joined the factory of georgewn university law center in 1997. he has previouy taught at the university of maryland, yale, and n't state universities. held a phd from the old university and a ba from the university of chicago. professor luban's recent research interests have included the legal ethics applicaton of u.s. torture policy and the powers granted to the president by the constitution.

as result, he is particularly well-suited by witty olc memos and clean ethical issues that e race. professor luban. >> thank you, mr. chairm. chairman whitehouse, ranking member senator graham, chairman leahy, and distinguished members of the committee -- >> let me say one thing quickly because you are first witness. i would like to try to keep all of the witness statements her some of them are quite lengthy on paper, to five minutes. and saw some point witnesses are gointo start hearing this noise, which is your warning that the five minutes has run out and if you could please wrap it up. and if you asked into far beyond i will sply cut you off so everybody has a fair chance and so thathe senator to have a chance to engage in dialogue, which is the most helpful part of a hearing. >> i may go a minute or so over. thank you for inviting me to testify today. you have asked me to talk about the legal ethics of the torture and interrogation memos written

by lawyers in the office in the office of legal counci based on the publicly available sources i have studied, i believe that the memos are an ethical train back. when a lawyer advises a client about what the law requires, there is one basic ethical obligation, to tell it straight without slanting or skewing. that can be a hard thing to duplicate the legal answer isn't the one the client wants. very few lawyers ever enjoy saying no to a client who is hoping for yes. but the professions ethical standards clear. a lal adviser must use independent judgment and give candid and unvarnished advice. in the words of the american bar association, a lawyer should not be deterred from gting candid advice by the prospect that the advice will be unpalatable to the client. that is the government standard for all voters pick in public, private practice or private, but it's doubly important for lawyers in the office ofegal counsel. the mission of the olc is to give the president advice to guide him in fulfilling an awesome constitutional

obligation, to take care that the laws are faithfully executed. faithful execution means interpreting the law without stretching it and without looking for loopholes. olc's job is not to rubberstamp administration policies, and it is not to provide legal cover for illegal actions. no lawyers advised to do that. the rules of professional ethics forbid lawyers from counseling or assisting clients in illegal conduct. that require competence and a demand that lawyers explain enough to think like you make an informed decision which surely means explaining the law as it is. these are standards that the entire legal profession recognizes. unfortunately, the torture memos fall far short of professional standards of candid advice an independent judgment. may involve a selective and in places deeply eccentric reading of the law. the memos cherry-picked sources of law that back thei conclusions and leave out sources of law that do not. they read as if they were reversed engineered to reach

predetermine outcomes. approval of waterboarding and the other cia techniques. and my written statement goes through the memos in detail, mr. chairman, let me give just one example here of what i am talking about. 26 years ago president reagan's assist department prosecuted law enforcement officers for waterboarding prisoners to make them confess. the case is callethe united states versus lee. four men were convicted and two hefty sentences at the court of appeals upheld that the court of appeals repeated refer to the technique of waterboarding as torture. this is perhaps the single most relevant case in american law on the locality of waterboarding or an lawyer can find the lee case in a few seconds on the computer just by typing in the words water torture into a database. but the authors of the torture memos never mention it. they had no trouble finding a case where who didn't follow harsh. it's hard to avoid the conclusion that mr. hugh, judge

bybee and mr. bradbury chose not to tenon the l case because it cast doubt on their case that waterboarding is legal. without getting furthernto technicalities that quite frany only a lawyer could love, maybe not even a lawyer, on a professor could love, i would like to mention briefly other ways that the torture memos posted and distorted the law. the first bybee memo advances a startlinbrout three of executive power according to which the president is commder-in-chief can override criminal laws. this was a theory that jack goldsmith who headed the olc after judge by the departure described as an extreme conclusion that quote has no foundation in prior olc opinions or in judicial decisions or in any other source of law. it comes very close to president nixon's notorious statementhat when the president does it, that ans it is not illegal, except that mr. nixon was speaking off-the-cuff and a high pressure

interview, not a written opinion by the office of legal counsel. the first bybee memo also ridges lynwood terminator statue to explain the legal definition of torture. the medicare statute lives severe pain as a symptom that might indicate a medical emergency. mr. hu versus edge and announces that only in density to organ failure and airmen of bodily function or even death can be severe. this definition was so bizarre that the olc itself disowned it a few months after it became public. it is unusual for one olc opinion to do so in an earlier one, and it shows just how far out of the mainstream mr. hu and judge bybee headwater. the memos authors areiously looking for a standard of torture so high that none of the enhanced interrogation techniques would count, but legal ethics does not permit lawyers to make frivolous arguments merely because it gives them the results they wanted i should note that on january 15

of this year, mr. bradbury found it necessary to withdraw six additional olc opinions by professor yoo or judge bee. mr. chairman, recent news reports is that it did justice department internal ethics watcog, the office of professional responsibility, has completed a five year investigation of the torture memos. opr has the power to refer lawyers to their state bar disciplinary authorities and news reports say they will do so. i have no personal knowledge about what opr has found. presumably, investigators were looking either for evidence of incompetence, evidence that the lawyers knew their memos don't accurately reflect the law, or evidence that the process was short-circuited. this mning, i have calle the torture memos a legal train wreck. i believe ismpossible that lawyers of such a great talent and intelligence could have written these memos in the good-faith belief that the accurately state the law. but what i., or anyone else believes is irrelevant, ethics

violations must be proved by clear and convincing evidence and not just asserted. that sets a high bar and it should be a hig bar. in closing, i would like to emphasize to this committee that when olc lawyers write opinions, especially secret opinions, the stakes are high. their advice governs t executive branch and officials must be told frankly when they are on legal thin ice or crossing over into unlawful conduct. and the american people deserve the highest level of professionalism, and independent, let me emphasize independent judgment, and i am sorry to say that they did not get it here. thank you, mr. chairman. >> tnk you, professor luban. one of the perils of senate hearings is most that have been. and a boat has just happened. and what i will do is recess the hearing for five minutes to give us a chance to vote. if it takes longer than that, but i will be backing miguelito called the hearing back into session and if other people need to take a bit more time.

we're glad to have become bac bufor now the hearing is temparily adjourned so we n now vote. [inaudible conversations] >> spin on the bus administration approval of certain interrogation techniques. senators are questioning legal

experts about opinions issued by the justice department's office of legal counsel. that allowed enhanced interrogation. this portion is about an hr and 40 minutes. >> thank you all and my apologies again for the interaction. but it's one of our obligations around here. the next witness is philip zelikow who is the white burkett miller professor of history at the universiuniversity o virginia, one of my alma mater's, it's very good to have him here. he was counselor at the department of state, deputy to secretary condoleezza rice in 2005 to 2007. from 1998 to 2005, mr. zelikow drafted the univeity miller center of public affairs as low

as three bipartisan commissions including the national commission on terrorist attacks upon the united states, referred to colloquially as the 9/11 commission. from 2032004. previously, mr. zelikow serve as a career foreign service officer at the state department and on the white house national security council staff. he is hardly a member of the board for the global development program of the bill and melinda gates fndation. mr. zelikow received his baccalaureate degree from the university of redlands, a law degree from the university of houston, and his masters and phd from the fletcher school at tufts university. mr.elikow, welcome. we await your testimony. >> mr. chairman, senator graham, thank you for giving me the opportunity to appear before you today. the committee has my cd. i will detail my experience. i willust say that i was working counterterrorism for a nuer of years before 9/11.

i have experience looking at this is both a scholar a as a polimaker. i was a member of the president for intelligence in advisory board from 2001 to 2003 so i do remember what it was like after 9/11 and what some of the ises were at the time. and i've had some responsibility in having to me tough decisions on these isues from the poli side. i smitted to the committee a lengthy written statement that goes into a lot of detail, which i'm not going to recapitulate in detail. basically the statement touches on some reasons why i think we chose to get into a program of this kind. just trying to stepack and analyze it, because i think in many ways this was a large collective failure in which a lot of americans, a lot of americans from both parties thought they needed a program like this in order to protect the country. i think we can now judge not to have been a mistake. as senator graham said in his opening statement in there for

it is important since this is a collective failure, it was a mistake, to learn from that mistake. copperhead why we made it so i have a few things in the statement that go into that. further, i didn't talk about my work on these issues as what our suspicions grow about it in the 9/11 commission, the 9/11 commission include recommendation that was designed to anticipate some of these concerns, the recommendation that the administration ignored, which s itself an ominous si. and then my getting involved more directly with these issues when i joined the state departmentt the beginning of 2005. during most of 2005, the main focus in our work to get this to change, by our work i mean the work of secretary rice, legal adviser john bellinger and i in a series of principles and deputies meetings that have been put in motion by president bush, because a clue what his advisers to reevaluate all these issues.

during 2005, we mainly focused hard on getting the administration to agree to the standard of the 9/11 commission had proposed which was please accept this eid standard. is the idtandard is an acronym that stands for cool and human degraded or in other words, please accept that we're going to have all of our intelligence programs covered by this basic provision of the law of armed conflict, which is codified in various ways, including in our dostic law i believe through the federal war crimes stute. by the end of 2005, those efforts have been successful. the various battles that went on or detail in my statement, including a couple of documents that reflect the positions that i adopted along with the deputy secretary of defense and others that give you some illustration of the way we were making these arguments in june and july of 2005. by december 2005 that battle had been one. both because of internal work but also because of the mccain

amendment. it was clear that the cia and the government were going to have to accept a cid compliance analysis. does, by early 2006 there was no way for the administration to avoid the need to reevaluate the cia program against aid standard. the work of the nsc deputies that i was involved in intensified. the olc had guarded against the contingency of a substitute a cid review. in its may 32005 opinion. olc had helthat even if the stanrd applied, the full cia program, including waterboarding, complie with the. that is, the full ciprogram including waterboarding did not violate prescription against cruel and inhuman degrading to. the ola view also meant in effect that the mccain amendment was a note to. it would not prohibit the very program and procedures senator mccain and his supporters

thought they had targeted. so what about you applied the standard having been won, my colleagues and i in the state department then have to find another battle over how to define the standards meetis. that meant coming to grips with olc's sutantive analysis. olc contended that these subjective terms like cruel or humane should be interpreted in light of the well-developed and a notice prescriptions found in american constitutional law. therefore, to challenge olc's interpretation, it was necessa to challenge the justice department's interpretation of u.s. constitutional law. this was not easy. olc is the authoritative interpreter of such law for the executive branch of the government. many years earlier, i had worked in this area of law. it seemed to me that the olc interpretation of u.s. law in this area was stranded individual. and a whole variety of ways. my view was that i could not imagine any federal court in

america a green that the entire cia program could be conducted and it would not violate the american constitution. while the cia's case while olc's interptation of other areas of law are well known to be controversial, i did not believe my colleags had ever heard arguments challenging the way olc had analyzed these constitutional protections. further, the olc position had implications wavy on the interpretation of international treaties. if the cia program passed muster, under an american constutional compliance announces, then at least in prinple a program of this kind would pass a erican constitutional muster, even if employed anywhere in the uned states. on american citizens. we will reflect on that for a moment. so i distributed my memo analyzing the legal issues two other deputies at one of our meetings in february 2006.

i then took off his abilities on other work. when i came back i heard the memo was not considered appropriate for further discussion. and that cops of my memo should be collected and destroyed. that particular request passed along in formally addressing proper, and i ignored it. this particular memo has evidently been located in states filed and is being reviewed for declassification. the broader arguments are what the future of the cia program went on for months that even though the old program had effectively been discontinued. internal debate continued into ju 2006 at city hall and a decision by president bush. accepting positions that secretary rice had urged again and again the president set the goal of closing the guantguantánamo facility designed to bring all the high-value detainees out of the black side and bring them towards trial, seek legislation from congress that would address the development and defend the need for some continuing cia ogram, but one that would comply with relevant law.

when president bush announced that decisions on september 6, 2006. i let the government at the end of 2006 and returned to the university of virginia. secretary rice a mr. bellinger remained deeply involved in these issues for the following two years. working for constructive change. but in some, the u.s. governmt over the past seven years, adopted an unprecedented program in american history of cooling calculated dehumanizing abuse, and physical torment to extract information. this was a mistake. peaps a disastrous one. it was a collective failure in which a number of officials and member of congress and staffers of both parties played a part endorsing a seattle ofiscal coercion even after the mccain a minute was passed and even after the hand and decision. precisely because this was collective flure, it is all the more important to comehend it and learn from it.

r several years, our government has been fighting terrorism without using these extreme methods. i can comment on that both worldwide and in iraq. we have been doing this under international standards for years. now we faced some serious obstacles in defeating al qaeda and its allies and we could be hit again, hit hard. but our decision to respect international standards does not appear to be an interest in despite. in fact, if the u.s. regains higher ground and the wider struggle of ideas, our prospect and a long conflict will be better. others may disagree. they may believe that recent history, even sisters house and five, shows that america needs an elaborate program of in definiteect detention and physical coercion in order to protect the nation. the government a the country needs to decide whether they are right. if they are right, our laws must

change and our country must change. i think they are wrong. stack that you, mr. delco. our next witness is professor at. an associate professor of law and of the drug of the center for terrorism law at saint mary's university school of law in san antonio, texas. in 2000 he retired from u.s. army of judge advocate general corps after 20 years of service, specializing in human rights law and natural service. professor advocate holds a doctor of science and a metropolitan university of virginia school law. we seem to be popping the place today. and a jurist doctora from university of alabama school of law, the new ranking member of the judiciary committee would be very pleased. professor addicott. >> thank you. just for the record i'm a full professor now, but even though i am from alabama i'm going to try to talkfest because i i got five minutes. the ppose of assessment is to

provide information from a legal perspective on the issue of enhanced interrogation practices used by use of certain al qaeda operatives by cia interrogators in the bush administration as approved by the subject lal memorandums. in the context of the approved interrogation methodologies, the primary concern is associated with the cia's use of waterboarding. bifold testament of course is in the record. at the al qaeda detainee are not a private speech if you can't read rapidly, even that won't work with 16 pages of testimony. you have to make some measure to summarize. >> let me just do it off-the-cuff than. you know, the torture convention is a primer in a national document that we are looking at heren the context of how we are measuring what the cia memo refer to. and with the united states signed the torture convention, we had certain reservations and there. and they said that that we understood that in order to constitute torture and act must specifically intend to severe

mental pain or suffering and that mental pain or sufferg refers to prolonged mental harm. e memorandums look at the issue of torture, of course. and the word torture rolls off the tongue with great ease. but you have to recognize it's not every alleged incident of interrogation or mistreatment necessarily tisfies the legal definition of torture. it is imperative that one view such allegations with a clear understanding of applicable legal standards set out in law and judicial precedent aggrandizement allegations are kind of illegal interrogation practices, e.g., waterboarding, can be properly measured as falling above or below a particular legal threshold. and my legal opinion the so-called enhanced interrogati practices detailedn the subject legal memorandum did not constitute torture under internationa law. why do i say that? there a very few international cases that really stand on point when you look at this issue. perhaps the leading case though in the anglo-saxon tradition is

the european court of human rights according arlen versus united kingdom. by an overwhelming vote by 16-one, they found practices called the five techniques utilized by british authorities to investigate suspected terrorism in northern ireland to be inhumane and degrading. that is, ill treatment but not torture by a vote of 13-4. these five techniques to let me just describe for the committee what some of them were. one of them was walton could they force t detainees detained for periods of hours in the stretch position described as spreadeagled against the wall with their fingers put high above their heads against the wall, the legs spread apart, feedback causing them to stand on their toes with a weight of their body mainly on their fingers. walston was practice for up to 30 hours with occasional courage of rest. the british authors also engaged in hdie weather plays a dark cloud over the head of the detainee again for prolonged periods of time. days. they subjected the detainees to in a room where there is

continuous loud and hissing for prolonged periods of time. they deprive them of sleep for prolonged periods of time. a deprive them of food and drink recing the food and drink to the suspects pending interrogation. now to the reasonable mind, considering the level of interrogation standards set out in the arctic, the conclusion is clear that even the worst of the cia techniques authorized by the d.o.j. legal memorandums, waterboarding, would not constitute torture. the cia methods of waterboarding appears similar to what we have had hundreds and hundreds of times. i was also in theilitary for 20 years that i was a senior legal adviser for all the green berets and the world. i am veritably with the concept of waterboarding. if you looat the island case and use logic that if you look at what they did in the arledge case, and at course, that is not torture, they said it's ill-treatment. even the worst of what we have done, that level is going to be way below that. so therefore, by legal conclusion based on the armed

cases that we are not engaged in torture and other international case above the committee case that comes out of the court of israel which also looked at harsh interrogation tactics. in conclusion, those who order approved or engage in torture must be criminally prosecuted. if we conclude in fact that we did engage in torture, in other words, i'm going to ignore the arlen case, there is no way out of this. we have to prosecete under the torture convention those that approve it, those that authorize and those that cared it out if can't say i'm the one and yes we engage in torture and not do anything. we are violating international law if we didn't get on the other hand if we conclude that the techniques did not rise to the level of torture, which i argue, then we are under international obligation to prosecute those individuals under the torture convention. thank you. >> thank you very much, professor addicott. our next witness, our penultimate witness is professor

turner, who is the assiate protector of the university of virginia's center for national security law. i promise we didot set this up as a unirsitof virginia day. he is a former chair of the american bar association's standing committee on law and national security. a veteran of the reagan administration and a former national security visor to senator robert griffin, a member of the senate foreign relations committee. professor turn received his ba from indiana university and a jd and asked jd from the university of virginia. he is the author or editor of more than a dozen books and monographs on not issues and welcomed to the committee. professor turner. >> good morning, mr. chairman. i am honored to be here. like most jag officers i have dealt with the senator graham, got these issues exactly right from the beginning. i would like to associate myself with his statement and that advantage is to stop there becausmight probably not going to be as good as his but i will

continue. shortly after the story of abuse is driven of detainees first broke, i was going on a short vacation with my 14 year old son driving down interstate 64 when my cell phone rang. it was voice of ameri wanting a comment on the story of the abusive techniques. and my comment was it appears that some good people have made some very bad decisions. i have been a very stron critic of the waterboarding and other abusive techniques. i co-authored an article in the washington post entitled war crimes in the white house in july of 2007. i served with pride on the drafting committee for the ecutive order bring torture and if you maintain that there can, one of my suggestions was torture is not the international standard. under international law we are bound by comn article iii of 1949 geneva conventions. that standaris that all detainees are entitled to humane treatment. so spending aot of time deciding whether something is torture or not miss the point

that we have a much higher duty and our treatment of detainees. some of the things that have been done since then have made me furious to the point of wanting t kick a ll or something. but i ctinued to believe that the people who made these tragic decisions were decent, honorable, and ae. they were also frightened for their fellow americans and anxious to do everything within theipower to prevent the next 9/11 attack. now some may think that good people can do bad things. i would remind those people that on february 19, 1942, president franklin roosevelt issued executive order 9026 that ordered the detention and incarceration of more than 100,000 americans without probable cause, judicial sanction, or the slightest individualized suspicion of wrongdoing. most of those detained were u.s. citizens, many ofhem had been born in this country and never even visited japan.

their crime was to have japanese ancestors. today, we see this as one of the most outrageous abuses of civil liberties since the end of slavy. and yet, it was strongly supported at the time, not only by the president, but by california attorney general earl warren, who later earned a reputation as perhapshe most liberal chief justice of the supreme court of the 20th century. another well-known civil libertarian involved in a case with justice black,ho wrote the court opinion, the majority opinion that upheld the detention as legal. how could so many good and able people give their support to such a horrie policy? in d., one of the few people to speak out against this was jager hoover of the fbi. interestingly. th did this because he were frightened and they desperately want to prevent another pearl harbor. d i would submit that the olc lawyers, i hav met one of them to a three kinds of conferences, but i don't know any of them well, but my sense is all of

them acted from precisely the same motive. ey wante to save the lives of their fellow americans. the title of this hearing is what went wrong. part of the probm i believe is a general ignorance of some of the fundamental details of national securityaw. not only at olc, but elsewhere in the government and a deep througho the law profession. in my prepared testimony i gave several examples where the country has been divided by very basic principles of international law. the geneva conventions -- the third geneva conventio provides that prisoners of war are to be tried by military courts, not civilian courts. but this was not well known and so people got very unhappy. how could bright lawyers faito understand t common article iii applies? again, it sets the standard of humane tree to. i think it's not that hard. common article iii armed conflicts of a non-international

character. well, what the olc people said was there are at least 7 countries involved in this war, in one way or another, against al qaeda. the authorization for the use of military force approved by congress in october of 2001 clrly authorized us of force against foreign nations. again, the concept of an international war. it's not unreasonable to conclude that this was an international conflict, but without a sovereign state on t other side, and if you accepted by the supre court in hamdan case is that that is not the best interpretation of that is to say it does apply. common article iii states further that in conflict applies to conflicts quote in the territory of one of the high contracting parties. now you can interpret that to mean that a conflict that involves more than one state is not covered by common article iii. al qaeda, it was global in its

scope and attack us inside the united states, yemen, kenya, tanzan, and so forth. so it was not difficult i think for a non-experts to look at this language and say this does not apply. i think they were horribly wrong, but i don't think it was with evil decision. there seems toe an overwhelming connsus which i share that waterboarding crosses both the humane treatment and the torture line. i have a dear colleague who refers to in this very outrag of all of us who refers to as torture like. and i think that is probably a good description. it is no accountable to what was done tour pows in the non. it is not comparable to the naming, the braining and the dismemberment that is gone through history. but it is wrong. it should not have happened. and the most important thing is to make sure it doesn't happen again. as to what we dm now about those whoe decisions, the

republans came to power in 1953. they conol the white house, both houses of congress. to the best of my knowledge and recollection, no one demanded a truth commsion to go after the ghost of fdr or black or earl warren. they understood that good people, fearful for the safety of theib fellow americans, trying to stop the next attack did some very ba@ decision. and i think that's what has happened to. thank you,r. chairman. >> thank you, professor turner. is as if you would agree with the observation othe old french minister that the greatest danger in times of crisis comesrom the zeal of those who are inexperienced or i will take a moment now to recess very briefly so that the necessary security measures for mr. soufan can be put into place. everybody take the witnesses can remain in your c. if we can clear some othe cameras out of the fro of the

well. [inaudible conversations]

[inaudible conversations] [inaudible conversations] >> thank you. ali soufan is a chief executive officer of these hupond gro llc and international strategic controls and the firm that advises governments and corporations on policies strategies to become risk management and training. more significant for our purposes, he is a former fbi supervisory special agent who investigated and supervise highly sensitive and complex international terroriscases.

including the attack on the u cole, and the events surrounding 9/11. mr. soufan has received numerous awards and accommodation for his counterterrorism work. these clude the director of the fbi's award for excellence and investition. the respect for law-enforcement award for relentless pursuit of truth and bringing terrorist subjects before the bar of justice. and an accommodation from the u.s. department of defense that labeled him an importa weapon in the ongoing war on terrorism. mr. soufan is an honors graduate from manield university of pennsylvania where he received undergraduate degrees in internationa studies and political science. he is a magnum cum laude graduate of villanova university where he received a master of arts in international relations and apprs to have no connection to the university of virginia. [laughter] >> mr. soufan, thank you for being with us. >> thank you, sir. mr. chairman, committee members, thank you for the opportunity to

appear before you today. i know that each one of you carries deeply -- >> can you speak up and clean with a news everybody can hear? without anyone being able to see you it's more impornt to be her. >> mr. chairman, committee members, thank you for the opportunity to appear before you today. i know that each one of you cares deeply about our nations security. it was always a comfort to me during the most ngerous situations that i faced from going undercover as an al qaeda operative to tracking down the killers of the 17 u.s. sailors murdered on the uss cole, that those of us on the frontine had you support and the backing of the amecan people. so i think you. the issue that i'm here to discuss today, interrogation methods used to question terrorist, is not and should not be a partisan matter. we all share a commitment to using the best interrogaon

method possible that serves our national surity interest and fit within the framework of our nation's principles. as an fbi agent, i spent much of my career investigating and unraveling terrorist cells around the globe. i have had the privilege of learning and working alongside some of the most dedicated and talented individuals from the fbi, and other law enforcent military and intelligence agencies. i was the government's main witness in both trials we had at guantánamo bay so far, and i'm currently helping the prosecution prepare for future ones. from my experience, i strojgly believe that it is a mistake to use what has become known as enhanced interrogation techniques. a position shared by professional operatives, including cia officers who were present at the initial phases of

the interrogation. these teniques from an erational perspective are slow, ineffective, and reliable and harmful to our efforts to defeat al qaeda. an example of a successful interrogation is that of al qaeda terrorist bruges and a. in the immediate aftermath of 9/11, together with my partner and -- >> let me interrupt for just a mont. ask unanimous consent that the real that were veloped in the investigation be made a part of the record i believe it is the first time they've been fully declassified. please proceed. without objection. >> indie mia aftermath of 9/11, together with my partners special agent robert mcfadden, first cls agent from the naval service, we obtained a treasure ove of highly significant actionable intelligence that proved instrument and the efforts against al qaeda and

taliban in the fall of 2001. it included extensiv information on everythg from osama bin laden's network and modus operandi, the details on individual operatives, some who we operated. the approa we use was completely buy the book. and it can be labeled as informed interrogation aroach. that is outlined in the army field manual, and is derived from the cumulative experiences, wisdom, and scesses of t most effective operatives from our country's military intelligence and law-enforcement community. the approach is based on leveraging our knowledge of the detainees bicep, vulnerabilities, andulture. together was using intelligence already known about him. the interrogator uses a combination of interrsonal cognitive and emotional strategies. to extract the information

needed. if done correctly, this approach works quickly and effectively because it outsmart the detainee using a method that he is not trained nor able to resist. the army field manual is not about being soft. it's about outwitting, outsmarting, and manipulating the detainee. in the approach is in sharp contrast of the method that instead tries to subjugate the detainee into submission through humiliatio and cruelty. the idea behind it is to force the detainee t see the interrogator as the mter who controls his pain. is merely an exercise in trying to force compliance rather than illicit cooperation. a major problem is it is ineffective al qaeda are trained to resist torture. as shocking as these techniques are to us, they are training prepares them for much worse.

the torture that they would receive if caught by dictatorships, for example. in a democracy, however, there is a glass ceiling the terrogatorannot break th eventually the detainee will call the interrogator's bluff. that as wi as we see from the nearly released d.o.j. memo, they had to keep harsher and harsher methods. in the case of, that continued for several months. and waterboarding itself had to be used in three times, an indication that he had already called his interrogators bluff. in contrast, when we interrogated him, using intelligeninterrogation methods, within the first hour we ganed imrtant actionable intelligence. the technique is also unreliable. we don't know whether the detainee is beingruthful or

just speaking to mitigate s discomfort. the technique is also slow. waiting 180 hours as part of a sleep drivation stage is time we cannot afford to waste in a ticking bomb scenario. just as importantly, this amateurs techniques harmful to our long-term strategy and interests. it plays into the enemy's handbook, and re-creates a form call a chinese wall between the cia and fbi. it also obtained sources, risks outcomes, ignores the e game anit dinishes our moral high ground. my interest in speaking about this issue is not to advocate the prosecution of anyone. examining a past we cannot changes only worthwhile en it helps guide us toward a claiming a future, a better future that is yet within our

reach. for the last seven years, it has not been easy object into these methods when they have powerful backers. i stood up and for the same reason i am willing to take on critics now. because i took in a saring to protect this great nation. i could not stand by quietly while our country's sety is endangered, and our moral standing damaged. i know you are motivated by the same considerations, and i hope you help ensure that these grave mistakes are never, never made again. think qou. >> thank you, mr. soufan. let me come another we are in the questioning period, begin with questionso you. and let me ask you more specifically about the interrogation of abu zaydah. again, reminding you not to divulge any information that is

nonclassified. you were prent at, indeed, you are one of the first if not the first interrogators present when abu zubaydah w brought into custy for the first time tside of pakistan, correct? >> guessers back. >> and new testament would indicate within the rst hour your interrogation of him, you have ined important actionable intelligence, is that correct? >> guesser. >> at that point his condition was such that you indicated that we had to take into a hospital, or he would die but at the hospital, you continued your questioning. and it was during your questioning of him at the hospital that you elicited information regarding the previously unknown role of khalid shaikh mohammed as the mastermind of the 9/11 attacks.

>> correct >> one of the more significant pieces of intelligence we have obtained on the war of terror, correct. >> that is one of them, just. >> and all this happen before the cia, ctc team and the private contractors arrived, correct? >> guesser. >> and then they arrived and immediately yosee on the instructions of the contractor, harsh techniques were introduced which did not produce results as he shut down and stopped talking. correct? >> yes, sir. >> and with that happening, you knew he had gd information. he shut down under the harsh techques, ando you again were given control of the interrogation, correct? >> yes, sir. >> ande used the same technique you had originally, which were in the ay field manual. >> yes, sir. it is me and another fbi agent who was with me at a top cia

interrogator. so our interrogation team was a combination between fbi and cia, and all of us had the same opinion that contradicted what the contctor. >> and in this third interview, the one dish or series of interviews and what, the one before the hospital, one in the hospital and then one after the fit round of harsh interrogation when you were brought back, was in the second round pursuant to appropriate tactics that abu zubaydah pics disclosed the details of josé padilla, so-called dirty bomber, is that correct? >> yes, sir. >> and then again the contractor reasserted himself and begin reimplemented harsh techniques, and again abu zubaydah shut down and stopped oducing information, is that correct? >> yes, sir. >> and once again, you are brought back intonterrogate

him now it was more difficult because some of these harsh techniques have been applied and his resistance was increased. but eventually you succeeded and you reengaged again, but at that point the contractor took over and began stepping up the notches of his experiment to the point where you protested to your superiors in the fbi that this was becoming inappropriate, illegal, i believe you even threatened to arrest somebody if you weren't -- if you were to stay there, correct? >> yes, sir. my description was borderline torture. >> and at that point your participation in his interrogation ended. >> yes. were asked by director mueller to leave the facility. >> so when you look at the office of legal counsel opinion of may 30, 2005, on page 10,

here's what the office of legal council said was the fact. interrogations o zubaydah again once enhanced techniques were employed, furnished detailed information regarding al qaeda's organizational structure key operatives and modus operandi him and identified ksm as the mastermind of the september 11 attacks. you have informed us that zubaydah also provided gnificant information onto operatives, including josé padilla who plan to build and detonate a dirty bomb in the washington, d.c., area, and the quote. from your posion at the actual interrogation o avenues of viacom you know that statement not to betrayal. >> yes, sir. >> oneptember 6, 2006, president bush statethe following. within months of september 11, 2001, we captured a man named abu zubaydah.

we believe that zubaydah was a senior terrorist leader and a trusted associate of osama bin laden. zubaydah was severely wounded during a firefight that brought him into custody and he survived only because of the medical care arranged by the cia. after he recovered, zubaydah was defined and evasive. he declared his hatred of america. during questioning, he afirst disclose what he thought was nominal information. and then stopped all cooperation. we do that zubaydah had more information that could save innocent lives but he stopped talking. as his question reseeded became clear that zubaydah had received training on how to resist interrogation, and so the cia used an alternative set of procedures. does that statement by the president accurately reflect the interrogation of transacting. >> that he is talking about just. he was injured and he needed but i think the president, my own personal opinion here, based on my collection, he was told

probably half-truth. >> and repeated half-truth obviously. his statement as presented does not conforwith what you know to be the case from your experience on an. >> yes, sir. >> i am over my time. senator graham. >> since there's just the two of us, if you want to keep going. thank you, mr. chairman. what we've got is for lawyers who are vepy bright, all have one thing in common. they like virginia. and i counted seven opinions among you i think you do disagree with yourself somewhere along the line. and the point is that you are very bright, appreciate you coming. and mr. soufan, thankou for serving our country. >> thank you, sir. >> and i appreciate your view of how we should behave. the point that we are trying to make is that weo forward that we get this right. and as we look back in dhe past, we don't want to shade is on

way or the other unnecessarily. is it your testimony that enhanced interrogation techniques that were employed right after 9/11 yielded no good information? >> ian only speak about my own personal experience. >> that's the point, isn't? >> get. >> and i admire you. i really do. i appreciate what you are doing. mr. chairman, i think there is some information out there that shows that enhanced interrogation techniques did you good informaon. and i would like it to be part of this inquiry if we're going to have a. buthaving said that, mr. soufan, i oppression which were telling u were you involved in the ksm interrogation at all? >> no, sir. after mike stand up al qaeda, and what i believe is right, i was out of the program stack i don'doubt that at all and i don't doubt that you are trying to help the country. i just think that this idea that no gd information was acquired is probably not accurae. but that doesn't justify what we did. that's all i'm saying.

now, as to the geneva convention, mr. turr, appreciate the gernment by the way. the geneva convention to me is always been a warehousing agreement between signatory nations. we catch some of your guys, we're going to treat them well. we expect like reciprocity. we catch a civilian, we're going to treat them well into the conflict is over. is that generally the goal of the geneva convention? >> senator, that is exactly the term that i use in teaching about the geneva convention. if you go back through history, the original practice was to put them to the srd, somebody got smarter saide can turn them ito slaves. they played around briefly with parole them which is to say okay go back to your blog or your farm, don't come back to the battlefield. as the king said or the prince said, get to tailback in the battlefield and so they finally said, look, let's not kill them.

let's just warehouseman warehoused them, treat him humanely, the damage award is over. we will treat prisoners. and has been the practice for several hundred years. spec and isn't a problem in this war that number one, al qaedas not a signatory to the convention. the only way we are going to stop this enemy from attacking us is to find good information and hit them before they hit us. >> again, that's right out of my testimony. >> i have never taken a class by the way but i am liking it so far. unlike any war we've had, this war is 90%, if not more, intellence. usually you need your intelligence service to identify the locatin of the enemy and their plan and then you send yo tanks, your armor, your carriers. in this battle, a place to parma could arrest al qaeda if we could find them and what they are doing. so intelligence is incredibly important. >> mr. akaka, is that right? we are the only nation that i know of that considers al qaeda operatives a military threat. every other nation looks at this

is a law enforcement presence is that you? does everyone agree with that? >> no, sir. don't think that is the case anymore. . . >> i have not had that rare privilege. >> i have. have you er been to an interrogation conducted in italy. >> lo. >> do you believe that these

>> there is no agency in the world intergrates because you can't say hel. i just want the world to understand, and now my team is up. the reason we have adopted is and t odd thing about this is if you go down to the military conflict, in ny ways you restrict the ability. but i think that's the right model to have with that. i'ld yield to you it's just the two of us. >> let's go back and forth. >> yeah. i mean we have to figure ts out as a world, not just a nation. right? >> absolutely. in fact, it's a cold issue to

fight. for the fight, o reason we're having this discussion is let's work on standardshat we'll also be with our allies. one other question i want toed pursue about the interrogation of that was obviously considerable conflict between one side that was achieving actual information, so significant that when the jose information became available as i recall the attorney generaof the united states had a press conference in moscow. and the other method which was producing a shut down if you will on the part of the detainee and it has been often cast as the difference between the trained professionals of the cia versus the amateurish military interrogators, teenagers who

need the army field manual short of for their training wheels and law enforcementnvestigators and other things and can't be serious. it strikes me from the description that two elements of th, the issue are wrong. first of all, well that military and law enforcement investigators are actually the trained professionals you refer to the other group as amateurish hollywood type. and t second is that the dision wasn't between the cia and the fbi, you had cia professials who were wit you and wanted toontinue. and on the other side ofhe equation was a private contractor who was not even a government employee. could you comment on those observations? >> yes, sir. it has been reported that it was

a conflict during the interrogation between fbi and a. i totally disagree. and that's something that i meioned -- >> in the field level at least? >> at the field level, yes. that's why i supported the cia in the "new york times" on this issue. they were 100% supported. actually the chief psychologist objected to these techniques. they are t interrogator was 100% i think in sync with our view because he' a professional interrogate tour. i think using the harsh methods or using the enhanced methods misunderstand the threat that we face from ideological extremist. and countries around the world inhe middle east who use this as regully as possible pedaled

away when it comes to the terrorists of al qaeda. and islamic. they are ideologically motivated. they are expecting a lot to haen to them when they get caught. and the best way to deal with them is to be mart and engage with them. and that's what prosided aot of intelligence before and after 9/11. and, you know, in a classified session we can talk about the successes versus the failure ofs of tse techniques. one of the things that has been mentioned abouthis technique, the scesses that have been talkijg about publicly. well, water boarding was not approved until august 1st, 2002. after an international man hunt, he was finally arrested after he landed in the chicago airport on may 8, 2002. almost three months before these

techniques were imposed we know about muhammad in april. again water boarding was nots approved until august 1. i am bases my opinion from two things, either collection, i don't have any notes, i'm just having my memory. that's number one. and number two, i am basing on what i've been hearing in the public domain what happened? >> i'm goingo turn to i have just a few seconds left. i just want to drop in one question. and that isn your review of the llc memos, was there any mention of the role of private contractors? sir, i don't recallny specific mention of private contractors. >> i don't recall it either. and it would seem that tt might raise legal issue. it's interesting that would be the fact in the lengthy opinions

that never appears to have -- >> well, i agree senator. and i should add that i was also very troubled by the chronology that he just mentioned. when mr. bradberry was writing the opinion and wrote that the capture was resulted from enhanced interrogation techniques, that was already public information that he had been captured in may and the techniques weren't approved until augt. so the legal opinion that he wrote stipulates something that was common public knowledge to be untrue. >> he didn't have speal knowledge to know that it was false. >> correct. >> thank you very much, mr. chairman for this hearing. mr. seleco you've had fascinating things working as

counselor and serving as the director. and i would like to ask you if you can amplify a little bit on what has beenharacterized as disclosures to leaders in congress about interrogation techniques. i served on the intelligence committee of t senate for four years, and i found myself constantly in a frustrating position. of being told classified information and be warned not to breathe aord to the public at large for the fear that it would edge gauge the lives of pple that were helping. some cases our colleagues and staff. >> yes? >> and so tre wereimes when frankly i wanted to walk up and call press conference. and say i america only knew. now i've said that on the floor, pele have said, i don't get it.

aren'tou supposed to sayhat you believe is true no matter what? i think you know better. especially when it endangerers someone's lives. when members of congress was briefed, was it before the fact, were they being asked to authorize their techniques and give their approval? >> sir, you think senator feinstine mentioned, ssci is trying to break down the chronology. the director of the national intelligence publicizing which then need to be matched up against when we were doing things and the -- i don't know whether folks were briefed before the fact. normally what's supposed to happen is a men ran dumb of notification is prepared that let's cgress know that a program is being undertaken be the autrization of the president pursuant for the

presidential finding. and therefore members of congress are being informed of the finding. >> we're now doing certain things. >> it could be after the fact, it could be at the time it's initiated and before it was implemented. it appears that the congressional consultation seriously, which the administration should. >> and i recall only one stance where the member was briefed on the wirap situation. and in his frustration, a desperation, hand wrote a throat file about the protesting this. which didn't surface until later. but it was the only way that he could create tangible evidence, displeasure,r disapproval of what was happening? erase because i've spoken. and i know he was duty bound by the law a by his conscience not to make disclosures of

classified information. and i felt at there was something here of worthy of being on the record as crude as his method was. i raise this because many people seem to be suggesting that if members of congress at the highest level are infmed that they are somehow complicit. and i haven't seen -- i've seen specific limitations of information when it's given to me and the senate ielligence committee and by reference from leaders when they are briefed. do you understand the difference here? >> i think do. and as i have listened to both sides of this argument, from this with some concern. i wiltell you on the inside when i was arguing, we were having heated arguments about these policies on the inside and in the white house situation room. the aument would be deployed well, we brief the following members of congress 9999 and they don't have a problem with

it. and in other words, they are briefings are being used to deal th arguments of the administration. yet, i hear what you are saying and what other members are saying. so eni have to ask myself, does the congress think that the oversight process that accompanies these programs is working to their satisfaction? >> well, the answer for me after four years experience, it's not even close. not even close. i mean there were times when, you know, you wanted to express your disapproval. , and there was no means to do it. if you were privy to the most important information. iust have a few seconds. i'd like to ask mr. zelilkow the decision on closing down guantanamoay. is that a good decision? >> yes, i wrote a paper that the president announce him attempt

to close it. >> i know unperson that was adviced by e-mail. he was adviced by e-mail ther was no charges against him. and that was 15 minutes ago. and that he could be released. he's still at guantanamo. and it's an indication to me of a serious mcarriage of justice. there are many now arguingo maintain guantanamo. i cannot imagine after president bush and president obama have made these and reached that conclusion that this is their position. what would be the consequence if we kept it open at that point? >> when i was on the inside i would make the argument that guantanamo is as much symbol as sustenance? i could ask people here has anyone heard of the federal correction in maryland? but every one in america has heard of alcatraz, one reason

alcatraz was there because it had become a symbol as muchs a a substance. then we created maybe just as tough tha no one has really heard of. and it doesn't become the same focal point. guantanamo had become a tin problem for the united states of america. so we needed to address that as an nourish our foreign policy. >> do you have any doubt in your mind that if the decision is made that any of these prisoners would be transferred to institutions where they could be held safely and securely? >> sir, we hold people who are farore dangerous in such institutions including some terrorists who is currently residing inside the united states now. i'll also add that when we --

i've had the opportunity on behalf of one of the federal judges through the habeas petitions, we asked for the classified files and provide expert advice or holding these folks. one of the things that strikes me now and struck me then is we have a vast amount of experience inow to judge the continued incarceration of highly danger prisoners all over the united states, including some really quite dangerous people. we routinely make these decisionnd for better or rse, we've worked out a lot of ways of deciding how to make those calls. i think that's a hole body of knowlede that hasn't been tapped very well in making judgments about how long you can capacity state a pretty broad spectrum of people, many of whom do not show large features of danger. >> thank you very much.

senator graham. >> what's the regarding the people that has been released, do you know? >> there no statistics on the rate. what we do know that some number of people who has been released has been encountered again on the battle field. numbers range dozens perhaps the people who has been released has been encountered again. and as with -- >> what about the miscarriage of justice? >> not, necessarily. >> what if it were your son or daughter? how would you feel? >> i'd feel the same way i would if parole boa released and then that person committed a crime. that happens all the time. and we're pretty familiar. >> there's a difference between kfm and a domestic criminal? >> is there sure is. >> i mentioned it, but agree. the only reason i mentioned that

is we have to undstand there are two sides to this story. there's very much two sides to this sto. and we need to move on and get it right. we need to facilitate what's left. i do not take by examination that he's volunteers illinoiss a the housing site. and i'm not going to ask my friend from rhode island. if you are waiting for a member of congress, you're going to be waiting until hell freezes over. because nobody is going to do that. but i do believe we need to close guantanamo bay. i do believe we can handle 150 or 250 prisoners and protect our national interest because we have 450,000 german and japanese prisoners in the united states. this idea they cannot be housed soone safely, i disagree. but the decision to put them someone is vy important.

it needs to be well thought out. and the idea of that you have to let these people go or try them, i completely disagree with that. mr. turner, how do you believe? >> well, i was going to suggest for the record, senator durbin was talking about somebody being held for years without being charged. as you know the theory of p.o.w. is being ware warehoused, he's not considered a wrongdoer, if he's a prisoner, you charge him and try him. but international law does not require that military combatants be charged to be detained. we mentioned the 400 plus thousand german p.w. we had in more than 40 states in world war ii. two of of thegot to qrters. they claimed american citizen. none of them got a day in court. they didn't get a lawyer. the theory of p.o.w.'s is they arnot wrong doers, they are

enemy soldiers who had a misfortune. you warehouse themnd send them home. if they committed the crimes, you have the option, but you are not supposed to keep them in a civilian prisoner and you're not supposed to try them in cou. >> that's exactly right. the point that we're trying to make is when a member of al qaeda is captured, all of them are not subject to war crime trials simply by their status. but if a independent judiciary agrees with the mill tear and cia that the person is in fact the evidence and decision that you're a member of al qaeda and enemy combatant, there are no requirement to let people go. do you agree with that? >> yeah, part of the premise is we're not using the law of war. we've done a lot of illegal stuff. we're dog what we do in every war. closing down gitmo is a

mistake. we're holding them illegally, we're tortures them, and that's the exact opposite message. we're in a state of war. if you are trying to stop them at the airport, you're too late. >> i agree. but i think it's an image problem. we need to move on. the moral hh ground the place to be. the only way we are going to purr pseudopeople is to show a different. now i don't want to tre these peop with kit gloves. do you agree that oncee capture and enemy combatant, it becomes about us not then. >> i think if w detain that individual under the law of war, and that's an issue that we have not made -- >> we will do things that they won't do to us. that's good. that's the good thing. we will treat them better than we will treat them. >> exactly. we have tortured people, that's

a lie. >> if i may just say here, water boarding at the time of 2002 was not clear what law it violated. the geeny have convention did not apply until 2006. here's what i'm saying. the difference between law enforcement and gledges gathering is a big difference. what you would do to a military member mp who abused a detainee would be the violation of the cia, fbi, you are not controlled. >> no. >> was your interrogation common article three compliant? >> not after 9/11. we get instructions that we don't read people the miranda rights, we don't follow a lot of things that we used to do. >> i would say that there is no fbi interrogation of a target

that is common article three compliant. simply because it was written to make sure that military forces don't abuse things. it was never write to restrict the ability to a nation to defend itself. and we have made a huge mistake here. we made two, we adopted interrogation techniques from the inquisition that had survived time because in some cases they do work. but they always come back to bite you. i will turn it over now to the chairman and hopefully we will find some way to move forward. >> i wanted to make a common on what the other witnesses have sa. >> very briefly. >> first i don't agree that everybody is an enemy. we know know there has been a number of people that the csrts have said they were enemies. second, i don agree that people haven't been tortured.

i think that it's very clear that muhammad was. i think it's perfectly clear in e schmidt report for the tactics that were used on him later served the worldwide. >> should president bush be prosecuted? >> i don't have any opion about who should be prosecuted. >> i suggest there are too many opinions. we should let them d the jobs. you have described the reaction to your report. and senator graham serves the armed service committee which has done a report of itswn. i askhat have 119 and 128 be put into the record. i can report that there was a great deal of disagreement and serious concerns over some of the legal conclusions reached.

that the navy general counsel called the olc memo relied on the by the working group. and a travesty of the applicable law. now we're at admiral damnton. to the external to the working group report relied, it did not include what i considered to be a fair and complete legal analysis of the issues involved. there was a chart that was created based on the olc opinion. and the results of that chart sort of green mean go column for techniques that were authorized. we were golfing again. that green column was wrong legally. it was embarrassing to have it in there. most if not all working group members and judge advocatesdy agreed with significant portion of the opinion, but were forced to accept it. and mr. hayes direction, the

direction and mr. walker instructed the wking group to aauthoritative and directive the plant being prepared by the working group action. you and your testimony said that when you're alternative views if you will were made known, you heard that the memo was not considered appropriate for further discussion. and the copies of your memo should be collected and destroyed. wh do those behaviors tell you abt the environment for proper legal debate and discussion about this question at the highest levels of the administration? >> it told me that the lawyers involved in that opinion did not well go through their review and conclusions. and what shut down challenges from peers even inside the government. >> lawyers love to debate.

it's our nature to quarrel are each other and to exchange views. is there any suggestion that you would draw that they were less than perfectly confident in their views when they weren't willing to subject the peer review? that's ordinary viewed as the test of confidence in one's judgments? >> well,he argument i was making were pretty profound. because if i was right, their hole interration of the cid was only on certain places and really quite grave issues about the interration of the constitutional law. now they have a couple of options. one option is today for the illegal advisor of the council. let's take another look at this. the case law you that site has some merit. or they can say boy, this shows

how rusty you are at practicing law. we need to come straight and tell you why you misunderstood this whole area of law. they didn't do either. instead they preferred to say we don't want to talk about it. >> thank you very much. i'm going to ask a question of professor, then i'm going to gived dnguished ranking member some time. and then i think the heari is already a bit over time. and i have a plane to catch to an iortant engagement. so i'll make a closing statement after that. my question for you, professor luban, has to do with the lead decision. ino that professor addicott didn't say it, despite the fact that he's from texas and it was a texas decision. i don't know if we have a diagram, but lee describes water boarding and describes it as torturever and over again. here's a picture of the pages of

the federal report highlating the united state department of justice's prosecution about all the times in which the court refers to thi technique as torture. what's astonishing to me is that in 93 page whereas they pig out medire reimbursement law as relevant, they don't find a case on point or they don't see the base on point in one of the highest courts in the land the unitedtates for the 5th circuit describes what boarding and calls it repeatedly, i think it's torture. i have pressed the department of justice on that question. i've discussed this on the senate floor. the attorney general's response was that it wasn't relevant because it was broucht under the civil rights act.

and a case brought under the act doesn't relate to a case brought under the torture stat constitute -- statute or torture. and at the time i was out of time, and i didn't have to chance to follow up. but i'd like your legal opinion on that. because it strikes me that the civil rights act under which sheriff lee was prosecuted, convicted, and jailed for the crime of water boarding, has no sus anitive elements of its own. it's a vehicle for enforng constitutional requirement and for punishing constitutional violatio. the civil rights act leads directly with no interference with the poi of few directly to the torture. look at convention against torture and what olc said about

it. the definition of that treat obligation is also founded directly in the constitutional standards of the united states. :

thrown out to confuse and distract from the fundamental fact they either missed the qassam point or they found it, he did and didn' bother to put it in the minow and i guess we will find out frothe opr, but what are your comments? >> i agree with your diagnosis of it. the case was decided in 1983. that was before -- >> under president reagan. this was charged by the office of president reagan. >> preceded the convention against torturand torture statutes, so its not surprising that it didn't mention these because they didn't est yet. the boardorture was not defined eccentrically or in a way to change its meaning in the torture convention or a torture statutes. it's roughly severe mental or physical pain oruffering.

i took the liberty looking a dictionary defitions of torture from around the dictionaries that would have been available to the court that was ridin the legal opinion and that is more or less the same definition you find in the oxford dictionary edition a that timeo the word hadn't mysteriously changed its meaning. the torture statute and torture convention we getting the words of very, very common sense every day nontenical meetings and what is striking about the lee case is the case was used again and again as if it was obvious this technique of leadinthe guy back in the chair, putting the towel over his face, pouring water on until he thought he was suffocating and started jerking and twitching they had no problem call it tortura. the word means exactly the same thing in the dictionary definitions of 1983 as the definition in the treaty and the statutes that followed.

so there's absolutely no reaso in the world that we should think the fact it was decided as a constitutional case rather than a torture statute case would have led to a different outcome. >> professor? thank you. would it be tortured to put a spider in the jail cell of a person afraid of spiders? >> conceivably. if thaperson was -- >> a black-and-white yes or no answer. >> it depends on whether -- >> if t person in the jail cell was part of a terrorist organizations with information about a pending attack and we know he's afraid of spiders would you say if we put a spider in the jail cell that we would torture that person? >> i would not. there is one circumstance the answer would be yes. that is if he knew or believed -- if it was known he believed spiders are deadly because part of the torture statute says that you can inflict mental pain and

suffering that's torture by threatening death to someone if it causes the point afterwards -- to an ordinary person, no. >> well, we are trying to export phobia. mr. addicott has a different view of what happened in terms of torture. do you think he is on ethical if he arrives at a different view of what happened here? >> i thihat -- i don't think that he is unethical for arriving at a differe view. i think it would be unethical if hegnored the relevant law -- >> have you ever met anyf these people? you are basing your opinion because they cite a case you think is despised as a bunch of crooks. is this what this comes down to? your opinion note raasonable lawyer could writeemo and exclude this case without being on ethical?

is that en you are telling this committee? >> this committee is one example out of many. no reasonable lawyecould scuss -- >> how could mr. addicott come to a completely different conclusion about the common definition of torture and not be on ethical? >> mr. senator, i can't speak for mr. addicott -- >> we will let him speak for himself. >> i would be happyo mention the ireland case he leaned his opinion on is not the only eupe court case on the meeting -- >> the fact you can tell me about the irelande -- >> -- called for example hosing somebodyown with water -- >> please, the fact that you didn't a case i didn't even know about that suggests the

techniques have been locked out by an international body and the onese use are less severe than the ones found not to be tortured and you didn't tell me about it. do you know about it? >> i am not telling you what is right or wrong -- >> did you know about the ireland case? >> of course i did. >> well, you know what? i don't think your unethical. >> i appreciate that -- >> i have also got further bad news for mr.oufan who i respect greatly in his interrogation. if you look at 2003 case ilves versus martinez you have identical set of facts, and individual interrogated while in an emergency room, shot five times in the face by a police official and justice stevens said the practice was tortured. think goodness he was -- >>an i respond? >> thank goodneshe was in the minorityase becae justice thomas --

>> interview somebody in the hospital? >> he even suggested in chavez versus martinez -- >> it's your opinion as a professor martinez stands for the proposition is torture for law enforcement to question a suspect in the hospital? >> my opinion is stevens was wrong -- >> you would take up stance that stevens would oppose any interration of any criminal defendant in a hospital? >> that is what he said -- >> can i respond to somof those assertions? first the time line that was criticized bore. the memo that -- >> excuse me, we will let you explain but have a few questions and then you can say anything you want. now, about the interrogation of the suspect. do you know a gentleman named john k-a-r-k-i-o-u? >> i don't know him.

>> he gave an interview, a retired cia officer and said abdul zubaah waterboard the guy and he broke within 35 seconds. >> is this question for me? >> yes. >> last week he retracted that and said he was misinformed and actually he was not at the abbett will supply the location. >> so he just -- >> he retracted that. that is one of the things mentioned bere and know it is now 83 times. >> do you believe any good information was obtained through the hars interrogation techniques? can you say there was no good information? >> for what i know on abbett choose a i would like you to evaluation the information. >> the vice president suggested there was good informational detained and i would like the

committe to get the information. let's have both sides of the store. one of the reasons these techniques survived about 500 years is apparently they work. >> there's a lot of people who don't know howo interrogate. >> i understand you believe you have got it right and these her people don't. on interest and that. in many ways i agree with you but this idea that you are the complete knowledge of what happened in terms of interrogation techniques and what was gained isn't accurate. your testimony isn't a complete repository what happened duri these interrogation techniques. there's other interrogations' going on and an allegation made these interrogations' steel disinformation that protected americans. if we don't talk about thatnd complete term -- >> to be fair to the witness he hasn't represent himself -- >> i mentioned my own personal experience. >> and i have nothing but put

the highest regarfor this gentleman. i just know this isn't eight. this isn't the whole story. and the point is do we need to keep doing this? i think wve cleaned up this mess. we have got it right generally speang in the more we get into this we are going to make it chilling for the nexgroup of people asked to defend the nation and that leads me to the last question. do you believe would be wrong for president obama to authorize a technique outside of the army field manual if the cia told m they had a high-value target they believe possesses information about an imminent attack? >> i you believe they should ask otr professional interrogators to evaluate -- >> do you believe the cia -- do you think that leon panetta is qualified for his job? >> i believe he's extremely qualified -- >> i'm going to read something to you.

>> [inaudible] >> this is important. ron wyden asked him if a person has critical threat information, urgent information and you need to be able to secure that information he asked leon panetta what wod you do in the particular situation where you have someone who could be a ticking time bomb and it's absolutely necessary to find out what information the individual has i feel we would have to do everythingossible, everything possible within the law to get the information. if we h@d a ticking time bomb situation obviously whenever was being used i felt was not sufficient i would not hesitate to go to the president of the united states and request whatever additional authority i would need but obviously i would against this president would do nothing and would violate the laws in place. having said that -- >> [inaudible] >> with the president of the united states, president obama, b from considering aequest from the cia to engage in the

interrogation techniques beyond the field manual that were lawful? >> from the quote you read the keyword from leon panetta with the law -- >> the complete all -- >> it is an outline for interrogation. >> thank you. i appriate witnesses -- i'm sorry i have to and the hearing. i have a plan and i cannot miss and i just want wrap up by adng the following statements into the record. from mike rights for u.s. military interrogator from peter shane professor at ohio state university, collegef law, colonel steve klein and u.s. air force rerve professional interrogator, matthew alexander professional interrogator in u.s. air force reserve and author of hoto bridge a terrorist and from human-rights first, senate armed service committee report i think i put in a record and testimony of michael stokes paul said. i would like to close with the

words of matthew alexander from his statement. as an interrogator and iq and conducted more than 300 interrogations' and supervised more than a thousand. i led the team that located zarqawi the former leader of al qaeda and one of the most notorious murderers of the generation. at the time week al-zarqawi he was the number-one priority for the united states military, higher than osama bin laden. i oppose use of tortu or abuse as interrogation methods for bo pragmatic and moral reasons. there ar many pragmatic reasons against torture and abuse first is lack of evidence torture or abuse as interrogation as other methods. in my experience with an interrogator used harsh methods it abuse in every instance it served only to harden the resolve of the detainee and made them more resistant to interrogation. the sec and pragmatic argue dent is al qaeda used the policy of authorized these illegal methods

as the numbeone recruiting tool for ford in fighters while i supervised interrogations' i listened to a majority of fight terse state the reason they had come to iraq was because the torture and abuse committed at abu ghraib and guantanamo bay. these fighters me approximately 90% of suicide in addition to leading in participating in thousands of attacks against coalition iraqi forces. it's not an exaggeration to say hundreds if not thousands of american soldiers died at the hands of dysphoric fighters, the policy of authored and encouraged the abuse of prisoners has cost american lives. i.t. played with four other air force agents with experiences criminal iestigators. we brought skills and training unique compared to the counterparts. we learned to interrogate suspects using relationship building in techniques. i learned quickly al qaeda has much more in common with criminal organizations the

tradional rank-and-file soldiers. i used techniques permitted by our legal under the terms psychological ploys, verbal trickery or other nonviolent coercive subterfuge to great success and i taught these techniques to other members of my interrogation the so-called ticking time bomb scenario used asn excuse. my team lived through the scenario every day in iraq. the man we captured were behind the zarqawi suicide campaign. mostrisoners had knowledge of future bombing operations that could have been prevented with destruction of accurate intelligence information. what works best in the ticking time bomb scenario is relationship building which isn't a time consuming ever been conducted buy properly trained interrogators at mom course of deception. contrary to popular belief building a relationship is not necessarily time-consuming exercise i conducted the capture in iraqi homes, streets and cars and

dioveredhese time constraint environments where interrogator dustin or 50 minutes to a detainee and relationship building and deception where again the most effective interrogations tools it is about being smarter, not being more harsh. when i took an oath offfice as a military officer i swore to uphold and defend the constitution of the united states of america which prohibits cruelty to any person

tolerance, cultural understanding, intellect and ingenuity. in closing the same qualities that make great americans will make us great interrogators. i had planned a long beard remarks but given the hour i will conclude with those words which are helpful and put at for their eckert pages from a book called campus 020 describing techniques employed by british military intelligence when the nazi threat loomed over their country presumably at least equal to al qaeda to our country and their findings ang other things that violence and interrogation is appropriate. for one thing is the act of coward and for another it is on

intelligent. >> thank you mr. chairman. maybe we will end with agreement. if we are talking about do i agree with what was it, the lieutenant that u read? yeah, i generally agree. i've been in military lawyer all my life. i believe in the geneva convention. if y don't want to live by the convention, get out of it. w there are people who have a different view. there are people frankly if we called as witnesses would probably graphically describe what they did and the information they received gave knowledge about the enemy we wouldn't have had otherwise. >> i am terribly sorry. what i would like to do is close the hearing of senator gramm's remarks there is a week to add testimony if anybody wishes. i apologize very much. you have the floor and at the

conclusion -- >> go to the airport. u will get screened, but that's good. the point i am trying to makes how you come down on this situation doesn't mean that on ethical. when you engage in techniques like waterboarding eventually it comes back to bite you and it has. it is just what i think necessary to win the war. but the people who are devising these interrogation techniques right after line mine 11. they were americans who were afraid t next attack is on i way. and if you're going to be balanced about this -- >> [inaudible] >> have a good day. if you are going to be balanced about this, that needs to be told, too. and we need to look forward.

and abraham lincoln suspended habeas corpus, okay? that's part of his legacy he thought the nation was coming apart and he was right and was trying to ep it together. 100,000 japanese-americans were put in jail for being nothing other than japanese. did we go back and try anybody for that abuse? all i am saying is these interration techniques were shared with members of congress who somehow can't remember what they are told and to me, that is the best evidence that we are trying to make policy, not violate the law. and mr. luban, i don't believe these people are unethical. they just did what mr. herger said, they made mistakes out of fear and we have learned from the mistakes. and here is my biggest fear, if

weeep doing this, and i bring a cia agent that tells the country let me tell you what i've got when i waterboarded somebody or what i did to this person, let me tell you what i learned we are going to tear this country apa. i agree with you but there are other people out there who to a different view and understood the law was subject to different interpretations and the british may not have tortured people in northern ireland but turned the peoplen northern ireland against them. that is the downside of what they were doing. they were legally probably of torturing people. i agree with you, mr. addicott, but they made a mistakehen it came to el niño for the people of northern ireland and that's the point i am trying to make. we have made mistakes in this war. we are going to make n ones and i don't want to take off the table f thipresident the ability to do things beyond the army field and you will to

protect this nation if we restrict ourselves to the army field manual, shame on us. it is the field manual, written for soldiers to make sure where they don't get themselves in trouble, not to get intelligence about the next pending attack. isn't that right, mr. turner? it is a guide to the soldier in the field. it was never written to be the and all and be all of how you protect the nation and if we adopt that theory we've made a huge mistake and learned nothing from the past and if we put it on lineand that's the only way we can interrogate somebody, we are stupid. so let's not misunderstand the mistakes of the past and the point we restrict ourselves in the future from being good americans but derstanding we are at war. we put people in guantanamo bay that board of enemy cbatants. the net was cast too large and some peopl have been put there that shod never have gone.

there are people that were let go that should never have been let go. by goal is to have a pcess, mr. zelikow, to have a nation hold our head up high and say no one is that gillette guantanamo bay because cheney said so. the only people in jail at guantanamo bay are there because the evidence presented to in independent judiciary by our military passed muster with judicial system that are there because they are a military threat a and that when you try these people they are tried not because we hate them but because of what they did and that decision will go all the way up to supreme court for review. the is a way to move forward in a way to learn from the pt but if we look backward did we get the wrong message we are going to make us less safe. the message coming from the mistakes of the past are not to unilaterally surrender, not to treat these people as common

criminals because they are certainly not. the message from the past is when you abide by american principles you are stronger in your enemy. would you go backward from the principles it comes back to bite you. but the principle that i am advocating is an aggressive forward leaning hit them before they hit us aitude. find out what they are up to, find out where they are getting their money and keep them on their back foot and we can do that without having to go back to the inquisition. >> i totally agree with you. i am so afraid but we are doing today is going to chill the legal advice to come in the future and we are putting men and women at riskaving their reputations ruined and the prosecution or civil lawsuits who did nothing but try their best to defend this nation. thank you.

now a look up t process how a bill becomes a plic hall in today's political climate. michael white managing editor of government publication called federal register leads th hourlong discussion at the national archives. >> [inaudibl -- drop them in the box on the y out. we appreciate feedback and now i would like to introduce michael

white, managing edir ofhe federal register here t talk about how a bill becomes a public law. [applause] >> thank you. i am all why your gup. ytoy and getting a good sound level. okai, good. whether it's my pleasure to speak with you all this afternoon as a washington, d.c. native i am glad we can provide you with the authentic summer experience and the nion's capital. sweltering heat and plenty of humidity. i was pleasedo be asked to present a program for the national archives 75th anniversary. i am over at the federal register which is a component of the national archives and has been since our inception. i was asked to talk about how a bill becomes a law which is an

d chestnut i guess but i am going to look at it a little bit more from our side, the executive branch because i am not a house or senate parliamentian and don't want them to think i am encroaching on their territory. i and going to start by just orientated the office of the federal register within the national archives. just last year we launched this new web site called federal register.gov and thiss a portal page essentially to all of our publications on various web sites. most of our publications are found o the giglio access website, theaily feral register, code of regulations. but we also have material on the national archives website and we

post a certain material only on this web site so to bring it all together we created this as a way to get to the federal register publications a little more easily. of course today's topics federal law so we have little era. you hit that were public and private law down here and getting you to the right place. a little bit about the office of the federal registe as you can see founded in 1935 so when you're behind natiol archives itself the federal register was found it more in concept before it actually became reality. after the infamous panel refining case where a federal regulation was litigated up to the supreme court and then found not to actually exist because it had been amended out of it systems and inaertently and

could not be found as an hour original document that incident spurred the american bar association, harvard law school dean, or when griswald to recommend federal register be found it. we have g fdr over there as he's often thought of as the father of the federal register when he was the secretary of the navy during world war i he proposed a federal register be established. later on he wasn't so keen on the idea once he was president because like all presidents, there is some concern about opening up the governmental proces to the general public and of course e federal register is a government newspaper and in those days fdr was considered there was a great deal of talk about him being a socialist and the register might be propaganda so nothing really

chans. so fdr given a lot of credit wasn't all that keen by the time it actually came around. new scholarship has revealed justice brandeis of the supreme court was behind the scenes motivating factor and there's a wonderful article about that if you should care to look it up some day. a couple other milestones the statutes at large were not always with the archives. they were produced by the secretary o state and it was only after world war ii and the national security appatus was reorganized that the state department threw off its domestic duties. it has gone to this day accept to say presidential resignation. remember when richard nixon resigned and submied a letter to henry kissinger secretary f state but these sort of state functions, housekeeping

functions were transferred to the national archives and federal register after world war ii to read a couple of electronic notes, first federal register mandated by congress to be electronic was 1994. we put the entire code of regulations online and 1997, but began updating it daily in 2001. we call it ecfr and we began authenticating laws in 2007. i will say more about that later. we are vy proud of the fact that we inaugurated on inauguration day of the daily compilation of presidential documents which replaced the old pamphlet version whi was the weekly publication and basically an print. the daily compilation posted the president's speech witn two hours after the inauguration and we now update every day.

this is the official publication of presidential remarks statements and other official documents that are not in the federal register itself. a word about technology w are switching the entire platform of law, regulations to a new system called fds or federal digital system things to notify the public of changes in regulations and laws. well, our objectives today, and this always presents a dilemma because we could easily spend three hours on the lislative process but what i am going to try to do is quickly run through how the bill becomes law and talking a little mo about the publication aspect which is what we do at the federal register

specifically, touch on the constitional and evidence year reissues and comment in a little on executi branch will involve making and building a little deeper, we are hoping as i said to speed through the law making itself, talk a little bit about the two different types of publication for the law, to different agenciesandle this. and th at the bottom i want to go over here in this case is and anomalies if we have time and i have a few examples leave out here which think are a little more interesting than the introduction of a bill and so forth. well, i picked out thisittle cartoobecause this is kind of a deep subject. here you see some legislation being right on the beach and the shore is a lot easier not to have to follow all of the ins

and outs. it is quite a complex process in the congress and we are not going to cover all of that today. here i express my apologies to the house of representatives for stealing their cartoons but this is on their web site in a little different form. well, the sausage making. lawmaking s been compared to sausage making and pause the german chancellor von bismarck eckert added with a statement is best not to look closely at the lawmaking process bause it resembles sausage making and it isn't pretty. he probably did it say that but he is generally given the credit so the only person who can introduce a bill to congress is a member of congress, president cat do that. he has to hav an agent introduce something for the

executive bridge. you see tre are four basic types of legislation. the first two bills at joint resolutions are virtually indistinguishable. it is by tradition there are two different names for these actions. there are a few things that specifically our joint resolutions like amendments to the constitution that are proposed, and of course i was here with the lt one was ratified and the federal register overseas that process as well, that was th27th amendmt so had had to be introduced as a joint resolution. that was back in originated 200 years ago we won't go into that. also, current resolutions and simple resolutions. the two houses can come up th a concurnt resolution and that may be on a matter of procedural or it may be a statement they would like to make. it has to be passed by both were they can have a simple resolution from just one hoe

and those do not get presented to the president. now we will talk more about this bill issue. there are private bills as well as public bills. private bills and as you might expect affect private parties, may be a single family, maybe an immigration case for instance special arrangement for someone to get citizenship. we will talk a little bit about this in the context of the schiavo case. now as we all know when a bill gets introduced members of congress to garner support from their other members and then the big lobbying campaigns kickoff and sometimes that is actually before a bill was introduced. occasionally youill see a draft version of a bill circulated around, but that's really before the official process.

well, here is a picture of the hopper and they'reiterally is a hopper and the house of representatives. if you look in the rules there is a quote a hopper is where to put the bill and when you want to introduce it. in the senate, it is not specifically a little brown box but youut it on the presiding officer's desk, and then a bill clerk will assign a number and these are basically sequential numbers. there is sometimes competition to get h.r. one in the hopper or s1, senate bill one. this year s wan and h.r. one were the american recovery reinvestment act to deal with economic crisis. of course they didn't come out that we on the other end as a public law it was 111 throop 0 so it was the fifth bill of the 111th congress to be enacted.

note trivia the first bill to be enacted was publicly all 111-1 was the fix for the secretary of interior, kenneth salazar whose sary had to be reduced in order to take the office since he had voted on the paq raises while he waa member of the senate. okay, so here we have there are many committees, to house from 16 cents. of course the cover different subject matters. actions it placed on the committee calendar and then they get marked up in the committee literally marked up. amendments are introduced and they may not go anywhere so they make it tabled, andhen very commonlyhere are referred subcommittees so the real work takes place at a lower level.

reporting a bill out. welcome a bill was reported literally with a report attached to it and this may reflect the amendments that have been made, the discussion and the recommendations of there may also be a minority report if the minority side doesn't agree with these recommendations they can make that known. then the bill gets placed on a calendar and this varies between the two houses. i won't go into all tse details but there are different calendars to get placed on and basically it's up to the majority leader and the samet and speaker and majority leader in the house as to how the bills go on the calendar. 40 date. again generalizing every bill that goes to the fore in the house is governed by a rule.

it has to go through the rules committee of the house for the specific parameters of debate to be outlined so how long will a bill in the house be needed, that is done through the rules committee,nd it may specify 20 hos of debate and so forth and the senate of course has on the limited d date theoretically so there isn't the same process, limited debate can lead to filibuster and we are all hearing a lot about that these days. well, the calling of t yays or nays, i don't watch c-span a lot but i believe the house is using electronic whereas the house has notdopted that andou hear the yays or nays called in the senate or one of the senators walks up tohe front and records the vote. each house has a journal and the

networks the votes aren't reflected in the congrsional record which comes out every day after the congress or one of the houses that least is in session now when a bill gets through one house its said to the other house and there's a couple of terms here important to note. one of those is engrossed, and if you look on the thomas website of the library of congress, you will see these terms, and grossed, the other one down here, in the world, and it's been very confusing. what stage is the legislation at. when one house passes a bill it is called the engrossed bill version and that is the version that goes to the other house. that house may or may not pick up the bill. it may literally believe on the table and that is the term, lea on the table mns it stays there and it can be explored. so if the majority leadern the

senate doesn't want to consider something the house has done that can be the end of it. of course there's a certain degree of common between the house so they try to work those things out. once a bill is passed there are differences in the two houses so the differences must be resolved in conference. each of the members of the house d senate are, there are several members assigned to the conference committee by their peter and that would include majority and minority members often and they work out those differences, then the final bill has to be sent back tooth houses is the consolidated things are made additional changes,nd when that goes through each house again that it's called the hilboldt version. the enrolled veron is just about as good as the public law because that is the version sent to the president.

interestingly, we still talk about the parchment being sent to the wte house. we no longer use goatskin for the parchment, but the paper is very thick and it resembles parchment. note also it has to be signed by e speaker and president of the senate said that certification we will talk about leader in one of the special cases that i will bring up. i don't recall which bill signing this was but this is from one of the gp zero access website for the president is signing a bill and this idea of presentment is very important in constitutional all. of course the normal process if a president agrees he will have a signing ceremony me with just a few members of congress like you see here. maybe it will be the rose garden with different constituent groups.

but also the president can take no action, and we call that a tenth day all. if after ten days, some days excluded, president doesn't do anything with a bill preseed to him. then fill all goes into affected so you will e in the statute book and in distinguishable between the two. simply says approved. neither the signed version or the ten day lull version carries a presidential signature simile. now we will talk a little bit more about that in ter of vetoes. it gets a little complicated because what if there are ten days left in a congressional session and the president does nothing? well, he can literally engage a pocket veto buy simply putting the bill aside and not returni

it to the congress if he objects, but the first case is more common where the president since the veto bl back and specifies objections of the message that goes tthe congress with the bill itself, the part of it goes back so that like the hot potato it gets traded back to the congress. inrestingly enough, this process pocket veto and a regular vetoes bombed a number of cases back in the 70's in particular. richard nixon anderald ford. richard nixon sent back a number of bills and it really wasn't clear just what adjournment means. we all hear congress an adjournment. but above the 70's the conference decided in order to reduce the number of the vetoes that the president of the opposite party in those days o

course richard nixon could actually put into effect they would appoint an agent to receive the bill while they were in the adjournment in case the president said the bill back so when y read the conitution closely it says if the president is prevented from returning a bill by adjournment than a pocket veto takes effect and so this was a device by the congress tsay it isn't impossibleo return the bill. we have got our age be the clerk of the house or secretary of samet or member of congress might be the and that led to a lot of litigation as well as pocket veto cases leader under president ford where the president adopted this very sort of strange hybrid version and it was like experiments with constitution what exactly does it mean? president ford sent back bills with a message that the bleeding to have pocket vetoed themt this seems odd so the congress

could sort of decide how they wanted to treat that and of course tre decision again, democrats versus republican president were to say this isn't pocket veto, you returned the bill we are going to override this if we can and they did so on several occasions. that went to the courts and we got the first indication wh adjournment is. and the courts almost gave a hard and fast rule that if it is adjournment,ada, if it is at the end of a session congress is an adjoument,nd if it is not at the end of the session they may appoint a agent. supreme court endsed that, the constitution didn't give the president the right to pocket veto a bill if congress goes out of town for the weekend tt isn't what it is intended for. later on that became a little

less clear. okay so we have already talked abouthe veto, it takes two-thirds majority. and so, what happens in terms of where the law ends up and that is where we finally come to the process of the federal register. now, if the president approves the bill a cork comes over from the executive clerk's offe at the white houseith the bill physically shows up at the office andresents it, gets the reseat. if all the other hand this is the veto override it doesn't happen often but the house and samet clerks know where to go so they wl take that parchment, bring it over and of course that won't have a presidential signature, it will have a notification that this was a veto override.

as we ha talked about coressional process of lot but it is worth while mentning the executive branch. before a bill is enacted into law before there is any legislative activity, eh of the agency's is authorized by the president and h agents at the office of management and budget to come up with legislative agenda so you have to submit not only your budget reests but legislative agenda. that will go through a review process at omb and they may or may not agree with some ambitious agency initiatives that the agency had put forward. there is a process you have to go through this laundry list of

considerations as to how you're proposed legislation is going to affect things. most agencies have legislative liaison who work with congressional committees. their oversight bodies. this, maybe they do get their legislative initiative put forward but then getting it through the committee, getting it on to the floor is another matter and so there is a sort of gentle pushing along and creasing of the skids. the agencies themselves consult during this process. it should be said and agencies have different interests and prerogatives and they don't always agree and are conious of their turf so we see the financial regulatory agencies battling over who gets to regulate the financial system and how and you have got five or six entities like the sec and

fdic, federal reserve. they are all trying to protect their turf in the legislative initiatives. no after a bill is passed by the congress comes eight review period seóul about this before and after there is review, and this is where the department of justice prominently ways and and it got about 40 hours generally to a lack of the bill. the president may say i am not re if i should sign this. and so, it is the office of legal counsel at the justice department that is generally charged with reviewing the bill, seeing if there are technical matters may a ltle bit out of whack they want to weigh in on and they may look at it in terms of the president's prerogatives and they may als have advice about whether the policy in the bill is good for this program.

omb also sends copies to the various agencies that might be affected and again the 48 our period to take a crack at this and then the president makes a decision and well know there are many competing interests that may or may not agree with some of the parties. well, here we go. now this is the nuts and bolts of my job. i want to talk about the two different types of publications. my two favorite animals here. they are different animals, but they work together prey well in terms of publication, we have talked about bill laws coming to the office of the federal register and we have to formats which are essentially softbound paperback version and hardbound version but the same material. slip laws are the first thing

that go off in the street after a bill has been enacted and is published. a leader on the united states statutes at large which i have one standing up there is produced and that should be identical to the various slip all which are litally slips of paper in a pamphlet and in case of some larger os. noat the same time there is an office and the house of representatives called wall revision council and this group of mostly lawyers is looking at newly enacted legislation and decidinghere the various components should be codified, organized into a different publication called the united states code. so you see the statutes at large

and supplies are chronological. it's one bill enacted into the law after another whereas united states code is organized by subject matter and tt involves very literally the process to take a pencil and kind of go across the page and create a segment of the law as distinct and say this should go in title xliv or this piece needs to go and title 28. and then they do that electronically a little bit later on. so here is a look at the statutes a large. volumes and slip law this is the publication the federal register produces. the distinguishing thing about the statutes at large it's extremely important for us is there is no resort to the

origin document if there is any question of what is in islip law or statute. in other words this is irrefutable evidence of the law and we have to take tremendous effort to make sure we capture the law correctly because those mistakes if there are any will become law. we will talk a little bit more about that in the spial cases. the u.s. code on the other hand is prite asia evidence of the law or the law on its face. it appears to be felt of the law. if you are looking for the original source document you need to go to dustin ploch or the statutes at large. however it is a lot easier to find material in the u.s code so commonly lawyers look at the u.s. code rather than investigate a slip law after it is several of-years-old.

this positive law geta lot of discussion, sometimes an internet groups and what not. some people think that if something is enacted into the positive law it isn't all and that is a misimpression. the positive law is a process whereby the u.s. code three pfizer's, the law revision council goes through the volumes periodically and say well, you know, we have done our best to codify this material. we have done this along the way, the congress made a few mistakes ke mt is sick need perhaps, it should have been b but showed uas c and now we have two c's. in the clinic and subed to the judiciary committee and the congress will reenact the entire book into the law. in other words it is taking the cleaned up version of the law, reenacting it in a bill that goes through both houses to the

president for signature and it should be non-controversy oil the problem here is that it is an ever-changing legal system. trying to catch up but there are a number of additions that have been reenacted in to the positive law. now a little bit more about the dress code. this is the machine which i swipe the slide from them because that is wt they think about when they are doing this. they are literally chopping up pieces of public laws and putting them on the 50 titles you see on the left. the other interesting thing about that and the way we work together is e classifie as they are called are doing this slice and dice after the bill is signed and they are sending it over to offset t federal

register so weave an opportunity to put those citations into this look will sluve ball so we can forecast where this will appear don't use the official version. they use the united states code annotateor the lexus u.s. code surface or even cornell diversity is a very nice job on their web sites. the u.s. codicil be updated every six years so there's a lot of activity that happens over six years. they do produce supplements, but it gets difficult for a person to see the full picture of law. it now to talk more about our process on ou side. before we talk about the executive clerk but i do want to mention that is a very important

function the executive clerk is a career person and often there for 25 or 30 years at the white house and they take custody of these laws fromither the secretary of the senate or the clerk of the house, when it is passedfrom the congress than this idea of the chain of evidence must be maintned. the clerk takes custody and that is the point at which most constitutional scholars consider the law to be presented to the president when the white house clerk gets it and whether he actually put on the president's desk on the same day we don't know but that is what happens inside the white house. ..

but the regionals, and we later sent those t the national archives, of course of which were part, so it is particularly appropriate that we are a component of the archives. now, thether thing that kind of goes along the background, is gpo and remember i said theyre kind of a common denominator in this between the house and the federal register office. in the old days, the gpo would take a photostatic prints of the

law of all along th way so i it an enrolled bill orrin introduced a bill for that matter, there was a print that was considered the text of the la and every little changed and inundation along the way had to be recorded, so the congress does its work during the daynd then at night they send these changes over to the gpo and the gpo and the old days with actually ricky theaterial and so you would have a large room of kiva orders putting villa back together again after it had been torn apart by the various aendments. these days it is done electronically. but you can see when you've got a photostatic copy that is a hard piece of physical evidence. they have to take a great deal of care to make sure they are using the right file. w, what we do over the federal

register is, as i said, we add some value to these including those u.s. ce sites. we also make corrections, not in e sense that we change congressional language, but inevitably when you send material back and forth you have to be sure that as i said nothing gets corrupted in the electron file. when we are satisfied that everythi is in order, so we have taken that chain of custody of the enrolled bill, we have added material to it, then we will say okay, go to print and that usually takes five to ten days for the slip law, much longer after a big adjournments and you have say 13 appropriations bills consolidated into one big thing. it takes awhile to get that ing and the statute for that is two years running behind. tso here is an example of the type of value added as we like to call it.

up here at the top, of course that indicates that public log number and the date of enactment. there you see what will be the united states state at large citations of the pagination i already there in a slip lauper couth doesn't get changed in the hardbound book. over here the oginal house or senate the designation is there, h.r. 2508, the popular name is usually high lighted and then you see these lite notes, and interestingly enough, we called them willets and that is because there s a fellow at the law revision cncil that did this sorting named ed will let and he was a legend in his time. heas there for maybe four years that we call these side notes will let's. these often point out the key subjects like regulions, which is also our business of course. so, when an agency has made many

months to act toissu a proposal or a philo rule we tried to highlight that because that is a very key component of informion. hirth alright, again we also keep track of a legislative history and so we will add that on to the end and then we have these presidential signing statements that been in the news lately. here is the old weekly flight. now we are doing the daily comp as i mentioned, so we will add on the reference to a presidential statement about a lot right here at the end. i talk a lot about this chain of evidence idea and this is something new. digital authentication so you see gpo eagle over here, if you click on him you get some kind of aotice that it is little hard to understand that basically what it says is tha this document has been encapsulated in an electronic

envelope and if any change to any character in thislectronic file has been made, then the signature on the document will become invalid and you can test that by simply being on line, clicking on the certificate and if it has been altered or corrupted in some way, then it will not show that it is valid. if you want to e-mail this to somebody and say i have got the authentic file version of the law, you can do and they will be able to do the same thing, go on line, click on the sir and find out that this is not been alred. why is this important? pdf files, now they are easily changeable and when you have electronic publications and libraries are dropping hard copies, it is important to have certainty as what the law is. so, digil authentication. thisy the way will be rolled up to every federal register

publication this year. i should be done in a few weeks. federal register cfr all kerry this little iignia. now we are on to carry its cases and we don't have a lot of time but i want to mention some of these things. ybe we shouldave started with what is law, but this leads to several discussion points. the key parts of the constitution, article i, section 7 are a it requires concurrence of both the house and the senate and has to be presented to the president. okay, it seems simple enough. down here we have our guiding prciples, which i certainly tried to establish amongst our staff when i was the general counsel over the federal register. we always look to the constitution when we have to make the tough decision and w also keep in mind that the federal register is an institution dedicated to transparency and openness.

that is that we started and that is what we are all about so we don't want anything to go on behind the scenes that is a publicly recorded as law making. this i'm going to call the medicare bait and switch. this was a piece of legislation and again we are talking about the process waybill those sort of back and forth between houses, goes into conference and in this case it pours senate clerk failed to make a little changed to the law in the hse that agreed on. and, this invves medicare, essentially extending coverage for 36 months rather than 13, so i say it is either a 2 billion-dollar shortfall or savings, depending on how you look at it. it is the savings the doesn't going a lot and it is a shortfall if you are wanting to have your medicare payments extended. so now the two bills clearly differ because of this error.

the one that went to thhouse had the extension. the one that went into the senate did not gethanged, so the president signs the bill from the senate, the state's $2 billion. the republicans who were on that site to begin with say we have saved money. lawsuits fly all over the place. everybody who might be affected by this in some way files and lots of law professors write articles. well, we publish the law has a lot. why do we do that? because we are very cognizant of field versus clark. this is marshall field, an old chicago department store where the supreme court said that the signature of the presiding officers of each house is final, and in teachable despite the fact there really is no argument about these been two different versions that did not get passed by both houses as exactly the same bill.

well, here comes the 2008 farm bill. now the democrats are in charge, so he would think tngs might have changed a little. know, people still make mistakes. there is a printer in the house that malfunctioned, so when they are going to parchme, so they have got just regular paper and then some glitch happens when they are running the parchment through. the printer in title iii of the bill jot supper coe this is the food for peace act which is entirely noncontroversial. the bill is sent to president bush and the white house staff just reads the conference report. remember when the bill goes to conference there is report that is generated and it often contains the text of the law as well so white house that says everything works fine, ware going to but we don't like the dollar amount hears so we are going to veto it. congress goes and overrides it

because you know the farmville, everybody has got a stake in that so i think that was one of the first veto override of president bush. after the fact, we sort of have a powwow with the congress and everybody says you know, if this were a contract and everybody had a mutual understanding of what was going on, everybody thought we weassing the entire farmville but is just a printing error, that title iii fe out of. it was presented to him in effect. our point of view is that that is not going to happen. we are not going to slip title vreen to the bill, and so when the bill is, has to be reintroduced, they considered reintroducing only title free but the food for peace act involves foreign aid and so forth and that may not go through on its own, so the

entire bill with title iii included goes to the whole processgain, congress override the president's veto again and we publish both versions, killing lots of trees. now this one, i know i've got the papers somewhere in the office but this is pretty much from memory. in this case, it wasn't controversial. i think it was, had to do with the defense appropriatis. something falls out of the bill. congress offence-mag ends up noticing this error into make up for it repasses the entire bill, but in order to save money they y well, to the archivist and the federal register or offe, treated as though we are the first bill ever en@cted, so just published the second one and that keeps everything sort of under the radar. but, and you know thiss a specific director, so it is a little hard to defy congress, but that is what we did.

our position was in reading this directive that they really hadn't amended the basic law that requires the archivist to publish a lot coming into can't change the definition of a law because that is in the constitution, so we published both bills, and i am sure that didn't make some people happy but began our principles of our transparency, accountability and the evidentiary record. now, the line item veto bill. this is, this is a little different scenario here. you remember there was perhaps this unholy alliance between present clinton and speaker gingrich were both of them agreed they wanted to chop down the size of the deficit and in order to do that congress was willing to give president clinton a line item veto which is nowhere found in the constitution. a lot of state constitutions

have this kind of strike out provision f governor but it is not in the federal constitution so they come up with this hybrid scheme were buying the bill is presented and signed as usual, goes int effect. we publish it as a slip law, but then the president gets another whk at it and he can specifically cancel certain items of spending. to do that he publishes these and the federal register, which i have one there so this involves two of our publications, the regulatory side and the love publishing side in one thing. initially there was question about should wectually go into law into a strike through? should we put in little notes or all of these things have been done? we did and up puttin in some notes about reported cancellations. will come again lawsuits fly, professors fence about whether this is legal are not in believe me it is not an open and shut

question because what the congress is essentially doing is saying to the president, okay, here is trillions of dollars in spending you are authorized to do and the executive branch but we will give you a chance not to spend the money so all y have to do is publish this little notice in the federal register in say you are not going to spend some of the money appropriated. isn't that an executive function deding how to allocate the budget, including holding some of it back? the supreme court says no. and it wasn't all one opinion. there were some concurring opinion said the rationalism little different but essentially they find this violates the clause. you get one chance at a bill and get the whole thing and sometimes we have these enormous appropriations bills that are all consolidated into one thing and the plot on the president's desk. remember president reagan doing a speech for congress one time with the actual bill on his desk as signed. it was this call.

the court says no, you can't go back and authorize the president to take legislative action after the fact. you didn't like t spending, you should have cut it out before went to the president. so the various constitutional issues, supper econopower commandante delegation, so we still have these artifacts saying president clinton did this and it is still in the law books too because the supreme court did not really say under no circumstances does severed be done. the way it was done was not acceptable. i want to be sure to member-- minton handan romans because these are the strangest things we will ever encounter. during the last six days of the session congressaq rushed for time and again this beats into the idea of the appropriations bills are all do. there are 13 of them defense related and they are about medicare and social security. so, there is a rule that the congress can suspend the normal

prodtion process and just cut and paste everything together so that the technology we thought we had left behind in the '70s and '80s the paste pots and the scissors and the hand invitations come back and, i have an example here of ronald reagan signing one of these things all the way down the left-hand corner in a little tiny space left for him to sign. it is not enrolled as a regular law. it is a cut and paste job on a bill in several different bills also, most indecipherable handwriting in this bill and the story, i don't believe it is apocryphal becse i saw it with my own eyes. somebody ordered pizza and brought it down on the side of the law and the phone number and so forth and that was in the law. i think we had blinders on and we just didn't see that one because our job is to do again a true enrollment of this even

though it wasn't probably enrolled in the first place. and we have to keep in eve single case so we don't have the e file add gpo to rely on. we have to enter the characters and proofread them ourselves. fortunately this is some what a thing of the past because congress came up with another thing to allow for posed in roman sir, which is way too complex to go into. so finally, i will give you a few references to ha online resources. baldizar federal resources.gov pagd. some of theouse pages. there is my contact if you have a general federal register questions and also questions on their new fd is this which we are inaugurating, so i will be happy to tak any questions that anybody has. yes sir.

>> the federal register the second slide, way back to the second slide, the feral registry came into existence becae there was no regional source document for the panam canal built, which went all the way to the supreme court gets a two things-youidn't exist as a source document plus it had already been defeated and did not exist in law either? >> this is in the age of course when the president, fdr was in acting through the agencies legislation to contro the economy in various ways and this involves interstate ansportation of oil a gas and actually this was really a civil liberties issue. the presidents agents could go into any plants without a search warrant and make sure they weren't transporting s over lines and not reporting it may be taking some prophets here and

there. it is kind of the complex process but along the way there were maybe five or six of these orde that were issued and one of them repealed eight prior interpeace but it was and realized generally by the lawyers on either side, the justice or in the private sector in literally, when the case went to t court justice jackson said come after hearing the plea from the texas lawr from the plaintiff who did a sort of song and dance about how he could even fin the original regulation or ordinance, and sure enough the justice department already came with t it that they couldn't find it and go that that was emblematic that we have got a cotic system going here, it is constantly changing and we can even find the original docent. the government was extremely embarrassed in the case was thrown out and that is how we got the federal register. yes, sir. >> from your perspective how influential have you found the

lobbyist to be and in the exples of what you observed to be inappropriate lobbying at any stage of the process? >> well, i think i am going to dodge that one. you know, if you have read the papers there have been some concerns that legislation was being drafted in whole an outside interest groups. will come as you know that is anyone's privileged to come up with a bill. you can come up with a bill and send it to your mber of congress and say i would like to see this inactive. i don't know that that is improper influence for say. i suppose the federal election commission might have somethin to say about it if there is some kind of direct link established btween the lobbying group and campaign contributions. but you know that is the old washington game. just a little more directly infused into the system. interesting thing though about

drafting legislation is, you might think that it is professionally drafted, but members of congress and the staff often don't know really how to draft a bill. the lobbyists often having been in the congress do knows that they might have a nice the perfecd bill were as a member of congress has to submit to the legislative council the then looks at what they congress or senator wants to do with that and crabs the amendments for them. so, i think i will stick with that on the undue iluence. yes, sir. >> we have the title here, highway bill becomes law, the executive bran perspective. how would your discussion be different if it were called the legislative bran perspective? >> i think he would get a lot more inside baseball discussion of what goes on in committee, how thearliamentarians

interact with the house and senate leadership. i think the house and senate parliamentarian are sort of unsung heroes. they usuly don't get any publicity but if you watch carefully, sometimes you will see the leader lean over to a person. 80 stevia think robert of was a very noted one, and they will advise, is this process we are proposing here for say the senate recommitting a bill back to committee, is the appropriate or if you look at somethi like the schiavo case and i wanted to mention that, is it a public bill or a private bill? drought, w discussed as a private bill as it was about the determination of the lifef this young woman who was brain damage. howevery the time i got up the door, and over to our office, we took a look at it and w saw there was quite a bit of policy language whin the bill so the

parliamentarian made the law is a private bill, but when it came overo west we decided it is slight teetering on the other side as the public law and we published it as a public law. even though that was the last thing we wanted to get involved then, we did in effect but i think you get ahole lot more in-depth discussion and i thi it would be fascinating for those of you who are interested. >> is there any paper trail of an original bill of the introduction in language as it passes through its various editions, deletis and edits or with that kind of information appear in the conference report? >> yes, you know each house has its own journals so they keep track of actions taken. that is for the recorded in the congressional record, so you can

trace thliving history of a bill as it is introduced, as it is amended. it might be supplanted by another bill so there's sometimes a substitution and whole and that is difficult to follow sometimes. there is that trail. it has been very difficult to track that on line let's say, now that the house, i thi the senate is beginning to use xml it is gog to be easier because each of those versions, they are individually capture but he will be able to find them a lot easier and then final, this is al kind of subsume that the hand. although it makes a difference in terms of when the bill was workinits y through, you remember the cases where there is actual doubt about which version was properly enacted. it all comes out in the watch at the end because it doesn't matter then at that point. the supreme crt has said you can't look at beyond the four

corners of the document s the original marshall field case was, people could go to congressional rerd and say this is the right, that wasn't the bill that was introduced, it isn't a bill that was voted on. the court said it doesn't matter, at the end of the process we must have certainty so all those prior versions just become moot. all the way in the back. >> what is the legal effect of a signing statement? >> that is a good question. signing statements were not really common until the reagan administration, when attorney general meese decided that phe president's view and interpretation of low were not being recorded anywhere in particular, so they made an effort to have west publishing company compile the signing

statement. that is not an official publication. so we also began recording these signing statements for cosigni statement cannot overce the language of the love. it can however, affect executive brch implementation of the law. , there are a lot of scholars and crles savage at the "boston globe" arguepresident bush was abusing his authori and in effect he was nullifying love by ordering executive branch to disregard provisions but i have to say that this has been a presidential prerogative since the reagan administration pretty consistently, that especially where you have provision that say purports to constrain theresident's foreign-policy authority in some way, that the president feels is inappropriate, both departments

of justice, republican and democratic, are very likely to lo at that asomething that needs to be stated as a presidential prerogative will not be infringed upon, so sure enough, president obama has issued a number of signg statements as well. i think their best seen as a guidepost as to how the president's administration is going to proceed in implementation. if it were to go to court though, it is pretty clear that there is no rescission of the statutory language. by virtue of a signing statement. yes sir. >> when the constitionality of the law comes into question, how soon can the supreme court become involved? for example, mccain-feingold brought questions about violating the first amendment. >> well, you know if this is very important matter, the congress can actually specify a

statute that there will be an expeted review including at the supreme court levelf they choose but thesual course is that a plaintiff, who has standing, has to go to the district court, the federal district court and file a lawst, and their discoveries made and he@rings are held before the courts, so it works its way through and up to the appellate level. many of these cases come to the d. circuit as an attempt to consolidate the issues here in washington inste of in various federalircuits. and, go to the supreme court and in delivered time, the supreme court often posones decisions. they can carry them over to the next term if they choose so there is no set time. it just depends on the issue.