UNITED STATES COMMISSION ON SECURITY AND COOPERATION IN EUROPE
(HELSINKI
COMMISSION) HOLDS HEARING:
"IS IT TORTURE YET?"
DECEMBER 10, 2007
COMMISSIONERS:
REP. ALCEE L. HASTINGS, D-FLA.,
CHAIRMAN
REP. LOUISE M. SLAUGHTER, D-N.Y.
REP. MIKE MCINTYRE,
D-N.C.
REP. HILDA L. SOLIS, D-CALIF.
REP. G.K. BUTTERFIELD,
D-N.C.
REP. CHRISTOPHER H. SMITH, R-N.J.
REP. ROBERT B.
ADERHOLT, R-ALA.
REP. MIKE PENCE, R-IND.
REP. JOSEPH R. PITTS,
R-PENN.
SEN. BENJAMIN L. CARDIN, D-MD., CO-CHAIRMAN
SEN.
CHRISTOPHER J. DODD, D-CONN.
SEN. RUSSELL D. FEINGOLD, D-WIS.
SEN. HILLARY RODHAM CLINTON, D-N.Y.
SEN. JOHN F. KERRY, D-MASS.
SEN. SAM BROWNBACK, R-KAN.
SEN. GORDON H. SMITH, R-ORE.
SEN.
SAXBY CHAMBLISS, R-GA.
SEN. RICHARD BURR, R-N.C.
WITNESSES/PANELISTS:
C.D. "DAN" MOTE JR.,
PRESIDENT,
UNIVERSITY OF
MARYLAND-COLLEGE PARK
DEVON CHAFFEE,
ASSOCIATE ATTORNEY,
HUMAN RIGHTS
FIRST
THOMAS C. HILDE,
SCHOOL OF PUBLIC POLICY,
UNIVERSITY OF
MARYLAND-COLLEGE PARK
CHRISTIAN DAVENPORT,
PROFESSOR OF POLITICAL
SCIENCE,
UNIVERSITY OF MARYLAND-COLLEGE PARK
SENIOR FELLOW AND DIRECTOR OF
RESEARCH,
CENTER FOR INTERNATIONAL DEVELOPMENT AND CONFLICT MANAGEMENT
MALCOLM NANCE,
DIRECTOR,
SPECIAL READINESS SERVICES INTERNATIONAL
DIRECTOR,
INTERNATIONAL ANTI-TERRORISM CENTER FOR EXCELLENCE
The hearing was held at 10:12 a.m. in University of Maryland-College Park,
Stamp Student Union, College Park, Maryland, Representative Alcee L. Hastings,
chairman, CSCE, moderating.
[*]
MOTE: Thank you all for coming. I
would just say there are many seats in the front, and it would help the
commission if we could fill in some of the seats in the front, for those of you
who are looking for seats. It makes it easier to have the dialogue between the
people at the podium and the audience.
I really welcome you all to this
hearing on torture and other forms of banned treatment being called by the U.S.
Commission on Security and Cooperation in Europe, also known as the U.S.
Helsinki Commission.
I'd like to thank Congressman Hastings, the chairman
of the commission, and Senator Cardin, the vice chairman, for calling this
hearing and coming to Maryland.
And I thank all of the witnesses for
providing their expertise to these proceedings.
The university is
extremely honored to be hosting this hearing today. We are engaged in many
initiatives on human rights parallel to the aims of the U.S. Helsinki
Commission.
Over the last six years, the issues of torture and banned
treatment have understandably provoked intense national debate. Hearings like
this one afford free and open discussions of this deeply troubling and
potentially culture changing matter. I applaud the commission for its
relentless attention to these issues.
I particularly want to offer my
personal welcome to Senator Cardin, who has always been a staunch supporter of
the university.
Thank you very much, Senator.
Senator Cardin has
served on the U.S. Helsinki Commission since 1993. Most recently, he has been
outspoken about the impact of the U.S. Guantanamo Bay prison on U.S. human
rights leadership internationally, as well as at home.
Congressman Alcee
L. Hastings has served on the commission since 2001. A senior democratic whip
from Florida, Congressman Hastings is a specialist on international affairs and
has been active in election monitoring in Eastern Europe.
I thank you both
for your leadership efforts on behalf of the Helsinki Commission and on human
rights and democratic values.
HASTINGS: Dr. Mote, thank you very much,
Mr. President, for being with us this morning. And I also understand an active
schedule with 40,000-plus students and finals week, that you doubtless have
other responsibilities, so when you take your leave, it's with deep appreciation
that we are grateful for you to be here.
I'm going to gavel the hearing
into session at this time and turn immediately to my colleague, Co-chairman
Cardin, for any opening remarks. And with your permission, Senator, I'd like
for you then to go forward and conduct the hearing. I do have an opening
statement, if you would permit, after yours.
CARDIN: First, Dr. Mote,
thank you very much for allowing us to use the University of Maryland College
Park, which I think is the right venue for this hearing. And we thank you very
much. We're very proud of our University of Maryland College Park and what you
do here. This campus has been in the forefront leadership nationally on
education issues.
This Congress will be known for several things, but one,
of course, is the passing of the most significant increase in college assistance
in federal government student aid since the G.I. Bill. So it's a pleasure to be
back here on campus. It's always nice to be here, and it's always nice to see
the students and just the activity that occurs on campus. Congratulations.
And to Chairman Hastings, I want to thank him very much for convening this
hearing in College Park on torture. Chairman Hastings has had a long and
distinguished career in the United States Congress.
And let me just pause
for one moment, if I might, and talk a little bit about the Helsinki Commission.
In 1975 the countries of Europe, the United States and Canada in Helsinki
entered into certain fundamental, basic principles on which they agreed to
adhere to on human rights, on security, on economic and environmental issues.
And by entering into that agreement, it was legitimate for any country that was
part of the Helsinki process to challenge the practices in any other state if
they don't meet those commitments.
The United States Congress passed a law
establishing the Helsinki Commission as our membership in the Organization for
Security and Cooperation in Europe, which is the umbrella for monitoring and
carrying out the commitments entered into in Helsinki.
The commission
consists of nine members of the United States Senate, nine members of the United
States House of Representatives, and certain appointments by the executive
branch. We rotate the chairmanship every two years. Alcee Hastings, the
congressman from Florida who's joined us here today, is the chairman of the
commission. The Senate has the co-chairmanship, and Dieter Reed (ph) appointed
me as the co-chairman of the Helsinki Commission.
But Chairman Hastings
has done a lot more than just the Helsinki Commission. We also have what's
known as the Parliamentary Assembly, which is where parliamentarians from the
member states -- now totaling 57 -- meet and carry out our responsibility as
parliamentarians. And Alcee Hastings, I think, really established history for
us in the United States by becoming president of that Parliamentary Assembly --
the first American to chair it -- and really did carry out an incredibly active
schedule as the president of the OSCE Parliamentary Assembly.
So this
commission tries to establish priorities for our involvement in the OSCE. We
challenge what other states do in the OSCE. We've been very actively involved
with the former Soviet Union in dealing with the emigration of its population.
We dealt with problems in Chechnya. We've dealt with problems with the Kurdish
population in Turkey and in Europe. We have brought forward many different
issues -- most recently, the trafficking of human beings, as well as
anti-Semitism and all forms of discrimination.
But as it is right for us
to challenge what other countries are doing, our commission also has a
responsibility to look at whether our nation is carrying out the commitments
that we agreed to within the Helsinki framework. And today's hearing is to take
a look at that.
This is not our first hearing. Under Chairman Hastings
we've had a hearing on Guantanamo Bay as to whether we are complying with
international standards and our own commitment as it relates to the treatment of
detainees at Guantanamo Bay.
But today's hearing is to take a look at
torture. It's interesting that we are convening this hearing on this day, which
is International Human Rights Day, a day which commemorates the adoption of the
universal declarations of human rights nearly 60 years ago. It stated in that
historic document, "No one shall be subjected to torture or to cruel, inhumane
or degrading treatment or punishment."
Now, since that, the United States
has adopted many international commitments as it relates to humane treatment:
in 1949, the Geneva Convention; in 1956, the International Covenant on Civil and
Political Rights; and, of course, the 1984 Convention against Torture -- all of
which we have agreed to.
Through the Helsinki process we have entered into
numerous commitments as they relate to torture, and we've made that available in
the information that is available at our desk.
Let me just refer to one,
if I might: the Vienna Concluding Document in 1989, where we agreed to assure
that all individuals in detention or incarceration would be treated with
humanity and with respect for inherent dignity of the human person. There are
no exceptions or no loopholes in this standard, which it is the obligation of
the United States to uphold.
So I think it's pretty clear what our
international commitments are and what are domestic laws. I think we regret
that six decades after the adoption of the international human rights
commitment, it is necessary to have a hearing on torture. And more to the
point, I regret that the United States' own policies and practices must be the
focus of our consideration.
Since we scheduled this hearing, there of
course has now been the revelation of the destruction of tapes by the CIA, which
I think raises additional questions as to the United States commitment in
carrying out its responsibilities. As a member of the Helsinki Commission, I
have long been concerned about the persistence of torture and other forms of
abuse in the OSCE region.
For example, I was troubled by the pattern of
torture in Uzbekistan, a country to which the United States has extradited
terror suspects. In November alone, Radio Free Europe reported that two
individuals died. We now have learned that a third individual has died in
Uzbekistan, and when we have looked at their bodies, we found many marks of
torture.
Unfortunately, United States leadership in the effort to combat
torture and other forms of ill treatment has been undermined by the revelations
of abuse at Abu Ghraib and elsewhere. As horrific as Abu Ghraib revelations
were, in a certain respect the government's legal memos on torture may even be
more damaging, since they appear to reflect a policy to condone torture and
immunize those who have committed torture.
Back when Secretary of State
Rice met with leading human rights activists in Moscow in October, they told her
that allegations of abuse at the U.S.-run Abu Ghraib prison in Iraq have hurt
Washington's authority on human rights.
Torture remains a serious problem
in a number of OSCE countries, particularly in the Russian region of Chechnya,
but if the United States is to address those issues credibly, we must get our
own house in order.
In this regard, I was deeply disappointed by the
unwillingness of Attorney General Mukasey to state clearly and unequivocally
that waterboarding is torture. As a member of the Senate Judiciary Committee, I
chaired part of the attorney general's confirmation hearing. And I found the
responses to the questions relating to torture woefully inadequate.
As it
happens, on November 14th, I also participated in another Judiciary Committee
hearing at which an El Salvadoran torture survivor testified. This medical
doctor, who can no longer practice surgery because of the torture inflicted upon
him, wanted to make one thing very clear: as someone who had been the victim of
what the torturers called "the bucket treatment," he said, waterboarding is
torture.
Earlier this year, former Bush administration counselor Phillip
Zelikow argued that, whether legal or not, the interrogation policies developed
in 2002 were just flat "immoral." He goes on to talk about how it is just
inconceivable that we allow these types of principles, offering no judgment on
their legality. Well, we have a lot of authority as to U.S. morals on torture.
He added, "Sliding into habits of growing non-cooperation and alienation is
not just a problem of world opinion. It will eventually interfere -- and
interfere very concretely -- with the conduct of worldwide operations."
Well, at today's hearing we're going to hear from many witnesses who will
comment about the different practices of the United States and the impact that
it's having on our own country's ability to affect international policy.
I
really do thank our witnesses for being here. I know they're going to add
greatly to our record, which is the responsibility we have not just to the other
members of the United States Congress, but to the American people. And I'm sure
that this hearing will play a very important part in the development of that
record for our commission and our country.
It's now my pleasure to
introduce again Congressman Hastings for his opening comments.
HASTINGS:
Thank you very much, Senator Cardin. I deeply appreciate your convening this
field hearing. It's our first field hearing, and I also would like to express
my appreciation to President Mote and to Ray Clapp (ph) and the tremendous
interaction of staff, both those at the University of Maryland and the campus
police and security for expediting matters for us. It's deeply appreciated.
We consider it full professional, and we have space issues at the Capitol, and
we were wondering, President Mote, if we could hold more hearings here. It
would certainly be helpful to us.
But I'd like to compliment our staff as
well, for coming up with how we're able to get this done. And while I'm in that
business, my deep appreciation to those media representatives that are here, as
well as those of you who are students and professors and visitors here on the
campus.
Particularly those of you that are students, I attended a forum
once a hundred years ago when I was in college, and it was during finals week.
Fortunately for me, I had completed my finals, and I hope all of you either are
complete, or assured -- let me put it that way. But we are grateful for your
being here.
This hearing, as the Senator points out, comes just a few days
after the revelation about the destruction of videotapes by the CIA of their
interrogations of two terror suspects.
As the senator has said -- and I
wish to amplify -- thee destruction of these tapes is disturbing on many levels,
but especially when one considers that the 9/11 Commission -- and many of the
persons on that commission are people that Senator Cardin and I served in
Congress with and/or know through our professional relationships, and I don't
think that anyone has questioned this commission's credibility and integrity --
specifically and formally sought these types of recordings and were not given
them.
And I cannot imagine why, when the 9/11 Commission was investigating
one of the worst attacks on American soil in the history of our country, why the
CIA did not fully cooperate with that investigation.
Like you, Senator
Cardin, I am profoundly frustrated by the damage that has been done to America's
good name and credibility by the documented instances of abuse that have
occurred in the context of our country's effort to combat terrorism and by the
erosion of the legal principles which make torture and other forms of
ill-treatment a crime.
I was speaking earlier with one of our professors
that is going to testify -- Dr. Hilde, who is here at the university -- and a
part of his portfolio is in philosophy. I cited to him a friend of mine that
teaches philosophy at another university, but I didn't say to him something that
I did, and that is I co-taught a class on trial by Kafka. And it always comes
to mind to me when I think of Guantanamo, for example, of holding people, not
telling them what they're charged with, not allowing them access to lawyers, and
in some instances threatening them with potential execution without knowing what
it's all about -- I just don't think that's America, and I think it's wrong.
Many people have said it, but it seems to me to deserve repeating -- and I put
this in the context as someone who has visited more intelligence stations than
probably any other current member of Congress -- torture does not, in my
opinion, make us any safer, and torture, in my opinion, does not produce good
intelligence.
In fact, there have been several notorious instances of
detainees providing testimony under duress that has subsequently been shown to
be false. And some of the evidence, for example, relied upon by Secretary
Powell in his 2003 speech to the United Nations making the case for war in Iraq
came from a detainee who later recanted that testimony and stated that he made
his claims as a result of coercive interrogation.
I'm going to skip large
portions, because you'd be more interested in the witnesses, but I would be
remiss if I didn't point to, as we examine this subject today and hear our
witnesses, I'd also hope that the administration would begin to devote some
serious attention and resources to study better ways to gain intelligence.
Too often intelligence gathering and respect for human rights are presented as a
zero-sum game, where more of one means less of another. I think that is a false
paradigm. There is more we can be doing to improve our intelligence gathering
that does not have to come at the expense of human rights.
For example, we
could stop kicking people out of the military who have critically needed foreign
language skills just because they're gay. We can provide more training for
critical languages. We can study non-coercive interrogation methods --
something we haven't done since World War II. None of those things involve or
require torture.
Finally, Senator Cardin, I would like to express my
immense disappointment -- to say the least -- to hear that President Bush is
prepared to veto the 2008 fiscal year intelligence authorization bill because it
would require the Central Intelligence Agency to follow the same interrogation
norms that apply to military personnel.
As it now stands, the 2006
Detainee Treatment Act prohibits military personnel from engaging in torture or
cruel, inhuman or degrading treatment or punishment of detainees.
Last
February, Jeffrey Smith, the former general counsel to the CIA, argued strongly
in the pages of the Washington Post that armed services and the CIA should not
have different standards for the treatment and interrogation of detainees -- and
I think he's right.
So I truly hope that the intelligence authorization
bill will be passed, including its provision regarding CIA interrogations norms,
and I hope that the president will expeditiously sign it into law.
Senator, thank you again for your thoughtful and long-standing leadership on
this issue. I had the distinct pleasure of serving with Senator Cardin in the
House of Representatives and working with him and the organizations that he
described over a period of time, and I personally I am proud, and I know you as
Marylanders are, of the extraordinary work that he has done not only in this
area, but on behalf of this university as well as this state that he proudly
represents.
I'm proud to be with you today at your state's flagship
university -- I hope all of us get better football teams next year -- to explore
these issues, both right here at home and across the globe. Thank you, Senator.
CARDIN: Thank you, Chairman Hastings.
I need to acknowledge those
of us would want the record to reflect that we're in College Park, Maryland, the
extraordinary help our mentor, Steny Hoyer just did on the Helsinki Commission
and the OSCE. He, of course, was the former chair, and I think really brought
the commission's work to the forefront in the United States Congress. He's a
good friend of both of ours and a real Terp supporter. There's no stronger
cheerleader for the Terps than Congressman Hoyer.
With that, we're going
to turn to our witnesses. Our first will be Ms. Devon Chaffee, who's an
attorney with Human Rights First and was contributing author of the publication
jointly issued with Physicians for Human Rights, "Leave No Marks: Enhanced
Interrogation Techniques and the Risk of Criminality." At the invitation of the
Department of Defense, Ms. Chaffee has also served as Human Rights First
official observer at the military commission held at the United States naval
base at Guantanamo Bay, Cuba.
Ms. Chaffee?
CHAFFEE: Thank you, Mr.
Chairman. I appreciate the opportunity to be here today, and I applaud the
committee for holding this hearing.
This morning I hope to help bring
clarity to an area where the administration officials have fabricated ambiguity
in U.S. law prohibiting torture and other cruel treatments.
The
administration has repeatedly refused to take off the table interrogation
techniques that are obviously and inherently cruel. It has established a
dangerous, bifurcated approach to detainee treatment standards, creating an
obstruction for the CIA to engage in interrogation methods that the military has
repeatedly found to be unlawful.
In July the president issued an executive
order that lays out an interpretation of Common Article 3 of the Geneva
Conventions for the CIA that is different from the standards used by the
military. Common Article 3 lays out the minimum standard for treatment for
enemy prisoners.
Shortly after the issuance of the executive order, the
director of national intelligence, Admiral Michael McConnell, and former
Attorney General Alberto Gonzales publicly refused to state whether the
executive order prohibited specific acts of cruelty for use by the intelligence
community.
The Judge Advocates General of the U.S. Army, Navy, Air Force
and Marine Corps, on the other hand, had no trouble answering unequivocally in
August 2006 that the use of waterboarding, stress positions, the use of dogs and
removal of clothing in interrogation would not only be inhumane, but would
violate U.S. law and the law of war.
The administration's official
position of ambiguity on CIA interrogation standards became a central issue
during the recent confirmation of Attorney General Michael Mukasey. Then Judge
Mukasey refused to answer questions on whether waterboarding was illegal,
claiming that it depended on a complex legal analysis upon which he was unable
to speculate.
But as four retired generals and admirals said in a letter
to Senator Leahy, the relevant rule -- the law -- has long bee clear.
Waterboarding detainees amounts to legal torture in all circumstances. To
suggest otherwise, or to even give credence to such a suggestion, represents
both an affront to the law and to the core values of our nation.
Yet some
senators legitimize Judge Mukasey's equivocation by calling on Congress to
outlaw waterboarding.
Co-chairman Cardin, you pointed out the absurdity of
suggesting that Congress had somehow forgotten to outlaw waterboarding when you
asked whether that meant you would have to pass a statute that specifically
outlaws the use of racks or thumbscrews.
What Attorney General Mukasey and
the administration have obscured is the fact that Congress has already outlawed
torture and other acts of cruelty. The McCain Amendment, the Anti-Torture Act,
the War Crimes Act and Common Article 3 of the Geneva Conventions established
clear standards for the treatment of all prisoners in U.S. custody.
Under
these laws an act specifically intended to inflict severe physical or mental
pain or suffering is torture. An act intended to inflict severe or serious
physical or mental pain or suffering is a felony war crime of cruel or inhumane
treatment.
The Detainee Treatment Act requires that no person in custody
or physical control of the United States shall be subjected to torture or cruel
inhumane or degrading treatment or punishment prohibited by the fifth, eighth
and fourteenth amendments. Common Article 3 additionally prohibits outrages
upon human dignity.
Existing statutory language under a reasonable
interpretation prohibits the use of so-called enhanced interrogation techniques
that have reportedly been authorized for use by the CIA.
The most detailed
public account of the enhanced interrogation techniques was published in a
November 8, 2005, ABC News report. The report, which has been widely cited as
credible, describes the authorization of violent shaking, striking prisoners,
stress positions, use of extreme cold, sleep deprivation and waterboarding.
In June 2007, Human Rights First and Physicians for Human Rights published the
first comprehensive evaluation of the nature and extent of harm likely to result
from enhanced interrogation techniques and the legal risks faced by
interrogators who employ them. As a principal co-author of the report titled
"Leave No Marks," I can tell you our findings were clear.
The recent
revelation of the CIA's destruction of videotapes of interrogations in which
some of these methods were inflicted on prisoners indicates that at least
someone in the administration understood what we know -- that these techniques
are unlawful, because they cause serious physical and psychological harm to the
individuals against which they are used.
We know that the United States
has condemned the use of such cruel methods by grugers (ph) used in the past.
The techniques are illegal and should clearly be taken off the table for all
U.S. interrogators.
I want to share a sample of the report's findings on
the three of the reportedly authorized so-called enhanced techniques: long time
standing, sleep deprivation and waterboarding.
Long time standing is a
painful, life-threatening stress position that has long been considered a form
of torture. It is known to cause blood clots, which can travel to the lungs as
potentially fatal pulmonary embolisms. If continued long enough, it can lead to
nerve damage.
The State Department has criticized some of the world's most
repressive states, including Burma, Iran and Libya, for employing long time
standing in interrogations. The United Kingdom and Israel abandoned as illegal
similar stress positions, such as wall standing and forcing a prisoner to stand
on the tips of his toes.
After World War II, U.S. military commissions
prosecuted Japanese troops for employing such stress positions on American
prisoners. The U.S. Supreme Court has condemned the obvious cruelty of leaving
a prisoner in the sun in a standing stress position, calling it degrading,
dangerous and antithetical to human dignity.
Sleep deprivation is also a
classic form of torture. It is one of the most efficient means of inflicting
mental pain, and medical studies have established a relationship between sleep
deprivation and psychiatric disorders such as major depression.
Six
decades ago the U.S. Supreme Court cited with approval an American Bar
Association report that made the following observation. It has been known since
1500 at least that the deprivation of sleep is the most effective torture and
certain to produce any concession desired.
In recent years the U.S. State
Department has condemned Indonesia, Iran, Jordan, Libya, Saudi Arabia and Turkey
for using sleep deprivation as a form of torture or cruel inhumane or degrading
treatment.
Finally, waterboarding creates a sense that a person is
drowning and is facing imminent death by strapping the individual down and
pouring water over the face. Medical complications from the asphyxiation caused
by waterboarding include acute or chronic respiratory problems, chronic pain in
the back and head, panic attacks, reflexive systems and prolonged post-traumatic
stress disorder.
Waterboarding was used extensively during the Spanish
Inquisition and has been used by the most brutal regimes in the world, including
the Khmer Rouge and the military junta in Argentina, and was prosecuted
repeatedly after World War II as a war crime.
Congress must act now to
ensure that the CIA does not engage in these types of cruel techniques that
clearly violate U.S. law by passing a provision that would hold the intelligence
community to the same standards we hold the military to.
Currently,
detainees in the custody of the Department of Defense may only be subjected to
interrogation techniques approved in the Army Field Manual. Military
interrogators with over 20 years of field experience have testified that the
Army Field Manual allows for nuance and sophisticated interrogations that elicit
the necessary information.
General Petraeus specifically stated in a
letter to the troops in May that military experience shows that the techniques
in the manual work effectively and humanely in eliciting information from
detainees. It is the military that faces real ticking bombs every day in the
form of improvised explosive devices. It is also the military that relies upon
Common Article 3 when its personnel are taken into enemy custody.
The
Intelligence Authorization Act reported out of conference last week included the
provision that would prohibit the use of any interrogation techniques not
approved in the Army Field Manual against detainees in the custody of the
intelligence community.
The confidence reported stated that the provision
reflects the conferees' considered judgment that the CIA's program is not the
most effective method of maintaining the reliable intelligence we need to
protect the United States from attack and that the conferees concluded that the
damage to the international perception of the United States by the existence of
classified interrogation procedures that apply only to the CIA program outweighs
the intelligence benefits.
The report also recognized that as the primary
beneficiaries of the protections of the Geneva Conventions, the U.S. military
should play an important role in ensuring that U.S. interrogation policies
comply with those international protections.
It is past time to resolve
the ambiguity created by the CIA's secret interrogation programs. Congress
should swiftly pass this provision and legislate one standard of humane
treatment for all U.S. interrogations.
The world no longer knows what the
United States means when it says we do not torture and that we treat prisoners
humanely. That is a dangerous situation for our troops, and it has a
devastating impact on U.S. morale, moral authority and standing in the world.
We look to you and your colleagues, Mr. Chairman, to put that right. Thank
you.
CARDIN: Thank you for your testimony.
Without objection, all
of your testimonies of all the witnesses will be made part of our record, and
we'll hold the questioning until we've completed all the witnesses on the panel.
Dr. Thomas Hilde is a professor at the School of Public Policy here at the
University of Maryland. He is the editor of a forthcoming book on torture.
It's a pleasure to have you with us today.
HILDE: Thank you. And thank
you for the opportunity to speak here in front of the Helsinki Commission.
As mentioned, I'm an ethicist and social and political philosopher soon to
publish a book on torture, and I've been asked to speak about some of the moral
ramifications of torture.
Historically, physical and psychological torture
has been used to suppress dissent, force the renunciation of beliefs, extract
confessions, punish, force denunciation of others, intimidate a population,
humiliate people and gather information. All torture has claimed a state of
necessity.
Recently, some have advanced the claim of significant
information once again to justify torture. They argue that the information
gained from torture is of greater moral significance than the torture of
individual human beings.
As with most ethical issues, how the problem is
articulated is of crucial importance. Today torture is commonly justified by a
state of necessity emblematic in the proverbial ticking time bomb, which frames
the issue wrongly from the outset and grounds it in a state of fear. A better
understanding of what is entailed in seeking morally significant information
through torture lies in justification.
Torture works in that torture
victims speak, although the information is notoriously unreliable, as noted
since the time of Aristotle. Accounts of torture from the Inquisitions exhibit
the most delirious and fantastic tales from the victims. This information
served to confirm the prior beliefs of the torturers.
Bad weather, for
instance, was thought to be caused by airborne demons in consort with human
witches. Torture victims confirmed these beliefs, providing the names of other
witches, who would reconfirm both the preposterous prior beliefs and the
inquisitors' authority.
If information must be of great moral significance
to justify torture, how would we know if it was of such significance?
First, torturing for information requires the institutionalization of torture.
There must be trained torturers and thus also trainers, a legal and
administrative apparatus, a cadre of doctors and lawyers and data handlers, and
so on -- all of whom would be required to suspend their moral decency.
Second, since raw information from an individual torture victim is unreliable,
morally significant information is unlikely to be gained from an individual
victim alone. Torture must be used broadly. On occasion, the torturers might
have prior expectations that the prisoner indeed possesses important
information, but this may obviate any perceived need to torture.
The
justification of morally significant information demands prior knowledge that
the torture victim possesses this information. More likely than the time bomb
case of torturing one bad person is the case of torturing many innocent people
in search of what might justify the act of torture.
How does one know when
one has true information? What one does when one seeks to justify torture by
gaining important information is presuppose that such information exists, which
will only be discovered through a morally heinous practice. The information
must then be previously unknown in order to justify using torture, yet its moral
significance must also be previously known in order to justify the act.
It's not meaningful information until one has tortured, gained information and
then verified it. This is where information may become meaningful, but it's not
necessarily true, as noted in the accounts of the Inquisition. The victim's
guilt need never be resolved.
One incentive raised by the argument for
torture as a means of gathering information is to seek patterns of information
rather than attempt to verify or falsify individual bits of data. Comprehensive
sets of data points yield more complex patterns. The more extensive the
institution, the more successful torture will be.
If one tortures
indiscriminately and broadly, one thus obtains more complex patterns and a
better understanding of what is meaningful in the information. Patterns of
information by themselves are meaningless, but they serve to corroborate and
verify bits of information and infer other patterns. A descriptive narrative
may be interpreted and assembled from the resulting patterns and regularities.
At no point has meaningful information risen to the level of morally
significant information that could justify torture in the time bomb scenario.
We end up with a swelling institution in search of its moral justification,
causing increasing damage to innocents and ourselves, all in search of the
supreme moral justification -- the time bomb -- only to find that in the end
it's we that have become the morally equivalent of the time bomb.
Every
ethical and religious tradition views torture as abhorrent. Since the proposed
moral justification for torture as information gathering is itself morally
unjustifiable and since the other purposes of torture are plainly unacceptable,
we're better off treating the prohibition of torture as morally absolutes.
CARDIN: Thank you very much, Dr. Hilde, for your testimony.
We now turn
to Dr. Christian Davenport, who is a professor of political science at the
University of Maryland and a senior fellow and director of research at the
Center for International Development and Conflict Management. His research
includes the relationship between democracy and human rights.
Dr.
Davenport, it's a pleasure to have you.
DAVENPORT: Thank you, sir.
Chairman and distinguished members of the commission, I thank you for the
invitation to testify about my research in the impact of democracy on
conventional torture and particularly in human rights violations in general.
I also wish to recognize the exemplary efforts of the commission members to
draw attention to the criminal act of torture in the United States, as well as
the commission's continuing effort to investigate this issue worldwide.
I
applaud you for the work you've done to date and will continue to do and am both
flattered and pleased to be able to offer some small assistance in this
important endeavor here today.
My testimony draws primarily on research
that I've undertaken with Professor Will Moore at Florida State University and
David Armstrong at Oxford University. I will also rely on research projects
conducted by myself and others on the team at work in the broader community of
scholars interested in the violation of human rights generally and the use of
torture specifically.
Several international treaties, such as the
International Covenant on Civil and Political Rights in the Convention against
Torture, made torture illegal, and while the Helsinki final act did not
explicitly mention torture, both committed state signatories respect human
rights broadly construed in respect to international obligations under other
treaties.
Further, and just as important, the U.S. Constitution and, of
course, U.S. federal law prohibit the use of torture by its officials and
employees.
Those international treaties and similar domestic laws in other
nations prohibit the use of torture elsewhere throughout the world, yet contrary
to popular understanding, use of torture remains widespread.
Existing data
that's provided in the testimony I submitted to the commission roughly show that
80 percent of the countries of the world tortured at least one individual under
the government's control in any given year over the period between 1981 and
1999, the focus of our research. Indeed, the prohibition against torture is the
most widely violated of the human rights of the personal integrity of the
person.
With that background, the shocked reaction to the revelation of
the acts of inhuman and degrading treatment and torture of inmates at Abu Ghraib
prison led me and my colleagues to undertake a scientific inquiry to determine
whether the institutions that support liberal democracy -- that is, properly
franchise diverse accountability mechanisms and freedom of expression -- reduced
the likelihood of torture by governments during the late 20th century.
The
institutions that support liberal democracy are strongly associated throughout
the globe with freedom to governance and human rights. There has been little
investigation, however, of the extent to which these institutions in particular
reduce the use of torture. In fact, there's only one that we've identified.
Our research attempted to fill this gap.
I wish to share three points with
you. First, torture is distressingly is common. Second, while countries with
institutions that support liberal democracy do engage in torture with a
considerably lower likelihood than countries that lack such institutions, this
difference only holds when no groups engage in acts of violence, challenge to
government or its policies.
Where at least one group commits at least one
act of violence, countries with institutions that support liberal democracy are
effectively just as likely to use torture as countries that do not have such
institutions.
Finally, I wish to briefly describe the extent to which each
type of institution influences the likelihood of torture. I'll briefly relate
each point in turn and then close with some observations about what this
research implies to those of us like this honorable commission who wish to stand
vigil in defense of human rights and press governments who skew the use of
torture.
It's an unpleasant truth to the human condition that torture is
ordinary. Your invitation of December 3, 2007, asked me to address the
aberration of torture in a democracy. While I do not wish to quarrel with the
chairman and the members of this distinguished panel, I do wish to observe that
between '81 and '99, 80 percent of the world committed at least one act every
year, and only 20 percent committed zero acts of reported torture.
It is
important to be clear about the definition on which these statistics are based.
We refer to torture as the purposeful inflicting of extreme pain, whether mental
or physical, by government officials or by private individuals at the
instigation of government officials.
Torture includes the use of physical
of other force by police and prison guards that is cruel, inhuman or degrading.
Torture can be anything from simple beatings to other practices such as rape or
administering shock or electrocution as a means of getting information or a
forced confession.
Seen its historical perspective, torture is less common
today than it has been in centuries past, and democracies are less likely to use
torture as a regular interrogation practice, yet this long historical trend
aside, the use of torture is common and widespread across countries of all types
of institutions.
Yet recent research has documented the countries with
liberal democratic institutions are notably different in the type of torture
they employ. More specifically, as international and national monitoring of the
treatment of prisoners has increased over the past century, democracies have
responded by innovating clean methods of torture that do not leave permanent
marks or other evidence of pain or physical trauma.
Now, research
demonstrates that a percentage of countries which use torture in a given year
jumps from 80 to 98 percent when at least group engages in one act of violence
against the government in that year. Differently, during the final two decades
of the 20th century, nearly every country that was faced with a violent
challenge to its rule engaged in torturous activity.
Social science is
less precise than we would like, of course, yet a figure like 98 percent jumps
out at anyone, especially when one considers that governments seek to hide
torture. The data we have is certainly an undercount of actual torturous
activity. Thus, it is quite likely that this figure is something of an
underestimate.
My own research, as well as those of others, has
demonstrated that liberal democratic institutions, such as the popular
franchise, checks and balances, and freedom of expression, reduce violations of
human rights, especially physical integrity of the purpose. Yet historical
research of government repression of dissidents reveals that governments and
countries with democratic institutions tend to shift from overt to covert
tactics to repress dissident groups.
Put more directly, while democratic
institutions are strongly associated with greater observance of physical
integrity rights on average, their impact is seriously eroded when groups in
those countries resort to violence to challenge the government and its policies.
What works in decreasing torture? We show that elections themselves have
no impact on the likelihood that a government uses torture when dissident groups
engage in a violent activity. We do find that a combination of both higher
voter turnout and close legislative electoral outcomes are associated with a
reduced likelihood of torture, given a violent dissent, but only when the
country has not been using torture previously.
The combination of an
independent judiciary to legislature with high levels of opposition and party
representation reduces the likelihood of the use of torture in the presence of
violent dissent, but only when there has been no torture in the preceding year.
Finally, while protection of the right to freedom of press strongly reduces
the likelihood that government uses in the absence of violent dissent, that
effect disappears when dissident groups undertake violent activity.
Champions of democracy and human rights will find little cheer in the findings I
discussed. Research shows that not only torture is depressingly common to
democracies that led a global shift to clean techniques that make torture harder
to detect, but that institutions that define liberal democracy have little
effect on the use of torture when they are most needed, when groups that oppose
the government and its policies turn to violent means to press their political
views on society.
Government rightly has the responsibility to protect the
body politic from predation from those who attempt to try to tear it asunder.
Protecting citizens' right to pursue life, liberty and happiness falls within
that charge, yet it is government more than any other institution that
deprecates the physical integrity rights of human beings, and torture is the
most common defense of governments in this domain.
Contemporary research
exposes this fictional notion that the institutions that are justly celebrated
as the foundation of liberal democracy have largely and almost completely failed
to deter governments from engaging in torture when the government is challenged
by violent dissent. To be sure, these institutions considerably reduce the
likelihood of torture in the absence of a violent challenge to government, but
that important constraint more or less evaporates in the face of violent
dissident activity.
Our preliminary work suggested that it is civil
society, not government institutions, that can stop torture once it has begun.
Civil society tends to thrive in the absence of liberal democratic institutions,
but the existence of democratic institutions alone is not sufficient.
In
this context we urge the commission to continue to reach out to nongovernmental
organizations -- that they are the primary vehicle for strengthening civil
society, especially in the area of human rights. To the extent the legislators
can work with activists and other citizens interested in holding government to
its highest ideals, we can find cause for hope to continue down this long road
we are traveling to rid the world of torture.
Finally, I would like to
urge the commission to continue to reach out to the academic community in
particular that's engaged in work directly relative to the commission's mandate.
There are a great many individuals involved in research that could be useful
for understanding and improving human rights conditions. Unfortunately, their
efforts are frequently left within academic journals and conferences hidden
behind inaccessible jargon. In short, we don't get out much, and we certainly
need to.
(LAUGHTER)
If, as a member of this community, we can assist
you in any way, please feel free to contact any of us in the future. I thank
you very much for your attention and interest.
CARDIN: Thank you very
much for your testimony.
Our next witness will be Mr. Malcolm Wrightson
Nance, who's director of Special Readiness Services International and director
of International Anti-Terrorism Center for Excellence. Mr. Nance is a 20-year
veteran with U.S. intelligence communities combating terrorism programs. It's a
pleasure to have you with us today.
NANCE: Thank you. Mr. Chairman, Mr.
Co-chairman, I'm honored to be here to speak to you today on an issue of great
importance. My name is Malcolm Nance. I'm a 20-year veteran of the
intelligence community, where I served as a cryptologist, Arabic interpreter,
field interrogator and instructor at the U.S. Navy Survival, Evasion, Resistance
and Escape School, known as SEAR.
In my civilian capacity, I continue to
serve as an adviser, educator and scholar in counterterrorism and
counterinsurgency intelligence. I come today as an intelligence professional
with a dire warning.
As I've testified before a similar hearing in the
House, while at SEAR one of my most serious responsibilities was to employ,
supervise and witness dramatic and highly kinetic coercive interrogation
methods, including a wide range of activities now referred to as enhanced
interrogation techniques.
This included hands-on, short duration, high
intensity brutality such as face slapping, painful stress positions, simulated
sexual assault, mock executions and the most severe waterboarding. I've
testified that waterboarding, of which I was subjected to the maximum limit
allowable, is a professional process when does in the hands of a competent team.
It is also an inhumane, cruel, degrading torture that was applied regularly by
the most evil enemies fought by this nation's armed forces, including the Nazis
and the North Vietnamese.
Let us put the techniques aside. We face a
crisis because of the belief in a myth. The myth that torture is effective and
can gain the truth from a subject has been created and endorsed by many of our
highest citizens. In light of public opposition to torture, some members of the
American intelligentsia have called for a third way regarding torture and would
support it under certain conditions.
Recently, no less august personality
than the Felix Frankfurter professor of law at Harvard University, Alan M.
Dershowitz, advocated torture. He recently and publicly stated that torture
should be one of the legal tools to fight terrorism in the ticking time bomb
scenario. He called for the creation of a torture warrant whereby torture would
legally be authorized to extract information critical to stopping an imminent
attack.
This medieval, arcane and ignorant misimpression of what he
labeled extreme measures would authorize the president to use torture and
provide legal grounds to conduct brutality. In my view it is a license to
return to the Middle Ages and provide a judicial basis for a 21st century
Inquisition. It will create an ironclad international standard through which
past and future torturers can claim innocence.
By Dershowitz's hypothesis
Nazi SS officer Klaus Barbie's interrogations and tortures of French resistance
members was acceptable to stop their form of terrorism. By this reading all of
Pol Pot's torture orders were justifiable.
There is clearly a particular
madness that the image and the lure of brutalizing one's enemies afflicts those
who are furthest away from the bloodshed -- and believe me, I am very close to
the bloodshed. These advocates of murder and brutality must be reminded in the
strongest terms that the honored service of the American armed forces and
intelligence community is not their play toy.
Unlike the present illegal
coercion and torture activities which the administration has embraced in
defiance of U.S. and international law, the activities of the SEAR program were
honorable demonstrations in a simulated captive environment, which inoculated
our students to the experience of high intensity stress and duress.
We now
learn that this historic body of torture knowledge wrought from the pain and
graves of tens of thousands of American prisoners of war from the Revolution to
Iraq and Afghanistan was the template for Department of Defense and CIA
processing of Al Qaida prisoners. The thought that we decided to use our
enemies' torture playbook is too disgusting to imagine.
Torture must be
banned by this nation, and we must strive to regain the moral high ground. We
must call for a new Geneva Convention where the laws regarding the activities of
enemy combatants and their handling of them on and off the battlefield can be
reset to the lowered bar of justice.
America's honor must be restored. To
do that we must embrace our cherished values as fair and decent people and hold
to account those who have ordered and conducted illegal activities in our name.
Thank you.
CARDIN: Well, thank you very much for your testimony.
I just want to make a quick comment. I think most of us in Congress thought
we had already outlawed torture and that not only did we make it illegal, but we
thought that the values of America was so ingrained in our institutions that you
would never see any systematic effort by our government to push an envelope as
far as they think they could in order to use enhanced interrogation techniques
in a way that, if used against us, would clearly be categorized as torture.
So I think this is all very troubling that we now need to figure out a new law.
And then there's a question under the president's interpretation of his
constitutional power as to whether that would restrict the president anyway.
Now, of course, in the attorney general's hearing I think it became clear that
the statutes need to be enforced, including the president.
Ms. Chaffee,
you mentioned the letter from the four retired attorneys advocate generals who
worked for the military. I'm going to put that letter into the record, but let
me just quote one paragraph from that, because I think it is somewhat
fundamental to the question we have here.
It says, "The rule of law is
fundamental to the existence as a civilized nation. The rule of law is not a
goal which is merely aspire to achieve. It is a floor below which we must not
sink. For the rule of law to function effectively, however, it must provide
actual rules that could be followed. In this instance the relative law rule has
long been clear. Waterboarding detainees amounts to illegal torture in all
circumstances. To suggest otherwise or even giving credence to such a
suggestion represents both an affront to the law and the core values of our
nation."
I think that's somewhat fundamental to what we are dealing with,
and when the president issues these executive orders that raise a question, it
really causes us to be diminished as far as our basic respect for rule of law,
as well as the core values of our country.
You mentioned the fact that the
DOD -- the Department of Defense -- and the intelligence community now have two
separate roles. We have the army manual, the military manual that is binding on
our military, but the intelligence community has a different set of rules. I
would like to just get your view as to how workable that is -- that you could
have two different types of standards, one for our military and one for our
civilian population.
CHAFFEE: Well, I think that what we have observed to
this point, Mr. Chairman, is that it's not workable, that it has created
significant problems and continues to create significant problems.
The
acting judge advocates general of the armed forces, shortly after the issuance
of the executive order, expressed concerns that this separate standard for
Common Article 3 was going to make it more difficult for them to enforce humane
treatment standards within the military. They also expressed concerns that this
could potentially put our soldiers at greater risk, if they are taken into enemy
custody.
So I think that there are several problems with having this
double standard. It sends a confused message as to what the United States means
when it says that we're upholding our international obligations to treat
prisoners humanely.
Luckily, Congress at this particular moment in time
has the opportunity to do away with that dual standard and to make sure that all
U.S. interrogators use one humane standard under the Army Field Manual, a
standard that has proved effective in interrogations and a standard that
requires humane treatment.
CARDIN: I guess what I'm concerned about is
the power of the president versus the laws passed by Congress. It seems to me
that when Congress passes a pretty clear law, that needs to be administered by
the president.
In 2002 the so-called Bybee memo -- which has been
subsequently disavowed by the Justice Department, but it was the opinion for a
two-year period -- basically said that our definition of torture would only
include those types of activities that were life threatening, and that if it
wouldn't lead to -- let me use the -- "physical pain amounting to torture must
be equivalent in intensity to pain accompanying serious physical injury such as
organ failure, impairment of bodily function, or even death."
Now,
obviously, to all of us, I think, that's a pretty extreme view and would permit
many forms of interrogation techniques that are clearly in our common
understanding of torture. I guess my concern is the conflict between the power
of the president to go beyond anything that Congress does versus the
effectiveness of congressional statutes.
CHAFFEE: I certainly share your
view that the interpretation of the anti-torture statute that was contained in
the Bybee memo was a pretty disingenuous interpretation of the standard of what
is prohibited as torture.
I think that, but I do, however, believe that it
would be possible for Congress to further legislate to ensure that such
disingenuous interpretations of statute such as the anti-torture statute or of
the McCain amendment, of which we are afraid there is a similar memo in that the
New York Times has reported there is a similar memo that is not an honest or a
very straightforward interpretation of what the McCain amendment means...
But I do believe that during the confirmation process, now Attorney General
Mukasey stated that if Congress passed legislation that made the Army Field
Manual the sole single standard for U.S. interrogations, that he would enforce
it.
And that gives me hope that, should Congress act and pass this law and
should this act not be vetoed by the president or Congress is able to overcome
the veto, that the Justice Department would take the position that this law,
which would limit what type of interrogation techniques interrogators can use,
is constitutional and would enforce it.
CARDIN: He clearly did say that
during the confirmation process, but then left room for interpretation of any
technique based upon the potential power of the president to exercise his
authority. So I am comforted by some of his statements, but overall on torture
did not feel comfortable with the commitment really to have an absolute standard
as set by Congress.
Let me turn, if I might, to the justification used by
many to say why we have to use torture, and that is the ticking bomb. Several
of you talked about the ticking bomb scenario, where you're confronted by a
desperate situation where information is vital in order to protect the safety of
the people of our community, and you have someone in custody who perhaps has
that information and you don't have the time to go through the niceties, so why
not just use methods that can solicit at least some information in a timely
fashion.
Why not, while under extreme circumstances as determined by
whether it's the torture warrant, I think you suggested -- perhaps the court
makes that judgment, perhaps the president -- why not permit torture under those
circumstances? Can you answer me?
NANCE: Well, it's quite simple. As
Professor Dershowitz recommended a torture warrant, it's laughable on its face
in the sense that in counterterrorism you are constantly facing the ticking time
bomb. You're talking about an asymmetric threat of people who are in a constant
state of planning readiness and going through an operational cycle to deploy
weapons systems or terrorist systems or activities which you would consider
imminent at all times.
If that were the case, there would have been
large-scale and widespread torture more than there was in Northern Ireland with
the British throughout the 1970s and 1980s, because they were under constant IRA
bombing threat, which means that every individual that you would get into your
custody would be a potential imminent ticking time bomb candidate for a torture
warrant.
CARDIN: I agree. I think by definition you wouldn't have the
people under interrogation unless there was some information that was critically
important for us to have in order to avoid a disaster. We never know exactly
when bombs are going to go off, so I guess they're always ticking.
Dr.
Hilde, did you want to comment further on this?
HILDE: Well, the
International Red Cross did mention at one point that they considered 90 percent
of the prisoners at Abu Ghraib prison to be innocent. So if we're involved in
seeking ticking time bomb moral justification to torture individual human beings
and we're all of a sudden discovering that 90 percent of the people in custody
are actually innocent, I think we're faced with only finding ex post facto
justifications morally speaking, which should come prior to the actual torture.
And that may never be the actual dramatic version of the ticking time bomb,
but rather something along the lines of where is the weapons cache? Where is an
IED? Do we wish to allow torture to be institutionalized in order to find this
sort of daily information?
There is definitely a tragic decision to be
made there, but the ticking time bomb example takes it all out of proportion.
It's usually torturing one versus saving the city of New York. And that's a
terribly poor basis for a moral argument.
CARDIN: Clearly, and of course
the ticking time bomb definition is subject to a great deal of abuse, as Mr.
Nance has pointed out. Let me just put in the record a quote from the Pentagon
working group memo 2003. "Army interrogation experts view the use of force as
an inferior technique that yields information of questionable quality."
So
if you really are confronted with a very time sensitive episode, you may very
well find that by using torture you're going to waste the valuable time that you
do have by tracking down information that's not reliable in the first place. So
there's a question of reliability as well as one of definition in addition to
the moral issues and the legal issues that many of you have raised.
Dr.
Davenport, do you want to comment on this?
DAVENPORT: Well, in part, just
trying to step away from the ticking time bomb for a second and thinking more of
mundane aspects of it as well, if you look at -- there's an organization called
Relatives for Justice in West Belfast that documents kind of everyday experience
of people of Northern Ireland.
And yes, there were certain periods where
there was a constant threat, but then this did not explain the kind of rather
broad net that was cast across much of the Catholic community to kind of
prosecute them in a certain way and intimidate them, so torture had a different
effect. You weren't trying to elicit information in that context; you were
trying to intimidate.
So I think we kind of forget that sometimes. And I
think also the law enforcement applications we also kind of forget as well,
because we focus on the military context. We forget that a lot of kind of
mundane aspects of law enforcement -- I'm from New York, so (inaudible) I think
there are many instances of torture that have taken place with regard to law
enforcement scenarios that tend to be forgotten because of this highly
politicized dealing with terrorist organizations or civil war context. We just
have kind of everyday life as well.
CARDIN: Dr. Davenport, your numbers
are very, very troubling as to the number of countries that have condoned the
use of torture, particularly those that share common values that we have been
trying to provide international leadership.
We talk about our Western
values. We talk about our American values. We talk about countries that share
those values, and many of our policies -- international policies, foreign
policy, our foreign aid budget -- so much of it is based upon trying to be a
leader on Western values. And yet your statistics indicate that many of our
countries would condone the use of torture.
And then we take a look at
some of the public opinion polls, and it's mixed. It's not as strong as many of
us would like to see in condemning the use of torture.
Could you just give
me a little bit more information about how you conducted that research? As you
say, when torture is used, countries don't issue press releases. How did you do
your research?
DAVENPORT: Interestingly enough, the particular project --
the paper that I reported here -- was from State Department country reports,
Amnesty International and other sources that basically try to catalogue this as
best they can from human rights organizations quite frequently on the ground.
So yes, there's no press release, but the victims are occasionally tapped by
human rights organizations on the ground than then kind of in turn provide that
information.
This is also consistent, though, with a book that I just had
come out called "State of Repression and the Domestic Democratic Peace," which
also says something very similar in the sense that not all aspects of democracy
are equally important for reducing human rights violations. So to that extent
the way we've kind of broadly cast our conception of what we think of as
democratizing or the most important institutions in bringing about that
reduction in human rights is not as consistent as we would like.
So there
are certain aspects of it. The electoral dimension is not as important as the
development of civil society. It's not as important as electoral competition
and diversified parties as well.
CARDIN: I'm going to turn to Chairman
Hastings, and I will return with a few other questions.
HASTINGS: Thank
you very much, Senator.
I have perhaps more questions than answers, but I
would offer all of us can be created with the scenarios, I'm sure. And the
ticking time bomb I'm in thorough in agreement with Mr. Nance.
In an
earlier conversation he and I had, he said that there may be circumstances where
the individuals who would use extraordinary measures to try to exact information
might very well put themselves in the position of saying, "Fine, I have to do
this. I'm going to break the law and suffer the consequences."
The
likelihood is that a lot of enlightened people would do that, and in the comfort
of this fine room here at the University of Maryland, we might easily underscore
that.
Mr. Nance and I are meeting personally for the first time today, but
I would like to point to his book, because he has an experience, I think, that
many of us do not have, and his book is "The Terrorists of Iraq," and in his
opening line he cites to the fact that this came at the expense of six
colleagues of his that died, giving rise to his writing this.
He also --
and I didn't say this to him earlier -- has remained professional and obscure
until certain things have set him off, and he remains professional, but decided
to begin putting forth some information, based on the experience.
Now,
what if we got a call and one of the aides came up to Senator Cardin and said
they just caught a guy at the Hyattsville County Courthouse that says that he
planted a dirty bomb at the Student Union at the University of Maryland, and
that bomb is scheduled to go off in 30 minutes, and they had him in custody.
The question would be could you do anything to get information out of him or
what price would we be willing to pay in order to get that information out of
him?
I don't think there is an answer to it, but I just throw it out
there, because I can see the situation in the light of those of you that are
young people, with the really clear and present dangers that are etched out in
the world today, that the likelihood is that they will occur somewhere in the
world where someone will have information about the potential destruction of a
city. And it will be interesting to see.
We can sit up here and theorize
and carry on about different scenarios until we are blue in the face, but when
you're on the ground and have to discharge this function, it takes on a
different characteristic.
Let me carry forth further the notion of
something that is disturbing to me. I was in the conference, as I said to Ms.
Chaffee, when Senator Feinstein last week, Senator Cardin, offered the measure
that would bring the Central Intelligence Agency under the norm of military
interrogation. And it passed out of the conference. The conference occurs when
the two committees get together and conform a measure.
This was the
Intelligence Authorization Act, which we have not had an authorization act in
the last three years -- really five -- and this particular one has now passed
the measure, awaiting final passage of the conference report itself.
And
then the president has indicated that he will veto that measure largely -- and
maybe other measures that he and his functionaries are dissatisfied with -- but
one of the reasons highlighted is that it would bring this norm to our
operatives in the military and in the CIA or the intelligence community, which
makes an awful lot of sense to me.
Now, then, the president has said that
alternative interrogation techniques -- and we presume that this includes
waterboarding -- has produced good intelligence. The president that I would put
to the president is did it also produce bad intelligence?
And you can
isolate a cherry pick, but the thing that would be interesting to me is the man
seated here -- Mr. Nance -- has spent 20 years in this field. He has, if I'm
not mistaken -- and you correct me, Mr. Nance -- testified here that in his
personal training he was waterboarded.
In addition to the fact, I believe
he, based on recent reports, in a forum of news hour, commented about this
particular technique and others. And perhaps it would have been wise for a
President Bush or a Vice President Cheney or Director Hayden or anybody to ask
somebody that did it or had it done to them what it's like. But I guarantee you
they didn't think to telephone up.
We did. Our staff picked the telephone
up and called the gentleman, and he's seated here. And he's just one. I
imagine there are others that have had this experience.
So Mr. Nance, what
do you think about extracting actionable intelligence? And tell us so as how at
least this audience will know what waterboarding is and how it's performed.
And toward that end, what would be your comment on the president's assertion
that good intelligence has been achieved by alternative interrogation
techniques?
I apologize for going on, Senator, but I wanted to get my
anti-Bush digs in.
(LAUGHTER)
NANCE: I'm not here to get anti-Bush
digs in. I'm here to hopefully represent the intelligence professionals out
there who want to do this job right.
You presented an interesting
scenario, and as you were presenting that scenario about the potential attack on
the Student Union, my mind went through a whole series of data points. My first
thought was it would be domestic terrorists, because no one who was
international would attack such a small target. He would bring a dirty bomb,
and then he would brag about the dirty bomb, because he's part of the plot which
perhaps doesn't even have the system.
An entire intelligence process goes
through the mind -- not just of myself, but of everyone in my community -- and a
fusion of resources would be brought to bear to determine whether that plot is
true or not. Now, I haven't hit anybody yet, and I didn't have to, to get to a
baseline of information to determine the viability of that attack.
Forensically, we don't operate in such a way that allows us to bring all of the
resources of the intelligence community to bear. I personally believe that the
intelligence community is operating on stereotype and mythology. The new
operatives that are coming into the field or operators that are coming into the
field are viewing TV shows like 24 as a documentary.
This is not the way
we do business. The true professionals in this field want to get actionable
intelligence through a wide historical basis of knowledge which comes from
scholarly works, which comes from the lessons learned first over two centuries
of intelligence collection in our allies. We do not have to descend to the
level of our enemies.
In saying that, I will describe a little bit of what
happens when you descend to the level of your enemies. The information that you
get from waterboarding -- let's take waterboarding, because there are far worse
tortures -- you're going to get information. I can make anyone talk. It's as
simple as that.
The process -- you cannot resist it. You cannot not say
something, because your lungs are filling with water, and you feel every drop as
they enter. The pressure, the way that the technique is performed -- and you
might have seen some of that a little in video or telephone on the Internet --
that is not the real waterboarding. That is what we call the field expedient
amateur hour.
Real waterboarding is exceptionally professional. It is
done so fast that you don't know it's happening until you've already been hit
with the water and you've already got a quantity of water going into your
system. And it gives you a dilemma.
And the dilemma that occurs to you
as you're trying to spit up, gag and choke on the water and get it out of your
system, which is already pushing through into your lungs -- the dilemma is am I
going to listen to this man's question and answer it? Just because you've
already gone past your gag reflex, and you know that you're drowning -- there's
nothing simulated about it; it's just controlled drowning -- you will answer the
question.
What comes out of your mouth can be a lie. It can be a truth.
It can be a half-truth. We won't know until we evaluate that. However, you're
going to say something. Usually, we give you an opportunity to comply
non-verbally by kicking your shoes together, because you can't move anything
else. And after we allow you to go through a period of hysterics, where you
fully understand exactly what's happening to you, only then do we give you an
opportunity to answer a question -- often yes or no question, because we don't
want to interrupt the process.
So this is the same procedure that our
government intelligence agencies are using, because it came from the military
survival, evasion, resistance and escape world, and that came from our enemies.
So you will talk. What you will say will be considered completely and
totally unreliable until the entire $50 billion per year has been applied
against whatever has come out of your mouth.
Now, a good resistor, or
someone who has learned that you want very specific things and you want to push
them away from that area, will give you something -- something that will stop
the process and will allow you to maybe take a week or two to determine that
it's worthless -- maybe something that you know they already know about, because
you read it in the newspapers.
I think the case of Zarqawi Sheikh Muhammad
discussing cutting the cables on the Brooklyn Bridge plot -- this is a very
brilliant man. I know his operational methodology on the field. I understand
his mindset. He's very intelligent. He went to the University of North
Carolina, I believe. He would have just gotten someone from the Al Qaida
maintenance garage with a blowtorch and would have carried out an experiment to
see how long it would take to cut the cable.
But knowing that it was a
ridiculous plan from the outset, even though people were deployed to collect
intelligence under torture, a good resistor, someone who has gone through the
process several times, would have thrown that out. And it would have stopped
the process for several months, if not for some time, until they figured out
that it was a worthless piece of intelligence. But he gave them something.
And what we've done is we possibly have created an operative who now knows how
to work the waterboard or whatever technique that we're using against him.
We've created a hardcore resistor.
Now, throughout everything that he's
given us, we may never have heard some of the more ridiculous ideas that were
presented at the Al Qaida military council's meetings, and he can throw out
every ridiculous, rejected plan that was given to him between 1993 and 2002, and
we would think it's gold, when in fact to him it is pure trash, and it keeps him
away from discussing real plans which may actually be in effect.
HASTINGS:
That's a very good analysis.
Senator, I'd like to put one other thing on
the record. And maybe, Ms. Chaffee, you would respond. While we're in
agreement -- or I am of the mind -- that it is important that there be norms
applied by all agencies seeking to extract information, do you perceive that if
we use rendition and carry individuals to other countries where the likelihood
is that they will be tortured, that we are doing nothing more than what would
amount to an artifice to get around law, assuming the president would even sign
this into law?
And then I find abhorrent that we have black sites, and
here again there's a situation where just by its name -- if you name it a black
site, you don't want someone to know where it is. I'm going to start naming
some of these things white sites, but I'll try not to do that. But all things
considered, it's something bad.
So what's your reaction to the
circumvention of the law, or do you perceive that that is circumvention of the
law? And I invite anybody else to comment, if they all saw fit.
And thank
you, Senator.
CHAFFEE: Thank you, Mr. Chairman. Yes, I think that as an
organization, Human Rights First, and as an attorney there, I am very concerned
with the practices that you mentioned, the practice of extraordinary rendition,
which we know has occurred.
This is the practice of rendering individuals
to countries for the purpose of interrogation. And we know that the United
States, that the CIA has rendered individuals to countries that we know do
engage in abuse, that they engage in torture, that the U.S. State Department has
reported engage in torture.
Under the U.N. Convention against Torture, we
have an obligation not to return individuals to countries where there is a
likely chance that they will be tortured. And in rendering individuals to
countries where they are likely to be tortured, we are violating our obligations
under that convention.
And we know that there have been individuals --
Maher Arar, who testified before the House, I believe, a couple of weeks ago,
was in fact rendered by the CIA to Syria, where he was -- in fact, we know now
-- abused and tortured. This is certainly a concerning practice and one that
should be cease.
We know that the types of diplomatic assurances that are
given by countries that engage in torture -- a country simply saying yes,
agreeing that they will not torture in this instance -- is not a reliable
mechanism to make sure that our treaty obligations under the Convention against
Torture are enforced.
You also mentioned the practice of secret detention,
that there have in the past and are potentially now black sites where the CIA is
detaining individuals.
Secret detention, the practice of holding people
incommunicado, has historically created the environment that leads to abuses
such as torture, because there's no transparency. The international community
of the Red Cross is denied access to these sites, so there's no way that
individuals held in these sites are not being abused.
And this is
particularly problematic and concerning and a practice that we certainly think
should no longer be engaged in.
CARDIN: As I listen to your responses --
and, Mr. Nance, as you were describing waterboarding -- it raises the question,
I think, that Ms. Chaffee also acknowledged, and that is if Congress tries to be
specific in defining what torture is, that you can always find a different way
to do that particular procedure and claim that it is no longer under the
definition of torture as passed by Congress and required by the circumstances to
use that type of technique.
I do think we all understand what torture is.
The Supreme Court tried to deal with it by definition of shock to conscience. I
think Congress is pretty clear that it wanted to prohibit all these related
practices.
I have just a general question, if I might, and that is this
country -- America -- has had a proud record in promoting human rights and
democracy. After World War II we were involved in making sure those who
committed war crimes were held accountable. This was the first time ever that
we tried to do this internationally to say that there are certain crimes against
humanity in which people can be held -- including government officials acting
under the authority of government -- accountable for their activities
internationally.
Then during the Cold War we established the way in which
the international community understood that what was happening in other
countries in the failure of free elections and not allowing people the right to
speak out, that we were going to stand up for basic human rights. And we spent
a lot of time in international leadership to make it clear that if a country
wanted to become a democratic country, there were certain responsibilities in
accomplishing that.
And then we exercised tremendous leadership to bring
down the apartheid government of South Africa -- one of the proudest moments, I
think, of the United States when we figured out a way to bring that to the
forefront. And then more recently, in the form of Yugoslavia, we were the ones
who spoke up and said yes, it is legitimate for us to interfere to protect
against ethnic cleansing and to protect human rights.
And just recently in
the work in our commission in dealing with trafficking, in dealing with all
forms of discrimination, the United States has exercised tremendous leadership.
These are our values.
So where do we go? How did this come about? How
could a democratic country -- how could democratic countries -- say that torture
can be done by us, but not by our enemies, because our values are consistent
with the use of torture? How could that happen? Where are our vulnerabilities?
In order to try to correct this thing, how did this come about?
NANCE: I
can speak from the -- as I like to say -- deck plates. First, I was at the
Pentagon. I actually was outside the Pentagon on the morning of September 11th.
I saw the aircraft hit the building. I drove right to the site and assisted in
the rescue.
I know what the stakes are in this operation. I knew exactly
who had done it, how it was done and the entire corporate history behind Al
Qaida for wanting to do it. For some strange reason, the morning of September
11th seemed to in some hands create an ideological doorjamb, so to speak, to
where those fantasies that I talk about, what people think the intelligence
community should be doing and could do, which I call -- we actually refer
amongst ourselves as -- Tom Clancy combat procedures, OK? -- CPT.
(LAUGHTER)
These are not the way the community truly works. And somebody
also this as an opportunity to go back before the Church Commission and restore
the intelligence community into its do what you want with impunity above the law
standard. Now, I view it a different way. I've been called a boy scout in this
respect, and I guess I am.
We did not evil in World War II in order to
become the greatest human rights abuser since the communists or since the
Cambodians and the greatest torture nation and contractor of torture. September
11th didn't allow us to destroy our values or the Constitution. And there are
many within the community that believe this.
However, when you literally
write out an executive order or a rule that allows you to do whatever it takes,
there are many people within the system who will do whatever it takes and be
rewarded for doing that. And it's as simple as that. It's as simple as having
permission to essentially descend down to the level of a torture state. We're
no -- to a certain extent -- better than the Argentineans during the dirty war.
DAVENPORT: I have a somewhat different response to your question. It
seems as if historically democracy has been very good at eliminating the most
egregious and the most obvious forms of state abuse toward its citizens. And
with increased accountability comes increased desire to hide your abuses, which
would lead directly to greater torture.
So in a sense it's a different
correlation than we'd like, but through promoting democracy we've kind of
shifted the plain. We haven't necessary eliminated the problem of order. We've
shifted the way in which most states will engage in it, and we kind of prompt
individuals to engage in the more hidden forms of repressive activities that are
harder to detect and are perhaps the most persistent historically in many
respects, and so I think that kind of speaks to the paradox you rose.
HASTINGS: Can I ask a question, Senator?
Dr. Hilde, you commented in your
take on the theory that the sole conceivable rationales of torture and liberal
ideology is, I believe you say, information gathering to prevent a catastrophe.
This is certainly a prominent element of public debate and one that underpins
what we have constantly acknowledged.
Today we talked about the ticking
time bomb scenario, but at the same time there have been some government
officials -- for example, former Attorney General Gonzales in '04 expressed the
view that we should not reveal to our enemies what our interrogation techniques
are and how far we are willing to go.
What do you make of that concern?
And what does that say about what the impetus for harsh interrogation has been?
HILDE: Well, first of all, there's no good moral argument for torture.
The only one that does exist is this hypothetical, which I think is outrageous
anyway -- extremely rare, probably nonexistent, and nonetheless outrageous. And
in that scenario, yes, perhaps one is faced with a moral tragedy, but it ought
to be illegal, so if one does torture in order to gain the ticking time bomb,
they ought to be held under the law regardless. And Mr. Nance and I have
discussed this earlier. I think we're in agreement on this.
And as for
the statement that our enemies ought not to know what we're capable of -- that's
a difficult question. Yes, I would suppose that if the enemies knew precisely
what the interrogation practices are, they could much more easily train
themselves to avoid giving true information during those interrogation
practices. And perhaps the threat of extreme forms of torture is enough to
frighten some prisoners into providing information without torture even having
to be applied.
Yet the incentive is going to be that at least in some
cases an organization which is based upon this idea is going to have to show
examples to people that these practices are engaged in. And that would be the
only effective way to pre-create this disincentive.
HASTINGS: I
understand.
Dr. Davenport, under circumstances that lead democracies to
redress with respect to torture -- especially with respect to what you called
violent dissent -- I would that you would elaborate just a little bit on what
you mean when you talk about violent dissent insofar as your research
demonstrated.
Can you elaborate on what effect those same circumstances
have on other human rights, and that is do you seen an effect of violent dissent
on, say, free speech or democratic speech or free elections?
DAVENPORT:
By violent dissent, we're generally focusing on civil war and insurgency,
certain acts of terrorism that involves destruction of property and individuals.
We're in the process now of going through and trying to assess which rights and
which personal integrity violations are most threatened by this.
In my
book I identify that the predominant influences of democracy are most effective
at eliminating or reducing physical integrity violations --
mass killing,
imprisonment, torture, disappearances -- and less effective with regard to
speech, association and so forth. So those are the most vulnerable
within the
context of domestic threats.
You have what I refer to as the domestic
democratic peace. The ability of different institutions of democracy to reduce
human rights violations is least effective at trying to counter political
violence and complex situations for the less violent ones, the more sensitized
ones in a sense. So speech and association are the ones most vulnerable when
we're fighting violent dissident activities. When the state is fighting violent
dissident activities, those are the things that are most threatened.
HASTINGS: In a sense you and your colleagues did your research and now are
published at least in academia. Has that brought further attention worldwide to
the empirical data gathering information that you're doing?
DAVENPORT: In
my opinion, no. Part of the difficulty is, I think, the community has been
distracted by discussions about civil war and terrorism and the ramifications of
human rights, and the effectiveness of democracy in improving the situation has
not necessarily been as thoroughly investigated as we would like.
HASTINGS: In your data compilation did you eventually come to conclusions at
this point in the 80 percent, for example, of the countries as I recall you said
permitted torture at least once during a specified period if time? Did you come
to a determination as to numerically which were the worst offenders and which
were the least offenders?
DAVENPORT: One could with our analysis do that.
It's just one of those kind of cultural things. In academia where the naming
and shaming element of exactly what we do is kind of antithetical in many
respects to what people would like to know, but...
HASTINGS: We all need
a good dose of politics.
DAVENPORT: Exactly, but very easily we could
identify the ranking of who are the worst and who are the best conditions. We'd
also like to try to expand it to try to think of not just that torture takes
place, but also the scope throughout the population and get a general sense of
exactly how many people are being implicated.
HASTINGS: Thank you, sir.
CARDIN: Of course, the United States State Department does make certain
lists. These lists are available. I don't believe they include the United
States.
HASTINGS: That's just what I said. They do.
CARDIN: They
do make these lists, but they do quantitate in different areas, and Congress has
passed statutes to require certain types of reports to be made available just
for the purpose that you said, and that is to put a spotlight on these
countries. We're lobbied frequently by other countries to get off those lists.
We tell them how they can do it. So it serves a very useful purpose, and I
think your information would be very helpful to all of us.
I want to thank
all the witnesses for your testimony. I found it extremely helpful. We have a
challenge. We have a challenge. Yes, it is possible that Congress will have to
clarify the laws. But we also need leadership to make it clear that our values
are to be complied with. We're not looking for ways to get around the statutes,
but the way to make our commitment against torture meaningful for other
countries to follow. And we don't have that today.
In order to accomplish
that, we do need better public understanding. I don't think the public truly
understands the depth of the issues concerning
the techniques of interrogation
and torture and how it's used. And to that end, I think each of you have really
added to the national discussion and debate.
And I think each of you in
your own way, not only by being here, but by your roles and the publications
that you're issuing, the responsibility you've taken in visiting the various
places -- and, Mr. Nance, with your experience and being willing to help in the
public discussion here -- I found extremely helpful.
At the end of the
day, if we have -- as I think we should -- a zero tolerance on torture, it
should be not only the law of this country, but the principles of our country.
We're going to be a safer country. We're going to be a safer country as far as
public safety, and we're going to be a safer country as far as civil liberties
are concerned. And that's really what the values of America should be directed
towards.
So I thank you again today for your testimony today. I thank the
chairman for allowing us to have this field hearing in College Park.
Once
again, Dr. Mote, thank you for making the arrangements.
And this hearing
will stand adjourned.
[Whereupon the hearing ended at
11:52 a.m.]
END
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