OLC Torture Memo Hearing: Sen. Lindsey Graham Does His Best Cheney Impression

A BUZZFLASH NEWS ANALYSIS
by Meg White

The Senate Judiciary Subcommittee on Administrative Oversight and the Courts today held a hearing titled, "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration."

The first public hearing on the subject since the release of the torture memos by the Obama Administration was headed by Subcommittee Chair Sheldon Whitehouse (D-RI), though it appeared Sen. Lindsey Graham (R-SC) didn't know the meaning of "minority" (Graham is not the ranking member on the subcommittee but is a member of the minority panel on the committee; Sen. Jeff Sessions (R-AL) is the official ranking member, but did not speak at the hearing).

"I don't know whether this is actually pursuing the nobility of the law or a political stunt," Graham said in his opening statement, contending that "it's not really fair" to the previous administration.

Graham called for the release of memos that former Vice President Dick Cheney has publicly stated would prove that torture yielded actionable evidence that saved "hundreds of thousands of lives." Graham repeatedly asserted that there was "probably" good intelligence gleaned from torture techniques.

Sen. Russ Feingold (D-WI) said that in all the documentation he's been privy to, including two documents referenced as proof of the efficacy of torture by the former vice president, he had not seen any evidence of Cheney's claims.

"Clearly the former vice president is misleading the American people when he says otherwise," Feingold said.

Sen. Patrick Leahy (D-VT), chairman of the Judiciary Committee, cautioned Graham "not to raise straw men and try to predetermine this hearing," and asked Graham to simply listen to those invited to testify.

Not that that would stop Graham. He stepped on any answer he didn't agree with, very rarely allowing witnesses to give one full sentence in response to his questions.

The star witness, much to the apparent chagrin of Graham, was former FBI supervisory special agent Ali Soufan, who was one of the interrogators who questioned terror suspect Abu Zubaydah after he was captured on the battlefield in 2002. Soufan has also been the government's main witness at the trials of two Guantanamo detainees. Because there are documented threats against Soufan's life, cameras were shifted so his face could not be seen.

"It is a mistake to use what have become known as enhanced interrogation techniques," said Soufan, calling such methods "slow, ineffective, unreliable and harmful to our efforts to combat al-Qaeda." He said he's been in situations where he only had a matter of minutes to determine the source of an immediate threat, often described as the "ticking time bomb" scenario by those who advocate the availability of torture methods. In these situations, Soufan said he's been able to get actionable intelligence by using methods of nonviolent deception and engagement. He said he did not, at that time, have the "180 hours" often necessary to rely on sleep deprivation or other "enhanced" techniques.

Besides being faster, Soufan said the traditional techniques just work better, though they need to be applied intelligently by trained personnel.

"The best way to deal with them is to be smart and actually engage with them," Soufan said. "It's easier to hit somebody than outsmart them."

Soufan described his involvement in the interrogation of Zubaydah. He said that within the first hour, Zubaydah revealed to him that Khalid Sheikh Mohammed was the mastermind of the 9/11 attacks, thanks to nothing more than the traditional techniques employed by Soufan, another FBI agent, and a CIA counterpart. Then, a private contractor was brought in to apply the so-called "harsh interrogation techniques," which did nothing but shut Zubaydah down. The suspect was then handed back to Soufan and his team, who got from Zubaydah the identity of the so-called dirty bomber, Jose Padilla. Then, the contractor was brought back and Zubaydah quit cooperating a second time under another round of harsh techniques. Once again, Soufan was brought back in, then the contractor was switched in. At this point, Soufan protested and was asked to leave by FBI Director Robert Mueller.

Whitehouse then asked Soufan about President Bush's 2006 statement about Zubayda resisting normal interrogation techniques and only supplying nominal information before being tortured. Soufan stopped short of accusing Bush of lying, saying "the president -- my own personal opinion here, based on my recollection -- he was told probably [a] half truth."

It wasn't just members of the intelligence community condemning torture at the hearing. Members of the legal community presented testimony criticizing the lack of humanity and legal grounds of the OLC memos.

"I believe that the memos are an ethical train wreck," said Georgetown University Law Professor David Luban in his opening statement. He insisted that the "OLC's job is not to rubber stamp... or to provide cover" for the president. Luban also mentioned a 1983 case known as United States v. Lee, tried under the Reagan Administration, in which waterboarding was deemed illegal and called "water torture."

Luban said the OLC memos relied upon a "deeply eccentric interpretation of the law." He said the memo authored by John Yoo that relied on Medicare language to define the limits of harsh interrogation was "so bizarre that the OLC itself disowned it months later." He said that while the first memo authored by Jay Bybee echoed President Nixon's notorious assertion that it's always legal if the president does it, in Nixon's case the statement was said "off the cuff in a high pressure interview, not in an OLC memo."

Philip Zelikow testified as the executive director of the 9/11 Commission as well as a former counsel to the secretary of state. Zelikow recently wrote in Foreign Policy magazine that the White House attempted to collect and destroy all copies of the 2005 memos he wrote as counselor to the secretary of state opposing the torture memos from the OLC.

When questioned about the incident today, Zelikow said OLC lawyers could have responded by explaining to him why his legal opinion was incorrect, or by saying they would look into the accuracy of his criticism. Instead, they chose a third option, he said, by saying "We don't want to talk about it."

"The lawyers involved in that opinion did not welcome peer review and indeed would shut down" any opposition, Zelikow concluded.

It seems the Bush Administration as a whole was not open to having a frank conversation about interrogation. In his opening statement, Zelikow noted that the 9/11 commission predicted the administration's move toward harsher methods of interrogation and suggested how to avoid that type of ethical conundrum. It was "a recommendation that the administration ignored, which was in itself an ominous sign," Zelikow said.

Sen. Graham, meanwhile, straddled some odd logic in his pronouncements at the hearing. He insisted that the previous administration had "made some mistakes" in their efforts to protect the country, "but that's not a crime." He seemed to suggest waterboarding might be illegal or at least that "it will come back and bite you," but that to say that the Army Field Manual "is the only way you can interrogate [detainees] is not right." He seemed to favor an international standard for how to treat terror suspects, but slammed the Geneva Convention repeatedly, insisting at one point that "you cannot say 'hello' firmly under Common Article Three."

The panel of witnesses included two other law professors whom Graham was much more in line with ideologically (one could tell because he actually let these witnesses complete their answers to his questions).

One was Professor Jeffrey Addicott, director of the Center for Terrorism Law at St. Mary's University School of Law in San Antonio, TX. His logic was almost as befuddling as Graham's. He cited a decision in Ireland's court of law that determined that five techniques -- "wall standing" for up to 30 hours, hooding, exposure to extreme noise, sleep deprivation, and the reduction of food and drink -- were "ill treatment, but not torture." He seemed to try to use this logic to "prove" that waterboarding is not torture.

Addicott used an example from an Israeli court decision to say that "if we conclude in fact that we did engage in torture, [then] we have to prosecute." This statement suggests that in order to avoid prosecution, we had better not call it torture, or else we may run afoul of international war crimes prosecution agreements. Later, Addicott labeled as "propaganda" both the impending closure of the prison at Guantanamo Bay, Cuba and the notion that the United States could have possibly engaged in torture.

Professor Robert Turner, associate director of the Center for National Security Law at the University of Virginia School of Law in Charlottesville, also played nice with Graham.

He used the history of our actions in World War II to make the case for looking forward and not back, saying that the illegal detention of Japanese-Americans was approved because those in charge "were frightened and they wanted to prevent another Pearl Harbor," saying he believed that President Bush's OLC was motivated by the same fears. "No one demanded a truth commission to go after the ghost of FDR." Turner made no mention of the fact that Roosevelt was not accused of torture, the subject at hand.

"I think they were horribly wrong, but I don't think it was an evil decision," Turner said of Bush's OLC. In attempting to answer the question posed by the title of the hearing, Turner said that what went wrong was that there was in the OLC a "general ignorance of national security law."

Though Graham stepped on pretty much every reply that did not suit his purpose, he didn't always get what he wanted out of the cross-examinations. When he asked Luban if putting a spider in a suspected terrorist's detention cell would be torture, Luban replied that it could be if the detainee was led to believe it was a deadly arachnid. When Graham followed up by asking Luban if Addicott was "unethical" in his reference of precedent, Luban said such statements "could be unethical" if lawyers ignored established law such as the U.S. v. Lee case. Luban also noted that Addicott left out several international cases that classify waterboarding as torture.

As one might imagine, the hearing ran a little long. Whitehouse cut off Soufan's response to a misleading statement by Graham because the subcommittee chairman had to leave to catch a flight. Instead of ending the hearing himself, however, Whitehouse allowed Graham to end the hearing with a rambling closing statement. Graham wished Whitehouse Godspeed to the airport, and warned him that he'll have to go through airport screening, but that that's a good thing, presumably as a knock on civil libertarians in the audience.

A BUZZFLASH NEWS ANALYSIS

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