HJC Testimony: Mr. Unitary Executive and Mr. Yoo

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Here’s a post I did on David Addington’s testimony at the Libby trial.

Here is John Yoo’s prepared testimony.

Note this hearing is a Subcommittee Hearing–so it’s Jerrold Nadler’s baby, not Conyers’. That means a subset of HJC’s better questioners will appear today: Nadler, Davis, Wasserman Schultz, Ellison, Conyers, Scott, Watt, and Cohen, with Franks, Pence, Issa, King, and Jordan for the bad guys.

Nadler: Subject of utmost importance to integrity of nation. Will not be permitted to be disrupted–anyone will be expelled immediately. Legal memos defining torture out of existence. I speak for many of my colleagues when I say the more we hear the more appalled we become. One testifying voluntarily, one testifying under subpoena. We will not be deterred by unchecked delcaration of privilege.

Franks: Almost 60 hearings on detainee treatment. Torture banned by various laws. Severe interrogations do not involve torture and they are legal. Results of waterboarding KSM, Abu Zubaydah, and al-Nashiri valuable. Alan Dershowitz says we can torture, so everything’s okay.

Franks just asked to submit evidence into the record. Nadler went, whuh? Nadler complains about Addington stiffing the committee for written testimony, but then submitting his own exhibits.

Nadler: I want to defend Dershowitz against allegations he’s an ultra-liberal. He just wrote a book advocating torture through warrants.

Conyers: More concerned about what we’re going to do, not any individual citizen. I don’t know why giving someone a lawyer is shocking to anyone. We have reports stating that our witnesses played a central role in drafting legal opinions on torture.

[Note: both sides look unusually prepared today, with Franks and Conyers both showing video from earlier hearings.]

Addington: 3 points. Iran-Contra said I was working for Cheney, in fact designee for Broomfield of MI. An author of prep for minority views, I had left before the report was written. More important, Conyers mentioned, wanted to give benefit of doubt. There’s one subject in which there’s no doubt, I believe everyone on this committee want to defend this country, protect it from terrorism, differences on how that’s accomplished. Thank you.

Nadler: Sorry I gave you too much credit. Is that the entirety of your statement?

[Nadler seems befuddled by ADD]

Yoo: Thank you, appreciate Conyers open mind. Waive rest of my time.

Nadler: You don’t want to summarize it?

Yoo: I don’t need to.

Yoo: In response to comment about privilege, I have received instructions about what kinds of things I can talk about. I want to make clear, I have every desire to help committee, but also professional obligation to DOJ. There could be conflict between the committee…

[Shorter Yoo: Prepare for lots of stonewalling.]

Yoo: Remember the context. 9/11.

Schroeder: Not here to question anyone’s best faith efforts to protect the country. Events have taken place WRT detainees, military commissions, behind each of these occurrences, legal analyses have mistakes in them. Important to look back. Three points about memoranda. 1) Memoranda starkly reflect extreme view of absolute uncontrolled power. This power if applied to WOT is breathtaking in its scope. Defined that battlefield includes the US. Tactical decisions about how to go after terrorists, interrogate, detain, for the president to assert that in each and every respect that the president has unilateral and unreviewable authority is a position that’s far outside mainstream of jurisprudence. 2) Not a criticism simply raised by Bush’s opponents. Goldsmith. "Deeply flawed, sloppily reasoned, overbroad" Comey et al refused to agree that warrantless wiretap program was legal. Deeply flawed view of jurisprudence on strengths and limits of what president can do in face of statutory prohibitions. 3) Don’t seem to have followed internally within OLC good practices. Yoo supplied more details. Still leave a number of questions in mind.

Nadler: Addington. Did you play a role in analysis of August 1 interrogation memo?

Add: No. I didn’t say I had nothing to do with it. Let me read to you. Excerpt from a book. War by other means. Page 33. Various media reports that his (ADD) was so outsized. As the drafter of many of those opinions find this claim to be so erroneous.

Nadler: We don’t need these quotes. Tell us what your role was.

ADD: [Writing notes down.] I’d be interested in seeing doct you’re questioning me about in front of me. Assuming you and I are talking about the same opinion. Yoo coming over to see Gonzales. Gave us three subjects he was going to address. Goes off and writes opinion. [getting opinion] Mr. Yoo has not defended himself. I can as client on this opinion. [Huh? I thought Gonzales was opinion.]

Nadler: WaPo ADD advocated memo’s most radical claim, that the President may authorize any interrogation method even if it crosses into torture.

ADD: No, Yoo said, I’ll address COnstitutional authority of President.

Nadler: You didn’t advocate any position. Do you believe PResident can authorize violations of torture statute.

ADD: What we’re talking about are laws.

Nadler: Do you believe President can authorize violations of federal statute.

ADD: As general principle, no. But facts matter.

Nadler: When do you believe that President can violate certain statute.

ADD: I didn’t say that.

Nadler: Is there any set of facts that would justify president violating statute.

ADD: Not going to render an opinion on every law.

Nadler: Do you believe that torture can be justified out of self-defense.

ADD: I’ve relied on opinions issued by DOJ.

Nadler: Did issue an opinion that President can violate FISA.

ADD: Constitutional questions raised about whether execution of statutes.

Nadler: Torture child to get information

ADD: You’re seeking a legal opinion. I’m not here to give you legal opinions, you have your own lawyers to do that.

Nadler: What?

Nadler: Yoo. Severe pain, must rise to death, organ failure, or serious impairment. Where did you get that language from?

Yoo: August 1 memo? Your question is where did it come from?

Nadler: How did you come to that conclusion?

Yoo: When Congress passed that statute, no definition. No guidance.

Franks: Clinton authorized assassination of OBL. Do you believe this is one of the implausible theories of criminal defense?

Schroeder: I haven’t reviewed that opinion. The way the 2002 opinion are among the pieces of legal reasoning that are far-fetched. He says CrimDiv reviewed memo. He doesn’t say they approved the memo. I’d be surprised if they did. Unless necessity was explicitly, it wasn’t available. I’d be surprised to hear CrimDiv was in there.

Franks: It does appear interesting to me that Clinton could issue memo saying that assassinating someone is self-defense but now we’re debating waterboarding. Yoo, part of Esquire interview. Precise guidance. Very well stated. Didn’t want opinion to be vague. Clear line. Elaboration?

Yoo: Interview speaks for itself. Now, I think that when you’re called on to interpret statute that Congress hasn’t defined, people have to have clear definition.

Franks: Try as they might, majority should not be spinning life and death into soap opera. Interrogation was disclosed to Pelosi, she did not object. Was successful in preventing terrorist attacks.

ADD: Schroeder said not a good idea that Bybee memo addresses necessity. That’s what his client asked him to do. It is the professional obligation to render opinion on what his client asks.

Conyers: Yoo. Appreciate appearance. During public debate it was reported you were asked that a President could order a suspect’s child be tortured in grusome fashion.

Yoo: I continued to explain a number of things. It stops mid-sentence.

Conyers: Okay. Thank you. Is there anything that the president cannot order to be done to a suspect if he believed it necessary for national defense?

Yoo: It goes back to that earlier question. Can I make clear, I’m not talking about…

Conyers; Just answer the question counsel.

Yoo: My thinking right now is that, first, the question you’re posing

Conyers: What is the answer? You’re wasting my time. We’ve all practiced law. Could the president order a suspect buried alive.

Yoo: I don’t think that I’ve ever given the advice

Conyers: I didnt’ ask you that. Do you think

Yoo: My view right now is that no American president would feel it necessary to order that.

Conyers: ADD. Did Cheney sit around approving interrogation techniques.

ADD: I wasn’t at a meeting of the description you’ve given.

Conyers: Does unitary theory allow President to do things above

ADD: We all take oath to protect and defend Constitution. I don’t know what unitary executive is. It’s all described as Addington’s. I’ve used it in quoting OLC opinions.

Conyers: You don’t know?

[some steam]

ADD: I know exactly what I mean by it. The use of word Unitary by me, all it refers to is the first sentence of Article II, One president. All executive power. Not the parts that Congress doesn’t want to exercise itself.

[Note: a friend in the audience says that Conyers rattled both Yoo and ADD]

King: Perhaps Chairman can bring down temperature.

ADD: Some things in Sands’ book that were accurate and some that weren’t.

Yoo: Sands said he had interviewed me for the book. He did not interview me.

King: At least WRT that statement, you find that to be a false statement.

Yoo: I can’t tell what’s in the book. He contacted me, I said, I wrote my own book. He told the committee he’d interviewed me.

King: We’re still in middle of war. Context of 2008 or 2001, smoking hole, reconstruction of Pentagon. Without regard to Constitution or statute, different context. If the President had said we were going to cuddle up to terrorists. If we had been attacked again, which we haven’t been, well, not on this soil.

ADD: Everyone wants to protect Americans. The Chairman lost several thousand in his district. We looked, I looked, through three filters, back when they were still smoking. First, was support and defend constitution. Everyone takes same oath. President has a different oath. Second filter is how within the law, within the law, I help maximize the President’s options in dealing with it. Third filter, when you go to war you ask a lot of people to do some tough things. Chairman served in Korean war period. You want to make sure whatever orders they’re given they’re protected. One thing I would add, things were different back then. Things are not as different today as people seem to think. There can be legitimate judgments and disputes. No American should think the war’s over. That’s wrong.

Davis: Yoo, have not read your book. Opening statement you make observation that it was your analysis that the anti-torture statute, the interpretation would depend not just on method, but on subjects metal and physical condition. Test for torture in part subjective? In response, that interpretation did not come from legislative, not judicial opinions, there was no Congressional guidelines. One good source of Congressional guidance, members of Congress. Did you consult with Sensenbrenner?

Yoo: I want to correct one thing I said.

Davis: Was Sensenbrenner consulted? ADD

ADD: I did not, and I don’t know whether anyone did or did not.

Davis: Was SPecter consulted?

ADD: That’s irrelevant to legal interpretation.

Yoo: I don’t know.

Davis; Process of consulting with intelligence committee. Yoo, did you consult?

Yoo: All I know is what I’ve read in the papers.

Davis: To your knowledge they were not. Addington.

ADD: no reason their opinion would be relevant.

Davis: Thank you for answering that w/o too much struggle. We’ve heard "Context" over and over again. You had a Congress that was a rubber stamp for your agenda. You got PATRIOT, Force resolution, bipartisan support for both of them. 107, 108, 109, not a single time Bush Administration rebuffed on nat Security. Got expansion of FISA. Got MCA. We wouldn’t be here today had you come to congress if you had said, give us an interpretation of what this meant. Tell us Sensenbrenner, Specter. The problem, I’ll address to ADD, when you’ve got a Congress that’s a rubber stamp for what you want. You ought not to be disrespectful of this branch of government. You didn’t even trust people who were rubber stamps for you.

Ellison: Did you write August memo.

Yoo: I contributed to drafting about it.

Ellison: You checked in with Addington about what you were going to cover.

Yoo: I’m not allowed to talk about any individuals. I gave draft of opinion to WHCO.

Ellison: Yes or no. I’m asking you to confirm whether what Addington reported was right or not right. I hope this isn’t coming out of my time.

Yoo: I have to follow guidance from DOJ.

Ellison: What privilege are you asserting? Who else was present when you checked in with Addington? Is that a repeat of your last answer?

Yoo: It’s not my choice.

Nadler: Are you asserting a privilege? What privilege are you asserting?

Yoo: I assume, I can’t say what the Justice Department’s belief.

Nadler: The DOJ cannot order you wrt your testimony. It can instruct you to take a privilege. If you are asserting a privilege, we’re entitled to ask you what privilege you’re asserting.

Yoo: I beileve it’s attorney-client privilege.

Nadler: since you’re not under subpoena, we’ll take that under advisement.

Ellison: What do you mean by implement?

Yoo: It can mean a wide number of things.

Ellison: You contributed to memo. Memo was implemented at some point. Guidance was followed and put into action.

Yoo: You’re asking whether the memo was followed.

Ellison: I need you to stop wasting my time.

Yoo: You’re asking me about things that other people would have done, not me.

Ellison: Schroeder, do you understand about what implement means?

Schroeder: prompted by CIA, once advice was forthcoming, some of the techniques that fell on legal side of line were employed.

Ellison: were the legal techniques employed?

Yoo: We did not make policy.

Ellison: Did interrogators ever come back and ask for interpretations?

Yoo: Again, I can’t tell you

Ellison: Shroeder, was memo in effect during Abu Ghraib.

Nadler: Gentleman will suspend, again. Yoo, are you asserting a privilege.

Yoo: Mr Ellison’s questions may involve classified information.

Nadler: You’re asserting that in order to answer Ellison’s questions you might have to reveal classified information.

Yoo: As I understand question, I’d have to discuss classified information.

Davis: Parliamentary inquiry. After come back from break, if the chair would consider addressing Yoo and Addington, I’ve never seen two witnesses struggle so much with ordinary language. I’ve never seen it like this before.

Ellison: When the ones who were addressing the witnesses, did those individuals have a lawyer they could go to ask about memo that you contributed to?

Yoo: CIA has about 100 lawyers. I assume you believe CIA conducted interrogations.

Ellison: Were you ever asked questions about whether techniques were permissible.

Yoo: I can’t answer your question.

Nadler: You can’t answer without revealing classified information?

Ellison: Did your memo allow for use of siccing dogs on interrogated individuals.

Yoo: Same answer.

Nadler: Question was did your memo allow for that.

Yoo: Memo speaks for itself. Does not discuss what you just mentioned.

King: Help! I can’t keep flow when the chair asks questions of the member that was recognized. Chair trying to ask what privilege was invoked.

Wasserman Schultz: Addington. September 2002 visted Gitmo. A JAG attorney, Beaver, said the message was do whatever needs to be done. Did you visit Gitmo?

ADD: I went there a number oftimes.

Add: I don’t remember dates. I don’t know what period you’re describing. I’ve been there 5 times. Three or four

WS: Did you meet with JAG attorneys.

ADD: I don’t remember meeting her. Met her at DOD GC much later. Invited by DOD and thought it’d be a good idea. I don’t know about methods, I remember they would show us interrogation room, look through one way mirror.

WS: Did yo discuss interrogation methods?

ADD: I’m not sure this memo has methods.

WS: Did you discuss specific methods?

ADD: I don’t recall doing it.

WS You didn’t, or you don’t recall?

ADD: I don’t recall.

WS Did you discuss specific interrogation methods.

ADD: I don’t recall.

WS Any discussions about Augsut 1 memo that offered advise on interrogations.

ADD: Fairly certain I did not.

WS Do you deny that you said, do whatever needs to be done?

ADD: Yes I do deny that, that quote was wrong.

WS: What kind of interrogation did you observe?

ADD: Orange jumpsuit.

WS: No phsyical contact with interrogators.

ADD: No.  

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278 replies
  1. SaltinWound says:

    I don’t know why Addington’s appearing unless it’s a warning to Bush. Look for him to say something about Cheney not being the one in charge.

    • MarieRoget says:

      Why not appear? Addington’s ego (maybe his id,too) assured him he’ll have no problem running rings around HJC.

      Probably the same goes for Yoo. Please prove them wrong, HJC.

      Going to radio silence now to help the servers…

  2. jayt says:

    Addington looking properly imperious, miffed, and condescending. (and he hasn’t even spoken yet)

  3. selise says:

    conyers is saying he wants to know all about the stuff that phillippe sands beg them not to bother with. don’t waste time with legal theories. find out who, what, where and when.

    if the committee doesn’t do this, then they are bigger fuck ups than even i thought.

    • skdadl says:

      Yes … but then he went on to endorse the policies chosen as successful so far. One step short of the Nuremberg defence — or maybe not even one step short.

  4. jayt says:

    Shorter Yoo – “hey, all I did was write a memo. What was done with it afterward – not my fault – who could have known?”

    • cbl2 says:

      Nadler has asked Addington if, as purported in prev published documents and books – did he contribute to the Bybee Memo

      Addington responds with bs – what specific memo,etc.

      shorter Addington – I am your intellectual superior and one obtuse ass

  5. allie says:

    Addington is disgusting. He is not answering the question. He is reading/quoting Yoo’s book. Instead of answering the question.

      • jayt says:

        He looks cornered

        I disagree – I think he’s in his glory here, and is planning to take his full measure of delight in telling this Committee to fuck off.

        • Leen says:

          Wishful thinking.

          Here is what John Dean stated when he visited FDL in Oct of 2007. I asked him who would be in the number one position on his impeachment list.

          J. Dean October 14th, 2007 at 11:54 am
          50

          No. 5 – QUESTIONS: “Would Ari Fleisher, Douglas Feith, John Bolton, Paul Wolfowitz, and David Wurmser be candidates for impeachment?

          Who do you think most highly qualifies for impeachment?”

          ANSWER: Any presidential appointee is subject to impeachment. I would put David Addington at the top of my list, because a simple majority vote after impeachment can bar that person from holding federal office. The thought of Addington coming back in an even high post is chilling.

  6. allie says:

    up till now i had only heard stories about Addington. Now i can say for anyone unable to watch this, Yes he is as bad or worse than I thought. arrogant rude ass.

    • MarieRoget says:

      Please see my #16. Addington successfully takes control, Yoo successfully stonewalls, HJC Dems get progressively more flustered, more disorganized…craptacular hearing ensues. JMJ, I hope I’m wrong.

      Dang, have to leave for the office. Thanx so much, ew & commenters. Read you all later.

  7. wrensis says:

    Note to Emptywheel
    When I called Senator Clinton’s office today the person answering did not know there was a motion to end debate let alone that Senator Clinton failed to vote. I had to explain what that was. I asked that an explanation be sent to my email.

    Sub note Scotus just ruled against the ban on handguns in DC.

  8. skdadl says:

    Addington doesn’t “plan” to address the question of Yoo’s statement about torturing the child of a detainee to extract intelligence.

    EW is right. This is a very curious person.

  9. everstar says:

    The gentleman sitting behind and to the right of the chairman looks absolutely incredulous at Addington’s testimony, and I frankly can’t blame him. Good Lord.

  10. JThomason says:

    Addington’s tone was certainly defensive and abrupt with respect to the question concerning the torturing the children of suspects.

  11. cbl2 says:

    Nadler to Yoo – where did you get the “organ failure” language, we know it is in another statute, but where did you get it –

    Yoo – no DOJ background for this – so we looked within all US Code, blah blah blah

    going total concern troll – “this very serious subject”

    • perris says:

      my question would be;

      “so, if I were to have a savage rape your daughter or your wife before your eyes, nobody would suffer organ failure, do you think that is or is not torture to either you, your wife, your daughter or all three?”

      see what his answer is to that

  12. JTMinIA says:

    Looks to me like Addington might be better than EPA’s Johnson (which I didn’t think was possible). This could be a long morning.

  13. drational says:

    Addington came to this hearing today for the sole purpose of telling the HJC to “go F#ck Themselves.”

    • Hugh says:

      How hard would it be to categorically disavow the practice of torturing the children of suspects?

      Well, in general it wouldn’t be but barring specifics I couldn’t opine and asked to opine, I would decline because I am not here to comment on legal opinions.

    • perris says:

      , Yoo looks terrified

      I wonder how he would look if he were questioned using the tactics he claims are not torture

      I wonder if he would agree after said tactics and actually testify that he committed treason by writing his briefs

      I suggested a question a while ago, I would like to ask yoo;

      “suppose you were questioned using the techniques you have written are acceptable, do you think you would say you committed treason if that’s the answer we wanted to get from you?

      would that answer be actionable or admitted in a court of any kind?, would that answer give reason to believe you were a traitor?

      how long do you think it would take if we were to water board you for you to confess these crimes?”

    • Rayne says:

      He should look terrified. He has that backed-in-the-corner look.

      I hope it crosses his mind today numerous times that he should be so lucky only to face this committee and not interrogations like the ones experienced by detainees in order to get the truth.

  14. rwcole says:

    GW Clusterfuck Supreme Court strikes again—DC Handgun ban goes away in the face of a bizarre read of the second amendment. Allito and Roberts on board of course.

  15. skdadl says:

    Schroeder is obviously a very good and smart guy with a commitment to the integrity of the OLC. I hope that he gets lots of chances to speak. I see the attraction of homing in on Yoo and Addington, but it is such a relief to listen a Schroeder some of the time.

  16. pmorlan says:

    Addington looks smug. I only hope that someone on the Committee can get under his skin enough to cause him to make a mistake that will put him on the defensive.

    • Leen says:

      During Wasserman/Schultz’s hammering Addington about the when and why of his visits to Gitmo Addington said something about “implementing decisions”

  17. rxbusa says:

    okay. Nancy, yer busted. Now can we have the 4th amendment back?

    I was washing dishes so I don’t know who was talking, but he totally threw Pelosi under the bus.

  18. Leen says:

    Will they be asked if they were aware or part of bringing in privately contracted interrogators?

  19. jayt says:

    this Committee needs experienced litigators – firing questions quickly, taking no guff, moving quickly to the next question.

    And limiting questioning to five minute intervals makes nearly impossible, even for a seasoned litigator, to get anything meaningful accomplished.

      • perris says:

        somebody come up with the oposite of “retro-active imunity”

        I don’t care much for “futinity-active” but there should definately be a term because when the president pardons himself that’s what he will have

  20. Leen says:

    Conyers “what do you mean by unitary executive power”?

    Addington “all of the executive power is vested to the President of the U.S.”

  21. pmorlan says:

    I wish the Dems would all follow the same questions to try to nail them down. This seems too scattershot of an approach to interrogation.

  22. everstar says:

    I would pay real money to watch Senator Whitehouse go to town on these guys. I thought Conyers did a fairly good job, though.

  23. pmorlan says:

    What would be sweet is if there were an honorable Republican on the committee who would put Addington at ease thinking he’s being questioned by a friend and then POW right between the eyes. I know I’m dreaming, but hey!

    • siri says:

      i was just thinkin how great they’d look, together like that, at The Hague, WHERE THEY BELOOOOONG!!!!!

      heloooooo?

  24. Hugh says:

    Addington is using what I call a “white tree” argument. If you give me n attributes of a definition of what constitutes a white tree, I will say that is not a white tree because the definition of what a white tree is has at least n+1 attributes. Unitary executive, torture, meetings on whatever, Addington is arguing that his definition is not the same as his questioner’s and therefore he is free to use this as the basis for a denial.

    • pmorlan says:

      Exactly. He did that with Conyers – According to THAT description…yada, yada, yada. Conyers didn’t follow up he just went to another question.

    • perris says:

      same thing as 2+2 does not equal four

      because 2 could be differant then those two apples and the sum might be more then 4 apples and therefore, 2+2 does not equal four

  25. cbl2 says:

    and I loves ya all, but F ! Sheldon Whitehouse

    If you want to ‘get’ Addington, you let him hold forth on just how much smarter he is than anyone else

  26. Loo Hoo. says:

    I don’t understand King, either. Why are these republicans defending these criminals? What will happen to them if there are war crimes trials?

    • perris says:

      I wonder if he would say the same thing if bush suspends the constitution and disbands congress, I wonder if he wants Americans to have guns in that scenario

  27. rwcole says:

    When congress gets serious, as it did about Watergate- the congresscritters step aside and allow staff to handle the grill—er questioning. Since this appears to be a “show hearing” with no real consequences, the politicos are free to use the airtime themselves.

  28. Leen says:

    Addington’s ….looking at the situation through “three filters” was a good rap. (I know I will get slammed for saying this here)

  29. rwcole says:

    Am anxious to see an analysis of the surpreme court decision. Seems to me that they just legislated from the bench. Nothing in the constitution about a right to hunt or defend oneself with guns. They just fuckin made it up!

  30. drational says:

    Davis to Yoo and Addington:
    “Thank you all for answering thiose questions without too much struggle”

  31. Hugh says:

    Add: What I did was: 1) Defend the Constitution, 2) Maximize the Presdent’s power within the law, 3) kind of vague, protect subordinates/soldiers, etc. from future criminal proceedings.

    Looks like he struck out on all 3. Yes, he did maximize the President’s an especially the Vice President’s power but outside the law. Breaking the law and being contemptuous that you will be held to account is not the same as obeying the law.

  32. skdadl says:

    Addington: Congress’s intent in writing the anti-torture statute would not be relevant. !!! He actually said that.

    (That was during Davis’s bang-bang-bang questions to both Yoo and Addington about whether they consulted Sensenbrenner or Specter.)

  33. Leen says:

    Rep Arthur Davis “to your knowledge was congress consulted or not” on these torture techniques

    Addington ..congress “not relevant”

  34. selise says:

    memo from phillippe sands:

    Next Thursday David Addington is due to testify before the House judiciary committee, after having been served with a subpoena. Whether he actually turns up is another matter. If he does, he will be alongside John Yoo, the former Department of Justice lawyer from whose fertile mind sprung the legal theories that allow the president to torture with impunity.

    That should be a most fascinating hearing, as it will allow an airing on the key issue: the relationship between the infamous torture memo signed on Aug. 1, 2002, by Jay Bybee of DoJ, and Haynes’ memo to Rumsfeld, recommending a slate of new interrogation techniques that were plainly inconsistent with Geneva. Haynes has always given the impression, in public at least, that he relied on the legal advice of a relatively junior lawyer down at Guantanamo. On Tuesday, he reiterated that argument to the point of incredulity. Haynes has never publicly acknowledged the fact that he relied on the torture memo or knew of its existence or contents when he wrote his own memo. Yesterday, again, he just couldn’t remember. The reason for his reticence is not difficult to find: Acknowledging any connection between his actions and the DoJ torture memos destroys the administration’s claim that decision-making was bottom up, not top down.

    There is little point in wasting time in the House or the Senate on arcane debate on the merits and demerits of various legal theories. The Supreme Court has ruled that Common Article 3 applied at Guantanamo. With this, all doubt evaporates as to the commission of war crimes at that place. What needs thorough investigation now is how it all began: who did what and when, and how precisely the pressures from the top came to be imposed, whether directly (through visits to Guanatanamo and the transmission of Rumsfeld’s informal, short memos known as “snowflakes”) or indirectly (through the use of the Defense Intelligence Agency, whose role has never properly been explained). In this way a proper reckoning can take place, so that those who are truly responsible can be identified.

  35. jayt says:

    Ellison referring to Addington as “Addington”, as opposed to Mr. Addington. I appreciate the implied scorn and disrespect.

    • emptywheel says:

      Especially coming from a Muslim. I gotta say, for Muslim Americans everywhere, it’s probably pretty good to see a Muslim-American bitchslap this guy, given how much disrespect BushCO have sent the Muslim communty in this country.

      • readerOfTeaLeaves says:

        I actually thought that his tone was probably about what my local cops would use with a guy denying the cocaine they found on him ‘got there by accident’.

        Pretty much just did his job.
        We’re simply not used to watching Congress be focused and business-like, as Davis, Ellison, and Wasserman seem to be today.

        Maybe someone finally did a cost analysis of a Committee Hearing and realized they needed to ‘cut to the chase’ a bit more and tighten things up. Miracles happen.

          • readerOfTeaLeaves says:

            Thanks for the background info. It’s really nice to see a payoff, and it’s nice to feel that they’re finally putting more effort into planning and prep.
            Encouraging.

  36. LS says:

    Addington lied about Yoo coming in with the items. Clearly, Yoo would love to say so, but he’s frikkin’ terrified.

  37. everstar says:

    Man, listening to Ellison smack Yoo around makes me wish I still lived in Minnesota. Sigh.

    Why is Professor Yoo taking instructions from the Justice Department? I find this bewildering.

  38. drational says:

    Yoo,
    “Scholar” of constitutional law, is unsure what privilege he is asserting to not answer.

  39. readerOfTeaLeaves says:

    I hope more Congresscritters follow Ellison’s style in cutting off the diversions and excuses, and insist that he get the required amount of questioning time.

    No doubt those who favor Yoo supporters will view Ellison as antagonistic, but IMHO Ellison is doing his job. Which is to get info and not suffer the time-wasting.

    Good on Davis for enriching the ‘context’ of 2001: rubber stamp Congress was part of it.

  40. skdadl says:

    Nadler cornered Yoo on the precise definition of the privilege he is asserting. Sheesh — after more than a year and how many witnesses, someone finally did that. Yoo finally said “attorney-client,” which is interesting, and will be pursued. But that was a good moment.

  41. readerOfTeaLeaves says:

    I realize that some will find Ellison’s style ‘combative’, but it’s refreshing to see him insist on facts and answers. And on not having his/OUR time wasted.

  42. Hugh says:

    Yoo a tenured law professor at the Boalt Law School at Berkeley can’t define the word “implemented”. Way to go, Boalt.

  43. JTMinIA says:

    It’s smart to keep after Yoo and ignore Addington. Yoo is flustered. Nadler was great WRT this.

  44. GulfCoastPirate says:

    I JUST WANT TO SCREAM !!!!!!!!!!

    Why do the Democrats allow this to go on hearing after hearing? Why not just let one person ask all the questions for one side all at one time?

    EW,

    I know this is off topic for now and I don’t expect you to get to it today but maybe sometime in the near future. I saw your response to the FISA post at Pat Lang’s site. Down below your response someone talked about Israeli companies like Verint, JSI, etc. and their potential capability to spy in the US. Do you (or anyone else) know anything about this? Thanks.

    • klynn says:

      I posted the links to those stories. Did you have a chance to go to the links on the FOX series by Brit Hume (I know, surprising).

      I have not had any additional luck in getting confirmation on that information and most info on it on the internet has been wiped from many sites. That alone seems to be confirmation.

      It is a serious concern to address. Because, if it is fact…Well you can figure out what we’re doing and why the compromise bill was offered up by Hoyer…and why the Pres is so happy about it…

      • GulfCoastPirate says:

        No, I didn’t see it at the time but I’ll Google Fox and Brit Hume with the company names mentioned and see what comes up. Thanks for the tip.

          • GulfCoastPirate says:

            Many thanks. I Googled those terms and found a few thngs but not what you provided. WIth work and everything else (it is golf season after all) it’s hard for me to always keep up with you folks.

            • klynn says:

              Hey no problem.

              And a great golf season it has been.

              I have a difficult time keeping up with the posts too…Life happens…

              That’s why I want that print option. Then I can take a hard copy to the kid’s golf lessons and sit and read it instead of lugging the laptop.

              @ 128 of EW’s Timeline post I wrote this on the dual citizenship to Rayne:

              I think that list was compiled by applying the context of the “Law of Return” and the laws in the US on Dual Citizenship.

              Here is info on the Law of Return:

              http://en.wikipedia.org/wiki/Law_of_Return

              Here on US dual citizenship. It does mention that one can gain a security clearance while holding dual citizenship.

              http://en.wikipedia.org/wiki/Multiple_citizenship

              As for vetting…who can? Someone could easily keep their alliance to a specific country secret while infiltrating and/or controlling the other as an apparent “loyal” citizen.

          • GulfCoastPirate says:

            Reading through some of those links. Jeebus, no wonder we’re stuck in the Middle East. All the officials with dual citizenship – stunning.

  45. Hugh says:

    Every time Yoo weasels. They are nailing him and demanding that it overtly specify the privilege he is invoking.

    • JTMinIA says:

      Well, given the quality of Yoo’s legal mind, it’s not surprising that his lawyer ain’t great, either.

  46. bmaz says:

    While the committee may be unusually prepared, they are neither sufficiently prepared nor skilled enough for recalcitrant witness like these two. Can’ examine with big general questions; each main question must be a series of literally almost yes or no subquestions that combine to make the point. The cold record of this looks like it will have available so much wiggle room that it is technically useless. Maybe some things that news people will think are big or something, but from an evidentiary standpoint, what I have seen is thin and disjointed.

    • KrisAinCA says:

      My thoughts on this all along. It’s pointless. Grandstanding on the part of the Dems in the house to make it look like they are doing something, anything, about the travesties of the Bush administration. But nothing will come of it, sadly.

    • nomolos says:

      Yoo and addington have spent a goodly portion of their lives lying through their teeth and proving that black is white. The nebishes on the panel have not had to use their brains for more than wondering where their next campaign fund raiser is. The “battle” is not close and, as usual, the hearing is kabuki.

  47. jayt says:

    Ellison needs to specify he’s not asking what Yoo responded with when questioned by interrogators – he is merely being asked whether the CIA asked for his guidance – *not* what the answers were.

  48. skdadl says:

    Addington … visited Guantanamo a number of times … can’t really remember the dates … *skdadl’s eyes hurt from rolling that hard*

    • siri says:

      like he or his lawyers wouldn’t GET those dates and times and facts in line before his testimony to Congress!!!!

      i know WE HERE at ew are NOT that stupid. i’m concerned about THEM at the “big table”.
      chit!

  49. Hugh says:

    Yoo can not speak for himself because he says the DOJ won’t let him or it’s classified. When he is referred to his memo, he says it speaks for itself. Well, that’s informative.

  50. jayt says:

    Ann Wright is a show unto herself. I love that the shot includes her whenever Addington speaks.

    She looks like she wants to beat the hell outta him come the first break…

    • drational says:

      It was yoo who doesn’t know what implement means.
      Addington is smarter, as he will certainly tell you.

  51. JTMinIA says:

    Program announcement: The King will be taking Issa’s place as parliamentarian watch-dog. Whether Nadler will have to gavel the table to firewood is yet to be determined.

    • emptywheel says:

      I think Nadler responded well. Frankly, better than Waxman did. Though we might get Issa making parliamentary inquiries, too–he’s on this subcommittee too.

  52. Rayne says:

    “I don’t recall,” says Addington.

    It’s amazing he can recall so much detail about everything else, but not whether he discussed specific interrogation methods.

  53. pmorlan says:

    Looks like Addington rattled Wasserman Schultz more than the other way around. She’s far more defensive than he is. (too bad).

  54. readerOfTeaLeaves says:

    Glad to see Wasserman stand her ground, ”I’m pretty clear on why I’m asking the questions (that) I’m asking…”

    More, please.

  55. Leen says:

    Wasserman Schults is kicking some ass and Col Ann Wright approves.

    Will she ask about private contractors doing the interrogation?

  56. Hugh says:

    Addington can’t remember if he talked about specific torture techniques at Guantanamo. I know if I talked to someone about specific torture techniques it wouldn’t stay with me.

  57. pmorlan says:

    Wow by looking through this thread you sure can tell that eyewitnesses sure do see things differently. lol

  58. Rayne says:

    “I think we probably did…”

    Jeebus. You think? You couldn’t tell for certain whether you viewed an interrogation?

    What a liar.

    I take back the idea that he’s got Aspie’s. Even his body language says he’s aware of what he’s doing, partially covering his mouth as he modifies his answer.

    EW, does he appear as he did during the Libby trial?

    • emptywheel says:

      Not quite. Remember, Fitz was totally in control, and had already asked the qusetions, so he’d know how Addington answered. The trick to Addington is that he WILL be honest, but you’ve got to ask the questions you want to ask him.

      Addington was, IMO, THE most devastating witness against Libby and Cheney. I know he didn’t want to be, but Fitz worked him and used him to great advantage.

  59. drational says:

    Nothing will be learned from this Committee hearing.
    Yoo and Addington are hardcore obstructionists.
    Only the waterboard would get answers (who knows if they would be truthful, but at least they wouldn’t cry about being tortured.)

  60. skdadl says:

    Must go back and see how EW survived all that. Wow. That was hot. Tougher in some ways than trying to keep up with fast-talkin’ Fitz.

  61. Rayne says:

    Oh-oh. Somebody’s worried.

    We’re changing the subject with a sudden presser about North Korea in the Rose Garden with the meat puppet.

    We haven’t heard jack-doodley-squat about NK for months and NOW we need to hear about this?

    • readerOfTeaLeaves says:

      I’m with you at ?187 on ‘taking back the Asperger’s’.
      Had to do another task, came back, and there was GWBush on North Korea — suspect you called it smartly.

      Must. Get. Brightest. Shiny. Object. To. Distract. From. Addington. Distract. From. Yoo.
      Bright. Shiny.
      Must. Get. During. Committee. Hearing…

    • PJEvans says:

      At least it isn’t Col. Mustard in the library with the candlestick.
      Although that sounds a lot more entertaining.

      Dear ghu, these people lie and stonewall like they breathe: automatically and constantly.

      I congratulate the committee members for not picking up their chairs and using them on the witnesses.

  62. mui1 says:

    Ooh Chimpo up on CSPAN 3 for recess. Umm, he’s supposed to talk about lifting sanctions?!? Chimpy must have wingnuts salivating. Six party talks.

      • Rayne says:

        “I worked hard…”

        Dude, you’re working hard to get words out of your mouth now. It’s always hard work for you.

        He just said in effect that multi-lateral diplomacy is hard work.

        I have to mute this feeble lying sack of dung.

  63. mui1 says:

    I was two threads down during all this. Darnit. Chimpo said cooling terra/towa? Hard to tell.

  64. Hugh says:

    Committee members have been very good about not having Yoo and Addington run out the clock on their answers. I do not think much of substance will come out of today’s hearing. It is still important that the lameness of Yoo’s answers and Addington’s sophistry be part of the record. In 2009, these guys (I hope) will be back and then they won’t have the cover that they have now. But until then Pelosi’s policy toward the Bush Adminitration that it can break the law and lie about it with impunity ensures that these guys will lie.

    • selise says:

      Committee members have been very good about not having Yoo and Addington run out the clock on their answers.

      permits the appearance of conflict for those all important sound bites without getting to the importance facts of the matter than need to be known.

  65. jayt says:

    How does the DOJ have the right or standing to order Yoo, a private citizen, to refrain from testifying?

    More importantly, why would the goddamned Department of *Justice* want to keep stuff out of the record? Ashcroft’s gone, Gonzo’s gone – whose asss(es) are they seeking to protect?

    Seems to me that the DOJ is trying to keep Yoo from enlightening the general public just how fucked-up the DOJ was, and apparently still is.

        • JTMinIA says:

          Yes, Yoo switched to “classified,” but not under orders from any particular agency. My guess is that Yoo’s lawyer realized that a blanket “Justice told me to stonewall” wasn’t going to fly. I give credit to Nadler for at least making it appear as if Yoo’s resons would be examined.

      • jayt says:

        Yoo says that Justice orders his silence, not the DoJ.

        huh? Is there a department of Justice of which I’m unaware – as opposed to *The* Department of Justice?

        or are you interpreting Yoo as referring to a generic use of the word “justice”? There’s certainly no privilege there – no citizen can tell a Congressional Sub-Committee that he thinks, in the interests of “justice”, the question to be unfair or objectionable.

        • JTMinIA says:

          Sorry. Getting my DoDs mixed up with my DoJs.

          The key is that Yoo first used the excuse that someone in the DoJ told him to not answer (some) questions. Nadler got rid of that, so Yoo switched to saying he couldn’t reveal classified info.

          • jayt says:

            Yoo is bringin’ the throw it all up against the wall method to avoid answering.

            So far, he’s used the “DOJ told me not to”, classified information, and attorney-client privilege.

            The powers-that-be at Cal-Berkley, who have heretofore refused to fire Yoo, citing his right to freely express his opinions, might wanna view the tapes of this hearing, and then fire him on the grounds of sheer and obvious incompetence and stupidity.

  66. JTMinIA says:

    When I heard about the cooling tower yesterday on NPR I immediately made the link. How to Control the Headlines 101.

  67. bmaz says:

    Folks seem to think that any attorney that they see in the news and that they like is good to go on any kind of issue. Take Boies for instance. He is a freaking civil attorney specializing in securities and anitrust litigation, often at the appellate level. What you want for something like this is a criminal trial specialist that is used to examining the toughest nut professional government witnesses. Roy Black would be superb, in his day, few were better than F. Lee Bailey. Barry Scheck is very good. Spence would be good. There are some civil trial lawyers that would also be fine if they have done enough examination of government witnesses. There is a mindset you need to understand and be able to exploit.

    • pmorlan says:

      I don’t think just any atty I’ve seen in the news would be good. I DO think Boies would be good despite his focus on anti-trust.

      I also think Spence & Scheck would be good. Sorry not a big F. Lee Bailey fan. I was actually hoping when I posed the question about which lawyer would people like to see question these guys that some of our lawyers here would know of an attorney who is NOT in the news.

  68. Loo Hoo. says:

    Who in the *Justice Department* ordered Yoo to clam up? He says the Justice Department told him shit. Who? Mukasy?

    • JTMinIA says:

      I’m sorry, but the person in Justice who told me not to tell you anything also told me not to tell you who they are.

  69. Hugh says:

    On the KPFA feed they just had Philippe Sands on and he said that he made it very clear in his book that he debated Yoo in California I believe. So bringing up the idea of an interview and then having Yoo deny there was a interview is just a classic case of a strawman.

    • skdadl says:

      I was sure that Sands would be able to answer that charge. Yoo didn’t actually use the word “liar,” but what he said amounted to that.

    • selise says:

      found it. page 184 (sands’ book, torture team) – it begins (very rough typing job on my part):

      john yoo and i spent an hour in conversation before a full house at the world affairs council. he wanted to talk about iraq, i wanted to talk about detainees……

      goes on for about a page and a half.

      yep. sands was clear – not an interview.

  70. mui1 says:

    Yoo reminds meinds me a little of Kyl Sampson, Monica Goodling et al. Sorta like: Don’t make me cry, and pass the sippy cup, because I don’t recall anything *sob* and what about my attorney client-priveleges *sob*
    And Addington is superciliousness personified. To Wasserman -Schultz: Let me give you some advice little woman. WS: Don’t need your advice, seems torture got worse after you got to GITMO, that’s why I’m asking.

    • Leen says:

      Mr. Hadley just why did you put those 16 words back in the SOTU. And why did you give Micheal Ledeen permission to set up meetings in Rome with Manucher Ghorbanifar.

      Will Hadley ever be held accountable?

  71. Crosstimbers says:

    I agree with all of the statements regarding Addisons contemptuousness, but it seems to me that he and Yoo are both denying/obscuring participation, rather than the Administrations previous “we did it, so what” attitude about ceasure of unconstitutional authority.

    Franks found it strange that Clinton Administration could approve of the assassination of Osama Bin Laden as self-defense, but Democrats disapprove of less damaging torture. I wonder if he’s aware that our justice system allows for death penalty but not torture, at least as long as it’s not for punishment (according to Scalia, it’s probably ok for other purposes).

  72. Leen says:

    When Wasserman/Schultz was drilling Addington and he mentioned “implementing decisions” while he was on one of his 3,4 or 5 trips to Gitmo. Does anyone remember what this answer was in reference to?

    This was soon after the definition of “implement” went into Yoo’s spin room. Somehow this comment of Addington’s stands out.

    Will anyone on the panel ask about private contractors “allegedly” conducting some of the interrogations and who was in charge of making that decision and “implementing” that decision?

    Sure hope Col Ann Wright sits to the left of Addington again. Her face was like having a bullshit meter on site.

  73. mui1 says:

    It’d be helpful to have that August memo up while Yoo and addington testify. Matchmaker heaven: Matalin and Addington?

    • jayt says:

      Matchmaker heaven: Matalin and Addington?

      Only if there’s absolutely no chance of procreation…

  74. AZ Matt says:

    The email guidance reads:

    The Department of Justice does not object to Prof Yoo’s appearance before the House Judiciary Committee to testify on the general subjects identified in the letter to him of April 8, 2008 from Chairman Conyers, subject to the limitations set forth herein. Specifically, the Department authorizes Prof Y00 to respond to questions in the following manner: He may discuss the conclusions reached and the reasoning supporting those conclusions in particular unclassified or declassified legal opinions that have been publicly disclosed by the Department (such as the unclassified August 1, 2002 opinion addressing the anti-torture statute, the published December 30, 2004 opinion addressing the anti-torture statute, and the declassified March 14,2003 opinion to the Department of Defense addressing interrogation standards). As a special accommodation of Congress’s interests in this particular area, he may discuss in general terms which offices of the Executive Branch participated in the process that led to a particular opinion or policy decision, to the extent those opinions or policy decisions are now matters of public record. He is not authorized, however, to discuss specific deliberative communications, including the substance of comments on opinions or policy questions, or the confidential predecisional advice, recommendations, or other positions taken by individuals or entities of the Executive Branch.

      • perris says:

        This is what Yoo is hiding behind from the DOJ.

        and that is quite a large skirt to hide behind, that letter says;

        “he can appear and whatever he doesn’t want to talk about he doesn’t have to”

        in other words it’s a pretty broad statement the way I read it

        ianal

  75. Hugh says:

    Yoo playing more games, not specifying what privilege he is invoking or if he is invoking any privilege. Nadler brings up that Bradbury answered the question that Yoo refused to and that Bradbury is the one who gave Yoo his instructions for testifying.

  76. GulfCoastPirate says:

    If Nadler had a set of handcuffs hanging off his microphone I think this Yoo fellow might be a little more inclined to answer. Doesn’t Congress have the power to arrest these guys for refusing to answer?

  77. Hugh says:

    Yoo is also very careful to state again and again about his “current” view. I would like to know if it was ever his view that torture was OK.

  78. readerOfTeaLeaves says:

    Nadler: ’No, Mr Yoo, that is not a wall before you. Disabuse yourself of an optical illusion that suits your convenience.”

    Mr Yoo, ”…okay…” (gulp)

  79. Bluetoe2 says:

    and this fascist functionary is now a professor of law? With lawyers like this is it any wonder the country is in a world of hurt?

  80. siri says:

    i cannot believe this.
    My neighbor is getting a new porch, and today is “jackhammer” day.
    and my whole isp, cable and internet keeps going down.

    i.e. the live blogging of this hearing is something I’ll be coming back to to read, THANK GOD.
    i’ve been WAITING for THIS hearing for forever, it seems.
    Thanks to everyone, and especially to Marci for doing this!

  81. timbo says:

    Page 4-5, last and top para, Yoo’s opening written statement:

    Yoo argues that because Al Qaeda was not a signatory to Geneva Conventions that the U.S. does not have to abide by Geneva Conventions?! Prima facie evidence of intention to neglect obligations under Geneva…

    Page 6, second complete para: Yoo seeks to defend inclusion of arguments in support of his opinions conclusions and possible legal defenses should it become iffy that his opinion was, you know, actually not a sound legal opinion. Evidence of uncertainty in own legal opinion requiring fall back legal defense should someone be indicted for violations of federal statute? Why would DOJ issue such a defense position if they believed their reasoning was sound on “harsh interrogation” in 2002?

    Last para, page 6: Yoo reiterates false meme that the DOD “working group” carefully vetted interrogation techiques…in fact, they did not get any direct input into the actual decisions on what techniques to use in theatre…that “working group” appears to have simply been a beauracratic parking place for folks who opposed most of the harshest techniques used…and opposed it on a basis that did take the laws of the U.S. into account…instead of trying to find ways around them…like Yoo has done.

  82. timbo says:

    Here is a link at cspan to the hearing if you want to view it…the first 30 minutes is opening statements. (I watched but recommend that most people skip the beginning as it doesn’t provide much useful info if you already know the context of the hearing.)

    Title: House Judiciary Subcmte. Hearing on Guantanamo Bay Interrogation Rules
    Author: C-SPAN
    Copyright: (C) 2008 National Cable Satellite Corporation

    URL: rtsp://video1.c-span.org/project/ter/ter062608_gitmo.rm

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