RELATED: Video from Torture Hearing
If last week’s Senate Armed Services Committee hearings on torture represented a watershed of disclosure, today’s long-awaited testimony from David Addington and John Yoo reached the opposite extreme. Coerced into testifying under oath after years of resistance and obstruction, both controversial torture advocates labored tirelessly to tell a House panel as little as possible.
The two men played pivotal legal roles from the dawn of the Bush administration’s war on terrorism. Addington, formerly Vice President Dick Cheney’s general counsel and now his chief of staff, was described by Jack Goldsmith, the former chief of the Justice Dept.’s powerful Office of Legal Counsel, as shaping internal deliberations on detentions, interrogations and warrantless surveillance and unfailingly pushing them beyond traditional limits.
Yoo, now a Berkeley law professor, was an ideological ally of Addington’s on the Office of Legal Counsel from 2001 to 2004. He was a principal author of two infamous legal memoranda: one, an August 2002 memo, legally blessing interrogations that stopped short only of inflicting pain equivalent to "organ failure, impairment of bodily function or even death;" and then a March 2003 memo allowing the Defense Dept. to do the same.
The House Judiciary subcommittee, chaired by Rep. Jerrold Nadler (D-N.Y.), was seeking answers about the extent of Yoo and Addington’s roles in designing the Bush administration’s torture policy and the reasoning behind their positions. However, neither witness shed much light. Yoo cited an inability to answer many questions, due to Justice Dept. instructions, while Addington took a more forthrightly defiant stance.
Asked about his widely reported involvement with the August 2002 memo, Addington insisted on drawing sharp distinctions. "Didn’t have nothing to do with it, but you asked if I had a hand in drafting it," he told Nadler, adding that his only role in the memo was expressing approval that a memo on torture and the law ought to be written. Addington implied — but did not say outright — that he was agnostic on what advice the memo ought to offer the president. At one point, he and House Judiciary Committee Chairman John Conyers (D-Mich.) had a heated exchange.
Addington further testified that he did not have much in the way of direct involvement with Pentagon-run interrogations. Last week, the Senate disclosed that Addington was among a handful of senior administration lawyers who visited the Guantanamo Bay detention facility in the summer of 2002, when the administration began expanding the list of permissible interrogation methods beyond those authorized by the Geneva Conventions-compliant Army Field Manual on Interrogations, then known as FM 34-52. Yet Addington said he did not recall meeting with then-chief Guantanamo attorney Col. Diane Beaver — who last week recalled meeting with Addington — and said he had more extensive involvement with the CIA’s interrogation program than with the Pentagon’s.
The substance of his involvement with either program remains unclear, despite the four-hour hearing. Addington described his deliberations with then-White House Counsel Alberto Gonzales, Pentagon General Counsel William "Jim" Haynes and CIA General Counsels Scott Muller and John Rizzo as "monitoring what’s going on [in the war on terrorism], discussing it and if you need[ed] advice, ask[ing] the OLC," referring to the Office of Legal Counsel at the Justice Dept.
Addington did not testify of his own free will. In April, he had rejected a request from Conyers to address the full House Judiciary Committee. The next month, Nadler’s Subcommittee on the Constitution, Civil Rights and Civil Liberties issued a subpoena for Addington’s testimony.
If Addington was defiant, Yoo appeared at times confused, afraid and overwhelmed.
Many questions that Yoo faced concerned the scope of what his two memoranda allowed interrogators to do. Both were predicated on the contention — not shared by a most constitutional lawyers — that the president possesses extraordinary "plenary" authority during wartime. Conyers asked Yoo if the president could order a prisoner buried alive, or order a detainee’s children tortured. "There are a number of things I don’t believe an American president would ever order," Yoo said. Nadler observed that Yoo dodged the question of whether, under his 2002 memo, a president could order such activities.
Similarly, Yoo would not answer questions from Rep. Keith Ellison (D-Minn.) about whether his 2002 or 2003 memoranda were implemented. Yoo repeatedly expressed confusion over what Ellison meant, prompting the representative to complain that Yoo was "wasting my time."
Several times Yoo said that he would not be able to answer questions, under orders from the Justice Dept. At one point, Yoo was asked if anyone ever asked him to weigh in on the legality of waterboarding. He replied he could not answer that "without revealing classified information" — a strong indication that the so-called "Yoo/Bybee II" memo from 2002, which has never been disclosed to the Senate but reportedly gives legal justification for specific interrogation techniques, contains a legal rationale for waterboarding.
At another point, Yoo refused to answer a question about whether the Central Intelligence Agency’s interrogation program was derived from the U.S. Special Forces’ Survival Evasion Resistance Escape (SERE) course, which instructs irregular forces how to resist torture. Yoo said that the Justice Dept.’s Steve Bradbury instructed him not to answer such questions. Nadler replied that at a hearing earlier this year, Bradbury himself had told the panel that the CIA’s "enhanced interrogation" program derived from the SERE course.
Yoo repeatedly declined to answer questions, under advice both from the Justice Dept.’s Bradbury and from his own counsel, former Bush judicial nominee Miguel Estrada.
Conyers expressed his perspective on Addington and Yoo’s legal perspective by playing a video clip from last week’s Senate hearing from Sen. Lindsay Graham (R-SC). It was "some of the most irresponsible, shortsighted guidance ever provided" to the military or the intelligence community, the Republican senator, himself a JAG officer in the Air Force Reserve, said last week.
Throughout the hearing, Nadler looked less-than-pleased by the witness’s answers. Yoo told the committee he would return for additional testimony if requested. Addington, however, said only that he would be happy to stay longer to answer additional member questions, but pointedly declined to say if he would return without being subpoenaed.
"It does not go too far to say the reputation of our nation as the leading exponent of human rights and human dignity have been besmirched by this administration," Nadler said. "I know I speak for many of colleagues when I say that the more we find out about what was done and how it was justified, the more appalled we have become."