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July 25, 2008

BILL MOYERS: Welcome to the JOURNAL.

As I watched those Congressional hearings on torture last week, I thought of John McCain and the five and a half years he spent as a prisoner of war in North Vietnam. He was tortured severely, tied and beaten so badly he tried to kill himself. After four days of this brutality, he gave in and agreed to make a false confession, telling lies to end the unbearable pain. Years later, he wrote, "I had learned what we all learned over there: Every man has his breaking point. I had reached mine."

BILL MOYERS: Before Vietnam, there was the war in Korea, where the communist Chinese used similar techniques on American prisoners of war, forcing them to confess to things they didn't do, including germ warfare. In 1957, an American sociologist studied the Chinese methods and their effects. He made this chart. It reappeared in 2002 at Guantanamo Bay, where it was used in a course to teach our military interrogators, quote, "coercive management techniques." In other words, we had adopted the inhumane tactics of our enemies, tactics we once were quick to call torture.

REP. JERROLD NADLER: The hearing of the Subcommittee on the Constitution, Civil Rights and Civil Liberties is called to order.

BILL MOYERS: On Capitol Hill over the past weeks, members of Congress and witnesses have been fighting over the treatment of detainees suspected of terrorism. Here are some excerpts.

REP. JERROLD NADLER: Today the committee continues its investigation into this Administration's interrogation policies, which have brought disgrace to our nation. Whatever euphemism one chooses - harsh interrogation, enhanced interrogation - or whatever justification might be offered, I believe, given all we know now, that it is clear that this Administration has authorized torture and that, under its auspices, torture has been inflicted on people in U.S. custody. The picture that has emerged from our investigations, despite the Administration's stonewalling, is deeply disturbing. It seems clear from the evidence that we've been able to assemble so far, that the Administration decided early on to engage in torture, to use any rationale to do what generations of soldiers understood we could not do, and to conceal that fact from the American people and from the world.

BILL MOYERS: Republican Trent Franks took issue.

REP. TRENT FRANKS: Mr. Chairman, just a personal note. I believe this is about the tenth hearing that we've had in this Subcommittee that was dedicated primarily to making sure that we were protecting the rights of terrorists. And I understand that. But we've had none that I know of that are dedicated to trying to protect the lives of American citizens. And I think ten to zero is a little out of balance.

BILL MOYERS: And Democrats fired back.

REP. JOHN CONYERS: We're not here protecting, to protect rights of terrorists. This is the Constitutional Committee of the Judiciary, and it's to protect the rights of Americans and to prevent our own government from violating the laws and treaties that pertain to torture. So here's the problem the Committee on the Constitution finds itself engaged in this morning. We can't investigate those who did the waterboarding, because they had legal approval. We can't investigate those who gave the approvals, because our intelligence agents relied on them for advice. It's a perfect circle that leads us round and round and round and nowhere closer to the truth.

BILL MOYERS: From Deborah Pearlstein, a constitutional scholar and human rights lawyer who has spent time monitoring conditions at Guantanamo, came this accounting of the facts.

DEBORAH PEARLSTEIN: As of 2006, there had been more than 330 cases in which U.S. military and civilian personnel have incredibly alleged to have abused or killed detainees - these figures based almost entirely on the U.S. government's own documentation. These cases involved more than 600 U.S. personnel and more than 460 detainees held at U.S. facilities throughout Afghanistan, Iraq, and Guantanamo Bay. They include some 100 plus detainees who died in U.S. custody, including 34 whose deaths the defense department reports as homicides. At least eight of these detainees were, by any definition of the term, tortured to death.

BILL MOYERS: Not only is torture inhumane, she said, it's counterproductive.

DEBORAH PEARLSTEIN: A remarkable recent study by the British Parliament found that U.S. detainee treatment practices led the U.K. to withdraw from previously planned covert operations with the CIA because the U.S. failed to offer adequate assurances against inhumane treatment. But I think it was the statement of the young army intelligence officer who put the intelligence impact most succinctly. "The more a prisoner hates America, the harder he will be to break. The more a population hates America, the less likely its citizens will be to lead us to a suspect."

BILL MOYERS: Committee members complained that officials have covered their collective backsides with a mix of legalese and double talk. Their frustration mounted during the testimony of Doug Feith, who had been the number three man at the Pentagon under Donald Rumsfeld and a key player in U.S. policy toward detainees.

DOUGLAS FEITH: The fact is, we had a clear policy from the top of this government that was against torture, against illegality, against inhumane treatment. And I don't deny that there were terrible, reprehensible cases of abuse and bad behavior, and possibly even torture, in various places against detainees. None of them was sanctioned by law or policy.

BILL MOYERS: One key question: Were detainees subject to the Geneva Conventions against mistreatment of POWs?

DOUGLAS FEITH: The decision that the President made on February 7, 2002 was that the Geneva Conventions don't apply to our conflict with al-Qaeda. The lawyers in the government made a distinction between the conflict that we had worldwide with al-Qaeda and the conflict that we had with the Taliban in Afghanistan. And they said, and what the President said, is that the Geneva Conventions do not apply to our conflict worldwide with al-Qaeda, because al-Qaeda is not a party to the Geneva Convention, and it does apply to our conflict with the Taliban.

REP. KEITH ELLISON: In your book, "War and Decision," you state that the Attorney General John Ashcroft said the main problem with applying the Geneva Conventions is that it would preclude effective interrogation. Do you know why the attorney general would believe that you could not effectively interrogate a detainee?

DOUGLAS FEITH: I would assume that he was reflecting the view of our military lawyers that the way the Geneva Conventions provisions on POWs, on POW interrogation reads, you can't, you can't even offer any kind of inducement, positive or negative, to a POW to answer a question. I mean, you can't say, you know, we'll give you cigarettes if you answer the question. We'll give, you know, anything of that type. And so the view that many people have is that you - unless a detainee is completely voluntary in offering information - you're not going to be able to get any information from him-


DOUGLAS FEITH: If he has POW status.

REP. KEITH ELLISON: Thank you, Mr. Feith.

BILL MOYERS: Representative Nadler pressed for clarification.

REP. JERROLD NADLER: Do you believe that interrogation techniques, to which you recommended Secretary Rumsfeld, give blanket approval - stress positions, isolations, nudity, the use of dogs, the use of twenty-hour interrogations, hooding, removal of clothing, the use of detainee individual phobias, such as fear of dogs to induce stress - wouldn't that be the normal definition of anyone's concept of torture? Hasn't it always been?

DOUGLAS FEITH: I don't believe so. But especially not-

REP. JERROLD NADLER: I'm sorry. Let me rephrase that. It shouldn't be torture. Are those humane treatments that we should apply?

DOUGLAS FEITH: Okay, this - the way one could - I imagine one could apply those things in an inhumane fashion or one could apply them in a humane fashion. The general-

REP. JERROLD NADLER: How could you force someone to be naked and-

DOUGLAS FEITH: It doesn't say naked.

REP. JERROLD NADLER: And undertake 20-hour interrogations-

DOUGLAS FEITH: It doesn't say naked.

REP. JERROLD NADLER: Removal of clothing. Removal of clothing doesn't mean naked?

DOUGLAS FEITH: Removal of clothing is different from naked.


DOUGLAS FEITH: It's about removing of comfort items and of clothing that would make - the idea was to induce stress, they talked about. But one could induce - in our police stations around America every day, American citizens are subjected to stress as part of interrogations. It could be done in an inhumane way; it could be done in a humane way. The general guidance-

REP. JERROLD NADLER: Wait, wait, are you saying, I find it hard to believe - hard to imagine, I should say - how you can have, how someone can have a hood placed over his head, albeit not restricting his breathing, undergo a 20-hour investigation while having his clothing having been removed and using his fear of dogs or other-

REP. STEVE KING: Mr. Chairman, point of order.

REP. JERROLD NADLER: And that could not be - how could that be considered humane?

BILL MOYERS: Deborah Pearlstein said the lack of clarity along the chain of command - whether deliberate or not - caused treatment that went beyond inhumane to fatal.

DEBORAH PEARLSTEIN: Welshoffer claimed that he was not at all trained for the interrogation of captured detainees. This is a young soldier put on trial for the murder of a detainee who was stuffed into a sleeping bag, wrapped with rope and suffocated to death. He testified that he understood that he was authorized to force this detainee into a sleeping bag based in part on a memorandum from General Welshoffer, the highest ranking military official in Iraq at the time. In that memo, General Sanchez authorized harsh interrogation techniques, including sleep and environmental manipulation, and use of aggressive dogs and stress positions, even as General Sanchez acknowledged that other countries would view these techniques as inconsistent with the Geneva Conventions. That memorandum was the only in-theater guidance that Welshoffer testified he received. The use of the sleeping bag technique was also authorized by his immediate company commander.

BILL MOYERS: But just who was responsible?

DOUGLAS FEITH: I mean, the way the U.S. government works is people have responsibility at various levels, and if people are not-

REP. MEL WATT: All right, I'm saying-

DOUGLAS FEITH: Fulfilling those responsibilities-

REP. MEL WATT: I'm just-

DOUGLAS FEITH: Then the higher level people have to make sure they get fulfilled.

REP. MEL WATT: I'm not arguing with you, Professor Feith. I'm just trying to get clarification of whether you were saying that there is no upward responsibility for decisions that get made. I presume the buck stops with the Commander in Chief. Is that correct?

DOUGLAS FEITH: No, the buck stops with the President. I mean, that's what Harry Truman said.

REP. MEL WATT: Okay, that wasn't a trick question. I'm just trying to get clarification on what it was you were saying. There's been a lot of dispute about who has responsibility here. Is there any dispute about Professor Pearlstein's testimony that there has in fact been torture?

DOUGLAS FEITH: No, as I've said, there were cases-

REP. MEL WATT: That only requires - is there a dispute about that? The answer to that is no?

DOUGLAS FEITH: There is no dispute that there was torture-

REP. MEL WATT: Okay, fine, that's all I'm asking, Professor Feith.

BILL MOYERS: At the time the policies were adopted John Ashcroft was Attorney General.

REP. BOBBY SCOTT: Attorney General Ashcroft, there's no question that torture is illegal.

JOHN ASHCROFT: That's correct.

REP. BOBBY SCOTT: Okay. Now, is there an exception to that, if it is done during a crisis?

JOHN ASHCROFT: There is no exception that I know of, that allows people to violate the law.

REP. BOBBY SCOTT: Okay. Well, suppose you got some good information as a direct result of torture. Would that be an exemption to the statute?

JOHN ASHCROFT: No. The outcome or product of torture, I mean, doesn't justify it.

REP. BOBBY SCOTT: Okay. Now, you've made a comment that we have not been attacked since 9/11. Are we to surmise that that is a direct result of the fact that people have been tortured, and that we got good information? Or not?

JOHN ASHCROFT: First of all, I don't know of any acts of torture that have been committed by individuals in developing information. So I would not certainly make an assumption. I would attribute the absence of an attack, at least in part, because there are specific attacks that have been disrupted, to the excellent work and the dedication and commitment of people whose lives are dedicated to defending the country. That includes interrogators that have used enhanced interrogation techniques - but they haven't used torture.

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