Testimony before the House Committee on the Judiciary, “American Interrogation Policy in the War on Terrorism,” July 17, 2008
Thank you, Mr. Chairman and members of the committee, for inviting me to testify concerning American interrogation policy in the war against terrorism. I am a Fellow in Governance Studies and Research Director in Public Law at the Brookings Institution. I am the author of the book, Law and the Long War: The Future of Justice in the Age of Terror, from which this testimony is adapted. I have written extensively on the challenges to the legal system posed by the September 11 attacks. I also serve on the Hoover Institution Task Force on National Security and Law. The views I am expressing here are my own.
The histories of the interrogation programs of both the military and the intelligence community have been debated at great length. The scope of the administration’s errors and excesses are well known, as are its claims that the CIA’s high-value detainee program yielded critical intelligence unobtainable by traditional means. I do not today intend to focus on the past, but on the future, that is, on the contours of the interrogation laws we need prospectively in order to prosecute the war on terrorism in a manner at once effective and consistent with American values.
Specifically, I intend to make three points: first, that Congress in the McCain Amendment addressed the problem of military interrogations and did so successfully; second, that the policy that Congress adopted in that statute can be adapted relatively easily to address interrogations by the CIA, though not by simply applying the McCain Amendment itself to the agency; and third, that for a tiny subset of detainees, the executive is likely in the future to face overwhelming pressure to breach the rules and, consequently, that some provision to govern the circumstances of such breaches is necessary too.
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