Was this the face of the mastermind of the Bush administration's alleged torture policy?
David Addington, Vice President Dick Cheney’s chief of staff, stared across the table at the members of the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
Tough, brittle and utterly self-confident, Addington didn't hide his disdain and most of the Democrats in the room didn't hide theirs either.
Summoned to testify about his role in the Bush administration’s policy on interrogating suspects at the Guantanamo Naval base in Cuba, Addington testified for much of three hours Thursday.
He gave committee members little to grasp if they wanted to prove that he had ordered torture or provided legal rationalizations for it.
An impasse over whether torture was committed
By the end of the hearing the committee and Addington were at an impasse: the Democrats saying that the Bush administration did order torture of terrorist suspects; Addington and fellow witness, John Yoo, who served from 2001-03 in the Justice Department’s Office of Legal Counsel, either denying it had or not admitting it had taken place.
The committee may call Addington and Yoo back for a secret hearing to testify about classified matters.
What Addington did not do — to the surprise of some observers at the hearing — was invoke executive privilege and refuse to disclose internal administration deliberations.
What he did do was dismiss an ABC News report that said Cheney had been at meetings to approve specific interrogation techniques.
“I don’t know of any such meeting,” Addington told Rep. John Conyers, D- Mich., adding he could not say if such a meeting has occurred. “I certainly wasn’t at one.”
Addington also refuted a Washington Post story that said he’d argued during White House meetings that the president had power to order interrogation techniques that involved torture.
He did say that he had witnessed at least one interrogation at Guantanamo, but added that he did not recall discussing the legality of the techniques with interrogators there.
Faulty memory?
“It’s hard to fathom that you would not have a recollection of specific conversations about types of interrogation methods,” complained Rep. Debbie Wasserman Schultz, D- Fla.
At one point, Addington said that he could not discuss specific interrogation methods for the same reason President Bush could not.
He referred committee members to Bush’s 2006 speech on interrogation methods used at Guantanamo or elsewhere. To reveal specific methods “would help the terrorists learn how to resist questioning” and “keep information from us that we need.”
Addington also said that he had not taken part in the drafting of a now famous Aug. 1, 2002 memo from Justice Department’s Office of Legal Counsel (OLC) which gave legal defenses for harsh interrogation methods.
The memo was written, at least in part, by Yoo, who is now a law professor at the University of California, Berkeley.
Interrogators, Yoo wrote, could legally inflict pain on terrorist suspects so long as the pain was not equivalent to the pain associated with death, organ failure, or permanent loss of bodily functions.
The torture statute Congress passed in 1994 prohibits acts “specifically intended” to cause “severe physical or mental pain or suffering.”
Yoo pointed out to committee members that those terms were vague and that Congress had not chosen to offer any more specific legal language. Therefore, he said, the OLC had to do the best it could to figure out the precise legal limits.
Yoo made a less aggressive and self-assured witness than Addington, but he frequently said he could not answer specific questions about Justice Department deliberations because the department had asked him not to.
Yoo often consulted with his attorney sitting behind him, Miguel Estrada, a former Bush nominee to the federal appeals court whose nomination killed by a Democratic Senate filibuster in 2002 and 2003.
At one point Yoo asserted attorney-client privilege, at another, internal deliberative privilege, and at another, said he could not talk about classified matters.
Asked by Rep. Bobby Scott, D- Va., “If U.S. officials tortured people based on your memo, would they be protected if they followed your memo, would they be protected from prosecution…?”
Yoo replied, “The purpose of the memo was to define torture so that people would not commit torture.” He added later, “I’m not going around torturing people and the memo does not authorize anyone to torture anybody.”
“We were functioning as lawyers, we don’t make policy,” Yoo told the committee in his opening statement. “Policy choices in these matters were up the NSC, the White House, or the Department of Defense…. We were not in the business of choosing among different policy options.”
By the end of the day, the question was left unresolved of who exactly did choose specific interrogation techniques such as simulated drowning or waterboarding. Yoo said his memo clearly specified drowning as one of the prohibited acts — but he could not add much beyond that.
Will new administration prosecute?
Another unresolved question by day’s end: If the next president is Democrat Barack Obama, will he ensure that Yoo, Addington and other former Bush administration officials who allegedly authorized torture are prosecuted?
Obama campaign spokesman Tommy Vietor said Thursday that Obama had not yet commented on the issue of potential prosecution of Bush administration officials.
But asked whether any former Bush officials are likely to be prosecuted by the new administration, Senate Judiciary Committee member Sen. Dianne Feinstein, D- Calif. said, “I actually think there is a possibility of that. And I’m not saying who. The United States has made serious mistakes and that’s all I want to say right now.”
The risk of possible prosecution has been on the minds of Bush officials since they began to formulate policy after Sept. 11, 2001.
Former Justice Department official Jack Goldsmith, who succeeded Yoo at the Office of Legal Counsel, says in his book "The Terror Presidency," that Attorney General Alberto Gonzales did worry about "...a subsequent administration of a different party prosecuting officials for wartime decisions with which it disagreed."