by James Oliphant
The House Judiciary Committee this morning took the next step toward a confrontation with the White House over the issue of harsh interrogation techniques.
It voted to subpoena David Addington, the vice president's chief of staff, to force him to testify about anti-terrorism legal policy he played a primary role in crafting.
Addington refused to appear this morning at a Judiciary hearing designed to probe into the legal advice given the White House in the wake of the Sept. 11 attacks.
If he chooses not to respond to the subpoena, it could set up a constitutional showdown over executive branch authority.
Addington, along with former Justice Department lawyer John Yoo and other high-level administration officials such as Pentagon aide Douglas Feith and CIA director George Tenet, have said that any work they did crafting legal policy is protected from disclosure by the doctrine of executive privilege, which prevents advice given the president from being forcibly revealed.
However, the Associated Press reported Tuesday that Yoo, Feith, former Atty. Gen. John Ashcroft and others have agreed to testify before the committee and that Tenet was in negotiations to do so.
That doesn't mean, however, that they cannot invoke executive privilege when they testify.
The probe, spearheaded by Judiciary chair John Conyers Jr. and Rep. Jerrold Nadler (D-N.Y.), seeks to determine which high-level officials were responsible for green-lighting interrogations of suspected terrorists that critics say amounted to illegal torture.
Last month, ABC News reported that a group of top-level officials, including Dick Cheney, Condoleezza Rice, Donald Rumsfeld and others were intimately involved in deciding which interrogation methods could be used. A recent story in Vanity Fair also reported the involvement of senior members of the administration.
Yoo, now a law professor at University of California-Berkeley, wrote a memo in March 2003 that outlined the legal justification for military interrogators to use harsh tactics against al Qaeda and Taliban detainees overseas -- so long as they did not specifically intend to torture their captives.
Instead of Addington and Yoo appearing to testify, the committee Tuesday morning heard from a variety of witnesses, some of whom called on Yoo and others to prosecuted for war crimes.
"Yoo and other Department of Justice lawyers were part of a common plan to violate U.S. and international laws outlawing torture," said Marjorie Cohn, president of the National Lawyers Guild. "it was reasonably forseeable that their advice would result in great physical or mental harm or death to many detainees."
Philippe Sands, a British law professor and the author of the Vanity Fair piece, said that the administration's statements that prisoner abuse at prisons such as Abu Ghraib was the result of the actions of rogue guards and others amounted to a cover-up. The administration, Sands said, "claims that the impetus for the new interrogation techniques came from the bottom up. That is not true: the abuse was a result of pressures and actions driven from the highest levels of the administration."
But Republicans on the Judiciary panel. such as Rep.Trent Franks (R-Ariz.) asked the witnesses to provide an alternative means for extracting information from suspected terrorists when impending danger to American citizen exists.
Cohn responded by saying she would craft a guiding federal statute that didn't sanction the use of coercive techniques, which she said ended up producing useless intelligence.
"I think that's naive," Franks said, "and I think al Qaeda would love for you to write that statute."
If Addington resists the subpoena, the House may end up voting to hold him in contempt of Congress. At which point, that contempt citation would be referred to the U.S attorney in Washington, D.C. to decide whether charges are appropriate.
After the hearing, Conyers noted that no witness was able to describe a "ticking time bomb" scenario which would make extreme interrogation necessary.
"Radio silence was the response when today's witnesses were asked to identify a single example of a true 'ticking bomb' scenario ever occurring, even though such scenarios are often invoked to justify torture," Conyers said. "These scholars, who have studied this issue extensively and have intimate knowledge of the legal authority the administration sought, could not identify a single example. I hope that the administration officials who have agreed to testify will shed some light on this and many other questions raised in today's hearing."