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    Executive Session

    by Former Senator Carl Levin

    Posted on 2013-03-07

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    LEVIN. Madam President, I continue to have some concerns about John Brennan, the President's nominee to serve as the next Director of Central Intelligence.



    First, I am troubled by Mr. Brennan's unwillingness to state unambiguously that waterboarding is torture. At his hearing before the Intelligence Committee, I asked Mr. Brennan this question three times without getting a direct answer: SENATOR LEVIN: You've said publicly that you believe waterboarding is inconsistent with American values. It's something that should be prohibited, goes beyond the bounds of what a civilized society should employ.

    My question is this, in your opinion does waterboarding constitute torture? MR. BRENNAN: The attorney general has referred to waterboarding as torture. Many people have referred to it as torture. The attorney general, premiere law enforcement officer and lawyer of this country.

    And as you well know and as we've had the discussion, Senator, the term ``torture'' has a lot of legal and political implications.

    It is something that should have been banned long ago. It never should have taken place in my view. And, therefore, it is--if I were to go to CIA, it would never, in fact, be brought back.

    SENATOR LEVIN: Do you have--do you have a personal opinion as to whether waterboarding is torture? MR. BRENNAN: I have a personal opinion that waterboarding is reprehensible and it's something that should not be done. And, again, I am not a lawyer, Senator, and I can't address that question.

    SENATOR LEVIN: Well, you've read opinions as to whether or not waterboarding is torture. And I'm just--I mean, do you accept those opinions of the attorney general? That's my question.

    MR. BRENNAN: Senator, you know, I've read a lot of legal opinions. I've read an Office of Legal Counsel opinion in the previous administration that said in fact waterboarding could be used.

    So from the standpoint of--of that, you know, I cannot point to a single legal document on this issue.

    But as far as I'm concerned, waterboarding is something that never should have been employed and--and--and as far as I'm concerned, never will be, if I have anything to do with it.

    SENATOR LEVIN: Is waterboarding banned by the Geneva Conventions? MR. BRENNAN: I believe the attorney general also has said that it's contrary, in contravention of the Geneva Convention.

    Again, I am not a lawyer or a legal scholar to make a determination about what is in violation of an international convention.

    After the hearing, I wrote to Mr. Brennan, pointing out that the President and senior administration officials, including both lawyers and non-lawyers, had concluded that waterboarding is torture. I asked the question again, and again I got no direct answer. Mr. Brennan replied: You have asked for my position on whether waterboarding constitutes `torture.' I understand and appreciate your concern about the use of waterboarding by the prior Administration. As I have made clear, I considered it reprehensible then and now, and I have been an unwavering supporter of the President's decision to ban its use. I have also in the past stated that I believe waterboarding subjects a person to severe pain and suffering, which is a common way of defining `torture.' In addition, I have indicated in our prior conversations and in my appearance before the Senate Select Committee on Intelligence on February 7, the term `torture' is a legal term, and I defer to the Attorney General on matters of legal interpretation.

    Mr. President, I ask unanimous consent that my letter to Mr. Brennan, and Mr. Brennan's response, be printed in the Record immediately after my statement.

    Second, I am troubled that, during the time that Mr. Brennan served on the staff of the National Security Council--NSC, senior administration officials consistently declined to provide Congress with access to key legal memoranda relative to the use of targeted strikes against terrorist targets. Indeed, we were able to obtain access to these memoranda only after it became clear that Mr. Brennan might have trouble being confirmed if they were not made available.

    Third, I am troubled that, during the time that Mr. Brennan served on the NSC staff, senior officials in the intelligence community and the NSC staff apparently did not protest when U.N. Ambassador Susan Rice was rejected for the position of Secretary of State on the basis of her public comments on the Benghazi attacks, even though those comments were based on talking points produced by, reviewed by, and edited by those same officials.

    My concerns about Mr. Brennan's unresponsiveness in these three areas are not sufficient to overcome the fact that he is qualified to be Director of Central Intelligence. But it is my hope that he will learn from this confirmation process and be more responsive to congressional requests for information in the future.

    There being no objection, the material was ordered to be printed in the Record, as follows: U.S. Senate, Committee on Armed Services, Washington, DC, February 20, 2013.

    John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, The White House, Washington, DC.

    Dear Mr. Brennan: I am troubled that, during your confirmation hearing on February 7th, you chose not to express your personal opinion as to whether waterboarding constitutes torture. As the Senate Select Committee on Intelligence continues to consider your nomination to be Director of the Central Intelligence Agency (CIA), I would appreciate your answers to the following questions for the record.

    In a November 2007 interview with CBS News, you stated, ``I think it [waterboarding] is certainly subjecting an individual to severe pain and suffering, which is the classic definition of torture.'' Do you still hold that view today? During his January 2009 confirmation hearing, Attorney General Holder stated ``waterboarding is torture'' and pointed out ``If you look at the history of the use of that technique used by the Khmer Rouge, used in the inquisition, used by the Japanese and prosecuted by us as war crimes. We prosecuted our own soldiers for using it in Vietnam.'' During a press conference in April 2009, President Obama said ``waterboarding violates our ideals and our values. I do believe that it is torture. I don't think that's just my opinion; that's the opinion of many who've examined the topic.'' In another press conference in November 2011, President Obama said ``Waterboarding is torture. It's contrary to America's traditions. It's contrary to our ideals. That's not who we are.'' He continued, ``If we want to lead around the world, part of our leadership is setting a good example. And anybody who has actually read about and understands the practice of waterboarding would say that that is torture.'' Finally, during his February 2009 confirmation hearing to be Director of the CIA, Leon Panetta said ``I believe that waterboarding is torture and that it's wrong.'' Do you agree with President Obama, Attorney General Holder, and Secretary Panetta that waterboarding constitutes torture? I would appreciate your prompt response to these questions.

    Sincerely, Carl Levin, Chairman.

    ____ The White House, Washington, DC, February 25, 2013.

    Hon. Carl Levin, Chairman, Committee on Armed Services, U.S. Senate, Washington, DC.

    Dear Mr. Chairman: Thank you Mr. Chairman, for your letter of February 20, 2013.

    You have asked for my position on whether waterboarding constitutes ``torture.'' I understand and appreciate your concern about the use of waterboarding by the prior Administration. As I have made clear, I considered it reprehensible then and now, and I have been an unwavering supporter of the President's decision to ban its use. I have also in the past stated that I believe waterboarding subjects a person to severe pain and suffering, which is a common way of defining ``torture.'' In addition, I have indicated in our prior conversations and in my appearance before the Senate Select Committee on Intelligence on February 7, the term ``torture'' is a legal term, and I defer to the Attorney General on matters of legal interpretation.

    In closing, let me assure you that I fully appreciate that the humane treatment of detainees is both a national security and a humanitarian imperative. If I am confirmed to serve as Director of the Central Intelligence Agency, I will never approve the deployment of waterboarding under any circumstance, and will do everything in my power to prevent its use.

    Sincerely, John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism.

    The PRESIDING OFFICER. The Senator from Wyoming.

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