Congressional Record: June 22, 2004 (Senate)
Page S7134-S7152
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005--Continued
[...]
Mr. KENNEDY.
I will take a moment of the Senate's time to express, quite frankly,
my appreciation to the Senator from Nevada in offering the amendment
that he had, which he did a few moments ago as a member of the
Judiciary Committee. We know there are four committees which are in one
way or another looking at the prisoner abuse scandal and tragedy. We
have the Intelligence Committee that is looking at it. They are very
much tied up with the 9/11 Commission that has made its report. We had
the Foreign Relations Committee that had not had hearings on it. We
have the Armed Services Committee under the leadership of Senator
Warner, which has done a first rate job trying to work through this
whole dilemma. He is recognized by the members of the committee, and by
others, as someone who has worked toward trying to find the facts on
this situation. And there is the Judiciary Committee. We have seen in
the published reports a number of memoranda were developed by the
Justice Department as to the responsibility that the Executive has
under these circumstances of recommending, roughly, under his ability
as Commander in Chief, that he may very well be immune from any kind of
rules, regulations, or orders that he might support in terms of the
treatment of prisoners.
That concept runs counter to the view of 500 constitutional lawyers
who issued a press release raising very serious constitutional issues
and questions.
What the Judiciary Committee has been attempting to do is to review
the various recommendations that have been developed by the Justice
Department and the other agencies. It has been an interagency effort.
This is not just the Justice Department advising the President on a
matter of an Executive order. As a matter of fact, it was very clear
during the hearing of the Judiciary Committee that the Attorney General
did not claim executive privilege. But there was the incident where the
Attorney General said that even though he is not claiming executive
privilege, and even though he is not quoting a statute that might make
him exempt from making these documents available, he still was refusing
to make them available.
We had a brief discussion during the course of the committee hearing
as to whether that was contempt of Congress. We are not trying to get
into that whole situation. We are just trying to find out what these
documents said in the interagency agreements that were being developed.
Now we are told this afternoon that approximately 3 of the documents
of the 23 that were actually requested are available to the committee.
Two of those are already on the Internet.
This is a matter of enormous importance and consequence. The American
people see on television and hear on the radio and read in the
newspapers about prison policy over there. We have recommendations made
by the Justice Department, and there is a refusal to cooperate with the
Congress. It is entirely appropriate that this institution have access
to that material. That was the purpose of the amendment that was
offered by the Senator from Nevada. It was entirely appropriate. I find
it very necessary. There are many important matters in this Defense
authorization bill. But it certainly seems this is a matter of very
important consequence.
I believe the amendment still has great importance and relevance. I
think the Senate ought to know what the Senator from Nevada was
involved in is not only an honorable position but also a necessary one.
But as he pointed out, we are now trying to move the process forward in
terms of the Defense authorization bill.
I ask if I can have the full amount of time now to address the
substance. Do I understand we have 15 minutes? Could I ask for 15
minutes? I ask consent for that.
The PRESIDING OFFICER. The Senator is entitled to 15 minutes.
Amendment No. 3377
Mr. KENNEDY. I thank the Chair. Mr. President, at an appropriate time
I will call up amendment No. 3377. I ask unanimous consent the Senator
from West Virginia, Mr. Byrd, be added as a cosponsor to this
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, on June 30, sovereignty in Iraq will be
transferred to the interim government. For the sake of the Iraqi people
and our nearly 140,000 troops in Iraq, we all hope that the interim
government will succeed, that its appointment begins a new stage in
Iraq in which the security situation will improve at long last for our
troops, and that we will no longer see a continuation of the
administration's flawed policy that has generated so much turmoil in
the past year and so many casualties for our forces.
Unfortunately, the violence continues. Twenty-two American soldiers
have been killed in the 22 days since the announcement of the interim
government. More than 450 American soldiers have been wounded in that
period.
Even with the transfer of sovereignty and the recent United Nations
resolution on the Iraqi transition, the key question is, when will the
violence stop? When will the international community join us in
securing and reconstructing Iraq? Or will the bulls-eye remain on the
back of every member of our armed forces in Iraq?
The amendment I am offering today with Senators Levin, Byrd, Leahy,
Dayton, and Feingold seeks answers to these questions.
Our amendment requires the President to tell the American people
whether or when the administration's policy will bring more
international troops, police, and resources to Iraq. That's what we owe
to our forces. That's what we owe to their families. And that's what we
owe to the American people.
The amendment requires the President to submit a report to Congress
on the administration's plan for the security and reconstruction of
Iraq no later than 30 days after the date of enactment of the bill.
The report must address whether and when the administration's
strategy of working with the United Nations and other nations will
bring more international troops, police, and resources to Iraq and
provide relief to the men and women of our armed forces. It must assess
the administration's strategy for strengthening the Iraqi police and
military, its reconstruction efforts, and its progress toward
democratic elections. And it must provide an estimate--an estimate--of
the number of American troops we anticipate will be in Iraq at the end
of next year.
Two subsequent reports will provide updated assessments--one 6 months
after the bill becomes law and the other just before the end of 2005.
This week, President Bush will travel to Ireland for a summit between
the United States and the member nations of the European Union. He will
also attend a NATO summit in Istanbul. We all hope he will succeed in
persuading the international community to join us in a more significant
way in Iraq.
[[Page S7141]]
Unfortunately, the likelihood of that happening--even with the
transfer of sovereignty and a new UN resolution--is far from clear. At
best, the administration now expects that our allies in Iraq will not
withdraw any of their current troops from the coalition.
On June 7, just a day before the UN approved the resolution
supporting the interim government in Iraq National Security Advisor
Rice said:
I don't expect that there will be a large infusion of more
foreign forces. In fact, I think that what you will see, is
that some of the countries that have had particularly
difficult situations, some of our coalition partners, will
find this resolution makes them capable of staying the
course.
On June 10, after the G-8 Summit, President Bush said that he didn't:
. . . expect more troops from NATO to be offered up. That's
an unrealistic expectation. nobody is suggesting that.
Those were his words.
On June 13, Secretary of State Powell said the same thing:
We're not expecting major additional contributions of
troops from our NATO allies beyond the 16 nations that are
already involved.
The message from the administration is loud and clear: We'll stay the
course, but we don't expect any more international troops. America will
continue to be the only major military presence on the ground in Iraq.
American soldiers have been bearing a grossly disproportionate share
of the burden for far too long.
No policy in Iraq can be considered effective if it fails
to bring in the international community in a way that reduces
the burden on our men and women in uniform, and takes the
American face off the military occupation in Iraq.
As General Abizaid told the Armed Services Committee on May 19--there
are not enough troops from other nations in Iraq. The ``effort needs to
be not just American, but it needs to be international.''
The administration had a brilliant plan to win the war, but it had no
plan to win the peace. That failure has been putting a severe strain on
our military and their loved ones left behind in America.
Mr. President, 830 American soldiers have paid the ultimate price in
Iraq.
More than 5,130 soldiers have been sounded.
America has nearly 90 percent of the troops on the ground, and more
than 95 percent of the killed and wounded have been Americans.
The war is now costing us $4.7 billion every month.
In fact, the burden on U.S. troops has been increasing, since first
Spain, then Honduras, Nicaragua, and El Salvador pulled their troops
out of Iraq.
More than a quarter of the current forces in Iraq are reservists, as
are nearly half the current forces in Kuwait. Eighteen percent of our
active duty Army is serving in Iraq, and 16 of our 33 combat brigades
are serving there.
The Army is now under a stop-loss order that prevents troops from
leaving active duty while deployed to Iraq, and for another 90 days
after returning to their home bases.
The average tour of duty for a reservist recalled to active duty is
now 320 days--ten months. According to the Department of Defense, the
average tour of duty for a reservist during the first Gulf war was 156
days. In the deployments in Bosnia, and Kosovo, it was 200 days.
An Army brigade commander recently spoke about the exasperation of
our soldiers: ``A soldier just said to me, `what happened to the
volunteer force? This is a draft.' ''
Others in the military leadership have spoken out on the strain on
the military.
On January 21, LTG James R. Helmly, head of the Army Reserves,
discussed the effect on reservists. He said, ``the 205,000 soldier
force must guard against a potential crisis in its ability to retain
troops.'' He said that serious problems are being masked temporarily
because reservists are barred from leaving the military.
The same day, LTG John Riggs also spoke of the strain. He said, ``I
have been in the Army 39 years, and I've never seen the Army as
stretched in that 39 years as I have today.''
On February 5, GEN Peter Schoomaker, the Army Chief of Staff said,
``There is no question that the Army is stressed.''
On June 2, GEN Franklin L. Hagenbeck, the Army's deputy chief of
staff in charge of human resources and personnel, said that the Army is
``stretched.''
These are the cold, hard facts. They cannot be glossed over. If we
continue to go it alone, the mission is impossible. The need is urgent
to bring in the international community in Iraq in a major way. It may
well be that only a new President in the White House will be able to
persuade other nations to trust us enough to participate in the
difficult and dangerous mission.
In fact, the need for international participation was abundantly
clear before we went to war. As former Secretary of State James Baker
wrote on August 25, 2002, ``The costs in all areas will be much
greater, as will the political risks, both domestic and international,
if we end up going it alone, or with only one or two other countries.''
Last July, by the unanimous vote of 97-0, the Senate
approved an amendment urging the President to consider
requesting formally and expeditiously that NATO organize a
force for deployment in post-war Iraq similar to the NATO
forces in Afghanistan, Bosnia and Kosovo.
We also asked the President to consider calling on the
United Nations to urge its member states to provide military
forces and civilian police to promote stability and security
in Iraq, and provide resources to help rebuild and administer
Iraq.
President Bush says that the administration is working with the
international community. But what are the results? Are more nations
sending troops, police, and resources? When will the American face be
taken off the occupying force? When will Iraq be more secure? When will
more American soldiers return home? How long, and how heavy will the
burden be? Will the President obtain additional foreign commitments for
troops and resources at the Summits with the European Union and NATO in
the coming days or will he return empty-handed once again?
The American people and our soldiers serving in Iraq deserve to know
the results of the administration's efforts to work with the
international community.
All we are asking in this amendment is a progress report from the
President on the administration's efforts to work with the
international community. All we are asking is how many troops we expect
to have in Iraq in coming months.
Given the high stakes, the President should provide the information.
Our troops deserve it, America deserves it, and the Iraqi people
deserve it.
I will mention past precedent for this proposal because we will hear
from those opposed to it that we do not really have as much time as we
should, 30 days after the bill is passed. We are going to be,
hopefully, concluding this bill. It will take the better part of the
month prior to the time we recess for the August break to be able to
conclude, I expect, the conference. The President may sign that then.
The PRESIDING OFFICER. The Senator has spoken for 15 minutes.
Mr. KENNEDY. Can I get 5 more minutes?
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. I understand the Senator from Vermont is eager to talk.
I will conclude and come back to this, if I can have 4 more minutes to
conclude.
I draw the attention of Members to the precedence in 1995; the
Defense authorization bill required assessing the implication of the
U.S. military readiness, the participation of ground forces in Bosnia.
It had to include 11 estimates of the total number of forces required
to carry out the operation, estimates of the duration of the operation,
estimates of the cost, and how many Reserve units would be necessary
for the operation. This was true in 1997; this was true in 1998; it was
true in 1999. There are all kinds of precedents for this.
We are entitled to this information. This amendment will make sure we
will be able to receive it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I will say that I agree with the second-
degree amendment the Senator from Massachusetts has temporarily
withdrawn. Obviously it will be reoffered. The reason I agree, Congress
not only has done a very poor job of oversight; with some
[[Page S7142]]
exceptions, the administration has taken advantage of that and made it
a practice to deny oversight cooperation to Congress.
The stonewalling in the prison abuse scandal has been building to a
crisis point. Today, finally, after huge pressure, the White House has
released a small subset of the documents that offer glimpses into the
genesis of this scandal. All should have been provided earlier to
Congress. We know a lot has been held back, and remains hidden from
public view.
While this is a self-serving selection on the part of the
administration, it is at least a beginning, a tiny beginning, a tiny
baby step. But if we want the Judiciary Committee and the Senate to
find the whole truth, we will need much more cooperation and extensive
hearings.
The documents released today raise more questions than they answer. I
will give some examples, speaking now of the documents released today.
The White House released only 3 of the 23 documents that members of
the Senate Judiciary Committee requested and tried to subpoena last
week. In having released only 3 of the 23 we asked for, I point out
that 2 of the 3 were already available on the Internet. Where are the
other 20 documents we asked for? They have given us one that was not
already on the Internet. Where are the other 20?
The White House released a Presidential memorandum dated February 7,
2002, directing that al-Qaida and Taliban detainees be treated
humanely. Did the President sign any directive regarding the treatment
or interrogation of detainees after February 7, 2002, more than 2 years
ago? More specifically, did the President sign any directive after the
United States invaded Iraq in March of 2003?
The latest document released by the White House is dated April 16th,
2003. Why is that, when many of the worst abuses that we know of
occurred months later, in the fall of 2003. Why has the White House
stopped with memoranda produced in April 2003?
I live on the side of a mountain in Vermont. I know that water flows
downhill, but so does Government policy. Somewhere in the upper reaches
of this administration a process was set in motion that seeped forward
until it produced a scandal.
All of us want to put the scandal behind us, but to do that we have
to know what happened. And we cannot get to the bottom of this until
there is a clear picture of what happened at the top. We need to keep
the pressure on until we get honesty and answers. So I will support
Senator Kennedy's second-degree amendment when it is offered.
Mr. KENNEDY. Mr. President, will the Senator yield?
Mr. LEAHY. Yes.
Mr. KENNEDY. Would the Senator agree with me it is time for the
administration to level with the American people on this issue?
Mr. LEAHY. Mr. President, I would agree with the Senator from
Massachusetts, it is time to level with the American people. We tried
to subpoena these records last week. We were rebuffed on a party-line
vote, with many on the other side saying: But they are going to be
forthcoming. We now get 3 out of 23 documents, 2 of which were already
on the Internet.
When are they going to be forthcoming? We want to understand what
happened. As I said, if you are going to get to the bottom of what
happened, you have to start at the top. President Bush has said he
wants to get to the bottom of this. I agree with him, but I think we
have to start at the top to find out what happened there. And simply
prosecuting some corporals and sergeants and privates does not get to
the bottom of what happened.
Mr. KENNEDY. Finally, if the Senator will yield, I remember our
ranking member being at that hearing. The Attorney General was asked
whether he was asserting executive privilege, and he said no. Then it
was pointed out by members that there are times when the Attorney
General does not have to respond because it is spelled out in statute
that he does not have to respond. But that was not the case. So it is a
circumstance that the Attorney General of the United States felt he
would not respond to these requests on the basis of his own actions.
Would the Senator not agree with me that there is no one who is above
the law in the system of jurisprudence in the United States of America?
The continued unwillingness to provide these documents is certainly
going to prolong the agony of the administration in terms of its
willingness to cooperate with the committee. And would he not agree
with me it is better to get that material here and get the instance
behind us?
I remember--if the Senator will permit me to continue--I had the good
opportunity to meet the new President of Iraq. I asked him about the
prison scandal. I asked: What can the United States do in order to deal
with this issue? He said: It is very clear. You have to complete the
investigation for which your country is noted. You have to complete the
review and hold those accountable who are responsible. When that
happens, Iraqis will take a new look at this country.
Would the Senator not agree with me that was good guidance and good
advice, and that it ought to be followed, and that it is going to be
impossible to follow as long as they refuse to cooperate with the
committee?
Mr. LEAHY. Mr. President, the Senator from Massachusetts is
absolutely right. I also had the good fortune to meet with the new
interim President of Iraq. I actually asked him a similar question, and
what the Senator from Massachusetts says is absolutely so. He said: Get
it all out. He spoke of making it as transparent as possible. He said:
The United States has always had a reputation of being honest, of being
a democratic nation, of admitting our mistakes, and, of course, of
being proud of those things we have accomplished that we can be so
proud of. If we want to maintain that credibility, get it all out.
The Senator from Massachusetts said that in our system, nobody is
above the law. I thank God that is so, that the Founders of this
country were wise enough to set in place a system where nobody--
nobody--was above the law. We have demonstrated this over and over
again throughout our history as a nation. Anybody who has tried to step
above it, the checks and balances stop that.
What the administration can do is so easy: Answer the questions. The
Attorney General refused to answer our questions. But he did not do it
on the basis of any of the very limited reasons that a question might
be refused--either because the information being sought is classified,
which requires us to go into closed session, or because the President
has asserted executive privilege, which the President did not in this
case.
They have sent up 3 of the 23 items we requested. Two of the 3 items
were already on the Internet. But at least we are one item forward.
Let's get the rest of the information and documents up here, and then
let the Senate do what it should do: Let the various committees
actually ask questions and seek answers.
Mr. President, I see my good friend from Pennsylvania on the floor
seeking recognition, so I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, in the absence of any other Senator
seeking recognition on the pending legislation, I ask unanimous consent
that I may speak up to 10 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Specter are printed in today's Record under
``Morning Business.'')
Mr. SPECTER. I thank the Chair and yield the floor.
Mr. WARNER. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, I ask unanimous consent to address the
Senate for 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, I join my colleague and ranking member on
the Judiciary Committee, the Senator from Vermont, as well as my
colleague, the Senator from Massachusetts, in expressing support for
the amendment we
[[Page S7143]]
will vote upon either tonight or tomorrow, and to express my
displeasure that the documents that we have received are so inadequate
in terms of what we have requested.
The first point I will make is, don't let anybody think that because
this is a thick pile, it really has the nub of the matter. It does not.
The bottom line is that I would say that an ounce of disclosure is
going to buy this White House a pound of problems. These documents
raise more questions than they answer. The White House is better off
coming clean and releasing all relevant and nonclassified documents.
In the Judiciary Committee, we have asked the administration for 23
specific documents as a starting point. Of the 13 the White House
released today, only 3 are among those we asked for; 3 out of 23 is not
a very good average. It is not even a good batting average, and we are
pretty lenient there when we are above a third.
It seems painfully clear that this administration devised a
strained--some would say tortured--new definition of torture. Then
someone in the administration authorized the use of new ``interrogation
techniques'' that would have run afoul of the old definition of torture
but under the new definition were permissible.
Anybody who thinks those line soldiers at Abu Ghraib were acting on
their own initiative must have his head in the sand.
It is absolutely unacceptable that the actions of a few in our
military and our Government have brought shame on the 99.9 percent of
our troops who serve us so honorably and well and are fighting for the
freedom of the Iraqi people.
We must not compound that error by letting a few soldiers at the
bottom of the line take the fall if authorities higher up gave them the
green light.
This matter must be pursued no matter where it leads, no matter how
high it goes. If anyone at the Cabinet level or in the White House
opened the door to the kind of abuse we saw in those pictures from Abu
Ghraib, it is time to own up to it.
The credibility of the administration is on the line and the release
of a handful of documents simply doesn't do the job.
I will repeat that it is not enough to release a few inches of
documents. The White House should publicly disclose all relevant and
nonclassified documents. Relevant classified documents should be
provided to the Judiciary Committee and Armed Services Committee so we
can get to the bottom of this.
Mr. President, I am aware of the difficulties in these situations. We
are in the post-9/11 world, a brave new world. Sometimes things do have
to change and be adjusted. We don't know where the balance should be
exactly. That is the difficulty. But one thing I know for sure is that
there should be debate as to what methods of interrogation should be
allowed and used because that deals with the fundamental balance of
security and liberty, and that is the balance the Founding Fathers
focused on probably more than any other. That is the balance; they
wanted open debate.
So the thing I am sure of is not where you draw the line. I think
anybody who says that is certainly making a mistake. Rather, the thing
I am certain of is, if there is open debate and discussion between the
executive and legislative branches, which is what the Founding Fathers
most certainly intended, we will almost inevitably end up in these most
serious and delicate matters with a very good solution.
The problem, of course, is this: The Justice Department and the
Attorney General have a penchant for secrecy. They have avoided at all
costs open debate and discussion. The results almost always inevitably
boomerang on them, and they end up having to backtrack anyway, but in a
way that doesn't do justice and do right for the people they represent
and for America and the world.
So the bottom line is this: At the end of the day, if we don't know
who authorized what, when it was authorized, and whether it explains
why the detainees at Abu Ghraib were treated the way they were, then
the job is simply not done.
I thank my colleagues from Vermont, Massachusetts, Wisconsin, and
Illinois for their leadership on this issue and encourage my colleagues
to support this amendment.
I yield back the remainder of my time, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Wisconsin.
[...]
Mr. REID. I want to congratulate the Senator from Arkansas. He has
added a new dimension to the Senate. He is someone who is thoughtful,
and above all he is so concerned about the partisan contentiousness in
the Senate, and he has spoken to Senator Daschle and me and others
about the need to do something about this. I want the Senator from
Arkansas to know how much we appreciate his being the good Senator that
he is and being concerned about what is going on here on the Senate
floor.
We have worked on this bill--I do not know, but I think this is about
the 12th day. Some of those days were Mondays and Fridays, so I really
do not know how many real days we have had to work on this bill, but it
has been a long, tedious process to work through more than 300
amendments. We can see light at the end of the tunnel.
When the majority learned the minority was going to offer an
amendment calling for the Attorney General to divulge certain
information, as a result action was brought to a standstill. I have
some difficulty understanding that, but I believe that on difficult
amendments the majority and minority should face it and just vote on
them rather than bring legislation to a standstill, but the decision
has been made to not do anything on this legislation.
At first glance, I thought I did not agree with what the majority was
doing, but they have done this in the past and that is what they want
to do, and we just have to live with it. It has been brought to my
attention, though, that a bus pulled up in front of the Senate, and now
the Republican Senators are at a reception at the White House. I do not
know how many of them but enough that there is nothing being done here.
We are trying very hard to finish this bill and we are not doing
anything because the Republican Senators are at the White House for a
reception? If, in fact, we had been told that, we could certainly have
had people offering amendments and have no votes during that period of
time. We do that on many occasions. But I think this legislation is not
turning out as well as I thought it should, which has been handled so
well by the two managers of this bill.
The distinguished chairman of the committee thought I should not have
offered a second-degree amendment because he thought he should have
that right. Perhaps he was right. So I withdrew my amendment and we are
in the position where we would be if I had not offered that amendment.
That is the status of the Senate today.
But as I have said and others have said, including Senator Leahy,
that is an amendment we will need to vote on before we finish this
legislation. At 6:20, the managers are going to offer all amendments
that have not even been agreed upon, voted upon, or somehow that are on
the list that haven't been offered. The way things are going we could
end up with quite a few amendments to vote on because each of those
amendments do carry with them the potential of having a second-degree
amendment offered to each one of them. If we wind up with 15 amendments
that haven't been offered, we could wind up with 30 votes. I hope that
is not the case.
We have also been told there is a need to vote on judges. I
understand the reason for that. We will have to take that into
consideration over here.
My only point is after the reception is over, which should be around
5 to 6, maybe we could get back to working on this most important
legislation. I think it has not accomplished what we need to accomplish
here by simply bringing the Senate to a standstill this afternoon.
Since the Senate picture was taken, we haven't done anything. We might
just as well have stayed here and had other poses, I guess.
I hope we can work our way through this little situation we have
here. We have some amendments. Senator Kennedy's amendment, I am sure,
will require a little more debate. Most of the amendments have been
debated. People have come over, those who are going to offer
amendments, and stated their positions.
I recognize the importance of this legislation. As we speak, in Iraq
and Afghanistan we have men and women who are actually on the firing
lines. I don't know how many in Iraq have been injured or killed today.
We know what happens every day. We know in Baghdad there are scores of
attacks by these terrorists. Iraqis are being killed every day. This
bill is an important piece of legislation. I think we all need to
recognize that.
Yesterday, when I was here at my desk, my BlackBerry went off. I
looked at it and it was CNN breaking news, to report four American
soldiers had been shot. They had been found dead, shot multiple times
in the head. There were 2 other soldiers killed and 11 who had been
wounded in that same action.
What we do here is extremely important. There is nothing that we do
during the year more important than this Defense authorization bill. I
hope we can finish it because there is no reason we should not be able
to. I hope the majority will not prevent us from completing action on
this bill because we have requested a vote on the Leahy amendment.
Let me read again what this amendment says. The purpose is:
To direct the Attorney General to submit to the Committee
on the Judiciary of the Senate all documents in the
possession of the Department of Justice relating to the
treatment and interrogation of individuals held in the
custody of the United States.
That is directly related to this Defense bill.
I read the purpose. The amendment says:
The Attorney General shall submit to the Committee on the
Judiciary of the Senate all documents and records produced
from January 20, 2001, to the present, and in the possession
of the Department of Justice, describing, referring or
relating to the treatment or interrogation of prisoners of
war, enemy combatants, and individuals held in the custody or
under the physical control of the United States Government or
an agent of the United States Government in connection with
investigations or interrogations by the military, the Central
Intelligence Agency, intelligence, antiterrorist or
counterterrorist offices in other agencies, or cooperating
governments, and the agents or contractors of such agencies
or governments.
This is directly related to what is going on in Iraq, what is going
on in Afghanistan, and other trouble spots in the world.
I hope after a very short debate we can bring this before the Senate,
vote on it, and complete the other issues on this bill, some of which
are contentious, some of which are not. Most of them are not. We could
dispose of them in a few minutes.
But it is not as if this has nothing to do with this legislation. We
on this side have been very careful. Even though we had a number of
Senators who wanted to offer amendments dealing with unemployment
compensation, overtime, minimum wage, and things of that nature, we
decided not to put them on this bill because of the importance of this
bill. But this amendment which Senator Leahy or someone will offer at a
subsequent time is directly related to this legislation.
I hope during this quiet time the staffs are able to clear a lot of
amendments. That will save us a significant amount of time. The staffs
of this committee are as good as any staffs we have in the Senate. I am
sure if it is possible to clear those, they will be cleared.
But I hope in clearing these amendments we will get back to where we
were prior to the Senate picture that was taken at 2:15.
The PRESIDING OFFICER. The Senator from Illinois, Mr. Durbin.
Mr. DURBIN. Mr. President, I rise to speak to the Reid amendment,
which I understand has been formally withdrawn at this moment but
certainly is the topic of consideration and discussion.
Mr. REID. And will come back.
Mr. DURBIN. It will return, according to the Senator from Nevada, for
the consideration of the Senate.
That amendment by Senator Reid of Nevada would require Attorney
General Ashcroft to provide the Judiciary Committee with all the
documents in the Justice Department's possession relating to the
treatment and interrogation of detainees.
This is an extremely serious issue for America. Literally, the world
is watching us and asking whether the United States will stand behind
its treaty obligations in this age of terrorism.
It is clear that our enemies do not respect the rules in their
relentless quest to kill Americans. The barbaric treatment of Nicholas
Berg and Paul Johnson have reminded us all of that fact.
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But this is what distinguishes the United States from the terrorists
we fight. There are some lines we in the United States will not cross.
Torture is one of them. We have said repeatedly, since the time of
President Abraham Lincoln, that torture is inconsistent with the
principles of liberty and the rule of law that underpins our democracy.
Two weeks ago, Attorney General Ashcroft appeared before the Senate
Judiciary Committee as our Nation's chief law enforcement officer. He
said on the record that the administration opposes torture and that
torture is not justified or, in his words, productive. But he refused
at that time to provide us with the Justice Department memos dealing
with coercive interrogation tactics.
I asked him repeatedly: Attorney General Ashcroft, under what legal
or constitutional basis would you deny this committee copies of these
memos?
I asked him if he was asserting executive privilege on behalf of the
President. He said he was not.
I asked him if he could identify any statute by which he would be
absolved from his duty to respond favorably and positively to a request
by the Senate Judiciary Committee for these memos, and he could not
cite any statute.
At one point he said he personally believed that it was not
appropriate to produce these memos. I responded by saying that, as
interesting as that may be, the Attorney General's personal beliefs are
not the law. It is the law which governs us.
Now, at the eleventh hour, today, in an effort to defeat the growing
pressure to release these memos, the White House has provided Congress
with a number of documents, including one of the Justice Department's
torture memos. But a quick review of the documents provided reveals
they have given us only a small part of what we have asked for. Just
last week the Senate Judiciary Committee considered a request for some
23 documents of the Department of Justice related to interrogation
techniques and torture. That request for subpoena was defeated in the
Senate Judiciary Committee on a party-line vote, 10 to 9, all
Republicans voting against disclosure of the documents, all Democrats
voting in favor. We take a look at the documents produced voluntarily
by the White House today and find only 3 of the 23 documents subject to
the subpoena have actually been produced.
But the Justice Department's torture memo, which has been produced
after it was leaked on the Internet for all to read, is a memo which we
now know raises very troubling questions and completely contradicts
statements made by Attorney General Ashcroft before the Judiciary
Committee. It makes it clear if Congress and the Senate are to meet
their obligation under the Constitution, we must ask harder questions
and we must dig deeper.
In the memo, the Justice Department makes unprecedented assertions
about executive power, assertions that I believe violate basic
constitutional principles. The Justice Department concludes the torture
statute, which makes torture a crime, does not apply to interrogations
conducted under the President's Commander in Chief authority.
At the hearing 2 weeks ago before the Senate Judiciary Committee,
Attorney General Ashcroft said unequivocally it was not his job to
define torture. He went on to say, it is not the job of the
administration to define torture. He said that is the job of Congress.
Sadly, as we take a look at this Department of Justice memo produced
long before the Attorney General's testimony, we find on page 13 the
following statement, and I ask listeners to reach their own conclusion
as to whether what I am about to read from Attorney General Ashcroft's
memo on interrogation is an attempt to define torture. I quote from the
Department of Justice memo dated August 1, 2002:
The victim must experience intense pain or suffering of the
kind that is equivalent to the pain that would be associated
with serious physical injury so severe that death, organ
failure, or permanent damage resulting in a loss of
significant body function would likely result.
How can anyone read those words and reach any other conclusion but
that the Department of Justice in August of 2002 issued this memorandum
defining torture. That, of course, is something the Attorney General
said was not their job. He is right; it was not their job. But it was
done, anyway.
They also claim torture must involve ``intense pain or suffering of
the kind that is equivalent to the pain associated with serious
physical injury so severe that death, organ failure, or permanent
damage resulting in a loss of significant body function will likely
result.''
Ask yourself the obvious question: Why did the Department of Justice
produce this memo? Who asked for it? Was it the intelligence agencies
of the U.S. Government? The White House? We honestly do not know the
answer to that.
If this opinion by the Attorney General's office was at the request
of some other agency of Government, we should know that. We should know
which agency of Government said to the Attorney General, we need an
advisory opinion, we need your best guess as to how far we can go in
interrogation techniques.
Although the Attorney General said to us repeatedly, the law speaks
for itself--when he said that, he was referring to our laws, our
Constitution, the treaties we have entered into--in fact, the Attorney
General and his Department of Justice decided the law was not enough.
They needed to add very graphic and specific definitions such as the
one I read.
Now, of course, there is an important and underlying issue here.
Under our Constitution, which we have all sworn to uphold--not only
Members of Congress but members of the President's Cabinet--the
President does not have the authority to choose which laws he will obey
or to make his own laws. There is no wartime exception to
our Constitution.
Article I, section 1 of the Constitution says all legislative powers
are vested in Congress. Article II, section 3 of the Constitution says
the President shall take care that the laws be faithfully executed.
Article VI provides that laws made by Congress and treaties ratified by
the Senate are the supreme law of the land.
Retired RADM John Hutson was a Navy judge advocate for 28 years. From
1997 to the year 2000 he was the judge advocate general, the top lawyer
in the Navy. He rejects the Justice Department interpretation of
torture law, saying:
If the president's inherent authority as commander in chief
trumps domestic and international law, where is the limit? If
every sovereign can ignore the law, then no one is bound by
it.
The Supreme Court considered a similar question related to the
Justice Department position. President Truman, faced with a steel
strike during the Korean war, issued an Executive order to seize and
operate the Nation's steel mills. In the historic Youngstown steel
case, the Court found the seizure of the steel mills was an
unconstitutional infringement on Congress's lawmaking power and that it
was not justified in wartime as an exercise of the President's
Commander in Chief authority.
Justice Hugo Black, writing for the majority, said:
The Constitution is neither silent nor equivocal about who
shall make laws which the President is to execute . . . The
Founders of this Nation entrusted the lawmaking power to the
Congress alone in both good and bad times.
It seems clear the Justice Department memo was the basis for a
Defense Department memo that makes very similar arguments about
torture. For example, the Department of Defense memo argues the statute
outlawing torture does not apply to the detention and interrogation of
enemy combatants by the President pursuant to the Commander in Chief
authority.
The difficult question we have to answer is this: What have these
memos produced by the Department of Justice wrought? We know, now,
because of the graphic illustration of the abuses at Abu Ghraib prison,
that soldiers in the uniform of the United States of America performed
some horrible and shameful acts for which no one has made any excuses.
Even the President has said that does not represent America. What they
did was clearly wrong.
The important and obvious question for all to ask as a follow-on is,
Was this an incident involving the conduct of a handful of officers or
did it represent a policy promulgated by this Government, supported by
memoranda from
[[Page S7147]]
the Department of Justice and those from the Department of Defense?
Therein lies the critical question.
Last week, President Bush was asked about the Justice Department
torture memo and he said he did not remember if he had ever seen it; he
said he issued an authorization that conformed with U.S. law and treaty
obligations, and he would not say whether he would authorize the use of
torture but that we should be ``comforted'' by the ``laws on the
books.''
The President is correct; the law is very clear. The United States is
not permitted to engage in torture or cruel, inhumane, or degrading
treatment. But I am not comforted because we don't know if the
administration followed the Justice Department interpretation which
would allow the President to set aside these laws. We have gone too
far.
We have to follow the paper trail to determine who requested the
memos and what was done in response to them. We need to find out
whether the legal arguments contained in these memos were used to
justify the use of torture at Guantanamo, at Abu Ghraib, or any other
facility controlled by the United States of America. We need to know
whether the President or anyone else in this administration authorized
the use of torture as defined by the Department of Justice memo.
The Senate has an obligation to the Constitution and the American
people to answer these questions. The only way to do that is to obtain
all of the relevant documents.
The great challenge of our age in combatting terrorism while
remaining true to the principles which our country is based upon is to
make certain we respect liberty and the rule of law. We must not
sacrifice freedom and the rule of law at the altar of security. We must
respect the freedoms protected by the Bill of Rights. Our laws must not
fall silent during time of war.
I urge my colleagues to support the Reid amendment. I yield the
floor.
[...]
