Congressional Record: July 22, 2004 (Senate)
Page S8653-S8656
ATTEMPTS TO OBTAIN ADMINISTRATION MEMORANDUMS
Mr. LEAHY. Mr. President, as we go out of session for the long recess
at the end of this week, I am disappointed to report that Congress
seems content to let the issue of foreign prisoner abuse linger without
effective congressional oversight.
The House Armed Services Committee made it clear weeks ago that it
believed the ongoing military investigations into the abuses were
sufficient. Until today, the Senate Armed Services Committee had not
held a hearing on the prisoner abuse issue in more than a month.
Chairman Warner called a hearing this morning to hear a report on one
of the investigations: an assessment of Army detention operation
doctrine and training, completed by the Army Inspector General.
Waiting for the administration to investigate itself is not the
answer. There are at least four completed and seven ongoing military
reviews into the treatment of prisoners held in detention facilities in
Iraq, Afghanistan, and Guantanamo Bay. While these reviews are
necessary, they fail to address critical issues: What role did White
House officials, the Justice Department and other agencies play in
developing the policies that allowed these abuses to occur? The
military investigations may uncover what went wrong at the bottom of
the chain of command, but it will take aggressive congressional
oversight to discover what went wrong at the top of the chain.
We need to get to the bottom of this scandal, but we also need to get
to the top of it. Only by doing that can we responsibly put it behind
us and repair the damage it threatens to our security, to our
credibility and to the safety of our troops.
Numerous attempts in Congress to uncover the truth have failed
because Republicans have circled the wagons and refused to support
oversight efforts. In the past week, Democratic members of the House
introduced resolutions requiring the Secretary of State and the
Attorney General to turn over all documents related to the treatment of
prisoners in Iraq, Afghanistan and Guantanamo Bay. The resolutions
failed on straight party-line votes, first on July 15 in the House
International Relations Committee, and yesterday in the House Judiciary
Committee.
Democratic members of the Senate Judiciary Committee tried to make
progress as long ago as June 17, 2004, but the Committee, on a party-
line vote, rejected a subpoena resolution for documents relating to the
interrogation and treatment of detainees. Since that date, no action
has been taken by the Senate Judiciary Committee, despite the clear
need to resolve these issues.
In the June 17 Committee meeting, and in subsequent days on the
Senate Floor, several Senators said that we
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should give the administration more time to respond to inquiries, even
though some of us had been asking for information for more than a year.
Questions were submitted to the Attorney General on June 15, following
his appearance before the Committee a week earlier. In the June 8
hearing, the Attorney General refused to provide information and
essentially demanded that the Committee issue a subpoena for the
requested materials.
On June 17, Democratic Judiciary Committee members were urged to
withhold a subpoena and to give the Attorney General until the end of
the month to respond. At that time, Chairman Hatch said he believed the
administration should comply; he said that it was ``the right thing to
do.'' He said that if the administration did not respond by the end of
June, then ``I may very well vote for a subpoena at that time.'' That
same day, Senator DeWine said, ``I think the administration has to
[clarify the policy] and has to release the information that will
clarify that.'' Senator Specter said, ``I believe that this committee
ought to know what the interrogation practices are and I am prepared to
pursue them.'' But all in all, the Republicans asked us to give the
Department more time, to wait for the Attorney General to answer our
questions.
And then, the Attorney General--through an aide--on July 1, again
thumbed his nose at his obligations to the Committee of jurisdiction
over the Department of Justice. He refused to provide a comprehensive
set of answers to questions submitted by the nine Democratic members of
this Committee, he refused to provide almost all of the documents that
were requested, and, again, he refused even to provide an index of the
documents being withheld. Because of the continued stonewalling by the
administration, Congress and its committees of jurisdiction over the
Department of Justice remain largely in the dark about these pertinent
matters.
Other Senate committees have faced similar obstacles, even when there
have been bipartisan requests for information. The Pentagon played
games with the Senate Armed Services Committee for seven weeks before
showing members the reports on treatment of prisoners in Iraq produced
by the International Committee of the Red Cross, ICRC. While such
reports are generally not released, the ICRC agreed early on that
members of Congress should have access to them on a confidential basis.
Members of the House and Senate Armed Services Committees were first
shown ICRC reports on Iraq last Wednesday, July 14, after having
requested them in early June.
Access to these reports was extremely limited, causing some Members
of the House Armed Services Committee to complain that the information
was stale and that Pentagon briefers were unable to shed light on the
abuses. It is puzzling that Members of Congress--and specifically
Members of the committees of jurisdiction--should be treated so
incidentally.
The ICRC reports did make an important contribution, however. They
apparently confirm that U.S. officials should have been alerted to the
prisoner abuse at Abu Ghraib prison months before the Pentagon
announced an investigation on January 16, 2004, and before General
Taguba was assigned to lead this inquiry on January 31, 2004. According
to House members, the ICRC reports alleged serious abuses at Abu Ghraib
last fall, a time period that coincides with the point at which U.S.
military intelligence reportedly took control of certain cellblocks of
Abu Ghraib. In addition to the ICRC reports, the New York Times has
reported that in November 2003, a small group of interrogators at Abu
Ghraib began sharing allegations of prisoner abuse with senior
officers. It is hard to comprehend the administration's apparent
failure to respond to the ICRC and to internal military reports of
abuse for weeks or months in late fall and early winter.
Some individuals who committed abusive acts are being punished, as
they must be. But this issue runs much deeper. What of those who gave
the orders, set the tone, or looked the other way? What of the White
House and Pentagon lawyers who tried to justify the use of torture in
their legal arguments? The White House has now disavowed the analysis
contained in the August 1, 2002, Office of Legal Counsel memorandum.
That memo, which was sent to the White House Counsel, argued that for
acts to rise to the level of torture, they must go on for months or
even years, or be so severe as to generate the type of pain that would
result from organ failure or even death. The White House and the
Department of Justice now call that memo ``irrelevant'' and
``unnecessary'' and say that DOJ will spend weeks rewriting its
analysis.
A troubling editorial in the July 15 Washington Post charges that
several detainees in secret CIA custody have probably been tortured,
and that the August 1, 2002, memo was written after those acts occurred
in order to justify the acts as legal.
Meanwhile, we continue to hear of more documents. The Department of
Justice admitted in the July 1 letter to the Judiciary Committee that
it had ``given specific advice concerning specific interrogation
practices,'' but would not disclose such advice to members of the
Committee, who are duly elected representatives of the people of the
United States, as well as members of the committee of oversight for the
Department of Justice. USA Today reported on June 28 that the Justice
Department issued a memo in August 2002 that ``specifically authorized
the CIA to use `waterboarding,' '' an interrogation technique that is
designed to make a prisoner believe he is suffocating. This memo is
reportedly classified and has not been released. According to USA
Today: ``Initially, the Office of Legal Counsel was assigned the task
of approving specific interrogation techniques, but high-ranking
Justice Department officials intercepted the CIA request, and the
matter was handled by top officials in the Deputy Attorney General's
office and Justice's Criminal Division.''
While former administration officials grant press interviews and
write opinion articles denying wrongdoing, and the White House and
Justice Department hold closed briefings for the media to disavow the
reasoning of this previously relied upon memoranda and to characterize
what happened, Senators of the United States are denied basic
information and access to the facts. I would hope that the significance
of such unilateralism and arrogance shown to the Congress and to its
oversight committees will register with each and every Member of this
body.
These memos, which may have governed official action for nearly two
years, are of particular concern because so much of what is happening
in detention centers remains hidden. In addition to Abu Ghraib in Iraq,
Bagram in Afghanistan, and Guantanamo Bay, several shadowy detention
centers are operated by the intelligence agencies or possibly the
military, some under total secrecy. A report on secret detentions was
released on June 17, 2004, by Human Rights First, a non-profit research
and advocacy organization formerly called the Lawyers Committee for
Human Rights. This report raises many important questions on the issue
of foreign prisons. I will ask unanimous consent that the introduction
be printed in the Record. The report, Ending Secret Detentions,
describes a number of officially undisclosed locations that sources--
typically unnamed government sources quoted in the press--have
described as detention centers for terrorism suspects. These sources
have discussed facilities in Iraq, Afghanistan, Pakistan, Jordan, Diego
Garcia, and on U.S. war ships. The ICRC has not been allowed to visit
these facilities. It issued a public statement in March expressing its
growing concern over ``the fate of an unknown number of people captured
. . . and held in undisclosed locations.'' To date, its requests for
access to the prisons have been denied.
In Iraq, where the Bush administration claims to be following the
Geneva Conventions, Human Rights First states that it is unclear if the
ICRC has access to all detention facilities in the country. Even if it
did, the Secretary of State admitted in June that he had approved
requests to hide certain detainees from the International Red Cross.
And what of the secret detention centers? Have these facilities been
managed by officials operating under the legal analysis contained in
DOJ memos that argue for a very narrow reading of
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the prohibition on torture? Have they been managed by officials acting
in accordance with the President's determination that al-Qaeda and
Taliban suspects are not protected by the Geneva Conventions? What is
the legal status of these individuals? Even in Iraq, where, as I just
mentioned, the administration claims to be applying the Geneva
Conventions, there is a great deal of ambiguity. The Human Rights First
report describes new categories of prisoners in Iraq, including
``security detainees,'' ``high value detainees,'' and a group of
prisoners whose status the Coalition Provisional Authority declined to
discuss. These are not categories of prisoners defined in the Geneva
Conventions, and without full access given the ICRC, no one can verify
the circumstances under which they are being held and interrogated.
The administration can provide a significant amount of information
about its practices in handling foreign detainees without jeopardizing
national security and while still protecting sensitive information.
This should include relevant facts about detention centers, and an
accounting of the number of detainees, their nationality, and the legal
authority under which each is held. I also restate my longstanding
request for the documents produced by the White House, the Justice
Department, the Pentagon and other agencies that form the legal basis
for this Administration's treatment and interrogation of foreign
prisoners.
With his words, President Bush says he wants the whole truth, but
with his actions he and his administration instead have cynically
blocked the doors that lead to the answers. The American people and the
American troops who are put at risk by these policies and abuses need
and deserve to understand how this happened, and they need to know it
will not happen again. For the sake of our national security interests
and our credibility, we need to show the world the right way that a
democratic society corrects its mistakes. Thwarting adequate oversight
and avoiding accountability will not make this problem go away, it will
compound it.
I ask unanimous consent the report to which I referred be printed in
the Record.
(There being no objection, the material was ordered to be printed in
the Record, as follows:)
[From Human Rights First, June 2004]
Ending Secret Detentions
(By Michael Posner and Deborah Pearlstein)
I. Introduction
More than 3,000 suspected terrorists have been arrested in
many countries. Many others have met a different fate. Put it
this way, they're no longer a problem to the United States
and our friends and allies. (President George W. Bush, State
of the Union Address, February 4, 2003)
In April, the U.S. Supreme Court heard oral arguments in
the cases of Jose Padilla and Yaser Hamdi--both U.S. citizens
who have been held in military detention facilities for more
than two years. One justice wondered aloud how the Court
could be sure that government interrogators were not abusing
these detainees. You just have to ``trust the executive to
make the kind of quintessential military judgments that are
involved in things like that,'' said Deputy Solicitor General
Paul Clement! Later that evening, CBS's 60 Minutes broadcast
the first shocking photographs of U.S. troops torturing Iraqi
prisoners at the Abu Ghraib detention center in Iraq.
The photos from Abu Ghraib have made a policy of ``trust
us'' obsolete. But they are only the most visible symptoms of
a much larger and more disturbing systemic illness. Since the
attacks of September 11, the United States has established a
network of detention facilities around the world used to
detain thousands of individuals captured in the ``war on
terrorism.'' Information about this system--particularly the
location of U.S. detention facilities, how many are held
within them, on what legal basis they are held, and who has
access to the prisoners--emerges in a piecemeal way, if at
all, and then largely as a result of the work of
investigative reporters and other non-governmental sources.
The official secrecy surrounding U.S. practices has made
conditions ripe for illegality and abuse.
Several of these facilities, including the U.S. military
bases at Guantanamo Bay, Cuba, and at Bagram Air Force Base
in Afghanistan, are well known. The existence of these
facilities--and the fact of unlawful conduct within them--
have been widely publicized and well documented. Nonetheless,
there is still no or only conflicting information about how
many individuals are held there, troubling information about
inadequate provision of notice to families about the fact of
detainees' capture and condition, and unclear or conflicting
statements about detainees' legal status and rights. While
the International Committee of the Red Cross (ICRC) has
visited these facilities, their visits have been undermined
in ways contrary to the letter and spirit of binding law.
In addition, there are detention facilities that multiple
sources have reported are maintained by the United States in
various officially undisclosed locations, including
facilities in Iraq, Afghanistan, Pakistan, Jordan, on the
British possession of Diego Garcia, and on U.S. war ships at
sea. U.S. Government officials have alluded to detention
facilities in undisclosed locations, declining to deny their
existence or refusing to comment on reports of their
existence.\3\ A Department of Defense official told Human
Rights First in June 2004 that while Abu Ghraib and
Guantanamo's Camp Echo were open to discussion, ``as a matter
of policy, we don't comment on other facilities.\4\
Similarly, Captain Bruce Frame, a U.S. army spokesman from
CENTCOM, the unified military command that covers Africa, the
Middle East, and Central Asia, told Human Rights First only
that there ``may or may not'' be detention centers in
countries other than Iraq and Afghanistan in CENTCOM's area
of responsibility.\5\
The Known Unknowns
What is unknown about this detention system still outweighs
what is known about it. But facilities within it share in
common key features that--while having unclear benefits in
the nation's struggle against terrorism--make inappropriate
detention and abuse not only likely, but virtually
inevitable.
First, each of these facilities is maintained in either
partial or total secrecy. For the past half-century, the
United States has considered itself bound by international
treaties and U.S. military regulations that prohibit such
blanket operating secrecy. Yet in this conflict, the ICRC--
which the United States has long respected as a positive
force in upholding international humanitarian law--has
repeatedly sought and been denied access to these
facilities.\6\ As the ICRC recently noted in a public
statement:
Beyond Bagram and Guantanamo Bay, the ICRC is increasingly
concerned about the fate of an unknown number of people
captured as part of the so-called global war on terror and
held in undisclosed locations. For the ICRC, obtaining
information on these detainees and access to them is an
important humanitarian priority and a logical continuation of
its current detention work in Bagram and Guantanamo Bay.\7\
Indeed, Human Rights First has been unable to identify any
official list of U.S. detention facilities abroad employed in
the course of the ``war on terrorism.'' There is likewise no
public accounting of how many are detained or for what reason
they are held. And there has been a disturbing absence of
serious congressional oversight of both known and undisclosed
detention facilities.\8\
Second, these facilities have thrived in an environment in
which the highest levels of U.S. civilian leadership have
sought legal opinions aimed at circumventing the application
of domestic and international rules governing arrest and
detention. Where it would have once seemed crystal clear to
military commanders and on-the-ground military custodians
alike that the Geneva Conventions governed the arrest and
detention of individuals caught up in the conflicts in Iraq
and Afghanistan, this Administration has challenged the
applicability of those rules. In several recently leaked
legal opinions from White House Counsel, and the Departments
of Defense and Justice, it has become clear that some in the
Administration have given a green light to the wholesale
violation of these rules.\9\
As a result, it remains unclear what legal status has been
assigned to those being detained at these U.S.-controlled
facilities. Are they prisoners of war, civilians who took a
direct part in hostilities (who the Administration calls
``unlawful combatants''), or are they suspected of criminal
violations under civilian law? The Administration has applied
no clear system for defining their status. It also is unclear
under many circumstances which U.S. agency is ultimately
responsible for their arrest or the conditions of their
confinement. And it now seems that U.S. military and
intelligence agencies are involved in their interrogation, as
well as civilian or foreign government contractors to whom
aspects of detention and interrogation has been outsourced.
It is likewise unclear to whom a family member or legal
representative can appeal to challenge the basis for their
continued detention.
Finally, the U.S. government has failed to provide prompt
notice to families of those captured that their family member
is in custody, much less information about their health or
whereabouts. In such cases, the families of individuals
removed to such unknown locations have had no opportunity to
challenge detentions that may continue for extended
periods.\10\ For example, Saifullah Paracha, according to
information his family received from the ICRC, has been
detained at Bagram Air Force Base for more than 11 months.
His wife and children remain in the dark, not only of the
reason for his detention, but also when they can expect Mr.
Paracha to be released or tried.\11\ Other individuals
captured more than a year ago remain in detention at other
undisclosed locations.\12\ The lack of information to family
members about these detainees violates U.S. legal obligations
and sets a negative precedent for treatment that may be
directed at U.S. soldiers in the future. It also engenders
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great anguish and suffering on the part of the families of
detainees--no less than did the practice of ``forcible
disappearance'' in past decades--while engendering enormous
hostility toward the United States.
in the interest of national security
The Administration has argued that, faced with the
unprecedented security threat posed by terrorist groups ``of
global reach,'' \13\ it has had to resort to preventive
detention and interrogation of those suspected to have
information about possible terrorist attacks. According to
the Defense and Justice Departments, a key purpose of these
indefinite detentions is to promote national security by
developing detainees as sources of intelligence. And while
much of what goes on at these detention facilities is steeped
in secrecy, intelligence agents insist that ``[w]e're getting
great info almost every day.'' \14\
Whatever the value of intelligence information obtained in
these facilities--and there is reason to doubt the
reliability of intelligence information gained only in the
course of prolonged incommunicado detention\15\--there is no
legal or practical justification for refusing to report
comprehensively on the number and location of these
detainees--or to fail to provide the identities of detainees
to the ICRC, detainees' families, their counsel, or to others
having a legitimate interest in the information (unless a
wish to the contrary has been manifested by the persons
concerned).
The United States is of course within its power to ask
questions and to cultivate local sources of information. And
the United States certainly has the power to detain--in
keeping with its authority under the Constitution and
applicable international law--those who are actively engaged
in hostilities against the United States, or those suspected
of committing or conspiring to commit acts against the law.
But it does not have the power to establish a secret system
of off-shore prisons beyond the reach of supervision,
accountability, or law.
Finally, even if some valuable information is being
obtained, there are standards on the treatment of prisoners
that cannot be set aside. The United States was founded on a
core set of beliefs that have served the nation very well
over two centuries. Among the most basic of these beliefs is
that torture and other cruel, inhuman or degrading treatment
is wrong; arbitrary detention is an instrument of tyranny;
and no use of government power should go unchecked. The
refusal to disclose the identity of detainees, prolonged
incommunicado detention, the use of secret detention centers,
and the exclusion of judicial or ICRC oversight combine to
remove fundamental safeguards against torture and ill-
treatment and arbitrary detention. Current practices which
violate these principles must be stopped immediately.
The abuses at Abu Ghraib underscore the reason why, since
the United States' founding, Americans have rejected the idea
of a government left to its own devices and acting on good
faith in favor of a government based on checks and balances
and anchored to the rule of law. As James Madison noted,
``[a] popular Government without popular information, or the
means of acquiring it, is but a Prologue to a Farce or
Tragedy.'' \16\ This nation's history has repeatedly taught
the value of public debate and discourse. To cite one
example, the United States learned this 30 years ago when a
series of congressional investigations uncovered widespread,
secret domestic spying by the CIA, NSA, FBI, and the Army--
revelations whose impact on the intelligence agencies was, in
former CIA Director Stansfield Turner's words,
``devastating.'' \17\
We should be clear--the United States has important and
legitimate interests in gathering intelligence information
and in keeping some of this information secret. But we are
not demanding the public release of any information that
would compromise these interests. What we are calling for is
an official accounting--to Congress and to the ICRC--of the
number, nationality, legal status, and place of detention of
all those the United States currently holds. We ask that all
of these places of detention be acknowledged and open to
inspection by the ICRC, and that the names of all detainees
be made available promptly to the ICRC and to others with a
legitimate interest in this information. Neither logic nor
law supports the continued withholding of the most basic
information about the United States' global system of secret
detention. Trust is plainly no longer enough.
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