Congressional Record: October 5, 2005 (Senate)
Page S11061-S11120
DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2006
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of H.R. 2863, which the clerk will
report.
[...]
The ACTING PRESIDENT pro tempore. The Senator from Arizona is
recognized.
Amendment No. 1977
Mr. McCAIN. Mr. President, from my conversations with the Senator
from Alaska, the chairman, I believe he agrees we will move forward;
therefore, I call up amendment No. 1977, which is filed at the desk.
The ACTING PRESIDENT pro tempore. Without objection, the pending
amendments are set aside for the consideration of this amendment, which
the clerk will now report.
The assistant legislative clerk read as follows:
The Senator from Arizona [Mr. McCain], for himself, Mr.
Graham, Mr. Hagel, Mr. Smith, and Ms. Collins, proposes an
amendment numbered 1977.
[[Page S11062]]
Mr. McCAIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:
(Purpose: Relating to persons under the detention, custody, or control
of the United States Government)
At the appropriate place, insert the following:
SEC. __. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS
UNDER THE DETENTION OF THE DEPARTMENT OF
DEFENSE.
(a) In General.--No person in the custody or under the
effective control of the Department of Defense or under
detention in a Department of Defense facility shall be
subject to any treatment or technique of interrogation not
authorized by and listed in the United States Army Field
Manual on Intelligence Interrogation.
(b) Applicability.--Subsection (a) shall not apply to with
respect to any person in the custody or under the effective
control of the Department of Defense pursuant to a criminal
law or immigration law of the United States.
(c) Construction.--Nothing in this section shall be
construed to affect the rights under the United States
Constitution of any person in the custody or under the
physical jurisdiction of the United States.
SEC. __. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING
TREATMENT OR PUNISHMENT OF PERSONS UNDER
CUSTODY OR CONTROL OF THE UNITED STATES
GOVERNMENT.
(a) In General.--No individual in the custody or under the
physical control of the United States Government, regardless
of nationality or physical location, shall be subject to
cruel, inhuman, or degrading treatment or punishment.
(b) Construction.--Nothing in this section shall be
construed to impose any geographical limitation on the
applicability of the prohibition against cruel, inhuman, or
degrading treatment or punishment under this section.
(c) Limitation on Supersedure.--The provisions of this
section shall not be superseded, except by a provision of law
enacted after the date of the enactment of this Act which
specifically repeals, modifies, or supersedes the provisions
of this section.
(d) Cruel, Inhuman, or Degrading Treatment or Punishment
Defined.--In this section, the term ``cruel, inhuman, or
degrading treatment or punishment'' means the cruel, unusual,
and inhumane treatment or punishment prohibited by the Fifth,
Eighth, and Fourteenth Amendments to the Constitution of the
United States, as defined in the United States Reservations,
Declarations and Understandings to the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman
or Degrading Treatment or Punishment done at New York,
December 10, 1984.
Mr. McCAIN. Mr. President, this amendment would do two things: one,
establish the Army Field Manual as the uniform standard for the
interrogation of Department of Defense detainees; and, two, prohibit
cruel, inhumane, and degrading treatment of prisoners in the detention
of the Government. It is pretty simple and straightforward.
Mr. President, I regret, of course, as all my colleagues do, that
this amendment has to be brought up on an appropriations bill. We are
only doing so because so far we have been unable to get sufficient
agreement to bring up the Defense authorization bill. I have made it
very clear, over a long period of time, my feeling about how important
it is to take up and complete the authorization bill, but that is a
subject for another day. I know good-faith efforts are being made on
both sides to try to get the authorization bill up. But that has not
happened so, therefore, we are addressing this issue.
By the way, I have had a preliminary ruling that this amendment is
germane because there is reference made to it in the House version of
the appropriations bill.
The Senate has an obligation to address the authorizing legislation,
as it has an obligation to deal with the issue that apparently led to
the bill being pulled from the floor, which is America's treatment of
its detainees.
Several weeks ago, I received a letter from CPT Ian Fishback, a
member of the 82nd Airborne Division at Fort Bragg, and a veteran of
combat in Afghanistan and Iraq, and a West Point graduate. Over 17
months, he struggled to get answers from his chain of command to a
basic question: What standards apply to the treatment of enemy
detainees? But he found no answers.
In his remarkable letter, he pleads with Congress, asking us to take
action to establish standards to clear up the confusion, not for the
good of the terrorists but for the good of our soldiers and our
country. Captain Fishback closes his letter by saying:
I strongly urge you to do justice to your men and women in
uniform. Give them clear standards of conduct that reflect
the ideals they risk their lives for.
This comes from a young captain in the U.S. Army who has served his
country both in Iraq and Afghanistan and who says it in a far more
eloquent fashion than I have ever been able to. By the way, I thank God
every day that we have men and women the caliber of Captain Fishback
serving in our military. I believe the Congress has a responsibility to
answer this call, a call that has come not just from this one brave
soldier but from so many of our men and women in uniform. We owe it to
them. We sent them to fight for us in Afghanistan and Iraq. We placed
extraordinary pressure on them to extract intelligence from detainees,
but then we threw out the rules that our soldiers had trained on and
replaced them with a confusing and constantly changing array of
standards. We demanded intelligence without ever clearly telling our
troops what was permitted and what was forbidden. And when things went
wrong, we blamed them, and we punished them. I believe we have to do
better than that.
I can understand why some administration lawyers might have wanted
ambiguity so that every hypothetical option is theoretically open, even
those the President has said he does not want to exercise. But war
doesn't occur in theory, and our troops are not served by ambiguity.
They are crying out for clarity. The Congress cannot shrink from this
duty. We cannot hide our heads, pulling bills from the floor and
avoiding votes. We owe to it our soldiers during this time of war to
take a stand. So while I would prefer to offer this amendment to the
DOD authorization bill, I am left with no choice but to offer it to
this appropriations measure. I would note that I am offering this
amendment in accordance with the options afforded under rule XVI of the
Standing Rules of the Senate.
The amendment I am offering combines the two amendments I previously
filed to the authorizing measure. To fight terrorism, we need
intelligence. That much is obvious. What should also be obvious is that
the intelligence we collect must be reliable and acquired humanely,
under clear standards understood by all our fighting men and women. To
do differently would not only offend our values as Americans but
undermine our war effort, because abuse of prisoners harms, not helps,
in the war on terror.
First, subjecting prisoners to abuse leads to bad intelligence,
because under torture, a detainee will tell his interrogator anything
to make the pain stop. Second, mistreatment of our prisoners endangers
U.S. troops who might be captured by the enemy--if not in this war,
then in the next. And third, prisoner abuses exact on us a terrible
toll in the war of ideas, because inevitably these abuses become
public. When they do, the cruel actions of a few darken the reputation
of our country in the eyes of millions. American values should win
against all others in any war of ideas, and we can't let prisoner abuse
tarnish our image. Yet reports of detainee abuse continue to emerge, in
large part, I believe, because of confusion in the field as to what is
permitted and what is not. This amendment will go a long way toward
clearing up this confusion.
The first part of the amendment would establish the Army Field Manual
as the uniform standard for the interrogation of Department of Defense
detainees. The Army Field Manual and its various editions have served
America well through wars against both regular and irregular foes. It
embodies the values Americans have embraced for generations, while
preserving the ability of our interrogators to extract critical
intelligence from ruthless foes. Never has this been more important
than today in the midst of the war on terror. The Army Field Manual
authorizes interrogation techniques that have proven effective in
extracting lifesaving information from the most hardened enemy
prisoners. It is consistent with our laws and, most importantly, our
values. Let's not forget that al-Qaida sought not only to destroy
American lives on September 11, but American values, our way of life,
and all we cherish.
We fight not just to preserve our lives and liberties, but also
American
[[Page S11063]]
values. We will never allow the terrorists to take those away. In this
war--that we must win, that we will win--we must never simply fight
evil with evil.
This amendment would establish the Army Field Manual as the standard
for interrogation of all detainees held in DOD custody. The manual has
been developed by the executive branch for its own uses, and a new
edition, written to take into account the needs of the war on terror
and with a new classified annex, is due to be issued soon. This
amendment would not set the field manual in stone. It could be changed
at any time.
The advantage of setting a standard for interrogation based on the
field manual is to cut down on the significant level of confusion that
still exists with respect to which interrogation techniques are
allowed. The Armed Services Committee has held hearings with a slew of
high-level Defense Department officials, from regional commanders to
judge advocate generals to the Department's deputy general counsel. A
chief topic of discussion in these hearings was what specific
interrogation techniques are permitted, in what environments, with
which DOD detainees, by whom and when. The answers have included a
whole lot of confusion. If the Pentagon's top minds can't sort these
matters out, after exhaustive debate and preparation, how in the world
do we expect our enlisted men and women to do so?
Confusion about the rules results in abuses in the field. We need a
clear, simple, and consistent standard, and we have it in the Army
Field Manual on interrogation. That is not just my opinion but that of
many more distinguished military minds than mine. I refer to a letter
expressing strong support for this amendment signed by 28 former high-
ranking military officers, including GEN Joseph Hoar, who commanded
CENTCOM; GEN John Shalikashvili, former Chairman of the Joint Chiefs of
Staff; RADM John Hutson and RADM Don Guter, who each served as the
Navy's top JAG; and LTG Claudia Kennedy, who served as Deputy Chief of
Staff for Army Intelligence. These and other distinguished officers
believe the abuses at Abu Ghraib, Guantanamo, and elsewhere took place
in part because our soldiers received ambiguous instructions which in
some cases authorized treatment that went beyond what the field manual
allows, and that had the manual been followed across the board, we
could have avoided the prisoner abuse scandal.
Why wouldn't any of us do whatever we could to have prevented that?
By passing this amendment, our servicemembers can follow the manual
consistently from now on. Our troops deserve no less.
I ask unanimous consent that the letter from 29 retired military
officers be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
September, 2005.
Dear Senator McCain: We strongly support your proposed
amendments to the Defense Department Authorization bill
concerning detainee policy, including requiring all
interrogations of detainees in DOD custody to conform to the
U.S. Army's Field Manual on Intelligence Interrogation (FM
34-52), and prohibiting the use of torture and cruel, inhuman
and degrading treatment by any U.S. government agency.
The abuse of prisoners hurts America's cause in the war on
terror, endangers U.S. service members who might be captured
by the enemy, and is anathema to the values Americans have
held dear for generations. For many years, those values have
been embodied in the Army Field Manual. The Manual applies
the wisdom and experience gained by military interrogators in
conflicts against both regular and irregular foes. It
authorizes techniques that have proven effective in
extracting life-saving information from the most hardened
enemy prisoners. It also recognizes that torture and cruel
treatment are ineffective methods, because they induce
prisoners to say what their interrogators want to hear,
even if it is not true, while bringing discredit upon the
United States.
It is now apparent that the abuse of prisoners in Abu
Ghraib, Guantanamo and elsewhere took place in part because
our men and women in uniform were given ambiguous
instructions, which in some cases authorized treatment that
went beyond what was allowed by the Army Field Manual.
Administration officials confused matters further by
declaring that U.S. personnel are not bound by longstanding
prohibitions of cruel treatment when interrogating non-U.S.
citizens on foreign soil. As a result, we suddenly had one
set of rules for interrogating prisoners of war, and another
for ``enemy combatants;'' one set for Guantanamo, and another
for Iraq; one set for our military, and another for the CIA.
Our service members were denied clear guidance, and left to
take the blame when things went wrong. They deserve better
than that.
The United States should have one standard for
interrogating enemy prisoners that is effective, lawful, and
humane. Fortunately, America already has the gold standard in
the Army Field Manual. Had the Manual been followed across
the board, we would have been spared the pain of the prisoner
abuse scandal. It should be followed consistently from now
on. And when agencies other than DOD detain and interrogate
prisoners, there should be no legal loopholes permitting
cruel or degrading treatment.
The amendments proposed by Senator McCain would achieve
these goals while preserving our nation's ability to fight
the war on terror. They reflect the experience and highest
traditions of the United States military. We urge the
Congress to support this effort.
Sincerely,
Joseph Hoar, USMC (Ret.), General John Shalikashvili, USA
(Ret.), General Donn A. Starry, USA (Ret.), Lieutenant
General Ron Adams, USA (Ret.), Lieutenant General
Robert G. Gard, Jr., USA (Ret.), Lieutenant General Jay
M. Garner, USA (Ret.), Vice Admiral Lee F. Gunn, USN
(Ret.), Lieutenant General Claudia J. Kennedy, USA
(Ret.), Lieutenant General Charles Otstott, USA (Ret.),
Vice Admiral Jack Shanahan, USN (Ret.), Major General
Eugene Fox, USA (Ret.), Major General John L. Fugh, USA
(Ret.), Rear Admiral Donald J. Guter, USN (Ret.), Major
General Fred E. Haynes, USMC (Ret.).
Rear Admiral John D. Hutson, USN (Ret.), Major General
Melvyn Montano, ANG (Ret.), Major General Robert H.
Scales, USA (Ret.), Major General Michael J. Scotti,
USA (Ret.), Brigadier General David M. Brahms, USMC
(Ret.), Brigadier General James Cullen, USA (Ret.),
Brigadier General Evelyn P. Foote, USA (Ret.),
Brigadier General David R. Irvine, USA (Ret.),
Brigadier General Richard O'Meara, USA (Ret.),
Brigadier General John K. Schmitt, USA (Ret.),
Brigadier General Stephen N. Xenakis, USA (Ret.),
Ambassador/Former Vietnam POW Douglas ``Pete''
Peterson, USAF (Ret.), Former Vietnam POW Commander
Frederick C. Baldock, USN (Ret.), Former Vietnam POW
Commander Phillip N. Butler, USN (Ret.).
Mr. McCAIN. The second part of this amendment should not be
objectionable to anyone since I am actually not proposing anything new.
The prohibition against cruel, inhumane, and degrading treatment has
been a long-standing principle in both law and policy in the United
States. Before I get into why the amendment is necessary, let me first
review the history.
The Universal Declaration of Human Rights, adopted in 1948, states
simply:
No one shall be subjected to torture or cruel, inhuman or
degrading treatment or punishment.
The International Covenant on Civil and Political Rights, to which
the United States is a signatory, states the same. The binding
Convention Against Torture, negotiated by the Reagan administration and
ratified by this body, prohibits cruel, inhuman, and degrading
treatment. On last year's DOD authorization bill, the Senate passed a
bipartisan amendment reaffirming that no detainee in U.S. custody can
be subject to torture or cruel treatment, as the U.S. has long defined
those terms. All of this seems to be common sense, in accordance with
longstanding American values. But since last year's DOD bill, a strange
legal determination was made that the prohibition in the Convention
Against Torture against cruel, inhuman, or degrading treatment does not
legally apply to foreigners held outside the United States. They can
apparently be treated inhumanely. This is the administration's
position, even though Judge Abe Soafer, who negotiated the Convention
Against Torture for President Reagan, said in a recent letter that the
Reagan administration never intended the prohibition against cruel,
inhuman, or degrading treatment to apply only on U.S. soil.
What all this means is that America is the only country in the world
that asserts a legal right to engage in cruel and inhuman treatment.
But the crazy thing is, it is not even necessary because the
administration has said it will not engage in cruel, inhuman, or
degrading treatment as a matter of policy. What this also means is that
confusion about the rules becomes rampant again. We have so many
differing legal standards and loopholes that our lawyers and generals
are confused. Just imagine our troops serving in prison in the field.
[[Page S11064]]
The amendment I am offering simply codifies what is current policy
and reaffirms what was assumed to be existing law for years. In light
of the administration's stated commitment, it should require no change
in our current interrogation and detention practices. What it would do
is restore clarity on a simple and fundamental question: Does America
treat people inhumanely? My answer is no. And from all I have seen,
America's answer has always been no.
I travel a lot around the world, usually at taxpayers' expense.
Everywhere I go, I encounter this issue of the treatment of prisoners
and the photos of Abu Ghraib and what is perceived in the world to be
continued mistreatment of prisoners. It is harming our image in the
world terribly. We have to clarify that that is not what the United
States is all about. That is what makes us different. That is what
makes us different from the enemy we are fighting. The most important
thing about it is not our image abroad but our respect for ourselves at
home.
Let me close by noting that I hold no brief for the prisoners. I do
hold a brief for the reputation of the United States of America. We are
Americans. We hold ourselves to humane standards of treatment of
people, no matter how evil or terrible they may be. To do otherwise
undermines our security, but it also undermines our greatness as a
nation. We are not simply any other country. We stand for something
more in the world, a moral mission, one of freedom and democracy and
human rights at home and abroad. We are better than these terrorists,
and we will win. The enemy we fight has no respect for human life or
human rights. They don't deserve our sympathy. But this isn't about who
they are; this is about who we are. These are the values that
distinguish us from our enemies.
I urge my colleagues to support the amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Alaska is
recognized.
Mr. STEVENS. Mr. President, this is a difficult subject to discuss,
and as the minority leader indicated, no one is more qualified to talk
about this than the Senator from Arizona.
It is with some trepidation that I try to explain to him the position
of the administration and with which I happen to agree. The problem is
not the goal of the Senator from Arizona; the problem is the way it
would be carried out under this amendment. This amendment would require
that the field manual be changed. Currently the field manual has a
general description of the techniques of interrogation, and it allows
flexibility to determine what will be used in terms of interrogation
techniques based upon the circumstances that exist. We know that
terrorists train their people to deal with the techniques of our
interrogation, so those techniques change under various circumstances.
One of the situations I would call to the attention of the Senator
from Arizona is as we have visited with our people in the field, now we
have a unique circumstance of having multinational and multiagency
teams that are in the field. The question comes down to who has custody
or effective control of a person. Particularly I remember one team we
saw which had five different nationalities including the intelligence
agencies and military agencies of those nations. If this becomes law,
it is my opinion that those teams will be handled so that the United
States does not have custody, does not have control, and the kind of
treatment we seek will not be given to people who are made prisoners by
multinational teams that are searching out terrorists throughout the
world.
This is a different war now. I believe we are seeing the beginning of
a crusade against freedom from the militant terrorist Islamic entities
throughout the world. We see the suicide bombers. We see the people who
are inflicting terrible damage from Indonesia, the Philippines, to all
throughout the Central Command, and we have teams out trying to find
these people.
Of course, one of their first jobs is to interrogate anyone they
capture to try to see if we can find out where the rest of them are and
how they are functioning. If this amendment passes, the United States
will not have effective control of those people. It will be impossible
to interrogate under the systems we have used in the past because we
cannot list in a field manual all of the interrogation techniques that
will be used. It takes thousands of pages anyway. But the techniques
vary upon the circumstances and the physical location of the people
involved.
I have some memory from World War II in China when I witnessed some
of our people--I was just a pilot, but I was conveying some of these
people from place to place who had been tortured, and I can tell you
they were brutally treated by the Chinese when we were taking these
people from place to place and they had prisoners. Some of them were
not Chinese. They were prisoners obviously of Japan. We had freed some
of them, and they were--I have memory that those who were freed were
still the responsibility of the United States.
But as a practical matter, what do you do with regard to a law that
says that all of the techniques must be listed in the field manual;
regardless of nationality or physical location, if an individual is in
the custody or physical control of the United States, they shall be
subject to only the means of interrogation listed in the field manual.
I appreciate very much what the Senator is trying to do. I think most
of us have gone down to Guantanamo to satisfy ourselves that what is
happening down there is in accordance with our concepts. Those people
are totally under the custody of the United States, and certainly from
my point of view what we saw when we were down there, we were convinced
they were receiving the kind of treatment and the interrogations were
not such that they would be affected by this amendment.
It is the people in the field, not people really handling prisoner
camps or handling interrogation of those persons who are seized by our
forces and brought to a camp or brought to a place, a jail such as we
all know has gone wrong in Iraq--but I am talking the people in the
field now, multinational teams, and their job is to find out what these
people who are captured know in order to prevent further acts of
terrorism. It is a very touchy thing to deal with, I know, to really
talk about it.
The administration has told us that they are complying with all the
constitutional, statutory, treaty obligations that apply to U.S.
interrogation practices. They are telling us that they know the
Convention Against Torture requires the United States to ensure that
torture is a crime whether committed anywhere by a U.S. national or to
prevent any of the entities that are under the control of the United
States from any acts of cruel, inhumane, or degrading treatment or
punishment. We totally agree with the efforts of the Senator from
Arizona in that regard, and the President has directed the Armed Forces
to treat any detainee humanely and comply with the appropriate and
consistent military procedures that are consistent with the Geneva
Conventions.
That is a given. But this amendment goes further. This amendment will
cover those entities with multiple nationalities, multiple agencies,
and because of the circumstances our people in the past have taken
control of these, and some of the activities of the other nationalities
involved would not be consistent with this amendment. I say what will
happen in the future is we will just not take control of them. This
will be a deterrent to our people from taking the leadership, and as
they do, they will do everything they can to comply with the Geneva
Conventions. It is those circumstances, the new type of entities we use
to combat terrorism that worries the administration. So I can say--and
I know the Senator from Arizona understands--it is the position of the
administration that this amendment goes too far.
We will not make a point of order. There is no point of order that I
know will apply to it anyway. But I do believe it is a matter that
ought to be approached with caution. What does a multinational team do
if they pick up a prisoner who they believe can give them information
as to the location of terrorists who have committed severe acts of
terrorism? The decision will be made, I am sure, that we not take
custody. The custody will go to other nationalities involved in the
team. We will have no control. I believe the amendment of the Senator
from Arizona is going to carry, but I believe we
[[Page S11065]]
have to give serious consideration to the implications I have just
mentioned, and I hope the Senate will keep that in mind.
I yield the floor.
The PRESIDING OFFICER (Mr. McCain). The Senator from South Carolina.
Mr. GRAHAM. Mr. President, No. 1, I would like to recognize that
Senator Stevens, who has so honorably served our country, is genuinely
concerned about the extent of this amendment. For those of you who are
listening, Senator Stevens was a World War II pilot. He has gone in
harm's way in defending his country. We have in the Chamber his
counterpart on the Appropriations Committee, Senator Inouye, a Medal of
Honor winner, and the Senator occupying the chair is a former POW. The
food chain is going down when I am speaking. But what I want to try to
discuss today is from a lawyer's point of view and really from a
citizen's point of view.
I have had the honor for the last 20-some years to be a member of the
Judge Advocate General's Corps of the Air Force, a prosecutor, a
defense counsel, and I am now a Reserve military judge. That experience
has been a wonderful experience. I have received more out of it than
given. Wearing the uniform in any capacity is quite an honor, and to be
a military lawyer has been one of the highlights of my life. I have
never been shot at. I had some clients who probably wanted to kill me.
But other than that, I do understand this debate pretty well. To me, it
is not much of a debate. We have as a nation adopted the position that
Senator McCain described when it comes to how you handle people in your
care and custody.
One thing I would respond to Senator Stevens is that the Army Field
Manual has sort of been the bible for interrogation for decades. If you
are worried, and I think it is a fair question, is there anything in
the Army Field Manual that would unfairly restrict the ability of the
United States to gain good information and defend ourselves from a
bunch of rogue thug murderers, the answer is no. You don't have to
trust me there. Go to Gitmo and ask the question of the people who are
doing the interrogation of these terrorists: Is there anything in the
Army Field Manual as written or being drafted that would impede your
ability to gather good information? And the answer they told me was no.
So what is the value of having it? The value of having
standardization when it comes to interrogation, detention, and
prosecution is of immeasurable benefit to the force because, as Senator
McCain indicated, a lot of the people implementing these policies when
it comes to interrogation, detention, and prosecution are in harm's way
themselves. One of the things we have learned in this whole war on
terror is that this Nation needs to have effective interrogation
techniques, effective detention policies, and effective prosecution
tools to hold the terrorists responsible because you have two
audiences.
No. 1, you have the terrorist community. I want every terrorist to
know, if you are not killed on the battlefield and you are captured,
things are going to happen to you. You are going to be interrogated
aggressively, but we are going to treat you humanely, not because we
worry about your sensitivities but because we don't want to become who
we are interrogating. So we are going to keep that in place.
The President has said whether the Geneva Convention applies or not
we are going to treat everybody in our charge humanely, not because of
them but because of us. And the debate here is what happens when
somebody in your charge is not covered by the Geneva Conventions. It is
easy when someone is a legal combatant. We know what the rules are. We
have the Geneva Conventions. We have been a signatory for 60 years. The
Army Field Manual covers that situation. The war on terror is
different. Vietnam was different. We had people who were lawful, whom
we were able to interrogate, detain, and prosecute without changing who
we were.
The Army Field Manual as a one-stop shop to guide the way we handle
lawful combatants and enemy combatants is absolutely necessary if for
no other reason than to protect our own troops. That is why we are
doing this. That is one of the main reasons--to make sure that your own
troops don't get in trouble because they are confused.
I have been a military lawyer for 20 years. We have confused people
about as much as you can possibly confuse them. And this all started
with the Bybee memo. I think we need to know the history of where we
have been, to find where we are before we take corrective action.
Right after 9/11, this Nation was shocked and shaken. We tried to
make sure we could secure our freedom and security and do a balancing
act, and we have done a pretty good job of it. How can you be secure
and still free? How can you fight the worst enemy and still not become
the worst of yourself? I think you can.
The Bybee memo was an effort by people at the Justice Department to
take international torture statutes that we had ratified and been party
of and have the most bizarre interpretation basically where anything
goes. It was an effort on the part of the Department of Justice lawyers
to stretch the law to the point the law meant nothing. And early on in
this process, those in uniform who happened to be military lawyers
stood up and spoke.
I am going to read from General Sandkuhler, Brigadier General of the
U.S. Marines, who was one of the judge advocates to review this change
in policy, this very liberal interpretation of what torture might be.
He said:
The common thread among our recommendation is concern for
servicemembers. OLC [Office of Legal Counsel] does not
represent the services; thus, understandably, concern for
servicemembers is not reflected in their opinion. Notably,
their opinion is silent on the UCMJ and foreign views of
international law.
The general is telling the civilians that we live in a different
world. This is a complex process, and if we interpret a torture statute
in the way you are suggesting, we are going to get our own people in
trouble.
He says:
We nonetheless recommend that the Working Group product
accurately portray the services' concerns that the
authorization of aggressive counter-resistant techniques by
servicemembers will adversely impact the following:
a. Treatment of U.S. servicemembers by Captors and
Compliance with International Law.
We have been the gold standard. We take this moral high ground to
make sure if our people fall into enemy hands that we will have the
moral force to say, You better treat them right. If you don't practice
what you preach, nobody listens. Sometimes that does not happen, but
you don't want to erode the principle because it puts people at risk.
Criminal and Civil Liability of DOD Military and Civilian Personnel
in Domestic, Foreign, and International Forums.
All the reasons all the JAGs wanted to push back is that you are
going too far if you interpret the statutes as being proposed by the
Department of Justice. Some of the techniques violate the Uniform Code
of Military Justice.
Senator Stevens is concerned about joint operations. Here is the
rule: If you are wearing America's uniform, you are going to be judged
by American standards. You will never be prosecuted unless you do
something inconsistent with our law. If you are part of an
international group and wondering what to do with a prisoner in front
of you, I suggest we let our troops know there are rules they must
follow, and if they see anything they think is out of bounds, report
it.
The best thing we can do for anybody operating in the war on terror
is give them clarity about what to do in very stressful situations.
There is the combat role. What do you do with somebody who is captured?
You do what the President says: You treat them humanely, you
interrogate them by standards we can live by that will not erode our
moral authority.
Where have those standards been in the last 50 or 60 years? The Army
Field Manual. You can change the Army Field Manual to adapt techniques
to the war on terror. There is a classified section of the Army Field
Manual. There is nothing about its adoption that limits the ability to
aggressively interrogate people to get good intelligence. But if you
want to torture people, the Army Field Manual says no and the President
says no. It is now time for Congress to say no, and that is what this
amendment is about.
Congress has been AWOL when it comes to the war on terror in terms of
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interrogation, detention, and prosecution, and we have done it in a way
that weakens our Nation. We are the strongest when all three branches
are on the same sheet of music. It is important, if we are going to win
this war on terror, not to give the moral high ground to your enemy and
to have laws that every branch of Government understands and the people
implementing these laws are not confused and they will not get in
trouble by following what we have said. Congress has been AWOL. It is
now time for Congress to step up to the plate and offer assistance in
the war on terror to the administration. That is exactly what we are
doing.
I asked Judge Roberts, during the confirmation process, about this
whole line of questioning. I said:
Do you believe that the Geneva Convention, as a body of
law, that it has been good for America to be part of that
convention?
ROBERTS: I do, yes.
GRAHAM: Why?
ROBERTS: Well, my understanding in general is it's an
effort to bring civilized standards to conduct of war--a
generally uncivilized enterprise throughout history; an
effort to bring some protection and regularity to prisoners
of war in particular. And I think that's a very important
international effort.
It is an important international effort, and al-Qaida should not be
considered a lawful combatant under Geneva Conventions. But it is about
us, as Senator McCain said. When we catch someone who is not under the
Geneva Conventions, it is important that our people not only follow the
dictates of the President--treat them humanely--but they know what to
do. We are giving confusing policies in this new war on terror, this
hybrid between a lawful combatant, enemy combatant, and regular
combatant. We need to standardize our techniques.
How do we do that to make America the strongest? How can we
effectively do that? We get the Congress involved, we get the
administration involved, and we get the courts involved. Right now we
have two court cases that are all over the board. Judges are telling
us--Justice Scalia in one of the court cases is screaming out that
Congress has been absent here. Congress needs to speak because the
courts are not equipped to run Guantanamo Bay. The courts are not well
equipped to interpret military policy, and they need guidance from
Congress.
I asked Justice Roberts about that. One of his favorite Justices is
Justice Jackson. Justice Jackson in the Youngstown steel case basically
said that the executive branch is at its strongest when it has the
expressed or implied consent of Congress.
When I met with Judge Roberts on this whole issue about detention,
interrogation, and prosecution of enemy combatants, he said this is an
area where the courts would welcome congressional involvement.
As a result of us being AWOL in Congress, there is a Supreme Court
decision, 5 to 4, giving enemy combatants at Guantanamo Bay habeas
corpus rights. They are noncitizens, and they are able to go to Federal
court because there is no clear direction from Congress about how to
treat these people. Mr. President, 185 of them have lawyers, and they
are absolutely overrunning the place. To me, it is absurd that an enemy
combatant, noncitizen terrorist has habeas corpus rights, and the
reason they do is because we are giving no guidance to the courts about
how we want these people treated.
I believe it is now time to give guidance to the courts, to the
country, to the international community, to those in uniform serving
us, and to the terrorists about what we are going to do, and Senator
McCain's amendment has got it. It is the authority that has been
missing in this great effort to win the war on terror. It is now
bringing standardization into an area which had been previously
chaotic. Every military lawyer who has been looking at the policies
proposed has come away confused.
Let me tell you unequivocally that the military legal community
understands what Senator McCain is doing and wholeheartedly adopts his
efforts, that not only would it be good for the Congress to speak with
the same authority as the President, but it would help the courts, and
it would be good for our troops if they had the protection of
standardization.
If you want to help our troops who are trying to win this war on
terror, give them the cover they need and the guidance they need. Do
not throw them to the wolves. We have had people prosecuted because
they have been given an impossible task. They have been given the task
of interpreting laws that make no sense. And if you really do want to
stand by the troops, give them guidance. Give them the guidance and the
tools they can use to get good information, not bad information, and
get information in a way that does not embarrass our Nation and put us
at risk.
Abu Ghraib has been a giant step back, a huge step back, and one of
the reasons we had Abu Ghraib is because nobody there knew what they
were doing. They were not trained. They were overwhelmed. They did not
have consistency when it came to interpreting the interrogation
policies because the policies made no sense. Some people are in jail
now. Most of them are in jail because of their own misconduct. Some
people have had their careers ruined because they are trying to
interpret policies nobody can understand.
That is a huge deviation from the way we conducted war for 50 to 60
years, and we paid the price. We are allowing courts to come in and do
things they are not equipped to do because we have been AWOL as
Congress. The best thing we can do to win this war is have policies
that allow us to effectively interrogate, detain, and prosecute
terrorists without ceding the high ground. And this amendment is a
start.
I am going to introduce every JAG memo written about the original
policies. Their concern is we are putting our own people at risk.
This is General Rives, my current boss:
Should any information concerning the exceptional
techniques--
And they were exceptional--
become public, it is likely to be exaggerated/distorted in
both the U.S. and international media. This could have a
negative impact on international, and perhaps even domestic,
support for the war on terrorism. It could likewise have a
negative impact on public perception of the U.S. military in
general.
This was written 6 February 2003. He was foretelling what was going
to happen. These are not ACLU lawyers. This is a Marine Corps general
and a two-star general in the Air Force who dedicated their lives to
defending their country and holding us up to be the great Nation we
are.
I urge my colleagues to please adopt this amendment overwhelmingly.
It will do a great service to future Presidents. It will be a great
turning point in the war on terror. It is needed. It is a simple
amendment. It uses the Army Field Manual as the bible for interrogation
for lawful combatants and enemy combatants. You can write it the way
you need to. It does not lock us into a position that would be
undermining our efforts to get good intelligence. It simply will be a
document that covers how we behave in every known situation from
Guantanamo Bay to the battlefield in Afghanistan. It will be something
that will help our troops understand what they can and cannot do. It
will make us stronger as a nation.
The second part of the amendment is the most important. It says that
we as a nation will do what the President said: We will treat everybody
in our charge humanely whether they deserve it or not because, as
Senator McCain said, it is about us, it is not about them. And it is
now time for Congress to speak. It will help us in court. When the
courts understand that the Congress has come up with a plan in support
of the administration to interrogate detainees, they will give great
deference to that situation. When Congress is absent, they are going to
be confused, and they are going to do some things they really do not
want to do.
This is a very important moment in the war on terror. This brings us
back into the light out of the darkness. It allows us to interrogate
enemy combatants, unlawful combatants in a way to get good intelligence
without undermining who we are as a people. It is necessary, it is
legally necessary. It will strengthen our hand in court. It is very
necessary to create certainty out of confusion for our troops.
One thing I can say with absolute certainty is that we have let the
troops down when it comes to trying to give them guidance about what to
do in very stressful situations. We are trying
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to give them the armor they need to protect themselves from a terrible
enemy. We are trying to give them the intelligence they need to get
ahead of the enemy. The best thing we can do is give them the guidance
they need to make sure we can win this war on terror and never lose the
moral high ground.
I urge every person to think long and hard about this amendment. To
vote no on this amendment, in my opinion, dramatically weakens us as a
nation. To vote yes reinforces our values, provides good guidance to
make sure we get good intelligence, and protects our own people from
being prosecuted.
I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee is recognized.
Mr. ALEXANDER. Mr. President, it is an honor to serve in the same
body with the Senator from Hawaii, a Congressional Medal of Honor
winner, and with the Senator from Arizona because of his distinguished
service in Vietnam. Whenever the Senator from Alaska, a pilot in World
War II, who devoted most of his career here to understanding our
defense policies, urges caution, I try to listen and pay attention. But
I rise today in support of the amendment by the Senator from Arizona to
the Defense appropriations bill, and I ask unanimous consent to be
added as a cosponsor.
The PRESIDING OFFICER (Mr. Graham). Without objection, it is so
ordered.
Mr. ALEXANDER. Mr. President, I have listened carefully to the debate
about whether it is appropriate for Congress to set the rules on the
treatment of detainees. I have listened carefully, but for me the
question isn't even close.
The people, through their elected representatives, should set the
rules for how detainees and prisoners under U.S. control are treated
and interrogated. In the short term, the President can set the rules,
but the war on terror is now 4 years old. We do not want judges making
up the rules. We Republicans often say we don't like to see judges
legislating from the bench. So for the longer term, the people should
set the rules. That is why we have an independent Congress. That is our
job. In fact, the Constitution says quite clearly that is what Congress
should do. Article I, section 8, of the Constitution says that Congress
and Congress alone shall have the power to make ``Rules concerning
Captures on Land and Water.'' So Congress, as the Senator from South
Carolina said, has a responsibility to set clear rules here.
But the spirit of this amendment is really one that I still hope the
White House will decide to embrace. In essence, as has been pointed
out, the amendment codifies military procedures and policies--
procedures in the Army Field Manual and procedures regarding compliance
with the Convention Against Torture signed by President Reagan. These
amendments uphold or codify policies and procedures the administration
says we are following today and intend to follow moving forward.
As the Senator from Arizona pointed out, his amendment would do two
things: One, prohibit cruel, inhumane, or degrading treatment or
punishment of detainees. It is in specific compliance with the
Convention Against Torture that was signed by President Reagan. The
administration says we are already upholding that standard when it
comes to treatment of detainees, so this should not be a problem.
Secondly, the McCain amendment states simply that the interrogation
techniques used by the military on detainees shall be those specified
by the Army Field Manual on Intelligence Interrogation. The military,
not Congress, writes that manual. We are told that the technique
specified in the manual will do the job. Further, it is under revision,
as has been pointed out, to include techniques related to unlawful
combatants, including classified portions that will continue to give
the President and the military a great deal of flexibility.
If the President of the United States thinks these are the wrong
rules, I would hope he would submit new rules to Congress so that we
can debate them and pass them. I made this same suggestion in July, but
no alternative rule has been suggested so far. I am one Senator who
would give great weight to the President's views on this matter.
This has been a gray area for the courts over time. In this gray
area, the question is, Who should set the rules? In the short term,
surely the President can. In the longer term, the people should,
through their elected representatives. We are their elected
representatives. It is time for us to act. It is time for us to set the
rules. We do not want courts legislating from the bench and writing the
rules. That leaves us to do our job.
In summary, it is time for Congress, which represents the people, to
clarify and set the rules for detention and interrogation of our
enemies. If the White House would prefer different rules, I hope the
President will tell us what rules and procedures he needs to succeed in
the war on terror.
If the argument is whether it is appropriate for Congress to set
clear standards, I believe Congress should set standards and will vote
to support the amendment of the Senator from Arizona.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SUNUNU. Mr. President, I rise in support of the McCain amendment.
There has been a lot of discussion about the new challenges we face in
dealing with organized terrorist cells around the world. The complexity
and the nature of those terrorist threats requires us to engage in ever
more combat activity that is nonconventional. We want to make sure we
do what we can to secure transportation and infrastructure, that we do
what we can to deploy technology, that we improve our preparedness. But
it does not change the fact that in dealing with terrorism our greatest
asset or our greatest tool will be intelligence gathering. Intelligence
gathering will require direct engagement with and interrogation of
suspects, trying to gather information that can help us disrupt these
networks.
We are trying to gather information that can help us prevent future
attacks. That process of interrogation, needless to say, is complex and
challenging. We have seen many of the problems and some of the abuses
that have been documented by some of the previous speakers.
I think this calls out for a process that is more clear and better
defined; interrogation tools, techniques, and procedures that we can be
sure are applied consistently in the field. That is why I think this
amendment is so important. That is why I think we have a fundamental
obligation to support this amendment or at least some approach to
clarify these processes, standards, and procedures used for
interrogation.
I can think of two basic reasons that this is important and that it
will benefit our troops and our country. First, by establishing clear
lines, procedures, and process for interrogation, we help our own
troops, whether working in the uniformed services or working in covert
operations or other intelligence-gathering activities. We can be sure
that they know what the allowances are, that they know what the process
is, that they know what the procedure is, and, in effect, we provide
them with appropriate protection and safeguards in doing their job.
In a similar way, we provide those individuals with protection in the
field of combat should they be taken as a prisoner of war. We want to
make sure our enemies do not have justification for using any
interrogation techniques that we would consider to be improper, cruel,
or inhumane.
First, we are providing protection and establishing this clarity.
Second, I think we are sending an important message to our allies and
our adversaries--a message that while the legal standards that are
enshrined in the Constitution do not apply to everyone in the world,
our commitment to these basic principles of life, liberty, and the
pursuit of happiness, our commitment to basic principles of human
dignity and human rights do apply and we must find ways to define these
standards, to clarify this commitment, even in the area of
interrogating enemy combatants and interrogating potential terrorists,
suspected terrorists, in the field.
So we send a clear message to our allies and adversaries that our
commitment to these principles is real, that our desire to establish
uniform standards is real.
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I do not know, not having the experience of some of my colleagues,
whether this is the perfect standard, whether the requirements and the
precise language in this amendment are ideal, but I think this is a
fair-minded approach that allows the military itself, through its code
of conduct, to establish these definitions that allows for the
establishment of a classified annex to deal with covert operations,
deal with the most sensitive of captives and the most sensitive of
interrogations so that we are not undermining the intelligence
gathering that we are attempting to facilitate.
In fact, the approach that is taken has been endorsed, as was
indicated by the Senator from Arizona, by many who have had very close
and intimate experience with this type of interrogation. In the letter
that Senator McCain entered into the Record there were two particular
points that were made that I want to underscore, and that is, first,
``the abuse of prisoners hurts America's cause.'' I think that is just
a fundamental and important underlying point in this debate, that
prisoner abuse hurts our cause. It hurts the moral arguments we are
trying to make, the political arguments we are trying to make, and it
does put our own men and women serving in uniform or in intelligence-
gathering operations at risk.
Second, the United States should have one standard for interrogating
enemy prisoners that is effective, lawful, and humane. That point
brings me back to the concern that we send a clear message to our
allies and adversaries that our commitment to human dignity and human
rights is universal.
So I am pleased to support the amendment. I think it is a very
important first step. I think it gives the military the flexibility
that it deserves, and I hope the military will use that flexibility
well to add clarity, standards, process, and procedure that will enable
us to continue to interrogate prisoners and continue to gather
intelligence in dealing with these terrorist networks around the world,
but do it in a way that is consistent with the intent, the principle,
and the philosophy of our Constitution.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I rise today in support of amendment No.
1977, which has been offered by Senator McCain, the Presiding Officer,
Senator Graham, Senator Hagel, Senator Smith, and Senator Collins.
First, let me commend Senator McCain for the courage that he has shown,
again, in offering this amendment. There is not a single person in
Congress who can speak with more authority than Senator John McCain on
the treatment of prisoners of war.
I have come to this floor many times to address this issue, but my
voice is weak compared to his. He has lived this experience in a way
that none of us ever have or ever will. I believe his voice should be
listened to more than some because he has given so many years of his
life to this country and suffered as a prisoner of war personally.
This should be a noncontroversial amendment. It really requires two
very simple and straightforward things: First, that the treatment of
detainees comply with the Army's Field Manual on Interrogation; and,
second, that the United States may not subject anyone in our custody to
torture or cruel, inhumane, or degrading treatment. It is that
straightforward.
This amendment would affirm our Nation's very important, longstanding
obligation not to engage in torture or other cruel treatment. This
standard is enshrined in our U.S. Constitution and in several treaties
which our Nation has adopted as the law of the land.
Just as important, this amendment would make the rules clear for our
soldiers so they know what the standards are that they should follow in
the treatment of detainees. We owe this to our troops. If they are
going to risk their lives every day in defense of our country, we
should give them standards of conduct that are clear and unequivocal.
The prohibition on torture and other cruel treatment is deeply rooted
in the history of America. Our Founding Fathers made it clear in the
Bill of Rights that torture and other forms of cruel treatment are
prohibited.
These principles have even guided us during the times of great
national testing. During the Civil War, President Abraham Lincoln asked
Francis Lieber, a military law expert, to create a set of rules to
govern the conduct of U.S. soldiers in the Civil War. The result was
the Lieber Code. It prohibited torture and other cruel treatment of
captured enemy forces. It really was the foundation for the Geneva
Conventions.
After World War II, the United States took the lead in establishing a
number of treaties that banned the use of torture and other cruel
treatment against all persons at all times. There are no exceptions to
this prohibition.
The United States has ratified these treaties, including the Geneva
Conventions and the torture convention. They are the law of the land.
Twice in the last year and a half, I have authored amendments to
affirm our Nation's longstanding position that torture and other cruel
treatment are illegal. Twice the Senate unanimously approved my
amendments. Both times the amendments were killed behind closed doors
of conference committees. Both times these amendments, which I offered
and which were accepted by the Senate, were stricken from the bill at
the insistence of the administration.
As I understand it, the administration does not support Senator
McCain's amendment. I sincerely hope that after this debate, they will.
Why would the administration oppose an amendment that affirms our
longstanding obligation not to engage in torture or cruel, inhumane,
and degrading treatment? Sadly, it is because the actions that they
have taken on this critical question have been unclear and
inconsistent.
In early 2002, Alberto Gonzales, who was then-White House Counsel,
recommended to President Bush that the Geneva Conventions should not
apply to the war on terrorism. Colin Powell, former Chairman of the
Joint Chiefs of Staff, who was then-Secretary of State, objected
strenuously to Attorney General Gonzales' conclusion. He argued that we
could effectively fight the war on terrorism and we could live by the
Geneva Conventions, which have been the law of the land in America for
over half a century.
Unfortunately, the President rejected Secretary Powell's wise counsel
and instead accepted Attorney General Gonzales' recommendations. In
February of 2002, he issued a memo determining that the Geneva
Conventions would not apply to the war on terrorism.
Then the administration unilaterally created new policies on the use
of torture. I am referring to, among other things, the well-known Bybee
memo of August 1, 2002, which has been publicly disclosed. They have
claimed that the President has the right to set aside the law that
makes torture a crime. They have narrowly defined torture as limited
only to abuse that causes pain equivalent to organ failure or death.
They claim that it is legal to subject detainees to cruel, inhuman,
and degrading treatment even though Congress has ratified the torture
convention, which explicitly prohibits cruel, inhuman, and degrading
treatment. This fact was verified by Attorney General nominee Gonzales
during confirmation hearings before the Senate Judiciary Committee, in
response to a question which I asked him directly.
Despite all of this, the administration continues to insist that
their policy is not to treat detainees inhumanely.
What does this mean? Recently, I asked Timothy Flanigan this
question. He was the Deputy to White House Counsel Alberto Gonzales.
Mr. Flanigan has been nominated to be the Deputy Attorney General, the
second highest law enforcement official in the Nation. Mr. Flanigan
said inhumane treatment is ``not susceptible to a succinct
definition.''
I asked him whether the White House had provided any guidance to our
troops on the meaning of inhumane treatment. He acknowledged that they
had not.
I asked Mr. Flanigan about specific abuses. I asked him: would it be
inhumane to beat prisoners or subject them to mock executions? He said,
``It depends on the facts and circumstances.''
I cannot imagine facts and circumstances in which it would be humane
to subject a detainee to a mock
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execution. Last week an editorial in the Washington Post called Mr.
Flanigan's answers to my questions, ``evasive legalisms in response to
simple questions about uncivilized conduct.''
How are our service men and women supposed to know how to treat
detainees when high-ranking administration officials do not seem to
know or refuse to respond to these direct questions?
The administration acknowledges that some people held by our
Government have been mistreated. Some have been tortured. They say
these abuses were committed by a few bad apples, rogue soldiers on a
night shift.
But is it any wonder that people have been abused when the
administration and Congress do not make it clear that American policy
prohibits subjecting detainees to cruel and degrading treatment? Is it
any wonder that people have been abused when we refuse to repudiate un-
American practices such as beating detainees? The administration should
not point the finger of blame at our troops for the logical
consequences of muddled and often contradictory policies.
I have been to Iraq. I have spent time with our troops. I have been
humbled by their courage and sacrifice. I have visited Walter Reed
Hospital many times. I have spoken with young soldiers who have
suffered horrible injuries in the war, and I have attended funerals for
soldiers who lost their lives in this war, many from my own home State.
Our troops around the world and their families at home deserve our
respect, admiration, and support.
Just a few weeks ago, a brave U.S. serviceman stepped forward to say
that he and other American soldiers need clear rules and guidance on
how to deal with detainees. CPT Ian Fishback is a graduate of West
Point. He served in combat both in Afghanistan and Iraq. He was so
disturbed by what he had experienced that he wrote to our colleague,
Senator McCain. The letter is now public. It was published in the
Washington Post last week.
Senator McCain entered part of the letter into the record earlier
today. Let me read a little more of the letter, which speaks so
powerfully and eloquently to our soldiers' need for guidance and
leadership. Listen to what Captain Fishback wrote:
For 17 months I tried to determine what specific standards
governed the treatment of detainees. . . . Despite my
efforts, I have been unable to get clear, consistent answers
from my leadership about what constitutes lawful and humane
treatment of detainees. I am certain that this confusion
contributed to a wide range of abuses including death
threats, beatings, broken bones, murder, exposure to
elements, extreme forced physical exertion, hostage-taking,
stripping, sleep deprivation and degrading treatment. I and
troops under my command witnessed some of these abuses in
both Afghanistan and Iraq.
This administration should stand by the time-honored Geneva
Conventions and the torture convention, rules that have served us well
in the past, rules that our soldiers are trained in and understand. To
replace them with vague directives to treat detainees humanely fails to
provide basic guidance that our troops desperately need.
Listen to what Captain Fishback also wrote:
I can remember as a cadet at West Point, resolving to
ensure that my men would never commit a dishonorable act,
that I would protect them from that type of burden. It
absolutely breaks my heart that I failed some of them in this
regard.
It breaks my heart to think that this soldier, risking his life for
America in Afghanistan and Iraq, is now reaching out to us because we
have failed to provide him with guidance. I am thankful that Senator
McCain has stepped forward, along with you, Mr. President, and many
others in this Chamber, to give him that guidance.
Captain Fishback is an honorable man. Like the overwhelming majority
of the fine men and women who serve our country, he has not failed. We
have failed--to give him clear direction in his conduct as a soldier.
The administration has failed to set clear rules for the treatment of
detainees. We need to step in and clarify these with the amendment
offered by Senator McCain. Cruel, inhuman, and degrading treatment are
prohibited. The Army Field Manual governs the treatment of detainees.
Senator McCain's amendment will make that clear.
In the past, the administration has opposed amendments that affirm
that cruel, inhuman, or degrading treatment is illegal because they
``would have provided legal protections to foreign prisoners to which
they are not now entitled.''
But the administration is not correct in this assertion. Cruel,
inhuman, or degrading treatment is already prohibited by the torture
convention.
Their reasoning is revealing, however. They do not seem to understand
the real issue at stake in this debate. This is not about legal
protections for foreign prisoners. It is about who we are as a people.
Torture is not American; abusing detainees is not the American way. Our
brave men and women in uniform understand this, and the plaintive plea
of Captain Fishback makes that clear.
I correspond with another soldier who served in Iraq and started
sending me e-mails late at night about what was really happening on the
ground. He keeps in touch with me now from time to time. He recently
wrote to me and said:
We need to go back toward a strict application of the
Geneva conventions. That is where our honor lies and that is
what I was taught since the day I joined the service.
Retired RADM John Hutson served our country for 28 years, and for the
last 3 years of his career he was the Judge Advocate General, the top
lawyer of the Navy. He worked with me on the amendments I authored. He
supports Senator McCain's amendment. In a letter to me he wrote:
Clarion opposition to torture and other abuse by the U.S.
will help protect U.S. troops who are in harm's way.
Former Congressman Pete Peterson, a good friend of mine and many in
this body, was also a prisoner of war in Vietnam, like Senator McCain.
He was in prison for 6.5 years.
In a letter to me in support of our efforts he wrote:
Congress must affirm that America stands by its moral and
legal obligation to treat all prisoners, regardless of
status, as we would want the enemy to treat our own. Our
courageous men and women deserve nothing less.
Let me close finally by a quote from Captain Fishback's letter.
Some argue that since our actions are not as horrifying as
Al-Qaeda's, we should not be concerned. When did Al Qaeda
become any type of standard by which we measure the morality
of the United States? We are America, and our actions should
be held to a higher standard, the ideals expressed in
documents such as the Declaration of Independence and the
Constitution. . . .If we abandon our ideals in the face of
adversity and aggression, then those ideals were never really
in our possession. I would rather die fighting than give up
even the smallest part of the idea that is ``America.''
We are so fortunate to have men of his dedication and character
serving our country in uniform. We owe it to him, we owe it to the
hundreds of thousands of men and women who serve us every single day
and risk their lives, to set clear rules so they know how to treat
detainees in custody.
I urge my colleagues to support the amendment of Senator McCain. I
yield the floor.
Mr. OBAMA. Mr. President, I support the amendment offered by the
senior Senator from Arizona. I commend Senator McCain for his
leadership on this important issue. This amendment prohibits the cruel,
inhuman, or degrading treatment or punishment of persons under custody
or control of the U.S. Government. In other words, it outlaws the
torture of prisoners by agents of the United States, regardless of
their geographic location.
I am, and always have been, opposed to the use of torture. I believe
that our brave men and women serving in the Armed Forces share this
view. Now more than ever, we must make it absolutely clear to our
allies and our enemies that the United States does not and will not
condone this practice. This amendment does that in no uncertain terms.
It acknowledges and confirms existing obligations under our own
Constitution and the United Nations Convention Against Torture.
Let me be clear on another point. I am committed to fighting
terrorism and protecting our citizens and troops at home and abroad. I
have the utmost respect, gratitude and admiration for our troops who
are fighting on the frontlines of the War on Terror, and I have no
intention of undermining the important job that they do.
But the use of torture does not enhance our national security. In
fact, senior U.S. military officers have argued that practicing torture
can place
[[Page S11070]]
U.S. troops in grave danger--especially if they are taken prisoner. In
working to keep our Nation and troops safe, we must not lose sight of
this critical truth.
The United States should set an example for the international
community. Senator McCain's amendment reaffirms a fundamental value of
the American people--that torture is morally reprehensible and has no
place in this world. I am proud to support this affirmation, and I urge
my colleagues to do the same.
Mr. LEAHY. Mr. President, I strongly support Senator McCain's
amendment to provide clear guidance for the treatment of detainees in
U.S. custody. This administration has steadfastly refused to address
the black mark on our Nation caused by its interrogation policies and
the resulting abuse of detainees. Congress needs to take action.
Our credibility and reputation as a world leader in human rights
suffers from our unwillingness to openly address the flaws in our
system. More importantly, the failure to provide clear guidance on the
treatment of detainees puts our own troops at risk and undermines their
efforts in Afghanistan and Iraq. I commend my colleagues across the
aisle who are attempting to address this problem, despite resistance
from members of their own party and the strong opposition of the White
House. The President has threatened to veto any legislation that would
regulate the treatment of detainees, claiming that it would impinge on
his Commander-in-Chief authority. I fail to see how a bill requiring
the humane treatment of detainees--the same treatment the President
claims they now receive--would impinge on his authority in any way.
It is Congress's right under the Constitution to issue regulations
governing the armed forces. This was something I asked Chief Justice
Roberts at his confirmation hearings, and he agreed ``that Congress can
make rules that may impinge upon the President's command functions.''
He answered, ``Certainly . . . the Constitution vests pertinent
authority in [this] area in both branches. The President is the
Commander-in-Chief . . . On the other hand; Congress has the authority
to issue regulations governing the armed forces, another express
provision in the Constitution.''
Senator Graham said on the floor this morning that, ``Congress has
been AWOL when it comes to the war on terror in terms of interrogation,
detention and prosecution, and we've done it in a way to weaken our
Nation.'' I agree with my friend, the Senator from South Carolina.
Without congressional action, the problem of prisoner abuse will
continue to fester.
We continue to learn of abuses from press reports and the court-
ordered release of government documents in response to Freedom of
Information Act, FOIA, litigation. Documents that were recently made
public by the FOIA case demonstrate why Senator McCain's amendment is
necessary.
These documents reveal a troubling pattern of abuses that occurred
because soldiers did not know what was acceptable under this
administration's vague detention and interrogation policies. Several of
the documents are transcriptions of interviews of military personnel in
Iraq that show a systematic failure of the Pentagon to properly train
soldiers on how to treat detainees. One report describes soldiers who,
because of a lack of guidance and training from their command, engaged
in ``interrogations using techniques they literally remembered from
movies.'' Another document describes the shooting of an Iraqi detainee
in U.S. custody. The report concludes that ``this incident could have
been prevented if [the soldier] had better training.''
Another report, released last week by Human Rights Watch and based on
firsthand accounts of soldiers in the 82nd Airborne Division, details
the widespread abuse of Iraqi detainees by soldiers at Camp Mercury, a
forward operating base near Falluja, Iraq. The report states that
detainees were severely beaten and mistreated from 2003 through 2004,
even after the photos from Abu Ghraib became public. The witnesses
claim that detainees were abused at the request of military
intelligence personnel as part of the interrogation process, but also
claim that the abuse occurred simply as a way for troops to ``relieve
stress.'' One soldier allegedly broke a detainee's leg with a baseball
bat. In another incident, detainees were stacked into human pyramids
and denied food and water. It is time for this administration to
finally acknowledge that such incidents were not the isolated acts of a
few bad apples. These horrific acts were not isolated incidents on the
night shift at Abu Ghraib. Unfortunately, similar acts occurred at
locations throughout Iraq and Afghanistan.
A group of 28 senior military officers, including General John
Shalikashvili, recently wrote to Senator McCain in support of his
amendments addressing detainee treatment. That letter stated, ``The
abuse of prisoners hurts America's cause in the war on terror,
endangers U.S. servicemembers who might be captured by the enemy, and
is anathema to the values Americans have held dear for generations. Our
servicemembers were denied clear guidance, and left to take the blame
when things went wrong. They deserve better than that.'' I hope the
President will consider these words before he vetoes a bill that
contains Senator McCain's amendment.
Mr. HAGEL. Mr. President, I rise in support of Senator McCain's
amendment No. 1977 regarding the treatment of individuals who are in
the custody or control of the United States.
I cosponsored this amendment because the men and women making
sacrifices to defend our country deserve clear standards for the
treatment of detainees under U.S. control. It is the responsibility of
both the Executive and Congress to provide clear guidance and
leadership that will direct the actions of our troops.
We have failed to meet this obligation. Soldiers continue to report
that the lack of clear guidance has created an atmosphere of confusion
and uncertainty around the world. Our failure to confront this issue
puts our troops at greater risk of abuse and mistreatment and
undermines our credibility.
This amendment will strengthen our ability to fight those who
threaten the United States. This amendment codifies into law that the
Army Field Manual must be used as the standard for interrogations. In
addition, the amendment codifies that the U.S. will not subject
detainees to cruel, inhumane and degrading treatment.
This is a commonsense amendment that protects our troops and upholds
the standards that this country has held to since the beginning of our
Republic.
I urge my colleagues to vote in support of this amendment.
Mrs. FEINSTEIN. Mr. President, I rise in support of amendment No.
1977, offered by my colleague, Senator McCain.
This amendment would bring much-needed clarity to the rules governing
how Americans treat captured prisoners and detainees.
It will make clear that the Geneva Conventions apply to all people
held in the custody of the Department of Defense.
It provides a workable definition of ``cruel and inhumane,'' based on
the rules which govern how we treat criminals in the United States, and
based firmly in the constitutional prohibitions of cruel and unusual
punishment.
Most importantly, it sets rules that are clear, simple and in accord
with basic American values.
First, let me make clear my view that in this modern world of
asymmetric warfare, non-state actors, and unconventional threat, there
is an absolute necessity to have a program to securely hold prisoners
and effectively interrogate them to provide timely intelligence.
But in my judgment, the current system is not working.
Over the course of the past 4 years, there has been a great deal of
confusion over the policies and practices of the United States towards
individuals the Government has taken into custody.
This confusion has been evident at the highest levels of
decisionmaking at the Pentagon, with memoranda authorizing this
technique or that technique being issued and rescinded within weeks of
one another.
The confusion has been noted here in the Senate. I sit on two
committees with jurisdiction, and have sat through hours and hours of
hearings and briefings--our Nation's policy with respect to detainees
and prisoners of war is still unclear to me.
Frankly, the administration's repeated statements about ``wherever
[[Page S11071]]
possible adhering to law'' are confusing and unhelpful.
And the confusion has filtered down to the front lines.
Seventeen months ago, enlisted members of the 82nd Airborne Infantry
Division--honorable men risking their lives in Iraq--asked their
commanding officer what the rules were for the treatment of prisoners.
For 17 months, their commander, CPT Ian Fishback, diligently searched
for the answer up and down his chain of command. Here is what he has
found, and I quote:
We've got people with different views of what ``humane''
means and there's no Army statement that says ``this is the
standard for humane treatment for prisoners to Army
officers.'' Army officers are left to come up with their own
definition of humane treatment.
Captain Fishback and his men have a right to clear guidance. Their
sacrifices entitle them to be allowed to do their job. An infantryman
should not need to be a graduate of a law school to know what to do
with a prisoner.
What this amendment does is to provide clarity.
It is incumbent on Congress to provide this clarity. In fact, we have
a constitutional mandate to do it.
Article VII, section 8 of the Constitution states that Congress shall
have the power to ``make Rules concerning Captures on Land and Water,''
and also ``To make Rules for the Government and Regulation of the land
and naval Forces.''
Our men and women in combat badly need this legislation. But there is
more at stake here than immediate military necessity.
Our soldiers and our Nation have a long and honorable tradition of
ethical behavior. For more than 200 years we have prided ourselves on
being different than our adversaries in war. Simply put, there are some
things that Americans do not do, not because it is illegal, or some
lawyer says we cannot, but because it is wrong.
The laws of war, codified in the Geneva Conventions, represent a bare
minimum of acceptable behavior toward captives. The United States has
consistently championed the Geneva Conventions for over a century,
knowing that our behavior is a beacon to the world, and that our
adherence to principle--as well as projecting American values--saves
American lives.
I am not naive. I do not expect our current enemy to respect the
Geneva Conventions. Our captured troops cannot expect humane treatment
at the hands of al-Qaida. But make no mistake--the eyes of the world
are still on us, and our policies have real consequences.
Even now, millions of young Muslims around the world are evaluating
the United States. They are deciding whether to take up arms against
us, or whether to work with us towards a peaceful resolution with
liberty and justice for all. We must show them, clearly, emphatically,
that the rhetoric of democracy and freedom is not empty. We must show
them that we are a government of laws, clearly written, openly
promulgated and fairly enforced.
Captures and interrogations are part of war and, no less than other
tools of war, must be wielded intelligently, humanely, and within a set
of rules for warfare that govern all who serve in uniform--whether
privates or generals, seamen or admirals.
Our men and women in uniform, serving in Afghanistan, Iraq and at
Guantanamo Bay, have the right to clear, direct and lawful leadership.
This amendment is good policy, is just, and is long overdue.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I ask unanimous consent that the Senator
from Illinois, Mr. Durbin, be added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Mr. President, first I thank my friend and colleague from
South Carolina for his comments in support of this amendment. He does
occupy a unique position in this body, having served 20 years--6\1/2\
years on active duty as an Air Force lawyer and member of the JAG
Corps, and remains in the Reserves to this day. He obviously brings a
perspective to this issue which is very important.
I think the Senator from South Carolina described the confusion that
existed over a period of time about this whole issue of treatment of
prisoners. There was a set of instructions issued which were in effect
for a couple of months, which were strongly objected to by the
uniformed legal corps in the Pentagon. Yet their concerns were
overridden.
The Senator from South Carolina quoted one of them. Another one was
by RADM Michael Lohr, the Navy's Judge Advocate General. He said the
situation at the American prison in Guantanamo, Cuba, might be so
legalistically unique that the Geneva Conventions and even the
Constitution did not necessarily apply. But, he asked,
Will the American people find we have missed the forest for
the trees by condoning practices that, while technically
legal, are inconsistent with our most fundamental values?
General Rives said if the White House permitted abusive
interrogations at Guantanamo Bay, it would not be able to restrict them
to that single prison. He argued that soldiers elsewhere would conclude
that their commanders were condoning illegal behavior. And that is
precisely what happened at Abu Ghraib after the general who organized
the abuse of prisoners at Guantanamo went to Iraq to toughen up the
interrogation of prisoners there.
I think it is clear that the White House ignored those military
lawyers' advice a couple of years ago. We now have, thanks to the
yearlong effort of the Senator from South Carolina, those
communications of deep concern to every uniformed JAG in the Department
of Defense, about the issuance of instructions which basically violated
our commitment to the Geneva Conventions.
In order to have the record complete, a couple of months later those
were rescinded and different orders were issued at that time. But what
if you are at the end of the chain and you get these kinds of mixed
messages?
So I thank the Senator from South Carolina for pointing out from his
unique perspective how important this is, since it is the men and women
who are in the JAG Corps who are responsible for prosecuting those who
violate Geneva Conventions, and they need clear guidance; or defending
someone who is accused of violating them, as our men and women of the
military are entitled to defense just as they are subject to
prosecution.
Again, I thank the Senator from South Carolina. I appreciate the
defense of the Senator from Alaska of the administration's position on
this issue. I do not think he has been well informed by the
administration, particularly concerning the Army Field Manual.
The Army Field Manual has a classified section which would not be
available to anyone except for those who have a need to know. The Army
Field Manual has been used for decades. The Army Field Manual is being
revised as we speak to try to meet the new challenges we face. But the
Army Field Manual, I am confident, will be in keeping with the
fundamental commitments we have made.
All my career I have supported the rights and prerogatives of the
Commander in Chief. We need a strong President, and in wartime this is
more important than ever. I understand the administration would want to
preserve the President's flexibility and wartime powers, and I do not
believe that we can afford to have 535 Secretaries of State,
Secretaries of Defense, or even Presidents of the United States.
I would like to point out the Congress not only has the right but the
obligation to act. Article I, section 8 of the Constitution of the
United States, clause 11:
To declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water[.]
I repeat:
. . . make Rules concerning Captures on Land and Water[.]
Someone is going to come down to the floor and say that applied back
in the time of the Framers of the Constitution; it didn't apply to
today. At least from my point of view, unless there is an overriding
need to change the Constitution of the United States--if that clause of
the Constitution no longer applies, then lets amend the Constitution
and remove it; otherwise, lets live by it.
The Congress has the responsibility:
[[Page S11072]]
To declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water[.]
I do not see how anyone could view this as an unwarranted
intervention in an issue such as this. The courts, as the Senator from
South Carolina pointed out so well, are asking us--that well-known
liberal judge, Justice Scalia, has said we need the Congress of the
United States involved in this issue. We, the courts, cannot do it
ourselves.
As the Senator from South Carolina pointed out, if we do not fulfill
our constitutional role, we are negligent. We owe it to our troops and
our country to speak on this issue.
I very much respect my friend, the Vice President of the United
States, Vice President Cheney. He and I have been friends for many
years. I respect the way that he carefully guards the prerogatives of
the President. But on this issue, I hope he and others would understand
that we are dutybound to take action.
I would like, again, to refer back to Captain Fishback. He is what I
view as the tip of the iceberg that exists in the military today. They
know how important this war on terror is. They are the ones who are
fighting it. Captain Fishback served in Afghanistan and in Iraq, and
the ones I hear from are men and women in the military who have a very
strong commitment to winning the war on terror. They have laid their
lives on the line to win it. But they want clear, unequivocal
guidelines as to how to treat prisoners of war.
I would like to believe that this is the last war in which the United
States will ever be involved. I would like to believe that from now on,
after we win this war on terror, we will have peace and the United
States will never send its men and women in harm's way again.
History shows me otherwise. What happens in the next conflict when
American military personnel are held captive by the enemy and they make
the argument, with some validity, that we have violated the rules of
war? What happens to our men and women in the military then?
There are some who will say they wouldn't respect the rules of war,
anyway. If they are not sure they are going to win, as the Germans
weren't in World War II, they might treat our prisoners according to
certain standards if we insist upon those standards.
I think there is a lot at stake. I respect the position of the
administration, that these should be under the authority and
responsibility and would erode the flexibility of the President of the
United States. I don't believe so.
This amendment basically restates what we have been practicing for
certainly all of the 21st and the 20th centuries.
I think we owe it to the people, these brave young Americans such as
Captain Fishback, who want and deserve a clarification in the way they
can carry out their responsibilities and duties as they travel into
harm's way.
I thank the Senator from New Hampshire, the Senator from Tennessee,
the Senator from Illinois, and my friend from South Carolina for their
eloquent statements on this issue.
I ask for the yeas and nays on this amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. McCAIN. Mr. President, I yield the floor.
Mr. STEVENS. Mr. President, this Senator doesn't agree with anything
that has been said about the applicability of this provision to anyone
in the military uniform. Most of the speakers have talked about men and
women in the armed services. The amendment goes much further than that.
But first, the problem is it requires the field manual to list every
type and means of interrogation. Thousands of pages will be required.
People will be prosecuted in military courts if they don't know every
single one of them, if they even cross the line by accident. This idea
of listing all of the possible ways to interrogate a person is
impossible. I say that should be changed. Maybe they should issue from
time to time additional items to go in the field manual. But to require
that no one can use a means of interrogation not listed in advance when
we are involved in a war on terror and we are dealing with terrorists
is wrong.
Beyond that, this deals with any person--not any military person. The
Geneva Conventions were originally intended to deal with military
prisoners. This is dealing with anyone who is intercepted now anywhere
in the world who, regardless of nationality or physical location, is in
custody or physical control of the United States because a person who
is American happens to be there.
Again, I mention these teams I have met with, and I respect
multinational teams. This, in effect, says that an American is
responsible for anything done by any member of that team. That, to me,
is wrong.
What is more, I think it is wrong to presume there is no place in
this country or in the operation of this country where we should not
have the ability to deal with terrorists on their own ground.
These are vicious people, suicidal people. I do not think they should
be accorded the rank and treatment of men and women in uniform from
other nations. That is what this amendment does. I shall oppose it. I
may be all alone, but I shall oppose it because I think there is a
place in our operations against individuals involved in the war on
terrorism where we deal with them as they deal with us.
These are not military people. They may not even be American
nationals who are working for us in an undercover way, but this says we
are responsible for treating all these people according to the Geneva
Conventions and according to processes listed in the U.S. Army Field
Manual. That is wrong. That is all simply wrong, and I shall oppose the
amendment.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Murkowski). The clerk will call the roll.
The Journal clerk proceeded to call the roll.
Mr. GRAHAM. Madam President, I ask unanimous consent that the order
for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAHAM. Madam President, I ask unanimous consent to set aside the
pending amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 2004
Mr. GRAHAM. Madam President, I call up my amendment which is at the
desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from South Carolina [Mr. Graham], for himself
and Mr. McCain, proposes an amendment numbered 2004.
Mr. GRAHAM. Madam President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To authorize the President to utilize the Combatant Status
Review Tribunals and Administrative Review Board to determine the
status of detainees held at Guantanamo Bay, Cuba)
At the appropriate place, insert the following:
Sec. __.(a) Authority To Utilize Combatant Status Review
Tribunals and Administrative Review Board To Determine Status
of Detainees at Guantanamo Bay, Cuba.--The President is
authorized to utilize the Combatant Status Review Tribunals
and a noticed Administrative Review Board, and the procedures
thereof as specified in subsection (b), currently in
operation at Guantanamo Bay, Cuba, in order to determine the
status of the detainees held at Guantanamo Bay, including
whether any such detainee is a lawful enemy combatant or an
unlawful enemy combatant.
(b) Procedures.--
(1) In general.--Except as provided in paragraph (2), the
procedures specified in this subsection are the procedures
that were in effect in the Department of Defense for the
conduct of the Combatant Status Review Tribunal and the
Administrative Review Board on July 1, 2005.
(2) Exception.--The exceptions provided in this paragraph
for the procedures specified in paragraph (1) are as follows:
(A) To the extent practicable, the Combatant Status Review
Tribunal shall determine, by a preponderance of the evidence,
whether statements derived from persons held in foreign
custody were obtained without undue coercion.
(B) The Designated Civilian Official shall be an officer of
the United States Government whose appointment to office was
made by the President, by and with the advise and consent of
the Senate.
(3) Modification of procedures.--The President may modify
the procedures and requirements set forth under paragraphs
(1) and (2). Any modification of such procedures
[[Page S11073]]
or requirements may not go into effect until 30 days after
the date on which the President notifies the congressional
defense committees of the modification.
(c) Definitions.--In this section:
(1) The term ``lawful enemy combatant'' means person
engaging in war or other armed conflict against the United
States or its allies on behalf of a state party to the Geneva
Convention Relative to the Treatment of Prisoners of War,
dated August 12, 1949, who meets the criteria of a prisoner
of war under Article 4 of that Convention.
(2) The term ``unlawful enemy combatant'', with respect to
noncitizens of the United States, means a person (other than
a person described in paragraph (1)) engaging in war, other
armed conflict, or hostile acts against the United States or
its allies, regardless of location.
Mr. GRAHAM. Madam President, I thank Senator Stevens for allowing me
to do this. I appreciate that we have a busy day.
I totally understand where he is coming from about the interrogation
amendment. I come out on a different side. This amendment deals with
the combat status review procedure at Guantanamo Bay. I think it is
very necessary. I think it strengthens what the administration is
trying to do when it comes to enemy combatants. I think it helps the
administration in court and is good policy for the country.
No. 1, I totally agree with the President that a member of al-Qaida
should not be given Geneva Conventions status. I say to my friend from
Alaska that Senator McCain's amendment doesn't confer Geneva
Conventions status on enemy combatants. It standardizes the
interrogation techniques. The Army Field Manual has a section for
lawful combatants, those covered under the Geneva Conventions, and it
will have a provision for unlawful combatants. Al-Qaida should not be
given Geneva Conventions status. The Geneva Conventions and the
signatories to the convention set the rules for the conduct of war. An
unlawful enemy combatant is someone who goes around the battlefield
without a uniform, doesn't represent a nation--a terrorist, for lack of
a better word. They do not deserve the protection of the Geneva
Conventions because they are cheating. But they do, in my opinion,
deserve what the President said--not so much because they deserve it
but because it is about who we are.
The President said even enemy combatants--members of al-Qaida--will
be treated humanely. When we capture somebody on the battlefield--
throughout the world because the whole world is the battlefield in the
war on terror--most of the people we are dealing with are not part of
the uniformed force, not like the Iraqi Army.
The President said early on these people will be humanely treated but
they will not be given Geneva Convention status. He is absolutely
right. When we catch someone, say, in Afghanistan, who is a member of
al-Qaida or some other terrorist network, certain people, once
screened, go to Guantanamo Bay. The people at Guantanamo Bay have been
participating in the allegations, or they have been participating in
terrorist activities, supporting terrorist organizations as an unlawful
enemy combatant. They are not uniformed soldiers.
We are reviewing everyone that comes to Guantanamo Bay to see if they
deserve the status ``enemy combatant.'' The term ``enemy combatant''
came out of World War II when we had a Supreme Court case recognizing
that term for German saboteurs who landed, I think, in Florida and were
trying to do sabotage throughout the United States. These six or seven
Germans were not in uniform. They were tried by a military commission.
We have a military commission at Guantanamo Bay that I totally
support. And I think enemy combatant status was a result of that
Supreme Court case. They were given that determination.
What we are trying to do is streamline interrogation techniques to
deal with both lawful and unlawful combatants. That helps our troops,
gives them guidance.
The second thing we are doing with my amendment is legitimizing,
through congressional action, what the administration has done at
Guantanamo Bay. The administration, in my opinion, has put together a
very good, thorough process to look at each person that comes to
Guantanamo Bay to determine whether or not they should be classified as
enemy combatants because if they are classified as enemy combatants,
they can be detained indefinitely and taken off the battlefield.
The due process rights afforded an enemy combatant have been up to
the Supreme Court, and the Supreme Court, for the most part, has
blessed the procedure. There have been some concerns expressed by the
Court.
My amendment tries to, one, legitimize what the administration has
created at Guantanamo Bay in terms of a review process to determine who
is an enemy combatant and who is not. We made two small changes. We
have learned in the past that sometimes people have been because of a
single statement made, while in the hands of a foreign agency, a
foreign country, that was given under duress. The amendment says that
if a civilian is to determine enemy combatant status in a statement
from a foreign interrogation, you have to prove that the statement was
not unnecessarily coerced. Most Americans, I think, agree with that,
and the people at Guantanamo Bay agree with that.
Second, the civilian who will determine from the appeal process
whether or not the enemy combatant status, which is reviewed annually,
should be held, would be appointed by the Senate as a Presidential
appointment. Gordon England is doing it now, and he is a Presidential
appointee. That continues the trend. I think it would be good to have
the Senate involved.
What does this mean, very briefly? It means we can go to the world
and say we have a procedure in place at Guantanamo Bay that will
determine who an enemy combatant is and that these procedures are
blessed by the courts, they are blessed by the Congress, and they are
blessed by the administration. It would be good to be able to say, as a
nation, that all three branches of Government--the executive branch,
the judicial branch and the legislative branch--have all agreed on
procedures to take enemy combatants off the battlefield and give those
people who are suspected of being enemy combatants due process rights
consistent with whom we are as a people and give enough flexibility to
the military to make sure these people do not go back to the fight.
The truth is, several hundred have been captured and released. The
process is working very well at Guantanamo Bay. I compliment the
administration for setting up a combat status review process that has
been changed a couple of times. It is eminently fair. This amendment
blessed that process. It has two small changes. It would strengthen the
process, and it would end this never-ending court debate about what to
do.
The courts have been telling us, Congress, if you got involved, it
would help us figure out what we should be doing. Justice Scalia, as
Senator McCain indicated, screamed out, in a dissenting opinion
granting habeas corpus rights to enemy combatants, that the courts are
ill-equipped to run this war. Now, with this amendment, the Congress
will bless what the administration has put in place, making small
changes which will strengthen the administration's hands in the court.
The courts will feel more comfortable ratifying this process, and we
will be a united nation, a united front in all three branches of
Government when it comes to dealing with enemy combatants.
It is very important that anyone who engages in unlawful enemy
combatant activities against this Nation be taken off the battlefield
and kept off the battlefield as long as necessary to make us safe. They
deserve a certain amount of process because whom we are as a people and
the process we are blessing gives them very adequate due process
rights.
This amendment strengthens those rights. They deserve to be taken off
the battlefield, and people engaging in unlawful enemy combatant
activities should be taken off the battlefield as long as necessary to
protect our country.
Second, they deserve to be prosecuted in some instances. There are
three things we are trying to accomplish. We are trying to standardize
interrogation techniques to protect our own troops and have a one-stop
shopping for what the rules are. That is through Senator McCain's
amendment. We are trying to keep the moral high ground, as expressed by
the President,
[[Page S11074]]
to say we are not torturing people, we are not going to treat people
inhumanely because that weakens us. The bottom line, it is not the
right way to get good information and weakens us. The more
standardization the better.
When it comes time to keep people off the battlefield, with this
amendment we are stronger as a nation because Congress will have
blessed what the administration has done.
In that regard, I offer this amendment as a way to bring clarity to a
situation that is very important in the war on terror. We need to keep
enemy combatants, once they have been lawfully determined to be an
enemy combatant, off the battlefield as long as it takes to secure this
Nation. This amendment helps to do that.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. STEVENS. Madam President, I am informed there are objections from
Members of the Committee on Armed Services to this amendment. I urge
them to come over and defend their position.
This Senator was prepared to accept the amendment. It may be subject
to a point of order. I am not sure. I do believe there are detainee
items in the House-passed bills that would be germane under the
circumstances, but it is another example, I might say, of the problems
we get into when items that pertain to legislation end up on
appropriations bills.
We are not really prepared to debate the amendment. I urge Members of
the Committee on Armed Services who wish to do so to debate this
amendment.
My only question is--I know the Senator is an extremely good
attorney--has the phrase ``unlawful enemy combatant'' been used in any
other portion of our laws of the Geneva Conventions?
Mr. GRAHAM. Yes. It is in the Geneva Conventions. There is a section
about unlawful enemy combatant, illegal enemy combatant.
The conventions are set up to confer status on signatories and to
make sure that people who engage in unlawful activity are not covered.
The people who wear civilian clothes that go in the population and
engage in terrorist activity have never been covered under the
convention. Under the convention, that is the definition they are
giving.
The administration has used the term that has been legitimized by the
courts for quite a while now in international law. In the review
process at Guantanamo Bay, they will take the person off the
battlefield. They have to make a case whether they fit the definition
of enemy combatant. Each year they can challenge the designation. What
we are doing in this amendment is basically blessing that procedure,
requiring two more things.
One, the idea that the Senate will confirm the person who will
ultimately have the release authority or the appeal authority to enemy
combatant status; and two, prohibit the use of a single statement to
hold somebody as an enemy combatant who was in a foreign government's
hands, unless we can show the statement was not a result of torture.
We have learned from our experience at Guantanamo Bay that would be a
good change.
Mr. McCAIN. Will the Senator yield?
Mr. GRAHAM. Yes.
Mr. McCAIN. Does the Senator know how many detainees have been
brought to trial in Guantanamo Bay?
Mr. GRAHAM. Of all the people we have detained--over 500--no one has
been brought to trial yet. Two will be brought to trial in November.
One of the reasons that we cannot bring people to trial is because
the Federal courts have issued a stay on prosecutions that has now been
lifted. We are moving forward.
There is another Supreme Court case dealing with the due process
rights of determining whether a person is an enemy combatant. The
procedure is in place at Guantanamo Bay and has been generally blessed
by the Court because they have been stayed on those proceedings, too.
Mr. McCAIN. If the Senator will yield, aren't there two different
Court decisions now that are in direct contravention of each other as
to the disposition of these cases?
Mr. GRAHAM. Yes there is.
Mr. McCAIN. Could the Senator describe those.
Mr. GRAHAM. There was a stay by Federal district judge, staying
military commission trials. The DC Circuit Court of Appeals overrode
the lower court. That has gone up to the Supreme Court right now. I am
confident the Supreme Court will legitimize military commissions, maybe
with some changes.
This amendment deals with detaining somebody who is not being
prosecuted yet, who may be prosecuted, but keeping them off the
battlefield because we have determined they are an unlawful enemy
combatant. The review process to make that determination I feel very
comfortable with. And there are some small changes in the amendment.
The courts have told us this is an area where Congress needs to act.
The courts have many cases, not just one, challenging the Guantanamo
Bay procedures and determining unlawful enemy combatant. Justice Scalia
said in the dissenting opinion, if this were an area where Congress
spoke, the courts would welcome their involvement.
Mr. McCAIN. If the Senator will yield further for a question, I guess
my fundamental question is, aren't things in one heck of a mess?
Mr. GRAHAM. The legal status of military commissions and the combat
status review process are in legal limbo unnecessarily.
If you read these opinions, they are a hodgepodge of different
dissenting and concurring opinions. The one common theme is the courts
are suggesting to Congress we get involved.
When it comes to combat status review, I am totally convinced, after
talking with now Chief Justice Roberts, this would be an area where the
courts would welcome congressional involvement. He said to me in the
hearings that the President or the executive branch is at its strongest
when they have the implied or express support of the Congress.
So the purpose of this amendment, if I may say very briefly, is for
Congress to legitimize what is going on at Guantanamo Bay about
determining enemy combatant status, legitimizing that review process by
making some changes. If we would do that, I am convinced the courts
would welcome that involvement and a lot of this litigation would end
overnight.
Mr. STEVENS. If the Senator will yield, has this matter been
discussed in the Committee on Armed Services?
Mr. GRAHAM. I have discussed it with one of the cosponsors of the
amendment, Senator Warner, yes. I have been to Guantanamo Bay with
Senator Warner and others, where we have talked about this. Yes, sir, I
am very sure that the chairman knows about this because he is a
cosponsor of the amendment.
Mr. STEVENS. I say to the Senator, that is another question. We were
prepared to accept the amendment because--I don't claim expertise in
this area; it is not within our jurisdiction. It is legislation on an
appropriations bill, but I don't intend to raise an objection to it.
Has this been discussed, on a bipartisan basis, in the committee?
Mr. GRAHAM. I was under the assumption the amendment was going to be
accepted, as you were, and now I have been told there are some concerns
from the minority on the committee. I have talked extensively about
these series of amendments. They all work in conjunction with each
other. Senator McCain's amendment standardized interrogation techniques
and what we as a people want to live by--we do not want to torture
people. We are not going to torture people.
My amendment standardizes and makes small changes to the
determination of who is an enemy combatant and who is not, because you
keep people at Guantanamo Bay indefinitely under this procedure. It
needs to be blessed by Congress. The third thing we do, later on, is
deal with military commissions, actually how you try these people.
So I was under the understanding, I say to the Senator, that not only
was Senator Warner a cosponsor of these two amendments, but that
everybody was on board. The point here is to give the courts some
guidance to bring about legal certainty where there is a legal mass, as
Senator McCain indicated. So I don't know why anybody is objecting.
[[Page S11075]]
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Madam President, I believe the Senator's amendment has
real merit. I find no objection to it. It has been conveyed to me by
the administration. We still have a very small difference--it sounds
like a big difference--on the McCain amendment. But we have no
difference on this amendment. We are prepared to accept it, unless
someone comes over here and finds a way to articulate an objection.
Mr. McCAIN. Madam President, who has the floor?
The PRESIDING OFFICER. The Senator from Alaska has the floor.
Mr. STEVENS. Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, first, I thank the Senator from Alaska
for his cooperation. I thank the Senator from South Carolina for his
unique and very important perspective on this issue. But I also point
out it is very unfortunate--very unfortunate--the Senator from South
Carolina has to put this on an appropriations bill. I do not want to
get off the subject too much, but there is something wrong with our
process here that I have to, for my amendment, find some narrow
germaneness in order to get around my commitment to not authorize on an
appropriations bill. Technically, I am not authorizing on an
appropriations bill.
It is very unfortunate the Senator from South Carolina has to
authorize on an appropriations bill. There may be some objection from
someone in the minority. There may be some question. That is because we
are not going through an orderly process. This should have been as an
amendment on the authorization bill, and that should have been taken
up. If someone did not like it, they could have voted to take it out.
Now we are in a process where the Senator from South Carolina has to
put it in.
Our system here is broken, and we need to properly authorize. I
certainly am not blaming the Senator from Alaska. He has his
responsibility to get the appropriations bill done. But there is
something wrong when we are in a war--in a war; Americans' lives are on
the line as we speak--and somehow we do not have room in our agenda to
authorize the training, the equipping, the benefits, the pay, all of
the things that go with an authorization bill, including the amendment
of the Senator from Carolina.
A lot of us have repeatedly decried that this process of legislating
is so badly broken today that we cannot even take care of the men and
women in the military in an orderly fashion. It cries out for fixing. I
would hope at some point we, as a body, would fix this system so we
authorize before we appropriate funds. Again, this is meant as no
criticism of the Senator from Alaska. He is playing the hand he is
dealt. But there is something very badly wrong when we are in a war and
somehow we cannot find time in our agenda and ought to authorize the
much-needed pay raises, equipment, training, and all of the other
things that go along with the authorization of our Nation's defenses.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, first, I thank the Senator from Arizona
and the Senator from South Carolina for bringing focus to this issue.
They are approaching this issue in different ways, but it is a matter
of enormous importance and consequence. Both Senators, as members of
the Armed Services Committee, remember the good deal of thought, work,
and consideration given this subject matter by the Armed Services
Committee under the guidance of Senator Warner and Senator Levin.
Amendment No. 1977
Madam President, now is time for action. That is why I rise to speak
in strong support of the McCain amendment and urge our colleagues to
understand it and to give it strong support as well.
As we know, nearly 2 years ago, American soldiers at Abu Ghraib were
struggling to figure out how to handle the hundreds of detainees who
were pouring into that facility. They had no guidance. They had no
directions to regulate that treatment. In the absence of that guidance,
their treatment of detainees deteriorated into cruel and inhumane and
degrading treatment.
They documented their cruelty, and the images are still horrifying--
an Iraqi prisoner in a dark hood and cape, standing on a cardboard box
with electrodes attached to his body; naked men forced to simulate sex
acts on each other; the corpse of a man who had been beaten to death,
lying in ice, next to soldiers smiling and giving a ``thumbs up'' sign;
a pool of blood from the wounds of a naked, defenseless prisoner
attacked by a military dog.
The reports of widespread abuse by U.S. personnel was initially met
with disbelief and then incomprehension. But the reports are too
numerous to ignore. We had reports of detainees in Afghanistan shackled
to the floor, left out in the elements to freeze to death. We have had
reports of detainees in Guantanamo who were subjected to sexual
humiliation.
Human Rights Watch recently released a report based on the statements
of three soldiers, one officer and two noncommissioned officers, in the
82nd Airborne who described how their battalions routinely used
physical and mental torture as means of intelligence gathering and
stress relief--torture as a sport.
They stand in sharp contrast to the values America has always stood
for: our belief in the dignity and worth of all people, our unequivocal
stance against torture and abuse, our commitment to the rule of law.
The images horrified us and severely damaged our reputation in the
Middle East and around the world.
Instead of taking responsibility for what happened, the generals and
senior administration officials tried to minimize the abuse as the work
of ``a few bad apples''--all conveniently lower rank soldiers--in a
desperate effort to emphasize the role of senior military officials in
exposing the scandal and insulate the civilian leadership from
responsibility for changing the rules.
It is clear what the results of those changes were. CPT Ian Fishback,
a West Point graduate and officer in the 82nd Airborne, wrote: Despite
my efforts, I have been unable to get clear, consistent answers from my
leadership about what constitutes lawful and humane treatment of
detainees. I am certain that this confusion contributed to a wide range
of abuses including death threats, beatings, broken bones, murder,
exposure to elements, extreme forced physical exertion, hostage taking,
stripping, sleep deprivation and degrading treatment.
For nearly 2\1/2\ years--from August 2002 until December 2004--the
executive branch of our Government operated under the assumption that
it was not bound by the law that prohibits torture. The Office of Legal
Counsel promulgated an official opinion stating that the President and
everyone acting under his Commander-in-Chief authority was free to
ignore this law. It states:
Any effort to apply [the anti-torture statute] in a manner
that interferes with the . . . detention and interrogation of
enemy combatants . . . would be unconstitutional.
This opinion was adopted and implemented by the CIA and the
Department of Defense. Effectively, what it was saying was that for
anybody who was operating under the DOD, if the purpose of their
torture was to get information, then it was basically all right. If the
purpose of the torture was to bring harm, then it would be illegal. But
that decision by the Office of Legal Counsel in the Department of
Justice effectively said: The school is out. People can do anything
they want to with any detainee. And that was the rule for 2\1/2\ years.
It is called the Bybee memorandum. We have had extensive hearings on
that in both the Armed Services Committee and the Judiciary Committee.
This opinion was adopted and implemented by the CIA and the
Department of Defense. Harold Koh, a leading scholar of international
law and dean of Yale Law School, who served in both the Reagan and
Clinton administrations, called it ``the most clearly legally erroneous
opinion'' he has ever read. That is in reference to the Bybee
memorandum that was requested by the CIA and the Department of Defense,
through the Attorney General, from the Office of Legal Counsel, to give
them a memorandum to effectively permit wholesale torture. They
received that memo, and they used it
[[Page S11076]]
to gut our long-standing laws. That Bybee memo was the law of the land,
effectively, in the CIA and the Department of Defense for 2\1/2\ years.
We saw what the results were. The McCain amendment would make sure that
will not happen again.
Our political leaders made deliberate decisions to throw out the
well-established legal framework that has long made America the gold
standard for human rights throughout the world. The administration left
our soldiers, case officers, and intelligence agents in a fog of
ambiguity. They were told to ``take the gloves off'' without knowing
what the limits were, and the consequences were foreseeable.
In rewriting our human rights laws, the administration consistently
overruled the objections of experienced military personnel and
diplomats. The Secretary of State, Colin Powell, warned the White
House:
It will reverse over a century of U.S. policy and practice
in supporting the Geneva Conventions and undermine the
protections of the law of war for our [own] troops.
Senior Defense officials were warned that changing the rules could
lead to so-called ``force drift'', in which, without clearer guidance,
the level of force applied to an uncooperative detainee might well
result in torture.
William Taft, the State Department Legal Advisor in President Bush's
first term, recently called it a source of amazement and disappointment
that the Justice Department severely limited the applicability of the
Geneva Conventions to the detainees. In an address at American
University, he said the decision to do so:
unhinged those responsible for the treatment of the detainees
. . . from the legal guidelines for interrogation . . .
embodied in the Army Field Manual for decades. Set adrift in
uncharted waters and under pressure from their leaders to
develop information on the plans and practices of al Qaeda,
it was predictable that those managing the interrogation
would eventually go too far.
And they did.
The Judge Advocates General echoed Mr. Taft's concerns. On July 14,
2005, the JAGs appeared before the Senate Armed Services Committee's
Subcommittee on Personnel. In response to questioning by my friend
Senator Graham, the witnesses acknowledged that the Justice
Department's policy embodied in the Bybee torture memorandum's
definition of torture was a violation of international and domestic law
and alarmed the Judge Advocates General who reviewed it.
Their alarm was well founded because their concerns were overruled by
General Counsel William Haynes, who issued the Defense Department's
April 2003 Working Group Report. The report twisted and diluted the
definition of ``torture,'' claimed that military personnel who commit
torture may invoke the defenses of ``necessity'' and ``superior
orders,'' and advised military personnel that they are not obligated to
comply with the Federal prohibition on torture.
Senator Graham himself accurately assessed the impact of the civilian
authorities when he told the JAG officers at the hearing: I think it is
fair to say that the Department of Defense was secondary to the
Department of Justice in a political sense, and that was our problem.
If they had listened from the outset, we wouldn't have had a lot of the
problems that we have had to deal with in the past.
The President is not an emperor or a king. His administration is not
above the law or accountability, and he is certainly not infallible.
The single greatest criticism of this administration's detention and
interrogation policies is that it failed to respect history, the
collective wisdom of our career military and State Department
officials, and that it holds far too expansive a view of executive
authority. In short, the White House suffers from the arrogance of
thinking they knew best and abandoning the long-standing rules.
As Captain Fishback wrote:
We owe our soldiers better than this. Give them a clear
standard that is in accordance with the bedrock principles of
our nation.
We are America, and our actions should be held to a higher
standard, the ideals expressed in documents such as the
Declaration of Independence and the Constitution.
The McCain amendment takes a strong step forward to giving our troops
that standard. I hope it is supported. Madam President, I ask unanimous
consent that Captain Fishback's letter, which was published in the
Washington Post, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Dear Senator McCain: I am a graduate of West Point
currently serving as a Captain in the U.S. Army Infantry. I
have served two combat tours with the 82nd Airborne Division,
one each in Afghanistan and Iraq. While I served in the
Global War on Terror, the actions and statements of my
leadership led me to believe that United States policy did
not require application of the Geneva Conventions in
Afghanistan or Iraq. On 7 May 2004, Secretary of Defense
Rumsfeld's testimony that the United States followed the
Geneva Conventions in Iraq and the ``spirit'' of the Geneva
Conventions in Afghanistan prompted me to begin an approach
for clarification. For 17 months, I tried to determine what
specific standards governed the treatment of detainees by
consulting my chain of command through battalion commander,
multiple JAG lawyers, multiple Democrat and Republican
Congressmen and their aides, the Ft. Bragg Inspector
General's office, multiple government reports, the Secretary
of the Army and multiple general officers, a professional
interrogator at Guantanamo Bay, the deputy head of the
department at West Point responsible for teaching Just War
Theory and Law of Land Warfare, and numerous peers who I
regard as honorable and intelligent men.
Instead of resolving my concerns, the approach for
clarification process leaves me deeply troubled. Despite my
efforts, I have been unable to get clear, consistent answers
from my leadership about what constitutes lawful and humane
treatment of detainees. I certain that this confusion
contributed to a wide range of abuses including death
threats, beatings, broken bones, murder, exposure to
elements, extreme forced physical exertion, hostage-taking,
stripping, sleep deprivation and degrading treatment. I and
troops under my command witnessed some of these abuses in
both Afghanistan and Iraq.
This is a tragedy. I can remember, as a cadet at West
Point, resolving to ensure that my men would never commit a
dishonorable act; that I would protect them from that type of
burden. It absolutely breaks my heart that I have failed some
of them in this regard.
That is in the past and there is nothing we can do about it
now. But, we can learn from our mistakes and ensure that this
does not happen again. Take a major step in that direction;
eliminate the confusion. My approach for clarification
provides clear evidence that confusion over standards was a
major contributor to the prisoner abuse. We owe our soldiers
better than this. Give them a clear standard that is in
accordance with the bedrock principles of our nation.
Some do not see the need for this work. Some argue that
since our actions are not as horrifying as Al Qaeda's, we
should not be concerned. When did Al Qaeda become any type of
standard by which we measure the morality of the United
States? We are America, and our actions should be held to a
higher standard, the ideals expressed in documents such as
the Declaration of Independence and the Constitution.
Others argue that clear standards will limit the
President's ability to wage the War on Terror. Since clear
standards only limit interrogation techniques, it is
reasonable for me to assume that supporters of this argument
desire to use coercion to acquire information from detainees.
This is morally inconsistent with the Constitution and
justice in war. It is unacceptable.
Both of these arguments stem from the larger question, the
most important question that this generation will answer. Do
we sacrifice our ideals in order to preserve security?
Terrorism inspires fear and suppresses ideals like freedom
and individual rights. Overcoming the fear posed by terrorist
threats is a tremendous test of our courage. Will we confront
danger and adversity in order to preserve our ideals, or will
our courage and commitment to individual rights wither at the
prospect of sacrifice? My response is simple. If we abandon
our ideals in the face of adversity and aggression, then
those ideals were never really in our possession. I would
rather die fighting than give up even the smallest part of
the idea that is ``America.''
Once again, I strongly urge you to do justice to your men
and women in uniform. Give them clear standards of conduct
that reflect the ideals they risk their lives for.
With the Utmost Respect,
Capt. Ian Fishback,
82nd Airborne Division,
Fort Bragg, North Carolina.
Mr. KENNEDY. I suggest the absence of a quorum.
The PRESIDING OFFICER. Will the Senator withhold?
Mr. KENNEDY. I withhold my suggestion.
[...]
Mr. WARNER.[...]
Mr. President, I endorse strongly the McCain amendment. I have been a
cosponsor from the beginning. I have looked into this situation. At one
time when I was privileged to be Secretary of the Navy when the war in
Vietnam came to an end, I dealt extensively with the prisoner issue and
their families in that tragic era of our history. I have had some
insight into this situation which enables me to give the strongest
possible endorsement to this amendment by the Senator from Arizona, a
very respected member of this Senate and a man with an extraordinary
record in the armed services of the United States.
The McCain amendment provides us with the opportunity to better
ensure our Nation's military does not repeat the errors, faults and
misdeeds we have seen occur at military detention facilities overseas
as we fight this war on global terrorism.
As General Abizaid told us last week this will be a long war against
terrorists and our Armed Forces must have clear and understandable
standards.
The McCain amendment has two parts of equal vital importance, both
critical. The first establishes clear rules for the conduct of our
soldiers, sailors, airmen, and marines involved in interrogation
operations. It does not add new approaches or techniques, it merely
takes Army doctrine which is our clearest guidance on conduct of
interrogations and makes it our military standard as set forth in the
Army Manual.
Clearly the Constitution gives Congress a role to play in the
creation of rules pertaining to the treatment of detainees. Article 1,
section 8 provides that the Congress shall have power to make rules
concerning captures on land and water, and also to make rules for the
government and regulation of the land and naval forces. Rules for
treatment and interrogation of detainees clearly falls within this
authority given to Congress by the Constitution.
The second part of the McCain amendment speaks to American values. It
tells our soldiers, sailors, airman, and marines, our allies, and the
rest of the world that the cruel, inhuman, and degrading treatment or
punishment are not part of the American character.
[[Page S11092]]
Our standards against cruel, inhuman, and degrading treatment or
punishment are deeply rooted in our Bill of Rights. Ultimately it is
our uniquely American character that must be embedded in our American
way or war.
Mr. LEVIN. I ask unanimous consent I be listed as a cosponsor of the
McCain amendment relative to the treatment of detainees.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, I support the McCain amendment on
interrogation standards because it protects our troops. Major General
Fay, in his investigation into the role of military intelligence in the
prisoner abuses at Abu Ghraib, found that DoD's development of multiple
policies on interrogation operations for use in different theaters or
operations confused Army and civilian interrogators at Abu Ghraib.''
This confusion over what standards applied contributed to the horrific
abuses of detainees. This confusion has put our troops at risk of being
subjected to abusive treatment should they ever be captured.
Senator McCain's amendment would protect our troops by establishing a
single, uniform standard for interrogations. This is consistent with
the recommendations of Major General Fay. Senator McCain's amendment
also requires that detainees in U.S. custody shall not be subjected to
cruel, inhuman, and degrading treatment or punishment. This is
consistent with the high standards to which our military is trained,
with how we expect our soldiers to be treated if they fall into enemy
custody, with our international obligations, and with our cherished
values as Americans. I urge my colleagues to support the McCain
amendment.
[...]
Amendment No. 1977
Mr. McCAIN. Mr. President, if I can ask the indulgence of my friend
from Rhode Island for 1 minute, I would like to read a statement into
the Record.
It reads:
GEN Colin L. Powell, USA (Retired),
Alexandria, VA, October 5, 2005.
Dear Senator McCain: I have read your proposed amendment to
the Defense Appropriations Bill concerning the use of the
Army Field Manual as the definitive guidance for the conduct
of our troops with respect to detainees. I have also studied
your impressive statement introducing the amendment.
I fully support this amendment. Further, I align myself
with the letter written to you by General Shalikashivili and
a distinguished group of senior officers in support of the
amendment.
Our troops need to hear from the Congress, which has an
obligation to speak to such matters under Article I, Section
8 of the Constitution. I also believe the world will note
that America is making a clear statement with respect to the
expected future behavior of our soldiers. Such a reaction
will help deal with the terrible public diplomacy crisis
created by Abu Ghraib.
Sincerely,
Colin Powell.
I hope my colleagues will pay very careful attention to our former
Secretary of State and Chairman of the Joint Chiefs of Staff. I do not
have to tell any of my colleagues of his outstanding and superb record
of service to this Nation and the depth of his knowledge as it pertains
to this and many other national security issues.
I am very grateful he has come forward with this statement, and I
hope my colleagues will pay attention to it.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. WARNER. Mr. President, if the Senator will yield, I want to
commend my long-time friend, Senator McCain, for the initiative he has
taken. It has been a privilege for me and many others to join him in
this effort. I think what he stated here should be taken into
consideration by every Senator tonight as they cast his or her vote.
[...]
Mr. SESSIONS. I thank the Chair.
Mr. President, we in this country have the highest standards of
conduct in our legal system, and our military has the highest standards
of behavior as they deal with prisoners with whom they come in contact.
Have problems occurred? Yes, they have. Has that occurred in every
war we have ever been involved in, that any nation has ever been
involved in? Unfortunately so.
But I want to take a few minutes now to express my deep feeling that
we do not have a program of systematic abuse of prisoners going on by
our U.S. military; that they are maintaining the discipline of our
troops; and that
[[Page S11103]]
they are, day after day, subjecting themselves to personal risk--not
firing randomly or rapidly but hesitating to make sure innocents are
not injured, and have complied with the most extensive set of
requirements dealing with prisoners that any nation and army has ever
had in the history of the world. Our military has taken disciplinary
action time and time and time again if anybody violates those
standards.
We should all remember that event that made a good bit of news when a
fine Army colonel was in a combat area taking fire and captured an
enemy, and to save the lives of his troops, as his soldiers later
testified, he fired a gun beside the head of a captured prisoner in
order to frighten him and see if he would provide information that
might be of value in saving the lives of the American soldiers he
commanded. He was kicked out of the Army for it. The news media did not
discover this occurrence. The military did and acted upon it.
We all heard about Abu Ghraib, and the sick and unacceptable behavior
that went on in that prison. But I remember distinctly that within one
day of the information being brought to the commanders of our soldiers
in Iraq, an investigation was commenced. Within 3 days, they had made a
public announcement to the world that there had been allegations of
abuse in Abu Ghraib and that an investigation was ongoing. And it was
months--2 or 3 months--later that these pictures came out.
Why do I say that? I say that because the military took the
allegations seriously from the beginning. They were not reacting to the
release of pictures that embarrassed them. Rather, they immediately
initiated the investigation about what happened on this midnight shift
by these soldiers who lost discipline in Abu Ghraib and abused
prisoners in a way that is unacceptable to us.
Those guards, have all been tried and convicted. The Wall Street
Journal, just a couple of days ago, published an op-ed entitled ``The
`Torture Narrative' Unravels.'' It noted that the trial and conviction
of PFC Lynndie England, who was sentenced as the ``leash girl'' for her
activities there, ``was relegated to the innards of newspapers.'' That
did not make any big news--the Army's professional, proper response to
a lack of discipline.
The op-ed goes on to note that ``by one of the greatest leaps of
logic ever seriously entertained in our national discourse, those
memos''--that were written by the Department of Justice in analyzing
what the President's proper powers were with regard to the detaining of
enemy soldiers, who are not lawful combatants--that it was ``one of the
greatest leaps of logic ever seriously entertained in our national
discourse'' to say that memos as part of a discussion in the Department
of Justice of the United States had anything to do with those soldiers
in Iraq carrying out that abuse.
But that is what was alleged. It was during a campaign season, I
understand, and it resulted in calls for the resignation of Secretary
Rumsfeld and, I guess, to call for the removal of the President of the
United States before the election.
We had one Senator, whose name is known all over the world, say:
``Saddam's torture chambers reopened under new management, U.S.
management.''
I submit that was a slander on our troops and our soldiers who are in
harm's way because we sent them there. We asked them to go there to
defend the legitimate national interests of our country. We put them at
risk, and when we say things about them that are not true, to suggest
to the world that we have systemic abuse in our military. Those charges
place them at greater risk. It makes it harder for us to negotiate
peace treaties with people who are suspicious of us. They believe these
things.
When we have Members of the House and the Senate and political
leaders in our country making irresponsible and unfounded charges
against the military, that they are systematically abusing prisoners,
it is wrong. It ought to stop, and I feel strongly about that.
Oh, we remember those comments, when all the pictures of the abuses
were leaked and were made available. They said higher-ups were
involved, it went all the way to the Secretary of Defense, and that
these people were using interrogation techniques according to some memo
written somewhere, and that it was all part of poor leadership and
mismanagement, and our military discipline was not being maintained.
Remember those comments? It could not be just the lower-ranking
soldiers; ``why don't you prosecute the higher ups?'' We heard Senators
saying that time and again.
It just was not so. This is what the Wall Street Journal article
said. They quote the judge when PFC Lynndie England was before the
court. The judge asked her this: ``You feel that by doing these things
you were setting conditions for interrogations?''
Remember that allegation, that the abuses of these prisoners were
carried out to set them up, to prime them to be interrogated by the
Army interrogators or other interrogators, and that this was part of a
systemic plan to soften up the prisoners so they could be interrogated?
So the judge asked her under oath--she could use this as a defense:
You feel that by doing these things you were setting
conditions for interrogations?
Her answer:
No, sir.
So the judge responded:
So this was just a way to embarrass them?
Referring to the prisoners.
And she replied:
Yes, sir.
Or consider the testimony of SP Jeremy C. Sivits. He pled guilty,
too, as I recall. This is what Sivits said about their behavior in that
prison:
Our command would have slammed us. They believe in doing
the right thing. If they saw what was going on, there would
be hell to pay.
I will say right now, every one of these Senators who has been
complaining that this misbehavior in the prison was a direct result of
some sort of approved interrogation techniques by the Secretary of
Defense or the President or the Department of Justice, and they were
overruling JAG officers somewhere in doing these things, is not so.
I was a prosecutor for quite a long time. I am telling you, when you
have somebody being prosecuted and you are accusing them of a crime--I
know the chairman has been a prosecutor--and they have an excuse or
defense, don't they say it? They say: It wasn't my fault; they told me
to do it; I was following orders. These people did not say that. They
took their medicine, they were tried and convicted or pled guilty, and
many are serving a very long sentence in jail for that misbehavior.
It embarrassed the soldiers. I had soldiers tell me: This is an
embarrassment to me. We worked our hearts out to make Iraq a better
place, and this was an embarrassment to us. It undermined our ability
to do our job.
They were angry with these people who misbehaved. They were glad to
see them prosecuted. It galls me that we have people suggesting this
was the policy of our Army. It is not correct.
We had the complaints about Guantanamo Bay, that there were
systematic abuses going on down there. By the way, we have had over 25
hearings in this Senate and in the House dealing with prisoner abuse.
We have had more hearings on this issue than we have had on how to win
the war. In addition to that, there have been 10 major reviews,
assessments, inspections, and investigations. I mean major reviews. We
had those generals and admirals who conducted the reviews before our
committees. We interviewed them, and we made them explain their
reports. Mr. President, 16,000 pages of documents have been delivered
to the Congress, and 1,700 different interviews were conducted.
Detentions, operations, enhancement, oversight training--all those
issues were brought up. There are 390 criminal investigations completed
or ongoing.
People who are responsible for misbehavior are being held to account.
If I thought our military was not responding well, I would be very
concerned. I have seen law officers involved with a bad criminal, and
that person runs and they chase him and have to wrestle him down. They
are so pumped up sometimes they do more to that person they have
apprehended than they should. Maybe they beat them. You have to contain
the felon, but sometimes you go too far. I have seen abuse
[[Page S11104]]
cases filed against them. It breaks your heart sometimes because you
know the police officers lost control in tough conditions and went too
far, but they have to be disciplined because we do not allow that in
our country.
The same is true for our soldiers. It is easy for us to talk about
what it is like being out in combat, having your life at risk. Some of
us might lose some of our discipline, too. We don't excuse it. We
understand it.
The activities at Guantanamo have been proven to involve only two or
three incidents that have been indefensible, and action has been taken
concerning those.
Also, we have had tremendous evidence of how good the conditions are
there, how well they are being fed, their full rights to conduct their
religious expression openly and freely, and the other things that have
gone on.
Now we have a letter pop up from a Captain Fishback who has made
allegations concerning the 82nd Airborne. I don't know the full details
of it. I will quote a small portion. We heard all these complaints that
say that he has submitted proof of systemic abuses in the prisons. This
is a New York Times article, and the New York Times has made a full-
time effort to try to root out and expose and publicize any misbehavior
that has occurred there. They have gone too far, sometimes, in my
opinion. But this is what the New York Times says:
Captain Fishback said he had seen at least one
interrogation where prisoners were being abused.
I don't know what ``abused'' means. I am a former prosecutor. What
does ``abused'' mean? Did they shake him? Did they respond to being
spit on by prisoners, as many of our guards have been? Did they injure
him in some way? I think if they were beaten, he would have said they
were beaten. He didn't say that. He used a far more general term, that
they were ``abused.''
Then he goes on to say that he was told about other ill-treatment of
detainees by his sergeant. ``Ill-treatment,'' what is that? He didn't
say they were beaten, shot, killed, wounded, or tortured.
An investigation is being undertaken of these allegations. It is odd,
though, when asked to name the sergeants and the people who conducted
the activity so they could follow up and investigate and make sure
people who did wrong were disciplined, Captain Fishback refused to
disclose the names of the sergeants, one who left the Army and the
other who has been reassigned because he did not want to reveal his
identity.
It is hard for the Army to investigate if the guy making the
complaint, telling Human Rights Watch and the New York Times all these
points, will not tell the Army what actually occurred.
I am dubious, for complex technical reasons, of the amendment that
has been offered today and which we will vote on later tonight because
I am not sure it makes good legal sense to have a law that is a moving
law, it seems to me, that complies with the Army regulations. Army
regulation is going to change, and you have a law and the law is going
to change while the regulation changes? A statute is supposed to be
permanent. As a lawyer, I am troubled by that. I don't think this is a
necessary action. I don't intend to vote for the amendment for that
reason and a number of other complex reasons.
I thank the Chair and yield the floor.
[...]
Mr. McCAIN. Mr. President, I have had to come to this Chamber many
times and have had the privilege of doing so since 1987 when I entered
this body. I never thought I would have to come to the Senate floor to
defend the integrity and the reputation of a brave young American who
has put his life on the line for his country defending the freedom of
Afghan and Iraqi people.
The remarks of the Senator from Alabama concerning his allegations of
abuse and his disparagement of his word and his conduct is
unacceptable. This young man, Captain Fishback, served in Afghanistan
and Iraq, is a member of the 82nd Airborne, was highly decorated, and
had the courage to come forward because of his deep-seated dedication
to this Nation and his desire to see that we do the right thing in the
treatment of prisoners of war.
He says very eloquently:
. . . Do we sacrifice our ideals in order to preserve
security? Terrorism inspires fear and suppresses ideals like
freedom and individual rights. Overcoming the fear posed by
terrorist threats is a tremendous test of our courage . . .
Captain Fishback is a noble, brave young American. He does not
deserve to be disparaged on the Senate floor by any Senator, and the
Senator from Alabama owes him an abject and deep apology.
I yield back the remainder of my time.
[...]
Mr. SESSIONS. Mr. President, the Senator from Arizona has asked that
I apologize for disparaging Captain Fishback in my earlier remarks. I
do not believe I did so in any way. The Captain has a distinguished
record in the military. Nobody questions that.
I did note, however, that his allegations contained in the New York
Times article said that he had:
. . . seen at least one interrogation where prisoners were
being abused and was told about other ill treatment of
detainees by his sergeants.
In my statement I simply raised the question of what ``abuse'' meant
precisely, and whether, by implication, if this was a basis for a
charge, as the newspapers were making and others were, that there was
systematic abuse of prisoners--which I do not believe to be the case.
I did note that, when asked to name the individual sergeants who
admitted they had been misbehaving or that bad activities had occurred,
he refused to give those names.
If something is in error about that--I simply quoted from the New
York Times--I would be pleased to apologize. But I think those in this
Senate who have accused the up-and-down members of the chain of command
of the U.S. Army, the U.S. Marines, and Department of Defense of
promoting policies to abuse prisoners, they ought to think about
whether they should apologize. I believe that accusation is false.
I thank the chairman and I yield the floor.
[...]
Amendment No. 1977
The PRESIDING OFFICER. There are now 6 minutes evenly divided before
a vote with respect to the McCain amendment No. 1977.
Who yields time?
The Senator from Arizona.
Mr. McCAIN. Mr. President, war is an awful enterprise and I know
that. I do not think I am naive about how severe are the wages of war
and how terrible are the things that must be done to wage it
successfully. It is a grim, dark business, and no matter how noble the
cause for which it is fought, no matter how valued their service, many
veterans spend much of their subsequent lives trying to forget not only
what was done to them and their comrades but some of what had to be
done by their hand to prevail.
I do not mourn the loss of any terrorist's life, nor do I care if in
the course of serving their noble cause they suffered great harm. They
have pledged their lives to the intentional destruction of innocent
lives, and they have earned their terrible punishment in this life and
the next.
What I do regret, what I do mourn, and what I do care very much about
is what we lose, what we, the American service man and woman, and the
great Nation they defend at the risk of their lives, when by official
policy or by official negligence we allow, confuse, or encourage our
soldiers to forget that the best sense of ourselves, that which is our
greatest strength, that we are different and better than our enemies,
that we fight for an idea, not a tribe, not a land, not a king, not a
twisted interpretation of an ancient religion but for an idea that all
men are created equal and endowed by their Creator with inalienable
rights.
I have been asked before where did the brave men I was privileged to
serve with in Vietnam draw the strength to resist to the best of their
ability the cruelties inflicted on them by our enemies? Well, they drew
strength from our faith in each other, from our faith in God, and from
our faith in our country.
Our enemies did not adhere to the Geneva Convention. Many of my
comrades were subjected to very cruel, very inhumane, and degrading
treatment, a few of them even unto death. But every single one of us
knew and took great strength from the belief that we were different
from our enemies, that we were better than them, that if the roles were
reversed, we would not disgrace ourselves by committing or
countenancing such mistreatment of them. That faith was indispensable
not only to our survival but to our attempts to return home with honor.
Many of the men I served with would have preferred death to such
dishonor.
The enemies we fight today hold such liberal notions in contempt as
they hold in contempt the international conventions that enshrine them,
such as the Geneva Conventions and the Treaty on Torture. I know that.
But we are better than them, and we are stronger for our faith, and we
will prevail.
I submit to my colleagues that it is indispensable to our success in
this war that our service men and women know that in the discharge of
their dangerous responsibilities to their country they are never
expected to forget that they are Americans and the valiant defenders of
a sacred idea of how nations should govern their own affairs and their
relations with others, even our enemies.
Those who return to us and those who give their lives for us are
entitled to that honor. Those of us who have given them this onerous
duty are obliged by our history and by the sacrifices, the many
terrible sacrifices, that they have made in our defense. We are obliged
to make clear to them that they need not risk their honor or their
country's honor to prevail; that through the violence, chaos, and
heartache of war, through deprivation and cruelty and loss, they are
always Americans, and different, better, and stronger than those who
would destroy us. God bless them as He has blessed us with their
service.
The PRESIDING OFFICER. Who yields time?
The majority leader.
Mr. FRIST. Mr. President, I rise to speak on leader time. I thank
Senator McCain for his efforts on this very important issue that we
have been debating, talking about, and focusing upon for a long period
of time. It is an important matter that affects both our American
reputation abroad and the conduct of our military personnel in this
global war on terrorism.
It is important to state that the performance of American
servicemembers in Iraq, Afghanistan, and elsewhere around the globe has
been outstanding, has been inspiring, and truly representative of the
best our Nation has to offer. This amendment strives to establish
uniform standards for the interrogation of prisoners and detainees as a
means for helping ensure our service men and women are well trained,
well briefed, knowledgeable of their legal, professional, and moral
duties and obligations. Therefore, I fully support the purpose and
intent of this amendment, and although I understand it may require some
fine-tuning to prevent any unintended consequences, I do intend to vote
for it with that in mind.
The PRESIDING OFFICER (Mr. Chafee). The Senator from Alaska.
Mr. STEVENS. I am compelled to speak in opposition to this amendment,
although I wholeheartedly agree with what the Senator from Arizona has
said. It was a marvelous statement made by a man who has every reason
to say exactly what he said. I support what the majority leader has
said, but there is a classified annex to the Army Field Manual that is
not spelled out in this amendment, and there are people who are not in
uniform who may not even be citizens of the United States who represent
us in very strange and dangerous places, whose lives may be put in
jeopardy by the process that is spelled out in part of this amendment.
I speak for them.
I honor all service men and women, and I really believe they should
absolutely follow the lifestyle of the Senator from Arizona, as well as
his statement tonight. But as the leader has said, there are some
changes that have to be made if we are to be faithful to those people
who live in the classified world and will be covered by the classified
annex that, if one reads the amendment, is not covered here.
I have to do my best to make sure that when we get to conference
people understand that there is that problem. Therefore, I shall oppose
the amendment and try to straighten it out in conference. I know it
would pass.
I yield back the remainder of our time.
The PRESIDING OFFICER. All time is yielded back. The yeas and nays
have been ordered. The question is on agreeing to amendment No. 1977.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Jersey (Mr. Corzine)
is necessarily absent.
The PRESIDING OFFICER (Mr. Thune). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 90, nays 9, as follows:
[Rollcall Vote No. 249 Leg.]
YEAS--90
Akaka
Alexander
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Brownback
Bunning
Burns
Burr
Byrd
Cantwell
Carper
Chafee
Chambliss
Clinton
Coleman
Collins
Conrad
Craig
Crapo
Dayton
DeMint
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inouye
Isakson
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
McConnell
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Santorum
Sarbanes
Schumer
Shelby
Smith
Snowe
Specter
Stabenow
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
Wyden
NAYS--9
Allard
Bond
Coburn
Cochran
Cornyn
Inhofe
Roberts
Sessions
Stevens
NOT VOTING--1
Corzine
The amendment (No. 1977) was agreed to.
