Congressional Record: July 25, 2005 (Senate)
Page S8772-S8803
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 1042, which the clerk will
report.
[...]
Amendment No. 1557, as Modified
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I ask unanimous consent that I be allowed
to modify my amendment No. 1557, which is at the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Mr. President, I ask the pending amendment be set aside,
and I call up amendment No. 1557, which is at the desk. I ask the clerk
continue the reading of the amendment because it is short and
important.
The PRESIDING OFFICER. Without objection, the clerk will report.
The legislative clerk read as follows:
The Senator from Arizona [Mr. McCain], for himself, Mr.
Warner, Mr. Graham, and Ms. Collins, proposes an amendment
numbered 1557, as modified:
At the end of subtitle G of title X, add the following:
SEC. 1073. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS
UNDER THE DETENTION OF THE DEPARTMENT OF
DEFENSE.
(a) Limitation on Interrogation Techniques.--
(1) 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.
(2) Applicability.--Paragraph (1) 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.
[[Page S8790]]
(3) Construction.--Nothing in this subsection 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.
Mr. McCAIN. Mr. President, I asked that amendment be read because
there may be various interpretations of what this amendment is and what
it means. What it means to the sponsors--and I am grateful to my
friend, Senator Warner, the distinguished chairman of the committee,
and Senator Graham and others, including Senator Collins and others who
have supported this. Basically, it says the U.S. Army Field Manual on
Intelligence Interrogation shall be the document that governs
interrogation of prisoners who are under Department of Defense custody.
Some of us may like to see this expanded to treatment of prisoners
who are under custody of different agencies of Government. This applies
to the Department of Defense.
Before I proceed further, I ask my friend from Virginia--as he knows,
we have two amendments. One is this one which we have just read, and
the other one concerning cruel and inhumane treatment, which we are
sort of still working on. Is it the desire of the Chairman we take up
both amendments at this time?
Mr. WARNER. Mr. President, I suggest we take up the other one--you
and I have discussed it--as soon as the other one is completed because
I am a cosponsor on the one that is now pending.
Mr. McCAIN. I thank the distinguished chairman. For the information
of my colleagues, the second amendment, which would be before the
Senate for consideration at a different time, basically says that cruel
and inhumane treatment will not be inflicted upon any prisoner, and we
would adhere to the Geneva Conventions as well as other international
agreements concerning the treatment of prisoners.
But on this issue it says this amendment would prohibit cruel and
inhumane and degrading treatment of prisoners in the detention of the
U.S. Government, and it is basically fairly straightforward and simple,
as I read.
The Army Field Manual and its various editions have served America
well, through wars against both regular and irregular foes. The manual
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.
I think we all agree to fight terrorism we must obtain intelligence.
But we have to ensure that it is reliable and acquired in a way that is
humane. To do otherwise not only offends our national morals but
undermines our efforts to protect the Nation's security.
Abuse of prisoners harms--harms, not helps--us in the war on terror
because inevitably these abuses become public. When they do, the cruel
actions of a few darken the reputation of our honorable country in the
eyes of millions. Mistreatment of our prisoners also endangers U.S.
servicemembers who might be captured by the enemy--if not in this war,
then in the next.
I want to emphasize to some of my friends who say that we should do
anything that is necessary to extract intelligence, No. 1, torture
doesn't work; No. 2, if extraneous or extraordinary actions have to be
taken--and there may be cases, and we will get into this in the next
amendment, where someone has information that it is believed poses an
immediate threat to the United States--then I would suppose that it
would be entirely appropriate, under law, that the President of the
United States could make that judgment and take whatever actions are
necessary. In the meantime, the Army Field Manual authorizes
interrogation techniques that are proven effective in extracting
lifesaving information from the most hardened 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.
It is consistent with our laws and, most importantly, our values. Our
values are different from those of our enemies. When colleagues or
others may come on this floor and say: Well, they do it, others do it,
al-Qaida does it, other nations in the world do it, what differentiates
us, the United States of America, from other countries is the fact that
we do not. We do not abuse human rights. We do not do it. I would argue
the pictures, terrible pictures from Abu Ghraib, harmed us--not only in
the Arab world, which is an area of great concern but it also harmed us
dramatically amongst friendly nations, the Europeans, many of our
allies.
Of course, they were appalled. Of course, we were all appalled. As we
go through this later on, there were interesting exchanges between the
civilian general counsel in the Pentagon and the military judge
advocate general's--members of the judge advocate general, who were
deeply concerned about regulations that were proposed for adoption, and
exhibited very serious and fundamental concerns. For a short period of
time, unfortunately, those objections by the uniform lawyers in the
Pentagon were overruled, and we went through a period of time--thank
God only a few months--where interrogation techniques were allowed
which were then repealed, I am happy to say.
Our friends in London and elsewhere find themselves confronting the
same evil that we do. Preserving the common values we hold dear is more
important than ever. We fight not just to preserve our lives and
liberties but our morals, and we will never allow the terrorists to
take those from us. In this war that we must win--that we will win--we
should never fight evil with evil.
As I said, the amendment I am offering would establish the Army Field
Manual as the standard for interrogation of all detainees held in
Department of Defense custody. The manual has been developed by the
executive branch for its own uses, with a new edition written to take
into account the needs of the war on terror for the new classified
annexes due to be issued soon.
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. Two weeks ago, the Committee on Armed Services held hearings,
under the chairmanship of Senator Lindsey Graham, with a slew of high-
level Defense Department officials from regional commanders to judge
advocate generals from the various branches to the Department's deputy
general counsel.
A chief topic of discussion was what specific interrogation
techniques are permitted, in what environment, with which DOD
detainees, by whom and when. The answers included a whole lot of
confusion. We got a bunch of contradictory answers. Several: I would
have to take a look at that. A few: Let me get back to you.
Let's think about that for a second. If at the highest level of the
Pentagon they do not know what exact techniques are allowed and what
aren't, what is going on in the prisons? What is going on with the
soldiers, the sergeant, the corporal, those who are supposed to do the
actual interrogations? What we are trying to do is make sure there are
clear and exact standards set for interrogation of prisoners which have
held for other wars and are now being updated to take into
consideration the kind of war that we are in.
Confusion results in the kind of messes that once again could give
America a black eye around the world. We need a clear, simple, and
consistent standard. We will have it in the Army Field Manual on
interrogation. That is not my opinion but that of many more
distinguished military legal minds than mine.
I received a letter recently from a group of people, 11 former high-
ranking military officers, including RADM John Hutson and RADM Don
Guter, who each served as the Navy's top JAG, and Claudia Kennedy, who
was Deputy Chief of Staff for Army Intelligence. These and other
distinguished officers believe that the abuses 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.
I am not sure we could have, Mr. President, but wouldn't any of us
have done whatever we could to have prevented that?
[[Page S8791]]
I ask unanimous consent this letter, dated July 22, 2005, be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
July 22, 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.
General Joseph Hoar (Ret. USMC).
Lieutenant General Robert G. Gard, Jr. (Ret. USA).
Lieutenant General Claudia J. Kennedy (Ret. USA).
Major General Melvyn Montano (Ret. USAF Nat. Guard).
Rear Admiral Don Guter (Ret. USN).
Rear Admiral John D. Hutson (Ret. USN).
Brigadier General David M. Brahms (Ret. USMC).
Brigadier General James Cullen (Ret. USA).
Brigadier General Evelyn P. Foote (Ret. USA).
Brigadier General David R. Irvine (Ret. USA).
Brigadier General Richard O'Meara (Ret. USA).
Ambassador Douglas ``Pete'' Peterson.
Former Vietnam POW Commander Frederick C. Baldock (Ret.
USN).
Former Vietnam POW Commander Phillip N. Butler (Ret. USN).
____
General Joseph Hoar (Ret. USMC)--General Hoar served as
Commander-in-Chief, U.S. Central Command. After the first
Gulf War, General Hoar led the effort to enforce the naval
embargo in the Red Sea and the Persian Gulf, and to enforce
the no-fly zone in the south of Iraq. He oversaw the
humanitarian and peacekeeping operations in Kenya and Somalia
and also supported operations in Rwanda, and the evacuation
of U.S. civilians from Yemen during the 1994 civil war. He
was the Deputy for Operations for the Marine Corps during the
Gulf War and served as General Norman Schwarzkopf's Chief of
Staff at Central Command. General Hoar currently runs a
consulting business in California.
Lt. General Robert G. Gard, Jr. (Ret. USA)--General Gard is
a retired Lieutenant General who served in the United States
Army; his military assignments included combat service in
Korea and Vietnam. He is currently a consultant on
international security and president emeritus of the Monterey
Institute for International Studies.
Lieutenant General Claudia J. Kennedy (Ret. USA)--General
Kennedy is the first and only woman to achieve the rank of
three-star general in the United States Army. Kennedy served
as Deputy Chief of Staff for Army Intelligence, Commander of
the U.S. Army Recruiting Command, and as Commander of the
703d military intelligence brigade in Kunia, Hawaii.
Major General Melvyn Montano (Ret. USAF Nat. Guard)--
General Montano was the adjutant general in charge of the
National Guard in New Mexico from 1994 to 1999. He served in
Vietnam and was the first Hispanic Air National Guard officer
appointed as an adjutant general in the country.
Rear Admiral Don Guter (Ret. USN)--Admiral Guter served as
the Navy's Judge Advocate General from 2000 to 2002. Admiral
Guter is currently CEO of Vinson Hall Corporation/Executive
Director of the Navy Marine Coast Guard Residence Foundation
in McLean, Virginia.
Rear Admiral John D. Hutson (Ret. USN)--Admiral John D.
Hutson served as the Navy's Judge Advocate General from 1997
to 2000. Admiral Hutson now serves as President and Dean of
the Franklin Pierce Law Center in Concord, New Hampshire.
Brigadier General David M. Brahms (Ret. USMC)--General
Brahms served in the Marine Corps from 1963-1988. He served
as the Marine Corps' senior legal adviser from 1983 until his
retirement in 1988. General Brahms currently practices law in
Carlsbad, California and sits on the board of directors of
the Judge Advocates Association.
Brigadier General James Cullen (Ret. USA)--General Cullen
is a retired Brigadier General in the United States Army
Reserve Judge Advocate General's Corps and last served as the
Chief Judge (IMA) of the U.S. Army Court of Criminal Appeals.
He currently practices law in New York City.
Brigadier General Evelyn P. Foote (Ret. USA)--General Foote
was Commanding General of Fort Belvoir in 1989. She was
recalled to active duty in 1996 to serve as Vice Chair of the
Secretary of the Army's Senior Review Panel on Sexual
Harassment. She is President of the Alliance for National
Defense, a non-profit organization.
Brigadier General David R. Irvine (Ret. USA)--General
Irvine is a retired Army Reserve strategic intelligence
officer and taught prisoner interrogation and military law
for 18 years with the Sixth Army Intelligence School. He last
served as Deputy Commander for the 96th Regional Readiness
Command, and currently practices law in Salt Lake City, Utah.
Brigadier General Richard O'Meara (Ret. USA)--Brigadier
General Richard O'Meara is a combat decorated veteran who
fought in Vietnam before earning his law degree and joining
the Army's Judge Advocate General Corps. He retired from the
Army Reserves in 2002 and now teaches courses on Human Rights
and History at Kean University and at Monmouth University.
Ambassador Douglas ``Pete'' Peterson--Ambassador Peterson
served as the ambassador to the Socialist Republic of Vietnam
until 2001. Prior to his diplomatic posting, Ambassador
Peterson served three terms as a member of the United States
House of Representatives, representing the Second
Congressional District of Florida. He served 26 years in the
United States Air Force having served in worldwide
assignments as a fighter pilot and commander. He is a
distinguished combat veteran of the Vietnam War and was
incarcerated as a POW during that conflict for more than six
years. He completed his military service in 1981 and has
extensive experience in the private sector.
Commander Frederick C. Baldock (Ret. USN)--Commander
Baldock was a Navy pilot and is a combat veteran of the
Vietnam War. His plane was shot down over North Vietnam in
1966, and he spent seven years in captivity as a POW.
Commander Phillip N. Butler (Ret. USN)--Commander Butler
was a Navy pilot and is a combat veteran of the Vietnam War.
His plane was shot down over North Vietnam in 1965, and he
spent nearly eight years in captivity as a POW.
Mr. McCAIN. I read from the letter:
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.
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
[[Page S8792]]
DOD detain and interrogate prisoners, there should be no
legal loopholes permitting cruel or degrading treatment.
This is signed by GEN Joseph Hoar, LTG Robert Gard, LTG Claudia
Kennedy, MG Melvyn Montano, RADM Don Guter, RADM John Hutson, BG David
Brahms, BG James Cullen, BG Evelyn Foote, BG David Irvine, BG Richard
O'Meara, et cetera, and all of these people, including General Hoar,
served as Commander in Chief United States Central Command. These are
very credible people. If we had chosen, we could have gotten many more
signatories to this amendment.
We are Americans. We hold ourselves to humane standards of treatment
no matter how terribly evil or awful they may be. To do otherwise
undermines our security, and it also undermines our greatness as a
nation. We are not simply any other country. We stand for a lot more
than that in the world: a moral mission, one of freedom and democracy
and human rights at home and abroad.
We are better than the terrorists, and we will win because we are
better than they are. The enemy we fight has no respect for human life
or human rights. They don't deserve our sympathy. But this is not about
who they are--it is not about who they are. It is about who we are.
These are values that distinguish us from our enemies.
President Bush understands that the war on terror is ultimately a
battle of ideas, a battle we will win by spreading and standing firmly
for the values of decency, democracy, and the rule of law. I stand with
him in this commitment. By applying to ourselves the basic standards we
rightly preach to others, I believe we will only increase our
effectiveness as the world's ultimate champion of liberty.
I thank Senator Warner and Senator Graham and others who have shown
an interest. Senator Warner has had a series of hearings for a long
period of time. I believe we can do a great service for the military
and for the country if we adopt this simple two-paragraph amendment
that basically says that prisoners will be treated according to the
Army Field Manual, which, by the way, is the tradition of treatment of
prisoners for many wars.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I commend Senator McCain. I have been
privileged to know him ever since I was Secretary of Navy in the
closing years of the war in Vietnam. I know no military family that has
served our Nation with greater distinction than the McCain family. This
is a subject about which my dear friend has knowledge that none of us
possess. I have absolute confidence they are doing the right thing.
The two of us do have some technical differences of opinion. His
amendment is predicated on the Army Field Manual which he mentioned is
being revised. The current Army Field Manual basically dealt with
State-sponsored conflict. I have every reason to believe that the
follow-on manual, in due course, presumably in both classified and
unclassified form, will be completed.
Amendment No. 1566
There is another approach here. I ask unanimous consent, if it is
agreeable, to set the McCain amendment aside temporarily and ask
amendment 1566 be brought up.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. And in no way do I wish it to substitute for Senator
McCain's amendment. This is a complicated subject.
Essentially, my amendment simply says it will be the Secretary of
Defense that will establish uniform standards and procedures for two
separable subjects, detention and interrogation.
While I have not had a chance to go through in detail the Army's
Field Manual, I am not sure there is the emphasis placed on the
detention rule in such a manner as equivalent to the detention and
regulation that will be and is on the interrogation. Those responsible
for detention are often quite different than those responsible for
interrogation. If there is any mistreatment in the course of the
detention, depending on the timing between such treatment and the
follow-on interrogation, it seems to me we have a problem.
Therefore, my amendment entrusts to the Secretary of Defense the task
to put together basically all of the objectives as enunciated by my
distinguished friend from Arizona.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Virginia, [Mr. Warner], proposes an
amendment numbered 1566.
Mr. WARNER. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide for uniform standards and procedures for the
interrogation of persons under the detention of the Department of
Defense)
At the end of subtitle G of title X, add the following:
SEC. 1073. UNIFORM STANDARDS AND PROCEDURES FOR TREATMENT OF
PERSONS UNDER DETENTION BY THE DEPARTMENT OF
DEFENSE.
(a) Uniform Standards and Procedures Required.--The
Secretary of Defense shall establish uniform standards and
procedures for the detention and interrogation of persons in
the custody or under the control of the Department of
Defense.
(b) Consistency With Law and Treaty Obligations.--The
standards and procedures established under subsection (a)
shall be consistent with United States law and international
treaty obligations.
(c) Applicability.--
(1) In general.--The standards and procedures established
under subsection (a) shall apply to all detention and
interrogation activities involving persons in the custody or
under the control of the Department of Defense, and to such
activities conducted within facilities controlled by the
Department of Defense, regardless of whether such activities
are conducted by Department of Defense personnel, Department
of Defense contractor personnel, or personnel or contractor
personnel of any other department, agency, or element of the
United States Government.
(2) Exception.--The standards and procedures established
under subsection (a) shall not apply with respect to any
person in the custody or under the control of the Department
of Defense pursuant to a criminal law or immigration law of
the United States.
(d) Construction.--Nothing in this section shall affect
such rights, if any, under the Constitution of the United
States of any person in the custody or under the control of
the Department of Defense.
(e) Notice to Congress of Revision.--Not later than 60 days
before issuing any revision to the standards and procedures
established under subsection (a), the Secretary of Defense
shall notify, in writing, the congressional defense
committees of such revision.
(f) Deadline.--The standards and procedures required by
subsection (a) shall be established not later than 60 days
after the date of the enactment of this Act.
Mr. WARNER. There are considerable parallels between the two
amendments, with the exception that the subject should be adjusted to
the Secretary of Defense. He may well designate the Army Field Manual
as his work product, but then I would need, under the amendment, the
assurance that equal emphasis is put on the detention phase as well as
the interrogation phase.
Recent history has shown we must have uniform standards for detention
and interrogation across the Department of Defense. We cannot have
different standards for different theaters.
Soldiers, as Senator McCain pointed out, have to be trained and well
understand the rules and regulations as they relate to both detention
and interrogation. That is the goal of the McCain amendment. I
wholeheartedly support it. It is best to entrust the entire subject to
the Secretary of Defense and hold him accountable, as opposed to the
designation of the specific document which is in the process of being
changed.
Amendment No. 1557, As Modified
Mr. President, I ask unanimous consent that the Senate return to
consideration of the McCain amendment.
The PRESIDING OFFICER (Mr. Burr). Without objection, it is so
ordered.
Mr. WARNER. Mr. President, seeing our other colleague, Senator
Graham, I yield the floor. But I also see Senator McCain.
The PRESIDING OFFICER. The Senator from Arizona.
Amendment No. 1566
Mr. McCAIN. Mr. President, I have a brief comment on the chairman's
amendment. Leaving it in the hands of the Secretary of Defense is what
caused the huge amount of problems we have today.
I have here--in fact, thanks to the tenacity of the Senator from
South Carolina--finally, after a year and a half, 2 years, the
memoranda that were submitted by the uniformed JAGS when
[[Page S8793]]
the rules for the treatment of prisoners were set up the first time, I
say to my friend from Virginia. They all objected to it. They were
overruled by the Secretary of Defense and the general counsel.
So now, if I understand it, the amendment of my dear friend from
Virginia is going to return that to the Secretary of Defense. I urge
him to read these memoranda which we finally got thanks to, again, the
Senator from South Carolina: treating OEF detainees inconsistently with
the Conventions; arguably lowers the bar for the treatment of U.S. POWs
in future conflicts, even when nations agree with the President's
status determination. Many would view the more extreme interrogation
techniques as violative of international law, other treaties, or
customary international law; perhaps violative of their own domestic
law. This puts the interrogators and the chain of command at risk of
criminal accusations abroad, either in foreign domestic courts or
international fora, to include the ICC.
I remind my colleagues, these are the memoranda that were sent to
comment on the Secretary of Defense guidelines for interrogations of
prisoners, which were overruled. And then, a couple months later, they
were rescinded.
So in all due respect, my friend from Virginia has a degree of
confidence in the Secretary of Defense which, frankly, is not validated
by what took place and many argue is one of the reasons why we had Abu
Ghraib.
So I thank my colleague and yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, if I could reply to my good friend, you
are absolutely right. And I know that chapter as you do and have
studied it. But under the law, the Secretary of Defense is still the
head of the Department, and as such I suppose he can alter the field
manual of the Army and make it less in the present form and in the
revised form in due course. But I think it is important we have a clear
chain of authority and accountability. I look up the chain, and there
are the laws established by the Secretary of Defense as opposed to
those who might be involved in drawing up the Army Field Manual. I
presume the Secretary of the Army is at the top of that pyramid.
But that is the reason I put in this amendment. I say to my good
friend from Arizona, I hope we can sort this out before final passage
and possibly amend it. I will withdraw mine because I want you to take
the lead in every respect on this important amendment.
If I might add, I say to my friend from Arizona, there is another
important amendment you needed to get completed.
Mr. McCAIN. Mr. President, I thought my colleague wanted me to wait
on the additional amendment.
Mr. WARNER. Well, whatever.
Mr. McCAIN. But I will be glad to proceed. Why don't we let the
Senator from South Carolina talk, and then maybe, if it is all right, I
will offer the other amendment.
Mr. WARNER. Fine.
Mr. LEVIN. Mr. President, will the Senator yield for a question?
Mr. McCAIN. I am glad to yield.
Mr. LEVIN. Mr. President, I have a unanimous consent request. I ask
unanimous consent that I be added as a cosponsor to amendment No. 1557,
which is the field manual amendment to which they have been referring.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, if I could be recognized just for 1 minute
to comment on this amendment, and then I will yield the floor.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Michigan.
Mr. LEVIN. Mr. President, first of all, I congratulate Senator
McCain. I do not think there is anybody in this body who speaks with
greater authority on the subject matter he has spoken to in this
amendment. I commend him for the distinction he is making. It is a
critical distinction. In addition to the fact that the field manual is
there for everybody to see and has historic meaning, the difference
between the McCain amendment and the one which was offered by the
Senator from Virginia--another difference--is that the field manual is
a public document. You can read what is in the field manual. The
Secretary of Defense memoranda too often have been classified
``unavailable.'' We have been spending sometimes months and years
trying to just find out what is in those memoranda.
So there is a very important difference between these two amendments
in a number of regards. I very much believe that the first amendment,
amendment No. 1557, is the way which is most consistent with our
values. It makes it very clear, in public, what the authorities are and
what the standards and criteria are. The contrast between that and
something amorphous, which gives the Secretary of Defense a power he
already has anyway, which is to issue regulations but to do so in
secret and in a classified way, leads to more vagueness, more
uncertainty, more conflict, more inability of Congress to perform
oversight.
So I commend the Senator from Arizona for this amendment. I believe
the differences between these two amendments are significant.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I accept my good friend's critique, but I
do point out, as the Army Field Manual is under revision, there will be
both a classified and unclassified portion of that manual.
Mr. LEVIN. Mr. President, if I could just comment briefly on that, at
least with the unclassified portion, we have access to it, unlike the
documents that are issued by the Secretary of Defense memoranda. They
are classified, but they are also, too often, unavailable to Congress.
They just use one excuse after another not to make those memoranda
available to Congress. So there may be a classified version of the
field manual, but at least Congress has access to that unclassified
version.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I am well aware of the efforts of my good
friend from Michigan to get documents from the Department of Defense
and his modest success and some lack of success.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. WARNER. Mr. President, I yield to the distinguished Senator from
South Carolina such time as he deems necessary.
Could the Chair advise us as to the amount of time remaining under
the hour that I requested?
The PRESIDING OFFICER. The Senator from South Carolina has 20
minutes.
Mr. WARNER. That is the full time?
The PRESIDING OFFICER. The Senator from Virginia has 13 minutes. The
Senator from Arizona has 3 minutes remaining.
Mr. WARNER. Well, we will allocate the time among the three of us in
an equitable way.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Amendment No. 1557, As Modified
Mr. GRAHAM. Mr. President, I rise in support of Senator McCain's
amendment. The point that Senator Warner is making, I fully understand.
But I think we are at a crossroads in the war on terror. Guantanamo Bay
has great potential to make us safer as a nation. But one of the
problems we have experienced in this war is a problem of image. It is a
new kind of enemy with a lot of nuances. But one thing we cannot do as
a nation is forget who we are, what got us here for 200-something
years. We can fight this enemy aggressively, no-holds-barred, go after
them, and not lose who we are.
Senator McCain is addressing one of the problems we have found crop
up in different areas of the world when it comes to noncitizen foreign
terrorists, and that is how you interrogate and stay within the
boundaries of who you are as a people and not getting your own people
in trouble by cutting corners.
So the reason I am supporting his amendment--and we are not just
saying: Secretary of Defense, come up with a solution here--is because,
after a lot of thought and study, it is clear to me that the Army Field
Manual gives you everything you need to aggressively interrogate and
seek good intelligence from foreign noncitizen terrorists held at GTMO
and any other place under DOD control.
[[Page S8794]]
Mr. President, I would like to submit for the Record several memos
that have just been recently declassified. They were requested on
October 7 of last year by myself, Senator Levin, and Senator McCain.
The first one is a 27 February 2003 memo from BG Kevin M. Sandkuhler,
U.S. Marine Corps, Staff Judge Advocate to CMC. The next one is from MG
Thomas J. Romig, U.S. Army, the Judge Advocate General, dated 3 March
2003. The next is from MG Jack L. Rives, Deputy Judge Advocate General
of the U.S. Air Force, dated 6 February 2003. The next is from RADM
Michael F. Lohr, Judge Advocate General, U.S. Navy, dated 6 February
2003. The next is Rear Admiral Lohr, dated 13 March 2002. And the final
memo is from Major General Rives, Deputy Judge Advocate General, U.S.
Air Force, dated 5 February 2003. I ask unanimous consent those
memorandums be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Department of the Navy,
Headquarters U.S. Marine Corps,
Washington, DC, February 27, 2003.
Memorandum for General Counsel of the Air Force
Subject: Working Group Recommendations on Detainee
Interrogations
1. In addition to comments we submitted 5 February, we
concur with the recommendations submitted by the Navy (TJAG
RADM Lohr), the Air Force (TJAG MGen Rives), and the Joint
Staff Legal Counsel's Office. Their recommendations dealt
with policy considerations, contention with the OLC opinion,
and foreign interpretations of GC IV (Civilians) and
customary international law, respectively.
2. The common thread among our recommendations is concern
for servicemembers. OLC 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.
3. We nonetheless recommend that the Working Group product
accurately portray the services' concerns that the
authorization of aggressive counter-resistance techniques by
servicemembers will adversely impact the following:
a. Treatment of U.S. Servicemembers by Captors and
compliance with International Law.
b. Criminal and Civil Liability of DOD Military and
Civilian Personnel in Domestic, Foreign, and International
Forums.
c. U.S. and International Public Support and Respect of
U.S. Armed Forces.
d. Pride, Discipline, and Self-Respect within the U.S.
Armed Forces.
e. Human Intelligence Exploitation and Surrender of Foreign
Enemy Forces, and Cooperation and Support of Friendly
Nations.
Kevin M. Sandkuhler,
Brigadier General, USMC, Staff Judge Advocate to CMC.
[SECRET/NOFORN] DECLASSIFIED
Comments on Draft Working Group Report on Detainee Interrogations
1. Change p. 54, fifth paragraph, to read as follows (new
language italic):
([S/NF]U) Choice of interrogation techniques involves a
risk benefit analysis in each case, bounded by the limits of
DOD policy and law. When assessing whether to use exceptional
interrogation techniques, consideration should be given to
the possible adverse effects on U.S. Armed Forces culture and
self-image which suffered during the Vietnam conflict and at
other times due to perceived law of war violations. DOD
policy indoctrinated in the DOD Law of War Program in 1979
and subsequent service regulations, greatly restored the
culture and self-image of U.S. Armed Forces by establishing
high benchmarks of compliance with the principles and spirit
of the law of war and humane treatment of all persons in U.S.
Armed Forces custody. In addition, consideration should be
given to whether implementation of such techniques is likely
to result in adverse impacts for DOD personnel who are
captured or detained [become POWs,] including possible
perceptions by other nations that the United States is
lowering standards related to the treatment of prisoners and
other detainees, generally.
2. Add to p. 68, a paragraph after the seventh paragraph
that reads:
(U) Comprehensive protection is lacking for DOD personnel
who may be tried by other nations and/or international bodies
for violations of international law, such as violations of
the Geneva or Hague Conventions, the Additional Protocols,
the Torture Convention, the Rome Statute of the ICC, or the
Customary International Law of Human Rights. This risk has
the potential to impact future operations and overseas travel
of such personnel, both on and off duty.
____
Department of the Army, Office of the Judge Advocate
General,
Washington, DC, March 3, 2003.
MEMORANDUM FOR GENERAL COUNSEL OF THE DEPARTMENT OF THE AIR FORCE
Subject: Draft Report and Recommendations of the Working
Group to Access the Legal, Policy and Operational Issues
Related to Interrogation of Detainees Held by the U.S.
Armed Forces in the War on Terrorism (U)
1. (U) The purpose of this memorandum is to advise the
Department of Defense (DOD) General Counsel of a number of
serious concerns regarding the draft Report and
Recommendations of the Working Group to Access the Legal,
Policy and Operational Issues Related to Interrogation of
Detainees Held by the U.S. Armed Forces in the War on
Terrorism (Final Report). These concerns center around the
potential Department of Defense (DOD) sanctioning of detainee
interrogation techniques that may appear to violate
international law, domestic law, or both.
2. (U) The Office of Legal Counsel (OLC), Department of
Justice (DOJ), provided DOD with its analysis of
international and domestic law as it relates to the
interrogation of detainees held by the United States
Government. This analysis was incorporated into the subject
draft Report and forms, almost exclusively, the legal
framework for the Report's Conclusions, Recommendations, and
PowerPoint spreadsheet analysis of the interrogation
techniques in issue. I am concerned with several pivotal
aspects of the OLC opinion.
3. (U) While the OLC analysis speaks to a number of
defenses that could be raised on behalf of those who engage
in interrogation techniques later perceived to be illegal,
the ``bottom line'' defense proffered by OLC is an
exceptionally broad concept of ``necessity.'' This defense is
based upon the premise that any existing federal statutory
provision or international obligation is unconstitutional per
se, where it otherwise prohibits conduct viewed by the
President, acting in his capacity as Commander-in-Chief, as
essential to his capacity to wage war. I question whether
this theory would ultimately prevail in either the U.S.
courts or in any international forum. If such a defense is
not available, soldiers ordered to use otherwise illegal
techniques run a substantial risk of criminal prosecution or
personal liability arising from a civil lawsuit.
4. (U) The OLC opinion states further that customary
international law cannot bind the U.S. Executive Branch as it
is not part of the federal law. As such, any presidential
decision made in the context of the ongoing war on terrorism
constitutes a ``controlling'' Executive act; one that
immediately and automatically displaces any contrary
provision of customary international law. This view runs
contrary to the historic position taken by the United States
Government concerning such laws and, in our opinion, could
adversely impact DOD interests worldwide. On the one hand,
such a policy will open us to international criticism that
the ``U.S. is a law unto itself.'' On the other,
implementation of questionable techniques will very likely
establish a new baseline for acceptable practice in this
area, putting our service personnel at far greater risk and
vitiating many of the POW/detainee safeguards the U.S. has
worked hard to establish over the past five decades.
5. (U) I recommend that the aggressive counter-resistance
interrogation techniques under consideration be vetted with
the Army intelligence community before a final decision on
their use is made. Some of these techniques do not comport
with Army doctrine as set forth in Field Manual (FM) 34-52
Intelligence Interrogation, and may be of questionable
practical value in obtaining reliable information from those
being interrogated.
Thomas J. Romig,
Major General, U.S. Army,
The Judge Advocate General.
____
Department of the Air Force, Office of the Judge Advocate
General,
Washington, DC, February 6, 2003.
MEMORANDUM FOR SAF/GC
From: AF/JA
Subject: Comments on Draft Report and Recommendations of the
Working Group to Assess the Legal, Policy and Operational
Issues Relating to Interrogation of Detainees Held by the
U.S. Armed Forces in the War on Terrorism (U)
1. (U) Please note that while I accept that the Department
of Justice, Office of Legal Counsel (DoJ/OLC), speaks for the
Executive Branch and that its legal opinions in this matter
are to be followed, I continue to maintain that DoJ/OLC's
opinions on several of the Working Group's issues are
contentious. Others may disagree with various portions of the
DoJ/OLC analysis. I believe we should recognize this fact and
therefore urge that certain factors should be prominently
provided to the DoD/GC before he makes a final recommendation
to the Secretary of Defense. I recommend the following
specific modifications to the draft report dated 4 February
2003:
a. Page 2, add the following sentence to the end of
paragraph 2:
It should be noted that several of the legal opinions
expressed herein are likely to be viewed as contentious
outside the Executive Branch, both domestically and
internationally.
b. Page 54, change fourth full paragraph to read as
follows:
(U) Choice of interrogation techniques involves a risk
benefit analysis in each case, bounded by the limits of DOD
policy and law. When assessing whether to use exceptional
interrogation techniques, consideration should be given to
the possible adverse effects on U.S. Armed Forces culture and
self-
[[Page S8795]]
image, which suffered during the Vietnam conflict and at
other times due to perceived law of armed conflict
violations. DoD policy, indoctrined in the DoD Law of War
Program in 1979 and subsequent service regulations, greatly
restored the culture and self-image of U.S. Armed Forces by
establishing high benchmarks of compliance with the
principles and spirit of the law of war, and humane treatment
of all persons in U.S. Armed Forces custody. U.S. Armed
Forces are continuously trained to take the legal and moral
``high-road'' in the conduct of our military operations
regardless of how others may operate. While the detainees'
status as unlawful belligerents may not entitle them to
protections of the Geneva Conventions, that is a legal
distinction that may be lost on the members of the armed
forces. Approving exceptional interrogation techniques may be
seen as giving official approval and legal sanction to the
application of interrogation techniques that U.S. Armed
Forces have heretofore been trained are unlawful. In
addition, consideration should be given to whether
implementation of such techniques is likely to result in
adverse impacts for DoD personnel who become POWs,
including possible perceptions by other nations that the
United States is lowering standards related to the
treatment of prisoners, generally.
Alternatively, change the last paragraph on page 68, to
read as follows:
(U) The cultural and self-image of the U.S. Armed Forces
suffered during the Vietnam conflict and at other times due
to perceived law of armed conflict violations. DoD policy,
indoctrinated in the DoD Law of War Program in 1979 and
subsequent service regulations, greatly restored the culture
and self-image of U.S. Armed Forces. U.S. Armed Forces are
continuously trained to take the legal and moral ``high-
road'' in the conduct of our military operations regardless
of how others may operate. While the detainees' status as
unlawful belligerents may not entitle them to protections of
the Geneva Conventions, that is a legal distinction that may
be lost on the members of the armed forces. Approving
exceptional interrogation techniques may be seen as giving
official approval and legal sanction to the application of
interrogation techniques that U.S. Armed Forces have
heretofore been trained are unlawful. General use of
exceptional techniques (generally, having substantially
greater risk than those currently, routinely used by U.S.
Armed Forces interrogators), even though lawful, may create
uncertainty among interrogators regarding the appropriate
limits of interrogations, and may adversely affect the
cultural self-image of the U.S. armed forces.
c. Page 68, add the following new paragraphs after the
sixth full paragraph:
(U) Several of the exceptional techniques, on their face,
amount to violations of domestic criminal law and the UCMJ
(e.g., assault). Applying exceptional techniques places
interrogators and the chain of command at risk of criminal
accusations domestically. Although one or more of the
aforementioned defenses to these accusations may apply, it is
impossible to be certain that any of these defenses will be
successful as the judiciary may interpret the applicable law
differently from the interpretation provided herein.
(U) Other nations are likely to view the exceptional
interrogation techniques as violative of international law
and perhaps violative of their own domestic law. This places
interrogators and the chain of command at risk of criminal
accusations abroad, either in foreign domestic courts or in
international fora, to include the ICC.
d. Page 68, add the following new paragraphs after the
eighth full paragraph:
(U) Employment of exceptional interrogation techniques may
have a negative effect on the treatment of U.S. POWs. Other
nations may disagree with the President's status
determination regarding Operation ENDURING FREEDOM (OEF)
detainees, concluding that the detainees are POWs entitled to
all of the protections of the Geneva Conventions. Treating
OEF detainees inconsistently with the Conventions arguably
``lowers the bar'' for the treatment of U.S. POWs in future
conflicts. Even where nations agree with the President's
status determination, many may view the exceptional
techniques as violative of other law.
2. (U) Should any information concerning the exceptional
techniques 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.
Jack L. Rives,
Major General, USAF,
Deputy Judge Advocate General.
____
Department of the Navy, Office of the Judge Advocate
General,
Washington, DC, February 6, 2003.
Subj: Working Group recommendations relating to interrogation
of detainees.
1. Earlier today I provided to you a number of suggested
changes, additions, and deletions to the subject document.
2. I would like to further recommend that the document make
very clear to decision-makers that its legal conclusions are
limited to arguably unique circumstances of this group of
detainees, i.e., unlawful combatants held ``outside'' the
United States. Because of these unique circumstances, the
U.S. Torture Statute, the Constitution, the Geneva
Conventions and customary international law do not apply,
thereby affording policy latitude that likely does not exist
in almost any other circumstance. (The UCMJ, however, does
apply to U.S. personnel conducting the interrogations.)
3. Given this unique set of circumstances, I believe policy
considerations continue to loom very large. Should service
personnel be conducting the interrogations? How will this
affect their treatment when incarcerated abroad and our
ability to call others to account for their treatment? More
broadly, while we may have found a unique situation in GTMO
where the protections of the Geneva Conventions, U.S.
statutes, and even the Constitution do not apply, 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? How would such
perceptions affect our ability to prosecute the Global War on
Terrorism?
4. I accept the premise that this group of detainees is
different, and that lawyers should identify legal
distinctions where they exist. It must be conceded, however,
that we are preparing to treat these detainees very
differently than we treat any other group, and differently
than we permit our own people to be treated either at home or
abroad. At a minimum, I recommend that decision-makers be
made fully aware of the very narrow set of circumstances--
factually and legally--upon which the policy rests. Moreover,
I recommend that we consider asking decision-makers directly:
is this the ``right thing'' for U.S. military personnel?
Michael F. Lohr,
Rear Admiral, JAGC, U.S. Navy,
Judge Advocaate General.
____
Department of the Navy, Office of the Judge Advocate
General,
Washington, DC, March 13, 2002.
MEMORANDUM FOR THE AIR FORCE GENERAL COUNSEL
Subject: Comments on the 6 March 2003 Detainee Interrogation
Working Group Report
1. My comments on subject report are provided below. These
comments incorporate and augment those submitted by my action
officer earlier this week. New comments are highlighted
within the previously submitted text.
1. (U) Page 2, second paragraph: Add new penultimate
sentence to read, ``In addition this paper incorporates
significant portions of work product provided by the Office
of Legal Counsel, United States Department of Justice.'' In
the last sentence change ``by a Department . . .'' to ``by
the Department . . .'' Finally, add new footnote to reference
the OLC opinion to read ``Memorandum dated March xx, 2003.,
Re: xxxxxxxxxx.
Rationale: this WG paper contains large segments of DOJ
work product, rather than being ``informed'' by DOJ. We
believe the OLC opinion should be incorporated by reference
into the WG report.
2. (U) Page 24, second paragraph, last sentence: delete.
Rationale: this sentence is not true. There are domestic
limits on the President's power to interrogate prisoners. One
of them is Congress's advice and consent to the US
ratification to the Geneva Conventions that limit the
interrogation of POWs. The willingness of the Executive, and
of the Legislative Branch, to enforce those restrictions is a
different matter.
3. (U) Page 24, footnote 20: delete or rewrite to read,
``This is the stated view of the Department of Justice.''
Rationale: Mr. Yoo clearly stated that he believes the
viability of these defenses is greatly enhanced by advance
Presidential direction in the matter. He specifically
recommended obtaining such direction in writing.
4. (U) Page 26, first full paragraph, first sentence:
delete.
Rationale: this statement is too broad. The similar
language used at the end of the following paragraph is more
accurate.
5. (U) Page 29, second paragraph, fifth sentence: Rewrite
sentence to read, ``A leading scholarly commentator . . .''
and later in the sentence change ``. . . section 2340 would
be justified under . . .'' to ``. . . section 2340 should be
justified under . . .''
Rationale: There is only one article written by one person
cited. Also the quoted language from the commentator
indicates his view that torture should be permissible, not a
statement that international law allows such.
6. (U) Page 29, second paragraph, last sentence: delete.
Rationale: this conclusion is far too broad but the general
principle can be inferred from the discussion.
7. (U) Page 31, para d, third sentence and penultimate
sentences: delete.
Rationale: This analogy is inapt. There is nothing in law
enforcement that would authorize the use of torture or
excessive force against persons for intelligence gathering.
8. (U) Page 41, second paragraph, penultimate sentence:
delete.
Rationale: it is not clear what the meaning of the sentence
is.
9. (U) Page 59, second paragraph: it is unclear if SECDEF
must approve exceptional techniques on a case-by-case basis,
or just approve their use generally.
10. (U) Page 63, footnote 86. The text of this footnote
does not correspond to its citation
[[Page S8796]]
in the paper. It appears that the current text of footnote 86
belongs as part of the discussion of API in the paragraph
above, or as part of the text of footnotes 83 or 84. Footnote
86 should detail the rationale for the Justice Department
determination that GCIV does not apply.
11. (U) Page 67, technique 26: Add last sentence to read,
``Members of the armed forces will not threaten the detainee
with the possible results of the transfer, but will instead
limit the threat to the fact of transfer to allow the
detainee to form their own conclusions about such a move.''
Rationale: threatening the detainee with death or injury
(by the transfer) may be considered torture under
international law.
12. (U) Page 72, second paragraph: in the last sentence
replace ``protections of the Geneva Conventions'' with
``protections of the third Geneva Convention.''
Rationale: clarity
13. (U) Page 72, second paragraph: add new last sentence to
read: ``Under international law, the protections of the
fourth Geneva Convention may apply to the detainees.''
Rationale: this view is shared by Chairman's Legal and all
the services.
14. (U) Page 72, third paragraph: at the beginning add,
``In those cases where the President has made a controlling
executive decision or action . . .''
Rationale: this is the standard by which the President may
``override'' CIL.
15. (U) Page 73, sixth paragraph: Add new last sentence to
read, ``Presidential written directive to engage in these
techniques will enhance the successful assertion of the
potential defenses discussed in this paper.''
Rationaie: much of the analysis in this paper is premised
on the authority of the President as delegated/directed, in
writing, to SECDEF and beyond. This point needs to be made
prominently.
16. (U) Matrix Annex, Technique 33: delete.
Rationale: It is not clear what the intent of this
technique is. If it loses its effectiveness after the first
or second use, it appears to be little more than a gratuitous
assault. Other methods are equally useful in getting/
maintaining the attention of the detainee. It also has the
potential to be applied differently by different individuals.
17. (U) Page 75, first paragraph, in the discussion re
technique 36: Rewrite 3rd to last and penultimate sentences
to read, ``The working group believes use of technique 36
would constitute torture under international and U.S. law
and, accordingly, should not be utilized. In the event SECDEF
decides to authorize this technique, the working group
believes armed forces personnel should not participate as
interrogators as they are subject to UCMJ jurisdiction at all
times.''
This is a correct statement of the positions of the
services party to the working group, who all believe this
technique constitutes torture under both domestic and
international law.
18. Thank you for the opportunity to comment. My action
officer in this matter is CDR Steve Gallotta.
Michael F. Lohr,
Rear Admiral, JAGC, U.S. Navy,
Judge Advocate General.
____
Department of the Air Force, Office of the Judge Advocate
General,
Washington, DC, February 5, 2003.
memorandum for saf/gc
From: AF/JA
Subject: Final Report and Recommendations of the Working
Group to Assess the Legal, Policy and Operational Issues
Relating to Interrogation of Detainees Held by the U.S.
Armed Forces in the War on Terrorism (U)
1. (U) In drafting the subject report and recommendations,
the legal opinions of the Department of Justice, Office of
Legal Counsel (DoJ/OLC), were relied on almost exclusively.
Although the opinions of DoJ/OLC are to be given a great deal
of weight within the Executive Branch, their positions on
several of the Working Group's issues are contentious. As our
discussion demonstrate, others within and outside the
Executive Branch are likely to disagree. The report and
recommendations caveat that it only applies to ``strategic
interrogations'' of ``unlawful combatants'' at locations
outside the United States. Although worded to permit maximum
flexibility and legal interpretation, I believe other factors
need to be provided to the DoD/GC before he makes a final
recommendation to the Secretary of Defense.
2. (U) Several of the more extreme interrogation
techniques, on their face, amount to violations of domestic
criminal law and the UCMJ (e.g., assault). Applying the more
extreme techniques during the interrogation of detainees
places the interrogators and the chain of command at risk of
criminal accusations domestically. Although a wide range of
defenses to these accusations theoretically apply, it is
impossible to be certain that any defense will be successful
at trial; our domestic courts may well disagree with DoJ/
OLC's interpretation of the law. Further, while the current
administration is not likely to pursue prosecution, it is
impossible to predict how future administrations will view
the use of such techniques.
3. (U) Additionally, other nations are unlikely to agree
with DoJ/OLC's interpretation of the law in some instances.
Other nations may disagree with the President's status
determination regarding the Operation ENDURING FREEDOM (OEF)
detainees; they may conclude that the detainees are POWs
entitled to all of the protections of the Geneva Conventions.
Treating OEF detainees inconsistently with the Conventions
arguably ``lowers the bar'' for the treatment of U.S. POWs in
future conflicts. Even where nations agree with the
President's status determination, many would view the more
extreme interrogation techniques as violative of other
international law (other treaties or customary international
law) and perhaps violative of their own domestic law. This
puts the interrogators and the chain of command at risk of
criminal accusations abroad, either in foreign domestic
courts or in international fora, to include the ICC.
4. (U) Should any information regarding the use of the more
extreme interrogation techniques 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. Moreover, it could have a negative impact on
public perception of the U.S. military in general.
5. (U) Finally, the use of the more extreme interrogation
techniques simply is not how the U.S. armed forces have
operated in recent history. We have taken the legal and moral
``high-road'' in the conduct of our military operations
regardless of how others may operate. Our forces are trained
in this legal and moral mindset beginning the day they enter
active duty. It should be noted that law of armed conflict
and code of conduct training have been mandated by Congress
and emphasized since the Viet Nam conflict when our POWs were
subjected to torture by their captors. We need to consider
the overall impact of approving extreme interrogation
techniques as giving official approval and legal sanction to
the application of interrogation techniques that U.S. forces
have consistently been trained are unlawful.
Jack L. Rives,
Major General, USAF,
Deputy Judge Advocate General.
Mr. GRAHAM. Now, over time, we are going to learn more about what
these memos tell us, but basically these memos are telling us that the
proposed interrogation techniques dealing with the war on terror,
suggested by the Department of Justice, sent over to Department of
Defense, were such a deviation from the normal way of doing business
that it would get our own people in trouble. It was such a deviation
from the normal way of doing business that we would lose the moral high
ground in fighting the war on terror.
General Rives sums up:
Finally, the use of the more extreme interrogation
techniques simply is not how the U.S. armed forces have
operated in recent history. We have taken the legal and moral
``high-road'' in the conduct of our military operations
regardless of how others may operate. Our forces are trained
in this legal and moral mindset beginning the day they enter
active duty. It should be noted that [the] law of armed
conflict and code of conduct training have been mandated by
Congress and emphasized since the Viet Nam conflict when our
POWs were subjected to torture by their captors. We need to
consider the overall impact of approving extreme
interrogation techniques as giving official approval and
legal sanction to the application of interrogation techniques
that U.S. forces have consistently been trained are unlawful.
He talks about a slippery slope that we are about to embark on that
will result in some of our own people being subject to being court-
martialed because the Uniform Code of Military Justice has many
provisions dictating how you will treat someone who is in your custody
as a detainee. And they were trying to tell the Department of Justice
and the Department of Defense civilian lawyers: Do not go down this
road. You are going to bite off more problems than it is worth.
Admiral Lohr says that some of the techniques would violate the
torture statute. I will read in more detail later what these memos are
telling us the rules of the road are. But these are not from the ACLU.
These are not from people who are soft on terrorism, who want to coddle
foreign terrorists. These are all professional military lawyers who
have dedicated their lives, with 20-plus year careers, to serving the
men and women in uniform and protecting their Nation. They were giving
a warning shot across the bow of the policymakers that there are
certain corners you cannot afford to cut because you will wind up
meeting yourself.
What Senator McCain is trying to do is build upon their advice by
putting in
[[Page S8797]]
place an interrogation technique that this country can be proud of,
that we all will understand, and that can be implemented to make us
safer without having a black eye throughout the world.
I asked the question--when I went to GTMO with the chairman about a
week or 2 ago--to all the interrogators there: Is there anything
lacking in the Army Field Manual that would inhibit your ability to get
good intelligence? And they said no. I asked: Could you live with the
Army Field Manual as your guide and do your job? They said yes.
The reason the Army Field Manual is a good source is because it has
been part of who we are for years. People are trained on it. What was
happening is, the Department of Justice, understandably, after
September 11, wanted to come up with the most aggressive techniques
possible to deal with foreign terrorists. But the JAGS are telling us
you cannot look at this one event in isolation. You have to understand
what we have been standing for for 60 years and what the law actually
says. The DOJ's interpretation of the torture statute from a lawyer's
point of view was absurd. And the JAGS were telling the policymakers:
If you go down this road, you are going to get your own people in
trouble. You are on a slippery slope. You are going to lose the moral
high ground. This was 2003. And they were absolutely right.
To Secretary Rumsfeld's credit, when he heard about the working group
having problems with the DOJ's suggested interpretations of
``interrogation,'' he reconvened and the techniques changed. But as
Senator McCain has said very well, we need to bring certainty to this
process of interrogating foreign terrorists to make sure we can get
good, reliable information. We can do it in a way that people
understand, our troops will not get in trouble, and we can show the
world we are truly a rule-of-law nation.
There is nothing inconsistent with interrogating people to get good
information to protect our country and using the Army Field Manual.
What has got us in trouble is when we try to make it up as we go, when
we forget who we are, when we will not listen to people who have worn
the uniform, who are in uniform, telling us: Do not go down this road,
our people are trained to do it one way, you are confusing the heck out
of them.
What have we learned in the last 2 years? If you know what the rules
are about interrogating anybody, come tell me because I can't figure it
out. I have spent 20 years as an Air Force lawyer myself. There is much
confusion, and confusion in war is dangerous. Anyone who misunderstands
what we are doing here in terms of our view of terrorists is playing
politics. No one supporting this amendment wants a foreign noncitizen
terrorist not to be aggressively detained, prosecuted, if appropriate,
and interrogated to make our country safer. We can prosecute, we can
detain, and we can interrogate aggressively, but we have to have rules
that our people can understand and don't deviate from who we are as a
Nation. That is why I am supporting this amendment.
Everyone who works at GTMO dealing with the 500 foreign noncitizen
terrorist suspects, enemy combatants, has told me, because I asked the
question, if you use the Army Field Manual, we have everything within
that manual we need to do the job right. If you use the Army Field
Manual, we will be back in a good place with the law. We will be back
in a place where our people can understand what is going on. We will
again capture the moral high ground which is the ultimate way to win
this war.
There is no downside to this. The upside is huge. We are able to get
good information, not get our people in trouble, and have a better
image in the world. That is why I am supporting this amendment.
I have included these memos for the record. It would serve every
Senator well to spend 5 or 10 minutes reading through them because
these people were telling us in 2003, if you go down this road, the
road we chose initially, you are going to get everybody involved in
trouble. That is exactly what happened.
I yield the floor.
Amendment No. 1556, As Modified
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I have amendment No. 1556 at the desk. I
ask unanimous consent for its modification.
The PRESIDING OFFICER. Without objection, the amendment is so
modified.
Mr. McCAIN. Mr. President, is it the desire that I call up 1556 at
this time?
Mr. WARNER. Yes, Mr. President, I suggest that we have amended the
present one which is referred to as the Army Field Manual, and I am a
cosponsor on that. Now there is a second amendment. I submitted to the
Senator a suggestion, I believe that is----
Mr. McCAIN. It is modified.
Mr. WARNER. Let's bring that up now and have that pending.
Mr. McCAIN. Mr. President, I ask unanimous consent that the amendment
No. 1556 be considered at this time.
The PRESIDING OFFICER. Is there objection?
Mr. SESSIONS. Reserving the right to object, I know the discussion
has been going on about the field manual issue. Is the Senator now
going to that amendment or are we leaving that amendment? I would like
to at least make a few remarks about that subject.
Mr. WARNER. Mr. President, the field manual amendment has been laid
aside for the moment. This goes to a second amendment which is----
Mr. SESSIONS. Was there a unanimous consent request made for that?
The PRESIDING OFFICER. The Chair heard a unanimous consent request to
move to a new amendment.
Mr. WARNER. That is correct.
The PRESIDING OFFICER. And the Chair asked if there was objection.
Did the Senator from Alabama object?
Mr. SESSIONS. I object at this point because I don't understand what
we are doing. I want to be able to speak on the amendment dealing with
the field manual.
Mr. WARNER. I believe the Senator has just come on the floor. We have
been on this now for about 45 minutes covering the parameter of the
issues that would be brought up. I respect his desire to speak. We will
try to accommodate you at any point. I would urge that we allow the
Senator from Arizona to perfect this amendment and then in due course
he will speak to it. I will speak to it, and we will lay it aside. And
we will find the time for the distinguished Senator from Alabama to
speak.
Mr. SESSIONS. Well, everybody has spoken for it. Nobody has spoken
against it.
Mr. McCAIN. Could I ask, maybe we could take a maximum of 5 minutes,
3 or 4 minutes on this amendment, for which I had unanimous consent,
and then go back to allow the Senator from Alabama to speak.
Mr. WARNER. That is correct.
Mr. SESSIONS. That would be fine. If I could have 10 minutes, if I
could share a few thoughts on the previous amendment in the next 10
minutes, I would be happy.
Mr. WARNER. We definitely will make that happen. But I want to
inquire of the Senator from South Carolina, you also have a third
amendment. I am not sure of the status. You have it at the desk. You
have spoken to it.
Mr. GRAHAM. I would like at this time to submit it to the desk if I
may.
Mr. McCAIN. I ask unanimous consent that I be allowed to propose this
amendment, the Senator from Alabama be allowed to speak for 10 minutes,
the amendment be set aside, and the Senator from South Carolina be
allowed to propose his amendment.
Mr. WARNER. Mr. President, I think that is a very orderly manner in
which to accommodate. Then the Senator from Alabama--let's get the time
remaining and I will yield some of my time to the Senator from Alabama.
The PRESIDING OFFICER. The motion on the floor right now is to call
up, as I understand it, amendment No. 1556 by the Senator from Arizona
as modified.
Mr. McCAIN. As modified.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Ms. STABENOW. Reserving the right to object, I don't intend to
object, I understand we are working out some amendments. I also have an
amendment I would like to offer. I wanted to raise, as the agreement is
being put together, that I have the opportunity to do that.
Mr. WARNER. Mr. President, I will assure you, working with the
distinguished Senator from Michigan, we
[[Page S8798]]
will arrange--he has time immediately following the 1 hour being
divided between three Senators and now a fourth. I want to make sure we
have the time remaining to satisfy the needs of the Senator from
Alabama. We now are proceeding on the second McCain amendment.
The PRESIDING OFFICER. Is there objection to reporting amendment No.
1556 by the Senator from Arizona?
Mr. McCAIN. As modified.
The PRESIDING OFFICER. As modified. Without objection, it is so
ordered. The clerk will report the amendment.
The assistant legislative clerk read as follows:
The Senator from Arizona [Mr. McCain] proposes an amendment
numbered 1556, as modified.
The amendment is as follows:
At the end of subtitle G of title X, add the following:
SEC. 1073. 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) Presidential Waiver.--(1) The President may waive the
prohibition in subsection (a), on a case-by-case basis, if
the President--
(A) determines that the waiver is required for a military
or national security necessity; and
(B) submits the appropriate committees of Congress timely
notice of the exercise of the waiver.
(2) The authority of the President under paragraph (1) may
not be delegated.
(c) Construction.--Nothing in this section shall not be
construed to impose any geographical limitation on the
applicability of the prohibition against cruel, inhuman, or
degrading treatment or punishment under this section.
(d) 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.
(e) Definitions.--In this section:
(1) The term ``appropriate committees of Congress'' means--
(A) the Committees on Armed Services and Appropriations and
the Select Committee on Intelligence of the Senate; and
(B) the Committees on Armed Services and Appropriations and
the Permanent Select Committee on Intelligence of the House
of Representatives.
(2) 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. WARNER. Mr. President, we would like to have the Senator from
Arizona take such time as he desires to explain this. I wish to be
added as a cosponsor to this amendment. Then we will yield the floor to
the Senator from Alabama to speak for up to 10 minutes on the subjects
of these three amendments. Then the balance of the time will be
accorded to the Senator from South Carolina to bring forth his
amendment.
The PRESIDING OFFICER. The Chair will notify the Senators that the
Chair is still working under the original previous order of an hour
equally divided, 20 minutes to the Senator from South Carolina, 20
minutes to the Senator from Virginia, and 20 minutes to the Senator
from Arizona.
Mr. WARNER. That is correct. Would the Chair advise of the three
Senators in the original order, what is the time remaining for each.
The PRESIDING OFFICER. The Senator from Arizona has 2 minutes
remaining. The Senator from Virginia has 9 minutes remaining.
Mr. WARNER. I can't hear the Chair.
The PRESIDING OFFICER. The Senator from Virginia has 9 minutes
remaining. The Senator from South Carolina has 2 minutes--10 minutes
remaining.
Mr. WARNER. I yield from my 9 minutes such time as the Senator from
Arizona may need.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, with all due respect to the chairman, I
don't think that is going to quite work because the Senator from
Alabama needs 10 minutes. And if you are using your 9 and I only have
2, that doesn't get it done. I ask unanimous consent that I have 3
minutes to discuss my amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. That is an additional 3 minutes. I ask unanimous consent
that following that, the Senator from Alabama be recognized for 10
minutes in addition to the unanimous consent agreement, and then the
Senator from South Carolina be allowed to propose his amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Mr. President, I ask for the yeas and nays on this
amendment and the previous amendment, No. 1557.
The PRESIDING OFFICER. Is there objection to the request to ask for
the yeas and nays on two amendments at this time?
Without objection, it is in order to so request.
Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. McCAIN. Mr. President, I ask unanimous consent that Senator
Warner, Senator Lindsey Graham, and Senator Collins be added as
cosponsors. I believe we are still scheduled for a vote at 5:30.
Mr. President, this amendment would prohibit cruel, inhuman, and
degrading treatment of persons in the detention of the U.S. Government.
The amendment doesn't sound like anything new. That is because it
isn't. The prohibition has been a longstanding principle in both law
and policy in the United States. The Universal Declaration of Human
Rights adopted in 1948 states simply that: No one shall be subject to
torture or cruel, inhuman, or degrading treatment or punishment. The
International Covenant on Civil and Political Rights, to which the U.S.
is a signatory, is the same. The Binding Convention Against Torture,
negotiated by the Reagan administration, ratified by the Senate,
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 these terms. All of
this seems to be common sense and in accordance with longstanding
American values.
I will be glad to explain that amendment more if anyone wants. In the
meantime, I know the Senator from Alabama is waiting.
I yield back the remainder of my time on this amendment. I ask
unanimous consent we return at this time to amendment No. 1557,
according to the previous unanimous consent agreement.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from Alabama is recognized for 10 minutes.
Mr. WARNER. If the Senator will withhold, I want to endorse the
McCain amendment. Essentially what he is doing is codifying what is
policy now. I think it is of such importance that it would require this
bill to do so.
I yield the floor.
Amendment No. 1557
The PRESIDING OFFICER. The Senator from Alabama is recognized for 10
minutes.
Mr. SESSIONS. Mr. President, I will share a little bit of the history
of what has happened, as I recall it. I am sorry, I just got back from
Alabama and was not able to participate earlier in the debate. We have
had maybe 29 hearings involving prisoner abuse. That is a lot of
hearings. I serve on the Judiciary and Armed Services Committees.
Probably 20 of those have been in those 2 committees of which I have
been a member and tried to participate as much as I could in each one
of them. I remember that the U.S. military announced they had problems
in Abu Ghraib with prisoner abuse. They indicated they were conducting
an investigation of it. Members of the Senate, like dogs that chase a
car down the road, sometimes I thought they thought they were making
the car go because they were chasing it.
The military commenced, on its own accord, an investigation that has
culminated in the conviction of a number of people who have gone to
jail for rather substantial periods of time for
[[Page S8799]]
violating the policies of the Department of Defense and the laws of war
on those prisoners in Abu Ghraib. It took place on a midnight shift and
was not justified. It was beyond the law, and they have been punished
for it. That has been morphed into allegations about what happened at
Guantanamo.
We apprehended 17,000 prisoners in Afghanistan and Iraq. We brought
700 to Guantanamo. There are only 500 left. Some of those are the worst
of the worst. Allegations were made that they were being abused. A
thorough investigation has been conducted of that. Once again, we had a
committee hearing to rehear the report. General Schmidt said there were
24,000 investigations. He found three areas in which he felt things had
gone awry at Guantanamo. All happened right quickly after 9/11, not
going on now, because I was there at Guantanamo Friday a week ago and
they absolutely assured us, Senator Graham and others who were with us,
Chairman Warner, that nothing like that is going on today.
But what were the three complaints? Mr. Khatani, the 20th hijacker,
he found, had been abused cumulatively, three different things
happened. He was interrogated for 20 hours. He was made to listen to
loud music. And at certain times he had been put in shackles. The
general found that was not torture under the definition of torture. It
was not inhuman. But together, they violated the standards the U.S.
military adheres to, and he felt that was in error.
One individual was screaming loudly repeatedly and would not stop.
Someone said he should be stopped. They found some duct tape, and
Americans, I guess, are good with that. They put it around his mouth.
He took it off, and they did it again. He took it off, and they did it
again. So they put it all the way around his head. He felt that was an
abuse. A woman interviewer-interrogator, perhaps losing her temper, or
whatever, issued a threat to one of the prisoners and their family.
There were 3 out of 24,000 matters in Guantanamo.
So, first, I reject the idea that this Defense Department and our
Army and our military is out of control, is confused about what their
powers and duties and responsibilities are. I reject that. I don't
believe that is accurate.
Now, the field manual is good. We had a number of witnesses before
the committee. In one of the many hearings, General Taguba and several
others, when asked, or they just volunteered that the current rules of
interrogation under the field manual aren't appropriately applicable to
all the kinds of new threats we face today and the kind of prisoners we
deal with today. These prisoners today are not under the Geneva
Conventions and aren't prisoners of war. They are unlawful combatants.
They sneak into countries. They don't wear a uniform. They don't carry
their arms openly. They make bombs. They direct them not at military
targets but at men, women, and children who are going about their
peaceful business. So it is indisputable that the Geneva Conventions
don't apply to them.
We have a statute in this country that prohibits torture of anybody
in our control, and that statute stands firm and clear, and that is
certainly a basis for a criminal prosecution for anybody who goes too
far in interrogating witnesses.
Now, you are limited in what you can do when you interrogate a
prisoner of war. We are told to give only name, rank, and serial
number, and others have similar instructions from their countries. You
are limited as to how much you can interrogate them and how much you
can expect them to say. These people are not prisoners of war. They are
terrorists, unlawful combatants, determined to savage the peaceful
people of Spain and their railroad, the people of London, or the people
of New York City. Thank God that because we have been aggressive and
been after them and obtained intelligence from interviews and
interrogation and techniques within the rules of warfare, we have been
able to prevent another attack on this country--Lord be praised--for
almost 4 years now. It can happen again at any time.
I am proud of what our men and women are doing. I was at one of the
committee hearings when a young lieutenant commander in the Navy
testified that the prosecutor blocked him from interviewing a witness.
He told him what to do. He told him he could only plead guilty.
I said: Sir, you are a lieutenant commander in the U.S. Navy--I was
in a JAG officer slot. Unlike Senator Graham, I was not trained at the
JAG officer school. But I had some training in it and taught the laws
of warfare to our soldiers in the Army Reserve. At any rate, this guy
said he was ordered by the prosecutor.
I said: I never heard of a defense counsel saying a prosecutor could
order them around.
He said: Well, he told me I could not see the prisoner.
I said: You could not see the prisoner?
He said: Except at limited times.
It was out of this that he came up with this bizarre allegation that
he was somehow defending the terrorist. He was given a letter, and he
said he could only represent him to plead guilty. The letter that
appointed him to defend the guy said he was to represent him in all
categories. I was disappointed in the quality of his complaints. I
don't think they held up to be nearly what he was saying publicly.
Whatever got into people's craw about how these matters were handled is
a bit out of whack.
Let's say this: The field manual is the manual that controls our
handling of a lot of things in the Army, including interrogation. But
the President of the United States is Commander in Chief of the
military, and these kinds of prisoners, as the witnesses told us in
committee, were not contemplated when the field manual was written.
Different techniques could be legitimate against them that would not be
legitimate against lawful combatants--the kinds of people we have seen
so many times in the history of warfare. It is a weird thing. We should
not treat them inhumanely. It is an order of the President that we
cannot. We cannot torture them. We have a criminal statute that defines
that and says you cannot do it. You can go to jail if you do.
I ask unanimous consent for 2 more minutes.
The PRESIDING OFFICER. Is there objection?
Mr. LEVIN. Mr. President, reserving the right to object, I wonder if
we can line up some time at this point. I will not object, but after he
is recognized, I believe then the majority has additional time for
another amendment going up to what time?
Mr. WARNER. We are operating under an original 1-hour agreement that
was modified to give 10 minutes to the Senator from Alabama. I think
under the original 1 hour the Senator from Virginia has time and the
Senator from South Carolina has time. Would I be correct?
The PRESIDING OFFICER. The Senator is correct. The Senator from
Virginia has 9 minutes remaining. The Senator from South Carolina has
10 minutes remaining. We still show the Senator from Arizona, Mr.
McCain, with 2 minutes remaining.
The Chair also notifies Senators that under the previous order, at 5
o'clock, the Senate is to go to 30 minutes of debate on the Americans
with Disabilities resolution.
Mr. WARNER. Mr. President, that is followed by a vote, is my
understanding.
The PRESIDING OFFICER. Yes, it is scheduled for 5:30.
Mr. LEVIN. Mr. President, I ask unanimous consent that immediately
following the completion of those three time periods on the Republican
side, I be allocated 10 minutes on this side, which I will provide
equally between the junior Senator from Michigan, the Senator from
Washington, and myself, so that four amendments can be introduced and
laid aside.
Mr. WARNER. Reserving the right to object, and I do not wish to
object, it seems to me that reality dictates that in 6 minutes we will
go on the ADA; am I correct?
The PRESIDING OFFICER. The Senator is correct.
Mr. WARNER. In effect, the Senator from South Carolina, unless he
wants to take the 6 minutes and put his amendment in, we would have to
come back to it at the conclusion of the ADA. Would that be acceptable?
Mr. GRAHAM. I don't want to stop Senator Sessions from finishing. I
can come back.
The PRESIDING OFFICER. The unanimous consent request right now is 2
additional minutes for the Senator from Alabama.
[[Page S8800]]
Mr. LEVIN. Reserving the right to object, we have not had any time
prior to the ADA matter, and it was intended that we have some time.
There is a prepared UC that would perhaps assist us, which has been
handed to us. I wonder if the manager will read this.
Mr. WARNER. Mr. President, I ask unanimous consent that
notwithstanding the previous order, the Senate resume consideration of
S. 207 at 5:15 today, with 15 minutes to debate under the control of
Senator Harkin. I further ask that following the use or yielding back
of the time, the Senate proceed to a rollcall vote on the resolution as
under the previous order.
Mr. LEVIN. Reserving the right to object, I ask that that be modified
to allow 10 minutes between 5:15 and 5:30 to be granted to this side
for the introduction of those amendments. They will be introduced, with
a minute on each, and then set aside.
Mr. WARNER. Mr. President, I believe that will accommodate our
distinguished colleague from South Carolina to introduce his amendment
beginning now, concluding at 5:10, at which time the Chair will
recognize the junior Senator from Michigan for a period not to exceed 5
minutes.
Mr. LEVIN. No.
Mr. SESSIONS. Mr. President, can we include my 2 minutes?
Mr. LEVIN. The junior Senator from Michigan, 2 minutes; the Senator
from Washington, 2 minutes; and me for 1 minute.
The PRESIDING OFFICER. Does the Senator modify the unanimous consent
request?
Mr. WARNER. I do so to accommodate Senator Levin. We have 2 minutes
now for the Senator from Alabama to complete his remarks before the
Chair recognizes the Senator from South Carolina; is that correct?
The PRESIDING OFFICER. Is there objection to the request by the
Senator from Alabama?
Mr. LEVIN. Reserving the right to object, does that include the UC
which the Senator from Virginia read?
The PRESIDING OFFICER. The separate unanimous consent request of the
Senator from Virginia would incorporate that. There is one request for
2 additional minutes for the Senator from Alabama; 9 minutes for the
Senator from Virginia--
Mr. LEVIN. Reserving the right to object, the Democratic leader is
going to want 2 minutes prior to the vote on leadership time, or prior
to 5:15. You all figure it out.
Mr. WARNER. We certainly want to accommodate the Democratic leader.
The Senator from South Carolina indicated that perhaps he would like to
take up his amendment following the vote, giving him then such time as
he requires, and giving the Senator from Michigan such time as he may
require. So perhaps let us allocate the remaining time between now and
5:15 between the Senator from Alabama, the two colleagues on that side,
and the distinguished Democratic leader.
Mr. GRAHAM. That is acceptable to me.
Mr. WARNER. Mr. President, following the completion of the rollcall
vote, I ask unanimous consent that the Senator from South Carolina be
recognized.
The PRESIDING OFFICER. If the Chair understands the now-modified
unanimous consent request, it is a request that the Senator from
Alabama be recognized for 2 additional minutes, the time between that
and 5:15 would be the Senator from Michigan, and at 5:15, under the
previous order, the Senate would consider the Americans with
Disabilities resolution, followed by a vote at 5:30, followed by the
Senator from South Carolina being recognized to offer his amendment.
Mr. WARNER. Mr. President, that is correct.
The PRESIDING OFFICER. Is there objection?
Mr. GRAHAM. Reserving the right to object, I would like to be able to
state some general areas of agreement and disagreement concerning
Senator Sessions' statement. Is that possible when I introduce my
amendment?
Mr. LEVIN. I wonder if the Senator will yield. We need only 7\1/2\
minutes before 5:15. I wonder if the chairman will agree to this: After
Senator Sessions, go to the Senator from South Carolina for 5 minutes,
and then come to me.
Mr. WARNER. That is acceptable.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Alabama is recognized for 2 minutes.
Mr. SESSIONS. Mr. President, I will try to conclude and sum this up.
This country was attacked by a very dangerous group of people. I
certainly respect my colleagues' concern and commitment that our
prisoners be treated humanely and consistent with the rules of war. I
have also said that the rules of the Geneva Conventions do not apply to
these unlawful combatants. The field manual is an Army Department of
Defense document that sets the rules for our conduct. But the DOD can
alter that.
As I understand what this amendment would do, it would make the field
manual, with regard to the section involving interrogation and
intelligence, the equivalent of law; that before the Army or Department
of Defense could make any changes in those field manuals, somebody
would have to offer legislation in the House and the Senate, which
would be subject to a filibuster and maybe we could fix it and maybe we
could not. It becomes force of law. I think that is a mistake.
Finally, alterations in procedure by which these prisoners or
detainees were handled was done with review by the Department of
Justice. We had Attorney General Gonzales, when he was White House
counsel and Attorney General, testify about how it came about and all
the legal research that went into it. We had the Department of Defense
leadership discuss this. They reviewed it. The generals reviewed the
heightened techniques personally, individually, and carefully on a
case-by-case basis, and they recommended this general at Guantanamo,
Miller, be disciplined because these combination of events exceeded
what was proper. It was overruled later, but that is how seriously they
take this.
I don't think this is the way to fix this situation. Some prisoners
need to be handled differently than others. We should not bind by law
what the field manual states.
The PRESIDING OFFICER. The Senator's time has expired. Under the
unanimous consent agreement, the Senator from South Carolina is
recognized.
Mr. GRAHAM. Mr. President, I would like to build on what Senator
Sessions said. If this amendment did the things suggested, I would
support it. One, the Army Field Manual is being revised, as we speak,
with two groups in mind--lawful combatants and unlawful combatants. The
amendment says that the Army Field Manual be the guide in whatever form
it is in. It does not lock in this version. They are going to have a
version part of it classified so our enemy does not have a chance to
prepare for interrogation techniques that deal with lawful combatants
and unlawful combatants.
The reason we are doing that is because what the JAGs told us over 2
years ago. The common thread among our recommendations is concern for
servicemembers.
If we put people on the line in this war in terror, we want to give
them everything they need as far as equipment. If we put people on the
line in terms of handling detainees, we want to give them everything
they need, the tools to get good information, but what we do not want
to do is put our own people at risk.
We are trying to armor all our vehicles. What we are trying to do
with the people who are holding these terrorists and interrogating them
is not getting them in trouble. The Office of Legal Counsel, on 27
February 2003, from a Marine general, not exactly the ACLU, said:
The common thread among our recommendations is concern for
our service members. The Office of Legal Counsel does not
represent the services, thus understandably concern for
service members does not reflect in their opinion. Notably,
their opinion is violent on the foreign views of
international law.
This is what the judge advocate general of the Army said:
I recommend the aggressive counterresistant interrogation
techniques under consideration be vetted with the Army
intelligence community before a final decision on their use
is made. Some of these techniques do not comport with Army
doctrine as set forth in the Field Manual, FM 34-52,
intelligence interrogation, and may be of questionable
practical value in obtaining reliable information of those
being interrogated.
What we are trying to do is have a guide our troops can understand
with
[[Page S8801]]
two parts--one for lawful combatants and one for unlawful enemy
combatants. We will know what the rules of the road will be. We are
putting congressional approval on those rules.
We have had the White House, Congress, and eventually the courts
saying you can aggressively interrogate prisoners not covered by the
Geneva Conventions. We have been all over the board for the last couple
of years. We are trying to bring it together in symmetry where the
military can write the rules. They know better than I do. I am not
saying I am an expert on interrogations. They are going to write the
rules the way they need to be written, and Congress is going to say you
are good to go.
These JAGs were telling us you have confused concepts, so we are
trying to do away with that confusion to make it stronger, not weaker,
to make us better at gathering intelligence and avoid the problems we
have had in the last 2 years.
I think it is a very smart thing to do. I look forward to trying to
help change it if it needs to be changed, but nobody is locking the
military into a set of rules that does not allow them to aggressively
get what they need to make us safe. We are trying to provide the
military and all those in charge of detainees clear guidance so they
will have the flexibility they need and we will not get our people in
trouble. That is what we have been working on for 2 years. We are at a
point where we can actually accomplish something that will be good for
this country, good for the military, and help win this war on terror.
Part of this war is about image.
Mr. SESSIONS. Will the Senator yield?
Mr. GRAHAM. Yes, I yield.
Mr. SESSIONS. It did say ``not authorized in the field manual.'' But
the Senator from South Carolina interprets that to mean that the
military could amend it at any point in time.
Mr. GRAHAM. Absolutely.
Mr. SESSIONS. I think that is more acceptable, but even then the
policies in the field manual should reflect the executive branch, it
seems to me, being able to use extraordinary events and extraordinary
circumstances.
Mr. GRAHAM. And it will be. There will be a section that is specific
for unlawful enemy combatants. That is not a traditional way to deal
with them versus POWs.
Mr. SESSIONS. I thank the Senator.
The PRESIDING OFFICER. Under the previous order, the Senator from
Michigan has the time remaining up to 5:15 p.m. under his control.
Mr. LEVIN. Mr. President, I yield 3 minutes to my colleague from
Michigan.
The PRESIDING OFFICER. The Senator from Michigan.
[...]
