Congressional Record: November 7, 2005 (Senate)
Page S12420-S12422
TREATMENT OF DETAINEES
Mr. ROCKEFELLER. Mr. President, I commend Senator Levin and others
for their leadership in proposing this amendment. I am proud to be an
original cosponsor of the amendment based on the belief that a
comprehensive, objective, and independent investigation into the
collection of intelligence through the detention, interrogation, and
rendition of prisoners is long overdue. While I am a strong supporter
of the amendment, I regret greatly the fact that we have been forced to
seek the creation of a national commission on such a critically
important matter that falls squarely within the oversight
responsibility of the Congress. Unfortunately, Congress's unwillingness
to carry out these oversight duties in the past year has left us with
no remaining alternative but to seek the creation of a national
commission.
Why do I say this? The collection of intelligence through
interrogation and rendition is an extremely important part of our
counterterrorism effort. The interrogation of captured terrorists and
insurgents is, in fact, one of the most important of intelligence
tools. We must ensure that those interrogations are carried out in a
proper and effective manner. This tool, as with all others, must be
applied within the bounds of our laws and our own national moral
framework, and it must be subject to the same scrutiny and
congressional oversight as every other aspect of intelligence. This,
unfortunately, has not been the case.
Despite the critical importance of interrogation-derived intelligence
and the growing controversy surrounding retention, interrogation, and
rendition policies and practices, the Congress has largely ignored the
issue, holding a limited number of hearings that have provided limited
insight.
More disturbing, the Senate Intelligence Committee, the Senate
committee charged with overseeing U.S. intelligence programs and the
only one with jurisdiction to investigate all aspects of this issue, is
sitting on the sidelines and effectively abdicating its oversight
responsibility to media investigative reporters.
As the Intelligence Committee's vice chairman, I have been pushing
for the past 10 months for a formal investigation into the legal and
operational
[[Page S12421]]
questions at the heart of the detention interrogation controversy, as
has my colleague from the State of Michigan, Senator Levin.
My proposal that the Intelligence Committee conduct an investigation
into this matter was rejected. A decision was made that the
Intelligence Committee, as it is charged to do, would not formally
examine the legal and operational aspects of our detention and
interrogation program despite compelling and disturbing evidence that
serious, possibly criminal, abuses had occurred.
Now, this decision is particularly curious given the litany of
investigations carried out by the Intelligence Committee in the past.
In recent years, our committee has produced detailed investigative
reports into prewar intelligence on Iraq, technology transfer to China,
the bombing of the USS Cole, and the shooting down of the missionary
plane in Peru, and on and on. In fact, on July 30, 1999, a few years
before he became our current chairman, Senator Pat Roberts wrote to
then-Chairman Richard Shelby and Vice Chairman Bob Kerrey requesting an
investigation into the intelligence related to the downing of CDR
Michael Scott Speicher's F-18 plane in the early stages of the Persian
Gulf war.
The committee responded favorably to Senator Roberts' request,
conducted the investigation, and produced a report. Each of the
committee reports was produced as a result of formally authorized
investigations, and each was a constructive contribution to
understanding not just how and why intelligence failures occur but what
action should be taken to avoid them in the future. Our unanimously
approved first phase of our Iraq report last July, which was the
weapons of mass destruction aspect, was a rather thorough and
devastating critique of the collection and analytical failings of our
intelligence community prior to the war that has provided, frankly, a
very critical momentum to an intelligence reform movement that was
already gathering steam and ended up in the passage of landmark
legislation in December, which most people would have said a couple of
months earlier was not possible. Yet when presented with a similar set
of compelling reports on how the United States detains and interrogates
prisoners, the majority on the committee has prevented us from pursuing
an investigation.
Why? Well over a year has passed since the appearance of photographs
graphically portraying the abuse of Iraqi prisoners at Abu Ghraib
prison. As my colleagues know, these images and other reports of abuse
provided a powerful propaganda tool to our terrorist enemies. Since
then we have seen a steady stream of accusations relating to the way
the U.S. military and intelligence agencies treat individuals in their
custody. Allegations of mistreatment have surfaced wherever the United
States holds prisoners overseas--across Iraq, Afghanistan, and at
Guantanamo Bay, Cuba.
Troubling new revelations have become an almost daily occurrence,
with a disturbing number of these instances resulting in prisoner
deaths. At least 26 prisoners have died in American custody, and the
unsettling charge has been leveled against the United States that we
are exporting torture through rendition practices that lack
accountability.
Who can honestly say that these events and allegations are not
serious enough to warrant an Intelligence Committee investigation? My
good friend and chairman of the Senate Armed Services Committee,
Senator John Warner, believed such an investigation was needed back in
February of this year, and at the February 18 open Intelligence
Committee hearing on worldwide threats, which we do once a year,
Senator Warner remarked:
And there's an issue out here, I say to my distinguished
chairman and ranking member and colleagues on the committee,
which I think we've got to address both in my committee and
in this committee, and that is the manner in which we gain
intelligence from those that are captured, either on the
battlefield or in other areas.
My hope was that sort of congressional inquiry referenced by Senator
Warner back in February would have become a reality.
The Armed Services Committee and the Intelligence Committee with
their respective oversight of the military and intelligence communities
could have provided the sort of complementary reviews into troubling
allegations swirling around our interrogation of prisoners in
Afghanistan, Iraq, and, as I said, Guantanamo Bay. Regrettably, our
efforts and those of Senator Levin to authorize and conduct such an
investigation have not succeeded. We are now, therefore, left by
default with the remaining option of turning over this responsibility
to a national commission to carry it out.
If the Senate oversight committees are either unwilling or unable to
tackle the tough but necessary questions associated with detention,
interrogation, and rendition of prisoners, then we should step aside,
if we have to, regrettably, and let the work be done by those
unfettered by other considerations.
I am confident that this new national commission, like the 9/11
Commission, and the Weapons of Mass Destruction Commission before it,
will provide the sort of comprehensive review of U.S. policy and
practices relating to the treatment of detainees that has been absent
so far.
Our amendment calls for a 12-month investigation in which all aspects
of all of this must be looked at. More specifically, the 10-person
commission will examine and report upon the policies and practices of
the United States relating to the treatment of individuals detained
since September 11, 2001. The commission will also be tasked to
evaluate causes and factors that have contributed to the alleged
mistreatment of detainees, including an assessment of either those
directly or indirectly responsible for the mistreatment.
I am worried about the legal aspects of our underpinning, and I will
more or less close with this: On May 18, 2005, the Central Intelligence
Agency issued a statement that ``CIA policies on interrogation have
always followed legal guidance from the Department of Justice.'' That
may or may not be so, but was that legal guidance supportable? That is
what you have to ask. Was it supportable? Was it factual?
A lengthy legal opinion on the Department of Justice interrogation
practices, which had been issued in secret, in August, 2002, was
quickly repudiated by the White House when it became public in June of
2004 and was then superseded by a public Justice Department legal
opinion in December of 2004.
As that episode shows, secret interpretations of the law beyond the
oversight of the Congress are an invitation to potentially great error.
What supporting roles do the CIA and FBI play in the interrogation of
suspects of military-run prisons and how are their activities
coordinated? It has been publicly reported that the CIA requested that
a number of prisoners held in Iraq not be registered and be kept from
international inspection; therefore, the so-called ghost detainees.
More recently, it has come to light that FBI officials lodged
strenuous complaints about what they considered to be the mistreatment
of prisoners held at Guantanamo Bay. These reports and others strongly
suggest that different agencies are operating under different sets of
rules, or they are not coordinated. This is a recipe for disaster which
will come back to haunt us one of these days.
The commission will also review policies regarding the controversial
practice of the United States of rendering detainees to foreign
governments for interrogation.
Our practice of contracting out to foreign governments the
interrogation of detainees is, to this Senator, particularly troubling.
There have been numerous reports of individuals turned over by the
United States to a foreign government for interrogation allegedly being
tortured.
In addition to the ethical and legal considerations associated with
this practice, the veracity of the information gained from these and
other detainees is called into question if these statements were made
under physical coercion. Therefore, it is important that we have a
thorough evaluation of the current policy guidelines and field
directives for when it is appropriate to render a detainee to another
country and what intelligence is gained from such a practice.
More specifically, we must examine the validity of assurances that
the
[[Page S12422]]
United States is given when detainees are rendered to other countries
that they will not be tortured.
The PRESIDING OFFICER (Mr. Coburn). The Senator's time has expired.
Mr. ROCKEFELLER. I hope my colleagues will support the amendment. I
thank the Presiding Officer.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I do have the privilege of being an ex
officio member of the Intelligence Committee. I served 8 years on that
committee, and my concluding years was as ranking member. I have a very
high respect for that committee and find, from my participation,
together with others on it, under the leadership of Chairman Roberts
and Senator Rockefeller, that the committee does a very good job.
Mr. President, I wish to speak in opposition about this question of
the need for this country to establish an independent commission to
investigate the detention and interrogation operations conducted by the
Department of Defense and other elements of the Government in
conjunction with the war on terrorism.
Mr. President, I ask unanimous consent to speak in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
Congressional Record: November 7, 2005 (Senate)
Page S12432-S12436
Amendment No. 2430
Mr. LEVIN. Mr. President, very briefly, on the question of the
independent commission, my good friend from Virginia rattled off a
bunch of statistics as to how many investigations have taken place, how
many hearings have been held, how many witnesses have been interviewed,
with something like 12 major investigations. We have had 40 closed
hearings, I think he said, 30 open hearings, and 16,000 pages of
documents have been obtained.
As I thought was going to happen, those kinds of numbers were going
to be utilized. The problem is, they are not particularly relevant to
the point which this commission amendment seeks to address, which is
there are huge gaps in these investigations. There could be 20 hearings
or 50 hearings or 100 hearings, but these investigations have not
gotten to 5 major points, such as, What is the role of the intelligence
community?
The people who have done the investigating have said they have not
gotten to that point, they have not reached that issue. The CIA has not
cooperated with them. So we have that huge gap in the investigations
that have taken place so far. Are there secret prisons around the world
being maintained? What about the ghost detainees? There is not a week
that goes by that we are not reading about an issue that relates to the
intelligence community, particularly the CIA's role in terms of
interrogating detainees. Yet that is an almost complete blank slate.
All of those investigations which have been made, which the Senator
from Virginia referred to, have said: Well, we have not gotten into
that issue. We were not allowed to get into that issue.
Another major area is the U.S. Government policy on rendition. We
have not had any investigation on that.
Another major area is the role of contractors. We have not had any
investigation on that.
Another major area is the legality of the interrogation techniques,
particularly the two major documents setting forth the techniques which
were going to be used, the so-called second Bybee memo and the memo
from Mr. Yoo to the Department of Defense general counsel, Mr. Haynes.
We have not gotten there. So there has been no investigation of the
legality of the interrogation techniques permitted by the Office of
Legal Counsel's memos to which I have just referred. And there are a
number of outstanding document requests which have been flatout denied
relative to what happened at Guantanamo.
Now, it does not make any difference how many hearings have been
held--as long as you have those gaps which are greater than the amount
covered, you have not had a thorough investigation, or anything close,
of detainee abuses and these so-called secret prisons around the world
which are allegedly
[[Page S12433]]
maintained. That is the point. That is why you need an independent
commission. You cannot sweep this under the rug. It is going to pop up
again. There is going to be another captain who is going to show up--
and my friend from Virginia met with this captain. This is a letter to
Senator McCain from Captain Fishback, who is in a parachute infantry
regiment in the 82nd Airborne Division at Fort Bragg, talking about the
way intelligence personnel were used to give directions to soften up
detainees. But we have had no investigation of intelligence.
So you have an honorable member of the U.S. military, CPT Ian
Fishback. I had a personal conversation with this captain where he
described to me what I just said, that there were directions from the
intelligence community to soften up detainees. He says:
Instead of resolving my concerns, the approach for
clarification process leaves me deeply troubled.
This is a letter to Senator McCain. I ask unanimous consent it be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Sept. 28, 2005]
A Matter of Honor
Dear Senator McCain: I am a graduate of West Point
currently serving as a Captain in the U.S. Army Infantry. I
have served two combat tours with the 82nd Airborne Division,
one each in Afghanistan and Iraq. While I served in the
Global War on Terror, the actions and statements of my
leadership led me to believe that United States policy did
not require application of the Geneva Conventions in
Afghanistan or Iraq. On 7 May 2004, Secretary of Defense
Rumsfeld's testimony that the United States followed the
Geneva Conventions in Iraq and the ``spirit'' of the Geneva
Conventions in Afghanistan prompted me to begin an approach
for clarification. For 17 months, I tried to determine what
specific standards governed the treatment of detainees by
consulting my chain of command through battalion commander,
multiple JAG lawyers, multiple Democrat and Republican
Congressmen and their aides, the Ft. Bragg Inspector
General's office, multiple government reports, the Secretary
of the Army and multiple general officers, a professional
interrogator at Guantanamo Bay, the deputy head of the
department at West Point responsible for teaching Just War
Theory and Law of Land Warfare, and numerous peers who I
regard as honorable and intelligent men.
Instead of resolving my concerns, the approach for
clarification process leaves me deeply troubled. Despite my
efforts, I have been unable to get clear, consistent answers
from my leadership about what constitutes lawful and humane
treatment of detainees. I am certain that this confusion
contributed to a wide range of abuses including death
threats, beatings, broken bones, murder, exposure to
elements, extreme forced physical exertion, hostage-taking,
stripping, sleep deprivation and degrading treatment. I and
troops under my command witnessed some of these abuses in
both Afghanistan and Iraq.
This is a tragedy. I can remember, as a cadet at West
Point, resolving to ensure that my men would never commit a
dishonorable act; that I would protect them from that type of
burden. It absolutely breaks my heart that I have failed some
of them in this regard.
That is in the past and there is nothing we can do about it
now. But, we can learn from our mistakes and ensure that this
does not happen again. Take a major step in that direction;
eliminate the confusion. My approach for clarification
provides clear evidence that confusion over standards was a
major contributor to the prisoner abuse. We owe our soldiers
better than this. Give them a clear standard that is in
accordance with the bedrock principles of our Nation.
Some do not see the need for this work. Some argue that
since our actions are not as horrifying as Al Qaeda's, we
should not be concerned. When did Al Qaeda become any type of
standard by which we measure the morality of the United
States? We are America, and our actions should be held to a
higher standard, the ideals expressed in documents such as
the Declaration of Independence and the Constitution.
Others argue that clear standards will limit the
President's ability to wage the War on Terror. Since clear
standards only limit interrogation techniques, it is
reasonable for me to assume that supporters of this argument
desire to use coercion to acquire information from detainees.
This is morally inconsistent with the Constitution and
justice in war. It is unacceptable.
Both of these arguments stem from the larger question, the
most important question that this generation will answer. Do
we sacrifice our ideals in order to preserve security?
Terrorism inspires fear and suppresses ideals like freedom
and individual rights. Overcoming the fear posed by terrorist
threats is a tremendous test of our courage. Will we confront
danger and adversity in order to preserve our ideals, or will
our courage and commitment to individual rights wither at the
prospect of sacrifice? My response is simple. If we abandon
our ideals in the face of adversity and aggression, then
those ideals were never really in our possession. I would
rather die fighting than give up even the smallest part of
the idea that is ``America.''
Once again, I strongly urge you to do justice to your men
and women in uniform. Give them clear standards of conduct
that reflect the ideals they risk their lives for.
With the Utmost Respect,
Capt. Ian Fishback,
1st Battalion, 504th Parachute Infantry Regiment, 82nd
Airborne Division, Fort Bragg, NC.
Mr. LEVIN. He sets forth what has happened here in terms of abuses
and how it hurts our military. It hurts him. It is not just hurting our
honor, it makes their lives more dangerous in case they are ever
captured. And he ends by saying:
If we abandon our ideals in the face of adversity and
aggression, then those ideals were never really in our
possession. I would rather die fighting than give up even the
smallest part of the idea that is ``America.''
Now, that is a member of the U.S. military.
We cannot sweep this under the rug. The investigations so far have
swept critical issues under the rug. They are going to surface sooner
or later. Better to have an independent commission take a look at them,
get it away from any partisanship, and have a commission the way the 9/
11 Commission was appointed, with five Democratic appointees, five
Republican appointees, and have the President appoint the chairman of
the commission.
But we owe it to the Captain Fishbacks of this world. We owe it to
all the men and women who serve so honorably, which is 99 percent,
probably 99.9 percent, of our military. We owe it to them to protect
them. One way to protect them is to make sure we have a thorough
investigation, without these major gaps, as to what went wrong.
Mr. President, I ask unanimous consent that additional material be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Gaps in the DoD Detainee Abuse Reviews
The carefully-carved out mandates of the nearly a dozen
reviews have left significant gaps and critical issues
unexamined.
1. Role of CIA: Limited or no cooperation from CIA with
investigations.
2. Rendition: No investigation into practice of rendering
prisoners to foreign countries for interrogation.
3. Contractors: Insufficient information on role of
contractors in interrogations and detainee abuse.
4. Special Operations Forces: Allegations of abuses by
Special Operations Forces remain unexamined.
5. Legality of Interrogation Techniques: Investigations
have avoided looking at the legality of the interrogation
techniques that may have been authorized by DoD officials and
others.
6. Key Documents Missing: Key policy and legal documents
from the Defense and Justice Departments not provided to
Congress.
____
[From the Washington Post, Nov. 2, 2005]
CIA Holds Terror Suspects in Secret Prisons
(By Dana Priest)
The CIA has been hiding and interrogating some of its most
important al Qaeda captives at a Soviet-era compound in
Eastern Europe, according to U.S. and foreign officials
familiar with the arrangement.
The secret facility is part of a covert prison system set
up by the CIA nearly four years ago that at various times has
included sites in eight countries, including Thailand,
Afghanistan and several democracies in Eastern Europe, as
well as a small center at the Guantanamo Bay prison in Cuba,
according to current and former intelligence officials and
diplomats from three continents.
The hidden global internment network is a central element
in the CIA's unconventional war on terrorism. It depends on
the cooperation of foreign intelligence services, and on
keeping even basic information about the system secret from
the public, foreign officials and nearly all members of
Congress charged with overseeing the CIA's covert actions.
The existence and locations of the facilities--referred to
as ``black sites'' in classified White House, CIA, Justice
Department and congressional documents--are known to only a
handful of officials in the United States and, usually, only
to the President and a few top intelligence officers in each
host country.
The CIA and the White House, citing national security
concerns and the value of the program, have dissuaded
Congress from demanding that the agency answer questions in
open testimony about the conditions under which captives are
held. Virtually nothing is known about who is kept in the
facilities, what interrogation methods are employed with
them, or how decisions are
[[Page S12434]]
made about whether they should be detained or for how long.
While the Defense Department has produced volumes of public
reports and testimony about its detention practices and rules
after the abuse scandals at Iraq's Abu Ghraib prison and at
Guantanamo Bay, the CIA has not even acknowledged the
existence of its black sites. To do so, say officials
familiar with the program, could open the U.S. government to
legal challenges, particularly in foreign courts, and
increase the risk of political condemnation at home and
abroad.
But the revelations of widespread prisoner abuse in
Afghanistan and Iraq by the U.S. military--which operates
under published rules and transparent oversight of Congress--
have increased concern among lawmakers, foreign governments
and human rights groups about the opaque CIA system. Those
concerns escalated last month, when Vice President Cheney and
CIA Director Porter J. Goss asked Congress to exempt CIA
employees from legislation already endorsed by 90 Senators
that would bar cruel and degrading treatment of any prisoner
in U.S. custody.
Although the CIA will not acknowledge details of its
system, intelligence officials defend the agency's approach,
arguing that the successful defense of the country requires
that the agency be empowered to hold and interrogate
suspected terrorists for as long as necessary and without
restrictions imposed by the U.S. legal system or even by
the military tribunals established for prisoners held at
Guantanamo Bay.
The Washington Post is not publishing the names of the
Eastern European countries involved in the covert program, at
the request of senior U.S. officials. They argued that the
disclosure might disrupt counterterrorism efforts in those
countries and elsewhere and could make them targets of
possible terrorist retaliation.
The secret detention system was conceived in the chaotic
and anxious first months after the Sept. 11, 2001, attacks,
when the working assumption was that a second strike was
imminent.
Since then, the arrangement has been increasingly debated
within the CIA, where considerable concern lingers about the
legality, morality and practicality of holding even
unrepentant terrorists in such isolation and secrecy, perhaps
for the duration of their lives. Mid-level and senior CIA
officers began arguing two years ago that the system was
unsustainable and diverted the agency from its unique
espionage mission.
``We never sat down, as far as I know, and came up with a
grand strategy,'' said one former senior intelligence officer
who is familiar with the program but not the location of the
prisons. ``Everything was very reactive. That's how you get
to a situation where you pick people up, send them into a
netherworld and don't say, `What are we going to do with them
afterwards?' ''
It is illegal for the government to hold prisoners in such
isolation in secret prisons in the United States, which is
why the CIA placed them overseas, according to several former
and current intelligence officials and other U.S. government
officials. Legal experts and intelligence officials said that
the CIA's internment practices also would be considered
illegal under the laws of several host countries, where
detainees have rights to have a lawyer or to mount a defense
against allegations of wrongdoing.
Host countries have signed the U.N. Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, as has the United States. Yet CIA interrogators
in the overseas sites are permitted to use the CIA's approved
``Enhanced Interrogation Techniques,'' some of which are
prohibited by the U.N. convention and by U.S. military law.
They include tactics such as ``waterboarding,'' in which a
prisoner is made to believe he or she is drowning.
Some detainees apprehended by the CIA and transferred to
foreign intelligence agencies have alleged after their
release that they were tortured, although it is unclear
whether CIA personnel played a role in the alleged abuse.
Given the secrecy surrounding CIA detentions, such
accusations have heightened concerns among foreign
governments and human rights groups about CIA detention and
interrogation practices.
The contours of the CIA's detention program have emerged in
bits and pieces over the past two years. Parliaments in
Canada, Italy, France, Sweden and the Netherlands have opened
inquiries into alleged CIA operations that secretly captured
their citizens or legal residents and transferred them to the
agency's prisons.
More than 100 suspected terrorists have been sent by the
CIA into the covert system, according to current and former
U.S. intelligence officials and foreign sources. This figure,
a rough estimate based on information from sources who said
their knowledge of the numbers was incomplete, does not
include prisoners picked up in Iraq.
The detainees break down roughly into two classes, the
sources said.
About 30 are considered major terrorism suspects and have
been held under the highest level of secrecy at black sites
financed by the CIA and managed by agency personnel,
including those in Eastern Europe and elsewhere, according to
current and former intelligence officers and two other U.S.
government officials. Two locations in this category--in
Thailand and on the grounds of the military prison at
Guantanamo Bay--were closed in 2003 and 2004, respectively.
A second tier--which these sources believe includes more
than 70 detainees--is a group considered less important, with
less direct involvement in terrorism and having limited
intelligence value. These prisoners, some of whom were
originally taken to black sites, are delivered to
intelligence services in Egypt, Jordan, Morocco, Afghanistan
and other countries, a process sometimes known as
``rendition.'' While the first-tier black sites are run by
CIA officers, the jails in these countries are operated by
the host nations, with CIA financial assistance and,
sometimes, direction.
Morocco, Egypt and Jordan have said that they do not
torture detainees, although years of State Department human
rights reports accuse all three of chronic prisoner abuse.
The top 30 al Qaeda prisoners exist in complete isolation
from the outside world. Kept in dark, sometimes underground
cells, they have no recognized legal rights, and no one
outside the CIA is allowed to talk with or even see them, or
to otherwise verify their well-being, said current and former
and U.S. and foreign government and intelligence officials.
Most of the facilities were built and are maintained with
congressionally appropriated funds, but the White House has
refused to allow the CIA to brief anyone except the House and
Senate intelligence committees' chairmen and vice chairmen on
the program's generalities.
The Eastern European countries that the CIA has persuaded
to hide al Qaeda captives are democracies that have embraced
the rule of law and individual rights after decades of Soviet
domination. Each has been trying to cleanse its intelligence
services of operatives who have worked on behalf of others--
mainly Russia and organized crime.
origins of the black sites
The idea of holding terrorists outside the U.S. legal
system was not under consideration before Sept. 11, 2001, not
even for Osama bin Laden, according to former government
officials. The plan was to bring bin Laden and his top
associates into the U.S. justice system for trial or to send
them to foreign countries where they would be tried.
``The issue of detaining and interrogating people was
never, ever discussed,'' said a former senior intelligence
officer who worked in the CIA's Counterterrorist Center, or
CTC, during that period. ``It was against the culture and
they believed information was best gleaned by other means.''
On the day of the attacks, the CIA already had a list of
what it called High-Value Targets from the al Qaeda
structure, and as the World Trade Center and Pentagon attack
plots were unraveled, more names were added to the list. The
question of what to do with these people surfaced quickly.
The CTC's chief of operations argued for creating hit teams
of case officers and CIA paramilitaries that would covertly
infiltrate countries in the Middle East, Africa and even
Europe to assassinate people on the list, one by one.
But many CIA officers believed that the al Qaeda leaders
would be worth keeping alive to interrogate about their
network and other plots. Some officers worried that the CIA
would not be very adept at assassination.
``We'd probably shoot ourselves,'' another former senior
CIA official said.
The agency set up prisons under its covert action
authority. Under U.S. law, only the president can authorize a
covert action, by signing a document called a presidential
finding. Findings must not break U.S. law and are reviewed
and approved by CIA, Justice Department and White House legal
advisers.
Six days after the Sept. 11 attacks, President Bush signed
a sweeping finding that gave the CIA broad authorization to
disrupt terrorist activity, including permission to kill,
capture and detain members of al Qaeda anywhere in the world.
It could not be determined whether Bush approved a separate
finding for the black-sites program, but the consensus among
current and former intelligence and other government
officials interviewed for this article is that he did not
have to.
Rather, they believe that the CIA general counsel's office
acted within the parameters of the Sept. 17 finding. The
black-site program was approved by a small circle of White
House and Justice Department lawyers and officials, according
to several former and current U.S. government and
intelligence officials.
Deals With 2 Countries
Among the first steps was to figure out where the CIA could
secretly hold the captives. One early idea was to keep them
on ships in international waters, but that was discarded for
security and logistics reasons.
CIA officers also searched for a setting like Alcatraz
Island. They considered the virtually unvisited islands in
Lake Kariba in Zambia, which were edged with craggy cliffs
and covered in woods. But poor sanitary conditions could
easily lead to fatal diseases, they decided, and besides,
they wondered, could the Zambians be trusted with such a
secret?
Still without a long-term solution, the CIA began sending
suspects it captured in the first month or so after Sept. 11
to its longtime partners, the intelligence services of Egypt
and Jordan.
A month later, the CIA found itself with hundreds of
prisoners who were captured on battlefields in Afghanistan. A
short-term solution was improvised. The agency shoved its
highest-value prisoners into metal shipping containers set up
on a corner of the Bagram
[[Page S12435]]
Air Base, which was surrounded with a triple perimeter of
concertina-wire fencing. Most prisoners were left in the
hands of the Northern Alliance, U.S.-supported opposition
forces who were fighting the Taliban.
``I remember asking: What are we going to do with these
people?'' said a senior CIA officer. ``I kept saying, where's
the help? We've got to bring in some help. We can't be
jailers--our job is to find Osama.''
Then came grisly reports, in the winter of 2001, that
prisoners kept by allied Afghan generals in cargo containers
had died of asphyxiation. The CIA asked Congress for, and was
quickly granted, tens of millions of dollars to establish a
larger, long-term system in Afghanistan, parts of which would
be used for CIA prisoners.
The largest CIA prison in Afghanistan was code-named the
Salt Pit. It was also the CIA's substation and was first
housed in an old brick factory outside Kabul. In November
2002, an inexperienced CIA case officer allegedly ordered
guards to strip naked an uncooperative young detainee, chain
him to the concrete floor and leave him there overnight
without blankets. He froze to death, according to four U.S.
government officials. The CIA officer has not been charged in
the death.
The Salt Pit was protected by surveillance cameras and
tough Afghan guards, but the road leading to it was not safe
to travel and the jail was eventually moved inside Bagram Air
Base. It has since been relocated off the base.
By mid-2002, the CIA had worked out secret black-site deals
with two countries, including Thailand and one Eastern
European nation, current and former officials said. An
estimated $100 million was tucked inside the classified annex
of the first supplemental Afghanistan appropriation.
Then the CIA captured its first big detainee in March 28,
2002. Pakistani forces took Abu Zubaida, al Qaeda's
operations chief, into custody and the CIA whisked him to the
new black site in Thailand, which included underground
interrogation cells, said several former and current
intelligence officials. Six months later, Sept. 11 planner
Ramzi Binalshibh was also captured in Pakistan and flown to
Thailand.
But after published reports revealed the existence of the
site in June 2003, Thai officials insisted the CIA shut it
down, and the two terrorists were moved elsewhere, according
to former government officials involved in the matter. Work
between the two countries on counterterrorism has been
lukewarm ever since.
In late 2002 or early 2003, the CIA brokered deals with
other countries to establish black-site prisons. One of these
sites--which sources said they believed to be the CIA's
biggest facility now--became particularly important when the
agency realized it would have a growing number of prisoners
and a shrinking number of prisons.
Thailand was closed, and sometime in 2004 the CIA decided
it had to give up its small site at Guantanamo Bay. The CIA
had planned to convert that into a state-of-the-art facility,
operated independently of the military. The CIA pulled out
when U.S. courts began to exercise greater control over the
military detainees, and agency officials feared judges would
soon extend the same type of supervision over their
detainees.
In hindsight, say some former and current intelligence
officials, the CIA's problems were exacerbated by another
decision made within the Counterterrorist Center at Langley.
The CIA program's original scope was to hide and
interrogate the two dozen or so al Qaeda leaders believed to
be directly responsible for the Sept. 11 attacks, or who
posed an imminent threat, or had knowledge of the larger al
Qaeda network. But as the volume of leads pouring into the
CTC from abroad increased, and the capacity of its
paramilitary group to seize suspects grew, the CIA began
apprehending more people whose intelligence value and links
to terrorism were less certain, according to four current and
former officials.
The original standard for consigning suspects to the
invisible universe was lowered or ignored, they said.
``They've got many, many more who don't reach any
threshold,'' one intelligence official said.
Several former and current intelligence officials, as well
as several other U.S. government officials with knowledge of
the program, express frustration that the White House and the
leaders of the intelligence community have not made it a
priority to decide whether the secret interment program
should continue in its current form, or be replaced by some
other approach.
Meanwhile, the debate over the wisdom of the program
continues among CIA officers, some of whom also argue that
the secrecy surrounding the program is not sustainable.
``It's just a horrible burden,'' said the intelligence
officials.
____
ACCOUNTABILITY OF SENIOR-LEVEL OFFICERS
----------------------------------------------------------------------------------------------------------------
Name Investigative findings Accountability
----------------------------------------------------------------------------------------------------------------
Overall...................................... Schlesinger Panel: ``[T]he abuses were No action taken.
not just the failure of some
individuals to follow known
standards, and they are more than the
failure of a few leaders to enforce
proper discipline. There is both
institutional and personal
responsibility at higher levels.''
Lt. General Ricardo Sanchez, Commander, CJTF- Jones Report: Findings included: Army Inspector General
7. CJTF-7 policies memos ``led indirectly finds allegations of
to some of the non-violent and non- dereliction of duty
sexual abuse.'' improperly communicating
Sanchez ``failed to ensure proper interrogation policies
staff oversight of detention to be unsubstantiated.
operations.'' Rejects 15 findings from
Schlesinger Panel Report: LTG Sanchez the reports of Generals
established ``confused command Kern and Jones and the
relationship'' at Abu Gharib. Schlesinger Panel.
Maj. Gen. Walter Wojdakowski, Deputy Jones Report: MG Wojdakowski ``failed Army Inspector General
Commander, CJTF-7. to ensure proper staff oversight of finds allegation of
detention and interrogation dereliction of duty to
operations.'' be unsubstantiated.
Schlesinger Panel Report: MG Rejects 10 findings in
Wojdakowski ``failed to initiate reports of Generals Kern
action to request additional military and Jones and of the
police for detention operations after Schlesinger Panel.
it became clear that there were
insufficient assets in Iraq.''
Maj. Gen. Barbara Fast, C/J-2, Director for Schlesinger Panel Report: MG Fast Army IG finds allegation
Intelligence, CJTF-7. ``failed to advise the commander of dereliction of duty
properly on directives and policies to be unsubstantiated,
needed for the operation of the rejecting findings in
[Joint Interrogation and Detention reports of Generals Kern
Center], for interrogation techniques and Jones and of the
and for appropriately monitoring the Schlesinger Panel.
activities of Other Government
Agencies (OGAs)'' in Iraq.
Maj. Gen. Geoffrey Miller, Commander, JTF- Schmidt-Furlow Report: Found that: General Craddock,
GTMO. ``the creative, aggressive, and Commander, U.S. Southern
persistent interrogation of [Detainee Command disapproves the
063] resulted in the cumulative recommendation MG Miller
effect being degrading and abusive be held accountable,
treatment.'' saying the interrogation
MG Miller ``failed to monitor the ``did not result in any
interrogation and exercise commander violation of any U.S.
discretion by placing limits on the law or policy, and the
application of otherwise authorized degree of supervision
techniques and approaches used in provided by MG Miller
that interrogation.'' does not warrant
Recommendation: MG Miller ``should be admonishment under the
held accountable for failing to circumstances.'' General
supervise the interrogation of ISN Craddock forwards report
063 and should be admonished for that to Army IG for review
failure.'' and action as
appropriate.
----------------------------------------------------------------------------------------------------------------
Mr. LEVIN. Mr. President, I yield the floor. I believe the Senator
from Iowa is ready, in case the Senator from Virginia is ready to have
his amendment offered.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, first I want to clarify one thing. The
distinguished Senator from Michigan, as the ranking member of our
committee, participated in all of the hearings of the Armed Services
Committee. There were many hearings on the issue of the detainees, Abu
Ghraib. Then we went through the series of analyses by the Army
inspector general. And on and on we went.
I do hope when he made a reference to sweeping things under the rug--
I do not think our committee ever tried to sweep anything under the
rug.
Mr. LEVIN. I thank my good friend from Virginia. What our committee
has done is held some hearings. They are important hearings. They are
valuable hearings. They have not covered five critical areas. Those
areas have to be brought to the surface. As to those areas, I am not
saying the chairman or our committee has swept them under the rug. We
have allowed those issues to be unaddressed.
Mr. WARNER. Mr. President, I say to the Senator, when you use the
term ``we,'' let's be more specific. You mean the Congress in its
various oversight capacities? Maybe the Intelligence Committee, which
basically has primary jurisdiction over intelligence issues, like you
point out the intelligence aspects of this? The Foreign Relations
Committee has held hearings on this issue. Indeed, the Defense
Appropriations Subcommittee has held some hearings. So I judge that the
``we'' you refer to is the broad responsibilities of the several
committees in the Congress?
Mr. LEVIN. I thank my good friend for that clarification. The ``we''
applies to the Congress. We, the Congress, have oversight
responsibility. We have not carried it out. There are at least five
major areas where we have failed to carry it out. We have to address
those
[[Page S12436]]
areas. We have been unable to do so. I see no evidence that we will.
Therefore, the only way we can do this is with an outside, independent,
9/11-type panel.
But I was not in any way suggesting that any one committee has been
the source of this failure. It is all of the Congress together, which,
obviously, is in the control of the Republican majority. That is a
fact. But, nonetheless, we as a Congress have not carried out the
oversight responsibility which our troops deserve.
I hope I have assured my friend.
Mr. WARNER. Thank you, Mr. President. I just wanted to make certain.
Mr. LEVIN. I did not mean in any way to impugn--
Mr. WARNER. In our committee, you have sat side by side through
almost every minute of the many hours of hearings we have had on this
subject. While there may be areas which our committee may yet probe on
this matter--as a matter of fact, I do not think the whole series of
hearings we have had has come to a conclusion. We still have the issue
of the overall accountability. So there may be some point in time--but
I have always felt we should allow more of the court-martial and
various Uniform Code of Military Justice prosecutions, which are
underway, to be completed. I will be discussing that further with the
Senator. But I just did not want it indicated that our committee had
brushed anything under the table.
Mr. LEVIN. I thank my friend again. I would say of all the committees
I know of, our committee, the Armed Services Committee, have carried
out their responsibilities better than other committees. I wish to give
credit where credit is due--to our chairman. I do not know of any more
honorable, decent, hard-working, fair person in this body or any body
in which I have ever served.
We have still, overall, as a Congress, failed in five major areas to
look at the way in which detainees have been handled. That failure is
going to come back to haunt our troops, and it is haunting our Nation
right now. But I surely did not mean in any way to single out our
committee as being the source of that failure. But we are part of a
larger failure in terms of the whole Congress failing to carry out its
oversight responsibility.
Now, Mr. President, I wonder if my friend would accept a unanimous
consent request that the time we have just taken on this subject be in
morning business rather than deducted from the time on this amendment,
given the interest in it.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Who yields time?
Mr. WARNER. Mr. President, I see our distinguished colleague from
Iowa has taken the floor on a matter relating to the bill.
I yield the floor.
Mr. LEVIN. Will the Senator yield for a unanimous consent request?
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I ask unanimous consent that there be 5
minutes provided to Senator Salazar prior to the vote at 5:30.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
