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 
  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 
  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 

[[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 
  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 
  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 

[[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 
  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 
       1. Role of CIA: Limited or no cooperation from CIA with 
       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 
       6. Key Documents Missing: Key policy and legal documents 
     from the Defense and Justice Departments not provided to 

                [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 
       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 
       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 
       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 
       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 
       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 
       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 

                                     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

  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 
  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 

[[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.