[Congressional Record: September 28, 2008 (Extensions)]
[Page E2095-E2096]
INTRODUCTION OF H.R. 7056, THE INTERROGATION AND DETENTION REFORM ACT
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HON. DAVID E. PRICE
of north carolina
in the house of representatives
Friday, September 26, 2008
Mr. PRICE of North Carolina. Madam Speaker, during the presidency of
George W. Bush, many of us have watched with horror as the
Administration has pursued policies--supposedly to help fight an ill-
defined war against terrorism--that shock the conscience and undermine
the values fundamental to our understanding of what it means to be an
American: torture; disappearance; indefinite detention.
Historians will view the excesses of this era with the same scorn as
the Alien and Sedition Acts and the reign of McCarthyism. Even in
hindsight, however, it will be difficult to understand how these
policies could have gained even tacit approval from so many.
Many of us have resisted these policies, questioned them, opposed
them, and condemned them. We have, in the last two years, begun the
monumental task of dismantling them.
We also have begun a second, equally daunting effort: to identify
policies that will address our very real security challenges without
compromising our fundamental values and our standing in the world.
Simply put, global terrorism presents a serious and evolving threat,
and it demands new thinking about the tools we must use to confront
this threat.
On September 24, along with nine original co-sponsors, I introduced
H.R. 7056, legislation aimed at generating more robust debate about the
nature of the threat of terrorism and the tools we must apply to
address it. My legislation focuses specifically upon the Bush
Administration's most disgraceful and disturbing legacy: its
architecture of law and practice in the realm of detention,
interrogation, and prosecution of terrorism suspects.
My legislation recognizes, however, that a progressive response to
the Administration's regressive policies cannot be limited to ``don't
do that''--don't torture, don't hold detainees indefinitely, and so
on--but must offer a new vision that is responsive to the challenges
and opportunities of the current context. I hope my proposals will
spark new ideas that will lead to a new, more ethical, and more
effective approach to battling global terrorism.
The question of how best to organize and mobilize the instruments of
our national power in fighting global terrorism, especially with regard
to interrogation and detention of terrorist suspects, is particularly
pertinent as we prepare to determine the direction and leadership of
our country for the next four years.
In my view, there are three major challenges the next president will
have to address. One: How can we most effectively approach human
intelligence collection, a task that includes determining the most
effective and most ethical ways to conduct interrogations? Two: What is
the best system to prosecute suspected terrorists quickly and
effectively? Three: What will be the nature of our detention regime?
Where, under what authority, with what rights, and for how long may
suspects be detained? All of these questions will require fresh
thinking and creative solutions.
Debate surrounding the first question has largely focused on whether
or not the United States should engage in so-called ``enhanced
interrogation'' practices, which often amount to torture. The Bush
Administration has adopted policies authorizing aggressive
interrogation practices that many of us would interpret to constitute
torture or inhuman treatment, placing our nation in clear violation of
the constitution, U.S. law, and international treaty obligations. The
question these practices have posed is whether, and when, such
practices are justified in the name of national security.
Most basically, the use of torture violates notions of human rights
and dignity that in the American political and legal tradition have
been regarded as inalienable and have preempted other considerations.
The constitution explicitly prohibits ``cruel and unusual punishment''
and requires that no individual ``be deprived of life, liberty, or
property, without due process of law.'' The constitution does not limit
the application of these protections to American citizens or to cases
that do not involve potential terrorism or other dangers. Torturing an
individual inflicts cruel and unusual punishment upon an individual
without granting him or her due process of law.
The Bush Administration, by contrast, has taken a utilitarian moral
approach in justifying the use of torture. Utilitarian approaches judge
an action according to its ability to achieve the greatest good for the
greatest number of people. Should torturing a single individual prove
to save the lives of hundreds or thousands of others, the action of
torturing could be deemed justifiable. When vetoing an Intelligence
Authorization bill including prohibitions against torture, for example,
President Bush argued, ``if we were to shut down this program and
restrict the CIA. . . . we could lose vital information from senior al
Qaeda terrorists, and that could cost American lives.''
At least two of the factual premises of the utilitarian argument are
highly problematic. While advocates often present the case in terms of
a dramatic choice to torture one in order to save many, the truth is
that torture and abuse have been applied far more widely than to a few
unique individuals. The argument might be stronger if torture were a
unique exception applied in a singular and critically urgent
circumstance--the ``ticking bomb'' scenario. The case begins to fall
apart, however, when torture is officially sanctioned policy, available
at the discretion of interrogators.
What of the claim that violating human rights and liberties might
serve some greater good? Even if one acepts such moral reasoning, it is
based on false assumptions. Several current and former practitioners of
interrogation have persuasively argued that so-called ``enhanced
interrogation'' practices--or torture--simply do not work. Such
practices are no more likely to yield actionable intelligence than
traditional methods and, in fact, in many cases, are more likely to
yield false information.
As Rear Admiral John Hutson, a former Navy JAG, has explained,
``torture doesn't work. All the literature and experts say that if we
really want usable information, we should go exactly the opposite way
and try to gain the trust and confidence of the prisoners. Torture will
get you information, but it's not reliable. Eventually, if you don't
accidentally kill them first, torture victims will tell you something
just to make you stop.''
Even the Army Field Manual on Interrogation states that ``the use of
force is a poor technique, as it yields unreliable results, may damage
subsequent collection efforts, and can induce the source to say
whatever he thinks the interrogator wants to hear.''
Both moral and practical arguments thus lead to the same conclusion:
the use of torture and cruel or inhuman practices is the wrong way
forward.
But the question of torture is only the beginning of the debate, not
the end. For far too long, public debate focused our attention only on
the abuses of ``enhanced interrogation,'' ignoring--to our peril and to
the detriment of our counterterrorism efforts--the equally important
questions regarding our ability to effectively detain and prosecute
individuals involved in terrorism. A long litany of policies undertaken
by the Bush administration in the service of its war on terrorism--
indefinite detention, habeas corpus exceptions, special military
tribunals, and so on--are as morally questionable as the practice of
torture.
Yet, too often, we have engaged in passionate ideological debate
about whether these policies are morally justified, when we might first
ask the simple question: do they work?
While Supreme Court justices and legal scholars have debated the
legality and morality of the Bush administration's justice system for
terrorist suspects, reaching an array of different conclusions about
the theoretical validity of Guantanamo Bay, the military commissions
system, and the like, few would attempt to argue that this legal regime
actually works.
To wit: the administration's controversial military tribunal system
has yielded exactly two convictions in the seven years since 9-11,
including one off a guilty plea. In the same time span, the civilian
justice system that the tribunal system supposedly improves upon has
delivered over 145 convictions. If our objective is a speedy, effective
instrument for bringing terrorists to justice, the tribunal system
fails miserably to deliver.
The denial of habeas corpus rights meets a similar fate when examined
from a practical standpoint. This denial has led to numerous lawsuits
bogging down the judicial process and has undermined the moral high
ground on which U.S. antiterrorism efforts previously stood. In short,
the denial of such rights simply does not work to benefit our efforts
in combating terrorism.
[[Page E2096]]
And practices such as the detention of high-value prisoners at
secret, so-called ``black site'' prisons, the extraordinary rendition
of detainees to countries known to torture suspects, and the broad
round-ups of thousands of detainees with limited evidence of links to
terrorism similarly have proven to be bankrupt as policies. There is no
evidence to suggest that they have improved our human intelligence
collection capabilities, they have not advanced our efforts to bring
terrorists to justice, and in every case they have had severe dilatory
effects on the credibility of our leadership in the global fight
against terrorism. In short, they have hurt us far more than they have
helped.
Looking at real-world results may help us debunk some of the Bush
Administration's misguided assertions, but it is not sufficient to help
us formulate the right approach. Rather, it is essential that we inform
our policymaking by a deep examination and national debate about the
relationship between our long-held values--as enshrined in the
constitution and law and expressed in our religious and ethical
traditions--and our security prerogatives.
Examining our detention and interrogation policies through this lens
is far more difficult, because legitimate differences do exist about
what direction is most just, fair, and ethical, as well as what is most
effective.
Nevertheless, it is critical that our country have this debate, and
that we reach beyond the relatively basic question of whether or not to
engage in ``torture.'' Our approach to this area of policy will be most
effective when it is well informed by all three branches of government,
by politicians and the public, and by the lessons of our experience.
Unfortunately, this national conversation has not occurred and,
what's worse, has been precluded by shrill fear-mongering and divisive
rhetoric. The Bush administration deserves much of the blame. In
debates over anti-torture provisions, FISA, military commissions, and
the like, it has generally resorted to scare tactics, sharp
partisanship, and questions about its critics' patriotism. Such tactics
do not promote a productive national debate that will make our nation
safer from terrorism; they have only served to deflect attention from
the enormous flaws of the Administration's policies.
Instead of such cynical partisanship, we must truly wrestle with the
very real challenges of developing smart detention and interrogation
policies. Such wrestling must go beyond simply opposing the
administration's flawed policies.
Opposing torture, opposing the denial of habeas rights, opposing
extraordinary rendition--these stances are all good and appropriate,
but the rejection of bad policy alone cannot make good policy. Instead,
we must seek ways to affirmatively improve our human intelligence
collection, strengthen the capacity of our courts to prosecute
terrorists, and better understand the nature and vulnerabilities of the
terrorist threat.
In the interest of encouraging such a debate, the bill I have
introduced offers a number of proposals for how we might effectively
approach human intelligence collection, detention, and prosecution in
terrorism cases.
My bill combines the imperative of rolling back the Administration's
worst abuses with what I hope is forward thinking about improving our
ability to collect human intelligence and bring terrorists to justice.
It would repeal the Military Commissions Act and direct prosecution
of terrorism cases to the time-tested civilian and military justice
systems, which have proven far more effective at bringing terrorists to
justice; It would close the Guantanamo Bay detention facility.
It would establish a new, cross-government, uniform set of standards
for interrogation practices, enacting a clear prohibition against
torture and building in a regular Congressional review. Rather than
imposing the Army's standards on everyone, it would establish a process
for military and civilian intelligence agencies to work together to
develop new standards.
It would prohibit the use of private contractors for the critically
sensitive, inherently governmental business of conducting
interrogations, a red line that I hope we can all agree on.
And it would require that all high-level interrogations be
videotaped, as proposed by our colleague, Representative Rush Holt.
These much-needed reforms are founded upon both moral and practical
analyses of the current system's flaws. Such correctives are needed to
return our nation to a solid footing. But they must be paired with
steps to ensure that our nation's capacity for human intelligence
collection is equal to the challenge of global terrorism.
To that end, my bill proposes a number of new initiatives designed to
make our human intelligence collection better, smarter, and more
penetrating.
It would establish a new interagency center of excellence to train
intelligence collectors, review U.S. policies, and carry out sustained
research on the best practices of interrogation and intelligence
collection.
It would seek to enhance U.S. intelligence cooperation with key
allies--like Britain, Spain, and Israel--that have significant
experience in dealing with human intelligence collection and anti-
terrorism efforts. We need to learn from their successes and mistakes
as well as our own.
It would require the military to further develop intelligence
collection career paths so that, instead of rotating officers in and
out of the intelligence specialty, we retain the best and brightest in
the field and benefit from the expertise they develop over the course
of their careers.
And it would require the formulation of a strategy to prevent the
radicalization of inmates held in both domestic and overseas detention
facilities
I offer my legislation with the belief that we must have a far
broader national conversation about the questions and the hope that my
bill will point to some new and creative answers.
The American public must undertake this conversation with a deep
reassessment of an even more fundamental question: what makes our
nation truly secure? Is our nation more secure when we use aggressive
measures that, even if they make some terrorist suspects talk, fuel the
radicalization of a new generation of terrorists? Is our nation more
secure if we detain hundreds of terrorist suspects extralegally, but
then face legal obstacles that prevent us from convicting them? Is our
nation more secure if we take measures designed to increase our
security against attacks that undermine values we hold sacred?
Our national conversation must be oriented toward helping us develop
a set of policies that makes far more effective use of the instruments
of our national power to defeat terrorism on the battlefield, while
capitalizing on the moral authority of our free and open society to
defeat terrorism in the battle of ideas.
Against those who would do us harm, we must be vigilant and ready to
mount an effective defense. But the number of such adversaries, the
support they gain, and the threat they pose will depend not only on the
defense we mount, at home or abroad, but on the values we project and
the role our nation plays in the world.
The legislation I offer today will restore our grounding in the
values of justice and respect for human rights that have guided our
nation through two hundred thirty-two years of history. It will help us
lead again through the power of our example. And it will help us mount
that vigilant defense against global terrorists by enhancing the
effectiveness of our efforts. I urge my colleagues to support this
legislation.
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