[Congressional Record: January 6, 2009 (Senate)]
[Page S131-S133]
By Mrs. FEINSTEIN (for herself, Mr. Rockefeller, Mr. Wyden, and
Mr. Whitehouse):
S. 147. A bill to require the closure of the detention facility at
Guantanamo Bay, Cuba, to limit the use of certain interrogation
techniques, to prohibit interrogation by contractors, to require
notification of the International
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Committee of the Red Cross of detainees, and for other purposes; to the
Select Committee on Intelligence.
Mrs. FEINSTEIN. Today, I am introducing the Lawful Interrogation and
Detention Act of 2009--legislation intended to reverse the harmful,
dangerous, un-American, and illegal detention and interrogation
practices of the past seven years.
As I will describe in detail below, the four provisions in this bill
would: Close the Guantanamo Bay detention centers, outlaw CIA's
coercive interrogation program, prevent the use of contractor
interrogations, and end secret detention at CIA black sites.
These practices have brought shame to our nation, have harmed our
ability to fight the war on terror, and, I believe, violate U.S. law
and international treaty obligations.
As was made crystal clear on last November 4, we need change and we
need a new direction. When it comes to the war on terrorism, we need to
disavow ``the Dark Side'' so embraced by the Bush administration.
Instead, we need to follow our approach honed through the Cold War:
standing by the strength of our values and ideals, building strong
partnerships with allies, and mixing soft power with the force of our
military might.
This legislation would put us back on the right track and I believe
it to be fully consistent with the policies and intentions of
President-elect Obama.
It is time to end the failed experiment at Guantanamo Bay. It is time
to repudiate torture and secret disappearances. It is time to end the
outsourcing of coercive interrogations to outside mercenaries. It is
time to return to the norms and values that have driven the United
States to greatness since the days of George Washington, but have been
tarnished in the past 7 years.
First, this legislation requires the President to close the detention
facilities at Guantanamo Bay within 12 months.
The need to close Guantanamo is clear. Along with the abuses at Abu
Ghraib, Guantanamo has been decried as American hypocrisy and cruelty
throughout the world. They have given aid in recruiting to our enemies,
and have been named by Navy General Counsel Alberto Mora as the leading
causes of death to U.S. troops in Iraq.
Numerous reports, most recently one completed and approved
unanimously by the Senate Armed Services Committee, have documented the
abusive methods used at Guantanamo.
Beyond the physical, psychological, and emotional abuse witnessed at
Guantanamo, it has been the source of great legal embarrassment. The
Supreme Court has struck down the Bush administration's legal reasoning
four separate times: in the Rasul, Hamdi, Hamdan, and Boumediene
decisions.
It was explicitly created to be a separate and lesser system of
justice, to hold people captured on or near the battlefield in
Afghanistan indefinitely. It has produced exactly three convictions,
including Australian David Hicks who agreed to a plea bargain to get
off the island, and Osama bin Ladin's driver, Salim Hamdan, who has
already served almost all of his sentence through time already spent at
Guantanamo.
The hard part about closing Guantanamo is not deciding to do it--it
is figuring out what to do with the remaining detainees.
Under the Lawful Interrogation and Detention Act, the approximately
250 individuals now being held there would be handled in one of five
ways:
They could be charged with a crime and tried in the United States in
the Federal civilian or military justice systems. These systems have
handled terrorists and other dangerous individuals before, and are
capable of dealing with classified evidence and other unusual factors.
Individuals could be transferred to an international tribunal to hold
hearings, if such a tribunal is created; detainees could be returned to
their native countries, or if that is not possible, they could be
transferred to a third country.
To date, more than 500 men have been sent from Guantanamo to the
custody other countries. Recently, Portugal and other nations have
suggested they would be open to taking some of the remaining detainees
as a way to help close Guantanamo.
If there are detainees who can't be charged with crimes or
transferred to the custody of another country, there is a fourth
option. If the Secretary of Defense and the Director of National
Intelligence agree that an individual poses no security threat to the
United States, the U.S. Government may release him.
This may work, for example, for the Chinese Uighurs remaining at
Guantanamo. In fact, a Federal court has already ordered that this
group be released into the country, though that ruling has been stayed
upon appeal.
Finally, for detainees who cannot be addressed in any of the first
four options, the Executive Branch could hold them under the existing
authorities provided by the law of armed conflict.
I believe that these options provide sufficient flexibility to handle
the 250 or so people now being held at Guantanamo. If the incoming
Obama Administration decides that other alternatives are needed, it
should come to Congress, explain the specifics of the problem, and we
will work toward a joint legislative solution.
The other three provisions in this legislation end parts of the CIA's
secret detention and interrogation program.
Some of the details of the program are already publicly known, like
the use of waterboarding on three individuals. Other aspects remain
secret, such as the other authorized interrogation techniques and how
they were used.
There have been public allegations of multiple deaths of detainees in
CIA custody. There was one conviction of a CIA contractor in the death
of a detainee in Afghanistan, but other details remain classified.
But it is well known that on August 1, 2002, the Justice Department
approved coercive interrogation techniques, including waterboarding,
for the CIA's use. This despite the fact that the Justice Department
has prosecuted the use of waterboarding and the State Department has
decried it overseas.
The Administration used warped logic and faulty reasoning to say
waterboarding technique was not torture. It is.
Other interrogation techniques used by the CIA have not been
acknowledged but are still authorized for use. This has to end.
But we will never turn this sad page in our nation's history until
all coercive techniques are banned, and are replaced with a single,
clear, uniform standard across the United States Government.
That standard established by this legislation is the interrogation
protocols set out in the Army Field Manual. The 19 specified techniques
work for the military and operate under the same framework as the time-
honored approach of the Federal Bureau of Investigation. If the CIA
would abide by its terms, it would work for the CIA as well.
These techniques were at the heart of former FBI Special Agent Jack
Cloonan's successful interrogation of those responsible for the 1993
World Trade Center bombing. They were also the tools used by Special
Agent George Piro to get Saddam Hussein to provide the evidence that
resulted in his death sentence.
We have powerful expert testimony that the Army Field Manual
techniques work against terrorist suspects. The Manual's use across the
government is supported by scores of retired generals and admirals, by
General David Petraeus, and by former secretaries of state and national
security advisors in both parties.
Majorities in both houses of Congress passed this provision last year
as part of the Fiscal Year 2008 Intelligence Authorization bill,
sending a clear message that we do not support coercive interrogations.
Regrettably, the President's veto stopped it from becoming law.
The new President agrees that we need to end coercive interrogations
and to comply strictly to the terms of the Convention Against Torture
and the Geneva Conventions. I look forward to working with him to end
this sad story in the Nation's history.
The third part of this legislation is a ban on contractor
interrogators at the CIA. As General Hayden has testified, the CIA
hires and keeps on contract people who are not intelligence
professionals and whose sole job is to ``break'' detainees and get them
to talk.
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I firmly believe that outsourcing interrogations, whether coercive or
more appropriate ones, to private companies is a way to diminish
accountability and to avoid getting the Agency's hands dirty. I also
believe that the use of contractors leads to more brutal interrogations
than if they were done by government employees.
There are surely areas where paying contractors makes practical and
financial sense. Interrogations--a form of collecting intelligence--is
not one of them. This has become a major diplomatic issue, a key
obstacle in prosecuting people like Abu Zubaydah and Khalid Shaykh
Mohammed, and a national black eye. It is not the sort of thing to be
done at arm's length.
The fourth and final provision in this legislation requires that the
CIA and other intelligence agencies provide notification to the
International Committee of the Red Cross--the ICRC--of their detainees.
Following notification, the CIA will be required to provide ICRC
officials with access to their detainees in the same way that the
military does.
Access by the ICRC is a hallmark of international law and is required
by the Geneva Conventions. Access to a third party, and the ICRC in
particular, was seen by the U.S. in 1947 as a guarantee that American
men and women would be protected if they were ever captured overseas.
But ICRC access has been denied at CIA black sites, just like it had
been in some military-run facilities in the war on terror. This has, in
part, opened the door to the abuses in detainee treatment. Independent
access prevents abuses like we witnessed at Abu Ghraib and Guantanamo
Bay. It is time that the same protection is in place for the CIA as has
been demanded of the Department of Defense.
We remain a nation at war, and credible, actionable intelligence
remains a cornerstone of our war effort. But this is a war that will be
won by fighting smarter, not by sinking to the depths of our enemies.
Our Nation has paid an enormous price because of these
interrogations.
They cast shadow and doubt over our ideals and our system of justice.
Our enemies have used our practices to recruit more extremists.
Our key global partnerships, crucial to winning the war on terror,
have been strained.
It will take time to resume our place as the world's beacon of
liberty and justice. This bill will put us on that path and start the
process. I urge its passage.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 147
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Lawful Interrogation and
Detention Act''.
SEC. 2. INTELLIGENCE COMMUNITY DEFINED.
In this Act, the term ``intelligence community'' has the
meaning given that term in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4)).
SEC. 3. CLOSURE OF DETENTION FACILITY AT GUANTANAMO BAY.
(a) Requirement to Close.--Not later than 1 year after the
date of the enactment of this Act, the President shall close
the detention facility at Guantanamo Bay, Cuba operated by
the Secretary of Defense and remove all detainees from such
facility.
(b) Detainees.--Prior to the date that the President closes
the detention facility at Guantanamo Bay, Cuba, as required
by subsection (a), each individual detained at such facility
shall be treated exclusively through one of the following:
(1) The individual shall be charged with a violation of
United States or international law and transferred to a
military or Federal civilian detention facility in the United
States for further legal proceedings, provided that such a
Federal civilian facility or military facility has received
the highest security rating available for such a facility.
(2) The individual shall be transferred to an international
tribunal operating under the authority of the United Nations
that has jurisdiction to hold a trial of such individual.
(3) The individual shall be transferred to the custody of
the government of the individual's country of citizenship or
a different country, provided that such transfer is
consistent with--
(A) the Convention Against Torture and Other Forms of
Cruel, Inhuman or Degrading Treatment or Punishment done at
New York, December 10, 1984;
(B) all relevant United States law; and
(C) any other international obligation of the United
States.
(4) If the Secretary of Defense and Director of National
Intelligence determine, jointly, that the individual poses no
security threat to the United States and actions cannot be
taken under paragraph (1) or (3), the individual shall be
released from further detention.
(5) The individual shall be held in accordance with the law
of armed conflict.
(c) Reporting Requirements.--
(1) Requirement for report.--Not later than 90 days after
the date of the enactment of this Act, the President shall
submit to Congress a report that describes the President's
plan to implement this section.
(2) Requirement to update.--The President shall keep
Congress fully and currently informed of the steps taken to
implement this section.
(d) Construction.--
(1) Immigration status.--The transfer of an individual
under subsection (b) shall not be considered an entry into
the United States for purposes of immigration status.
(2) No additional detention authority.--Nothing in this
section may be construed as altering or adding to existing
authorities for, or restrictions on, the detention,
treatment, or transfer of individuals in United States
custody.
SEC. 4. LIMITATION ON INTERROGATION TECHNIQUES.
No individual in the custody or under the effective control
of personnel of an element of the intelligence community or a
contractor or subcontractor of an element of the intelligence
community, regardless of nationality or physical location of
such individual or personnel, shall be subject to any
treatment or technique of interrogation not authorized by the
United States Army Field Manual on Human Intelligence
Collector Operations.
SEC. 5. PROHIBITION ON INTERROGATIONS BY CONTRACTORS.
The Director of the Central Intelligence Agency shall not
allow a contractor or subcontractor to the Central
Intelligence Agency to carry out an interrogation of an
individual. Any interrogation carried out on behalf of the
Central Intelligence Agency shall be conducted by an employee
of such Agency.
SEC. 6. NOTIFICATION OF THE INTERNATIONAL COMMITTEE OF THE
RED CROSS.
(a) Requirement.--The head of an element of the
intelligence community or a contractor or subcontractor of
such element who detains or has custody or effective control
of an individual shall notify the International Committee of
the Red Cross of the detention of the individual and provide
access to such individual in a manner consistent with the
practices of the Armed Forces.
(b) Construction.--Nothing in this section shall be
construed--
(1) to create or otherwise imply the authority to detain;
or
(2) to limit or otherwise affect any other rights or
obligations which may arise under the Geneva Conventions,
other international agreements, or other laws, or to state
all of the situations under which notification to and access
for the International Committee of the Red Cross is required
or allowed.
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