[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

[[Page S132]]

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 
  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 
  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 
  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.

[[Page S133]]

  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 
  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,


       This Act may be cited as the ``Lawful Interrogation and 
     Detention Act''.


       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)).


       (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 
       (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 
       (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 


       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.


       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.

                   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 
       (1) to create or otherwise imply the authority to detain; 
       (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.