Congressional Record, Volume 150 Issue 88 (Wednesday, June 23, 2004)

[Congressional Record Volume 150, Number 88 (Wednesday, June 23, 2004)]
[Senate]
[Pages S7234-S7242]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

INVESTIGATION INTO TREATMENT OF IRAQI PRISONERS

Mr. CORNYN. Madam President, I want to take a few minutes to respond
to some of the comments made by the Senator from Vermont because I do
think the characterization he gave to some of what has gone on is at
least incomplete. I disagree with some of his conclusions, and I want
to point out why because I believe the Members of this body deserve to
have a complete picture and at least have the benefit of considering
alternative conclusions from those drawn by the Senator from Vermont.
I have the high honor of serving on both the Senate Armed Services
Committee and the Judiciary Committee. Certainly, the Senator from
Vermont is the ranking member of the Judiciary Committee, but I would
remind this body that the Senate Armed Services Committee, under the
leadership of our chairman, has been investigating the Abu Ghraib
prison situation and the interrogation practices and policies of the
U.S. Government since at least May 11. We have had a series of hearings
there which have been very helpful

[[Page S7235]]

in understanding both the nature of the problem and the nature of the
investigation that is ongoing, ultimately, hopefully, leading up to a
conclusion as to who did what, whether there were, indeed, as there
appears to be, some violations of American policy with regard to the
interrogation of detainees, and, of course, to hold the guilty
accountable.
That is what we are: We are a nation of laws. We believe in the rule
of law. We believe the law applies equally to everyone, no matter how
high up in the chain of command you are or how low you are in the chain
of command. And I believe we will be true to our ideals in that regard.
But I would say that much of what the Senator from Vermont has
suggested needs to be produced is sort of in a vacuum of sorts, without
the benefit of a lot of what the Senate Armed Services Committee has
already done, to find out what happened, what the policies were, what
the circumstances were, whether this represents an aberration or
whether it represents something worse.

To date I would say it is pretty clear that what we saw, as a result
of a handful of actions on behalf of American soldiers, was an
aberration. And thank goodness. There is no question, though, that
these soldiers lacked the proper training and, indeed, the proper
leadership. Those are chain of command problems and ought to be taken
as high as they go as a result of the investigation.
But as the Presiding Officer knows, there are at least six different
investigations into the circumstances at the Abu Ghraib prison. We need
to let that process run its course to find out what the facts and
circumstances are. As I recall, we are awaiting the report of General
Fay and perhaps others. We ought to get to the facts and not succumb to
the temptation during an election year to overly politicize what is
going on.
While we have always respected the rights and the civil liberties of
every American, we also need to be concerned about the rights and the
health and the welfare of our young men and women who are serving our
Nation so nobly in the battlefield. That requires the ability to get
good, actionable intelligence.
The present occupant of the Chair was there at the Senate Armed
Services Committee hearing. General Jeffrey Miller testified on May 19.
I asked him at that hearing:

In your opinion, General Miller, is the military
intelligence that you've been able to gain from those who
have recruited, financed, and carried out terrorist
activities against the United States or our military, has
that intelligence you gained saved American lives?

General Miller said:

Senator, absolutely.

Then I asked General Abizaid, the CENTCOM commander:

And would you confirm for us, General Abizaid, that that's
also true within the Central Command?

And General Abizaid--who I think all of us, as we have come to know
more about him, have come to admire him and his leadership capacity--
said forthrightly:

Senator, I agree, that's true. I would also like to add
that some of these people that we are dealing with are some
of the most despicable characters you could ever imagine.
They spend every waking moment trying to figure out how to
deliver a weapon of mass destruction into the middle of our
country. And we should not kid ourselves about what they are
capable of doing to us. And we have to deal with them.

It is very important to keep in proper context what is going on and
the fact that we are at war, a war not of our choosing--of course, we
were attacked--but a war that we must and we will finish.
I want to point out another thing that is important to the overall
context of what the Leahy amendment seeks to get. That is, we have two
cases currently pending at the U.S. Supreme Court in the Hamdi and the
Padilla cases, where the U.S. Supreme Court will tell all of us in
America what the law requires with regard to the treatment of unlawful
combatants, including one who happens to be an American citizen, Jose
Padilla, but who joined arms with the enemy, with the terrorists who
seek to attack and to kill Americans on our own soil. And that advice,
that direction is forthcoming. It could literally come down, of course,
any day now, since the Supreme Court's term is about to expire.

The characterization my colleague from Vermont gave to these
memoranda is not accurate. As a matter of fact, as the Senator may
recall--and maybe he said this; I didn't hear it--the Senate Judiciary
Committee voted against issuing a subpoena but then authorized the
chairman and perhaps the ranking member to engage in discussions with
both Alberto Gonzales, White House counsel, and Attorney General
Ashcroft to determine what legal memoranda they might be willing to
voluntarily provide the committee. So we voted against issuance of the
subpoena.
But whether it is the Bybee memo that has been discussed and covered
by so much of the press, that is 50 pages long, or whether it is any of
the other memos the Department of Defense and Department of Justice
released yesterday, they reveal not a coverup but a careful,
deliberate, and scholarly approach to determining what, in fact, the
law requires.
If, in fact, as the folks who are suggesting there is some sort of
coverup or some sort of policy of abuse--either one of direction or in
terms of creating an atmosphere where it should happen--these memos
that have been released completely refute that idea of lawlessness that
they are seeking to spin.
I am deeply disturbed by the increasingly politicized nature of the
debate on the war on terror. We are at war against a people who will
stop at nothing to kill innocent Americans. We paid the price for not
aggressively pursuing those terrorists and this information in the
past, at least since 1993, with the bombing of the World Trade Center.
But after 9/11, our Nation found itself at war with a new kind of enemy
from whom we need information, actionable intelligence, that can mean
the difference between life and death for our troops and our citizens.
As I said a moment ago, there have been many baseless allegations
that the Department of Defense has used torture during interrogations
as a matter of policy. But what happened at Abu Ghraib was not an
administration policy, not DOD policy, not CENTCOM policy, or any other
official policy. It was completely beyond the pale of acceptable
behavior, and those responsible will be held to account and will be
punished.
As recently as yesterday, President Bush made the following comments:

We do not condone torture. I have never ordered torture. I
will never order torture. The values of this country are such
that torture is not a part of our soul and our being.

Yet despite these unequivocal comments from the Commander in Chief,
political opponents of this administration continue to allege, without
foundation, that our Nation's leaders somehow support the use of
torture. It is important to remind some of our colleagues that, again,
the purpose of these interrogations is to gather intelligence
consistent with our values, which means no torture and humane treatment
of all detainees. The interrogations we have conducted in Iraq and at
Guantanamo Bay have saved American lives. I believe it is critical that
we continue to aggressively, within the limits of the law and humane
treatment, seek actionable intelligence and continue to save American
lives.
Unfortunately, it seems there is an irresistible impulse to score
cheap political points by criticizing the careful, deliberative process
the administration undertook to ensure that those very important
interrogations were conducted within the law. The techniques of our
Armed Forces, including those used in Iraq or at Guantanamo Bay, can
hardly be described as torture.
I, like a number of other Members, have traveled to Guantanamo Bay to
observe for myself, because I was concerned. I was interested. I wanted
to learn how we are handling these people who have recruited, trained,
and financed terrorist activity against the United States and, if given
the opportunity to do so, would do so again.
For some reason, there are certain Members, and indeed certain
elements of the press, who are trying to convince the American public
that making a suspected terrorist stand for 4 hours, or giving them
only 4 hours of sleep constitutes torture. They want them to believe
that poking someone in the chest with a finger or changing their sleep
patterns or meal selection is cruel or inhumane.

[[Page S7236]]

Let me read quickly some of the approved methods of interrogation
which some of the critics claim is torture: Asking straightforward
questions; incentive/removal of incentive; emotional love, which is
playing on the love a detainee has for an individual or group; playing
on the hatred an individual has for a individual or group; something
called fear up harsh; fear up mild; reduced fear; pride up and ego up;
pride and ego down; futility, which is invoking the feeling of futility
of a detainee; the we-know-all technique, convincing the detainee that
the interrogator knows the answers to the questions he is asking the
detainee; establish your identity, or convincing the detainee the
interrogator has mistaken the detainee for someone else; repetition
approach; file and dossier, or convincing the detainee the interrogator
has a damning and inaccurate file, which must be fixed; rapid fire
questions; silence; change of scenery down; dietary manipulation.
For example, it says in this approved memorandum, a change from hot
rations to MREs. That is hardly something that could be said to
constitute torture.
Next is environmental manipulation, or adjusting the environment to
create moderate discomfort; sleep adjustment; false flag; and
isolation.
These are not torture under anybody's definition. These are legal and
humane methods of extracting information from terrorists.
It is an affront to our men and women in uniform to accuse them of
torturing terrorists when the reality is our policy calls for all
detainees to be treated humanely. The time has come to ask at what
point does this largely partisan and media-driven witch hunt so damage
and detract from the mission of our troops in the field that it
irreparably harms U.S. interests, including our ability to collect
life-saving intelligence?
Because of the onslaught by some on Capitol Hill--a fact not lost
upon our enemy--agencies have been forced to disclose procedures al-
Qaida and other terrorists now train and use to defend against, which
is creating a roadmap.
Plain and simple, interrogations save lives. The interrogations we
have conducted over the past 2\1/2\ years have saved lives of soldiers
in the field and innocent civilians at home. It is high time we get our
priorities straight.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. DURBIN. Madam President, I am happy to respond to my colleague
from Texas about an issue which is in this morning's paper and on the
minds of many Americans and people around the world. In today's
Washington Post, there are two major front-page stories related in an
unusual way. Here is the photo of the parents of the South Korean who
was beheaded in Iraq--another heinous, barbaric crime committed by
terrorist extremists. Next to it, we have an article entitled ``Memo on
Interrogation Tactics Is Disavowed.''
In this article about the interrogation tactics we learn President
Bush's White House is now disavowing an opinion from the Department of
Justice issued in August of 2002 relative to interrogation tactics that
could be used by the U.S. Armed Forces. It appears now that this memo
has become public, the White House has found it necessary to publicly
disavow this statement by the Department of Justice and Attorney
General Ashcroft. Why?
Well, I think it is obvious.
For a lengthy period of time the Bush administration and the
Department of Justice of Attorney General Ashcroft have been involved
in a fierce, protracted debate about acceptable interrogation
techniques and the definition of torture, a debate which relates to
issues resolved over a hundred years ago, in many cases, by the
Government of the United States of America when we made it our express
policy to disavow torture. When we later entered into a Geneva
convention after the Nazi war crimes, when we later had a convention on
torture, brought to Congress by President Ronald Reagan, this series of
treaties enacted by the United States making them the law of the land
said we as a Nation stood with civilized nations around the world in
condemning and prohibiting torture, cruel and inhumane and degrading
treatment of prisoners. Our statements were unequivocal. We stated that
for the world.
Why? Frankly, because we believed the United States of America and
the values we represent on the floor of the Senate are different than
some. There may be some in this country who will argue we should answer
the beheading of innocent people, like this South Korean, with similar
violence. Thank God, their voices are few and ignored by most. We have
said from the beginning we will not stoop to this level.
If there is anybody who believes that is acceptable conduct, it is
not the United States of America. That is a statement of values and
principles, made first by President Abraham Lincoln during the bloody
Civil War, and by Presidents of both political parties for decades
thereafter. We know, however, that this administration, once engaged in
the war on terror, decided to engage in a new debate on the definition
of torture.
Two weeks ago, the Attorney General of the United States came to the
Senate Judiciary Committee and said to us unequivocally twice that it
was not his job, nor the job of this administration, to define torture.
He said that on the record. It was broadcast across America and around
the world. The very moment he said that, major news organizations were
releasing a memo from Attorney General Ashcroft's Department of
Justice, which defied his statement to the Senate Judiciary Committee,
this memo of August 1, 2002, by Assistant Attorney General Bybee, a
memorandum sent to Alberto Gonzales, counsel to President George W.
Bush. According to Attorney General Ashcroft, this memo should not
exist. He told us in open session it was not his job or the job of this
administration to define torture. He said Congress has done that, and
the laws do that.
Look at this memo of August 1, 2002. Turn to this infamous page 13
and read what Attorney General Ashcroft's Department of Justice said
about torture:

The victim must experience intense pain or suffering of the
kind that is equivalent to the pain that would be associated
with serious physical injury so severe that death, organ
failure, or permanent damage resulting in a loss of
significant body function will likely result.

You will not find these words in any treaty the United States has
entered into, certainly not in our Constitution, nor in the laws of the
land. You will find this in the memo from Attorney General Ashcroft's
Justice Department. It is their definition of torture, sent to the
President of the United States General Counsel, Mr. Gonzales.
For the Attorney General to tell us he is not in the business of
defining torture, frankly, doesn't square with the reality of this
official memo from his own Department. If that were the only thing in
this memo, it would be bad enough. But there is more. Because in this
memo, you will find a rationalization to suggest that the President, as
Commander in Chief, is not bound by the laws of the land. That is a
statement to which most people will say, I am sure they didn't say
that. Let me read to you from a section about Section 2340A, the
statute that makes torture a crime:

Any effort to apply Section 2340A in a manner that
interferes with the President's direction of such core war
matters as the detention and interrogation of enemy
combatants thus would be unconstitutional.

Sadly, it went further. I read from the same memo:

Section 2340A must be construed as not applying to
interrogations undertaken pursuant to his Commander in Chief
authority.

In other words, this memo from the Ashcroft Department of Justice to
Mr. Gonzales and the White House went beyond the definition of torture.
It created an escape hatch for this President to say, as Commander in
Chief: I am not bound by the laws of the land when it comes to torture
and the interrogation of witnesses.
There are some who come to the floor and wonder why we are raising
this issue.
What is the importance of this issue? The importance of this issue
will be obvious to anyone who reads this memorandum now available on
the Internet. This administration engaged in a fierce and protracted
debate about whether they could redefine torture for the war on
terrorism and whether this President, as Commander in Chief, was above
the law.

[[Page S7237]]

For those of us in this Chamber who have sworn to uphold the
Constitution of the United States, a solemn oath which each of us,
including the President, must take, this is, indeed, an extremely
serious situation: That this administration would think this President
and those acting under his authority as Commander in Chief would not be
bound by treaties, by the Constitution, or by the laws of the land.
Can any inquiry be more serious when the question, which must be
asked by this Chamber of the Chief Executive of the United States, is
whether he has gone too far, violating the law of the land?
So what will come before us in a short time is an effort to say to
Attorney General Ashcroft: It is not enough that we have to rely on
leaked memos released on the Internet. We demand of you the disclosure
of relevant documents which will give us a better picture and a better
understanding of this debate within the Bush administration about
torture because, in the context of where we are today, this is not an
academic issue. Because of Abu Ghraib and the shameless conduct of the
men and women in that prison, which has been captured in photographs
released around the world, the United States is being tested. We are
being asked not only within our own borders, but around the world,
whether in the war on terrorism, we have abandoned a commitment of over
a century that says we will not engage in torture, that we are
committed to the humane treatment of prisoners.
It is, unfortunately, a timely and legitimate question which we
cannot duck; we cannot avoid. In order to answer that question, we
understand we have to be open and transparent. We have to not only say
to the world that we are the same country we were before 9/11. After
Abu Ghraib, we have to show them proof, and the proof will be in the
documents which the Attorney General has refused to disclose.
The Attorney General and the President have several legal options
when Congress legitimately asks for documents. The President can assert
his executive privilege. That was done by President Nixon during the
Watergate scandal. It was contested in court all the way to the Supreme
Court, but it is something a President can assert. Only the Court can
ultimately resolve the dispute then between Congress and the President.
President Bush has not asserted executive privilege when it comes to
these memos of Attorney General Ashcroft. Or the Attorney General can
say: There is a statutory privilege that allows me to withhold these
documents.
The request for information that we are going to put in amendment
form allows classified material to be treated separately so it would
not in any way endanger the troops who are defending this country and
defending themselves in Iraq and Afghanistan.
When asked point-blank by myself and others in the Senate Judiciary
Committee, Attorney General Ashcroft said: I cannot give you a legal
authority for the reason I am not going to release these documents. He
said: I just personally believe it is not the right thing to do.
I reminded the Attorney General--and it is worth repeating now--as
important as his personal beliefs may be, they are not the law. If this
Department of Justice and this Attorney General and this President
cannot produce a legal reason for failing to disclose these documents,
then they are asking to be above the law. No President, no Attorney
General, no Senator, none of us serving this country or in this
Congress are above the law and certainly not on an issue of this
magnitude.

Some critics have come to the floor and said this request by Members
of the Senate of the Attorney General to produce these important
documents is the product of ``an irresistible impulse to score cheap
political points.'' I quote a colleague of mine who said those words
just moments ago, ``cheap political points.''
I remind my colleagues and all others, this White House, just
yesterday, decided this memorandum from Attorney General Ashcroft is so
bad, so wrong that they are now disavowing the very memo which was sent
to the chief counsel at the White House almost 2 years ago.
This is not about some political exercise. This is about truth and
transparency and a disclosure which is needed to restore the confidence
in the core values of America not only for the American people but for
people around the world.
Yesterday, in a transparent effort to stop the pressure for full
disclosure, the administration provided Congress with a two-inch stack
of documents. But a cursory review of these documents reveals that the
administration is withholding a lot of crucial information.
If anything, the documents that were released yesterday make it even
more clear that we need complete disclosure from the administration. As
the Chicago Tribune reported today:

The memos left unanswered at least as many questions as
they answered. White House officials acknowledged that the
documents provided only a partial record of the
administration's actions concerning treatment of prisoners.

What do the documents that were released show? We now know that the
Justice Department memo sent to Mr. Gonzales was the basis for the
Defense Department's decision to approve the use of coercive
interrogation techniques at Guantanamo Bay.
The Department of Defense and the Department of Justice were asking
questions which are almost impossible for me to articulate on the floor
of the Senate, but I must. They asked: How far can our interrogators go
before they may be charged with a war crime? How far can they go before
they might face a war crime tribunal?
That is the serious nature of this internal debate within the
Department of Defense and the Department of Justice. That debate went
on before Abu Ghraib. That debate went on before those horrendous
photographs became part of the history of our occupation of Iraq.
Is it any wonder that Members of the Senate are coming to the floor
today and saying we have an obligation to require this administration
to completely disclose all of the documents and be open and honest
about the dialogue which went on between the White House and the
agencies of our Government?
To do less, sadly, is to create a question, an unanswered question,
about whether the United States has changed.
Let me tell you for a moment some of the issues at hand. One of my
colleagues came to the floor and dismissed some of the criticism of
interrogation tactics as he said, frankly, tying the hands of
interrogators who are only trying to protect us. We have learned
something about interrogation tactics. We have learned that if you use
torture--physical and mental torture--the person being interrogated
will say almost anything, truthful or not, to make it stop.
The PRESIDING OFFICER. The Senator's 15 minutes in morning business
has expired.
Mr. DURBIN. I ask for 3 additional minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. We know torture and the types of treatment, techniques,
and interrogation tactics which have been prohibited by law in this
country for many years are counterproductive. The Attorney General said
as much before us. Torture does not work. People will lie for the pain
to stop, and that is one of the reasons we do not engage in torture.
Secondly, my colleague, Senator Biden of Delaware, made a point and
made it clearly. He said, in his words: The reason the United States
does not engage in torture is to protect Senator Biden's son, who is a
member of the military, and other members of the military from being
subjected to torture.
We establish standards of humane and civilized conduct not only for
ourselves but to demand them of the rest of the world. Will there be
terrorists who ignore them? Of course. But who will argue with 140,000
American lives on the line in Iraq that we should somehow stoop to
inhumane and barbaric conduct in this war against terrorism, subjecting
all of our soldiers and many other innocent Americans to the same
possibility? We have rejected that, and we should continue to reject
that.
I close by saying this is a very serious issue for our Nation. The
world is indeed watching us. They are asking us whether the United
States will stand

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behind its treaties in the age of terrorism. The Senate has an
obligation to the Constitution and to the American people to answer
these questions. Those who vote to table this amendment want to keep
this conversation muted and these memoranda hidden from the American
people. That is wrong. That is wrong for this government or any
government. The American people have the right to know in what their
government is involved. Transparency is critically important.
I urge my colleagues, and I hope a few of my Republican colleagues
will join those of us on this side of the aisle, to stand up for the
rule of law, a rule of law which has guided Presidents from Abraham
Lincoln's time in the Civil War through President Reagan, through every
President. There is no reason this President should be treated
differently.
When it is offered, I urge my colleagues to support the Leahy
amendment.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. I ask unanimous consent that I be permitted to speak for
up to 10 minutes, the Senator from New York be permitted to speak for
10 minutes, and then the distinguished Senator from Alabama.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Utah.
Mr. HATCH. I have been listening to my dear colleague from Illinois,
and I have to say what happened at Abu Ghraib was absolutely wrong.
Everybody knows that. What happened there has to be decried. We all
have to speak out about it. But the minute they found out about it,
they started the process of prosecuting the people who did this. It
appeared to be a small cadre of people, all of whom will likely receive
either severe reprimands or actual prosecution. In other words, the
system is working.
It should never have happened. We decry it. It was wrong. All the
screaming in the world by either side on this floor is not going to
make any difference. It happened, and we are all ashamed of it.
Having said that, if we listen to the arguments of the other side,
transparency is absolutely critical in all the things we do. Well, then
that means we ought to do away with the Intelligence Committee because
there are a lot of things that are not transparent to the American
people, especially when it involves national security, especially when
it involves our young people's lives while overseas, especially when it
involves all kinds of matters that are better left non-transparent.
I went on the Internet and I read every one of these documents that
was on the Internet. Most all of them were legal opinions. Now, one
might differ with legal opinions. I do not know any two lawyers who
agree on everything anyway, but if one reads those opinions they do
make sense. For somebody to say carte blanche that the Geneva
Conventions apply and should apply to everything, that flies in the
face of not only international law, it flies in the face of what is
happening in this situation.
This is not a normal situation. We are not fighting autonomous
countries right now. We are not fighting against organized enemies who
wear uniforms and fight conventional battles. We are not fighting the
normal course of battles that we have had through the years where we
have had to, as gentlemen, recognize the civil way of doing things. We
are fighting absolute terrorists who would destroy this country and
destroy every person involved in our overseas operations if they had a
chance, and they would do it by any means possible: biological,
chemical, weapons of mass destruction, nuclear, if necessary, if they
had the capacity to do it.
If we are so transparent that we tell them everything that is on our
minds, then we are putting our young people at risk.
Yes, my colleagues can find fault with the legal opinions. People do.
I might even agree or disagree on some of these legal opinions. But
they were well-reasoned opinions. I know some of the people who
actually rendered them. They are top notch authorities in these areas.
My colleagues might disagree with them, but they cannot necessarily
refute them.
I was in Guantanamo a few weeks ago. I went completely through that
camp. I was shown everything I wanted to see, and that meant just about
everything. I have read article after article about how terrible it is
at Guantanamo, how much they violated the law, all because of
conjecture. I have seen our colleagues on the other side, and I have
seen the media excoriate this administration because of all of these
bad things that have happened at Guantanamo.
Well, I went through Guantanamo, and it is a well-run camp with
incentives. Now, some of our colleagues do not even like incentives.
They will even criticize that because it is the Bush administration,
after all. Of course, I know our colleagues are not making this kind of
criticism because they want to find fault with the Bush administration
or cast blame on the Bush administration or make the Bush
administration look as if maybe it is not doing everything it should. I
know that could not possibly be in their minds. Or that they are
politicizing this because of the election that is going on. I know they
would not do a thing like that. I just know it. I just know it deep
within my soul.

My colleagues can differ with the legal opinions and they can
certainly condemn what happened at Abu Ghraib. But these things are not
happening at Guantanamo Bay. They did happen in Afghanistan, but in
those cases there are investigations and prosecutions on their way. I
do not think we have to be transparent about everything around here.
Transparency hurts our young men and women, too. It subjects them to
all kinds of ridiculous problems.
It is important for us to get to the bottom of these things. I think
it is important for us to have an overview, but I also think it is
important for us to be fair and not just try to score, yes, cheap
political points. Unfortunately, there is too much of that around here.
It has happened on both sides from time to time, but it has really been
happening this year. Every time it happens, I suggest we ought to stop
and think about our young men and women overseas, whether we are
helping them or hurting them. Some of these arguments are hurting them.
When I went to Guantanamo, I watched two interrogations, one with a
terrorist who was very uncooperative and another one who at first was
very uncooperative but because of work by some very effective people,
using very effective interrogation techniques--not torture, by the way,
not even close to torture--they have been able to obtain information
that has saved our boys' and girls' lives.
Interrogations have to go on and they are not patty-cake games. There
is no excuse for anything that even comes close to torture. And I
believe that other than isolated incidents--which are going to happen
in times of war, especially when we are fighting these type of
terrorists--I suggest that our people have abided by the Geneva
Conventions even though it is correct to say that in this type of a
situation the Geneva Conventions may not apply.
Personally, I believe we ought to apply them to everything because
there is a wide variety of interrogation techniques that are
permissible under the Geneva Conventions. I won't go through all of
those because I don't want to be transparent. Nor do I want some
techniques that are acceptable to be criticized by any colleagues from
any side to score cheap political points.
Frankly, I am getting a little tired of this desire to undermine
everything that is going on over in Iraq and Afghanistan. I think it is
time for us to get together and work in unison to try to help our young
men and women. Transparency sometimes happens to be the worst thing we
can do.
That doesn't mean we should not get to the bottom of these awful
things that have happened at Abu Ghraib. That doesn't mean we should
tolerate that type of irresponsible and criminal conduct. Of course we
should not. There is nobody in this body who disagrees on that, to my
knowledge; nobody. But to try to imply that the President of the United
States is responsible for these aberrational activities by a few is, I
think, irresponsible in and of itself and I think it is just too much
of this political world that we are in right now.
Madam President, I went through the camp itself down at Guantanamo.
It

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was well run. There were people there who never were fed so well in
their lives. There were arrows, so they could pray in the correct
direction. There were Korans in every cell as far as I could see.
I saw many chessboards and checkerboards. I saw outdoor areas where
they could exercise. I saw a lot of things that were being done right.
I saw interrogations that were not staged for me, and I have to tell
you it was run right. Anybody who thinks these are patty-cake games,
that we must really hold and pet their hands, just isn't living in the
real world.
I agree and I concede and I hope our colleagues--everybody on both
sides agree there are certain things you can do within the parameters
of the Geneva Conventions and there are certain things you can't do.
But I guarantee if you went through everything that can be done in the
Geneva Conventions there would be some people who would be very upset
that those types of interrogation techniques could be used. I am not
going to go through them all because I know the more stressful ones
were not being used with the authority of our people. I think to imply
that they were is wrong.
Before I close, let me just take a moment to comment briefly on
statements made by my Democratic colleagues, attacking the President
and the administration for not being forthcoming in releasing
documents, notwithstanding the fact that they just declassified and
released approximately 260 pages of legal memoranda.
They attack the Attorney General for refusing to hand over three
documents when he testified before the Committee, but since then, we
have received those documents from the White House.
Now, even though they lost on this issue before the Judiciary
Committee, they are now trying to bring it up as an amendment on the
floor.
In fact, they want us to vote on a subpoena before the time set to
comply with the document request has passed. It is simply premature to
issue any subpoena at this time.
I urge my colleagues to vote against this amendment if the Senator
from Nevada decides to reintroduce it.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the Senator from New
York is recognized for 10 minutes.
Mr. SCHUMER. Madam President, I thank my colleagues for this debate.
The bottom line here to me is simple. That is, I must disagree with my
good friend from Utah. I think transparency is to be preferred. Maybe
it should not be in all instances but that ought to be the presumption
and there ought to be strong argument before any transparency is not
done.
Why is transparency important? I will tell you why: Because it makes
better law. It makes better rules. The whole foundation of our
Government has been based on openness--open debate, open discussion.
When that happens, we end up with better laws. Time and time again
throughout the over 200-year history of this Republic, when things are
done in secret, it leads to trouble.
This is a very delicate issue. There is no question about it.
Obviously, we are in a new world, in a new situation. I don't think
absolutes always govern in these kinds of situations. That is for sure.
I am not sure exactly where the line is to be drawn. I don't think
anyone is. But I am certain of one thing and that is you will draw the
line a lot better when there is open debate and open discussion. After
all, we are talking about the place where liberty and security clash.
The beauty of our system of government is that it is able to handle
clashing values such as this in an extremely successful way, and has
been almost certainly or almost universally for all the years of the
Republic. Particularly the Founding Fathers, who debated these issues
over and over again, wanted transparency when they were debating. That
is why there is separation of powers. That is one of the reasons the
whole system was set up with a legislative body and an executive
branch. If, indeed, the Founding Fathers thought this all should be
done in the executive branch behind closed doors, we would have had a
totally different system.
Yet what we have found in this Justice Department all too often, in
this administration all too often, when the vital issues of liberty
versus security should be decided, there is an aversion to debate.
There is a preference for doing this in secret, in the dark, behind
closed doors. On issue after issue after issue, when that has been
done, a bad result occurred.
My colleague from Utah seems quite certain what happened at Abu
Ghraib and other places. He may be the only one in this Chamber who is.
I don't know how far the chain of command went. I don't know which
memos exist and don't exist and what they say and which were
dispositive. I have real doubts that it was the noncommissioned
officers at the bottom of the chain who were the only ones who had
anything to do with this, but who knows? Who knows? We are not going to
know anything until we get these memos.
If they have things that should be classified, let those be redacted.
If there are certain things that would damage the security of our
soldiers, of our country, let those be redacted.
But I doubt even my colleague from Utah, who stated that no one in
this Chamber feels we should not have transparency and debate--I think
we mistake two things. There are the difficulties and practicalities of
living in this real world, this post-9/11 world, and I have spoken
about that at the hearing and everywhere else. There is the leap
in logic, the incorrect logic, that says because those issues are
difficult they should be decided in the dark, in secret. The two don't
follow. In fact, I would argue the opposite follows. The more difficult
the issue, the more dangerous it is to either liberty or security or to
both, as in this case it may be, the more we need openness, the more we
need discussion.

Again, if this were the first time that this Justice Department had
decided to deal with terribly sensitive and difficult issues in secret
I don't think there would be such a brouhaha in this Chamber or in the
country. But it is a pattern that happens over and over and over again.
Our Attorney General has come to testify before our Judiciary Committee
twice since his ascension to that high office. When we ask questions,
we routinely get no answer, or answers that do not deal with the
questions. There is almost a mistrust of open debate, a mistrust of the
legislative body, a mistrust that the American people ultimately in
their wisdom will come to the right conclusion.
It is almost a sort of ``We know best we can't trust you to know
anything'' type attitude. I am surprised to see so many of my
colleagues defending that attitude.
Again, let's not mistake where we come down on the substance of this
issue, where there will be variation--my colleague from Illinois and my
colleague from Utah had different views--with the need for openness,
the need for transparency, the need for debate, and the faith that
certainly George Washington and Thomas Jefferson and James Madison and
Alexander Hamilton had, that we should have as well, and that is that
open debate will lead to the right conclusion. That is democracy. It is
faith in the people and ultimately their ability to make the right
decisions after open, fair debate, after both sides are presented.
That faith has been sadly lacking by the Attorney General and, I
regret to say, in good part by this administration. So we come tonight,
trying to force the issue. We believe we are living up to our
constitutional responsibilities. We believe that if the Founding
Fathers were looking down on this Chamber they would say: You are doing
the right thing to get these documents and make them public, to have an
open debate.
I hope and pray some of my colleagues on the other side of the aisle
will see this.
When Attorney General Ashcroft came before our committee and didn't
claim executive privilege and didn't claim what he was talking about
was classified, but said he would refuse to answer the committee
anyway, that is not what this Chamber is all about, or these hearings
are all about, or this Government is all about. That is why when that
has happened in the past, there have been discussions of contempt of
Congress. We wish to avoid those kinds of confrontations. We want to
come to an honest discussion.
Everyone will admit there were problems. My colleague from Utah said

[[Page S7240]]

that. Well, do you think those problems were sui generis? I would argue
those problems could well have resulted because of a tendency for
secrecy, or because of the aversion to open debate. For all we know,
there were contradictory memos floating around the Department of
Justice and floating around the Department of Defense. For all we know,
majors, captains, and colonels who had to interpret these things on the
ground were totally confused. We should find out all of this.
Again, to my colleagues, I hope we will agree to the Leahy amendment;
I hope we will agree to the Reid amendment to the Leahy amendment; we
will get to the bottom of this and come up with a policy in this
difficult world and difficult position that is satisfactory, or at
least the best solution where there may be no solution that satisfies
everybody.
I yield the floor.
The PRESIDING OFFICER (Mr. Alexander). Under the previous order, the
Senator from Alabama is recognized for 10 minutes.
Mr. SESSIONS. Thank you, Mr. President.
I would like to comment on some of the things that have been said.
First of all, I believe there are things our country has every right
to maintain secrecy on. I think the administration has been open about
producing memorandum to us in a way that I don't know they are required
to do. I was a Federal attorney in the Department of Justice and a U.S.
attorney for 12 years. I have some appreciation for the way the
Government works. The President has a right to receive legal advice on
all the options he may have from his Attorney General or staff
attorneys. In fact, a lot of reference has been made here, and as far
as I can tell, Attorney General Ashcroft's memoranda are memoranda
written only by lower level attorneys, detailing the legal options
available in a time of war.
Certainly we want to encourage attorneys to consider these ideas and
these issues on what is appropriate in terms of interrogating prisoners
who are bent upon the destruction of the United States of America and
as many of its citizens in this country as they can possibly kill. That
is fact, and we know it. The rules of law and of war are a joke to the
terrorists that we have captured and others still bent on attacking
Americans. They care nothing about it. They make television movies of
beheading people. That is what they think of the rules of law.
So what we need to do is decide what is appropriate and what laws we
are bound by, and we ought to set a good policy there.
I would say this: The Senator from New York is a good lawyer. He has
said in his own view that torture sometimes may be necessary. That is
what Senator Schumer said.
I think any Attorney General should properly advise any President of
the United States in time of war on absolutely what the limits of his
powers are. Those are things that maybe ought not be bandied around the
world. It is hypothetical. You don't know what the precise
circumstances are.

But the question that started all of this is abuses in prison in
Iraq. The memos at the center of this debate have absolutely no
connection--there is no connection--between what went on in Iraq and
these memos, because our soldiers were operating under established
policies of the military and internal discussions between the President
and various lawyers, or memoranda they may have received from various
lawyers.
I want to say this about Attorney General Ashcroft. I was at the
Judiciary Committee hearing when he testified. I saw him subjected to
unfair abuse by former colleagues on that committee which was
embarrassing to the committee. I don't think I have ever seen in my
experience in this Congress the kind of disingenuous and unfair
treatment of a former Member of this body. It was not right. The
ranking member was using the whole time to make a litany of distortions
and charges against the Attorney General where he had no opportunity to
answer them. He knew there was no way he could. It was not right. It
was wrong. I said that then, and I say it now. He had no opportunity to
respond to the ranking Member. Senator Leahy knew it, and said these
things one right after another: You did this, you did that. They
continued in that vein.
The question here was, Oh, he wouldn't define torture, yet he had a
memorandum defining torture.
That is not what Attorney General Ashcroft said. Go back and read the
transcript. I saw what he said. Attorney General Ashcroft is a smart
man, an honest man, and he answered the question directly. He said,
Senator, the Congress defined torture. It is not for me to define
torture. You define torture. The Attorney General doesn't define
torture. I am not defining torture. The Congress has already defined
it.
There is a statute. I have a copy of it here in which we defined it
under certain circumstances. We set out an anti-torture statute. That
is what the Attorney General was referring to.
Then somebody with great demand said, We want these memos; you are
going to give them right now. Are you giving them or not? The Attorney
General sat there in a nice, direct, soft way, and said, No, Senator, I
am not giving you these right now. Are you claiming executive
privilege? He said, No, I am not claiming executive privilege.
These are memorandum submitted to the President of the United States.
It is the memorandum of his client. It is the President's memorandum.
It is not his to give. He can't go around giving out the confidential
information he sent to the President of the United States about what he
can do during the conduct of a war. That is not right. He didn't do it.
And he didn't back down on it. One of the Senators said, Well, this is
important because I have a son in uniform. The Attorney General said,
My son has been in Iraq. He just got home, and he is going back to
Iraq. He is in uniform, too. I care about this issue.
I don't think what has been said is fair.
With regard to the amendment that is pending, I reject it. We need to
vote it down. It is political. It is designed to embarrass this
administration politically, and it hurts us around the world. We are
asked to cast a vote suggesting that this administration has not
conducted itself in a proper way. The evidence does not show that.
I am on the Armed Services Committee as well as the Judiciary
Committee. We have had, I think, four hearings in Armed Services. We
brought back the top general. We had the Secretary of Defense,
Secretary Rumsfeld. We had Secretary Wolfowitz, the Deputy Secretary.
We had General Abizaid and General Sanchez. We had General Taguba who
went over there and conducted the investigation and issued the report
on it.
I heard all of that evidence. None of them said, Well, we got a
memorandum from the Attorney General that the President of the United
States signed off and said we are supposed to torture prisoners, we are
supposed to carry them around, move them around and put hoods over
their heads, and otherwise abuse them.
There is no evidence that was so. In fact, the military had a pretty
good series of policies about how to treat prisoners. Some said, some
of them went too far. If some of them went too far, let's hear exactly
what they say went too far and what was wrong. If we need to change
that policy, I am willing to discuss that. In fact, we are discussing
that at this very moment.

A number of the things that were so objectionable, none of the things
that happened in that prison, were in any way remotely connected to the
memorandums and directives and regulations issued by General Sanchez
and the commanders in Iraq. In fact, all the memorandum said they
should follow Geneva Conventions in how they handle prisoners.
Some say we did not train them about the Geneva Conventions. Every
American soldier is trained about the Geneva Conventions. I was in the
Army Reserve for 10 years. I was a lawyer and U.S. attorney for some of
that time, and for a short period of time I was a JAG officer. I taught
a course on the Geneva Conventions. You had to sign a document saying
you briefed your soldiers every year on the Geneva Conventions.
Everyone knows you cannot torture prisoners, you cannot display them
in sexual ways. Everyone knows that. Every private is taught that.
Everyone up to the generals is taught that. It is

[[Page S7241]]

not the way we are supposed to treat people. Certainly it was not
justified and not the policy of the military. It never was the policy
of the military. I don't appreciate the suggestion that this was the
policy of the military and that somehow the internal memorandums up in
the Department of Justice in Washington about hypotheticals and what
powers the President might have somehow were carried out in the
prisons. They had established policies.
I saw in the Washington Times today, quoting one of these memos, a
memo entitled ``Humane Treatment.'' That ought to make some people
around here happy. It actually says ``Humane Treatment of Al-qaida and
Taliban Detainees.'' That is a pretty good title for a memorandum. They
are complaining about some military memorandum they did not like the
title of, saying the title suggested something bad and within the
memorandum there were commands to preserve and protect the prisoners.
This title is a good title. President Bush says he accepts ``the
legal conclusion of the Attorney General and the Department of Justice
that I have the authority under the Constitution to suspend Geneva as
between the United States and Afghanistan, but I decline to exercise
that authority.'' Of course, our values as a Nation call for us to
treat detainees humanely, including those who are not legally entitled
to such treatment.
Now, what is all this about? Senator Hatch mentioned, as I believe
Senator Cornyn did, and several years ago in the Judiciary Committee we
had a number of hearings right after September 11 on what the authority
of the United States is with regard to treatment of prisoners and the
application of the Geneva Conventions. The Geneva Conventions do not
apply to unlawful combatants. It is that simple.
What is an unlawful combatant? It is a person who does not wear a
uniform, who enters a country surreptitiously, who attacks civilians,
and does not comply with the rules of war. Our enemies are supposed to
comply with the rules of war also. Unlawful combatants do not comply
with the rules of war. Al-Qaida does not. Most of the people in
Afghanistan were not complying with the rules of war and the people who
are bombing and killing in Iraq right now are not complying with the
rules of war. All of them are unlawful combatants.
One of the reasons for the Geneva Conventions is to give protections
to prisoners of war who were lawful combatants, to encourage people to
be lawful combatants and not to be unlawful combatants, not to be
terrorists who sneak around and bomb people.
Has this ever been dealt with in America? Are we making this up? Is
this some idea the Senator from Alabama thinks is an idea that has
never been dealt with before? No. In the Judiciary Committee we had a
hearing on it and discussed these issues in some detail not long after
September 11. We had testimony and read and debated the Ex parte Quirin
case. In Ex parte Quirin, the Nazis sent saboteurs into the United
States to bomb and kill and dismantle our civilian structure. That was
their plan. They were Nazi saboteurs. They were not wearing German
uniforms. They were not acting in a way consistent with the regular
Army. Their plan of attack was terrorist in nature. They were
apprehended.

The President of the United States, certainly a greatly respected
President for our Democratic colleagues who are pushing this
legislation, President Franklin Roosevelt, was highly offended. He said
we are not going to give them a trial in Federal court. We are not
going to try them with a jury in the United States of America. These
people are setting about to destroy our country, to kill our people,
and to sabotage our civil infrastructure. They are going to be tried,
as I have the power to do so, by a military commission. He so ordered
it.
They were tried in the U.S. Department of Justice right down the
street by a military commission. They did not have public trials. After
completely trying the case and building a record and making findings of
guilt, most of them were executed within weeks of their arrest. The
validity of these trials were challenged and the case went to the
Supreme Court of the United States. The Supreme Court affirmed the
views of the President. Some of these enemy combatants were given
probation and some of them who were tried that way were American
citizens.
Crimes were committed in the United States by American citizens, but
they were participating as unlawful combatants. They were tried by a
military tribunal. They were convicted. Most of them were executed.
Some of them got lesser times and one or two who cooperated got out of
jail before too long. But all served a considerable amount of time and
the Supreme Court said that was appropriate. That was right.
The history of the military commission is strong. That is justice.
Military commissions do justice. Military officers are people. They do
not want to convict innocent people, send innocent people to jail, or
do things that are wrong. They are empowered in combat to use deadly
weapons on a whole host of people that could kill them.
President Truman, who followed President Roosevelt, dropped an atom
bomb on two cities in Japan. The President of the United States does
have powers in wartime that are different from that kind of situation
when somebody robs a bank down the street.
Fundamentally, what we are dealing with is how to deal with prisoners
under these circumstances. Some people say, a lot of people in this
country say, they don't respect us, they don't respect law, they bomb
innocent civilians, women, men, children. They cut off people's heads
and make a video of it and brag about it. But they are not entitled to
any rights. They are not entitled to any rights. We just ought to go at
them and kill them, the sooner the better.

We have some in this body who say these terrorists are entitled to
more rights than the laws themselves give. In fact, they have insisted
on it. This resolution actually calls on the Government to give these
terrorists and unlawful combatants more rights than they are entitled
to under the law.
President Bush has said: I am going to comply with the Geneva
Conventions. We are going to treat these people humanely. That is the
right position, I believe, and that is what he has done. We have given
them fair treatment.
I visited Guantanamo and saw how it was done down there early on. I
believe they were treated very well. The reports that come out of there
continue to show that.
We know we had a terrible problem in Abu Ghraib prison where, on a
midnight shift, a group of soldiers were out of control. Now we have a
desperate attempt by Members of this Senate to go around and say the
abuses that occurred on that night were somehow the responsibility of
the Secretary of Defense, General Sanchez, General Abizaid, President
Bush, and John Ashcroft.
That is not true. It is wrong. It undermines our ability to lead in
the world. It does, I believe, place greater risk on our soldiers who,
at this moment, are on the battlefield in Iraq because we sent them
there. We should not do that.
If you have legitimate complaints, let's have them, let's hear them
in the Senate. But I do not believe we need to be suggesting there is a
policy of this Government to mistreat people as was done in Abu Ghraib
prison in Iraq.
We had a distinguished senior Senator who said we had traded Saddam
Hussein's prisons for American prisons. What he meant by that was we
were treating prisoners just as Saddam Hussein did. That is wrong. It
is a slander on the soldiers of the United States. It should not have
been said. When that was said, it got headlines in the terrorist camps
all over the world. It should not have been said. It is false.
Not long ago I had the opportunity to meet seven Iraqi individuals
who had had their hands chopped off in Saddam Hussein's prisons, with
Saddam Hussein justice. We know of the thousands he had killed there--
without trial, without any benefit of being able to put on a defense,
and how he used, as a policy of his government, terror.
These kinds of dictators use random violence to terrorize a
population to keep power. He did it systematically. This was one of the
most brutal dictators in the history of the world. He killed hundreds
of thousands of people. There are maybe 300,000 graves in that country
of people who were killed.
So it is wrong to say that. Why we keep pushing this, I do not know.
I will

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just say this: The Armed Services Committee--we have this bill on the
floor right now, and it has taken us too long, and it has caused us to
not be able to have the hearings we probably would have had--but we are
going to have more hearings on what happened in Abu Ghraib prison.
Already people are being tried and convicted and sentenced for
misbehavior there. We are going to keep on, and the higher up it goes,
they are going to be followed.
I was a former prosecutor for some time, and I will ask anybody in
this body to tell me: If a soldier is charged with committing an abuse
on a prisoner, and he was ordered to do so, or there was some written
document he was relying on to do this abuse, do you think he is not
going to produce it? Do you think he is not going to say that in his
defense? Certainly, he will. So if there are any higher-ups involved in
this, it is going to come out.
But, frankly, I do not see the evidence that any higher-ups in the
higher echelons of the Government ever issued any orders in any way
that would have justified this. It did not happen at any time except on
a midnight shift by a few people, who videoed themselves, videoed
themselves in circumstances that would be very embarrassing to their
mamas and daddies if they had seen it, I can tell you that, on their
own behavior, much less what they were doing to the prisoners.

So I do not think it was a pattern. I do not think it was a policy.
In fact, all the evidence we have seen so far shows it was not. Within
2 days of this information coming forward to the commanders in that
region, General Sanchez ordered an investigation. He suspended people.
The military announced publicly, in a public briefing in Iraq, that
they were conducting an investigation of abuses at Abu Ghraib prison.
They have continued those investigations. A number of people have
been charged criminally by the military. A number of them have had
their cases end with punishments being imposed, and others will have
them as time goes by. I would say, what more can you ask them to do?
They are cracking down. I do not appreciate resolutions such as this
that suggest it was a policy of the United States that this occurred,
that suggest that our American soldiers are the same as Saddam
Hussein's soldiers and prison guards--the way they treated their
prisoners. It is not right. It is wrong. It should not be said, and it
undermines the confidence that we ask the world and the Iraqis to have
in our soldiers.
We believe they are going to do good work. We believe they are doing
good work. We know, when you have 100,000, 200,000 soldiers over there,
some of them will make mistakes. Just like any city in America that has
200,000 citizens, 130,000 citizens, some of them are going to commit
crimes and make errors and do things wrong. They ought to be
disciplined. They ought to be held accountable. But we do not need to
fire the mayor because somebody commits a crime on the streets of the
city.
Mr. President, I see the Senator from Arizona is in the Chamber, and
I know he may well have comments to make on this or other issues.
I will conclude by saying this is not a good resolution. It has no
business here. It is contrary to what we ought to be doing.
We ought to be spending our time on how to help our military get a
handle on this problem in Abu Ghraib, and we ought to be spending our
time mostly on trying to help them be effective in dealing with,
capturing, and killing the terrorists who reject all rules of law, who
reject all Geneva Conventions, who believe they have a legitimate right
to advance their personal power agenda by killing innocent people
whenever and wherever they can.
I am most grateful that we have American soldiers this very moment
following the vote of this Congress and executing the policy we ask
them to execute in Iraq to further freedom and liberty around the
world.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.

____________________