[Congressional Record Volume 150, Number 122 (Friday, October 1, 2004)]
[Senate]
[Pages S10256-S10259]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ABUSE OF FOREIGN DETAINEES
Mr. LEAHY. Mr. President, almost five months after learning of the
atrocities that occurred at Abu Ghraib, several of the investigations
into U.S. detention policies are now complete. I commend Chairman
Warner for his efforts to investigate this scandal, but he remains
hampered by the leadership of his own party and an administration that
does not want the full truth revealed. While the investigations provide
new insight into how the abuses occurred, they frequently raise as many
new questions as they answer. Despite calls from a small handful of us
who want to find the truth, Congress and this administration have
failed to seriously investigate acts that bring dishonor upon our great
Nation and endanger our soldiers overseas.
The Bush administration circled the wagons long ago and has
continually maintained that the abuses were the work of `a few bad
apples.' I have long said that somewhere in the upper reaches of the
executive branch a process was set in motion that rolled forward until
it produced this scandal. Even without a truly independent
investigation, we now know that the responsibility for abuse runs high
up into the chain of command. To put this matter behind us, first we
need to understand what happened at all levels of government. It is the
responsibility of the Senate to investigate the facts, from genesis to
final approval to implementation and abuse. However, this Senate, and
in particular the Judiciary Committee, continues to fall short in its
oversight responsibilities.
Democrats on the Judiciary Committee attempted in June to force the
disclosure of policy memos on the treatment of detainees, but were
defeated by a party-line vote. Recently, a Federal judge, recognizing
the importance of public examination of such documents, ordered the
Bush administration to comply with freedom of information laws and
release a list of all documents on the detentions at Abu Ghraib prison
by October 15. I commend this decision, but even that list would not
tell the entire story.
A recent Washington Post column addressed the administration's
attempt to whitewash this scandal. Jackson Diehl wrote:
Cynics will not be surprised to learn that senior military
commanders and Bush administration officials are on the verge
of avoiding any accountability for the scandal of prisoner
abuse in Iraq and Afghanistan--despite the enormous damage
done by that affair to U.S. standing in Iraq and around the
world; despite the well-documented malfeasance and possible
criminal wrongdoing by those officials; despite the
contrasting prosecution of low-ranking soldiers.
Allowing senior officials to avoid accountability sets a dangerous
precedent. It is time for Congress, even this Republican Congress, to
do its job and take action. We must send a message that no one in the
chain of command--from an enlisted private at Abu Ghraib to the
Commander-in-Chief--is above the laws of our Nation.
The investigations completed thus far provide additional insight into
how the prison abuses occurred, but their narrow mandates prevented
them from addressing critical issues. The reports by the Army Inspector
General, Maj. Gen. George Fay, and Lt. Gen. Anthony Jones all suffered
from structural limitations. The Army IG report was designed as ``a
functional analysis'' of operations, not an investigation into any
specific incidents. The Fay and Jones reports, tasked with reviewing
the role of military intelligence at Abu Ghraib, were limited in scope
to the military itself despite acknowledging that relationships between
military intelligence, military police, and outside agencies were
significant to the breakdown in order. Overall, these investigations
collectively suffered from a lack of scope and authority, leaving key
inquiries into issues like contractor abuses and ``ghost detainees''
unexplored.
The panel led by former Defense Secretary James Schlesinger was
similarly limited to the role of the military and could not investigate
the role of the CIA. The Schlesinger panel had no subpoena power and
lacked true independence. Its loyalty to the Secretary of Defense is
betrayed by its acceptance of a policy that is proving to be one of the
root causes of this scandal. In August 2002, Assistant Attorney General
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Jay Bybee wrote in a memo to White House Counsel Alberto Gonzales that,
``While many of these techniques may amount to cruel, inhuman or
degrading treatment, they do not produce pain or suffering of the
necessary intensity to meet the definition of torture.'' Alarmingly, in
his recent testimony before the Senate Armed Services Committee, Dr.
Schlesinger sounded more like an administration official than an
independent investigator. His statement to the committee that, ``What
constitutes humane treatment lies in the eye of the beholder'' is
something I would have expected to read in a memo from Jay Bybee, not
the head of an ``independent'' commission.
I could not disagree more with the statements of Dr. Schlesinger and
Mr. Bybee. The Geneva Conventions and Convention Against Torture define
humane treatment of prisoners, setting standards that protect our own
soldiers when they are captured. A number of State Department lawyers
fought to protect these standards in early 2002, when the President
broke with decades of policy and decided against providing the Geneva
protections to terrorist suspects. Military lawyers fought the same
battle after Secretary Rumsfeld approved techniques for use at
Guantanamo that are illegal under the Geneva Conventions.
The recently released reports illustrate why an independent
investigation is still necessary. They brought us closer to the truth,
but questions remain unanswered. Despite its failings, the Schlesinger
report refuted the administration's efforts to avoid responsibility and
to minimize this scandal as the misdeeds of `a few bad apples.' The
report documents a failure of leadership by some at higher levels in
the chain of command, as well as poor planning from the top and a great
deal of confusion about which interrogation and detention practices
were acceptable. But the confusion was not caused solely by a lack of
leadership. In recent months we have learned that senior officials in
the White House, the Justice Department and the Pentagon set in motion
a systematic effort to minimize, distort and even ignore our laws,
policies and agreements on torture and the treatment of prisoners. The
Schlesinger panel failed to follow the investigation to the highest
levels of the administration.
Ultimately, what emerges from these reports is a striking
contradiction. The reports state that there was no official policy of
abuse and they do not recommend punishment for high-ranking officials.
And yet, the reports show that decisions that were made by top
officials, including the President himself, led to the abuses that
occurred in the fields of battle.
Piecing together the facts and findings of these reports with
information contained in other official documents and press accounts, a
timeline emerges that shows how edicts from Washington trickled down,
crossed oceans, and migrated from the front lines on one continent to
the next.
In February 2002, President Bush signed a memorandum stating that the
Geneva Conventions did not apply to members of al-Qaida and the
Taliban. That decision was taken at the recommendation of the Attorney
General and White House counsel, and over the objection of the
Secretary of State.
Eight months later, in October 2002, with hundreds of prisoners
captured in Afghanistan then being held at Guantanamo Bay, the
Schlesinger report states that authorities at the base ``requested
approval of strengthened counter-interrogation techniques.'' In
December of that year, according to the Fay report, Secretary Rumsfeld
approved for use at Guantanamo techniques such as ``stress positions,
isolation for up to thirty days, removal of clothing and the use of
detainees' phobias (such as the use of dogs).'' Lawyers in the military
reacted negatively, strenuously arguing that the use of such techniques
was anathema to military tradition and would ultimately come back to
haunt the armed services. In January 2003, Secretary Rumsfeld rescinded
his approval of the extreme interrogation techniques; new guidelines
were issued in April 2003 from a Defense Department working group.
The Fay report reveals, however, that despite the Secretary's shift
in policy, the methods he had authorized in December 2002 for use only
at Guantanamo Bay quickly migrated to Afghanistan and other locations
where our military is active. As early as December 2002, reports
General Fay, ``interrogators in Afghanistan were removing clothing,
isolating people for long periods of time, using stress positions,
exploiting fear of dogs and implementing sleep and light deprivation.''
It was also in December 2002 that two prisoners in U.S. custody were
killed. Both deaths were ruled homicides by pathologists, but, at the
time, the Army publicly attributed them to natural causes. It was not
until journalists saw copies of the death certificates, which had been
given to the non-English speaking families of the deceased, that the
truth about the fatalities came out. In September, criminal charges
were finally filed, 20 months after the deaths occurred.
These deaths are deeply disturbing, but at least we know some of the
details of the cases and can seek justice against the perpetrators. A
recent report by the Crimes of War Project uncovered an Afghan
detainee's death that was never reported up the military chain of
command. The detainee, Jamal Naseer, died in March 2003, allegedly
after weeks of torture by American soldiers. Because the Special Forces
unit that reportedly controlled the detention facility failed to report
the death, it was never investigated. This incident is very troubling
on its own, but, like so many other incidents we have discovered, it
points to a much larger problem. The U.S. Army Criminal Investigation
Command received a tip about Naseer's death earlier this year, but
could not investigate the matter due to a lack of information.
Christopher Coffey, an Army detective based at Bagram air base, told
the L.A. Times:
We're trying to figure out who was running the base. We
don't know what unit was there. There are no records. The
reporting system is broke across the board. Units are
transferred in and out. There are no SOPs [standard operating
procedures] and each unit acts differently.
The L.A. Times article illustrates a serious failure of leadership by
the Department of Defense and the obvious shortcomings of allowing the
Pentagon to investigate itself. The Army Inspector General's report,
released in July, stated that the investigation's team ``that visited
Iraq and Afghanistan discovered no incidents of abuse that had not been
reported through command channels; all incidents were already under
investigation.'' We now know this cannot be accurate. What we don't
know is how many more deaths and cases of torture have gone unreported.
As I stated before, the Schlesinger report agreed with administration
policy that detainees did not merit Geneva protections, a position with
which I and many of those in uniform disagree. The panel acknowledged,
however, that the President's policy of treating al-Qaida and Taliban
detainees ``consistent with the principles of Geneva,'' was ``vague and
lacking.'' Even a government treating prisoners ``consistent'' with the
Conventions would not rely on interrogation practices like the ones we
have witnessed. The techniques I just described, ones that were used in
Guantanamo, Afghanistan, and Iraq are clearly illegal under the Geneva
Conventions. Secretary Rumsfeld and, later, Lt. Gen. Ricardo Sanchez,
authorized the use of techniques that were contrary to both U.S.
military manuals and international law. Given this incredible
overstepping of bounds, I find it incredible that the reports generated
thus far have not recommended punishment of any kind for high level
officials.
Meanwhile, the CIA conducted its own set of interrogations. The Fay
and Schlesinger reports state that the CIA operated under a different
set of rules, sometimes including the military and sometimes not. The
Fay report states that ``the CIA's detention and interrogation
practices contributed to a loss of accountability and abuse at Abu
Ghraib.'' The result: further confusion among soldiers in the field
over appropriate standards of treatment and the application of the
Geneva Conventions.
How did these techniques, which were rescinded by Secretary Rumsfeld
in January 2003 become so prevalent in Iraq? The Fay report states it
flatly: ``Concepts for the non-doctrinal, in-field manual approaches
and practices
[[Page S10258]]
clearly came from documents and personnel in Afghanistan and
Guantanamo.'' Ultimately, the ``non-doctrinal'' approaches used at Abu
Ghraib included nakedness and humiliation, the use of dogs to ``fear
up'' detainees, and sexual and physical assaults. These approaches
migrated to Iraq a number of ways, any of which might have been
prevented by clear statements of policy from the top. Members of the
519th Military Intelligence Battalion served at Bagram Air Force Base
in Afghanistan in 2002. Some of these soldiers have been implicated in
the deaths of the two prisoners at Bagram. A number of soldiers from
the 519th were sent to Iraq, and some of those have been implicated in
the Abu Ghraib abuse scandal. As we all know, military intelligence
played a major role in directing and carrying out the abuses at Abu
Ghraib.
In addition, as the Fay report cites, ``Interrogators in Iraq,
already familiar with the practice of some of these new ideas,
implemented them even prior to any policy guidelines.'' Before long, as
the Schlesinger report states, policy guidance backed up the
interrogators' actions. In August 2003, Maj. Gen. Miller ``brought the
Secretary of Defense's April 16, 2003, policy guidelines for Guantanamo
with him,'' and gave this policy to Lt. Gen. Sanchez, who was, at the
time, the highest level commander in Iraq. On September 14 of last
year, according to the Schlesinger report, Lt. Gen. Sanchez approved a
policy on interrogation that included techniques that, up to that
point, had only been officially applied to so-called enemy combatants--
those who, in the minds of President Bush and Secretary Rumsfeld, were
not protected by the Geneva Conventions. The Bush administration has
steadfastly claimed that the Geneva Conventions apply to the war in
Iraq. And yet, Lt. Gen. Sanchez determined, with no authorization to do
so, that some of the detainees held in Iraq were to be categorized as
unlawful combatants.
How did Lt. Gen. Sanchez justify his authority to approve such
techniques? The Schlesinger report found that Lt. Gen. Sanchez relied
on the President's February 2002 memorandum and the Department of
Justice's notorious August 1, 2002 memo twisting the definition of
torture. It is deeply troubling, given this evidence, that the Bush
administration has held fast to the contention that the abuses at Abu
Ghraib were committed by ``a few bad apples.'' And it is extremely
disconcerting that the very outcome that military lawyers warned of
when they fought against the administration's desire to suspend the
Geneva Conventions--the undermining of the military's tradition of
upholding the rule of law--came to fruition. Our armed forces have been
tainted by this scandal and our soldiers in the field placed at greater
risk.
The Sanchez policy guidelines were technically in effect for only a
month before being revised. But, as in Afghanistan, these illegal
techniques were put to use almost immediately. Interrogators in Iraq
relied upon the guidelines and may have done so believing that they
were appropriate. The Jones report states that, ``Some of these
incidents involved conduct which, in retrospect, violated international
law. However, at the time some of the soldiers or contractors committed
the acts, they may have honestly believed the techniques were
condoned.''
I find it deeply disturbing that American soldiers would have acted
on such guidelines. I have stated many times that those who violated
the laws by assaulting and humiliating prisoners should be prosecuted.
The buck should not stop there, however. The reports have shown that
there was a serious breakdown in training and operations. There was one
MP for every 75 prisoners at Abu Ghraib when the abuses occurred. And
as the Army Inspector General found, interrogation facilities lacked
oversight processes and control mechanisms. Even routine inspections
were lacking.
What these reports show--and, unfortunately, it is an unstated
revelation one discovers by reading between the lines--is that once
President Bush and his top advisors let the genie out of the bottle by
denying the protections of the Geneva Conventions and rewriting the
definition of torture, they set off a chain reaction that spanned the
globe. By changing the rules of treatment and interrogation for one
group of detainees, by tossing away decades of military protocol, by
writing and rescinding and rewriting guidelines so often that soldiers
had no clear understanding of policy or practice, and by allowing the
CIA to operate in the shadows, the leaders of the Bush administration
lost control. What was initiated for one group of detainees in one
location spilled over into other countries and to very different types
of prisoners.
A day or two after the release of the Schlesinger and Fay-Jones
reports, Secretary Rumsfeld still claimed that there was no evidence
that prisoners had been abused during interrogations. I wonder if he
took the time to read or to request a briefing on these investigations.
He made the same statement twice before his handlers corrected him, in
the middle of a press conference. Incredibly, he again misstated the
facts, ``correcting'' himself to say that only two or three cases of
abuse took place during interrogation. In fact, 13 of 44 instances of
abuse involved interrogation. It leaves me to wonder. Meanwhile,
President Bush has kept quiet about the findings of the reports. His
silence is deafening.
As I have said before, there needs to be a thorough, independent
investigation of the actions of those involved, from the people who
committed abuses, to the officials who set these policies in motion. An
independent commission, structured on the model of the 9/11 Commission,
will allow us begin to heal the damage that has been done.
I am not alone in calling for an independent commission. Several
organizations, including the American Bar Association, Human Rights
First, Amnesty International, and Human Rights Watch, have urged the
creation of an independent, bipartisan commission to investigate the
prisoner abuses. A recent letter from eight retired generals and
admirals to President Bush asked him to appoint a prisoner abuse
commission modeled on the 9/11 Commission. In that letter, the flag
officers stated, ``internal investigations by their nature . . . suffer
from a critical lack of independence. Americans have never thought it
wise or fair for one branch of government to police itself.''
The 9/11 Commission provides more than a structural model for a new
commission; it also provides a lesson in how perseverance can overcome
the administration's refusal to seek the truth. The Bush administration
initially opposed the formation of the 9/11 Commission, just as it now
opposes a prisoner abuse commission. The administration used the same
argument against both commissions. It asserts that the numerous
internal investigations are sufficient to uncover the truth. Dr. James
Schlesinger, the head of the panel established by Secretary Rumsfeld to
investigate the prisoner abuses, addressed this issue in his testimony
to the Senate Government Affairs Committee in February 2002, as it
debated the need for the 9/11 Commission. He argued for the creation of
the Commission because, ``to this point many questions have been
addressed piecemeal--or not at all. The purpose of the National
Commission would be systematically and comprehensively to address such
questions--and to give a complete accounting of the events leading up
to 9/11. In my judgment, such a Commission would serve a high, indeed
indispensable, national purpose.'' This is exactly the same reason we
need an independent commission to investigate the prisoner abuse
scandal.
The Governmental Affairs Committee report on the bill to establish
the 9/11 Commission stated that it ``is a bipartisan initiative to help
answer the many remaining questions in a constructive, methodical, and
non-partisan way. The commission would complement investigations being
undertaken by Congress and the Executive Branch.'' A prisoner abuse
commission would fulfill a similar need--to fill the gaps that
inevitably occur when an investigation is addressed in a piecemeal
fashion. We already know some gaps exist--such as the ghost detainee
problem and the role of contractors--others are sure to arise in the
course of an independent investigation.
International law, as well as the Defense Department's own policies,
requires the registration and accounting of all detainees. Detainees
kept off of the official rolls--so called 'ghost detainees'--are held
in violation of the law. The Fay-Jones report revealed that the ghost
detainee problem was
[[Page S10259]]
far more pervasive than the Defense Department had previously
acknowledged. General Kern, the investigation's appointing officer,
testified before the Senate Armed Services Committee that there could
be as many as 100 ghost detainees, but his panel could not thoroughly
investigate the matter because the CIA refused to cooperate in the
inquiry.
These revelations should not come as a surprise--human rights groups
have been calling for an investigation into the ghost detainee issue
for months. I first wrote to the National Security Advisor about
mistreatment of detainees in June 2003, including a request for
information on prisoners transferred in secret by the United States to
other nations for interrogation. A report on secret detentions was
released on June 17, 2004, by Human Rights First. The report, titled,
Ending Secret Detentions, describes a number of officially undisclosed
locations that sources--typically unnamed government sources quoted in
the press--have described as detention centers for terrorism suspects.
These sources have discussed facilities in Iraq, Afghanistan, Pakistan,
Jordan, Diego Garcia, and on U.S. war ships. The ICRC has not been
allowed access to these facilities. It issued a public statement in
March expressing its growing concern over ``the fate of an unknown
number of people captured . . . and held in undisclosed locations.'' To
date, its requests have been denied.
After being rebuffed by the CIA, the Fay-Jones panel asked two
offices to conduct further investigations into the ghost detainee
issue: the Department of Defense Inspector General and the CIA
Inspector General. Once again, this would result in one branch of
government to policing itself. Like the Fay-Jones panel, the Inspectors
General lack the authority to follow such investigations beyond their
own departments--again allowing many questions to remain unanswered. We
need to know what role senior administration officials in the White
House, Justice Department, Defense Department, and CIA played in
formulating the policies that allowed the illegal detention of ghost
detainees. We know this problem emanated from senior officials--
Secretary Rumsfeld admitted in June that he approved the secret
detention of one detainee at the request of CIA Director Tenet. Only an
independent commission with significant authority will be able to fully
investigate this matter.
The Fay-Jones report also found that civilian contractors were
complicit in the abuse of detainees. We already knew this, but the
panel's findings raise new questions about whether the contractors will
be held accountable for their actions. Thus far, one contractor has
been charged for abuse in Afghanistan, but no charges have been filed
against contractors in Iraq. As P.W. Singer points out in his recent
Washington Post op-ed, ``Army investigators are at a loss over how to
hold the contractors accountable. The Army referred individual
employees' names to the Justice Department more than three months ago,
but Attorney General Ashcroft has yet to take action.'' As these cases
are referred to the Justice Department, the Judiciary Committee must
fulfill its oversight responsibility to ensure these crimes do not go
unpunished. Given the reports and allegations of abuses of Iraqi
prisoners that involved civilian contractors, I am deeply troubled at
the passivity being displayed by the Department of Justice. If
loopholes exist in the law, the Department should be working with
Congress to fill them.
Some argue that another investigation will prevent us from putting
the scandal behind us, but ignoring the problem will not make it go
away. Each week brings new allegations that reveal how much we still
don't know. Human rights groups and journalists have been unrelenting
in their efforts to uncover this scandal, and I applaud their
contributions. The report released recently by the War Crimes Project
revealed unreported deaths in Afghanistan. Veteran journalist Seymour
Hersh claims in his new book that senior military and national security
officials were repeatedly warned in 2002 and 2003 that prisoners were
being abused. Mr. Hersh writes that FBI agents notified their superiors
about abuses at Guantanamo and that these reports were passed along to
officials at the Pentagon. The ACLU continues to fight in Federal
courts to compel the administration to release documents related to
torture. Even without further Government action, this scandal is not
going to go away. It is time for us to lead the investigation, rather
than wait to read about the latest discovery of abuse in tomorrow's
paper. We must establish an independent commission.
In the coming months, the remaining Pentagon investigations will come
to an end. It will be like finding an old jigsaw puzzle in the back of
the closet--it looks complete, but you can never tell if there are
pieces missing until you try to put it together. An independent
commission can take on this important task; it will ensure that no
pieces are missing and that we have a complete, unbiased assessment of
a sad chapter in our Nation's history. The 9/11 Commission showed us
that it can be painful to dredge up the past, but it is also a
necessary step to moving forward.
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