[Congressional Record Volume 150, Number 134 (Friday, November 19, 2004)]
[Senate]
[Pages S11622-S11624]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           ACCOUNTABILITY FOR THE ABUSE OF FOREIGN DETAINEES

  Mr. LEAHY. Mr. President, nearly 7 months after the world learned of 
the atrocities at Abu Ghraib, those of us in the Congress who strongly 
believe that oversight and accountability are paramount to restoring 
America's reputation as a human rights leader remain stymied in our 
efforts to learn the truth about how this administration's policies 
trickled down from offices in Washington to cellblocks in Abu Ghraib.
  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. 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 
approval to implementation and abuse. However, this Senate, and in 
particular the Judiciary Committee, continues to fall short in its 
oversight responsibilities.
  Several of the investigations into U.S. detention policies are now 
complete. They provide additional insight into how the prison abuses 
occurred, but their narrow mandates prevented them from addressing 
critical issues. Overall, these investigations collectively suffered 
from a lack of scope and authority, leaving key inquiries into issues 
like contractor abuses and ``ghost detainees'' unexplored.
  Ultimately, what emerges from the 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 made by top officials, 
including the President himself, led to the abuses that occurred in the 
fields of battle.
  Recently, a Federal judge, recognizing the importance of government 
accountability, ordered the Bush administration to comply with a 
Freedom of Information Act--FOIA--request and release all documents 
related to the detentions at Abu Ghraib prison. Many of the documents 
released by the Administration are heavily redacted, yet reveal enough 
information to raise serious concerns.
  One of the released documents, an FBI report dated May 19, 2004, 
illustrates a troubling pattern in this scandal. The redacted version 
of this document states that FBI employees at Abu Ghraib reported 
witnessing incidents such as ``military personnel retraining a detainee 
who was `spread eagle' on a mattress on the floor yelling and flailing 
. . . a detainee, either naked or wearing boxer shorts, lying prone on 
the wet floor . . . [and] detainees who were ordered to strip and then 
placed in isolation with no clothes.'' These practices potentially 
violate the Geneva Conventions and clearly violate the FBI's own 
interrogation rules, yet the agents did not believe they ``rose to the 
level of misconduct or mistreatment.''

[[Page S11623]]

  On May 20, 2004, I asked Director Mueller at a Judiciary Committee 
hearing whether any of his agents had encountered objectionable 
practices involving the treatment of prisoners in Iraq, Afghanistan or 
Guantanamo Bay. He limited his answer to Abu Ghraib, stating that none 
of his agents had witnessed abuses in that facility. I wrote to 
Director Mueller on October 29, 2004, asking him to clarify the 
discrepancy between his congressional testimony and the information 
contained in the FBI memo. I also requested unredacted versions of all 
of the FBI documents released in response to the FOIA request. I have 
not received a response.
  I remain concerned about reports of prisoner abuses that have 
occurred since the Abu Ghraib scandal was publicly disclosed. Attorneys 
working on behalf of a group of abused prisoners sent letters to 
members of the Senate Armed Services Committee on September 8, 2004, 
and to Vice Admiral Albert Church on October 13, 2004, notifying them 
that torture may have continued after the Abu Ghraib abuses were 
uncovered. I sent a letter to Secretary Rumsfeld on October 29, 2004, 
asking him for assurances that the abuse of detainees has not continued 
and that all interrogation techniques now being used in U.S. detention 
facilities comply with international treaty obligations and U.S. laws. 
Again, I have not received a response. I hope that we do not learn of 
continuing abuses, yet given all that we have seen and all that we have 
yet to learn, I am still not confident that the problems have been 
solved. I ask unanimous consent to have printed in the Record these 
three letters.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. LEAHY. Allowing senior officials to avoid accountability sets a 
dangerous precedent. It is time for Congress, even this Republican led 
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 stationed in Iraq 
to the commander-in-chief--is above the laws of our Nation.
  Soon, the Senate will consider the nomination of Alberto Gonzales for 
the position of Attorney General. The Judiciary Committee, which has 
jurisdiction over the Department of Justice, will consider this 
nomination first. As I have said many times, and as I deeply regret, 
the Committee has all but abdicated its oversight role with regard to 
the issue of foreign detainee abuse. Last June, on a party-line vote, 
Republicans defeated an effort to obtain documents regarding the 
development of interrogation policies that we believed to be in the 
possession of the Department of Justice.
  Some of us had also asked Judge Gonzales, in his role as White House 
counsel, to release documents that we believed relevant to our 
investigations. It is true that the White House and Department of 
Justice released a small number of documents last summer, but that 
self-serving subset of the memoranda offered a mere glimpse into the 
genesis of the scandal. All of those documents should have been 
provided earlier to Congress, and still much more remains hidden away 
from public view.
  Judge Gonzales's role in formulating the administration's policies on 
the detention and treatment of prisoners in U.S. custody overseas is an 
issue of significant concern. His January 25, 2002, memo to the 
President argues for a radical shift in our longstanding policy to 
apply the Geneva Conventions to foreign prisoners. He later defended 
this memo, stating that it only applied to al Qaeda and Taliban. As he 
stated in a June 22, 2004, news conference, ``in Iraq, it has always 
been U.S. position that Geneva applies . . . [B]oth the White House and 
Department of Defense have been very public and clear about that.''
  Unfortunately, we have to ask Judge Gonzales if the Geneva 
Conventions are actually being applied in Iraq. An October 24, 2004, 
story in The Washington Post reveals yet another Justice Department 
memo that relied upon questionable legal reasoning in order to 
authorize actions that potentially violated the Geneva Conventions. The 
draft memo, dated March 19, 2004, was written at the request of Judge 
Gonzales, apparently in order to authorize the CIA to transfer 
detainees out of Iraq for interrogation--a practice expressly 
prohibited by the Geneva Conventions. I look forward to discussing 
these memoranda, as well as other policy decisions, in more detail with 
Judge Gonzales as we consider his nomination.
  With the consideration of this nomination, the Judiciary Committee 
has the opportunity to redeem itself. In my conversations with Judge 
Gonzales earlier this week, I have expressed to him the need for our 
questions to be answered. I believe that other members of the 
committee, on both sides of the aisle, are troubled by certain 
Administration policies and are disturbed by the evidence of prisoner 
abuse. I hope that the Committee will fulfill its oversight 
responsibility now.

                                                  U.S. Senate,

                                 Washington, DC, October 29, 2004.
     Hon. Donald Rumsfeld,
     Secretary of Defense,
     Washington, DC.
       Dear Secretary Rumsfeld: As you know, I have closely 
     monitored the numerous ongoing and completed prisoner abuse 
     investigations instigated by the Pentagon, but remain 
     skeptical that these investigations will uncover the full 
     truth. Each of these probes is limited in scope or authority 
     and, therefore, none will comprehensively investigate the 
     abuse of detainees.
       I am particularly concerned about the status of the ongoing 
     Pentagon investigations. In a Defense Department press 
     briefing on August 25, 2004, General Paul J. Kern said the 
     release of Admiral Albert T. Church's report was expected by 
     September 20, and would ``fill the gaps and seams.'' That 
     same day, in a separate Pentagon briefing, a senior Army 
     official said the Church report should be complete by mid-
     September and the Formica report ``should be out soon.'' As 
     of October 29, 2004, neither investigation has been released. 
     In addition, Lt. Gen. David W. Barno stated in a Pentagon 
     briefing on October 19, 2004, that the report by Brigadier 
     General Charles Jacoby is complete, but it has not been 
     released.
       The delay in the completion and public release of these 
     investigations raises two significant concerns. The first is 
     whether the investigations were extended due to the discovery 
     of abuses that previous investigations failed to uncover, or 
     the discovery of abuses that may have occurred since this 
     scandal was revealed in April. I recently received a copy of 
     a letter submitted to Vice Admiral Church suggesting that 
     abuses by soldiers and/or contractors continued even after 
     the abuses at Abu Ghraib were reported by the press in late 
     April. That letter is attached. My second concern is whether 
     the release of the reports is being delayed for political 
     reasons. I would like to believe this is unlikely, but 
     previous experience suggests otherwise. The Schlesinger and 
     Fay-Jones reports were released in the middle of a month-long 
     congressional recess, the Army Inspector General's report 
     received little attention because it was released on the same 
     day as the 9-11 Commission Report. Without any additional 
     information, I am forced to wonder whether the remaining 
     reports are being withheld until a politically expedient 
     time.
       In order to better understand the current status of the 
     ongoing Pentagon investigations, I ask that you provide the 
     requested information and respond to the following questions 
     by November 15, 2004. I have not received a response to the 
     letter I sent you on October 1, 2004. 1 remain concerned 
     about the issues raised in that letter, which still awaits 
     your reply.
       1. Please provide the current status and expected 
     completion and release dates for all ongoing investigations 
     into the abuse of detainees.
       2. Please explain why the investigations conducted by Vice 
     Admiral Church, Brigadier General Jacoby, and Brigadier 
     General Formica are delayed beyond their expected completion 
     and release dates.
       3. Has any ongoing investigation discovered incidents of 
     abuse that were not previously reported by the completed 
     investigations?
       4. Has any ongoing or completed investigation discovered 
     incidents of abuse that have occurred since the Abu Ghraib 
     prison abuse scandal was reported by the press on April 28, 
     2004?
       5. Can you assure me that all interrogation techniques now 
     being used in U.S. detention facilities comply with 
     international treaty obligations and U.S. laws?
       As stated above, I request that you answer these questions 
     by November 15, 2004. Thank you for your prompt attention to 
     this matter.
           Sincerely,
                                                    Patrick Leahy,
     U.S. Senator.
                                  ____

                                                September 8, 2004.
     Senator John Warner,
     Chair, U.S. Senate Armed Services Committee, Russell Senate 
         Office Building, Washington, DC.
     Senator Carl Levin,
     Ranking Member, U.S. Senate Armed Services Committee, Russell 
         Senate Office Building, Washington, DC.
       Dear Senators Warner, Levin, and Members of the Committee: 
     On behalf of the hundreds of thousands of people in Iraq, 
     thank you very much for holding these hearings on the torture 
     and abuse of prisoners in Iraq. It is a great public service.

[[Page S11624]]

       We represent the class of persons tortured in Iraq in a 
     civil lawsuit brought against the two government contractors 
     who participated in the torture, CACI International, Inc. and 
     Titan Corporation.
       We have learned from direct interviews conducted in Iraq in 
     August 2004 that the torture CONTINUES despite the publicity 
     surrounding the revelations of the Abu Ghraib torture. We are 
     enclosing for your information a detailed summary of facts 
     relating to the recent torture. As you will see from 
     reviewing the summary, it is clear that torture HAS and IS 
     transpiring at multiple, previously undisclosed, locations in 
     addition to Abu Ghraib.
       We respectfully request that you place this letter and 
     attachment into the hearing record.
       We also respectfully request that the investigation into 
     the detainee abuses continue and be expanded to include 
     locations other than Abu Ghraib. We ask that you hold 
     additional hearings and permit us or our clients, the 
     victims, to testify about what has and is transpiring. We 
     suggest that those hearings include questioning of 
     representatives from CACI International, Inc. and Titan 
     Corporation, the two corporations shown by the military's 
     investigation to be complicit in the torture.
       Please do not hesitate to contact either of us if you have 
     any questions about the incidents described in the 
     attachment.
     Susan L. Burke,
       Montgomery, McCracken, Walker & Rhoads, LLC.
     Shereef H. Akeel,
       Melamed, Dailey & Akeel, P.C.
                                  ____

                                            Montgomery, McCracken,


                                         Walker & Rhoads, LLP,

                               Philadelphia, PA, October 13, 2004.
     Re Incidents of Torture and Abuse.

     Vice Admiral Albert T. Church, III,
     Naval Inspector General, Office of the Naval Inspector 
         General, Washington DC.
       Dear Admiral Church: We are part of the legal team 
     prosecuting a class action seeking to hold government 
     contractors CACI and Titan Corporation accountable for their 
     role in the Iraqi prison scandal. As part of that effort, we 
     have been interviewing detainees who have been tortured or 
     abused. We have learned of many instances of torture by 
     Americans (both military and civilian) that do not appear to 
     be the subject of any ongoing military investigation.
       We are attaching for your information a report that 
     summarizes eleven such incidents. We would very much 
     appreciate learning when investigations have been commenced 
     with respect to the incidents described in the attached 
     report. We also have additional incidents to report to 
     whomever you designate as the appropriate person to receive 
     the information.
       Based on the information we have learned, it is clear that 
     Abu Ghraib prison was not the only prison where detainees 
     have been and are being tortured. It is also clear that the 
     publicity surrounding the Abu Ghraub photographs did not 
     prevent torture from continuing to occur.
       As I trust you know and as explained in the enclosed 
     affidavits signed by two experienced military interrogators, 
     using torture during interrogation harms not only the victims 
     but also places American troops in grave danger. We are very 
     concerned that not enough action has been taken to halt past 
     practices. Given that the conduct at issue clearly violates 
     the Geneva Conventions and United States law, we find the 
     insufficient oversight troubling.
       We look forward to hearing from you or your staff.
           Sincerely,
     Susan L. Burke.

                          ____________________