[Congressional Record Volume 151, Number 128 (Wednesday, October 5, 2005)]
[Senate]
[Pages S11061-S11076]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2006

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of H.R. 2863, which the clerk will 
report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 2863) making appropriations for the Department 
     of Defense for the fiscal year ending September 30, 2006, and 
     for other purposes.

  Pending:

       Bayh amendment No. 1933, to increase by $360,800,000 
     amounts appropriated by title IX for Other Procurement, Army, 
     for the procurement of armored Tactical Wheeled Vehicles for 
     units deployed in Iraq and Afghanistan, and to increase by 
     $5,000,000 amounts appropriated by title IX for Research, 
     Development, Test and Evaluation, Defense-Wide, for 
     industrial preparedness for the implementation of a 
     ballistics engineering research center.
       McCain amendment No. 1978, to prohibit the use of funds to 
     pay salaries and expenses and other costs associated with 
     reimbursing the Government of Uzbekistan for services 
     rendered to the United States at Karshi-Khanabad airbase in 
     Uzbekistan.
       Reed/Hagel amendment No. 1943, to transfer certain amounts 
     from the supplemental authorizations of appropriations for 
     Iraq, Afghanistan, and the Global War on Terrorism to amounts 
     for Operation and Maintenance, Army, Operation and 
     Maintenance, Marine Corps, Operation and Maintenance, 
     Defense-wide activities, and Military Personnel in order to 
     provide for increased personnel strengths for the Army and 
     the Marine Corps for fiscal year 2006.
       Warner/Levin modified amendment No. 1955, to authorize 
     appropriations for fiscal year 2006 for military activities 
     of the Department of Defense, for military construction, and 
     for defense activities of the Department of Energy, to 
     prescribe personnel strengths for such fiscal year for the 
     Armed Forces.

  The ACTING PRESIDENT pro tempore. The Senator from Arizona is 
recognized.


                           Amendment No. 1977

  Mr. McCAIN. Mr. President, from my conversations with the Senator 
from Alaska, the chairman, I believe he agrees we will move forward; 
therefore, I call up amendment No. 1977, which is filed at the desk.
  The ACTING PRESIDENT pro tempore. Without objection, the pending 
amendments are set aside for the consideration of this amendment, which 
the clerk will now report.
  The assistant legislative clerk read as follows:

       The Senator from Arizona [Mr. McCain], for himself, Mr. 
     Graham, Mr. Hagel, Mr. Smith, and Ms. Collins, proposes an 
     amendment numbered 1977.


[[Page S11062]]


  Mr. McCAIN. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment is as follows:

(Purpose: Relating to persons under the detention, custody, or control 
                    of the United States Government)

       At the appropriate place, insert the following:

     SEC. __. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS 
                   UNDER THE DETENTION OF THE DEPARTMENT OF 
                   DEFENSE.

       (a) In General.--No person in the custody or under the 
     effective control of the Department of Defense or under 
     detention in a Department of Defense facility shall be 
     subject to any treatment or technique of interrogation not 
     authorized by and listed in the United States Army Field 
     Manual on Intelligence Interrogation.
       (b) Applicability.--Subsection (a) shall not apply to with 
     respect to any person in the custody or under the effective 
     control of the Department of Defense pursuant to a criminal 
     law or immigration law of the United States.
       (c) Construction.--Nothing in this section shall be 
     construed to affect the rights under the United States 
     Constitution of any person in the custody or under the 
     physical jurisdiction of the United States.

     SEC. __. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING 
                   TREATMENT OR PUNISHMENT OF PERSONS UNDER 
                   CUSTODY OR CONTROL OF THE UNITED STATES 
                   GOVERNMENT.

       (a) In General.--No individual in the custody or under the 
     physical control of the United States Government, regardless 
     of nationality or physical location, shall be subject to 
     cruel, inhuman, or degrading treatment or punishment.
       (b) Construction.--Nothing in this section shall be 
     construed to impose any geographical limitation on the 
     applicability of the prohibition against cruel, inhuman, or 
     degrading treatment or punishment under this section.
       (c) Limitation on Supersedure.--The provisions of this 
     section shall not be superseded, except by a provision of law 
     enacted after the date of the enactment of this Act which 
     specifically repeals, modifies, or supersedes the provisions 
     of this section.
       (d) Cruel, Inhuman, or Degrading Treatment or Punishment 
     Defined.--In this section, the term ``cruel, inhuman, or 
     degrading treatment or punishment'' means the cruel, unusual, 
     and inhumane treatment or punishment prohibited by the Fifth, 
     Eighth, and Fourteenth Amendments to the Constitution of the 
     United States, as defined in the United States Reservations, 
     Declarations and Understandings to the United Nations 
     Convention Against Torture and Other Forms of Cruel, Inhuman 
     or Degrading Treatment or Punishment done at New York, 
     December 10, 1984.

  Mr. McCAIN. Mr. President, this amendment would do two things: one, 
establish the Army Field Manual as the uniform standard for the 
interrogation of Department of Defense detainees; and, two, prohibit 
cruel, inhumane, and degrading treatment of prisoners in the detention 
of the Government. It is pretty simple and straightforward.
  Mr. President, I regret, of course, as all my colleagues do, that 
this amendment has to be brought up on an appropriations bill. We are 
only doing so because so far we have been unable to get sufficient 
agreement to bring up the Defense authorization bill. I have made it 
very clear, over a long period of time, my feeling about how important 
it is to take up and complete the authorization bill, but that is a 
subject for another day. I know good-faith efforts are being made on 
both sides to try to get the authorization bill up. But that has not 
happened so, therefore, we are addressing this issue.
  By the way, I have had a preliminary ruling that this amendment is 
germane because there is reference made to it in the House version of 
the appropriations bill.
  The Senate has an obligation to address the authorizing legislation, 
as it has an obligation to deal with the issue that apparently led to 
the bill being pulled from the floor, which is America's treatment of 
its detainees.
  Several weeks ago, I received a letter from CPT Ian Fishback, a 
member of the 82nd Airborne Division at Fort Bragg, and a veteran of 
combat in Afghanistan and Iraq, and a West Point graduate. Over 17 
months, he struggled to get answers from his chain of command to a 
basic question: What standards apply to the treatment of enemy 
detainees? But he found no answers.
  In his remarkable letter, he pleads with Congress, asking us to take 
action to establish standards to clear up the confusion, not for the 
good of the terrorists but for the good of our soldiers and our 
country. Captain Fishback closes his letter by saying:

       I strongly urge you to do justice to your men and women in 
     uniform. Give them clear standards of conduct that reflect 
     the ideals they risk their lives for.

  This comes from a young captain in the U.S. Army who has served his 
country both in Iraq and Afghanistan and who says it in a far more 
eloquent fashion than I have ever been able to. By the way, I thank God 
every day that we have men and women the caliber of Captain Fishback 
serving in our military. I believe the Congress has a responsibility to 
answer this call, a call that has come not just from this one brave 
soldier but from so many of our men and women in uniform. We owe it to 
them. We sent them to fight for us in Afghanistan and Iraq. We placed 
extraordinary pressure on them to extract intelligence from detainees, 
but then we threw out the rules that our soldiers had trained on and 
replaced them with a confusing and constantly changing array of 
standards. We demanded intelligence without ever clearly telling our 
troops what was permitted and what was forbidden. And when things went 
wrong, we blamed them, and we punished them. I believe we have to do 
better than that.
  I can understand why some administration lawyers might have wanted 
ambiguity so that every hypothetical option is theoretically open, even 
those the President has said he does not want to exercise. But war 
doesn't occur in theory, and our troops are not served by ambiguity. 
They are crying out for clarity. The Congress cannot shrink from this 
duty. We cannot hide our heads, pulling bills from the floor and 
avoiding votes. We owe to it our soldiers during this time of war to 
take a stand. So while I would prefer to offer this amendment to the 
DOD authorization bill, I am left with no choice but to offer it to 
this appropriations measure. I would note that I am offering this 
amendment in accordance with the options afforded under rule XVI of the 
Standing Rules of the Senate.
  The amendment I am offering combines the two amendments I previously 
filed to the authorizing measure. To fight terrorism, we need 
intelligence. That much is obvious. What should also be obvious is that 
the intelligence we collect must be reliable and acquired humanely, 
under clear standards understood by all our fighting men and women. To 
do differently would not only offend our values as Americans but 
undermine our war effort, because abuse of prisoners harms, not helps, 
in the war on terror.
  First, subjecting prisoners to abuse leads to bad intelligence, 
because under torture, a detainee will tell his interrogator anything 
to make the pain stop. Second, mistreatment of our prisoners endangers 
U.S. troops who might be captured by the enemy--if not in this war, 
then in the next. And third, prisoner abuses exact on us a terrible 
toll in the war of ideas, because inevitably these abuses become 
public. When they do, the cruel actions of a few darken the reputation 
of our country in the eyes of millions. American values should win 
against all others in any war of ideas, and we can't let prisoner abuse 
tarnish our image. Yet reports of detainee abuse continue to emerge, in 
large part, I believe, because of confusion in the field as to what is 
permitted and what is not. This amendment will go a long way toward 
clearing up this confusion.

  The first part of the amendment would establish the Army Field Manual 
as the uniform standard for the interrogation of Department of Defense 
detainees. The Army Field Manual and its various editions have served 
America well through wars against both regular and irregular foes. It 
embodies the values Americans have embraced for generations, while 
preserving the ability of our interrogators to extract critical 
intelligence from ruthless foes. Never has this been more important 
than today in the midst of the war on terror. The Army Field Manual 
authorizes interrogation techniques that have proven effective in 
extracting lifesaving information from the most hardened enemy 
prisoners. It is consistent with our laws and, most importantly, our 
values. Let's not forget that al-Qaida sought not only to destroy 
American lives on September 11, but American values, our way of life, 
and all we cherish.
  We fight not just to preserve our lives and liberties, but also 
American

[[Page S11063]]

values. We will never allow the terrorists to take those away. In this 
war--that we must win, that we will win--we must never simply fight 
evil with evil.
  This amendment would establish the Army Field Manual as the standard 
for interrogation of all detainees held in DOD custody. The manual has 
been developed by the executive branch for its own uses, and a new 
edition, written to take into account the needs of the war on terror 
and with a new classified annex, is due to be issued soon. This 
amendment would not set the field manual in stone. It could be changed 
at any time.
  The advantage of setting a standard for interrogation based on the 
field manual is to cut down on the significant level of confusion that 
still exists with respect to which interrogation techniques are 
allowed. The Armed Services Committee has held hearings with a slew of 
high-level Defense Department officials, from regional commanders to 
judge advocate generals to the Department's deputy general counsel. A 
chief topic of discussion in these hearings was what specific 
interrogation techniques are permitted, in what environments, with 
which DOD detainees, by whom and when. The answers have included a 
whole lot of confusion. If the Pentagon's top minds can't sort these 
matters out, after exhaustive debate and preparation, how in the world 
do we expect our enlisted men and women to do so?
  Confusion about the rules results in abuses in the field. We need a 
clear, simple, and consistent standard, and we have it in the Army 
Field Manual on interrogation. That is not just my opinion but that of 
many more distinguished military minds than mine. I refer to a letter 
expressing strong support for this amendment signed by 28 former high-
ranking military officers, including GEN Joseph Hoar, who commanded 
CENTCOM; GEN John Shalikashvili, former Chairman of the Joint Chiefs of 
Staff; RADM John Hutson and RADM Don Guter, who each served as the 
Navy's top JAG; and LTG Claudia Kennedy, who served as Deputy Chief of 
Staff for Army Intelligence. These and other distinguished officers 
believe the abuses at Abu Ghraib, Guantanamo, and elsewhere took place 
in part because our soldiers received ambiguous instructions which in 
some cases authorized treatment that went beyond what the field manual 
allows, and that had the manual been followed across the board, we 
could have avoided the prisoner abuse scandal.
  Why wouldn't any of us do whatever we could to have prevented that?
  By passing this amendment, our servicemembers can follow the manual 
consistently from now on. Our troops deserve no less.
  I ask unanimous consent that the letter from 29 retired military 
officers be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  September, 2005.
       Dear Senator McCain: We strongly support your proposed 
     amendments to the Defense Department Authorization bill 
     concerning detainee policy, including requiring all 
     interrogations of detainees in DOD custody to conform to the 
     U.S. Army's Field Manual on Intelligence Interrogation (FM 
     34-52), and prohibiting the use of torture and cruel, inhuman 
     and degrading treatment by any U.S. government agency.
       The abuse of prisoners hurts America's cause in the war on 
     terror, endangers U.S. service members who might be captured 
     by the enemy, and is anathema to the values Americans have 
     held dear for generations. For many years, those values have 
     been embodied in the Army Field Manual. The Manual applies 
     the wisdom and experience gained by military interrogators in 
     conflicts against both regular and irregular foes. It 
     authorizes techniques that have proven effective in 
     extracting life-saving information from the most hardened 
     enemy prisoners. It also recognizes that torture and cruel 
     treatment are ineffective methods, because they induce 
     prisoners to say what their interrogators want to hear, 
     even if it is not true, while bringing discredit upon the 
     United States.
       It is now apparent that the abuse of prisoners in Abu 
     Ghraib, Guantanamo and elsewhere took place in part because 
     our men and women in uniform were given ambiguous 
     instructions, which in some cases authorized treatment that 
     went beyond what was allowed by the Army Field Manual. 
     Administration officials confused matters further by 
     declaring that U.S. personnel are not bound by longstanding 
     prohibitions of cruel treatment when interrogating non-U.S. 
     citizens on foreign soil. As a result, we suddenly had one 
     set of rules for interrogating prisoners of war, and another 
     for ``enemy combatants;'' one set for Guantanamo, and another 
     for Iraq; one set for our military, and another for the CIA. 
     Our service members were denied clear guidance, and left to 
     take the blame when things went wrong. They deserve better 
     than that.
       The United States should have one standard for 
     interrogating enemy prisoners that is effective, lawful, and 
     humane. Fortunately, America already has the gold standard in 
     the Army Field Manual. Had the Manual been followed across 
     the board, we would have been spared the pain of the prisoner 
     abuse scandal. It should be followed consistently from now 
     on. And when agencies other than DOD detain and interrogate 
     prisoners, there should be no legal loopholes permitting 
     cruel or degrading treatment.
       The amendments proposed by Senator McCain would achieve 
     these goals while preserving our nation's ability to fight 
     the war on terror. They reflect the experience and highest 
     traditions of the United States military. We urge the 
     Congress to support this effort.
           Sincerely,
         Joseph Hoar, USMC (Ret.), General John Shalikashvili, USA 
           (Ret.), General Donn A. Starry, USA (Ret.), Lieutenant 
           General Ron Adams, USA (Ret.), Lieutenant General 
           Robert G. Gard, Jr., USA (Ret.), Lieutenant General Jay 
           M. Garner, USA (Ret.), Vice Admiral Lee F. Gunn, USN 
           (Ret.), Lieutenant General Claudia J. Kennedy, USA 
           (Ret.), Lieutenant General Charles Otstott, USA (Ret.), 
           Vice Admiral Jack Shanahan, USN (Ret.), Major General 
           Eugene Fox, USA (Ret.), Major General John L. Fugh, USA 
           (Ret.), Rear Admiral Donald J. Guter, USN (Ret.), Major 
           General Fred E. Haynes, USMC (Ret.).
         Rear Admiral John D. Hutson, USN (Ret.), Major General 
           Melvyn Montano, ANG (Ret.), Major General Robert H. 
           Scales, USA (Ret.), Major General Michael J. Scotti, 
           USA (Ret.), Brigadier General David M. Brahms, USMC 
           (Ret.), Brigadier General James Cullen, USA (Ret.), 
           Brigadier General Evelyn P. Foote, USA (Ret.), 
           Brigadier General David R. Irvine, USA (Ret.), 
           Brigadier General Richard O'Meara, USA (Ret.), 
           Brigadier General John K. Schmitt, USA (Ret.), 
           Brigadier General Stephen N. Xenakis, USA (Ret.), 
           Ambassador/Former Vietnam POW Douglas ``Pete'' 
           Peterson, USAF (Ret.), Former Vietnam POW Commander 
           Frederick C. Baldock, USN (Ret.), Former Vietnam POW 
           Commander Phillip N. Butler, USN (Ret.).

  Mr. McCAIN. The second part of this amendment should not be 
objectionable to anyone since I am actually not proposing anything new. 
The prohibition against cruel, inhumane, and degrading treatment has 
been a long-standing principle in both law and policy in the United 
States. Before I get into why the amendment is necessary, let me first 
review the history.
  The Universal Declaration of Human Rights, adopted in 1948, states 
simply:

       No one shall be subjected to torture or cruel, inhuman or 
     degrading treatment or punishment.

  The International Covenant on Civil and Political Rights, to which 
the United States is a signatory, states the same. The binding 
Convention Against Torture, negotiated by the Reagan administration and 
ratified by this body, prohibits cruel, inhuman, and degrading 
treatment. On last year's DOD authorization bill, the Senate passed a 
bipartisan amendment reaffirming that no detainee in U.S. custody can 
be subject to torture or cruel treatment, as the U.S. has long defined 
those terms. All of this seems to be common sense, in accordance with 
longstanding American values. But since last year's DOD bill, a strange 
legal determination was made that the prohibition in the Convention 
Against Torture against cruel, inhuman, or degrading treatment does not 
legally apply to foreigners held outside the United States. They can 
apparently be treated inhumanely. This is the administration's 
position, even though Judge Abe Soafer, who negotiated the Convention 
Against Torture for President Reagan, said in a recent letter that the 
Reagan administration never intended the prohibition against cruel, 
inhuman, or degrading treatment to apply only on U.S. soil.
  What all this means is that America is the only country in the world 
that asserts a legal right to engage in cruel and inhuman treatment. 
But the crazy thing is, it is not even necessary because the 
administration has said it will not engage in cruel, inhuman, or 
degrading treatment as a matter of policy. What this also means is that 
confusion about the rules becomes rampant again. We have so many 
differing legal standards and loopholes that our lawyers and generals 
are confused. Just imagine our troops serving in prison in the field.

[[Page S11064]]

  The amendment I am offering simply codifies what is current policy 
and reaffirms what was assumed to be existing law for years. In light 
of the administration's stated commitment, it should require no change 
in our current interrogation and detention practices. What it would do 
is restore clarity on a simple and fundamental question: Does America 
treat people inhumanely? My answer is no. And from all I have seen, 
America's answer has always been no.
  I travel a lot around the world, usually at taxpayers' expense. 
Everywhere I go, I encounter this issue of the treatment of prisoners 
and the photos of Abu Ghraib and what is perceived in the world to be 
continued mistreatment of prisoners. It is harming our image in the 
world terribly. We have to clarify that that is not what the United 
States is all about. That is what makes us different. That is what 
makes us different from the enemy we are fighting. The most important 
thing about it is not our image abroad but our respect for ourselves at 
home.
  Let me close by noting that I hold no brief for the prisoners. I do 
hold a brief for the reputation of the United States of America. We are 
Americans. We hold ourselves to humane standards of treatment of 
people, no matter how evil or terrible they may be. To do otherwise 
undermines our security, but it also undermines our greatness as a 
nation. We are not simply any other country. We stand for something 
more in the world, a moral mission, one of freedom and democracy and 
human rights at home and abroad. We are better than these terrorists, 
and we will win. The enemy we fight has no respect for human life or 
human rights. They don't deserve our sympathy. But this isn't about who 
they are; this is about who we are. These are the values that 
distinguish us from our enemies.
  I urge my colleagues to support the amendment.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Alaska is 
recognized.
  Mr. STEVENS. Mr. President, this is a difficult subject to discuss, 
and as the minority leader indicated, no one is more qualified to talk 
about this than the Senator from Arizona.
  It is with some trepidation that I try to explain to him the position 
of the administration and with which I happen to agree. The problem is 
not the goal of the Senator from Arizona; the problem is the way it 
would be carried out under this amendment. This amendment would require 
that the field manual be changed. Currently the field manual has a 
general description of the techniques of interrogation, and it allows 
flexibility to determine what will be used in terms of interrogation 
techniques based upon the circumstances that exist. We know that 
terrorists train their people to deal with the techniques of our 
interrogation, so those techniques change under various circumstances.
  One of the situations I would call to the attention of the Senator 
from Arizona is as we have visited with our people in the field, now we 
have a unique circumstance of having multinational and multiagency 
teams that are in the field. The question comes down to who has custody 
or effective control of a person. Particularly I remember one team we 
saw which had five different nationalities including the intelligence 
agencies and military agencies of those nations. If this becomes law, 
it is my opinion that those teams will be handled so that the United 
States does not have custody, does not have control, and the kind of 
treatment we seek will not be given to people who are made prisoners by 
multinational teams that are searching out terrorists throughout the 
world.
  This is a different war now. I believe we are seeing the beginning of 
a crusade against freedom from the militant terrorist Islamic entities 
throughout the world. We see the suicide bombers. We see the people who 
are inflicting terrible damage from Indonesia, the Philippines, to all 
throughout the Central Command, and we have teams out trying to find 
these people.
  Of course, one of their first jobs is to interrogate anyone they 
capture to try to see if we can find out where the rest of them are and 
how they are functioning. If this amendment passes, the United States 
will not have effective control of those people. It will be impossible 
to interrogate under the systems we have used in the past because we 
cannot list in a field manual all of the interrogation techniques that 
will be used. It takes thousands of pages anyway. But the techniques 
vary upon the circumstances and the physical location of the people 
involved.
  I have some memory from World War II in China when I witnessed some 
of our people--I was just a pilot, but I was conveying some of these 
people from place to place who had been tortured, and I can tell you 
they were brutally treated by the Chinese when we were taking these 
people from place to place and they had prisoners. Some of them were 
not Chinese. They were prisoners obviously of Japan. We had freed some 
of them, and they were--I have memory that those who were freed were 
still the responsibility of the United States.
  But as a practical matter, what do you do with regard to a law that 
says that all of the techniques must be listed in the field manual; 
regardless of nationality or physical location, if an individual is in 
the custody or physical control of the United States, they shall be 
subject to only the means of interrogation listed in the field manual.
  I appreciate very much what the Senator is trying to do. I think most 
of us have gone down to Guantanamo to satisfy ourselves that what is 
happening down there is in accordance with our concepts. Those people 
are totally under the custody of the United States, and certainly from 
my point of view what we saw when we were down there, we were convinced 
they were receiving the kind of treatment and the interrogations were 
not such that they would be affected by this amendment.
  It is the people in the field, not people really handling prisoner 
camps or handling interrogation of those persons who are seized by our 
forces and brought to a camp or brought to a place, a jail such as we 
all know has gone wrong in Iraq--but I am talking the people in the 
field now, multinational teams, and their job is to find out what these 
people who are captured know in order to prevent further acts of 
terrorism. It is a very touchy thing to deal with, I know, to really 
talk about it.
  The administration has told us that they are complying with all the 
constitutional, statutory, treaty obligations that apply to U.S. 
interrogation practices. They are telling us that they know the 
Convention Against Torture requires the United States to ensure that 
torture is a crime whether committed anywhere by a U.S. national or to 
prevent any of the entities that are under the control of the United 
States from any acts of cruel, inhumane, or degrading treatment or 
punishment. We totally agree with the efforts of the Senator from 
Arizona in that regard, and the President has directed the Armed Forces 
to treat any detainee humanely and comply with the appropriate and 
consistent military procedures that are consistent with the Geneva 
Conventions.

  That is a given. But this amendment goes further. This amendment will 
cover those entities with multiple nationalities, multiple agencies, 
and because of the circumstances our people in the past have taken 
control of these, and some of the activities of the other nationalities 
involved would not be consistent with this amendment. I say what will 
happen in the future is we will just not take control of them. This 
will be a deterrent to our people from taking the leadership, and as 
they do, they will do everything they can to comply with the Geneva 
Conventions. It is those circumstances, the new type of entities we use 
to combat terrorism that worries the administration. So I can say--and 
I know the Senator from Arizona understands--it is the position of the 
administration that this amendment goes too far.
  We will not make a point of order. There is no point of order that I 
know will apply to it anyway. But I do believe it is a matter that 
ought to be approached with caution. What does a multinational team do 
if they pick up a prisoner who they believe can give them information 
as to the location of terrorists who have committed severe acts of 
terrorism? The decision will be made, I am sure, that we not take 
custody. The custody will go to other nationalities involved in the 
team. We will have no control. I believe the amendment of the Senator 
from Arizona is going to carry, but I believe we

[[Page S11065]]

have to give serious consideration to the implications I have just 
mentioned, and I hope the Senate will keep that in mind.
  I yield the floor.
  The PRESIDING OFFICER (Mr. McCain). The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, No. 1, I would like to recognize that 
Senator Stevens, who has so honorably served our country, is genuinely 
concerned about the extent of this amendment. For those of you who are 
listening, Senator Stevens was a World War II pilot. He has gone in 
harm's way in defending his country. We have in the Chamber his 
counterpart on the Appropriations Committee, Senator Inouye, a Medal of 
Honor winner, and the Senator occupying the chair is a former POW. The 
food chain is going down when I am speaking. But what I want to try to 
discuss today is from a lawyer's point of view and really from a 
citizen's point of view.
  I have had the honor for the last 20-some years to be a member of the 
Judge Advocate General's Corps of the Air Force, a prosecutor, a 
defense counsel, and I am now a Reserve military judge. That experience 
has been a wonderful experience. I have received more out of it than 
given. Wearing the uniform in any capacity is quite an honor, and to be 
a military lawyer has been one of the highlights of my life. I have 
never been shot at. I had some clients who probably wanted to kill me. 
But other than that, I do understand this debate pretty well. To me, it 
is not much of a debate. We have as a nation adopted the position that 
Senator McCain described when it comes to how you handle people in your 
care and custody.
  One thing I would respond to Senator Stevens is that the Army Field 
Manual has sort of been the bible for interrogation for decades. If you 
are worried, and I think it is a fair question, is there anything in 
the Army Field Manual that would unfairly restrict the ability of the 
United States to gain good information and defend ourselves from a 
bunch of rogue thug murderers, the answer is no. You don't have to 
trust me there. Go to Gitmo and ask the question of the people who are 
doing the interrogation of these terrorists: Is there anything in the 
Army Field Manual as written or being drafted that would impede your 
ability to gather good information? And the answer they told me was no.
  So what is the value of having it? The value of having 
standardization when it comes to interrogation, detention, and 
prosecution is of immeasurable benefit to the force because, as Senator 
McCain indicated, a lot of the people implementing these policies when 
it comes to interrogation, detention, and prosecution are in harm's way 
themselves. One of the things we have learned in this whole war on 
terror is that this Nation needs to have effective interrogation 
techniques, effective detention policies, and effective prosecution 
tools to hold the terrorists responsible because you have two 
audiences.
  No. 1, you have the terrorist community. I want every terrorist to 
know, if you are not killed on the battlefield and you are captured, 
things are going to happen to you. You are going to be interrogated 
aggressively, but we are going to treat you humanely, not because we 
worry about your sensitivities but because we don't want to become who 
we are interrogating. So we are going to keep that in place.
  The President has said whether the Geneva Convention applies or not 
we are going to treat everybody in our charge humanely, not because of 
them but because of us. And the debate here is what happens when 
somebody in your charge is not covered by the Geneva Conventions. It is 
easy when someone is a legal combatant. We know what the rules are. We 
have the Geneva Conventions. We have been a signatory for 60 years. The 
Army Field Manual covers that situation. The war on terror is 
different. Vietnam was different. We had people who were lawful, whom 
we were able to interrogate, detain, and prosecute without changing who 
we were.
  The Army Field Manual as a one-stop shop to guide the way we handle 
lawful combatants and enemy combatants is absolutely necessary if for 
no other reason than to protect our own troops. That is why we are 
doing this. That is one of the main reasons--to make sure that your own 
troops don't get in trouble because they are confused.
  I have been a military lawyer for 20 years. We have confused people 
about as much as you can possibly confuse them. And this all started 
with the Bybee memo. I think we need to know the history of where we 
have been, to find where we are before we take corrective action.
  Right after 9/11, this Nation was shocked and shaken. We tried to 
make sure we could secure our freedom and security and do a balancing 
act, and we have done a pretty good job of it. How can you be secure 
and still free? How can you fight the worst enemy and still not become 
the worst of yourself? I think you can.
  The Bybee memo was an effort by people at the Justice Department to 
take international torture statutes that we had ratified and been party 
of and have the most bizarre interpretation basically where anything 
goes. It was an effort on the part of the Department of Justice lawyers 
to stretch the law to the point the law meant nothing. And early on in 
this process, those in uniform who happened to be military lawyers 
stood up and spoke.
  I am going to read from General Sandkuhler, Brigadier General of the 
U.S. Marines, who was one of the judge advocates to review this change 
in policy, this very liberal interpretation of what torture might be. 
He said:

       The common thread among our recommendation is concern for 
     servicemembers. OLC [Office of Legal Counsel] does not 
     represent the services; thus, understandably, concern for 
     servicemembers is not reflected in their opinion. Notably, 
     their opinion is silent on the UCMJ and foreign views of 
     international law.

  The general is telling the civilians that we live in a different 
world. This is a complex process, and if we interpret a torture statute 
in the way you are suggesting, we are going to get our own people in 
trouble.
  He says:

       We nonetheless recommend that the Working Group product 
     accurately portray the services' concerns that the 
     authorization of aggressive counter-resistant techniques by 
     servicemembers will adversely impact the following:
       a. Treatment of U.S. servicemembers by Captors and 
     Compliance with International Law.

  We have been the gold standard. We take this moral high ground to 
make sure if our people fall into enemy hands that we will have the 
moral force to say, You better treat them right. If you don't practice 
what you preach, nobody listens. Sometimes that does not happen, but 
you don't want to erode the principle because it puts people at risk.
  Criminal and Civil Liability of DOD Military and Civilian Personnel 
in Domestic, Foreign, and International Forums.
  All the reasons all the JAGs wanted to push back is that you are 
going too far if you interpret the statutes as being proposed by the 
Department of Justice. Some of the techniques violate the Uniform Code 
of Military Justice.
  Senator Stevens is concerned about joint operations. Here is the 
rule: If you are wearing America's uniform, you are going to be judged 
by American standards. You will never be prosecuted unless you do 
something inconsistent with our law. If you are part of an 
international group and wondering what to do with a prisoner in front 
of you, I suggest we let our troops know there are rules they must 
follow, and if they see anything they think is out of bounds, report 
it.
  The best thing we can do for anybody operating in the war on terror 
is give them clarity about what to do in very stressful situations. 
There is the combat role. What do you do with somebody who is captured? 
You do what the President says: You treat them humanely, you 
interrogate them by standards we can live by that will not erode our 
moral authority.
  Where have those standards been in the last 50 or 60 years? The Army 
Field Manual. You can change the Army Field Manual to adapt techniques 
to the war on terror. There is a classified section of the Army Field 
Manual. There is nothing about its adoption that limits the ability to 
aggressively interrogate people to get good intelligence. But if you 
want to torture people, the Army Field Manual says no and the President 
says no. It is now time for Congress to say no, and that is what this 
amendment is about.
  Congress has been AWOL when it comes to the war on terror in terms of

[[Page S11066]]

interrogation, detention, and prosecution, and we have done it in a way 
that weakens our Nation. We are the strongest when all three branches 
are on the same sheet of music. It is important, if we are going to win 
this war on terror, not to give the moral high ground to your enemy and 
to have laws that every branch of Government understands and the people 
implementing these laws are not confused and they will not get in 
trouble by following what we have said. Congress has been AWOL. It is 
now time for Congress to step up to the plate and offer assistance in 
the war on terror to the administration. That is exactly what we are 
doing.
  I asked Judge Roberts, during the confirmation process, about this 
whole line of questioning. I said:

       Do you believe that the Geneva Convention, as a body of 
     law, that it has been good for America to be part of that 
     convention?
       ROBERTS: I do, yes.
       GRAHAM: Why?
       ROBERTS: Well, my understanding in general is it's an 
     effort to bring civilized standards to conduct of war--a 
     generally uncivilized enterprise throughout history; an 
     effort to bring some protection and regularity to prisoners 
     of war in particular. And I think that's a very important 
     international effort.

  It is an important international effort, and al-Qaida should not be 
considered a lawful combatant under Geneva Conventions. But it is about 
us, as Senator McCain said. When we catch someone who is not under the 
Geneva Conventions, it is important that our people not only follow the 
dictates of the President--treat them humanely--but they know what to 
do. We are giving confusing policies in this new war on terror, this 
hybrid between a lawful combatant, enemy combatant, and regular 
combatant. We need to standardize our techniques.
  How do we do that to make America the strongest? How can we 
effectively do that? We get the Congress involved, we get the 
administration involved, and we get the courts involved. Right now we 
have two court cases that are all over the board. Judges are telling 
us--Justice Scalia in one of the court cases is screaming out that 
Congress has been absent here. Congress needs to speak because the 
courts are not equipped to run Guantanamo Bay. The courts are not well 
equipped to interpret military policy, and they need guidance from 
Congress.
  I asked Justice Roberts about that. One of his favorite Justices is 
Justice Jackson. Justice Jackson in the Youngstown steel case basically 
said that the executive branch is at its strongest when it has the 
expressed or implied consent of Congress.
  When I met with Judge Roberts on this whole issue about detention, 
interrogation, and prosecution of enemy combatants, he said this is an 
area where the courts would welcome congressional involvement.
  As a result of us being AWOL in Congress, there is a Supreme Court 
decision, 5 to 4, giving enemy combatants at Guantanamo Bay habeas 
corpus rights. They are noncitizens, and they are able to go to Federal 
court because there is no clear direction from Congress about how to 
treat these people. Mr. President, 185 of them have lawyers, and they 
are absolutely overrunning the place. To me, it is absurd that an enemy 
combatant, noncitizen terrorist has habeas corpus rights, and the 
reason they do is because we are giving no guidance to the courts about 
how we want these people treated.
  I believe it is now time to give guidance to the courts, to the 
country, to the international community, to those in uniform serving 
us, and to the terrorists about what we are going to do, and Senator 
McCain's amendment has got it. It is the authority that has been 
missing in this great effort to win the war on terror. It is now 
bringing standardization into an area which had been previously 
chaotic. Every military lawyer who has been looking at the policies 
proposed has come away confused.
  Let me tell you unequivocally that the military legal community 
understands what Senator McCain is doing and wholeheartedly adopts his 
efforts, that not only would it be good for the Congress to speak with 
the same authority as the President, but it would help the courts, and 
it would be good for our troops if they had the protection of 
standardization.

  If you want to help our troops who are trying to win this war on 
terror, give them the cover they need and the guidance they need. Do 
not throw them to the wolves. We have had people prosecuted because 
they have been given an impossible task. They have been given the task 
of interpreting laws that make no sense. And if you really do want to 
stand by the troops, give them guidance. Give them the guidance and the 
tools they can use to get good information, not bad information, and 
get information in a way that does not embarrass our Nation and put us 
at risk.
  Abu Ghraib has been a giant step back, a huge step back, and one of 
the reasons we had Abu Ghraib is because nobody there knew what they 
were doing. They were not trained. They were overwhelmed. They did not 
have consistency when it came to interpreting the interrogation 
policies because the policies made no sense. Some people are in jail 
now. Most of them are in jail because of their own misconduct. Some 
people have had their careers ruined because they are trying to 
interpret policies nobody can understand.
  That is a huge deviation from the way we conducted war for 50 to 60 
years, and we paid the price. We are allowing courts to come in and do 
things they are not equipped to do because we have been AWOL as 
Congress. The best thing we can do to win this war is have policies 
that allow us to effectively interrogate, detain, and prosecute 
terrorists without ceding the high ground. And this amendment is a 
start.
  I am going to introduce every JAG memo written about the original 
policies. Their concern is we are putting our own people at risk.
  This is General Rives, my current boss:

       Should any information concerning the exceptional 
     techniques--

  And they were exceptional--

     become public, it is likely to be exaggerated/distorted in 
     both the U.S. and international media. This could have a 
     negative impact on international, and perhaps even domestic, 
     support for the war on terrorism. It could likewise have a 
     negative impact on public perception of the U.S. military in 
     general.

  This was written 6 February 2003. He was foretelling what was going 
to happen. These are not ACLU lawyers. This is a Marine Corps general 
and a two-star general in the Air Force who dedicated their lives to 
defending their country and holding us up to be the great Nation we 
are.
  I urge my colleagues to please adopt this amendment overwhelmingly. 
It will do a great service to future Presidents. It will be a great 
turning point in the war on terror. It is needed. It is a simple 
amendment. It uses the Army Field Manual as the bible for interrogation 
for lawful combatants and enemy combatants. You can write it the way 
you need to. It does not lock us into a position that would be 
undermining our efforts to get good intelligence. It simply will be a 
document that covers how we behave in every known situation from 
Guantanamo Bay to the battlefield in Afghanistan. It will be something 
that will help our troops understand what they can and cannot do. It 
will make us stronger as a nation.
  The second part of the amendment is the most important. It says that 
we as a nation will do what the President said: We will treat everybody 
in our charge humanely whether they deserve it or not because, as 
Senator McCain said, it is about us, it is not about them. And it is 
now time for Congress to speak. It will help us in court. When the 
courts understand that the Congress has come up with a plan in support 
of the administration to interrogate detainees, they will give great 
deference to that situation. When Congress is absent, they are going to 
be confused, and they are going to do some things they really do not 
want to do.
  This is a very important moment in the war on terror. This brings us 
back into the light out of the darkness. It allows us to interrogate 
enemy combatants, unlawful combatants in a way to get good intelligence 
without undermining who we are as a people. It is necessary, it is 
legally necessary. It will strengthen our hand in court. It is very 
necessary to create certainty out of confusion for our troops.
  One thing I can say with absolute certainty is that we have let the 
troops down when it comes to trying to give them guidance about what to 
do in very stressful situations. We are trying

[[Page S11067]]

to give them the armor they need to protect themselves from a terrible 
enemy. We are trying to give them the intelligence they need to get 
ahead of the enemy. The best thing we can do is give them the guidance 
they need to make sure we can win this war on terror and never lose the 
moral high ground.
  I urge every person to think long and hard about this amendment. To 
vote no on this amendment, in my opinion, dramatically weakens us as a 
nation. To vote yes reinforces our values, provides good guidance to 
make sure we get good intelligence, and protects our own people from 
being prosecuted.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee is recognized.
  Mr. ALEXANDER. Mr. President, it is an honor to serve in the same 
body with the Senator from Hawaii, a Congressional Medal of Honor 
winner, and with the Senator from Arizona because of his distinguished 
service in Vietnam. Whenever the Senator from Alaska, a pilot in World 
War II, who devoted most of his career here to understanding our 
defense policies, urges caution, I try to listen and pay attention. But 
I rise today in support of the amendment by the Senator from Arizona to 
the Defense appropriations bill, and I ask unanimous consent to be 
added as a cosponsor.
  The PRESIDING OFFICER (Mr. Graham). Without objection, it is so 
ordered.
  Mr. ALEXANDER. Mr. President, I have listened carefully to the debate 
about whether it is appropriate for Congress to set the rules on the 
treatment of detainees. I have listened carefully, but for me the 
question isn't even close.
  The people, through their elected representatives, should set the 
rules for how detainees and prisoners under U.S. control are treated 
and interrogated. In the short term, the President can set the rules, 
but the war on terror is now 4 years old. We do not want judges making 
up the rules. We Republicans often say we don't like to see judges 
legislating from the bench. So for the longer term, the people should 
set the rules. That is why we have an independent Congress. That is our 
job. In fact, the Constitution says quite clearly that is what Congress 
should do. Article I, section 8, of the Constitution says that Congress 
and Congress alone shall have the power to make ``Rules concerning 
Captures on Land and Water.'' So Congress, as the Senator from South 
Carolina said, has a responsibility to set clear rules here.
  But the spirit of this amendment is really one that I still hope the 
White House will decide to embrace. In essence, as has been pointed 
out, the amendment codifies military procedures and policies--
procedures in the Army Field Manual and procedures regarding compliance 
with the Convention Against Torture signed by President Reagan. These 
amendments uphold or codify policies and procedures the administration 
says we are following today and intend to follow moving forward.
  As the Senator from Arizona pointed out, his amendment would do two 
things: One, prohibit cruel, inhumane, or degrading treatment or 
punishment of detainees. It is in specific compliance with the 
Convention Against Torture that was signed by President Reagan. The 
administration says we are already upholding that standard when it 
comes to treatment of detainees, so this should not be a problem.
  Secondly, the McCain amendment states simply that the interrogation 
techniques used by the military on detainees shall be those specified 
by the Army Field Manual on Intelligence Interrogation. The military, 
not Congress, writes that manual. We are told that the technique 
specified in the manual will do the job. Further, it is under revision, 
as has been pointed out, to include techniques related to unlawful 
combatants, including classified portions that will continue to give 
the President and the military a great deal of flexibility.
  If the President of the United States thinks these are the wrong 
rules, I would hope he would submit new rules to Congress so that we 
can debate them and pass them. I made this same suggestion in July, but 
no alternative rule has been suggested so far. I am one Senator who 
would give great weight to the President's views on this matter.
  This has been a gray area for the courts over time. In this gray 
area, the question is, Who should set the rules? In the short term, 
surely the President can. In the longer term, the people should, 
through their elected representatives. We are their elected 
representatives. It is time for us to act. It is time for us to set the 
rules. We do not want courts legislating from the bench and writing the 
rules. That leaves us to do our job.
  In summary, it is time for Congress, which represents the people, to 
clarify and set the rules for detention and interrogation of our 
enemies. If the White House would prefer different rules, I hope the 
President will tell us what rules and procedures he needs to succeed in 
the war on terror.
  If the argument is whether it is appropriate for Congress to set 
clear standards, I believe Congress should set standards and will vote 
to support the amendment of the Senator from Arizona.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SUNUNU. Mr. President, I rise in support of the McCain amendment. 
There has been a lot of discussion about the new challenges we face in 
dealing with organized terrorist cells around the world. The complexity 
and the nature of those terrorist threats requires us to engage in ever 
more combat activity that is nonconventional. We want to make sure we 
do what we can to secure transportation and infrastructure, that we do 
what we can to deploy technology, that we improve our preparedness. But 
it does not change the fact that in dealing with terrorism our greatest 
asset or our greatest tool will be intelligence gathering. Intelligence 
gathering will require direct engagement with and interrogation of 
suspects, trying to gather information that can help us disrupt these 
networks.
  We are trying to gather information that can help us prevent future 
attacks. That process of interrogation, needless to say, is complex and 
challenging. We have seen many of the problems and some of the abuses 
that have been documented by some of the previous speakers.
  I think this calls out for a process that is more clear and better 
defined; interrogation tools, techniques, and procedures that we can be 
sure are applied consistently in the field. That is why I think this 
amendment is so important. That is why I think we have a fundamental 
obligation to support this amendment or at least some approach to 
clarify these processes, standards, and procedures used for 
interrogation.
  I can think of two basic reasons that this is important and that it 
will benefit our troops and our country. First, by establishing clear 
lines, procedures, and process for interrogation, we help our own 
troops, whether working in the uniformed services or working in covert 
operations or other intelligence-gathering activities. We can be sure 
that they know what the allowances are, that they know what the process 
is, that they know what the procedure is, and, in effect, we provide 
them with appropriate protection and safeguards in doing their job.
  In a similar way, we provide those individuals with protection in the 
field of combat should they be taken as a prisoner of war. We want to 
make sure our enemies do not have justification for using any 
interrogation techniques that we would consider to be improper, cruel, 
or inhumane.
  First, we are providing protection and establishing this clarity. 
Second, I think we are sending an important message to our allies and 
our adversaries--a message that while the legal standards that are 
enshrined in the Constitution do not apply to everyone in the world, 
our commitment to these basic principles of life, liberty, and the 
pursuit of happiness, our commitment to basic principles of human 
dignity and human rights do apply and we must find ways to define these 
standards, to clarify this commitment, even in the area of 
interrogating enemy combatants and interrogating potential terrorists, 
suspected terrorists, in the field.
  So we send a clear message to our allies and adversaries that our 
commitment to these principles is real, that our desire to establish 
uniform standards is real.

[[Page S11068]]

  I do not know, not having the experience of some of my colleagues, 
whether this is the perfect standard, whether the requirements and the 
precise language in this amendment are ideal, but I think this is a 
fair-minded approach that allows the military itself, through its code 
of conduct, to establish these definitions that allows for the 
establishment of a classified annex to deal with covert operations, 
deal with the most sensitive of captives and the most sensitive of 
interrogations so that we are not undermining the intelligence 
gathering that we are attempting to facilitate.

  In fact, the approach that is taken has been endorsed, as was 
indicated by the Senator from Arizona, by many who have had very close 
and intimate experience with this type of interrogation. In the letter 
that Senator McCain entered into the Record there were two particular 
points that were made that I want to underscore, and that is, first, 
``the abuse of prisoners hurts America's cause.'' I think that is just 
a fundamental and important underlying point in this debate, that 
prisoner abuse hurts our cause. It hurts the moral arguments we are 
trying to make, the political arguments we are trying to make, and it 
does put our own men and women serving in uniform or in intelligence-
gathering operations at risk.
  Second, the United States should have one standard for interrogating 
enemy prisoners that is effective, lawful, and humane. That point 
brings me back to the concern that we send a clear message to our 
allies and adversaries that our commitment to human dignity and human 
rights is universal.
  So I am pleased to support the amendment. I think it is a very 
important first step. I think it gives the military the flexibility 
that it deserves, and I hope the military will use that flexibility 
well to add clarity, standards, process, and procedure that will enable 
us to continue to interrogate prisoners and continue to gather 
intelligence in dealing with these terrorist networks around the world, 
but do it in a way that is consistent with the intent, the principle, 
and the philosophy of our Constitution.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I rise today in support of amendment No. 
1977, which has been offered by Senator McCain, the Presiding Officer, 
Senator Graham, Senator Hagel, Senator Smith, and Senator Collins. 
First, let me commend Senator McCain for the courage that he has shown, 
again, in offering this amendment. There is not a single person in 
Congress who can speak with more authority than Senator John McCain on 
the treatment of prisoners of war.
  I have come to this floor many times to address this issue, but my 
voice is weak compared to his. He has lived this experience in a way 
that none of us ever have or ever will. I believe his voice should be 
listened to more than some because he has given so many years of his 
life to this country and suffered as a prisoner of war personally.
  This should be a noncontroversial amendment. It really requires two 
very simple and straightforward things: First, that the treatment of 
detainees comply with the Army's Field Manual on Interrogation; and, 
second, that the United States may not subject anyone in our custody to 
torture or cruel, inhumane, or degrading treatment. It is that 
straightforward.
  This amendment would affirm our Nation's very important, longstanding 
obligation not to engage in torture or other cruel treatment. This 
standard is enshrined in our U.S. Constitution and in several treaties 
which our Nation has adopted as the law of the land.
  Just as important, this amendment would make the rules clear for our 
soldiers so they know what the standards are that they should follow in 
the treatment of detainees. We owe this to our troops. If they are 
going to risk their lives every day in defense of our country, we 
should give them standards of conduct that are clear and unequivocal.
  The prohibition on torture and other cruel treatment is deeply rooted 
in the history of America. Our Founding Fathers made it clear in the 
Bill of Rights that torture and other forms of cruel treatment are 
prohibited.
  These principles have even guided us during the times of great 
national testing. During the Civil War, President Abraham Lincoln asked 
Francis Lieber, a military law expert, to create a set of rules to 
govern the conduct of U.S. soldiers in the Civil War. The result was 
the Lieber Code. It prohibited torture and other cruel treatment of 
captured enemy forces. It really was the foundation for the Geneva 
Conventions.
  After World War II, the United States took the lead in establishing a 
number of treaties that banned the use of torture and other cruel 
treatment against all persons at all times. There are no exceptions to 
this prohibition.
  The United States has ratified these treaties, including the Geneva 
Conventions and the torture convention. They are the law of the land.
  Twice in the last year and a half, I have authored amendments to 
affirm our Nation's longstanding position that torture and other cruel 
treatment are illegal. Twice the Senate unanimously approved my 
amendments. Both times the amendments were killed behind closed doors 
of conference committees. Both times these amendments, which I offered 
and which were accepted by the Senate, were stricken from the bill at 
the insistence of the administration.
  As I understand it, the administration does not support Senator 
McCain's amendment. I sincerely hope that after this debate, they will.
  Why would the administration oppose an amendment that affirms our 
longstanding obligation not to engage in torture or cruel, inhumane, 
and degrading treatment? Sadly, it is because the actions that they 
have taken on this critical question have been unclear and 
inconsistent.
  In early 2002, Alberto Gonzales, who was then-White House Counsel, 
recommended to President Bush that the Geneva Conventions should not 
apply to the war on terrorism. Colin Powell, former Chairman of the 
Joint Chiefs of Staff, who was then-Secretary of State, objected 
strenuously to Attorney General Gonzales' conclusion. He argued that we 
could effectively fight the war on terrorism and we could live by the 
Geneva Conventions, which have been the law of the land in America for 
over half a century.
  Unfortunately, the President rejected Secretary Powell's wise counsel 
and instead accepted Attorney General Gonzales' recommendations. In 
February of 2002, he issued a memo determining that the Geneva 
Conventions would not apply to the war on terrorism.
  Then the administration unilaterally created new policies on the use 
of torture. I am referring to, among other things, the well-known Bybee 
memo of August 1, 2002, which has been publicly disclosed. They have 
claimed that the President has the right to set aside the law that 
makes torture a crime. They have narrowly defined torture as limited 
only to abuse that causes pain equivalent to organ failure or death.
  They claim that it is legal to subject detainees to cruel, inhuman, 
and degrading treatment even though Congress has ratified the torture 
convention, which explicitly prohibits cruel, inhuman, and degrading 
treatment. This fact was verified by Attorney General nominee Gonzales 
during confirmation hearings before the Senate Judiciary Committee, in 
response to a question which I asked him directly.

  Despite all of this, the administration continues to insist that 
their policy is not to treat detainees inhumanely.
  What does this mean? Recently, I asked Timothy Flanigan this 
question. He was the Deputy to White House Counsel Alberto Gonzales. 
Mr. Flanigan has been nominated to be the Deputy Attorney General, the 
second highest law enforcement official in the Nation. Mr. Flanigan 
said inhumane treatment is ``not susceptible to a succinct 
definition.''
  I asked him whether the White House had provided any guidance to our 
troops on the meaning of inhumane treatment. He acknowledged that they 
had not.
  I asked Mr. Flanigan about specific abuses. I asked him: would it be 
inhumane to beat prisoners or subject them to mock executions? He said, 
``It depends on the facts and circumstances.''
  I cannot imagine facts and circumstances in which it would be humane 
to subject a detainee to a mock

[[Page S11069]]

execution. Last week an editorial in the Washington Post called Mr. 
Flanigan's answers to my questions, ``evasive legalisms in response to 
simple questions about uncivilized conduct.''
  How are our service men and women supposed to know how to treat 
detainees when high-ranking administration officials do not seem to 
know or refuse to respond to these direct questions?
  The administration acknowledges that some people held by our 
Government have been mistreated. Some have been tortured. They say 
these abuses were committed by a few bad apples, rogue soldiers on a 
night shift.
  But is it any wonder that people have been abused when the 
administration and Congress do not make it clear that American policy 
prohibits subjecting detainees to cruel and degrading treatment? Is it 
any wonder that people have been abused when we refuse to repudiate un-
American practices such as beating detainees? The administration should 
not point the finger of blame at our troops for the logical 
consequences of muddled and often contradictory policies.
  I have been to Iraq. I have spent time with our troops. I have been 
humbled by their courage and sacrifice. I have visited Walter Reed 
Hospital many times. I have spoken with young soldiers who have 
suffered horrible injuries in the war, and I have attended funerals for 
soldiers who lost their lives in this war, many from my own home State.
  Our troops around the world and their families at home deserve our 
respect, admiration, and support.
  Just a few weeks ago, a brave U.S. serviceman stepped forward to say 
that he and other American soldiers need clear rules and guidance on 
how to deal with detainees. CPT Ian Fishback is a graduate of West 
Point. He served in combat both in Afghanistan and Iraq. He was so 
disturbed by what he had experienced that he wrote to our colleague, 
Senator McCain. The letter is now public. It was published in the 
Washington Post last week.
  Senator McCain entered part of the letter into the record earlier 
today. Let me read a little more of the letter, which speaks so 
powerfully and eloquently to our soldiers' need for guidance and 
leadership. Listen to what Captain Fishback wrote:

       For 17 months I tried to determine what specific standards 
     governed the treatment of detainees. . . . Despite my 
     efforts, I have been unable to get clear, consistent answers 
     from my leadership about what constitutes lawful and humane 
     treatment of detainees. I am certain that this confusion 
     contributed to a wide range of abuses including death 
     threats, beatings, broken bones, murder, exposure to 
     elements, extreme forced physical exertion, hostage-taking, 
     stripping, sleep deprivation and degrading treatment. I and 
     troops under my command witnessed some of these abuses in 
     both Afghanistan and Iraq.

  This administration should stand by the time-honored Geneva 
Conventions and the torture convention, rules that have served us well 
in the past, rules that our soldiers are trained in and understand. To 
replace them with vague directives to treat detainees humanely fails to 
provide basic guidance that our troops desperately need.
  Listen to what Captain Fishback also wrote:

       I can remember as a cadet at West Point, resolving to 
     ensure that my men would never commit a dishonorable act, 
     that I would protect them from that type of burden. It 
     absolutely breaks my heart that I failed some of them in this 
     regard.

  It breaks my heart to think that this soldier, risking his life for 
America in Afghanistan and Iraq, is now reaching out to us because we 
have failed to provide him with guidance. I am thankful that Senator 
McCain has stepped forward, along with you, Mr. President, and many 
others in this Chamber, to give him that guidance.
  Captain Fishback is an honorable man. Like the overwhelming majority 
of the fine men and women who serve our country, he has not failed. We 
have failed--to give him clear direction in his conduct as a soldier.
  The administration has failed to set clear rules for the treatment of 
detainees. We need to step in and clarify these with the amendment 
offered by Senator McCain. Cruel, inhuman, and degrading treatment are 
prohibited. The Army Field Manual governs the treatment of detainees. 
Senator McCain's amendment will make that clear.
  In the past, the administration has opposed amendments that affirm 
that cruel, inhuman, or degrading treatment is illegal because they 
``would have provided legal protections to foreign prisoners to which 
they are not now entitled.''
  But the administration is not correct in this assertion. Cruel, 
inhuman, or degrading treatment is already prohibited by the torture 
convention.
  Their reasoning is revealing, however. They do not seem to understand 
the real issue at stake in this debate. This is not about legal 
protections for foreign prisoners. It is about who we are as a people. 
Torture is not American; abusing detainees is not the American way. Our 
brave men and women in uniform understand this, and the plaintive plea 
of Captain Fishback makes that clear.
  I correspond with another soldier who served in Iraq and started 
sending me e-mails late at night about what was really happening on the 
ground. He keeps in touch with me now from time to time. He recently 
wrote to me and said:

       We need to go back toward a strict application of the 
     Geneva conventions. That is where our honor lies and that is 
     what I was taught since the day I joined the service.

  Retired RADM John Hutson served our country for 28 years, and for the 
last 3 years of his career he was the Judge Advocate General, the top 
lawyer of the Navy. He worked with me on the amendments I authored. He 
supports Senator McCain's amendment. In a letter to me he wrote:

       Clarion opposition to torture and other abuse by the U.S. 
     will help protect U.S. troops who are in harm's way.

  Former Congressman Pete Peterson, a good friend of mine and many in 
this body, was also a prisoner of war in Vietnam, like Senator McCain. 
He was in prison for 6.5 years.
  In a letter to me in support of our efforts he wrote:

       Congress must affirm that America stands by its moral and 
     legal obligation to treat all prisoners, regardless of 
     status, as we would want the enemy to treat our own. Our 
     courageous men and women deserve nothing less.

  Let me close finally by a quote from Captain Fishback's letter.

       Some argue that since our actions are not as horrifying as 
     Al-Qaeda's, we should not be concerned. When did Al Qaeda 
     become any type of standard by which we measure the morality 
     of the United States? We are America, and our actions should 
     be held to a higher standard, the ideals expressed in 
     documents such as the Declaration of Independence and the 
     Constitution. . . .If we abandon our ideals in the face of 
     adversity and aggression, then those ideals were never really 
     in our possession. I would rather die fighting than give up 
     even the smallest part of the idea that is ``America.''

  We are so fortunate to have men of his dedication and character 
serving our country in uniform. We owe it to him, we owe it to the 
hundreds of thousands of men and women who serve us every single day 
and risk their lives, to set clear rules so they know how to treat 
detainees in custody.
  I urge my colleagues to support the amendment of Senator McCain. I 
yield the floor.
  Mr. OBAMA. Mr. President, I support the amendment offered by the 
senior Senator from Arizona. I commend Senator McCain for his 
leadership on this important issue. This amendment prohibits the cruel, 
inhuman, or degrading treatment or punishment of persons under custody 
or control of the U.S. Government. In other words, it outlaws the 
torture of prisoners by agents of the United States, regardless of 
their geographic location.
  I am, and always have been, opposed to the use of torture. I believe 
that our brave men and women serving in the Armed Forces share this 
view. Now more than ever, we must make it absolutely clear to our 
allies and our enemies that the United States does not and will not 
condone this practice. This amendment does that in no uncertain terms. 
It acknowledges and confirms existing obligations under our own 
Constitution and the United Nations Convention Against Torture.
  Let me be clear on another point. I am committed to fighting 
terrorism and protecting our citizens and troops at home and abroad. I 
have the utmost respect, gratitude and admiration for our troops who 
are fighting on the frontlines of the War on Terror, and I have no 
intention of undermining the important job that they do.
  But the use of torture does not enhance our national security. In 
fact, senior U.S. military officers have argued that practicing torture 
can place

[[Page S11070]]

U.S. troops in grave danger--especially if they are taken prisoner. In 
working to keep our Nation and troops safe, we must not lose sight of 
this critical truth.
  The United States should set an example for the international 
community. Senator McCain's amendment reaffirms a fundamental value of 
the American people--that torture is morally reprehensible and has no 
place in this world. I am proud to support this affirmation, and I urge 
my colleagues to do the same.
  Mr. LEAHY. Mr. President, I strongly support Senator McCain's 
amendment to provide clear guidance for the treatment of detainees in 
U.S. custody. This administration has steadfastly refused to address 
the black mark on our Nation caused by its interrogation policies and 
the resulting abuse of detainees. Congress needs to take action.
  Our credibility and reputation as a world leader in human rights 
suffers from our unwillingness to openly address the flaws in our 
system. More importantly, the failure to provide clear guidance on the 
treatment of detainees puts our own troops at risk and undermines their 
efforts in Afghanistan and Iraq. I commend my colleagues across the 
aisle who are attempting to address this problem, despite resistance 
from members of their own party and the strong opposition of the White 
House. The President has threatened to veto any legislation that would 
regulate the treatment of detainees, claiming that it would impinge on 
his Commander-in-Chief authority. I fail to see how a bill requiring 
the humane treatment of detainees--the same treatment the President 
claims they now receive--would impinge on his authority in any way.
  It is Congress's right under the Constitution to issue regulations 
governing the armed forces. This was something I asked Chief Justice 
Roberts at his confirmation hearings, and he agreed ``that Congress can 
make rules that may impinge upon the President's command functions.'' 
He answered, ``Certainly . . . the Constitution vests pertinent 
authority in [this] area in both branches. The President is the 
Commander-in-Chief . . . On the other hand; Congress has the authority 
to issue regulations governing the armed forces, another express 
provision in the Constitution.''
  Senator Graham said on the floor this morning that, ``Congress has 
been AWOL when it comes to the war on terror in terms of interrogation, 
detention and prosecution, and we've done it in a way to weaken our 
Nation.'' I agree with my friend, the Senator from South Carolina. 
Without congressional action, the problem of prisoner abuse will 
continue to fester.
  We continue to learn of abuses from press reports and the court-
ordered release of government documents in response to Freedom of 
Information Act, FOIA, litigation. Documents that were recently made 
public by the FOIA case demonstrate why Senator McCain's amendment is 
necessary.
  These documents reveal a troubling pattern of abuses that occurred 
because soldiers did not know what was acceptable under this 
administration's vague detention and interrogation policies. Several of 
the documents are transcriptions of interviews of military personnel in 
Iraq that show a systematic failure of the Pentagon to properly train 
soldiers on how to treat detainees. One report describes soldiers who, 
because of a lack of guidance and training from their command, engaged 
in ``interrogations using techniques they literally remembered from 
movies.'' Another document describes the shooting of an Iraqi detainee 
in U.S. custody. The report concludes that ``this incident could have 
been prevented if [the soldier] had better training.''
  Another report, released last week by Human Rights Watch and based on 
firsthand accounts of soldiers in the 82nd Airborne Division, details 
the widespread abuse of Iraqi detainees by soldiers at Camp Mercury, a 
forward operating base near Falluja, Iraq. The report states that 
detainees were severely beaten and mistreated from 2003 through 2004, 
even after the photos from Abu Ghraib became public. The witnesses 
claim that detainees were abused at the request of military 
intelligence personnel as part of the interrogation process, but also 
claim that the abuse occurred simply as a way for troops to ``relieve 
stress.'' One soldier allegedly broke a detainee's leg with a baseball 
bat. In another incident, detainees were stacked into human pyramids 
and denied food and water. It is time for this administration to 
finally acknowledge that such incidents were not the isolated acts of a 
few bad apples. These horrific acts were not isolated incidents on the 
night shift at Abu Ghraib. Unfortunately, similar acts occurred at 
locations throughout Iraq and Afghanistan.
  A group of 28 senior military officers, including General John 
Shalikashvili, recently wrote to Senator McCain in support of his 
amendments addressing detainee treatment. That letter stated, ``The 
abuse of prisoners hurts America's cause in the war on terror, 
endangers U.S. servicemembers who might be captured by the enemy, and 
is anathema to the values Americans have held dear for generations. Our 
servicemembers were denied clear guidance, and left to take the blame 
when things went wrong. They deserve better than that.'' I hope the 
President will consider these words before he vetoes a bill that 
contains Senator McCain's amendment.
  Mr. HAGEL. Mr. President, I rise in support of Senator McCain's 
amendment No. 1977 regarding the treatment of individuals who are in 
the custody or control of the United States.
  I cosponsored this amendment because the men and women making 
sacrifices to defend our country deserve clear standards for the 
treatment of detainees under U.S. control. It is the responsibility of 
both the Executive and Congress to provide clear guidance and 
leadership that will direct the actions of our troops.
  We have failed to meet this obligation. Soldiers continue to report 
that the lack of clear guidance has created an atmosphere of confusion 
and uncertainty around the world. Our failure to confront this issue 
puts our troops at greater risk of abuse and mistreatment and 
undermines our credibility.
  This amendment will strengthen our ability to fight those who 
threaten the United States. This amendment codifies into law that the 
Army Field Manual must be used as the standard for interrogations. In 
addition, the amendment codifies that the U.S. will not subject 
detainees to cruel, inhumane and degrading treatment.
  This is a commonsense amendment that protects our troops and upholds 
the standards that this country has held to since the beginning of our 
Republic.
  I urge my colleagues to vote in support of this amendment.
  Mrs. FEINSTEIN. Mr. President, I rise in support of amendment No. 
1977, offered by my colleague, Senator McCain.
  This amendment would bring much-needed clarity to the rules governing 
how Americans treat captured prisoners and detainees.
  It will make clear that the Geneva Conventions apply to all people 
held in the custody of the Department of Defense.
  It provides a workable definition of ``cruel and inhumane,'' based on 
the rules which govern how we treat criminals in the United States, and 
based firmly in the constitutional prohibitions of cruel and unusual 
punishment.
  Most importantly, it sets rules that are clear, simple and in accord 
with basic American values.
  First, let me make clear my view that in this modern world of 
asymmetric warfare, non-state actors, and unconventional threat, there 
is an absolute necessity to have a program to securely hold prisoners 
and effectively interrogate them to provide timely intelligence.
  But in my judgment, the current system is not working.
  Over the course of the past 4 years, there has been a great deal of 
confusion over the policies and practices of the United States towards 
individuals the Government has taken into custody.
  This confusion has been evident at the highest levels of 
decisionmaking at the Pentagon, with memoranda authorizing this 
technique or that technique being issued and rescinded within weeks of 
one another.
  The confusion has been noted here in the Senate. I sit on two 
committees with jurisdiction, and have sat through hours and hours of 
hearings and briefings--our Nation's policy with respect to detainees 
and prisoners of war is still unclear to me.
  Frankly, the administration's repeated statements about ``wherever

[[Page S11071]]

possible adhering to law'' are confusing and unhelpful.
  And the confusion has filtered down to the front lines.
  Seventeen months ago, enlisted members of the 82nd Airborne Infantry 
Division--honorable men risking their lives in Iraq--asked their 
commanding officer what the rules were for the treatment of prisoners.
  For 17 months, their commander, CPT Ian Fishback, diligently searched 
for the answer up and down his chain of command. Here is what he has 
found, and I quote:

       We've got people with different views of what ``humane'' 
     means and there's no Army statement that says ``this is the 
     standard for humane treatment for prisoners to Army 
     officers.'' Army officers are left to come up with their own 
     definition of humane treatment.

  Captain Fishback and his men have a right to clear guidance. Their 
sacrifices entitle them to be allowed to do their job. An infantryman 
should not need to be a graduate of a law school to know what to do 
with a prisoner.
  What this amendment does is to provide clarity.
  It is incumbent on Congress to provide this clarity. In fact, we have 
a constitutional mandate to do it.
  Article VII, section 8 of the Constitution states that Congress shall 
have the power to ``make Rules concerning Captures on Land and Water,'' 
and also ``To make Rules for the Government and Regulation of the land 
and naval Forces.''
  Our men and women in combat badly need this legislation. But there is 
more at stake here than immediate military necessity.
  Our soldiers and our Nation have a long and honorable tradition of 
ethical behavior. For more than 200 years we have prided ourselves on 
being different than our adversaries in war. Simply put, there are some 
things that Americans do not do, not because it is illegal, or some 
lawyer says we cannot, but because it is wrong.
  The laws of war, codified in the Geneva Conventions, represent a bare 
minimum of acceptable behavior toward captives. The United States has 
consistently championed the Geneva Conventions for over a century, 
knowing that our behavior is a beacon to the world, and that our 
adherence to principle--as well as projecting American values--saves 
American lives.
  I am not naive. I do not expect our current enemy to respect the 
Geneva Conventions. Our captured troops cannot expect humane treatment 
at the hands of al-Qaida. But make no mistake--the eyes of the world 
are still on us, and our policies have real consequences.
  Even now, millions of young Muslims around the world are evaluating 
the United States. They are deciding whether to take up arms against 
us, or whether to work with us towards a peaceful resolution with 
liberty and justice for all. We must show them, clearly, emphatically, 
that the rhetoric of democracy and freedom is not empty. We must show 
them that we are a government of laws, clearly written, openly 
promulgated and fairly enforced.
  Captures and interrogations are part of war and, no less than other 
tools of war, must be wielded intelligently, humanely, and within a set 
of rules for warfare that govern all who serve in uniform--whether 
privates or generals, seamen or admirals.
  Our men and women in uniform, serving in Afghanistan, Iraq and at 
Guantanamo Bay, have the right to clear, direct and lawful leadership.
  This amendment is good policy, is just, and is long overdue.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the Senator 
from Illinois, Mr. Durbin, be added as a cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, first I thank my friend and colleague from 
South Carolina for his comments in support of this amendment. He does 
occupy a unique position in this body, having served 20 years--6\1/2\ 
years on active duty as an Air Force lawyer and member of the JAG 
Corps, and remains in the Reserves to this day. He obviously brings a 
perspective to this issue which is very important.
  I think the Senator from South Carolina described the confusion that 
existed over a period of time about this whole issue of treatment of 
prisoners. There was a set of instructions issued which were in effect 
for a couple of months, which were strongly objected to by the 
uniformed legal corps in the Pentagon. Yet their concerns were 
overridden.
  The Senator from South Carolina quoted one of them. Another one was 
by RADM Michael Lohr, the Navy's Judge Advocate General. He said the 
situation at the American prison in Guantanamo, Cuba, might be so 
legalistically unique that the Geneva Conventions and even the 
Constitution did not necessarily apply. But, he asked,

       Will the American people find we have missed the forest for 
     the trees by condoning practices that, while technically 
     legal, are inconsistent with our most fundamental values?

  General Rives said if the White House permitted abusive 
interrogations at Guantanamo Bay, it would not be able to restrict them 
to that single prison. He argued that soldiers elsewhere would conclude 
that their commanders were condoning illegal behavior. And that is 
precisely what happened at Abu Ghraib after the general who organized 
the abuse of prisoners at Guantanamo went to Iraq to toughen up the 
interrogation of prisoners there.
  I think it is clear that the White House ignored those military 
lawyers' advice a couple of years ago. We now have, thanks to the 
yearlong effort of the Senator from South Carolina, those 
communications of deep concern to every uniformed JAG in the Department 
of Defense, about the issuance of instructions which basically violated 
our commitment to the Geneva Conventions.
  In order to have the record complete, a couple of months later those 
were rescinded and different orders were issued at that time. But what 
if you are at the end of the chain and you get these kinds of mixed 
messages?
  So I thank the Senator from South Carolina for pointing out from his 
unique perspective how important this is, since it is the men and women 
who are in the JAG Corps who are responsible for prosecuting those who 
violate Geneva Conventions, and they need clear guidance; or defending 
someone who is accused of violating them, as our men and women of the 
military are entitled to defense just as they are subject to 
prosecution.
  Again, I thank the Senator from South Carolina. I appreciate the 
defense of the Senator from Alaska of the administration's position on 
this issue. I do not think he has been well informed by the 
administration, particularly concerning the Army Field Manual.
  The Army Field Manual has a classified section which would not be 
available to anyone except for those who have a need to know. The Army 
Field Manual has been used for decades. The Army Field Manual is being 
revised as we speak to try to meet the new challenges we face. But the 
Army Field Manual, I am confident, will be in keeping with the 
fundamental commitments we have made.
  All my career I have supported the rights and prerogatives of the 
Commander in Chief. We need a strong President, and in wartime this is 
more important than ever. I understand the administration would want to 
preserve the President's flexibility and wartime powers, and I do not 
believe that we can afford to have 535 Secretaries of State, 
Secretaries of Defense, or even Presidents of the United States.
  I would like to point out the Congress not only has the right but the 
obligation to act. Article I, section 8 of the Constitution of the 
United States, clause 11:

       To declare War, grant Letters of Marque and Reprisal, and 
     make Rules concerning Captures on Land and Water[.]

  I repeat:

       . . . make Rules concerning Captures on Land and Water[.]

  Someone is going to come down to the floor and say that applied back 
in the time of the Framers of the Constitution; it didn't apply to 
today. At least from my point of view, unless there is an overriding 
need to change the Constitution of the United States--if that clause of 
the Constitution no longer applies, then lets amend the Constitution 
and remove it; otherwise, lets live by it.
  The Congress has the responsibility:


[[Page S11072]]


       To declare War, grant Letters of Marque and Reprisal, and 
     make Rules concerning Captures on Land and Water[.]

  I do not see how anyone could view this as an unwarranted 
intervention in an issue such as this. The courts, as the Senator from 
South Carolina pointed out so well, are asking us--that well-known 
liberal judge, Justice Scalia, has said we need the Congress of the 
United States involved in this issue. We, the courts, cannot do it 
ourselves.
  As the Senator from South Carolina pointed out, if we do not fulfill 
our constitutional role, we are negligent. We owe it to our troops and 
our country to speak on this issue.
  I very much respect my friend, the Vice President of the United 
States, Vice President Cheney. He and I have been friends for many 
years. I respect the way that he carefully guards the prerogatives of 
the President. But on this issue, I hope he and others would understand 
that we are dutybound to take action.
  I would like, again, to refer back to Captain Fishback. He is what I 
view as the tip of the iceberg that exists in the military today. They 
know how important this war on terror is. They are the ones who are 
fighting it. Captain Fishback served in Afghanistan and in Iraq, and 
the ones I hear from are men and women in the military who have a very 
strong commitment to winning the war on terror. They have laid their 
lives on the line to win it. But they want clear, unequivocal 
guidelines as to how to treat prisoners of war.
  I would like to believe that this is the last war in which the United 
States will ever be involved. I would like to believe that from now on, 
after we win this war on terror, we will have peace and the United 
States will never send its men and women in harm's way again.
  History shows me otherwise. What happens in the next conflict when 
American military personnel are held captive by the enemy and they make 
the argument, with some validity, that we have violated the rules of 
war? What happens to our men and women in the military then?
  There are some who will say they wouldn't respect the rules of war, 
anyway. If they are not sure they are going to win, as the Germans 
weren't in World War II, they might treat our prisoners according to 
certain standards if we insist upon those standards.
  I think there is a lot at stake. I respect the position of the 
administration, that these should be under the authority and 
responsibility and would erode the flexibility of the President of the 
United States. I don't believe so.
  This amendment basically restates what we have been practicing for 
certainly all of the 21st and the 20th centuries.
  I think we owe it to the people, these brave young Americans such as 
Captain Fishback, who want and deserve a clarification in the way they 
can carry out their responsibilities and duties as they travel into 
harm's way.
  I thank the Senator from New Hampshire, the Senator from Tennessee, 
the Senator from Illinois, and my friend from South Carolina for their 
eloquent statements on this issue.
  I ask for the yeas and nays on this amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. McCAIN. Mr. President, I yield the floor.
  Mr. STEVENS. Mr. President, this Senator doesn't agree with anything 
that has been said about the applicability of this provision to anyone 
in the military uniform. Most of the speakers have talked about men and 
women in the armed services. The amendment goes much further than that.
  But first, the problem is it requires the field manual to list every 
type and means of interrogation. Thousands of pages will be required. 
People will be prosecuted in military courts if they don't know every 
single one of them, if they even cross the line by accident. This idea 
of listing all of the possible ways to interrogate a person is 
impossible. I say that should be changed. Maybe they should issue from 
time to time additional items to go in the field manual. But to require 
that no one can use a means of interrogation not listed in advance when 
we are involved in a war on terror and we are dealing with terrorists 
is wrong.
  Beyond that, this deals with any person--not any military person. The 
Geneva Conventions were originally intended to deal with military 
prisoners. This is dealing with anyone who is intercepted now anywhere 
in the world who, regardless of nationality or physical location, is in 
custody or physical control of the United States because a person who 
is American happens to be there.
  Again, I mention these teams I have met with, and I respect 
multinational teams. This, in effect, says that an American is 
responsible for anything done by any member of that team. That, to me, 
is wrong.
  What is more, I think it is wrong to presume there is no place in 
this country or in the operation of this country where we should not 
have the ability to deal with terrorists on their own ground.
  These are vicious people, suicidal people. I do not think they should 
be accorded the rank and treatment of men and women in uniform from 
other nations. That is what this amendment does. I shall oppose it. I 
may be all alone, but I shall oppose it because I think there is a 
place in our operations against individuals involved in the war on 
terrorism where we deal with them as they deal with us.
  These are not military people. They may not even be American 
nationals who are working for us in an undercover way, but this says we 
are responsible for treating all these people according to the Geneva 
Conventions and according to processes listed in the U.S. Army Field 
Manual. That is wrong. That is all simply wrong, and I shall oppose the 
amendment.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Murkowski). The clerk will call the roll.
  The Journal clerk proceeded to call the roll.
  Mr. GRAHAM. Madam President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. Madam President, I ask unanimous consent to set aside the 
pending amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 2004

  Mr. GRAHAM. Madam President, I call up my amendment which is at the 
desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from South Carolina [Mr. Graham], for himself 
     and Mr. McCain, proposes an amendment numbered 2004.

  Mr. GRAHAM. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To authorize the President to utilize the Combatant Status 
   Review Tribunals and Administrative Review Board to determine the 
           status of detainees held at Guantanamo Bay, Cuba)

       At the appropriate place, insert the following:
       Sec. __.(a) Authority To Utilize Combatant Status Review 
     Tribunals and Administrative Review Board To Determine Status 
     of Detainees at Guantanamo Bay, Cuba.--The President is 
     authorized to utilize the Combatant Status Review Tribunals 
     and a noticed Administrative Review Board, and the procedures 
     thereof as specified in subsection (b), currently in 
     operation at Guantanamo Bay, Cuba, in order to determine the 
     status of the detainees held at Guantanamo Bay, including 
     whether any such detainee is a lawful enemy combatant or an 
     unlawful enemy combatant.
       (b) Procedures.--
       (1) In general.--Except as provided in paragraph (2), the 
     procedures specified in this subsection are the procedures 
     that were in effect in the Department of Defense for the 
     conduct of the Combatant Status Review Tribunal and the 
     Administrative Review Board on July 1, 2005.
       (2) Exception.--The exceptions provided in this paragraph 
     for the procedures specified in paragraph (1) are as follows:
       (A) To the extent practicable, the Combatant Status Review 
     Tribunal shall determine, by a preponderance of the evidence, 
     whether statements derived from persons held in foreign 
     custody were obtained without undue coercion.
       (B) The Designated Civilian Official shall be an officer of 
     the United States Government whose appointment to office was 
     made by the President, by and with the advise and consent of 
     the Senate.
       (3) Modification of procedures.--The President may modify 
     the procedures and requirements set forth under paragraphs 
     (1) and (2). Any modification of such procedures

[[Page S11073]]

     or requirements may not go into effect until 30 days after 
     the date on which the President notifies the congressional 
     defense committees of the modification.
       (c) Definitions.--In this section:
       (1) The term ``lawful enemy combatant'' means person 
     engaging in war or other armed conflict against the United 
     States or its allies on behalf of a state party to the Geneva 
     Convention Relative to the Treatment of Prisoners of War, 
     dated August 12, 1949, who meets the criteria of a prisoner 
     of war under Article 4 of that Convention.
       (2) The term ``unlawful enemy combatant'', with respect to 
     noncitizens of the United States, means a person (other than 
     a person described in paragraph (1)) engaging in war, other 
     armed conflict, or hostile acts against the United States or 
     its allies, regardless of location.

  Mr. GRAHAM. Madam President, I thank Senator Stevens for allowing me 
to do this. I appreciate that we have a busy day.
  I totally understand where he is coming from about the interrogation 
amendment. I come out on a different side. This amendment deals with 
the combat status review procedure at Guantanamo Bay. I think it is 
very necessary. I think it strengthens what the administration is 
trying to do when it comes to enemy combatants. I think it helps the 
administration in court and is good policy for the country.
  No. 1, I totally agree with the President that a member of al-Qaida 
should not be given Geneva Conventions status. I say to my friend from 
Alaska that Senator McCain's amendment doesn't confer Geneva 
Conventions status on enemy combatants. It standardizes the 
interrogation techniques. The Army Field Manual has a section for 
lawful combatants, those covered under the Geneva Conventions, and it 
will have a provision for unlawful combatants. Al-Qaida should not be 
given Geneva Conventions status. The Geneva Conventions and the 
signatories to the convention set the rules for the conduct of war. An 
unlawful enemy combatant is someone who goes around the battlefield 
without a uniform, doesn't represent a nation--a terrorist, for lack of 
a better word. They do not deserve the protection of the Geneva 
Conventions because they are cheating. But they do, in my opinion, 
deserve what the President said--not so much because they deserve it 
but because it is about who we are.
  The President said even enemy combatants--members of al-Qaida--will 
be treated humanely. When we capture somebody on the battlefield--
throughout the world because the whole world is the battlefield in the 
war on terror--most of the people we are dealing with are not part of 
the uniformed force, not like the Iraqi Army.
  The President said early on these people will be humanely treated but 
they will not be given Geneva Convention status. He is absolutely 
right. When we catch someone, say, in Afghanistan, who is a member of 
al-Qaida or some other terrorist network, certain people, once 
screened, go to Guantanamo Bay. The people at Guantanamo Bay have been 
participating in the allegations, or they have been participating in 
terrorist activities, supporting terrorist organizations as an unlawful 
enemy combatant. They are not uniformed soldiers.
  We are reviewing everyone that comes to Guantanamo Bay to see if they 
deserve the status ``enemy combatant.'' The term ``enemy combatant'' 
came out of World War II when we had a Supreme Court case recognizing 
that term for German saboteurs who landed, I think, in Florida and were 
trying to do sabotage throughout the United States. These six or seven 
Germans were not in uniform. They were tried by a military commission.
  We have a military commission at Guantanamo Bay that I totally 
support. And I think enemy combatant status was a result of that 
Supreme Court case. They were given that determination.
  What we are trying to do is streamline interrogation techniques to 
deal with both lawful and unlawful combatants. That helps our troops, 
gives them guidance.
  The second thing we are doing with my amendment is legitimizing, 
through congressional action, what the administration has done at 
Guantanamo Bay. The administration, in my opinion, has put together a 
very good, thorough process to look at each person that comes to 
Guantanamo Bay to determine whether or not they should be classified as 
enemy combatants because if they are classified as enemy combatants, 
they can be detained indefinitely and taken off the battlefield.

  The due process rights afforded an enemy combatant have been up to 
the Supreme Court, and the Supreme Court, for the most part, has 
blessed the procedure. There have been some concerns expressed by the 
Court.
  My amendment tries to, one, legitimize what the administration has 
created at Guantanamo Bay in terms of a review process to determine who 
is an enemy combatant and who is not. We made two small changes. We 
have learned in the past that sometimes people have been because of a 
single statement made, while in the hands of a foreign agency, a 
foreign country, that was given under duress. The amendment says that 
if a civilian is to determine enemy combatant status in a statement 
from a foreign interrogation, you have to prove that the statement was 
not unnecessarily coerced. Most Americans, I think, agree with that, 
and the people at Guantanamo Bay agree with that.
  Second, the civilian who will determine from the appeal process 
whether or not the enemy combatant status, which is reviewed annually, 
should be held, would be appointed by the Senate as a Presidential 
appointment. Gordon England is doing it now, and he is a Presidential 
appointee. That continues the trend. I think it would be good to have 
the Senate involved.
  What does this mean, very briefly? It means we can go to the world 
and say we have a procedure in place at Guantanamo Bay that will 
determine who an enemy combatant is and that these procedures are 
blessed by the courts, they are blessed by the Congress, and they are 
blessed by the administration. It would be good to be able to say, as a 
nation, that all three branches of Government--the executive branch, 
the judicial branch and the legislative branch--have all agreed on 
procedures to take enemy combatants off the battlefield and give those 
people who are suspected of being enemy combatants due process rights 
consistent with whom we are as a people and give enough flexibility to 
the military to make sure these people do not go back to the fight.
  The truth is, several hundred have been captured and released. The 
process is working very well at Guantanamo Bay. I compliment the 
administration for setting up a combat status review process that has 
been changed a couple of times. It is eminently fair. This amendment 
blessed that process. It has two small changes. It would strengthen the 
process, and it would end this never-ending court debate about what to 
do.
  The courts have been telling us, Congress, if you got involved, it 
would help us figure out what we should be doing. Justice Scalia, as 
Senator McCain indicated, screamed out, in a dissenting opinion 
granting habeas corpus rights to enemy combatants, that the courts are 
ill-equipped to run this war. Now, with this amendment, the Congress 
will bless what the administration has put in place, making small 
changes which will strengthen the administration's hands in the court. 
The courts will feel more comfortable ratifying this process, and we 
will be a united nation, a united front in all three branches of 
Government when it comes to dealing with enemy combatants.
  It is very important that anyone who engages in unlawful enemy 
combatant activities against this Nation be taken off the battlefield 
and kept off the battlefield as long as necessary to make us safe. They 
deserve a certain amount of process because whom we are as a people and 
the process we are blessing gives them very adequate due process 
rights.
  This amendment strengthens those rights. They deserve to be taken off 
the battlefield, and people engaging in unlawful enemy combatant 
activities should be taken off the battlefield as long as necessary to 
protect our country.
  Second, they deserve to be prosecuted in some instances. There are 
three things we are trying to accomplish. We are trying to standardize 
interrogation techniques to protect our own troops and have a one-stop 
shopping for what the rules are. That is through Senator McCain's 
amendment. We are trying to keep the moral high ground, as expressed by 
the President,

[[Page S11074]]

to say we are not torturing people, we are not going to treat people 
inhumanely because that weakens us. The bottom line, it is not the 
right way to get good information and weakens us. The more 
standardization the better.
  When it comes time to keep people off the battlefield, with this 
amendment we are stronger as a nation because Congress will have 
blessed what the administration has done.
  In that regard, I offer this amendment as a way to bring clarity to a 
situation that is very important in the war on terror. We need to keep 
enemy combatants, once they have been lawfully determined to be an 
enemy combatant, off the battlefield as long as it takes to secure this 
Nation. This amendment helps to do that.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. STEVENS. Madam President, I am informed there are objections from 
Members of the Committee on Armed Services to this amendment. I urge 
them to come over and defend their position.
  This Senator was prepared to accept the amendment. It may be subject 
to a point of order. I am not sure. I do believe there are detainee 
items in the House-passed bills that would be germane under the 
circumstances, but it is another example, I might say, of the problems 
we get into when items that pertain to legislation end up on 
appropriations bills.
  We are not really prepared to debate the amendment. I urge Members of 
the Committee on Armed Services who wish to do so to debate this 
amendment.
  My only question is--I know the Senator is an extremely good 
attorney--has the phrase ``unlawful enemy combatant'' been used in any 
other portion of our laws of the Geneva Conventions?
  Mr. GRAHAM. Yes. It is in the Geneva Conventions. There is a section 
about unlawful enemy combatant, illegal enemy combatant.
  The conventions are set up to confer status on signatories and to 
make sure that people who engage in unlawful activity are not covered. 
The people who wear civilian clothes that go in the population and 
engage in terrorist activity have never been covered under the 
convention. Under the convention, that is the definition they are 
giving.
  The administration has used the term that has been legitimized by the 
courts for quite a while now in international law. In the review 
process at Guantanamo Bay, they will take the person off the 
battlefield. They have to make a case whether they fit the definition 
of enemy combatant. Each year they can challenge the designation. What 
we are doing in this amendment is basically blessing that procedure, 
requiring two more things.

  One, the idea that the Senate will confirm the person who will 
ultimately have the release authority or the appeal authority to enemy 
combatant status; and two, prohibit the use of a single statement to 
hold somebody as an enemy combatant who was in a foreign government's 
hands, unless we can show the statement was not a result of torture.
  We have learned from our experience at Guantanamo Bay that would be a 
good change.
  Mr. McCAIN. Will the Senator yield?
  Mr. GRAHAM. Yes.
  Mr. McCAIN. Does the Senator know how many detainees have been 
brought to trial in Guantanamo Bay?
  Mr. GRAHAM. Of all the people we have detained--over 500--no one has 
been brought to trial yet. Two will be brought to trial in November.
  One of the reasons that we cannot bring people to trial is because 
the Federal courts have issued a stay on prosecutions that has now been 
lifted. We are moving forward.
  There is another Supreme Court case dealing with the due process 
rights of determining whether a person is an enemy combatant. The 
procedure is in place at Guantanamo Bay and has been generally blessed 
by the Court because they have been stayed on those proceedings, too.
  Mr. McCAIN. If the Senator will yield, aren't there two different 
Court decisions now that are in direct contravention of each other as 
to the disposition of these cases?
  Mr. GRAHAM. Yes there is.
  Mr. McCAIN. Could the Senator describe those.
  Mr. GRAHAM. There was a stay by Federal district judge, staying 
military commission trials. The DC Circuit Court of Appeals overrode 
the lower court. That has gone up to the Supreme Court right now. I am 
confident the Supreme Court will legitimize military commissions, maybe 
with some changes.
  This amendment deals with detaining somebody who is not being 
prosecuted yet, who may be prosecuted, but keeping them off the 
battlefield because we have determined they are an unlawful enemy 
combatant. The review process to make that determination I feel very 
comfortable with. And there are some small changes in the amendment. 
The courts have told us this is an area where Congress needs to act. 
The courts have many cases, not just one, challenging the Guantanamo 
Bay procedures and determining unlawful enemy combatant. Justice Scalia 
said in the dissenting opinion, if this were an area where Congress 
spoke, the courts would welcome their involvement.
  Mr. McCAIN. If the Senator will yield further for a question, I guess 
my fundamental question is, aren't things in one heck of a mess?
  Mr. GRAHAM. The legal status of military commissions and the combat 
status review process are in legal limbo unnecessarily.
  If you read these opinions, they are a hodgepodge of different 
dissenting and concurring opinions. The one common theme is the courts 
are suggesting to Congress we get involved.
  When it comes to combat status review, I am totally convinced, after 
talking with now Chief Justice Roberts, this would be an area where the 
courts would welcome congressional involvement. He said to me in the 
hearings that the President or the executive branch is at its strongest 
when they have the implied or express support of the Congress.
  So the purpose of this amendment, if I may say very briefly, is for 
Congress to legitimize what is going on at Guantanamo Bay about 
determining enemy combatant status, legitimizing that review process by 
making some changes. If we would do that, I am convinced the courts 
would welcome that involvement and a lot of this litigation would end 
overnight.
  Mr. STEVENS. If the Senator will yield, has this matter been 
discussed in the Committee on Armed Services?
  Mr. GRAHAM. I have discussed it with one of the cosponsors of the 
amendment, Senator Warner, yes. I have been to Guantanamo Bay with 
Senator Warner and others, where we have talked about this. Yes, sir, I 
am very sure that the chairman knows about this because he is a 
cosponsor of the amendment.
  Mr. STEVENS. I say to the Senator, that is another question. We were 
prepared to accept the amendment because--I don't claim expertise in 
this area; it is not within our jurisdiction. It is legislation on an 
appropriations bill, but I don't intend to raise an objection to it.
  Has this been discussed, on a bipartisan basis, in the committee?
  Mr. GRAHAM. I was under the assumption the amendment was going to be 
accepted, as you were, and now I have been told there are some concerns 
from the minority on the committee. I have talked extensively about 
these series of amendments. They all work in conjunction with each 
other. Senator McCain's amendment standardized interrogation techniques 
and what we as a people want to live by--we do not want to torture 
people. We are not going to torture people.

  My amendment standardizes and makes small changes to the 
determination of who is an enemy combatant and who is not, because you 
keep people at Guantanamo Bay indefinitely under this procedure. It 
needs to be blessed by Congress. The third thing we do, later on, is 
deal with military commissions, actually how you try these people.
  So I was under the understanding, I say to the Senator, that not only 
was Senator Warner a cosponsor of these two amendments, but that 
everybody was on board. The point here is to give the courts some 
guidance to bring about legal certainty where there is a legal mass, as 
Senator McCain indicated. So I don't know why anybody is objecting.

[[Page S11075]]

  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Madam President, I believe the Senator's amendment has 
real merit. I find no objection to it. It has been conveyed to me by 
the administration. We still have a very small difference--it sounds 
like a big difference--on the McCain amendment. But we have no 
difference on this amendment. We are prepared to accept it, unless 
someone comes over here and finds a way to articulate an objection.
  Mr. McCAIN. Madam President, who has the floor?
  The PRESIDING OFFICER. The Senator from Alaska has the floor.
  Mr. STEVENS. Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, first, I thank the Senator from Alaska 
for his cooperation. I thank the Senator from South Carolina for his 
unique and very important perspective on this issue. But I also point 
out it is very unfortunate--very unfortunate--the Senator from South 
Carolina has to put this on an appropriations bill. I do not want to 
get off the subject too much, but there is something wrong with our 
process here that I have to, for my amendment, find some narrow 
germaneness in order to get around my commitment to not authorize on an 
appropriations bill. Technically, I am not authorizing on an 
appropriations bill.
  It is very unfortunate the Senator from South Carolina has to 
authorize on an appropriations bill. There may be some objection from 
someone in the minority. There may be some question. That is because we 
are not going through an orderly process. This should have been as an 
amendment on the authorization bill, and that should have been taken 
up. If someone did not like it, they could have voted to take it out. 
Now we are in a process where the Senator from South Carolina has to 
put it in.
  Our system here is broken, and we need to properly authorize. I 
certainly am not blaming the Senator from Alaska. He has his 
responsibility to get the appropriations bill done. But there is 
something wrong when we are in a war--in a war; Americans' lives are on 
the line as we speak--and somehow we do not have room in our agenda to 
authorize the training, the equipping, the benefits, the pay, all of 
the things that go with an authorization bill, including the amendment 
of the Senator from Carolina.
  A lot of us have repeatedly decried that this process of legislating 
is so badly broken today that we cannot even take care of the men and 
women in the military in an orderly fashion. It cries out for fixing. I 
would hope at some point we, as a body, would fix this system so we 
authorize before we appropriate funds. Again, this is meant as no 
criticism of the Senator from Alaska. He is playing the hand he is 
dealt. But there is something very badly wrong when we are in a war and 
somehow we cannot find time in our agenda and ought to authorize the 
much-needed pay raises, equipment, training, and all of the other 
things that go along with the authorization of our Nation's defenses.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, first, I thank the Senator from Arizona 
and the Senator from South Carolina for bringing focus to this issue. 
They are approaching this issue in different ways, but it is a matter 
of enormous importance and consequence. Both Senators, as members of 
the Armed Services Committee, remember the good deal of thought, work, 
and consideration given this subject matter by the Armed Services 
Committee under the guidance of Senator Warner and Senator Levin.


                           Amendment No. 1977

  Madam President, now is time for action. That is why I rise to speak 
in strong support of the McCain amendment and urge our colleagues to 
understand it and to give it strong support as well.
  As we know, nearly 2 years ago, American soldiers at Abu Ghraib were 
struggling to figure out how to handle the hundreds of detainees who 
were pouring into that facility. They had no guidance. They had no 
directions to regulate that treatment. In the absence of that guidance, 
their treatment of detainees deteriorated into cruel and inhumane and 
degrading treatment.
  They documented their cruelty, and the images are still horrifying--
an Iraqi prisoner in a dark hood and cape, standing on a cardboard box 
with electrodes attached to his body; naked men forced to simulate sex 
acts on each other; the corpse of a man who had been beaten to death, 
lying in ice, next to soldiers smiling and giving a ``thumbs up'' sign; 
a pool of blood from the wounds of a naked, defenseless prisoner 
attacked by a military dog.
  The reports of widespread abuse by U.S. personnel was initially met 
with disbelief and then incomprehension. But the reports are too 
numerous to ignore. We had reports of detainees in Afghanistan shackled 
to the floor, left out in the elements to freeze to death. We have had 
reports of detainees in Guantanamo who were subjected to sexual 
humiliation.
  Human Rights Watch recently released a report based on the statements 
of three soldiers, one officer and two noncommissioned officers, in the 
82nd Airborne who described how their battalions routinely used 
physical and mental torture as means of intelligence gathering and 
stress relief--torture as a sport.
  They stand in sharp contrast to the values America has always stood 
for: our belief in the dignity and worth of all people, our unequivocal 
stance against torture and abuse, our commitment to the rule of law. 
The images horrified us and severely damaged our reputation in the 
Middle East and around the world.
  Instead of taking responsibility for what happened, the generals and 
senior administration officials tried to minimize the abuse as the work 
of ``a few bad apples''--all conveniently lower rank soldiers--in a 
desperate effort to emphasize the role of senior military officials in 
exposing the scandal and insulate the civilian leadership from 
responsibility for changing the rules.
  It is clear what the results of those changes were. CPT Ian Fishback, 
a West Point graduate and officer in the 82nd Airborne, wrote: Despite 
my efforts, I have been unable to get clear, consistent answers from my 
leadership about what constitutes lawful and humane treatment of 
detainees. I am certain that this confusion contributed to a wide range 
of abuses including death threats, beatings, broken bones, murder, 
exposure to elements, extreme forced physical exertion, hostage taking, 
stripping, sleep deprivation and degrading treatment.
  For nearly 2\1/2\ years--from August 2002 until December 2004--the 
executive branch of our Government operated under the assumption that 
it was not bound by the law that prohibits torture. The Office of Legal 
Counsel promulgated an official opinion stating that the President and 
everyone acting under his Commander-in-Chief authority was free to 
ignore this law. It states:

       Any effort to apply [the anti-torture statute] in a manner 
     that interferes with the . . . detention and interrogation of 
     enemy combatants . . . would be unconstitutional.

  This opinion was adopted and implemented by the CIA and the 
Department of Defense. Effectively, what it was saying was that for 
anybody who was operating under the DOD, if the purpose of their 
torture was to get information, then it was basically all right. If the 
purpose of the torture was to bring harm, then it would be illegal. But 
that decision by the Office of Legal Counsel in the Department of 
Justice effectively said: The school is out. People can do anything 
they want to with any detainee. And that was the rule for 2\1/2\ years. 
It is called the Bybee memorandum. We have had extensive hearings on 
that in both the Armed Services Committee and the Judiciary Committee.
  This opinion was adopted and implemented by the CIA and the 
Department of Defense. Harold Koh, a leading scholar of international 
law and dean of Yale Law School, who served in both the Reagan and 
Clinton administrations, called it ``the most clearly legally erroneous 
opinion'' he has ever read. That is in reference to the Bybee 
memorandum that was requested by the CIA and the Department of Defense, 
through the Attorney General, from the Office of Legal Counsel, to give 
them a memorandum to effectively permit wholesale torture. They 
received that memo, and they used it

[[Page S11076]]

to gut our long-standing laws. That Bybee memo was the law of the land, 
effectively, in the CIA and the Department of Defense for 2\1/2\ years. 
We saw what the results were. The McCain amendment would make sure that 
will not happen again.
  Our political leaders made deliberate decisions to throw out the 
well-established legal framework that has long made America the gold 
standard for human rights throughout the world. The administration left 
our soldiers, case officers, and intelligence agents in a fog of 
ambiguity. They were told to ``take the gloves off'' without knowing 
what the limits were, and the consequences were foreseeable.

  In rewriting our human rights laws, the administration consistently 
overruled the objections of experienced military personnel and 
diplomats. The Secretary of State, Colin Powell, warned the White 
House:

       It will reverse over a century of U.S. policy and practice 
     in supporting the Geneva Conventions and undermine the 
     protections of the law of war for our [own] troops.

  Senior Defense officials were warned that changing the rules could 
lead to so-called ``force drift'', in which, without clearer guidance, 
the level of force applied to an uncooperative detainee might well 
result in torture.
  William Taft, the State Department Legal Advisor in President Bush's 
first term, recently called it a source of amazement and disappointment 
that the Justice Department severely limited the applicability of the 
Geneva Conventions to the detainees. In an address at American 
University, he said the decision to do so:

     unhinged those responsible for the treatment of the detainees 
     . . . from the legal guidelines for interrogation . . . 
     embodied in the Army Field Manual for decades. Set adrift in 
     uncharted waters and under pressure from their leaders to 
     develop information on the plans and practices of al Qaeda, 
     it was predictable that those managing the interrogation 
     would eventually go too far.

  And they did.
  The Judge Advocates General echoed Mr. Taft's concerns. On July 14, 
2005, the JAGs appeared before the Senate Armed Services Committee's 
Subcommittee on Personnel. In response to questioning by my friend 
Senator Graham, the witnesses acknowledged that the Justice 
Department's policy embodied in the Bybee torture memorandum's 
definition of torture was a violation of international and domestic law 
and alarmed the Judge Advocates General who reviewed it.
  Their alarm was well founded because their concerns were overruled by 
General Counsel William Haynes, who issued the Defense Department's 
April 2003 Working Group Report. The report twisted and diluted the 
definition of ``torture,'' claimed that military personnel who commit 
torture may invoke the defenses of ``necessity'' and ``superior 
orders,'' and advised military personnel that they are not obligated to 
comply with the Federal prohibition on torture.
  Senator Graham himself accurately assessed the impact of the civilian 
authorities when he told the JAG officers at the hearing: I think it is 
fair to say that the Department of Defense was secondary to the 
Department of Justice in a political sense, and that was our problem. 
If they had listened from the outset, we wouldn't have had a lot of the 
problems that we have had to deal with in the past.
  The President is not an emperor or a king. His administration is not 
above the law or accountability, and he is certainly not infallible.
  The single greatest criticism of this administration's detention and 
interrogation policies is that it failed to respect history, the 
collective wisdom of our career military and State Department 
officials, and that it holds far too expansive a view of executive 
authority. In short, the White House suffers from the arrogance of 
thinking they knew best and abandoning the long-standing rules.
  As Captain Fishback wrote:

       We owe our soldiers better than this. Give them a clear 
     standard that is in accordance with the bedrock principles of 
     our nation.
       We are America, and our actions should be held to a higher 
     standard, the ideals expressed in documents such as the 
     Declaration of Independence and the Constitution.

  The McCain amendment takes a strong step forward to giving our troops 
that standard. I hope it is supported. Madam President, I ask unanimous 
consent that Captain Fishback's letter, which was published in the 
Washington Post, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Dear Senator McCain: I am a graduate of West Point 
     currently serving as a Captain in the U.S. Army Infantry. I 
     have served two combat tours with the 82nd Airborne Division, 
     one each in Afghanistan and Iraq. While I served in the 
     Global War on Terror, the actions and statements of my 
     leadership led me to believe that United States policy did 
     not require application of the Geneva Conventions in 
     Afghanistan or Iraq. On 7 May 2004, Secretary of Defense 
     Rumsfeld's testimony that the United States followed the 
     Geneva Conventions in Iraq and the ``spirit'' of the Geneva 
     Conventions in Afghanistan prompted me to begin an approach 
     for clarification. For 17 months, I tried to determine what 
     specific standards governed the treatment of detainees by 
     consulting my chain of command through battalion commander, 
     multiple JAG lawyers, multiple Democrat and Republican 
     Congressmen and their aides, the Ft. Bragg Inspector 
     General's office, multiple government reports, the Secretary 
     of the Army and multiple general officers, a professional 
     interrogator at Guantanamo Bay, the deputy head of the 
     department at West Point responsible for teaching Just War 
     Theory and Law of Land Warfare, and numerous peers who I 
     regard as honorable and intelligent men.
       Instead of resolving my concerns, the approach for 
     clarification process leaves me deeply troubled. Despite my 
     efforts, I have been unable to get clear, consistent answers 
     from my leadership about what constitutes lawful and humane 
     treatment of detainees. I certain that this confusion 
     contributed to a wide range of abuses including death 
     threats, beatings, broken bones, murder, exposure to 
     elements, extreme forced physical exertion, hostage-taking, 
     stripping, sleep deprivation and degrading treatment. I and 
     troops under my command witnessed some of these abuses in 
     both Afghanistan and Iraq.
       This is a tragedy. I can remember, as a cadet at West 
     Point, resolving to ensure that my men would never commit a 
     dishonorable act; that I would protect them from that type of 
     burden. It absolutely breaks my heart that I have failed some 
     of them in this regard.
       That is in the past and there is nothing we can do about it 
     now. But, we can learn from our mistakes and ensure that this 
     does not happen again. Take a major step in that direction; 
     eliminate the confusion. My approach for clarification 
     provides clear evidence that confusion over standards was a 
     major contributor to the prisoner abuse. We owe our soldiers 
     better than this. Give them a clear standard that is in 
     accordance with the bedrock principles of our nation.
       Some do not see the need for this work. Some argue that 
     since our actions are not as horrifying as Al Qaeda's, we 
     should not be concerned. When did Al Qaeda become any type of 
     standard by which we measure the morality of the United 
     States? We are America, and our actions should be held to a 
     higher standard, the ideals expressed in documents such as 
     the Declaration of Independence and the Constitution.
       Others argue that clear standards will limit the 
     President's ability to wage the War on Terror. Since clear 
     standards only limit interrogation techniques, it is 
     reasonable for me to assume that supporters of this argument 
     desire to use coercion to acquire information from detainees. 
     This is morally inconsistent with the Constitution and 
     justice in war. It is unacceptable.
       Both of these arguments stem from the larger question, the 
     most important question that this generation will answer. Do 
     we sacrifice our ideals in order to preserve security? 
     Terrorism inspires fear and suppresses ideals like freedom 
     and individual rights. Overcoming the fear posed by terrorist 
     threats is a tremendous test of our courage. Will we confront 
     danger and adversity in order to preserve our ideals, or will 
     our courage and commitment to individual rights wither at the 
     prospect of sacrifice? My response is simple. If we abandon 
     our ideals in the face of adversity and aggression, then 
     those ideals were never really in our possession. I would 
     rather die fighting than give up even the smallest part of 
     the idea that is ``America.''
       Once again, I strongly urge you to do justice to your men 
     and women in uniform. Give them clear standards of conduct 
     that reflect the ideals they risk their lives for.
           With the Utmost Respect,

                                           Capt. Ian Fishback,

                                           82nd Airborne Division,
                                       Fort Bragg, North Carolina.

  Mr. KENNEDY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. Will the Senator withhold?
  Mr. KENNEDY. I withhold my suggestion.

                          ____________________