[Congressional Record Volume 154, Number 24 (Wednesday, February 13, 2008)]
[Senate]
[Pages S937-S957]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2008--CONFERENCE 
                            REPORT--Resumed


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will state.
  The bill clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the conference 
     report to accompany H.R. 2082, Intelligence Authorization 
     Act.
          John D. Rockefeller IV, Dianne Feinstein, Kent Conrad, 
           E. Benjamin Nelson, Russell D. Feingold, Barbara A. 
           Mikulski, Ron Wyden, Ken Salazar, Mark Pryor, Patty 
           Murray, Benjamin L. Cardin, Frank R. Lautenberg, Jack 
           Reed, Sheldon Whitehouse, Harry Reid, Carl Levin, Bill 
           Nelson.

  The PRESIDING OFFICER. The question is, Is it the sense of the Senate 
that debate on the conference report to accompany H.R. 2082, the 
Intelligence Authorization Act, shall be brought to a close?
  The yeas and nays are mandatory under the rule. The clerk will call 
the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from Missouri (Mrs. McCaskill), and the Senator from 
Illinois (Mr. Obama) are necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from South Carolina (Mr. Graham).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 92, nays 4, as follows:

                      [Rollcall Vote No. 21 Leg.]

                                YEAS--92

     Akaka
     Alexander
     Allard
     Barrasso
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Sanders
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Tester
     Thune
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--4

     Burr
     Chambliss
     DeMint
     Vitter

                             NOT VOTING--4

     Clinton
     Graham
     McCaskill
     Obama
  The motion was agreed to.
  The PRESIDING OFFICER. On this vote, the yeas are 92, the nays are 4. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  Mr. DURBIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NELSON of Florida. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Tester). Without objection, it is so 
ordered.
  Mr. NELSON of Florida. Mr. President, while we are waiting here for 
some of the determination of a time agreement with regards to the 
consideration of the conference report, I want to go ahead and lend my 
support and acknowledge to the rest of the Senate that this is a bill 
that is very necessary to pass. Because, what this bill does, by 
authorizing the activities of the intelligence community, it continues 
to make the oversight function of the Congress--in particular, the 
Senate and the House Intelligence Committees--poignant and relevant to 
a community that is not accustomed to having oversight.
  Our committee leadership, chairman and vice chairman, Senators 
Rockefeller and Bond, as we say in the South, they have cracked the 
whip with the intelligence community to get them to realize that this 
is a constitutional government of shared powers; that the executive 
branch doesn't just run the show--particularly on something as 
sensitive as the collection of intelligence. Rather, it needs to be 
done within the law, and one of the ways of ensuring that is through 
the sharing of powers between two different branches of Government who 
have checks and balances upon each other. We in the legislative branch 
oversee the activities of the executive branch--in this case, all of 
the intelligence community and their activities, which are absolutely 
essential to the protection of our country. This conference report is a 
very important bipartisan document, which increases the accountability 
in the intelligence community, and it authorizes dozens of critical 
intelligence programs to keep us safe every day.
  The conference report includes a new, strong inspector general in the 
Office of the Director of National Intelligence. Inspectors general are 
increasingly important in the intelligence community, where billions of 
dollars are spent outside of public view. Our committee, as well as the 
American public, has to rely on the inspector general as an important 
part of the oversight of the intelligence community.
  As we look back, several years ago, we completely reorganized the 
intelligence community. A Director of National Intelligence was set up 
to integrate the disparate elements of the intelligence community. But 
there is a lot more that needs to be done, and a strong inspector 
general at the DNI is another step in the right direction.
  The conference report also includes a provision that makes the 
Director of the NRO--the National Reconnaissance Office--and the NSA--
the National Security Agency--subject to Senate confirmation. Now, why 
is that important? That is important because, again, it is part of the 
checks and balances of the separate branches of Government. Both of 
these agencies, outside of the public view because of the top-secret 
nature of this work, oversee large programs that cost vast amounts of 
money, and not every program has been a success. So by having the 
confirmations of the Directors of the NRO and the NSA come to the 
Senate, it improves that accountability and responsiveness to the 
legislative branch of Government.
  The authorization bill also requires an assessment of the 
vulnerability of the intelligence community's major acquisition 
programs. We have to assess that the program is going to stay on track 
and that it is not going off the rails with regard to cost. We are 
talking about billions of dollars on some of these programs. By keeping 
them on track, by knowing what to anticipate, it is much easier to plan 
ahead.
  This bill also provides an annual reporting system which will help us 
keep in focus, curbing these cost overruns and these schedule delays. 
If you don't do that, things are going to get out of control. As the 
intelligence community continues to be more and more sophisticated 
because of the technical means it employs, it is more and more 
important that our oversight tools be in place and effective.
  Now, that is enough alone to pass this bill, but we have an area of 
disagreement coming up. We are expecting the minority to offer a point 
of order that would remove a provision in the conference report. This 
provision requires the Army Field Manual to be used as the standard for 
interrogation methods. This Army Field Manual was released over a year 
ago. It specifically prohibits cruel, inhuman, and degrading treatment.
  There are eight techniques in the Army Field Manual that are 
specifically prohibited from being used in conjunction with 
intelligence interrogations: forcing the detainee to be naked, perform 
sexual acts, or pose in a sexual manner; placing hoods or sacks over 
the head of a detainee; using

[[Page S938]]

duct tape on the eyes; applying beatings, electric shock, burns, or 
other forms of physical pain. The fourth is waterboarding. That is 
prohibited. The fifth is using military working dogs. The sixth is 
inducing hypothermia or heat energy. The seventh is conducting a mock 
execution. The eighth is depriving the detainee of necessary food, 
water, and medical care.
  Now, haven't I just described what America is all about? Is that not 
the standard by which we, as the leader of the world, have to announce 
to the world what we believe in and how we are going to conduct 
ourselves, and that is how we are going to conduct ourselves not only 
among our own people and how we treat them but how we are going to 
treat others?
  The manual provides that three interrogation techniques may only be 
used with higher level approval. The good cop-bad cop interrogation 
tactic; the false flag tactic, where a detainee is made to believe he 
is being held by another country; or separation, by which the detainee 
is separated so he can't coordinate with other detainees on his story--
those techniques can be used, but it has to be approved at a higher 
level.
  Mr. President, there is something that is going to worry everybody, 
and it has worried this Senator personally and as a member of the 
Intelligence Committee. What if all of this doesn't work and the 
country is in imminent peril? Well, along with the standards we are 
going to set, which I hope we are going to pass into law--these 
standards in the Army Field Manual which will state clearly what the 
standards are for our country and how we are going to conduct 
ourselves--there is always the constitutional authority under article 
II.
  As Commander in Chief, the President can act when the country is in 
immediate peril. And if he so chooses, as Commander in Chief, to 
authorize activities other than what the Army Field Manual allows, then 
the President would be accountable directly to the American people 
under the circumstances with which he invoked that article II authority 
as Commander in Chief.
  What we are saying today does not relate to the President's article 
II power. We are setting statutory power. It is important that we tell 
the rest of the world the standards of how we interrogate detainees. We 
are putting these standards into law and we will ensure that these 
techniques are in compliance with the humane treatment that we would 
expect and hope our Americans would also receive.
  I think there should be no confusion. We have an obligation to set 
these standards into law. If that dire emergency ever occurred in the 
future, the President has his own authority under article II of the 
Constitution. But that is not the question here today before us. The 
question is: What do we set as the standard of interrogation, and that 
has to be that there is no torture allowed under this statutory law.
  Therefore, when the point of order is raised that would take the Army 
Field Manual standards for interrogation techniques out of the 
conference report, I urge the Senators not to take this provision out 
of this important intelligence reauthorization bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, the Senate will soon vote on the 
intelligence authorization bill, which contains a provision requiring 
all U.S. governmental agencies, including the CIA, to comply with the 
Army Field Manual's prohibition on torture. This reform is urgently 
needed. I commend the Intelligence Committee for adopting this 
provision. Its enactment will ensure that the Government uses only 
interrogation techniques that are lawful and those provisions should be 
retained.
  In the Detainee Treatment Act passed in 2005, Congress attempted to 
reaffirm our commitment to the basic rights enshrined in the Geneva 
Conventions and restore America's standing in the eyes of the world as 
a nation that treats detainees with dignity and respect.
  These rights reflect the values we cherish as a free society, and 
also protects the lives of our service men and women. Today, however, 
we know that the 2005 act has fallen short of our goals. By not 
explicitly applying the Army Field Manual standards to all Government 
agencies, we have left open a loophole that the Bush administration 
promptly drove a Mack truck through.
  The so-called enhanced interrogation program carried out in secret 
sites became an international scandal and a profound stain on America 
in the eyes of the world. The administration issued an executive order 
last year to try to minimize the outcry, but the order failed to 
renounce abuses such as waterboarding, mock executions, use of attack 
dogs, beatings, and electric shocks.
  The disclosure of secret opinions by the Office of Legal Counsel gave 
further evidence that the administration had interpreted the Detainee 
Treatment Act and other antitorture laws in an unacceptable, narrow 
manner.
  Attorney General Mukasey's refusal at his confirmation hearings to 
say whether waterboarding is illegal gave us even more reason for 
concern. The outrages do not end there. Two months ago, the New York 
Times reported that in 2005 the CIA had destroyed at least two 
videotapes documenting the use of abusive techniques on detainees in 
its custody. These videotapes have been withheld from Federal courts, 
the 9/11 Commission, and congressional committees. Two weeks ago in his 
testimony before the Senate Judiciary Committee, the Attorney General 
flat out refused to consider investigating possible past acts of 
torture or to brief congressional committees on why he believed the 
CIA's enhanced interrogation program is lawful.
  Last week, we received official confirmation that the CIA had used 
waterboarding on three detainees. At the same time, the White House 
made the reckless claim that waterboarding is legal, and that the 
President can authorize its use under certain circumstances.
  The White House position is directly contrary to the findings of 
courts, military tribunals, and legal experts that waterboarding is a 
violation of U.S. law and a crime against humanity.
  In the words of a former master instructor for U.S. Navy SEALs:

       Waterboarding is slow motion suffocation with enough time 
     to contemplate the inevitability of blackout and expiration. 
     Usually the person goes into hysterics on the board. For the 
     uninitiated it is horrifying to watch and if it goes wrong, 
     it can lead straight to terminal hypoxia. When done right it 
     is controlled death.

  Waterboarding has a long and brutal history. It is an ancient 
technique of tyrants. In the 15th and 16th centuries, it was used in 
the Spanish Inquisition. In the 19th century, it was used against 
slaves in this country. In World War II, it was used against our troops 
by Japan. We prosecuted Japanese officers for using it and sent them to 
years and years of jail for following that procedure.
  In the 1970s, it was used against political opponents by the Khmer 
Rouge in Cambodia and military dictatorships in Chile and Argentina. 
Today it is being used against pro-democracy activists in Burma. That 
is the company we keep when we fail to reject waterboarding.
  In fact, Attorney General Mukasey could not even bring himself to 
reject the legal reasoning behind the infamous Bybee torture memo of 
the Office of Legal Counsel which stated that physical pain amounts to 
torture only if it is:

       equivalent in intensity to the pain accompanying serious 
     physical injury, such as organ failure, impairment of bodily 
     function, or even death.

  According to that memo, anything that fell short of that standard 
would not be torture. This Bybee memorandum was in effect for 2\1/2\ 
years before it was ever effectively suspended. It was suspended then 
by Attorney General Alberto Gonzales for the Judiciary Committee, quite 
frankly, in order that his nomination could be favorably considered.
  Included in the Bybee memoranda was a provision that was an absolute 
defense for any of those who would be involved in this kind of torture, 
unless prosecutors could prove a specific intent that the purpose of 
the torture was to harm the individuals rather than to gain 
information, therefore effectively giving carte blanche to any of those 
who would be involved in torture.

  When Attorney General Gonzales appeared before the Judiciary 
Committee

[[Page S939]]

and effectively repealed the Bybee memoranda, he did so for the 
Department of Defense but not for the Central Intelligence Agency, even 
at that time a clear indication of what the administration was 
intending to do with the Central Intelligence Agency. It should not be 
any surprise to anyone that this has been ongoing and continuous.
  According to that memo, again the Bybee memorandum, anything that 
fell short of this standard would not be torture. CIA interrogators 
called the memo their ``golden shield'' because it allowed them to use 
virtually any interrogation method they wanted.
  When the memo--this is the Bybee memo--became public, its flaws were 
obvious. Dean Harold Koh of Yale Law School testified that in his 
professional opinion as a law professor and a law dean, the Bybee 
memoranda is ``perhaps the most clearly legal erroneous opinion I have 
ever read [because of all of the previous statutes and laws that have 
been passed to prohibit torture by the Congress of the United States 
and those initiated and supported by Republican presidents, by Ronald 
Reagan, as well as Democratic presidents''.]
  This was not a partisan series of statements about what the United 
States position has historically been. The Bush administration was 
embarrassed into withdrawing the memo. To this day, no one in the 
administration has repudiated its content. The torture memo continues 
to haunt this country. I have asked the Attorney General several times 
to reject its legal reasoning, but he continues to refuse to do so. The 
only solution is for Congress to apply the Army Field Manual's 
standards to the entire Government. There has rarely if ever been a 
greater need to restore the rule of law to America's interrogation 
practices.
  The field manual represents our best effort to develop the most 
effective interrogation standards. The manual clearly states that: Use 
of torture is not only illegal but also it is a poor technique that 
yields unreliable results, may damage subsequent collection efforts, 
and can induce the source to say what he thinks the interrogator wants 
to hear.
  We have on trial in military courts six of those who are going to be 
tried because of 9/11. There is no question there is going to be a 
whole series of appeals because of the use of various techniques 
against them. It may very well be that some turn out--because of the 
violations of basic and fundamental, some constitutional rights, there 
will be a question about what the outcome is going to be with regard to 
those individuals.
  Why not get it right from the start? The manual gives our 
interrogators great flexibility, provides all the techniques necessary 
to effectively question detainees, but it makes clear that illegal and 
inhumane methods are not permitted.
  In a letter to our troops dated May 7, 2007, General Petraeus stated:

       Our experience in applying the interrogation standards laid 
     out in the Army Field Manual . . . shows that the techniques 
     in the Manual work effectively and humanely in eliciting the 
     information from detainees.

  Applying the field manual's standards throughout our Government will 
move us closer to repairing the damage to our international reputation 
in the wake of the Abu Ghraib scandal. It will once again commit the 
United States to be the world's beacon for human rights and fair 
treatment. It will improve the quality of intelligence gathering, and 
protect own personnel from facing punishment, condemnation, or 
mistreatment anywhere in the world. It will make us more, not less, 
safe.
  Torture is a defining issue. It is clear that under the Bush 
administration we have lost our way. By applying the field manual 
standards to all U.S. Government interrogations, Congress will bring 
America back from the brink, back to our values, back to basic decency, 
back to the rule of law.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, today's debate goes to the heart of 
what our country is and what we wish it to be, by asking this: Will the 
United States of America condone torture? Is there, at America's heart, 
a heart of darkness? This authorization bill for America's intelligence 
community offers us the opportunity to answer that question decisively. 
It contains provisions for which I have fought from my initial 
amendment in committee, and which I am proud to support today, that 
would prohibit members of the intelligence community from using 
interrogation techniques beyond those authorized in the Army Field 
Manual.
  By adopting this amendment, the two Intelligence Committees, 
Congress's experts on these matters, have sent a clear signal to 
America and to the world that in this country the rule of law is our 
strongest bulwark against those who would do us harm.
  I hope that today the Senate will have the confidence in our values 
to reaffirm that signal and pass this legislation with the Army Field 
Manual provision included.
  Over the past several months, the American people have become all too 
familiar with the issue of torture. I want to discuss one technique in 
particular today, waterboarding, or water torture, or the water cure, 
which dates back to the Spanish Inquisition of the 14th century.
  Waterboarding was a favorite of torturers, because its terrible 
effects could be generated without the visible damage accompanying the 
rack, the screw, the iron, the whip, or the gouge. It could be done 
over and over.

  In the 20th century, waterboarding was done in the Philippines, where 
colonizers wielded it against indigenous peoples. It has been used in 
Sri Lanka, in Tunisia, by the Khmer Rouge in Cambodia--we are in the 
tradition of Pol Pot--by the French in Algeria, by the Japanese in 
World War II, and by military dictatorships in Latin America. The 
technique ordinarily involves strapping a captive in a reclining 
position, heels above head, putting a cloth over his face and pouring 
water over the cloth to create the feeling of suffocation and drowning. 
It leaves no marks on the body, but it causes extreme physical and 
psychological suffering.
  A French journalist, Henri Alleg, was subjected to this method of 
interrogation during the struggle for Algerian independence. He wrote 
in his 1958 book ``The Question'':

       I tried, by contracting my throat, to take in as little 
     water as possible and to resist suffocation by keeping air in 
     my lungs for as long as I could. But I couldn't hold on for 
     more than a few moments. I had the impression of drowning, 
     and a terrible agony, that of death itself, took possession 
     of me.

  Waterboarding is associated with criminal, tyrant, and repressive 
regimes, with rulers who sought from their captives not information but 
propaganda, meant for broadcast to friends or enemies whether true or 
false. Regimes that employed the technique of waterboarding generally 
did not do so to obtain information; rather, to obtain compliance. But 
no matter the purpose or the reason, its use was and is indefensible.
  Water torture was not unknown to Americans. A 1953 article in the New 
York Times quotes LTC William Harrison of the U.S. Air Force, who said 
he was ``tortured with the `water treatment' by Communist North 
Koreans.'' In testimony before a U.S. military tribunal, CAPT Chase Jay 
Nielsen described being waterboarded by his Japanese captors following 
the 1942 Doolittle raid by U.S. aviators. From all this, America's 
military knew there was a chance our servicemen and servicewomen would 
be subjected to water torture.
  The Defense Department established the SERE program--survive, evade, 
resist, and escape--to train select military personnel who are at high 
risk of capture by enemy forces or isolation within enemy territory. 
The program has also subjected certain service personnel to extreme 
interrogation techniques, including waterboarding, in an effort to 
prepare them for the worst--the possibility of capture and torture at 
the hands of a depraved or tyrannical enemy.
  According to Malcolm Nance, a former master instructor and chief of 
training, at the U.S. Navy SERE school in San Diego:

       [O]ur training was designed to show how an evil 
     totalitarian enemy would use torture at the slightest whim.

  Those who have experienced this technique, even at the hands of their 
own brothers in arms, are unequivocal about its effect. Former Deputy 
Secretary of State Richard Armitage, who underwent waterboarding during 
SERE training, said this:


[[Page S940]]


       As a human being, fear and helplessness are pretty 
     overwhelming. . . . this is not a discussion that Americans 
     should even be having. It is torture.

  Our colleague in this body, Senator John McCain, has said the same. 
Yet it was to this relic of the dungeons of the inquisition, of the 
Cambodian killing fields, and of the huntas of the Southern Hemisphere 
that the Bush administration turned for guidance. I will speak later 
about how our Department of Justice came to approve this. But for now, 
we know that last week, in a stunning public admission, the CIA 
Director General, Michael Hayden, admitted the United States 
waterboarded three detainees following the September 11 attacks. The 
virus of waterboarding had traveled from tyrant regimes, through the 
SERE program, and infected America's body politic.
  Retired BG David Irvin, of the U.S. Army Reserve, a former 
intelligence officer and instructor in interrogation, and Joe Navarro, 
interrogator with the FBI, recently wrote:

       [T]here is considerable evidence that the CIA had to 
     scramble after 9/11 to develop an interrogation program and 
     turned to individuals with no professional experience in the 
     field. . . . Given the crisis atmosphere of the day, it is 
     all too easy to believe the comment of an intelligence 
     insider who said of the secret program to detain and 
     interrogate al Qaeda suspects that ``quality control went out 
     the window.''

  Don't let us jump out the window after it.
  America's military is expressly prohibited from using torture because 
intelligence experts in our Armed Forces know torture is an ineffective 
method of obtaining actionable intelligence. Again, I will speak later 
about the false assertion that this program was designed for 18-year-
old novices. Some of the most sophisticated intelligence interrogations 
are done by our military after intense training. Our military adheres 
to the Army Field Manual on Human Intelligence Collector Operations. At 
a hearing before the Senate Select Committee on Intelligence, on which 
I serve, I asked COL Steven Kleinman, a 22-year veteran of 
interrogations, a senior intelligence officer in the U.S. Air Force 
Reserves, and a veteran interrogator with plenty of experience overseas 
in the Middle East, about his experience conducting interrogations 
using the Army Field Manual.
  He said:

       I am not at all limited by the Army Field Manual in terms 
     of what I need to do to generate useful information. . . . 
     I've never felt any necessity or operational requirement to 
     bring physical, psychological or emotional pressure on a 
     source to win their cooperation.

  A significant number of retired military leaders have written to the 
chairman and vice chairman of the Intelligence Committee saying:

       interrogation methods authorized by the field manual have 
     proven effective in eliciting vital intelligence from 
     dangerous enemy prisoners. . . . And the principles reflected 
     in the Field Manual are values that no U.S. agency should 
     violate.

  And GEN David Petraeus, commander of U.S. forces serving in Iraq, 
reiterated this point when he wrote last year to every soldier serving 
in the Iraq theater:

       Some may argue that we would be more effective if we 
     sanctioned torture or other expedient methods to obtain 
     information from the enemy. They would be wrong. Beyond the 
     basic fact that such actions are illegal, history shows that 
     they also are frequently neither useful nor necessary. . . . 
     our experience in applying the interrogation standards 
     laid out in the Army Field Manual on Human Intelligence 
     Collector Operations that was published last year shows 
     that the techniques in the manual work effectively and 
     humanely in eliciting information from detainees.

  The cochairs of the 9/11 Commission emphatically agree. On Monday, 
the chairmen, together with two former Secretaries of State, three 
former National Security Advisors, and other national security experts, 
wrote that ``[c]ruel, inhuman and degrading treatment of prisoners 
under American control makes us less safe, violates our national 
values, and damages America's reputation in the world.''
  Torture is ineffective. It is wrong. It is dangerous to all those who 
serve the United States of America in harm's way. It should never, ever 
be used by any person who represents the United States of America or 
any agency that flies the American flag.
  I was proud last July to introduce an amendment in the Intelligence 
Committee that would write this rule into law. When that effort did not 
succeed, I was proud again last winter to support Senator Feinstein's 
amendment in conference.
  I call on all my colleagues to support this legislation. We can 
journey no longer down Winston Churchill's stairway which leads to a 
dark gulf. As Winston Churchill said:

       It is a fine broad stairway at the beginning, but after a 
     bit, the carpet ends. A little farther on, there are only 
     flagstones, and a little farther on still these break beneath 
     your feet.

  The United States of America--the city on a hill, the light of the 
world, the promise of generations--must not ever condone torture. 
Torture breaks that promise. Torture extinguishes that light. Torture 
darkens that city. I hope by our actions today, we in the Senate will 
help turn this country back toward our centuries-old promise. I hope we 
will turn toward the light.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I almost have no words to praise the 
Senator from Rhode Island for the eloquence and strength of his speech, 
which was not only grounded in very deep substance but was delivered 
with elegiac nature that both culled the human spirit as well as 
grounded the futility of torture. I congratulate him.
  I also rise strongly in support of section 327 of the intelligence 
authorization conference report. I recognize it will be controversial. 
I don't care. It is important that some background on this section be 
provided. Some of it has been this morning. During the conference on 
the authorization bill, the conferees adopted an amendment that would 
require the intelligence community to conduct its interrogation in 
accordance with the terms of the U.S. Army Field Manual. The full 
membership of the House Intelligence Committee and the Senate 
Intelligence Committee served on the conference committee. So it was a 
majority of those two committees that came to that conclusion.
  Section 327 of the intelligence authorization conference report 
directly parallels the provision in the Detainee Treatment Act that 
forbids subjecting anyone in Department of Defense custody to any 
treatment or technique of interrogation not authorized by and listed in 
the U.S. Army Field Manual on intelligence interrogation. Section 327 
applies these same restrictions to the intelligence community at large.
  The effect of section 327 is, therefore, to require all of the U.S. 
Government operate their interrogation programs under a single 
interrogation standard, the standard set by the U.S. military. Adopting 
the military standard for interrogation as the universal standard makes 
sense, and I hope some of my colleagues are listening. It is the 
members of the military who most benefit from reciprocal obligations of 
the Geneva Convention requiring humane treatment of prisoners and who 
are most likely to be subjected to retaliation based on the failure of 
the United States to follow those obligations. That statement is 
frequently made, and then it is frequently absorbed and discarded. 
Think about it. Retaliation is the way of the world, and it will be no 
different here. What we do to others, they will do to us.
  The U.S. Army Field Manual on interrogation was revised in September 
2006 after significant interagency review. This included a review by 
the Central Intelligence Agency. By providing a number of approach 
strategies such as the incentive approach, emotional approach, and the 
Mutt-and-Jeff approach, the Army Field Manual gives interrogators 
significant flexibility to shape the interrogation. It doesn't 
delineate exactly how. It gives them a lot of flexibility.
  The Army Field Manual also explicitly prohibits, as we know, 
waterboarding, forcing detainees to be naked, inducing hypothermia or 
heat injury or subjecting a detainee to beatings, as well as a number 
of other things. All this raises the question at the heart of this 
debate: Should the Central Intelligence Agency, the well-known CIA, be 
allowed to use coercive interrogation techniques to obtain information 
from al-Qaida detainees?
  This debate is about more than legality. It is about more than 
ensuring

[[Page S941]]

that the intelligence community has the tools it needs to protect us. 
It is also about morality, the way we see ourselves, who we are, who we 
want to be as a nation, and what we represent to the world. What we 
represent to the world has a direct effect on the number of people who 
determine they want to join the jihadists movement and come after us.
  It is a decision that can and should be left to Members of Congress 
who are the representatives of the American people. In the early period 
of the CIA program's existence, I repeatedly called--and I am extremely 
frustrated by this, extremely frustrated--for an Intelligence Committee 
investigation into the Agency's detention interrogation practices.
  That was in the committee. I was, at that point, vice chairman and 
could not control, obviously, the vote. So on vote margins of one, we 
lost. We could not get anything going in the way of studying the 
subject and investigation of the subject. Then I moved to the floor and 
once again could not get the committee to investigate the subject. I 
also tried to have the CIA brief all the members of the committee on 
the interrogation program. That also did not happen.
  I recognized that assessing the need for the CIA's enhanced 
interrogation techniques, the intelligence obtained from detainees, and 
the importance of maintaining America's position in the world were 
issues that we in Congress needed to debate and discuss, and, 
unfortunately, we did not.
  About a year and a half ago, the full membership of the Intelligence 
Committee was finally provided information about CIA's interrogation 
program. It is the whole point of oversight. They are not accustomed to 
us doing that--not just the CIA, but the intelligence community--having 
representatives of the people asking questions. They think it is an 
elite field for them. They are proud of their traditions. They fight 
among themselves, and they do not build into their thinking what it is 
that the Congress might feel about this.
  About a year and a half ago, as I say, we were brought into their 
interrogation program. Since that time, our committee has held multiple 
hearings on that subject. We have done our best to learn as much as 
possible about the basis for and the consequences of CIA's program, as 
well as interrogation in more general terms.
  These briefings and hearings have led the committee to conclude that 
all agencies of the U.S. Government should be required to comply with a 
single standard for interrogation of detainees. The Army Field Manual 
provides a standard of humane treatment that indisputably complies with 
our international obligations under the Geneva Conventions, as well as 
with U.S. laws.
  The CIA has briefed the committee on several occasions about its 
interrogation of al-Qaida detainees. The CIA has described the basis 
for the program, and why they think it should be allowed to continue.
  Although the CIA has described the information obtained from its 
program, I have heard nothing--nothing--that leads me to believe that 
information obtained from interrogation using coercive interrogation 
techniques has prevented an imminent terrorist attack.
  This is true for a very simple reason. Once a terrorist is captured, 
his fellow plotters, understandably, change their plans. In other 
words, I do not believe the CIA has ever been in an actual ``ticking 
timebomb'' scenario, nor do I think it is ever likely to be placed in 
that situation. That does not mean the information obtained from the 
program has not been valuable. Of course information about al-Qaida is 
exceedingly valuable from an intelligence standpoint. It is bits and 
pieces of information that allow our intelligence professionals to 
assess al-Qaida's capabilities and to determine how best to protect 
ourselves as a nation. But, more to the point, I have not heard nor 
have I seen any evidence that supports the intelligence community's 
claim that using enhanced interrogation techniques is the only way to 
obtain this type of intelligence; that is, to get what they need to 
get.
  After 9/11, the intelligence community decided that coercive 
interrogation tactics were the best way to obtain intelligence. It was 
perhaps a little bit understandable then in terms of the general panic 
of the Nation. But the intelligence community--I say this gravely--did 
not take the time to research what interrogation techniques might be 
most effective to come to this conclusion, nor did they reach out to 
the interrogators with experience, particularly those questioning 
Islamic terrorists. They did not do that. They were going to do it 
their way. They simply assumed--and they simply still assume--that 
coercive interrogation techniques were the best way to obtain 
information.
  To this Senator, this was clearly a flawed approach. But at this 
point, the administration is so invested in the use of these techniques 
they can no longer psychologically or otherwise step back to assess 
what methods are most effective to obtain intelligence. They go by the 
mantra, they go by what has been done before.
  To address this question, the committee explored how other Government 
agencies conduct interrogation. The committee considered critical 
interrogations of individuals who do not want to disclose information--
people who are hardheaded and do not want to talk--interrogations where 
obtaining information can prevent widespread injury or death.
  Every day, military interrogators in Iraq and Afghanistan question 
individuals with information that can save lives--every single day--
questions about where explosive devices are hidden, where captured 
soldiers have been taken, or where caches of weapons are stored, and a 
lot more.
  Now, the CIA loves to argue: Oh, but they are just 18- to 20-year-old 
kids. They don't have the experience. We have experience. We have 
experience. We have been at it. We are the professionals. They did that 
at our public, open threats hearing a week or so ago.
  Now, there is something called the FBI. They deal with pretty bad 
people, too. Their agents face life-and-death situations in both the 
world of terrorism and every-day criminality. Some of the individuals 
the FBI interrogate are senior leaders, individuals who are committed 
to staying silent and not sharing the information they possess. In 
fact, FBI agents recently questioned the top al-Qaida leaders who were 
formerly in CIA custody, gathering enough information from those al-
Qaida leaders to build cases for trial, which we have recently read 
about.
  Some of these FBI agents have been conducting interrogations for two 
or three decades. That does not sound like 18- to 20-year-olds. They 
are, without question, recognized experts in their field, and they are 
remarkably effective at obtaining the information they need. Yet both 
the FBI and the military have told us they do not need enhanced 
interrogation techniques. Are these naive organizations? Are these 
people who do not know what they are talking about? Are these people 
who do not have stakes at hand? They are out on the battlefield. They 
are not only at Guantanamo. They are out on the battlefield. They have 
told the committee the interrogation techniques included in the Army 
Field Manual provide them with flexibility they need to obtain the 
information they need.
  Indeed, representatives from both the military and the FBI--both--
stated emphatically they have the tools they need to obtain necessary 
and reliable intelligence.
  After considering the CIA's arguments, and those of the FBI and the 
U.S. military, I am simply not convinced that harsh CIA tactics are 
necessary to obtain intelligence information.
  We also had people who were neutral who had experience in 
interrogation but were not currently in the practice of it. Their 
information to us also was that to terrorize, to torture, to manhandle, 
to do whatever, does not work. Human beings are human beings, and there 
are ways to get at them. In fact, coercive interrogation techniques can 
lead prisoners--and probably will in many cases--to say anything at all 
for the purpose of stopping the interrogation. As a result, coercive 
techniques can produce information that is fabricated and ultimately 
lead to flawed and misleading intelligence reports. This is not 
academic or hypothetical. Bad intelligence is a real danger.

[[Page S942]]

  In the early years and months after 2001, we were awash with bad 
intelligence in Washington, DC, not all of it coming out of coercive 
techniques, but out of a complete misunderstanding of what intelligence 
is all about. In fact, there was a condescension from the 
administration about the role of intelligence in providing reliable 
information. So this is not an academic or hypothetical point. Bad 
intelligence is a real danger when employing coercive interrogation 
techniques.

  Intelligence reporting from an al-Qaida detainee--a very famous one 
named al-Libi he said Iraq was providing al-Qaida training in chemical 
and biological weapons prior to the war, which was publicly trumpeted 
by the President of the United States, by the Secretary of Defense, by 
the Secretary of State, and other senior administration officials as 
proof of operating links between Iraq and al-Qaida and, therefore, as a 
basis for going in to invade Iraq.
  Of course, basically all of us feel now that what the President said 
on March 23 in the other body, in his speech which gave him the 
authority to go to war, was based on intelligence which was almost 
entirely incorrect, and virtually everything he said, other than some 
rhetoric here and there--everything he said turned out to be wrong, 
and, therefore, was one of the most extraordinary disservices to the 
American people, not to speak of the dead and the wounded, that I can 
remember in my lifetime. But the Nation was inspired by the thought of 
fighting terror, and so on they went.
  Ultimately, al-Libi, who said these things, recanted. He recanted, 
and it was determined by the CIA that he had fabricated this central 
allegation of this link between al-Qaida and Iraq and other information 
based on his claim of mistreatment during the interrogations.
  So this is not an academic point. America went to war based on an 
alleged threat that was partially based on fabricated information 
produced under coercive interrogation.
  Apart from the question of efficacy and the risk of bad intelligence, 
the committee has explored the consequences of having a different, 
secret standard of interrogation for the intelligence community. This 
is where the need for section 327 becomes clear.
  Since the disclosure of information about the existence of secret 
prisons, and the use of harsh interrogation techniques, the reputation 
and moral authority of the United States have suffered dramatically. It 
is not a casual statement. One can say, yes, a lot of people have said 
that. But when that is true, that means that in Africa and Southeast 
Asia and South America and in the Middle East it becomes much easier 
for al-Qaida and those who would do us ill--and people within the 
United States who may belong to no formal organization like that at 
all--to develop anger, to develop a search for meaning to their lives 
because they do not see hope in their lives, and so they join. They 
join a group that will do damage. Some of our techniques have 
significantly increased the likelihood of that happening.
  Rather than being a world leader in human rights, we have become 
known for the unapologetic use of aggressive interrogation techniques. 
Indeed, even Canada has included us on a list of countries that engage 
in torture.
  Allowing the CIA to continue to use coercive interrogation techniques 
that are not part of the Army Field Manual is another piece of fodder 
for terrorist propaganda that cannot be underestimated. It is not just 
a rhetorical statement. It cannot be underestimated. It is no way to 
win the hearts and minds of the Muslim world. Ultimately, the war on 
terrorism is a war of ideas. Without a public standard of humane 
treatment, it is impossible to convince the world that we take our 
international obligations seriously, that we treat people humanely, and 
that we are a country of laws and we adhere to these laws.
  We must uphold those standards that differentiate us from the 
terrorists whom we are fighting. If our Government continues to use 
secret interrogation techniques that many are convinced constitute 
torture, America's standing in the world will continue to go down even 
more. Every time it goes down, there are more people who sign up to do 
us harm.

  The Israeli Supreme Court concluded, when it forbade the use of harsh 
interrogation techniques, the following:

       This is the destiny of democracy, as not all means are 
     acceptable to it and not all practices employed by its 
     enemies are open before it. Although a democracy must often 
     fight with one hand tied behind its back, it nonetheless has 
     the upper hand. Preserving the rule of law, and recognition 
     of an individual's liberty, constitutes an important 
     component in its understanding of security. At the end of the 
     day, they strengthen its spirit and its strength and allow it 
     to overcome its difficulties.

  So in closing, passing section 327 is critical to regaining our moral 
authority in the world--which is a little bit too easy to say; it is 
going to take a lot more than that but it is a start--and convincing 
people that the United States believes in due process and human rights 
rather than fear. Having a separate standard of interrogations for the 
CIA--as much as it may want to have it, as much as it may have pride in 
having their secret standard, as much as they talk about 18- to 20-
year-olds--is simply not worth the cost. I, therefore, urge my 
colleagues to support section 327.
  But no matter how the Senate votes on this motion, if it comes up, 
the CIA should very carefully consider the actions of the House and 
Senate Intelligence Committee. All Members need to consider what this 
large group concluded. The members of our committees are the only 
Members of Congress who have been briefed on the program and who are 
privy to the administration's best arguments in support of the program. 
That has to be said from time to time, and it sounds a bit arrogant, 
but there are people on the Intelligence Committees, both in the House 
and the Senate, who get briefings, and they know things that are not 
necessarily known to the rest of the Congress. Yet despite those 
briefings, a bipartisan majority of both the House and the Senate 
Intelligence Committees have determined that it is in the Nation's best 
interest to have only one standard of interrogation, a standard that 
can be publicly judged by the entire world, and this judgment by the 
representatives of the American people--that is, what we did in the 
conference committee--cannot be ignored.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I compliment my distinguished friend from 
West Virginia. He has been a very bipartisan worker on the Senate 
Select Committee on Intelligence. I have been on that committee for an 
awfully long time, and I have a lot of respect for him. I just want to 
make that point for the record. I know he spends a lot of time trying 
to do his job well. We don't always agree, but we do agree on an awful 
lot. I particularly appreciate his work on the FISA bill. I know it is 
a very difficult position for him to be in. It is a very technical, 
very difficult bill, a complex bill, with a lot of matters conducted in 
public. I think he did a terrific job in seeing this bill through to 
the Senate floor.
  I also would like to take a moment to thank my colleague and friend 
who works with me, Jesse Baker. He is a Secret Service detailee on my 
staff who has been invaluable in helping me prepare for the important 
FISA debate.
  I also thank the very able counsel of the Intelligence Committee, 
Kathleen Rice, along with Jack Livingston, Mike Davidson, and Chris 
Healey, all of whom I think played a significant role in the FISA bill, 
among so many other things as well. I also would like to pay tribute to 
my colleague on the Intelligence Committee, my staffer who works with 
me, Paul Matulic, who is one of the most articulate and knowledgeable 
foreign policy people in government today. I am very grateful for his 
work and the effort he has put forth to try to assist me in these very 
difficult times and very difficult jobs.
  This might be a historic week for the Senate Select Committee on 
Intelligence, at least in comparison with the last 3 years. Last night, 
we passed, after over a year of work and preparation, including the 6-
month interim Protect America Act, the FISA modernization bill. I truly 
hope our House colleagues can expedite this bill and get it to the 
President for his signature before the legal regime governing our 
essential technical capabilities expires this weekend.
  I wish to congratulate both the chairman, as I have said here 
earlier,

[[Page S943]]

and vice chairman, Senator Bond, for their sustained efforts on this 
issue. It wouldn't have been passed without their sterling leadership 
and their willingness to make some tough calls and to stick to them.
  I have often said I am metagrobolized--confounded, you might say--
that we have heard about the asymmetrical advantages that our terrorist 
enemies have, while we are reluctant to use our own significant 
asymmetrical advantages to defend ourselves from these terrorists' 
intentions. The terrorists do have asymmetrical advantages, to be sure: 
They are substate actors, and they do not operate according to any 
national or international law, including the law of war. They hide 
among civilians, target civilians, and terrorize civilization. If al-
Qaida could get its hands on a weapon of mass destruction, everything 
we know about them suggests they would use it against the West.
  But we in the West also have asymmetrical advantages as well. Two 
significant advantages are our technological prowess and our adherence 
to the rule of law. Our technology, as we have revealed in more ways 
than I think prudent in our open debate, provides us unparalleled 
advantages in tracking the enemy. Our collection has prevented 
terrorist attacks against us, and our continued collection makes the 
enemy dedicate a significant amount of its time to avoiding us--time 
that it would use plotting against us. In this sense, our technological 
collection is not just a defensive tool but an offensive tool as well. 
Americans and their leaders are right to expect that all of this 
Nation's activities should adhere to the rule of law, and this long 
debate over FISA modernization should, at the very least, assure 
everyone that we adhere to a legal regime, even when it seems 
aggravatingly slow to adjust it to modern technology and threats 
unimagined in the 1970s when the original FISA Act was enacted.

  So I again wish to congratulate the chairman and the vice chairman 
for their leadership in getting this important piece of legislation 
passed, finally, last night. It was a major banner day for us. This 
bill was long overdue, and I give credit to those who have worked so 
hard--long and hard--to see that it was done.
  The passage of an intelligence authorization bill is also an 
important measure of how we advance the rule of law. The balance of 
powers so beautifully articulated in our system of government requires 
an active role for this body and, since the 1970s, we have 
institutionalized a role of oversight for intelligence in the two 
committees of the Senate and the House.
  Our principal vehicle is the authorization bill. This process has 
been derailed for several years now, as Members operating with 
individualized agendas have created a dynamic that has thwarted the 
institutional need for authorization. It is a fact that, if some 
concede that an authorization bill is not essential, the self-
moderating dynamic that keeps one from offering controversial 
amendments on a bill is removed. We have seen this with the foreign 
relations authorization bills. I don't want to see it happen with the 
intelligence authorization bill.
  This year's bill has some very important measures in it, most of them 
in the classified annex and therefore not subject to discussion now. It 
is, after all, an authorization for the intelligence community--or IC--
which does, after all, require a minimum of secrecy to function 
effectively. The bill does have measures in the unclassified annex 
worthy of passage, however, to include additional and needed 
authorities for the Director of National Intelligence, directions on 
personnel level assessments for the IC, directions on business 
enterprise architecture modernization, and limits on excessive cost 
growths of certain systems.
  The bill, however, has been strapped by a provision added during 
conference that was not a part of either the House or Senate bills 
going into conference that would in this case limit all IC 
interrogation techniques to the Army Field Manual. Now, this provision 
is widely seen as a prophylactic against the use of torture, and there 
begins the misconceptions.
  The United States does not torture. Whether the process known as 
waterboarding constituted torture when it was used in three cases in 
the past--and we cannot discuss exactly how it was used here--is a 
debate to be held among historians and scholars of the law. I do not 
wish to inhibit that debate. I also do not wish to violate U.S. 
domestic law or international law to which we are committed as a 
nation. The rule of law serves our advantage.
  But the conflict over what was lawful in interpretation in the first 
2 years after the 9/11 attacks recognizes, to the honest analyst, that 
there is murkiness at the intersection of law, policy, and legal 
interpretation. That has always been the case. As I say, I do not want 
to inhibit this debate.
  I also do not wish that historic debate to inhibit any techniques we 
need to use for interrogation today. Last week, in an open session of 
the Senate Select Committee on Intelligence, Director Mike Hayden--
General Hayden--spoke forcefully, openly, and articulately about the 
issue of waterboarding. He said in public that, No. 1, less than one-
third of less than 100 detainees held by the CIA since 9/11 have ever 
been subjected to enhanced interrogation techniques. No. 2, of that 
small sample, only three have been subjected to waterboarding. No. 3, 
waterboarding has not been used for almost 5 years. Yet we have heard 
nothing but screaming about this issue, as though it was relevant 
today.
  As Director Hayden went on to state, there is a universe of lawful 
interrogation techniques. This includes FBI procedures, the Army Field 
Manual, and the enhanced interrogation techniques used by the CIA, but 
which, I repeat, does not include waterboarding today. The DCI made it 
plain--the Director of Central Intelligence made it plain that the CIA 
will play to ``the edges that the American political process allows us. 
It is our duty to play to that edge.'' The DCI also made it clear that 
if the Congress directs that line is set by the Army Field Manual, then 
that will be the line in law that CIA officers will respect and adhere 
to.
  So Congress must act soberly and responsibly in addressing the 
question of enhanced interrogation techniques. As the hearing last week 
made clear to anyone listening, the various approaches--FBI techniques, 
DOD's Army Field Manual, and CIA's enhanced techniques--address various 
subjects under different circumstances with different sets of goals. 
Director Maples told me he could not imagine that anyone would have 
objected to the use of current enhanced techniques if they could have 
gained the intelligence that would have prevented the attack on the USS 
Cole.

  In my mind, the greatest advantage of the enhanced interrogation 
techniques is the public ambiguity surrounding the fact that they are 
classified. I don't want an al-Qaida operative we have just wrapped up 
to know what is in our playbook. But I want to make clear, ambiguity is 
not--I repeat, not--a cloak for torture.
  I can't go into details here, but I can say I have been constantly 
amazed as I have studied this issue in the Intelligence Committee over 
some of the sanctimony that has been used by some people on the Senate 
floor addressing this issue, and off the Senate floor as well. I can 
quite comfortably say there are actions the American public has 
routinely witnessed on some of our most popular television police shows 
over the past two decades that would exceed anything in the enhanced 
interrogation techniques allowed by the CIA. I find this to be ironic.
  I cannot support this conference report if it has the language 
limiting interrogation to the Army Field Manual. This is a manual 
written for our soldiers, all of whom I think we all agree are brave, 
dedicated warriors, but most of whom are young and inexperienced in the 
needs of interrogation. They should have their manual. I must point 
out, however, that Army Field Manuals are subject to revision by the 
Executive at any time, so that we in Congress are acting a little too 
self-satisfied by this simple gesture if we actually believe we are 
rectifying the rule of law.
  I say, let's have this debate and let's really define what it is we 
wish to proscribe, and let's understand the needs of our intelligence 
and the consequences for our actions--consequences that could be very 
grave if we keep playing games with these issues--or should I say 
political games. Both would be wrong, in my opinion.

[[Page S944]]

Much of this debate must be classified, but the Senate has procedures 
for closed sessions, and, after all, the Senate Select Committee on 
Intelligence was created for just this need. I serve on that august 
committee, and I have served on it for a long time.
  Sometimes I feel as if I am on the corner of sanctimony and 
righteousness. Sanctimony has popular appeal--it gains the approving 
tut-tutting of the chattering masses. Often it is more bombast than 
substance, more Babbittry than bravery. Righteousness is not always a 
function of the approval of the masses. Those who go to war to defend 
do things that are lawful but sometimes unpleasant--sometimes very 
unpleasant. In the choice between sanctimony and righteousness, I will 
choose the latter.
  I do not wish to calumniate anyone in this debate. I presume that 
people are motivated by the purest of motives, as is always the case in 
the Senate--or should I say I hope it is always the case in the Senate. 
I wish, however, that we had more substantive debate on some of these 
difficult questions.
  So because this conference report includes a measure limiting 
interrogation techniques for our intelligence professionals in the Army 
Field Manual--a measure added at the last minute in conference, 
something that was in neither bill, the House's or the Senate's--I will 
vote against the conference report and urge us all to reengage in this 
debate so that the lines of law we draw, that our intelligence 
professionals will respect, are lines that also maintain our best 
defenses within the rule of law.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Menendez). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. VITTER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. VITTER. Mr. President, I ask unanimous consent that I be 
permitted to speak for 15 minutes as in morning business and to yield 
some of that time to the distinguished Senator from Pennsylvania who 
joins me on the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Nomination of David Dugas

  Mr. VITTER. Mr. President, I come to the floor with welcome support 
of the distinguished Senator from Pennsylvania, who serves so ably on 
the Judiciary Committee, to talk about the pending nomination of David 
Dugas to fill a vacancy in the Middle District of Louisiana.
  This is a vacancy that has existed for over a year, and, in fact, 
coming up very soon in March will unfortunately, if we do not act 
before then, will be noting the 1-year anniversary of the nomination of 
David Dugas to fill this vacancy in the Middle District of Louisiana, 
of course nominated by President Bush.
  Mr. Dugas is currently U.S. attorney in that same district. In that 
capacity, of course, he had to come before this Senate and be 
confirmed; and he was by unanimous consent. So that was a very 
resounding confirmation of him, which included support by my colleague 
from Louisiana, Senator Landrieu.
  In terms of this judicial nomination, Mr. Dugas has received the 
highest rating possible by the American Bar Association. He is 
eminently qualified. There is nothing in his background or his dealings 
or his job as a U.S. attorney that remotely suggests otherwise.
  Yet there has been great delay and obstructionism, in my opinion, in 
terms of considering this worthy nomination. In fact, even though we 
are coming up on the 1-year mark of President Bush's nomination of him, 
he has yet to receive a hearing before the Judiciary Committee because 
my colleague, Senator Landrieu, has not turned in her so-called blue 
slip.
  I rise to make note of this, and in a few minutes I will have a 
unanimous consent to propose to the Senate to remedy this situation. I 
have also specifically invited Senator Leahy, Chairman of the Judiciary 
Committee, and Senator Landrieu, my colleague from Louisiana, to join 
us on the floor for an appropriate colloquy.
  With that introduction, I yield such time as he would consume to my 
distinguished colleague from Pennsylvania, the ranking member of the 
Judiciary Committee.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I join the Senator from Louisiana in his 
request to have a hearing and then proceed with an up-or-down vote. I 
have reviewed the record of the nominee. It appears to me that the 
nominee is qualified for the position.
  In his service as a U.S. attorney, he has already had Senate 
confirmation. But the basic proposition of having a hearing and a vote, 
I think, is very fundamental to so many pending nominees beyond the 
nominee addressed by the Senator from Louisiana today.
  I have discussed this issue on a number of occasions with the senior 
Senator from Louisiana, and she has been of the view that she ought not 
to return the blue slip, and I respect her decision. But I also respect 
the position of Senator Vitter in trying to move forward.
  It would be my hope that we could come to some accommodation, that we 
could find some way to set a timetable for a hearing, at least on that.
  Senator Vitter has advised me that he has written to both the 
distinguished chairman and the senior Senator from Louisiana and that 
there is to be a unanimous consent request. I know Senator Vitter will 
await the arrival of someone who can object because my expectation is a 
unanimous consent request will be objected to. But the issue involved 
is to raise the issue and to make the point as to what has happened and 
to try to see if there can be some accommodation, as noted by the floor 
discussion today.
  I see Senator Vitter nodding in the affirmative. In my capacity as 
ranking member on the Judiciary Committee, I would like to get these 
nominations to move forward.
  I yield the floor.
  Mr. VITTER. I thank the distinguished Senator from Pennsylvania, 
first for his service on the Judiciary Committee; it has been very 
distinguished, to serve there as many years very ably, now-ranking 
member, and specifically for his support on this nomination and others 
to try to break through the gridlock, break through the partisanship, 
move forward in a positive way for the country.
  I believe that is absolutely necessary in a number of cases, but the 
one that surely hits closest to home for me is this nomination of David 
Dugas to a judgeship in the Middle District of Louisiana. So I thank 
the ranking member for all his help and support; I know it will 
continue.
  Again, let me note I wrote to Chairman Leahy that I would be taking 
the floor this week to make the upcoming unanimous consent request. I 
did the same to my colleague from Louisiana, Senator Landrieu. As soon 
as we figured out the time that would be available, we sent them word, 
and I sincerely hope they can both join me on the floor because I think 
it would be very useful and very informative to have an appropriate 
discussion and colloquy about this case. So I certainly invite that. I 
would encourage them to accept the invitation to join me on the floor.
  Let me point out and reiterate some very important points about this 
nomination. President Bush made the nomination some time ago. That was 
March of last year. We are coming up quickly on the 1-year mark of this 
nomination. The vacancy in the Middle District has been open even a 
little bit longer, over a year.
  Because of that, a backlog of cases is quickly mounting in the Middle 
District. The Middle District is an area surrounding Baton Rouge, LA, 
the capital of the State. It has felt a huge influx of people, of 
residents, and of litigation, largely because of Hurricane Katrina.

  Because of that, because of this vacancy, judicial backlogs have been 
mounting and mounting. We are not quite to the point--and this is 
defined in law and by rules of the court--we are not quite to the point 
that it is defined as a ``judicial emergency,'' but we are quickly 
coming up to that line.
  So the people of Louisiana, the people of the Middle District are not 
being served well and properly and as quickly as they should be. This 
vacancy needs to be filled for that reason.
  Now, let us look at the man who President Bush has chosen to fill the

[[Page S945]]

vacancy. By all accounts, he is eminently qualified. Mr. Dugas is the 
sitting U.S. attorney in the Middle District. He has done a very fine 
job in that position, has won praise from many different quarters, 
particularly from law enforcement.
  He has many admirers and allies in the law enforcement community: 
Sheriffs across the State, chiefs of police, district attorneys, many 
others. They have written in to many of us about this nomination in 
strong support.
  Mr. Dugas was already considered by the Senate, of course he had to 
be, for his present job of U.S. attorney. He was considered very 
favorably. In fact, it was considered completely noncontroversial, and 
he was confirmed swiftly by unanimous consent. In that process, of 
course, my colleague, Senator Landrieu, was here at the time and was 
part of that very positive sweeping confirmation.
  As I said, for this judicial vacancy, Mr. Dugas has received the 
highest rating possible by the American Bar Association. That is a 
distinguished professional organization, it is not political, it is 
certainly not leaning to the right. Nobody would think that. They have 
rated this nominee of President Bush with their highest rating possible 
for a judicial nomination.
  Yet this languishes and languishes. In another month's time, we are 
going to be on the 1-year mark of the nomination, with this backlog of 
cases mounting, as we near a judicial emergency in the district.
  I do not think that is right. I do not think that is serving the 
people of Louisiana at all. I do not think that is serving the people 
of the country at all.
  Mr. Dugas deserves better. More importantly, the people of Louisiana 
deserve better. The people of Louisiana and of the country want us to 
act as grownups and to come together and do our work in a timely, 
respectful way. They don't think this sort of partisanship and 
obstructionism, particularly over judgeships, falls into that 
definition.
  This got particularly bad a few years ago. I was hopeful. Since I 
have been here, not because of my influence but just in general, since 
I got here, the Senate has become more responsive and more responsible 
about nominations, particularly judicial nominations. Unfortunately, 
this is a clear example in the other direction. Let's clear up this 
example. Let's move it off the list of those examples of partisanship 
and obstruction. Let's act in a reasonable--late, by now, but 
reasonable way, finally moving forward with this highly qualified 
nominee before this district gets to a state of judicial emergency, 
which is looming.
  That is my simple and reasonable request. With all that background, I 
will now propound a unanimous consent request.
  I ask unanimous consent that if the Committee on the Judiciary has 
not held a hearing on PN 349, the nomination of David Dugas of 
Louisiana to be U.S. district judge for the Middle District of 
Louisiana, and reported the nomination to the Senate by March 19, 2008, 
which would be the 1-year anniversary of his nomination being 
transmitted, that on the next calendar day the Senate is in session, 
the Committee on the Judiciary be discharged from further consideration 
of the nomination; that the Senate proceed to executive session to 
consider the nomination; that there be 1 hour of debate equally divided 
between the chairman and the ranking member of the Committee on the 
Judiciary or their designees; that upon the use or yielding back of 
such time, the Senate immediately proceed to a rollcall vote on the 
nomination; that if the nomination is confirmed, the motion to 
reconsider be considered made and laid upon the table; that the 
President be immediately notified of the Senate's actions; and that the 
Senate then resume legislative session.
  The PRESIDING OFFICER. The Chair, in my capacity as a Senator from 
the State of New Jersey and on behalf of the majority leader, objects.
  Mr. VITTER. Of course, I am disappointed--not surprised but 
disappointed--at the objection.
  I resume my plea specifically to Senator Leahy, chairman of the 
committee, and to Senator Landrieu, who has not turned in her blue slip 
and is thus the reason for the committee not even holding a hearing, 
that we move beyond this, that we have a hearing on this eminently 
qualified nominee. If there is a reason to stop the nomination, surely 
a hearing is the best venue and the best vehicle to illustrate that and 
talk about it. I hope we move beyond the pure obstructionism and 
partisanship that has us stuck in the mud with a judicial emergency in 
the Middle District looming.
  This is exactly the sort of obstruction the American people are tired 
of. They spoke clearly to this over the last several years about 
judicial nominees. Maybe we got a little better, but here we are again 
in terms of this matter and this case which is surely important to 
Louisiana. I urge all of my colleagues to work beyond this. 
Specifically, I urge the chairman of the Judiciary and Senator Landrieu 
to work beyond this. It is unfortunate that they couldn't accept my 
invitation to have a useful, informative dialog and colloquy on the 
issue on the floor. There has been no good explanation for inaction 
that I have ever heard. A lot of people would like to hear some 
discussion and explanation. I hope we will hear that soon. I hope in 
the very near future we will move toward an appropriate resolution of 
this matter, which is a hearing and a vote in Judiciary and then on the 
floor of the Senate.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Lautenberg). Without objection, it is so 
ordered.
  Mr. DORGAN. Mr. President, we are considering the intelligence 
authorization bill. My understanding is later this afternoon we will 
have, perhaps, a final vote on the bill. There are many important 
provisions in the bill. Many of us who have been here for some while--
from the destruction of the World Trade Center and the murder of 
thousands of innocent Americans on 9/11, where terrorists used 
airplanes loaded with fuel as guided missiles to bring down the World 
Trade Center and attacked the Pentagon and through the subsequent 
period leading up to the Iraq war--know we have had all kinds of 
difficulties with the intelligence community.
  We have a lot of men and women risking their lives all around the 
world every day collecting intelligence, and yet most of us have been 
through top secret briefings that we later find out to have been 
absolutely false, wrong, just standing facts on their head.
  So it is critically important for this country to have a good system 
of intelligence gathering and good analysis of intelligence if we are 
going to prevent the next terrorist attack against our country.
  It is a difficult world out there. We have terrorists who would like 
nothing more than to kill Americans and attack our country. So passing 
an intelligence authorization bill that provides the resources, 
provides a structure for a good system of intelligence is very 
important to the safety and the security of this great country. That is 
what the debate is about. That is what the upcoming vote is about.

  But there is one provision that has caused a special concern for some 
in this Intelligence reauthorization bill, and I want to talk about it 
a bit. That is the provision that deals with the subject of torture.
  One of the most important provisions in this legislation is one that 
makes the Army Field Manual provisions on interrogations applicable to 
all U.S. Government personnel. Right now, those provisions which forbid 
torture apply only to the military. Those provisions do not apply to 
some others that are conducting interrogations on behalf of our 
Government. That means that some others who work for the U.S. 
Government--the CIA, for example; contractors, for example--may use 
interrogation techniques which may constitute torture and which are 
forbidden in the Army Field Manual. This legislation incorporates the 
Army Field Manual provisions on interrogations and says it applies to 
all personnel from the United States.
  Now, why is that important? Because it makes a vote for this bill a 
vote

[[Page S946]]

against torture. It is a vote that says American values and torture are 
not in any way compatible. Voting for this bill is a vote for a country 
that has been looked up to throughout the world because of our system 
of values. It is that simple, and it is that important.
  Let me say that I acknowledge today there are tyrants and despots and 
dictators and a lot of evil people in this world and throughout history 
who have used and have always justified the use of torture--but not 
this country. We have not done that, with the exception of some recent 
disclosures I will talk about.
  Some people argue that this issue of torture is especially about 
waterboarding. Waterboarding is a more antiseptic term. It should be 
described as water torture. Some people say that: Well, we have 
waterboarded. In fact, it has been disclosed by administration 
officials that we have waterboarded--which is water tortured--three of 
the most dangerous, despicable terrorists who attacked this United 
States, and we only did it at a time when we thought they would provide 
information or had information that would allow us to avoid other 
catastrophic attacks, and we need to be able to do that again in the 
future, if necessary, if some despicable terrorist is planning an 
attack on this country.
  Let me talk a little bit about what we are describing here. 
waterboarding is a practice that has been around for centuries, and it 
has been known--widely known--as torture for a long time. In fact, 
waterboarding has been prosecuted as torture and as a war crime on many 
occasions in history. Trying now to claim it is legal, that it is not 
torture, or that it is something other than torture doesn't square with 
the facts. Second, history teaches us that torture is not effective. 
Aside from the question of morality, it is not effective. Those who 
know tell us that those being tortured will often tell you anything 
they think you want to hear in order to have the torture stopped.
  The provisions in the Army Field Manual set forth the many approved 
methods to get reliable information, but those methods do not include 
what is defined as torture.
  The question about torture is: If you decide that torture is 
appropriate and available as a tool for our country to use, why stop at 
waterboarding? There are many other forms of torture that are even more 
heinous, more abusive: putting people in boiling water, pulling out 
their fingernails, amputations, electric shock. Justifying torture is a 
very slippery slope that doesn't have a pleasant end for a country that 
cares about its system of values. We don't do that and haven't done 
that. We haven't been engaged in torture as a country for a couple of 
centuries because we don't belong to that group of people in the world 
who want to do damage and want to commit mayhem and want to kill 
others. We hold ourselves to a higher standard in this country--always 
have--a higher standard, a standard that all of us can be proud of.
  It is interesting when you think back to the Cold War. We won the 
Cold War, but we didn't win it with bombs and bullets; we won it with 
American values and American standards, and American rights. The other 
evening I saw a very large portion of the Berlin Wall that had been 
transported to the United States of America. It was a wall that kept 
the free world out and it was a wall that kept those in East Germany 
behind it, living in oppression, living in a circumstance where they 
were denied freedom. I was thinking again about the Cold War and the 
fact that we didn't win the war with bombs.
  I have in my desk something I have had there for a long period of 
time, if I might show it by unanimous consent. This is a piece of a 
wing from a Soviet Backfire bomber. This bomber very likely carried a 
nuclear weapon that would have been used against the United States. 
Actually, we sawed part of the wing off this Soviet bomber because when 
the Cold War was over, we reached an agreement to destroy delivery 
systems. I have also in my desk a hinge. This hinge used to be on a 
missile silo that held a missile with a nuclear warhead on its tip 
aimed at a U.S. city. It was in Ukraine. Where that missile used to 
sit, there are now sunflowers growing. It is now a sunflower field. The 
missile is gone, the warhead is gone. This bomber is now in pieces.
  We won the Cold War. And we have agreements with Russia, Ukraine and 
other former Soviet republics under which we help destroy their Cold 
War weapons and delivery systems. But we didn't win the Cold War with 
bombs; we didn't blow up that Backfire bomber. We didn't blow up the 
Soviet missile silo with one of our missiles. We won the Cold War 
because of our values. American values won the Cold War.
  What are those values? Well, people are free. They believed what they 
said. They believed what they wanted. The Government had to respect the 
rights of everyone in this country. We were a country that had a 
government based on a Constitution that had a Bill of Rights that 
applies to all Americans. Our country stood for liberty, human rights, 
human dignity, the rule of law. That is what won the Cold War. Those 
values were so strong that in the middle of the Cold War with the 
Soviet Union, those values shone a light of hope into the darkest cells 
and the deepest part of the Soviet Union. In the gulag prisons, in the 
outermost reaches of Siberia, those values reached those cells. 
Millions of prisoners had been held, often in solitary confinement, 
simply for thinking and speaking freely. Many were there for years; 
some swept off the streets, never to reappear again; many tortured into 
false confessions, and many murdered. Some survived, however, and 
talked about their experience, and about how important the idea of 
America was to them, how important the idea of freedom was to those who 
had been detained and had not been able to experience freedom, and to 
those who had been tortured by a country that didn't want them to be 
free. It was a clear and vast difference between America and the Soviet 
Union. As imperfect as we are, the basic foundation and bedrock of 
values in this country is what shined so brightly in the middle of the 
Cold War. It wasn't the amount of bombs and bullets each country had; 
it was what we stood for.

  When the Berlin Wall fell in 1989, the Iron Curtain was lifted, all 
of those police states crumbled, and every single one of them became 
free countries that provided freedom to their citizens. Every single 
one chose freedom and democracy. That is how powerful the idea and the 
values of this country have been.
  What I say today is we have to regain the moral high ground and 
describe our values in circumstances that make it clear that we do not 
subscribe to some things others might. We do not support torture. We 
will not support torture. It is not what our country is about. From the 
very beginning in this country, America has held itself to a higher 
standard. George Washington, leading the Continental Army--think about 
it: 5,000 soldiers in the Continental Army going up against a British 
Army of 50,000 soldiers, and our 5,000 were shopkeepers and farmers; 
5,000 against 50,000, and we prevailed over time. George Washington, 
after a large number of his troops were captured and slaughtered--he 
saw the Hessian mercenaries kill unarmed prisoners. After that, George 
Washington and his troops captured a large number of British soldiers, 
and many of the troops justifiably wanted revenge. They sought to 
execute them just as they had seen done to unarmed American prisoners. 
George Washington refused. He refused to treat the prisoners as his 
soldiers had been treated. He insisted America was different. He said: 
We are different, and we are going to treat people the way they should 
be treated, not the way they treated us, and that has been our 
birthright.
  That is why this discussion right now is so very important. It goes 
to the core of what we are and who we are as a nation. Quite simply, we 
have to say unequivocally: We are against torture. We, the Congress of 
the United States, must say that torture is un-American, simply because 
it is. No hair splitting, no fancy words, no legal distinction about 
what might or might not be torture. That will begin to restore, I 
think, our rightful place if we say we are against torture.
  Let me briefly continue to say that being against torture is being 
for an America that is better than its enemies. It is that simple. I 
said we fought and won the Cold War after many decades. We faced 
nuclear annihilation during that period. We faced a

[[Page S947]]

ruthless enemy all around the world, and yet we won that war. We did 
that with our reputation, our values, and our moral authority intact. 
It was and still is, I think, a beacon of hope around the world.
  Those values and that moral authority, I believe, are what is going 
to allow us to prevail in the battle against the terrorists who wish to 
do harm--not just here but in other parts of the world as well. We 
need--and I believe the world needs--an America that people respect and 
admire, an America that is different, that begins in a manner that is 
loud and clear saying: We do not torture. This will empower our country 
and make us stronger.
  I was very disappointed last week to hear the head of our 
intelligence service, and then to hear a spokesperson for the White 
House, say: Yes, we have waterboarded. They used the term--the right 
term--water torture; yes, we have done that. We did it because we must, 
and we reserve the right to do it again. It is exactly the wrong thing 
for this country. It is not just me saying that. I am not just quoting 
George Washington who has established the higher standard, and God 
bless him for doing so. Let me read what General Petraeus said, who 
leads the American troops in Iraq right now. Our most senior commander 
in Iraq, GEN David Petraeus, sent a letter to every Soldier, every 
Sailor, every Airman, Marine, and Coast Guardsman serving in Iraq. He 
said this:

       Our values and the laws governing warfare teach us to 
     respect human dignity, maintain our integrity, and do what is 
     right. Adherence to our values distinguishes us from our 
     enemy.
       This fight depends on securing the population, which must 
     understand that we--not our enemies--occupy the high ground.

  Continuing to quote:

       Some may argue that we would be more effective if we 
     sanctioned torture or other expedient methods to obtain 
     information from the enemy. They would be wrong. Beyond the 
     basic fact that such actions are illegal, history shows us 
     that they also are frequently neither useful nor necessary.

  That is General Petraeus, who leads our troops in Iraq, and says 
those who believe that torture is appropriate would be wrong.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. DORGAN. I am happy to.
  Mr. DURBIN. I thank the Senator for his comments, and I thank Senator 
Feinstein for the support language. Some argue that this language was 
not necessary, that the McCain amendment, which passed 90 to 9, made it 
clear that whether you are in uniform or not torture is not the policy 
of the United States. Others argue that the Geneva Conventions had 
already made that clear for decades before it was brought into question 
by this administration.
  I ask the Senator from North Dakota if he struggles with the same 
thought that I do. At some point after World War II, we prosecuted 
Japanese soldiers who tortured American prisoners of war using 
waterboarding and charged them with war crimes; and we are now at a 
point in our history, some 60 years later, where General Hayden 
testifies under oath before Congress that our Nation engaged in the 
same conduct, at least three times previously, when it came to 
waterboarding. I wonder if the Senator from North Dakota struggles with 
the same concept of justice as was applied after World War II and as it 
appears to be applied by this administration?
  Mr. DORGAN. Mr. President, that is a significant contradiction for 
our country. I was as surprised and disappointed as the Senator from 
Illinois was to have one of the leading officials in this 
administration testify under oath that, yes, in fact, waterboarding had 
been used. It was in fact legal, they said, and it would be used again, 
if necessary, and could be sanctioned by the President of the United 
States.
  The Senator is correct that this Congress passed a piece of 
legislation that defined waterboarding as torture and prohibits it, and 
the President at the White House, in a signing statement accompanying 
the legislation, essentially said: It doesn't matter so much what the 
legislation says; what matters is what I will decide to do.
  Now, we have a disclosure--a public disclosure--to the world that 
this country has employed a technique that has, for hundreds of years, 
been described as torture.
  I know and understand the passions that exist. I understand what I 
would like to see done to Osama bin Laden when he is captured. I 
understand the passions. But I also understand that what has given this 
country a different standing in the world is our value system.
  Again, let me, if I might, for the Senator from Illinois, refer back 
to George Washington, which I described earlier before the Senator came 
on the Senate floor. When I think of the odds facing the Revolutionary 
Army, it is pretty unbelievable. The Senator from Illinois and I were 
at Mount Vernon recently, and we saw a display describing that at one 
point there were 5,000 soldiers in the Continental Army and 50,000 
British soldiers. That was the fight. Our soldiers were shopkeepers and 
farmers, ordinary folks off the street. Theirs were trained British 
soldiers. So it was 5,000 to 50,000. George Washington and his soldiers 
saw members of the Continental Army captured and then, unarmed, 
murdered, executed by the British soldiers and the Hessians.
  Washington's soldiers, when capturing some British soldiers, wanted 
to do the same thing. But he said, nothing doing, we are not going to 
do that. George Washington said that we are different and we are going 
to treat people the way they should be treated, not the way they 
treated us.
  When you think of that set of standards and values and then wind your 
way through the discussion in recent days, and to have a top U.S. 
official say, yes, we have used waterboarding--and it is widely 
acknowledged as torture--we used it and it was legal and we intend to 
use it again if it is necessary.
  Mr. DURBIN. I am sure the Senator is aware that this questionable 
chapter in American history--which I think will haunt us for 
generations to come--also involves people other than the general who 
testified. There is an individual who has been nominated by the 
President to be head of the Office of Legal Counsel, Steven Bradbury. 
He has been rejected four times by the Senate. The President said last 
week that he was the most important appointment. A month or two before, 
he told the majority leader he didn't want to talk about any other 
appointments until Mr. Bradbury was approved. Bradbury's tenure in the 
Office of Legal Counsel goes back to the period of time when this 
administration was rewriting torture policy in America--a policy which 
they at one point accepted and later rejected. Many of us have said if 
Mr. Bradbury is coming before us for consideration, we want to see 
those memos written--memos which James Comey, former Deputy Attorney 
General, said the United States would be ashamed if they ever became 
public.
  I say to the Senator from North Dakota that not only do we have to do 
our part, but this administration has to do its part as well. Those who 
were engaged in this questionable--if not embarrassing, if not 
shameful--conduct involving torture policy must be held accountable to 
the administration. They are certainly not deserving of a promotion, 
which is what they are suggesting for Mr. Bradbury.

  I ask the Senator from North Dakota, reflecting on what this 
administration has been through, the many times they have told us 
torture was not being used, that waterboarding was not being used, and 
now with this disclosure of at least three instances admitted under 
oath, I wonder if even this legislation--including the Feinstein 
amendment--would restrain this President in the future, in the next few 
months, as we face challenges that we cannot even imagine at this 
moment.
  Mr. DORGAN. Mr. President, it is far more than disappointing to me, 
and I think to a lot of people in this Chamber and across the country, 
that the President received advice from people who work for him in the 
White House and have said this under oath and on television and in 
every other venue that under the Commander in Chief powers, the 
President has the power to do almost anything. He can put out a drift-
net and collect every communication under every condition--e-mails and 
telephone calls. Go to the documentary recently done, entitled ``No Way 
Out'' and view the interviews by this administration's officials, who 
take the position that this President has the authority as Commander in 
Chief to do almost anything. That includes this issue of torture.

[[Page S948]]

  The point I make is that we have a piece of legislation that we will 
vote on later this afternoon. Included in that legislation is a 
provision that says the Army Field Manual will describe the conditions 
of interrogation of enemy combatants. I just read what General Petraeus 
said to all of his soldiers--that torture is inappropriate and will not 
be allowed. The Army Field Manual prevents torture. What we are saying 
in the conference report that we will vote on in an hour or two is that 
the Army Field Manual's restrictions on torture apply to all U.S. 
Government officials and contractors doing interrogation.
  My concern about this administration--and I think it is echoed by the 
Senator from Illinois--is that they have decided they are not bound by 
the law, they are not bound by what the Congress enacts. They are doing 
other sorts of dances with signing statements and interpretations of 
the Constitution to say that under the Commander in Chief powers they 
can do almost anything if they believe there is some kind of a threat. 
That is a very dangerous mind set, in my judgment, for any 
administration at any time.
  Mr. DURBIN. If the Senator will yield for one last question, I thank 
him for that quote from President Washington which talked about the 
terrible circumstances the Continental Army faced and how, in those 
days before there even was an America, they would establish a different 
set of values in this part of the world. He admonished his troops to 
live by those values.
  I am sure the Senator knows that each year our State Department 
publishes a report card on human rights of nations around the world. We 
are critical of nations that engage in torture. We are critical of 
nations that engage in conduct that is inconsistent with our values. I 
say to the Senator from North Dakota, how can we maintain that moral 
status and moral authority if we are found compromising something as 
fundamental as torture and waterboarding and the Geneva Conventions, 
which guided us for decades?
  Mr. DORGAN. The Senator answers the question by phrasing the 
question. Let me conclude by saying this: We have 43 top retired 
military leaders of the U.S. Armed Forces who have written a letter. As 
one, they say:

       We believe it is vital to the safety of our men and women 
     in the uniform of the United States not to sanction the use 
     of interrogation methods it would find unacceptable if 
     inflicted on our captured Americans.

  Today there are men and women fighting for this country. If captured, 
how would we react if the leader of a group that captured them says: We 
are torturing them because we feel we can get information, and we can 
only get it by torturing them, and we believe torture is legal. We are 
going to waterboard them, we believe it is legal. We have already done 
it, and we intend to do it again if we need to.
  How would we feel if that were somebody else talking about how they 
are going to treat American soldiers? That is unacceptable. We have a 
country with a higher moral purpose and standards that have served us 
for two centuries, and we should not obliterate that just because we 
have some people in this administration who believe it is appropriate. 
It is not.
  John McCain knows that. He led the fight to put a provision in law 
that prohibits torture. This President did a signing statement next to 
the legislation he signed, saying: I don't have to abide by it if I 
don't feel like it.
  That is a scary thought in a democracy. I hope this afternoon we will 
register a very strong vote in support of this conference report and 
against the concept of our country engaging in torture.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, I ask unanimous consent that the vote on 
adoption of the conference report to accompany H.R. 2082, the 
Intelligence Authorization Act, occur at 4:30 p.m. today; that no 
points of order be in order; and that the time until then be equally 
divided between the two leaders or their designees.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. So there is an equal balance of time in the next--we have 2 
hours. I think it should work out fine. Either side will have 
approximately an hour, so that should work out well.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. WHITEHOUSE. Mr. President, I want to follow the lead of the 
distinguished Senator from North Dakota and my friend, the Senator from 
Illinois, and continue on this question with the determination the 
Government has made that waterboarding is legal.
  It is a question that matters so much to wary and watchful nations, 
disheartened and distrustful in the wake of 7 years of failed 
leadership and broken promises. It is also a question that matters 
immensely to the billions of men, women, and children around the globe 
who look to this country, the United States of America, as a beacon of 
light that shows the way nations ought to act and the way the world 
ought to be. It is a question that matters to the American people who 
are sick of asking: Is it wrong? and being told: Well, it depends.
  The people of America still do not know how this came about--in 
particular, how the Department of Justice came to approve this sordid 
technique. I believe we are in a position where the concerns we have 
about torture overlap with some of the concerns we have had in this 
Chamber about the independence and integrity of the Department of 
Justice. Here is what we know.
  We know that Attorney General Michael Mukasey has said that ``the CIA 
sought advice from the Department of Justice, and the Department 
informed the CIA that [waterboarding's] use would be lawful under the 
circumstances and within the limits and safeguards of the program.'' We 
know in 2002, John Yoo of the Office of Legal Counsel drafted a memo, 
later approved by Assistant Attorney General Jay Bybee, which reads, in 
part:

       There is a significant range of acts that, though they 
     might constitute cruel, inhuman, or degrading treatment or 
     punishment, failed to rise to the level of torture.

  As Evan Wallach of the Columbia Journal of Transnational Law has 
written:

       None of the Memo's analysis explains why waterboarding does 
     not cause physical or psychological pain sufficient to meet 
     the criminalization standards it enunciates.

  We have asked for further clarification, but in a hearing before the 
Judiciary Committee, Attorney General Mukasey refused to comment on the 
legality of waterboarding because the technique was not currently in 
use and because of what he described as ``the absence of concrete facts 
and circumstances.'' Even though the Department of Justice is now 
conducting an investigation into whether tape recordings of alleged 
waterboarding sessions were improperly destroyed, they would not look 
into whether the conduct on the tape was in and of itself improper.
  The argument is that no one who relies in good faith on the 
Department's past advice should be subject to criminal investigations 
for actions taken in reliance on that advice, which raises the question 
within the question: How did that advice come to be given in the first 
place?
  How did the best and brightest of the Department of Justice overlook 
the facts of the history of waterboarding prosecutions in which the 
United States was directly involved, and why was such guidance approved 
when contravening precedents appear clearly to be in evidence?
  Mr. President, I commend to my colleagues the article written by Evan 
Wallach, Columbia Journal of Transnational Law, entitled ``Drop by 
Drop: Forgetting the History of Water Torture in U.S. Courts.'' The 
full cite is 45 Columbia Journal of Transnational Law 468 (2007).
  Mr. President, the U.S. Government long considered waterboarding a 
form of torture, prosecutable as a war crime and punishable 
accordingly. This history includes war crimes prosecutions against 
Japanese soldiers who waterboarded American aviators in World War II, 
the use of water torture by U.S. soldiers in the Philippines, and even 
an incident of waterboarding by a local sheriff prosecuted by the 
Department of Justice itself. Let me start with that.
  I am reading from the Wallach law review article in which it reports:

       In 1983, the Department of Justice affirmed that the use of 
     water torture techniques was indeed criminal conduct under 
     U.S. law.


[[Page S949]]


  A sheriff in a Texas county waterboarded prisoners in order to 
extract confessions. Count one of the indictment asserted that the 
defendants conspired to--and this is a quote from the Department's own 
indictment--``subject prisoners to a suffocating `water torture' ordeal 
in order to coerce confessions. This generally included the placement 
of a towel over the nose and mouth of the prisoner and the pouring of 
water in the towel until the prisoner began to move, jerk, or otherwise 
indicate he was suffocating and/or drowning.''
  The sheriff and his deputies were all convicted by a jury under count 
one. It didn't end there. The case then went up on appeal, and the 
United States Court of Appeals for the Fifth Circuit rendered a 
decision. I have in my hands United States of America v. Lee, 744 F.2d 
1124, decided in 1984, in which they gave appellate review of these 
convictions.
  Finally, at sentencing, U.S. District Judge James DeAnda's comments, 
according to the article, were ``He told the former Sheriff that he had 
allowed law enforcement to fall into `the hands of a bunch of thugs. 
The operation down there would embarrass the dictator of a country.' '' 
That is the opinion of a U.S. district court judge at a sentencing on 
waterboarding.
  How is it that when the Department of Justice, the Office of Legal 
Counsel were asked for their opinion, they were able to write this 
opinion? I have it in my hand. This is the unclassified version. It has 
been substantially redacted. Even so, it is 50 pages long--50 pages 
long. They did 50 pages of legal research and could not find a U.S. 
Court of Appeals case in which the Department of Justice itself had 
brought the charges? Here is the case, United States v. Lee. It 
describes the facts:

       Lee was indicted along with two other deputies, Floyd Baker 
     and James Glover, and the County Sheriff James Parker, based 
     on a number of incidents in which prisoners were subjected to 
     a ``water torture'' in order to prompt confessions to various 
     crimes.

  Throughout the rest of the opinion, these are referred to as 
``torture'' and ``torture incidents.''
  All one has to have is Lexus or Westlaw and plug in the words ``water 
torture'' and find this case. How is it possible that the Office of 
Legal Counsel could not have found this? How is it possible that they 
could have also missed what the Columbia Law School was able to find--a 
telegram from Secretary of State Cordell Hull to the Japanese 
Government objecting to the mistreatment of American prisoners, which 
included specifically waterboarding and describing the ``brutal and 
bestial methods of extorting alleged confessions''? That is our 
Secretary of State in an official communication to the Japanese 
Government describing, among other tortures, water tortures as brutal 
and bestial methods to extort alleged confessions. How could they not 
have found that? How could they not have found the charges the Senator 
from North Dakota referred to in which Japanese soldiers were brought 
up on charges in front of military tribunals--military tribunals 
staffed with American judges, military tribunals staffed with American 
prosecutors--for waterboarding American prisoners?
  Here are some examples. One of the Japanese officers was named Hata 
and the article describes the charges and specifications against 
Officer Hata, which included this:

        . . . Hata did, willfully and unlawfully, brutally 
     mistreat and torture Morris O. Killough, an American Prisoner 
     of War, by beating and kicking him, by fastening him on a 
     stretcher and pouring water up his nostrils.
       Similarly, Hata did willfully and unlawfully, brutally 
     mistreat and torture Thomas B. Armitage, William O. Cash and 
     Monroe Dave Woodall, American Prisoners of War, by beating 
     and kicking them, by forcing water into their mouths and 
     noses. . . .

  The charge and specifications against Officer Asano were:

       Asano did, willfully and unlawfully, brutally mistreat and 
     torture Morris O. Killough, an American Prisoner of War, by 
     beating and kicking him, by fastening him on a stretcher and 
     pouring water up his nostrils. . . .
       Asano did, willfully and unlawfully, brutally mistreat and 
     torture Thomas B. Armitage, William O Cash and Munroe Dave 
     Woodall, American Prisoners of War, by beating and kicking 
     them, by forcing water into their mouths and noses. . . .

  The charge and specifications against Officer Kita were again, 
``willfully and unlawfully, brutally mistreat and torture John Henry 
Burton, an American Prisoner of War, by beating him and by forcing 
water into his nose.''
  Over and over the testimony describes exactly what we know as 
waterboarding. The charges and specifications by this tribunal staffed 
by American officers describe that they did willfully and unlawfully 
commit cruel, inhuman, and brutal acts and atrocities and other 
offenses, including strapping them to a stretcher and pouring water 
down their nostrils, by holding the prisoner's head back and forcing 
him to swallow a bucketful of sea water over and over and over.
  How could they have missed it? How could they have missed it? How 
could they miss the decision on point by the U.S. Court of Appeals for 
the Fifth Circuit?
  What else do we know about the Office of Legal Counsel? We know that 
the conditions there were pretty ripe for abuse. We know they were 
doing this in secret, protected from public scrutiny, protected from 
peer review, protected from critical analysis under the veil of 
secrecy, deep secrecy in which they were operating, coming up with the 
theories as they pleased, thinking they would never see the light of 
day. So they did not have to do their homework. Somebody might have 
done a little research and found the Fifth Circuit decision on point, 
but, no, they did not need to.
  It is part of a pattern because, as the Presiding Officer will 
recall, when I was offered the chance to read the secret Office of 
Legal Counsel opinions related to the warrantless wiretapping program, 
I went and took some notes, and when I got back here, I eventually was 
able to get them declassified. They described other interesting 
theories that grew in that hothouse of legal ideology, protected from 
the glare of public scrutiny, ideas such as the President is not 
obliged to follow Executive orders. He is not obliged to give anybody 
notice that he is violating Executive orders. He can live in a parallel 
universe in constant violation of his own Executive orders and nothing 
is wrong with that, other than, of course, the fact that it completely 
degrades and destroys the entire structure of Executive orders as a law 
function of the United States of America.
  Another argument is that under article II, the President's power as 
Commander in Chief, he has the authority to determine what his powers 
are. Think about that for a moment. They assert article II gives them 
the authority to decide what the scope of his article II powers are. I 
seem to remember a decision called Marbury v. Madison saying it is 
``emphatically the province of the judicial department to decide what 
the law is.''
  The last one, my personal favorite, is that the Department of Justice 
is bound by the legal determinations of the President. It is a good 
thing that was not the case when President Nixon was the President and 
made the legal determination if the President does it, it doesn't 
violate the law.
  So what on Earth has been going on at the Office of Legal Counsel, an 
office that used to be distinguished for its probity, for its analysis, 
for its scholarship, an office on which the Department of Justice 
relies?
  Just as Americans rely on the Department of Justice to provide 
guidance in our Government, to provide a moral compass within the 
Department of Justice, the Office of Legal Counsel is supposed to be 
the place where they try to get it right. How could they try to get it 
right when they cannot even find a Fifth Circuit Court of Appeals 
decision on water torture when you are looking up whether it is 
illegal? If I were a partner in a law firm and a junior associate came 
to me with a memo such as this that had missed the case on point, do 
you think he would have much of a career? I don't think so. It is a 
fatal failure of legal analysis. And yet, where there is supposed to be 
the very best at the legal counsel of the Department of Justice, they 
missed all of it. If there has been a systematic breakdown in this 
institution of Government long known for probity and scholarship, if it 
has been captured and behind a veil of secrecy rendered a political 
ideological tool, that is a matter of very legitimate public concern.
  I am pleased to say Senator Durbin and myself have written to the 
inspector general of the Department of Justice and to the Office of 
Professional

[[Page S950]]

Responsibility of the Department of Justice to look into exactly that 
matter.
  I thank the Presiding Officer for his patience with me. I thank the 
distinguished Senator from Florida for his patience.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, we have heard one of the best--
I cannot use ``oration'' because it was far superior. It was one of the 
best explanations of how the Department of Justice has gone awry by the 
Senator from Rhode Island. I commend the Senator from Rhode Island. I 
thank him for his legal analysis, and I wish to underscore what he has 
said, that the reason the Department of Justice was ignoring that Court 
of Appeals decision, the reason the Department of Justice was ignoring 
all of the history of the record that has been built over time, of 
which the Senator cited the statements from World War II, the reason 
all of that has been ignored or purposely missed is because the 
Department of Justice became politicized so that politics became the 
rule of the day instead of the rule of law.
  In a nation that recognizes it is a nation of law, not a rule of men, 
when politics is inserted for law, then we get into the trouble we have 
gotten into. That is what brings us here.
  I have already addressed this subject of why my conclusion, a long 
deliberative process of coming to the question, that we ought to etch 
into law the Army Field Manual as the standard by which the 
intelligence community will carry out their interrogations. That ought 
to be the law.
  I thank the Senators who have spoken in favor of this legislation. We 
are going to have a chance to vote on it pretty soon. Each of us can 
determine what we think ought to be representative of America, if it 
ought to be torture or not. We are clearly going to have an opportunity 
to say that because we are going to vote on a proposed law that says: 
Is torture going to be the standard for America?
  I wish to speak on another subject, so I guess the appropriate 
parliamentary procedure is for me to ask consent to speak as in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Rape and Sexual Assault Investigations

  Mr. NELSON of Florida. Mr. President, thus far, the Department of the 
Army has acknowledged that there have been 124 incidents of sexual 
assault against contractor and military personnel in Iraq which are 
currently under investigation. We know of only three of those cases 
that are now being considered by the Department of Justice and, 
therefore, the Department of Justice will not respond to my entreaties 
about this investigation because they say it is an ongoing criminal 
investigation.

  However, in other cases, we have gathered some facts, and these facts 
have been quite telling. There does not seem to be a standard to 
protect female contractors or military personnel from sexual assault in 
Iraq under the jurisdiction of the U.S. Army. The 124 cases of sexual 
assaults of both contractors and military personnel have been 
acknowledged just under the Department of the Army. The question is, 
under the other branches of the service whose contracts are being 
administered by civilian contractors, how many are there; and are there 
similar cases in the other theater of operations--Afghanistan as well 
as in Iraq?
  What we also know from the facts we have gathered thus far is the 
problem is not within the U.S. military nearly so much as it is among 
contractor personnel because there is a nebulous set of regulations as 
to how it is to be handled on the reporting of a rape. Untold numbers 
of sexual assaults have been committed in Iraq, and the Departments of 
Justice, Defense, and State are providing very little information on 
whether they have been prosecuted. It is time we have this information.
  Last December, I wrote to the Secretary of Defense asking him to 
launch an investigation by DOD's inspector general into the rape and 
sexual assault cases in both Iraq and Afghanistan. I sent similar 
letters to the Secretary of State regarding the investigations carried 
out under the Bureau of Diplomatic Security, and I requested that the 
Attorney General update me on the status of the related criminal 
investigations. I asked whether and why evidence in the sexual assault 
cases was turned over to the private firms.
  I got into this when one of my constituents in Tampa, FL, came forth 
and told about the assault case. This had followed a Texas case that 
had been elevated to the public sphere. Apparently, one of these women 
was assaulted, then went to see the doctor, and a rape kit was prepared 
by the military doctors. That kit would have the evidence of the rape, 
and it was turned over to the civilian contractor. Suddenly, the rape 
kit disappeared.
  So the question is, what steps has the Department of Defense taken to 
ensure the full investigation and prosecution of these cases?
  In the meantime, the Department of State has told our office that 
diplomatic security has investigated four cases. One of them was the 
Texas lady, and that was where a contractor personnel assaulted another 
contractor personnel. Another involved a State Department employee who 
allegedly assaulted a woman employed by a contractor--in this case KBR. 
Then another case involved two State Department employees. According to 
the State Department, three of the cases were referred to the 
Department of Justice for investigation and possible prosecution.
  Recently, our Senate staff met with representatives of the Department 
of Defense IG's office, and we asked them to brief us because of the 
response received from the Department of Defense, which certainly did 
not answer my questions. The inspector general's office stated that, 
and this is what blew our mind, the Army Criminal Investigation Command 
has investigated 124 cases of sexual assault. Now, that is just the 
Army, and that is just in Iraq. And that is just in the 3 years of 
2005, 2006, and 2007. So what about the other services and what about 
Afghanistan?
  So this naturally leads me to question whether there could be 
hundreds of additional investigations going on about contractor 
personnel--specifically in the ones that have come to us, it was the 
contractor KBR--and it suggests that perhaps there could be many 
assaults that have not been investigated at all. And because the 
inspector general's office would not provide information on the 
disposition of these investigations, it certainly is unclear whether 
there has been any prosecution of these within the military or the 
criminal justice systems, or whether it has been dealt with 
administratively.
  Now, one of my Florida constituents was, and I will use the word 
advisedly, allegedly sexually battered in Iraq in 2005. And although 
the Naval Criminal Investigative Service was supposed to be 
investigating her case, they will not even say anything about the basic 
matters of the case because, the Navy says:

       Law enforcement records are exempt from disclosure at the 
     time requested if it can be reasonably expected to interfere 
     with the enforcement proceedings.

  I think we in this Congress, we in the Senate, and those of us on the 
Senate Armed Services Committee and the Senate Foreign Relations 
Committee, certainly have an obligation to investigate. Because cases 
such as this can languish far too long without any information from the 
Government coming forth in order to protect these individuals.
  So I have asked that our office follow up with the Defense 
Department, with the following detailed questions: The actual numbers 
of the sexual assault cases reported since 2001 in Afghanistan and 
since 2003 in Iraq and the disposition of each case. I have asked to 
have the information of the service components or the Government 
agencies involved in each resulting investigation. I have asked for the 
status of the persons involved in each case--in other words, I want to 
know whether they are Active military, U.S. Government civilian 
employees, contractor employees or are they an Iraqi or Afghani 
national.
  I have asked for an explanation of the U.S. jurisdiction or the 
investigative authority for sexual assault allegations in both those 
areas in which we are engaged--Iraq and Afghanistan. And I have asked 
for a clear explanation of the rules, regulations, policies, and 
processes under which sexual assaults are investigated, evidence is 
obtained, and responsible individuals are held accountable. I have also 
asked

[[Page S951]]

for a clear explanation of how the Department of Defense divides 
authority among all its various investigative arms in these sexual 
assault cases.
  I have had to ask these questions because DOD and the Department of 
State have not been forthcoming. Yet what is being told by some of 
these assault victims is absolutely horrifying. For example: One female 
contractor employee, during cocktail conversation, suddenly, totally, 
passed out. Apparently, her drink had been spiked. She awoke to find 
out she had been assaulted many times. Upon seeing a military doctor, 
in fact, that was confirmed and the rape kit was prepared. But when the 
rape kit was turned over to the contractor, it amazingly disappeared. 
The evidence disappeared. That contract employee then, upon asking 
questions, was locked in a container and could not get out of the 
container to go and tell her story to other personnel of her 
contractor, and she only got out because she was able to persuade 
someone to let her use a cell phone to call her father back in the 
United States. That is how she got out of her confinement.
  Now, if all of that is true, there is simply no excuse for this. But 
what we need to determine is the truth. It is a shame that the senior 
Senator from Florida has to come to the floor of the Senate to elevate 
this issue in order to say to the Department of Defense and the 
Department of State that we want the answers to our questions.
  I have asked the questions. I expect, on behalf of the Congress of 
the United States, that we will get the answers.
  I yield the floor.
  Mr. President, I ask unanimous consent that the time during the 
quorum be equally divided between the two sides.
  The PRESIDING OFFICER (Mr. Cardin). Without objection, it is so 
ordered.
  Mr. NELSON of Florida. Mr. President, I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. FEINSTEIN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to speak for 
up to 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. I spoke earlier this morning, so I will be brief.
  It would appear that the Senate is poised to pass a measure that 
would end the debate over torture in our Nation. It would require the 
CIA to follow the Army Field Manual when it comes to interrogations of 
detainees, and it would create a uniform standard for interrogation 
across the Government. It would prohibit waterboarding and certain 
other coercive interrogation techniques. I deeply believe it will go a 
long way toward restoring our Nation's credibility.
  I have spoken with experts on interrogation, numerous retired three 
and four star generals, and human rights leaders. From our discussions, 
I am absolutely convinced that we must have a uniform standard for 
interrogation of detainees across the Government. That is what putting 
the CIA under the Army Field Manual would do.
  This debate is about values. We are a nation of values, and we 
believe in the rule of law. It is fair to say that America has been 
diminished around the world. Our standing is at an all-time low, not 
only among our allies but also our enemies. This comes from Abu Ghraib. 
It comes from Guantanamo. It comes from renditions, and it comes from 
black sites. It comes from waterboarding, a technique used during the 
Spanish Inquisition to get religious dissenters to publicly disavow 
their beliefs.
  Let me give one example of why a clear, single standard for all 
detainee interrogation is needed.
  Until a couple of weeks ago, the executive branch refused to admit 
that it had waterboarded anyone.
  Then last week, at a public hearing, General Hayden stated that the 
CIA has waterboarded three detainees: Abu Zubaydah, Abd al-Rahim al-
Nashiri, and Khalid Sheikh Mohammed. General Hayden said this was done 
in the past and would not be used in the future.
  In fact, General Hayden said that waterboarding itself was no longer 
necessary. These were two major revelations. The U.S. Government had, 
in fact, authorized waterboarding, and we weren't going to do it again.
  The very next day, a White House spokesman, Tony Fratto, said the 
President could reauthorize the use of waterboarding at any time. At 
this point, we had returned to a state of confusion. The CIA was saying 
waterboarding was not authorized and not needed. The White House was 
saying waterboarding was still on the table.

  That was not the end. The very next day, General Hayden testified in 
open session again, this time in front of the House Intelligence 
Committee. Here is what he said:

       In my own view, the view of my lawyers and the Department 
     of Justice, it is not certain that that technique--

  Meaning waterboarding--

     would be considered lawful under current statute. . . .

  So here you have a mix of views. Here you have unclear American 
policy.
  The bill which we have before us today clears up that confusion, and 
it states once and for all what the U.S. Government would do; that 
there would be 19 specific approaches documented over many pages for 
each approach in this volume, and 8 specific techniques that are 
banned, one of which is waterboarding.
  So we have the opportunity today to take a stand--to clear the air 
and to say that the U.S. Government follows uniform specific standards 
for interrogation of detainees as put forward by the Army Field Manual.
  I would like to quote a statement the President of the United 
States--President Bush--made on June 22, 2004. Here is his quote:

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

  President Bush, if you stand by these words, you will sign this 
intelligence authorization bill.
  Thank you, Mr. President. I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, how much time do I have left out of 
the 5 minutes?
  The PRESIDING OFFICER. A minute and a half.
  Mrs. FEINSTEIN. Mr. President, if I may, I very much would like to 
thank a few people who have been very helpful in this whole thing. The 
first is David Grannis, my intelligence liaison, who has been with me 
all the way. I thank the Partnership for a Secure America and the 18 
former national security officials who wrote in support of the Army 
Field Manual.
  I thank Senators Hagel and Snowe for taking a stand for what is right 
for America in the Intelligence Committee. I thank our chairman, 
Senator Rockefeller, for being willing to risk the passage of this 
legislation by supporting this very important amendment.
  I also thank Senator Whitehouse. He offered this amendment when it 
was in the Senate Intelligence Committee. I thank him for his tireless 
efforts in support of this conference report. I have seen him on the 
Senate floor at least twice today. He was a cosponsor of the amendment 
I offered in the conference, and I know his staff has been very 
effective in working on this amendment.
  I thank Senator Tom Carper of Delaware who has done a lot of work on 
this issue on the telephone.
  I thank my colleague and friend, Senator Ron Wyden, who came earlier 
to the floor to speak on this issue.
  So there have been many people working toward this vote, and it looks 
as if it may just happen. I would like them to know that we are very 
grateful for their support.
  Oh, one more: Senator Feingold. Senator Feingold was a cosponsor

[[Page S952]]

when I offered the amendment in the Intelligence Committee. I very much 
thank him for his steadfastness.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Republican whip.
  Mr. KYL. Mr. President, we are going to be voting in about an hour or 
so on the conference report on the Intelligence Authorization Act. I 
would like to explain briefly the reasons I think we should vote 
against that reauthorization.
  There are two primary reasons. First has to do with the additional 
provision that was passed neither by the House nor by the Senate but 
was dropped into the conference report without Republican involvement; 
that is, the provision that Senator Feinstein authored that would 
substitute for the authority that agencies of the United States 
currently have--agencies such as the Central Intelligence Agency--to 
interrogate foreign terrorists. It would substitute for the current 
rules under which they operate the U.S. Army Field Manual.
  The U.S. Army Field Manual is a document that is prepared for use for 
all of our military Armed Forces, to provide rules of the road for them 
in interrogating enemy prisoners of war. So when they capture someone 
on the battlefield, in order to ensure that the Geneva Conventions are 
adhered to, there is a set of guidelines set out in the Army Field 
Manual that very explicitly explain to our soldiers exactly how they 
need to treat these prisoners and what kind of interrogation in which 
they can engage.
  A couple of years ago, when the Congress and the administration got 
together and revised our procedures and the statute dealing with this 
subject, the explicit decision was made to not have the Army Field 
Manual govern the interrogations by other Government agencies. That was 
a wise decision then, and it is a wise decision now.
  There are reasons the U.S. Army would want to have a set of rules for 
soldiers capturing enemies on the battlefield. But there is quite a 
different situation presented when you have captured a terrorist and 
you want to interrogate that terrorist and you have at your disposal 
Central Intelligence Agency trained personnel or other special 
personnel who are trained in interrogation techniques that comply with 
the Geneva Conventions accords, are not torture, are authorized by law, 
but may be outside the particular scope of the Army Field Manual.
  This is a gross oversimplification, but for people to generally 
appreciate what I am talking about, you have all seen movies where a 
prisoner of war is captured, and they say: Give me your name, rank, and 
serial number, and that is pretty much all an enemy soldier is required 
to provide. You cannot torture them to get them to tell you anything 
beyond those three pieces of information, and that is as it should be.
  Interestingly, our terrorist adversaries know well the Army Field 
Manual, and if they are captured as enemy POWs on the battle ground by 
U.S. Army personnel, they know precisely what kind of interrogation to 
expect. In fact, we know they are trained on how to resist the 
interrogation techniques and not provide information. It would be a 
horrible mistake for us to assume that the techniques that are 
appropriate for Army battlefield capture interrogation should apply as 
well to situations in which a CIA person is interrogating a terrorist--
someone who is not fighting for another country in a uniform captured 
on the battlefield.
  That is the essence of the Feinstein proposal, and it is one of the 
reasons the President has made it very clear that were this conference 
report to pass, he will veto the bill; indeed, he should.
  There are other reasons for the President's decision to veto the bill 
as well. Let me just mention a couple of them. One of the things that 
relates to this interrogation matter is a requirement in the bill that 
a report to Congress must be made of the identity of each and every 
official who has determined that any interrogation method complies with 
specific Federal statutes, why the official reached the conclusion, and 
the related legal advice of the Department of Justice.
  This may seem benign on the surface but, I submit, is in the nature 
of harassment of officials who are trying to make decisions about the 
application of law. They come to judgments. They advise the people who 
are asking for the advice, and then action is taken on that basis. If 
Congress needs a report every time a Government official makes a 
decision, clearly that agency cannot function.
  Secondly, there are too many opportunities for second guessing, too 
much of an incentive for the people who are doing the work we ask them 
to do to not make any decisions, not engage in that work because they 
might make a mistake. This is exactly the kind of ethos we do not want 
in our intelligence community.
  Another requirement of the bill is the creation of another inspector 
general. We already have inspectors general for each of the elements of 
the intelligence community, but there would be a new one under the DNI. 
But his primary responsibility would be to report to Congress rather 
than the DNI.
  There are other requirements for reports that have already occupied 
far too much attention of our intelligence community. There are 
requirements for congressional confirmation of several new positions, 
positions that currently do not require congressional confirmation 
because they are not political offices. It is the head of the NRO, for 
example, the head of NSA. These are agencies that have been peopled 
with professionals, people who do not have anything to do with 
politics. They should not have to come to the Senate and get grilled by 
Senators--more importantly, Senators who then might hold them up.
  You have heard about the holds Senators place on nominees. I do not 
know how many executive nominees and judges we have waiting 
confirmation by the Senate right now, but there are a lot. What happens 
is, because Senator X does not like the administration's position on 
something, they decide to put a hold on an important executive branch 
nominee. As a result, too many positions are vacant today because of 
unrelated holds by Senators. It just presents the Senate with an 
additional way to hold up action on people, in effect, to blackmail an 
administration into doing what it wants.
  There are a variety of other problems the President has pointed to in 
this legislation that will require the President to veto it. But I want 
to conclude by simply saying that a great deal of credit goes to 
Senators Rockefeller and Bond for their work in trying to create an 
authorization bill for the intelligence community against great odds. 
There is a lot of disagreement among people on the Intelligence 
Committee itself, as well as others in this body, about what ought to 
be done, and they came to, in effect, an agreement that except for the 
Feinstein proposal--that, as I said, was added in the conference; it 
was not passed by either the Senate or the House--they came to an 
agreement on a bill that Senator Bond has described as pretty 
effective.

  Hopefully, with the President now indicating he will veto the 
legislation over the provisions I have identified, and some others, the 
other side will recognize it is important to fix those problems, clean 
it up, get a bill back to the President he can sign, and we can move 
forward.


                                  FISA

  Now, the last thing, Mr. President, I want to do is change the 
subject very slightly because we just had a conversation with the 
President, who reiterated his deep concern about the apparent 
unwillingness of the House of Representatives to reauthorize the 
Foreign Intelligence Surveillance Act so that we can engage in 
intelligence collection against this country's worst enemies: al-Qaida 
and other terrorists.
  This body, with a vote of 68 to 29--a very bipartisan vote--agreed on 
a Foreign Intelligence Surveillance Act reauthorization for a period of 
6 years. The key feature of it--different from the current law--is 
retroactive immunity for those telecommunications companies that might 
have assisted the United States in gathering this intelligence. That 
was following the Intelligence Committee's work--again, great work; 13 
to 2 was the vote in the Intelligence Committee, bipartisan--supporting 
that legislation. It has now been sent to the House of Representatives. 
All the House of Representatives needs to do is to take this bill, 
which has bipartisan support in the Senate, pass it, and send it to the 
President for his signature.

[[Page S953]]

  The President's point, just a few moments ago, to us was it would be 
an abdication of responsibility for the Congress not to accomplish this 
result before it leaves on a recess on Friday.
  This intelligence collection is critical to the security of the 
United States. The point of the most recent legislation is to provide 
retroactive liability protection for those companies that have aided 
the United States pursuant to its request.
  In effect, what happened was the President and the Attorney General 
requested various telecommunications companies to help us collect 
electronic information on people we have targeted as necessary for 
collection purposes. They did not have to do it. They volunteered to 
help us. They understood the threat to the United States and, like any 
good citizen would do when called upon by the Commander in Chief, they 
agreed to assist. Now, some of them have been sued. They are, of 
course, accountable to their boards of directors who have a 
responsibility under Federal law to protect shareholder interests.

  What some of these companies are finding is an increasing difficulty 
of assisting the United States and continuing to stay in business. They 
have their own business responsibilities. They have to engage in 
activities both in this country and in other countries sometimes. They 
have to get customers. They have to make business agreements with other 
parties. When too many other folks say: We don't want to do business 
with you because of the potential that you are going to be sued or that 
you have been sued, and then there is the question of whether we are 
going to be drawn into all that, then it makes it impossible for those 
companies to assist the United States.
  The point is this: There is an increasing concern that some of these 
companies are not going to be able to provide this assistance to us if 
we don't solve this retroactive immunity issue. Some people have said: 
Well, we will simply temporarily extend the existing law. The reason 
that doesn't solve the problem is because the existing law doesn't 
provide that retroactive immunity. That is the point of this 
legislation, and if this legislation doesn't provide that retroactive 
immunity pretty soon, there could well come a point in time when we 
don't have any telecommunications companies left doing this work for us 
to matter.
  Mr. WARNER. Mr. President, will the Senator yield?
  Mr. KYL. I am delighted to yield to the Senator from Virginia.
  Mr. WARNER. Mr. President, I am delighted the Senator from Arizona 
brought this up because I have participated in a number of debates with 
our distinguished colleague from Missouri. What we always have to 
remind our colleagues of, as well as the American public, is that these 
companies have volunteered. They are not in this for a profit motive. 
There is some compensation for expenses. They are not unlike the men 
and women of the Armed Forces, all of whom today are in uniform because 
they raised their right arm and volunteered. We cannot ask these 
companies to subject themselves to the uncertainty and the threats 
associated with legal processes. We are going to lose a very important 
component of what I call the American spirit: voluntarism. Whether it 
is in the corporate world, whether it is in the Armed Forces or any 
other number of activities, we are a Nation known for people who step 
forward and volunteer.
  This is a clear example of how these companies cannot continue under 
the situation that persists today, because the directors of those 
companies, their corporate boards, have an obligation to their 
stockholders. It is a stretch to say to the stockholders, who are part 
of the voluntarism they are doing to serve the cause of freedom in the 
United States, that they should be subjected to a lot of court suits.
  So I appreciate the Senator bringing this up. It is important. We 
have to remind our colleagues about it. I am proud of what this Chamber 
did. They voted it through, very clearly.
  Mr. KYL. Madam President, if I could say to the Senator from 
Virginia, I hadn't thought of putting it quite the way he did. He is, 
exactly right. We have thousands of young men and women who volunteer 
to serve their country. What would we think if part of that service 
means getting sued by somebody? Wouldn't we provide them protection 
from those kinds of lawsuits? Obviously, we would. The companies that 
serve us every day when we pick up the phone to make a phone call--we 
want them to be there to help us--they step forward when the President 
asks them to volunteer to serve their country, at no profit, as the 
Senator makes clear, and then they get sued and we are not willing to 
provide protection to them.
  Mr. WARNER. Madam President, I couldn't agree more. Furthermore, the 
service they are doing by virtue of this voluntarism directly 
contributes to the safety and the welfare of the men and women in the 
Armed Forces who are engaged in harm's way beyond our shores.
  Mr. KYL. Madam President, that is another very good point.
  Mr. WARNER. At this point, we have about run out of time, and I wish 
to say a few words about the pending matter.
  Mr. KYL. Let me conclude these remarks then. The key point I am 
trying to make is we have related activities. We have the Intelligence 
Authorization bill on the floor, but we also have a couple of days 
before this recess to see that the great work the Senate did is adopted 
by the House of Representatives so the President can sign it.
  Having just come from the White House, the President asked us to 
please convey his sense of concern for the people of this country, for 
the security of those soldiers whom we sent to do a mission, if we 
can't get good intelligence on this terrorist enemy, and the only way--
the best way we can do that is through the interception of these 
communications. It cannot be done if there are no telecommunications 
companies willing to assist us. There could well come a point in time 
when, because we haven't done our job of providing them liability 
protection, there is nobody there to provide the help to us.
  So I thank the Senator from Virginia, and again I get back to my 
original point, which was I hope that in a few moments, knowing the 
President is going to veto this piece of legislation, we will support 
his position and vote no on the authorization conference report.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Klobuchar). The Senator from Virginia has 
23 minutes remaining.
  Mr. WARNER. Fine. That is under the control of the distinguished 
Senator from Missouri, and I will ask for such time as I may need at 
this point.
  I have always considered myself, here in the Senate, to be most 
fortunate for the various assignments I have had through this being my 
30th year. There have been periods when I have served on the 
Intelligence Committee. I was once the ranking member of the 
Intelligence Committee. Then, fortunately, I was selected to go back on 
the Intelligence Committee several years ago. It has been a part of my 
overall service to the Senate, and indeed to the Nation, to be on that 
committee.
  I was at first introduced to the world of intelligence in 1969 when I 
was fortunate enough to go to the U.S. Department of Defense at the 
Pentagon and serve the Navy, first as Under Secretary and then 
Secretary. So I have actively been involved in the work of the 
intelligence community for some many years.
  I am greatly concerned that we have before us today a piece of 
legislation which, even though a member of the committee and even 
though I worked with my colleagues to frame this legislation, I will 
have to vote against because of the actions that took place in the 
conference committee where an out-of-scope provision was put in--for 
the best of intentions, I am sure, but it wasn't carefully thought 
through, in my judgment, because this provision would say that 
henceforth, the CIA and the Federal Bureau of Investigation would have 
to conduct their interrogation procedures in accordance with the Army 
Field Manual.
  I was privileged again to be one of a group of a small number of 
Senators who, in the year 2005, worked on the Detainee Act and then 
subsequently, in 2006, worked on other legislation to try to delineate 
carefully the responsibilities of various agencies and departments of 
our Government as it related to the all-important collection of our 
intelligence and a part of that collection procedure being the 
interrogation

[[Page S954]]

of detainees. Now, we decided, after a lot of careful deliberation of 
the 2005 act, that we would restrict that to the men and women in the 
Armed Forces.
  There was a very good reason for that. In the course of our conflicts 
in Iraq and Afghanistan, detainees came into the possession of our 
field forces, operating in combat conditions most of the times when 
these detainees were caught, and relatively, so to speak, while the 
military people are magnificently trained throughout their careers to 
deal with these situations of combat and the like, very few of them 
have had the opportunity to get into the profession of interrogation. 
In order to give them the protection they needed in performing 
interrogation at what we call the field and tactical level, it was 
important to draw up this act and to prescribe very clearly for the men 
and women in uniform--I repeat that: only for the men and women in 
uniform--very clearly the procedures they must follow to accord the 
values of our framework of laws, the fact that this is not a nation 
that stands for torture, and to also give them protection in the event 
that somehow they were challenged in a court of law, be it a military 
court or other courts, as to their performance by virtue of their 
interrogating activities of certain detainees. So there were many 
reasons to put it all down and say that this is the Army Field Manual, 
prescribe the authorized techniques, and therefore allow the men and 
women of the Armed Forces to continue their operations militarily, 
tactically, and to follow that field manual in such instances where it 
is necessary to interrogate detainees.
  But in the course of that debate--and understandably and I think 
quite properly--attention was given to whether we should have this type 
of procedure applicable to all the Government agencies and departments 
of our Federal Government. The decision was made, and the answer was 
no--not quickly, no; it was a deliberate no reached after a lot of 
careful consideration--that this Detainee Act should be for the purpose 
of our military people, and we purposely did not include the CIA and 
the FBI. As time evolved into 2006, when we had that legislation, once 
again we reiterated we would not include either the CIA or the DIA and 
then in any way at that time legislate their program, other than to say 
that the conduct of the CIA program and the FBI program has to be in 
total compliance with all the laws of our land, which in no way 
sanctioned abusive treatment, torture or those sorts of things. It is 
not a part of it.
  Furthermore, that both the procedures by the CIA and the FBI had to 
be in compliance with the treaties, the treaty obligations we have, 
particularly article 3, common article 3, which has been debated so 
carefully on the floor of the Senate.
  So, in effect, what we have before us momentarily in this vote is 
overruling the decisions that were made by this body in the context of 
drawing up those two statutes, one in 2005 and one in 2006. So I, for 
that reason, feel very strongly that I cannot support this. I think it 
has been indicated that the President doesn't support it and that if 
this were to arrive at his desk, in all probability, we would have a 
veto, and that would be regrettable because a lot of work has been put 
into this bill. There are portions of it that the distinguished Senator 
from Arizona, Mr. Kyl, talked about which hopefully can be corrected. 
But we need an Intelligence bill. We have marvelous staff in the Senate 
and others who work on this problem of legislation year after year, and 
we are long overdue to have an Intelligence bill. It is unfortunate 
that in the last throes of the legislative process, in a conference, 
this provision, which we clearly know to be out of scope, was put into 
the bill, and it is for that reason that I will have to oppose the 
bill.
  There is another reason I would have to oppose it, and that is that 
the Army Field Manual, again, was for the military, but it is a manual. 
Certainly, under the current way it is framed and put together in the 
law, a manual can be changed. So while there are some 19 techniques 
that are detailed as approved for the use of our troops in the field 
and elsewhere, who is to say they couldn't add some more and that at 
that point Congress is not involved. So I am not sure people thought 
through the technical aspects of this thing, and to me, it is a very 
unwise decision.
  But I wish to reiterate to our colleagues that by virtue of taking 
the stance I take--and I presume a goodly number of individuals will 
join in this, unfortunately, and vote against this bill--this is not to 
say, in any way, that we are sanctioning that the Agency, the CIA, 
employ techniques which are in any way constituted as abusive treatment 
of human beings or torture or degrading.
  All of that is carefully spelled out in the framework of the laws of 
2005 and 2006, and it cannot be done by the agency, nor the FBI--nor 
are they doing it. The Intelligence Committee has had a series of 
hearings. We have had the DNI, the Director of the CIA, the head of the 
FBI, and all of them have been carefully questioned and are on record 
saying that these procedures, which would be tantamount and 
antithetical to our laws of 2005 and 2006 are not employed now, and 
they will not be in the future.
  It is for that reason that I will have to oppose this bill. I urge my 
colleagues to do likewise because we will be taking away from the 
agencies the ability to perform a very limited number of 
interrogations, a very limited number--but they do them in an entirely 
different framework of circumstances, environment, than does the Army 
or other military members of our Army, Navy, Air Force, and Marine 
Corps under the Army Field Manual.
  The techniques applied by the CIA are in compliance with the laws, 
but they are not all written up so that a detainee knows full well that 
if they are apprehended, they will be subjected to the interrogation 
procedures of the agencies; he would know all about it if it is written 
up as it is in the Army Field Manual. That would take away a good deal 
of the psychological impact of highly skilled interrogating procedures. 
We are about to throw those away, abandon them.
  This is a very dangerous and complex world. I sometimes think, in the 
course of this political campaign, as I listen to my good friends--
three of them Members of this Chamber--vying for the Presidency of the 
United States, the awesome framework of complex situations that is 
going to face the next President of the United States. I must say, I 
have a few years behind me, and I have seen a good bit of history in 
this country, but never before has the next President, whoever it may 
be--never before have they faced such an awesome, complex situation in 
the world that is so fraught with hatred and terrorism and threats to 
the basic freedoms of our Nation and many other nations.
  It is going to be a real challenge for that next President to 
shoulder the responsibilities of Commander in Chief of the Armed Forces 
of the United States. And this set of procedures that we presently have 
in place, which complies with the law of our land, which complies with 
international treaties, must be left intact to enable the Intelligence 
Committee to conduct their interrogations and do so to produce facts 
which could very well save this Nation and facts that are, every day, 
helping to save the men and women of the Armed Forces in uniform 
wherever they are in the world--primarily in Iraq and Afghanistan--as 
they pursue their courageous responsibilities on behalf of us here at 
home.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Madam President, I believe it is important to clear up for 
the record, for the benefit of my colleagues and the American people, 
some statements that were made earlier today about waterboarding, 
interrogation techniques and the Army Field Manual.
  During the House and Senate conference for the fiscal year 2008 
intelligence authorization bill, an amendment--section 327--was adopted 
that would prevent any element of the intelligence community from using 
any interrogation technique not authorized by the Army Field Manual.
  Earlier today, we heard that the full membership of the conference 
committee, the full membership of the House Intelligence Committee and 
Senate Intelligence Committee all came to the conclusion that all 
interrogations should be conducted within the terms of the U.S. Army 
Field Manual.

[[Page S955]]

  Let's be clear: this particular amendment only passed by a one-vote 
margin. The conference was sharply divided on this issue, as reflected 
by the fact that no House Republicans signed the conference report and 
only two Senate Republicans signed the report.
  The problem with this provision is not that it says that 
interrogators cannot use certain techniques. Most of the techniques 
prohibited by the field manual are so repugnant that I think we can all 
agree they should never be used.
  In fact, this vote is not about torture, and it is not about 
waterboarding. We all think that torture is repugnant. And whether one 
believes that waterboarding is torture is really irrelevant because 
waterboarding is not in the CIA's interrogation program.
  The problem is that the provision in the conference report 
establishes a very limited set of techniques, and these are the only 
techniques that any interrogator may use.
  So the vote is really about whether the FBI and CIA should be 
restricted to a set of 19 unclassified techniques, designed for the 
Army, which have not been examined fully by some agencies.
  If this legislation passes and is signed into law, all of us need to 
understand fully that FBI and CIA interrogators may only use the 19 
techniques authorized in the field manual. And all of us need to 
understand that no one can say for sure that this will not impact our 
future intelligence collection.
  As CIA Director Hayden has said: ``I don't know of anyone who has 
looked at the Army Field Manual who could make the claim that what's 
contained in there exhausts the universe of lawful interrogation 
techniques consistent with the Geneva Convention.''
  If we are going to demand that all Government agencies must use only 
these techniques, we must make sure that the field manual does not 
leave out other moral and legal techniques needed by these agencies. 
And I don't believe that the Intelligence Committee has adequately 
pursued this issue.
  Having a single interrogation standard does not account for the 
significant differences in why and how intelligence is collected by the 
military, CIA, and FBI.
  Much has been made of the FBI saying that they do not use coercive 
techniques. That is accurate. The FBI operates in a different world--
where confessions are usually admitted into evidence during a 
prosecution. This means that they have to satisfy standards of 
voluntariness that do not bind either the military or the CIA.
  But significant concerns have been raised about whether the FBI would 
even be able to conduct ordinary interrogations using only those 
techniques authorized by the field manual.
  A time-honored technique, one that has led to countless successful 
prosecutions, is deception--for example, telling a suspect that his 
associate has confessed even though the associate has refused to 
cooperate. But, it's unclear where this type of deception is authorized 
in the field manual. So, under this amendment, the FBI could be barred 
from using this simple, yet invaluable, technique.
  FBI lawyers have told us that they need more time to conduct a full 
legal review of the field manual and determine along with their 
counterintelligence and counterterrorism divisions what impact using 
only the field manual would have on interrogations. We should give them 
time to do this review before we pass a bill that could severely 
undermine their interrogation practices.

  Aside from these concerns, the Army Field Manual on Interrogation was 
designed as a training document. It is changeable, which means the 
Congress--and the CIA and FBI have no idea what techniques may be 
added--or subtracted--tomorrow, next month, or next year. A moving 
document is not a sound basis for good legislation.
  There are also practical consequences to applying this unclassified 
military training manual to civilian agencies; as we heard earlier, 
having one standard that can be publicly judged by the entire world. We 
are talking about intelligence interrogations. We should not broadcast 
to the world, to our enemies, exactly what techniques our intelligence 
professionals may use when seeking information from terrorists.
  The wide availability of the field manual on the internet makes it 
almost certain that al-Qaida is training its operatives to resist the 
authorized techniques.
  Supporters of this provision also argue that the Army Field Manual 
gives interrogators sufficient flexibility to shape the interrogation. 
Yet, some of the techniques in the field manual are allowed only if the 
interrogator obtains permission from ``the first O-6 in the 
interrogator's chain of command.'' What that means is that an 
interrogator has to get permission from an Army or Marine Corps colonel 
or a Navy captain before proceeding. So in order to have any 
flexibility, will the CIA and FBI have to bring colonels and captains 
to all of their interrogations? These interrogations will get awfully 
crowded pretty quickly.
  We have been told that the field manual incorporates the Golden rule. 
Do unto others as you would have them do to unto you is an admirable 
standard. But when dealing with terrorists who have shown no regard for 
morality, humanity, and decency, it is somewhat out of place.
  Do we really expect that if we restrict ourselves to techniques in 
the Field Manual that al-Qaida will do the same? While we are arguing 
about whether waterboarding is torture, they are chopping off heads and 
using women and children to conduct their suicide bombings. Now, I am 
not suggesting that we resort to their barbaric tactics. I am simply 
saying that we should not base this important decision that will bind 
all of our intelligence interrogations on the hope that al-Qaida will 
discover civility.
  Let me also clarify a comment from our distinguished committee 
chairman about the interrogation of Ibn Shaykh al-Libi. It was 
suggested that al-Libi lied to interrogators because of the CIA's 
``coercive'' techniques. However, al-Libi was not in CIA custody--or 
foreign custody for that matter--when he made claims about Iraq 
training al-Qaida members in poisons and gases.
  In fact, it was only when al-Libi was interviewed by CIA officers 
that he recanted his earlier statements.
  I believe we still have a lot of work to do before we impose 
restrictions on CIA and FBI interrogations that could have severe 
consequences for our intelligence collection.
  Now, I want to make clear what my position is here today. For the 
past several months, I have worked hard to put together a reasonable 
bill that allows the Intelligence Committees to conduct necessary 
oversight, while cognizant of the administration's concerns about 
resources and executive branch prerogatives.
  I understand that no administration likes oversight. But oversight is 
essential to what Congress does: We have an obligation to the taxpayers 
to make laws and appropriate funds responsibly. And in order to do 
this, we have to know how the money is being spent and what activities 
are being conducted.
  I have reviewed closely the Statement of Administration Policy on 
this bill and I am confident that we have addressed or resolved all but 
one of the concerns listed there. One provision remains that merits a 
veto and that is the amendment before us: the Army Field Manual 
interrogation techniques.
  At the end of the day, if this provision is removed, I will support 
this bill. But in its current form, I cannot support it and I urge my 
colleagues to vote against the conference report.
  Mr. President, I thank the distinguished Senator from Virginia, who 
has played the lead in so many things, such as the Detainee Treatment 
Act and other major pieces of legislation, for his very thoughtful 
discussion of these issues.
  It has been very troubling to me to hear on the floor today some 
things about what the CIA does that are absolutely not true. We have 
heard all kinds of descriptions of techniques that are barred by the 
Army Field Manual. The techniques barred by the Army Field Manual, the 
horrors that were outlined, are not tactics the CIA uses. They do not 
use them. They would probably violate the Geneva Conventions and many 
other laws, which absolutely do cover interrogations by the CIA. When 
one raises the spectrum that the CIA may be torturing detainees, No. 1, 
it is not true; No. 2, for those who know what is going on, it is 
irresponsible; No. 3, it is the kind of thing

[[Page S956]]

that fuels the media of our enemies. I would not be surprised to see 
some of these comments reported in Al-Jazeera.
  What happened at Abu Ghraib was tragic. There were criminal acts by 
American troops. We punished them, but nobody talks about the fact that 
we punished them and sent them to prison. They went to the brig, as 
they should. Now we have heard discussions attributing to the CIA all 
manner of activities that are wrong, improper, not usable, and are not 
used.
  I think it is important we clear the record. I wish some of the 
people who know better would say I didn't mean to say that the CIA does 
these things, because the people on the Intelligence Committee know 
precisely what is done and what is not done.
  Mr. WARNER. Will the Senator yield for a moment?
  Mr. BOND. I am happy to.
  Mr. WARNER. As a Senator from Virginia, I am proud to have the CIA 
principal office in my State. I have been working with them for 30-
some-odd years. I have gotten to know many of them through the years. 
They are not people who would set out to violate the laws of our 
Nation. They are just like you and me. They have families and the same 
values we share in the Senate and in our neighborhoods. They do go 
abroad and assume an awful lot of personal risk on a number of 
missions. But in terms of following the laws of our Nation, and the 
international laws, I think they stand head and shoulders, and they are 
to be commended.
  Mr. BOND. Madam President, I thank my distinguished colleague from 
Virginia. He is one of the real experts in this body on military and 
intelligence affairs. I can tell you that having talked with General 
Hayden and the other top officers of the Agency, getting to know 
Attorney General Mike Mukasey and those other responsible, high-
principled officials who are overseeing it, it is not a danger that we 
are going to see torture or inhumane or degrading treatment used.
  Now, again, during the House-Senate conference for the fiscal year 
2008 Intelligence authorization bill, an amendment--section 327--was 
adopted that would prevent any element of the intelligence community 
from using an interrogation technique not authorized by the Army Field 
Manual.
  Earlier today, it was stated on the floor that the full membership of 
the conference committee, the full membership of the House Intelligence 
Committee, and the Senate Intelligence Committee came to the conclusion 
that interrogations should be conducted within the terms of the U.S. 
Army Field Manual.
  Let me be particularly clear that this amendment only passed by a 
one-vote margin. The conference was sharply divided on the issue, as 
reflected by the fact that no House Republicans signed the conference 
report and only two Senate Republicans signed the report.
  The problem with this provision is not that it says the interrogators 
cannot use certain techniques. Most of the techniques prohibited by the 
Army Field Manual are so repugnant that I think we can all agree they 
should not be and would never be used.
  In fact, this vote is not about torture or about waterboarding. 
Despite what you have heard on the floor, it is not about 
waterboarding. Torture is repugnant. We have stated that time and time 
again--in the Detainee Treatment Act and in other laws we passed. 
Whether one believes it is torture is irrelevant because waterboarding 
is not in the CIA's interrogation program.
  The problem is the provision in the conference report establishes a 
very limited set of techniques, and these are the only techniques any 
interrogator may use. So the vote is about whether the FBI and CIA 
should be restricted to a set of 19 unclassified techniques, designed 
for the Army, which have not been examined fully by some agencies. I 
say ``19 unclassified techniques'' because those techniques not only 
have been published widely, but they are included in al-Qaida training 
manuals. So the al-Qaida high-value leaders--the people with the 
information--know precisely what it is all about.
  If this legislation passes, and were it to be signed into law--which 
all of us know it will not--we all need to understand fully that the 
FBI and CIA interrogators may only use the 19 techniques authorized in 
the field manual. According to the field manual, they would have to get 
a clearance from an OC-6, a military officer. That was designed for the 
military, not for the CIA, not for the FBI. When my distinguished 
colleague from Virginia passed the Detainee Treatment Act, he and the 
Senator from Arizona, Senator McCain, expressly left the CIA out of the 
limitations to the Army Field Manual.
  As CIA Director Michael Hayden has said:

       I don't know anyone who has looked at the Army Field Manual 
     who could make the claim that what's contained in there 
     exhausts the universe of lawful interrogation techniques 
     consistent with the Geneva Conventions.

  He described a whole area of techniques. There are a whole group of 
techniques that we use on the volunteers who join our Marines, Special 
Forces, our SEALs, our pilots, which I described earlier today. Many 
tactics are far more difficult to withstand than the techniques that 
are used by the CIA in its interrogation.
  If we are going to demand that all Government agencies must use only 
these techniques, we must make sure the Army Field Manual doesn't leave 
out other moral and legal techniques needed by these agencies. I don't 
believe the Intelligence Committee has adequately pursued this issue.
  How many of those techniques do we want to publish so our al-Qaida 
targets will know how to resist them? Having a single interrogation 
standard does not account for the significant differences in why and 
how intelligence is collected by the military, CIA and FBI, and from 
whom it is collected.

  Much has been made of the FBI saying they do not use coercive 
techniques. That is accurate. The FBI operates in a different world--
where confessions are usually admitted into evidence during a 
prosecution. This means they have to satisfy standards of voluntariness 
that do not bind either the military or CIA. When they question 
somebody, they are trying to stop a terrorist attack from happening in 
the future. They are in the field. The FBI is investigating a crime 
that has been committed in the hopes of punishing those people. There 
are significant concerns about whether the FBI would even be able to 
conduct ordinary interrogations using the techniques in the Army Field 
Manual.
  A time-honored technique, one that has led to countless successful 
prosecutions, is deception--for example, telling a suspect that his 
associate has confessed even though the associate has refused to 
cooperate. But as I read the Army Field Manual, I don't see that that 
is authorized. So under this amendment, the FBI could be barred from 
using this simple, yet invaluable, technique.
  FBI lawyers have told us they need more time to conduct a full legal 
review of the Army Field Manual to determine, along with their 
counterintelligence and counterterrorism divisions, what impact using 
only the field manual would have on interrogations. We should give them 
time to do this review before we pass a bill that could severely 
undermine their interrogation practices.
  Aside from these concerns, the Army Field Manual on Interrogation was 
designed as a training document. It is changeable, which means the 
Congress--and the CIA and FBI--has no idea what techniques may be added 
or subtracted tomorrow, next month or next year.
  Are we really ready in this body to define something as a standard, a 
changing field manual? When do we ever do that, saying everybody has to 
follow the Army Field Manual, and the Army Field Manual can be changed 
when and if it is ready. There are practical consequences. The 
unclassified military training level is not applicable to questioning 
high-value detainees.
  This is, I suggest, a very bad measure. I believe the bill without 
this amendment would have been a very good one. I cannot urge my 
colleagues to vote for it.
  The PRESIDING OFFICER. All time has expired. The question is on 
agreeing to the conference report to accompany H.R. 2082.
  Mr. WARNER. Have the yeas and nays been ordered?
  The PRESIDING OFFICER. They have not been ordered.

[[Page S957]]

  Mr. WARNER. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from Missouri (Mrs. McCaskill), and the Senator from 
Illinois (Mr. Obama) are necessarily absent.
  Mr. KYL. The following Sentor is necessarily absent: the Senator from 
South Carolina (Mr. Graham).
  Further, if present and voting, the Senator from South Carolina (Mr. 
Graham) would have voted ``nay.''
  The result was announced--yeas 51, nays 45, as follows:

                      [Rollcall Vote No. 22 Leg.]

                                YEAS--51

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Hagel
     Harkin
     Inouye
     Johnson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     Lugar
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer
     Smith
     Snowe
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                                NAYS--45

     Alexander
     Allard
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Coleman
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lieberman
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Sessions
     Shelby
     Specter
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner
     Wicker

                             NOT VOTING--4

     Clinton
     Graham
     McCaskill
     Obama
  The conference report was agreed to.
  Mr. REID. Madam President, I move to reconsider vote.
  Mr. LEAHY. I move to lay that motion on the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________