[Congressional Record Volume 155, Number 56 (Thursday, April 2, 2009)]
[Senate]
[Pages S4302-S4304]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         COMMISSION OF INQUIRY

  Mr. LEAHY. Mr. President, since I last came to the floor to discuss a 
proposal for a Commission of Inquiry, Americans have learned disturbing 
new facts that underscore the need for such a nonpartisan review. In 
the last 8 years, expansive views of Presidential authority and 
misguided policies have dominated the question of how best to preserve 
and protect national security. As Senators, we each take an oath to 
``support and defend the Constitution of the United States.'' In the 
months and years following 9/11, driven by an inflated view of 
executive power, the Bush-Cheney administration compromised many of the 
very laws and

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protections that are the heart of our democracy. Their policies, which 
condoned torture, extraordinary renditions, and the warrantless 
wiretapping of Americans, have left a stain on America's reputation in 
the world.
  In recent weeks, we have also seen a few more opinions previously 
issued by the Office of Legal Counsel after 9/11 that had been kept 
secret until now. I commend the new Attorney General on their release. 
I have asked that more be released, and it is my hope that they will be 
soon. These opinions sought to excuse policies that trample upon the 
Constitution and our duly enacted legal protections. These opinions 
arise from an arrogant rationale that the President can do anything he 
wants to do, that the President is above the law. The last President to 
make that claim was Richard Nixon. We saw the results of that policy in 
Watergate. It was through efforts like the Church Committee that we 
revised our laws and moved forward. In my view, it is time to do so 
again.
  Perhaps the most persuasive new revelation that demonstrates why we 
cannot just turn the page without reading it is Mark Danner's account 
of a leaked copy of a report on the treatment of detainees at 
Guantanamo Bay. The report, compiled by the International Committee of 
the Red Cross, is nothing short of chilling. One detainee interviewed 
describes: ``Two black wooden boxes were brought into the room outside 
my cell. One was tall, slightly higher than me and narrow .The other 
was shorter, perhaps only [3\1/2\ feet] in height. I was taken out of 
my cell and one of the interrogators wrapped a towel around my neck, 
they then used it to swing me around and smash me repeatedly against 
the hard walls of the room. . . . I was then put into the tall black 
box for what I think was about one and a half to two hours. . . . They 
put a cloth or cover over the outside of the box to cut out the light 
and restrict my air supply. It was difficult to breathe.''
  The report continues to describe how these men were kept naked, 
shackled to a chair for weeks in freezing cold temperatures, forced 
with cold water to stay awake for days on end, bombarded with loud 
music, starved, and beaten over and over again. In one interview, a man 
describes how he was waterboarded: He was ``dragged from the small box, 
unable to walk properly and put on what looked like a hospital bed, and 
strapped down very tightly with belts.'' As they poured water on him, 
he said ``I struggled against the straps, trying to breathe, but it was 
hopeless. I thought I was going to die.''
  The report concludes that from those descriptions, this was torture. 
And there is mounting evidence to suggest it was a Bush administration 
policy. Media reports suggest that the CIA briefed high-level 
administration officials on the interrogation plan. Vice President 
Cheney admitted in an interview with ABC News that he supported the 
plan that authorized these measures, including waterboarding. In fact 
he continues to claim, without any basis, that the Bush 
administration's interrogation tactics, including torture, were 
appropriate and effective.
  This past Sunday, a Washington Post article described how the 
waterboarding of Abu Zubaida failed to produce any useful intelligence. 
Of course, Zubaida is a detainee who many Bush administration officials 
had long claimed provided useful intelligence only after he was 
subjected to harsh interrogation techniques. According to Post 
interviews of former senior government officials, ``not a single 
significant plot was foiled as a result of Abu Zubaida's tortured 
confessions . . . Nearly all of the leads attained through the harsh 
measures quickly evaporated, while most of the useful information from 
Abu Zubaida . . . was obtained before waterboarding was introduced.''
  Jack Goldsmith refers to the August 2002 ``Bybee memo'' as the 
``golden shield,'' because it redefined torture in order to shield 
decisionmakers from liability for these tactics. The release of related 
memos is needed. Whether they end up shielding decisionmakers from 
prosecution, they should not shield them from accountability. 
Accountability does not only happen in a courtroom. We need to know 
what was done. Transparency and accountability can help restore our 
reputation around the world. Most importantly, to reestablish the trust 
of the American public in their government, they deserve to know and 
understand what happened.
  Just last week, we heard about the Bush administration's attempt to 
silence Binyam Mohammed, a British citizen held for years as an enemy 
combatant at the detention facility at Guantanamo Bay. He claims that 
he was tortured during the course of his detention. Bush administration 
officials apparently demanded that he sign a secret plea bargain which 
would have prohibited him from ever suing the United States over his 
alleged torture in order to be sent back to the United Kingdom. He did 
not and now Britain is investigating his allegations. When asked about 
the involvement of a particular British intelligence agent, Mr. 
Mohammed said, ``I feel very strongly that we shouldn't scapegoat the 
little people. We certainly shouldn't blame `Witness B,' he was only 
following orders.''
  One of my concerns in proposing the Commission of Inquiry is that we 
not scapegoat or punish those of lesser rank. Such a commission's 
objective would be to find the truth to provide accountability for the 
past. People would be invited to come forward and share their knowledge 
and experiences, not for purposes of constructing criminal indictments, 
but to assemble the facts, to know what happened and to make sure 
mistakes are not repeated. We have had successful oversight in some 
areas, but on issues including harsh interrogation tactics, 
extraordinary rendition and executive override of the laws, the last 
administration successfully kept many of us in the dark about what 
happened and who ordered it.
  One month ago, the Judiciary Committee held a hearing to explore my 
proposal. A bipartisan panel of respected witnesses explained why we 
need such a commission. Since that time, this idea has received a wide 
range of support from people all across this country. I am not 
interested in a panel comprised of partisans intent on advancing 
partisan conclusions. I regret that Senate Republicans have approached 
this matter to date as partisans. That was not my intent or focus. 
Indeed, it will take bipartisan support in order to move this forward.
  I continue to talk about this prospect with others in Congress, and 
with outside groups and experts. I continue to call on Republicans to 
recognize that this is not about partisan politics. It is about being 
honest with ourselves as a country. We need to move forward together.
  I recently heard from the Nobel Prize recipient Bishop Desmond Tutu 
about this proposal. Bishop Tutu, respected throughout the world for 
his efforts for peace and justice in his own country of South Africa, 
offered his support for what we are trying to do.
  The legacy of the last administration left us facing crises in more 
areas than just the economy, the wars in Iraq and Afghanistan, and the 
worst recession since the Great Depression. There is no question that 
those are all pressing issues. But we cannot ignore the failures of 
government forever. We do so at our peril.
  We are tackling tough issues in these difficult and uncertain times. 
The Judiciary Committee has a full legislative agenda, having reported 
bipartisan legislation to fight fraud, public corruption and to aid the 
economy through patent reform. But the fact remains that under the most 
remarkably broad expansion of executive authority in my lifetime, we 
have seen policies on detention and interrogation that undermined our 
values, our reputation and, many believe, our efforts to ensure 
national security.
  The country will need to have an honest discourse about what happened 
and what went wrong. I continue to feel strongly that a Commission of 
Inquiry would provide us the best nonpartisan setting in which to 
undertake that study and national conversation. I think we should 
proceed sooner rather than later. I am continuing to reach out and to 
work on the proposal. But a conversation is not something I can 
undertake unilaterally. As strongly as I feel, it will take the 
cooperation and commitment of others for this proposal to serve its 
intended purpose so that we can join together to move past the mistakes 
of the recent past.

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