[Congressional Record Volume 155, Number 82 (Wednesday, June 3, 2009)]
[Senate]
[Pages S5987-S5988]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              DETAINEE PHOTOGRAPHIC RECORDS PROTECTION ACT

  Mr. LIEBERMAN. Mr. President, I rise to speak in morning business 
about supporting President Obama in his efforts to protect the safety 
and security of the American people, the American military, and the 
civilian personnel serving us all abroad. This goes to the question of 
the pending lawsuit by the American Civil Liberties Union that would 
require the publication of various photographs of treatment by 
Americans of detainees.
  On May 13, President Obama announced that he would not release nearly 
2,100 photographs depicting the alleged mistreatment of detainees in 
U.S. custody. Detainees are what we normally call ``prisoners of war,'' 
except they have a lower status than that under the Geneva Conventions. 
Many of these photographs were the subject of a Freedom of Information 
Act lawsuit filed by the ACLU, while others were discovered during 
internal Department of Defense investigations into detainee abuse.
  Last fall, as part of that lawsuit, the Second Circuit Court of 
Appeals in New York ordered the release of many of those photographs. 
Instead of appealing that decision to the Supreme Court at that time, 
government lawyers agreed to release the images, as well as others that 
were part of the internal Department of Defense investigation.
  Senator Lindsey Graham and I strongly objected to that decision and 
wrote a letter to the President explaining our position. We know that 
photographs such as the ones at issue in the ACLU lawsuit are, in fact, 
used by Islamist terrorists around the world to recruit followers and 
inspire attacks against American service men and women. In particular, 
there is compelling evidence that the images depicting detainee abuse 
at Abu Ghraib was a great spur to the insurgency in Iraq and made it 
harder for our troops to succeed safely in their mission there.
  After consulting with his commanders on the ground, including General 
Petraeus and General Odierno, President Obama decided to reverse the 
decision of the government lawyers and fight the release of these 
photographs. Of course, I feel very strongly that he made not only a 
gutsy decision but the entirely right decision.
  The President said, in making that decision:

       The publication of these photos would not add any 
     additional benefit to our understanding of what was carried 
     out in the past by a small number of individuals. In fact, 
     the most direct consequence of releasing them, I believe, 
     would be to further inflame anti-American opinion and to put 
     our troops in great danger.

  I strongly believe this decision was the right one by the President, 
acting as Commander in Chief. It will protect our troops in Iraq, 
Afghanistan, and elsewhere, and it will make it easier and safer for 
them to carry out the missions we have asked them to do. In fact--and 
this has become public in recent days, and I heard it earlier around 
the time the President made the decision--after learning that the 
release of these photographs was either possible or likely, before 
President Obama's decision to appeal, Iraq's Prime Minister Maliki 
said, according to these press reports, that ``Baghdad will burn'' if 
the photos are released, jeopardizing many of the remarkable security 
gains our military and civilian personnel have achieved in Iraq in 
recent years, putting our troops and personnel in danger.
  To support the President's decision and establish a procedure to 
protect the release of similar photos in the future, for the exact same 
reason, Senator Graham--my colleague and friend, who is now on the 
floor--and I introduced the Detainee Photographic Records Protection 
Act. That legislation would authorize the Secretary of Defense, after 
consultation with the Chairman of the Joint Chiefs, to certify to the 
President that the disclosure of photographs such as the ones at issue 
in the ACLU lawsuit would endanger the lives of U.S. citizens and 
members of the armed services deployed abroad. Essentially, our bill 
would codify the exact process that President Obama went through in 
arriving at his decision to fight the release of these photos.
  Also, the language in the bill Senator Graham and I introduced is 
clear, we believe, in that it would apply to the current ACLU lawsuit 
and block the release of these photographs, preventing the damage to 
American lives that would occur from that release.
  The Senate unanimously supported the inclusion of a slightly modified 
version of the Detainee Photographic Records Protection Act in the 
supplemental appropriations bill for the wars in Iraq and Afghanistan. 
The Senate then approved the supplemental bill by a vote of 86 to 3 
before we broke for the Memorial Day recess.
  I rise today, along with my friend and colleague from South Carolina, 
to strongly encourage our colleagues in the Senate and in the House on 
the conference committee to include the modified version of the 
Detainee Photographic Records Protection Act in the conference report 
that is currently being negotiated.
  We know there are those who are urging the conferees to delete this 
provision, or to water it down. That would be a terrible mistake. As 
President Obama well understands, nothing less than the safety and 
security and lives of our military service men and women is at stake--
not to mention our nonmilitary personnel deployed abroad, not to 
mention Americans here at home and throughout the world, who may be at 
risk of terrorist attack by an individual recruited to Islamist 
extremism and terrorism, as a result of the anger spurred by the 
release of these photographs.
  Bottom line: American lives are at stake. Senator Graham and I feel 
so strongly about this. I will speak for myself here and then allow 
him, in a moment, to speak for himself. Any decision to eliminate this 
provision from the Supplemental Appropriations Act, or to water it down 
so it has no meaning, would lead me, certainly, much as I support what 
is in the Supplemental Appropriations Act, to oppose that act, because 
I think a failure to back up President Obama in this matter would, as I 
have said, compromise safety and, ultimately, the lives of a lot of 
Americans, particularly those in uniform.
  Let me be clear. By including the Detainee Photographic Records 
Protection Act in the conference report for the supplemental 
appropriations bill, Congress will not be condoning the behavior 
depicted in the photographs. In fact, the exact opposite is true. Such 
behavior has already been prohibited by Congress in the Detainee 
Treatment Act and the Military Commissions Act as well as by executive 
orders issued by President Obama.
  We expect that those responsible for the mistreatment of detainees 
will be held accountable. And that is exactly what the Department of 
Defense has done with the internal investigations that are finished or 
are underway.
  But the bottom line is that the release of these photographs, and 
potentially others that may be discovered, will endanger the lives of 
our military personnel and every U.S. citizen. Every American, whether 
in a military uniform or not, will always be a target for al-Qaida or 
supporters of al-Qaida around the world.
  The public release of these pictures, which we know will be spread on 
violent jihadist Web sites around the world immediately after they are 
published, will only energize the efforts of our enemies.
  With the inclusion of the Detainee Photographic Records Protection 
Act in the supplemental appropriations bill conference report, Congress 
has the opportunity to support the President in

[[Page S5988]]

his primary mission as Commander in Chief--and, frankly, our number one 
mission as well--to protect the safety and security of the United 
States.
  I strongly urge my colleagues to include our amendment--which had 
unanimous support in this Chamber--in the final conference report.
  I yield the floor for my friend from South Carolina.
  The ACTING PRESIDENT pro tempore. The Senator from South Carolina is 
recognized.
  Mr. GRAHAM. Mr. President, I ask that my time be taken from the 
minority side when it comes to the 30-minute allocation.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. GRAHAM. Mr. President, I stand up in support of my friend and 
colleague from Connecticut, Senator Lieberman. We were able to get 
passed a piece of legislation, through an amendment on the supplemental 
bill, that is directly on point regarding the pending court case, the 
subject matter of which is releasing additional detainee photos of past 
abuse.
  The President has looked at these photos, and we all understand that 
it is more of the same--that the photos in question came from American 
troops' cameras, who were engaged in inappropriate activity. 
Disciplinary action has been taken where appropriate, and nothing new 
is to be learned. There is no new evidence of crimes by people who have 
yet to be dealt with.
  It would, as my friend from Connecticut said, be voyeurism for the 
sake of voyeurism. The photos are offensive but no different than what 
we have already seen.
  The reason we are here supporting this legislation and supporting the 
President is because, as Senator Lieberman said, the consequences of 
releasing the photos are not a mystery. Americans are going to die.
  I just got back from a trip to North Africa, Morocco, and Algeria, 
and I went to Greece. Every embassy very much was worried about what 
would happen to Americans if these photos were released. They were 
preparing to be, quite frankly, under siege.
  As Senator Lieberman indicated in the Miami Herald article, when 
Prime Minister Maliki in Iraq was informed these additional photos may 
be released, another tranche of photos coming out about detainee abuse, 
according to American military officials involved, he went pale in the 
face and uttered the phrase: ``Baghdad will burn.''
  To those who are arguing for the release of the photos, I do not 
question their patriotism, I do not question their motives. I question 
their judgment. To our House and Senate colleagues who are in 
conference, please understand that Senator Lieberman, myself, and I 
think the vast majority of our Senate colleagues--we did not take a 
recorded vote--believe this is a life-and-death matter. I believe that 
to release the photos would result in certain death and attack against 
American interests abroad, particularly against the diplomatic corps 
and our men and women serving abroad, and no higher purpose would be 
achieved here at home.
  We made compromises in the legislation, but we did not destroy the 
intent of the legislation. And for the courts that may listen to try to 
discern the legislative intent, the intent by both authors was to make 
sure that the photos subject to the pending litigation were never 
released and Congress weighed in and agreed with the President's 
decision not to release those photos. We have changed the law, directly 
on point, to give legislative backing to the idea that these particular 
photographs, and those like these photographs, should not be released 
for a period of 3 years, and that is in our national security interests 
to do so.
  I hope the courts will understand what we were trying to do and what 
we actually did.
  To our House and Senate colleagues trying to find compromises on the 
supplemental legislation, please understand the purpose of this 
amendment, how important it is to the war effort, why the President is 
in support of the amendment. He is making a very responsible decision 
as Commander in Chief. I applaud him for doing that. This language 
needs to stay as is, intact. Again, it is a matter of life and death. 
And if for some reason it came out, it would be a disaster--because the 
court case is pending now--if it came out, please understand that there 
will be nothing done in the Senate for as long as I am here and Senator 
Lieberman is here that would not have this amendment attached. You 
could not name a post office without this amendment. It is not going 
away.
  I thank my colleague from Arkansas for her courtesies.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arkansas.
  Mrs. LINCOLN. Mr. President, I thank my colleagues, Senator Lieberman 
and Senator Graham, for their thoughtful dedication to this issue and 
certainly looking for the right compromise and, more importantly, for 
their support of our troops, the men and women in uniform and those who 
serve this country all across the globe.

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