[Congressional Record (Bound Edition), Volume 150 (2004), Part 10]
[Senate]
[Pages 13499-13502]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             PRISONER ABUSE

  Mr. LEAHY. Mr. President, I understand that at the time the Leahy 
amendment comes up, there is likely to be a tabling motion. It would 
be, in effect, a second-degree amendment offered by others on the 
Judiciary Committee.
  The amendment would require the Attorney General to produce documents 
that the Judiciary Committee needs in order to conduct oversight of the 
Department of Justice.
  The Judiciary Committee has to get to the bottom of the prisoner 
abuse scandal. Aspects of this scandal are within the jurisdiction of 
the Judiciary Committee. To get to the bottom of it, we require 
documents from the Attorney General.
  What happens if we are blocked from that? I say to my friends that if 
they vote to block us from getting the documents we seek, what they are 
doing, whether intentionally or otherwise, is contributing to a 
coverup.
  Let me explain why this amendment is so important. There has been 
much debate over the last several days and weeks about the abuse of 
foreign prisoners, and the guidance provided by the President's lawyers 
with regard to torture. This debate will continue for some time 
throughout our country, particularly as more courts-martial are held, 
with the facts emerging slowly, and as the White House releases only 
some of the documents that are needed to fully understand the origins 
of the scandal.
  In the meantime, the Senate, the body that is supposed to be the 
conscience of the Nation, should act. There are some very basic things 
we can do to clarify U.S. policy regarding the treatment of foreign 
prisoners. We can bring greater transparency to this issue. That is 
what my amendment does. It is very straightforward, with three basic 
sections.
  First, it lays out U.S. policy with regard to the treatment of 
prisoners. Second, it establishes basic reporting requirements to which 
the Congress and the American people are entitled. Finally, it sets out 
a training requirement for civilian contractors who come into contact 
with foreign prisoners.
  With regard to the policy, my amendment is very forthright. It states 
that the United States must treat all foreign prisoners humanely and in 
a manner that the United States would consider legal if perpetrated by 
the enemy against an American prisoner. That is a restatement of many 
decades of U.S. policy and the Army's own regulations.
  My amendment also reaffirms the obligation of the United States to 
abide by the legal prohibitions against torture. That is the law of the 
land.
  The memos authored by the Justice Department apparently reveal 
another view: that torture can be ordered by the President despite 
clear laws in the United States against it. Even President Bush now 
says he disagrees with that view.
  We should reaffirm that torture is not allowed under any 
circumstances.
  The amendment also codifies the longstanding Army regulation 
governing the treatment of foreign prisoners. That regulation states 
that where there is doubt about the legal status of a foreign prisoner, 
then the prisoner is entitled to the protection of the Geneva 
Convention, at least until a status can be appropriately determined by 
a ``competent tribunal.'' The procedures for the tribunal are specified 
in regulation.
  Unfortunately, our government has ignored this regulation during the 
course of the war on terrorism and the war in Afghanistan. No such 
screenings have been conducted in Afghanistan. The administration 
simply designates someone as a terrorist and that is enough to land 
them in prison indefinitely.
  We have not had one trial by military commission yet. And certainly 
we determined that some of these people we called terrorists, who could 
be held indefinitely, were not terrorists, because we let some people 
go. I suspect some more people will be let go.
  We are in this bind because the administration failed to follow the 
Army's own guidance. The military lawyers knew there would be 
situations when the legal status of a foreign person captured by our 
troops was not clear, so they devised a very careful, very basic 
screening process. By conducting these status hearings, we would then 
know what rights and what legal protections the individual is entitled 
to. That is the military policy. It is certainly the policy our U.S. 
military wants other countries to follow, and the one we said we will 
follow.
  My amendment further states that it is in the interest of the United 
States to expeditiously prosecute the cases of those held at Guantanamo 
Bay. We have given the administration wide latitude in how it operates 
in Guantanamo. Congress understands we are fighting a new kind of war, 
one where civilians are at great risk, where intelligence is critical, 
and where the country has to be tough against its enemy.
  Having said that, after all the months and years we held prisoners in 
Guantanamo, not a single case has been prosecuted. Not five, not four, 
not three, not two, not one. Not a single prosecution. One would think 
that with the thousands of lawyers in our military and our Justice 
Department, we could act with some greater dispatch. One would think 
that of all the people locked up indefinitely, we could have found one, 
just one, in all those prisoners that we could have prosecuted. But 
that is not the case.
  For the bad actors, the murders, the terrorists at Guantanamo, we 
need to bring charges against them so that the victims of their crimes 
can have justice and so that those accused, if found guilty, can 
finally have their fate determined. These indefinite detentions, where 
nobody is prosecuted, where no actions are taken, are contrary to our 
legal system and contrary to the security interests of the United 
States.
  In the reporting section of my amendment, I ask for four basic pieces 
of information: One, a quarterly report providing the number of 
prisoners who were denied prisoner of war status and the basis for 
denying that status; two, the proposed plan for holding military 
commissions at Guantanamo Bay; third, previous Red Cross reports 
provided to the military regarding the treatment of prisoners--the ICRC 
reports can be submitted in classified form as the ICRC has requested; 
and four, a report setting forth prisoner interrogation techniques that 
have been approved by the administration.
  Much of this information has dribbled out in press reports and 
through leaks. Why don't we set the record straight and let the 
American people have access to this information?
  The administration ought to have a more orderly process in place for 
disclosing this information. It will require some structured reporting 
that is long overdue.
  Finally, we know that many prison abuses were carried out by civilian 
contractors. We do not know who these people are, where they came from, 
or what they were trained to do. At a minimum, we should require these 
contractors, just as we require of our military personnel, to be 
trained in the

[[Page 13500]]

laws of war and international humanitarian law. It is imperative they 
understand what the law requires when it comes to the treatment of 
foreign prisoners.
  There is nothing complicated about this amendment. It simply sets out 
a more coherent framework with regard to how we treat foreign 
prisoners.
  Now, let me turn to the portion of the amendment that I suspect will 
be subject to a tabling motion--the second-degree amendment.
  There is a popular expression used when a group of people mean to 
work together to protect against possible harm or danger. It is called 
``circling the wagons,'' and it comes from American pioneers, who used 
to form their wagons into a circle to better defend against an attack.
  If a move is made to table this amendment, I would say that we are 
seeing a circling of the wagons by Republicans on behalf of the 
administration so that none of the information we seek can come out. I 
find that regrettable, but it is not surprising. It is an election 
year.
  Americans are becoming increasingly concerned about the 
administration's handling of the war in Iraq: no weapons of mass 
destruction, the disingenuous link to the September 11 attacks, the 
leak of a CIA operative's name, the months of continued violence 
against Coalition soldiers after the President had proclaimed victory, 
and then the photographs out of Abu Ghraib. The American public is sick 
and tired of being lied to. They are sick of the secrecy. They want 
answers, but the wagons continue to circle.
  This amendment requires the administration to cooperate with a 
thorough congressional investigation, by Republicans and Democrats 
alike, into the abuse of prisoners in U.S. custody. It requires the 
release of all documents relative to the scandal. All documents--not 
just a few selected by the administration when the pressure is on.
  I would say this: Those who want to keep these documents hidden 
should know that at some point the day of reckoning is going to come. 
We are now at a crisis point. Is the Senate of the United States 
content to serve as an arm of the Executive Branch? Water flows 
downhill, and so does Government policy. Somewhere in the upper reaches 
of this administration a process was set in motion that seeped forward 
until it produced this scandal. To put this scandal behind us, first we 
have to understand what happened. And we cannot get to the bottom of 
this until there is a clear picture of what happened at the top.
  For many months, the Attorney General and other senior administration 
officials have refused to answer letter requests for documents relating 
to the interrogations of detainees abroad.
  Earlier this month, the Attorney General appeared before the 
Judiciary Committee for the very first time since the war in Iraq 
began, but he refused to answer direct questions posed by Senators and 
refused to give us the documents we requested regarding the treatment 
and interrogation of prisoners. And not only that, he offered no legal 
challenge for his refusal, and practically challenged the Judiciary 
Committee to subpoena him.
  When the Judiciary Committee met last week, I proposed a subpoena. 
Our Republican colleagues said it was too broad. We narrowed it down to 
23 specific documents. When the chairman said it was premature, Senator 
Feinstein proposed that we amend the subpoena to give the Attorney 
General more time to produce the documents voluntarily. Even then, it 
was voted down.
  Yesterday, in a small gesture in response to public pressure, the 
White House released a tiny subset of the materials we sought. All of 
these should have been produced earlier. Much more remains hidden. Of 
the 23 we requested, we got 3, and of those 3, 2 had already been 
posted on the Internet. So, in effect, the administration gave us one 
voluntarily. Though this is a self-serving selection of documents, it 
is a beginning. I give the administration credit for that. But for the 
Judiciary Committee and the Senate to find the whole truth, we will 
need much more cooperation.
  The documents released yesterday raised more questions than they 
answered. The White House released a January 2002 memo signed by 
President Bush calling for the humane treatment of detainees. But did 
the President sign any orders or directives after January 2002? Did he 
sign any with regard to prisoners in Iraq? Why won't the President's 
counsel comment on what the President said or ordered?
  Why did Secretary Rumsfeld issue and later rescind tough 
interrogation techniques? How did these interrogation techniques come 
to be used in Iraq, where the administration maintains that it has 
followed the Geneva Conventions?
  Where is the remaining 95 percent of the material requested by 
members of the Senate Judiciary Committee? Why is the White House 
withholding relevant documents that were produced after April 2003?
  When are we going to stop sitting on our hands, becoming a 
rubberstamp for an administration cloaked in secrecy?
  We have the legal right, the constitutional obligation, and the moral 
authority to ask questions and demand answers today. We have to keep 
the pressure on until we get honesty and answers. I hope we will stand 
up and say that we are an independent body in the Senate and that we 
are willing to ask questions.
  More and more, the American people can see that when you ask for 23 
documents, and you only get 3, 2 of which have already been released by 
the press, that is not cooperation. It is not openness or cooperation 
when there is an arbitrary cutoff of documents after April 2003. It is 
not cooperation when we cannot find out why there is a difference 
between the advice that comes from Attorney General Ashcroft's office 
and what the President says he is going to do. And it is certainly not 
cooperation when we cannot get to the root of this terrible disconnect 
between stated policy and the photographs of the torture at Abu Ghraib.
  I must say, I am suspicious because I asked about prisoner abuse 
months before the pictures came out. I have asked about Afghanistan. I 
was told that the U.S. was complying with the Torture Convention. But 
we now find that some prisoners died at the hands of some of the 
jailers.
  I have asked the same questions about Guantanamo, including questions 
like why do we have hundreds and hundreds and hundreds of detainees, 
but we cannot find a single one--not even one--we feel confident enough 
to bring charges against before a military commission? It should be one 
of the easiest places in the world, if there is any evidence, to get a 
conviction. Not one trial out of those hundreds and hundreds and 
hundreds of prisoners?
  Do we wonder why the rest of the world asks whether America has lost 
its moral compass? As an American, I do not think we have. I believe 
very strongly in the morality of our country. But I worry very much 
about what some of our leaders are holding back. I wish we would get 
all these matters out. I believe we would be better off if we did. We 
would look better in the eyes of the rest of the world. The United 
States is not a country that can and should condone torture. We are a 
country that expects to play by the highest rules because we ask others 
to, even when our enemies do not. Even during the two world wars, we 
treated our prisoners humanely.
  This is a question we should ask: Why this sudden change in our 
policies?
  I will close by reminding my colleagues that I think it was about a 
year ago the Secretary of Defense said: We will know if we are winning 
the war on terrorism if we are capturing or killing or stopping more 
terrorists than the madrasas are recruiting and churning out.
  After Abu Ghraib, I asked the Secretary of Defense: By that 
definition, are we winning or not? He said he did not know. Obviously, 
we are not winning. There are recruiting posters all over the Middle 
East, and even into Turkey, with photographs from Abu Ghraib.

[[Page 13501]]

  If the administration will not come forward on its own, if the 
administration will not tell us what is happening, we--at least the men 
and women in the Senate--should have the courage to demand answers.
  In the weeks since a courageous soldier-whistleblower and a probing 
journalist revealed to the world the abuses at Abu Ghraib prison, 
evidence has continued to seep out almost daily of similar mistreatment 
of prisoners in other U.S. military detention centers in Iraq, 
Afghanistan, and Guantanamo. White House officials and the political 
appointees in the Department of Defense have tried to deflect their own 
responsibility by singling out a few ``bad apples'' for punishment.
  But bit by bit, the press is uncovering new information, and it all 
points toward those higher up in the chain of command.
  On May 15 of this year, President Bush said, ``The cruelty of a few 
has brought discredit to their uniform and embarrassment to our 
country.'' That statement, it now turns out, was only partly true. 
Since then, we have learned a great deal about what was discussed and 
debated at the highest levels of our government.
  While the President insists that he wants to get to the bottom of 
this, high-level White House and Pentagon officials refuse to answer 
questions or to disclose the relevant documents requested by the 
Congress.
  They deny any pattern of illegality in the interrogation and 
treatment of prisoners, while it becomes clearer by the day that this 
scandal was set in motion by the actions of senior officials.
  We learned that in October 2003, General Sanchez ordered the 
``harmonization'' of military policing and intelligence in Iraq, 
placing military intelligence in control of key cellblocks at Abu 
Ghraib prison.
  We learned from the Washington Post that, over the past 18 months, 
the Army has opened investigations into at least 91 cases of possible 
misconduct by soldiers against detainees in Iraq and Afghanistan. And 
the President talks about a few bad apples. The President's comments 
have become harder and harder to swallow.
  We learned on June 7 from the Wall Street Journal about a March 2003 
Pentagon report contending that the President was not bound by laws 
prohibiting torture. This report went so far as to say that Government 
agents who tortured prisoners at the President's direction cannot be 
prosecuted by the Justice Department.
  The very next day, the Washington Post reported that in August 2002 
the Justice Department advised the White House that torturing al-Qaida 
terrorists in captivity abroad ``may be justified.'' The memo argued 
that the President has absolute authority in the ``war against 
terrorism'' and that international treaties against torture, which the 
United States ratified, ``may be unconstitutional.'' And, this report 
continued, Congress is completely powerless when the President acts as 
Commander in Chief.
  That same day, the Attorney General made his first appearance before 
the Judiciary Committee in 15 months. He refused to give a copy of the 
Justice Department memo to members of the committee even though he was 
unable to say on what legal authority he based his refusal.
  A week later, Republicans on the Judiciary Committee blocked a 
subpoena seeking these documents. Some called it a ``fishing 
expedition,'' even though we asked for a grand total of 23 documents.
  The committee of jurisdiction had the opportunity and the 
responsibility to get us closer to the truth about why these abuses 
occurred, but the Republicans chose to circle the wagons instead of 
doing what is right for the country.
  The stonewalling in the prison abuse scandal has been building to a 
crisis point. Yesterday, responding to public pressure, the White House 
has released a small subset of the documents that offers a glimpse into 
the genesis of this scandal. There are many items missing from this 
release, however, including all but three of the 23 items Judiciary 
Committee Democrats requested in the subpoena that was voted down by 
Republicans last week. Where are the 20 remaining documents? Perhaps 
the most ominous omission is the lack of any documents reflecting White 
House involvement in this issue since military action began in Iraq 
last year. The released documents do not include a single reference to 
the treatment or interrogation of detainees in Iraq, despite the 
heinous abuses at Abu Ghraib that we have all seen with our own eyes.
  The White House released a Presidential memorandum dated February 7, 
2002, directing that al-Qaida and Taliban detainees be treated 
humanely. But, did the President sign any directive regarding the 
treatment or interrogation of detainees after February 7, 2002? More 
specifically, did the President sign any directive after the United 
States invaded Iraq on March 19, 2003? These questions remain 
unanswered.
  Last week we learned that Secretary Rumsfeld personally approved 
plans to hide some of the prisoners in Iraq so that they could not be 
visited by the International Committee of the Red Cross. They became 
nameless, faceless, and numberless. This is not only Kafkaesque, it was 
a direct violation of the Geneva Conventions. In a press conference 
last Thursday, Secretary Rumsfeld acknowledged his role in hiding these 
``ghost prisoners,'' including one ``high value'' prisoner who was lost 
in custody for 7 months.
  Yet in the same breath, Secretary Rumsfeld said, ``I have not seen 
anything that suggests that a senior civilian or military official of 
the United States of America . . . could be characterized as ordering 
or authorizing or permitting torture or acts that are inconsistent with 
our international treaty obligations or our laws or our values as a 
country.''
  Secretary Rumsfeld should read the memos written by the Department of 
Justice and by his own legal staff at the Pentagon. The leaked and 
released documents reveal plenty to suggest that legal arguments were 
made and orders were signed in violation of our laws and treaty 
obligations. The few documents released by the White House yesterday 
serve to confirm earlier press reports and postings.
  A year ago, after learning that the United States might be using 
techniques that pushed the limits of the Torture Convention, I wrote to 
the White House looking for assurances that the administration was 
complying with U.S. and international law. I received a letter that 
stated clearly and unequivocally that it was and would continue to do 
so.
  In fact, we now know that the White House and the Pentagon were 
actively working to circumvent the law. Guidelines for interrogating 
prisoners were applied routinely in multiple locations in ways that 
were illegal. It is also clear that U.S. officials knew the law was 
being violated and for months, possibly years, did virtually nothing 
about it.
  Instead, they detailed their lawyers to find legal loopholes and 
interpretations that would redefine torture and devise innocuous 
sounding labels for their interrogation techniques, such as ``sensory 
deprivation'' or ``stress and duress.''
  I wrote to the White House, the Pentagon and the CIA last June, a 
year ago, about the reported torture of Afghan prisoners by U.S. 
interrogators in December 2003. Two of those prisoners, both of young 
age, had died during interrogation. Others described being forced to 
stand naked in a cold room for days without interruption, with their 
arms raised and chained to the ceiling and their swollen ankles 
shackled. They said they were denied sleep and forced to wear hoods 
that cut off the supply of oxygen.
  My letter, and subsequent letters, were either ignored or received 
responses which, in retrospect, bore no resemblance to the facts. 
Sixteen months later, the investigations of those deaths, ruled 
homicides, remain incomplete.
  Just last week, in a case we had not known of previously, a CIA 
contractor was indicted for beating an Afghan detainee with a large 
flashlight. The Afghan, who had surrendered himself at

[[Page 13502]]

the gates of a U.S. military base, died in custody on June 21, 2003, 
just days before I received a letter from the Bush administration 
saying that our Government was in full compliance with the Torture 
Convention.
  Prisoners who are suspected of having killed or attempted to kill 
Americans do not deserve comforts. But the use of torture undermines 
our global efforts against terrorism and is beneath a great Nation.
  It is illegal whether U.S. personnel engage in such conduct 
themselves or they hand over prisoners to the government agents of 
another country where torture is commonly used. That happened in 2002, 
when U.S. agents sent a Canadian citizen to Syria, letting others do 
the dirty work. Yet the White House will not provide us with the 
documents in which they concoct theories to justify turning over 
detainees to foreign nations that conduct torture.
  There are many victims of this policy. First are the Iraqis, Afghans, 
and other detainees, some of them innocent of any crime, who were 
tortured or subjected to cruel and degrading treatment. The 
International Committee of the Red Cross reported that it was told by 
the U.S.-run Coalition Provisional Authority in Iraq that 70 to 90 
percent of those in detention were innocent civilians who had been 
swept up in raids.
  That was information that U.S. officials gave to the ICRC. It came 
from our own Government. It is no wonder that after the horrific images 
were broadcast around the world, the Pentagon started to clean out Abu 
Ghraib, releasing thousands of prisoners who apparently never should 
have been there.
  We now know that many other Iraqis and Afghans died in U.S. custody, 
in conditions so abhorrent they conjure up images reminiscent of a 
Charles Dickens novel. Many of those deaths were never investigated.
  The other victims of this policy are our own soldiers, who 
overwhelmingly perform their duties with honor and courage, and who now 
have been unfairly tarnished and endangered by these images and this 
scandal.
  Our troops have also been tarnished by profiteering companies, none 
more brazen than Halliburton, which have reaped huge profits while our 
soldiers are risking their lives and losing their lives. Yet 
Republicans blocked Senate action to make war profiteering a crime and 
hold these people accountable.
  Countless people around the world, especially in the Middle East, 
suspected that President Bush's decision to invade Iraq had a lot more 
to do with Iraqi oil than with any of the other reasons he gave that 
have since been proven false.
  I do not share that view, but what better evidence to fuel those 
charges than Halliburton's noncompetitive contracts and waste. It is 
fraud and abuse on a scale that would shock the conscience of anyone 
except perhaps an Enron executive. Halliburton seems to regard the U.S. 
Treasury as its own personal bank account. With ``cost plus'' 
contracts, what do they care how much they overcharge the taxpayers? 
They are guaranteed their profits regardless. It is the antithesis of 
patriotism.
  And then there is America itself. Our Bill of Rights was the model 
for the Universal Declaration of Human Rights. Generations of Americans 
have tried to live up to its promise and to set an example for the 
world. The damage this administration has caused to our credibility and 
reputation as a nation of laws and of decency will take years to 
repair. Just as they have squandered so much of the world's respect and 
support for our country after September 11, so now have they squandered 
much of the human rights leadership that has taken so many years to 
painstakingly build. This is a travesty of monumental proportions.
  The individuals who committed those acts are being punished, as they 
must be. But what of those who gave the orders or set the tone or 
looked the other way? What of the White House and Pentagon lawyers who 
tried to justify the use of torture in their legal arguments? These 
lawyers have twisted the law, advising the President that for an abuse 
to rise to the level of torture it must go on for months or even years, 
and be so severe as to generate the type of pain that would result from 
organ failure or even death.
  Think about that, and you begin to realize how destructive and 
outrageous this is.
  And what of the President? Last March, referring to the capture of 
U.S. soldiers by Iraqi forces, President Bush said, ``We expect them to 
be treated humanely, just like we'll treat any prisoner of theirs that 
we capture humanely. If not, the people who mistreat the prisoners will 
be treated as war criminals.''
  At the same time, the President's own lawyer, ignoring the Torture 
Convention altogether, called the Geneva Conventions ``quaint'' and 
``obsolete.'' Today, soldiers who have spoken out about the crimes they 
witnessed and the involvement of their superiors have been threatened 
and punished by the Defense Department they have honorably served.
  One need only review history to understand why the law makes no 
exception for torture. The torture of criminal suspects flagrantly 
violates the presumption of innocence on which our criminal 
jurisprudence is based, and confessions extracted through torture are 
notoriously unreliable.
  Once exceptions are made for torture it is impossible to draw the 
line, and more troubling is who would be in charge of drawing it. If 
torture is justified in Afghanistan, why is it not justified in China, 
or Syria, or Argentina, or Miami?
  If torture is justified to obtain information from a suspected 
terrorist, why not from his wife or children, or from his friends or 
acquaintances who might know of his activities or his whereabouts? This 
has happened in many countries, and decades later those societies are 
still trying to recover.
  The United States cannot become the model of justice our forefathers 
envisioned if we continue to tolerate the twisted logic that has been 
given currency with increasing regularity in U.S. military prisons and 
in the White House since 9/11. Some argue it is a new world since those 
terrible attacks on our country 3 years ago. And to some degree, they 
are right, which is why we have reacted with tougher laws and better 
tools to fight this war. But do we really want to usher in a new world 
that justifies inhumane, immoral and cruel treatment as any means to an 
end?
  As a nation of laws, and as the world's oldest democracy and champion 
of human rights, we must categorically reject the dangerous notion that 
is now in our midst, seeking our assent, or our silence, that torture 
can be legally justified and normalized.
  President Bush has said he wants the whole truth, but he and his 
administration have been stonewalling from the top. The President must 
order all relevant agencies to release the memos from which these 
policies were devised.
  He must clearly and unequivocally order all of his subordinates and 
every member of our armed services to adhere to our international 
treaty obligations including the Geneva Conventions, the Torture 
Convention, and all applicable U.S. laws. And finally, there needs to 
be a thorough, independent investigation of the actions of those 
involved, from the people who committed abuses, to the officials who 
set these policies in motion.
  Only when these actions are taken will we begin to heal the damage 
that has been done.
  The PRESIDING OFFICER (Ms. Collins). The Senator from Texas.

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