[Congressional Record (Bound Edition), Volume 150 (2004), Part 11]
[Senate]
[Pages 14955-14956]
[From the U.S. Government Publishing Office, www.gpo.gov]




            INTERROGATION AND TREATMENT OF FOREIGN PRISONERS

  Mr. LEAHY. Mr. President, a number of us remain concerned about the 
abuse of foreign prisoners, and about the guidance provided by the 
President's lawyers with regard to torture. Much has happened since 
June 17, 2004, when the Judiciary Committee defeated, on a party-line 
vote, a subpoena resolution for documents relating to the interrogation 
and treatment of detainees and June 23, when the Senate defeated an 
amendment to the Defense Authorization bill on a party-line vote that 
would have called upon the Attorney General to produce relevant 
documents to the Senate Judiciary Committee. Because of continued 
stonewalling by the administration, we remain largely in the dark.
  Several Republican Senators have indicated that we should give the 
administration more time to respond to inquiries, although some of us 
had been asking for information for more than a year. The Republican 
administration continues its refusal to provide the documents that have 
been requested and refused even to provide an index of the documents 
being withheld.
  The Department of Justice admitted in the July 1 letter that it had 
``given specific advice concerning specific interrogation practices,'' 
but would not disclose such advice to members of this committee, who 
are duly elected representatives of the people of the United States, as 
well as members of the committee of oversight for the Department of 
Justice. USA Today reported on June 28, 2004, that the Justice 
Department issued a memo in August 2002 that ``specifically authorized 
the CIA to use `waterboarding,''' an interrogation technique that is 
designed to make a prisoner believe he is suffocating. This memo is 
reportedly classified and has not been released. According to USA 
Today: ``Initially, the Office of Legal Counsel was assigned the task 
of approving specific interrogation techniques, but high-ranking 
Justice Department officials intercepted the CIA request, and the 
matter was handled by top officials in the deputy attorney general's 
office and Justice's criminal division.''
  So while former administration officials grant press interviews and 
write opinion articles denying wrongdoing; while the White House and 
Justice Department hold closed briefings for the media to disavow the 
reasoning of this previously relied upon memoranda and to characterize 
what happened; Senators of the United States are denied basic 
information and access to the facts. The significance of such 
unilateralism and arrogance shown to the Congress and to its oversight 
committees cannot continue.
  I have long said that somewhere in the upper reaches of this 
administration a process was set in motion that rolled forward until it 
produced this scandal. To put this scandal behind us, first we need to 
understand what happened. We cannot get to the bottom of this until 
there is a clear picture of what happened at the top. It is the 
responsibility of the Senate, including the Judiciary Committee, to 
investigate the facts, from genesis to final approval to implementation 
and abuse. The documents must be subject to public scrutiny, and we 
will continue to demand their release.
  There is ample evidence that American officials, both military and 
CIA, have used extremely harsh interrogation techniques overseas, and 
that many prisoners have died in our custody. Administration officials 
admit that 37 foreign prisoners have died in captivity, and several of 
these cases are under investigation, some as homicides. On June 17, 
David Passaro, a CIA contractor, was indicted for assault for beating 
an Afghan detainee with a large flashlight. The prisoner, who had 
surrendered at the gates of a U.S. military base in Afghanistan, 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.
  Some individuals who committed abusive acts are being punished, as 
they must be. But what of those who gave the orders, 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? The White 
House has now disavowed the analysis contained in the August 1, 2002, 
memo signed by Jay Bybee, then head of the Office of Legal Counsel. 
That memo, which was sent to the White House Counsel, argued that for 
acts to rise to the level of torture, they must go on for months or 
even years, or be so severe as to generate the type of pain that would 
result from organ failure or even death. The White House and DOJ now 
call that memo ``irrelevant'' and ``unnecessary'' and say that DOJ will 
spend weeks rewriting its analysis.
  As we all know, on June 22, 2004, the White House released a few 
hundreds of pages of documents--a self-serving and highly selective 
subset of materials. The documents that were released raised more 
questions than they answered. Now, more than two weeks later, none of 
those issues have been resolved.
  For example, the White House released a January 2002 memo signed by 
President Bush calling for the humane treatment of detainees. Did the 
President sign any orders or directives after

[[Page 14956]]

January 2002? Did he sign any with regard to prisoners in Iraq?
  Why did Secretary Rumsfeld issue and later rescind tough 
interrogation techniques? And 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 material requested by members of 
the Senate Judiciary Committee? Why is the White House withholding 
relevant documents dated after April 2003?
  I was gratified that the Senate on June 23 passed an amendment that I 
offered to the Defense authorization bill that will clarify U.S. policy 
with regard to the treatment of prisoners and increase transparency. 
But the stonewalling continues: The Pentagon opposes this amendment. I 
am hopeful that we will prevail in keeping this provision in the bill. 
Five Republican Senators supported the amendment against an attempt to 
table it. I thank each of them. I also want to commend the Senate for 
adopting, also as part of the Defense authorization bill, the Durbin 
amendment against torture, and I want to acknowledge an important step 
taken in the House on the same day. The House Appropriations Committee 
added language to the 2005 Justice Department spending bill that would 
prohibit any department official or contractor from providing legal 
advice that could support or justify use of torture.
  As it completed its term, the Supreme Court issued its decisions in 
highly significant cases involving the legal status of so-called enemy 
combatants. The Court reaffirmed the judiciary's role as a check and a 
balance, as the Constitution intends, on power grabs by the executive 
branch. The Court ruled that the Bush administration's assertion that 
the President can hold suspects incommunicado, indefinitely and without 
charge, is as arrogant as are its legal arguments that the President 
can authorize torture. No President is above the law or the 
Constitution. The Court properly rejected the administration's plea to 
`just trust us' and repudiated its assertion of unchecked power.
  This Senate and in particular the Judiciary Committee continues to 
fall short in its oversight responsibilities. President Bush has said 
he wants the whole truth, but he and his administration instead have 
circled the wagons to forestall adequate oversight. The President must 
order all relevant agencies to release the memos from which these 
policies were devised. 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.
  We need to get to the bottom of this scandal if we are to play our 
proper role in improving security for all Americans, both here at home 
and around the world.

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