[Congressional Record (Bound Edition), Volume 150 (2004), Part 13]
[Senate]
[Pages 17041-17044]
[From the U.S. Government Publishing Office, www.gpo.gov]




             ATTEMPTS TO OBTAIN ADMINISTRATION MEMORANDUMS

  Mr. LEAHY. Mr. President, as we go out of session for the long recess 
at the end of this week, I am disappointed to report that Congress 
seems content to let the issue of foreign prisoner abuse linger without 
effective congressional oversight.
  The House Armed Services Committee made it clear weeks ago that it 
believed the ongoing military investigations into the abuses were 
sufficient. Until today, the Senate Armed Services Committee had not 
held a hearing on the prisoner abuse issue in more than a month. 
Chairman Warner called a hearing this morning to hear a report on one 
of the investigations: an assessment of Army detention operation 
doctrine and training, completed by the Army Inspector General.
  Waiting for the administration to investigate itself is not the 
answer. There are at least four completed and seven ongoing military 
reviews into the treatment of prisoners held in detention facilities in 
Iraq, Afghanistan, and Guantanamo Bay. While these reviews are 
necessary, they fail to address critical issues: What role did White 
House officials, the Justice Department and other agencies play in 
developing the policies that allowed these abuses to occur? The 
military investigations may uncover what went wrong at the bottom of 
the chain of command, but it will take aggressive congressional 
oversight to discover what went wrong at the top of the chain.
  We need to get to the bottom of this scandal, but we also need to get 
to the top of it. Only by doing that can we responsibly put it behind 
us and repair the damage it threatens to our security, to our 
credibility and to the safety of our troops.
  Numerous attempts in Congress to uncover the truth have failed 
because Republicans have circled the wagons and refused to support 
oversight efforts. In the past week, Democratic members of the House 
introduced resolutions requiring the Secretary of State and the 
Attorney General to turn over all documents related to the treatment of 
prisoners in Iraq, Afghanistan and Guantanamo Bay. The resolutions 
failed on straight party-line votes, first on July 15 in the House 
International Relations Committee, and yesterday in the House Judiciary 
Committee.
  Democratic members of the Senate Judiciary Committee tried to make 
progress as long ago as June 17, 2004, but the Committee, on a party-
line vote, rejected a subpoena resolution for documents relating to the 
interrogation and treatment of detainees. Since that date, no action 
has been taken by the Senate Judiciary Committee, despite the clear 
need to resolve these issues.
  In the June 17 Committee meeting, and in subsequent days on the 
Senate Floor, several Senators said that we should give the 
administration more time to respond to inquiries, even though some of 
us had been asking for information for more than a year. Questions were 
submitted to the Attorney General on June 15, following his appearance 
before the Committee a week earlier. In the June 8 hearing, the 
Attorney General refused to provide information and essentially 
demanded that the Committee issue a subpoena for the requested 
materials.
  On June 17, Democratic Judiciary Committee members were urged to 
withhold a subpoena and to give the Attorney General until the end of 
the month to respond. At that time, Chairman Hatch said he believed the 
administration should comply; he said that it was ``the right thing to 
do.'' He said that if the administration did not respond by the end of 
June, then ``I may very well vote for a subpoena at that time.'' That 
same day, Senator DeWine said, ``I think the administration has to 
[clarify the policy] and has to release the information that will 
clarify that.'' Senator Specter said, ``I believe that this committee 
ought to know what the interrogation practices are

[[Page 17042]]

and I am prepared to pursue them.'' But all in all, the Republicans 
asked us to give the Department more time, to wait for the Attorney 
General to answer our questions.
  And then, the Attorney General--through an aide--on July 1, again 
thumbed his nose at his obligations to the Committee of jurisdiction 
over the Department of Justice. He refused to provide a comprehensive 
set of answers to questions submitted by the nine Democratic members of 
this Committee, he refused to provide almost all of the documents that 
were requested, and, again, he refused even to provide an index of the 
documents being withheld. Because of the continued stonewalling by the 
administration, Congress and its committees of jurisdiction over the 
Department of Justice remain largely in the dark about these pertinent 
matters.
  Other Senate committees have faced similar obstacles, even when there 
have been bipartisan requests for information. The Pentagon played 
games with the Senate Armed Services Committee for seven weeks before 
showing members the reports on treatment of prisoners in Iraq produced 
by the International Committee of the Red Cross, ICRC. While such 
reports are generally not released, the ICRC agreed early on that 
members of Congress should have access to them on a confidential basis. 
Members of the House and Senate Armed Services Committees were first 
shown ICRC reports on Iraq last Wednesday, July 14, after having 
requested them in early June.
  Access to these reports was extremely limited, causing some Members 
of the House Armed Services Committee to complain that the information 
was stale and that Pentagon briefers were unable to shed light on the 
abuses. It is puzzling that Members of Congress--and specifically 
Members of the committees of jurisdiction--should be treated so 
incidentally.
  The ICRC reports did make an important contribution, however. They 
apparently confirm that U.S. officials should have been alerted to the 
prisoner abuse at Abu Ghraib prison months before the Pentagon 
announced an investigation on January 16, 2004, and before General 
Taguba was assigned to lead this inquiry on January 31, 2004. According 
to House members, the ICRC reports alleged serious abuses at Abu Ghraib 
last fall, a time period that coincides with the point at which U.S. 
military intelligence reportedly took control of certain cellblocks of 
Abu Ghraib. In addition to the ICRC reports, the New York Times has 
reported that in November 2003, a small group of interrogators at Abu 
Ghraib began sharing allegations of prisoner abuse with senior 
officers. It is hard to comprehend the administration's apparent 
failure to respond to the ICRC and to internal military reports of 
abuse for weeks or months in late fall and early winter.
  Some individuals who committed abusive acts are being punished, as 
they must be. But this issue runs much deeper. 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, Office of Legal Counsel memorandum. 
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 the 
Department of Justice now call that memo ``irrelevant'' and 
``unnecessary'' and say that DOJ will spend weeks rewriting its 
analysis.
  A troubling editorial in the July 15 Washington Post charges that 
several detainees in secret CIA custody have probably been tortured, 
and that the August 1, 2002, memo was written after those acts occurred 
in order to justify the acts as legal.
  Meanwhile, we continue to hear of more documents. The Department of 
Justice admitted in the July 1 letter to the Judiciary Committee that 
it had ``given specific advice concerning specific interrogation 
practices,'' but would not disclose such advice to members of the 
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 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.''
  While former administration officials grant press interviews and 
write opinion articles denying wrongdoing, and 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. I would hope that the significance 
of such unilateralism and arrogance shown to the Congress and to its 
oversight committees will register with each and every Member of this 
body.
  These memos, which may have governed official action for nearly two 
years, are of particular concern because so much of what is happening 
in detention centers remains hidden. In addition to Abu Ghraib in Iraq, 
Bagram in Afghanistan, and Guantanamo Bay, several shadowy detention 
centers are operated by the intelligence agencies or possibly the 
military, some under total secrecy. A report on secret detentions was 
released on June 17, 2004, by Human Rights First, a non-profit research 
and advocacy organization formerly called the Lawyers Committee for 
Human Rights. This report raises many important questions on the issue 
of foreign prisons. I will ask unanimous consent that the introduction 
be printed in the Record. The report, Ending Secret Detentions, 
describes a number of officially undisclosed locations that sources--
typically unnamed government sources quoted in the press--have 
described as detention centers for terrorism suspects. These sources 
have discussed facilities in Iraq, Afghanistan, Pakistan, Jordan, Diego 
Garcia, and on U.S. war ships. The ICRC has not been allowed to visit 
these facilities. It issued a public statement in March expressing its 
growing concern over ``the fate of an unknown number of people captured 
. . . and held in undisclosed locations.'' To date, its requests for 
access to the prisons have been denied.
  In Iraq, where the Bush administration claims to be following the 
Geneva Conventions, Human Rights First states that it is unclear if the 
ICRC has access to all detention facilities in the country. Even if it 
did, the Secretary of State admitted in June that he had approved 
requests to hide certain detainees from the International Red Cross.
  And what of the secret detention centers? Have these facilities been 
managed by officials operating under the legal analysis contained in 
DOJ memos that argue for a very narrow reading of the prohibition on 
torture? Have they been managed by officials acting in accordance with 
the President's determination that al-Qaeda and Taliban suspects are 
not protected by the Geneva Conventions? What is the legal status of 
these individuals? Even in Iraq, where, as I just mentioned, the 
administration claims to be applying the Geneva Conventions, there is a 
great deal of ambiguity. The Human Rights First report describes new 
categories of prisoners in Iraq, including ``security detainees,'' 
``high value detainees,'' and a group of prisoners whose status the 
Coalition Provisional Authority declined to discuss. These are not 
categories of prisoners defined in the Geneva Conventions, and without 
full access given the ICRC, no one can verify the circumstances under 
which they are being held and interrogated.

[[Page 17043]]

  The administration can provide a significant amount of information 
about its practices in handling foreign detainees without jeopardizing 
national security and while still protecting sensitive information. 
This should include relevant facts about detention centers, and an 
accounting of the number of detainees, their nationality, and the legal 
authority under which each is held. I also restate my longstanding 
request for the documents produced by the White House, the Justice 
Department, the Pentagon and other agencies that form the legal basis 
for this Administration's treatment and interrogation of foreign 
prisoners.
  With his words, President Bush says he wants the whole truth, but 
with his actions he and his administration instead have cynically 
blocked the doors that lead to the answers. The American people and the 
American troops who are put at risk by these policies and abuses need 
and deserve to understand how this happened, and they need to know it 
will not happen again. For the sake of our national security interests 
and our credibility, we need to show the world the right way that a 
democratic society corrects its mistakes. Thwarting adequate oversight 
and avoiding accountability will not make this problem go away, it will 
compound it.
  I ask unanimous consent the report to which I referred be printed in 
the Record.
  (There being no objection, the material was ordered to be printed in 
the Record, as follows:)

                  [From Human Rights First, June 2004]

                        Ending Secret Detentions

               (By Michael Posner and Deborah Pearlstein)


                            I. Introduction

       More than 3,000 suspected terrorists have been arrested in 
     many countries. Many others have met a different fate. Put it 
     this way, they're no longer a problem to the United States 
     and our friends and allies. (President George W. Bush, State 
     of the Union Address, February 4, 2003)
       In April, the U.S. Supreme Court heard oral arguments in 
     the cases of Jose Padilla and Yaser Hamdi--both U.S. citizens 
     who have been held in military detention facilities for more 
     than two years. One justice wondered aloud how the Court 
     could be sure that government interrogators were not abusing 
     these detainees. You just have to ``trust the executive to 
     make the kind of quintessential military judgments that are 
     involved in things like that,'' said Deputy Solicitor General 
     Paul Clement! Later that evening, CBS's 60 Minutes broadcast 
     the first shocking photographs of U.S. troops torturing Iraqi 
     prisoners at the Abu Ghraib detention center in Iraq.
       The photos from Abu Ghraib have made a policy of ``trust 
     us'' obsolete. But they are only the most visible symptoms of 
     a much larger and more disturbing systemic illness. Since the 
     attacks of September 11, the United States has established a 
     network of detention facilities around the world used to 
     detain thousands of individuals captured in the ``war on 
     terrorism.'' Information about this system--particularly the 
     location of U.S. detention facilities, how many are held 
     within them, on what legal basis they are held, and who has 
     access to the prisoners--emerges in a piecemeal way, if at 
     all, and then largely as a result of the work of 
     investigative reporters and other non-governmental sources. 
     The official secrecy surrounding U.S. practices has made 
     conditions ripe for illegality and abuse.
       Several of these facilities, including the U.S. military 
     bases at Guantanamo Bay, Cuba, and at Bagram Air Force Base 
     in Afghanistan, are well known. The existence of these 
     facilities--and the fact of unlawful conduct within them--
     have been widely publicized and well documented. Nonetheless, 
     there is still no or only conflicting information about how 
     many individuals are held there, troubling information about 
     inadequate provision of notice to families about the fact of 
     detainees' capture and condition, and unclear or conflicting 
     statements about detainees' legal status and rights. While 
     the International Committee of the Red Cross (ICRC) has 
     visited these facilities, their visits have been undermined 
     in ways contrary to the letter and spirit of binding law.
       In addition, there are detention facilities that multiple 
     sources have reported are maintained by the United States in 
     various officially undisclosed locations, including 
     facilities in Iraq, Afghanistan, Pakistan, Jordan, on the 
     British possession of Diego Garcia, and on U.S. war ships at 
     sea. U.S. Government officials have alluded to detention 
     facilities in undisclosed locations, declining to deny their 
     existence or refusing to comment on reports of their 
     existence.\3\ A Department of Defense official told Human 
     Rights First in June 2004 that while Abu Ghraib and 
     Guantanamo's Camp Echo were open to discussion, ``as a matter 
     of policy, we don't comment on other facilities.\4\ 
     Similarly, Captain Bruce Frame, a U.S. army spokesman from 
     CENTCOM, the unified military command that covers Africa, the 
     Middle East, and Central Asia, told Human Rights First only 
     that there ``may or may not'' be detention centers in 
     countries other than Iraq and Afghanistan in CENTCOM's area 
     of responsibility.\5\


                           The Known Unknowns

       What is unknown about this detention system still outweighs 
     what is known about it. But facilities within it share in 
     common key features that--while having unclear benefits in 
     the nation's struggle against terrorism--make inappropriate 
     detention and abuse not only likely, but virtually 
     inevitable.
       First, each of these facilities is maintained in either 
     partial or total secrecy. For the past half-century, the 
     United States has considered itself bound by international 
     treaties and U.S. military regulations that prohibit such 
     blanket operating secrecy. Yet in this conflict, the ICRC--
     which the United States has long respected as a positive 
     force in upholding international humanitarian law--has 
     repeatedly sought and been denied access to these 
     facilities.\6\ As the ICRC recently noted in a public 
     statement:
       Beyond Bagram and Guantanamo Bay, the ICRC is increasingly 
     concerned about the fate of an unknown number of people 
     captured as part of the so-called global war on terror and 
     held in undisclosed locations. For the ICRC, obtaining 
     information on these detainees and access to them is an 
     important humanitarian priority and a logical continuation of 
     its current detention work in Bagram and Guantanamo Bay.\7\
       Indeed, Human Rights First has been unable to identify any 
     official list of U.S. detention facilities abroad employed in 
     the course of the ``war on terrorism.'' There is likewise no 
     public accounting of how many are detained or for what reason 
     they are held. And there has been a disturbing absence of 
     serious congressional oversight of both known and undisclosed 
     detention facilities.\8\
       Second, these facilities have thrived in an environment in 
     which the highest levels of U.S. civilian leadership have 
     sought legal opinions aimed at circumventing the application 
     of domestic and international rules governing arrest and 
     detention. Where it would have once seemed crystal clear to 
     military commanders and on-the-ground military custodians 
     alike that the Geneva Conventions governed the arrest and 
     detention of individuals caught up in the conflicts in Iraq 
     and Afghanistan, this Administration has challenged the 
     applicability of those rules. In several recently leaked 
     legal opinions from White House Counsel, and the Departments 
     of Defense and Justice, it has become clear that some in the 
     Administration have given a green light to the wholesale 
     violation of these rules.\9\
       As a result, it remains unclear what legal status has been 
     assigned to those being detained at these U.S.-controlled 
     facilities. Are they prisoners of war, civilians who took a 
     direct part in hostilities (who the Administration calls 
     ``unlawful combatants''), or are they suspected of criminal 
     violations under civilian law? The Administration has applied 
     no clear system for defining their status. It also is unclear 
     under many circumstances which U.S. agency is ultimately 
     responsible for their arrest or the conditions of their 
     confinement. And it now seems that U.S. military and 
     intelligence agencies are involved in their interrogation, as 
     well as civilian or foreign government contractors to whom 
     aspects of detention and interrogation has been outsourced. 
     It is likewise unclear to whom a family member or legal 
     representative can appeal to challenge the basis for their 
     continued detention.
       Finally, the U.S. government has failed to provide prompt 
     notice to families of those captured that their family member 
     is in custody, much less information about their health or 
     whereabouts. In such cases, the families of individuals 
     removed to such unknown locations have had no opportunity to 
     challenge detentions that may continue for extended 
     periods.\10\ For example, Saifullah Paracha, according to 
     information his family received from the ICRC, has been 
     detained at Bagram Air Force Base for more than 11 months. 
     His wife and children remain in the dark, not only of the 
     reason for his detention, but also when they can expect Mr. 
     Paracha to be released or tried.\11\ Other individuals 
     captured more than a year ago remain in detention at other 
     undisclosed locations.\12\ The lack of information to family 
     members about these detainees violates U.S. legal obligations 
     and sets a negative precedent for treatment that may be 
     directed at U.S. soldiers in the future. It also engenders 
     great anguish and suffering on the part of the families of 
     detainees--no less than did the practice of ``forcible 
     disappearance'' in past decades--while engendering enormous 
     hostility toward the United States.


                  in the interest of national security

       The Administration has argued that, faced with the 
     unprecedented security threat posed by terrorist groups ``of 
     global reach,''\13\ it has had to resort to preventive 
     detention and interrogation of those suspected to have 
     information about possible terrorist attacks. According to 
     the Defense and Justice Departments, a key purpose of

[[Page 17044]]

     these indefinite detentions is to promote national security 
     by developing detainees as sources of intelligence. And while 
     much of what goes on at these detention facilities is steeped 
     in secrecy, intelligence agents insist that ``[w]e're getting 
     great info almost every day.''\14\
       Whatever the value of intelligence information obtained in 
     these facilities--and there is reason to doubt the 
     reliability of intelligence information gained only in the 
     course of prolonged incommunicado detention\15\--there is no 
     legal or practical justification for refusing to report 
     comprehensively on the number and location of these 
     detainees--or to fail to provide the identities of detainees 
     to the ICRC, detainees' families, their counsel, or to others 
     having a legitimate interest in the information (unless a 
     wish to the contrary has been manifested by the persons 
     concerned).
       The United States is of course within its power to ask 
     questions and to cultivate local sources of information. And 
     the United States certainly has the power to detain--in 
     keeping with its authority under the Constitution and 
     applicable international law--those who are actively engaged 
     in hostilities against the United States, or those suspected 
     of committing or conspiring to commit acts against the law. 
     But it does not have the power to establish a secret system 
     of off-shore prisons beyond the reach of supervision, 
     accountability, or law.
       Finally, even if some valuable information is being 
     obtained, there are standards on the treatment of prisoners 
     that cannot be set aside. The United States was founded on a 
     core set of beliefs that have served the nation very well 
     over two centuries. Among the most basic of these beliefs is 
     that torture and other cruel, inhuman or degrading treatment 
     is wrong; arbitrary detention is an instrument of tyranny; 
     and no use of government power should go unchecked. The 
     refusal to disclose the identity of detainees, prolonged 
     incommunicado detention, the use of secret detention centers, 
     and the exclusion of judicial or ICRC oversight combine to 
     remove fundamental safeguards against torture and ill-
     treatment and arbitrary detention. Current practices which 
     violate these principles must be stopped immediately.
       The abuses at Abu Ghraib underscore the reason why, since 
     the United States' founding, Americans have rejected the idea 
     of a government left to its own devices and acting on good 
     faith in favor of a government based on checks and balances 
     and anchored to the rule of law. As James Madison noted, 
     ``[a] popular Government without popular information, or the 
     means of acquiring it, is but a Prologue to a Farce or 
     Tragedy.''\16\ This nation's history has repeatedly taught 
     the value of public debate and discourse. To cite one 
     example, the United States learned this 30 years ago when a 
     series of congressional investigations uncovered widespread, 
     secret domestic spying by the CIA, NSA, FBI, and the Army--
     revelations whose impact on the intelligence agencies was, in 
     former CIA Director Stansfield Turner's words, 
     ``devastating.''\17\
       We should be clear--the United States has important and 
     legitimate interests in gathering intelligence information 
     and in keeping some of this information secret. But we are 
     not demanding the public release of any information that 
     would compromise these interests. What we are calling for is 
     an official accounting--to Congress and to the ICRC--of the 
     number, nationality, legal status, and place of detention of 
     all those the United States currently holds. We ask that all 
     of these places of detention be acknowledged and open to 
     inspection by the ICRC, and that the names of all detainees 
     be made available promptly to the ICRC and to others with a 
     legitimate interest in this information. Neither logic nor 
     law supports the continued withholding of the most basic 
     information about the United States' global system of secret 
     detention. Trust is plainly no longer enough.

                          ____________________