[Congressional Record (Bound Edition), Volume 150 (2004), Part 7]
[Senate]
[Pages 8794-8797]
[From the U.S. Government Publishing Office, www.gpo.gov]




           IRAQ PRISONER ABUSE AND WILLIAM HAYNES NOMINATION

  Mr. DURBIN. Madam President, I come to the Senate floor with a heavy 
heart. As so many other Americans, I am horrified at the graphic images 
of American soldiers abusing Iraqi soldiers and prisoners. We are in a 
situation today where our troops in the field in Iraq and Afghanistan 
have performed millions of acts of kindness and good will and bravery 
which, sadly, have been overshadowed by the recently disclosed 
photographs. That is a reality.
  The war in Iraq is more dangerous today because of the scandal at the 
Abu Ghraib prison, and our standing in the world is being challenged. A 
nation which believes in the rule of law and democracy must demonstrate 
that in its own conduct. Our conduct is being called into question.
  I am very concerned that we have reached this point. I am concerned 
that statements from the Bush administration, sadly, over the last 2 
years have sent a message that we were prepared to bend some of the 
time-honored rules and standards when it came to the treatment of 
prisoners of war. Over 2000 years ago, the Roman orator Cicero said: 
Laws are silent in time of war.
  In modern times, we have rejected this proposition. Some voices are 
now calling on us to turn back the clock, but we can't do that. That is 
not America. That is not what we are all about. Our great country was 
founded by people fleeing governmental repression. Our founders wanted 
to ensure that the United States would not oppress its citizens even 
during time of war, and that is why they included a prohibition on 
cruel and unusual punishment in the Bill of Rights of the Constitution.
  After World War II, the United States and our allies, horrified by 
the genocidal practices of Nazi Germany, created a new international 
legal order based on respect for human rights. One of the fundamental 
tenets was a universal prohibition on torture and ill treatment. Each 
year Amnesty International and even our State Department issue report 
cards on countries around the world as to whether they are living up to 
that standard. Imagine what that report will look like the next time it 
is issued by our own Department of State.
  In light of the horrific abuses that have come to light in recent 
weeks, we ought to take a moment to review the legal order that was 
created after World War II. International law absolutely prohibits 
torture as well as ``cruel, inhuman or degrading treatment.'' The 
Universal Declaration of Human Rights states unequivocally:

       No one shall be subject to torture or cruel, inhuman or 
     degrading treatment or punishment.

  The United States, with a majority of countries in the world, is a 
party to two treaties that contain absolute bans on torture, cruel and 
inhuman degrading treatment: The International Covenant on Civil and 
Political Rights and the Convention against Torture.
  The Geneva Conventions govern the status and treatment of those in a 
wartime detainee situation. The U.S. Government has long held that as a 
party to the conventions, we are legally bound by its terms. The Geneva 
Conventions make clear that there are no exceptions to this prohibition 
against torture and such treatment during armed conflict.
  Article 13 of the Geneva Conventions says: Prisoners of war must at 
all times be humanely treated. Prisoners of war must at all times be 
protected, particularly against acts of violence or intimidation and 
against insults and public curiosity. Measures of reprisal against 
prisoners of war are prohibited.
  Article 14 of the Conventions states: Prisoners of war are entitled 
in all circumstances to respect for their persons and their honor.
  Article 17 states: No physical or mental torture, nor any form of 
coercion,

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may be inflicted on prisoners of war to secure from them information of 
any kind whatsoever. Prisoners of war who refuse to answer may not be 
threatened, insulted, or exposed to unpleasant or disadvantageous 
treatment of any kind.
  The United States of America is a signatory to this international 
agreement. Army regulations implementing those provisions repeat these 
standards and make it clear that they apply to the men and women in 
uniform.
  International law, U.S. law, and Army regulations speak clearly. 
Nonetheless, as we have learned in recent weeks, abuses took place at 
Abu Ghraib prison that clearly violate these standards. To quote army 
MG Antonio Taguba's report:

       Between October and December 2003, at the Abu Ghraib 
     Confinement Facility, numerous incidents of sadistic, 
     blatant, and wanton criminal abuses were inflicted upon 
     several detainees. This systemic and illegal abuse of 
     detainees was intentionally perpetrated.

  The report describes ``the intentional abuse of detainees by military 
police personnel,'' including ``punching, slapping, and kicking 
detainees,'' ``using military working dogs, without muzzles, to 
intimidate and frighten detainees, and in at least one case biting and 
severely injuring a detainee,'' ``breaking chemical lights and pouring 
the phosphoric liquid on detainees,'' ``threatening detainees with a 
charged 9m pistol,'' ``beating detainees with a broom handle and a 
chair,'' and ``sodomizing a detainee with a chemical light.''
  Importantly, the Taguba report concludes that the military police 
were not trained or put on notice in other ways that these kinds of 
abuses were impermissible and would not be tolerated.
  Let me say, before I read on, that you would know by human instinct 
that the things I have just read were wrong. You should know at the 
moment such an order is given that it is an unlawful order. But the 
fact is, when General Taguba looked into the background and training of 
these soldiers, little or nothing was done to prepare them for their 
assignment.
  I will read further from the Taguba report:

       Neither the camp rules nor the provisions of the Geneva 
     Conventions are posted in English or in the language of the 
     detainees at any of the detention facilities . . . There is a 
     general lack of knowledge, implementation, and emphasis of 
     basic legal, regulatory, doctrinal, and command requirements 
     . . . I find that the 800th MP Brigade was not adequately 
     trained for a mission that included operating a prison or 
     penal institution at Abu Ghraib Prison Complex.

   Unfortunately, the abuses in Iraq are, in some ways, the logical 
byproduct of the administrations's policies. In the aftermath of 9/11, 
the Bush administration made it clear that they believed that 
international legal order, which served us so well during the cold war, 
was not good enough for the war on terrorism.
   The administration has created a secret detention system, outside 
the strictures of domestic and international law, that stretches from 
Norfolk, VA, and Charleston, SC, where American citizens Jose Padilla 
and Yasser Hamdi are detained as enemy combatants, to Guantanamo Bay, 
where hundreds have been detained since the commencement of hostilities 
in Afghanistan. The administration denies public access to these 
detainees and asserts that the Geneva Conventions do not apply to the 
war on terrorism.
   A Washington Post editorial entitled ``System of Abuse'' alleges:

       Similar mistreatment of prisoners held by U.S. military or 
     intelligence forces abroad has been reported since the 
     beginning of the war on terrorism. A pattern of arrogant 
     disregard for the protections of the Geneva Conventions or 
     any other legal procedure has been set from the top, by Mr. 
     Rumsfeld and senior U.S. commanders.

   Some of the most flagrant legal violations have taken place at 
Guantanamo Bay. The administration claims that the detainees are not 
entitled to the protections of the Geneva Conventions, though they may 
be treated in accordance with some provisions of the conventions ``to 
the extent appropriate and consistent with military necessity.''
   There is no room for hairsplitting when it comes to the law. This 
kind of policy sends a signal to lower ranking officials that the law 
is an obstacle to be overcome, not a bright line that cannot be 
crossed.
   Contrary to this position, the Geneva Conventions protect all 
captured combatants and civilians. The official commentary on the 
conventions explains: ``There is no intermediate status; nobody in 
enemy hands can fall outside the law.''
  The Geneva Conventions do not allow the hairsplitting which this 
administration has engaged in at Guantanamo and other places where 
there are detainees in this war on terrorism.
  Administration officials claim that none of the Guantanamo detainees 
qualify as POWs. However, under article 5 of the 3rd Geneva Convention, 
captured combatants are presumed to be POWs, and must be treated as 
such, unless and until determined otherwise by a competent tribunal in 
an individualized proceeding. The U.S. Government has long abided by 
this principle, e.g., the U.S. convened more than 1,000 such 
proceedings during the gulf war. Military regulations state, ``When 
doubt exists as to whether captured enemy personnel warrant POW status, 
Art. 5 Tribunals must be convened.''
  The Red Cross, which typically refrains from public comment on its 
visits to wartime detainees, has taken the unusual step of criticizing 
the Guantanamo Bay detentions. They said:

       The [Red Cross's] main concern today is that the U.S. 
     authorities have placed the internees in Guantanamo beyond 
     the law. This means that, after more than eighteen months of 
     captivity, the internees still have no idea about their fate, 
     and no means of recourse through any legal mechanism.

  Since 9/11, there have been persistent reports that U.S. 
interrogators have used interrogation tactics that may rise to the 
level of torture or cruel, inhuman and degrading treatment.
  For example, a December 5, 2002, story in The Washington Post 
reported on the widespread allegations that the United States was using 
so-called ``stress and duress'' techniques, including sleep, food, 
water, or sensory deprivation, and forcing detainees into uncomfortable 
or painful physical positions.
  According to The Post, an unnamed administration official said, ``If 
you don't violate someone's human rights some of the time, you probably 
aren't doing your job. I don't think we want to be promoting a view of 
zero tolerance on this.''
  The use of these techniques, which are also known as ``torture 
lite,'' violates prohibitions on torture and cruel, inhuman, and 
degrading treatment. The State Department has repeatedly characterized 
the use of such tactics by other countries as torture, plain and 
simple.
  Our own State Department has accused other countries that have tried 
to rationalize this treatment as being engaged in torture.
  In Israel, a country that has grappled with terrorism for decades, 
the Supreme Court held that ``stress and duress'' techniques 
interrogation techniques violate international law and are absolutely 
prohibited. As the Court explained:

       These prohibitions are ``absolute.'' There are no 
     exceptions to them and there is no room for balancing. Indeed 
     violence directed at a suspect's body or spirit does not 
     constitute a reasonable investigation practice.

  Guantanamo interrogators have reportedly used these tactics. There is 
a disturbing link between Guantanamo and the abuses in Iraq. MG. 
Geoffrey Miller was the commander of the Guantanamo Bay detention 
facility. In late 2002, Miller reportedly asked the Pentagon to approve 
the use of some ``stress and duress'' techniques. In April 2003, the 
Pentagon approved the use of these techniques.
  The Defense Department's general counsel was involved in creating 
guidelines. That is an important element for us to consider regarding 
the nomination before us today.
  In August 2003, Miller, the Guantanamo commander, visited Abu Ghraib 
prison to examine interrogation practices there. According the Taguba 
report, Miller recommended that military police, who were serving as 
prison guards, become ``actively engaged in setting the conditions for 
successful

[[Page 8796]]

exploitation of internees.'' The Taguba report criticized Miller's 
recommendation which the report said would violate Army regulations and 
``clearly run counter to the smooth operation of a detention 
facility.''
  There is another key player who Congress need to question closely, 
William Haynes, who is the Defense Department's general counsel. As the 
top lawyer at the Pentagon, Haynes was intimately involved in crafting 
the legal standards for the war on terrorism and the war in Iraq, 
including the guidance regarding ``torture lite.''
  Last year, President Bush nominated Mr. Haynes to be a judge on the 
4th Circuit Court of Appeals, the second highest court in the land.
  When Haynes was nominated, I and many of my colleagues on the 
Judiciary Committee were already very concerned about the Defense 
Department's legal policies related to the war on terrorism and the war 
on Iraq. So, we questioned Haynes closely.
  Following his hearing, I sent Haynes a number of written questions. 
He failed to respond to some of my questions and many of the answers he 
did provide were not responsive. He answered several questions by 
citing government briefs. He refused to respond to other questions 
because he ``may or may not have been called to provide advice'' on the 
subject in his official capacity.
  I sent a followup letter to Mr. Haynes, expressing concern about his 
nonresponsiveness and giving him another opportunity to respond to my 
questions related to torture of detainees and internees, and POWs.
  His second set of answers was not much better than the first and he 
still failed to respond to many of the questions I asked. Let me offer 
a couple of examples.
  I asked Mr. Haynes about views he expressed in a speech to the 
Federalist Society. Speaking about the detention of enemy combatants, 
he said: ``Congress specifically authorized the President not only to 
use deadly force, but also an lesser force needed to capture and detain 
enemy combatants to prevent them from engaging in continued hostilities 
against the United States.'' I asked him:

       Do you believe that the Executive could use deadly force 
     against an American citizen enemy combatant in the United 
     States instead of apprehending him or her? If yes, please 
     explain. If no, how do you explain your statement quoted 
     above?

  In his first set of answers, Mr. Haynes responded by simply citing to 
a government brief, ``The Government's position concerning the 
statutory authorization of September 18, 2001 has been most recently 
articulated in its brief filed in opposition to petition for the writ 
of certiorari in Hamdi v. Rumsfeld.''
  I asked Haynes for a more responsive answer.
  Keep in mind he is the general counsel for the Department of Defense 
responsible for establishing the legal standards under the Geneva 
Conventions and American law and military regulations on the treatment 
of prisoners and detainees.
  I am asking him specifically to tell me the standards he used. These 
questions were sent to Mr. Haynes months before the scandal at Abu 
Ghraib prison. He continued to be evasive. He again cited a Government 
brief instead of explaining his views. He carefully avoided answering 
directly any of the questions which I asked him.
  I asked Mr. Haynes about the failure to provide article 5 tribunals 
to detainees at Guantanamo Bay. The U.S. Government has long abided by 
this practice and U.S. military regulations provide detailed procedures 
for article 5 tribunals.
  I asked Mr. Haynes:

       Have the detainees been provided with the process outlined 
     in [U.S. military] regulations?

  He responded by asserting the screening process for detainees ``goes 
well beyond what article 5 requires.'' But he did not respond to my 
question:

       Have the detainees been provided with the process outlined 
     in U.S. military regulations?

  He failed to respond. That, unfortunately, is the pattern we have 
seen with Mr. Haynes and this nomination.
  These questions sent by Members of the Senate to nominees are more 
than an academic exercise. We want to establish for the record exactly 
the role Mr. Haynes and others played, if any, in establishing the 
interrogation tactics and techniques which have now been dramatized so 
negatively to the world.
  Mr. Haynes cannot expect the vote of this Senate to the second 
highest court of the land by being evasive on this critical issue at 
this important moment in our history.
  Torture and cruel, inhuman, and degrading treatment are wrong, 
illegal, un-American, and totally counterproductive in the field of 
intelligence.
  As the Israeli Supreme Court reminded us:

       Although a democracy must often fight with one hand tied 
     behind its back, it nonetheless has the upper hand. 
     Preserving the Rule of Law and recognition of an individual's 
     liberty constitutes an important component in its 
     understanding of security. At the end of the day, they 
     strengthen its spirit and its strength and allow it to 
     overcome its difficulties.

  Those inspiring words come from the Supreme Court of the Nation of 
Israel, a nation which battles terrorism every day. They have rejected 
the easy way out, torture ``lite,'' stress and duress. They have 
decided that does not make them any safer as a nation, and it degrades 
their reputation in the world community. The United States can do no 
less.
  Since the horrific terrorist attacks on 9/11, our commitment to this 
principle and values has been tested. As we withstand repeated warnings 
of possible terrorist attacks, we may be tempted by the notion that 
torture is somehow justified, but it is not. We must resist the 
temptation.
  In his classic novel ``The Brothers Karamazov,'' Dostoevsky posed the 
question eloquently:

       Imagine that it is you yourself who are erecting the 
     edifice of human destiny with the aim of making men happy in 
     the end, of giving them peace and contentment at last, but 
     that to do that it is absolutely necessary, and indeed quite 
     inevitable, to torture to death only one tiny creature, the 
     little girl who beat her breast with her little fist, and to 
     found the edifice on her unavenged tears--would you consent 
     to be the architect on those conditions?

  No, America must not engage in torture and cruel, inhuman, and 
degrading treatment. Torture is wrong. We have said that unequivocally 
for 50 or 60 years. It is one of the values and principles that guides 
our Nation.
  As Thomas Paine said:

       He that would make his own liberty secure must guard even 
     his enemy from oppression.

  Torture is an ineffective counterterrorism tactic. It produces 
unreliable information. When our Government engages in these kinds of 
abuses, we project a negative image abroad, creating anti-American 
sentiment around the world that is virtually impossible for us to deal 
with. If we engage in this sort of activity, we run the risk of 
subjecting our men and women in uniform and other American citizens not 
only to a dangerous wartime situation but to torture themselves if they 
are ever detained or captured.
  Our Nation has been a beacon for democratizing forces around the 
world as they challenge repression and human rights violations.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. REID. We extend whatever time the Senator from Illinois needs.
  Mr. DURBIN. I ask for 1 additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Madam President, our Nation has been a beacon for 
democratizing forces around the world as they challenge repression and 
human rights violations. The American exemplar inspired many to shed 
the yoke of communism and move toward democracy. In an era where we 
have emerged as a superpower, the world looks to us for leadership, 
inspiration, and our values. When we curtail individual rights, other 
nations follow suit and democracy and human rights suffer.
  I have sent a letter to the chairman of the Senate Judiciary 
Committee, Senator Orrin Hatch of Utah. I have asked Senator Hatch to 
reschedule a hearing for Mr. William Haynes whose nomination is 
currently on the calendar. Mr. Haynes, now more than

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ever, must answer these important questions about the role he played as 
general counsel at the Pentagon. If he had nothing to do with this 
policy, he can make that eminently clear, but if he did have something 
to do with it, I think we need the answers to these questions before 
we, in good conscience, are asked to vote to support his nomination to 
the second highest court in America.
  I yield the floor.

                          ____________________