[Congressional Record (Bound Edition), Volume 152 (2006), Part 8]
[Extensions of Remarks]
[Pages 10744-10746]
[From the U.S. Government Publishing Office, www.gpo.gov]




FORMER PENTAGON LAWYER ALBERTO J. MORA: AN EXEMPLAR OF AMERICAN VALUES 
  WITH A WARNING: DO NOT LET FEAR OVERCOME THE DISCIPLINE OF LAW AND 
                            AMERICAN VALUES

                                 ______
                                 

                         HON. CHARLES B. RANGEL

                              of new york

                    in the house of representatives

                          Friday, June 9, 2006

  Mr. RANGEL. Mr. Speaker, I rise to introduce into the Record an 
opinion piece by former Navy lawyer Alberto J. Mora entitled ``An 
Affront to American Values'' which appeared in the Washington Post on 
May 27, 2006, as well as an Op-Ed of February 20, 2006 in The New York 
Times entitled ``Senior Lawyer at Pentagon Broke Ranks on Detainees.''
  The Times pointed out in its Op-Ed that Alberto Mora in his position 
as one of the Pentagon's top civilian lawyers ``repeatedly challenged 
the Bush administration's policy on the coercive interrogation of 
terror suspects, arguing that such practices violated the law, verged 
on torture, and could ultimately expose senior officials to prosecution 
. . .'' The information came from a then newly disclosed document, a 
memorandum Mr. Mora wrote in July 2004 and made public in an article in 
The New Yorker magazine on February 19, 2006.
  I have repeatedly spoken out against the ``torture policies'' 
directly traced to Secretary of Defense Rumsfeld, Vice President Cheney 
(who remains a champion of torture) and President Bush who two weeks 
after the Congress passed a law banning all torture of any person in 
the custody of the U.S. issued a signing letter stating he was not 
bound by that law when in his judgment he needs to use torture in his 
war on terror.
  I am immensely gratified to know Mr. Mora challenged the opinions of 
Secretary Rumsfeld, who is not a lawyer and appears to have a low 
regard for the law, regarding the legal parameters of the treatment of 
detainees. But I am most proud and grateful for two excellent questions 
Mr. Mora asked his clients at the Pentagon which The Times reported: 
``Defense Department officials found striking and out of character for 
a loyal Republican, a supporter of President Bush, Secretary Rumsfeld 
and the fight against terrorism.''
  He asked the questions every one in the Pentagon and the Military of 
good character should have asked regardless of his or her party 
affiliation or loyalty to the President. According to the memo printed 
in The New Yorker Mr. Mora asked the Pentagon's chief lawyer, William 
J. Haynes II:

       ``Even if one wanted to authorize the U.S. Military to 
     conduct coercive interrogations, as was the case in 
     Guantanamo, how could one do so without profoundly altering 
     its core values and character?''

  According to the Times article after trying to rally other senior 
officials to his position, Mr. Mora met again with Mr. Hayes on January 
10, 2003. His question to Mr. Hayes that day is another every person of 
good moral character should be asking:

       ``Had we jettisoned our human rights policies?''

  I will here answer both of Mr. Mora's questions: NO. The U.S. 
Military can not adopt coercive tactics as were used at Guantanamo 
without profoundly altering its core values and character. Look at what 
occurred at Haditha, Iraq.
  YES. As to prisoners in our custody with President Bush, Vice 
President Cheney and Secretary Rumsfeld in full charge of the Iraq war, 
the Military has abandoned its 200 year history and jettisoned its 
human rights policies.
  Mr. Mora retired on December 31, 2005. I am pleased he is still 
speaking out for American values and still asking very good questions. 
In his opinion piece in The Washington Post he asks the American people 
to consider some very good questions about the continued detention and 
treatment of ``unlawful combatants'' at Abu Ghraib and the treatment of 
detainees at Guantanamo.
  In naming his piece ``An Affront to American Values'' I knew 
immediately Mr. Mora has not changed his mind about the way the 
President Bush and Secretary Rumsfeld are directing the military to 
treat prisoners in military custody no matter how they are named; 
unlawful combatants, detainees or high-value targets. Perhaps he is now 
making his arguments to the American people because his opinions were 
heard but clearly disregarded by the Pentagon's Chief Lawyer. And Mr. 
Mora believes he was right. I believe he was right. I believe Bush-
Cheney-Rumsfeld, Attorneys (the President can do anything he wants) 
John Wu, David Addington Cheney's Attorney, and now Chief of Staff, and 
Attorney General Alberto Gonzalez were very wrong on the treatment and 
labeling of prisoners and remain wrong. I agree with Representative 
John Murtha; we lost the hearts and minds of the Iraqi people at Abu 
Ghraib.
  We also lost American support of the war in part because of what 
Americans did at Abu Ghraib. We lost more Americans because of 
treatment of detainees at Guantanamo. We will lose still more with 
incidents like the massacre of innocent men, women. Have we had turned 
our marines into murderers who shot two-year old babies? They are in a 
war based on lies, run by a Secretary of Defense who has no idea of how 
to get them out, who doesn't give them what they need to protect 
themselves, enough help to hold territory they fight for and stays in 
the hanger where he plane lands when he visits the troops.
  In the Post opinion piece Mr. Mora reminds us of how we treated 
Japanese Americans during World War II and just how we came to treat 
these innocent people as if they were criminals and spies because of 
their ancestry. He reminds us how we did this crime in violation of the 
United States Constitution and how the U.S. Supreme Court abdicated its 
judicial responsibility in the famous Korematsu decision, in which it 
endorsed the patently unconstitutional detention of American citizens.
  Americans unconstitutionally detained Japanese Americans because Mr. 
Mora writes; ``in our quest for security'' when the Japanese attacked 
Pearl Harbor, ``in what will always be regarded as an act of national 
shame, military authorities rounded up 120,000 American citizens and 
incarcerated them on the presumption of disloyalty. . . .''
  Korematsu reminds us that when threats and fear converge, our laws 
and principles can become fragile. They are fragile today.
  Mr. Mora writes that in the summer of 2002, U.S. authorities held in 
detention at Guantanamo and elsewhere people President Bush, Vice 
President Cheney Secretary Rumsfeld and perhaps others believed had 
information needed to prevent further terrorist attacks. These same 
people believed the detainees could be called ``unlawful combatants'' 
and ``interrogation methods'' constituting cruel, inhuman and degrading 
treatment could be applied at Abu Ghraib, Guantanamo and other 
locations. We know the treatment may have reached the level of torture 
in some instances.
  The American public knows torture occurred as do the members of the 
Congress who supported John McCain's anti torture amendment which 
became law and is now the Detainee Treatment Act of 2005. The American 
people have read the testimony and perhaps heard the testimony of some 
of the innocent people who suffered U.S. ``rendition'' to another 
country like Syria and have returned after being tortured and attempted 
to sue the U.S. government for their treatment. There is not an iota of 
fact showing that torture yields good evidence. Senator John McCain who 
was tortured for more than five years testified to that. Experts in 
torture all agree people who are tortured will say anything to make the 
pain stop.
  I am ashamed for my country because The Detainee Treatment Act had to 
be introduced and voted on because this proud country has always had a 
policy of acknowledging the basic human rights of prisoners of war. The 
United States does not execute prisoners of war and does not torture, 
humiliate, starve, degrade or otherwise treat prisoners of war in a way 
that is inhuman.
  Our military has always been bound by the Uniform Military Code, the 
Geneva Conventions and the Laws of War. In addition, as Mr. Mora 
writes:


[[Page 10745]]

       ``It is astonishing to me, still, that I should be here 
     today addressing the issue of American cruelty--or that 
     anyone would ever have to. Our forefather, who permanently 
     defined our civic values, drafted our Constitution inspired 
     by the belief that law could not create but only recognize 
     certain inalienable rights granted by God--to every person, 
     not just citizens, not just here but everywhere. Those rights 
     are a shield that protects core human dignity. Because this 
     is so, the Eighth Amendment prohibits cruel punishment. The 
     constitutional jurisprudence of the Fifth and Fourteenth 
     Amendments outlaws cruel treatment that shocks the 
     conscience. The Geneva Conventions forbid the application of 
     cruel, inhuman and degrading treatment of all captives, as do 
     all of the major or human rights treaties adopted and 
     ratified by our country during the last century.''

  I find it shocking as well. What I also find shocking and 
disheartening is an answer Secretary Rumsfeld gave the other day when 
asked if the prohibition against torture had been put into the field 
manual and into practice; his answer was ``not yet.'' The reason that 
it was not yet in the field manual for the military in Iraq and 
Afghanistan? The Pentagon was still arguing about certain terms like 
``unlawful combatant.'' The Secretary of Defense doesn't get it. The 
anti-torture law applies to any person in the custody of Americans 
wherever they are. The fact that Rumsfeld is holding up the 
implementation of the anti-torture act and the implementation of human 
rights military policy of the past 200 years, the conduct we agreed to 
when we signed treaties and the treatment of prisoners we agreed to 
when we signed and then ratified the Geneva Conventions, leaves our men 
and women fighting Mr. Bush's Iraq war in great danger of being charged 
with criminal offenses. In fact, it is happening now.
  The American people must fight back. They must let this 
Administration know how much they object to what is happening to our 
proud military's moral character. American's must know this President 
relies on a Secretary of Defense that has no regard for Generals that 
have served in combat and understands the Uniform Code of Military 
Justice and the rules governing how our military treats prisoners of 
war. Our men and women in combat are at grave risk when such crucial 
decisions are made by men who have never served in the military and 
will not take the advice of those who have.
  Mr. Mora asks: `` In this war, we have come to a crossroads--much as 
we did in the events that led to Korematsu: Will we continue to regard 
the protection and promotion of human dignity as the essence of our 
national character and purpose or will we bargain away human and 
national dignity in return for an additional possible measure of 
physical security?''
  Mr. Mora tells us as he attempted to tell his boss at the Pentagon 
why it matters for us to care about the human rights of prisoners and 
our national dignity. He writes:

       ``We should care because the issues raised by a policy of 
     cruelty are too fundamental to be left unaddressed, 
     unanswered or ambiguous. We should care because a tolerance 
     of cruelty will corrode our values and our rights and degrade 
     the world in which we live. It will corrupt our heritage, 
     cheapen the valor of the soldiers upon whose past and present 
     sacrifices our freedoms depend, and debase the legacy we will 
     leave to our sons and daughters. We should care because it is 
     intolerable to us that anyone should believe for a second 
     that our nation is tolerant of cruelty. And we should care 
     because each of us knows that this issue has not gone away.''

                     An Affront to American Values

                          (By Alberto J. Mora)

       In response to the 3,000 murders on Sept. 11, 2001, our 
     nation went to war. In Afghanistan, our targets were the al-
     Qaeda perpetrators and the Taliban regime that aided and 
     abetted them. In Iraq, the target was an unstable tyrant who 
     had a history of using chemical weapons and who could be 
     trusted to cheat on and retreat from his international 
     commitments. I supported both engagements as Navy general 
     counsel. I support them still as a private citizen. I regard 
     each as a prudent and even necessary use of force. The 
     terrorist threat, and the threat posed by weapons of mass 
     destruction in reckless hands, can never be underestimated.
       And yet, there have been times in our nation's history 
     when, in our quest for security, our fear momentarily 
     overcomes our judgment and our power slips the discipline of 
     the law and our national values.
       One such moment occurred in 1942, after the Japanese attack 
     on Pearl Harbor. In what will always be regarded as an act of 
     national shame, military authorities rounded up 120,000 
     American citizens of Japanese ancestry and incarcerated them 
     on the presumption of disloyalty. These citizens were 
     stripped of their rights and held in detention camps for the 
     duration of the war. Many lost businesses and property. When 
     we recall this event--and it is relevant to our current 
     situation--we also recall with shame the Supreme Court's 
     abdication of its judicial responsibilities in the notorious 
     Korematsu decision, in which it endorsed the legality of the 
     patently unconstitutional detention.
       Korematsu reminds us that when threats and fear converge, 
     our laws and principles can become fragile. They are fragile 
     today. In the summer of 2002, at Guantanamo and elsewhere, 
     U.S. authorities held in detention individuals thought to 
     have information on other impending attacks against the 
     United States. Unless this information was obtained, it was 
     believed, more Americans--perhaps many more--would die. In 
     this context, our government issued legal and policy 
     documents providing, in effect, that for some detainees 
     labeled as ``unlawful combatants,'' interrogation methods 
     constituting cruel, inhuman and degrading treatment could be 
     applied under the president's constitutional commander in 
     chief authorities. Although there is debate as to the details 
     of how, when and why, we know such cruel treatment was 
     applied at Abu Ghraib, Guantanamo and other locations. We 
     know the treatment may have reached the level of torture in 
     some instances. And there are still questions as to whether 
     these policies were related, if at all, to the deaths of 
     several dozen detainees in custody.
       It is astonishing to me, still, that I should be here today 
     addressing the issue of American cruelty--or that anyone 
     would ever have to. Our forefathers, who permanently defined 
     our civic values, drafted our Constitution inspired by the 
     belief that law could not create but only recognize certain 
     inalienable rights granted by God--to every person, not just 
     citizens, and not just here but everywhere. Those rights form 
     a shield that protects core human dignity. Because this is 
     so, the Eighth Amendment prohibits cruel punishment. The 
     constitutional jurisprudence of the Fifth and Fourteenth 
     Amendments outlaws cruel treatment that shocks the 
     conscience. The Geneva Conventions forbid the application of 
     cruel, inhuman and degrading treatment to all captives, as do 
     all of the major human rights treaties adopted and ratified 
     by our country during the last century.
       Despite this, there was abuse. Not all were mistreated, but 
     some were. For those mistreated, history will ultimately 
     judge what the precise quantum of abuse inflicted was--
     whether it was torture or some lesser cruelty--and whether it 
     resulted from official commission or omission, or occurred 
     despite every reasonable effort to prevent the abuse. 
     Whatever the ultimate historical judgment, it is established 
     fact that documents justifying and authorizing the abusive 
     treatment of detainees during interrogation were approved and 
     distributed. These authorizations rested on three beliefs: 
     that no law prohibited the application of cruelty; that no 
     law should be adopted that would do so; and that our 
     government could choose to apply the cruelty--or not--as a 
     matter of policy depending on the dictates of perceived 
     military necessity.
       The fact that we adopted this policy demonstrates that this 
     war has tested more than our nation's ability to defend 
     itself. It has tested our response to our fears and the 
     measure of our courage. It has tested our commitment to our 
     most fundamental values and our constitutional principles.
       In this war, we have come to a crossroads--much as we did 
     in the events that led to Korematsu: Will we continue to 
     regard the protection and promotion of human dignity as the 
     essence of our national character and purpose, or will we 
     bargain away human and national dignity in return for an 
     additional possible measure of physical security?
       Why should we still care about these issues? The Abu Ghraib 
     abuses have been exposed; Justice Department memoranda 
     justifying cruelty and even torture have been ridiculed and 
     rescinded; the authorizations for the application of extreme 
     interrogation techniques have been withdrawn; and, perhaps 
     most critically, the Detainee Treatment Act of 2005, which 
     prohibits cruel, inhuman and degrading treatment, has been 
     enacted, thanks to the courage and leadership of Sen. John 
     McCain.
       We should care because the issues raised by a policy of 
     cruelty are too fundamental to be left unaddressed, 
     unanswered or ambiguous. We should care because a tolerance 
     of cruelty will corrode our values and our rights and degrade 
     the world in which we live. It will corrupt our heritage, 
     cheapen the valor of the soldiers upon whose past and present 
     sacrifices our freedoms depend, and debase the legacy we will 
     leave to our sons and daughters. We should care because it is 
     intolerable to us that anyone should believe for a second 
     that our nation is tolerant of cruelty. And we should care 
     because each of us knows that this issue has not gone away.
       The writer, who retired as Navy general counsel last year, 
     wrote a memo to Pentagon officials two years before the Abu 
     Ghraib scandal that warned against circumventing 
     international agreements on torture and detainee treatment. 
     This article is excerpted from remarks he made upon receiving 
     a 2006 John F. Kennedy Profile in Courage Award.
                                  ____


           Senior Lawyer at Pentagon Broke Ranks on Detainees

                            (By Tim Golden)

       One of the Pentagon's top civilian lawyers repeatedly 
     challenged the Bush administration's policy on the coercive 
     interrogation of

[[Page 10746]]

     terror suspects, arguing that such practices violated the 
     law, verged on torture and could ultimately expose senior 
     officials to prosecution, a newly disclosed document shows.
       The lawyer, Alberto J. Mora, a political appointee who 
     retired Dec. 31 after more than four years as general counsel 
     of the Navy, was one of many dissenters inside the Pentagon. 
     Senior uniformed lawyers in all the military services also 
     objected sharply to the interrogation policy, according to 
     internal documents declassified last year.
       But Mr. Mora's campaign against what he viewed as an 
     official policy of cruel treatment, detailed in a memorandum 
     he wrote in July 2004 and recounted in an article in the Feb. 
     27 issue of The New Yorker magazine, made public yesterday, 
     underscored again how contrary views were often brushed aside 
     in administration debates on the subject.
       ``Even if one wanted to authorize the U.S. military to 
     conduct coercive interrogations, as was the case in 
     Guantanamo, how could one do so without profoundly altering 
     its core values and character?'' Mr. Mora asked the 
     Pentagon's chief lawyer, William J. Haynes II, according to 
     the memorandum.
       A Pentagon spokeswoman, Lt. Col. Tracy O'Grady-Walsh, 
     declined to comment late yesterday on specific assertions in 
     Mr. Mora's memorandum. ``Detainee operations and 
     interrogation policies have been scrutinized under a 
     microscope, from all different angles,'' she said. ``It was 
     found that it was not a Department of Defense policy to 
     encourage or condone torture.''
       In interviews, current and former Defense Department 
     officials said that part of what was striking about Mr. 
     Mora's forceful role in the internal debates was how out of 
     character it seemed: a loyal Republican, he was known as a 
     supporter of President Bush, Defense Secretary Donald H. 
     Rumsfeld and the fight against terrorism.
       ``He's an extremely well-spoken, almost elegant guy,'' the 
     former director of the Naval Criminal Investigative Service, 
     David L. Brandt, who first came to Mr. Mora with concerns 
     about the interrogation methods, said in an interview last 
     week. ``He's not a door-kicker.''
       Mr. Mora is also known for generally avoiding public 
     attention. Reached by telephone yesterday, he declined to 
     comment further on his memorandum.
       Mr. Mora prepared the 22-page memorandum for a Defense 
     Department review of interrogation operations that was 
     conducted by Vice Adm. Albert T. Church III, after the 
     scandal involving treatment of prisoners at the Abu Ghraib 
     prison in Iraq.
       The document focused on Mr. Mora's, successful opposition 
     to the coercive techniques that Mr. Rumsfeld approved for 
     interrogators at Guantanamo Bay on Dec. 2, 2002, and Mr. 
     Mora's subsequent, failed effort to influence the legal 
     discussions that led to new methods approved by Mr. Rumsfeld 
     the following April.
       Mr. Mora took up the issue after Mr. Brandt came to him on 
     Dec. 17, 2002, to relay the concerns of Navy criminal agents 
     at Guantanamo that some detainees there were being subjected 
     to ``physical abuse and degrading treatment'' by 
     interrogators.
       Acting with the support of Gordon R. England, who was then 
     secretary of the Navy and is now Mr. Rumsfeld's deputy, Mr. 
     Mora took his concerns to Mr. Haynes, the Defense 
     Department's general counsel.
       ``In my view, some of the authorized interrogation 
     techniques could rise to the level of torture, although the 
     intent surely had not been to do so,'' Mr. Mora wrote.
       After trying to rally other senior officials to his 
     position, Mr. Mora met again with Mr. Haynes on Jan. 10, 
     2003. He argued his case even more forcefully, raising the 
     possibility that senior officials could be prosecuted for 
     authorizing abusive conduct, and asking: ``Had we jettisoned 
     our human rights policies?''
       Still, Mr. Mora wrote, it was only when he warned Mr. 
     Haynes on Jan. 15 that he was planning to issue a formal 
     memorandum on his opposition to the methods--delivering a 
     draft to Mr. Haynes's office--that Mr. Rumsfeld suddenly 
     retracted the techniques.
       In a break from standard practice, former Pentagon lawyers 
     said, the final draft of the report on interrogation 
     techniques was not circulated to most of the lawyers, 
     including Mr. Mora, who had contributed to it. Several of 
     them said they learned that a final version had been issued 
     only after the Abu Ghraib scandal broke.

                          ____________________