[Congressional Record (Bound Edition), Volume 154 (2008), Part 2]
[Senate]
[Pages 2015-2025]
[From the U.S. Government Publishing Office, www.gpo.gov]




                CIA INTERROGATIONS AND ARMY FIELD MANUAL

  Mrs. FEINSTEIN. Mr. President, yesterday was a big day before the 
Senate. We had the Foreign Intelligence Surveillance Act bill. Today is 
an even bigger day because the intelligence authorization bill is going 
to be before the Senate, and today we will grapple with something that 
I think should be major in our consciousness and major in our 
deliberations. It is central to who we are as a nation. The question is 
whether the United States should continue to go to the ``dark side,'' 
down the road of torture, and continue to allow the CIA and other 
intelligence agencies to practice or outsource state-sanctioned 
torture. To me, the answer is clear, and I hope it is to everyone. The 
answer should be no.
  Today we are living in a legal limbo, where the rules are shrouded by 
ambiguity. The time has come to change this once and for all. The way 
to do it is to support the fiscal year 2008 intelligence authorization 
bill, which would prohibit all interrogation techniques by the CIA and 
place the intelligence community under the uniform standard of the Army 
Field Manual. If that bill passes, and it has passed the House of 
Representatives, if it passes here today, we have a uniform standard 
for the entire American Government with respect to coercive 
interrogation techniques.
  The Army Field Manual, which looks like this, has 19 interrogation 
protocols. They are proven, they are flexible, and they are effective. 
The CIA interrogation program, on the other hand, I believe, is 
immoral, illegal, sometimes ineffective, and often counterproductive. I 
wish to simply read something which appeared in the newspapers, and 
what this says is:

       The book on interrogation has been written. We just need to 
     follow it.

  And they refer to this book, Mr. President.

       Cruel and inhuman and degrading treatment of prisoners 
     under American control makes us less safe, violates our 
     Nation's values, and damages America's reputation in the 
     world. That is why, in 2004, the bipartisan 9/11 Commission 
     called for humane treatment of those captured by the United 
     States Government and our allies in the struggle against 
     terrorism. Congress and the Pentagon responded with clear and 
     comprehensive new rules for the military so that 
     interrogation techniques practiced by the military today are 
     both humane and effective. But not all United States agencies 
     are following these rules. Congress should require the entire 
     U.S. Government and those acting on its behalf to follow the 
     Army Field Manual on Human Intelligence Collector Operations. 
     Doing so will make us safer while safeguarding our cherished 
     values and our vital national interests.

  This was signed by Zbigniew Brzezinski, Warren Christopher, Lawrence 
Eagleburger, Slade Gorton, Lee Hamilton, Gary Hart, Rita Houser, Karla 
Hills, Thomas Kean, Anthony Lake, John Lehman, Richard Leon, Robert 
McFarlane, Donald McHenry, Sam Nunn, Thomas Pickering, Ted Sorensen, 
and John Whitehead. It is a bipartisan group that has come out with 
this, and I believe we should absorb it and use that information.
  The Army Field Manual provision has the support of the Intelligence 
Committees. I offered the amendment in the conference between the House 
and the Senate on the intel authorization bill. It was passed by the 
Senate and it was passed by the House, and it is part of the bill, and 
as I said, the House has passed their bill. The amendment was the 
subject of passionate and considered debate in Congress. It has unique 
support--18 former security officials, as I have said--and this Army 
Field Manual was issued in its current form by the Department of the 
Army in September of 2006. It followed the requirements of the Detainee 
Treatment Act, and it applies uniformly across all elements of the 
military and civilian elements of the Department of Defense.
  The manual was published after more than 3 years of drafting and 
coordination. This was the most scrutinized field manual the Army has 
ever produced, including reviews and comments by every relevant 
Pentagon office, every combatant commander, the White House, the DNI, 
the CIA, and the Defense Intelligence Agency. The Departments of 
Justice and State have also concurred with the manual's guidance. For 
the first time ever, the Army consulted with Congress in the persons of 
Senators McCain, Warner, and Levin in drafting the manual.
  The manual complies with the Uniform Code of Military Justice, the 
Geneva Conventions, and the Detainee Treatment Act. There is perhaps no 
more authoritative figure on the manual than our commanding officer in 
Iraq, GEN David Petraeus. In a response to a survey showing that 
American troops in Iraq would consider torture in order to save their 
comrades, Petraeus wrote to the entire multinational force on May 10, 
2007, and here is some of what he said:

       Certainly, extreme physical action can make someone 
     ``talk''; however, what the individual says may be of 
     questionable value. In fact, our experience in applying the 
     interrogation standards laid out in the Army Field Manual 
     shows that the techniques in the manual work effectively and 
     humanely in eliciting information from detainees.

  Now, what does the manual do? It specifically authorizes 19 
approaches--you could call them interrogation techniques--and they are 
well thought out and each one is several pages on how to apply it. One 
of them can only be used on unlawful army combatants with the prior 
approval of the combatant commander. These techniques describe ways to 
build rapport with the detainee in order to get him or her to share 
information.
  GEN Michael Maples, the Director of the DIA, recently rebutted the 
contention that the Army Field Manual wouldn't have covered the 
interrogation method used by an FBI special agent to get Saddam Hussein 
to finally come clean that he had no weapons of mass destruction.
  So the manual specifically prohibits eight techniques, and here is 
what they are:
  Forcing a detainee to be naked, perform sexual acts, pose in a sexual 
manner; placing hoods or sacks over the head of a detainee; using duct 
tape over the eyes; beatings, electric shock, burns, or other forms of 
physical pain; waterboarding--very much the talk of the Nation; use of 
military working dogs; inducing hypothermia or heat injury; conducting 
mock executions; depriving detainee of necessary food, water, or 
medical care.
  Those are the eight prohibited techniques in the Army Field Manual. 
It also incorporates what is called the ``golden rule,'' and this is 
important. It is an approach to interrogation. It requires military 
personnel to ask this question: If an interrogation technique were to 
be used against an American soldier, would I believe the soldier had 
been abused?
  Adopting this conference report would extend that ``golden rule'' to 
CIA interrogations, to station agents all across the globe, and make 
sure that no coercive technique could be used if we would not be 
comfortable with the same technique being used against an American 
citizen.
  Now, here are some facts about the CIA program. The CIA has used 
coercive techniques on detainees since September 11, 2001, under the 
President's authorization and approval of the Department of Justice. 
The CIA has waterboarded three detainees--Abu

[[Page 2016]]

Zubaydah, Abd al-Rahim al-Nashiri, and Khalid Shaikh Mohammed.
  The White House believes that waterboarding could be used in the 
future, even though General Hayden has recently publicly questioned its 
legality. The CIA has used contractors for interrogations, as General 
Hayden admitted in an open, public hearing this past week. So the CIA 
has outsourced what is an inherently governmental function of 
questionable legality and morality.
  More importantly, the CIA's interrogation techniques change. There is 
no uniform standard. There is no standard as to how they are to be 
combined, what the circumstances are. Think about this. Done with cold 
calculation, any interrogation technique, when applied over the course 
of hours or days or months, and in combination with other techniques, 
can cross the line into illegality. An interrogator can choose from a 
menu of coercive approaches, pick several of them, and go to work. So 
don't be fooled. Even the least coercive-sounding technique, when used 
relentlessly or in combination, can be torture.
  Now, in addition to being immoral, I believe the CIA interrogation 
program is illegal.
  I say this as a member of the Intelligence Committee, and I say this 
as one who has been briefed several times on these techniques. These 
techniques have violated the Convention Against Torture and the U.S. 
torture statute by inflicting severe physical or mental pain or 
suffering to others. It has violated Geneva Convention common article 
III, which prohibits outrages upon personal dignity, in particular 
humiliating and degrading treatment.
  The medical research is clear. Coercive techniques cause severe pain 
and suffering. That is why both the AMA and the American Psychological 
Association have passed resolutions against their members participating 
in such interrogations.
  In a letter dated September 13, 2006, retired General and former 
Secretary of State Powell wrote this:

       The world is beginning to doubt the moral basis of our 
     fight against terrorism.

  I think that says it in a nutshell. As every Member knows, we will 
never win the war on terror by capturing or killing or torturing all 
our enemies. We will only win the war by our ideals and by removing any 
public support for al-Qaida's vision.
  Using torture cuts away from our moral high ground. It takes America 
into the ``dark side,'' and thus it reduces our ability to win this 
war. I believe we should end this now.
  The military is the segment of the U.S. population most likely to be 
captured and interrogated by our enemies. They know any technique we 
authorize can be used against them, and that is the point. If the 
United States uses waterboarding, you can be sure that waterboarding 
will be used against our station agents, against our military. It is a 
mistake to do so.
  That is why 43 retired generals and admirals, including 10 four-star 
officers, have signed a letter to Congress denouncing coercive 
techniques and supporting the single unified uniform standard for the 
entire Government, the Army Field Manual.
  Here is what they wrote:

       We believe that it is vital to the safety of our men and 
     women in uniform that the United States not sanction the use 
     of interrogation methods it would find unacceptable if 
     inflicted by the enemy against captured Americans. That 
     principle, embedded in the Army Field Manual, has guided 
     generations of military personnel in combat.

  And the letter goes on.
  I have listened to the experts such as FBI Director Mueller and DIA 
Director General Maples. They all insist that even with hardened 
terrorists you get more and better intelligence with the gloves on than 
when you take them off.
  The CIA cannot show that coercive techniques are more effective than 
noncoercive techniques. And I wish I could say what I know from a 
classified setting, but I cannot. They point to the anecdotes they have 
declassified, while the counterexamples remain classified.
  So I can only summarize and say this: This is the moment where the 
Senate stands up. The House has stood up. They have passed a bill. If 
we want to ban waterboarding, if we want to ban the eight techniques 
banned by the Army Field Manual, this is our moment to do so. I think 
we should stand tall. I think we should adhere to our principles. I 
think we should raise what we say internally and once again regain the 
world's credibility. I hope we maintain the Senate bill as it is.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from West Virginia is 
recognized.
  Mr. ROCKEFELLER. Mr. President, action on the fiscal year 2008 
authorization bill for intelligence is so long overdue I do not even 
know how to explain it. It is over 2 years overdue. It is a very 
important bill.
  Beginning in 1978, after the two congressional intelligence 
committees were established, the Congress passed an annual intelligence 
authorization bill every year. It does not sound interesting, but it 
has a great deal to do with how the intelligence community operates. We 
passed it for 27 consecutive years. And there was no exception to that. 
This legislation was one of very few nonappropriations measures that 
Congress has always considered ``must pass.'' Yet we have failed to 
pass it for the last number of years, and it is a matter of 
consternation.
  The importance of our intelligence programs to our national security 
has always been very obvious. The importance of strong congressional 
oversight of the intelligence activities has been equally obvious; 
although it has been spottier in the recent past, it no longer is.
  Then in 2005 and 2006, the bills reported out of the Senate 
Intelligence Committee were never brought to the Senate for 
consideration. There were internal reasons for that. I will spare the 
Presiding Officer from a discussion of those matters, and it is no 
longer important why.
  But we have to do this bill. The intelligence authorization bill is 
the tool the Congress uses to provide direction, specific direction, 
and to enforce the oversight that we do. It involves many of the most 
sensitive national security programs conducted by the U.S. Government.
  The 2008 authorization bill includes provisions to improve the 
efficiency of the intelligence community. It is a bland statement, but 
it is a very important series of parts. The bill produces better 
intelligence. We provided flexibility and authority to the DNI. We gave 
him a tremendous responsibility and then did not give him enough 
flexibility to exercise that responsibility. We do that in this bill.
  We require much greater accountability from the intelligence 
community. That is oversight. We require greater accountability from 
the intelligence community and its managers. We improve the mechanisms 
for conducting oversight of intelligence programs and we reform 
intelligence program acquisition procedures. All of that is oversight.
  Many of the provisions were included at the request of the National 
Intelligence Director in this bill. I always believe in reaching out to 
the professionals in doing this.
  The creation of the DNI position was the result of the most 
significant reform of the intelligence community in 50 years. And the 
current DNI, ADM Mike McConnell, is absolutely superb. The Office of 
Director of National Intelligence has now existed for 2\1/2\ years, and 
we have begun identifying ways to help the DNI better coordinate the 16 
elements of the intelligence community, which are scattered around the 
Government, some of which do a very good job and some of which do not. 
Now he is pulling all of this together and he is doing a good job.
  Starting with personnel authority, this bill uses a much more 
flexible approach to authorizing personnel levels. Those are very 
delicate. We also give the DNI the ability to exceed personnel ceilings 
by as much as 3 percent because he needs to have that. He is in the 
process of trying to figure out how to adjust all of this and work it 
right. He needs flexibility. It also provides additional flexibility to 
encourage the DNI to convert contractor positions to Government 
employees when appropriate.

[[Page 2017]]

  Every Member knows the real power is the power of the purse. It is 
the same with the DNI. And this bill changes reprogramming requirements 
to make it easier to address, as they say, emerging needs in critical 
situations, a crisis. We give him the financial flexibility to do that. 
He needs that flexibility, and he now will have it if we pass this 
bill.
  It authorizes the DNI to use interagency funding amongst his various 
agencies that he oversees to establish national intelligence centers if 
he so chooses. The bill also allows the DNI to fund information-sharing 
efforts across the intelligence community. That was the whole point of 
the 9/11 Commission. That is the whole point of reducing stovepipes.
  Finally, it repeals several unneeded and burdensome reporting 
requirements. Frankly, we can use up a lot of people's time on 
something that we no longer need. We reduce some reporting requirements 
without in any way compromising accountability because oversight is the 
whole point of this bill.
  As it increases the authority of the DNI, the bill also improves 
oversight of the intelligence community in other ways. The bill creates 
a strong independent inspector general in the office of the DNI. It has 
to be confirmed by the Senate. That is called oversight. Confirmed by 
the Senate. That means it has to report to the committee. Accountable 
to the committee. It has to tell us the truth. Confirmation allows 
inspectors general to do very difficult things within their own 
departments that maybe some of the leaders will not do.
  It establishes statutory inspectors general in the National Security 
Agency, the NRO, the NGA and the Defense Intelligence Agency. So these 
are all there. They are all accountable. They are all oversight tools 
that we want.
  The bill also gives the Congress more oversight of the major 
intelligence agencies by requiring Senate confirmation of the Directors 
of NSA and NRO. Right now we do not have to confirm them. If we do not 
confirm, that means they do not have the same relationship with the 
Senate. We confirm the CIA, but we do not confirm the NSA.
  You tell me, particularly after we passed the FISA bill yesterday, 
how is it possible that we would not be able to confirm the head of the 
National Security Agency as well under this bill? We can, which makes 
him accountable to us, which means he reports to us, which means we can 
do oversight over him much more aggressively.
  As we describe in our conference report:

       . . . of the need for NSA's authorized collection to be 
     consistent with the protection of the civil liberties and 
     private interests of U.S. persons.

  Through confirmation of the NSA Director, we can ensure that 
continues or starts to be so.
  As we increase the DNI's flexibility to manage personnel, we require 
an annual assessment. That sounds boring, but, no, it is not. It is 
very important--an annual assessment of personnel levels across the 
intelligence community: How are they distributed? Are they in the right 
place? Are people protecting their turf? The DNI is in charge of this. 
We want to give him all the support, and we want this all reported to 
us in our committee so we can watch it.
  We also required the inclusion of a statement that those levels are 
supported by adequate infrastructure, training, funding, and a review 
of the appropriate use of contractors, which has become a very 
interesting subject in these months and years.
  This bill also addresses an issue that has concerned the committee 
for a long time, the lack of accountability for failures and 
programmatic blunders. That is called oversight.
  We want accountability. We want it in front of us. We want our hands 
on it. The bill gives the DNI the authority to conduct accountability 
reviews across the intelligence community if he deems it necessary or 
if we request it in our committee. It is called oversight.
  This also improves financial management by requiring a variety of 
actions related to the production of auditable financial statements. 
That sounds pretty boring, but, no, it is not. When you get into the 
intelligence community, when you get to classified numbers, things of 
that sort, it is very important to have someone watching. That is 
oversight. We will have that if this bill passes.
  The final major theme in the bill is the reform of the acquisition 
process. The bill requires a vulnerability assessment of all major 
acquisition programs. Well, acquisition is a very large word in 
intelligence and a very expensive word. We have made some very big 
mistakes, we have not been able to correct them.
  But that is a discussion for another day. So we have a classified 
annex. Any Senator who wants to look at what is behind all of those 
numbers can do that very easily.
  I have other things I wish to talk about, particularly the Army Field 
Manual. But I have a whole different speech awaiting my colleagues on 
that later in the day.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, I thank my colleague with whom I have worked 
closely on this and many other matters.
  One of the most important means that Congress has for conducting 
oversight of the intelligence community is through the annual 
authorization bill for the intelligence agency. Regrettably, we can't 
call it an annual Intelligence Authorization bill because Congress was 
unable to pass a bill in 2006 and 2007. Unfortunately, it appears we 
are on a path that may prevent us from getting an authorization bill 
signed for fiscal year 2008.
  When I assumed the duties as vice chairman of the select committee at 
the beginning of this Congress, one of my top priorities--and that of 
the committee--was to get an Intelligence Authorization bill signed 
into law. During the first month of our tenure, we tried to resuscitate 
the fiscal year 2007 bill but could not get it out of the Senate. When 
the time came to fashion a bill for fiscal year 2008, we had better 
luck. But as Louis Pasteur once said, ``Chance favors the prepared 
mind.'' The committee worked hard to include in the chairman and vice 
chairman's mark only those provisions that had strong bipartisan 
support. Our rule was if either side objected to a provision, it would 
not be included. After our markup, we added a number of other good 
government provisions that had strong bipartisan support. 
Unfortunately, the committee also added a number of problematic 
provisions that caused our bill to stall on the floor.
  I believed we had largely succeeded in our process of accomplishing 
the goals of a bipartisan bill. We worked closely with the 
administration to address some of their concerns. Some were easier to 
resolve than others. We all know there is one very problematic 
amendment relating to the Army Field Manual that was added during the 
conference between the House and the Senate. I will address that later. 
But now I wish to talk about some of the good things in this conference 
report.
  First, I have often said--and I believe responsible observers now 
agree--that in creating the Director of National Intelligence, we gave 
him a tremendous amount of responsibility but darn little authority to 
get the job done. This conference report attempts to address that 
problem by giving the DNI clearer authority and greater flexibility to 
oversee the intelligence community. For example, section 410 gives the 
DNI statutory authority to use national intelligence program funds 
quickly to address deficiencies or needs relating to intelligence 
information or access or sharing capabilities. The DNI may also use 
funds to pay for non-NIP--national intelligence program--activities and 
to address critical gaps in those areas.
  Section 409 expands the number of officials in the office of the DNI 
who can protect sources and methods from unauthorized disclosure. This 
authority may now be delegated to the Principal Deputy Director of 
National Intelligence and the chief information officer of the 
intelligence community. These are all good things, all things the 
administration needs. We also included provisions that will ensure that 
the men and women of our intelligence

[[Page 2018]]

community who must work undercover may do so at less risk of disclosure 
and, consequently, less risk to their personal safety.
  Section 305 allows the DNI to delegate the authority to authorize 
travel on any common carrier for purposes of preserving cover of 
certain employees. Section 325 extends to the head of each intelligence 
community element the authority to exempt certain gifts from otherwise 
applicable reporting requirements. Without this exemption, detailed 
information about the receipt of gifts from foreign governments must be 
published in the Federal Register. Imagine if an undercover agent 
receives a gift from one of the targets he is working and has to report 
it in the Federal Register. That not only blows his cover, it probably 
ends his life. That is a great national security concern to operatives 
who have received such gifts as part of their covert actions.
  One particular provision will reduce the personnel and resources used 
to respond to many congressional reporting requirements. In section 
330--again, in response to a request of the DNI--we eliminated a number 
of reporting requirements. It is a small step but an important one, as 
each reporting requirement diverts valuable resources from the intended 
purpose. I hope, within the 2009 Intelligence Authorization bill, we 
can make even greater progress in reducing unnecessary and duplicative 
reporting requirements that burden the intelligence community.
  There are a number of provisions in this conference report that are 
essential for promoting good government. Too often we have seen 
programs or acquisitions of major systems balloon in cost and decrease 
in performance. That is unacceptable. We as taxpayers are spending 
substantial sums of money to ensure that the intelligence community has 
the tools it needs to keep us safe. If we don't demand accountability 
in how these tools are operated or created, then we are failing the 
taxpayers. We are failing the intelligence community. We are failing 
the mission I would hope we all agree is essential.
  I sponsored several amendments that require the intelligence 
community to perform vulnerability assessments of major systems and to 
keep track of excessive cost growth of major systems. This latter 
provision is modeled on the Nunn-McCurdy provision which has guided 
Defense Department acquisitions for years. I believe these provisions 
will encourage earlier identification, the solving of problems relating 
to the acquisition of major systems. Too often such problems have not 
been identified until exorbitant sums of money have been spent. In some 
cases, several billions of dollars have been blown before the waste 
stopped. Unfortunately, too often, once they have sunk a bunch of money 
into a project, they refuse to cancel it, even though they are 
continuing to throw good money after bad.
  Similarly, the intelligence community must get a handle on their 
personnel. I don't share the belief some have that the Office of the 
Director of National Intelligence is too large. In fact, I think we 
need to make sure our National Counterterrorism Center and National 
Counterproliferation Center have more resources, not less. They are the 
ultimate idea for creating a centralized intelligence community, 
bringing analysts and collectors together from all of the 16 different 
elements of the community.
  I am concerned about the number of contractors used by the 
intelligence community to perform functions better left to Government 
employees. There are some jobs that demand the use of contractors--for 
example, certain technical jobs or short-term functions--but too often 
the quick fix is to hire contractors, not long-term support. So this 
conference report includes a provision calling for an annual personnel 
level assessment for the intelligence community. These assessments will 
ensure that before more people are brought in, there are adequate 
resources to support them and enough work to keep them busy.
  Finally, we have included section 312, which requires the DNI to 
create a business enterprise architecture that defines all intelligence 
community business systems. The endgame is to encourage implementation 
of interoperable intelligence community business systems, getting 
everyone on the same page; in sum, making sure everybody is talking to 
each other and everybody who needs to know can listen in, a simple but 
not-yet-achieved objective. Given the substantial sums of money we are 
spending on these systems, we should be making certain the systems are 
efficiently and effectively coordinated; again, a good government 
provision.
  There were a number of adjustments we had to make. We responded to 
concerns of the administration, and I worked particularly with my 
Democratic colleagues--and I thank them for their support--to make 
adjustments that would allow the bill to clear the Senate for the first 
time in 2 years. Let me highlight some of those adjustments because it 
is important to remember how much effort it took to return the bill to 
a bipartisan state.
  No. 1, we struck a section that would have required the President to 
provide Congress with any President's daily brief involving Iraq during 
a certain time period. The PDBs have not been disclosed. As a matter of 
fact, they only came to light when a former official in the previous 
administration put some PDBs in his BVDs and stuck them out at the 
archives for reasons no one has adequately explained.
  We struck two sections that contained controversial notification and 
funding restrictions. We struck a provision requiring declassification 
of the budgetary top line of the national intelligence program because 
it had already passed Congress in S. 4, the so-called 9/11 bill. We 
struck a section that required the CIA Director to make available to 
the public a declassified version of a CIA inspector general report on 
CIA accountability related to the terrorist attacks. That was also 
required by S. 4. It was about time the CIA internal IG report be made 
available. Everybody else had to air their failings, and it was time 
the CIA did so as well.
  We struck a section that would have allowed the public interest 
declassification board to conduct declassification reviews at the 
request of Congress, regardless of whether the review is requested by 
the President. We also struck a provision that would have required a 
national intelligence estimate on global climate change, largely 
because the DNI, which is not equipped to conduct an NIE on climate 
change, had outsourced the responsibility for putting together an 
assessment, and there was no need to mandate this in law.
  Finally, we made modifications to at least seven other provisions to 
address concerns raised by the administration and by our Senate 
colleagues. The end result was, we get a fiscal year 2008 Intelligence 
Authorization bill passed out of the Senate by unanimous consent in 
early October 2007. I thank my colleagues for allowing us to do that. 
It was long overdue, and it was a badly needed action. Then, however, 
we went to conference.
  I urged my conferees to avoid inclusion of controversial provisions. 
We kept our negotiations to the base text of both bills. Given that we 
hadn't had an intel bill during the past 2 years, there were a lot 
provisions to negotiate. I guess you could say there was a lot of pent-
up oversight. After a lot of hard work, we were able to merge the two 
bills in a manner we believed would receive strong bipartisan support. 
Unfortunately, despite my warnings, history again repeated itself. 
During the conference markup, the Senate adopted, by a one-vote margin, 
a controversial provision that limits the intelligence community to 
using only those interrogation techniques authorized by the U.S. Army 
Field Manual on human intelligence collector operations. As I will 
discuss later, to adopt that provision and put it into law would, 
according to the Director of the CIA, shut down the most valuable 
intelligence collection program the CIA has, a program that has 
protected our homeland and our troops abroad from terrorist attacks. 
Because it was adopted, I couldn't sign the conference report that I 
and my colleagues worked so hard to enact.

[[Page 2019]]

  Another consequence of that vote was it caused the conference report 
to languish in the Senate for more than 2 months now. Shortly after the 
passage of the conference report, the administration released a 
statement of administration policy and--certainly not to my surprise--
at the top of their list of objectionable provisions was the limitation 
on interrogation techniques provisions. We have heard some 
misstatements on this floor about interrogation and the techniques 
used. Frankly, I share some of the same concerns raised by the 
administration with respect to this provision. Statements made about 
the interrogation program of the CIA are not accurate. They have been 
blown totally out of context, and they deserve a response. This 
section, if it were enacted in law--and it will not be--would prevent 
the intelligence community from conducting the interrogation of senior 
al-Qaida terrorists to obtain intelligence needed to protect the 
country from attack.
  During its consideration of the Detainee Treatment Act of 2005, 
Congress wisely decided that while the Army Field Manual was a good 
standard for military interrogators who number in the tens of 
thousands, with limited supervision and limited training, it was not 
the standard that should be used by the CIA.
  CIA interrogators are highly trained, operate under tremendous 
oversight and rules and supervision in interrogating those top hardened 
terrorist leaders, who have information on how the system operates and 
who the major players are. They do not outsource this job to 
contractors such as Blackwater or others. It is my understanding if 
they use contractors, it is former interrogators who are brought back 
in because of their experience. They are subject to the supervision of 
the CIA, with multiple layers of supervision and oversight by video 
cameras. It is highly irresponsible to say the CIA has outsourced 
torture. We do not do torture.
  Now, a lot of people say we have lost a lot because of our inhumane 
treatment. They are referring to Abu Ghraib. We all agree that what was 
done at Abu Ghraib was inhuman and degrading. But it was not done by 
anybody in the intelligence field or for intelligence purposes. It was 
done by renegade troops who have been prosecuted, punished, and 
imprisoned for the violations of basic decency. Yes, that has hurt us 
worldwide, but that is not the standard which is allowable, 
permissible, or acceptable by any of our interrogators.
  Mention has been made of eight techniques that are banned in the Army 
Field Manual. I agree, those techniques that are banned in the Army 
Field Manual should be banned. Those are not techniques that should be 
used. The Army Field Manual was meant for the Army in limiting the 
number of techniques that can be used. It applies to them only for the 
Army, for the Army's use. There are quite a number of techniques that 
fall within the same category that are not torture, inhuman, degrading, 
or cruel. If they are not included in the Army Field Manual, then they 
would not be permitted to be used, if this were made law, by the CIA, 
the FBI, or anybody else.
  But to apply the Army Field Manual--it says you can only use these 
interrogation techniques if you get authorization from ``the first 0-6 
in the interrogator's chain-of-command''--well, that would mean the CIA 
would have to go over to the Army and say: Do you have an 0-6 who can 
come over and look over the shoulders of our interrogators? Well, you 
do not have to worry about that because the CIA program would be 
ending.
  It allows the Army to set the interrogation standards for the entire 
intelligence community. It is important that my colleagues recognize 
this interrogation provision is not an antitorture provision. The 
previous speakers have said we need to pass this law to outlaw torture. 
It is outlawed. The law prohibits the United States from using torture. 
This provision prevents the intelligence community from engaging in 
other lawful interrogation techniques that fall outside the scope of 
the Army Field Manual.
  Why is that important? Because everything in the Army Field Manual 
has been published in the al-Qaida manuals. The top officials of al-
Qaida know those techniques better than the interrogators know them. 
They know how to resist them, and they are ineffective.
  Now, some on the other side of the aisle would like to frame this 
provision as being about waterboarding. It is not.
  The Attorney General has publicly stated that the CIA no longer uses 
waterboarding. The technique is not one of the approved techniques. The 
Director of the CIA has publicly stated that there were only three 
individuals waterboarded and the technique has not been used since 
2003. It was used in the crisis right after 2001, when tremendous 
amounts of valuable information were gained from the three individuals 
waterboarded.
  What we are talking about here is not waterboarding. Some of my 
colleagues have said that the EITs are not effective--enhanced 
interrogation techniques. Well, that is absolutely not true. That is 
precisely the opposite of what the CIA Director has told us in our 
classified hearings and explained it.
  Now, the CIA Director has said they have held less than 100 people in 
their custody, and less than one-third of those have been submitted to 
enhanced interrogation techniques.
  These are the hardened terrorists who have the most information that 
is needed to protect our troops, our allies abroad, and those of us 
here at home.
  Those techniques--which are different from but no harsher than the 
techniques that are in the Army Field Manual--are unknown to the 
detainees. Those detainees on whom the EITs--not including 
waterboarding--have been used have produced the most productive 
information and intelligence. Literally thousands upon thousands of the 
most important intelligent collections have come from the cooperating 
detainees who did not know what was going to happen to them, even 
though no torture, cruel, inhuman, or degrading techniques were used on 
them.
  Many of the techniques that are used--and I have reviewed them--are 
far less coercive or strenuous than what we apply to our military 
volunteers: young men and women of America who join the Marines, the 
SEALs, the Special Operations Forces, or pilots who go through the 
survival, evasion, resistance, and escape training, or the SERE 
training. We do not even use the most strenuous of those techniques on 
our detainees.
  Those who say we do not want our enemies to use any more harsh 
techniques than we use on them--well, good luck. You have seen Abu 
Musab al-Zarqawi beheading people. Those are not techniques that 
anybody would suggest. A beheading probably eliminates a source of 
further information.
  But the problem is, the techniques that are used would be banned. The 
techniques--that are not cruel, that are not inhuman, that are used on 
our own voluntary military enlistees--are prohibited because they are 
not included in the Army Field Manual. One good reason they are not is 
because we do not want to publicize them or they would no longer be 
effective in use against those high-value detainees who will not 
cooperate otherwise. I cannot support a bill that contains that 
provision.
  So here we are on the floor--the farthest we have gotten in 3 years. 
It looks as though history is going to repeat itself. No wonder 
congressional ratings are at an all-time low. I believe our inability 
to work in a bipartisan fashion on a consistent basis may be harming 
us. Yesterday's success with the FISA Amendments Act is a model example 
of what can be accomplished when we work together. For the most part, 
the committee's work on the Intel bill followed that model, although we 
were unable to protect the bipartisan compromise in the end.
  As the vice chairman of the Senate Intelligence Committee, I have 
invested a very significant amount of time and effort to provide 
meaningful

[[Page 2020]]

 oversight of the intelligence community through this bill. I know my 
distinguished chairman, Senator Rockefeller, has made those same 
efforts and shares the goal.
  However, I have often said that no bill is better than a bad bill. 
Right now, with this provision in it, this is a bad bill because what 
it would do, according to the Director of National Intelligence, is to 
shut down the most effective interrogation program the CIA has to use 
to induce cooperation from those leaders of al-Qaida and other 
terrorist organizations who know about the plots to attack the United 
States and to attack our allies.
  Mr. President, I urge my colleagues to support cloture so we can move 
forward on the process on this legislation, but the President has 
stated he will veto the bill and, regrettably, I must say that despite 
all the good things in the bill, he is correct. We cannot afford the 
risk to this country, to our personal safety, to our desire to avoid 
another 9/11, by saying we can no longer allow the CIA to use the 
acceptable techniques that are not published but that are very 
effective in assuring cooperation of high-value detainees whom we in 
this country capture through the CIA. Regrettably, while I urge my 
colleagues to support cloture, I cannot urge them to pass this measure.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Menendez). The Senator from Oregon.
  Mr. WYDEN. Mr. President, how much time do I have remaining at this 
time?
  The PRESIDING OFFICER. The Senator has 3 minutes.
  Mr. WYDEN. Mr. President and colleagues, I ask unanimous consent to 
have my time--you said I have 3 minutes; I see my friend on the floor--
to have my time extended by 3 minutes so I would have a total of 6 
minutes.
  The PRESIDING OFFICER. Is there objection?
  Mr. BOND. That is acceptable. No objection.
  Mr. President, I ask unanimous consent for 2 additional minutes after 
that, if that could be part of the request.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. WYDEN. Mr. President, thank you, and I thank my friend from 
Missouri as well.
  I especially want to express my appreciation for the outstanding work 
of Senator Feinstein, my seatmate on the Intelligence Committee, who I 
think understands it is possible in this country to fight terrorism 
ferociously and still be sensitive to American values and the rule of 
law. That is what I want to spend a few minutes talking about because I 
think under the approach developed by Senator Feinstein this 
legislation does that.
  I start by responding to the point my friend from Missouri has made 
about the most dangerous terrorists whom we are involved in 
interrogating. It seems to me these individuals are literally human 
ticking timebombs. They have information, for example, about operations 
we absolutely must have information on in order to protect the American 
people. But I have come to the conclusion it is possible to get this 
essential information we need from these human ticking timebombs--the 
time-sensitive threat information--without practices that violate our 
values and violate the rule of law.
  The reason I have come to that conclusion--and why I so strongly 
support what Senator Feinstein is doing--that is what some of our key 
officials tell us in the executive branch. For example, this week, I 
asked FBI Director Mueller about whether it was possible to use 
noncoercive techniques effectively in terms of getting this information 
from human ticking timebombs, and the Director said, to his credit, 
yes, it was possible to use noncoercive techniques to get the 
information necessary to protect the United States of America. The fact 
is, the military has said it as well.
  It is that core principle Senator Feinstein has picked up in her 
work. She believes, as I do, we will take no backseat to anyone in 
terms of fighting the terrorists relentlessly, but we can do it, as 
Director Mueller and the military have said, in line with the rule of 
law and in line with American values.
  With respect to the role of the military, they already abide by 
interrogation rules that are flexible and effective. They have been 
used by professional military interrogators with many years of 
experience, and they are clearly effective.
  Some have suggested, incorrectly in my view, that the military rules 
make better interrogators, follow the same rules as new recruits, but 
that is not right. The Army Field Manual actually makes it quite clear 
which techniques are authorized for all servicemembers and which 
require special permission to use.
  It is my view that our country has paid dearly for this secret 
interrogation program. My friend from Missouri has indicated, in his 
view, you cannot torture, but the case was strong for the Feinstein 
amendment a couple months ago, and it is even stronger today because 
General Hayden has said that in the past, waterboarding has been used 
and, in fact, my view is that the need for this legislation, just on 
the basis of the developments over the last few weeks, is even more 
important than it was because these practices that have come to light 
in the last few weeks have damaged our relations, damaged our moral 
authority.
  The tragic part of this, on the basis of the answers from Mr. Mueller 
in open session this week and the military is that these coercive 
techniques are not effective or even necessary. I share the view of my 
friend from Missouri about how important it is to get this time-
sensitive threat information.
  He and I have talked about this on many occasions. Of course, we 
cannot get into any of the matters that are classified. I share his 
view, but it is possible, I say to my colleagues, to get that 
information without breaching the values Americans hold dearly and the 
rule of law.
  I hope my colleagues will support the important work by the Senator 
from California. This is an issue we have looked at. It has had 
bipartisan support in the past.
  I am very appreciative of what Senator McCain, who knows a little bit 
about this, has had to say in the past about fighting terrorism 
relentlessly and protecting our values.
  I hope my colleagues will support the efforts of the Senator from 
California. If her case was strong several months ago, I think it is 
even stronger today on the basis of what we have learned in open 
session.
  Mr. FEINGOLD. Mr. President, I support the intelligence authorization 
conference report, which is so important to Congress's efforts to 
conduct oversight of the intelligence community. The administration's 
illegal actions and its relentless efforts to obtain vast new 
eavesdropping authorities make oversight more important than ever. I 
particularly support the provision limiting interrogation techniques to 
those authorized by the Army Field Manual. I was a cosponsor of this 
amendment when it was offered in conference, and I am pleased that it 
has the support of bipartisan majorities of both the Senate and House 
Intelligence Committees. It represents, at long last, an important step 
toward bringing this administration into conformity with the law and 
with our national principles. It also represents a clear decision by 
the very Members of Congress who have been briefed on the CIA's 
interrogation program that the use of so-called enhanced interrogation 
techniques is not in our country's best interests.
  When the intelligence authorization bill was marked up by the 
committee in May, I made my position clear. I could not support the 
CIA's program on moral, legal, or national security grounds. When I was 
finally fully briefed on the program, it was clear that what was going 
on was profoundly wrong. It did not represent what we, as a nation, 
stand for, or what we are fighting for in this global struggle against 
al-Qaida. And it was not making our country any safer. I also concluded 
that if the American people knew what we in the Intelligence Committee 
knew, they would agree.
  The program also cannot stand up to any serious legal scrutiny. To 
take just

[[Page 2021]]

one interrogation technique that the administration has acknowledged 
using in the past, waterboarding is torture, pure and simple. Everyone 
knows this. The rest of the world knows this. And, in every other 
context, our own government knows this. What Orwellian world do we 
inhabit in which the administration attempts to argue otherwise? And in 
what world does waterboarding not ``shock the conscience,'' the test 
required by the Detainee Treatment Act? I suspect that the 
administration knows full well that its legal justifications for the 
program are empty, and that is why the Attorney General has refused to 
tell Congress why he believes the program is legal and has instead 
referenced Justice Department analyses that have also been withheld 
from Congress.
  The CIA's interrogation policy is undermining our ability to fight 
al-Qaida. It has diminished our standing in the world, precisely when 
we should be providing global leadership against this growing threat. 
And it has denied us the moral high ground that is so critical if we 
are to reach out to parts of the world in which al-Qaida seeks to 
operate and recruit. By passing this conference report, we can begin to 
reverse this damage. We can also, finally, reassure our troops that 
torture is torture and that if you are captured by the enemy, the 
American government will not equivocate about the Geneva Conventions 
protections to which you are entitled.
  The administration has repeatedly attempted to sell this program by 
arguing that Members of Congress have been briefed, as if the mere fact 
of telling members of Congress means that the program must be legal. 
The President made this argument last fall. And the Director of the CIA 
did so again last week. But, what the administration always fails to 
mention is that as members of the Intelligence Committees have learned 
about the program, opposition has steadily increased. I have sent a 
classified letter detailing my serious concerns and so, too, have 
others. And now, we have bipartisan majorities of both intelligence 
committees saying ``enough is enough.''
  It has long been my position that interrogation techniques should be 
limited to those authorized by the Army Field Manual. This approach 
brings the CIA into conformity with the rules by which our men and 
women in uniform defend our nation and themselves. We fought Nazi 
Germany and the battles of the Cold War without resorting to 
government-sanctioned torture. We can surely defend America and defend 
our principles now. It is time to bring an end to this stain on our 
Nation, and to make the American people proud again.
  Mr. LEAHY. Mr. Presdient, this Report contains a provision that 
reinforces the prohibition against our Government engaging in torture. 
It expressly prohibits interrogation techniques that are not authorized 
by the United States Army Field Manual. By passing this bill, we will 
not only respond to this administration's ambiguity about torture by 
reiterating that it is off the table, we will be sending a message to 
the world that the United States is a country that does not tolerate 
torture. Whether waterboarding is torture and illegal does not depend 
on the circumstances.
  When it comes to our core values--that which makes our country great 
and defines America's place in the world--it does not depend on the 
circumstances. America, the great and good Nation that has been a 
beacon to the world on human rights, does not torture and should stand 
against torture.
  Let me be clear. This provision should not be necessary. 
Waterboarding, and other forms of torture, are already clearly illegal. 
Waterboarding has been recognized as torture for the last 500 years. 
President Teddy Roosevelt prosecuted American soldiers for 
waterboarding more than 100 years ago. We prosecuted Japanese soldiers 
for waterboarding Americans during World War II.
  I support this provision, despite the fact that there is no question 
that waterboarding is already illegal, because this administration has 
chosen to ignore the law. They have admitted they have engaged in 
waterboarding, otherwise known as water torture, and they refuse to say 
they will not do it again. The positions they have taken publicly on 
this subject are, I believe, so destructive to the core values of this 
Nation and our standing in the world, that this Congress should say, 
again--very clearly--that our Government is not permitted to engage in 
these shameful practices.
  Tragically, this administration has so twisted America's role, laws 
and values that our own State Department and high-ranking officials in 
our Department of Justice cannot say that waterboarding of an American 
is illegal. If an enemy decided to waterboard an American soldier, they 
can now quote statements from high officials in our own Government to 
support their argument that the technique breaks no laws. That is how 
low we have sunk.
  Our top military lawyers and our generals and admirals understand 
this issue. They have said consistently that waterboarding is torture 
and is illegal. They have told us again and again at hearings and in 
letters that intelligence gathered through cruel techniques like 
waterboarding is not reliable, and that our use and endorsement of 
these techniques puts our brave men and women serving in the armed 
forces at risk. That is why they have so explicitly prohibited such 
techniques in their own Army Field Manual, and it is an example that 
the rest of the Government should follow.
  So, despite the fact that the law is already clear, I urge the Senate 
to pass this provision, and I urge the President to promptly sign it 
into law, making the policy of our Nation clear. Our values cannot 
permit this to be an open question. We must put an end to the damage 
that this administration's positions have caused to our standing and 
the risks that they have taken with the safety of American citizens and 
soldiers around the world.
  Mr. LEVIN. Mr. President, I urge my colleagues to support the 
intelligence authorization conference report which includes a 
requirement that all Government agencies, including the CIA, comply 
with the Army Field Manual on Interrogations in the treatment and 
interrogation of detainees.
  The result will be a single standard of treatment for detainees, a 
standard consistent with American values and international standards. 
The Army Field Manual is consistent with our obligations under Common 
Article 3 of the Geneva Conventions, which prohibits subjecting 
detainees to ``cruel treatment and torture.'' This is the standard to 
which our soldiers are trained and which they live by.
  Consistent with this standard, the Army Field Manual specifically 
prohibits certain interrogation techniques. These include: forced 
nudity; ``waterboarding,'' that is, inducing the sensation of drowning; 
using military working dogs in interrogations; subjecting detainees to 
extreme temperatures; and mock executions.
  Unfortunately, the Bush administration has insisted that it reserves 
the right for the CIA to engage in certain ``enhanced interrogation 
techniques.'' It has been reported that these CIA techniques include 
``waterboarding.'' While this Justice Department continues to refuse to 
say one way or the other, let there be no doubt: waterboarding is 
torture.
  The Judge Advocates General of all four services have told us 
unequivocally that waterboarding is illegal.
  Requiring that all Government agencies comply with the standards of 
the Army Field Manual is not mushy intellectualism. It is hard-headed 
pragmatism. When we fail to live up to our own standards for humane 
treatment, we compromise our moral authority. Our security depends on 
the willingness of others to work with us and share information, 
information which could prevent the next attack. When we project moral 
hypocrisy, we lose the support of the world in the fight against the 
extremists.
  Requiring a single standard for the treatment of detainees consistent 
with the Army Field Manual protects our men and women in uniform, 
should they be captured. It strengthens our hand in demanding that 
American prisoners be treated humanely, consistent

[[Page 2022]]

with values embodied in the Field Manual.
  I urge my colleagues to support the intelligence authorization 
conference report with the provision that standards in the Army Field 
Manual for treatment of detainees will apply to all elements of the 
intelligence community.
  Mr. GRAHAM. Mr. President, I oppose the conference report on the 
intelligence authorization bill.
  I was troubled to learn the Intelligence Committees inserted in the 
conference report a provision to apply the Army Field Manual to the CIA 
program. This was done without any hearing or vote in either the House 
or the Senate.
  I strongly regret the committee chose this course of action since it 
denies the Senate the opportunity to fully appreciate the implications 
of such a restriction on the CIA program.
  It would be a colossal mistake for us to apply the Army Field Manual 
to the operations of the CIA. I have been briefed on the current CIA 
program to interrogate high value targets. It is aggressive, effective, 
lawful and in compliance with our legal obligations. Unfortunately, the 
intelligence authorization bill as currently drafted will destroy the 
CIA program.
  I believe in flexibility for the CIA program within the boundaries of 
current law. The CIA must have the ability to gather intelligence for 
the war on terror. In this new war, knowledge of the enemy and its plan 
is vitally important and the Army Field Manual provision will weaken 
our intelligence gathering operations.
  It is regrettable that the debate on the intelligence authorization 
bill has become a debate about waterboarding. Waterboarding is not part 
of the CIA program.
  However, waterboarding, under any circumstances, represents a clear 
violation of U.S. law and it was the clear intent of Congress to 
prohibit this practice. In 2005 and 2006, the Senate overwhelmingly and 
in a bipartisan fashion stood up against cruel, inhuman and degrading 
treatment and abided by the Supreme Court's decision in the Hamdan case 
that that those in our custody are protected by the Geneva Conventions. 
Indeed, senior administration officials assured us that the language 
contained in the Military Commissions Act clearly outlawed 
waterboarding.
  Imagine my surprise when the Attorney General and Director of 
National Intelligence stated that waterboarding may be legal in certain 
circumstances. I cannot understand what legal reasoning could possibly 
lead them to this conclusion.
  Given the Attorney General's recognition during his nomination 
hearing that the President cannot waive congressionally mandated 
restrictions on interrogation techniques, including those included in 
the McCain amendment and the Military Commissions Act, it is 
inexplicable that the administration not only has failed to publicly 
declare waterboarding illegal, but has actually indicated that it may 
be legal.
  During the past several weeks we have heard many justifications for 
the administration's incomprehensible legal analysis. At the end of the 
day, it appears it is the view of the administration is that the ends 
justify the means and that adhering to our values, laws, and treaty 
obligations will weaken our nation. I strongly disagree.
  I support aggressive interrogation of detainees in the in the war on 
terror. And the CIA program is a vital component in securing our 
Nation. As we interrogate and detain those who are intent on 
destruction of our country and all those who fight for liberty, we can 
never forget that we are, first and foremost, Americans. The laws and 
values that have built our Nation are a source of strength, not 
weakness, and we will win the war on terror not in spite of devotion to 
our cherished values but because we have held fast to them.
  Mr. McCAIN. Mr. President, I oppose passage of the intelligence 
authorization conference report in its current form.
  During conference proceedings, conferees voted by a narrow margin to 
include a provision that would apply the Army Field Manual to the 
interrogation activities of the Central Intelligence Agency. The 
sponsors of that provision have stated that their goal is to ensure 
that detainees under American control are not subject to torture. I 
strongly share this goal, and believe that only by ensuring that the 
United States adheres to our international obligations and our deepest 
values can we maintain the moral credibility that is our greatest asset 
in the war on terror.
  That is why I fought for passage of the Detainee Treatment Act, DTA, 
which applied the Army Field Manual on interrogation to all military 
detainees and barred cruel, inhumane and degrading treatment of any 
detainee held by any agency. In 2006, I insisted that the Military 
Commissions Act, MCA, preserve the undiluted protections of Common 
Article 3 of the Geneva Conventions for our personnel in the field. And 
I have expressed repeatedly my view that the controversial technique 
known as ``waterboarding'' constitutes nothing less than illegal 
torture.
  Throughout these debates, I have said that it was not my intent to 
eliminate the CIA interrogation program, but rather to ensure that the 
techniques it employs are humane and do not include such extreme 
techniques as waterboarding. I said on the Senate floor during the 
debate over the Military Commissions Act, ``Let me state this flatly: 
it was never our purpose to prevent the CIA from detaining and 
interrogating terrorists. On the contrary, it is important to the war 
on terror that the CIA have the ability to do so. At the same time, the 
CIA's interrogation program has to abide by the rules, including the 
standards of the Detainee Treatment Act.'' This remains my view today.
  When, in 2005, the Congress voted to apply the field manual to the 
Department of Defense, it deliberately excluded the CIA. The field 
manual, a public document written for military use, is not always 
directly translatable to use by intelligence officers. In view of this, 
the legislation allowed the CIA to retain the capacity to employ 
alternative interrogation techniques. I would emphasize that the DTA 
permits the CIA to use different techniques than the military employs 
but that it is not intended to permit the CIA to use unduly coercive 
techniques--indeed, the same act prohibits the use of any cruel, 
inhumane, or degrading treatment.
  Similarly, as I stated after passage of the Military Commissions Act 
in 2006, nothing contained in that bill would require the closure of 
the CIA's detainee program; the only requirement was that any such 
program be in accordance with law and our treaty obligations, including 
Geneva Common Article 3.
  The conference report would go beyond any of the recent laws that I 
just mentioned--laws that were extensively debated and considered--by 
bringing the CIA under the Army Field Manual, extinguishing thereby the 
ability of that agency to employ any interrogation technique beyond 
those publicly listed and formulated for military use. I cannot support 
such a step because I have not been convinced that the Congress erred 
by deliberately excluding the CIA. I believe that our energies are 
better directed at ensuring that all techniques, whether used by the 
military or the CIA, are in full compliance with our international 
obligations and in accordance with our deepest values. What we need is 
not to tie the CIA to the Army Field Manual but rather to have a good 
faith interpretation of the statutes that guide what is permissible in 
the CIA program.
  This necessarily brings us to the question of waterboarding. 
Administration officials have stated in recent days that this technique 
is no longer in use, but they have declined to say that it is illegal 
under current law. I believe that it is clearly illegal and that we 
should publicly recognize this fact.
  In assessing the legality of waterboarding, the administration has 
chosen to apply a ``shocks the conscience'' analysis to its 
interpretation of the DTA. I stated during the passage of that law that 
a fair reading of the prohibition on cruel, inhumane, and degrading 
treatment outlaws waterboarding and other extreme techniques. It is,

[[Page 2023]]

or should be, beyond dispute that waterboarding ``shocks the 
conscience.''
  It is also incontestable that waterboarding is outlawed by the 
Military Commissions Act, and it was the clear intent of Congress to 
prohibit the practice. The MCA enumerates grave breaches of Common 
Article 3 of the Geneva Conventions that constitute offenses under the 
War Crimes Act. Among these is an explicit prohibition on acts that 
inflict ``serious and non-transitory mental harm,'' which the MCA 
states ``need not be prolonged.'' Staging a mock execution by inducing 
the misperception of drowning is a clear violation of this standard. 
Indeed, during the negotiations, we were personally assured by 
administration officials that this language, which applies to all 
agencies of the U.S. Government, prohibited waterboarding.
  It is unfortunate that the reluctance of officials to stand by this 
straightforward conclusion has produced in the Congress such 
frustration that we are today debating whether to apply a military 
field manual to nonmilitary intelligence activities. It would be far 
better, I believe, for the administration to state forthrightly what is 
clear in current law--that anyone who engages in waterboarding, on 
behalf of any U.S. Government agency, puts himself at risk of criminal 
prosecution and civil liability.
  We have come a long way in the fight against violent extremists, and 
the road to victory will be longer still. I support a robust offensive 
to wage and prevail in this struggle. But as we confront those 
committed to our destruction, it is vital that we never forget that we 
are, first and foremost, Americans. The laws and values that have built 
our Nation are a source of strength, not weakness, and we will win the 
war on terror not in spite of devotion to our cherished values but 
because we have held fast to them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I have enjoyed a good working relationship 
with my good friend, the Senator from Oregon, but, unfortunately, he 
did not listen to all the testimony we had from the leaders of the 
intelligence community.
  While he suggests we must fight terrorism and uphold our values, that 
is precisely what the CIA program is designed to do. Going forward, 
that is the program that will comport with all our values and our 
views, but it will be necessary.
  The CIA's enhanced interrogation techniques, on which he and I have 
had the opportunity to be briefed, are different from but not outside 
the scope of those included for use in the Army Field Manual.
  As I stated previously, the difference is that since they are not 
published, as the Army Field Manual is, they are not included in the 
al-Qaida handbook, they are not known to high-value targets with whom 
we may come in contact and be able to capture. We are talking only of a 
couple or three dozen at the most who require those techniques.
  He said the FBI Director does not use any harsh techniques. But if 
you recall, in answer to one of my questions describing one of the 
techniques one of the FBI interrogators used, it is not in the Army 
Field Manual. They use different techniques. They use different 
techniques, but they would be limited to the Army Field Manual.
  I suggest that when they are dealing with the criminals who may not 
be part of an organized terrorist conspiracy, they would not 
necessarily need to use them.
  General Hayden did say that waterboarding was used three times in the 
past. He has stated clearly it is not being used now. He stated the 
different enhanced interrogation techniques that are similar to, but 
different from, the Army Field Manual are only used in very limited 
circumstances, and those circumstances are the circumstances in which 
high-value detainees, with knowledge of the organization, the threats 
they pose, the plots they are planning to undertake, will not talk as 
long as they are subjected only to techniques they are familiar with in 
the Army Field Manual.
  Yes, the CIA, a couple, three dozen, somewhere in there, may have 
used enhanced interrogation techniques. Almost 10,000 valuable pieces 
of information have come from the CIA's program. We are safer in the 
United States because we have disrupted plots from Fort Dix to 
Lackawanna to Chicago to Torrance, CA--across this Nation--because of 
good intelligence--electronic surveillance and enhanced interrogation 
of high-value detainees.
  If we take this step in the Congress, I believe the President will 
veto it, as he should, because to say that the CIA should be fitted 
into the Army Field Manual standard is, I believe, a real threat to the 
effectiveness of our collection.
  Regrettably, discussions that imply on this floor that we continue to 
use or will continue to use any techniques that are cruel, inhumane, 
degrading or torture is not only simply wrong--flat wrong--but it is 
irresponsible because there are ears and eyes out there in the world, 
Al-Jazeera's and others, who will be picking them up, who will be 
transmitting them, and who will use that to tar the reputation of our 
intelligence collectors. They do not deserve that. Our security does 
not deserve that.
  Let's be clear, we are not talking about any cruel, inhumane, 
degrading or torture techniques. They are different than what is 
published in the Army Field Manual. That is the only reason they are 
effective.
  I regret the measure before us has this ban that will shut down the 
most valuable source of information our intelligence community has.
  I cannot urge my colleagues to support final passage of this 
conference report.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, I will use leader time to make a statement.
  We are going to vote in a few moments whether to invoke cloture on 
the intelligence authorization conference report. It is my 
understanding the minority is going to support us on this vote. I 
appreciate that very much.
  America has been without an intelligence authorization bill for 
almost 3 years. That is certainly long enough. The bill before us 
contains many important provisions that will strengthen our 
intelligence capabilities to fight terrorism and keep our country safe. 
The bill includes a number of provisions that will begin to restore 
proper congressional oversight and includes a provision sponsored by 
Senator Feinstein that will require all intelligence professionals in 
the U.S. Government to adhere to the interrogation standards included 
in the Army Field Manual.
  I appreciate the work of Senator Feinstein, who has dedicated much of 
her life to making our country safer. She spends untold hours, along 
with other Intelligence Committee members, in the Hart Building, 
listening to and evaluating what is happening in the intelligence 
community in our country and around the world. She is a good Senator, 
and her insight into what needs to be done in this instance speaks 
volumes. I underline and underscore my appreciation for her work. I 
urge all my colleagues to join with me in voting to support her in this 
effort. We will have that opportunity because cloture is going to be 
invoked.
  It is my understanding a Republican or a Democrat will raise a point 
of order regarding the Feinstein amendment. The reason a Democrat would 
do it is to move this along, to get this over with. There is no reason 
to wait 30 hours postcloture, with everyone wondering when it will come 
up. We should do it, get it out of the way, work out some agreeable 
time with my colleagues, or we will go ahead and do it ourselves. There 
is an hour under the rule to debate the motion. There will be an effort 
to waive this point of order which, under the rules, requires 60 votes. 
Should Republicans force a vote to waive the point of order, I urge all 
my colleagues to waive the point of order.
  This is a question of moral authority. The Senate should stand as one 
to declare that America has one standard of

[[Page 2024]]

interrogation. We are living as Americans in a world where everything 
we do is watched and watched very closely. We are asking other 
countries to follow our moral lead, to embrace our way of life, to 
aspire to the American standard of liberty. Yet I fear too often this 
administration's actions betray those goals.
  A couple weeks ago, Attorney General Mukasey refused to say that 
waterboarding is legal. What is waterboarding? We know what it is. It 
came from the Inquisition and King Ferdinand and Queen Isabella. That 
is where it originated. It is nothing new. It has been going on for 
centuries, and it is torture at its worst where you, in effect, drown 
somebody and revive them after they can no longer breathe.
  Last week, CIA Director Hayden publicly confirmed the United States 
had waterboarded individuals who were in our custody. The next day, the 
White House affirmatively declared waterboarding is legal and President 
Bush is free to authorize our intelligence agencies to resume its use.
  President Bush may not care much what we in Congress, Democrats or 
Republicans, think. For 6 years, he had carte blanche to do what he 
wanted. The last year has not been that way. We are an equal branch of 
Government, and it is time we made him understand this.
  The administration can develop as many novel and convoluted legal 
theories as it wishes, but they cannot change the simple fact that has 
long been settled law, that waterboarding is torture and it is illegal. 
It is illegal in America, and it is illegal throughout the world. In 
decades past, America has prosecuted our enemies and even our own 
troops for waterboarding.
  This debate is not just about one kind of torture. It is not just 
about waterboarding. It is about ensuring that no form of torture, 
cruel or inhumane interrogation techniques that are illegal under the 
Geneva Conventions and prohibited by the Army Field Manual, are used. 
This includes beating prisoners. This includes sexually humiliating 
prisoners. It includes threatening them with dogs, depriving them of 
food and water, performing mock executions, putting electricity charges 
on various parts of their body, burning them.
  These techniques are repugnant. They are repugnant to every American. 
They fly in the face of our most basic values. They should be 
completely off limits to the U.S. Government. We have already seen the 
damage these torture efforts can cause. The world saw it in the Abu 
Ghraib prison situation. The revelation that American personnel had 
engaged in such terrible behavior, behavior we have always strongly 
condemned when used by others, caused tremendous damage to our Nation's 
moral authority. The recruiting opportunity it provided our terrorist 
enemies cannot be understated and cannot be undone.
  This is not a Senator saying this. Forty-three retired military 
leaders of the U.S. Armed Forces have written us a letter strongly 
stating that all U.S. personnel, military and civilian, should be held 
to a single standard. These honored leaders wrote:

       We believe it is vital to the safety of our men and women 
     in uniform that the United States not sanction the use of 
     interrogation methods it would find unacceptable if inflicted 
     by the enemy against captured Americans.

  They stated the interrogation methods in the Army Field Manual ``have 
proven effective'' and that they ``are sophisticated and flexible.''
  My friend, the ranking member of this committee, says these horrible 
techniques are necessary. They are not. They are not necessary. There 
are many things that have been used and can be used, as indicated by 
these 43 leading military experts. They say present interrogation 
techniques, setting these others aside, are sophisticated and flexible 
and they work. They explicitly reject the argument that the field 
manual is too simplistic for civilian interrogators.
  Our commander in Iraq, General Petraeus, a four-star general, whom we 
like to throw around here as knowing all and has done a wonderful job 
in Iraq, wrote an open letter to the troops in May. He had this to say:

       Some may argue that we would be more effective if we 
     sanctioned torture and other expedient methods to obtain 
     information from the enemy.

  He went on to say:

       They would be wrong. . . . [H]istory shows that [such 
     actions] are frequently neither useful nor necessary.
       Certainly, extreme physical action can make someone 
     ``talk;'' however, what the individual says may be of 
     questionable value.

  We all know that.

       In fact, our experience in applying the interrogation 
     standards laid out in the Army Field Manual . . . shows that 
     the techniques in the manual work effectively and humanely in 
     eliciting information from detainees.

  So says General Petraeus.
  Mr. President, just yesterday, a bipartisan group of foreign policy 
experts joined to call upon Congress to endorse the application of the 
Army Field Manual standards across all U.S. agencies.
  The group included, but was not limited to, the Chairman and Vice 
Chairman of the 9/11 Commission, Governor Keane and Congressman 
Hamilton; two former Secretaries of State; three former national 
security advisers; a former Secretary of the Navy; and other highly 
regarded officials from both parties.
  The Bush administration's continued insistence on its right to use 
abusive techniques gives license to our enemies abroad, puts at risk 
our soldiers and citizens who may fall into enemy hands, and serves as 
an ongoing recruiting tool for militant extremists.
  Meanwhile, the widespread belief that our country uses abusive 
interrogation methods has weakened our ability to create coalitions of 
our allies to fight our enemies because other countries have at times 
refused to join us.
  Mr. President, many of us thought the Congress had addressed the 
issue of torture once and for all when we overwhelmingly passed the 
McCain amendment in 2005.
  But President Bush immediately issued a signing statement casting 
doubt on his willingness to enforce a ban on torture, and his 
administration has worked ever since to undermine what Senator McCain 
offered and was passed here overwhelmingly.
  This vote today gives Congress the chance to show President Bush that 
we meant what we said 3 years ago when we passed the McCain amendment.
  Today, we have an opportunity to begin to rebuild America's precious 
and diminished moral authority. Today, we can strengthen the war on 
terror.
  I urge us to stand together to support cloture and, if necessary, to 
vote to waive the point of order on the Feinstein amendment, which is 
part of the very good conference report dealing with intelligence 
authorization.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, how much time do I have?
  The PRESIDING OFFICER. The Senator has 1 minute 23 seconds.
  Mr. BOND. Mr. President, regrettably, the record doesn't meet the 
issue before us. Waterboarding is not an issue here. Waterboarding is 
not banned. The techniques that are being used are in compliance with 
all of the convention. They are not torture, cruel, or humanly 
degrading.
  The only reason to have a separate program, which Congress recognized 
in the 2005 Military Detainee Act, for having a different standard was 
for a few high-value targets who needed different techniques--not more 
harsh techniques but techniques that are less severe than the training 
techniques we put our enlisted Marines, SEALs, Special Forces, and the 
pilots through. If they are not published in the Army Field Manual, 
they don't know about them, and that leads them to cooperate.
  The most successful intelligence collection program that the CIA has 
does not involve torture or any kind of unlawful conduct. It is 
unfortunate--and I regret to say very harmful--to the United States to 
suggest that it does. I strongly believe we cannot afford to shut down 
the CIA's interrogation of high-value detainees.
  I yield the floor.
  Mr. REID. Mr. President, don't you think this great country of ours--
the

[[Page 2025]]

moral authority of the world--can continue our work, our interrogation 
of prisoners, both military and civilian, by not beating them, sexually 
humiliating them, bringing dogs and having dogs chomp at them, like at 
Abu Ghraib? Do we need to deprive them of food and water, provide mock 
executions, shock them with electricity, as was done during the first 
gulf war to American prisoners who were captured by the Iraqis, one of 
whom was from Nevada? We don't need to do that. We don't need to burn 
them. We don't need to cause them other types of pain that are listed 
in field manuals.
  Mr. President, we have 43 leading military experts who have told us 
that. We have had the two people who led the 9/11 Commission who have 
told us that you don't need that, along with former Secretaries of 
State and national security advisers to various Presidents, Democrats 
and Republicans.
  America is better than this. We don't need to do this. The CIA can 
get along without having to do all these terrible things. We are told 
by General Petraeus that these techniques don't work anyway and that 
any of the information you get is unreliable. Listen to General 
Petraeus. Let's do the right thing on this issue when it comes up, Mr. 
President.

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