[House Report 108-631]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-631

======================================================================


     DIRECTING THE SECRETARY OF STATE TO TRANSMIT TO THE HOUSE OF 
 REPRESENTATIVES DOCUMENTS IN THE POSSESSION OF THE SECRETARY OF STATE 
     RELATING TO THE TREATMENT OF PRISONERS AND DETAINEES IN IRAQ, 
                    AFGHANISTAN, AND GUANTANAMO BAY

                                _______
                                

   July 22, 2004.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

Mr. Hyde, from the Committee on International Relations, submitted the 
                               following

                             ADVERSE REPORT

                             together with

                            DISSENTING VIEWS

                       [To accompany H. Res. 699]

    The Committee on International Relations, to whom was 
referred the resolution (H. Res. 699) directing the Secretary 
of State to transmit to the House of Representatives documents 
in the possession of the Secretary of State relating to the 
treatment of prisoners and detainees in Iraq, Afghanistan, and 
Guantanamo Bay, having considered the same, reports adversely 
thereon without amendment and recommends that the resolution 
not be agreed to.

                           TABLE OF CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Vote of the Committee............................................     4
Committee Oversight Findings.....................................     5
Performance Goals and Objectives.................................     5
Dissenting Views.................................................    13

                          Purpose and Summary

    House Resolution 699 directs the Secretary of State to 
transmit to the House of Representatives not later than 14 days 
after the date of the adoption of this resolution documents in 
the possession of the Secretary of State relating to the 
treatment of prisoners and detainees in Iraq, Afghanistan, and 
Guantanamo.

                Background and Need for the Legislation

    House Resolution 699 is a resolution of inquiry, which 
pursuant to rule XIII, clause 7, of the Rules of the House of 
Representatives, directs the Committee to act on the resolution 
within 14 legislative days, or a privileged motion to discharge 
the Committee is in order. H. Res. 699 was introduced and 
referred to the Committee on International Relations on June 
25, 2004, and was ordered reported adversely by the Committee 
on July 15, 2004.
    Under the rules and precedents of the House, a resolution 
of inquiry is the means by which the House requests information 
from the President of the United States or the head of one of 
the executive departments. According to Deschler's Precedents 
it is a simple resolution making a direct request or demand of 
the President or the head of an executive department to furnish 
the House of Representatives with specific factual information 
in the possession of the executive branch.
    On June 25, 2004, Mr. Conyers of Michigan introduced H. 
Res. 699, a resolution of inquiry directing the Secretary of 
State to transmit to the House of Representatives not later 
than 14 days after the date of the adoption of this resolution 
documents in the possession of the Secretary of State relating 
to the treatment of prisoners and detainees in Iraq, 
Afghanistan, and Guantanamo.
    H. Res. 699 would direct the Secretary of State to transmit 
to the House of Representatives documents that are largely in 
the custody of the Department of Defense, not the State 
Department, making the request primarily a matter falling 
within the jurisdiction of the House Armed Services and 
Intelligence Committees.
    The Administration and the Department of Defense have 
released a great number of the requested documents or have made 
them available for Members of Congress and senior staff to 
review. Included among the documents made available to Members 
and senior staff of the House International Relations Committee 
by the Department of Defense is the administrative 
investigation of detainee operations and the 800th Military 
Police Brigade completed by Major General Taguba, USA, 
including all classified annexes, which exceeds 6,000 pages.
    The Administration has released numerous sensitive, high-
level documents to the Congress, including the February 7, 
2003, Presidential memorandum, ``Humane Treatment of al-Qaeda 
and Taliban Detainees,'' the January 22, 2002, Department of 
Justice memorandum for the Counsel to the President, 
``Application of Treaties and Laws to al-Qaeda and Taliban 
Detainees,'' the February 1, 2002, Attorney General letter to 
the President regarding status of Taliban detainees, the 
February 6, 2002, Information Paper, ``Background Information 
on Taliban Forces,'' the February 7, 2002, Department of 
Justice memorandum, ``Status of Taliban Forces Under Article 4 
of the Third Geneva Convention of 1949,'' the December 2, 2002, 
Department of Defense memorandum, ``Counter-Resistance 
Techniques'' (includes document created for June 22, 2003, 
press briefing listing interrogation techniques), the January 
15, 2003, Department of Defense memorandum, ``Counter-
Resistance Techniques,'' the January 15, 2003, Department of 
Defense memorandum, ``Detainee Interrogations'' along with the 
January 17, 2003, Department of Defense memorandum implementing 
the January 15, 2003 memorandum, the April 4, 2003, Department 
of Defense Working Group Report on ``Detainee Interrogations in 
the Global War on Terrorism: Assessment of Legal, Historical, 
Policy, and Operational Considerations,'' the April 16, 2003, 
Department of Defense memorandum, ``Counter-Resistance 
Techniques in the War on Terrorism,'' and excerpts from the 
Army Field Manual, the February 26, 2002, Department of Justice 
memorandum, ``Potential Legal Constraints Applicable to 
Interrogations of Persons Captured by U.S. Armed Forces in 
Afghanistan,'' the August 1, 2002, Department of Justice letter 
regarding application of the Convention Against Torture and the 
Rome Statute on the International Criminal Court, among others.
    Other relevant documents released or made available to the 
Congress by the Department of Defense include the Department of 
Defense interrogation guidelines approved by Secretary of 
Defense Donald Rumsfeld in April 2003, the October 12, 2003, 
directive of Lieutenant General Ricardo Sanchez entitled 
``Interrogation and Counter-Resistance Policy,'' the October 
2003 report of Major General Geoffrey Miller regarding 
intelligence, interrogation operations, and detention 
operations (provided within the Major General Taguba report), 
among others. In all, as of July 15, 2004, the Department of 
Defense has forwarded to Congress 75 documents, comprising 
thousands of pages, and has declassified several interrogation 
memorandums.
    The Department of Defense has over 140 ongoing criminal 
investigations of allegations of abuse of detainees in Iraq, 
Afghanistan, and Guantanamo Bay, including investigations into 
alleged killings of detainees. The Department of Defense has 
twice briefed the staff of the Committee on these ongoing 
investigations and has offered to brief Members of the 
Committee on a periodic basis. The Committee is mindful of 
taking no action that would interfere or impede ongoing 
criminal investigations.
    In addition to the ongoing criminal investigations and the 
6,000-page Major General Taguba report, there are six ongoing 
administrative investigations into the detainee situation at 
Abu Ghraib prison in Iraq. These reports include a senior 
general officer review of military intelligence and contractor 
interrogation procedures of the 205th Military Intelligence 
Brigade personnel at Abu Ghraib, an Army Inspector General 
assessment of doctrine and training of detention operations, a 
general officer review of detainee operations and facilities in 
Afghanistan, a review initiated by the Secretary of Defense 
into interrogation practices to ensure that all appropriate 
guidance is being followed worldwide, an army reserve command 
assessment of reserve training focused on military police and 
intelligence, and an independent, bi-partisan examination of 
detainees by the ``Schlesinger panel.''
    The Schlesinger panel is bi-partisan and composed of former 
Secretaries of Defense James Schlesinger and Harold Brown, the 
former Congresswoman Tillie Fowler, and General Charles Horner, 
USAF (Retired). The panel is tasked with providing independent, 
professional advice on the issues the panel members consider 
most pertinent related to the various allegations. The panel 
has been given extraordinary authority to exercise independent 
judgment. Department of Defense personnel are directed to 
collect information for the panel to review and assist the 
panel as the panel deems appropriate. Panel members may review 
issues such as force structure, training of regular and reserve 
personnel, use of contractors, organization, detention policy 
and procedures, interrogation policy and procedures, the 
relationship between detention and interrogation, compliance 
with the Geneva Conventions, relationships with the 
International Committee of the Red Cross, command 
relationships, and operational practices. The Secretary of 
Defense welcomes any information the panel may develop on 
issues of personal accountability. (See attached memorandum.)
    The Secretary of Defense has directed the panel members to 
examine the pace, breadth, and thoroughness of the existing 
investigations, and determine whether additional investigations 
need to be initiated--providing, in effect, an independent, bi-
partisan evaluation of the adequacy of the investigations.
    The Department of Defense has committed to providing 
Members and senior staff of the Committee access to and senior 
briefings on all these investigations, including the report by 
the Schlesinger panel.
    The Department of Defense has committed to providing 
Members and senior staff of the Committee access to and senior 
briefings on all reports of the International Committee of the 
Red Cross relating to detainee issues worldwide.
    Over a period of the last 34 legislative days, Department 
of Defense witnesses, including the Secretary of Defense and 
the Deputy Secretary of Defense, have testified at 15 hearings, 
conducted 31 Member briefings, and 25 staff briefings, 
including briefings to the House International Relations 
Committee. As of July 15, 2004, senior Department of Defense 
officials had briefed or met with over 285 Members of Congress 
regarding the treatment and detention of persons under the 
control of the Department of Defense. On July 14, 2004, the 
House Permanent Select Committee on Intelligence held a full 
day of hearings on detainees issues with three panels of 
witnesses.
    For all the reasons above, the Committee ordered H. Res. 
699 reported adversely.

                                Hearings

    The Committee did not hold hearings on H. Res. 699.

                        Committee Consideration

    On July 15, 2004, the Committee met in open session and 
with a quorum being present ordered the resolution of inquiry 
H. Res. 699 reported adversely to the House without amendment 
by a record vote of 23 ayes to 19 noes.

                         Vote of the Committee

    A motion to report H. Res. 699 adversely to the House was 
agreed to by a record vote of 23 ayes to 19 noes.
    Voting yes: Hyde, Bereuter, Smith (NJ), Burton, Gallegly, 
Ros-Lehtinen, Ballenger, Rohrabacher, Royce, King, Chabot, 
Houghton, McHugh, Tancredo, Smith (MI), Pitts, Flake, Davis, 
Green, Weller, Pence, McCotter, and Harris.
    Voting no: Lantos, Berman, Ackerman, Menendez, Sherman, 
Wexler, Engel, Delahunt, Meeks, Lee, Crowley, Hoeffel, 
Blumenauer, Berkley, Napolitano, Schiff, Smith (WA), McCollum, 
and Chandler.

                      Committee Oversight Findings

    The Committee held no oversight activities under clause 
2(b)(1) of rule X of the Rules of the House of Representatives.

                    Performance Goals and Objectives

    The rule requiring a statement of performance goals and 
objectives is inapplicable.


                            Dissenting Views

    We deeply regret the decision of the Committee to report 
H.Res. 699 to the whole House unfavorably and we respectfully 
dissent. We believe that today we betrayed a sacred trust given 
to Congress by the founding fathers and the American people--to 
serve as a check and a balance against the executive branch. As 
part of that role, Congress was designed to be the watchdog of 
the executive, whichever side of the aisle we are on.
    For example, on July 19, 1999 Chairman Dreier quoted Lee 
Hamilton, the former Democratic Chairman of this very 
Committee. Chairman Hamilton had said, ``Oversight is designed 
to throw light on the activities of government. It can protect 
the country from the imperial presidency and from bureaucratic 
arrogance. It can expose and prevent misconduct, and maintain a 
degree of constituency influence in an administration. The 
responsibility of oversight is to look into every nook and 
cranny of government affairs.'' Chairman Dreier then concurred 
with his Democratic colleague in stating, ``I wholeheartedly 
agree with our distinguished former colleague. As Chairman of 
the Committee that is charged with the responsibility of 
safeguarding the privileges and prerogatives of this esteemed 
institution, I believe Congress should vigorously conduct 
oversight in order to fulfill the legacy of our Founding 
Fathers--which is ultimately to preserve and protect our 
fragile democracy.''
    At no time has there been a more urgent case than dealing 
with the detention abuses that have occurred in Iraq, 
Guantanamo, and Afghanistan. We are sure that the Committee 
unanimously agrees that the disgusting pictures of Iraqi 
detainees being abused by members of our military were a 
disgrace. It was wholly inconsistent with the character of our 
nation and the nature of our military. It has been an 
embarrassment to our government, to our brave and dedicated 
troops in the field, and to each of us.
    Some institutions in the Congress have taken up this 
challenge to our values. Indeed, in the aftermath of this 
episode, the Senate Armed Services Committee embarked on a 
thorough inquiry of this scandal, including hearing from the 
author of the original investigation of the Abu Ghraib prison. 
The Chairman of that Committee seems likely to continue his 
efforts. Similarly, it would seem obvious that such aberrant 
behavior would be ripe for a serious and full ranging 
investigation by this House.
    Regrettably, no such investigation has taken place. In 
fact, despite repeated requests by the Democratic leadership 
and ranking members of the relevant Committees members of the 
majority leadership have repeatedly said that an investigation 
is unwarranted and have criticized the Chairman of the Senate 
Armed Services Committee for asserting a proper role for 
Congress.
    The position of the majority leadership is simply 
unacceptable. When the work of government goes as far astray as 
it apparently has in this case, it is palpably clear that the 
legislative branch needs to exert more authority to provide 
both direction and oversight. This affair has damaged our 
country's credibility, it undermined U.S. ability to promote 
human rights and prevent torture, and it crippled our efforts 
to advance peace in the Middle East.
    To counteract these perceptions, we have to ensure that we 
thoroughly investigate these matters and be seen as doing so. 
Damage to our foreign policy of this magnitude can only be 
corrected by a full, independent investigation that is 
perceived as credible and relentless, including up the chain of 
command to the highest levels. Indeed, the recent replacement 
of General Faye with yet another officer in the investigation 
of actions of military intelligence officers has not helped in 
this regard. It will raise further questions of who is looking 
at the actions on the civilian side. The continuing detention 
of individuals by the military, without allowing registration 
by the International Committee of the Red Cross raises other 
serious issues regarding the acts of the Defense Department's 
civilian leadership.
    Moreover, the memoranda from the Department of Justice 
issued in August 2002 that have recently come to light 
highlights the need for an inquiry into this matter. These 
memos, which claim that the President can ignore U.S. law and 
treaty obligations preventing torture and cruel, inhuman and 
degrading treatment, represent a usurpation of power by the 
Executive Branch written by lawyers who acted as if they were 
arguing their case in court rather than giving the President 
their best advice. Moreover, the Justice Department argument 
that physical acts can only be considered torture when the 
physical pain results in ``organ failure, impairment of bodily 
function, or death'' flies fully in the face of the Senate's 
statements regarding advice and consent to ratification of the 
Convention against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, (G.A. res. 39/46, [annex, 39 
U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), 
entered into force June 26, 1987).
    One aspect of this affair which demands our attention is 
the apparent unwillingness of the Department of Justice to 
consult with the U.S. Government experts on international law, 
the Office of the Legal Adviser at the Department of State. It 
appears that after the State Department disagreed with the 
Justice and Defense Departments on the application of the 
Geneva Conventions to detainees in Afghanistan and Guantanamo 
Bay, the Justice and Defense Departments decided not to consult 
State on these critical issues of international law. We cannot 
allow a system of government where experts are ignored and the 
President receives uninformed legal advice.
    This is not an esoteric lawyers' argument. When our Justice 
Department says it is legal to torture others, our enemies will 
point to our own statements to justify the maiming and killing 
of Americans. That is why we enter into and abide by 
international treaties of these types, to help hold all others 
to the higher standard we believe in.
    In light of the majority leadership's refusal to sanction 
any investigation, we on our side have submitted identical 
resolutions of inquiry to each of the major committees to help 
these committees, hoping that each committee would approve 
these resolutions on a bipartisan basis. Regrettably, that was 
not the case with the Committee on International Relations.
    We recognize that there are a number of investigations 
being conducted of this matter, although as we have described, 
some of these actions have not given the world confidence that 
they are comprehensive. We would also remind our colleagues 
that even in this Administration there have been congressional 
inquiries conducted while the U.S. Government had a criminal 
investigation open. Just to cite one case, in the last Congress 
both the House and the Senate conducted an investigation of the 
Enron scandal with multiple hearings and the subpoena of 
Justice Department targets, including calling all the major 
corporate officers who have been subject to plea agreements and 
indictments or remain targets of the investigation. Allegations 
of insider trading involving Martha Stewart were also 
investigated by congressional committees during the course of a 
criminal investigation. Of course, in the last Administration 
there were numerous congressional investigations of matters 
under criminal investigation (including some where grand juries 
were active). President Clinton turned over, for example, 
documents totaling more than 1.2 million pages to the House 
Government Reform Committee alone despite ongoing criminal 
investigations, and congressional investigations encompassed 
the Waco Incident, the U.S. technology transfers to China, 
allegations of campaign finance violations, the White House 
Travel office and many others. And the Iran-Contra Commission 
investigated the foreign policy implications of that affair 
while an independent counsel conducted his own investigation.
    If this were not a pattern of neglect, we would feel less 
strongly. But whether it is the failure to find weapons of mass 
destruction, Iraqi war profiteering or the release of the name 
of a covert CIA agent for political purposes, the House has 
been reluctant or wholly failed to conduct its own 
investigations. One would have thought that at least one of 
these matters would have yielded an investigation by this 
Committee. And while many of the documents requested by H.Res. 
699 may have been produced by agencies other than the 
Department of State, other requests are directly relevant. The 
State Department, for example, should have been receiving 
warnings from the International Committee of the Red Cross, the 
Afghan Independent Human Rights Commission and relevant non-
governmental organizations. Moreover, the lack of documents 
from other agencies would help demonstrate the manner in which 
other agencies excluded the Department from their 
deliberations.
    The need to shed light on these issues should be self-
evident, especially in the body commonly known as The People's 
House. Senators from both parties have been living up to their 
responsibilities and calling the Administration to account for 
its policies. We fail to understand why all our colleagues in 
the House of Representatives do not see that this is the right 
thing to do. Therefore, we urge all of the Members of this 
Committee and the full House, from both parties, to recall the 
words of our distinguished former ranking Member Hamilton and 
the words of Chairman Dreier and ``vigorously conduct oversight 
in order to fulfill the legacy of our Founding Fathers--which 
is ultimately to preserve and protect our fragile democracy.''

                                   Tom Lantos.
                                   Howard L. Berman.
                                   Gary L. Ackerman.
                                   Robert Menendez.
                                   Brad Sherman.
                                   Robert Wexler.
                                   Gregory W. Meeks.
                                   Joseph M. Hoeffel.
                                   Shelley Berkley.
                                   Diane E. Watson.
                                   Betty McCollum.
                                   William D. Delahunt.
                                   Earl Blumenauer.
                                   Barbara Lee.
                                   Grace F. Napolitano.
                                   Adam Smith.
                                   Donald M. Payne.
                                   Sherrod Brown.
                                   Eliot L. Engel.

                                  
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