[House Report 108-658]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-658
======================================================================

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

                                _______
                                

 September 7, 2004.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                             ADVERSE REPORT

                             together with

                            DISSENTING VIEWS

                       [To accompany H. Res. 700]

                  [Including Committee Cost Estimate]

  The Committee on the Judiciary, to whom was referred the 
resolution (H. Res. 700) directing the Attorney General to 
transmit to the House of Representatives documents in the 
possession of the Attorney General relating to the treatment of 
prisoners and detainees in Iraq, Afghanistan, and Guantanamo 
Bay, having considered the same, reports unfavorably thereon 
with an amendment and recommends that the the resolution not be 
agreed to.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     3
Hearings.........................................................    12
Committee Consideration..........................................    13
Vote of the Committee............................................    13
Committee Oversight Findings.....................................    13
New Budget Authority and Tax Expenditures........................    14
Committee Cost Estimate..........................................    14
Performance Goals and Objectives.................................    14
Constitutional Authority Statement...............................    14
Section-by-Section Analysis and Discussion.......................    14
Changes in Existing Law Made by the Resolution, as Reported......    14
Markup Transcript................................................    15
Dissenting Views.................................................    47

                             The Amendment

    The amendment is as follows:
    Strike all after the resolving clause and insert the 
following:

    Resolved, That the Attorney General is directed to transmit to the 
House of Representatives not later than 14 days after the date of the 
adoption of this resolution all documents in the possession of the 
Attorney General, except those documents in the Attorney General's 
possession that have been found by a court to be protected by Federal 
Rule of Criminal Procedure 6(e) in a proceeding at which the Attorney 
General or the Department of Justice is a party, relating to the 
treatment of prisoners or detainees in Iraq, Afghanistan, or Guantanamo 
Bay and any requisite instructions for handling such documents, 
including--
            (1) every report, memorandum, or complaint from the 
        International Committee of the Red Cross relating to the 
        treatment of detainees or prisoners and any documents that 
        reference such memorandum, report, or complaint by the Attorney 
        General or by any agency under the Attorney General;
            (2) every report, memorandum, or complaint from Human 
        Rights Watch, Amnesty International, Iraqi Human Rights 
        Association, Afghan Human Rights Commission, Physicians for 
        Human Rights, or Human Rights First relating to the treatment 
        of detainees or prisoners and any documents that reference such 
        memorandum, report, or complaint by the Attorney General or by 
        any agency under the Attorney General;
            (3) every document relating to interrogation techniques;
            (4) every internal report of a law enforcement, military, 
        or intelligence agency or organization concerning interrogation 
        or detention operations;
            (5) every internal report of a law enforcement, military, 
        or intelligence agency in response to allegations that the 
        treatment of prisoners or detainees violated or continues to 
        violate international or American law;
            (6) every document and memorandum regarding the 
        applicability of the Geneva Conventions, the Convention Against 
        Torture and Other Cruel, Inhuman or Degrading Treatment or 
        Punishment, the International Covenant on Political and Civil 
        Rights, sections 2340-2340A of title 18, United States Code, 
        the War Crimes Act of 1996, and the Fifth, Eighth, and 
        Fourteenth Amendments to the Constitution of the United States 
        to the treatment of prisoners or detainees;
            (7) every document and memorandum relating to command 
        relationships between military police units and military 
        intelligence units;
            (8) every document and memorandum directing personnel to 
        abstain from using specific interrogation techniques or to 
        withdraw themselves from interrogations being conducted by 
        other departments;
            (9) any Presidential directive or other writing authorizing 
        the use of interrogation tactics or claiming the constitutional 
        authority to do so;
            (10) any documentation of training received by the 800th 
        Military Police Brigade and the 205th Military Intelligence 
        Brigade regarding the treatment of prisoners or detainees;
            (11) any documentation of special access programs as they 
        were applied to prisoners or detainees;
            (12) all records of meetings regarding the treatment of 
        prisoners or detainees at which one or more officials of the 
        Department of Justice were present and the presence of those 
        officials is apparent from the face of the record;
            (13) every document and memorandum concerning the practice 
        of keeping prisoners or detainees off the official roster;
            (14) a list of every ongoing and completed investigation 
        into the treatment of prisoners or detainees, and any written 
        reports produced by any such investigation;
            (15) every document relating to civilian contract employees 
        and their role in prisons;
            (16) all written statements of prisoners or detainees, 
        military personnel, civilian employees of the Federal 
        Government, or civilian contractors regarding the treatment of 
        prisoners or detainees;
            (17) all reports of interrogation of each prisoner or 
        detainee that reflect a claim of abuse by military or civilian 
        personnel or by civilian contractors;
            (18) any documents for work under contracts (including 
        subcontracts and task orders) and all reports on such 
        documents, for interrogation or translation work by CACI 
        International, Titan Corporation, and any other entity that may 
        have performed such work;
            (19) any documents or testimony presented to or prepared by 
        the Detainee Assessment Branch at Abu Ghraib prison at any time 
        after September 1, 2003 regarding the treatment of Iraqi 
        prisoners or detainees by members of the Armed Forces or by 
        civilian contractors working in Iraq employed on behalf of the 
        Department of Defense;
            (20) any complaint forms filled out and submitted at any 
        time after March 1, 2003 by a member of the Armed Services or 
        by a civilian contractor employed on behalf of the Department 
        of Defense or Central Intelligence Agency regarding the 
        treatment of detainees or prisoners;
            (21) any reports or documents reflecting the death or 
        injury of prisoners or detainees; and
            (22) all documentation, including video evidence, of any 
        sexual assault of any prisoner or detainee who is a minor.

                          Purpose and Summary

    H. Res. 700, introduced by Representative John Conyers, Jr. 
on June 25, 2004, directs the Attorney General to transmit to 
the House of Representatives, not later than 14 days after the 
date of adoption of this resolution, all physical and 
electronic records and documents in his possession relating to 
the treatment of prisoners and detainees in Iraq, Afghanistan, 
and Guantanamo Bay.

                Background and Need for the Legislation

    H. Res. 700 is a resolution of inquiry. Clause 7 of Rule 
XIII of the Rules of the House of Representatives provides that 
if the Committee does not act on the resolution within 14 
legislative days, a privileged motion to discharge the 
Committee is in order on the floor. In calculating the days 
available for Committee consideration, the day of introduction 
and the day of discharge are not counted.\1\ On introduction, 
H. Res. 700 was referred to the Committee on the Judiciary. The 
Committee ordered it reported adversely with an amendment on 
July 21, 2004. Mr. Conyers also introduced two other 
resolutions of inquiry requesting identical information from 
other officials in the Administration. On June 23, he 
introduced H. Res. 689 that requested similar information from 
the President, the Attorney General, and the Secretaries of 
Defense and State. H. Res. 689 was referred to the Committee on 
Armed Services, which subsequently reported H. Res. 689 
adversely on July 15, 2004 by a vote of 31 yeas to 23 noes with 
one voting present.\2\ On June 25, 2004, he introduced H. Res. 
699 that again requested the same information from the 
Secretary of State. That resolution was referred to the 
Committee on International Relations and was adversely reported 
on July 15, 2004 by a vote of 23-19.\3\
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    \1\ William Holmes Brown, House Practice: A Guide to the Rules, 
Precedents, and Procedures of the House, chp. 49 Sec. 4 (2003).
    \2\ H.Rep. No. 108-632 (2004).
    \3\ H.Rep. No. 108-631 (2004).
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    Under the rules and precedents of the House, a resolution 
of inquiry allows the House to request information from the 
President of the United States or to direct the head of one of 
the executive departments to provide such information. 
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.'' \4\
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    \4\ 7 Deschler's Precedents of the House of Representatives, ch. 
24, Sec. 8.
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    If a Committee does not timely report the motion of 
inquiry, it may be discharged from a Committee under a 
privileged motion. If a Committee acts in a timely manner, it 
may report favorably or adversely.
    A Committee that adversely reports a resolution of inquiry 
does not necessarily oppose the resolution under consideration. 
In the past, resolutions of inquiry have frequently been 
reported adversely for various reasons, two of which are that 
an Administration has substantially complied with the request 
or that there is an ongoing competing investigation. There is 
also past precedent for a resolution of inquiry to be adversely 
reported because the nature of the information reported was 
highly sensitive.\5\
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    \5\ H.Rep. No. 92-1331 (1972).
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    H. Res. 700 would direct the Attorney General to transmit 
to the House of Representatives documents related to ongoing 
criminal investigations and documents that are of a highly 
sensitive nature. Furthermore, the Congress has received and 
continues to receive information responsive to the legislative 
purposes sought by the resolution.
A. The War on Terrorism
            1) The September 11, 2001 Attacks
    On the morning of September 11, 2001, the deadliest 
international terrorist attack against the United States in 
history occurred. Using four hijacked airliners, 19 al-Qaeda 
terrorists attacked the World Trade Center and the Pentagon, 
causing unprecedented structural damage and civilian 
casualties. The two 110-story towers of the World Trade Center 
collapsed, and part of the Pentagon was destroyed.
    The terrorists initiated the attack in New York City. At 
8:45 a.m., American Airlines Flight 11 out of Boston with 81 
passengers and 11 crew members, dove full-speed into the north 
tower of the World Trade Center. Only minutes later, at 9:03 
a.m., a second airliner, United Airlines Flight 175 from Boston 
with 56 passengers and 9 crew members, crashed into the south 
tower and exploded. Both towers billowed smoke into the sky 
prior to collapsing and retreating below the New York skyline. 
The New York attack took the lives of 2,801 innocent Americans.
    The attack then turned to the Nation's capital. At 9:43 
a.m., American Airlines Flight 77 with 58 passengers and 6 crew 
members, struck the Pentagon. The portion of the Pentagon hit 
was consumed by fire and collapsed, taking the lives of 125 
innocent Americans. The terrorists' plans were not yet 
complete. A fourth airliner, United Airlines Flight 93, 
believed to be bound for the Capitol or White House, crashed 
into a field in Somerset County, Pennsylvania. The passengers 
and crew, numbered at 45, were able to redirect the plane to 
the rural area and undoubtedly saved hundreds or thousands of 
lives in the process.
    The Nation watched as the number of confirmed dead grew. 
The Americans killed in the World Trade Center and Pentagon 
attacks numbered 3,030 and over 2,000 were injured. In New York 
City, 343 firefighters and 75 police died attempting to save 
the people trapped in the towers. The hijacked planes carried 
265 passengers and crew who lost their lives. The dead were 
memorialized through countless tributes.
    The effects and aftermath of the 9/11 attacks had an 
immediate and overwhelming impact on the citizenry of the 
United States. Support for retaliatory operations against the 
perpetrators of the attacks 9/11 was strong and bipartisan.
            2) Operation Enduring Freedom (Afghanistan)
    The country rallied around the flag and prepared for the 
War on Terror that began in Afghanistan on October 7, 2001. 
After the 9/11 attacks, the United States entered into a war 
against global terrorism under the name ``Operation Enduring 
Freedom.'' The United States gathered evidence that the attacks 
were directed by ``a collection of loosely affiliated terrorist 
organizations known as al-Qaeda'' \6\ under the leadership of 
Osama bin Laden, who was being harbored by the Taliban in 
Afghanistan.
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    \6\ President Bush's Sept 20th Address to a Joint Session of 
Congress, 147 Cong. Rec. H5859 (daily ed. September 20, 2001).
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    In President George W. Bush's Address to the Joint Session 
of Congress on September 20, 2001, he demanded the Taliban, 
``[d]eliver to United States authorities all the leaders of al-
Qaeda who hide in your land; release all foreign nationals . . 
. unjustly imprisoned, and protect foreign journalists, 
diplomats and aid workers in your country; close immediately 
and permanently every terrorist training camp in Afghanistan 
and hand over every terrorist, and every person in their 
support structure, to appropriate authorities; and give the 
United States full access to terrorist training camps, so we 
can make sure they are no longer operating.''\7\
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    \7\ Id.
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    When these demands were not met, the U.S. commenced 
military operations on October 7, 2001, to ``disrupt the use of 
Afghanistan as a terrorist base of operations, and to attack 
the military capability of the Taliban regime,'' as stated in 
President Bush's October 7 address to the country. In addition 
to the objectives laid out by President Bush in his address to 
the Joint Session of Congress on September 20, other 
objectives, as mentioned in Secretary of Defense Donald 
Rumsfeld's Department of Defense News Briefing, ``were to make 
clear to Taliban leaders that the harboring of terrorists is 
unacceptable, to acquire intelligence on al-Qaeda and Taliban 
resources, to develop relations with groups opposed to the 
Taliban, to prevent the use of Afghanistan as a safe haven for 
terrorists, and to destroy the Taliban military allowing 
opposition forces to succeed in their struggle. Finally, 
military force would help facilitate the delivering of 
humanitarian supplies to the Afghan people.''\8\
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    \8\ http://www.globalsecurity.org/military/ops/enduring-
freedom.htm.
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    The military operations began with air strikes from B-1, B-
2, and B-52 bombers and F-14 and F/A-18 fighters in addition to 
Tomahawk cruise missiles fired from U.S. and British 
vessels.\9\ By October 20, virtually all Taliban air defenses 
had been destroyed. The provincial capital of Mazar-e-Sharif 
fell twenty days later with Herat, Kabul, and Jalalabad soon 
thereafter.\10\ ``By mid-December, U.S. Marines had secured 
Qandahar Airport and the Taliban capital was in the hands of 
Anti-Taliban forces.'' \11\ On December 22, 2001, the interim 
Afghan government was inaugurated. In mid-March of 2002, the 
Taliban was out of power and al-Qaeda was reduced to pockets of 
fighters, many of them hiding in caves after ``Operation 
Anaconda.'' \12\ Within the first 169 days of the operation, 50 
million leaflets had been dropped, 2.5 million humanitarian 
daily rations had been delivered, 1,700 tons of wheat 
delivered, 328,200 blankets distributed, and radio broadcasts 
and 5,000 radios given to the people of Afghanistan.\13\ On May 
1, 2003, Secretary of Defense Donald Rumsfeld announced the end 
of major combat operations in Afghanistan and a shift in 
directives to the stabilization and rebuilding of 
Afghanistan.\14\ Approximately 11,000 American soldiers 
continue the operations in Afghanistan in addition to 5,500 
soldiers from 21 countries with the support of 70 total 
nations.\15\
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    \9\ Id.
    \10\ Id.
    \11\ Id.
    \12\ Id.
    \13\ Id.
    \14\ Vernon Loeb, Rumsfeld Announces End of Afghan Conflict. 
Washington Post. May 2, 2003. http://www.washingtonpost.com.
    \15\ http://www.army.mil/operations/; http://www.centcom.mil/
Operations/Coalition/joint.htm.
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            3) Operation Iraqi Freedom
    On March 19, 2003, the U.S. and coalition forces began 
conventional military operations against Iraq and the regime of 
Saddam Hussein. At approximately 7:12 p.m., President Bush gave 
the order for two F-117s to drop bombs on a suspected location 
of Saddam Hussein. The bombs were dropped at approximately 9:30 
p.m., launching ``Operation Iraqi Freedom.'' \16\
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    \16\ http://www.globalsecurity.org/military/ops/iraqi--freedom.htm.
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    The ground war commenced on March 20 and began with the 3rd 
Infantry Division and the 1st Marine Expeditionary Force 
invading from the south. Over 300,000 coalition forces deployed 
to the Gulf region for the operation.\17\ After taking control 
of the southern oil fields and gradually defeating resistance 
in both the Sunni Triangle and Baghdad, the coalition forces 
gained control of Iraq and ended the regime of Saddam Hussein. 
President Bush declared major combat operations over on May 1, 
2003. Since ending major combat operations, the U.S. led 
coalition has maintained a force to battle Iraqi resistance. 
Saddam Hussein was later captured by coalition troops on 
December 13, 2003.
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    \17\ http://www.disinfopedia.org/wiki.phtml?title=Operation--
Iraqi--Freedom.
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    Several reasons justified the war. On March 20, 2003, the 
State Department declared, ``Over the past 12 years, Iraq has 
violated more than 17 United Nations Security Council 
Resolutions (UNSCRs) and remains in material breach of 
disarmament obligations.'' \18\ Notably, Iraq was in violation 
of Resolution 1441, dated November 8, 2002. The United Nations 
Security Council Resolution 1441 gave Iraq a final opportunity 
to comply fully with U.N. inspections. In addition to 
noncompliance, there were several military objectives that 
drove ``Operation Iraqi Freedom.'' Notable objectives included: 
to end the regime of Saddam Hussein; to identify and eliminate 
any weapons of mass destruction; to locate and eradicate 
terrorist cells in Iraq; and to help the Iraqis develop a 
system of self-government.\19\
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    \18\ http://www.usembassy.lv/EN/Iraq/defiance.
    \19\ http://www.globalsecurity.org/military/ops/iraqi--freedom.htm.
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            4) Libya
    Since the war in Iraq, Libya has made efforts to 
``strengthen peace and stability in the world.'' \20\ According 
to officials at the Department of State, Libya has ``renounced 
programs, materials and equipment which might lead to the 
production of internationally banned weapons or delivery 
systems,'' \21\ and ``Libya wishes to announce officially the 
application of this decision to its military dealings with 
other states.'' \22\ Libya mentioned specifically that it 
``will not deal in any military goods or services with'' Syria, 
North Korea, or Iran.\23\ ``When Italian Prime Minister Silvio 
Berlusconi spoke with Qaddafi last year, Qaddafi explained he 
would be acting out of a fear of America birthed by the rapid 
destruction of Saddam's regime.'' \24\
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    \20\ Libya Ending Military Trade with States of Serious Weapons of 
Mass Destruction Proliferation Concern, http://www.state.gov/p/nea/rls/
rm/32491.htm.
    \21\ Id.
    \22\ Id.
    \23\ Id.
    \24\ Hewitt, Hugh, ``The War Dividend,'' The Weekly Standard, June 
24, 2004.
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B. Allegations of Prison Abuse
    As a result of these military operations, a number of 
prisoners have been taken in Afghanistan and Iraq. Some of 
these prisoners have been held at the U.S. military base in 
Guantanamo Bay, Cuba. There are ongoing criminal and 
administrative investigations stemming from allegations of 
prisoner and detainee abuse at the Baghdad confinement facility 
at Abu Ghraib and other places.
    Reports of U.S. prisoner abuse during the war of terror 
have sporadically entered the press. The world knows of the 
prisoner abuse at Abu Ghraib, but other examples have been 
reported as well. In Afghanistan at Baghram in December 2002, 
U.S. military pathologists reported the deaths of two Afghan 
detainees due to ``blunt force injuries'' to ``the lower 
extremities'' and ``legs.'' \25\ In addition, in June 2003, an 
Afghan prisoner died at a U.S. military camp in the Kunar 
province and since then a CIA contractor has been charged in 
the beating.\26\ Other reports have arisen out of Camp Cropper 
near the Baghdad International Airport where hooded beatings 
occurred, handcuffs were put on so tight that prisoners' skin 
was broken, beatings with rifles and pistols occurred, threats 
against family members arose, and stripped detainees were 
thrown into completely dark solitary confinement.\27\ The Red 
Cross has reported prisoner abuse at Al Baghdadi, Heat Base, 
Habbania Camp in the Ramadi governorate, Tikrit, a former train 
station at Al-Khaim, the Ministry of Defense in Baghdad, the 
Presidential Palace in Baghdad, the former mukhabarat office in 
Basrah, and at several Iraqi Baghdad police stations.\28\ 
Suspicions of prisoner abuse have also arisen at ``ghost 
facilities'' believed to be located in Thailand and the North-
West Frontier province of Pakistan where 9/11 co-conspirator 
Ramzi bin al-Shibh and al-Qaeda leaders Shaikh Mohammed and Abu 
Zubaida are reportedly held.\29\
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    \25\ John Barry, Mark Hosenball and Babak Dehghanpisheh, Abu Ghraib 
and Beyond, Newsweek, May 17, 2001, http://www.msnbc.msn.com/id/
4934736/site/newsweek.
    \26\ http://primetimecrime.com/Recent/War%20on&20terror/
prisoner%20abuse.htm.
    \27\ John Barry, Mark Hosenball and Babak Dehghanpisheh, Abu Ghraib 
and Beyond, Newsweek, May 17, 2001, http://www.msnbc.msn.com/id/
4934736/site/newsweek.
    \28\ Report on the International Committee of the Red Cross (ICRC) 
on the Treatment by the Coalition Forces of Prisoners of War and Other 
Protected Persons by the Geneva Conventions in Iraq During Arrest, 
Interrogation, and Internment. February 2004. Http://
msnbcmedia.msn.com/i/msnbc/Sections/News/International%20News/
Mideast%20and%20N.%20Africa/Iraq%20conflict/Red%20Cross%20report.pdf.
    \29\ John Barry, Mark Hosenball and Babak Dehghanpisheh, Abu Ghraib 
and Beyond, Newsweek, May 17, 2001, http://www.msnbc.msn.com/id/
4934736/site/newsweek.
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C. Ongoing Investigations of Allegations of Prison Abuse
    On January 16, 2004, the Headquarters United States Central 
Command issued a press release that stated:

        BAGHDAD, Iraq--An investigation has been initiated into 
        reported incidents of detainee abuse at a Coalition 
        Forces detention facility. The release of specific 
        information concerning the incidents could hinder the 
        investigation, which is in its early stages. The 
        investigation will be conducted in a thorough and 
        professional manner. The Coalition is committed to 
        treating all persons under its control with dignity, 
        respect and humanity. Lt. Gen. Ricardo S. Sanchez, the 
        Commanding General, has reiterated this requirement to 
        all members of CJTF-7.

    On March 20, 2004, Brigadier General Mark Kimmit issued a 
press statement that:

        [O]n 14 January 2004, a criminal investigation was 
        initiated to examine allegations of detainee abuse at 
        Baghdad confinement facility at Abu Ghraib.

        Shortly thereafter, the commanding general of Combined 
        Joint Task Force Seven requested a separate 
        administrative investigation into systemic issues such 
        as command policies and internal procedures related to 
        detention operations.
        . . .

        As a result of the criminal investigation, six military 
        personnel have been charged with criminal offenses to 
        include conspiracy, dereliction of duty, cruelty and 
        maltreatment, assault, and indecent acts with another.

    Relating to the treatment of detainees in the War on 
Terrorism, the Department of Defense has conducted 11 
administrative investigations or reviews of detainee policy and 
abuses. The Ryder, Miller, and Taguba investigations are 
complete and have been provided to Congress. Furthermore, the 
Department of Defense has committed to the Committee on Armed 
Services to provide the rest of the investigations to Congress, 
including: the Navy Inspector General's review of procedures at 
Guantanamo Bay and Charleston; the Fay investigation into 
military intelligence and contractor interrogation practices at 
Abu Ghraib prison; the Army Inspector General's assessment of 
doctrine and training for detention operations; Brigadier 
General Jacoby's assessment of detainee operations and 
facilities in Afghanistan; Vice Admiral Church's collection and 
review of all authorized interrogation practices to ensure that 
appropriate guidance is being followed; the Army Reserve 
Inspector General's assessment of reserve training with focus 
on military intelligence and police; and the former Secretary 
of Defense and Secretary of Energy Schlesinger review of all 
detainee issues.
    With regard to military criminal investigations, the House 
Armed Services Committee has indicated that as of July 13, 2004 
there are 164 active military criminal investigations related 
to abuse of detainees or prisoners.
    With regard to civilian criminal investigations, on May 7, 
2004, The Washington Post reported that the Attorney General 
said that Federal criminal prosecutors can pursue cases against 
nonmilitary personnel and against those who have left the 
military. The article also reported that the Attorney General 
and other Department of Justice officials said the Military 
Extraterritorial Jurisdiction Act of 1999 allows for 
prosecution of civilian contractors who commit crimes while 
working overseas for the military.\30\
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    \30\ Dan Eggen and Walter Pincus, Ashcroft Says U.S. Can Prosecute 
Civilian Contractors for Prison Abuse, Washington Post, (May 7, 2004, 
p. A18).
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    On June 17, 2004, the press reported that a Federal grand 
jury indicted a contractor working for the CIA on charges 
related to abuse of a prisoner in Afghanistan. The report 
stated:

        An indictment was returned by a grand jury in Raleigh, 
        N.C., for David Passaro ``for brutally assaulting an 
        Afghan detainee at a U.S. military base in 
        Afghanistan,'' Ashcroft said.

        Passaro faces two counts of assault with a dangerous 
        weapon and two counts of assault resulting in serious 
        bodily injury; each of the four charges carries a 
        maximum penalty of 10 years prison and $250,000 fine. 
        He's scheduled for an initial appearance before a judge 
        later Thursday. Passaro was arrested Thursday morning 
        in Fayetteville, N.C.\31\
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    \31\ CIA Contractor Charged with Abuse, June 2004, http://
www.foxnews.com/story/0,2933,122962,00.html.
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D. Documents already Presented to the Congress
    H. Res. 700 requests internal documents related to law 
enforcement, military, or intelligence agency investigations in 
response to allegations that the treatment of prisoners or 
detainees violated or continues to violate international or 
American law. The Department of Defense and the Administration 
have already provided Congress with numerous documents relating 
to these issues.
            The Department of Defense supplied Documents
    The Department of Defense has released the following 
documents:
    1. All International Committee of the Red Cross (``ICRC'') 
memoranda or reports submitted to the Administration regarding 
detention facilities in Iraq, Afghanistan, and Guantanamo Bay.
    2. All formal responses by the Administration to ICRC 
memoranda or reports, including but not limited to Brigadier 
General Janice Karpinski's December 24, 2003 response.
    3. The Department of Defense interrogation guidelines 
approved by Secretary of Defense Donald Rumsfeld in April 2003.
    4. The October 12, 2003, directive of Lieutenant General 
Ricardo Sanchez entitled, ``Interrogation and Counter-
Resistance Policy.''
    5. All interrogation reports from Abu Ghraib and other 
detention facilities in Iraq from May 2003 through December 
2003 were provided to the House Committee on Intelligence.
    6. The February 5, 2003, three-page memo from senior 
military attorneys regarding interrogation techniques at 
Guantanamo Bay.
    7. The October 2003 report of Major General Geoffrey Miller 
regarding intelligence, interrogation operations, and detention 
operations.
    8. The November 2003 report of Major General Donald Ryder 
regarding the detention and corrections system in Iraq.
    9. The November 19, 2003, order by Lieutenant General 
Sanchez transferring tactical control of the military police at 
Abu Ghraib to Colonel Thomas Pappas, commander of the 205th 
Military Intelligence Brigade.
    10. The March 2004 report of Major General Antonio Taguba 
regarding the treatment of detainees at Abu Ghraib, including 
the complete annex.
    11. Any interrogation or detainee treatment guidelines 
posted or distributed at Abu Ghraib, including the 
``interrogation rules of engagement'' posted by Captain Carolyn 
A. Wood in August 2003.
    12. All summaries of relevant investigations currently 
pending or already closed that have been prepared by military 
investigative services, including but not limited to the May 5, 
2004 synopsis prepared by the Criminal Investigation Command.
    13. A list of all ongoing investigations by the Defense 
Department, State Department, Justice Department, CIA, or their 
inspectors general into the abuse or killing of detainees in 
Iraq, Afghanistan, and Guantanamo Bay, indicating those cases 
that are being considered for prosecution by the Defense 
Department or Justice Department.
    14. A list of all investigations completed by the Defense 
Department, State Department, Justice Department, CIA, or their 
inspectors general into the abuse or killing of detainees in 
Iraq, Afghanistan, and Guantanamo Bay, along with any written 
reports produced by investigators.
            The Administration Provided Documents
    The following documents were released by the 
Administration:
    1. The January 22, 2002 Department of Justice memorandum 
regarding ``Application of Treaties and Laws to al-Qaeda and 
Taliban Detainees.''
    2. The February 1, 2002 Attorney General letter to the 
President regarding status of Taliban detainees.
    3. The February 6, 2002 Information Paper regarding 
``Background Information on Taliban Forces.''
    4. The February 7, 2002 Department of Justice memorandum 
regarding ``Status of Taliban Forces Under Article 4 of the 
Third Geneva Convention of 1949.''
    5. The February 7, 2002 memorandum from the President 
stating that although the Justice Department concluded that 
``as a matter of policy, the United States Armed Forces shall 
continue to treat detainees humanely and, to the extent 
appropriate and consistent with military necessity, in a manner 
consistent with the principles of Geneva,'' regardless of the 
Department of Justice's conclusion that the Geneva convention 
does not apply to al-Qaeda or the Taliban.
    6. The February 26, 2002 Department of Justice memorandum 
regarding ``Potential Legal Constraints Applicable to 
Interrogations of Persons Captured by U.S. Armed Forces in 
Afghanistan.''
    7. The August 1, 2002 Department of Justice letter 
regarding application of Convention Against Torture and Rome 
Statute on the International Criminal Court.
    8. The August 1, 2002 Department of Justice memorandum 
regarding ``Standards of Conduct for Interrogation under 18 
U.S.C. Sec. Sec. 2340-2340A.''
    9. The December 2, 2002 Department of Defense memorandum 
regarding ``Counter-Resistance Techniques'' (includes document 
created for June 22, 2004 press briefing listing interrogation 
techniques).
    10. The January 15, 2003 Department of Defense memorandum 
regarding ``Counter-Resistance Techniques.''
    11. The January 15, 2003 Department of Defense memorandum 
regarding ``Detainee Interrogations.''
    12. The January 17, 2003 Department of Defense memorandum 
implementing January 15, 2003 Department of Defense memorandum 
regarding ``Detainee Interrogations.''
    13. 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.
E. Sensitive Documents Requested
    The country is at war and this resolution calls for 
information, much of which is of a highly sensitive nature. For 
instance, the resolution requests every document relating to 
interrogation techniques; or the request for every internal 
report of a law enforcement, military, or intelligence agency 
or organization concerning interrogation or detention 
operations.

               REASONS FOR REPORTING RESOLUTION ADVERSELY

    The Committee is reporting this resolution adversely for 
three reasons. First, the Administration has substantially 
complied with information requested in the three resolutions. 
Congress has received and continues to receive information 
responsive to these resolutions. The Administration has sent 
this Committee a binder full of documents on the 
Administration's exhaustive legal review on the treatment of 
detainees and prisoners of war during the current War on 
Terrorism. The release of these documents was announced at a 
June 22, 2004 White House press conference.
    A part of this release is a memorandum from President Bush 
himself. In this memorandum, the President clearly directed 
that, regardless of any conclusions on the treatment of 
detainees, ``[a]s a matter of policy, the United States Armed 
Forces shall continue to treat detainees humanely and, to the 
extent appropriate and consistent with military necessity, in a 
manner consistent with the principles of Geneva.'' This 
instruction was issued even though the President accepted the 
Department of Justice's conclusion that none of the Geneva 
conventions apply to al-Qaeda.
    Members of the House of Representatives have had adequate 
access to recently released information and continue to receive 
more. In fact, the Armed Services Committee Chairman Hunter 
offered Mr. Conyers and other Democrat Members an opportunity 
to review a great deal of classified information related to his 
resolution. Mr. Conyers and others had not, at the time of the 
Committee's markup, availed themselves of that opportunity.
    Second, many of the documents requested are sensitive as 
they relate to military operations in a time when the country 
is at war. Because the resolution requests highly sensitive 
information, the Committee should follow the precedent set in 
H.Rep. No. 92-1331. In that case, the Armed Services Committee 
adversely reported a resolution asking for certain military 
information on the location of all known or suspected prisoner-
of-war camps in North Vietnam and all bombing strikes against 
North Vietnam during a certain period of time.
    The Armed Services Committee report concluded that, because 
of the highly sensitive nature of the information requested, 
the public revelation of such information would not be 
compatible with the national security interest. In making this 
recommendation, the Armed Services Committee took into account 
that the Congress had and continued to receive information 
responsive to the legislative purpose sought by that 
resolution. The same is true here.
    Third, and to complicate matters further, this resolution 
exempts grand jury material but only if a court explicitly 
finds that it is protected. This would place an unnecessary 
burden on the courts and the Department of Justice. The 
resolution also requests other information that may relate to 
ongoing criminal investigations. With regard to civilian 
criminal investigations, the Department of Justice has charged 
a CIA contractor with abuse of a detainee in Afghanistan, and 
it is probable that there are additional civilian criminal 
investigations that are ongoing. The House Armed Services 
Committee has indicated that as of July 13, there are 164 
active military criminal investigations related to abuse of 
detainees or prisoners.
    A competing investigation is a common reason that 
Committees have opposed resolutions of inquiry in the past. 
This Committee has previously reported such resolutions 
adversely for this reason. On February 27, 2004, this Committee 
adversely reported House Resolution 499, a resolution of 
inquiry, due to an ongoing grand jury investigation and, on 
July 17, 2003, adversely reported House Resolution 287, a 
resolution of inquiry, due to an ongoing competing 
investigation of the Inspector General of the Department of 
Justice. In an earlier Congress, the Committee also reported a 
resolution of inquiry adversely to avoid jeopardizing a 
competing investigation into the Abscam case.

                                Hearings

    No hearings were held in the Committee on the Judiciary on 
H. Res. 700.

                        Committee Consideration

    On July 21, 2004, the Committee met in open session and 
adversely reported the resolution H. Res. 700 with an amendment 
by a rollcall vote of 15 yeas to 12 noes, a quorum being 
present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee sets forth the 
following rollcall votes that occurred during the Committee's 
consideration of H. Res. 700:
    Motion to Report Adversely. The motion to report the 
resolution, H. Res. 700, adversely with an amendment was agreed 
to by a rollcall vote of 15 yeas to 12 noes.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................              X
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................
Mr. Bachus......................................................
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................
Mrs. Blackburn..................................................
Mr. Conyers.....................................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................                              X
Mr. Wexler......................................................
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             15              12
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of Rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of Rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

                        Committee Cost Estimate

    In compliance with clause 3(d)(2) of Rule XIII of the Rules 
of the House of Representatives, the Committee estimates the 
costs of implementing the resolution would be minimal. The 
Congressional Budget Office did not provide a cost estimate for 
the resolution.

                    Performance Goals and Objectives

    H. Res. 700 does not authorize funding. Therefore, clause 
3(c)(4) of Rule XIII of the Rules of the House of 
Representatives is inapplicable.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the 
House of Representatives, the Committee finds that the rule 
does not apply because H. Res. 700 is not a bill or joint 
resolution that may be enacted into law.

               Section-by-Section Analysis and Discussion

    The Resolution directs that the Attorney General transmit 
to the House of Representatives not later than 14 days after 
the date of the adoption of this resolution all documents in 
the possession of the Attorney General, except those documents 
in the Attorney General's possession that have been found by a 
court to be protected by Federal Rule of Criminal Procedure 
6(e) in a proceeding at which the Attorney General or the 
Department of Justice is a party, relating to the treatment of 
prisoners or detainees in Iraq, Afghanistan, or Guantanamo Bay 
and any requisite instructions for handling such documents. The 
resolution then sets forth a list of 21 types of documents that 
are requested. The Committee adopted an amendment adding one 
additional category of documents to the request.

            Changes in Existing Law Made by the Resolution, 
                              as Reported

    In compliance with clause 3(e) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes that H. Res. 
700 makes no changes to existing law.

                           Markup Transcript



                            BUSINESS MEETING

                        WEDNESDAY, JULY 21, 2004

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 10:00 a.m., in Room 
2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    The Committee will come to order. A quorum is present.
    [Intervening business.]
    Chairman Sensenbrenner. Now, pursuant to notice I call up 
H. Res. 700, a resolution directing the Attorney General to 
transmit to the House of Representatives documents in the 
possession of the Attorney General relating to the treatment of 
prisoners and detainees in Iraq, Afghanistan, and Guantanamo 
Bay, for the purposes of markup and move its adverse 
recommendation to the House.
    Without objection, the resolution will be considered as 
read and open for amendment at any point.
    [The resolution, H. Res. 700, follows:]
    
    
    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes to explain the resolution.
    Today, the Committee considers H. Res. 700, a resolution of 
inquiry directing the Attorney General to transmit to the House 
all physical and electronic records and documents in its 
possession relating to the treatment of prisoners and detainees 
in Iraq, Afghanistan, and Guantanamo Bay, Cuba except for those 
documents in the AG's possession found by a court to be 
protected by grand jury secret.
    I move that the Committee report the resolution adversely 
for several reasons. First, the Administration has 
substantially complied by providing the information requested 
in this resolution and other similar ones. Congress has 
received and continues to receive information responsive to 
congressional requests for information. The Administration has 
sent to this Committee a binder full of documents on the 
Administration's exhaustive legal review on the treatment of 
detainees and POWs during the current war on terrorism.
    Yesterday, the Justice Department wrote me indicating that 
it has released all unclassified written opinions addressing 
the legality of interrogation techniques for al-Qaeda and the 
Taliban. Without objection, that correspondence will be placed 
in the record.
    [The information referred to follows:]
    
    
    Chairman Sensenbrenner. In addition, on June 30 the 
Administration released a memorandum from President Bush 
himself in which he clearly directed that regardless of any 
conclusions on the treatment of detainees, as a matter of 
policy the United States Armed Forces shall continue to treat 
detainees humanely and to the extent appropriate and consistent 
with military necessity in a manner consistent with the 
principles of Geneva. This instruction was issued even though 
the President accepted the Department of Justice's conclusion 
that none of the Geneva Conventions apply to al-Qaeda.
    Members of the House have had adequate access to recently 
released information and continue to receive more. In fact, the 
Armed Services Committee offered Mr. Conyers and other 
Democratic Members an opportunity to review a great deal of 
classified information related to this resolution. Mr. Conyers 
and the others declined.
    Without objection, letters relating to that offer will be 
entered into the record.
    [The information referred to follows:]
    
    
    Chairman Sensenbrenner. A staff member of the Armed 
Services Committee is present here today with that information, 
and there is a box full of it over there. While it cannot be 
reviewed in this room due to its classified information, 
everyone can see that it is voluminous.
    Secondly, many of the documents requested are sensitive 
because they relate to military operations at a time when the 
country is at war. Because this resolution requests highly 
sensitive information, the Committee should follow the 
precedent set forth in House Report 92-1331. In that case the 
Armed Services Committee adversely reported a resolution asking 
for certain military information on the location of all known 
and suspected POW camps in North Vietnam and all bombing 
strikes against North Vietnam during a certain period of time. 
The Armed Services Committee's report concluded that because of 
the highly sensitive nature of the information requested, the 
public revelation of such information would not be compatible 
with the national security interest. In making this 
recommendation, the Armed Services Committee took into account 
that Congress had and continued to receive information 
responsive to the legislative purpose sought by the resolution. 
I assume the same is true here.
    Third, and to complicate matters further, this resolution 
exempts grand jury material, but only if a court explicitly 
finds that it is protected. This would place an unnecessary 
burden on the courts and the Department of Justice, as they 
would be forced to expend time to make a final determination in 
each case where such an exemption might apply.
    The resolution also requests other information that may 
relate to ongoing criminal investigations. With respect to 
civilian criminal investigations, the Department of Justice has 
charged the CIA contractor with abuse of a detainee in 
Afghanistan and it is probable that there are additional 
similar criminal investigations ongoing. The House Armed 
Services Committee has indicated that as of July 13, there are 
164 active military criminal investigations relating to the 
abuse of detainees and prisoners. Avoiding competing 
investigations is a common and well-founded reason the 
Committees have opposed the resolutions of inquiry in the past. 
This Committee has previously supported such resolutions 
adversely for this very reason.
    Last week the House Committees on Armed Services and 
International Relations voted to report similar resolutions 
requesting information related to this matter adversely for the 
same reasons. Today, Members of this Committee should also 
reject this resolution, which could jeopardize the national 
security and compromise several ongoing criminal 
investigations.
    Without objection, all Members' opening statements will be 
placed in the record at this point.
    [The prepared statement of Ms. Waters follows:]
Prepared Statement of the Honorable Maxine Waters, a Representative in 
                 Congress From the State of California
    Mr. Chairman, I move to strike the last word.
    I strongly support the Resolution of Inquiry. In order to discharge 
our legislative responsibilities and provide proper oversight of the 
activities of the Administration with respect to prisoners and 
detainees in Iraq, Afghanistan, and Guantanamo Bay, it is essential 
that all Members of Congress have full unfettered access to all 
documents or other materials that bear upon these issues.
    If there are grand jury materials that need to be protected, or 
discrete cases or investigations that may require limitations on the 
manner in which certain materials may be disseminated or used, we can 
then address the type of protective order, if any, that may be 
required. Yet, House and Senate practices in recent years certainly 
demonstrate that the pendency of legal proceedings or other 
investigations is no legal bar to making relevant documents available 
to Congress.
    Mr. Chairman, we had numerous investigations during the eight years 
of the Clinton Administration that took place at the insistence of the 
majority party.
    It certainly will come as a surprise to Democratic Members now to 
hear the argument that the pendency of legal proceedings somehow should 
automatically deprive the Members of Congress or duly authorized 
Congressional Committees from access to source documents on matters of 
public concern.
    Mr. Chairman, all of us know that the despicable abuses that we 
have read and heard about do not represent the values of our country, 
or the behavior of the vast majority of our military. Yet the abuses of 
prisoners and detainees that have occurred have stained the honor of 
the United States and tarnished the reputation of our military.
    We owe it to the millions of men and women in our military who had 
nothing to do with this misconduct, as well as to the victims of this 
abuse and their families, to find out just how and why these abuses 
occurred and to ensure that they never happen again.
    While I certainly hope that these horrendous abuses will prove to 
be the aberrant acts of a few cruel, misguided soldiers who were acting 
on their own outside the scope of their authority, this outcome seems 
improbable. Everything that we know about the military suggests that 
soldiers generally do not freelance, particularly not with respect to 
major issues of policy. When they do, such freelancing represents a 
serious breakdown in command and control and military discipline.
    So we need to determine where the orders came from that led to 
these abuses. We need to know how far up the chain of command these 
decisions reached. Did local commanders make them? Were they made or 
approved at the Pentagon? What role, if any, did the Department of 
Justice play in this process? What was the nature and extent of the 
White House's involvement in these issues? What role, if any, did the 
Vice President or the President play in this process?
    We need to know what training our soldiers received and what role 
private contractors played in the process. We need to know where and 
when and why the determination was made that the Geneva Convention did 
not apply to detainees. And, unfortunately, we need to know whether the 
decision to force detainees to engage in lewd sexual acts was made 
because of the belief that these practices would be particularly 
offensive to the Islamic faith and the religious practices of the 
detainees.
    Mr. Chairman, the Members of Congress need access to the documents 
sought in the Resolution of Inquiry to do our job and serve the 
American people. I urge all my Colleagues to support the Resolution.
    I yield back.

    [The prepared statement of Mr. King follows:]
  Prepared Statement of the Honorable Steve King, a Representative in 
                    Congress From the State of Iowa
    Thank you Mr. Chairman.
    I would like to voice my opposition to House Resolution 700.
    I believe that, at this time, House Resolution 700 would only 
compromise our efforts in the worldwide War on Terror. This Resolution 
is nothing more than election-year politics. Criticism such as Mr. 
Conyers's only serves to damage the morale and safety of our thousands 
of troops who continue to serve admirably and honorably in Iraq and 
elsewhere.
    The Bush Administration has been more than upfront and open with 
respect to the documents that Mr. Conyers hopes to obtain through this 
Resolution. Furthermore, the Justice Department has already released 
all unclassified information on the legality of interrogation 
techniques for al Qaeda and the Taliban. The Administration has been as 
open as they can be, considering we are at war. The release of any 
further information would compromise our mission in the War on Terror 
and, ultimately, put our soldiers' lives in danger by giving aid and 
comfort to our enemy.
    Let me be clear: I support further investigation and punishment of 
those who truly were wrong-doers in this situation, but we must not 
allow this to turn into an election-year hunt for scapegoats. Our 
military justice system is carrying out its duties, deterring those who 
would consider similar acts in the future. Now is the time for those of 
us who make the laws to step back and allow them to be enforced.
    In closing, I would ask the Committee to recognize the enemy we are 
up against, an enemy who murdered 3000 innocent victims on September 
11, 2001, an enemy who has shown no remorse, an enemy who would kill 
each and every Jew, Christian, and capitalist if we let them have their 
way. We must not go forward with a Resolution that will take attention 
away from the matter at hand, winning this war on terrorism and 
bringing to justice those who wish to kill innocent, freedom-loving 
people.
    I thank the Chairman for his hard work and dedication to this 
Committee, and I look forward to working with all Members of this 
Committee in winning this War on Terror.

    I now recognize the gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you very much, Chairman Sensenbrenner, 
and I commend you for scheduling this hearing so that we can 
continue the inquiry into something that has been very 
disturbing internationally and around the world concerning the 
way we have treated some of our prisoners. This is one of the 
scandals of this so-called war against terror.
    I have to begin by pointing out, Chairman Sensenbrenner, 
that the letter that not only I, but Henry Waxman, Chairman, 
Ranking Member of the Government Reform Committee, and Tom 
Lantos, Ranking Member of International Relations Committee, 
sent to Chairman Duncan Hunter of the Armed Services Committee, 
dated July 9, 2004, requesting the classified information that 
you have pointed out is sitting on the table in this hearing 
room presently has never been responded to, and I am happy that 
it is sitting there this morning. Now that it is within about 
30 yards of me, maybe me and my staff, all cleared for Top 
Secret, will have some opportunity to look at it, and I don't 
even mind if it is after the work of the Committee has been 
disposed of this morning.
    And I would yield to the Chairman if he chooses to grant me 
permission for that request.
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Conyers. With pleasure.
    Chairman Sensenbrenner. That is up to the Chairman of the 
Armed Services Committee, but he has already made the offer to 
allow Members, as well as Judiciary Committee staff who have 
appropriate security clearances, to examine the information, 
and no one has responded to the offer that the Chairman of the 
Armed Services Committee has made.
    Ms. Lofgren. Mr. Chairman.
    Mr. Conyers. Well, may I point out with respect, Mr. 
Chairman, that my letter of July 9, 2004, has never been 
responded to, and I might add that this Committee is as 
entitled to this information as either of the Committees. I 
mean, this isn't something that we have to negotiate with. We 
have a right to this material, and it has not been proffered 
before your kind offer this morning. So if the offer still 
holds, I would like very much to be able to avail ourselves of 
it.
    Now, let me bring this matter forward. We have got a 
resolution before us that directs the Attorney General of the 
United States under H. Res. 700 to transmit to the House all 
documents relating to the treatment of prisoners and detainees 
in Iraq, Afghanistan, and Guantanamo Bay. The resolution is 
privileged. The Committee has 14 legislative days to report the 
bill favorably or unfavorably. Otherwise, this privileged 
motion can be brought directly to the House floor for 
consideration.
    Now, to date there have been closed sessions of the 
Intelligence Committee and two Armed Services hearings, but 
there is no ongoing public investigation by any House Committee 
with a plan to acquire the necessary documents and testimony. 
Every attempt to review these serious charges of abuse and 
inhumane treatment on a bipartisan basis has been rejected and 
with each request----
    The Chairman. The gentleman's time has expired.
    Mr. Conyers. Mr. Chairman, I ask unanimous consent for 5 
additional minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Conyers. I thank the Chairman.
    Every attempt to review these serious charges of abuse and 
inhumane treatment on a bipartisan basis has been rejected and 
with each request that has been made, the majority party 
leadership has responded but not any Member of a Republican 
committee of the House of Representatives has responded by 
challenging the patriotism of those who question the tactics of 
this Administration.
    Now, there have been a lot of new information provided by 
investigative journalist Seymour Hirsch since before this 
matter was filed with the House of Representatives but--and so 
there are newer reports of abuse that indicate that the 
intimidation tactics, including torture, are likely to have 
been approved at the highest levels of Government. For example, 
the December 2002 Pentagon memo that was recently released to 
Congress indicates that Secretary Rumsfeld personally 
authorized using dogs for intimidation purposes, in addition to 
stripping prisoners of their clothes and hooding them. 
Furthermore, these memos and orders were signed not only by Mr. 
Rumsfeld but by President Bush and Attorney General John 
Ashcroft.
    Further investigation into this matter then is obviously 
necessary, given the numerous loopholes in the information that 
we do have. For example, the President's February 7, 2002 
memorandum directing that detainees be treated humanely 
commands this humane treatment only to the extent appropriate 
and consistent with military necessity. Because this is not a 
term recognized by law, it is unclear to what extent the 
Justice Department or the Administration found it militarily 
necessary to act inhumanely.
    Another problem that presents itself to this Committee: The 
President's February 7, 2002 memorandum notes that he has the 
authority under the Constitution to suspend Geneva as between 
the United States and Afghanistan, but he declined to exercise 
that authority at that time. It is unclear whether the 
President ever exercised that authority.
    Another problem that needs to be examined: The Justice 
Department continued to debate whether detainees could be 
tortured and what the legal ramifications would be long after 
the President's February 7, 2002 directive to treat detainees 
consistent with the Geneva Conventions. This implies that 
further decisions were made by the President that are not 
reflected in the memorandum currently available.
    Another point: The memoranda from the Justice Department 
abruptly stops in August 2002. It is highly unlikely that the 
Justice Department had not issued any legal advice on the laws 
of war and how they relate to the detention and interrogation 
over the last 2 years.
    Another point: The interrogation specific documents stop in 
April 2003 and do not cover practices at Abu Ghraib and other 
military prisons in Iraq.
    Point six: There is a major discrepancy in the----
    Chairman Sensenbrenner. The time of the gentleman has once 
again expired.
    Mr. Conyers. I thank the Chair and I request an additional 
5 minutes, please.
    Chairman Sensenbrenner. Without objection.
    Mr. Conyers. I thank the Chair.
    There is a major discrepancy in the released documents that 
show that in December 2002, Secretary Rumsfeld approved the use 
of the documented abusive techniques that are in fact illegal. 
Secretary Rumsfeld later rescinded his approval of these 
techniques on Guantanamo detainees. Yet, these techniques later 
featured prominently in the documented abuses at Abu Ghraib.
    Item eight: The documents that were released by the 
Department of Defense are incomplete and raise questions in 
terms of how the illegal tactics that were approved in 
Guantanamo were later approved and applied in Afghanistan and 
Iraq, resulting in the torture and other mistreatment of 
detainees in those places.
    Item nine: The memos that were released to Congress concern 
the DOD interrogation techniques, but nothing has been provided 
in terms of CIA interrogation practices.
    And the last item, the International Committee of the Red 
Cross reports that were delivered to the House Armed Services 
Committee last week are only one aspect of the investigation, 
are incomplete, were only made available for a period of 6 
hours, and were not available to staff and other Members 
outside the Committee.
    I would like now, Mr. Chairman and Members of the 
Committee, to comment on the recent release of Justice 
Department and other departmental memoranda. On June 23, 2004, 
the White House and the Department of State released a number 
of documents relating to the treatment of detainees. There are 
also a number of memoranda that have been leaked and 
distributed on the Internet. Those drafted by the Justice 
Department or drafted on its advice include these following 
two, four, six, seven points.
    January 22, 2002, Department of Justice memorandum 
regarding application of treaties and laws to al-Qaeda and 
Taliban detainees. February 1, 2002, Attorney General letter to 
President regarding status of Taliban detainees.
    February 7, 2002, Department of Justice memoranda regarding 
status of Taliban forces under Article IV of the Third Geneva 
Convention of 1949. And there are four other related kinds of 
letters or memoranda.
    In tandem, these documents argue that first the Geneva 
Conventions and other international laws banning torture do not 
apply to our detainees and, second, that if they do, they can 
be construed so narrowly that the events such as those at Abu 
Ghraib are not legally torture. And third, and finally, even if 
these acts could be defined as torture, the Administration and 
its military are not liable under the President's Commander-in-
Chief authority and other defenses.
    And so, in conclusion, Mr. Chairman, I would argue that 
this resolution, H. Res. 700, should and ought to be favorably 
reported by the full Committee of the Judiciary, this 
Committee, immediately and brought forward to the floor. And I 
again thank the Chairman for his generous allotment of time.
    [Intervening business.]
    Chairman Sensenbrenner. Debate will now resume on H. Res. 
700. The pending question is the Chair's motion to report the 
resolution adversely.
    For what purpose does the gentleman from Texas, Mr. Smith, 
seek recognition? Aren't you going to respond?
    Ms. Lofgren. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Lofgren.
    Ms. Lofgren. Move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. Mr. Chairman, I was very surprised to hear 
that Members of this Committee had been invited to review the 
classified documents relative to the Abu Ghraib matter because 
I never received a letter, and while you were going through 
your statement, I called my scheduler to confirm that we have 
never received any letter to that effect. And I guess it is 
that box that is full of the documents. I would like to assume 
my responsibility to review that material. And so the question 
I have is in addition to this resolution, which I support, I am 
wondering how Members of this Committee who want to fulfill our 
obligation to review this matter actually avail ourselves of 
that opportunity since I have not received the invitation, and 
checking with others.
    I would certainly yield.
    Chairman Sensenbrenner. The gentlewoman can contact the 
Armed Services Committee and be able to review the documents in 
an appropriately secured room. The invitation that was made by 
the Chairman of the Armed Services Committee was sent to the 
Ranking Member.
    Ms. Lofgren. Well, in checking with the staff, they were 
unaware of the offer as well. So there has obviously been a 
miscommunication of some sort here.
    I would just like to further add that this Committee has 
jurisdiction over the Department of Justice. And the Chairman, 
although we don't agree obviously on many items, the Chairman 
has been vigorous in pursuing this Committee's jurisdiction, 
something that we have all appreciated. To suggest that the 
Judiciary Committee is subservient to the Armed Services 
Committee in the review of the Department of Justice seems to 
me contrary to the type of record the Chairman has established 
in making sure that the Judiciary Committee actually discharges 
its obligation.
    So I would suggest that Mr. Conyers' resolution is an 
appropriate one, but that in addition any classified materials 
ought to be presented to this full Committee by the staff at 
the Department of Justice. We have all been to classified 
briefings. It is not just a matter of sitting down and looking 
through documents. We always get a report from the staff.
    Chairman Sensenbrenner. Would the gentlelady yield again?
    Ms. Lofgren. I would certainly yield, Mr. Chairman.
    Chairman Sensenbrenner. If the gentlewoman would yield, 
there was a binder that the Department of Justice sent over 
that contained all of the documents that they had, which was 
released to the public, and the Chair received a letter from 
Assistant Attorney General William Moschella that basically 
says they don't have any more documents, and I have a copy of 
the letter. A copy of it was sent to the Ranking Member, Mr. 
Conyers as well. Unfortunately, it doesn't have a date on this. 
But it does refer to the letter which I sent to the AG dated 
July 13. I am informed that the Moschella response was received 
yesterday.
    Ms. Lofgren. Well, I have not received that document 
either, Mr. Chairman, nor have I received the binder. So I look 
forward to reviewing that material. But I don't think it really 
changes the suggestion that I am making, which is that we--if 
we have a box of classified documents that relate to this 
investigation, I think it would be appropriate for the full 
Judiciary Committee on a bipartisan basis to arrange for a 
classified briefing on these documents and a presentation by 
the appropriate staff. I don't know which staffers that would 
be, so that we might have their guidance in how to interpret 
the classified documents that we are going to review, and I 
would yield to the Ranking Member, Mr. Conyers.
    [The prepared statement of Ms. Lofgren follows:]
 Prepared Statement of the Honorable Zoe Lofgren, a Representative in 
                 Congress From the State of California
    For the past several months, stories of prisoner abuse have been 
dominating much of the discussion about the war in Iraq. And the 
stories are becoming more and more disturbing.
    A recent article in U.S. News and World Report detailed life at Abu 
Ghraib this way: ``[r]iots, prisoner escapes, shootings, corrupt Iraqi 
guards, unsanitary conditions, rampant sexual misbehavior, bug-infested 
food, prisoner beatings and humiliations, and almost-daily mortar 
shellings from Iraqi insurgents--that pretty much sums up life at Abu 
Ghraib.'' Even more disturbing, journalist Seymour Hersh recently 
asserted that the Bush Administration has videotapes of young boys 
being sodomized by American soldiers.
    Enough is enough. We need to get to the bottom of this. And that 
does not only mean prosecuting low-ranking soldiers. We need to find 
out whether those in command authorized these tactics, either 
explicitly or implicitly.
    President Bush claims that the abuse was the conduct of a few bad 
apples. But there are signs pointing elsewhere. For example, we 
recently learned that Secretary Rumsfeld initially authorized the use 
of dogs for intimidation purposes, and that some in the Department of 
Justice believed that, as Commander-in-Chief, President Bush could 
loosen the definition of ``torture'' without risking any legal 
consequences.
    In short, there are major questions that need to be answered. Those 
questions need to be answered by this Congress, not a panel appointed 
by Secretary Rumsfeld. Why then, are Republicans refusing to act? Not 
one House committee has undertaken a formal, public investigation of 
this matter.
    The eyes of the world are watching. I urge my colleagues to support 
this resolution so that we can finally investigate these issues and 
match our principles with our actions.

    Mr. Conyers. I want to thank the gentlelady for raising 
this subject again, because, let's be clear about it. The 
carton of information sitting on a desk in the Judiciary 
Committee now is from the Armed Services Committee. I hold in 
my hand our report from staff that points out that there are 
five categories of Department of Justice documents over and 
above the ones that they released that we do not have.
    So you know, this shell game with documents and letting us 
be prepared to vote on an important resolution like this--for 
example, Congresswoman Lofgren, we do not have the Attorney 
General drafts as well as final documents, classified as well 
as unclassified documents, all legal issues surrounding the 
applicability of torture laws and conventions not to----
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired.
    Mr. Conyers. I ask unanimous consent she be given 3 
additional minutes, Mr. Chairman.
    Chairman Sensenbrenner. Without objection.
    Mr. Conyers. Thank you. If I may continue, not just the 
legality of the interrogation tactics and all detainees in 
Iraq, Afghanistan, and Guantanamo Bay, not just al-Qaeda and 
the Taliban.
    Now, this is not complex requests we are making. We want 
all the documents from the Department of Justice relating to 
the subject matter of H. Res. 700, and we haven't received it, 
and your focus on this matter allows us a chance to once again 
reraise this very important consideration.
    Ms. Lofgren. Mr. Conyers, if I may just briefly, reclaiming 
my time, this letter from Mr. Moschella, which I have just seen 
for the first time--I guess it was--just arrived yesterday 
afternoon, I have learned to read letters from the 
Administration very carefully. And if I take a look at the 
second paragraph, it says that the Department of Justice; i.e. 
The Department, can assure you that the Administration has 
released all unclassified final written opinions from the 
Department addressing the legality, et cetera, et cetera. That 
does not mean that all material has been released. That only 
says that unclassified final written opinions has been 
released.
    So I think that we should inquire further of the Department 
and see what additional information is available that we have 
an obligation to pursue, whether it is in public or, if 
necessary, in a classified setting so that we can assure 
ourselves that we have discharged our obligations as the 
Judiciary Committee. And I think that, you know, I plan to vote 
for Mr. Conyers resolution, but I think that is just step one 
of what our obligation is in this matter. And I would yield 
again to Mr. Conyers.
    Mr. Conyers. Well, the gentlelady is absolutely correct, 
and the quandary that we are put in at this very moment is 
whether to seek additional time to examine the documents we are 
asking for or merely put our complaints on the record and 
stumble forward. I don't know whether to request a recess to 
discuss this with all the Members on this side of the Committee 
or just to put these very pointed complaints into the record 
and move ahead. I leave it to the judgment of my colleagues.
    I thank the gentlelady.
    Chairman Sensenbrenner. The time of the gentlewoman has 
once again expired. The gentleman from Illinois, Mr. Hyde.
    Mr. Hyde. Thank you, Mr. Chairman. I congratulate you on 
this hearing and in no way do I minimize the significance of 
the effort being made to examine minutely, microscopically, how 
this Administration reacted to the disgraceful circumstances in 
Abu Ghraib prison. But I think we are only partially examining 
this phenomenon. I would like to start every meeting of this 
Committee with a film of 9/11 showing the aircraft crashing 
into the two skyscrapers and incinerating 3,000 people; showing 
the ship diving into the Pentagon right down the road here, 
killing how many people I don't know. And then I would like to 
remind us, because we forget these things, and that we should 
know the whole total circumstances of what we are doing. I 
would also like pictures of perhaps Mr. Johnson, who was 
beheaded. They discovered his head today or yesterday. And 
since pictures have animated this flurry of activity, perhaps a 
picture of that as well as the other people who have been 
beheaded. Then we could have selective pictures of the suicide 
bombing that kills little children and elderly people 
promiscuously almost every day.
    We spend so much time on this issue that we kind of fail to 
emphasize the totality of what is going on over there. So I 
would hope, sir, that at some time we can put this into 
context, in no way minimizing the disgraceful conduct at the 
prisons, but trying to understand the backdrop, the background 
that sometimes drives people to do things that are disgraceful.
    Thank you.
    Mr. Conyers. Would the Chairman--the former Chairman of 
this Committee yield to me?
    Mr. Hyde. With great pleasure.
    Mr. Conyers. Thank you very much, Chairman Hyde. I would 
take you at your word. I assume you are serious. Why don't we 
do that? I think it would be very instructive for the same 
reasons you have enunciated. But in the end, we in the 
Judiciary have a different function from that role that you 
carry so well as Chairman of International Relations. We have 
to determine whether the Geneva Conventions to which we are a 
signatory were, in fact, deliberately violated not by privates 
and corporals, but by the President of the United States, the 
Secretary of the Defense and the Attorney General of the United 
States.
    Mr. Hyde. I would be happy to inform the gentleman that I 
am keenly aware that those are the targets of this effort. That 
is no secret.
    I yield back my time.
    Mr. Watt. Mr. Chairman----
    Chairman Sensenbrenner. Are there any amendments? The 
gentleman from North Carolina, Mr. Watt.
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman. I recognize that these 
are very dangerous days, because we are in the process of 
winding down this session leading up to a major national 
election, and there is a tendency, obviously, to have our 
judgments reflect on both sides, either side, what may serve 
the purpose of getting one or the other sets of nominees 
elected to office. But in the process of doing that, I hope we 
will not lose sight of our own responsibilities, aside from 
protecting whoever or scandalizing whoever may have made 
decisions for which there should be disclosure to other people, 
not necessarily disclosure to the public, but certainly 
disclosure to Members of the relevant oversight Committees that 
have jurisdiction here. And it seems to me that to not report 
this resolution favorably, or pursue these records runs very 
counter to a number of things that I thought this Committee and 
the Chair has stood for.
    First of all, it has not gone unnoticed by us, me, by a 
number of people, that every time there is a hearing before the 
Judiciary Committee, each witness is requested to stand and 
raise their right hand and take an oath. And for some reason, 
today, we are prepared to sit here and accept a letter from an 
Administration official that doesn't even go near as far as 
even representing that all of the documents have been turned 
over apparently. The letter is not under oath. We can't cross-
examine it. We can't ask it questions. We can only review its 
conclusory comments, which I think fall far, far short of the 
standard that this Committee has set for receiving information 
and documentation before this Committee.
    Second, as Ms. Lofgren has pointed out, this Committee has 
been assiduous, the Chair of this Committee has been assiduous 
in protecting the jurisdiction of this Committee. And the 
notion that we should, as a Judiciary Committee, having 
oversight of the Attorney General, go and cower to another 
Committee to get documents that should be under our review or 
subject to our review, is just inconsistent with the 
philosophy, it seems to me, that this Committee has followed of 
safeguarding the jurisdiction and fulfilling the responsibility 
that this Committee and the Members of this Committee have to 
the public. And I don't--I have no idea what is in the box down 
there. But it seems to me that we ought to be assured that 
whatever is there is complete and the full record, classified 
and unclassified, and that we can review it without falling 
under the jurisdiction of some other Committee.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Watt. I ask unanimous consent for 30 additional 
seconds.
    Chairman Sensenbrenner. Without objection.
    Mr. Watt. I just think the interest of protecting somebody 
and not embarrassing somebody and not running the risk that 
this could be embarrassing in an upcoming political election is 
taking more power over this decision, because it is just 
inconsistent with prior decisions that this Committee has made.
    Chairman Sensenbrenner. The time of the gentleman has once 
again expired.
    Are there amendments? If there are no amendments--there are 
no amendments. The question----
    Mr. Conyers. There is--I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    Mr. Conyers. I am reporting the amendment on behalf of 
Sheila Jackson Lee. Different from another----
    Chairman Sensenbrenner. Is this Conyers, 121 XML?
    Mr. Conyers. No, sir, it is not.
    Chairman Sensenbrenner. Okay. Then the Clerk will report 
the correct amendment.
    Mr. Conyers. It is the Jackson Lee amendment, 254 XML.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to H. Res. 700 offered by Mr. Conyers. 
At the end of the resolution, add the following new paragraph 
(and make such technical and conforming changes as may be 
appropriate): (22).
    [The amendment to H. Res. 700 offered by Ms. Jackson Lee 
follows:]


    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read and the gentleman from Texas is recognized--
or the gentleman from Michigan is recognized for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman. I offer this 
amendment on behalf of----
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Conyers.--Miss Jackson Lee, and I certainly yield.
    Chairman Sensenbrenner. I believe that the minority should 
be allowed to amend their resolution as they see fit, and I 
would ask for an aye vote on the amendment and then again 
reporting the amendment or the resolution out adversely.
    Mr. Conyers. I return any time that I have been granted. 
Thank you.
    Chairman Sensenbrenner. Okay. The question is on the 
amendment offered by----
    Ms. Jackson Lee. Strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. Thank you. I ask the support of the 
amendment and yield back.
    Chairman Sensenbrenner. Okay. The question is on the 
amendment offered by the gentlewoman--or gentleman from 
Michigan, Mr. Conyers. Those in favor will say aye. Opposed no. 
The ayes appear to have it. The ayes have it. The amendment is 
agreed to.
    Are there further amendments?
    Ms. Jackson Lee. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from Texas. For 
what purpose do you seek recognition?
    Ms. Jackson Lee. To strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes again.
    Ms. Jackson Lee. I thank the distinguished gentleman. First 
of all, I want to thank the Committee and Mr. Conyers for that 
amendment. But I do want to applaud Mr. Conyers for this 
resolution and simply, as I was leaving the room I heard my 
colleague, Congresswoman Lofgren mention her interest in 
reviewing documents. I just want to add to the fact that I too 
did not receive information, and we know how information is 
disseminated, to be able to look at the documents of what I 
think is a very important issue.
    I will not take this time to finger point, but I do think 
it is important for any Administration in any system of 
government to be transparent. I recall the years in this 
Committee during the last Administration when I believe we 
spent any number of hours investigating. This issue dealing 
with the prison scandal in Iraq and in Afghanistan is worthy of 
investigating. We know that there is an investigation of a very 
able public servant who served in the Clinton administration. 
We know that that investigation was going on for a period of 
time. Some of us wonder why the issue was leaked now. But we 
realize that in all instances government should be transparent.
    There is no doubt that the Attorney General has attempted 
to cover up and prevent a full oversight investigation and 
review of all matters dealing with Abu Ghraib. We also know 
that there are brutal acts that occurred. We also know that 
there are possibilities that the direction to act as those 
individuals did act at the respective prisons may have come 
from the highest levels of government.
    I believe this resolution, if acted upon by this Committee 
in good faith, would be a true testimony and statement to the 
integrity not only of this Committee but to the governmental 
process, that we are not afraid of investigations and that what 
we want most of all is for the best of this Nation and our 
people.
    Tomorrow the 9/11 Commission will come out and I am sure 
there will be enough finger pointing for all of us. I hope the 
most that we will glean out of it is that we failed on 9/11. We 
failed the American people, and that it is important and 
imperative that we fix the broken system, particularly 
intelligence, the intelligence system. But if we report this 
resolution unfavorably, it will be indicative of our fear of 
the truth or the facts, whichever one you so choose. I believe, 
and I would hope my colleagues on the other side of the aisle 
would refresh their memory and be reminded of one investigation 
after another of the previous Administration in which those of 
us on this side of the aisle either had to sit through or 
participate in, even to the extent of a constitutional 
impeachment proceedings. Why is it, when we raise questions of 
fact, truth, integrity and the need for a proper governmental 
system, why isn't it that we are not joined in by the Members 
of good faith on the other side of the aisle? And I know that 
they are in fact individuals who believe in the integrity of 
government. My remarks are not in any way intended to diminish 
their commitment to this process of good government. But I 
would say that it would be shame on us----
    Mr. Delahunt. Would the gentlelady yield?
    Ms. Jackson Lee.--today if we would not move forward. And I 
would be happy to yield to the distinguished gentleman.
    Mr. Delahunt. Yeah. I thank the gentlelady for yielding. If 
the motion offered by Mr. Sensenbrenner should prevail, and I 
have reason to believe that it will, I would hope that the 
Chair would consider that those documents that are currently in 
the possession of the Armed Services Committee that are 
properly within the jurisdiction of the House Judiciary 
Committee be brought physically to a venue which is under the 
control of the Judiciary Committee for review by all Members on 
both sides of the aisle at their convenience.
    Chairman Sensenbrenner. Will the gentlewoman from Texas 
yield to respond to that point?
    Ms. Jackson Lee. I would be happy to yield.
    Chairman Sensenbrenner. The problem is that the Uniform 
Code of Military Justice is not under the jurisdiction of the 
Judiciary Committee. It is under the jurisdiction of the Armed 
Services Committee. And you know, I don't want to get involved 
into a jurisdictional dispute where that big box will end up 
dropping through the cracks to some classified safe. I think 
the arrangement that has been made to allow the examination of 
those records by Members of our Committee, you know, is a good 
one. It is just as a matter of physically where the records 
are.
    I thank the gentlewoman for yielding.
    Mr. Delahunt. If the gentlewoman would continue to yield. I 
would ask unanimous consent----
    Ms. Jackson Lee. If I could have an additional.
    Chairman Sensenbrenner. Without objection.
    Ms. Jackson Lee. So that I can close and yield to the 
gentleman.
    Mr. Delahunt. I respect the Chair's statement and I 
understand the logistical issue, however, under the War Crimes 
Act, that does fall, it is my understanding from staff that 
that does fall within the purview, if you will, of the 
Committee. And again, without being unreasonable, I think it is 
important to, as the Chair has done continually, and much to 
the encouragement and support of Members on this side of the 
aisle, been very clear about the jurisdiction of the Judiciary 
Committee.
    Ms. Jackson Lee. If I may reclaim my time and just close, 
let me, after that exchange, also acknowledge the Chairman's 
consistency in protecting and also recognizing the jurisdiction 
of this Committee. I would only say that after this vote, and I 
hope that it will be a positive vote to send this out 
favorably, if the Chair would help facilitate Members being 
able to see all documents that they can see, because we do in 
fact have jurisdiction, as the distinguished gentleman from 
Massachusetts did say, under certain elements, certain laws, 
but also on the human rights violations as well. It is just 
imperative that we get to the bottom of what happened, and I 
think there is no better Committee on the question of the law 
and of course the integrity of the process than this Judiciary 
Committee, and I would ask my colleagues to support H. Res. 700 
of Mr. Conyers, and I thank them for supporting the Conyers-
Jackson Lee amendment dealing with the----
    Chairman Sensenbrenner. The time of the gentlewoman has 
once again expired.
    Ms. Jackson Lee. I yield back.
    Chairman Sensenbrenner. Are there further amendments?
    Hearing none, the question is on the motion to report the 
resolution of inquiry, H. Res. 700, adversely, as amended. All 
in favor will say aye. Opposed no. The ayes appear to have it.
    Mr. Conyers. I request a record vote, Mr. Chairman.
    Chairman Sensenbrenner. A record vote is requested. The 
question is on the motion to report H. Res. 700 adversely, as 
amended. All in favor will as your names are called answer aye. 
Those opposed no, and the Clerk will call the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde votes aye.
    Mr. Coble.
    [no response.]
    The Clerk. Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith votes aye.
    Mr. Gallegly.
    [no response.]
    The Clerk. Mr. Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte votes aye.
    Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot votes aye.
    Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins votes aye.
    Mr. Cannon.
    [no response.]
    The Clerk. Mr. Bachus.
    [no response.]
    The Clerk. Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler votes aye.
    Mr. Green.
    [no response.]
    The Clerk. Mr. Keller.
    Mr. Keller. Aye.
    The Clerk. Mr. Keller votes aye.
    Ms. Hart.
    [no response.]
    The Clerk. Mr. Flake.
    [no response.]
    The Clerk. Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence votes aye.
    Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes votes aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King votes aye.
    Mr. Carter.
    Mr. Carter. Aye.
    The Clerk. Mr. Carter votes aye.
    Mr. Feeney.
    [No response.]
    The Clerk. Ms. Blackburn.
    [no response.]
    The Clerk.Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers votes no.
    Mr. Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman votes no.
    Mr. Boucher.
    [no response.]
    The Clerk. Mr. Nadler.
    [no response.]
    The Clerk. Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott votes no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt votes no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren votes no.
    Ms. Jackson Lee.
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee votes no.
    Ms. Waters.
    Ms. Waters. No.
    The Clerk. Ms. Waters votes no.
    Mr. Meehan.
    [no response.]
    The Clerk. Mr. Delahunt.
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt votes no.
    Mr. Wexler.
    [no response.]
    The Clerk. Ms. Baldwin.
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin votes no.
    Mr. Weiner.
    [no response.]
    The Clerk.Mr. Schiff.
    Mr. Schiff. No.
    The Clerk. Mr. Schiff votes no.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez votes no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman votes aye.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote.
    The gentleman from Massachusetts, Mr. Meehan.
    Mr. Meehan. No.
    The Clerk. Mr. Meehan votes no.
    Chairman Sensenbrenner. The gentlewoman from Pennsylvania, 
Ms. Hart.
    Ms. Hart. Aye.
    The Clerk. Ms. Hart votes aye.
    [11:00 a.m.]
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green aye.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble aye.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to cast or change their votes?
    If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 15 ayes and 12 noes.
    Chairman Sensenbrenner. And the motion to report adversely 
is agreed to. Without objection, the resolution will be 
reported adversely to the House in the form of a single 
amendment in the nature of a substitute incorporating the 
amendment adopted here today. Without objection, the staff is 
directed to make any technical and conforming changes. And all 
Members will be given 2 days, as provided by the rules, in 
which to submit additional dissenting, supplemental, or 
minority views.
                            Dissenting Views

    On April 28, 2004, 60 Minutes II aired photographs of 
detainees in American-run Abu Ghraib prison outside of Baghdad, 
Iraq. These photograph depicted men wearing hoods, stacked 
naked in pyramids, sexually abused, and threatened with attack 
dogs, casting doubt upon the nation and the world's view of the 
United States as a human rights leader was forever changed. In 
the nearly 4 months since this tragedy became public, the 
picture of what has happened in American run prison facilities 
abroad has only worsened. A recent report found approximately 
300 allegations of abuse,\1\ and ongoing investigations will 
likely turn up more. In fact, the press continues to uncover 
more stories, each more depraved than the next, some of which 
even involve the use of attack dogs on children.\2\
---------------------------------------------------------------------------
    \1\ Final Report of the Independent Panel to Review Department of 
Defense Detention Operations, August 2004, at http://
www.defenselink.mil/news/Aug2004/d20040824finalreport.pdf.
    \2\ Josh White and Thomas E. Ricks, Iraqi Teens Abused at Abu 
Ghraib, Report Finds, Wash. Post, Aug. 24, 2004 at A1.
---------------------------------------------------------------------------
    As members of the Judiciary Committee, we were even more 
ashamed when it became apparent that the Justice Department and 
its Office of Legal Counsel were twisting and distorting well 
settled law in order to shield the Administration from any 
liability for these acts. This resolution was drafted to 
request all the documents produced in that effort.
    We strongly dissent from this Committee's decision to 
adversely report H. Res. 700. Those Office of Legal Counsel 
memoranda that have been either leaked to the press or released 
by the White House detail an intricate, though faulty, argument 
for why tortuous treatment of prisoners is not barred by 
American or international law. It is this Committee's duty to 
trace the evolution of these documents to discover who 
commissioned these documents and whether the blank check given 
to the Administration under their rationale was ever used. We 
are gravely disappointed that this Committee shirked that 
critical oversight responsibility.

A. THE HISTORY OF H. RES. 700 AND OTHER CONGRESSIONAL OR ADMINISTRATION 
                               INQUIRIES

    H. Res. 700 was introduced on June 25, 2004 by Congressman 
Conyers and 45 cosponsors. It directed the Attorney General to 
transmit to the House of Representatives all documents in his 
possession relating to the treatment of prisoners and detainees 
in Iraq, Afghanistan and Guantanamo Bay. On July 21, 2004, the 
resolution was reported unfavorably by the Committee on a 
party-line vote of 15 to 12.
    While there have been a few hearings in the House and 
Senate about abuse at Abu Ghraib, none have taken a systematic 
review of the circumstances, including legal justifications, 
leading to the abuse. Those hearings dealt with the military 
chain of command and reviewed Maj. Gen. Taguba's report issued 
in March; \3\ they did not unveil new information, nor did they 
address the myriad issues that this resolution would have. Most 
importantly, H. Res. 700 would have garnered all legal advice 
about the international laws of war and U.S. torture statutes 
given to the Administration. At this time, no body has reviewed 
how such faulty legal opinions could have been generated by 
such a prestigious office, nor how those opinions affected the 
decision making of the Administration. The resolution also 
would have solicited any information about contractors and 
their role in prisons, solely held by the Department of 
Justice.
---------------------------------------------------------------------------
    \3\ Major General Antonio M. Taguba, Article 15-6 Investigation of 
the 800th Military Police Brigade.
---------------------------------------------------------------------------
    Ongoing Administration and military investigations are 
often cited as the reason for Congress' inaction. Again, it is 
important to note that none of those ongoing investigations are 
inquiring about the Justice Department's role in sanctioning 
such behavior. Because that is the sole purview of this 
Committee, this Committee's silence on the abuse leaves the 
Department's legal fiction unquestioned. While the 
Administration has promised to review these memoranda and to 
rewrite those sections that are ``overbroad''--as it terms the 
justification of torture \4\--there has been no comprehensive 
repudiation of the memoranda, and as of yet, the memoranda have 
not been revised or replaced.
---------------------------------------------------------------------------
    \4\ Mike Allen and Susan Schmidt, Memo on Interrogation Tactics is 
Disavowed, Wash. Post, June 23, 2004 at A1.
---------------------------------------------------------------------------
    This Committee's refusal to exercise its oversight role is 
not unique. Every attempt to review these serious charges of 
abuse and inhuman treatment on a bipartisan basis has been 
rejected, and with each request that has been made to them, the 
House Republicans have responded by challenging the patriotism 
of those who question the tactics of the administration.\5\
---------------------------------------------------------------------------
    \5\ See, for example, ``There are well over 140 criminal 
investigations into detainee abuse worldwide that are ongoing . . . we 
should not divert further executive branch resources and energy in the 
midst of a global war.'' Statement of Chairman Henry J. Hyde Before the 
Committee on International Relations, July 15, 2004.
---------------------------------------------------------------------------

    B. RECENT RELEASE OF JUSTICE DEPARTMENT AND OTHER DEPARTMENTAL 
                               MEMORANDA

    On, June 23, 2004, the White House and Department of State 
released a number of documents relating to the treatment of 
detainees. There are also a number of memoranda that have been 
leaked and distributed on the Internet. Those drafted by the 
Justice Department, or drafted on its advice, include:

         LJanuary 22, 2002, Department of Justice 
        memorandum to Alberto Gonzales regarding ``Application 
        of Treaties and Laws to al Qaeda and Taliban 
        Detainees''

         LFebruary 1, 2002, Attorney General Letter to 
        President regarding status of Taliban detainees

         LFebruary 7, 2002, Department of Justice 
        memorandum regarding ``Status of Taliban forces Under 
        Article 4 of the Third Geneva Convention of 1949''

         LFebruary 7, 2002, Presidential memorandum 
        regarding ``Humane Treatment of al Qaeda and Taliban 
        Detainees''

         LFebruary 26, 2002, Department of Justice 
        memorandum regarding ``Potential Legal Constraints 
        applicable to Interrogations of Persons Captured by 
        U.S. Armed Forces in Afghanistan''

         LAugust 1, 2002, Department of Justice letter 
        regarding application of Convention Against Torture and 
        Rome Statute on the International Criminal Court

         LAugust 1, 2002, Department of Justice 
        memorandum regarding ``Standards of Conduct for 
        Interrogation under 18 U.S.C. Sec. Sec. 2340-2340A.''

    In tandem, these documents argue that 1) the Geneva 
Conventions and other international laws banning torture do not 
apply to our detainees, 2) if they do, they can be construed so 
narrowly that events such as those at Abu Ghraib are not 
legally `torture,'' and 3) even if these acts could be defined 
as ``torture,'' the Administration and its military are not 
liable under the President's Commander-in-chief authority and 
other defenses.
    The Justice Department vehemently refused to publicly 
release these documents in their entirety, despite the fact 
that several had been leaked to the press and widely 
distributed on the Internet.\6\ The Attorney General stated 
before the Senate Judiciary Committee that, ``I believe it is 
essential to the operation of the executive branch that the 
president have the opportunity to get information from the 
attorney general that is confidential.'' \7\ Two weeks later, 
the President released 13 documents to the press, including 
those listed above and others from the Department of Defense 
detailing the approval of specific interrogation techniques.
---------------------------------------------------------------------------
    \6\ Susan Schmidt, Ashcroft Refuses to Release '02 Memo, Wash. 
Post, June 9, 2004 at A1.
    \7\ DOJ Oversight: Terrorism and Other Topics, Hearing Before the 
Senate Judiciary Committee, 108th Cong., (June 8, 2004) (statement of 
Attorney General John D. Ashcroft).
---------------------------------------------------------------------------

     C. PUBLICLY RELEASED MEMORANDA CONTRAVENE LONG ESTABLISHED LAW

    Those memos that are now publicly available show marked 
deviation from long established law. As David B. Rivkin Jr., 
former White House lawyer in the Reagan administration, and a 
supporter of the August 1, 2002 memo himself admitted, ``If you 
line up 1,000 law professors, only six or seven would sign up 
to it.'' \8\ In fact, attorneys have come out in full force 
against the memoranda's legal conclusions. Over 300 attorneys 
have signed a bipartisan Lawyers' Statement on Bush 
Administration's Torture Memos that denounces the legal 
arguments in the memo, including 12 former judges, eight former 
American Bar Association Presidents, and countless human rights 
professors and advocates.\9\ Also, the American Bar Association 
has passed a resolution condemning any ``endorsement or 
authorization of [torture] by government lawyers, officials and 
agents.'' \10\
---------------------------------------------------------------------------
    \8\ R. Jeffrey Smith, Slim Legal Grounds for Torture Memos, Wash. 
Post, July 4, 2004 at A12.
    \9\ Letter available at www.allianceforjustice.org.
    \10\ ABA, Resolution on the use of torture or other cruel, inhuman 
or degrading treatment or punishment upon persons within the custody or 
under the physical control of the United States government, at 4-5.
---------------------------------------------------------------------------
    Because these documents are so far afield of the legal 
consensus in the American and International legal community, an 
investigation into their creation and to what extent they 
evolved and were utilized is necessary.

        1. LThe memoranda incorrectly conclude that 
        international protections do not apply to many 
        detainees in U.S. custody.

    The memoranda advise the President that the Geneva 
Conventions do not apply to al Qaeda or Taliban detainees. The 
Third Geneva Convention applies to recognized soldiers, or 
``prisoners of war,'' and the Fourth Convention applies to all 
civilians.\11\ The memoranda argue that because these groups 
are technically neither, and are instead ``enemy combatants'' 
or ``illegal combatants,'' they do not receive any protections. 
On February 7, 2002, the President affirmed this logic and 
announced that the treatment of neither group would be governed 
by the Conventions, although the detainees would be treated 
``consistent'' with such principles.\12\
---------------------------------------------------------------------------
    \11\ Geneva Convention (III) Relative to the Treatment of Prisoners 
of War, August 12, 1949, 6 U.S.T. 3317, 75 U.N.T.S. 135; Geneva 
Convention (IV) Relative to the Protection of Civilian Persons in Time 
of War, August 12, 1949, 6 U.S.T. 351, 75 U.N.T.S. 287.
    \12\ Memorandum from the President of the United States, to the 
Vice President, et. al, Regarding the Humane Treatment of al Qaeda and 
Taliban Detainees (February 7, 2002).
---------------------------------------------------------------------------
    However, long standing international interpretations of the 
Geneva Conventions state that a person ``cannot fall outside of 
the law,'' and that each individual must fall under either the 
Third or Fourth Conventions.\13\ Even if the Administration can 
withhold prisoner of war status from the detainees, they are 
bound to treat them with the respect afforded to citizens under 
the Fourth Convention. As the International Committee of the 
Red Cross stated in its commentary to the Fourth Convention:
---------------------------------------------------------------------------
    \13\ Summary of International and U.S. Law Prohibiting Torture and 
Other Ill-Treatment of Persons in Custody,'' Human Rights Watch, May 
24, 2004 (citing Geneva Convention III & IV, Art. 3).

        Every person in enemy hands must have some status under 
        international law: he is either a prisoner of war and, 
        as such, covered by the Third Convention, a civilian 
        covered by the Fourth Convention, [or] a member of the 
        medical personnel of the armed forces who is covered by 
        the First Convention. There is no intermediate status; 
        nobody in enemy hands can fall outside the law.\14\
---------------------------------------------------------------------------
    \14\ International Committee of the Red Cross, ``Commentary: IV 
Geneva Convention Relative to the Protection of Civilian Persons in 
Time of War,'' (Geneva: 1958).

    Therefore, the detainees are protected by Common Article 3 
of the Conventions, which prohibit ``[v]iolence to life and 
person, in particular murder of all kinds, mutilation, cruel 
treatment and torture; . . . outrages upon personal dignity, in 
particular humiliating and degrading treatment.'' \15\
---------------------------------------------------------------------------
    \15\ See supra note 12.
---------------------------------------------------------------------------
    Even if the argument that enemy combatants do not fall 
under either the Third or Fourth Conventions is accepted, 
detainees are clearly afforded protection against torture and 
other degrading treatment. Customary law, adopted through 
tradition of the United States and other nations, has 
established the common practice that these protections are 
larger than technical legal definitions. And at the very least, 
Article 75 of Protocol 1 of the Geneva Conventions covers the 
rights of anyone captured on the battlefield and clarifies the 
responsibilities of nations to civilians, military forces, non-
state aggressors and others caught during a war. It prohibits 
murder, ``torture of all kinds, whether physical or mental,'' 
``corporal punishment,'' and ``outrages upon personal dignity, 
in particular humiliating and degrading treatment, . . . and 
any form of indecent assault.''\16\ Because these provisions 
cover everyone, whether civilian, military, or somewhere in 
between, torture and other degrading treatment is banned 
regardless of how the U.S. classifies the detainees. While the 
United States has not officially adopted Protocol 1, ``article 
75 is widely considered to be universally binding as customary 
international law.'' \17\
---------------------------------------------------------------------------
    \16\ Protocol (1) Additional to the Geneva Conventions of 12 Aug. 
1949, and Relating to the Protection of Victims of International Armed 
Conflicts, art. 75, 1125 U.N.T.S. 3.
    \17\ Jennifer K. Elsea, ``U.S. Treatment of Prisoners in Iraq: 
Selected Legal Issues,'' Congressional Research Service, May 24, 2004, 
note 15. See also Derek Jinks, The Declining Significance of POW 
Status, 45 Harv. Int'l. L.J. 367 (2004) (arguing that all detainees are 
protected by common article 3 and article 75 of Protocol 1).
---------------------------------------------------------------------------
    Finally, what is sorely missing from this analysis is the 
recognition that the Convention Against Torture, and Other 
Cruel, Inhuman or Degrading Treatment or Punishment prohibits 
the torture of anyone at anytime, and does not differentiate 
amongst captives.\18\ Regardless of whether the Geneva 
Conventions apply, torture is prohibited by international law 
by this treaty.
---------------------------------------------------------------------------
    \18\ United Nations 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, U.N. Doc. A/39/51 (1984).

        2. LThe memoranda narrowly redefine torture in ways 
---------------------------------------------------------------------------
        unsupported by law.

    The August 1, 2002 Department of Justice memo creates a 
definition of torture that is contrary to international law, 
domestic law and legislative intent. The memo claims that 
torture consists of ``extreme acts'' under U.S. law, inflicting 
severe pain that ``must be of an intensity akin to that which 
accompanies serious physical injury such as death or organ 
failure. Severe mental pain requires suffering not just at the 
moment of infliction but it also requires lasting psychological 
harm, such as seen in mental disorders like posttraumantic 
[sic] stress disorder.'' \19\ However, 18 U.S.C. Sec. 2340-
2340A, the Federal law executing the U.N. Convention Against 
Torture,\20\ does not use the word ``extreme'' or otherwise 
suggest the conclusion that ``those acts must be of an extreme 
nature to rise to the level of torture within the meaning of 
Section 2340A and the Convention.'' \21\ Instead, the law 
provides:
---------------------------------------------------------------------------
    \19\ Memorandum from the Department of Justice to Alberto R. 
Gonzales, Counsel to the President, Standards of Conduct for 
Interrogation Under 18 U.S.C Sec. Sec. 2340-2340A, (August 1, 2002) at 
46.
    \20\ Convention Against Torture supra note 19.
    \21\ Memorandum, supra note 20 at 1.

        (1) ``torture'' means an act committed by a person 
        acting under the color of law specifically intended to 
        inflict severe physical or mental pain or suffering 
        (other than pain or suffering incidental to lawful 
        sanctions) upon another person within his custody or 
---------------------------------------------------------------------------
        physical control;

        (2) ``severe mental pain or suffering'' means the 
        prolonged mental harm caused by or resulting from--(A) 
        the intentional infliction or threatened infliction of 
        severe physical pain or suffering; (B) the 
        administration or application, or threatened 
        administration or application, of mind-altering 
        substances or other procedures calculated to disrupt 
        profoundly the senses or the personality; (C) the 
        threat of imminent death; (D) the threat that another 
        person will imminently be subjected to death, severe 
        physical pain or suffering, or the administration or 
        application of mind-altering substances or other 
        procedures calculated to disrupt profoundly the senses 
        or personality.'' \22\
---------------------------------------------------------------------------
    \22\ 18 U.S.C. 2340A (2002).

There is nothing in this definition that requires the sensation 
of organ failure or death nor requires mental harm rising to 
the level of a disorder to invoke the law's protections. In 
fact, the United States has repeatedly condemned far lesser 
acts in other countries as torture or cruel and inhuman 
treatment.\23\
---------------------------------------------------------------------------
    \23\ State Department Country Reports on Human Rights, 2003. The 
reports condemn beatings, blindfolding, burning, denial of food and 
water, dog attacks dripping water on a person's head, exposure to 
excessive heat and cold, forced painful positions, humiliation, sexual 
assaults, slapping, sleep deprivation, solitary confinement, stripping, 
water-boarding, suspension from the limbs and threats.
---------------------------------------------------------------------------
    Finally, it is important to note that the Convention 
Against Torture and Other Cruel, Inhuman or Degrading Treatment 
or Punishment prohibits ``other cruel, inhuman or degrading 
treatment or punishment.'' Because the memoranda are mostly 
concerned with avoiding criminal prosecution in the United 
States, they only attempt to redefine torture--the only thing 
that is criminalized under the law. They do not mention that 
even if the bad actors can avoid the technical term of torture, 
the United States as a country would be in violation of this 
international agreement for lesser acts of degradation.

        3. LThe memoranda wrongfully excuse the Administration 
        from liability under the Commander-in-chief-clause of 
        the Constitution.

    The August 1, 2002 memorandum also argues that prosecution 
of a torture case under section 2340A would constitute an 
unconstitutional infringement of the President's ultimate 
authority over interrogations of enemy combatants pursuant to 
his Commander-in-Chief powers.\24\ In essence, this means that 
there is no limit to actions taken under the President's 
military authority, not even by Congress or the courts.\25\ It 
is a prescription for arbitrary, dictatorial power that no 
society faithful to the rule of law can accept; our country 
certainly cannot. That notion not only contravenes the basic 
tenet of separation of powers, but also the vast majority of 
international human rights norms and U.S. legal protections 
enshrined over the last century. Notably, the memorandum does 
not even mention Youngstown Sheet & Tube Co. v. Sawyer \26\, 
where the Supreme Court held that the President's Commander-in-
chief authority did not trump all other laws and Constitutional 
provisions.\27\ As Justice Jackson stated in his famous 
concurrence, ``when the President takes measures incompatible 
with the expressed or implied will of Congress, his power is at 
its lowest ebb . . . Presidential claim to [such] a power . . . 
must be scrutinized with caution, for what is at stake is the 
equilibrium established by our constitutional system.'' \28\ 
The memorandum also omits Missouri v. Holland, a case in which 
the Supreme Court held that absent some other constitutionally 
explicit authority to the contrary, international treaties 
created under Article 6 of the constitution are binding 
law.\29\
---------------------------------------------------------------------------
    \24\ Memorandum, supra note 20 at 6.
    \25\ Id at 36. ``Any effort by congress to regulate the 
interrogation of battlefield combatants would violate the 
Constitution's sole vesting of the Commander-in-Chief authority in the 
President . . . Congress can no more interfere with the President's 
conduct of the interrogation of enemy combatants than it can dictate 
strategic or tactical decisions on the battlefield.'' Id. at 39.
    \26\ 343 U.S. 579 (1952).
    \27\ See id. at 587 (invalidating an Executive Order directing the 
Secretary of Commerce to seize and run privately owned steel mills for 
the benefit of the military).
    \28\ Id. at 637-38. (Jackson, J., concurring).
    \29\ Missouri v. Holland, 252 U.S. 416, 432 (1920) (``. . . the 
power to make treaties is delegated expressly, and by Article 6 
treaties made under the authority of the United States, along with the 
Constitution and laws of the United States made in pursuance thereof, 
are declared the supreme law of the land.'')(holding that states' 10th 
Amendment rights could not overrule an international treaty protecting 
birds).
---------------------------------------------------------------------------
    The Supreme Court recommitted this system of checks and 
balances in Hamdi v. Rumsfeld, decided on June 28, 2004. 
Justice O'Connor said the Government's argument that courts 
were required to forgo examination of the enemy combatant case 
``cannot be mandated by any reasonable view of separation of 
powers, as this approach serves only to condense power into a 
single branch of government. We have long since made clear that 
a state of war is not a blank check for the President when it 
comes to the rights of the Nation's citizens.\30\ Whatever 
power the United States Constitution envisions for the 
Executive in its exchanges with other nations or with enemy 
organizations in times of conflict, it most assuredly envisions 
a role for all three branches when individual liberties are at 
stake.'' \31\ In view of what we have learned in recent months 
and weeks about the inhumane and shameful treatment inflicted 
on detainees in our custody, the insistence in the August 2, 
2002 memo that no limits can be imposed on the President in his 
capacity as Commander-in-Chief must be rejected.
---------------------------------------------------------------------------
    \30\ Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2650 (2004)(citing 
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).
    \31\ Id. (citing Mistretta v. United States, 488 U.S. 361, 380 
(1989)(``. . . the separation of powers into three coordinate Branches 
is essential to the preservation of liberty''); Home Building & Loan 
Assn. v. Blaisdell, 290 U.S. 398, 426 (1934)(``. . . even the war power 
does not remove constitutional limitations safeguarding essential 
liberties.''))
---------------------------------------------------------------------------
    We strongly believe that the President may not use his 
Commander-in-chief authority to override lawfully created 
international treaties or portions of the United States Code; 
in the present case, the Geneva Conventions, the Convention 
Against Torture, and 18 U.S.C. Sec. Sec. 2340-2340A.

        4. LThe memoranda incorrectly invoke the ``necessity 
        defense'' in justifying torture.

    Similarly, the August 1, 2002 memorandum's analysis of the 
availability of the necessity defense is erroneous. Article 2 
of the Convention Against Torture clearly says that torture is 
always prohibited; there are no exceptions for wartime 
situations or states of emergency.\32\ The crime of torture, 
following the convention, is codified in the U.S. Code, yet the 
memo says that the necessity defense is available because 
``Congress has not explicitly made a determination of values 
vis-a-vis torture.''\33\ The analysis concludes that because 
Congress did not specifically exclude the necessity defense in 
the enacting statute, it must have intended to include it.\34\ 
This argument justifying the bizarre reading of section 2340 is 
illogical, and no case law or legislative history is cited to 
support this interpretation.
---------------------------------------------------------------------------
    \32\ Convention Against Torture, supra note 19, art. 2. (``No 
exceptional circumstances whatsoever, whether a state of war or a 
threat of war, internal political instability or any other public 
emergency may be invoked as a justification of torture.'')
    \33\ Memorandum, supra note 20 at 41.
    \34\ Id. at note 23.

        5. LThe memoranda incorrectly use a ``self-defense'' 
---------------------------------------------------------------------------
        theory to justify torture.

    Finally the August 1, 2002 memorandum takes self-defense, 
which is available to individuals in our criminal law, and 
bootstraps it into ``self-defense'' of nation in a period of 
war. The argument is that the U.S. was attacked by Al Qaeda and 
can, therefore, can be excused for torturing an individual in 
an interrogation because Al Qaeda may strike again.\35\ Under 
this theory, torture of the one, may prevent harm to many. 
However, this contradicts the laws on armed conflict, 
especially Article 13 of the 3rd Geneva Convention that says no 
nation can ever torture or abuse a person in detention during 
an armed conflict.\36\ One cannot transpose a rule of law that 
applies to individuals facing imminent attack onto a nation 
under a general threat of terrorist attack at some unknown 
point in the future, simply because it is politically 
convenient to the legal argument one wishes to create. Here, 
Congress has adopted the torture convention, yet the OLC argues 
that the President can act beyond the limits of that 
legislation. As noted, Justice O'Connor has now clarified that 
the President is not beyond the checks and balances of our 
separation of powers system, even and especially during this 
war on terrorism.\37\
---------------------------------------------------------------------------
    \35\ Id. at 42-46.
    \36\ Convention (III) Relative to the Treatment of Prisoners of 
War, Aug. 12, 1949, art. 13, 6 UST 3316.
    \37\ See supra note 31 and accompanying text.
---------------------------------------------------------------------------

 D. THE PUBLICLY RELEASED MEMORANDA ARE NOT A COMPLETE PICTURE OF WHAT 
       THE ADMINISTRATION RECEIVED AS ADVICE ON THE LAWS OF WAR.

    During the markup of H. Res. 700, Chairman Sensenbrenner 
revealed a letter from the Justice Department assuring him that 
``the Administration has released all unclassified, final 
written opinions from the Department addressing the legality of 
interrogation techniques used in interrogations conducted by 
the United States of al Qaeda and Taliban enemy combatants.'' 
\38\ He then declared this resolution unnecessary. However, H. 
Res. 700 would have requested a much larger universe of 
documents than professed available by the Justice Department. 
For example, it would acquire 1) drafts as well as final 
documents; 2) classified as well as unclassified documents; 3) 
all legal issues surrounding the applicability of torture laws 
and conventions, not just the legality of interrogation 
tactics; 4) all detainees in Iraq, Afghanistan and Guantanamo 
Bay, not just al Qaeda and the Taliban; and 5) all documents in 
the Attorney General's possession, not just those that 
originated in his department.
---------------------------------------------------------------------------
    \38\ Letter to the Honorable F. James Sensenbrenner, Jr., Chairman, 
House Judiciary Committee from William E. Moschella, Assistant Attorney 
General (July 20, 2004) (on file with Committee Majority office).
---------------------------------------------------------------------------
    There is no reason to believe that the memoranda the White 
House released represent a complete accounting of all Justice 
Department documentation of its legal advice to the President. 
Indeed the July 20th letter to the Chairman appears to 
implicitly concede as much. Until the moment of their selective 
release to the press, the Administration claimed that their 
release would not only violate the privilege between the 
President and his advisors, but aid terrorists in their ability 
to resist future interrogations.\39\
---------------------------------------------------------------------------
    \39\ DOJ Oversight: Terrorism and Other Topics, Hearing Before the 
Senate Judiciary Committee, 108th Cong., (June 8, 2004) (statement of 
Attorney General John D. Ashcroft).
---------------------------------------------------------------------------
    Further, the selection of documents that have been released 
leave large gaps not only in time, but in substance. H. Res. 
700 would have filled these holes. For example:

         LThe President's February 7, 2002 memorandum 
        directing that detainees be treated humanely commands 
        this ``humane'' treatment only ``to the extent 
        appropriate and consistent with military necessity.'' 
        Because this is not a term recognized by law, it is 
        unclear to what extent the Justice Department or the 
        Administration found it militarily necessary to act 
        inhumanely.

         LThe President's February 7, 2002 memorandum 
        notes that he has ``the authority under the 
        Constitution to suspend Geneva as between the United 
        States and Afghanistan, but [he] decline[d] to exercise 
        that authority at [that] time.'' It is unclear whether 
        the President ever exercised that authority.

         LThe Justice Department continued to debate 
        whether detainees could be tortured and what the legal 
        ramifications would be long after the President's 
        February 7, 2002 directive to treat detainees 
        consistent wit the Geneva Conventions. This implies 
        that further decisions were made by the President that 
        are not reflected in the memoranda that are currently 
        available.

         LThe memoranda from the Justice Department 
        abruptly stop in August 2002. It is highly unlikely 
        that the Justice Department has not issued any legal 
        advice on the laws of war and how they relate to 
        detention and interrogation over the last 2 years.

         LThe interrogation-specific documents stop in 
        April 2003 and do not cover practices at Abu Ghraib and 
        other military prisons in Iraq.

         LThere is a major discrepancy in the released 
        documents that show that in December 2002, Secretary 
        Rumsfeld approved the use of the documented abusive 
        techniques that are in fact illegal. Secretary Rumsfeld 
        later rescinded his approval of these techniques on 
        Guantanamo detainees, yet these techniques later 
        featured prominently in the documented abuses at Abu 
        Ghraib.

         LThe documents that were released by DOD are 
        incomplete and raise many questions in terms of how the 
        illegal tactics that were approved in Guantanamo were 
        later approved and applied in Afghanistan and Iraq, 
        resulting in the torture and other mistreatment of 
        detainees in those places.

         LThe memos that were released to Congress 
        concern the DOD interrogation techniques, but nothing 
        has been provided in terms of CIA interrogation 
        practices.

                             E. CONCLUSION

    This Committee has once again abdicated its oversight role. 
This time, we fear the repercussions will long be felt through 
the damage to our international reputation, the risk to our own 
troops when captured by the enemy, and the violation of this 
country's conscience. For these reasons, we dissent from the 
Committee's unfavorable reporting of H. Res. 700.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   William D. Delahunt.
                                   Robert Wexler.

                                 
