October 5, 2005 CONGRESSIONAL RECORD — SENATE S11061 He has spent his entire 35 years of ization bill that deals with retirement because I asked for a briefing by the In- Senate service working in the Dis- pay for the military, with pay raises telligence Director of this country. Of- bursing Office. That in itself is a com- for the military, with all kinds of pro- fended? I am sorry he is offended. mendable feat. grams for the veterans, the National f In 1970, Tim began his career as a Guard and Reserve. The Appropriations payroll clerk and was promoted to pay- Committee does not have the benefit of RESERVATION OF LEADER TIME roll supervisor 6 years later. He contin- that. They will be working, in effect, The ACTING PRESIDENT pro tem- ued to receive promotions and in 1998 on last year’s law. pore. Under the previous order, the became the Senate’s financial clerk. I do not know how we could ever—I leadership time is reserved. Tim’s career in the Disbursing Office am sure it has happened sometime in f has been stellar. You could always the far distant past. I am sure it has count on Tim and his staff for topnotch happened. I hope it does not happen in DEPARTMENT OF DEFENSE service and to accommodate Members the future that they try to do this APPROPRIATIONS ACT, 2006 and staff. jury-rigged system, where you take an The ACTING PRESIDENT pro tem- Tim and his wife Pat met in high appropriations bill without having pore. Under the previous order, the school, got married, and have two chil- done an authorization bill. Senate will resume consideration of dren, Matthew and Lory. Matt and There are matters in that authoriza- H.R. 2863, which the clerk will report. Lory have provided Tim and Pat with tion bill dealing with prisoner abuse. A The assistant legislative clerk read four grandchildren—two boys and two number of people want to offer amend- as follows: girls. ments. They cannot offer an amend- A bill (H.R. 2863) making appropriations Tim plans to spend the first 6 months ment on the appropriations bill dealing trying to get his sea legs, enjoying for the Department of Defense for the fiscal with prisoner abuse. year ending September 30, 2006, and for other some ‘‘downtime’’ with his family and I see my friend, the Senator from purposes. playing a little golf. He and Pat then South Carolina, in the Chamber, the Pending: plan to do some traveling. They want mover of the legislation to have a look to go to Alaska to see what is hap- Bayh amendment No. 1933, to increase by at what has gone on in Abu Ghraib and $360,800,000 amounts appropriated by title IX pening there. other prison facilities the military has. I salute Tim on his service to the for Other Procurement, Army, for the pro- I think the author of the bill, Senator curement of armored Tactical Wheeled Vehi- Senate and congratulate him on a job MCCAIN from Arizona, may have a lit- cles for units deployed in Iraq and Afghani- well done. He certainly was part of the tle bit of expertise on prisoner of war stan, and to increase by $5,000,000 amounts Senate family and always will be. I abuse. I think he may have a little bit appropriated by title IX for Research, Devel- hope he enjoys his retirement. of authenticity when he comes before opment, Test and Evaluation, Defense-Wide, f for industrial preparedness for the imple- the Senate and says he wants to take a mentation of a ballistics engineering re- IRAQ AND THE DEPARTMENT OF look at that. search center. DEFENSE AUTHORIZATION BILL JOHN MCCAIN spent years of his life McCain amendment No. 1978, to prohibit Mr. REID. Mr. President, let me say in a prison camp in Vietnam, not days, the use of funds to pay salaries and expenses 1 this. Ambassador Negroponte came to weeks, months but years—try 5 ⁄2 and other costs associated with reimbursing the Senate the last time this past May. years—most of it in solitary confine- the Government of Uzbekistan for services ment. So he wants to offer an amend- rendered to the United States at Karshi- Did he talk anything about what was Khanabad airbase in Uzbekistan. going on with intelligence in Iraq or ment. He cannot do it unless he gets unanimous consent that he can have a Reed/Hagel amendment No. 1943, to trans- what was going on in Iraq, period? No. fer certain amounts from the supplemental He talked about international ter- vote on it. He can offer it, but it falls authorizations of appropriations for Iraq, Af- rorism. It is not as if we have been similar to everything else. But I will ghanistan, and the Global War on Terrorism bothering the Ambassador having him bet he is going to get unanimous con- to amounts for Operation and Maintenance, come here all the time. sent because we want him to be able to Army, Operation and Maintenance, Marine But I am disappointed to have to re- debate this issue. Who has more stand- Corps, Operation and Maintenance, Defense- port to the American people this is ing than the Senator from Arizona to wide activities, and Military Personnel in what is going on with this administra- raise this as an issue? order to provide for increased personnel Mr. President, we—I repeat—had a strengths for the Army and the Marine Corps tion: You never get to what the issue for fiscal year 2006. is. Put it off. Do not talk about it. Stay scheduled briefing at 3 o’clock today to Warner/Levin modified amendment No. the course. find out what is going on in Iraq deal- 1955, to authorize appropriations for fiscal In Iraq we have some problems: al- ing with intelligence. We have never, year 2006 for military activities of the De- most 2,000 dead Americans; 15,000, 16,000 ever had a briefing by Negroponte since partment of Defense, for military construc- wounded, many of them very badly. he has assumed his duties as head of tion, and for defense activities of the Depart- I in no way say this to disparage the the so-called DNI on April 21 of this ment of Energy, to prescribe personnel managers of this bill, one of whom is a year. We have not been briefed by him strengths for such fiscal year for the Armed winner of the Congressional Medal of on Iraq since he assumed his position. Forces. Honor, Senator DAN INOUYE; the other So I do not think we are being greedy The ACTING PRESIDENT pro tem- served valiantly in World War II as a taking an hour of his time. pore. The Senator from Arizona is rec- pilot. But their job would be much Ducking debates about our national ognized. easier if they had a Defense authoriza- defense has become too topical and AMENDMENT NO. 1977 tion bill prior to coming here to this typical in this country because we are Mr. MCCAIN. Mr. President, from my floor with an appropriations bill. It unable to bring matters before this conversations with the Senator from makes their job, if not impossible, ex- floor. No amendments, no votes, no de- Alaska, the chairman, I believe he tremely difficult. bates—that is not the way to do a bill agrees we will move forward; therefore, Let me explain what I am talking in the Senate. I call up amendment No. 1977, which is about. You authorize funding in the Why didn’t we finish the Defense au- filed at the desk. Congress, and then it goes to the all- thorization bill the first time? Because The ACTING PRESIDENT pro tem- important Appropriations Committee, we went to gun liability. So this proc- pore. Without objection, the pending and they determine what of the author- ess is unacceptable. We are a nation at amendments are set aside for the con- ization bill deserves money. That is ba- war. We have troops in Iraq, in Afghan- sideration of this amendment, which sically what it amounts to. There has istan. We have an opportunity to have the clerk will now report. to be some limit to spending, and that an open, honest debate about our na- The assistant legislative clerk read is what the Appropriation Committee’s tional defense. as follows: job is; to determine whether the money Our troops and the American people The Senator from Arizona [Mr. MCCAIN], should be spent. deserve better, and that is not what we for himself, Mr. GRAHAM, Mr. HAGEL, Mr. Well, here there is no authorization are having here. And the distinguished SMITH, and Ms. COLLINS, proposes an amend- bill. There is legislation in the author- majority leader said he was offended ment numbered 1977.

VerDate Aug 31 2005 05:52 Dec 28, 2006 Jkt 059060 PO 00000 Frm 00003 Fmt 0637 Sfmt 0634 E:\RECORDCX\T37X$J0E\S05OC5.REC S05OC5 hmoore on PROD1PC68 with CONG-REC-ONLINE S11062 CONGRESSIONAL RECORD — SENATE October 5, 2005 Mr. MCCAIN. Mr. President, I ask priations bill. We are only doing so be- theory, and our troops are not served unanimous consent that reading of the cause so far we have been unable to get by ambiguity. They are crying out for amendment be dispensed with. sufficient agreement to bring up the clarity. The Congress cannot shrink The ACTING PRESIDENT pro tem- Defense authorization bill. I have made from this duty. We cannot hide our pore. Without objection, it is so or- it very clear, over a long period of heads, pulling bills from the floor and dered. time, my feeling about how important avoiding votes. We owe to it our sol- The amendment is as follows: it is to take up and complete the au- diers during this time of war to take a (Purpose: Relating to persons under the de- thorization bill, but that is a subject stand. So while I would prefer to offer tention, custody, or control of the United for another day. I know good-faith ef- this amendment to the DOD authoriza- States Government) forts are being made on both sides to tion bill, I am left with no choice but At the appropriate place, insert the fol- try to get the authorization bill up. to offer it to this appropriations meas- lowing: But that has not happened so, there- ure. I would note that I am offering SEC. ll. UNIFORM STANDARDS FOR THE INTER- fore, we are addressing this issue. this amendment in accordance with the ROGATION OF PERSONS UNDER THE options afforded under rule XVI of the DETENTION OF THE DEPARTMENT By the way, I have had a preliminary OF DEFENSE. ruling that this amendment is germane Standing Rules of the Senate. The amendment I am offering com- (a) IN GENERAL.—No person in the custody because there is reference made to it in or under the effective control of the Depart- the House version of the appropriations bines the two amendments I previously ment of Defense or under detention in a De- bill. filed to the authorizing measure. To partment of Defense facility shall be subject The Senate has an obligation to ad- fight terrorism, we need intelligence. to any treatment or technique of interroga- dress the authorizing legislation, as it That much is obvious. What should tion not authorized by and listed in the has an obligation to deal with the issue also be obvious is that the intelligence United States Army Field Manual on Intel- we collect must be reliable and ac- ligence Interrogation. that apparently led to the bill being pulled from the floor, which is Amer- quired humanely, under clear stand- (b) APPLICABILITY.—Subsection (a) shall ards understood by all our fighting ica’s treatment of its detainees. not apply to with respect to any person in men and women. To do differently the custody or under the effective control of Several weeks ago, I received a letter the Department of Defense pursuant to a from CPT Ian Fishback, a member of would not only offend our values as Americans but undermine our war ef- criminal law or immigration law of the the 82nd Airborne Division at Fort fort, because abuse of prisoners harms, United States. Bragg, and a veteran of combat in Af- ONSTRUCTION not helps, in the war on terror. (c) C .—Nothing in this section ghanistan and Iraq, and a West Point shall be construed to affect the rights under First, subjecting prisoners to abuse the United States Constitution of any person graduate. Over 17 months, he struggled leads to bad intelligence, because in the custody or under the physical jurisdic- to get answers from his chain of com- under torture, a detainee will tell his tion of the United States. mand to a basic question: What stand- interrogator anything to make the SEC. ll. PROHIBITION ON CRUEL, INHUMAN, OR ards apply to the treatment of enemy pain stop. Second, mistreatment of our DEGRADING TREATMENT OR PUN- detainees? But he found no answers. prisoners endangers U.S. troops who ISHMENT OF PERSONS UNDER CUS- In his remarkable letter, he pleads TODY OR CONTROL OF THE UNITED might be captured by the enemy—if STATES GOVERNMENT. with Congress, asking us to take action not in this war, then in the next. And (a) IN GENERAL.—No individual in the cus- to establish standards to clear up the third, prisoner abuses exact on us a tody or under the physical control of the confusion, not for the good of the ter- terrible toll in the war of ideas, be- United States Government, regardless of na- rorists but for the good of our soldiers cause inevitably these abuses become tionality or physical location, shall be sub- and our country. Captain Fishback public. When they do, the cruel actions ject to cruel, inhuman, or degrading treat- closes his letter by saying: of a few darken the reputation of our ment or punishment. I strongly urge you to do justice to your (b) CONSTRUCTION.—Nothing in this section country in the eyes of millions. Amer- men and women in uniform. Give them clear shall be construed to impose any geo- ican values should win against all oth- standards of conduct that reflect the ideals graphical limitation on the applicability of ers in any war of ideas, and we can’t let they risk their lives for. the prohibition against cruel, inhuman, or prisoner abuse tarnish our image. Yet degrading treatment or punishment under This comes from a young captain in reports of detainee abuse continue to this section. the U.S. Army who has served his coun- emerge, in large part, I believe, be- (c) LIMITATION ON SUPERSEDURE.—The pro- try both in Iraq and Afghanistan and cause of confusion in the field as to visions of this section shall not be super- who says it in a far more eloquent fash- seded, except by a provision of law enacted what is permitted and what is not. This ion than I have ever been able to. By amendment will go a long way toward after the date of the enactment of this Act the way, I thank God every day that we which specifically repeals, modifies, or su- clearing up this confusion. persedes the provisions of this section. have men and women the caliber of The first part of the amendment (d) CRUEL, INHUMAN, OR DEGRADING TREAT- Captain Fishback serving in our mili- would establish the Army Field Manual MENT OR PUNISHMENT DEFINED.—In this sec- tary. I believe the Congress has a re- as the uniform standard for the inter- tion, the term ‘‘cruel, inhuman, or degrading sponsibility to answer this call, a call rogation of Department of Defense de- treatment or punishment’’ means the cruel, that has come not just from this one tainees. The Army Field Manual and unusual, and inhumane treatment or punish- brave soldier but from so many of our its various editions have served Amer- ment prohibited by the Fifth, Eighth, and men and women in uniform. We owe it ica well through wars against both reg- Fourteenth Amendments to the Constitution to them. We sent them to fight for us of the United States, as defined in the United ular and irregular foes. It embodies the States Reservations, Declarations and Un- in Afghanistan and Iraq. We placed ex- values Americans have embraced for derstandings to the United Nations Conven- traordinary pressure on them to ex- generations, while preserving the abil- tion Against Torture and Other Forms of tract intelligence from detainees, but ity of our interrogators to extract crit- Cruel, Inhuman or Degrading Treatment or then we threw out the rules that our ical intelligence from ruthless foes. Punishment done at New York, December 10, soldiers had trained on and replaced Never has this been more important 1984. them with a confusing and constantly than today in the midst of the war on Mr. MCCAIN. Mr. President, this changing array of standards. We de- terror. The Army Field Manual author- amendment would do two things: one, manded intelligence without ever izes interrogation techniques that have establish the Army Field Manual as clearly telling our troops what was per- proven effective in extracting life- the uniform standard for the interroga- mitted and what was forbidden. And saving information from the most tion of Department of Defense detain- when things went wrong, we blamed hardened enemy prisoners. It is con- ees; and, two, prohibit cruel, inhu- them, and we punished them. I believe sistent with our laws and, most impor- mane, and degrading treatment of pris- we have to do better than that. tantly, our values. Let’s not forget oners in the detention of the Govern- I can understand why some adminis- that al-Qaida sought not only to de- ment. It is pretty simple and straight- tration lawyers might have wanted am- stroy American lives on September 11, forward. biguity so that every hypothetical op- but American values, our way of life, Mr. President, I regret, of course, as tion is theoretically open, even those and all we cherish. all my colleagues do, that this amend- the President has said he does not want We fight not just to preserve our ment has to be brought up on an appro- to exercise. But war doesn’t occur in lives and liberties, but also American

VerDate Aug 31 2005 05:52 Dec 28, 2006 Jkt 059060 PO 00000 Frm 00004 Fmt 0637 Sfmt 0634 E:\RECORDCX\T37X$J0E\S05OC5.REC S05OC5 hmoore on PROD1PC68 with CONG-REC-ONLINE October 5, 2005 CONGRESSIONAL RECORD — SENATE S11063 values. We will never allow the terror- There being no objection, the mate- Rear Admiral John D. Hutson, USN ists to take those away. In this war— rial was ordered to be printed in the (Ret.), Major General Melvyn Montano, that we must win, that we will win—we RECORD, as follows: ANG (Ret.), Major General Robert H. must never simply fight evil with evil. Scales, USA (Ret.), Major General Mi- SEPTEMBER, 2005. chael J. Scotti, USA (Ret.), Brigadier DEAR SENATOR MCCAIN: We strongly sup- This amendment would establish the General David M. Brahms, USMC port your proposed amendments to the De- Army Field Manual as the standard for fense Department Authorization bill con- (Ret.), Brigadier General James Cullen, interrogation of all detainees held in cerning detainee policy, including requiring USA (Ret.), Brigadier General Evelyn DOD custody. The manual has been de- all interrogations of detainees in DOD cus- P. Foote, USA (Ret.), Brigadier Gen- veloped by the executive branch for its tody to conform to the U.S. Army’s Field eral David R. Irvine, USA (Ret.), Briga- Manual on Intelligence Interrogation (FM dier General Richard O’Meara, USA own uses, and a new edition, written to (Ret.), Brigadier General John K. take into account the needs of the war 34–52), and prohibiting the use of torture and cruel, inhuman and degrading treatment by Schmitt, USA (Ret.), Brigadier General on terror and with a new classified any U.S. government agency. Stephen N. Xenakis, USA (Ret.), Am- annex, is due to be issued soon. This The abuse of prisoners hurts America’s bassador/Former Vietnam POW Doug- amendment would not set the field cause in the war on terror, endangers U.S. las ‘‘Pete’’ Peterson, USAF (Ret.), manual in stone. It could be changed at service members who might be captured by Former Vietnam POW Commander any time. the enemy, and is anathema to the values Frederick C. Baldock, USN (Ret.), Americans have held dear for generations. Former Vietnam POW Commander The advantage of setting a standard For many years, those values have been em- Phillip N. Butler, USN (Ret.). for interrogation based on the field bodied in the Army Field Manual. The Man- Mr. MCCAIN. The second part of this manual is to cut down on the signifi- ual applies the wisdom and experience amendment should not be objection- cant level of confusion that still exists gained by military interrogators in conflicts able to anyone since I am actually not with respect to which interrogation against both regular and irregular foes. It authorizes techniques that have proven ef- proposing anything new. The prohibi- techniques are allowed. The Armed tion against cruel, inhumane, and de- Services Committee has held hearings fective in extracting life-saving information from the most hardened enemy prisoners. It grading treatment has been a long- with a slew of high-level Defense De- also recognizes that torture and cruel treat- standing principle in both law and pol- partment officials, from regional com- ment are ineffective methods, because they icy in the United States. Before I get manders to judge advocate generals to induce prisoners to say what their interroga- into why the amendment is necessary, the Department’s deputy general coun- tors want to hear, even if it is not true, while let me first review the history. sel. A chief topic of discussion in these bringing discredit upon the United States. The Universal Declaration of Human hearings was what specific interroga- It is now apparent that the abuse of pris- Rights, adopted in 1948, states simply: tion techniques are permitted, in what oners in Abu Ghraib, Guantanamo and else- where took place in part because our men No one shall be subjected to torture or cruel, inhuman or degrading treatment or environments, with which DOD detain- and women in uniform were given ambiguous punishment. ees, by whom and when. The answers instructions, which in some cases authorized have included a whole lot of confusion. treatment that went beyond what was al- The International Covenant on Civil If the Pentagon’s top minds can’t sort lowed by the Army Field Manual. Adminis- and Political Rights, to which the these matters out, after exhaustive de- tration officials confused matters further by United States is a signatory, states the bate and preparation, how in the world declaring that U.S. personnel are not bound same. The binding Convention Against do we expect our enlisted men and by longstanding prohibitions of cruel treat- Torture, negotiated by the Reagan ad- ment when interrogating non-U.S. citizens women to do so? ministration and ratified by this body, on foreign soil. As a result, we suddenly had prohibits cruel, inhuman, and degrad- Confusion about the rules results in one set of rules for interrogating prisoners of ing treatment. On last year’s DOD au- abuses in the field. We need a clear, war, and another for ‘‘enemy combatants;’’ thorization bill, the Senate passed a bi- simple, and consistent standard, and one set for Guantanamo, and another for partisan amendment reaffirming that we have it in the Army Field Manual Iraq; one set for our military, and another for the CIA. Our service members were de- no detainee in U.S. custody can be sub- on interrogation. That is not just my nied clear guidance, and left to take the ject to torture or cruel treatment, as opinion but that of many more distin- blame when things went wrong. They deserve the U.S. has long defined those terms. guished military minds than mine. I better than that. All of this seems to be common sense, refer to a letter expressing strong sup- The United States should have one stand- in accordance with longstanding Amer- port for this amendment signed by 28 ard for interrogating enemy prisoners that is effective, lawful, and humane. Fortunately, ican values. But since last year’s DOD former high-ranking military officers, bill, a strange legal determination was including GEN Joseph Hoar, who com- America already has the gold standard in the Army Field Manual. Had the Manual been made that the prohibition in the Con- manded CENTCOM; GEN John followed across the board, we would have vention Against Torture against cruel, Shalikashvili, former Chairman of the been spared the pain of the prisoner abuse inhuman, or degrading treatment does Joint Chiefs of Staff; RADM John scandal. It should be followed consistently not legally apply to foreigners held Hutson and RADM Don Guter, who from now on. And when agencies other than outside the United States. They can each served as the Navy’s top JAG; and DOD detain and interrogate prisoners, there apparently be treated inhumanely. LTG Claudia Kennedy, who served as should be no legal loopholes permitting cruel or degrading treatment. This is the administration’s position, Deputy Chief of Staff for Army Intel- The amendments proposed by Senator even though Judge Abe Soafer, who ne- ligence. These and other distinguished McCain would achieve these goals while pre- gotiated the Convention Against Tor- officers believe the abuses at Abu serving our nation’s ability to fight the war ture for President Reagan, said in a re- Ghraib, Guantanamo, and elsewhere on terror. They reflect the experience and cent letter that the Reagan adminis- took place in part because our soldiers highest traditions of the United States mili- tration never intended the prohibition received ambiguous instructions which tary. We urge the Congress to support this against cruel, inhuman, or degrading in some cases authorized treatment effort. treatment to apply only on U.S. soil. that went beyond what the field man- Sincerely, What all this means is that America Joseph Hoar, USMC (Ret.), General John ual allows, and that had the manual Shalikashvili, USA (Ret.), General is the only country in the world that been followed across the board, we Donn A. Starry, USA (Ret.), Lieuten- asserts a legal right to engage in cruel could have avoided the prisoner abuse ant General Ron Adams, USA (Ret.), and inhuman treatment. But the crazy scandal. Lieutenant General Robert G. Gard, thing is, it is not even necessary be- Why wouldn’t any of us do whatever Jr., USA (Ret.), Lieutenant General cause the administration has said it Jay M. Garner, USA (Ret.), Vice Admi- we could to have prevented that? will not engage in cruel, inhuman, or ral Lee F. Gunn, USN (Ret.), Lieuten- degrading treatment as a matter of By passing this amendment, our serv- ant General Claudia J. Kennedy, USA policy. What this also means is that icemembers can follow the manual con- (Ret.), Lieutenant General Charles confusion about the rules becomes Otstott, USA (Ret.), Vice Admiral Jack sistently from now on. Our troops de- rampant again. We have so many dif- serve no less. Shanahan, USN (Ret.), Major General Eugene Fox, USA (Ret.), Major General fering legal standards and loopholes I ask unanimous consent that the John L. Fugh, USA (Ret.), Rear Admi- that our lawyers and generals are con- letter from 29 retired military officers ral Donald J. Guter, USN (Ret.), Major fused. Just imagine our troops serving be printed in the RECORD. General Fred E. Haynes, USMC (Ret.). in prison in the field.

VerDate Aug 31 2005 05:52 Dec 28, 2006 Jkt 059060 PO 00000 Frm 00005 Fmt 0637 Sfmt 0634 E:\RECORDCX\T37X$J0E\S05OC5.REC S05OC5 hmoore on PROD1PC68 with CONG-REC-ONLINE S11064 CONGRESSIONAL RECORD — SENATE October 5, 2005 The amendment I am offering simply One of the situations I would call to what we saw when we were down there, codifies what is current policy and re- the attention of the Senator from Ari- we were convinced they were receiving affirms what was assumed to be exist- zona is as we have visited with our peo- the kind of treatment and the interro- ing law for years. In light of the admin- ple in the field, now we have a unique gations were not such that they would istration’s stated commitment, it circumstance of having multinational be affected by this amendment. should require no change in our cur- and multiagency teams that are in the It is the people in the field, not peo- rent interrogation and detention prac- field. The question comes down to who ple really handling prisoner camps or tices. What it would do is restore clar- has custody or effective control of a handling interrogation of those persons ity on a simple and fundamental ques- person. Particularly I remember one who are seized by our forces and tion: Does America treat people team we saw which had five different brought to a camp or brought to a inhumanely? My answer is no. And nationalities including the intelligence place, a jail such as we all know has from all I have seen, America’s answer agencies and military agencies of those gone wrong in Iraq—but I am talking has always been no. nations. If this becomes law, it is my the people in the field now, multi- I travel a lot around the world, usu- opinion that those teams will be han- national teams, and their job is to find ally at taxpayers’ expense. Everywhere dled so that the United States does not out what these people who are captured I go, I encounter this issue of the treat- have custody, does not have control, know in order to prevent further acts ment of prisoners and the photos of and the kind of treatment we seek will of terrorism. It is a very touchy thing Abu Ghraib and what is perceived in not be given to people who are made to deal with, I know, to really talk the world to be continued mistreat- prisoners by multinational teams that about it. ment of prisoners. It is harming our are searching out terrorists throughout The administration has told us that image in the world terribly. We have to the world. they are complying with all the con- clarify that that is not what the United This is a different war now. I believe stitutional, statutory, treaty obliga- States is all about. That is what makes we are seeing the beginning of a cru- tions that apply to U.S. interrogation us different. That is what makes us dif- sade against freedom from the militant practices. They are telling us that they ferent from the enemy we are fighting. terrorist Islamic entities throughout know the Convention Against Torture The most important thing about it is the world. We see the suicide bombers. requires the United States to ensure not our image abroad but our respect We see the people who are inflicting that torture is a crime whether com- for ourselves at home. terrible damage from Indonesia, the mitted anywhere by a U.S. national or Let me close by noting that I hold no Philippines, to all throughout the Cen- to prevent any of the entities that are brief for the prisoners. I do hold a brief tral Command, and we have teams out under the control of the United States for the reputation of the United States trying to find these people. from any acts of cruel, inhumane, or of America. We are Americans. We hold Of course, one of their first jobs is to degrading treatment or punishment. ourselves to humane standards of interrogate anyone they capture to try We totally agree with the efforts of the treatment of people, no matter how to see if we can find out where the rest Senator from Arizona in that regard, evil or terrible they may be. To do oth- of them are and how they are func- and the President has directed the erwise undermines our security, but it tioning. If this amendment passes, the Armed Forces to treat any detainee hu- also undermines our greatness as a na- United States will not have effective manely and comply with the appro- tion. We are not simply any other control of those people. It will be im- priate and consistent military proce- country. We stand for something more possible to interrogate under the sys- dures that are consistent with the Ge- in the world, a moral mission, one of tems we have used in the past because neva Conventions. freedom and democracy and human we cannot list in a field manual all of That is a given. But this amendment rights at home and abroad. We are bet- the interrogation techniques that will goes further. This amendment will ter than these terrorists, and we will be used. It takes thousands of pages cover those entities with multiple na- win. The enemy we fight has no respect anyway. But the techniques vary upon tionalities, multiple agencies, and be- for human life or human rights. They the circumstances and the physical lo- cause of the circumstances our people don’t deserve our sympathy. But this cation of the people involved. in the past have taken control of these, isn’t about who they are; this is about I have some memory from World War and some of the activities of the other who we are. These are the values that II in China when I witnessed some of nationalities involved would not be distinguish us from our enemies. our people—I was just a pilot, but I was consistent with this amendment. I say I urge my colleagues to support the what will happen in the future is we amendment. conveying some of these people from I yield the floor. place to place who had been tortured, will just not take control of them. This The ACTING PRESIDENT pro tem- and I can tell you they were brutally will be a deterrent to our people from pore. The Senator from Alaska is rec- treated by the Chinese when we were taking the leadership, and as they do, ognized. taking these people from place to place they will do everything they can to Mr. STEVENS. Mr. President, this is and they had prisoners. Some of them comply with the Geneva Conventions. a difficult subject to discuss, and as the were not Chinese. They were prisoners It is those circumstances, the new type minority leader indicated, no one is obviously of Japan. We had freed some of entities we use to combat terrorism more qualified to talk about this than of them, and they were—I have mem- that worries the administration. So I the Senator from Arizona. ory that those who were freed were can say—and I know the Senator from It is with some trepidation that I try still the responsibility of the United Arizona understands—it is the position to explain to him the position of the States. of the administration that this amend- administration and with which I hap- But as a practical matter, what do ment goes too far. pen to agree. The problem is not the you do with regard to a law that says We will not make a point of order. goal of the Senator from Arizona; the that all of the techniques must be list- There is no point of order that I know problem is the way it would be carried ed in the field manual; regardless of na- will apply to it anyway. But I do be- out under this amendment. This tionality or physical location, if an in- lieve it is a matter that ought to be ap- amendment would require that the dividual is in the custody or physical proached with caution. What does a field manual be changed. Currently the control of the United States, they shall multinational team do if they pick up field manual has a general description be subject to only the means of interro- a prisoner who they believe can give of the techniques of interrogation, and gation listed in the field manual. them information as to the location of it allows flexibility to determine what I appreciate very much what the Sen- terrorists who have committed severe will be used in terms of interrogation ator is trying to do. I think most of us acts of terrorism? The decision will be techniques based upon the cir- have gone down to Guantanamo to sat- made, I am sure, that we not take cus- cumstances that exist. We know that isfy ourselves that what is happening tody. The custody will go to other na- terrorists train their people to deal down there is in accordance with our tionalities involved in the team. We with the techniques of our interroga- concepts. Those people are totally will have no control. I believe the tion, so those techniques change under under the custody of the United States, amendment of the Senator from Ari- various circumstances. and certainly from my point of view zona is going to carry, but I believe we

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This Carolina. and you are captured, things are going Mr. GRAHAM. Mr. President, No. 1, I to happen to you. You are going to be is a complex process, and if we inter- would like to recognize that Senator interrogated aggressively, but we are pret a torture statute in the way you are suggesting, we are going to get our STEVENS, who has so honorably served going to treat you humanely, not be- our country, is genuinely concerned cause we worry about your sensitivi- own people in trouble. He says: about the extent of this amendment. ties but because we don’t want to be- We nonetheless recommend that the Work- For those of you who are listening, come who we are interrogating. So we ing Group product accurately portray the Senator STEVENS was a World War II are going to keep that in place. services’ concerns that the authorization of pilot. He has gone in harm’s way in de- The President has said whether the aggressive counter-resistant techniques by fending his country. We have in the Geneva Convention applies or not we servicemembers will adversely impact the Chamber his counterpart on the Appro- are going to treat everybody in our following: priations Committee, Senator INOUYE, charge humanely, not because of them a. Treatment of U.S. servicemembers by a Medal of Honor winner, and the Sen- but because of us. And the debate here Captors and Compliance with International Law. ator occupying the chair is a former is what happens when somebody in POW. The food chain is going down your charge is not covered by the Ge- We have been the gold standard. We when I am speaking. But what I want neva Conventions. It is easy when take this moral high ground to make to try to discuss today is from a law- someone is a legal combatant. We sure if our people fall into enemy hands yer’s point of view and really from a know what the rules are. We have the that we will have the moral force to say, You better treat them right. If you citizen’s point of view. Geneva Conventions. We have been a I have had the honor for the last 20- signatory for 60 years. The Army Field don’t practice what you preach, nobody some years to be a member of the Manual covers that situation. The war listens. Sometimes that does not hap- Judge Advocate General’s Corps of the on terror is different. Vietnam was dif- pen, but you don’t want to erode the Air Force, a prosecutor, a defense ferent. We had people who were lawful, principle because it puts people at risk. Criminal and Civil Liability of DOD counsel, and I am now a Reserve mili- whom we were able to interrogate, de- Military and Civilian Personnel in Do- tary judge. That experience has been a tain, and prosecute without changing mestic, Foreign, and International Fo- wonderful experience. I have received who we were. rums. more out of it than given. Wearing the The Army Field Manual as a one-stop shop to guide the way we handle lawful All the reasons all the JAGs wanted uniform in any capacity is quite an to push back is that you are going too honor, and to be a military lawyer has combatants and enemy combatants is absolutely necessary if for no other far if you interpret the statutes as been one of the highlights of my life. I being proposed by the Department of have never been shot at. I had some cli- reason than to protect our own troops. That is why we are doing this. That is Justice. Some of the techniques violate ents who probably wanted to kill me. the Uniform Code of Military Justice. But other than that, I do understand one of the main reasons—to make sure that your own troops don’t get in trou- Senator STEVENS is concerned about this debate pretty well. To me, it is not joint operations. Here is the rule: If much of a debate. We have as a nation ble because they are confused. I have been a military lawyer for 20 you are wearing America’s uniform, adopted the position that Senator years. We have confused people about you are going to be judged by Amer- MCCAIN described when it comes to as much as you can possibly confuse ican standards. You will never be pros- how you handle people in your care and them. And this all started with the ecuted unless you do something incon- custody. Bybee memo. I think we need to know sistent with our law. If you are part of One thing I would respond to Senator the history of where we have been, to an international group and wondering STEVENS is that the Army Field Man- find where we are before we take cor- what to do with a prisoner in front of ual has sort of been the bible for inter- rective action. you, I suggest we let our troops know rogation for decades. If you are wor- Right after 9/11, this Nation was there are rules they must follow, and if ried, and I think it is a fair question, is shocked and shaken. We tried to make they see anything they think is out of there anything in the Army Field Man- sure we could secure our freedom and bounds, report it. ual that would unfairly restrict the security and do a balancing act, and we The best thing we can do for anybody ability of the United States to gain have done a pretty good job of it. How operating in the war on terror is give good information and defend ourselves can you be secure and still free? How them clarity about what to do in very from a bunch of rogue thug murderers, can you fight the worst enemy and still stressful situations. There is the com- the answer is no. You don’t have to not become the worst of yourself? I bat role. What do you do with some- trust me there. Go to Gitmo and ask think you can. body who is captured? You do what the the question of the people who are The Bybee memo was an effort by President says: You treat them hu- doing the interrogation of these terror- people at the Justice Department to manely, you interrogate them by ists: Is there anything in the Army take international torture statutes standards we can live by that will not Field Manual as written or being draft- that we had ratified and been party of erode our moral authority. ed that would impede your ability to and have the most bizarre interpreta- Where have those standards been in gather good information? And the an- tion basically where anything goes. It the last 50 or 60 years? The Army Field swer they told me was no. was an effort on the part of the Depart- Manual. You can change the Army So what is the value of having it? ment of Justice lawyers to stretch the Field Manual to adapt techniques to The value of having standardization law to the point the law meant noth- the war on terror. There is a classified when it comes to interrogation, deten- ing. And early on in this process, those section of the Army Field Manual. tion, and prosecution is of immeas- in uniform who happened to be mili- There is nothing about its adoption urable benefit to the force because, as tary lawyers stood up and spoke. that limits the ability to aggressively Senator MCCAIN indicated, a lot of the I am going to read from General interrogate people to get good intel- people implementing these policies Sandkuhler, Brigadier General of the ligence. But if you want to torture peo- when it comes to interrogation, deten- U.S. Marines, who was one of the judge ple, the Army Field Manual says no tion, and prosecution are in harm’s advocates to review this change in pol- and the President says no. It is now way themselves. One of the things we icy, this very liberal interpretation of time for Congress to say no, and that is have learned in this whole war on ter- what torture might be. He said: what this amendment is about. ror is that this Nation needs to have ef- The common thread among our rec- Congress has been AWOL when it fective interrogation techniques, effec- ommendation is concern for servicemembers. comes to the war on terror in terms of

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This is General Rives, my current we are going to win this war on terror, Mr. President, 185 of them have law- boss: not to give the moral high ground to yers, and they are absolutely over- Should any information concerning the ex- your enemy and to have laws that running the place. To me, it is absurd ceptional techniques— every branch of Government under- that an enemy combatant, noncitizen And they were exceptional— stands and the people implementing terrorist has habeas corpus rights, and become public, it is likely to be exaggerated/ these laws are not confused and they the reason they do is because we are distorted in both the U.S. and international will not get in trouble by following giving no guidance to the courts about media. This could have a negative impact on what we have said. Congress has been how we want these people treated. international, and perhaps even domestic, AWOL. It is now time for Congress to I believe it is now time to give guid- support for the war on terrorism. It could step up to the plate and offer assist- ance to the courts, to the country, to likewise have a negative impact on public perception of the U.S. military in general. ance in the war on terror to the admin- the international community, to those istration. That is exactly what we are in uniform serving us, and to the ter- This was written 6 February 2003. He doing. rorists about what we are going to do, was foretelling what was going to hap- I asked Judge Roberts, during the and Senator MCCAIN’s amendment has pen. These are not ACLU lawyers. This confirmation process, about this whole got it. It is the authority that has been is a Marine Corps general and a two- line of questioning. I said: missing in this great effort to win the star general in the Air Force who dedi- Do you believe that the Geneva Conven- war on terror. It is now bringing stand- cated their lives to defending their tion, as a body of law, that it has been good ardization into an area which had been country and holding us up to be the for America to be part of that convention? previously chaotic. Every military law- great Nation we are. ROBERTS: I do, yes. yer who has been looking at the poli- I urge my colleagues to please adopt GRAHAM: Why? cies proposed has come away confused. this amendment overwhelmingly. It ROBERTS: Well, my understanding in gen- will do a great service to future Presi- eral is it’s an effort to bring civilized stand- Let me tell you unequivocally that ards to conduct of war—a generally uncivi- the military legal community under- dents. It will be a great turning point lized enterprise throughout history; an effort stands what Senator MCCAIN is doing in the war on terror. It is needed. It is to bring some protection and regularity to and wholeheartedly adopts his efforts, a simple amendment. It uses the Army prisoners of war in particular. And I think that not only would it be good for the Field Manual as the bible for interro- that’s a very important international effort. Congress to speak with the same au- gation for lawful combatants and It is an important international ef- thority as the President, but it would enemy combatants. You can write it fort, and al-Qaida should not be consid- help the courts, and it would be good the way you need to. It does not lock ered a lawful combatant under Geneva for our troops if they had the protec- us into a position that would be under- Conventions. But it is about us, as Sen- tion of standardization. mining our efforts to get good intel- ator MCCAIN said. When we catch some- If you want to help our troops who ligence. It simply will be a document one who is not under the Geneva Con- are trying to win this war on terror, that covers how we behave in every ventions, it is important that our peo- give them the cover they need and the known situation from Guantanamo ple not only follow the dictates of the guidance they need. Do not throw them Bay to the battlefield in Afghanistan. President—treat them humanely—but to the wolves. We have had people pros- It will be something that will help our they know what to do. We are giving ecuted because they have been given an troops understand what they can and confusing policies in this new war on impossible task. They have been given cannot do. It will make us stronger as terror, this hybrid between a lawful the task of interpreting laws that a nation. combatant, enemy combatant, and reg- make no sense. And if you really do The second part of the amendment is ular combatant. We need to stand- want to stand by the troops, give them the most important. It says that we as ardize our techniques. guidance. Give them the guidance and a nation will do what the President How do we do that to make America the tools they can use to get good in- said: We will treat everybody in our the strongest? How can we effectively formation, not bad information, and charge humanely whether they deserve do that? We get the Congress involved, get information in a way that does not it or not because, as Senator MCCAIN we get the administration involved, embarrass our Nation and put us at said, it is about us, it is not about and we get the courts involved. Right risk. them. And it is now time for Congress now we have two court cases that are Abu Ghraib has been a giant step to speak. It will help us in court. When all over the board. Judges are telling back, a huge step back, and one of the the courts understand that the Con- us—Justice Scalia in one of the court reasons we had Abu Ghraib is because gress has come up with a plan in sup- cases is screaming out that Congress nobody there knew what they were port of the administration to interro- has been absent here. Congress needs to doing. They were not trained. They gate detainees, they will give great def- speak because the courts are not were overwhelmed. They did not have erence to that situation. When Con- equipped to run Guantanamo Bay. The consistency when it came to inter- gress is absent, they are going to be courts are not well equipped to inter- preting the interrogation policies be- confused, and they are going to do pret military policy, and they need cause the policies made no sense. Some some things they really do not want to guidance from Congress. people are in jail now. Most of them do. I asked Justice Roberts about that. are in jail because of their own mis- This is a very important moment in One of his favorite Justices is Justice conduct. Some people have had their the war on terror. This brings us back Jackson. Justice Jackson in the careers ruined because they are trying into the light out of the darkness. It Youngstown steel case basically said to interpret policies nobody can under- allows us to interrogate enemy com- that the executive branch is at its stand. batants, unlawful combatants in a way strongest when it has the expressed or That is a huge deviation from the to get good intelligence without under- implied consent of Congress. way we conducted war for 50 to 60 mining who we are as a people. It is When I met with Judge Roberts on years, and we paid the price. We are al- necessary, it is legally necessary. It this whole issue about detention, inter- lowing courts to come in and do things will strengthen our hand in court. It is rogation, and prosecution of enemy they are not equipped to do because we very necessary to create certainty out combatants, he said this is an area have been AWOL as Congress. The best of confusion for our troops. where the courts would welcome con- thing we can do to win this war is have One thing I can say with absolute gressional involvement. policies that allow us to effectively in- certainty is that we have let the troops As a result of us being AWOL in Con- terrogate, detain, and prosecute terror- down when it comes to trying to give gress, there is a Supreme Court deci- ists without ceding the high ground. them guidance about what to do in sion, 5 to 4, giving enemy combatants And this amendment is a start. very stressful situations. We are trying

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But it does not give them the guidance they need to out, his amendment would do two change the fact that in dealing with make sure we can win this war on ter- things: One, prohibit cruel, inhumane, terrorism our greatest asset or our ror and never lose the moral high or degrading treatment or punishment greatest tool will be intelligence gath- ground. of detainees. It is in specific compli- ering. Intelligence gathering will re- I urge every person to think long and ance with the Convention Against Tor- quire direct engagement with and in- hard about this amendment. To vote no ture that was signed by President terrogation of suspects, trying to gath- on this amendment, in my opinion, Reagan. The administration says we er information that can help us disrupt dramatically weakens us as a nation. are already upholding that standard these networks. To vote yes reinforces our values, pro- when it comes to treatment of detain- We are trying to gather information vides good guidance to make sure we ees, so this should not be a problem. that can help us prevent future at- get good intelligence, and protects our Secondly, the McCain amendment tacks. That process of interrogation, own people from being prosecuted. states simply that the interrogation needless to say, is complex and chal- I yield the floor. techniques used by the military on de- lenging. We have seen many of the The PRESIDING OFFICER. The Sen- tainees shall be those specified by the problems and some of the abuses that ator from Tennessee is recognized. Army Field Manual on Intelligence In- have been documented by some of the Mr. ALEXANDER. Mr. President, it terrogation. The military, not Con- previous speakers. is an honor to serve in the same body gress, writes that manual. We are told I think this calls out for a process with the Senator from Hawaii, a Con- that the technique specified in the that is more clear and better defined; gressional Medal of Honor winner, and manual will do the job. Further, it is interrogation tools, techniques, and with the Senator from Arizona because under revision, as has been pointed out, procedures that we can be sure are ap- of his distinguished service in Vietnam. to include techniques related to unlaw- plied consistently in the field. That is Whenever the Senator from Alaska, a ful combatants, including classified why I think this amendment is so im- pilot in World War II, who devoted portions that will continue to give the portant. That is why I think we have a most of his career here to under- President and the military a great deal fundamental obligation to support this standing our defense policies, urges of flexibility. amendment or at least some approach caution, I try to listen and pay atten- If the President of the United States to clarify these processes, standards, tion. But I rise today in support of the thinks these are the wrong rules, I and procedures used for interrogation. amendment by the Senator from Ari- would hope he would submit new rules I can think of two basic reasons that zona to the Defense appropriations bill, to Congress so that we can debate them this is important and that it will ben- and I ask unanimous consent to be and pass them. I made this same sug- efit our troops and our country. First, added as a cosponsor. gestion in July, but no alternative rule by establishing clear lines, procedures, The PRESIDING OFFICER (Mr. has been suggested so far. I am one and process for interrogation, we help GRAHAM). Without objection, it is so Senator who would give great weight our own troops, whether working in the ordered. to the President’s views on this mat- uniformed services or working in cov- Mr. ALEXANDER. Mr. President, I ter. ert operations or other intelligence- have listened carefully to the debate This has been a gray area for the gathering activities. We can be sure about whether it is appropriate for courts over time. In this gray area, the that they know what the allowances Congress to set the rules on the treat- question is, Who should set the rules? are, that they know what the process ment of detainees. I have listened care- In the short term, surely the President is, that they know what the procedure fully, but for me the question isn’t can. In the longer term, the people is, and, in effect, we provide them with even close. should, through their elected rep- appropriate protection and safeguards The people, through their elected resentatives. We are their elected rep- in doing their job. representatives, should set the rules resentatives. It is time for us to act. It In a similar way, we provide those in- for how detainees and prisoners under is time for us to set the rules. We do dividuals with protection in the field of U.S. control are treated and interro- not want courts legislating from the combat should they be taken as a pris- gated. In the short term, the President bench and writing the rules. That oner of war. We want to make sure our can set the rules, but the war on terror leaves us to do our job. enemies do not have justification for is now 4 years old. We do not want In summary, it is time for Congress, using any interrogation techniques judges making up the rules. We Repub- which represents the people, to clarify that we would consider to be improper, licans often say we don’t like to see and set the rules for detention and in- cruel, or inhumane. judges legislating from the bench. So terrogation of our enemies. If the First, we are providing protection for the longer term, the people should White House would prefer different and establishing this clarity. Second, I set the rules. That is why we have an rules, I hope the President will tell us think we are sending an important independent Congress. That is our job. what rules and procedures he needs to message to our allies and our adver- In fact, the Constitution says quite succeed in the war on terror. saries—a message that while the legal clearly that is what Congress should If the argument is whether it is ap- standards that are enshrined in the do. Article I, section 8, of the Constitu- propriate for Congress to set clear Constitution do not apply to everyone tion says that Congress and Congress standards, I believe Congress should set in the world, our commitment to these alone shall have the power to make standards and will vote to support the basic principles of life, liberty, and the ‘‘Rules concerning Captures on Land amendment of the Senator from Ari- pursuit of happiness, our commitment and Water.’’ So Congress, as the Sen- zona. to basic principles of human dignity ator from South Carolina said, has a I yield the floor. and human rights do apply and we responsibility to set clear rules here. The PRESIDING OFFICER. The Sen- must find ways to define these stand- But the spirit of this amendment is ator from New Hampshire. ards, to clarify this commitment, even really one that I still hope the White Mr. SUNUNU. Mr. President, I rise in in the area of interrogating enemy House will decide to embrace. In es- support of the McCain amendment. combatants and interrogating poten- sence, as has been pointed out, the There has been a lot of discussion tial terrorists, suspected terrorists, in amendment codifies military proce- about the new challenges we face in the field. dures and policies—procedures in the dealing with organized terrorist cells So we send a clear message to our al- Army Field Manual and procedures re- around the world. The complexity and lies and adversaries that our commit- garding compliance with the Conven- the nature of those terrorist threats re- ment to these principles is real, that tion Against Torture signed by Presi- quires us to engage in ever more com- our desire to establish uniform stand- dent Reagan. These amendments up- bat activity that is nonconventional. ards is real.

VerDate Aug 31 2005 05:52 Dec 28, 2006 Jkt 059060 PO 00000 Frm 00009 Fmt 0637 Sfmt 0634 E:\RECORDCX\T37X$J0E\S05OC5.REC S05OC5 hmoore on PROD1PC68 with CONG-REC-ONLINE S11068 CONGRESSIONAL RECORD — SENATE October 5, 2005 I do not know, not having the experi- ever have or ever will. I believe his Why would the administration op- ence of some of my colleagues, whether voice should be listened to more than pose an amendment that affirms our this is the perfect standard, whether some because he has given so many longstanding obligation not to engage the requirements and the precise lan- years of his life to this country and in torture or cruel, inhumane, and de- guage in this amendment are ideal, but suffered as a prisoner of war person- grading treatment? Sadly, it is because I think this is a fair-minded approach ally. the actions that they have taken on that allows the military itself, through This should be a noncontroversial this critical question have been unclear its code of conduct, to establish these amendment. It really requires two very and inconsistent. definitions that allows for the estab- simple and straightforward things: In early 2002, Alberto Gonzales, who lishment of a classified annex to deal First, that the treatment of detainees was then-White House Counsel, rec- with covert operations, deal with the comply with the Army’s Field Manual ommended to President Bush that the most sensitive of captives and the most on Interrogation; and, second, that the Geneva Conventions should not apply sensitive of interrogations so that we United States may not subject anyone to the war on terrorism. Colin Powell, are not undermining the intelligence in our custody to torture or cruel, in- former Chairman of the Joint Chiefs of gathering that we are attempting to fa- humane, or degrading treatment. It is Staff, who was then-Secretary of State, cilitate. that straightforward. objected strenuously to Attorney Gen- In fact, the approach that is taken This amendment would affirm our eral Gonzales’ conclusion. He argued has been endorsed, as was indicated by Nation’s very important, longstanding that we could effectively fight the war the Senator from Arizona, by many obligation not to engage in torture or on terrorism and we could live by the who have had very close and intimate other cruel treatment. This standard is Geneva Conventions, which have been experience with this type of interroga- enshrined in our U.S. Constitution and the law of the land in America for over tion. In the letter that Senator MCCAIN in several treaties which our Nation half a century. entered into the RECORD there were has adopted as the law of the land. Unfortunately, the President rejected two particular points that were made Just as important, this amendment Secretary Powell’s wise counsel and in- that I want to underscore, and that is, would make the rules clear for our sol- stead accepted Attorney General first, ‘‘the abuse of prisoners hurts diers so they know what the standards Gonzales’ recommendations. In Feb- America’s cause.’’ I think that is just a are that they should follow in the ruary of 2002, he issued a memo deter- fundamental and important underlying treatment of detainees. We owe this to mining that the Geneva Conventions point in this debate, that prisoner our troops. If they are going to risk would not apply to the war on ter- abuse hurts our cause. It hurts the their lives every day in defense of our rorism. Then the administration unilaterally moral arguments we are trying to country, we should give them stand- created new policies on the use of tor- make, the political arguments we are ards of conduct that are clear and un- ture. I am referring to, among other trying to make, and it does put our equivocal. things, the well-known Bybee memo of own men and women serving in uni- The prohibition on torture and other August 1, 2002, which has been publicly form or in intelligence-gathering oper- cruel treatment is deeply rooted in the history of America. Our Founding Fa- disclosed. They have claimed that the ations at risk. President has the right to set aside the Second, the United States should thers made it clear in the Bill of Rights law that makes torture a crime. They have one standard for interrogating that torture and other forms of cruel have narrowly defined torture as lim- enemy prisoners that is effective, law- treatment are prohibited. ited only to abuse that causes pain ful, and humane. That point brings me These principles have even guided us during the times of great national test- equivalent to organ failure or death. back to the concern that we send a They claim that it is legal to subject ing. During the Civil War, President clear message to our allies and adver- detainees to cruel, inhuman, and de- Abraham Lincoln asked Francis saries that our commitment to human grading treatment even though Con- Lieber, a military law expert, to create dignity and human rights is universal. gress has ratified the torture conven- a set of rules to govern the conduct of So I am pleased to support the tion, which explicitly prohibits cruel, amendment. I think it is a very impor- U.S. soldiers in the Civil War. The re- inhuman, and degrading treatment. tant first step. I think it gives the sult was the Lieber Code. It prohibited This fact was verified by Attorney Gen- military the flexibility that it de- torture and other cruel treatment of eral nominee Gonzales during con- serves, and I hope the military will use captured enemy forces. It really was firmation hearings before the Senate that flexibility well to add clarity, the foundation for the Geneva Conven- Judiciary Committee, in response to a standards, process, and procedure that tions. question which I asked him directly. will enable us to continue to interro- After World War II, the United States Despite all of this, the administra- gate prisoners and continue to gather took the lead in establishing a number tion continues to insist that their pol- intelligence in dealing with these ter- of treaties that banned the use of tor- icy is not to treat detainees rorist networks around the world, but ture and other cruel treatment against inhumanely. do it in a way that is consistent with all persons at all times. There are no What does this mean? Recently, I the intent, the principle, and the phi- exceptions to this prohibition. asked Timothy Flanigan this question. losophy of our Constitution. The United States has ratified these He was the Deputy to White House I yield the floor. treaties, including the Geneva Conven- Counsel Alberto Gonzales. Mr. Flani- The PRESIDING OFFICER. The Sen- tions and the torture convention. They gan has been nominated to be the Dep- ator from Illinois. are the law of the land. uty Attorney General, the second high- Mr. DURBIN. Mr. President, I rise Twice in the last year and a half, I est law enforcement official in the Na- today in support of amendment No. have authored amendments to affirm tion. Mr. Flanigan said inhumane 1977, which has been offered by Senator our Nation’s longstanding position treatment is ‘‘not susceptible to a suc- MCCAIN, the Presiding Officer, Senator that torture and other cruel treatment cinct definition.’’ GRAHAM, Senator HAGEL, Senator are illegal. Twice the Senate unani- I asked him whether the White House SMITH, and Senator COLLINS. First, let mously approved my amendments. had provided any guidance to our me commend Senator MCCAIN for the Both times the amendments were troops on the meaning of inhumane courage that he has shown, again, in killed behind closed doors of con- treatment. He acknowledged that they offering this amendment. There is not ference committees. Both times these had not. a single person in Congress who can amendments, which I offered and which I asked Mr. Flanigan about specific speak with more authority than Sen- were accepted by the Senate, were abuses. I asked him: would it be inhu- ator JOHN MCCAIN on the treatment of stricken from the bill at the insistence mane to beat prisoners or subject them prisoners of war. of the administration. to mock executions? He said, ‘‘It de- I have come to this floor many times As I understand it, the administra- pends on the facts and circumstances.’’ to address this issue, but my voice is tion does not support Senator MCCAIN’s I cannot imagine facts and cir- weak compared to his. He has lived this amendment. I sincerely hope that after cumstances in which it would be hu- experience in a way that none of us this debate, they will. mane to subject a detainee to a mock

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He was ees when high-ranking administration I can remember as a cadet at West Point, in prison for 6.5 years. officials do not seem to know or refuse resolving to ensure that my men would never In a letter to me in support of our ef- to respond to these direct questions? commit a dishonorable act, that I would pro- forts he wrote: The administration acknowledges tect them from that type of burden. It abso- Congress must affirm that America stands lutely breaks my heart that I failed some of that some people held by our Govern- by its moral and legal obligation to treat all them in this regard. prisoners, regardless of status, as we would ment have been mistreated. Some have It breaks my heart to think that this want the enemy to treat our own. Our coura- been tortured. They say these abuses soldier, risking his life for America in geous men and women deserve nothing less. were committed by a few bad apples, Afghanistan and Iraq, is now reaching Let me close finally by a quote from rogue soldiers on a night shift. out to us because we have failed to pro- Captain Fishback’s letter. But is it any wonder that people have vide him with guidance. I am thankful Some argue that since our actions are not been abused when the administration that Senator MCCAIN has stepped for- as horrifying as Al-Qaeda’s, we should not be and Congress do not make it clear that ward, along with you, Mr. President, concerned. When did Al Qaeda become any American policy prohibits subjecting and many others in this Chamber, to type of standard by which we measure the detainees to cruel and degrading treat- give him that guidance. morality of the United States? We are Amer- ment? Is it any wonder that people Captain Fishback is an honorable ica, and our actions should be held to a high- have been abused when we refuse to re- er standard, the ideals expressed in docu- man. Like the overwhelming majority ments such as the Declaration of Independ- pudiate un-American practices such as of the fine men and women who serve beating detainees? The administration ence and the Constitution. . . .If we abandon our country, he has not failed. We have our ideals in the face of adversity and ag- should not point the finger of blame at failed—to give him clear direction in gression, then those ideals were never really our troops for the logical consequences his conduct as a soldier. in our possession. I would rather die fighting of muddled and often contradictory The administration has failed to set than give up even the smallest part of the policies. clear rules for the treatment of detain- idea that is ‘‘America.’’ I have been to Iraq. I have spent time ees. We need to step in and clarify We are so fortunate to have men of with our troops. I have been humbled these with the amendment offered by his dedication and character serving by their courage and sacrifice. I have Senator MCCAIN. Cruel, inhuman, and our country in uniform. We owe it to visited Walter Reed Hospital many degrading treatment are prohibited. him, we owe it to the hundreds of thou- times. I have spoken with young sol- The Army Field Manual governs the sands of men and women who serve us diers who have suffered horrible inju- treatment of detainees. Senator every single day and risk their lives, to ries in the war, and I have attended fu- MCCAIN’s amendment will make that set clear rules so they know how to nerals for soldiers who lost their lives clear. treat detainees in custody. in this war, many from my own home In the past, the administration has I urge my colleagues to support the State. opposed amendments that affirm that amendment of Senator MCCAIN. I yield Our troops around the world and cruel, inhuman, or degrading treat- the floor. their families at home deserve our re- ment is illegal because they ‘‘would Mr. OBAMA. Mr. President, I support spect, admiration, and support. have provided legal protections to for- the amendment offered by the senior Just a few weeks ago, a brave U.S. eign prisoners to which they are not Senator from Arizona. I commend Sen- serviceman stepped forward to say that now entitled.’’ ator MCCAIN for his leadership on this he and other American soldiers need But the administration is not correct important issue. This amendment pro- clear rules and guidance on how to deal in this assertion. Cruel, inhuman, or hibits the cruel, inhuman, or degrading with detainees. CPT Ian Fishback is a degrading treatment is already prohib- treatment or punishment of persons graduate of West Point. He served in ited by the torture convention. under custody or control of the U.S. combat both in Afghanistan and Iraq. Their reasoning is revealing, how- Government. In other words, it outlaws He was so disturbed by what he had ex- ever. They do not seem to understand the torture of prisoners by agents of perienced that he wrote to our col- the real issue at stake in this debate. the United States, regardless of their league, Senator MCCAIN. The letter is This is not about legal protections for geographic location. now public. It was published in the foreign prisoners. It is about who we I am, and always have been, opposed Washington Post last week. are as a people. Torture is not Amer- to the use of torture. I believe that our Senator MCCAIN entered part of the ican; abusing detainees is not the brave men and women serving in the letter into the record earlier today. Let American way. Our brave men and Armed Forces share this view. Now me read a little more of the letter, women in uniform understand this, and more than ever, we must make it abso- which speaks so powerfully and elo- the plaintive plea of Captain Fishback lutely clear to our allies and our en- quently to our soldiers’ need for guid- makes that clear. emies that the United States does not ance and leadership. Listen to what I correspond with another soldier and will not condone this practice. Captain Fishback wrote: who served in Iraq and started sending This amendment does that in no uncer- For 17 months I tried to determine what me e-mails late at night about what tain terms. It acknowledges and con- specific standards governed the treatment of was really happening on the ground. He firms existing obligations under our detainees. . . . Despite my efforts, I have keeps in touch with me now from time own Constitution and the United Na- been unable to get clear, consistent answers to time. He recently wrote to me and tions Convention Against Torture. from my leadership about what constitutes said: Let me be clear on another point. I lawful and humane treatment of detainees. I We need to go back toward a strict applica- am committed to fighting terrorism am certain that this confusion contributed tion of the Geneva conventions. That is to a wide range of abuses including death and protecting our citizens and troops where our honor lies and that is what I was threats, beatings, broken bones, murder, ex- at home and abroad. I have the utmost taught since the day I joined the service. posure to elements, extreme forced physical respect, gratitude and admiration for exertion, hostage-taking, stripping, sleep Retired RADM John Hutson served our troops who are fighting on the deprivation and degrading treatment. I and our country for 28 years, and for the frontlines of the War on Terror, and I troops under my command witnessed some of last 3 years of his career he was the have no intention of undermining the these abuses in both Afghanistan and Iraq. Judge Advocate General, the top law- important job that they do. This administration should stand by yer of the Navy. He worked with me on But the use of torture does not en- the time-honored Geneva Conventions the amendments I authored. He sup- hance our national security. In fact, and the torture convention, rules that ports Senator MCCAIN’s amendment. In senior U.S. military officers have ar- have served us well in the past, rules a letter to me he wrote: gued that practicing torture can place

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Senator MCCAIN’s amendment re- personnel in Iraq that show a system- tainty around the world. Our failure to affirms a fundamental value of the atic failure of the Pentagon to properly confront this issue puts our troops at American people—that torture is mor- train soldiers on how to treat detain- greater risk of abuse and mistreatment ally reprehensible and has no place in ees. One report describes soldiers who, and undermines our credibility. this world. I am proud to support this because of a lack of guidance and train- This amendment will strengthen our affirmation, and I urge my colleagues ing from their command, engaged in ability to fight those who threaten the to do the same. ‘‘interrogations using techniques they United States. This amendment codi- Mr. LEAHY. Mr. President, I strong- literally remembered from movies.’’ fies into law that the Army Field Man- ly support Senator MCCAIN’s amend- Another document describes the shoot- ual must be used as the standard for in- ment to provide clear guidance for the ing of an Iraqi detainee in U.S. cus- terrogations. In addition, the amend- treatment of detainees in U.S. custody. tody. The report concludes that ‘‘this ment codifies that the U.S. will not This administration has steadfastly re- incident could have been prevented if subject detainees to cruel, inhumane fused to address the black mark on our [the soldier] had better training.’’ and degrading treatment. Nation caused by its interrogation Another report, released last week by This is a commonsense amendment policies and the resulting abuse of de- Human Rights Watch and based on that protects our troops and upholds tainees. Congress needs to take action. firsthand accounts of soldiers in the the standards that this country has Our credibility and reputation as a 82nd Airborne Division, details the held to since the beginning of our Re- world leader in human rights suffers widespread abuse of Iraqi detainees by public. from our unwillingness to openly ad- soldiers at Camp Mercury, a forward I urge my colleagues to vote in sup- dress the flaws in our system. More im- operating base near Falluja, Iraq. The port of this amendment. portantly, the failure to provide clear report states that detainees were se- Mrs. FEINSTEIN. Mr. President, I guidance on the treatment of detainees verely beaten and mistreated from 2003 rise in support of amendment No. 1977, puts our own troops at risk and under- through 2004, even after the photos offered by my colleague, Senator mines their efforts in Afghanistan and from Abu Ghraib became public. The MCCAIN. Iraq. I commend my colleagues across witnesses claim that detainees were This amendment would bring much- the aisle who are attempting to address abused at the request of military intel- needed clarity to the rules governing this problem, despite resistance from ligence personnel as part of the inter- how Americans treat captured pris- members of their own party and the oners and detainees. strong opposition of the White House. rogation process, but also claim that It will make clear that the Geneva The President has threatened to veto the abuse occurred simply as a way for Conventions apply to all people held in any legislation that would regulate the troops to ‘‘relieve stress.’’ One soldier the custody of the Department of De- treatment of detainees, claiming that allegedly broke a detainee’s leg with a fense. it would impinge on his Commander-in- baseball bat. In another incident, de- It provides a workable definition of Chief authority. I fail to see how a bill tainees were stacked into human pyra- ‘‘cruel and inhumane,’’ based on the requiring the humane treatment of de- mids and denied food and water. It is rules which govern how we treat crimi- tainees—the same treatment the Presi- time for this administration to finally dent claims they now receive—would acknowledge that such incidents were nals in the United States, and based impinge on his authority in any way. not the isolated acts of a few bad ap- firmly in the constitutional prohibi- It is Congress’s right under the Con- ples. These horrific acts were not iso- tions of cruel and unusual punishment. stitution to issue regulations gov- lated incidents on the night shift at Most importantly, it sets rules that erning the armed forces. This was Abu Ghraib. Unfortunately, similar are clear, simple and in accord with something I asked Chief Justice Rob- acts occurred at locations throughout basic American values. erts at his confirmation hearings, and Iraq and Afghanistan. First, let me make clear my view he agreed ‘‘that Congress can make A group of 28 senior military officers, that in this modern world of asym- rules that may impinge upon the Presi- including General John Shalikashvili, metric warfare, non-state actors, and dent’s command functions.’’ He an- recently wrote to Senator MCCAIN in unconventional threat, there is an ab- swered, ‘‘Certainly . . . the Constitu- support of his amendments addressing solute necessity to have a program to tion vests pertinent authority in [this] detainee treatment. That letter stated, securely hold prisoners and effectively area in both branches. The President is ‘‘The abuse of prisoners hurts Amer- interrogate them to provide timely in- the Commander-in-Chief . . . On the ica’s cause in the war on terror, endan- telligence. other hand; Congress has the authority gers U.S. servicemembers who might be But in my judgment, the current sys- to issue regulations governing the captured by the enemy, and is anath- tem is not working. armed forces, another express provision ema to the values Americans have held Over the course of the past 4 years, in the Constitution.’’ dear for generations. Our servicemem- there has been a great deal of confusion Senator GRAHAM said on the floor bers were denied clear guidance, and over the policies and practices of the this morning that, ‘‘Congress has been left to take the blame when things United States towards individuals the AWOL when it comes to the war on ter- went wrong. They deserve better than Government has taken into custody. ror in terms of interrogation, detention that.’’ I hope the President will con- This confusion has been evident at and prosecution, and we’ve done it in a sider these words before he vetoes a bill the highest levels of decisionmaking at way to weaken our Nation.’’ I agree that contains Senator MCCAIN’s the Pentagon, with memoranda author- with my friend, the Senator from amendment. izing this technique or that technique South Carolina. Without congressional Mr. HAGEL. Mr. President, I rise in being issued and rescinded within action, the problem of prisoner abuse support of Senator MCCAIN’s amend- weeks of one another. will continue to fester. ment No. 1977 regarding the treatment The confusion has been noted here in We continue to learn of abuses from of individuals who are in the custody the Senate. I sit on two committees press reports and the court-ordered re- or control of the United States. with jurisdiction, and have sat through lease of government documents in re- I cosponsored this amendment be- hours and hours of hearings and brief- sponse to Freedom of Information Act, cause the men and women making sac- ings—our Nation’s policy with respect FOIA, litigation. Documents that were rifices to defend our country deserve to detainees and prisoners of war is recently made public by the FOIA case clear standards for the treatment of de- still unclear to me. demonstrate why Senator MCCAIN’s tainees under U.S. control. It is the re- Frankly, the administration’s re- amendment is necessary. sponsibility of both the Executive and peated statements about ‘‘wherever

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We must show them that we are every uniformed JAG in the Depart- to the front lines. a government of laws, clearly written, ment of Defense, about the issuance of Seventeen months ago, enlisted openly promulgated and fairly en- instructions which basically violated members of the 82nd Airborne Infantry forced. our commitment to the Geneva Con- Division—honorable men risking their Captures and interrogations are part ventions. lives in Iraq—asked their commanding of war and, no less than other tools of In order to have the record complete, officer what the rules were for the war, must be wielded intelligently, hu- a couple of months later those were re- treatment of prisoners. manely, and within a set of rules for scinded and different orders were For 17 months, their commander, warfare that govern all who serve in issued at that time. But what if you CPT Ian Fishback, diligently searched uniform—whether privates or generals, are at the end of the chain and you get for the answer up and down his chain of seamen or admirals. these kinds of mixed messages? command. Here is what he has found, Our men and women in uniform, serv- So I thank the Senator from South and I quote: ing in Afghanistan, Iraq and at Guan- Carolina for pointing out from his We’ve got people with different views of tanamo Bay, have the right to clear, unique perspective how important this what ‘‘humane’’ means and there’s no Army direct and lawful leadership. is, since it is the men and women who statement that says ‘‘this is the standard for This amendment is good policy, is are in the JAG Corps who are respon- humane treatment for prisoners to Army of- just, and is long overdue. sible for prosecuting those who violate ficers.’’ Army officers are left to come up The PRESIDING OFFICER. The Sen- Geneva Conventions, and they need with their own definition of humane treat- ator from Arizona. clear guidance; or defending someone ment. Mr. MCCAIN. Mr. President, I ask who is accused of violating them, as Captain Fishback and his men have a unanimous consent that the Senator our men and women of the military are right to clear guidance. Their sac- from Illinois, Mr. DURBIN, be added as a entitled to defense just as they are sub- rifices entitle them to be allowed to do cosponsor. ject to prosecution. their job. An infantryman should not The PRESIDING OFFICER. Without Again, I thank the Senator from need to be a graduate of a law school to objection, it is so ordered. South Carolina. I appreciate the de- know what to do with a prisoner. Mr. MCCAIN. Mr. President, first I fense of the Senator from Alaska of the What this amendment does is to pro- thank my friend and colleague from administration’s position on this issue. vide clarity. South Carolina for his comments in I do not think he has been well in- It is incumbent on Congress to pro- support of this amendment. He does oc- formed by the administration, particu- vide this clarity. In fact, we have a cupy a unique position in this body, larly concerning the Army Field Man- constitutional mandate to do it. having served 20 years—61⁄2 years on ac- ual. Article VII, section 8 of the Constitu- tive duty as an Air Force lawyer and The Army Field Manual has a classi- tion states that Congress shall have member of the JAG Corps, and remains fied section which would not be avail- the power to ‘‘make Rules concerning in the Reserves to this day. He obvi- able to anyone except for those who Captures on Land and Water,’’ and also ously brings a perspective to this issue have a need to know. The Army Field ‘‘To make Rules for the Government which is very important. Manual has been used for decades. The and Regulation of the land and naval I think the Senator from South Caro- Army Field Manual is being revised as Forces.’’ lina described the confusion that ex- we speak to try to meet the new chal- Our men and women in combat badly isted over a period of time about this lenges we face. But the Army Field need this legislation. But there is more whole issue of treatment of prisoners. Manual, I am confident, will be in at stake here than immediate military There was a set of instructions issued keeping with the fundamental commit- necessity. which were in effect for a couple of ments we have made. Our soldiers and our Nation have a months, which were strongly objected All my career I have supported the long and honorable tradition of ethical to by the uniformed legal corps in the rights and prerogatives of the Com- behavior. For more than 200 years we Pentagon. Yet their concerns were mander in Chief. We need a strong have prided ourselves on being dif- overridden. President, and in wartime this is more ferent than our adversaries in war. The Senator from South Carolina important than ever. I understand the Simply put, there are some things that quoted one of them. Another one was administration would want to preserve Americans do not do, not because it is by RADM Michael Lohr, the Navy’s the President’s flexibility and wartime illegal, or some lawyer says we cannot, Judge Advocate General. He said the powers, and I do not believe that we but because it is wrong. situation at the American prison in can afford to have 535 Secretaries of The laws of war, codified in the Gene- Guantanamo, Cuba, might be so legal- State, Secretaries of Defense, or even va Conventions, represent a bare min- istically unique that the Geneva Con- Presidents of the United States. imum of acceptable behavior toward ventions and even the Constitution did I would like to point out the Con- captives. The United States has con- not necessarily apply. But, he asked, gress not only has the right but the ob- sistently championed the Geneva Con- Will the American people find we have ligation to act. Article I, section 8 of ventions for over a century, knowing missed the forest for the trees by condoning the Constitution of the United States, that our behavior is a beacon to the practices that, while technically legal, are clause 11: world, and that our adherence to prin- inconsistent with our most fundamental val- To declare War, grant Letters of Marque ciple—as well as projecting American ues? and Reprisal, and make Rules concerning values—saves American lives. General Rives said if the White House Captures on Land and Water[.] I am not naı¨ve. I do not expect our permitted abusive interrogations at I repeat: current enemy to respect the Geneva Guantanamo Bay, it would not be able . . . make Rules concerning Captures on Conventions. Our captured troops can- to restrict them to that single prison. Land and Water[.] not expect humane treatment at the He argued that soldiers elsewhere Someone is going to come down to hands of al-Qaida. But make no mis- would conclude that their commanders the floor and say that applied back in take—the eyes of the world are still on were condoning illegal behavior. And the time of the Framers of the Con- us, and our policies have real con- that is precisely what happened at Abu stitution; it didn’t apply to today. At sequences. Ghraib after the general who organized least from my point of view, unless Even now, millions of young Muslims the abuse of prisoners at Guantanamo there is an overriding need to change around the world are evaluating the went to Iraq to toughen up the interro- the Constitution of the United States— United States. They are deciding gation of prisoners there. if that clause of the Constitution no whether to take up arms against us, or I think it is clear that the White longer applies, then lets amend the whether to work with us towards a House ignored those military lawyers’ Constitution and remove it; otherwise, peaceful resolution with liberty and advice a couple of years ago. We now lets live by it. justice for all. We must show them, have, thanks to the yearlong effort of The Congress has the responsibility:

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The clerk will call the roll. out so well, are asking us—that well- The PRESIDING OFFICER. Is there a The Journal clerk proceeded to call known liberal judge, Justice Scalia, sufficient second? the roll. has said we need the Congress of the There is a sufficient second. Mr. GRAHAM. Madam President, I United States involved in this issue. The yeas and nays were ordered. ask unanimous consent that the order We, the courts, cannot do it ourselves. Mr. MCCAIN. Mr. President, I yield for the quorum call be dispensed with. As the Senator from South Carolina the floor. The PRESIDING OFFICER. Without pointed out, if we do not fulfill our con- Mr. STEVENS. Mr. President, this objection, it is so ordered. stitutional role, we are negligent. We Senator doesn’t agree with anything Mr. GRAHAM. Madam President, I owe it to our troops and our country to that has been said about the applica- ask unanimous consent to set aside the speak on this issue. bility of this provision to anyone in the pending amendment. I very much respect my friend, the military uniform. Most of the speakers The PRESIDING OFFICER. Without Vice President of the United States, have talked about men and women in objection, it is so ordered. Vice President CHENEY. He and I have the armed services. The amendment AMENDMENT NO. 2004 been friends for many years. I respect goes much further than that. Mr. GRAHAM. Madam President, I the way that he carefully guards the But first, the problem is it requires call up my amendment which is at the prerogatives of the President. But on the field manual to list every type and desk. this issue, I hope he and others would means of interrogation. Thousands of The PRESIDING OFFICER. The understand that we are dutybound to pages will be required. People will be clerk will report. take action. prosecuted in military courts if they The legislative clerk read as follows: I would like, again, to refer back to don’t know every single one of them, if Captain Fishback. He is what I view as they even cross the line by accident. The Senator from South Carolina [Mr. the tip of the iceberg that exists in the GRAHAM], for himself and Mr. MCCAIN, pro- This idea of listing all of the possible military today. They know how impor- poses an amendment numbered 2004. ways to interrogate a person is impos- tant this war on terror is. They are the sible. I say that should be changed. Mr. GRAHAM. Madam President, I ones who are fighting it. Captain Maybe they should issue from time to ask unanimous consent that reading of Fishback served in Afghanistan and in time additional items to go in the field the amendment be dispensed with. Iraq, and the ones I hear from are men manual. But to require that no one can The PRESIDING OFFICER. Without and women in the military who have a use a means of interrogation not listed objection, it is so ordered. very strong commitment to winning in advance when we are involved in a The amendment is as follows: the war on terror. They have laid their war on terror and we are dealing with (Purpose: To authorize the President to uti- lives on the line to win it. But they lize the Combatant Status Review Tribu- want clear, unequivocal guidelines as terrorists is wrong. Beyond that, this deals with any per- nals and Administrative Review Board to to how to treat prisoners of war. determine the status of detainees held at I would like to believe that this is son—not any military person. The Ge- Guantanamo Bay, Cuba) neva Conventions were originally in- the last war in which the United States At the appropriate place, insert the fol- will ever be involved. I would like to tended to deal with military prisoners. lowing: believe that from now on, after we win This is dealing with anyone who is SEC. ll.(a) AUTHORITY TO UTILIZE COM- this war on terror, we will have peace intercepted now anywhere in the world BATANT STATUS REVIEW TRIBUNALS AND AD- and the United States will never send who, regardless of nationality or phys- MINISTRATIVE REVIEW BOARD TO DETERMINE its men and women in harm’s way ical location, is in custody or physical STATUS OF DETAINEES AT GUANTANAMO BAY, control of the United States because a CUBA.—The President is authorized to utilize again. the Combatant Status Review Tribunals and History shows me otherwise. What person who is American happens to be there. a noticed Administrative Review Board, and happens in the next conflict when the procedures thereof as specified in sub- American military personnel are held Again, I mention these teams I have section (b), currently in operation at Guan- captive by the enemy and they make met with, and I respect multinational tanamo Bay, Cuba, in order to determine the the argument, with some validity, that teams. This, in effect, says that an status of the detainees held at Guantanamo we have violated the rules of war? American is responsible for anything Bay, including whether any such detainee is What happens to our men and women done by any member of that team. a lawful enemy combatant or an unlawful in the military then? That, to me, is wrong. enemy combatant. (b) PROCEDURES.— There are some who will say they What is more, I think it is wrong to presume there is no place in this coun- (1) IN GENERAL.—Except as provided in wouldn’t respect the rules of war, any- paragraph (2), the procedures specified in way. If they are not sure they are going try or in the operation of this country this subsection are the procedures that were to win, as the Germans weren’t in where we should not have the ability to in effect in the Department of Defense for World War II, they might treat our deal with terrorists on their own the conduct of the Combatant Status Review prisoners according to certain stand- ground. Tribunal and the Administrative Review ards if we insist upon those standards. These are vicious people, suicidal Board on July 1, 2005. I think there is a lot at stake. I re- people. I do not think they should be (2) EXCEPTION.—The exceptions provided in spect the position of the administra- accorded the rank and treatment of this paragraph for the procedures specified in paragraph (1) are as follows: tion, that these should be under the au- men and women in uniform from other nations. That is what this amendment (A) To the extent practicable, the Combat- thority and responsibility and would ant Status Review Tribunal shall determine, erode the flexibility of the President of does. I shall oppose it. I may be all by a preponderance of the evidence, whether the United States. I don’t believe so. alone, but I shall oppose it because I statements derived from persons held in for- This amendment basically restates think there is a place in our operations eign custody were obtained without undue what we have been practicing for cer- against individuals involved in the war coercion. tainly all of the 21st and the 20th cen- on terrorism where we deal with them (B) The Designated Civilian Official shall turies. as they deal with us. be an officer of the United States Govern- I think we owe it to the people, these These are not military people. They ment whose appointment to office was made brave young Americans such as Cap- may not even be American nationals by the President, by and with the advise and consent of the Senate. tain Fishback, who want and deserve a who are working for us in an under- (3) MODIFICATION OF PROCEDURES.—The clarification in the way they can carry cover way, but this says we are respon- President may modify the procedures and re- out their responsibilities and duties as sible for treating all these people ac- quirements set forth under paragraphs (1) they travel into harm’s way. cording to the Geneva Conventions and and (2). Any modification of such procedures

VerDate Aug 31 2005 05:52 Dec 28, 2006 Jkt 059060 PO 00000 Frm 00014 Fmt 0637 Sfmt 0634 E:\RECORDCX\T37X$J0E\S05OC5.REC S05OC5 hmoore on PROD1PC68 with CONG-REC-ONLINE October 5, 2005 CONGRESSIONAL RECORD — SENATE S11073 or requirements may not go into effect until tanamo Bay. The people at Guanta- What does this mean, very briefly? It 30 days after the date on which the President namo Bay have been participating in means we can go to the world and say notifies the congressional defense commit- the allegations, or they have been par- we have a procedure in place at Guan- tees of the modification. ticipating in terrorist activities, sup- tanamo Bay that will determine who (c) DEFINITIONS.—In this section: (1) The term ‘‘lawful enemy combatant’’ porting terrorist organizations as an an enemy combatant is and that these means person engaging in war or other unlawful enemy combatant. They are procedures are blessed by the courts, armed conflict against the United States or not uniformed soldiers. they are blessed by the Congress, and its allies on behalf of a state party to the Ge- We are reviewing everyone that they are blessed by the administration. neva Convention Relative to the Treatment comes to Guantanamo Bay to see if It would be good to be able to say, as a of Prisoners of War, dated August 12, 1949, they deserve the status ‘‘enemy com- nation, that all three branches of Gov- who meets the criteria of a prisoner of war batant.’’ The term ‘‘enemy combatant’’ ernment—the executive branch, the ju- under Article 4 of that Convention. came out of World War II when we had (2) The term ‘‘unlawful enemy combatant’’, dicial branch and the legislative with respect to noncitizens of the United a Supreme Court case recognizing that branch—have all agreed on procedures States, means a person (other than a person term for German saboteurs who landed, to take enemy combatants off the bat- described in paragraph (1)) engaging in war, I think, in Florida and were trying to tlefield and give those people who are other armed conflict, or hostile acts against do sabotage throughout the United suspected of being enemy combatants the United States or its allies, regardless of States. These six or seven Germans due process rights consistent with location. were not in uniform. They were tried whom we are as a people and give Mr. GRAHAM. Madam President, I by a military commission. enough flexibility to the military to thank Senator STEVENS for allowing We have a military commission at make sure these people do not go back me to do this. I appreciate that we Guantanamo Bay that I totally sup- to the fight. have a busy day. port. And I think enemy combatant The truth is, several hundred have I totally understand where he is com- status was a result of that Supreme been captured and released. The proc- ing from about the interrogation Court case. They were given that deter- ess is working very well at Guanta- amendment. I come out on a different mination. namo Bay. I compliment the adminis- side. This amendment deals with the What we are trying to do is stream- tration for setting up a combat status combat status review procedure at line interrogation techniques to deal review process that has been changed a Guantanamo Bay. I think it is very with both lawful and unlawful combat- couple of times. It is eminently fair. necessary. I think it strengthens what ants. That helps our troops, gives them This amendment blessed that process. the administration is trying to do guidance. It has two small changes. It would when it comes to enemy combatants. I The second thing we are doing with strengthen the process, and it would think it helps the administration in my amendment is legitimizing, end this never-ending court debate court and is good policy for the coun- through congressional action, what the about what to do. try. administration has done at Guanta- The courts have been telling us, Con- No. 1, I totally agree with the Presi- namo Bay. The administration, in my gress, if you got involved, it would help dent that a member of al-Qaida should opinion, has put together a very good, us figure out what we should be doing. not be given Geneva Conventions sta- thorough process to look at each per- Justice Scalia, as Senator MCCAIN indi- tus. I say to my friend from Alaska son that comes to Guantanamo Bay to cated, screamed out, in a dissenting that Senator MCCAIN’s amendment determine whether or not they should opinion granting habeas corpus rights doesn’t confer Geneva Conventions sta- be classified as enemy combatants be- to enemy combatants, that the courts tus on enemy combatants. It standard- cause if they are classified as enemy are ill-equipped to run this war. Now, izes the interrogation techniques. The combatants, they can be detained in- with this amendment, the Congress Army Field Manual has a section for definitely and taken off the battlefield. will bless what the administration has lawful combatants, those covered The due process rights afforded an put in place, making small changes under the Geneva Conventions, and it enemy combatant have been up to the which will strengthen the administra- will have a provision for unlawful com- Supreme Court, and the Supreme tion’s hands in the court. The courts batants. Al-Qaida should not be given Court, for the most part, has blessed will feel more comfortable ratifying Geneva Conventions status. The Gene- the procedure. There have been some this process, and we will be a united va Conventions and the signatories to concerns expressed by the Court. nation, a united front in all three the convention set the rules for the My amendment tries to, one, legiti- branches of Government when it comes conduct of war. An unlawful enemy mize what the administration has cre- to dealing with enemy combatants. combatant is someone who goes around ated at Guantanamo Bay in terms of a It is very important that anyone who the battlefield without a uniform, review process to determine who is an engages in unlawful enemy combatant doesn’t represent a nation—a terrorist, enemy combatant and who is not. We activities against this Nation be taken for lack of a better word. They do not made two small changes. We have off the battlefield and kept off the bat- deserve the protection of the Geneva learned in the past that sometimes tlefield as long as necessary to make us Conventions because they are cheating. people have been because of a single safe. They deserve a certain amount of But they do, in my opinion, deserve statement made, while in the hands of process because whom we are as a peo- what the President said—not so much a foreign agency, a foreign country, ple and the process we are blessing because they deserve it but because it that was given under duress. The gives them very adequate due process is about who we are. amendment says that if a civilian is to rights. The President said even enemy com- determine enemy combatant status in This amendment strengthens those batants—members of al-Qaida—will be a statement from a foreign interroga- rights. They deserve to be taken off the treated humanely. When we capture tion, you have to prove that the state- battlefield, and people engaging in un- somebody on the battlefield—through- ment was not unnecessarily coerced. lawful enemy combatant activities out the world because the whole world Most Americans, I think, agree with should be taken off the battlefield as is the battlefield in the war on terror— that, and the people at Guantanamo long as necessary to protect our coun- most of the people we are dealing with Bay agree with that. try. are not part of the uniformed force, not Second, the civilian who will deter- Second, they deserve to be pros- like the Iraqi Army. mine from the appeal process whether ecuted in some instances. There are The President said early on these or not the enemy combatant status, three things we are trying to accom- people will be humanely treated but which is reviewed annually, should be plish. We are trying to standardize in- they will not be given Geneva Conven- held, would be appointed by the Senate terrogation techniques to protect our tion status. He is absolutely right. as a Presidential appointment. Gordon own troops and have a one-stop shop- When we catch someone, say, in Af- England is doing it now, and he is a ping for what the rules are. That is ghanistan, who is a member of al-Qaida Presidential appointee. That continues through Senator MCCAIN’s amendment. or some other terrorist network, cer- the trend. I think it would be good to We are trying to keep the moral high tain people, once screened, go to Guan- have the Senate involved. ground, as expressed by the President,

VerDate Aug 31 2005 05:52 Dec 28, 2006 Jkt 059060 PO 00000 Frm 00015 Fmt 0637 Sfmt 0634 E:\RECORDCX\T37X$J0E\S05OC5.REC S05OC5 hmoore on PROD1PC68 with CONG-REC-ONLINE S11074 CONGRESSIONAL RECORD — SENATE October 5, 2005 to say we are not torturing people, we have the release authority or the ap- concurring opinions. The one common are not going to treat people peal authority to enemy combatant theme is the courts are suggesting to inhumanely because that weakens us. status; and two, prohibit the use of a Congress we get involved. The bottom line, it is not the right way single statement to hold somebody as When it comes to combat status re- to get good information and weakens an enemy combatant who was in a for- view, I am totally convinced, after us. The more standardization the bet- eign government’s hands, unless we can talking with now Chief Justice Rob- ter. show the statement was not a result of erts, this would be an area where the When it comes time to keep people torture. courts would welcome congressional off the battlefield, with this amend- We have learned from our experience involvement. He said to me in the hear- ment we are stronger as a nation be- at Guantanamo Bay that would be a ings that the President or the execu- cause Congress will have blessed what good change. tive branch is at its strongest when the administration has done. Mr. MCCAIN. Will the Senator yield? they have the implied or express sup- In that regard, I offer this amend- Mr. GRAHAM. Yes. port of the Congress. ment as a way to bring clarity to a sit- Mr. MCCAIN. Does the Senator know So the purpose of this amendment, if uation that is very important in the how many detainees have been brought I may say very briefly, is for Congress war on terror. We need to keep enemy to trial in Guantanamo Bay? to legitimize what is going on at Guan- Mr. GRAHAM. Of all the people we combatants, once they have been law- tanamo Bay about determining enemy have detained—over 500—no one has fully determined to be an enemy com- combatant status, legitimizing that re- been brought to trial yet. Two will be batant, off the battlefield as long as it view process by making some changes. brought to trial in November. takes to secure this Nation. This If we would do that, I am convinced the One of the reasons that we cannot amendment helps to do that. courts would welcome that involve- bring people to trial is because the I ask for the yeas and nays. ment and a lot of this litigation would Federal courts have issued a stay on The PRESIDING OFFICER. Is there a end overnight. prosecutions that has now been lifted. sufficient second? Mr. STEVENS. If the Senator will There is a sufficient second. We are moving forward. The yeas and nays were ordered. There is another Supreme Court case yield, has this matter been discussed in Mr. STEVENS. Madam President, I dealing with the due process rights of the Committee on Armed Services? Mr. GRAHAM. I have discussed it am informed there are objections from determining whether a person is an with one of the cosponsors of the Members of the Committee on Armed enemy combatant. The procedure is in amendment, Senator WARNER, yes. I Services to this amendment. I urge place at Guantanamo Bay and has been have been to Guantanamo Bay with them to come over and defend their po- generally blessed by the Court because Senator WARNER and others, where we sition. they have been stayed on those pro- have talked about this. Yes, sir, I am This Senator was prepared to accept ceedings, too. very sure that the chairman knows the amendment. It may be subject to a Mr. MCCAIN. If the Senator will point of order. I am not sure. I do be- yield, aren’t there two different Court about this because he is a cosponsor of lieve there are detainee items in the decisions now that are in direct con- the amendment. House-passed bills that would be ger- travention of each other as to the dis- Mr. STEVENS. I say to the Senator, mane under the circumstances, but it position of these cases? that is another question. We were pre- is another example, I might say, of the Mr. GRAHAM. Yes there is. pared to accept the amendment be- problems we get into when items that Mr. MCCAIN. Could the Senator de- cause—I don’t claim expertise in this pertain to legislation end up on appro- scribe those. area; it is not within our jurisdiction. priations bills. Mr. GRAHAM. There was a stay by It is legislation on an appropriations We are not really prepared to debate Federal district judge, staying military bill, but I don’t intend to raise an ob- the amendment. I urge Members of the commission trials. The DC Circuit jection to it. Committee on Armed Services who Court of Appeals overrode the lower Has this been discussed, on a bipar- wish to do so to debate this amend- court. That has gone up to the Su- tisan basis, in the committee? ment. preme Court right now. I am confident Mr. GRAHAM. I was under the as- My only question is—I know the Sen- the Supreme Court will legitimize mili- sumption the amendment was going to ator is an extremely good attorney— tary commissions, maybe with some be accepted, as you were, and now I has the phrase ‘‘unlawful enemy com- changes. have been told there are some concerns batant’’ been used in any other portion This amendment deals with detaining from the minority on the committee. I of our laws of the Geneva Conventions? somebody who is not being prosecuted have talked extensively about these se- Mr. GRAHAM. Yes. It is in the Gene- yet, who may be prosecuted, but keep- ries of amendments. They all work in va Conventions. There is a section ing them off the battlefield because we conjunction with each other. Senator about unlawful enemy combatant, ille- have determined they are an unlawful MCCAIN’s amendment standardized in- gal enemy combatant. enemy combatant. The review process terrogation techniques and what we as The conventions are set up to confer to make that determination I feel very a people want to live by—we do not status on signatories and to make sure comfortable with. And there are some want to torture people. We are not that people who engage in unlawful ac- small changes in the amendment. The going to torture people. tivity are not covered. The people who courts have told us this is an area My amendment standardizes and wear civilian clothes that go in the where Congress needs to act. The makes small changes to the determina- population and engage in terrorist ac- courts have many cases, not just one, tion of who is an enemy combatant and tivity have never been covered under challenging the Guantanamo Bay pro- who is not, because you keep people at the convention. Under the convention, cedures and determining unlawful Guantanamo Bay indefinitely under that is the definition they are giving. enemy combatant. Justice Scalia said this procedure. It needs to be blessed The administration has used the in the dissenting opinion, if this were by Congress. The third thing we do, term that has been legitimized by the an area where Congress spoke, the later on, is deal with military commis- courts for quite a while now in inter- courts would welcome their involve- sions, actually how you try these peo- national law. In the review process at ment. ple. Guantanamo Bay, they will take the Mr. MCCAIN. If the Senator will So I was under the understanding, I person off the battlefield. They have to yield further for a question, I guess my say to the Senator, that not only was make a case whether they fit the defi- fundamental question is, aren’t things Senator WARNER a cosponsor of these nition of enemy combatant. Each year in one heck of a mess? two amendments, but that everybody they can challenge the designation. Mr. GRAHAM. The legal status of was on board. The point here is to give What we are doing in this amendment military commissions and the combat the courts some guidance to bring is basically blessing that procedure, re- status review process are in legal limbo about legal certainty where there is a quiring two more things. unnecessarily. legal mass, as Senator MCCAIN indi- One, the idea that the Senate will If you read these opinions, they are a cated. So I don’t know why anybody is confirm the person who will ultimately hodgepodge of different dissenting and objecting.

VerDate Aug 31 2005 05:52 Dec 28, 2006 Jkt 059060 PO 00000 Frm 00016 Fmt 0637 Sfmt 0634 E:\RECORDCX\T37X$J0E\S05OC5.REC S05OC5 hmoore on PROD1PC68 with CONG-REC-ONLINE October 5, 2005 CONGRESSIONAL RECORD — SENATE S11075 The PRESIDING OFFICER. The Sen- badly wrong when we are in a war and horrified us and severely damaged our ator from Alaska. somehow we cannot find time in our reputation in the Middle East and Mr. STEVENS. Madam President, I agenda and ought to authorize the around the world. believe the Senator’s amendment has much-needed pay raises, equipment, Instead of taking responsibility for real merit. I find no objection to it. It training, and all of the other things what happened, the generals and senior has been conveyed to me by the admin- that go along with the authorization of administration officials tried to mini- istration. We still have a very small our Nation’s defenses. mize the abuse as the work of ‘‘a few difference—it sounds like a big dif- I yield the floor. bad apples’’—all conveniently lower ference—on the McCain amendment. The PRESIDING OFFICER. The Sen- rank soldiers—in a desperate effort to But we have no difference on this ator from Massachusetts. emphasize the role of senior military amendment. We are prepared to accept Mr. KENNEDY. Madam President, officials in exposing the scandal and in- it, unless someone comes over here and first, I thank the Senator from Arizona sulate the civilian leadership from re- finds a way to articulate an objection. and the Senator from South Carolina sponsibility for changing the rules. Mr. MCCAIN. Madam President, who for bringing focus to this issue. They It is clear what the results of those has the floor? are approaching this issue in different changes were. CPT Ian Fishback, a The PRESIDING OFFICER. The Sen- ways, but it is a matter of enormous West Point graduate and officer in the ator from Alaska has the floor. importance and consequence. Both 82nd Airborne, wrote: Despite my ef- Mr. STEVENS. Madam President, I Senators, as members of the Armed forts, I have been unable to get clear, yield the floor. Services Committee, remember the consistent answers from my leadership The PRESIDING OFFICER. The Sen- good deal of thought, work, and consid- about what constitutes lawful and hu- ator from Arizona. eration given this subject matter by mane treatment of detainees. I am cer- Mr. MCCAIN. Madam President, first, the Armed Services Committee under tain that this confusion contributed to I thank the Senator from Alaska for the guidance of Senator WARNER and a wide range of abuses including death his cooperation. I thank the Senator Senator LEVIN. threats, beatings, broken bones, mur- from South Carolina for his unique and AMENDMENT NO. 1977 der, exposure to elements, extreme very important perspective on this Madam President, now is time for ac- forced physical exertion, hostage tak- issue. But I also point out it is very un- tion. That is why I rise to speak in ing, stripping, sleep deprivation and de- fortunate—very unfortunate—the Sen- strong support of the McCain amend- grading treatment. ator from South Carolina has to put ment and urge our colleagues to under- For nearly 21⁄2 years—from August this on an appropriations bill. I do not stand it and to give it strong support 2002 until December 2004—the executive want to get off the subject too much, as well. branch of our Government operated but there is something wrong with our As we know, nearly 2 years ago, under the assumption that it was not process here that I have to, for my American soldiers at Abu Ghraib were bound by the law that prohibits tor- amendment, find some narrow ger- struggling to figure out how to handle ture. The Office of Legal Counsel pro- maneness in order to get around my the hundreds of detainees who were mulgated an official opinion stating commitment to not authorize on an ap- pouring into that facility. They had no that the President and everyone acting propriations bill. Technically, I am not guidance. They had no directions to under his Commander-in-Chief author- authorizing on an appropriations bill. regulate that treatment. In the ab- ity was free to ignore this law. It It is very unfortunate the Senator sence of that guidance, their treatment states: from South Carolina has to authorize of detainees deteriorated into cruel and Any effort to apply [the anti-torture stat- on an appropriations bill. There may be inhumane and degrading treatment. ute] in a manner that interferes with the . . . some objection from someone in the They documented their cruelty, and detention and interrogation of enemy com- minority. There may be some question. the images are still horrifying—an batants . . . would be unconstitutional. That is because we are not going Iraqi prisoner in a dark hood and cape, This opinion was adopted and imple- through an orderly process. This standing on a cardboard box with elec- mented by the CIA and the Department should have been as an amendment on trodes attached to his body; naked men of Defense. Effectively, what it was the authorization bill, and that should forced to simulate sex acts on each saying was that for anybody who was have been taken up. If someone did not other; the corpse of a man who had operating under the DOD, if the pur- like it, they could have voted to take it been beaten to death, lying in ice, next pose of their torture was to get infor- out. Now we are in a process where the to soldiers smiling and giving a mation, then it was basically all right. Senator from South Carolina has to ‘‘thumbs up’’ sign; a pool of blood from If the purpose of the torture was to put it in. the wounds of a naked, defenseless pris- bring harm, then it would be illegal. Our system here is broken, and we oner attacked by a military dog. But that decision by the Office of Legal need to properly authorize. I certainly The reports of widespread abuse by Counsel in the Department of Justice am not blaming the Senator from Alas- U.S. personnel was initially met with effectively said: The school is out. Peo- ka. He has his responsibility to get the disbelief and then incomprehension. ple can do anything they want to with appropriations bill done. But there is But the reports are too numerous to ig- any detainee. And that was the rule for something wrong when we are in a nore. We had reports of detainees in Af- 21⁄2 years. It is called the Bybee memo- war—in a war; Americans’ lives are on ghanistan shackled to the floor, left randum. We have had extensive hear- the line as we speak—and somehow we out in the elements to freeze to death. ings on that in both the Armed Serv- do not have room in our agenda to au- We have had reports of detainees in ices Committee and the Judiciary thorize the training, the equipping, the Guantanamo who were subjected to Committee. benefits, the pay, all of the things that sexual humiliation. This opinion was adopted and imple- go with an authorization bill, including Human Rights Watch recently re- mented by the CIA and the Department the amendment of the Senator from leased a report based on the statements of Defense. Harold Koh, a leading Carolina. of three soldiers, one officer and two scholar of international law and dean A lot of us have repeatedly decried noncommissioned officers, in the 82nd of Yale Law School, who served in both that this process of legislating is so Airborne who described how their bat- the Reagan and Clinton administra- badly broken today that we cannot talions routinely used physical and tions, called it ‘‘the most clearly le- even take care of the men and women mental torture as means of intel- gally erroneous opinion’’ he has ever in the military in an orderly fashion. It ligence gathering and stress relief—tor- read. That is in reference to the Bybee cries out for fixing. I would hope at ture as a sport. memorandum that was requested by some point we, as a body, would fix They stand in sharp contrast to the the CIA and the Department of De- this system so we authorize before we values America has always stood for: fense, through the Attorney General, appropriate funds. Again, this is meant our belief in the dignity and worth of from the Office of Legal Counsel, to as no criticism of the Senator from all people, our unequivocal stance give them a memorandum to effec- Alaska. He is playing the hand he is against torture and abuse, our commit- tively permit wholesale torture. They dealt. But there is something very ment to the rule of law. The images received that memo, and they used it

VerDate Aug 31 2005 05:52 Dec 28, 2006 Jkt 059060 PO 00000 Frm 00017 Fmt 0637 Sfmt 0634 E:\RECORDCX\T37X$J0E\S05OC5.REC S05OC5 hmoore on PROD1PC68 with CONG-REC-ONLINE S11076 CONGRESSIONAL RECORD — SENATE October 5, 2005 to gut our long-standing laws. That Senator GRAHAM himself accurately wide range of abuses including death threats, Bybee memo was the law of the land, assessed the impact of the civilian au- beatings, broken bones, murder, exposure to effectively, in the CIA and the Depart- thorities when he told the JAG officers elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation ment of Defense for 21⁄2 years. We saw at the hearing: I think it is fair to say and degrading treatment. I and troops under what the results were. The McCain that the Department of Defense was my command witnessed some of these abuses amendment would make sure that will secondary to the Department of Jus- in both Afghanistan and Iraq. not happen again. tice in a political sense, and that was This is a tragedy. I can remember, as a Our political leaders made deliberate our problem. If they had listened from cadet at West Point, resolving to ensure that decisions to throw out the well-estab- the outset, we wouldn’t have had a lot my men would never commit a dishonorable lished legal framework that has long of the problems that we have had to act; that I would protect them from that made America the gold standard for type of burden. It absolutely breaks my deal with in the past. heart that I have failed some of them in this human rights throughout the world. The President is not an emperor or a regard. The administration left our soldiers, king. His administration is not above That is in the past and there is nothing we case officers, and intelligence agents in the law or accountability, and he is can do about it now. But, we can learn from a fog of ambiguity. They were told to certainly not infallible. our mistakes and ensure that this does not ‘‘take the gloves off’’ without knowing The single greatest criticism of this happen again. Take a major step in that di- what the limits were, and the con- administration’s detention and interro- rection; eliminate the confusion. My ap- proach for clarification provides clear evi- sequences were foreseeable. gation policies is that it failed to re- In rewriting our human rights laws, dence that confusion over standards was a spect history, the collective wisdom of major contributor to the prisoner abuse. We the administration consistently over- our career military and State Depart- owe our soldiers better than this. Give them ruled the objections of experienced ment officials, and that it holds far too a clear standard that is in accordance with military personnel and diplomats. The expansive a view of executive author- the bedrock principles of our nation. Secretary of State, Colin Powell, ity. In short, the White House suffers Some do not see the need for this work. warned the White House: Some argue that since our actions are not as from the arrogance of thinking they horrifying as Al Qaeda’s, we should not be It will reverse over a century of U.S. policy knew best and abandoning the long- concerned. When did Al Qaeda become any and practice in supporting the Geneva Con- standing rules. type of standard by which we measure the ventions and undermine the protections of As Captain Fishback wrote: morality of the United States? We are Amer- the law of war for our [own] troops. We owe our soldiers better than this. Give ica, and our actions should be held to a high- Senior Defense officials were warned them a clear standard that is in accordance er standard, the ideals expressed in docu- that changing the rules could lead to with the bedrock principles of our nation. ments such as the Declaration of Independ- so-called ‘‘force drift’’, in which, with- We are America, and our actions should be ence and the Constitution. out clearer guidance, the level of force held to a higher standard, the ideals ex- Others argue that clear standards will applied to an uncooperative detainee pressed in documents such as the Declara- limit the President’s ability to wage the War tion of Independence and the Constitution. on Terror. Since clear standards only limit might well result in torture. interrogation techniques, it is reasonable for William Taft, the State Department The McCain amendment takes a me to assume that supporters of this argu- Legal Advisor in President Bush’s first strong step forward to giving our ment desire to use coercion to acquire infor- term, recently called it a source of troops that standard. I hope it is sup- mation from detainees. This is morally in- amazement and disappointment that ported. Madam President, I ask unani- consistent with the Constitution and justice the Justice Department severely lim- mous consent that Captain Fishback’s in war. It is unacceptable. ited the applicability of the Geneva letter, which was published in the Both of these arguments stem from the larger question, the most important question Conventions to the detainees. In an ad- Washington Post, be printed in the that this generation will answer. Do we sac- dress at American University, he said RECORD. rifice our ideals in order to preserve secu- the decision to do so: There being no objection, the mate- rity? Terrorism inspires fear and suppresses unhinged those responsible for the treatment rial was ordered to be printed in the ideals like freedom and individual rights. of the detainees . . . from the legal guide- RECORD, as follows: Overcoming the fear posed by terrorist threats is a tremendous test of our courage. lines for interrogation . . . embodied in the DEAR SENATOR MCCAIN: I am a graduate of Army Field Manual for decades. Set adrift in West Point currently serving as a Captain in Will we confront danger and adversity in uncharted waters and under pressure from the U.S. Army Infantry. I have served two order to preserve our ideals, or will our cour- their leaders to develop information on the combat tours with the 82nd Airborne Divi- age and commitment to individual rights plans and practices of al Qaeda, it was pre- sion, one each in Afghanistan and Iraq. wither at the prospect of sacrifice? My re- dictable that those managing the interroga- While I served in the Global War on Terror, sponse is simple. If we abandon our ideals in the face of adversity and aggression, then tion would eventually go too far. the actions and statements of my leadership those ideals were never really in our posses- And they did. led me to believe that United States policy sion. I would rather die fighting than give up The Judge Advocates General echoed did not require application of the Geneva even the smallest part of the idea that is Conventions in Afghanistan or Iraq. On 7 Mr. Taft’s concerns. On July 14, 2005, ‘‘America.’’ the JAGs appeared before the Senate May 2004, Secretary of Defense Rumsfeld’s Once again, I strongly urge you to do jus- Armed Services Committee’s Sub- testimony that the United States followed tice to your men and women in uniform. committee on Personnel. In response to the Geneva Conventions in Iraq and the Give them clear standards of conduct that ‘‘spirit’’ of the Geneva Conventions in Af- questioning by my friend Senator reflect the ideals they risk their lives for. ghanistan prompted me to begin an approach With the Utmost Respect, GRAHAM, the witnesses acknowledged for clarification. For 17 months, I tried to de- that the Justice Department’s policy CAPT. IAN FISHBACK, termine what specific standards governed 82nd Airborne Division, embodied in the Bybee torture memo- the treatment of detainees by consulting my Fort Bragg, North Carolina. randum’s definition of torture was a chain of command through battalion com- Mr. KENNEDY. I suggest the absence violation of international and domestic mander, multiple JAG lawyers, multiple of a quorum. law and alarmed the Judge Advocates Democrat and Republican Congressmen and their aides, the Ft. Bragg Inspector Gen- The PRESIDING OFFICER. Will the General who reviewed it. Senator withhold? Their alarm was well founded be- eral’s office, multiple government reports, the Secretary of the Army and multiple gen- Mr. KENNEDY. I withhold my sug- cause their concerns were overruled by eral officers, a professional interrogator at gestion. General Counsel William Haynes, who Guantanamo Bay, the deputy head of the de- f issued the Defense Department’s April partment at West Point responsible for 2003 Working Group Report. The report teaching Just War Theory and Law of Land RECESS twisted and diluted the definition of Warfare, and numerous peers who I regard as The PRESIDING OFFICER. Under ‘‘torture,’’ claimed that military per- honorable and intelligent men. the previous order, the hour of 12:30 sonnel who commit torture may invoke Instead of resolving my concerns, the ap- p.m. having arrived, the Senate will the defenses of ‘‘necessity’’ and ‘‘supe- proach for clarification process leaves me deeply troubled. Despite my efforts, I have now stand in recess until 2:15 p.m. rior orders,’’ and advised military per- been unable to get clear, consistent answers Thereupon, the Senate, at 12:29 p.m., sonnel that they are not obligated to from my leadership about what constitutes recessed until 2:15 p.m. and reassem- comply with the Federal prohibition on lawful and humane treatment of detainees. I bled when called to order by the Pre- torture. certain that this confusion contributed to a siding Officer (Mr. SUNUNU).

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