Department of Defense Appropriations Act, 2006--Conference Report
DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2006--CONFERENCE REPORT
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Mr. DURBIN. Mr. President, I rise to speak about the Detainee Treatment Act of 2005, which is included in the Defense Appropriations conference report.
I will submit a similar statement into the RECORD for the Defense authorization conference report because the Detainee Treatment Act of 2005 is also included in the Defense authorization bill.
The Detainee Treatment Act includes two provisions that were adopted in the Senate version of the Defense Authorization bill: the McCain Antitorture amendment and the Graham-Levin Detainee amendment.
I was an original cosponsor of the McCain Antitorture amendment. I have spoken at length about the vital importance of this amendment on several other occasions. At this time, I simply want to reiterate a couple of points.
Twice in the last year and a half, I have authored amendments to affirm our Nation's longstanding position that torture and cruel, inhuman, or degrading treatment are illegal. Twice, the Senate unanimously approved my amendments. Both times, the amendments were killed behind the closed doors of a conference committee--at the insistence of the Bush administration.
I am pleased that the administration has changed its position. As a result, it will now be absolutely clear that under U.S. law all U.S. personnel are prohibited from subjecting any detainee anywhere in the world to torture or cruel, inhuman, or degrading treatment.
The amendment defines cruel, inhuman, or degrading treatment as any conduct that would constitute the cruel, unusual, and inhumane treatment or punishment prohibited by the U.S. Constitution if the conduct took place in the United States. Under this standard, abusive treatment that would be unconstitutional in American prisons will not permissible anywhere in the world.
Let me give you some examples of conduct that is clearly prohibited by the McCain amendment.
``Waterboarding'' or simulated drowning is a technique that was used during the Spanish Inquisition. It is clearly a form of torture. It creates an overwhelming sense of imminent death. It amounts to a clear-cut threat of death akin to a mock execution, which is expressly called ``mental torture'' in the U.S. Army Field Manual.
Sleep deprivation is another classic form of torture which is explicitly called ``mental torture'' in the U.S. Army Field Manual. It has been banned in the United Kingdom and by a unanimous Israeli Supreme Court, and the U.S. Supreme Court has repeatedly declared it unconstitutional, once citing a report that called it ``the most effective form of torture''.
The amendment also clearly bans so-called stress positions or painful, prolonged forced standing or shackling. Again, the U.S. Army Field Manual expressly calls these techniques ``physical torture.'' Moreover, one of the most recent Supreme Court cases on the extent of the prohibitions on ``cruel and unusual'' punishments expressly outlawed the use of painful stress positions, denouncing their ``obvious cruelty'' as ``antithetical to human dignity.''
The amendment bans the use of extreme cold, or hypothermia, as an interrogation tactic. Hypothermia can be deadly. Clearly it is capable of causing severe and lasting harm, if not death, and consequently is banned by both the Field Manual and the Constitution.
The amendment bans punching, striking, violently shaking or beating detainees. Striking prisoners is a criminal offense and clearly unconstitutional. Moreover, while assaults like slapping and violent shaking, may not seem as dangerous as beatings, shaking did, in fact, kill a prisoner in Israel, and the tactic has been banned by the Israeli Supreme Court. Numerous U.S. Supreme Court cases likewise prohibited striking prisoners.
The amendment bans the use of dogs in interrogation and the use of nakedness and sexual humiliation for the purpose of degrading prisoners.
No reasonable person, given the text of the amendment, the judicial precedents, and common sense, would consider these techniques to be permitted. Any U.S. official or employee who receives legal advice to the contrary should think twice before defying the will of the Congress on this issue.
The McCain antitorture amendment will make the rules for the treatment of detainees clear to our troops and will send a signal to the world about our Nation's commitment to the humane treatment of detainees.
I want to express again my opposition to the Graham-Levin amendment.
The amendment would essentially eliminate habeas corpus for detainees at Guantanamo Bay. In so doing, it would apparently overturn the Supreme Court's landmark decision in Rasul v. Bush.
No one questions the fact that the United States has the power to hold battlefield combatants for the duration of an armed conflict. That is a fundamental premise of the law of war.
However, over the objections of then-Secretary of State Colin Powell and military lawyers, the Bush administration has created a new detention policy that goes far beyond the traditional law of war. The administration claims the right to seize anyone, including an American citizen, anywhere in the world, including in the United States, and to hold him until the end of the war on terrorism, whenever that may be. They claim that a person detained in the war on terrorism has no legal rights. That means no right to a lawyer, no right to see the evidence against him, and no right to challenge his detention. In fact, the Government has argued in court that detainees would have no right to challenge their detentions even if they claimed they were being tortured or summarily executed.
U.S. military lawyers have called this detention system ``a legal black hole.''
Defense Secretary Rumsfeld has described the detainees as ``the hardest of the hard core'' and ``among the most dangerous, best trained, vicious killers on the face of the Earth.'' However, the administration now acknowledges that innocent people are held at Guantanamo Bay. In late 2003, the Pentagon reportedly determined that 15 Chinese Muslims held at Guantanamo are not enemy combatants and were mistakenly detained. Almost 2 years later, those individuals remain in Guantanamo Bay.
Last year, in the Rasul decision, the Supreme Court rejected the administration's detention policy. The Court held that detainees at Guantanamo have the right to habeas corpus to challenge their detentions in Federal court. The Court held that the detainees' claims that they were detained for years without charge and without access to counsel ``unquestionably describe custody in violation of the Constitution, or laws or treaties of the United States.''
The Graham amendment would protect the Bush administration's detention system from legal challenge. It would effectively overturn the Supreme Court's decision. It would prevent innocent detainees, like the Chinese Muslims, from challenging their detention.
However, I do want to note some limitations on the scope of the Graham-Levin amendment.
A critical feature of this legislation is that it is forward looking. A law purporting to require a Federal court to give up its jurisdiction over a case that is submitted and awaiting decision would raise grave constitutional questions. The amendment's jurisdiction-stripping provisions clearly do not apply to pending cases, including the Hamdan v. Rumsfeld case, which is currently pending before the Supreme Court. In accordance with our traditions, this amendment does not apply retroactively to revoke the jurisdiction of the courts to consider pending claims invoking the Great Writ of Habeas Corpus challenging past enemy combatant determinations reached without the safeguards this amendment requires for future determinations. The amendment alters the original language introduced by Senator GRAHAM so that those pending cases are not affected by this provision.
The amendment also does not legislate an exhaustion requirement for those who have already filed military commission challenges. As such, nothing in the legislation alters or impacts the jurisdiction or merits of the Hamdan case.
Nothing in the legislation affirmatively authorizes, or even recognizes, the legal status of the military commissions at issue in Hamdan. That is the precise question that the Supreme Court will decide in the next months. Right now, the military commissions are legal under a decision of the DC Circuit, and this amendment reflects, but in no way endorses that present status. It would be a grave mistake for our allies around the world to think that we are endorsing this system at Guantanamo Bay--a system that has produced not a single conviction in the 4 years since the horrible attacks of September 11, 2001.
This provision attempts to address problems that have occurred in the determinations of the status of people detained by the military at Guantanamo Bay and elsewhere. It recognizes that the Combatant Status Review Tribunal, CSRT, procedures applied in the past were inadequate and must be changed going forward. As the former chief judge of the U.S. Foreign Intelligence Surveillance Court found, in In Re Guantanamo Detainee Cases, the past CSRT procedures ``deprive[d] the detainees of sufficient notice of the factual bases for their detention and den[ied] them a fair opportunity to challenge their incarceration,'' and allowed ``reliance on statements possibly obtained through torture or other coercion.'' Her review ``call[ed] into serious question the nature and thoroughness'' of the past CSRT process. The former CSRT procedures were not issued by the Secretary of Defense, were not reported to or approved by Congress, did not provide for final determinations by a civilian official answerable to Congress, did not provide for the consideration of new evidence, and did not address the use of statements possibly obtained through coercion.
To address these problems, this provision requires the Secretary of Defense to issue new CSRT procedures and report those procedures to the appropriate committees of Congress; it requires that going forward the determinations be made by a Designated Civilian Official who is answerable to Congress; it provides for the periodic review of new evidence; it provides for future CSRTs to assess whether statements were derived from coercion and their probative value; and it provides for review in the D.C. Circuit Court of Appeals for these future CSRT determinations.
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