National Defense Authorization Act for Fiscal Year 2006--Conference Report

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006--CONFERENCE REPORT -- (Senate - December 21, 2005)

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Mr. CORNYN. Mr. President, I express my concern regarding the adoption of the McCain amendment as part of the National Defense Authorization Act. Although I am pleased the legislation now includes important protections for the brave men and women who are interrogating terrorists around the world, I am nevertheless concerned that this legislation may hinder our intelligence collection activities.

Many supporters of the amendment, including the mainstream media, claim that the legislation ``bans'' torture--leaving the impression that torture was somehow legal under our current laws. This is incorrect. Torture is prohibited under current U.S. law and treaty obligations, and President Bush has unequivocally stated that the United States will not engage in torture, and we will treat all detainees in a humane fashion. In fact, this legislation will likely prohibit current legal interrogation techniques that stop well short of torture and are providing valuable intelligence information.

We all agree that in order to achieve victory in the war on terror, the United States must have the very best intelligence we can acquire through technical means and the interrogation of captured terrorists. Many of these terrorists are highly trained to resist U.S. interrogation techniques. Although I adamantly oppose torture, I believe we must use every legal means--including aggressive interrogation methods that some may find objectionable--to get intelligence that will save American lives. I voted against the McCain amendment out of a deep concern that it would potentially limit certain interrogation methods that may be necessary to save American lives.

We know that aggressive--yet humane--interrogation techniques were instrumental in gaining valuable information from Khalid Sheikh Mohammed, a key architect of the 9/11 attacks, and other terrorists in U.S. custody. We must not abandon these important and legal questioning methods for the sake of political correctness. We must send a strong signal to terrorists everywhere that if they are captured by the United States, while they will be treated humanely, we will use every legal method to force them to reveal their designs on the United States.

Torture does not produce good intelligence. People who are tortured will tell their captors anything they want to hear and not the truth. More importantly, torture does not represent the values of America and all that we stand for as a Nation. However, we should not unnecessarily limit our military and intelligence agencies from aggressively interrogating those individuals who wish to kill innocent Americans. We must always remember that the terrorists who attacked America on 9/11 are relentless in their efforts to destroy us.

Finally, some have argued that the passage of the McCain amendment would have somehow prevented the heinous abuses that we saw at Abu Ghraib prison. This is patently false. The individuals who committed the abuses at Abu Ghraib knew their actions were against the law, yet they violated core American values. The perpetrators of these crimes are now being prosecuted, and the military has undertaken comprehensive reforms to prevent future abuses. As noted by the independent Schlesinger Panel in its report on detainee operations: ``There is no evidence of a policy of abuse promulgated by senior officials or military authorities.'' Our military has detained over 80,000 individuals and the instances of detainee abuse are extremely rare and they are prosecuted when discovered. To imply that our military or intelligence services are torturing detainees as a matter of policy is a distortion of reality.

In our efforts to demonstrate to the world that the United States does not torture terrorists, we must not weaken our ability to prosecute the war on terror. Our military and intelligence personnel must have the tools--including aggressive interrogation techniques--to question captured terrorists. I remain concerned that the McCain amendment, although admirable in its intent, may hinder our efforts to collect vital intelligence, and I make no apologies for endorsing all legal means of obtaining actionable intelligence that will save American lives.

Mr. GRAHAM. Mr. President, today I rise to comment upon the recently passed Defense authorization bill. That bill contained a Graham-Levin-Kyl amendment which dealt with the Combatant Status R eview Tribunals and Military Commissions at Guantanamo Bay. I was very pleased to join with Senators LEVIN and KYL and others to offer this amendment, and I want to thank them for working so hard on this issue.

In rising today, I address one particular section of our amendment, the requirement that the tribunals consider whether evidence was coerced. In drafting this section, we were compelled to recognize three basic facts.

First, we were compelled to recognize the impracticality of importing domestic criminal protections into a forum constructed to administer what are essentially enemy soldiers; combatants for a very unique enemy, an enemy without uniforms, capitals, or cohesive command structures, but combatants nonetheless.

Second, we were forced to address the necessity of relying on evidence without a complete picture of how it was obtaine d; evidence that might be obscured by the fog of war, derived from battlefield intelligence, from classified sources, or even through unknown circumstances.

Lastly, we were required by our constitutional responsibilities to err on the side of protecting the American people. In instances where there is some doubt as to the evidence or the status of the detainee, the benefit of the doubt must go to the government as it seeks to discharge its first duty, providing for the common defense of our people.

In our efforts to balance these interests, we initially included an exclusionary rule for evidence obtained through ``undue coercion.'' We felt that the term ``undue coercion'' reflected the reality that, in the national security context, there is some level of coercive interrogation that is acceptable. We also understand that, at some point, the reliability of the information can be questioned as a result of the methods used to obtain it. I believe Guantanamo Bay serves a unique and necessary purpose in the war on terror, but we need to ensure that we are holding the right people.

However, upon reconsideration, we came to believe that the term ``undue coercion,'' being a new term without legal precedent, might not be as instructive as we required. Furthermore, a number of the military judge advocates we consulted were concerned that the exclusionary rule could limit them from considering evidence tainted by only an allegation of mistreatment.

Therefore, after much consultation with legal professionals, we decided to eliminate the ``undue'' qualifier. Unfortunately, striking the qualifier also eliminated the consideration of whether the information was obtained by acceptable sources and methods. Accordingly, we decided to refrain from mandating the exclusionary rule. Instead, our language requires, for the first time, the panels to consider the source of the information and the information's reliability. I am very confident our language provides for the proper consideration.

Now, to be sure, our language also provides for the benefit of the doubt to go to the government. In granting this benefit, however, we recognize that we are fundamentally different from our adversaries. Though we may fail at times, we strive to be fair and just and honorable. And because our military men and women exemplify those values, we can trust them to fairly administer this process. In the end, we must remember that this is a military administrative process, and, with the proper congressional and judicial oversight provided by our amendment, we must trust our professional military officers to do their jobs.

In our amendment as a whole, we sought to protect our national security while still striking the proper balance between aggressively interrogating detainees and providing a competent military administrative process for their status determination. I am confident that this new evidentiary standard serves that goal.

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