National Defense Authorization Act for Fiscal Year 2009--Continued

Floor Speech

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2009--Continued -- (Senate - September 15, 2008)

The PRESIDING OFFICER (Mr. SANDERS). The Senator from Rhode Island is recognized.

AMENDMENT NO. 5369

Mr. WHITEHOUSE. Mr. President, I have an amendment I have filed to the Defense authorization bill, amendment No. 5369. I would like a take a few minutes to discuss it here today. I hope very much that this amendment can be called up. Indeed, I hope the entire intelligence authorization bill could be called up as a part of the compromise on the Defense authorization.

Chairman Rockefeller on the Intelligence Committee has done exemplary work to make sure we have a good, intense authorization bill. I hope very much that my colleagues on the other side of the aisle will allow that to be called forward and voted on.

This particular amendment I want to talk about now, although it is small, is very important, and in my view it should be noncontroversial. This amendment is cosponsored by Senators FEINSTEIN, ROCKEFELLER, HAGEL, KENNEDY, FEINGOLD, WYDEN, CARDIN, and DODD. I thank all of those Senators for their cosponsorship.

The amendment is simple. It holds the United States only to standards we already require of our own military, only to standards we ourselves demand of other nations. Put simply, the amendment would require America's intelligence agencies to notify the International Committee of the Red Cross that an individual has been detained and to provide the ICRC with access to that individual in a manner consistent with the practices of the U.S. military. These terms of access are very reasonable, and confidentiality by the ICRC is maintained.

I said this was an important amendment. Why is this important? Well, President Clinton said it well recently:

America's true strength comes from the power of our example, not the example of our power.

If you really believe in our country and her virtue and in her promise, you understand this, and you understand what grievous and lasting harm America has suffered from this administration's embrace of torture and from this administration's embrace of torture's handmaiden: secret detention.

If you go down the corridors of history and you survey the evil practices of tyrant regimes, you find one of their most notorious methods of coercion and subjugation is holding prisoners incommunicado. From the oubliettes of Bourbon, France, to Calcutta's Black Hole; from the Gestapo's secret prisons to the Soviet gulags; from medieval dungeons to the bamboo cages of the Killing Fields, secret and anonymous imprisonment has always been the hallmark of the despot. Now the Bush administration has stamped America with this shameful mark.

America long opposed disappearances and secret detentions around the world as incompatible with our principles of liberty and justice. Just this past March, in its 2007 Annual Human Rights Report, the U.S. Department of State criticized the Governments of North Korea, Burma, and Sri Lanka for engaging in ``disappearances.'' Yet, on December 8, 2005, the Bush administration acknowledged that the ICRC did not have access to detainees--to all detainees--held outside of Guantanamo. President Bush confirmed as much nearly 9 months later when he stated publicly that it had been ``necessary'' to move certain detainees to an ``environment where they can be held secretly.''

This amendment should be unremarkable given the historic role of the ICRC. The ICRC has been visiting detainees in connection with armed conflict since 1915. Last year, the ICRC visited 518,000 detainees in 77 countries. This organization visits prisoners, in its words, ``to ensure respect for their life, dignity and fundamental right to judicial guarantees.'' All these notions are part of the bedrock, as we know, of our own Constitution. A seminal text on this subject, ``The Treatment of Prisoners Under International Law,'' describes the prohibition of incommunicado detention as among the most central of all international prisoner safeguards.

The ICRC holds this unique role in part because of the way it conducts its business.

After a visit, the ICRC reports its findings confidentially to the detaining government. The ICRC has said this confidentiality is fundamental to its success, noting that it ``makes it easier for the ICRC and the detaining authorities to achieve concrete progress in detention places.'' Because of the ICRC's approach, this amendment carefully safeguards our national security. There is even flexibility for what are called ``imperative considerations of military necessity.'' Notably, the ICRC has played an important role for U.S. troops detained by other governments. The American Red Cross reports that the ICRC visited 55 U.S. prisoners of war in Iraq during the first gulf war and three U.S. servicemembers in a Serbian prison during the Kosovo conflict.

In World War II, in the places where the ICRC could operate, it provided badly need assistance to U.S. soldiers. For example, in Shanghai, one of the few areas the Japanese permitted ICRC access to detainees, the ICRC delegate sent the U.S. prisoners of war food and clothing. PFC Floyd H. Comfort, a part of the Wake Island Marine garrison said:

If it had not been for the International Red Cross, I guess we all would have starved to death.

Respected members of our military family recognize that this amendment would strengthen our ability to advocate for appropriate treatment of Americans detained overseas. I would like to place in the Record a letter from 38 retired military leaders, distinguished generals and admirals who have concluded this amendment is a ``critical measure to ensure continuing respect for the norm that [ICRC] access must be provided to all captives in wartime.''

I ask unanimous consent that the letter be printed in the Record.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

BREAK IN TRANSCRIPT

Mr. WHITEHOUSE. This letter comes from battlefield warriors and intelligence officers who participated in every major American conflict from World War II until today. One of them, indeed, only 2 1/2 years ago, was a member of our Joint Chiefs of Staff. These flag officers go on to say that ``when we violate this norm ourselves, by holding prisoners in secret--`off the books'--denying that they are in our custody and refusing to permit Red Cross access to them to monitor their treatment, we dangerously undermine our ability to demand that our enemies adhere to it, now and in future wars.''

These military leaders also emphasize that the U.S. military's practices for ICRC notification and access to prisoners ``are tailored to accommodate the demands of battlefield intelligence gathering and detention and do not interfere with prisoner interrogations.''

The ill-advised course that leads one down to darkness was famously described by Winston Churchill. He said:

It is a fine broad stairway at the beginning, but after a bit, the carpet ends. A little further on there are only flagstones, and a little farther on still these break beneath your feet.

This is the dark corridor down which a misguided administration has led America. The sooner we turn back, the stronger and safer America will be. Remember also the Gospel according to Matthew, chapter 25, verses 36 to 40:

I was naked and you clothed me. I was sick and you visited me. I was in prison and you came to me.

This applies even to those who are, to quote from Matthew again, ``the least of our brethren'' because ultimately it is not about who they are, it is about who we are. And who are we? We are still that city on a hill. We are still a beacon to other nations. The light of our faith in human freedom still brightens the world. And as we trust in God, let's also trust in that faith and freedom, in that faith in America. Let's step back from the dark side, away from the grim tactics of tyrant regimes and into the light of our faith in America.

I hope we can bring up this amendment. I can't imagine why anybody in this room would object. Yet here we are.

I yield the floor and suggest the absence of a quorum.

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