Supplemental Appropriations Act, 2009

Floor Speech

SUPPLEMENTAL APPROPRIATIONS ACT, 2009 -- (Senate - May 19, 2009)

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AMENDMENT NO. 1139

SUPPLEMENTAL APPROPRIATIONS ACT, 2009 -- (Senate - May 19, 2009)

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Mr. CORNYN. May I inquire, my amendment is currently the pending amendment?

The PRESIDING OFFICER. The Senator is correct.

Mr. CORNYN. I thank the Chair.

Mr. President, my amendment calls for an end to the poisonous environment of recriminations and second-guessing and even threats of prosecution that have overtaken the debate about detention and interrogation policy in the aftermath of September 11, 2001. This amendment expresses the sense of the Senate that neither the lawyers who offered good-faith legal advice regarding the legality of interrogation techniques, nor any person who relied in good faith on that legal advice, nor any Member of Congress who was briefed beforehand on these enhanced interrogation techniques and who did not object should be prosecuted or otherwise sanctioned. This is, obviously, a sense of the Senate, but I think it is important that the Senate's will be determined and recognized on such a sensitive and important topic.

I know it is hard for us to remember now what it was like in the days following 9/11. Believe it or not, there was a broad bipartisan consensus that America and all Americans, including Congress, should work aggressively within the law to detect, deter, and indeed to defeat further terrorist attacks. Responding to this consensus, patriotic Americans in our intelligence service; namely, the Central Intelligence Agency, the administration, and Congress did everything within our legal power to protect the country from a follow-on terrorist attack.

We recall the horrible day when we saw two airplanes fly into the World Trade Center in New York. But it is not beyond the realm of concern that, indeed, the same terrorists who effected those horrible attacks, killing 3,000 Americans, roughly, on that day, would use some more effective weapon of perhaps a nuclear, biological, or chemical nature. So we know our intelligence officials and the administration and Congress were acutely aware of the environment in which they were acting.

Our intelligence officials believed they could produce actionable intelligence by using some enhanced interrogation techniques, including one that is performed as part of training on some of our own U.S. military personnel; that if the Office of Legal Counsel at the Department of Justice determined this was a legal way for them to gain actual intelligence, perhaps, just perhaps, it could generate intelligence which would allow the Central Intelligence Agency and our military forces to defeat any follow-on terrorist attacks.

It is worthwhile to remember, as my sense-of-the-Senate resolution does, that after the Central Intelligence Agency asked whether these enhanced interrogation techniques were, in fact, lawful, the Office of Legal Counsel, which is the authoritative branch that provides legal advice to the executive branch and the U.S. Government, was asked to render an opinion on whether use of these enhanced techniques, including waterboarding, was, in fact, legal. In fact, after much input and consultation within the executive branch and the lawyers for various parts of the executive branch discussed and interpreted what the constraints of the law were under both international as well as domestic laws, they concluded that under specific guidelines and limitations, it would be lawful for the Central Intelligence Agency, in questioning known al-Qaida leaders, to use this technique in order to gain intelligence that would perhaps save many more lives in the future.

We know how controversial this turned out to be, but it is important to remember that at the time, it did not prove to be so controversial. In fact, after the CIA asked for permission to use these enhanced techniques, we know the Office of Legal Counsel rendered legal opinions authorizing the use of these techniques under certain limitations. And then, in fact, leadership here in Congress was briefed on those techniques. Specifically, under these circumstances, as the sense-of-the-Senate resolution points out, not only would the Speaker of the House of Representatives be briefed but also the majority and the minority leaders in both Houses of Congress, as well as the chairman and ranking member of both the House Intelligence Committee and the Senate Select Committee on Intelligence. That would have been back in 2002--of course, much closer in proximity to the horrible events of 2001--when, no doubt, Members of Congress and members of the executive branch were thinking: What can we do to prevent further terrorist attacks against the United States?

One of the things that we have heard in the days since these opinions out of the Office of Legal Counsel have been controversial is that some lawyers have different opinions from those rendered by the lawyers at the Office of Legal Counsel. I can tell my colleagues, as a lawyer myself for 30 years, what lawyers do best is disagree with one another. There is nothing unexpected about that. But we should not turn disagreements between lawyers into witch hunts and into pursuing good-faith rendition of legal opinions as well as intelligence officials relying on those opinions in order to try to protect our country.

One distinguished law professor testified to the Judiciary Committee last week:

To ratchet-up simple disagreement with the legal analysis of a prior administration into the claim that such analysis was beyond the pale of legitimate legal analysis, and therefore should be investigated and punished, is to be engaged in a mild form of legal neo-McCarthyism.

Mr. President, I was not in Washington, DC, on September 11, 2001. I was in my home in Austin, TX, when I saw these terrible images of these planes flying into the World Trade Center. But one of the images I remember in the aftermath of those attacks was of the Members of Congress, of both parties, joined together on the Capitol steps singing ``God Bless America.''

In the aftermath of that day, Americans, at least for a time, were united in our determination that it would not happen again. That is why it is particularly sad to see the bitter political divisions of the present being invoked to condemn the good-faith actions of the past and to hear calls to prosecute not only the intelligence officials in the CIA but also prior administration officials and, indeed, the Congress who answered the call when the American people demanded with one voice that we keep them safe.

If we want to be able to look back at our detention and interrogation policies, and learn what worked and what did not, we need to try to maintain our sense of perspective and objectivity and fairness and be respectful of both the circumstances under which these officials reached these opinions and the reliance the intelligence officials and other high Government officials had upon those legal opinions in deciding what they could and could not do. Indeed, who would question their use of all legitimate means to gain actual intelligence that may indeed have saved American lives? We cannot learn together from our past successes or failures while recklessly accusing one another of crimes while criminalizing policy differences.

In the end, this sense-of-the-Senate resolution is an appeal to a sense of decency. We should be united in our commitment to liberty, justice, and security under the law.

The American people want unity and not partisan prosecutions or sanctions imposed against those officials who were simply trying, to the very best of their ability, to do their job and to keep the American people safe. This amendment says, in the end, that the Senate agrees with that proposition. I would ask for the support of all my colleagues.

Mr. President, I yield the floor.

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