Investigation into Treatment of Iraqi Prisoners

CONGRESSIONAL RECORD
SENATE
INVESTIGATION INTO TREATMENT OF IRAQI PRISONERS

Mr. DURBIN. Madam President, I am happy to respond to my colleague from Texas about an issue which is in this morning's paper and on the minds of many Americans and people around the world. In today's Washington Post, there are two major front-page stories related in an unusual way. Here is the photo of the parents of the South Korean who was beheaded in Iraq-another heinous, barbaric crime committed by terrorist extremists. Next to it, we have an article entitled "Memo on Interrogation Tactics Is Disavowed."

In this article about the interrogation tactics we learn President Bush's White House is now disavowing an opinion from the Department of Justice issued in August of 2002 relative to interrogation tactics that could be used by the U.S. Armed Forces. It appears now that this memo has become public, the White House has found it necessary to publicly disavow this statement by the Department of Justice and Attorney General Ashcroft. Why?

Well, I think it is obvious.

For a lengthy period of time the Bush administration and the Department of Justice of Attorney General Ashcroft have been involved in a fierce, protracted debate about acceptable interrogation techniques and the definition of torture, a debate which relates to issues resolved over a hundred years ago, in many cases, by the Government of the United States of America when we made it our express policy to disavow torture. When we later entered into a Geneva convention after the Nazi war crimes, when we later had a convention on torture, brought to Congress by President Ronald Reagan, this series of treaties enacted by the United States making them the law of the land said we as a Nation stood with civilized nations around the world in condemning and prohibiting torture, cruel and inhumane and degrading treatment of prisoners. Our statements were unequivocal. We stated that for the world.

Why? Frankly, because we believed the United States of America and the values we represent on the floor of the Senate are different than some. There may be some in this country who will argue we should answer the beheading of innocent people, like this South Korean, with similar violence. Thank God, their voices are few and ignored by most. We have said from the beginning we will not stoop to this level.

If there is anybody who believes that is acceptable conduct, it is not the United States of America. That is a statement of values and principles, made first by President Abraham Lincoln during the bloody Civil War, and by Presidents of both political parties for decades thereafter. We know, however, that this administration, once engaged in the war on terror, decided to engage in a new debate on the definition of torture.

Two weeks ago, the Attorney General of the United States came to the Senate Judiciary Committee and said to us unequivocally twice that it was not his job, nor the job of this administration, to define torture. He said that on the record. It was broadcast across America and around the world. The very moment he said that, major news organizations were releasing a memo from Attorney General Ashcroft's Department of Justice, which defied his statement to the Senate Judiciary Committee, this memo of August 1, 2002, by Assistant Attorney General Bybee, a memorandum sent to Alberto Gonzales, counsel to President George W. Bush. According to Attorney General Ashcroft, this memo should not exist. He told us in open session it was not his job or the job of this administration to define torture. He said Congress has done that, and the laws do that.

Look at this memo of August 1, 2002. Turn to this infamous page 13 and read what Attorney General Ashcroft's Department of Justice said about torture:

The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.

You will not find these words in any treaty the United States has entered into, certainly not in our Constitution, nor in the laws of the land. You will find this in the memo from Attorney General Ashcroft's Justice Department. It is their definition of torture, sent to the President of the United States General Counsel, Mr. Gonzales.

For the Attorney General to tell us he is not in the business of defining torture, frankly, doesn't square with the reality of this official memo from his own Department. If that were the only thing in this memo, it would be bad enough. But there is more. Because in this memo, you will find a rationalization to suggest that the President, as Commander in Chief, is not bound by the laws of the land. That is a statement to which most people will say, I am sure they didn't say that. Let me read to you from a section about Section 2340A, the statute that makes torture a crime:

Any effort to apply Section 2340A in a manner that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.

Sadly, it went further. I read from the same memo:

Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander in Chief authority.

In other words, this memo from the Ashcroft Department of Justice to Mr. Gonzales and the White House went beyond the definition of torture. It created an escape hatch for this President to say, as Commander in Chief: I am not bound by the laws of the land when it comes to torture and the interrogation of witnesses.

There are some who come to the floor and wonder why we are raising this issue.

What is the importance of this issue? The importance of this issue will be obvious to anyone who reads this memorandum now available on the Internet. This administration engaged in a fierce and protracted debate about whether they could redefine torture for the war on terrorism and whether this President, as Commander in Chief, was above the law.

For those of us in this Chamber who have sworn to uphold the Constitution of the United States, a solemn oath which each of us, including the President, must take, this is, indeed, an extremely serious situation: That this administration would think this President and those acting under his authority as Commander in Chief would not be bound by treaties, by the Constitution, or by the laws of the land.

Can any inquiry be more serious when the question, which must be asked by this Chamber of the Chief Executive of the United States, is whether he has gone too far, violating the law of the land?

So what will come before us in a short time is an effort to say to Attorney General Ashcroft: It is not enough that we have to rely on leaked memos released on the Internet. We demand of you the disclosure of relevant documents which will give us a better picture and a better understanding of this debate within the Bush administration about torture because, in the context of where we are today, this is not an academic issue. Because of Abu Ghraib and the shameless conduct of the men and women in that prison, which has been captured in photographs released around the world, the United States is being tested. We are being asked not only within our own borders, but around the world, whether in the war on terrorism, we have abandoned a commitment of over a century that says we will not engage in torture, that we are committed to the humane treatment of prisoners.

It is, unfortunately, a timely and legitimate question which we cannot duck; we cannot avoid. In order to answer that question, we understand we have to be open and transparent. We have to not only say to the world that we are the same country we were before 9/11. After Abu Ghraib, we have to show them proof, and the proof will be in the documents which the Attorney General has refused to disclose.

The Attorney General and the President have several legal options when Congress legitimately asks for documents. The President can assert his executive privilege. That was done by President Nixon during the Watergate scandal. It was contested in court all the way to the Supreme Court, but it is something a President can assert. Only the Court can ultimately resolve the dispute then between Congress and the President. President Bush has not asserted executive privilege when it comes to these memos of Attorney General Ashcroft. Or the Attorney General can say: There is a statutory privilege that allows me to withhold these documents.

The request for information that we are going to put in amendment form allows classified material to be treated separately so it would not in any way endanger the troops who are defending this country and defending themselves in Iraq and Afghanistan.

When asked point-blank by myself and others in the Senate Judiciary Committee, Attorney General Ashcroft said: I cannot give you a legal authority for the reason I am not going to release these documents. He said: I just personally believe it is not the right thing to do.

I reminded the Attorney General-and it is worth repeating now-as important as his personal beliefs may be, they are not the law. If this Department of Justice and this Attorney General and this President cannot produce a legal reason for failing to disclose these documents, then they are asking to be above the law. No President, no Attorney General, no Senator, none of us serving this country or in this Congress are above the law and certainly not on an issue of this magnitude.

Some critics have come to the floor and said this request by Members of the Senate of the Attorney General to produce these important documents is the product of "an irresistible impulse to score cheap political points." I quote a colleague of mine who said those words just moments ago, "cheap political points."

I remind my colleagues and all others, this White House, just yesterday, decided this memorandum from Attorney General Ashcroft is so bad, so wrong that they are now disavowing the very memo which was sent to the chief counsel at the White House almost 2 years ago.

This is not about some political exercise. This is about truth and transparency and a disclosure which is needed to restore the confidence in the core values of America not only for the American people but for people around the world.

Yesterday, in a transparent effort to stop the pressure for full disclosure, the administration provided Congress with a two-inch stack of documents. But a cursory review of these documents reveals that the administration is withholding a lot of crucial information.

If anything, the documents that were released yesterday make it even more clear that we need complete disclosure from the administration. As the Chicago Tribune reported today:

The memos left unanswered at least as many questions as they answered. White House officials acknowledged that the documents provided only a partial record of the administration's actions concerning treatment of prisoners.

What do the documents that were released show? We now know that the Justice Department memo sent to Mr. Gonzales was the basis for the Defense Department's decision to approve the use of coercive interrogation techniques at Guantanamo Bay.

The Department of Defense and the Department of Justice were asking questions which are almost impossible for me to articulate on the floor of the Senate, but I must. They asked: How far can our interrogators go before they may be charged with a war crime? How far can they go before they might face a war crime tribunal?

That is the serious nature of this internal debate within the Department of Defense and the Department of Justice. That debate went on before Abu Ghraib. That debate went on before those horrendous photographs became part of the history of our occupation of Iraq.

Is it any wonder that Members of the Senate are coming to the floor today and saying we have an obligation to require this administration to completely disclose all of the documents and be open and honest about the dialogue which went on between the White House and the agencies of our Government?

To do less, sadly, is to create a question, an unanswered question, about whether the United States has changed.

Let me tell you for a moment some of the issues at hand. One of my colleagues came to the floor and dismissed some of the criticism of interrogation tactics as he said, frankly, tying the hands of interrogators who are only trying to protect us. We have learned something about interrogation tactics. We have learned that if you use torture-physical and mental torture-the person being interrogated will say almost anything, truthful or not, to make it stop.

The PRESIDING OFFICER. The Senator's 15 minutes in morning business has expired.

Mr. DURBIN. I ask for 3 additional minutes.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. DURBIN. We know torture and the types of treatment, techniques, and interrogation tactics which have been prohibited by law in this country for many years are counterproductive. The Attorney General said as much before us. Torture does not work. People will lie for the pain to stop, and that is one of the reasons we do not engage in torture.

Secondly, my colleague, Senator Biden of Delaware, made a point and made it clearly. He said, in his words: The reason the United States does not engage in torture is to protect Senator Biden's son, who is a member of the military, and other members of the military from being subjected to torture.

We establish standards of humane and civilized conduct not only for ourselves but to demand them of the rest of the world. Will there be terrorists who ignore them? Of course. But who will argue with 140,000 American lives on the line in Iraq that we should somehow stoop to inhumane and barbaric conduct in this war against terrorism, subjecting all of our soldiers and many other innocent Americans to the same possibility? We have rejected that, and we should continue to reject that.

I close by saying this is a very serious issue for our Nation. The world is indeed watching us. They are asking us whether the United States will stand behind its treaties in the age of terrorism. The Senate has an obligation to the Constitution and to the American people to answer these questions. Those who vote to table this amendment want to keep this conversation muted and these memoranda hidden from the American people. That is wrong. That is wrong for this government or any government. The American people have the right to know in what their government is involved. Transparency is critically important.

I urge my colleagues, and I hope a few of my Republican colleagues will join those of us on this side of the aisle, to stand up for the rule of law, a rule of law which has guided Presidents from Abraham Lincoln's time in the Civil War through President Reagan, through every President. There is no reason this President should be treated differently.

When it is offered, I urge my colleagues to support the Leahy amendment.