National Defense Authorization Act for Fiscal Year 2005 - Continued

CONGRESSIONAL RECORD
SENATE
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005-CONTINUED

Mr. DURBIN. Mr. President, I rise to speak to the Reid amendment, which I understand has been formally withdrawn at this moment but certainly is the topic of consideration and discussion.

Mr. REID. And will come back.

Mr. DURBIN. It will return, according to the Senator from Nevada, for the consideration of the Senate.

That amendment by Senator Reid of Nevada would require Attorney General Ashcroft to provide the Judiciary Committee with all the documents in the Justice Department's possession relating to the treatment and interrogation of detainees.

This is an extremely serious issue for America. Literally, the world is watching us and asking whether the United States will stand behind its treaty obligations in this age of terrorism.

It is clear that our enemies do not respect the rules in their relentless quest to kill Americans. The barbaric treatment of Nicholas Berg and Paul Johnson have reminded us all of that fact.

But this is what distinguishes the United States from the terrorists we fight. There are some lines we in the United States will not cross. Torture is one of them. We have said repeatedly, since the time of President Abraham Lincoln, that torture is inconsistent with the principles of liberty and the rule of law that underpins our democracy.

Two weeks ago, Attorney General Ashcroft appeared before the Senate Judiciary Committee as our Nation's chief law enforcement officer. He said on the record that the administration opposes torture and that torture is not justified or, in his words, productive. But he refused at that time to provide us with the Justice Department memos dealing with coercive interrogation tactics.

I asked him repeatedly: Attorney General Ashcroft, under what legal or constitutional basis would you deny this committee copies of these memos?

I asked him if he was asserting executive privilege on behalf of the President. He said he was not.

I asked him if he could identify any statute by which he would be absolved from his duty to respond favorably and positively to a request by the Senate Judiciary Committee for these memos, and he could not cite any statute.

At one point he said he personally believed that it was not appropriate to produce these memos. I responded by saying that, as interesting as that may be, the Attorney General's personal beliefs are not the law. It is the law which governs us.

Now, at the eleventh hour, today, in an effort to defeat the growing pressure to release these memos, the White House has provided Congress with a number of documents, including one of the Justice Department's torture memos. But a quick review of the documents provided reveals they have given us only a small part of what we have asked for. Just last week the Senate Judiciary Committee considered a request for some 23 documents of the Department of Justice related to interrogation techniques and torture. That request for subpoena was defeated in the Senate Judiciary Committee on a party-line vote, 10 to 9, all Republicans voting against disclosure of the documents, all Democrats voting in favor. We take a look at the documents produced voluntarily by the White House today and find only 3 of the 23 documents subject to the subpoena have actually been produced.

But the Justice Department's torture memo, which has been produced after it was leaked on the Internet for all to read, is a memo which we now know raises very troubling questions and completely contradicts statements made by Attorney General Ashcroft before the Judiciary Committee. It makes it clear if Congress and the Senate are to meet their obligation under the Constitution, we must ask harder questions and we must dig deeper.

In the memo, the Justice Department makes unprecedented assertions about executive power, assertions that I believe violate basic constitutional principles. The Justice Department concludes the torture statute, which makes torture a crime, does not apply to interrogations conducted under the President's Commander in Chief authority.

At the hearing 2 weeks ago before the Senate Judiciary Committee, Attorney General Ashcroft said unequivocally it was not his job to define torture. He went on to say, it is not the job of the administration to define torture. He said that is the job of Congress.

Sadly, as we take a look at this Department of Justice memo produced long before the Attorney General's testimony, we find on page 13 the following statement, and I ask listeners to reach their own conclusion as to whether what I am about to read from Attorney General Ashcroft's memo on interrogation is an attempt to define torture. I quote from the Department of Justice memo dated August 1, 2002:

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 would likely result.

How can anyone read those words and reach any other conclusion but that the Department of Justice in August of 2002 issued this memorandum defining torture. That, of course, is something the Attorney General said was not their job. He is right; it was not their job. But it was done, anyway.

They also claim torture must involve "intense pain or suffering of the kind that is equivalent to the pain 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."

Ask yourself the obvious question: Why did the Department of Justice produce this memo? Who asked for it? Was it the intelligence agencies of the U.S. Government? The White House? We honestly do not know the answer to that.

If this opinion by the Attorney General's office was at the request of some other agency of Government, we should know that. We should know which agency of Government said to the Attorney General, we need an advisory opinion, we need your best guess as to how far we can go in interrogation techniques.

Although the Attorney General said to us repeatedly, the law speaks for itself-when he said that, he was referring to our laws, our Constitution, the treaties we have entered into-in fact, the Attorney General and his Department of Justice decided the law was not enough. They needed to add very graphic and specific definitions such as the one I read.

Now, of course, there is an important and underlying issue here. Under our Constitution, which we have all sworn to uphold-not only Members of Congress but members of the President's Cabinet-the President does not have the authority to choose which laws he will obey or to make his own laws. There is no wartime exception to our Constitution.

Article I, section 1 of the Constitution says all legislative powers are vested in Congress. Article II, section 3 of the Constitution says the President shall take care that the laws be faithfully executed. Article VI provides that laws made by Congress and treaties ratified by the Senate are the supreme law of the land.

Retired RADM John Hutson was a Navy judge advocate for 28 years. From 1997 to the year 2000 he was the judge advocate general, the top lawyer in the Navy. He rejects the Justice Department interpretation of torture law, saying:

If the president's inherent authority as commander in chief trumps domestic and international law, where is the limit? If every sovereign can ignore the law, then no one is bound by it.

The Supreme Court considered a similar question related to the Justice Department position. President Truman, faced with a steel strike during the Korean war, issued an Executive order to seize and operate the Nation's steel mills. In the historic Youngstown steel case, the Court found the seizure of the steel mills was an unconstitutional infringement on Congress's lawmaking power and that it was not justified in wartime as an exercise of the President's Commander in Chief authority.

Justice Hugo Black, writing for the majority, said:

The Constitution is neither silent nor equivocal about who shall make laws which the President is to execute . . . The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.

It seems clear the Justice Department memo was the basis for a Defense Department memo that makes very similar arguments about torture. For example, the Department of Defense memo argues the statute outlawing torture does not apply to the detention and interrogation of enemy combatants by the President pursuant to the Commander in Chief authority.

The difficult question we have to answer is this: What have these memos produced by the Department of Justice wrought? We know, now, because of the graphic illustration of the abuses at Abu Ghraib prison, that soldiers in the uniform of the United States of America performed some horrible and shameful acts for which no one has made any excuses. Even the President has said that does not represent America. What they did was clearly wrong.

The important and obvious question for all to ask as a follow-on is, Was this an incident involving the conduct of a handful of officers or did it represent a policy promulgated by this Government, supported by memoranda from the Department of Justice and those from the Department of Defense? Therein lies the critical question.

Last week, President Bush was asked about the Justice Department torture memo and he said he did not remember if he had ever seen it; he said he issued an authorization that conformed with U.S. law and treaty obligations, and he would not say whether he would authorize the use of torture but that we should be "comforted" by the "laws on the books."

The President is correct; the law is very clear. The United States is not permitted to engage in torture or cruel, inhumane, or degrading treatment. But I am not comforted because we don't know if the administration followed the Justice Department interpretation which would allow the President to set aside these laws. We have gone too far.

We have to follow the paper trail to determine who requested the memos and what was done in response to them. We need to find out whether the legal arguments contained in these memos were used to justify the use of torture at Guantanamo, at Abu Ghraib, or any other facility controlled by the United States of America. We need to know whether the President or anyone else in this administration authorized the use of torture as defined by the Department of Justice memo.

The Senate has an obligation to the Constitution and the American people to answer these questions. The only way to do that is to obtain all of the relevant documents.

The great challenge of our age in combatting terrorism while remaining true to the principles which our country is based upon is to make certain we respect liberty and the rule of law. We must not sacrifice freedom and the rule of law at the altar of security. We must respect the freedoms protected by the Bill of Rights. Our laws must not fall silent during time of war.

I urge my colleagues to support the Reid amendment. I yield the floor.