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 today in support of the Leahy second-degree amendment. I am proud to cosponsor the Leahy second-degree amendment. The Leahy amendment would require the administration to provide the Senate with all documents in the Justice Department's possession relating to the treatment and interrogation of detainees.

Since the world learned about the horrible abuses at Abu Ghraib prison, there has been mounting evidence that high-ranking members of this administration authorized the use of interrogation tactics that violate our longstanding treaty obligations. There is increasing pressure on the administration to come clean and provide the Congress with all documents related to the use of torture.

Yesterday, in a transparent effort to stop the pressure for full disclosure, the administration provided Congress with a 2-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? In a January 2002 memo, the President concluded that "new thinking in the law of war" was needed. Under our Constitution, it is Congress's job to make the laws. If the President wants to change the law of war, which has served our country well since the time of President Abraham Lincoln, he must come to the Congress and ask us, the people's representatives, to change the law. He cannot change the law by executive fiat. The memo from the President was stamped for declassification in 2012, so clearly this administration had no intention to consult with Congress or the American people about their plans to change the law of war.

In response to the President's mandate, in August 2002, the Justice Department sent a memo to the White House on the use of torture. It makes unprecedented claims about the President's power that violate basic constitutional principles. The Justice Department concludes that the torture statute, which makes torture a crime, does not apply to interrogations conducted under the President's Commander in Chief authority. They also adopt a new, very restrictive definition of torture. They state that torture involves:

. . . 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.

This contradicts what Attorney General John Ashcroft told the Judiciary Committee just 2 weeks ago. He said that it is Congress's job to define torture and that the administration had not adopted a new definition of torture.
The Defense Department, relying on the Justice Department's work, also responded to the President's call for new thinking about the law of war. In a November 2002 memo, Defense Secretary Rumsfeld approved the use of coercive interrogation techniques at Gauantanamo Bay. These included "removal of clothing," using dogs to intimidate detainees, sensory deprivation, and placing detainees in stress positions, including forced standing for up to 4 hours. Rumsfeld's only comment on these procedures was a personal note at the bottom of the approval memo, "I stand for 8-10 hours a day. Why is standing limited to four hours?"
Let me answer that question.
In the 1930s, Stalin's secret police forced dissidents to stand for prolonged periods to coerce confessions for show trials. In 1956, experts commissioned by the CIA documented the effects of forced standing. They found that ankles and feet swell to twice their normal size, the heart rate increases, some people faint, and the kidneys eventually shut down.
After military officers raised moral and legal concerns about the tactics Rumsfeld has approved, he rescinded his approval while the Pentagon conducted an internal review.
In an April 2003 memo, Rumsfeld issued revised rules. These allowed for interrogation tactics with truly Orwellian names. These included:
"Sleep adjustment," which the DOD claims is not the same as sleep deprivation;
"Dietary manipulation," which DOD claims is not the same as food deprivation; and
"Environmental manipulation," which DOD acknowledges "some nations" may view as "inhumane."
White House Counsel Alberto Gonzales said these memos show that the administration engaged in a "thorough and deliberative process" on interrogation practices.
There is just one problem: Congress was not involved in the process. Article 1 of the Constitution says that it is Congress that makes the laws, not the President. The President cannot change the law of war or the definition of torture. Only Congress can.
The memos that were released yesterday leave many questions unanswered. They include directives related to Defense Department interrogations of detainees at Guantanamo Bay. But they do not tell us what interrogation techniques were approved for use by the CIA or other government agencies. They do not tell us what interrogation techniques were approved for use in Iraq. Yesterday, White House Counsel Gonzales said, "We categorically reject any connection" between the Administration's torture memos and abuses at Abu Ghraib.
But how can the administration reject these connections when the techniques that Rumsfeld approved for use in Guantanamo were also used in Abu Ghraib prison? And what about the Justice Department torture memo? According to press reports today, the administration is now disavowing the memo.
But what does that mean? The memo was apparently vetted by the Justice Department, sent to the White House, and was the basis for the Defense Department's memos on torture.
Who requested the Justice Department memo and what was done in response to the memo? Were the legal arguments contained in the memo used to justify the use of torture?
Yesterday, the President said, "We do not condone torture. I have never ordered torture. I will never order torture."
What definition of torture is the President using? Is it the one that the Justice Department created? What about other forms of cruel treatment that are prohibited by the Constitution, treaties and laws of the United States?
This is a very serious issue for our Nation. The world is watching us. They are asking whether the United States will stand behind its treaty obligations in the age of terrorism.
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 from the administration.
The great challenge of our age is combating terrorism while remaining true to the principles upon which our country was founded-liberty and the rule of law. Our laws must not fall silent during time of war.
I urge my colleagues to support the Leahy amendment.