Investigation Into Treatment of Iraqi Prisoners

INVESTIGATION INTO TREATMENT OF IRAQI PRISONERS

Mr. CORNYN. Madam President, I want to take a few minutes to respond to some of the comments made by the Senator from Vermont because I do think the characterization he gave to some of what has gone on is at least incomplete. I disagree with some of his conclusions, and I want to point out why because I believe the Members of this body deserve to have a complete picture and at least have the benefit of considering alternative conclusions from those drawn by the Senator from Vermont.

I have the high honor of serving on both the Senate Armed Services Committee and the Judiciary Committee. Certainly, the Senator from Vermont is the ranking member of the Judiciary Committee, but I would remind this body that the Senate Armed Services Committee, under the leadership of our chairman, has been investigating the Abu Ghraib prison situation and the interrogation practices and policies of the U.S. Government since at least May 11. We have had a series of hearings there which have been very helpful in understanding both the nature of the problem and the nature of the investigation that is ongoing, ultimately, hopefully, leading up to a conclusion as to who did what, whether there were, indeed, as there appears to be, some violations of American policy with regard to the interrogation of detainees, and, of course, to hold the guilty accountable.

That is what we are: We are a nation of laws. We believe in the rule of law. We believe the law applies equally to everyone, no matter how high up in the chain of command you are or how low you are in the chain of command. And I believe we will be true to our ideals in that regard. But I would say that much of what the Senator from Vermont has suggested needs to be produced is sort of in a vacuum of sorts, without the benefit of a lot of what the Senate Armed Services Committee has already done, to find out what happened, what the policies were, what the circumstances were, whether this represents an aberration or whether it represents something worse.

To date I would say it is pretty clear that what we saw, as a result of a handful of actions on behalf of American soldiers, was an aberration. And thank goodness. There is no question, though, that these soldiers lacked the proper training and, indeed, the proper leadership. Those are chain of command problems and ought to be taken as high as they go as a result of the investigation.

But as the Presiding Officer knows, there are at least six different investigations into the circumstances at the Abu Ghraib prison. We need to let that process run its course to find out what the facts and circumstances are. As I recall, we are awaiting the report of General Fay and perhaps others. We ought to get to the facts and not succumb to the temptation during an election year to overly politicize what is going on.

While we have always respected the rights and the civil liberties of every American, we also need to be concerned about the rights and the health and the welfare of our young men and women who are serving our Nation so nobly in the battlefield. That requires the ability to get good, actionable intelligence.

The present occupant of the Chair was there at the Senate Armed Services Committee hearing. General Jeffrey Miller testified on May 19. I asked him at that hearing:

In your opinion, General Miller, is the military intelligence that you've been able to gain from those who have recruited, financed, and carried out terrorist activities against the United States or our military, has that intelligence you gained saved American lives?

General Miller said:

Senator, absolutely.

Then I asked General Abizaid, the CENTCOM commander:

And would you confirm for us, General Abizaid, that that's also true within the Central Command?

And General Abizaid-who I think all of us, as we have come to know more about him, have come to admire him and his leadership capacity-said forthrightly:

Senator, I agree, that's true. I would also like to add that some of these people that we are dealing with are some of the most despicable characters you could ever imagine. They spend every waking moment trying to figure out how to deliver a weapon of mass destruction into the middle of our country. And we should not kid ourselves about what they are capable of doing to us. And we have to deal with them.

It is very important to keep in proper context what is going on and the fact that we are at war, a war not of our choosing-of course, we were attacked-but a war that we must and we will finish.

I want to point out another thing that is important to the overall context of what the Leahy amendment seeks to get. That is, we have two cases currently pending at the U.S. Supreme Court in the Hamdi and the Padilla cases, where the U.S. Supreme Court will tell all of us in America what the law requires with regard to the treatment of unlawful combatants, including one who happens to be an American citizen, Jose Padilla, but who joined arms with the enemy, with the terrorists who seek to attack and to kill Americans on our own soil. And that advice, that direction is forthcoming. It could literally come down, of course, any day now, since the Supreme Court's term is about to expire.

The characterization my colleague from Vermont gave to these memoranda is not accurate. As a matter of fact, as the Senator may recall-and maybe he said this; I didn't hear it-the Senate Judiciary Committee voted against issuing a subpoena but then authorized the chairman and perhaps the ranking member to engage in discussions with both Alberto Gonzales, White House counsel, and Attorney General Ashcroft to determine what legal memoranda they might be willing to voluntarily provide the committee. So we voted against issuance of the subpoena.

But whether it is the Bybee memo that has been discussed and covered by so much of the press, that is 50 pages long, or whether it is any of the other memos the Department of Defense and Department of Justice released yesterday, they reveal not a coverup but a careful, deliberate, and scholarly approach to determining what, in fact, the law requires.

If, in fact, as the folks who are suggesting there is some sort of coverup or some sort of policy of abuse-either one of direction or in terms of creating an atmosphere where it should happen-these memos that have been released completely refute that idea of lawlessness that they are seeking to spin.

I am deeply disturbed by the increasingly politicized nature of the debate on the war on terror. We are at war against a people who will stop at nothing to kill innocent Americans. We paid the price for not aggressively pursuing those terrorists and this information in the past, at least since 1993, with the bombing of the World Trade Center. But after 9/11, our Nation found itself at war with a new kind of enemy from whom we need information, actionable intelligence, that can mean the difference between life and death for our troops and our citizens.

As I said a moment ago, there have been many baseless allegations that the Department of Defense has used torture during interrogations as a matter of policy. But what happened at Abu Ghraib was not an administration policy, not DOD policy, not CENTCOM policy, or any other official policy. It was completely beyond the pale of acceptable behavior, and those responsible will be held to account and will be punished.

As recently as yesterday, President Bush made the following comments:

We do not condone torture. I have never ordered torture. I will never order torture. The values of this country are such that torture is not a part of our soul and our being.

Yet despite these unequivocal comments from the Commander in Chief, political opponents of this administration continue to allege, without foundation, that our Nation's leaders somehow support the use of torture. It is important to remind some of our colleagues that, again, the purpose of these interrogations is to gather intelligence consistent with our values, which means no torture and humane treatment of all detainees. The interrogations we have conducted in Iraq and at Guantanamo Bay have saved American lives. I believe it is critical that we continue to aggressively, within the limits of the law and humane treatment, seek actionable intelligence and continue to save American lives.

Unfortunately, it seems there is an irresistible impulse to score cheap political points by criticizing the careful, deliberative process the administration undertook to ensure that those very important interrogations were conducted within the law. The techniques of our Armed Forces, including those used in Iraq or at Guantanamo Bay, can hardly be described as torture.

I, like a number of other Members, have traveled to Guantanamo Bay to observe for myself, because I was concerned. I was interested. I wanted to learn how we are handling these people who have recruited, trained, and financed terrorist activity against the United States and, if given the opportunity to do so, would do so again.

For some reason, there are certain Members, and indeed certain elements of the press, who are trying to convince the American public that making a suspected terrorist stand for 4 hours, or giving them only 4 hours of sleep constitutes torture. They want them to believe that poking someone in the chest with a finger or changing their sleep patterns or meal selection is cruel or inhumane.

Let me read quickly some of the approved methods of interrogation which some of the critics claim is torture: Asking straightforward questions; incentive/removal of incentive; emotional love, which is playing on the love a detainee has for an individual or group; playing on the hatred an individual has for a individual or group; something called fear up harsh; fear up mild; reduced fear; pride up and ego up; pride and ego down; futility, which is invoking the feeling of futility of a detainee; the we-know-all technique, convincing the detainee that the interrogator knows the answers to the questions he is asking the detainee; establish your identity, or convincing the detainee the interrogator has mistaken the detainee for someone else; repetition approach; file and dossier, or convincing the detainee the interrogator has a damning and inaccurate file, which must be fixed; rapid fire questions; silence; change of scenery down; dietary manipulation.

For example, it says in this approved memorandum, a change from hot rations to MREs. That is hardly something that could be said to constitute torture.

Next is environmental manipulation, or adjusting the environment to create moderate discomfort; sleep adjustment; false flag; and isolation.

These are not torture under anybody's definition. These are legal and humane methods of extracting information from terrorists.

It is an affront to our men and women in uniform to accuse them of torturing terrorists when the reality is our policy calls for all detainees to be treated humanely. The time has come to ask at what point does this largely partisan and media-driven witch hunt so damage and detract from the mission of our troops in the field that it irreparably harms U.S. interests, including our ability to collect life-saving intelligence?

Because of the onslaught by some on Capitol Hill-a fact not lost upon our enemy-agencies have been forced to disclose procedures al-Qaida and other terrorists now train and use to defend against, which is creating a roadmap.

Plain and simple, interrogations save lives. The interrogations we have conducted over the past 2½ years have saved lives of soldiers in the field and innocent civilians at home. It is high time we get our priorities straight.

I yield the floor.

The PRESIDING OFFICER. The Senator from Illinois is recognized.

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.