Emergency Supplememtal Appropriations Act, 2005

EMERGENCY SUPPLEMENTAL APPROPRIATIONS ACT, 2005

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AMENDMENT NO. 443

Mr. DURBIN. Madam President, I have an amendment pending numbered 443 and I would like to speak to it. I will not call it for a vote because there may be need for debate in the Senate.

This is an amendment I am cosponsoring with Senator Levin and Senator Feinstein. The amendment requires that none of the funds appropriated by this supplemental appropriations bill be expended to subject anyone in the custody or control of the United States to torture or cruel, inhuman, or degrading treatment.

I know the managers of the bill are trying to dispense with amendments. I understand this amendment has been cleared by the managers. However, one Senator or another on the other side of aisle has objected, so a rollcall vote might be necessary.

I ask my colleagues to consider for a moment what could possibly be the basis for a Senator objecting to an amendment which says we won't spend any American taxpayer funds to torture prisoners. We have signed all the treaties. We have passed the laws. This is the law of the land.

This amendment says, let's remind people again that what happened at Abu Ghraib is not American policy. The abuses at Guantanamo Bay are not American policy. It is aberrant conduct. It is the kind of conduct which we do not condone.

We should state clearly in this appropriations bill that all the money being appropriated--$80 billion plus--is not to be used for the purposes of torture.

This should be an easy amendment. In fact, it has passed twice in the Senate by unanimous consent. But now a Senator on the other side of the aisle has problems with it. I don't understand. It simply affirms our Nation's very important, longstanding obligation not to engage in torture or other cruel treatment. That standard is in the U.S. Constitution and in many treaties ratified by the United States.

I wrote this amendment very carefully. I am not putting in any new language, new ideas. I am restating existing law that governs the conduct of Americans. It is limited to the torture or cruel and inhuman or degrading treatment ``that is prohibited by the Constitution, laws or treaties of the United States.'' In other words, it prohibits conduct already prohibited under U.S. law. It simply restates it. It is important we do restate it.

I am afraid one of the terrible legacies of the invasion of Iraq is going to be this whole question of how we treated prisoners. We should not mince words. We are opposed to torture and cruel, inhuman, or degrading treatment. We have voted that way before. The American people support that. We should say so in this supplemental appropriations bill.

This amendment specifically provides:

Nothing in this section shall affect the status of any person under the Geneva Conventions or whether a person is entitled to protections of Geneva Conventions.

So the amendment does not extend the protections of the Geneva Conventions to anyone who does not already have those protections.

It is important to note this amendment is virtually identical to an amendment I offered to last year's Defense authorization bill and an amendment Senators MCCAIN and LIEBERMAN offered to the intelligence reform bill. Both of them were adopted by the Senate by unanimous voice votes. In fact, this amendment is actually more limited than those because it applies only to funds appropriated and does not contain any reporting requirements.

Last year, when he accepted my amendment to the Defense authorization bill, Senator Warner, the chairman of the Armed Services Committee, said in the Senate:

The unambiguous policy of this and preceding administrations is to comply with and enforce this Nation's obligations under international law. These obligations are embedded in American domestic law.

Senator Warner continues:

So I think it is very important we do the codification, as the Senator [from Illinois] recommends.

Unfortunately, in conference, the Defense authorization amendment was revised to a nonbinding sense-of-the-Senate amendment. The intelligence reform amendment was eliminated in conference. That is why I am offering this amendment today.

It is important. Many around the world, especially in the Muslim world, are watching us, watching the United States, and they want to know whether we will stand by our treaty obligations in this age of terrorism. With American troops in harm's way, Congress must send a clear signal that we are committed to treating all detainees humanely.

The prohibition on torture and other cruel treatment is deeply rooted in American history. The Framers of the Constitution made clear they intended the Bill of Rights to prohibit torture and other forms of cruel punishment. It was un-American then; it is un-American now.

These principles guided us during times of war. In the Civil War, President Abraham Lincoln asked Francis Lieber, a military law expert, to create a set of rules to govern the conduct of U.S. soldiers in the field. The result, the so-called Lieber Code, prohibited torture and other cruel treatment of captured enemy forces. This was the foundation for the modern law of war, which is embodied in the Geneva Conventions.

After World War II, we discovered what had happened in Nazi Germany. Horrified by those abuses, the United States and its allies created a new international legal order based on respect for human rights. One of the fundamental tenets of this new order was a universal prohibition on torture and cruel, inhuman, and degrading treatment. The United States took the lead in this effort, establishing a number of treaties that banned the use of torture and other cruel treatment against all persons at all times. There are no exceptions to this prohibition.

The United States, along with a majority of countries in the world, is a party to the Geneva Conventions, the International Covenant on Civil and Political Rights, and the Torture Convention, all of which prohibit torture and cruel, inhuman, or degrading treatment, the exact words in my amendment.

Aside from our legal obligations, there are also important practical reasons for standing by this commitment.

Torture is ineffective. It is an interrogation tactic that produces unreliable information. People who are being tortured will say almost anything to stop the pain.

Resorting to torture will make it harder for us to defeat terror. In the words of the independent 9/11 Commission:

Allegations that the United States abused prisoners in its custody make it harder to build the diplomatic, political, and military alliances the government will need [to win the war on terrorism.]

The 9/11 Commission was right.

Most importantly, engaging in torture or cruel treatment places our brave service men and women at risk. The U.S. Army knows this. The Army Field Manual on Intelligence Interrogation says the following:

Use of torture or other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear. Revelation of use of torture by U.S. personnel will bring discredit upon the U.S. and its Armed Forces while undermining domestic and international support for the war effort. It may also place U.S. and allied personnel in enemy hands at greater risk of abuse by their captors.

Retired RADM John Hutson served our country 28 years. For the last 3 years he was the Judge Advocate General, the top lawyer in the Navy. Last week he sent me a letter in support of this amendment. He wrote as follows:

Clarion opposition to torture and other abuse by the U.S. will help protect U.S. troops who are in harm's way.

Former Congressman Pete Peterson, a personal friend of mine, a man I served with in the House of Representatives, was a prisoner of war in Vietnam for 6 1/2 years. He came to see me recently. He is doing great. He was our former Ambassador to Vietnam under President Clinton. In a letter of support for this amendment he said:

Congress must affirm that America stands by its moral and legal obligation to treat all prisoners, regardless of status, as we would want the enemy to treat our own. Our courageous service men and women deserve nothing less.

As the great American patriot Thomas Paine said:

He that would make his own liberty secure must guard even his enemy from oppression.

This year, Congress should affirm that the United States will not engage in torture and other cruel treatment.

I thank the chairman for his leadership on the bill. We are reaching a point where there are only four or five identified germane amendments and this is one of them. I would like to call this amendment for a vote. I know there are some on your side who may want to speak to the amendment so I will not try to do it at this time, but I would hope any staffers or those listening to the debate who know of opposition to this amendment would contact the chairman and let him know when they are coming to the floor. I will join them and in short order summarize what I have said, answer their comments, and ask for a vote. I know the chairman is anxious to get this bill completed to send to the President.

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