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BIDEN: Justice Department Memo Shocks the Conscience

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Location: Washington, DC


BIDEN: Justice Department Memo Shocks the Conscience

U.S. Senator Joseph R. Biden, Jr. (D-DE) today asked his colleagues to join him in condemning the Administration's policy permitting torture. He reiterated his call for the Senate to support his legislation, which prohibits the torture, abuse, or mistreatment of any detainee in United States custody.

"Today's news that the Justice Department gave legal cover to the military to use torture and other cruel and inhuman interrogation techniques shocks the conscience. This memo created the lawless atmosphere that led directly to the abuse of detainees at Abu Ghraib. Those who wrote it and those who approved it should be held accountable," said Sen. Biden, former Chairman and senior member of the Senate Judiciary Committee.

Today's news revealed the contents of a memorandum the Justice Department issued to the Pentagon in 2003, contending that the President's commander-in-chief powers trumped any US laws or treaties prohibiting and criminalizing the use of torture and other abusive interrogation techniques on detainees. The memo asserts that only interrogation techniques that "shock the conscience" are illegal, and because interrogation to protect the national security of the United States would not "shock the conscience," military interrogators, who harm prisoners by using interrogation techniques prohibited and criminalized by US laws and treaties, would be immune from liability.

The Detainee Treatment Act of 2005's prohibition of interrogation techniques not authorized by the United States Army Field Manual on Intelligence Interrogation applied to the military, but not the CIA. The President recently vetoed legislation that would have extended this prohibition to the CIA.

In July 2007, Sen. Biden introduced the National Security with Justice Act to reform United States policies on the apprehension, detention, treatment and transfer of suspected terrorists. The legislation, among other things, unambiguously prohibits any United States personnel, including members of our intelligence services, from torturing and mistreating detainees. Specifically, Senator Biden's bill closes the loophole left open by the Detainee Treatment Act by prohibiting all officers and agents of the United States from using techniques of interrogation not authorized by the United States Army Field Manual on Intelligence Interrogation.

"We need to send a clear message - to the Administration, to the foreign partners with whom we must cooperate to effectively combat terrorism, and to concerned individuals all over the world - that torture of detainees is unacceptable and is not permitted by U.S. law. Period" said Sen. Biden.

The National Security with Justice Act will:

Close Black Sites & Extra-Judicial Prisons

This legislation will prohibits U.S. detention of terrorism suspects in secret, extraterritorial prisons such as CIA "black sites." Under this legislation, the United States must timely transfer terrorism suspects to legal custody in the United States or a foreign country that will not torture or mistreat them.

Prohibit Extraordinary Rendition

This legislation creates new safeguards by requiring intelligence services to apply for and obtain an order of rendition - similar to an arrest warrant for national security purposes - from the FISA Court prior to any rendition. The application and order process ensures that rendition is used only if we have solid intelligence indicating that the suspect is a dangerous terrorist. Most importantly, the bill prohibits rendition to countries that torture or mistreat detainees or to secret prisons. The bill includes an emergency exception allowing intelligence services to obtain an order of rendition after taking an individual into custody (but always before that individual is turned over to another country) when special circumstances exist.

Prohibit the Torture or Mistreatment of Detainees in U.S. Custody

This legislation closes gaps intentionally left in the President's July 20, 2007 Executive Order to allow the CIA to use interrogation techniques prohibited by the Army Field Manual. The legislation prohibits all U.S. personnel, including the CIA, from using interrogation techniques not authorized in the Field Manual.

Modify the Definition of "Unlawful Enemy Combatant"

This legislation changes the Military Commission Act's definition of the term to clarify that U.S. citizens or lawfully admitted aliens taken into custody within the territorial jurisdiction of the United States cannot be considered unlawful enemy combatants. These individuals must be prosecuted within the criminal justice system.

Extend Habeas Corpus to Detainees

This legislation repeals the provisions in the Detainee Treatment Act and Military Commission Act that purport to deprive Guantanamo detainees of the writ of habeas corpus - the ability to argue to a court of law that they are being held in error. The legislation clarifies that all detained terrorism suspects held by the United States can invoke habeas corpus to challenge their classification as an unlawful enemy combatant and their conviction by a military commission of a war crime.


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