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National Defense Authorization Act for Fiscal Year 2006

Location: Washington, DC




Mr. GRAHAM. Mr. President, I rise in support of Senator McCain's amendment. The point that Senator Warner is making, I fully understand. But I think we are at a crossroads in the war on terror. Guantanamo Bay has great potential to make us safer as a nation. But one of the problems we have experienced in this war is a problem of image. It is a new kind of enemy with a lot of nuances. But one thing we cannot do as a nation is forget who we are, what got us here for 200-something years. We can fight this enemy aggressively, no-holds-barred, go after them, and not lose who we are.

Senator McCain is addressing one of the problems we have found crop up in different areas of the world when it comes to noncitizen foreign terrorists, and that is how you interrogate and stay within the boundaries of who you are as a people and not getting your own people in trouble by cutting corners.

So the reason I am supporting his amendment--and we are not just saying: Secretary of Defense, come up with a solution here--is because, after a lot of thought and study, it is clear to me that the Army Field Manual gives you everything you need to aggressively interrogate and seek good intelligence from foreign noncitizen terrorists held at GTMO and any other place under DOD control.

Mr. President, I would like to submit for the Record several memos that have just been recently declassified. They were requested on October 7 of last year by myself, Senator Levin, and Senator McCain. The first one is a 27 February 2003 memo from BG Kevin M. Sandkuhler, U.S. Marine Corps, Staff Judge Advocate to CMC. The next one is from MG Thomas J. Romig, U.S. Army, the Judge Advocate General, dated 3 March 2003. The next is from MG Jack L. Rives, Deputy Judge Advocate General of the U.S. Air Force, dated 6 February 2003. The next is from RADM Michael F. Lohr, Judge Advocate General, U.S. Navy, dated 6 February 2003. The next is Rear Admiral Lohr, dated 13 March 2002. And the final memo is from Major General Rives, Deputy Judge Advocate General, U.S. Air Force, dated 5 February 2003. I ask unanimous consent those memorandums be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:


Mr. GRAHAM. Now, over time, we are going to learn more about what these memos tell us, but basically these memos are telling us that the proposed interrogation techniques dealing with the war on terror, suggested by the Department of Justice, sent over to Department of Defense, were such a deviation from the normal way of doing business that it would get our own people in trouble. It was such a deviation from the normal way of doing business that we would lose the moral high ground in fighting the war on terror.

General Rives sums up:

Finally, the use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history. We have taken the legal and moral ``high-road'' in the conduct of our military operations regardless of how others may operate. Our forces are trained in this legal and moral mindset beginning the day they enter active duty. It should be noted that [the] law of armed conflict and code of conduct training have been mandated by Congress and emphasized since the Viet Nam conflict when our POWs were subjected to torture by their captors. We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful.

He talks about a slippery slope that we are about to embark on that will result in some of our own people being subject to being court-martialed because the Uniform Code of Military Justice has many provisions dictating how you will treat someone who is in your custody as a detainee. And they were trying to tell the Department of Justice and the Department of Defense civilian lawyers: Do not go down this road. You are going to bite off more problems than it is worth.

Admiral Lohr says that some of the techniques would violate the torture statute. I will read in more detail later what these memos are telling us the rules of the road are. But these are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation. They were giving a warning shot across the bow of the policymakers that there are certain corners you cannot afford to cut because you will wind up meeting yourself.

What Senator McCain is trying to do is build upon their advice by putting in place an interrogation technique that this country can be proud of, that we all will understand, and that can be implemented to make us safer without having a black eye throughout the world.

I asked the question--when I went to GTMO with the chairman about a week or 2 ago--to all the interrogators there: Is there anything lacking in the Army Field Manual that would inhibit your ability to get good intelligence? And they said no. I asked: Could you live with the Army Field Manual as your guide and do your job? They said yes.

The reason the Army Field Manual is a good source is because it has been part of who we are for years. People are trained on it. What was happening is, the Department of Justice, understandably, after September 11, wanted to come up with the most aggressive techniques possible to deal with foreign terrorists. But the JAGS are telling us you cannot look at this one event in isolation. You have to understand what we have been standing for for 60 years and what the law actually says. The DOJ's interpretation of the torture statute from a lawyer's point of view was absurd. And the JAGS were telling the policymakers: If you go down this road, you are going to get your own people in trouble. You are on a slippery slope. You are going to lose the moral high ground. This was 2003. And they were absolutely right.

To Secretary Rumsfeld's credit, when he heard about the working group having problems with the DOJ's suggested interpretations of ``interrogation,'' he reconvened and the techniques changed. But as Senator McCain has said very well, we need to bring certainty to this process of interrogating foreign terrorists to make sure we can get good, reliable information. We can do it in a way that people understand, our troops will not get in trouble, and we can show the world we are truly a rule-of-law nation.

There is nothing inconsistent with interrogating people to get good information to protect our country and using the Army Field Manual. What has got us in trouble is when we try to make it up as we go, when we forget who we are, when we will not listen to people who have worn the uniform, who are in uniform, telling us: Do not go down this road, our people are trained to do it one way, you are confusing the heck out of them.

What have we learned in the last 2 years? If you know what the rules are about interrogating anybody, come tell me because I can't figure it out. I have spent 20 years as an Air Force lawyer myself. There is much confusion, and confusion in war is dangerous. Anyone who misunderstands what we are doing here in terms of our view of terrorists is playing politics. No one supporting this amendment wants a foreign noncitizen terrorist not to be aggressively detained, prosecuted, if appropriate, and interrogated to make our country safer. We can prosecute, we can detain, and we can interrogate aggressively, but we have to have rules that our people can understand and don't deviate from who we are as a Nation. That is why I am supporting this amendment.

Everyone who works at GTMO dealing with the 500 foreign noncitizen terrorist suspects, enemy combatants, has told me, because I asked the question, if you use the Army Field Manual, we have everything within that manual we need to do the job right. If you use the Army Field Manual, we will be back in a good place with the law. We will be back in a place where our people can understand what is going on. We will again capture the moral high ground which is the ultimate way to win this war.

There is no downside to this. The upside is huge. We are able to get good information, not get our people in trouble, and have a better image in the world. That is why I am supporting this amendment.

I have included these memos for the record. It would serve every Senator well to spend 5 or 10 minutes reading through them because these people were telling us in 2003, if you go down this road, the road we chose initially, you are going to get everybody involved in trouble. That is exactly what happened.

I yield the floor.


Mr. GRAHAM. Mr. President, I would like to build on what Senator Sessions said. If this amendment did the things suggested, I would support it. One, the Army Field Manual is being revised, as we speak, with two groups in mind--lawful combatants and unlawful combatants. The amendment says that the Army Field Manual be the guide in whatever form it is in. It does not lock in this version. They are going to have a version part of it classified so our enemy does not have a chance to prepare for interrogation techniques that deal with lawful combatants and unlawful combatants.

The reason we are doing that is because what the JAGs told us over 2 years ago. The common thread among our recommendations is concern for servicemembers.

If we put people on the line in this war in terror, we want to give them everything they need as far as equipment. If we put people on the line in terms of handling detainees, we want to give them everything they need, the tools to get good information, but what we do not want to do is put our own people at risk.

We are trying to armor all our vehicles. What we are trying to do with the people who are holding these terrorists and interrogating them is not getting them in trouble. The Office of Legal Counsel, on 27 February 2003, from a Marine general, not exactly the ACLU, said:

The common thread among our recommendations is concern for our service members. The Office of Legal Counsel does not represent the services, thus understandably concern for service members does not reflect in their opinion. Notably, their opinion is violent on the foreign views of international law.

This is what the judge advocate general of the Army said:

I recommend the aggressive counterresistant interrogation techniques under consideration be vetted with the Army intelligence community before a final decision on their use is made. Some of these techniques do not comport with Army doctrine as set forth in the Field Manual, FM 34-52, intelligence interrogation, and may be of questionable practical value in obtaining reliable information of those being interrogated.

What we are trying to do is have a guide our troops can understand with two parts--one for lawful combatants and one for unlawful enemy combatants. We will know what the rules of the road will be. We are putting congressional approval on those rules.

We have had the White House, Congress, and eventually the courts saying you can aggressively interrogate prisoners not covered by the Geneva Conventions. We have been all over the board for the last couple of years. We are trying to bring it together in symmetry where the military can write the rules. They know better than I do. I am not saying I am an expert on interrogations. They are going to write the rules the way they need to be written, and Congress is going to say you are good to go.

These JAGs were telling us you have confused concepts, so we are trying to do away with that confusion to make it stronger, not weaker, to make us better at gathering intelligence and avoid the problems we have had in the last 2 years.

I think it is a very smart thing to do. I look forward to trying to help change it if it needs to be changed, but nobody is locking the military into a set of rules that does not allow them to aggressively get what they need to make us safe. We are trying to provide the military and all those in charge of detainees clear guidance so they will have the flexibility they need and we will not get our people in trouble. That is what we have been working on for 2 years. We are at a point where we can actually accomplish something that will be good for this country, good for the military, and help win this war on terror. Part of this war is about image.

Mr. SESSIONS. Will the Senator yield?

Mr. GRAHAM. Yes, I yield.

Mr. SESSIONS. It did say ``not authorized in the field manual.'' But the Senator from South Carolina interprets that to mean that the military could amend it at any point in time.

Mr. GRAHAM. Absolutely.

Mr. SESSIONS. I think that is more acceptable, but even then the policies in the field manual should reflect the executive branch, it seems to me, being able to use extraordinary events and extraordinary circumstances.

Mr. GRAHAM. And it will be. There will be a section that is specific for unlawful enemy combatants. That is not a traditional way to deal with them versus POWs.

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