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Department of Defense Appropriations Act, 2006

Location: Washington, DC




Mr. McCAIN. Mr. President, from my conversations with the Senator from Alaska, the chairman, I believe he agrees we will move forward; therefore, I call up amendment No. 1977, which is filed at the desk.

The ACTING PRESIDENT pro tempore. Without objection, the pending amendments are set aside for the consideration of this amendment, which the clerk will now report.

The assistant legislative clerk read as follows:

The Senator from Arizona [Mr. McCain], for himself, Mr. Graham, Mr. Hagel, Mr. Smith, and Ms. Collins, proposes an amendment numbered 1977.

Mr. McCAIN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

The amendment is as follows:
(Purpose: Relating to persons under the detention, custody, or control of the United States Government)

At the appropriate place, insert the following:


(a) IN GENERAL.--No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

(b) APPLICABILITY.--Subsection (a) shall not apply to with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.

(c) CONSTRUCTION.--Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.


(a) In General.--No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

(c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.

(d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

Mr. McCAIN. Mr. President, this amendment would do two things: one, establish the Army Field Manual as the uniform standard for the interrogation of Department of Defense detainees; and, two, prohibit cruel, inhumane, and degrading treatment of prisoners in the detention of the Government. It is pretty simple and straightforward.

Mr. President, I regret, of course, as all my colleagues do, that this amendment has to be brought up on an appropriations bill. We are only doing so because so far we have been unable to get sufficient agreement to bring up the Defense authorization bill. I have made it very clear, over a long period of time, my feeling about how important it is to take up and complete the authorization bill, but that is a subject for another day. I know good-faith efforts are being made on both sides to try to get the authorization bill up. But that has not happened so, therefore, we are addressing this issue.

By the way, I have had a preliminary ruling that this amendment is germane because there is reference made to it in the House version of the appropriations bill.

The Senate has an obligation to address the authorizing legislation, as it has an obligation to deal with the issue that apparently led to the bill being pulled from the floor, which is America's treatment of its detainees.

Several weeks ago, I received a letter from CPT Ian Fishback, a member of the 82nd Airborne Division at Fort Bragg, and a veteran of combat in Afghanistan and Iraq, and a West Point graduate. Over 17 months, he struggled to get answers from his chain of command to a basic question: What standards apply to the treatment of enemy detainees? But he found no answers.

In his remarkable letter, he pleads with Congress, asking us to take action to establish standards to clear up the confusion, not for the good of the terrorists but for the good of our soldiers and our country. Captain Fishback closes his letter by saying:

I strongly urge you to do justice to your men and women in uniform. Give them clear standards of conduct that reflect the ideals they risk their lives for.

This comes from a young captain in the U.S. Army who has served his country both in Iraq and Afghanistan and who says it in a far more eloquent fashion than I have ever been able to. By the way, I thank God every day that we have men and women the caliber of Captain Fishback serving in our military. I believe the Congress has a responsibility to answer this call, a call that has come not just from this one brave soldier but from so many of our men and women in uniform. We owe it to them. We sent them to fight for us in Afghanistan and Iraq. We placed extraordinary pressure on them to extract intelligence from detainees, but then we threw out the rules that our soldiers had trained on and replaced them with a confusing and constantly changing array of standards. We demanded intelligence without ever clearly telling our troops what was permitted and what was forbidden. And when things went wrong, we blamed them, and we punished them. I believe we have to do better than that.

I can understand why some administration lawyers might have wanted ambiguity so that every hypothetical option is theoretically open, even those the President has said he does not want to exercise. But war doesn't occur in theory, and our troops are not served by ambiguity. They are crying out for clarity. The Congress cannot shrink from this duty. We cannot hide our heads, pulling bills from the floor and avoiding votes. We owe to it our soldiers during this time of war to take a stand. So while I would prefer to offer this amendment to the DOD authorization bill, I am left with no choice but to offer it to this appropriations measure. I would note that I am offering this amendment in accordance with the options afforded under rule XVI of the Standing Rules of the Senate.

The amendment I am offering combines the two amendments I previously filed to the authorizing measure. To fight terrorism, we need intelligence. That much is obvious. What should also be obvious is that the intelligence we collect must be reliable and acquired humanely, under clear standards understood by all our fighting men and women. To do differently would not only offend our values as Americans but undermine our war effort, because abuse of prisoners harms, not helps, in the war on terror.

First, subjecting prisoners to abuse leads to bad intelligence, because under torture, a detainee will tell his interrogator anything to make the pain stop. Second, mistreatment of our prisoners endangers U.S. troops who might be captured by the enemy--if not in this war, then in the next. And third, prisoner abuses exact on us a terrible toll in the war of ideas, because inevitably these abuses become public. When they do, the cruel actions of a few darken the reputation of our country in the eyes of millions. American values should win against all others in any war of ideas, and we can't let prisoner abuse tarnish our image. Yet reports of detainee abuse continue to emerge, in large part, I believe, because of confusion in the field as to what is permitted and what is not. This amendment will go a long way toward clearing up this confusion.

The first part of the amendment would establish the Army Field Manual as the uniform standard for the interrogation of Department of Defense detainees. The Army Field Manual and its various editions have served America well through wars against both regular and irregular foes. It embodies the values Americans have embraced for generations, while preserving the ability of our interrogators to extract critical intelligence from ruthless foes. Never has this been more important than today in the midst of the war on terror. The Army Field Manual authorizes interrogation techniques that have proven effective in extracting lifesaving information from the most hardened enemy prisoners. It is consistent with our laws and, most importantly, our values. Let's not forget that al-Qaida sought not only to destroy American lives on September 11, but American values, our way of life, and all we cherish.

We fight not just to preserve our lives and liberties, but also American values. We will never allow the terrorists to take those away. In this war--that we must win, that we will win--we must never simply fight evil with evil.

This amendment would establish the Army Field Manual as the standard for interrogation of all detainees held in DOD custody. The manual has been developed by the executive branch for its own uses, and a new edition, written to take into account the needs of the war on terror and with a new classified annex, is due to be issued soon. This amendment would not set the field manual in stone. It could be changed at any time.

The advantage of setting a standard for interrogation based on the field manual is to cut down on the significant level of confusion that still exists with respect to which interrogation techniques are allowed. The Armed Services Committee has held hearings with a slew of high-level Defense Department officials, from regional commanders to judge advocate generals to the Department's deputy general counsel. A chief topic of discussion in these hearings was what specific interrogation techniques are permitted, in what environments, with which DOD detainees, by whom and when. The answers have included a whole lot of confusion. If the Pentagon's top minds can't sort these matters out, after exhaustive debate and preparation, how in the world do we expect our enlisted men and women to do so?

Confusion about the rules results in abuses in the field. We need a clear, simple, and consistent standard, and we have it in the Army Field Manual on interrogation. That is not just my opinion but that of many more distinguished military minds than mine. I refer to a letter expressing strong support for this amendment signed by 28 former high-ranking military officers, including GEN Joseph Hoar, who commanded CENTCOM; GEN John Shalikashvili, former Chairman of the Joint Chiefs of Staff; RADM John Hutson and RADM Don Guter, who each served as the Navy's top JAG; and LTG Claudia Kennedy, who served as Deputy Chief of Staff for Army Intelligence. These and other distinguished officers believe the abuses at Abu Ghraib, Guantanamo, and elsewhere took place in part because our soldiers received ambiguous instructions which in some cases authorized treatment that went beyond what the field manual allows, and that had the manual been followed across the board, we could have avoided the prisoner abuse scandal.

Why wouldn't any of us do whatever we could to have prevented that?

By passing this amendment, our servicemembers can follow the manual consistently from now on. Our troops deserve no less.

I ask unanimous consent that the letter from 29 retired military officers be printed in the RECORD.


Mr. McCAIN. The second part of this amendment should not be objectionable to anyone since I am actually not proposing anything new. The prohibition against cruel, inhumane, and degrading treatment has been a long-standing principle in both law and policy in the United States. Before I get into why the amendment is necessary, let me first review the history.

The Universal Declaration of Human Rights, adopted in 1948, states simply:

No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.

The International Covenant on Civil and Political Rights, to which the United States is a signatory, states the same. The binding Convention Against Torture, negotiated by the Reagan administration and ratified by this body, prohibits cruel, inhuman, and degrading treatment. On last year's DOD authorization bill, the Senate passed a bipartisan amendment reaffirming that no detainee in U.S. custody can be subject to torture or cruel treatment, as the U.S. has long defined those terms. All of this seems to be common sense, in accordance with longstanding American values. But since last year's DOD bill, a strange legal determination was made that the prohibition in the Convention Against Torture against cruel, inhuman, or degrading treatment does not legally apply to foreigners held outside the United States. They can apparently be treated inhumanely. This is the administration's position, even though Judge Abe Soafer, who negotiated the Convention Against Torture for President Reagan, said in a recent letter that the Reagan administration never intended the prohibition against cruel, inhuman, or degrading treatment to apply only on U.S. soil.

What all this means is that America is the only country in the world that asserts a legal right to engage in cruel and inhuman treatment. But the crazy thing is, it is not even necessary because the administration has said it will not engage in cruel, inhuman, or degrading treatment as a matter of policy. What this also means is that confusion about the rules becomes rampant again. We have so many differing legal standards and loopholes that our lawyers and generals are confused. Just imagine our troops serving in prison in the field.

The amendment I am offering simply codifies what is current policy and reaffirms what was assumed to be existing law for years. In light of the administration's stated commitment, it should require no change in our current interrogation and detention practices. What it would do is restore clarity on a simple and fundamental question: Does America treat people inhumanely? My answer is no. And from all I have seen, America's answer has always been no.

I travel a lot around the world, usually at taxpayers' expense. Everywhere I go, I encounter this issue of the treatment of prisoners and the photos of Abu Ghraib and what is perceived in the world to be continued mistreatment of prisoners. It is harming our image in the world terribly. We have to clarify that that is not what the United States is all about. That is what makes us different. That is what makes us different from the enemy we are fighting. The most important thing about it is not our image abroad but our respect for ourselves at home.

Let me close by noting that I hold no brief for the prisoners. I do hold a brief for the reputation of the United States of America. We are Americans. We hold ourselves to humane standards of treatment of people, no matter how evil or terrible they may be. To do otherwise undermines our security, but it also undermines our greatness as a nation. We are not simply any other country. We stand for something more in the world, a moral mission, one of freedom and democracy and human rights at home and abroad. We are better than these terrorists, and we will win. The enemy we fight has no respect for human life or human rights. They don't deserve our sympathy. But this isn't about who they are; this is about who we are. These are the values that distinguish us from our enemies.

I urge my colleagues to support the amendment.

I yield the floor.


Mr. McCAIN. Mr. President, I ask unanimous consent that the Senator from Illinois, Mr. Durbin, be added as a cosponsor.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. McCAIN. Mr. President, first I thank my friend and colleague from South Carolina for his comments in support of this amendment. He does occupy a unique position in this body, having served 20 years--6 1/2 years on active duty as an Air Force lawyer and member of the JAG Corps, and remains in the Reserves to this day. He obviously brings a perspective to this issue which is very important.

I think the Senator from South Carolina described the confusion that existed over a period of time about this whole issue of treatment of prisoners. There was a set of instructions issued which were in effect for a couple of months, which were strongly objected to by the uniformed legal corps in the Pentagon. Yet their concerns were overridden.

The Senator from South Carolina quoted one of them. Another one was by RADM Michael Lohr, the Navy's Judge Advocate General. He said the situation at the American prison in Guantanamo, Cuba, might be so legalistically unique that the Geneva Conventions and even the Constitution did not necessarily apply. But, he asked,

Will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values?

General Rives said if the White House permitted abusive interrogations at Guantanamo Bay, it would not be able to restrict them to that single prison. He argued that soldiers elsewhere would conclude that their commanders were condoning illegal behavior. And that is precisely what happened at Abu Ghraib after the general who organized the abuse of prisoners at Guantanamo went to Iraq to toughen up the interrogation of prisoners there.

I think it is clear that the White House ignored those military lawyers' advice a couple of years ago. We now have, thanks to the yearlong effort of the Senator from South Carolina, those communications of deep concern to every uniformed JAG in the Department of Defense, about the issuance of instructions which basically violated our commitment to the Geneva Conventions.

In order to have the record complete, a couple of months later those were rescinded and different orders were issued at that time. But what if you are at the end of the chain and you get these kinds of mixed messages?

So I thank the Senator from South Carolina for pointing out from his unique perspective how important this is, since it is the men and women who are in the JAG Corps who are responsible for prosecuting those who violate Geneva Conventions, and they need clear guidance; or defending someone who is accused of violating them, as our men and women of the military are entitled to defense just as they are subject to prosecution.

Again, I thank the Senator from South Carolina. I appreciate the defense of the Senator from Alaska of the administration's position on this issue. I do not think he has been well informed by the administration, particularly concerning the Army Field Manual.

The Army Field Manual has a classified section which would not be available to anyone except for those who have a need to know. The Army Field Manual has been used for decades. The Army Field Manual is being revised as we speak to try to meet the new challenges we face. But the Army Field Manual, I am confident, will be in keeping with the fundamental commitments we have made.

All my career I have supported the rights and prerogatives of the Commander in Chief. We need a strong President, and in wartime this is more important than ever. I understand the administration would want to preserve the President's flexibility and wartime powers, and I do not believe that we can afford to have 535 Secretaries of State, Secretaries of Defense, or even Presidents of the United States.

I would like to point out the Congress not only has the right but the obligation to act. Article I, section 8 of the Constitution of the United States, clause 11:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water[.]

I repeat:

..... make Rules concerning Captures on Land and Water[.]

Someone is going to come down to the floor and say that applied back in the time of the Framers of the Constitution; it didn't apply to today. At least from my point of view, unless there is an overriding need to change the Constitution of the United States--if that clause of the Constitution no longer applies, then lets amend the Constitution and remove it; otherwise, lets live by it.

The Congress has the responsibility:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water[.]

I do not see how anyone could view this as an unwarranted intervention in an issue such as this. The courts, as the Senator from South Carolina pointed out so well, are asking us--that well-known liberal judge, Justice Scalia, has said we need the Congress of the United States involved in this issue. We, the courts, cannot do it ourselves.

As the Senator from South Carolina pointed out, if we do not fulfill our constitutional role, we are negligent. We owe it to our troops and our country to speak on this issue.

I very much respect my friend, the Vice President of the United States, Vice President Cheney. He and I have been friends for many years. I respect the way that he carefully guards the prerogatives of the President. But on this issue, I hope he and others would understand that we are dutybound to take action.

I would like, again, to refer back to Captain Fishback. He is what I view as the tip of the iceberg that exists in the military today. They know how important this war on terror is. They are the ones who are fighting it. Captain Fishback served in Afghanistan and in Iraq, and the ones I hear from are men and women in the military who have a very strong commitment to winning the war on terror. They have laid their lives on the line to win it. But they want clear, unequivocal guidelines as to how to treat prisoners of war.

I would like to believe that this is the last war in which the United States will ever be involved. I would like to believe that from now on, after we win this war on terror, we will have peace and the United States will never send its men and women in harm's way again.

History shows me otherwise. What happens in the next conflict when American military personnel are held captive by the enemy and they make the argument, with some validity, that we have violated the rules of war? What happens to our men and women in the military then?

There are some who will say they wouldn't respect the rules of war, anyway. If they are not sure they are going to win, as the Germans weren't in World War II, they might treat our prisoners according to certain standards if we insist upon those standards.

I think there is a lot at stake. I respect the position of the administration, that these should be under the authority and responsibility and would erode the flexibility of the President of the United States. I don't believe so.

This amendment basically restates what we have been practicing for certainly all of the 21st and the 20th centuries.

I think we owe it to the people, these brave young Americans such as Captain Fishback, who want and deserve a clarification in the way they can carry out their responsibilities and duties as they travel into harm's way.

I thank the Senator from New Hampshire, the Senator from Tennessee, the Senator from Illinois, and my friend from South Carolina for their eloquent statements on this issue.

I ask for the yeas and nays on this amendment.


Mr. McCAIN. Will the Senator yield?

Mr. GRAHAM. Yes.

Mr. McCAIN. Does the Senator know how many detainees have been brought to trial in Guantanamo Bay?

Mr. GRAHAM. Of all the people we have detained--over 500--no one has been brought to trial yet. Two will be brought to trial in November.

One of the reasons that we cannot bring people to trial is because the Federal courts have issued a stay on prosecutions that has now been lifted. We are moving forward.

There is another Supreme Court case dealing with the due process rights of determining whether a person is an enemy combatant. The procedure is in place at Guantanamo Bay and has been generally blessed by the Court because they have been stayed on those proceedings, too.

Mr. McCAIN. If the Senator will yield, aren't there two different Court decisions now that are in direct contravention of each other as to the disposition of these cases?

Mr. GRAHAM. Yes there is.

Mr. McCAIN. Could the Senator describe those.


Mr. McCAIN. If the Senator will yield further for a question, I guess my fundamental question is, aren't things in one heck of a mess?

Mr. GRAHAM. The legal status of military commissions and the combat status review process are in legal limbo unnecessarily.


Mr. McCAIN. Madam President, first, I thank the Senator from Alaska for his cooperation. I thank the Senator from South Carolina for his unique and very important perspective on this issue. But I also point out it is very unfortunate--very unfortunate--the Senator from South Carolina has to put this on an appropriations bill. I do not want to get off the subject too much, but there is something wrong with our process here that I have to, for my amendment, find some narrow germaneness in order to get around my commitment to not authorize on an appropriations bill. Technically, I am not authorizing on an appropriations bill.

It is very unfortunate the Senator from South Carolina has to authorize on an appropriations bill. There may be some objection from someone in the minority. There may be some question. That is because we are not going through an orderly process. This should have been as an amendment on the authorization bill, and that should have been taken up. If someone did not like it, they could have voted to take it out. Now we are in a process where the Senator from South Carolina has to put it in.

Our system here is broken, and we need to properly authorize. I certainly am not blaming the Senator from Alaska. He has his responsibility to get the appropriations bill done. But there is something wrong when we are in a war--in a war; Americans' lives are on the line as we speak--and somehow we do not have room in our agenda to authorize the training, the equipping, the benefits, the pay, all of the things that go with an authorization bill, including the amendment of the Senator from Carolina.

A lot of us have repeatedly decried that this process of legislating is so badly broken today that we cannot even take care of the men and women in the military in an orderly fashion. It cries out for fixing. I would hope at some point we, as a body, would fix this system so we authorize before we appropriate funds. Again, this is meant as no criticism of the Senator from Alaska. He is playing the hand he is dealt. But there is something very badly wrong when we are in a war and somehow we cannot find time in our agenda and ought to authorize the much-needed pay raises, equipment, training, and all of the other things that go along with the authorization of our Nation's defenses.

I yield the floor.

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