Department of Defesne Appropriations Act, 2006

DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2006 -- (Senate - October 05, 2005)

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Mr. KENNEDY. Madam President, first, I thank the Senator from Arizona and the Senator from South Carolina for bringing focus to this issue. They are approaching this issue in different ways, but it is a matter of enormous importance and consequence. Both Senators, as members of the Armed Services Committee, remember the good deal of thought, work, and consideration given this subject matter by the Armed Services Committee under the guidance of Senator Warner and Senator Levin.

AMENDMENT NO. 1977

Madam President, now is time for action. That is why I rise to speak in strong support of the McCain amendment and urge our colleagues to understand it and to give it strong support as well.

As we know, nearly 2 years ago, American soldiers at Abu Ghraib were struggling to figure out how to handle the hundreds of detainees who were pouring into that facility. They had no guidance. They had no directions to regulate that treatment. In the absence of that guidance, their treatment of detainees deteriorated into cruel and inhumane and degrading treatment.

They documented their cruelty, and the images are still horrifying--an Iraqi prisoner in a dark hood and cape, standing on a cardboard box with electrodes attached to his body; naked men forced to simulate sex acts on each other; the corpse of a man who had been beaten to death, lying in ice, next to soldiers smiling and giving a ``thumbs up'' sign; a pool of blood from the wounds of a naked, defenseless prisoner attacked by a military dog.

The reports of widespread abuse by U.S. personnel was initially met with disbelief and then incomprehension. But the reports are too numerous to ignore. We had reports of detainees in Afghanistan shackled to the floor, left out in the elements to freeze to death. We have had reports of detainees in Guantanamo who were subjected to sexual humiliation.

Human Rights Watch recently released a report based on the statements of three soldiers, one officer and two noncommissioned officers, in the 82nd Airborne who described how their battalions routinely used physical and mental torture as means of intelligence gathering and stress relief--torture as a sport.

They stand in sharp contrast to the values America has always stood for: our belief in the dignity and worth of all people, our unequivocal stance against torture and abuse, our commitment to the rule of law. The images horrified us and severely damaged our reputation in the Middle East and around the world.

Instead of taking responsibility for what happened, the generals and senior administration officials tried to minimize the abuse as the work of ``a few bad apples''--all conveniently lower rank soldiers--in a desperate effort to emphasize the role of senior military officials in exposing the scandal and insulate the civilian leadership from responsibility for changing the rules.

It is clear what the results of those changes were. CPT Ian Fishback, a West Point graduate and officer in the 82nd Airborne, wrote: Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage taking, stripping, sleep deprivation and degrading treatment.

For nearly 2 1/2 years--from August 2002 until December 2004--the executive branch of our Government operated under the assumption that it was not bound by the law that prohibits torture. The Office of Legal Counsel promulgated an official opinion stating that the President and everyone acting under his Commander-in-Chief authority was free to ignore this law. It states:

Any effort to apply [the anti-torture statute] in a manner that interferes with the ..... detention and interrogation of enemy combatants ..... would be unconstitutional.

This opinion was adopted and implemented by the CIA and the Department of Defense. Effectively, what it was saying was that for anybody who was operating under the DOD, if the purpose of their torture was to get information, then it was basically all right. If the purpose of the torture was to bring harm, then it would be illegal. But that decision by the Office of Legal Counsel in the Department of Justice effectively said: The school is out. People can do anything they want to with any detainee. And that was the rule for 2 1/2 years. It is called the Bybee memorandum. We have had extensive hearings on that in both the Armed Services Committee and the Judiciary Committee.

This opinion was adopted and implemented by the CIA and the Department of Defense. Harold Koh, a leading scholar of international law and dean of Yale Law School, who served in both the Reagan and Clinton administrations, called it ``the most clearly legally erroneous opinion'' he has ever read. That is in reference to the Bybee memorandum that was requested by the CIA and the Department of Defense, through the Attorney General, from the Office of Legal Counsel, to give them a memorandum to effectively permit wholesale torture. They received that memo, and they used it to gut our long-standing laws. That Bybee memo was the law of the land, effectively, in the CIA and the Department of Defense for 2 1/2 years. We saw what the results were. The McCain amendment would make sure that will not happen again.

Our political leaders made deliberate decisions to throw out the well-established legal framework that has long made America the gold standard for human rights throughout the world. The

administration left our soldiers, case officers, and intelligence agents in a fog of ambiguity. They were told to ``take the gloves off'' without knowing what the limits were, and the consequences were foreseeable.

In rewriting our human rights laws, the administration consistently overruled the objections of experienced military personnel and diplomats. The Secretary of State, Colin Powell, warned the White House:

It will reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our [own] troops.

Senior Defense officials were warned that changing the rules could lead to so-called ``force drift'', in which, without clearer guidance, the level of force applied to an uncooperative detainee might well result in torture.

William Taft, the State Department Legal Advisor in President Bush's first term, recently called it a source of amazement and disappointment that the Justice Department severely limited the applicability of the Geneva Conventions to the detainees. In an address at American University, he said the decision to do so:

unhinged those responsible for the treatment of the detainees ..... from the legal guidelines for interrogation ..... embodied in the Army Field Manual for decades. Set adrift in uncharted waters and under pressure from their leaders to develop information on the plans and practices of al Qaeda, it was predictable that those managing the interrogation would eventually go too far.

And they did.

The Judge Advocates General echoed Mr. Taft's concerns. On July 14, 2005, the JAGs appeared before the Senate Armed Services Committee's Subcommittee on Personnel. In response to questioning by my friend Senator Graham, the witnesses acknowledged that the Justice Department's policy embodied in the Bybee torture memorandum's definition of torture was a violation of international and domestic law and alarmed the Judge Advocates General who reviewed it.

Their alarm was well founded because their concerns were overruled by General Counsel William Haynes, who issued the Defense Department's April 2003 Working Group Report. The report twisted and diluted the definition of ``torture,'' claimed that military personnel who commit torture may invoke the defenses of ``necessity'' and ``superior orders,'' and advised military personnel that they are not obligated to comply with the Federal prohibition on torture.

Senator Graham himself accurately assessed the impact of the civilian authorities when he told the JAG officers at the hearing: I think it is fair to say that the Department of Defense was secondary to the Department of Justice in a political sense, and that was our problem. If they had listened from the outset, we wouldn't have had a lot of the problems that we have had to deal with in the past.

The President is not an emperor or a king. His administration is not above the law or accountability, and he is certainly not infallible.

The single greatest criticism of this administration's detention and interrogation policies is that it failed to respect history, the collective wisdom of our career military and State Department officials, and that it holds far too expansive a view of executive authority. In short, the White House suffers from the arrogance of thinking they knew best and abandoning the long-standing rules.

As Captain Fishback wrote:

We owe our soldiers better than this. Give them a clear standard that is in accordance with the bedrock principles of our nation.

We are America, and our actions should be held to a higher standard, the ideals expressed in documents such as the Declaration of Independence and the Constitution.

The McCain amendment takes a strong step forward to giving our troops that standard. I hope it is supported. Madam President, I ask unanimous consent that Captain Fishback's letter, which was published in the Washington Post, be printed in the RECORD.

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