MILITARY COMMISSIONS ACT OF 2006 -- (Senate - September 28, 2006)
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Mr. HARKIN. Mr. President, since my years as a pilot with the U.S. Navy, nothing has been more important to me than protecting the American people and ensuring the security of our country.
Today, we are at war with extremists who want to do grievous harm to America. We all want to fight these extremists and defeat them. We all want to ensure that those who committed or supported acts of terror are brought to justice. The only disagreement is about how best to do that. What is the smartest, most effective way to fight and defeat our enemies?
Unfortunately, as the newly declassified National Intelligence Estimate testifies very clearly, our current course is, in many ways, playing into the hands of the terrorists. It is stirring up virulent anti-Americanism around the world, it is drawing new recruits to the jihadists' cause, and it is making America less safe.
We have to do a better job, and we can do a better job. It is not good enough to be strong and wrong. We need to be strong and smart. This is especially true when it comes to our policies on interrogating and trying suspected terrorists. Again, we all want to extract information from these suspects. We all want to try them and, if guilty, punish them. The only disagreement is about how best to do that. What is the smartest, most effective way to interrogate and to try these suspected terrorists?
There is plenty of evidence that our current course, which clearly includes torturing suspects and imprisoning them without trial, is not working. To take just one case in point, consider the Canadian citizen, whom we now know to be completely innocent, who was arrested by the CIA--I use the word ``arrested'' loosely. He was picked up by the CIA, bound, gagged, blindfolded, and sent to Syria for interrogation under torture. Not surprisingly, he told his torturers exactly what they wanted to hear--that he had received terrorist training in Afghanistan. The truth, of course, is that he was never in Afghanistan, had no terrorist ties, and is completely innocent.
The cost to the United States for this miscarriage of justice, in terms of our forfeited reputation and moral standing, has been disastrous--just as the revelations of torture and abuse at Abu Ghraib. What is more, it has endangered our troops in the field--now and in the future--should they fall into the hands of captors who say they have the right to subject American prisoners to the same torture and abuse.
Again, it is not enough to be strong and wrong. We need to be strong and smart. We need to be true to 230 years of American jurisprudence, our Constitution, and the humane values that define us as Americans.
Back during the dark days of McCarthyism in the 1950s, former Senator Joseph McCarthy went on a rampage. What he was basically saying to the American people is that we have to become like the Communists in order to defeat them. Cooler heads prevailed but not until Senator McCarthy had done a lot of damage in this country, not until a lot of innocent people were blacklisted, denied employment, many of whom committed suicide because they had no place to turn. The dark days of Joseph McCarthy come back to us in the guise of this military tribunal bill.
We do not have to become like the jihadists. We don't have to become like the terrorists in order to defeat them. The best way to defeat them is the same way we defeated Joseph McCarthy and the Communists. We stayed true to our American ideals, our American jurisprudence, and the humane values we cherish as a free society. Regrettably, the bill before us fails this test. I cannot, in good conscience, support it.
The bill includes no barrier on the President's reinterpreting our obligations under the Geneva Conventions as he pleases, allowing practices such as simulated drowning, induced hypothermia, and extreme sleep deprivation. The President can allow all of those to continue, in contravention of the Geneva Conventions.
The bill before us rewrites the War Crimes Act in a way that fails to give clarity as to interrogation techniques that are allowed or forbidden, effectively allowing the administration--any administration--to continue the abusive techniques I just mentioned.
The bill creates a very bizarre double standard, immunizing, on the one hand, policymakers and the CIA and its contractors for committing acts of torture--immunizing them--while leaving our military troops subject to prosecution under the Uniform Code of Military Justice for the exact same practices. Let me repeat that. The bill creates this double standard: it immunizes the CIA, for example, and any contractors with the CIA, for committing acts of torture, while at the same time those same acts, if committed by a military person, would subject that military person to prosecution under the Uniform Code of Military Justice.
What kind of a signal does this send? What kind of signal is this? The bill completely eliminates the ability of noncitizens to bring a habeas corpus petition, effectively removing the only remaining check on the administration's decision regarding torture and other abuses.
Indeed, the habeas provisions in this bill would permit--get this--the bill would permit a legal permanent resident of the United States--a legal permanent resident of the United States--to be snatched off the street in the dark of night, bound, blindfolded, subject to indefinite detention, even torture, with absolutely no way for that person to challenge it in court.
Is that what we want to become as a nation? A legal permanent resident in the United States, of which there are millions in this country, taken out of his or her home at night, and we don't know what happens to them? They go into the dark dungeons of who knows where. Maybe Guantanamo Bay.
Habeas corpus is the only independent remedy available to people being held in indefinite detention who, in fact, have no connection to terrorism.
I heard one of my colleagues on the other side of the aisle going on yesterday about this habeas provision. He went on about how habeas corpus is to protect U.S. citizens. It is in no way, he went on, aimed at protecting enemy combatants who are picked up.
Therein lies the problem. How do we know they are enemy combatants? Is it because the CIA says they are an enemy combatant? Who says they are an enemy combatant? This is not World War II, folks, where the Germans are on one side and they have uniforms, and the Japanese are on the other side and they have uniforms. This is an amorphous terrorist war where the terrorists don't wear uniforms. They can be dressed like you or me. They can look just like you or me. So we don't know.
We have instances where people have been thrown into Guantanamo, for example, and they were fingered by a neighbor who didn't like them and wanted their property or house or didn't like them because of something they had done to them in the past. They fingered them and said: Guess what. They are big terrorists. People were picked up and thrown in jail.
Habeas is the one provision that allows someone snatched off the streets here or anywhere else suspected of being a terrorist to at least come forward and say: What are the charges against me?
We have seen this happen in Guantanamo, people kept for months, for years, without ever having a charge filed against them, and many of them we found out were totally innocent. What does this say to the rest of the world?
Senator Obama from Illinois told the story the other day about when he was in Chad in August and heard about an American citizen who was picked up in Sudan and held by the Sudanese. He made some calls to try to get this person released. It was an American journalist. After a while, he was released.
The American journalist came back and said: I was picked up by the Sudanese officials. I asked for permission to contact the U.S. Embassy with a phone call so I could talk to our Embassy.
The Sudanese captor said: Why should we let you do that? You don't let the people in Guantanamo Bay do that.
The use of habeas is not just to protect the people who are suspected so that we know whether they really are an enemy combatant. It is also as a protection for our troops, our soldiers, our civilians, our business people traveling around the world, people traveling on vacation, journalists, just like this one, who may be snatched, picked up by a foreign government. We want to be able to say to that government: Produce the person. What are the charges? If we don't allow it, we are giving the green light to every other would-be dictator anywhere in the world to do the same thing--any government anywhere.
If the moral argument against torture does not hold any weight with this administration, they should just examine the abundant evidence that torture simply doesn't work. This is not just my opinion, this is what the experts are saying.
Let me quote from a letter signed by 20 former U.S. Army interrogators and interrogation technicians:
Prisoner/detainee abuse and torture are to be avoided at all costs, in part because they can degrade the intelligence collection effort by interfering with a skilled interrogator's efforts to establish rapport with the subject.
Simply put, torture does not help gather useful, reliable, actionable intelligence. In fact, it inhibits the collection of such intelligence.
Earlier this month, the U.S. Army released its new field manual 222.3: ``Human Intelligence Collector Operations,'' which covers interrogations by the U.S. military in detail. This manual replaces the previous manual and is to be used by our military personnel around the world in performing interrogations.
The Army Field Manual explicitly bans, among other things, beating prisoners, sexually humiliating them, threatening them with dogs, depriving them of food and water, performing mock executions, shocking them with electricity, burning them, causing other pain, or subjecting them to the technique called waterboarding, which simulates drowning.
So if these techniques are explicitly banned in the Army Field Manual, why shouldn't they be explicitly banned for CIA personnel or CIA contract personnel? Why do we have a high standard for our military and effectively no standard for the CIA and its contractors?
For me, this debate about illegal imprisonment and officially sanctioned torture is not an abstraction. It strikes very close to home for me.
Thirty-six years ago this summer at the height of the Vietnam war, I brought back photographs of the so-called tiger cages at Con Son Island where the Vietcong and North Vietnamese prisoners, as well as civilians who had committed no crime whatsoever, were being tortured and killed with the full knowledge and sanction of the U.S. Government. That was July of 1970 when I was a staff person in the House of Representatives working with a congressional delegation on a factfinding trip to Vietnam.
We had all heard reports about the possible existence of these so-called tiger cages in which people were brutally tortured and killed. Our State Department and our military officials denied their existence. They said it was only Communist propaganda.
Through various sources, I thought that the reports about the tiger cages were at least credible and should be investigated further.
Thanks to the courage of Congressman William Anderson of Tennessee and Congressman Augustus Hawkins of California and to Don Luce, an American working for a nongovernmental organization, and because of the bravery of a young Vietnamese man who gave us the maps on how to find the prison, we were able to expose the tiger cages on Con Son Island.
This young Vietnamese man about whom I speak was let out of the tiger cages, but they kept his brother, and they said: If you breathe one word about this, we are going to kill your brother.
Why did they let him out of the tiger cages? Because he was president of the student body at Saigon University. What had been his crime? He had demonstrated against the war. So they picked up he and his brother and threw them in the tiger cages and tortured them.
The students refused to go back to class--this was a big deal--until they returned this young man to his university, which they did, but they kept his brother and said: If you breathe a word of this, we will kill him.
This young man decided he needed to take a chance, and he took a chance on me. He drew the maps and gave us the story on how to find these tiger cages which were well hidden, and without the maps we never would have found them. Fortunately, I had a camera and a hidden tape recorder which proved useful when I returned to the United States.
Supporters of the war claim that the tiger cages were not all that bad. But then Life magazine published my pictures, and the world saw the horrific conditions where, in clear violation of the Geneva code, North Vietnamese, Vietcong, as well as civilian opponents of the war--just civilians--who committed no crimes whatsoever--were all crowded together in these cages, as I said, in clear violation of the Geneva Conventions and the most fundamental principles of human rights.
At the same time, the U.S. Government had been insisting that the North Vietnamese abided by the Geneva Conventions in their treatment of prisoners in North Vietnam. Yet here we were condoning and even supervising the torture of civilian Vietnamese, along with Vietnamese soldiers and others in clear violation of the Geneva Conventions.
We may not have known about it--our public did not know about that--but the Vietnamese sure knew about it.
I thought we had learned our lesson from that, and then I saw Abu Ghraib and thought: Wait a minute. Haven't we learned our lesson? And, Mr. President, just as 37 years ago when the tiger cages were first talked about, they were denied--and they thought they could deny them because it was hard to get to the island. You couldn't really get out there. As far as they knew, no one had ever taken pictures of it and no one had really ever escaped from there, like a Devil's Island kind of place. So the military denied it. Our Government denied it year after year until I was able to take the pictures and bring back the evidence.
Mr. President, I submit to you and everyone here and the American people that had not that courageous soldier taken the pictures of Abu Ghraib and kept those pictures, they would have denied that ever happened. They would have denied to high Heaven that such things took place at Abu Ghraib. Thankfully, one courageous young soldier decided this was wrong, it was inhumane, it was not upholding the highest human standards of America, and it was in violation of the Geneva Conventions. Had he not taken those pictures, it would be denied forever that ever happened at Abu Ghraib.
So now, as if we learned nothing from that previous tragedy of the tiger cages 36 years ago or Abu Ghraib just a couple of years ago, here we go again denying obvious instances of torture and abuse, effectively giving the green light to torture by U.S. Government agents and contractors and watering down the War Crimes Act.
This is a betrayal of our laws. It is a betrayal of our values. It is a betrayal of everything that makes us unique and proud to be Americans.
The administration apparently thinks that we will just go along with this betrayal because there is an election in 6 weeks. Apparently they think we are afraid of being branded weak on terrorism. Indeed, some are no doubt hoping that we will vote against this bill so they can use it as a bludgeon against us in the election. All I can say is: Shame on them. What is more, it is not going to work. Because opposing this bill, which would give the green light to torture, is far, far bigger than the outcome of the November election.
This is about preserving our core values as Americans. It is about standing up for our troops and ensuring that they do not become subject to the same acts of torture and retaliation. It is about standing up for American citizens, civilians, and others who may be caught up in some foreign land with false charges filed against them, and yet not even being able to contact our embassy. It is about protecting Americans. And it is about changing course and beginning to wage an effective war against the terrorists who attacked us on September 11, 2001.
It is time to quit being strong and wrong, and it is time to start being strong and smart. Being strong and wrong has been a disaster. It has bogged us down in a civil war in Iraq. It has turbocharged the terrorists. It has made America less safe. So it is time to be strong and smart. It is time to be true to who we are as Americans. It is time to say no to indefinite--indefinite--incarceration. It is time to say no to taking away the right of someone put away to at least have the charges pressed against them. It is time to say no to torture in all its forms now and at any time in the future.
Mr. President, I yield the floor.
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