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Intelligence Authorization Act for Fiscal Year 2008--Conference Report--Resumed

Floor Speech

Location: Washington, DC



Mr. KENNEDY. Mr. President, the Senate will soon vote on the intelligence authorization bill, which contains a provision requiring all U.S. governmental agencies, including the CIA, to comply with the Army Field Manual's prohibition on torture. This reform is urgently needed. I commend the Intelligence Committee for adopting this provision. Its enactment will ensure that the Government uses only interrogation techniques that are lawful and those provisions should be retained.

In the Detainee Treatment Act passed in 2005, Congress attempted to reaffirm our commitment to the basic rights enshrined in the Geneva Conventions and restore America's standing in the eyes of the world as a nation that treats detainees with dignity and respect.

These rights reflect the values we cherish as a free society, and also protects the lives of our service men and women. Today, however, we know that the 2005 act has fallen short of our goals. By not explicitly applying the Army Field Manual standards to all Government agencies, we have left open a loophole that the Bush administration promptly drove a Mack truck through.

The so-called enhanced interrogation program carried out in secret sites became an international scandal and a profound stain on America in the eyes of the world. The administration issued an executive order last year to try to minimize the outcry, but the order failed to renounce abuses such as waterboarding, mock executions, use of attack dogs, beatings, and electric shocks.

The disclosure of secret opinions by the Office of Legal Counsel gave further evidence that the administration had interpreted the Detainee Treatment Act and other antitorture laws in an unacceptable, narrow manner.

Attorney General Mukasey's refusal at his confirmation hearings to say whether waterboarding is illegal gave us even more reason for concern. The outrages do not end there. Two months ago, the New York Times reported that in 2005 the CIA had destroyed at least two videotapes documenting the use of abusive techniques on detainees in its custody. These videotapes have been withheld from Federal courts, the 9/11 Commission, and congressional committees. Two weeks ago in his testimony before the Senate Judiciary Committee, the Attorney General flat out refused to consider investigating possible past acts of torture or to brief congressional committees on why he believed the CIA's enhanced interrogation program is lawful.

Last week, we received official confirmation that the CIA had used waterboarding on three detainees. At the same time, the White House made the reckless claim that waterboarding is legal, and that the President can authorize its use under certain circumstances.

The White House position is directly contrary to the findings of courts, military tribunals, and legal experts that waterboarding is a violation of U.S. law and a crime against humanity.

In the words of a former master instructor for U.S. Navy SEALs:

Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of blackout and expiration. Usually the person goes into hysterics on the board. For the uninitiated it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death.

Waterboarding has a long and brutal history. It is an ancient technique of tyrants. In the 15th and 16th centuries, it was used in the Spanish Inquisition. In the 19th century, it was used against slaves in this country. In World War II, it was used against our troops by Japan. We prosecuted Japanese officers for using it and sent them to years and years of jail for following that procedure.

In the 1970s, it was used against political opponents by the Khmer Rouge in Cambodia and military dictatorships in Chile and Argentina. Today it is being used against pro-democracy activists in Burma. That is the company we keep when we fail to reject waterboarding.

In fact, Attorney General Mukasey could not even bring himself to reject the legal reasoning behind the infamous Bybee torture memo of the Office of Legal Counsel which stated that physical pain amounts to torture only if it is: equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.

According to that memo, anything that fell short of that standard would not be torture. This Bybee memorandum was in effect for 2 1/2 years before it was ever effectively suspended. It was suspended then by Attorney General Alberto Gonzales for the Judiciary Committee, quite frankly, in order that his nomination could be favorably considered.

Included in the Bybee memoranda was a provision that was an absolute defense for any of those who would be involved in this kind of torture, unless prosecutors could prove a specific intent that the purpose of the torture was to harm the individuals rather than to gain information, therefore effectively giving carte blanche to any of those who would be involved in torture.

When Attorney General Gonzales appeared before the Judiciary Committee
and effectively repealed the Bybee memoranda, he did so for the Department of Defense but not for the Central Intelligence Agency, even at that time a clear indication of what the administration was intending to do with the Central Intelligence Agency. It should not be any surprise to anyone that this has been ongoing and continuous.

According to that memo, again the Bybee memorandum, anything that fell short of this standard would not be torture. CIA interrogators called the memo their ``golden shield'' because it allowed them to use virtually any interrogation method they wanted.

When the memo--this is the Bybee memo--became public, its flaws were obvious. Dean Harold Koh of Yale Law School testified that in his professional opinion as a law professor and a law dean, the Bybee memoranda is ``perhaps the most clearly legal erroneous opinion I have ever read [because of all of the previous statutes and laws that have been passed to prohibit torture by the Congress of the United States and those initiated and supported by Republican presidents, by Ronald Reagan, as well as Democratic presidents''.]

This was not a partisan series of statements about what the United States position has historically been. The Bush administration was embarrassed into withdrawing the memo. To this day, no one in the administration has repudiated its content. The torture memo continues to haunt this country. I have asked the Attorney General several times to reject its legal reasoning, but he continues to refuse to do so. The only solution is for Congress to apply the Army Field Manual's standards to the entire Government. There has rarely if ever been a greater need to restore the rule of law to America's interrogation practices.

The field manual represents our best effort to develop the most effective interrogation standards. The manual clearly states that: Use of torture is not only illegal but also it is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear.

We have on trial in military courts six of those who are going to be tried because of 9/11. There is no question there is going to be a whole series of appeals because of the use of various techniques against them. It may very well be that some turn out--because of the violations of basic and fundamental, some constitutional rights, there will be a question about what the outcome is going to be with regard to those individuals.

Why not get it right from the start? The manual gives our interrogators great flexibility, provides all the techniques necessary to effectively question detainees, but it makes clear that illegal and inhumane methods are not permitted.

In a letter to our troops dated May 7, 2007, General Petraeus stated:

Our experience in applying the interrogation standards laid out in the Army Field Manual ..... shows that the techniques in the Manual work effectively and humanely in eliciting the information from detainees.

Applying the field manual's standards throughout our Government will move us closer to repairing the damage to our international reputation in the wake of the Abu Ghraib scandal. It will once again commit the United States to be the world's beacon for human rights and fair treatment. It will improve the quality of intelligence gathering, and protect own personnel from facing punishment, condemnation, or mistreatment anywhere in the world. It will make us more, not less, safe.

Torture is a defining issue. It is clear that under the Bush administration we have lost our way. By applying the field manual standards to all U.S. Government interrogations, Congress will bring America back from the brink, back to our values, back to basic decency, back to the rule of law.

I yield the floor.

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