[Congressional Record: October 1, 2008 (Senate)]
[Page S10300-S10302]


  Mr. FEINGOLD. Mr. President, since 2001, top officials in the Bush 
administration have secretly authorized the use of abusive 
interrogation techniques that in some cases have risen to the level of 
torture. In doing so, they have shown flagrant disregard for statutes, 
for treaties ratified by the United States, and for our own 
Constitution. They have misled the American people, undermined our 
values, and damaged our efforts to defeat al-Qaida.
  There are some who downplay the abusive treatment of detainees that

[[Page S10301]]

has been uncovered at Abu Ghraib, Guantanamo Bay and elsewhere as 
isolated incidents, conducted by a handful of rogue low-level 
interrogators. But the facts indicate where the true responsibility 
lies: with an administration that gave the green light to torture and a 
Justice Department that said anything goes.
  Make no mistake, torture is against the law. The United States is a 
party to the Convention Against Torture, the Geneva Conventions, and 
the International Covenant on Civil and Political Rights. The United 
States Code criminalizes any act ``specifically intended to inflict 
severe physical or mental pain or suffering.'' And in 2005, Congress 
reiterated in the Detainee Treatment Act that cruel, inhumane or 
degrading treatment of detainees in U.S. custody is not permitted, no 
matter where those detainees are held.
  Notwithstanding these obligations, top administration officials have 
continuously sought and found ways to disregard the legal and ethical 
boundaries on acceptable detainee treatment. On January 25, 2002, 
Alberto Gonzales, in his capacity as counsel to the President, signed a 
memo arguing that Taliban and al-Qaida detainees were not protected by 
the Third Geneva Convention on the Treatment of Prisoners of War. He 
stated that ``[i]n my judgment, this new paradigm renders obsolete 
Geneva's strict limitations on questioning of enemy prisoners and 
renders quaint some of its provisions . . .''
  On February 2, 2002, the President issued an order determining that 
al-Qaida and Taliban detainees were entitled to neither prisoner of war 
protections under the Geneva Conventions nor the protections of Common 
Article Three. Gonzales also solicited from the Department of Justice 
Office of Legal Counsel, the now infamous ``Bybee memo,'' issued in 
August 2002, which in the context of the criminal prohibition on 
torture defined torture narrowly as the infliction of ``intense pain or 
suffering of the kind that is equivalent to the pain that would be 
associated with serious physical injury so severe that death, organ 
failure, or permanent damage resulting in a loss of significant bodily 
function will likely result.'' The memo also contained the extreme--and 
dangerous--legal theory that the President, as commander in chief, 
could disregard any congressional enactment that interfered with his 
ability to interrogate enemy combatants. These positions were 
reiterated in March 2003, when another OLC memo was sent to William J. 
Haynes, general counsel of the Department of Defense.
  And the OLC did not stop at general guidance. In a hearing this year 
before a House subcommittee, Steven Bradbury, Principal Deputy 
Assistant Attorney General at OLC, confirmed that his office had 
advised the CIA that the regulated use of waterboarding did not 
constitute torture for purposes of the criminal prohibition against 
  High-level administration officials also have not hesitated to issue 
policies permitting abusive treatment of detainees. On November 27, 
2002, Haynes sent a memo to Secretary of Defense Donald Rumsfeld that 
asked him to approve 15 interrogation techniques for use at Guantanamo 
Bay, including hooding, 20-hour interrogations, isolation, sensory 
deprivation, forced nudity, threatening detainees with dogs, and 
putting detainees in ``stress positions'' for up to four hours. 
Rumsfeld not only approved the techniques, he added a hand-written 
note: ``I stand for 8-10 hours a day. Why is standing limited to 4 
  Rumsfeld later rescinded the authorization of some of these 
techniques for use at Guantanamo, and reauthorized the use of others. 
But the consequences of these high-level approvals were far-reaching. A 
recent report by the Department of Justice Office of the Inspector 
General revealed that techniques authorized by Rumsfeld were used on 
detainees at Guantanamo Bay, both during the period they were 
authorized and after they had been rescinded. And such behavior was not 
limited to Guantanamo Bay. According to the 2004 ``Review of Department 
of Defense Detention Operations and Detainee Interrogation 
Techniques,'' known as the Church Report, the Combined Joint Task Force 
in Afghanistan also developed, authorized and implemented interrogation 
procedures similar to those Rumsfeld had approved in 2002. The Church 
Report and the ``Final Report of the Independent Panel to Review DOD 
Detention Operations,'' known as the Schlesinger Report, also document 
how, in August 2003, MG Geoffrey Miller was sent from Guantanamo Bay to 
Iraq, and brought with him Guantanamo policies allowing the use of 
harsher interrogation techniques. Shortly thereafter, LTG Ricardo A. 
Sanchez, the top military official in Iraq, formally adopted techniques 
heavily influenced by those in use at Guantanamo, such as stress 
positions, forced sleep adjustment, and the use of dogs, although some 
of these were later rescinded.
  While OLC was issuing memos effectively saying there were no legal 
restrictions on interrogations and high-level officials were 
authorizing abusive techniques, there is evidence to suggest that 
interrogators on the ground were given very little information about 
exactly what was and was not permitted. During a Judiciary Committee 
hearing on interrogation policy in June, I asked Department of Justice 
inspector general Glenn Fine whether he thought that military 
interrogators had clear guidance on what techniques were permissible, 
given the administration's shifting policies. He responded that changes 
in policy ``didn't always get down to the level of the interrogators'' 
and that, at times, ``they weren't sure or aware of what exactly was 
authorized.'' Likewise, the Schlesinger Report stated that ``[t]he 
existence of confusing and inconsistent interrogation technique 
policies contributed to the belief that additional interrogation 
techniques were condoned.'' In light of all this, the administration's 
insistence that low-level interrogators are solely to blame for 
incidents of detainee abuse simply is not plausible.
  Many individuals who were aware of what was happening raised 
concerns. Secretary of State Colin Powell wrote a January 2002 memo 
that weighed the costs and benefits of trying to evade the Geneva 
Conventions, noting that to do so would ``reverse over a century of 
U.S. policy and practice in supporting the Geneva Conventions and 
undermine the protections of the rule of law for our troops.'' Others 
raised concerns as well. According to the DOJ inspector general's 
report on the involvement of the FBI in military interrogations, 
several FBI agents ``became deeply concerned not only about the 
efficacy of these techniques but also about their legality.'' In 2002, 
the FBI Director decided unequivocally that FBI agents would not 
participate in interrogations that used abusive techniques. In a 
November 7, 2002, memorandum for the Office of the Army General 
Counsel, Army COL John Ley stated that he believed that some of the 
techniques that the Pentagon was considering for use at Guantanamo Bay 
and that were later approved by Rumsfeld--could violate both the 
Federal criminal prohibition on torture and the Uniform Code of 
Military Justice. He expressed concern not only about the legality of 
the interrogation techniques, but also about eroding public support and 
losing the moral high ground. And in a hearing before the Senate Armed 
Services Committee in June, RADM Jane Dalton, who served as legal 
adviser to the Chairman of the Joint Chiefs of Staff from June of 2000 
until June of 2003, testified that all four of the Armed Services were 
concerned about authorizing new interrogation techniques.
  Fortunately, in 2006 after the Detainee Treatment Act became law, the 
Department of Defense finally agreed it would no longer authorize the 
use of harsh interrogation techniques by military personnel, and 
ordered that all personnel follow the interrogation policies laid out 
in the Army Field Manual. I have strongly supported proposals to 
require all intelligence agencies--specifically the CIA--to do the 
same. For far too long, this administration has failed to abide by the 
law and to protect our values. The use of abusive interrogation 
techniques is unsupportable on moral, legal or national security 
grounds. It does not represent who we are as a nation, and it does not 
make America safer.
  The responsibility for the use of immoral, illegal and counter-
productive interrogation techniques does not stop with the 
interrogators who employed them. It extends to those in the highest 
echelons of the Bush administration that sought to encourage these

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techniques, who confused interrogators with constantly shifting 
policies, and that ignored the many voices who told them that what they 
were doing was unlawful and that it was not the American way. And it 
extends to the President himself, who has acknowledged publicly that in 
2003 he approved meetings of his most senior national security 
officials to consider and sign off on so-called enhanced interrogation 
techniques. The abuses that have occurred under this administration's 
watch have constituted one of the darkest episodes in this Nation's 
recent history. They have fed growing anger at and opposition to U.S. 
policies, and in the process have undermined our efforts to combat al-
Qaida and associated extremist groups. The next administration will 
have to work long and hard to undo the damage that has been done to our 
country's reputation and national security and to restore the rule of