[Congressional Record: September 28, 2008 (Extensions)]
[Page E2095-E2096]



                          HON. DAVID E. PRICE

                           of north carolina

                    in the house of representatives

                       Friday, September 26, 2008

  Mr. PRICE of North Carolina. Madam Speaker, during the presidency of 
George W. Bush, many of us have watched with horror as the 
Administration has pursued policies--supposedly to help fight an ill-
defined war against terrorism--that shock the conscience and undermine 
the values fundamental to our understanding of what it means to be an 
American: torture; disappearance; indefinite detention.
  Historians will view the excesses of this era with the same scorn as 
the Alien and Sedition Acts and the reign of McCarthyism. Even in 
hindsight, however, it will be difficult to understand how these 
policies could have gained even tacit approval from so many.
  Many of us have resisted these policies, questioned them, opposed 
them, and condemned them. We have, in the last two years, begun the 
monumental task of dismantling them.
  We also have begun a second, equally daunting effort: to identify 
policies that will address our very real security challenges without 
compromising our fundamental values and our standing in the world. 
Simply put, global terrorism presents a serious and evolving threat, 
and it demands new thinking about the tools we must use to confront 
this threat.
  On September 24, along with nine original co-sponsors, I introduced 
H.R. 7056, legislation aimed at generating more robust debate about the 
nature of the threat of terrorism and the tools we must apply to 
address it. My legislation focuses specifically upon the Bush 
Administration's most disgraceful and disturbing legacy: its 
architecture of law and practice in the realm of detention, 
interrogation, and prosecution of terrorism suspects.
  My legislation recognizes, however, that a progressive response to 
the Administration's regressive policies cannot be limited to ``don't 
do that''--don't torture, don't hold detainees indefinitely, and so 
on--but must offer a new vision that is responsive to the challenges 
and opportunities of the current context. I hope my proposals will 
spark new ideas that will lead to a new, more ethical, and more 
effective approach to battling global terrorism.
  The question of how best to organize and mobilize the instruments of 
our national power in fighting global terrorism, especially with regard 
to interrogation and detention of terrorist suspects, is particularly 
pertinent as we prepare to determine the direction and leadership of 
our country for the next four years.
  In my view, there are three major challenges the next president will 
have to address. One: How can we most effectively approach human 
intelligence collection, a task that includes determining the most 
effective and most ethical ways to conduct interrogations? Two: What is 
the best system to prosecute suspected terrorists quickly and 
effectively? Three: What will be the nature of our detention regime? 
Where, under what authority, with what rights, and for how long may 
suspects be detained? All of these questions will require fresh 
thinking and creative solutions.
  Debate surrounding the first question has largely focused on whether 
or not the United States should engage in so-called ``enhanced 
interrogation'' practices, which often amount to torture. The Bush 
Administration has adopted policies authorizing aggressive 
interrogation practices that many of us would interpret to constitute 
torture or inhuman treatment, placing our nation in clear violation of 
the constitution, U.S. law, and international treaty obligations. The 
question these practices have posed is whether, and when, such 
practices are justified in the name of national security.
  Most basically, the use of torture violates notions of human rights 
and dignity that in the American political and legal tradition have 
been regarded as inalienable and have preempted other considerations. 
The constitution explicitly prohibits ``cruel and unusual punishment'' 
and requires that no individual ``be deprived of life, liberty, or 
property, without due process of law.'' The constitution does not limit 
the application of these protections to American citizens or to cases 
that do not involve potential terrorism or other dangers. Torturing an 
individual inflicts cruel and unusual punishment upon an individual 
without granting him or her due process of law.
  The Bush Administration, by contrast, has taken a utilitarian moral 
approach in justifying the use of torture. Utilitarian approaches judge 
an action according to its ability to achieve the greatest good for the 
greatest number of people. Should torturing a single individual prove 
to save the lives of hundreds or thousands of others, the action of 
torturing could be deemed justifiable. When vetoing an Intelligence 
Authorization bill including prohibitions against torture, for example, 
President Bush argued, ``if we were to shut down this program and 
restrict the CIA. . . . we could lose vital information from senior al 
Qaeda terrorists, and that could cost American lives.''
  At least two of the factual premises of the utilitarian argument are 
highly problematic. While advocates often present the case in terms of 
a dramatic choice to torture one in order to save many, the truth is 
that torture and abuse have been applied far more widely than to a few 
unique individuals. The argument might be stronger if torture were a 
unique exception applied in a singular and critically urgent 
circumstance--the ``ticking bomb'' scenario. The case begins to fall 
apart, however, when torture is officially sanctioned policy, available 
at the discretion of interrogators.
  What of the claim that violating human rights and liberties might 
serve some greater good? Even if one acepts such moral reasoning, it is 
based on false assumptions. Several current and former practitioners of 
interrogation have persuasively argued that so-called ``enhanced 
interrogation'' practices--or torture--simply do not work. Such 
practices are no more likely to yield actionable intelligence than 
traditional methods and, in fact, in many cases, are more likely to 
yield false information.
  As Rear Admiral John Hutson, a former Navy JAG, has explained, 
``torture doesn't work. All the literature and experts say that if we 
really want usable information, we should go exactly the opposite way 
and try to gain the trust and confidence of the prisoners. Torture will 
get you information, but it's not reliable. Eventually, if you don't 
accidentally kill them first, torture victims will tell you something 
just to make you stop.''
  Even the Army Field Manual on Interrogation states that ``the use of 
force is a poor technique, as it yields unreliable results, may damage 
subsequent collection efforts, and can induce the source to say 
whatever he thinks the interrogator wants to hear.''
  Both moral and practical arguments thus lead to the same conclusion: 
the use of torture and cruel or inhuman practices is the wrong way 
  But the question of torture is only the beginning of the debate, not 
the end. For far too long, public debate focused our attention only on 
the abuses of ``enhanced interrogation,'' ignoring--to our peril and to 
the detriment of our counterterrorism efforts--the equally important 
questions regarding our ability to effectively detain and prosecute 
individuals involved in terrorism. A long litany of policies undertaken 
by the Bush administration in the service of its war on terrorism--
indefinite detention, habeas corpus exceptions, special military 
tribunals, and so on--are as morally questionable as the practice of 
  Yet, too often, we have engaged in passionate ideological debate 
about whether these policies are morally justified, when we might first 
ask the simple question: do they work?
  While Supreme Court justices and legal scholars have debated the 
legality and morality of the Bush administration's justice system for 
terrorist suspects, reaching an array of different conclusions about 
the theoretical validity of Guantanamo Bay, the military commissions 
system, and the like, few would attempt to argue that this legal regime 
actually works.
  To wit: the administration's controversial military tribunal system 
has yielded exactly two convictions in the seven years since 9-11, 
including one off a guilty plea. In the same time span, the civilian 
justice system that the tribunal system supposedly improves upon has 
delivered over 145 convictions. If our objective is a speedy, effective 
instrument for bringing terrorists to justice, the tribunal system 
fails miserably to deliver.
  The denial of habeas corpus rights meets a similar fate when examined 
from a practical standpoint. This denial has led to numerous lawsuits 
bogging down the judicial process and has undermined the moral high 
ground on which U.S. antiterrorism efforts previously stood. In short, 
the denial of such rights simply does not work to benefit our efforts 
in combating terrorism.

[[Page E2096]]

  And practices such as the detention of high-value prisoners at 
secret, so-called ``black site'' prisons, the extraordinary rendition 
of detainees to countries known to torture suspects, and the broad 
round-ups of thousands of detainees with limited evidence of links to 
terrorism similarly have proven to be bankrupt as policies. There is no 
evidence to suggest that they have improved our human intelligence 
collection capabilities, they have not advanced our efforts to bring 
terrorists to justice, and in every case they have had severe dilatory 
effects on the credibility of our leadership in the global fight 
against terrorism. In short, they have hurt us far more than they have 
  Looking at real-world results may help us debunk some of the Bush 
Administration's misguided assertions, but it is not sufficient to help 
us formulate the right approach. Rather, it is essential that we inform 
our policymaking by a deep examination and national debate about the 
relationship between our long-held values--as enshrined in the 
constitution and law and expressed in our religious and ethical 
traditions--and our security prerogatives.
  Examining our detention and interrogation policies through this lens 
is far more difficult, because legitimate differences do exist about 
what direction is most just, fair, and ethical, as well as what is most 
  Nevertheless, it is critical that our country have this debate, and 
that we reach beyond the relatively basic question of whether or not to 
engage in ``torture.'' Our approach to this area of policy will be most 
effective when it is well informed by all three branches of government, 
by politicians and the public, and by the lessons of our experience.
  Unfortunately, this national conversation has not occurred and, 
what's worse, has been precluded by shrill fear-mongering and divisive 
rhetoric. The Bush administration deserves much of the blame. In 
debates over anti-torture provisions, FISA, military commissions, and 
the like, it has generally resorted to scare tactics, sharp 
partisanship, and questions about its critics' patriotism. Such tactics 
do not promote a productive national debate that will make our nation 
safer from terrorism; they have only served to deflect attention from 
the enormous flaws of the Administration's policies.
  Instead of such cynical partisanship, we must truly wrestle with the 
very real challenges of developing smart detention and interrogation 
policies. Such wrestling must go beyond simply opposing the 
administration's flawed policies.
  Opposing torture, opposing the denial of habeas rights, opposing 
extraordinary rendition--these stances are all good and appropriate, 
but the rejection of bad policy alone cannot make good policy. Instead, 
we must seek ways to affirmatively improve our human intelligence 
collection, strengthen the capacity of our courts to prosecute 
terrorists, and better understand the nature and vulnerabilities of the 
terrorist threat.
  In the interest of encouraging such a debate, the bill I have 
introduced offers a number of proposals for how we might effectively 
approach human intelligence collection, detention, and prosecution in 
terrorism cases.
  My bill combines the imperative of rolling back the Administration's 
worst abuses with what I hope is forward thinking about improving our 
ability to collect human intelligence and bring terrorists to justice.
  It would repeal the Military Commissions Act and direct prosecution 
of terrorism cases to the time-tested civilian and military justice 
systems, which have proven far more effective at bringing terrorists to 
justice; It would close the Guantanamo Bay detention facility.
  It would establish a new, cross-government, uniform set of standards 
for interrogation practices, enacting a clear prohibition against 
torture and building in a regular Congressional review. Rather than 
imposing the Army's standards on everyone, it would establish a process 
for military and civilian intelligence agencies to work together to 
develop new standards.
  It would prohibit the use of private contractors for the critically 
sensitive, inherently governmental business of conducting 
interrogations, a red line that I hope we can all agree on.
  And it would require that all high-level interrogations be 
videotaped, as proposed by our colleague, Representative Rush Holt.
  These much-needed reforms are founded upon both moral and practical 
analyses of the current system's flaws. Such correctives are needed to 
return our nation to a solid footing. But they must be paired with 
steps to ensure that our nation's capacity for human intelligence 
collection is equal to the challenge of global terrorism.
  To that end, my bill proposes a number of new initiatives designed to 
make our human intelligence collection better, smarter, and more 
  It would establish a new interagency center of excellence to train 
intelligence collectors, review U.S. policies, and carry out sustained 
research on the best practices of interrogation and intelligence 
  It would seek to enhance U.S. intelligence cooperation with key 
allies--like Britain, Spain, and Israel--that have significant 
experience in dealing with human intelligence collection and anti-
terrorism efforts. We need to learn from their successes and mistakes 
as well as our own.
  It would require the military to further develop intelligence 
collection career paths so that, instead of rotating officers in and 
out of the intelligence specialty, we retain the best and brightest in 
the field and benefit from the expertise they develop over the course 
of their careers.
  And it would require the formulation of a strategy to prevent the 
radicalization of inmates held in both domestic and overseas detention 
  I offer my legislation with the belief that we must have a far 
broader national conversation about the questions and the hope that my 
bill will point to some new and creative answers.
  The American public must undertake this conversation with a deep 
reassessment of an even more fundamental question: what makes our 
nation truly secure? Is our nation more secure when we use aggressive 
measures that, even if they make some terrorist suspects talk, fuel the 
radicalization of a new generation of terrorists? Is our nation more 
secure if we detain hundreds of terrorist suspects extralegally, but 
then face legal obstacles that prevent us from convicting them? Is our 
nation more secure if we take measures designed to increase our 
security against attacks that undermine values we hold sacred?
  Our national conversation must be oriented toward helping us develop 
a set of policies that makes far more effective use of the instruments 
of our national power to defeat terrorism on the battlefield, while 
capitalizing on the moral authority of our free and open society to 
defeat terrorism in the battle of ideas.
  Against those who would do us harm, we must be vigilant and ready to 
mount an effective defense. But the number of such adversaries, the 
support they gain, and the threat they pose will depend not only on the 
defense we mount, at home or abroad, but on the values we project and 
the role our nation plays in the world.
  The legislation I offer today will restore our grounding in the 
values of justice and respect for human rights that have guided our 
nation through two hundred thirty-two years of history. It will help us 
lead again through the power of our example. And it will help us mount 
that vigilant defense against global terrorists by enhancing the 
effectiveness of our efforts. I urge my colleagues to support this