[Congressional Record: February 13, 2008 (Senate)]
[Page S927-S936]
CIA INTERROGATIONS AND ARMY FIELD MANUAL
Mrs. FEINSTEIN. Mr. President, yesterday was a big day before the
Senate. We had the Foreign Intelligence Surveillance Act bill. Today is
an even bigger day because the intelligence authorization bill is going
to be before the Senate, and today we will grapple with something that
I think should be major in our consciousness and major in our
deliberations. It is central to who we are as a nation. The question is
whether the United States should continue to go to the ``dark side,''
down the road of torture, and continue to allow the CIA and other
intelligence agencies to practice or outsource state-sanctioned
torture. To me, the answer is clear, and I hope it is to everyone. The
answer should be no.
Today we are living in a legal limbo, where the rules are shrouded by
ambiguity. The time has come to change this once and for all. The way
to do it is to support the fiscal year 2008 intelligence authorization
bill, which would prohibit all interrogation techniques by the CIA and
place the intelligence community under the uniform standard of the Army
Field Manual. If that bill passes, and it has passed the House of
Representatives, if it passes here today, we have a uniform standard
for the entire American Government with respect to coercive
interrogation techniques.
The Army Field Manual, which looks like this, has 19 interrogation
protocols. They are proven, they are flexible, and they are effective.
The CIA interrogation program, on the other hand, I believe, is
immoral, illegal, sometimes ineffective, and often counterproductive. I
wish to simply read something which appeared in the newspapers, and
what this says is:
The book on interrogation has been written. We just need to
follow it.
And they refer to this book, Mr. President.
Cruel and inhuman and degrading treatment of prisoners
under American control makes us less safe, violates our
Nation's values, and damages America's reputation in the
world. That is why, in 2004, the bipartisan 9/11 Commission
called for humane treatment of those captured by the United
States Government and our allies in the struggle against
terrorism. Congress and the Pentagon responded with clear and
comprehensive new rules for the military so that
interrogation techniques practiced by the military today are
both humane and effective. But not all United States agencies
are following these rules. Congress should require the entire
U.S. Government and those acting on its behalf to follow the
Army Field Manual on Human Intelligence Collector Operations.
Doing so will make us safer while safeguarding our cherished
values and our vital national interests.
This was signed by Zbigniew Brzezinski, Warren Christopher, Lawrence
Eagleburger, Slade Gorton, Lee Hamilton, Gary Hart, Rita Houser, Karla
Hills, Thomas Kean, Anthony Lake, John Lehman, Richard Leon, Robert
McFarlane, Donald McHenry, Sam Nunn, Thomas Pickering, Ted
Sorensen, and John Whitehead. It is a bipartisan group that has come
out with this, and I believe we should absorb it and use that
information.
The Army Field Manual provision has the support of the Intelligence
Committees. I offered the amendment in the conference between the House
and the Senate on the intel authorization bill. It was passed by the
Senate and it was passed by the House, and it is part of the bill, and
as I said, the House has passed their bill. The amendment was the
subject of passionate and considered debate in Congress. It has unique
support--18 former security officials, as I have said--and this Army
Field Manual was issued in its current form by the Department of the
Army in September of 2006. It followed the requirements of the Detainee
Treatment Act, and it applies uniformly across all elements of the
military and civilian elements of the Department of Defense.
The manual was published after more than 3 years of drafting and
coordination. This was the most scrutinized field manual the Army has
ever produced, including reviews and comments by every relevant
Pentagon office, every combatant commander, the White House, the DNI,
the CIA, and the Defense Intelligence Agency. The Departments of
Justice and State have also concurred with the manual's guidance. For
the first time ever, the Army consulted with Congress in the persons of
Senators McCain, Warner, and Levin in drafting the manual.
The manual complies with the Uniform Code of Military Justice, the
Geneva Conventions, and the Detainee Treatment Act. There is perhaps no
more authoritative figure on the manual than our commanding officer in
Iraq, GEN David Petraeus. In a response to a survey showing that
American troops in Iraq would consider torture in order to save their
comrades, Petraeus wrote to the entire multinational force on May 10,
2007, and here is some of what he said:
Certainly, extreme physical action can make someone
``talk''; however, what the individual says may be of
questionable value. In fact, 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 information from detainees.
Now, what does the manual do? It specifically authorizes 19
approaches--you could call them interrogation techniques--and they are
well thought out and each one is several pages on how to apply it. One
of them can only be used on unlawful army combatants with the prior
approval of the combatant commander. These techniques describe ways to
build rapport with the detainee in order to get him or her to share
information.
GEN Michael Maples, the Director of the DIA, recently rebutted the
contention that the Army Field Manual wouldn't have covered the
interrogation method used by an FBI special agent to get Saddam Hussein
to finally come clean that he had no weapons of mass destruction.
So the manual specifically prohibits eight techniques, and here is
what they are:
Forcing a detainee to be naked, perform sexual acts, pose in a sexual
manner; placing hoods or sacks over the
[[Page S928]]
head of a detainee; using duct tape over the eyes; beatings, electric
shock, burns, or other forms of physical pain; waterboarding--very much
the talk of the Nation; use of military working dogs; inducing
hypothermia or heat injury; conducting mock executions; depriving
detainee of necessary food, water, or medical care.
Those are the eight prohibited techniques in the Army Field Manual.
It also incorporates what is called the ``golden rule,'' and this is
important. It is an approach to interrogation. It requires military
personnel to ask this question: If an interrogation technique were to
be used against an American soldier, would I believe the soldier had
been abused?
Adopting this conference report would extend that ``golden rule'' to
CIA interrogations, to station agents all across the globe, and make
sure that no coercive technique could be used if we would not be
comfortable with the same technique being used against an American
citizen.
Now, here are some facts about the CIA program. The CIA has used
coercive techniques on detainees since September 11, 2001, under the
President's authorization and approval of the Department of Justice.
The CIA has waterboarded three detainees--Abu Zubaydah, Abd al-Rahim
al-Nashiri, and Khalid Shaikh Mohammed.
The White House believes that waterboarding could be used in the
future, even though General Hayden has recently publicly questioned its
legality. The CIA has used contractors for interrogations, as General
Hayden admitted in an open, public hearing this past week. So the CIA
has outsourced what is an inherently governmental function of
questionable legality and morality.
More importantly, the CIA's interrogation techniques change. There is
no uniform standard. There is no standard as to how they are to be
combined, what the circumstances are. Think about this. Done with cold
calculation, any interrogation technique, when applied over the course
of hours or days or months, and in combination with other techniques,
can cross the line into illegality. An interrogator can choose from a
menu of coercive approaches, pick several of them, and go to work. So
don't be fooled. Even the least coercive-sounding technique, when used
relentlessly or in combination, can be torture.
Now, in addition to being immoral, I believe the CIA interrogation
program is illegal.
I say this as a member of the Intelligence Committee, and I say this
as one who has been briefed several times on these techniques. These
techniques have violated the Convention Against Torture and the U.S.
torture statute by inflicting severe physical or mental pain or
suffering to others. It has violated Geneva Convention common article
III, which prohibits outrages upon personal dignity, in particular
humiliating and degrading treatment.
The medical research is clear. Coercive techniques cause severe pain
and suffering. That is why both the AMA and the American Psychological
Association have passed resolutions against their members participating
in such interrogations.
In a letter dated September 13, 2006, retired General and former
Secretary of State Powell wrote this:
The world is beginning to doubt the moral basis of our
fight against terrorism.
I think that says it in a nutshell. As every Member knows, we will
never win the war on terror by capturing or killing or torturing all
our enemies. We will only win the war by our ideals and by removing any
public support for al-Qaida's vision.
Using torture cuts away from our moral high ground. It takes America
into the ``dark side,'' and thus it reduces our ability to win this
war. I believe we should end this now.
The military is the segment of the U.S. population most likely to be
captured and interrogated by our enemies. They know any technique we
authorize can be used against them, and that is the point. If the
United States uses waterboarding, you can be sure that waterboarding
will be used against our station agents, against our military. It is a
mistake to do so.
That is why 43 retired generals and admirals, including 10 four-star
officers, have signed a letter to Congress denouncing coercive
techniques and supporting the single unified uniform standard for the
entire Government, the Army Field Manual.
Here is what they wrote:
We believe that it is vital to the safety of our men and
women in uniform that the United States not sanction the use
of interrogation methods it would find unacceptable if
inflicted by the enemy against captured Americans. That
principle, embedded in the Army Field Manual, has guided
generations of military personnel in combat.
And the letter goes on.
I have listened to the experts such as FBI Director Mueller and DIA
Director General Maples. They all insist that even with hardened
terrorists you get more and better intelligence with the gloves on than
when you take them off.
The CIA cannot show that coercive techniques are more effective than
noncoercive techniques. And I wish I could say what I know from a
classified setting, but I cannot. They point to the anecdotes they have
declassified, while the counterexamples remain classified.
So I can only summarize and say this: This is the moment where the
Senate stands up. The House has stood up. They have passed a bill. If
we want to ban waterboarding, if we want to ban the eight techniques
banned by the Army Field Manual, this is our moment to do so. I think
we should stand tall. I think we should adhere to our principles. I
think we should raise what we say internally and once again regain the
world's credibility. I hope we maintain the Senate bill as it is.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from West Virginia is
recognized.
Mr. ROCKEFELLER. Mr. President, action on the fiscal year 2008
authorization bill for intelligence is so long overdue I do not even
know how to explain it. It is over 2 years overdue. It is a very
important bill.
Beginning in 1978, after the two congressional intelligence
committees were established, the Congress passed an annual intelligence
authorization bill every year. It does not sound interesting, but it
has a great deal to do with how the intelligence community operates. We
passed it for 27 consecutive years. And there was no exception to that.
This legislation was one of very few nonappropriations measures that
Congress has always considered ``must pass.'' Yet we have failed to
pass it for the last number of years, and it is a matter of
consternation.
The importance of our intelligence programs to our national security
has always been very obvious. The importance of strong congressional
oversight of the intelligence activities has been equally obvious;
although it has been spottier in the recent past, it no longer is.
Then in 2005 and 2006, the bills reported out of the Senate
Intelligence Committee were never brought to the Senate for
consideration. There were internal reasons for that. I will spare the
Presiding Officer from a discussion of those matters, and it is no
longer important why.
But we have to do this bill. The intelligence authorization bill is
the tool the Congress uses to provide direction, specific direction,
and to enforce the oversight that we do. It involves many of the most
sensitive national security programs conducted by the U.S. Government.
The 2008 authorization bill includes provisions to improve the
efficiency of the intelligence community. It is a bland statement, but
it is a very important series of parts. The bill produces better
intelligence. We provided flexibility and authority to the DNI. We gave
him a tremendous responsibility and then did not give him enough
flexibility to exercise that responsibility. We do that in this bill.
We require much greater accountability from the intelligence
community. That is oversight. We require greater accountability from
the intelligence community and its managers. We improve the mechanisms
for conducting oversight of intelligence programs and we reform
intelligence program acquisition procedures. All of that is oversight.
Many of the provisions were included at the request of the National
Intelligence Director in this bill. I always believe in reaching out to
the professionals in doing this.
The creation of the DNI position was the result of the most
significant reform of the intelligence community in 50 years. And the
current DNI, ADM
[[Page S929]]
Mike McConnell, is absolutely superb. The Office of Director of
National Intelligence has now existed for 2\1/2\ years, and we have
begun identifying ways to help the DNI better coordinate the 16
elements of the intelligence community, which are scattered around the
Government, some of which do a very good job and some of which do not.
Now he is pulling all of this together and he is doing a good job.
Starting with personnel authority, this bill uses a much more
flexible approach to authorizing personnel levels. Those are very
delicate. We also give the DNI the ability to exceed personnel ceilings
by as much as 3 percent because he needs to have that. He is in the
process of trying to figure out how to adjust all of this and work it
right. He needs flexibility. It also provides additional flexibility to
encourage the DNI to convert contractor positions to Government
employees when appropriate.
Every Member knows the real power is the power of the purse. It is
the same with the DNI. And this bill changes reprogramming requirements
to make it easier to address, as they say, emerging needs in critical
situations, a crisis. We give him the financial flexibility to do that.
He needs that flexibility, and he now will have it if we pass this
bill.
It authorizes the DNI to use interagency funding amongst his various
agencies that he oversees to establish national intelligence centers if
he so chooses. The bill also allows the DNI to fund information-sharing
efforts across the intelligence community. That was the whole point of
the 9/11 Commission. That is the whole point of reducing stovepipes.
Finally, it repeals several unneeded and burdensome reporting
requirements. Frankly, we can use up a lot of people's time on
something that we no longer need. We reduce some reporting requirements
without in any way compromising accountability because oversight is the
whole point of this bill.
As it increases the authority of the DNI, the bill also improves
oversight of the intelligence community in other ways. The bill creates
a strong independent inspector general in the office of the DNI. It has
to be confirmed by the Senate. That is called oversight. Confirmed by
the Senate. That means it has to report to the committee. Accountable
to the committee. It has to tell us the truth. Confirmation allows
inspectors general to do very difficult things within their own
departments that maybe some of the leaders will not do.
It establishes statutory inspectors general in the National Security
Agency, the NRO, the NGA and the Defense Intelligence Agency. So these
are all there. They are all accountable. They are all oversight tools
that we want.
The bill also gives the Congress more oversight of the major
intelligence agencies by requiring Senate confirmation of the Directors
of NSA and NRO. Right now we do not have to confirm them. If we do not
confirm, that means they do not have the same relationship with the
Senate. We confirm the CIA, but we do not confirm the NSA.
You tell me, particularly after we passed the FISA bill yesterday,
how is it possible that we would not be able to confirm the head of the
National Security Agency as well under this bill? We can, which makes
him accountable to us, which means he reports to us, which means we can
do oversight over him much more aggressively.
As we describe in our conference report:
. . . of the need for NSA's authorized collection to be
consistent with the protection of the civil liberties and
private interests of U.S. persons.
Through confirmation of the NSA Director, we can ensure that
continues or starts to be so.
As we increase the DNI's flexibility to manage personnel, we require
an annual assessment. That sounds boring, but, no, it is not. It is
very important--an annual assessment of personnel levels across the
intelligence community: How are they distributed? Are they in the right
place? Are people protecting their turf? The DNI is in charge of this.
We want to give him all the support, and we want this all reported to
us in our committee so we can watch it.
We also required the inclusion of a statement that those levels are
supported by adequate infrastructure, training, funding, and a review
of the appropriate use of contractors, which has become a very
interesting subject in these months and years.
This bill also addresses an issue that has concerned the committee
for a long time, the lack of accountability for failures and
programmatic blunders. That is called oversight.
We want accountability. We want it in front of us. We want our hands
on it. The bill gives the DNI the authority to conduct accountability
reviews across the intelligence community if he deems it necessary or
if we request it in our committee. It is called oversight.
This also improves financial management by requiring a variety of
actions related to the production of auditable financial statements.
That sounds pretty boring, but, no, it is not. When you get into the
intelligence community, when you get to classified numbers, things of
that sort, it is very important to have someone watching. That is
oversight. We will have that if this bill passes.
The final major theme in the bill is the reform of the acquisition
process. The bill requires a vulnerability assessment of all major
acquisition programs. Well, acquisition is a very large word in
intelligence and a very expensive word. We have made some very big
mistakes, we have not been able to correct them.
But that is a discussion for another day. So we have a classified
annex. Any Senator who wants to look at what is behind all of those
numbers can do that very easily.
I have other things I wish to talk about, particularly the Army Field
Manual. But I have a whole different speech awaiting my colleagues on
that later in the day.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, I thank my colleague with whom I have worked
closely on this and many other matters.
One of the most important means that Congress has for conducting
oversight of the intelligence community is through the annual
authorization bill for the intelligence agency. Regrettably, we can't
call it an annual Intelligence Authorization bill because Congress was
unable to pass a bill in 2006 and 2007. Unfortunately, it appears we
are on a path that may prevent us from getting an authorization bill
signed for fiscal year 2008.
When I assumed the duties as vice chairman of the select committee at
the beginning of this Congress, one of my top priorities--and that of
the committee--was to get an Intelligence Authorization bill signed
into law. During the first month of our tenure, we tried to resuscitate
the fiscal year 2007 bill but could not get it out of the Senate. When
the time came to fashion a bill for fiscal year 2008, we had better
luck. But as Louis Pasteur once said, ``Chance favors the prepared
mind.'' The committee worked hard to include in the chairman and vice
chairman's mark only those provisions that had strong bipartisan
support. Our rule was if either side objected to a provision, it would
not be included. After our markup, we added a number of other good
government provisions that had strong bipartisan support.
Unfortunately, the committee also added a number of problematic
provisions that caused our bill to stall on the floor.
I believed we had largely succeeded in our process of accomplishing
the goals of a bipartisan bill. We worked closely with the
administration to address some of their concerns. Some were easier to
resolve than others. We all know there is one very problematic
amendment relating to the Army Field Manual that was added during the
conference between the House and the Senate. I will address that later.
But now I wish to talk about some of the good things in this conference
report.
First, I have often said--and I believe responsible observers now
agree--that in creating the Director of National Intelligence, we gave
him a tremendous amount of responsibility but darn little authority to
get the job done. This conference report attempts to address that
problem by giving the DNI clearer authority and greater flexibility to
oversee the intelligence community. For example, section 410 gives the
DNI statutory authority to use national intelligence program funds
quickly to address deficiencies or needs relating to
[[Page S930]]
intelligence information or access or sharing capabilities. The DNI may
also use funds to pay for non-NIP--national intelligence program--
activities and to address critical gaps in those areas.
Section 409 expands the number of officials in the office of the DNI
who can protect sources and methods from unauthorized disclosure. This
authority may now be delegated to the Principal Deputy Director of
National Intelligence and the chief information officer of the
intelligence community. These are all good things, all things the
administration needs. We also included provisions that will ensure that
the men and women of our intelligence community who must work
undercover may do so at less risk of disclosure and, consequently, less
risk to their personal safety.
Section 305 allows the DNI to delegate the authority to authorize
travel on any common carrier for purposes of preserving cover of
certain employees. Section 325 extends to the head of each intelligence
community element the authority to exempt certain gifts from otherwise
applicable reporting requirements. Without this exemption, detailed
information about the receipt of gifts from foreign governments must be
published in the Federal Register. Imagine if an undercover agent
receives a gift from one of the targets he is working and has to report
it in the Federal Register. That not only blows his cover, it probably
ends his life. That is a great national security concern to operatives
who have received such gifts as part of their covert actions.
One particular provision will reduce the personnel and resources used
to respond to many congressional reporting requirements. In section
330--again, in response to a request of the DNI--we eliminated a number
of reporting requirements. It is a small step but an important one, as
each reporting requirement diverts valuable resources from the intended
purpose. I hope, within the 2009 Intelligence Authorization bill, we
can make even greater progress in reducing unnecessary and duplicative
reporting requirements that burden the intelligence community.
There are a number of provisions in this conference report that are
essential for promoting good government. Too often we have seen
programs or acquisitions of major systems balloon in cost and decrease
in performance. That is unacceptable. We as taxpayers are spending
substantial sums of money to ensure that the intelligence community has
the tools it needs to keep us safe. If we don't demand accountability
in how these tools are operated or created, then we are failing the
taxpayers. We are failing the intelligence community. We are failing
the mission I would hope we all agree is essential.
I sponsored several amendments that require the intelligence
community to perform vulnerability assessments of major systems and to
keep track of excessive cost growth of major systems. This latter
provision is modeled on the Nunn-McCurdy provision which has guided
Defense Department acquisitions for years. I believe these provisions
will encourage earlier identification, the solving of problems relating
to the acquisition of major systems. Too often such problems have not
been identified until exorbitant sums of money have been spent. In some
cases, several billions of dollars have been blown before the waste
stopped. Unfortunately, too often, once they have sunk a bunch of money
into a project, they refuse to cancel it, even though they are
continuing to throw good money after bad.
Similarly, the intelligence community must get a handle on their
personnel. I don't share the belief some have that the Office of the
Director of National Intelligence is too large. In fact, I think we
need to make sure our National Counterterrorism Center and National
Counterproliferation Center have more resources, not less. They are the
ultimate idea for creating a centralized intelligence community,
bringing analysts and collectors together from all of the 16 different
elements of the community.
I am concerned about the number of contractors used by the
intelligence community to perform functions better left to Government
employees. There are some jobs that demand the use of contractors--for
example, certain technical jobs or short-term functions--but too often
the quick fix is to hire contractors, not long-term support. So this
conference report includes a provision calling for an annual personnel
level assessment for the intelligence community. These assessments will
ensure that before more people are brought in, there are adequate
resources to support them and enough work to keep them busy.
Finally, we have included section 312, which requires the DNI to
create a business enterprise architecture that defines all intelligence
community business systems. The endgame is to encourage implementation
of interoperable intelligence community business systems, getting
everyone on the same page; in sum, making sure everybody is talking to
each other and everybody who needs to know can listen in, a simple but
not-yet-achieved objective. Given the substantial sums of money we are
spending on these systems, we should be making certain the systems are
efficiently and effectively coordinated; again, a good government
provision.
There were a number of adjustments we had to make. We responded to
concerns of the administration, and I worked particularly with my
Democratic colleagues--and I thank them for their support--to make
adjustments that would allow the bill to clear the Senate for the first
time in 2 years. Let me highlight some of those adjustments because it
is important to remember how much effort it took to return the bill to
a bipartisan state.
No. 1, we struck a section that would have required the President to
provide Congress with any President's daily brief involving Iraq during
a certain time period. The PDBs have not been disclosed. As a matter of
fact, they only came to light when a former official in the previous
administration put some PDBs in his BVDs and stuck them out at the
archives for reasons no one has adequately explained.
We struck two sections that contained controversial notification and
funding restrictions. We struck a provision requiring declassification
of the budgetary top line of the national intelligence program because
it had already passed Congress in S. 4, the so-called 9/11 bill. We
struck a section that required the CIA Director to make available to
the public a declassified version of a CIA inspector general report on
CIA accountability related to the terrorist attacks. That was also
required by S. 4. It was about time the CIA internal IG report be made
available. Everybody else had to air their failings, and it was time
the CIA did so as well.
We struck a section that would have allowed the public interest
declassification board to conduct declassification reviews at the
request of Congress, regardless of whether the review is requested by
the President. We also struck a provision that would have required a
national intelligence estimate on global climate change, largely
because the DNI, which is not equipped to conduct an NIE on climate
change, had outsourced the responsibility for putting together an
assessment, and there was no need to mandate this in law.
Finally, we made modifications to at least seven other provisions to
address concerns raised by the administration and by our Senate
colleagues. The end result was, we get a fiscal year 2008 Intelligence
Authorization bill passed out of the Senate by unanimous consent in
early October 2007. I thank my colleagues for allowing us to do that.
It was long overdue, and it was a badly needed action. Then, however,
we went to conference.
I urged my conferees to avoid inclusion of controversial provisions.
We kept our negotiations to the base text of both bills. Given that we
hadn't had an intel bill during the past 2 years, there were a lot
provisions to negotiate. I guess you could say there was a lot of pent-
up oversight. After a lot of hard work, we were able to merge the two
bills in a manner we believed would receive strong bipartisan support.
Unfortunately, despite my warnings, history again repeated itself.
During the conference markup, the Senate adopted, by a one-vote margin,
a controversial provision that limits the intelligence community to
using only those interrogation techniques authorized by the U.S. Army
Field Manual on human intelligence collector operations. As I will
discuss later, to adopt that provision and put it into law
[[Page S931]]
would, according to the Director of the CIA, shut down the most
valuable intelligence collection program the CIA has, a program that
has protected our homeland and our troops abroad from terrorist
attacks. Because it was adopted, I couldn't sign the conference report
that I and my colleagues worked so hard to enact.
Another consequence of that vote was it caused the conference report
to languish in the Senate for more than 2 months now. Shortly after the
passage of the conference report, the administration released a
statement of administration policy and--certainly not to my surprise--
at the top of their list of objectionable provisions was the limitation
on interrogation techniques provisions. We have heard some
misstatements on this floor about interrogation and the techniques
used. Frankly, I share some of the same concerns raised by the
administration with respect to this provision. Statements made about
the interrogation program of the CIA are not accurate. They have been
blown totally out of context, and they deserve a response. This
section, if it were enacted in law--and it will not be--would prevent
the intelligence community from conducting the interrogation of senior
al-Qaida terrorists to obtain intelligence needed to protect the
country from attack.
During its consideration of the Detainee Treatment Act of 2005,
Congress wisely decided that while the Army Field Manual was a good
standard for military interrogators who number in the tens of
thousands, with limited supervision and limited training, it was not
the standard that should be used by the CIA.
CIA interrogators are highly trained, operate under tremendous
oversight and rules and supervision in interrogating those top hardened
terrorist leaders, who have information on how the system operates and
who the major players are. They do not outsource this job to
contractors such as Blackwater or others. It is my understanding if
they use contractors, it is former interrogators who are brought back
in because of their experience. They are subject to the supervision of
the CIA, with multiple layers of supervision and oversight by video
cameras. It is highly irresponsible to say the CIA has outsourced
torture. We do not do torture.
Now, a lot of people say we have lost a lot because of our inhumane
treatment. They are referring to Abu Ghraib. We all agree that what was
done at Abu Ghraib was inhuman and degrading. But it was not done by
anybody in the intelligence field or for intelligence purposes. It was
done by renegade troops who have been prosecuted, punished, and
imprisoned for the violations of basic decency. Yes, that has hurt us
worldwide, but that is not the standard which is allowable,
permissible, or acceptable by any of our interrogators.
Mention has been made of eight techniques that are banned in the Army
Field Manual. I agree, those techniques that are banned in the Army
Field Manual should be banned. Those are not techniques that should be
used. The Army Field Manual was meant for the Army in limiting the
number of techniques that can be used. It applies to them only for the
Army, for the Army's use. There are quite a number of techniques that
fall within the same category that are not torture, inhuman, degrading,
or cruel. If they are not included in the Army Field Manual, then they
would not be permitted to be used, if this were made law, by the CIA,
the FBI, or anybody else.
But to apply the Army Field Manual--it says you can only use these
interrogation techniques if you get authorization from ``the first 0-6
in the interrogator's chain-of-command''--well, that would mean the CIA
would have to go over to the Army and say: Do you have an 0-6 who can
come over and look over the shoulders of our interrogators? Well, you
do not have to worry about that because the CIA program would be
ending.
It allows the Army to set the interrogation standards for the entire
intelligence community. It is important that my colleagues recognize
this interrogation provision is not an antitorture provision. The
previous speakers have said we need to pass this law to outlaw torture.
It is outlawed. The law prohibits the United States from using torture.
This provision prevents the intelligence community from engaging in
other lawful interrogation techniques that fall outside the scope of
the Army Field Manual.
Why is that important? Because everything in the Army Field Manual
has been published in the al-Qaida manuals. The top officials of al-
Qaida know those techniques better than the interrogators know them.
They know how to resist them, and they are ineffective.
Now, some on the other side of the aisle would like to frame this
provision as being about waterboarding. It is not.
The Attorney General has publicly stated that the CIA no longer uses
waterboarding. The technique is not one of the approved techniques. The
Director of the CIA has publicly stated that there were only three
individuals waterboarded and the technique has not been used since
2003. It was used in the crisis right after 2001, when tremendous
amounts of valuable information were gained from the three individuals
waterboarded.
What we are talking about here is not waterboarding. Some of my
colleagues have said that the EITs are not effective--enhanced
interrogation techniques. Well, that is absolutely not true. That is
precisely the opposite of what the CIA Director has told us in our
classified hearings and explained it.
Now, the CIA Director has said they have held less than 100 people in
their custody, and less than one-third of those have been submitted to
enhanced interrogation techniques.
These are the hardened terrorists who have the most information that
is needed to protect our troops, our allies abroad, and those of us
here at home.
Those techniques--which are different from but no harsher than the
techniques that are in the Army Field Manual--are unknown to the
detainees. Those detainees on whom the EITs--not including
waterboarding--have been used have produced the most productive
information and intelligence. Literally thousands upon thousands of the
most important intelligent collections have come from the cooperating
detainees who did not know what was going to happen to them, even
though no torture, cruel, inhuman, or degrading techniques were used on
them.
Many of the techniques that are used--and I have reviewed them--are
far less coercive or strenuous than what we apply to our military
volunteers: young men and women of America who join the Marines, the
SEALs, the Special Operations Forces, or pilots who go through
the survival, evasion, resistance, and escape training, or the SERE
training. We do not even use the most strenuous of those techniques on
our detainees.
Those who say we do not want our enemies to use any more harsh
techniques than we use on them--well, good luck. You have seen Abu
Musab al-Zarqawi beheading people. Those are not techniques that
anybody would suggest. A beheading probably eliminates a source of
further information.
But the problem is, the techniques that are used would be banned. The
techniques--that are not cruel, that are not inhuman, that are used on
our own voluntary military enlistees--are prohibited because they are
not included in the Army Field Manual. One good reason they are not is
because we do not want to publicize them or they would no longer be
effective in use against those high-value detainees who will not
cooperate otherwise. I cannot support a bill that contains that
provision.
So here we are on the floor--the farthest we have gotten in 3 years.
It looks as though history is going to repeat itself. No wonder
congressional ratings are at an all-time low. I believe our inability
to work in a bipartisan fashion on a consistent basis may be harming
us. Yesterday's success with the FISA Amendments Act is a model example
of what can be accomplished when we work together. For the most part,
the committee's work on the Intel bill followed that model, although we
were unable to protect the bipartisan compromise in the end.
As the vice chairman of the Senate Intelligence Committee, I have
invested a very significant amount of time and effort to provide
meaningful
[[Page S932]]
oversight of the intelligence community through this bill. I know my
distinguished chairman, Senator Rockefeller, has made those same
efforts and shares the goal.
However, I have often said that no bill is better than a bad bill.
Right now, with this provision in it, this is a bad bill because what
it would do, according to the Director of National Intelligence, is to
shut down the most effective interrogation program the CIA has to use
to induce cooperation from those leaders of al-Qaida and other
terrorist organizations who know about the plots to attack the United
States and to attack our allies.
Mr. President, I urge my colleagues to support cloture so we can move
forward on the process on this legislation, but the President has
stated he will veto the bill and, regrettably, I must say that despite
all the good things in the bill, he is correct. We cannot afford the
risk to this country, to our personal safety, to our desire to avoid
another 9/11, by saying we can no longer allow the CIA to use the
acceptable techniques that are not published but that are very
effective in assuring cooperation of high-value detainees whom we in
this country capture through the CIA. Regrettably, while I urge my
colleagues to support cloture, I cannot urge them to pass this measure.
I yield the floor.
The PRESIDING OFFICER (Mr. Menendez). The Senator from Oregon.
Mr. WYDEN. Mr. President, how much time do I have remaining at this
time?
The PRESIDING OFFICER. The Senator has 3 minutes.
Mr. WYDEN. Mr. President and colleagues, I ask unanimous consent to
have my time--you said I have 3 minutes; I see my friend on the floor--
to have my time extended by 3 minutes so I would have a total of 6
minutes.
The PRESIDING OFFICER. Is there objection?
Mr. BOND. That is acceptable. No objection.
Mr. President, I ask unanimous consent for 2 additional minutes after
that, if that could be part of the request.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. WYDEN. Mr. President, thank you, and I thank my friend from
Missouri as well.
I especially want to express my appreciation for the outstanding work
of Senator Feinstein, my seatmate on the Intelligence Committee, who I
think understands it is possible in this country to fight terrorism
ferociously and still be sensitive to American values and the rule of
law. That is what I want to spend a few minutes talking about because I
think under the approach developed by Senator Feinstein this
legislation does that.
I start by responding to the point my friend from Missouri has made
about the most dangerous terrorists whom we are involved in
interrogating. It seems to me these individuals are literally human
ticking timebombs. They have information, for example, about operations
we absolutely must have information on in order to protect the American
people. But I have come to the conclusion it is possible to get this
essential information we need from these human ticking timebombs--the
time-sensitive threat information--without practices that violate our
values and violate the rule of law.
The reason I have come to that conclusion--and why I so strongly
support what Senator Feinstein is doing--that is what some of our key
officials tell us in the executive branch. For example, this week, I
asked FBI Director Mueller about whether it was possible to use
noncoercive techniques effectively in terms of getting this information
from human ticking timebombs, and the Director said, to his credit,
yes, it was possible to use noncoercive techniques to get the
information necessary to protect the United States of America. The fact
is, the military has said it as well.
It is that core principle Senator Feinstein has picked up in her
work. She believes, as I do, we will take no backseat to anyone in
terms of fighting the terrorists relentlessly, but we can do it, as
Director Mueller and the military have said, in line with the rule of
law and in line with American values.
With respect to the role of the military, they already abide by
interrogation rules that are flexible and effective. They have been
used by professional military interrogators with many years of
experience, and they are clearly effective.
Some have suggested, incorrectly in my view, that the military rules
make better interrogators, follow the same rules as new recruits, but
that is not right. The Army Field Manual actually makes it quite clear
which techniques are authorized for all servicemembers and which
require special permission to use.
It is my view that our country has paid dearly for this secret
interrogation program. My friend from Missouri has indicated, in his
view, you cannot torture, but the case was strong for the Feinstein
amendment a couple months ago, and it is even stronger today because
General Hayden has said that in the past, waterboarding has been used
and, in fact, my view is that the need for this legislation, just on
the basis of the developments over the last few weeks, is even more
important than it was because these practices that have come to light
in the last few weeks have damaged our relations, damaged our moral
authority.
The tragic part of this, on the basis of the answers from Mr. Mueller
in open session this week and the military is that these coercive
techniques are not effective or even necessary. I share the view of my
friend from Missouri about how important it is to get this time-
sensitive threat information.
He and I have talked about this on many occasions. Of course, we
cannot get into any of the matters that are classified. I share his
view, but it is possible, I say to my colleagues, to get that
information without breaching the values Americans hold dearly and the
rule of law.
I hope my colleagues will support the important work by the Senator
from California. This is an issue we have looked at. It has had
bipartisan support in the past.
I am very appreciative of what Senator McCain, who knows a little bit
about this, has had to say in the past about fighting terrorism
relentlessly and protecting our values.
I hope my colleagues will support the efforts of the Senator from
California. If her case was strong several months ago, I think it is
even stronger today on the basis of what we have learned in open
session.
Mr. FEINGOLD. Mr. President, I support the intelligence authorization
conference report, which is so important to Congress's efforts to
conduct oversight of the intelligence community. The administration's
illegal actions and its relentless efforts to obtain vast new
eavesdropping authorities make oversight more important than ever. I
particularly support the provision limiting interrogation techniques to
those authorized by the Army Field Manual. I was a cosponsor of this
amendment when it was offered in conference, and I am pleased that it
has the support of bipartisan majorities of both the Senate and House
Intelligence Committees. It represents, at long last, an important step
toward bringing this administration into conformity with the law and
with our national principles. It also represents a clear decision by
the very Members of Congress who have been briefed on the CIA's
interrogation program that the use of so-called enhanced interrogation
techniques is not in our country's best interests.
When the intelligence authorization bill was marked up by the
committee in May, I made my position clear. I could not support the
CIA's program on moral, legal, or national security grounds. When I was
finally fully briefed on the program, it was clear that what was going
on was profoundly wrong. It did not represent what we, as a nation,
stand for, or what we are fighting for in this global struggle against
al-Qaida. And it was not making our country any safer. I also concluded
that if the American people knew what we in the Intelligence Committee
knew, they would agree.
The program also cannot stand up to any serious legal scrutiny. To
take just one interrogation technique that the administration has
acknowledged using in the past, waterboarding is torture, pure and
simple. Everyone knows this. The rest of the world knows this. And, in
every other context, our own government knows this. What Orwellian
[[Page S933]]
world do we inhabit in which the administration attempts to argue
otherwise? And in what world does waterboarding not ``shock the
conscience,'' the test required by the Detainee Treatment Act? I
suspect that the administration knows full well that its legal
justifications for the program are empty, and that is why the Attorney
General has refused to tell Congress why he believes the program is
legal and has instead referenced Justice Department analyses that have
also been withheld from Congress.
The CIA's interrogation policy is undermining our ability to fight
al-Qaida. It has diminished our standing in the world, precisely when
we should be providing global leadership against this growing threat.
And it has denied us the moral high ground that is so critical if we
are to reach out to parts of the world in which al-Qaida seeks to
operate and recruit. By passing this conference report, we can begin to
reverse this damage. We can also, finally, reassure our troops that
torture is torture and that if you are captured by the enemy, the
American government will not equivocate about the Geneva Conventions
protections to which you are entitled.
The administration has repeatedly attempted to sell this program by
arguing that Members of Congress have been briefed, as if the mere fact
of telling members of Congress means that the program must be legal.
The President made this argument last fall. And the Director of the CIA
did so again last week. But, what the administration always fails to
mention is that as members of the Intelligence Committees have learned
about the program, opposition has steadily increased. I have sent a
classified letter detailing my serious concerns and so, too, have
others. And now, we have bipartisan majorities of both intelligence
committees saying ``enough is enough.''
It has long been my position that interrogation techniques should be
limited to those authorized by the Army Field Manual. This approach
brings the CIA into conformity with the rules by which our men and
women in uniform defend our nation and themselves. We fought Nazi
Germany and the battles of the Cold War without resorting to
government-sanctioned torture. We can surely defend America and defend
our principles now. It is time to bring an end to this stain on our
Nation, and to make the American people proud again.
Mr. LEAHY. Mr. Presdient, this Report contains a provision that
reinforces the prohibition against our Government engaging in torture.
It expressly prohibits interrogation techniques that are not authorized
by the United States Army Field Manual. By passing this bill, we will
not only respond to this administration's ambiguity about torture by
reiterating that it is off the table, we will be sending a message to
the world that the United States is a country that does not tolerate
torture. Whether waterboarding is torture and illegal does not depend
on the circumstances.
When it comes to our core values--that which makes our country great
and defines America's place in the world--it does not depend on the
circumstances. America, the great and good Nation that has been a
beacon to the world on human rights, does not torture and should stand
against torture.
Let me be clear. This provision should not be necessary.
Waterboarding, and other forms of torture, are already clearly illegal.
Waterboarding has been recognized as torture for the last 500 years.
President Teddy Roosevelt prosecuted American soldiers for
waterboarding more than 100 years ago. We prosecuted Japanese soldiers
for waterboarding Americans during World War II.
I support this provision, despite the fact that there is no question
that waterboarding is already illegal, because this administration has
chosen to ignore the law. They have admitted they have engaged in
waterboarding, otherwise known as water torture, and they refuse to say
they will not do it again. The positions they have taken publicly on
this subject are, I believe, so destructive to the core values of this
Nation and our standing in the world, that this Congress should say,
again--very clearly--that our Government is not permitted to engage in
these shameful practices.
Tragically, this administration has so twisted America's role, laws
and values that our own State Department and high-ranking officials in
our Department of Justice cannot say that waterboarding of an American
is illegal. If an enemy decided to waterboard an American soldier, they
can now quote statements from high officials in our own Government to
support their argument that the technique breaks no laws. That is how
low we have sunk.
Our top military lawyers and our generals and admirals understand
this issue. They have said consistently that waterboarding is torture
and is illegal. They have told us again and again at hearings and in
letters that intelligence gathered through cruel techniques like
waterboarding is not reliable, and that our use and endorsement of
these techniques puts our brave men and women serving in the armed
forces at risk. That is why they have so explicitly prohibited such
techniques in their own Army Field Manual, and it is an example that
the rest of the Government should follow.
So, despite the fact that the law is already clear, I urge the Senate
to pass this provision, and I urge the President to promptly sign it
into law, making the policy of our Nation clear. Our values cannot
permit this to be an open question. We must put an end to the damage
that this administration's positions have caused to our standing and
the risks that they have taken with the safety of American citizens and
soldiers around the world.
Mr. LEVIN. Mr. President, I urge my colleagues to support the
intelligence authorization conference report which includes a
requirement that all Government agencies, including the CIA, comply
with the Army Field Manual on Interrogations in the treatment and
interrogation of detainees.
The result will be a single standard of treatment for detainees, a
standard consistent with American values and international standards.
The Army Field Manual is consistent with our obligations under Common
Article 3 of the Geneva Conventions, which prohibits subjecting
detainees to ``cruel treatment and torture.'' This is the standard to
which our soldiers are trained and which they live by.
Consistent with this standard, the Army Field Manual specifically
prohibits certain interrogation techniques. These include: forced
nudity; ``waterboarding,'' that is, inducing the sensation of drowning;
using military working dogs in interrogations; subjecting detainees to
extreme temperatures; and mock executions.
Unfortunately, the Bush administration has insisted that it reserves
the right for the CIA to engage in certain ``enhanced interrogation
techniques.'' It has been reported that these CIA techniques include
``waterboarding.'' While this Justice Department continues to refuse to
say one way or the other, let there be no doubt: waterboarding is
torture.
The Judge Advocates General of all four services have told us
unequivocally that waterboarding is illegal.
Requiring that all Government agencies comply with the standards of
the Army Field Manual is not mushy intellectualism. It is hard-headed
pragmatism. When we fail to live up to our own standards for humane
treatment, we compromise our moral authority. Our security depends on
the willingness of others to work with us and share information,
information which could prevent the next attack. When we project moral
hypocrisy, we lose the support of the world in the fight against the
extremists.
Requiring a single standard for the treatment of detainees consistent
with the Army Field Manual protects our men and women in uniform,
should they be captured. It strengthens our hand in demanding that
American prisoners be treated humanely, consistent with values embodied
in the Field Manual.
I urge my colleagues to support the intelligence authorization
conference report with the provision that standards in the Army Field
Manual for treatment of detainees will apply to all elements of the
intelligence community.
Mr. GRAHAM. Mr. President, I oppose the conference report on the
intelligence authorization bill.
I was troubled to learn the Intelligence Committees inserted in the
conference report a provision to apply
[[Page S934]]
the Army Field Manual to the CIA program. This was done without any
hearing or vote in either the House or the Senate.
I strongly regret the committee chose this course of action since it
denies the Senate the opportunity to fully appreciate the implications
of such a restriction on the CIA program.
It would be a colossal mistake for us to apply the Army Field Manual
to the operations of the CIA. I have been briefed on the current CIA
program to interrogate high value targets. It is aggressive, effective,
lawful and in compliance with our legal obligations. Unfortunately, the
intelligence authorization bill as currently drafted will destroy the
CIA program.
I believe in flexibility for the CIA program within the boundaries of
current law. The CIA must have the ability to gather intelligence for
the war on terror. In this new war, knowledge of the enemy and its plan
is vitally important and the Army Field Manual provision will weaken
our intelligence gathering operations.
It is regrettable that the debate on the intelligence authorization
bill has become a debate about waterboarding. Waterboarding is not part
of the CIA program.
However, waterboarding, under any circumstances, represents a clear
violation of U.S. law and it was the clear intent of Congress to
prohibit this practice. In 2005 and 2006, the Senate overwhelmingly and
in a bipartisan fashion stood up against cruel, inhuman and degrading
treatment and abided by the Supreme Court's decision in the Hamdan case
that that those in our custody are protected by the Geneva Conventions.
Indeed, senior administration officials assured us that the language
contained in the Military Commissions Act clearly outlawed
waterboarding.
Imagine my surprise when the Attorney General and Director of
National Intelligence stated that waterboarding may be legal in certain
circumstances. I cannot understand what legal reasoning could possibly
lead them to this conclusion.
Given the Attorney General's recognition during his nomination
hearing that the President cannot waive congressionally mandated
restrictions on interrogation techniques, including those included in
the McCain amendment and the Military Commissions Act, it is
inexplicable that the administration not only has failed to publicly
declare waterboarding illegal, but has actually indicated that it may
be legal.
During the past several weeks we have heard many justifications for
the administration's incomprehensible legal analysis. At the end of the
day, it appears it is the view of the administration is that the ends
justify the means and that adhering to our values, laws, and treaty
obligations will weaken our nation. I strongly disagree.
I support aggressive interrogation of detainees in the in the war on
terror. And the CIA program is a vital component in securing our
Nation. As we interrogate and detain those who are intent on
destruction of our country and all those who fight for liberty, we can
never forget that we are, first and foremost, Americans. The laws and
values that have built our Nation are a source of strength, not
weakness, and we will win the war on terror not in spite of devotion to
our cherished values but because we have held fast to them.
Mr. McCAIN. Mr. President, I oppose passage of the intelligence
authorization conference report in its current form.
During conference proceedings, conferees voted by a narrow margin to
include a provision that would apply the Army Field Manual to the
interrogation activities of the Central Intelligence Agency. The
sponsors of that provision have stated that their goal is to ensure
that detainees under American control are not subject to torture. I
strongly share this goal, and believe that only by ensuring that the
United States adheres to our international obligations and our deepest
values can we maintain the moral credibility that is our greatest asset
in the war on terror.
That is why I fought for passage of the Detainee Treatment Act, DTA,
which applied the Army Field Manual on interrogation to all military
detainees and barred cruel, inhumane and degrading treatment of any
detainee held by any agency. In 2006, I insisted that the Military
Commissions Act, MCA, preserve the undiluted protections of Common
Article 3 of the Geneva Conventions for our personnel in the field. And
I have expressed repeatedly my view that the controversial technique
known as ``waterboarding'' constitutes nothing less than illegal
torture.
Throughout these debates, I have said that it was not my intent to
eliminate the CIA interrogation program, but rather to ensure that the
techniques it employs are humane and do not include such extreme
techniques as waterboarding. I said on the Senate floor during the
debate over the Military Commissions Act, ``Let me state this flatly:
it was never our purpose to prevent the CIA from detaining and
interrogating terrorists. On the contrary, it is important to the war
on terror that the CIA have the ability to do so. At the same time, the
CIA's interrogation program has to abide by the rules, including the
standards of the Detainee Treatment Act.'' This remains my view today.
When, in 2005, the Congress voted to apply the field manual to the
Department of Defense, it deliberately excluded the CIA. The field
manual, a public document written for military use, is not always
directly translatable to use by intelligence officers. In view of this,
the legislation allowed the CIA to retain the capacity to employ
alternative interrogation techniques. I would emphasize that the DTA
permits the CIA to use different techniques than the military employs
but that it is not intended to permit the CIA to use unduly coercive
techniques--indeed, the same act prohibits the use of any cruel,
inhumane, or degrading treatment.
Similarly, as I stated after passage of the Military Commissions Act
in 2006, nothing contained in that bill would require the closure of
the CIA's detainee program; the only requirement was that any such
program be in accordance with law and our treaty obligations, including
Geneva Common Article 3.
The conference report would go beyond any of the recent laws that I
just mentioned--laws that were extensively debated and considered--by
bringing the CIA under the Army Field Manual, extinguishing thereby the
ability of that agency to employ any interrogation technique beyond
those publicly listed and formulated for military use. I cannot support
such a step because I have not been convinced that the Congress erred
by deliberately excluding the CIA. I believe that our energies are
better directed at ensuring that all techniques, whether used by the
military or the CIA, are in full compliance with our international
obligations and in accordance with our deepest values. What we need is
not to tie the CIA to the Army Field Manual but rather to have a good
faith interpretation of the statutes that guide what is permissible in
the CIA program.
This necessarily brings us to the question of waterboarding.
Administration officials have stated in recent days that this technique
is no longer in use, but they have declined to say that it is illegal
under current law. I believe that it is clearly illegal and that we
should publicly recognize this fact.
In assessing the legality of waterboarding, the administration has
chosen to apply a ``shocks the conscience'' analysis to its
interpretation of the DTA. I stated during the passage of that law that
a fair reading of the prohibition on cruel, inhumane, and degrading
treatment outlaws waterboarding and other extreme techniques. It is, or
should be, beyond dispute that waterboarding ``shocks the conscience.''
It is also incontestable that waterboarding is outlawed by the
Military Commissions Act, and it was the clear intent of Congress to
prohibit the practice. The MCA enumerates grave breaches of Common
Article 3 of the Geneva Conventions that constitute offenses under the
War Crimes Act. Among these is an explicit prohibition on acts that
inflict ``serious and non-transitory mental harm,'' which the MCA
states ``need not be prolonged.'' Staging a mock execution by inducing
the misperception of drowning is a clear violation of this standard.
Indeed, during the negotiations, we were personally assured by
administration officials that this language, which applies to all
agencies of the U.S. Government, prohibited waterboarding.
[[Page S935]]
It is unfortunate that the reluctance of officials to stand by this
straightforward conclusion has produced in the Congress such
frustration that we are today debating whether to apply a military
field manual to nonmilitary intelligence activities. It would be far
better, I believe, for the administration to state forthrightly what is
clear in current law--that anyone who engages in waterboarding, on
behalf of any U.S. Government agency, puts himself at risk of criminal
prosecution and civil liability.
We have come a long way in the fight against violent extremists, and
the road to victory will be longer still. I support a robust offensive
to wage and prevail in this struggle. But as we confront those
committed to our destruction, it is vital that we never forget that we
are, first and foremost, Americans. The laws and values that have built
our Nation are a source of strength, not weakness, and we will win the
war on terror not in spite of devotion to our cherished values but
because we have held fast to them.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, I have enjoyed a good working relationship
with my good friend, the Senator from Oregon, but, unfortunately, he
did not listen to all the testimony we had from the leaders of the
intelligence community.
While he suggests we must fight terrorism and uphold our values, that
is precisely what the CIA program is designed to do. Going forward,
that is the program that will comport with all our values and our
views, but it will be necessary.
The CIA's enhanced interrogation techniques, on which he and I have
had the opportunity to be briefed, are different from but not outside
the scope of those included for use in the Army Field Manual.
As I stated previously, the difference is that since they are not
published, as the Army Field Manual is, they are not included in the
al-Qaida handbook, they are not known to high-value targets with whom
we may come in contact and be able to capture. We are talking only of a
couple or three dozen at the most who require those techniques.
He said the FBI Director does not use any harsh techniques. But if
you recall, in answer to one of my questions describing one of the
techniques one of the FBI interrogators used, it is not in the Army
Field Manual. They use different techniques. They use different
techniques, but they would be limited to the Army Field Manual.
I suggest that when they are dealing with the criminals who may not
be part of an organized terrorist conspiracy, they would not
necessarily need to use them.
General Hayden did say that waterboarding was used three times in the
past. He has stated clearly it is not being used now. He stated the
different enhanced interrogation techniques that are similar to, but
different from, the Army Field Manual are only used in very limited
circumstances, and those circumstances are the circumstances in which
high-value detainees, with knowledge of the organization, the threats
they pose, the plots they are planning to undertake, will not talk as
long as they are subjected only to techniques they are familiar with in
the Army Field Manual.
Yes, the CIA, a couple, three dozen, somewhere in there, may have
used enhanced interrogation techniques. Almost 10,000 valuable pieces
of information have come from the CIA's program. We are safer in the
United States because we have disrupted plots from Fort Dix to
Lackawanna to Chicago to Torrance, CA--across this Nation--because of
good intelligence--electronic surveillance and enhanced interrogation
of high-value detainees.
If we take this step in the Congress, I believe the President will
veto it, as he should, because to say that the CIA should be fitted
into the Army Field Manual standard is, I believe, a real threat to the
effectiveness of our collection.
Regrettably, discussions that imply on this floor that we continue to
use or will continue to use any techniques that are cruel, inhumane,
degrading or torture is not only simply wrong--flat wrong--but it is
irresponsible because there are ears and eyes out there in the world,
Al-Jazeera's and others, who will be picking them up, who will be
transmitting them, and who will use that to tar the reputation of our
intelligence collectors. They do not deserve that. Our security does
not deserve that.
Let's be clear, we are not talking about any cruel, inhumane,
degrading or torture techniques. They are different than what is
published in the Army Field Manual. That is the only reason they are
effective.
I regret the measure before us has this ban that will shut down the
most valuable source of information our intelligence community has.
I cannot urge my colleagues to support final passage of this
conference report.
I yield the floor.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, I will use leader time to make a statement.
We are going to vote in a few moments whether to invoke cloture on
the intelligence authorization conference report. It is my
understanding the minority is going to support us on this vote. I
appreciate that very much.
America has been without an intelligence authorization bill for
almost 3 years. That is certainly long enough. The bill before us
contains many important provisions that will strengthen our
intelligence capabilities to fight terrorism and keep our country safe.
The bill includes a number of provisions that will begin to restore
proper congressional oversight and includes a provision sponsored by
Senator Feinstein that will require all intelligence professionals in
the U.S. Government to adhere to the interrogation standards included
in the Army Field Manual.
I appreciate the work of Senator Feinstein, who has dedicated much of
her life to making our country safer. She spends untold hours, along
with other Intelligence Committee members, in the Hart Building,
listening to and evaluating what is happening in the intelligence
community in our country and around the world. She is a good Senator,
and her insight into what needs to be done in this instance speaks
volumes. I underline and underscore my appreciation for her work. I
urge all my colleagues to join with me in voting to support her in this
effort. We will have that opportunity because cloture is going to be
invoked.
It is my understanding a Republican or a Democrat will raise a point
of order regarding the Feinstein amendment. The reason a Democrat would
do it is to move this along, to get this over with. There is no reason
to wait 30 hours postcloture, with everyone wondering when it will come
up. We should do it, get it out of the way, work out some agreeable
time with my colleagues, or we will go ahead and do it ourselves. There
is an hour under the rule to debate the motion. There will be an effort
to waive this point of order which, under the rules, requires 60 votes.
Should Republicans force a vote to waive the point of order, I urge all
my colleagues to waive the point of order.
This is a question of moral authority. The Senate should stand as one
to declare that America has one standard of interrogation. We are
living as Americans in a world where everything we do is watched and
watched very closely. We are asking other countries to follow our moral
lead, to embrace our way of life, to aspire to the American standard of
liberty. Yet I fear too often this administration's actions betray
those goals.
A couple weeks ago, Attorney General Mukasey refused to say that
waterboarding is legal. What is waterboarding? We know what it is. It
came from the Inquisition and King Ferdinand and Queen Isabella. That
is where it originated. It is nothing new. It has been going on for
centuries, and it is torture at its worst where you, in effect, drown
somebody and revive them after they can no longer breathe.
Last week, CIA Director Hayden publicly confirmed the United States
had waterboarded individuals who were in our custody. The next day, the
White House affirmatively declared waterboarding is legal and President
Bush is free to authorize our intelligence agencies to resume its use.
President Bush may not care much what we in Congress, Democrats or
Republicans, think. For 6 years, he had carte blanche to do what he
wanted.
[[Page S936]]
The last year has not been that way. We are an equal branch of
Government, and it is time we made him understand this.
The administration can develop as many novel and convoluted legal
theories as it wishes, but they cannot change the simple fact that has
long been settled law, that waterboarding is torture and it is illegal.
It is illegal in America, and it is illegal throughout the world. In
decades past, America has prosecuted our enemies and even our own
troops for waterboarding.
This debate is not just about one kind of torture. It is not just
about waterboarding. It is about ensuring that no form of torture,
cruel or inhumane interrogation techniques that are illegal under the
Geneva Conventions and prohibited by the Army Field Manual, are used.
This includes beating prisoners. This includes sexually humiliating
prisoners. It includes threatening them with dogs, depriving them of
food and water, performing mock executions, putting electricity charges
on various parts of their body, burning them.
These techniques are repugnant. They are repugnant to every American.
They fly in the face of our most basic values. They should be
completely off limits to the U.S. Government. We have already seen the
damage these torture efforts can cause. The world saw it in the Abu
Ghraib prison situation. The revelation that American personnel had
engaged in such terrible behavior, behavior we have always strongly
condemned when used by others, caused tremendous damage to our Nation's
moral authority. The recruiting opportunity it provided our terrorist
enemies cannot be understated and cannot be undone.
This is not a Senator saying this. Forty-three retired military
leaders of the U.S. Armed Forces have written us a letter strongly
stating that all U.S. personnel, military and civilian, should be held
to a single standard. These honored leaders wrote:
We believe it is vital to the safety of our men and women
in uniform that the United States not sanction the use of
interrogation methods it would find unacceptable if inflicted
by the enemy against captured Americans.
They stated the interrogation methods in the Army Field Manual ``have
proven effective'' and that they ``are sophisticated and flexible.''
My friend, the ranking member of this committee, says these horrible
techniques are necessary. They are not. They are not necessary. There
are many things that have been used and can be used, as indicated by
these 43 leading military experts. They say present interrogation
techniques, setting these others aside, are sophisticated and flexible
and they work. They explicitly reject the argument that the field
manual is too simplistic for civilian interrogators.
Our commander in Iraq, General Petraeus, a four-star general, whom we
like to throw around here as knowing all and has done a wonderful job
in Iraq, wrote an open letter to the troops in May. He had this to say:
Some may argue that we would be more effective if we
sanctioned torture and other expedient methods to obtain
information from the enemy.
He went on to say:
They would be wrong. . . . [H]istory shows that [such
actions] are frequently neither useful nor necessary.
Certainly, extreme physical action can make someone
``talk;'' however, what the individual says may be of
questionable value.
We all know that.
In fact, 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 information from detainees.
So says General Petraeus.
Mr. President, just yesterday, a bipartisan group of foreign policy
experts joined to call upon Congress to endorse the application of the
Army Field Manual standards across all U.S. agencies.
The group included, but was not limited to, the Chairman and Vice
Chairman of the 9/11 Commission, Governor Keane and Congressman
Hamilton; two former Secretaries of State; three former national
security advisers; a former Secretary of the Navy; and other highly
regarded officials from both parties.
The Bush administration's continued insistence on its right to use
abusive techniques gives license to our enemies abroad, puts at risk
our soldiers and citizens who may fall into enemy hands, and serves as
an ongoing recruiting tool for militant extremists.
Meanwhile, the widespread belief that our country uses abusive
interrogation methods has weakened our ability to create coalitions of
our allies to fight our enemies because other countries have at times
refused to join us.
Mr. President, many of us thought the Congress had addressed the
issue of torture once and for all when we overwhelmingly passed the
McCain amendment in 2005.
But President Bush immediately issued a signing statement casting
doubt on his willingness to enforce a ban on torture, and his
administration has worked ever since to undermine what Senator McCain
offered and was passed here overwhelmingly.
This vote today gives Congress the chance to show President Bush that
we meant what we said 3 years ago when we passed the McCain amendment.
Today, we have an opportunity to begin to rebuild America's precious
and diminished moral authority. Today, we can strengthen the war on
terror.
I urge us to stand together to support cloture and, if necessary, to
vote to waive the point of order on the Feinstein amendment, which is
part of the very good conference report dealing with intelligence
authorization.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. BOND. Mr. President, how much time do I have?
The PRESIDING OFFICER. The Senator has 1 minute 23 seconds.
Mr. BOND. Mr. President, regrettably, the record doesn't meet the
issue before us. Waterboarding is not an issue here. Waterboarding is
not banned. The techniques that are being used are in compliance with
all of the convention. They are not torture, cruel, or humanly
degrading.
The only reason to have a separate program, which Congress recognized
in the 2005 Military Detainee Act, for having a different standard was
for a few high-value targets who needed different techniques--not more
harsh techniques but techniques that are less severe than the training
techniques we put our enlisted Marines, SEALs, Special Forces, and the
pilots through. If they are not published in the Army Field Manual,
they don't know about them, and that leads them to cooperate.
The most successful intelligence collection program that the CIA has
does not involve torture or any kind of unlawful conduct. It is
unfortunate--and I regret to say very harmful--to the United States to
suggest that it does. I strongly believe we cannot afford to shut down
the CIA's interrogation of high-value detainees.
I yield the floor.
Mr. REID. Mr. President, don't you think this great country of ours--
the moral authority of the world--can continue our work, our
interrogation of prisoners, both military and civilian, by not beating
them, sexually humiliating them, bringing dogs and having dogs chomp at
them, like at Abu Ghraib? Do we need to deprive them of food and water,
provide mock executions, shock them with electricity, as was done
during the first gulf war to American prisoners who were captured by
the Iraqis, one of whom was from Nevada? We don't need to do that. We
don't need to burn them. We don't need to cause them other types of
pain that are listed in field manuals.
Mr. President, we have 43 leading military experts who have told us
that. We have had the two people who led the 9/11 Commission who have
told us that you don't need that, along with former Secretaries of
State and national security advisers to various Presidents, Democrats
and Republicans.
America is better than this. We don't need to do this. The CIA can
get along without having to do all these terrible things. We are told
by General Petraeus that these techniques don't work anyway and that
any of the information you get is unreliable. Listen to General
Petraeus. Let's do the right thing on this issue when it comes up, Mr.
President.
____________________
[Congressional Record: February 13, 2008 (Senate)]
[Page S937-S957]
INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2008--CONFERENCE
REPORT--Resumed
Cloture Motion
The PRESIDING OFFICER. Under the previous order, pursuant to rule
XXII, the Chair lays before the Senate the pending cloture motion,
which the clerk will state.
The bill clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the conference
report to accompany H.R. 2082, Intelligence Authorization
Act.
John D. Rockefeller IV, Dianne Feinstein, Kent Conrad,
E. Benjamin Nelson, Russell D. Feingold, Barbara A.
Mikulski, Ron Wyden, Ken Salazar, Mark Pryor, Patty
Murray, Benjamin L. Cardin, Frank R. Lautenberg, Jack
Reed, Sheldon Whitehouse, Harry Reid, Carl Levin, Bill
Nelson.
The PRESIDING OFFICER. The question is, Is it the sense of the Senate
that debate on the conference report to accompany H.R. 2082, the
Intelligence Authorization Act, shall be brought to a close?
The yeas and nays are mandatory under the rule. The clerk will call
the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton),
the Senator from Missouri (Mrs. McCaskill), and the Senator from
Illinois (Mr. Obama) are necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 92, nays 4, as follows:
[Rollcall Vote No. 21 Leg.]
YEAS--92
Akaka
Alexander
Allard
Barrasso
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Brown
Brownback
Bunning
Byrd
Cantwell
Cardin
Carper
Casey
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kennedy
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Martinez
McCain
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Sanders
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Tester
Thune
Voinovich
Warner
Webb
Whitehouse
Wicker
Wyden
NAYS--4
Burr
Chambliss
DeMint
Vitter
NOT VOTING--4
Clinton
Graham
McCaskill
Obama
The motion was agreed to.
The PRESIDING OFFICER. On this vote, the yeas are 92, the nays are 4.
Three-fifths of the Senators duly chosen and sworn having voted in the
affirmative, the motion is agreed to.
Mr. DURBIN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. NELSON of Florida. Mr. President, I ask unanimous consent that
the order for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Tester). Without objection, it is so
ordered.
Mr. NELSON of Florida. Mr. President, while we are waiting here for
some of the determination of a time agreement with regards to the
consideration of the conference report, I want to go ahead and lend my
support and acknowledge to the rest of the Senate that this is a bill
that is very necessary to pass. Because, what this bill does, by
authorizing the activities of the intelligence community, it continues
to make the oversight function of the Congress--in particular, the
Senate and the House Intelligence Committees--poignant and relevant to
a community that is not accustomed to having oversight.
Our committee leadership, chairman and vice chairman, Senators
Rockefeller and Bond, as we say in the South, they have cracked the
whip with the intelligence community to get them to realize that this
is a constitutional government of shared powers; that the executive
branch doesn't just run the show--particularly on something as
sensitive as the collection of intelligence. Rather, it needs to be
done within the law, and one of the ways of ensuring that is through
the sharing of powers between two different branches of Government who
have checks and balances upon each other. We in the legislative branch
oversee the activities of the executive branch--in this case, all of
the intelligence community and their activities, which are absolutely
essential to the protection of our country. This conference report is a
very important bipartisan document, which increases the accountability
in the intelligence community, and it authorizes dozens of critical
intelligence programs to keep us safe every day.
The conference report includes a new, strong inspector general in the
Office of the Director of National Intelligence. Inspectors general are
increasingly important in the intelligence community, where billions of
dollars are spent outside of public view. Our committee, as well as the
American public, has to rely on the inspector general as an important
part of the oversight of the intelligence community.
As we look back, several years ago, we completely reorganized the
intelligence community. A Director of National Intelligence was set up
to integrate the disparate elements of the intelligence community. But
there is a lot more that needs to be done, and a strong inspector
general at the DNI is another step in the right direction.
The conference report also includes a provision that makes the
Director of the NRO--the National Reconnaissance Office--and the NSA--
the National Security Agency--subject to Senate confirmation. Now, why
is that important? That is important because, again, it is part of the
checks and balances of the separate branches of Government. Both of
these agencies, outside of the public view because of the top-secret
nature of this work, oversee large programs that cost vast amounts of
money, and not every program has been a success. So by having the
confirmations of the Directors of the NRO and the NSA come to the
Senate, it improves that accountability and responsiveness to the
legislative branch of Government.
The authorization bill also requires an assessment of the
vulnerability of the intelligence community's major acquisition
programs. We have to assess that the program is going to stay on track
and that it is not going off the rails with regard to cost. We are
talking about billions of dollars on some of these programs. By keeping
them on track, by knowing what to anticipate, it is much easier to plan
ahead.
This bill also provides an annual reporting system which will help us
keep in focus, curbing these cost overruns and these schedule delays.
If you don't do that, things are going to get out of control. As the
intelligence community continues to be more and more sophisticated
because of the technical means it employs, it is more and more
important that our oversight tools be in place and effective.
Now, that is enough alone to pass this bill, but we have an area of
disagreement coming up. We are expecting the minority to offer a point
of order that would remove a provision in the conference report. This
provision requires the Army Field Manual to be used as the standard for
interrogation methods. This Army Field Manual was released over a year
ago. It specifically prohibits cruel, inhuman, and degrading treatment.
There are eight techniques in the Army Field Manual that are
specifically prohibited from being used in conjunction with
intelligence interrogations: forcing the detainee to be naked, perform
sexual acts, or pose in a sexual manner; placing hoods or sacks over
the head of a detainee; using
[[Page S938]]
duct tape on the eyes; applying beatings, electric shock, burns, or
other forms of physical pain. The fourth is waterboarding. That is
prohibited. The fifth is using military working dogs. The sixth is
inducing hypothermia or heat energy. The seventh is conducting a mock
execution. The eighth is depriving the detainee of necessary food,
water, and medical care.
Now, haven't I just described what America is all about? Is that not
the standard by which we, as the leader of the world, have to announce
to the world what we believe in and how we are going to conduct
ourselves, and that is how we are going to conduct ourselves not only
among our own people and how we treat them but how we are going to
treat others?
The manual provides that three interrogation techniques may only be
used with higher level approval. The good cop-bad cop interrogation
tactic; the false flag tactic, where a detainee is made to believe he
is being held by another country; or separation, by which the detainee
is separated so he can't coordinate with other detainees on his story--
those techniques can be used, but it has to be approved at a higher
level.
Mr. President, there is something that is going to worry everybody,
and it has worried this Senator personally and as a member of the
Intelligence Committee. What if all of this doesn't work and the
country is in imminent peril? Well, along with the standards we are
going to set, which I hope we are going to pass into law--these
standards in the Army Field Manual which will state clearly what the
standards are for our country and how we are going to conduct
ourselves--there is always the constitutional authority under article
II.
As Commander in Chief, the President can act when the country is in
immediate peril. And if he so chooses, as Commander in Chief, to
authorize activities other than what the Army Field Manual allows, then
the President would be accountable directly to the American people
under the circumstances with which he invoked that article II authority
as Commander in Chief.
What we are saying today does not relate to the President's article
II power. We are setting statutory power. It is important that we tell
the rest of the world the standards of how we interrogate detainees. We
are putting these standards into law and we will ensure that these
techniques are in compliance with the humane treatment that we would
expect and hope our Americans would also receive.
I think there should be no confusion. We have an obligation to set
these standards into law. If that dire emergency ever occurred in the
future, the President has his own authority under article II of the
Constitution. But that is not the question here today before us. The
question is: What do we set as the standard of interrogation, and that
has to be that there is no torture allowed under this statutory law.
Therefore, when the point of order is raised that would take the Army
Field Manual standards for interrogation techniques out of the
conference report, I urge the Senators not to take this provision out
of this important intelligence reauthorization bill.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
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
[[Page S939]]
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.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, today's debate goes to the heart of
what our country is and what we wish it to be, by asking this: Will the
United States of America condone torture? Is there, at America's heart,
a heart of darkness? This authorization bill for America's intelligence
community offers us the opportunity to answer that question decisively.
It contains provisions for which I have fought from my initial
amendment in committee, and which I am proud to support today, that
would prohibit members of the intelligence community from using
interrogation techniques beyond those authorized in the Army Field
Manual.
By adopting this amendment, the two Intelligence Committees,
Congress's experts on these matters, have sent a clear signal to
America and to the world that in this country the rule of law is our
strongest bulwark against those who would do us harm.
I hope that today the Senate will have the confidence in our values
to reaffirm that signal and pass this legislation with the Army Field
Manual provision included.
Over the past several months, the American people have become all too
familiar with the issue of torture. I want to discuss one technique in
particular today, waterboarding, or water torture, or the water cure,
which dates back to the Spanish Inquisition of the 14th century.
Waterboarding was a favorite of torturers, because its terrible
effects could be generated without the visible damage accompanying the
rack, the screw, the iron, the whip, or the gouge. It could be done
over and over.
In the 20th century, waterboarding was done in the Philippines, where
colonizers wielded it against indigenous peoples. It has been used in
Sri Lanka, in Tunisia, by the Khmer Rouge in Cambodia--we are in the
tradition of Pol Pot--by the French in Algeria, by the Japanese in
World War II, and by military dictatorships in Latin America. The
technique ordinarily involves strapping a captive in a reclining
position, heels above head, putting a cloth over his face and pouring
water over the cloth to create the feeling of suffocation and drowning.
It leaves no marks on the body, but it causes extreme physical and
psychological suffering.
A French journalist, Henri Alleg, was subjected to this method of
interrogation during the struggle for Algerian independence. He wrote
in his 1958 book ``The Question'':
I tried, by contracting my throat, to take in as little
water as possible and to resist suffocation by keeping air in
my lungs for as long as I could. But I couldn't hold on for
more than a few moments. I had the impression of drowning,
and a terrible agony, that of death itself, took possession
of me.
Waterboarding is associated with criminal, tyrant, and repressive
regimes, with rulers who sought from their captives not information but
propaganda, meant for broadcast to friends or enemies whether true or
false. Regimes that employed the technique of waterboarding generally
did not do so to obtain information; rather, to obtain compliance. But
no matter the purpose or the reason, its use was and is indefensible.
Water torture was not unknown to Americans. A 1953 article in the New
York Times quotes LTC William Harrison of the U.S. Air Force, who said
he was ``tortured with the `water treatment' by Communist North
Koreans.'' In testimony before a U.S. military tribunal, CAPT Chase Jay
Nielsen described being waterboarded by his Japanese captors following
the 1942 Doolittle raid by U.S. aviators. From all this, America's
military knew there was a chance our servicemen and servicewomen would
be subjected to water torture.
The Defense Department established the SERE program--survive, evade,
resist, and escape--to train select military personnel who are at high
risk of capture by enemy forces or isolation within enemy territory.
The program has also subjected certain service personnel to extreme
interrogation techniques, including waterboarding, in an effort to
prepare them for the worst--the possibility of capture and torture at
the hands of a depraved or tyrannical enemy.
According to Malcolm Nance, a former master instructor and chief of
training, at the U.S. Navy SERE school in San Diego:
[O]ur training was designed to show how an evil
totalitarian enemy would use torture at the slightest whim.
Those who have experienced this technique, even at the hands of their
own brothers in arms, are unequivocal about its effect. Former Deputy
Secretary of State Richard Armitage, who underwent waterboarding during
SERE training, said this:
[[Page S940]]
As a human being, fear and helplessness are pretty
overwhelming. . . . this is not a discussion that Americans
should even be having. It is torture.
Our colleague in this body, Senator John McCain, has said the same.
Yet it was to this relic of the dungeons of the inquisition, of the
Cambodian killing fields, and of the huntas of the Southern Hemisphere
that the Bush administration turned for guidance. I will speak later
about how our Department of Justice came to approve this. But for now,
we know that last week, in a stunning public admission, the CIA
Director General, Michael Hayden, admitted the United States
waterboarded three detainees following the September 11 attacks. The
virus of waterboarding had traveled from tyrant regimes, through the
SERE program, and infected America's body politic.
Retired BG David Irvin, of the U.S. Army Reserve, a former
intelligence officer and instructor in interrogation, and Joe Navarro,
interrogator with the FBI, recently wrote:
[T]here is considerable evidence that the CIA had to
scramble after 9/11 to develop an interrogation program and
turned to individuals with no professional experience in the
field. . . . Given the crisis atmosphere of the day, it is
all too easy to believe the comment of an intelligence
insider who said of the secret program to detain and
interrogate al Qaeda suspects that ``quality control went out
the window.''
Don't let us jump out the window after it.
America's military is expressly prohibited from using torture because
intelligence experts in our Armed Forces know torture is an ineffective
method of obtaining actionable intelligence. Again, I will speak later
about the false assertion that this program was designed for 18-year-
old novices. Some of the most sophisticated intelligence interrogations
are done by our military after intense training. Our military adheres
to the Army Field Manual on Human Intelligence Collector Operations. At
a hearing before the Senate Select Committee on Intelligence, on which
I serve, I asked COL Steven Kleinman, a 22-year veteran of
interrogations, a senior intelligence officer in the U.S. Air Force
Reserves, and a veteran interrogator with plenty of experience overseas
in the Middle East, about his experience conducting interrogations
using the Army Field Manual.
He said:
I am not at all limited by the Army Field Manual in terms
of what I need to do to generate useful information. . . .
I've never felt any necessity or operational requirement to
bring physical, psychological or emotional pressure on a
source to win their cooperation.
A significant number of retired military leaders have written to the
chairman and vice chairman of the Intelligence Committee saying:
interrogation methods authorized by the field manual have
proven effective in eliciting vital intelligence from
dangerous enemy prisoners. . . . And the principles reflected
in the Field Manual are values that no U.S. agency should
violate.
And GEN David Petraeus, commander of U.S. forces serving in Iraq,
reiterated this point when he wrote last year to every soldier serving
in the Iraq theater:
Some may argue that we would be more effective if we
sanctioned torture or other expedient methods to obtain
information from the enemy. They would be wrong. Beyond the
basic fact that such actions are illegal, history shows that
they also are frequently neither useful nor necessary. . . .
our experience in applying the interrogation standards
laid out in the Army Field Manual on Human Intelligence
Collector Operations that was published last year shows
that the techniques in the manual work effectively and
humanely in eliciting information from detainees.
The cochairs of the 9/11 Commission emphatically agree. On Monday,
the chairmen, together with two former Secretaries of State, three
former National Security Advisors, and other national security experts,
wrote that ``[c]ruel, inhuman and degrading treatment of prisoners
under American control makes us less safe, violates our national
values, and damages America's reputation in the world.''
Torture is ineffective. It is wrong. It is dangerous to all those who
serve the United States of America in harm's way. It should never, ever
be used by any person who represents the United States of America or
any agency that flies the American flag.
I was proud last July to introduce an amendment in the Intelligence
Committee that would write this rule into law. When that effort did not
succeed, I was proud again last winter to support Senator Feinstein's
amendment in conference.
I call on all my colleagues to support this legislation. We can
journey no longer down Winston Churchill's stairway which leads to a
dark gulf. As Winston Churchill said:
It is a fine broad stairway at the beginning, but after a
bit, the carpet ends. A little farther on, there are only
flagstones, and a little farther on still these break beneath
your feet.
The United States of America--the city on a hill, the light of the
world, the promise of generations--must not ever condone torture.
Torture breaks that promise. Torture extinguishes that light. Torture
darkens that city. I hope by our actions today, we in the Senate will
help turn this country back toward our centuries-old promise. I hope we
will turn toward the light.
I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I almost have no words to praise the
Senator from Rhode Island for the eloquence and strength of his speech,
which was not only grounded in very deep substance but was delivered
with elegiac nature that both culled the human spirit as well as
grounded the futility of torture. I congratulate him.
I also rise strongly in support of section 327 of the intelligence
authorization conference report. I recognize it will be controversial.
I don't care. It is important that some background on this section be
provided. Some of it has been this morning. During the conference on
the authorization bill, the conferees adopted an amendment that would
require the intelligence community to conduct its interrogation in
accordance with the terms of the U.S. Army Field Manual. The full
membership of the House Intelligence Committee and the Senate
Intelligence Committee served on the conference committee. So it was a
majority of those two committees that came to that conclusion.
Section 327 of the intelligence authorization conference report
directly parallels the provision in the Detainee Treatment Act that
forbids subjecting anyone in Department of Defense custody to any
treatment or technique of interrogation not authorized by and listed in
the U.S. Army Field Manual on intelligence interrogation. Section 327
applies these same restrictions to the intelligence community at large.
The effect of section 327 is, therefore, to require all of the U.S.
Government operate their interrogation programs under a single
interrogation standard, the standard set by the U.S. military. Adopting
the military standard for interrogation as the universal standard makes
sense, and I hope some of my colleagues are listening. It is the
members of the military who most benefit from reciprocal obligations of
the Geneva Convention requiring humane treatment of prisoners and who
are most likely to be subjected to retaliation based on the failure of
the United States to follow those obligations. That statement is
frequently made, and then it is frequently absorbed and discarded.
Think about it. Retaliation is the way of the world, and it will be no
different here. What we do to others, they will do to us.
The U.S. Army Field Manual on interrogation was revised in September
2006 after significant interagency review. This included a review by
the Central Intelligence Agency. By providing a number of approach
strategies such as the incentive approach, emotional approach, and the
Mutt-and-Jeff approach, the Army Field Manual gives interrogators
significant flexibility to shape the interrogation. It doesn't
delineate exactly how. It gives them a lot of flexibility.
The Army Field Manual also explicitly prohibits, as we know,
waterboarding, forcing detainees to be naked, inducing hypothermia or
heat injury or subjecting a detainee to beatings, as well as a number
of other things. All this raises the question at the heart of this
debate: Should the Central Intelligence Agency, the well-known CIA, be
allowed to use coercive interrogation techniques to obtain information
from al-Qaida detainees?
This debate is about more than legality. It is about more than
ensuring
[[Page S941]]
that the intelligence community has the tools it needs to protect us.
It is also about morality, the way we see ourselves, who we are, who we
want to be as a nation, and what we represent to the world. What we
represent to the world has a direct effect on the number of people who
determine they want to join the jihadists movement and come after us.
It is a decision that can and should be left to Members of Congress
who are the representatives of the American people. In the early period
of the CIA program's existence, I repeatedly called--and I am extremely
frustrated by this, extremely frustrated--for an Intelligence Committee
investigation into the Agency's detention interrogation practices.
That was in the committee. I was, at that point, vice chairman and
could not control, obviously, the vote. So on vote margins of one, we
lost. We could not get anything going in the way of studying the
subject and investigation of the subject. Then I moved to the floor and
once again could not get the committee to investigate the subject. I
also tried to have the CIA brief all the members of the committee on
the interrogation program. That also did not happen.
I recognized that assessing the need for the CIA's enhanced
interrogation techniques, the intelligence obtained from detainees, and
the importance of maintaining America's position in the world were
issues that we in Congress needed to debate and discuss, and,
unfortunately, we did not.
About a year and a half ago, the full membership of the Intelligence
Committee was finally provided information about CIA's interrogation
program. It is the whole point of oversight. They are not accustomed to
us doing that--not just the CIA, but the intelligence community--having
representatives of the people asking questions. They think it is an
elite field for them. They are proud of their traditions. They fight
among themselves, and they do not build into their thinking what it is
that the Congress might feel about this.
About a year and a half ago, as I say, we were brought into their
interrogation program. Since that time, our committee has held multiple
hearings on that subject. We have done our best to learn as much as
possible about the basis for and the consequences of CIA's program, as
well as interrogation in more general terms.
These briefings and hearings have led the committee to conclude that
all agencies of the U.S. Government should be required to comply with a
single standard for interrogation of detainees. The Army Field Manual
provides a standard of humane treatment that indisputably complies with
our international obligations under the Geneva Conventions, as well as
with U.S. laws.
The CIA has briefed the committee on several occasions about its
interrogation of al-Qaida detainees. The CIA has described the basis
for the program, and why they think it should be allowed to continue.
Although the CIA has described the information obtained from its
program, I have heard nothing--nothing--that leads me to believe that
information obtained from interrogation using coercive interrogation
techniques has prevented an imminent terrorist attack.
This is true for a very simple reason. Once a terrorist is captured,
his fellow plotters, understandably, change their plans. In other
words, I do not believe the CIA has ever been in an actual ``ticking
timebomb'' scenario, nor do I think it is ever likely to be placed in
that situation. That does not mean the information obtained from the
program has not been valuable. Of course information about al-Qaida is
exceedingly valuable from an intelligence standpoint. It is bits and
pieces of information that allow our intelligence professionals to
assess al-Qaida's capabilities and to determine how best to protect
ourselves as a nation. But, more to the point, I have not heard nor
have I seen any evidence that supports the intelligence community's
claim that using enhanced interrogation techniques is the only way to
obtain this type of intelligence; that is, to get what they need to
get.
After 9/11, the intelligence community decided that coercive
interrogation tactics were the best way to obtain intelligence. It was
perhaps a little bit understandable then in terms of the general panic
of the Nation. But the intelligence community--I say this gravely--did
not take the time to research what interrogation techniques might be
most effective to come to this conclusion, nor did they reach out to
the interrogators with experience, particularly those questioning
Islamic terrorists. They did not do that. They were going to do it
their way. They simply assumed--and they simply still assume--that
coercive interrogation techniques were the best way to obtain
information.
To this Senator, this was clearly a flawed approach. But at this
point, the administration is so invested in the use of these techniques
they can no longer psychologically or otherwise step back to assess
what methods are most effective to obtain intelligence. They go by the
mantra, they go by what has been done before.
To address this question, the committee explored how other Government
agencies conduct interrogation. The committee considered critical
interrogations of individuals who do not want to disclose information--
people who are hardheaded and do not want to talk--interrogations where
obtaining information can prevent widespread injury or death.
Every day, military interrogators in Iraq and Afghanistan question
individuals with information that can save lives--every single day--
questions about where explosive devices are hidden, where captured
soldiers have been taken, or where caches of weapons are stored, and a
lot more.
Now, the CIA loves to argue: Oh, but they are just 18- to 20-year-old
kids. They don't have the experience. We have experience. We have
experience. We have been at it. We are the professionals. They did that
at our public, open threats hearing a week or so ago.
Now, there is something called the FBI. They deal with pretty bad
people, too. Their agents face life-and-death situations in both the
world of terrorism and every-day criminality. Some of the individuals
the FBI interrogate are senior leaders, individuals who are committed
to staying silent and not sharing the information they possess. In
fact, FBI agents recently questioned the top al-Qaida leaders who were
formerly in CIA custody, gathering enough information from those al-
Qaida leaders to build cases for trial, which we have recently read
about.
Some of these FBI agents have been conducting interrogations for two
or three decades. That does not sound like 18- to 20-year-olds. They
are, without question, recognized experts in their field, and they are
remarkably effective at obtaining the information they need. Yet both
the FBI and the military have told us they do not need enhanced
interrogation techniques. Are these naive organizations? Are these
people who do not know what they are talking about? Are these people
who do not have stakes at hand? They are out on the battlefield. They
are not only at Guantanamo. They are out on the battlefield. They have
told the committee the interrogation techniques included in the Army
Field Manual provide them with flexibility they need to obtain the
information they need.
Indeed, representatives from both the military and the FBI--both--
stated emphatically they have the tools they need to obtain necessary
and reliable intelligence.
After considering the CIA's arguments, and those of the FBI and the
U.S. military, I am simply not convinced that harsh CIA tactics are
necessary to obtain intelligence information.
We also had people who were neutral who had experience in
interrogation but were not currently in the practice of it. Their
information to us also was that to terrorize, to torture, to manhandle,
to do whatever, does not work. Human beings are human beings, and there
are ways to get at them. In fact, coercive interrogation techniques can
lead prisoners--and probably will in many cases--to say anything at all
for the purpose of stopping the interrogation. As a result, coercive
techniques can produce information that is fabricated and ultimately
lead to flawed and misleading intelligence reports. This is not
academic or hypothetical. Bad intelligence is a real danger.
[[Page S942]]
In the early years and months after 2001, we were awash with bad
intelligence in Washington, DC, not all of it coming out of coercive
techniques, but out of a complete misunderstanding of what intelligence
is all about. In fact, there was a condescension from the
administration about the role of intelligence in providing reliable
information. So this is not an academic or hypothetical point. Bad
intelligence is a real danger when employing coercive interrogation
techniques.
Intelligence reporting from an al-Qaida detainee--a very famous one
named al-Libi he said Iraq was providing al-Qaida training in chemical
and biological weapons prior to the war, which was publicly trumpeted
by the President of the United States, by the Secretary of Defense, by
the Secretary of State, and other senior administration officials as
proof of operating links between Iraq and al-Qaida and, therefore, as a
basis for going in to invade Iraq.
Of course, basically all of us feel now that what the President said
on March 23 in the other body, in his speech which gave him the
authority to go to war, was based on intelligence which was almost
entirely incorrect, and virtually everything he said, other than some
rhetoric here and there--everything he said turned out to be wrong,
and, therefore, was one of the most extraordinary disservices to the
American people, not to speak of the dead and the wounded, that I can
remember in my lifetime. But the Nation was inspired by the thought of
fighting terror, and so on they went.
Ultimately, al-Libi, who said these things, recanted. He recanted,
and it was determined by the CIA that he had fabricated this central
allegation of this link between al-Qaida and Iraq and other information
based on his claim of mistreatment during the interrogations.
So this is not an academic point. America went to war based on an
alleged threat that was partially based on fabricated information
produced under coercive interrogation.
Apart from the question of efficacy and the risk of bad intelligence,
the committee has explored the consequences of having a different,
secret standard of interrogation for the intelligence community. This
is where the need for section 327 becomes clear.
Since the disclosure of information about the existence of secret
prisons, and the use of harsh interrogation techniques, the reputation
and moral authority of the United States have suffered dramatically. It
is not a casual statement. One can say, yes, a lot of p
