Congressional Record: October 5, 2005 (Senate)
DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2006
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of H.R. 2863, which the clerk will
The ACTING PRESIDENT pro tempore. The Senator from Arizona is
Amendment No. 1977
Mr. McCAIN. Mr. President, from my conversations with the Senator
from Alaska, the chairman, I believe he agrees we will move forward;
therefore, I call up amendment No. 1977, which is filed at the desk.
The ACTING PRESIDENT pro tempore. Without objection, the pending
amendments are set aside for the consideration of this amendment, which
the clerk will now report.
The assistant legislative clerk read as follows:
The Senator from Arizona [Mr. McCain], for himself, Mr.
Graham, Mr. Hagel, Mr. Smith, and Ms. Collins, proposes an
amendment numbered 1977.
Mr. McCAIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
The amendment is as follows:
(Purpose: Relating to persons under the detention, custody, or control
of the United States Government)
At the appropriate place, insert the following:
SEC. __. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS
UNDER THE DETENTION OF THE DEPARTMENT OF
(a) In General.–No person in the custody or under the
effective control of the Department of Defense or under
detention in a Department of Defense facility shall be
subject to any treatment or technique of interrogation not
authorized by and listed in the United States Army Field
Manual on Intelligence Interrogation.
(b) Applicability.–Subsection (a) shall not apply to with
respect to any person in the custody or under the effective
control of the Department of Defense pursuant to a criminal
law or immigration law of the United States.
(c) Construction.–Nothing in this section shall be
construed to affect the rights under the United States
Constitution of any person in the custody or under the
physical jurisdiction of the United States.
SEC. __. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING
TREATMENT OR PUNISHMENT OF PERSONS UNDER
CUSTODY OR CONTROL OF THE UNITED STATES
(a) In General.–No individual in the custody or under the
physical control of the United States Government, regardless
of nationality or physical location, shall be subject to
cruel, inhuman, or degrading treatment or punishment.
(b) Construction.–Nothing in this section shall be
construed to impose any geographical limitation on the
applicability of the prohibition against cruel, inhuman, or
degrading treatment or punishment under this section.
(c) Limitation on Supersedure.–The provisions of this
section shall not be superseded, except by a provision of law
enacted after the date of the enactment of this Act which
specifically repeals, modifies, or supersedes the provisions
of this section.
(d) Cruel, Inhuman, or Degrading Treatment or Punishment
Defined.–In this section, the term “cruel, inhuman, or
degrading treatment or punishment” means the cruel, unusual,
and inhumane treatment or punishment prohibited by the Fifth,
Eighth, and Fourteenth Amendments to the Constitution of the
United States, as defined in the United States Reservations,
Declarations and Understandings to the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman
or Degrading Treatment or Punishment done at New York,
December 10, 1984.
Mr. McCAIN. Mr. President, this amendment would do two things: one,
establish the Army Field Manual as the uniform standard for the
interrogation of Department of Defense detainees; and, two, prohibit
cruel, inhumane, and degrading treatment of prisoners in the detention
of the Government. It is pretty simple and straightforward.
Mr. President, I regret, of course, as all my colleagues do, that
this amendment has to be brought up on an appropriations bill. We are
only doing so because so far we have been unable to get sufficient
agreement to bring up the Defense authorization bill. I have made it
very clear, over a long period of time, my feeling about how important
it is to take up and complete the authorization bill, but that is a
subject for another day. I know good-faith efforts are being made on
both sides to try to get the authorization bill up. But that has not
happened so, therefore, we are addressing this issue.
By the way, I have had a preliminary ruling that this amendment is
germane because there is reference made to it in the House version of
the appropriations bill.
The Senate has an obligation to address the authorizing legislation,
as it has an obligation to deal with the issue that apparently led to
the bill being pulled from the floor, which is America’s treatment of
Several weeks ago, I received a letter from CPT Ian Fishback, a
member of the 82nd Airborne Division at Fort Bragg, and a veteran of
combat in Afghanistan and Iraq, and a West Point graduate. Over 17
months, he struggled to get answers from his chain of command to a
basic question: What standards apply to the treatment of enemy
detainees? But he found no answers.
In his remarkable letter, he pleads with Congress, asking us to take
action to establish standards to clear up the confusion, not for the
good of the terrorists but for the good of our soldiers and our
country. Captain Fishback closes his letter by saying:
I strongly urge you to do justice to your men and women in
uniform. Give them clear standards of conduct that reflect
the ideals they risk their lives for.
This comes from a young captain in the U.S. Army who has served his
country both in Iraq and Afghanistan and who says it in a far more
eloquent fashion than I have ever been able to. By the way, I thank God
every day that we have men and women the caliber of Captain Fishback
serving in our military. I believe the Congress has a responsibility to
answer this call, a call that has come not just from this one brave
soldier but from so many of our men and women in uniform. We owe it to
them. We sent them to fight for us in Afghanistan and Iraq. We placed
extraordinary pressure on them to extract intelligence from detainees,
but then we threw out the rules that our soldiers had trained on and
replaced them with a confusing and constantly changing array of
standards. We demanded intelligence without ever clearly telling our
troops what was permitted and what was forbidden. And when things went
wrong, we blamed them, and we punished them. I believe we have to do
better than that.
I can understand why some administration lawyers might have wanted
ambiguity so that every hypothetical option is theoretically open, even
those the President has said he does not want to exercise. But war
doesn’t occur in theory, and our troops are not served by ambiguity.
They are crying out for clarity. The Congress cannot shrink from this
duty. We cannot hide our heads, pulling bills from the floor and
avoiding votes. We owe to it our soldiers during this time of war to
take a stand. So while I would prefer to offer this amendment to the
DOD authorization bill, I am left with no choice but to offer it to
this appropriations measure. I would note that I am offering this
amendment in accordance with the options afforded under rule XVI of the
Standing Rules of the Senate.
The amendment I am offering combines the two amendments I previously
filed to the authorizing measure. To fight terrorism, we need
intelligence. That much is obvious. What should also be obvious is that
the intelligence we collect must be reliable and acquired humanely,
under clear standards understood by all our fighting men and women. To
do differently would not only offend our values as Americans but
undermine our war effort, because abuse of prisoners harms, not helps,
in the war on terror.
First, subjecting prisoners to abuse leads to bad intelligence,
because under torture, a detainee will tell his interrogator anything
to make the pain stop. Second, mistreatment of our prisoners endangers
U.S. troops who might be captured by the enemy–if not in this war,
then in the next. And third, prisoner abuses exact on us a terrible
toll in the war of ideas, because inevitably these abuses become
public. When they do, the cruel actions of a few darken the reputation
of our country in the eyes of millions. American values should win
against all others in any war of ideas, and we can’t let prisoner abuse
tarnish our image. Yet reports of detainee abuse continue to emerge, in
large part, I believe, because of confusion in the field as to what is
permitted and what is not. This amendment will go a long way toward
clearing up this confusion.
The first part of the amendment would establish the Army Field Manual
as the uniform standard for the interrogation of Department of Defense
detainees. The Army Field Manual and its various editions have served
America well through wars against both regular and irregular foes. It
embodies the values Americans have embraced for generations, while
preserving the ability of our interrogators to extract critical
intelligence from ruthless foes. Never has this been more important
than today in the midst of the war on terror. The Army Field Manual
authorizes interrogation techniques that have proven effective in
extracting lifesaving information from the most hardened enemy
prisoners. It is consistent with our laws and, most importantly, our
values. Let’s not forget that al-Qaida sought not only to destroy
American lives on September 11, but American values, our way of life,
and all we cherish.
We fight not just to preserve our lives and liberties, but also
values. We will never allow the terrorists to take those away. In this
war–that we must win, that we will win–we must never simply fight
evil with evil.
This amendment would establish the Army Field Manual as the standard
for interrogation of all detainees held in DOD custody. The manual has
been developed by the executive branch for its own uses, and a new
edition, written to take into account the needs of the war on terror
and with a new classified annex, is due to be issued soon. This
amendment would not set the field manual in stone. It could be changed
at any time.
The advantage of setting a standard for interrogation based on the
field manual is to cut down on the significant level of confusion that
still exists with respect to which interrogation techniques are
allowed. The Armed Services Committee has held hearings with a slew of
high-level Defense Department officials, from regional commanders to
judge advocate generals to the Department’s deputy general counsel. A
chief topic of discussion in these hearings was what specific
interrogation techniques are permitted, in what environments, with
which DOD detainees, by whom and when. The answers have included a
whole lot of confusion. If the Pentagon’s top minds can’t sort these
matters out, after exhaustive debate and preparation, how in the world
do we expect our enlisted men and women to do so?
Confusion about the rules results in abuses in the field. We need a
clear, simple, and consistent standard, and we have it in the Army
Field Manual on interrogation. That is not just my opinion but that of
many more distinguished military minds than mine. I refer to a letter
expressing strong support for this amendment signed by 28 former high-
ranking military officers, including GEN Joseph Hoar, who commanded
CENTCOM; GEN John Shalikashvili, former Chairman of the Joint Chiefs of
Staff; RADM John Hutson and RADM Don Guter, who each served as the
Navy’s top JAG; and LTG Claudia Kennedy, who served as Deputy Chief of
Staff for Army Intelligence. These and other distinguished officers
believe the abuses at Abu Ghraib, Guantanamo, and elsewhere took place
in part because our soldiers received ambiguous instructions which in
some cases authorized treatment that went beyond what the field manual
allows, and that had the manual been followed across the board, we
could have avoided the prisoner abuse scandal.
Why wouldn’t any of us do whatever we could to have prevented that?
By passing this amendment, our servicemembers can follow the manual
consistently from now on. Our troops deserve no less.
I ask unanimous consent that the letter from 29 retired military
officers be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Dear Senator McCain: We strongly support your proposed
amendments to the Defense Department Authorization bill
concerning detainee policy, including requiring all
interrogations of detainees in DOD custody to conform to the
U.S. Army’s Field Manual on Intelligence Interrogation (FM
34-52), and prohibiting the use of torture and cruel, inhuman
and degrading treatment by any U.S. government agency.
The abuse of prisoners hurts America’s cause in the war on
terror, endangers U.S. service members who might be captured
by the enemy, and is anathema to the values Americans have
held dear for generations. For many years, those values have
been embodied in the Army Field Manual. The Manual applies
the wisdom and experience gained by military interrogators in
conflicts against both regular and irregular foes. It
authorizes techniques that have proven effective in
extracting life-saving information from the most hardened
enemy prisoners. It also recognizes that torture and cruel
treatment are ineffective methods, because they induce
prisoners to say what their interrogators want to hear,
even if it is not true, while bringing discredit upon the
It is now apparent that the abuse of prisoners in Abu
Ghraib, Guantanamo and elsewhere took place in part because
our men and women in uniform were given ambiguous
instructions, which in some cases authorized treatment that
went beyond what was allowed by the Army Field Manual.
Administration officials confused matters further by
declaring that U.S. personnel are not bound by longstanding
prohibitions of cruel treatment when interrogating non-U.S.
citizens on foreign soil. As a result, we suddenly had one
set of rules for interrogating prisoners of war, and another
for “enemy combatants;” one set for Guantanamo, and another
for Iraq; one set for our military, and another for the CIA.
Our service members were denied clear guidance, and left to
take the blame when things went wrong. They deserve better
The United States should have one standard for
interrogating enemy prisoners that is effective, lawful, and
humane. Fortunately, America already has the gold standard in
the Army Field Manual. Had the Manual been followed across
the board, we would have been spared the pain of the prisoner
abuse scandal. It should be followed consistently from now
on. And when agencies other than DOD detain and interrogate
prisoners, there should be no legal loopholes permitting
cruel or degrading treatment.
The amendments proposed by Senator McCain would achieve
these goals while preserving our nation’s ability to fight
the war on terror. They reflect the experience and highest
traditions of the United States military. We urge the
Congress to support this effort.
Joseph Hoar, USMC (Ret.), General John Shalikashvili, USA
(Ret.), General Donn A. Starry, USA (Ret.), Lieutenant
General Ron Adams, USA (Ret.), Lieutenant General
Robert G. Gard, Jr., USA (Ret.), Lieutenant General Jay
M. Garner, USA (Ret.), Vice Admiral Lee F. Gunn, USN
(Ret.), Lieutenant General Claudia J. Kennedy, USA
(Ret.), Lieutenant General Charles Otstott, USA (Ret.),
Vice Admiral Jack Shanahan, USN (Ret.), Major General
Eugene Fox, USA (Ret.), Major General John L. Fugh, USA
(Ret.), Rear Admiral Donald J. Guter, USN (Ret.), Major
General Fred E. Haynes, USMC (Ret.).
Rear Admiral John D. Hutson, USN (Ret.), Major General
Melvyn Montano, ANG (Ret.), Major General Robert H.
Scales, USA (Ret.), Major General Michael J. Scotti,
USA (Ret.), Brigadier General David M. Brahms, USMC
(Ret.), Brigadier General James Cullen, USA (Ret.),
Brigadier General Evelyn P. Foote, USA (Ret.),
Brigadier General David R. Irvine, USA (Ret.),
Brigadier General Richard O’Meara, USA (Ret.),
Brigadier General John K. Schmitt, USA (Ret.),
Brigadier General Stephen N. Xenakis, USA (Ret.),
Ambassador/Former Vietnam POW Douglas “Pete”
Peterson, USAF (Ret.), Former Vietnam POW Commander
Frederick C. Baldock, USN (Ret.), Former Vietnam POW
Commander Phillip N. Butler, USN (Ret.).
Mr. McCAIN. The second part of this amendment should not be
objectionable to anyone since I am actually not proposing anything new.
The prohibition against cruel, inhumane, and degrading treatment has
been a long-standing principle in both law and policy in the United
States. Before I get into why the amendment is necessary, let me first
review the history.
The Universal Declaration of Human Rights, adopted in 1948, states
No one shall be subjected to torture or cruel, inhuman or
degrading treatment or punishment.
The International Covenant on Civil and Political Rights, to which
the United States is a signatory, states the same. The binding
Convention Against Torture, negotiated by the Reagan administration and
ratified by this body, prohibits cruel, inhuman, and degrading
treatment. On last year’s DOD authorization bill, the Senate passed a
bipartisan amendment reaffirming that no detainee in U.S. custody can
be subject to torture or cruel treatment, as the U.S. has long defined
those terms. All of this seems to be common sense, in accordance with
longstanding American values. But since last year’s DOD bill, a strange
legal determination was made that the prohibition in the Convention
Against Torture against cruel, inhuman, or degrading treatment does not
legally apply to foreigners held outside the United States. They can
apparently be treated inhumanely. This is the administration’s
position, even though Judge Abe Soafer, who negotiated the Convention
Against Torture for President Reagan, said in a recent letter that the
Reagan administration never intended the prohibition against cruel,
inhuman, or degrading treatment to apply only on U.S. soil.
What all this means is that America is the only country in the world
that asserts a legal right to engage in cruel and inhuman treatment.
But the crazy thing is, it is not even necessary because the
administration has said it will not engage in cruel, inhuman, or
degrading treatment as a matter of policy. What this also means is that
confusion about the rules becomes rampant again. We have so many
differing legal standards and loopholes that our lawyers and generals
are confused. Just imagine our troops serving in prison in the field.
The amendment I am offering simply codifies what is current policy
and reaffirms what was assumed to be existing law for years. In light
of the administration’s stated commitment, it should require no change
in our current interrogation and detention practices. What it would do
is restore clarity on a simple and fundamental question: Does America
treat people inhumanely? My answer is no. And from all I have seen,
America’s answer has always been no.
I travel a lot around the world, usually at taxpayers’ expense.
Everywhere I go, I encounter this issue of the treatment of prisoners
and the photos of Abu Ghraib and what is perceived in the world to be
continued mistreatment of prisoners. It is harming our image in the
world terribly. We have to clarify that that is not what the United
States is all about. That is what makes us different. That is what
makes us different from the enemy we are fighting. The most important
thing about it is not our image abroad but our respect for ourselves at
Let me close by noting that I hold no brief for the prisoners. I do
hold a brief for the reputation of the United States of America. We are
Americans. We hold ourselves to humane standards of treatment of
people, no matter how evil or terrible they may be. To do otherwise
undermines our security, but it also undermines our greatness as a
nation. We are not simply any other country. We stand for something
more in the world, a moral mission, one of freedom and democracy and
human rights at home and abroad. We are better than these terrorists,
and we will win. The enemy we fight has no respect for human life or
human rights. They don’t deserve our sympathy. But this isn’t about who
they are; this is about who we are. These are the values that
distinguish us from our enemies.
I urge my colleagues to support the amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Alaska is
Mr. STEVENS. Mr. President, this is a difficult subject to discuss,
and as the minority leader indicated, no one is more qualified to talk
about this than the Senator from Arizona.
It is with some trepidation that I try to explain to him the position
of the administration and with which I happen to agree. The problem is
not the goal of the Senator from Arizona; the problem is the way it
would be carried out under this amendment. This amendment would require
that the field manual be changed. Currently the field manual has a
general description of the techniques of interrogation, and it allows
flexibility to determine what will be used in terms of interrogation
techniques based upon the circumstances that exist. We know that
terrorists train their people to deal with the techniques of our
interrogation, so those techniques change under various circumstances.
One of the situations I would call to the attention of the Senator
from Arizona is as we have visited with our people in the field, now we
have a unique circumstance of having multinational and multiagency
teams that are in the field. The question comes down to who has custody
or effective control of a person. Particularly I remember one team we
saw which had five different nationalities including the intelligence
agencies and military agencies of those nations. If this becomes law,
it is my opinion that those teams will be handled so that the United
States does not have custody, does not have control, and the kind of
treatment we seek will not be given to people who are made prisoners by
multinational teams that are searching out terrorists throughout the
This is a different war now. I believe we are seeing the beginning of
a crusade against freedom from the militant terrorist Islamic entities
throughout the world. We see the suicide bombers. We see the people who
are inflicting terrible damage from Indonesia, the Philippines, to all
throughout the Central Command, and we have teams out trying to find
Of course, one of their first jobs is to interrogate anyone they
capture to try to see if we can find out where the rest of them are and
how they are functioning. If this amendment passes, the United States
will not have effective control of those people. It will be impossible
to interrogate under the systems we have used in the past because we
cannot list in a field manual all of the interrogation techniques that
will be used. It takes thousands of pages anyway. But the techniques
vary upon the circumstances and the physical location of the people
I have some memory from World War II in China when I witnessed some
of our people–I was just a pilot, but I was conveying some of these
people from place to place who had been tortured, and I can tell you
they were brutally treated by the Chinese when we were taking these
people from place to place and they had prisoners. Some of them were
not Chinese. They were prisoners obviously of Japan. We had freed some
of them, and they were–I have memory that those who were freed were
still the responsibility of the United States.
But as a practical matter, what do you do with regard to a law that
says that all of the techniques must be listed in the field manual;
regardless of nationality or physical location, if an individual is in
the custody or physical control of the United States, they shall be
subject to only the means of interrogation listed in the field manual.
I appreciate very much what the Senator is trying to do. I think most
of us have gone down to Guantanamo to satisfy ourselves that what is
happening down there is in accordance with our concepts. Those people
are totally under the custody of the United States, and certainly from
my point of view what we saw when we were down there, we were convinced
they were receiving the kind of treatment and the interrogations were
not such that they would be affected by this amendment.
It is the people in the field, not people really handling prisoner
camps or handling interrogation of those persons who are seized by our
forces and brought to a camp or brought to a place, a jail such as we
all know has gone wrong in Iraq–but I am talking the people in the
field now, multinational teams, and their job is to find out what these
people who are captured know in order to prevent further acts of
terrorism. It is a very touchy thing to deal with, I know, to really
talk about it.
The administration has told us that they are complying with all the
constitutional, statutory, treaty obligations that apply to U.S.
interrogation practices. They are telling us that they know the
Convention Against Torture requires the United States to ensure that
torture is a crime whether committed anywhere by a U.S. national or to
prevent any of the entities that are under the control of the United
States from any acts of cruel, inhumane, or degrading treatment or
punishment. We totally agree with the efforts of the Senator from
Arizona in that regard, and the President has directed the Armed Forces
to treat any detainee humanely and comply with the appropriate and
consistent military procedures that are consistent with the Geneva
That is a given. But this amendment goes further. This amendment will
cover those entities with multiple nationalities, multiple agencies,
and because of the circumstances our people in the past have taken
control of these, and some of the activities of the other nationalities
involved would not be consistent with this amendment. I say what will
happen in the future is we will just not take control of them. This
will be a deterrent to our people from taking the leadership, and as
they do, they will do everything they can to comply with the Geneva
Conventions. It is those circumstances, the new type of entities we use
to combat terrorism that worries the administration. So I can say–and
I know the Senator from Arizona understands–it is the position of the
administration that this amendment goes too far.
We will not make a point of order. There is no point of order that I
know will apply to it anyway. But I do believe it is a matter that
ought to be approached with caution. What does a multinational team do
if they pick up a prisoner who they believe can give them information
as to the location of terrorists who have committed severe acts of
terrorism? The decision will be made, I am sure, that we not take
custody. The custody will go to other nationalities involved in the
team. We will have no control. I believe the amendment of the Senator
from Arizona is going to carry, but I believe we
have to give serious consideration to the implications I have just
mentioned, and I hope the Senate will keep that in mind.
I yield the floor.
The PRESIDING OFFICER (Mr. McCain). The Senator from South Carolina.
Mr. GRAHAM. Mr. President, No. 1, I would like to recognize that
Senator Stevens, who has so honorably served our country, is genuinely
concerned about the extent of this amendment. For those of you who are
listening, Senator Stevens was a World War II pilot. He has gone in
harm’s way in defending his country. We have in the Chamber his
counterpart on the Appropriations Committee, Senator Inouye, a Medal of
Honor winner, and the Senator occupying the chair is a former POW. The
food chain is going down when I am speaking. But what I want to try to
discuss today is from a lawyer’s point of view and really from a
citizen’s point of view.
I have had the honor for the last 20-some years to be a member of the
Judge Advocate General’s Corps of the Air Force, a prosecutor, a
defense counsel, and I am now a Reserve military judge. That experience
has been a wonderful experience. I have received more out of it than
given. Wearing the uniform in any capacity is quite an honor, and to be
a military lawyer has been one of the highlights of my life. I have
never been shot at. I had some clients who probably wanted to kill me.
But other than that, I do understand this debate pretty well. To me, it
is not much of a debate. We have as a nation adopted the position that
Senator McCain described when it comes to how you handle people in your
care and custody.
One thing I would respond to Senator Stevens is that the Army Field
Manual has sort of been the bible for interrogation for decades. If you
are worried, and I think it is a fair question, is there anything in
the Army Field Manual that would unfairly restrict the ability of the
United States to gain good information and defend ourselves from a
bunch of rogue thug murderers, the answer is no. You don’t have to
trust me there. Go to Gitmo and ask the question of the people who are
doing the interrogation of these terrorists: Is there anything in the
Army Field Manual as written or being drafted that would impede your
ability to gather good information? And the answer they told me was no.
So what is the value of having it? The value of having
standardization when it comes to interrogation, detention, and
prosecution is of immeasurable benefit to the force because, as Senator
McCain indicated, a lot of the people implementing these policies when
it comes to interrogation, detention, and prosecution are in harm’s way
themselves. One of the things we have learned in this whole war on
terror is that this Nation needs to have effective interrogation
techniques, effective detention policies, and effective prosecution
tools to hold the terrorists responsible because you have two
No. 1, you have the terrorist community. I want every terrorist to
know, if you are not killed on the battlefield and you are captured,
things are going to happen to you. You are going to be interrogated
aggressively, but we are going to treat you humanely, not because we
worry about your sensitivities but because we don’t want to become who
we are interrogating. So we are going to keep that in place.
The President has said whether the Geneva Convention applies or not
we are going to treat everybody in our charge humanely, not because of
them but because of us. And the debate here is what happens when
somebody in your charge is not covered by the Geneva Conventions. It is
easy when someone is a legal combatant. We know what the rules are. We
have the Geneva Conventions. We have been a signatory for 60 years. The
Army Field Manual covers that situation. The war on terror is
different. Vietnam was different. We had people who were lawful, whom
we were able to interrogate, detain, and prosecute without changing who
The Army Field Manual as a one-stop shop to guide the way we handle
lawful combatants and enemy combatants is absolutely necessary if for
no other reason than to protect our own troops. That is why we are
doing this. That is one of the main reasons–to make sure that your own
troops don’t get in trouble because they are confused.
I have been a military lawyer for 20 years. We have confused people
about as much as you can possibly confuse them. And this all started
with the Bybee memo. I think we need to know the history of where we
have been, to find where we are before we take corrective action.
Right after 9/11, this Nation was shocked and shaken. We tried to
make sure we could secure our freedom and security and do a balancing
act, and we have done a pretty good job of it. How can you be secure
and still free? How can you fight the worst enemy and still not become
the worst of yourself? I think you can.
The Bybee memo was an effort by people at the Justice Department to
take international torture statutes that we had ratified and been party
of and have the most bizarre interpretation basically where anything
goes. It was an effort on the part of the Department of Justice lawyers
to stretch the law to the point the law meant nothing. And early on in
this process, those in uniform who happened to be military lawyers
stood up and spoke.
I am going to read from General Sandkuhler, Brigadier General of the
U.S. Marines, who was one of the judge advocates to review this change
in policy, this very liberal interpretation of what torture might be.
The common thread among our recommendation is concern for
servicemembers. OLC [Office of Legal Counsel] does not
represent the services; thus, understandably, concern for
servicemembers is not reflected in their opinion. Notably,
their opinion is silent on the UCMJ and foreign views of
The general is telling the civilians that we live in a different
world. This is a complex process, and if we interpret a torture statute
in the way you are suggesting, we are going to get our own people in
We nonetheless recommend that the Working Group product
accurately portray the services’ concerns that the
authorization of aggressive counter-resistant techniques by
servicemembers will adversely impact the following:
a. Treatment of U.S. servicemembers by Captors and
Compliance with International Law.
We have been the gold standard. We take this moral high ground to
make sure if our people fall into enemy hands that we will have the
moral force to say, You better treat them right. If you don’t practice
what you preach, nobody listens. Sometimes that does not happen, but
you don’t want to erode the principle because it puts people at risk.
Criminal and Civil Liability of DOD Military and Civilian Personnel
in Domestic, Foreign, and International Forums.
All the reasons all the JAGs wanted to push back is that you are
going too far if you interpret the statutes as being proposed by the
Department of Justice. Some of the techniques violate the Uniform Code
of Military Justice.
Senator Stevens is concerned about joint operations. Here is the
rule: If you are wearing America’s uniform, you are going to be judged
by American standards. You will never be prosecuted unless you do
something inconsistent with our law. If you are part of an
international group and wondering what to do with a prisoner in front
of you, I suggest we let our troops know there are rules they must
follow, and if they see anything they think is out of bounds, report
The best thing we can do for anybody operating in the war on terror
is give them clarity about what to do in very stressful situations.
There is the combat role. What do you do with somebody who is captured?
You do what the President says: You treat them humanely, you
interrogate them by standards we can live by that will not erode our
Where have those standards been in the last 50 or 60 years? The Army
Field Manual. You can change the Army Field Manual to adapt techniques
to the war on terror. There is a classified section of the Army Field
Manual. There is nothing about its adoption that limits the ability to
aggressively interrogate people to get good intelligence. But if you
want to torture people, the Army Field Manual says no and the President
says no. It is now time for Congress to say no, and that is what this
amendment is about.
Congress has been AWOL when it comes to the war on terror in terms of
interrogation, detention, and prosecution, and we have done it in a way
that weakens our Nation. We are the strongest when all three branches
are on the same sheet of music. It is important, if we are going to win
this war on terror, not to give the moral high ground to your enemy and
to have laws that every branch of Government understands and the people
implementing these laws are not confused and they will not get in
trouble by following what we have said. Congress has been AWOL. It is
now time for Congress to step up to the plate and offer assistance in
the war on terror to the administration. That is exactly what we are
I asked Judge Roberts, during the confirmation process, about this
whole line of questioning. I said:
Do you believe that the Geneva Convention, as a body of
law, that it has been good for America to be part of that
ROBERTS: I do, yes.
ROBERTS: Well, my understanding in general is it’s an
effort to bring civilized standards to conduct of war–a
generally uncivilized enterprise throughout history; an
effort to bring some protection and regularity to prisoners
of war in particular. And I think that’s a very important
It is an important international effort, and al-Qaida should not be
considered a lawful combatant under Geneva Conventions. But it is about
us, as Senator McCain said. When we catch someone who is not under the
Geneva Conventions, it is important that our people not only follow the
dictates of the President–treat them humanely–but they know what to
do. We are giving confusing policies in this new war on terror, this
hybrid between a lawful combatant, enemy combatant, and regular
combatant. We need to standardize our techniques.
How do we do that to make America the strongest? How can we
effectively do that? We get the Congress involved, we get the
administration involved, and we get the courts involved. Right now we
have two court cases that are all over the board. Judges are telling
us–Justice Scalia in one of the court cases is screaming out that
Congress has been absent here. Congress needs to speak because the
courts are not equipped to run Guantanamo Bay. The courts are not well
equipped to interpret military policy, and they need guidance from
I asked Justice Roberts about that. One of his favorite Justices is
Justice Jackson. Justice Jackson in the Youngstown steel case basically
said that the executive branch is at its strongest when it has the
expressed or implied consent of Congress.
When I met with Judge Roberts on this whole issue about detention,
interrogation, and prosecution of enemy combatants, he said this is an
area where the courts would welcome congressional involvement.
As a result of us being AWOL in Congress, there is a Supreme Court
decision, 5 to 4, giving enemy combatants at Guantanamo Bay habeas
corpus rights. They are noncitizens, and they are able to go to Federal
court because there is no clear direction from Congress about how to
treat these people. Mr. President, 185 of them have lawyers, and they
are absolutely overrunning the place. To me, it is absurd that an enemy
combatant, noncitizen terrorist has habeas corpus rights, and the
reason they do is because we are giving no guidance to the courts about
how we want these people treated.
I believe it is now time to give guidance to the courts, to the
country, to the international community, to those in uniform serving
us, and to the terrorists about what we are going to do, and Senator
McCain’s amendment has got it. It is the authority that has been
missing in this great effort to win the war on terror. It is now
bringing standardization into an area which had been previously
chaotic. Every military lawyer who has been looking at the policies
proposed has come away confused.
Let me tell you unequivocally that the military legal community
understands what Senator McCain is doing and wholeheartedly adopts his
efforts, that not only would it be good for the Congress to speak with
the same authority as the President, but it would help the courts, and
it would be good for our troops if they had the protection of
If you want to help our troops who are trying to win this war on
terror, give them the cover they need and the guidance they need. Do
not throw them to the wolves. We have had people prosecuted because
they have been given an impossible task. They have been given the task
of interpreting laws that make no sense. And if you really do want to
stand by the troops, give them guidance. Give them the guidance and the
tools they can use to get good information, not bad information, and
get information in a way that does not embarrass our Nation and put us
Abu Ghraib has been a giant step back, a huge step back, and one of
the reasons we had Abu Ghraib is because nobody there knew what they
were doing. They were not trained. They were overwhelmed. They did not
have consistency when it came to interpreting the interrogation
policies because the policies made no sense. Some people are in jail
now. Most of them are in jail because of their own misconduct. Some
people have had their careers ruined because they are trying to
interpret policies nobody can understand.
That is a huge deviation from the way we conducted war for 50 to 60
years, and we paid the price. We are allowing courts to come in and do
things they are not equipped to do because we have been AWOL as
Congress. The best thing we can do to win this war is have policies
that allow us to effectively interrogate, detain, and prosecute
terrorists without ceding the high ground. And this amendment is a
I am going to introduce every JAG memo written about the original
policies. Their concern is we are putting our own people at risk.
This is General Rives, my current boss:
Should any information concerning the exceptional
And they were exceptional–
become public, it is likely to be exaggerated/distorted in
both the U.S. and international media. This could have a
negative impact on international, and perhaps even domestic,
support for the war on terrorism. It could likewise have a
negative impact on public perception of the U.S. military in
This was written 6 February 2003. He was foretelling what was going
to happen. These are not ACLU lawyers. This is a Marine Corps general
and a two-star general in the Air Force who dedicated their lives to
defending their country and holding us up to be the great Nation we
I urge my colleagues to please adopt this amendment overwhelmingly.
It will do a great service to future Presidents. It will be a great
turning point in the war on terror. It is needed. It is a simple
amendment. It uses the Army Field Manual as the bible for interrogation
for lawful combatants and enemy combatants. You can write it the way
you need to. It does not lock us into a position that would be
undermining our efforts to get good intelligence. It simply will be a
document that covers how we behave in every known situation from
Guantanamo Bay to the battlefield in Afghanistan. It will be something
that will help our troops understand what they can and cannot do. It
will make us stronger as a nation.
The second part of the amendment is the most important. It says that
we as a nation will do what the President said: We will treat everybody
in our charge humanely whether they deserve it or not because, as
Senator McCain said, it is about us, it is not about them. And it is
now time for Congress to speak. It will help us in court. When the
courts understand that the Congress has come up with a plan in support
of the administration to interrogate detainees, they will give great
deference to that situation. When Congress is absent, they are going to
be confused, and they are going to do some things they really do not
want to do.
This is a very important moment in the war on terror. This brings us
back into the light out of the darkness. It allows us to interrogate
enemy combatants, unlawful combatants in a way to get good intelligence
without undermining who we are as a people. It is necessary, it is
legally necessary. It will strengthen our hand in court. It is very
necessary to create certainty out of confusion for our troops.
One thing I can say with absolute certainty is that we have let the
troops down when it comes to trying to give them guidance about what to
do in very stressful situations. We are trying
to give them the armor they need to protect themselves from a terrible
enemy. We are trying to give them the intelligence they need to get
ahead of the enemy. The best thing we can do is give them the guidance
they need to make sure we can win this war on terror and never lose the
moral high ground.
I urge every person to think long and hard about this amendment. To
vote no on this amendment, in my opinion, dramatically weakens us as a
nation. To vote yes reinforces our values, provides good guidance to
make sure we get good intelligence, and protects our own people from
I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee is recognized.
Mr. ALEXANDER. Mr. President, it is an honor to serve in the same
body with the Senator from Hawaii, a Congressional Medal of Honor
winner, and with the Senator from Arizona because of his distinguished
service in Vietnam. Whenever the Senator from Alaska, a pilot in World
War II, who devoted most of his career here to understanding our
defense policies, urges caution, I try to listen and pay attention. But
I rise today in support of the amendment by the Senator from Arizona to
the Defense appropriations bill, and I ask unanimous consent to be
added as a cosponsor.
The PRESIDING OFFICER (Mr. Graham). Without objection, it is so
Mr. ALEXANDER. Mr. President, I have listened carefully to the debate
about whether it is appropriate for Congress to set the rules on the
treatment of detainees. I have listened carefully, but for me the
question isn’t even close.
The people, through their elected representatives, should set the
rules for how detainees and prisoners under U.S. control are treated
and interrogated. In the short term, the President can set the rules,
but the war on terror is now 4 years old. We do not want judges making
up the rules. We Republicans often say we don’t like to see judges
legislating from the bench. So for the longer term, the people should
set the rules. That is why we have an independent Congress. That is our
job. In fact, the Constitution says quite clearly that is what Congress
should do. Article I, section 8, of the Constitution says that Congress
and Congress alone shall have the power to make “Rules concerning
Captures on Land and Water.” So Congress, as the Senator from South
Carolina said, has a responsibility to set clear rules here.
But the spirit of this amendment is really one that I still hope the
White House will decide to embrace. In essence, as has been pointed
out, the amendment codifies military procedures and policies–
procedures in the Army Field Manual and procedures regarding compliance
with the Convention Against Torture signed by President Reagan. These
amendments uphold or codify policies and procedures the administration
says we are following today and intend to follow moving forward.
As the Senator from Arizona pointed out, his amendment would do two
things: One, prohibit cruel, inhumane, or degrading treatment or
punishment of detainees. It is in specific compliance with the
Convention Against Torture that was signed by President Reagan. The
administration says we are already upholding that standard when it
comes to treatment of detainees, so this should not be a problem.
Secondly, the McCain amendment states simply that the interrogation
techniques used by the military on detainees shall be those specified
by the Army Field Manual on Intelligence Interrogation. The military,
not Congress, writes that manual. We are told that the technique
specified in the manual will do the job. Further, it is under revision,
as has been pointed out, to include techniques related to unlawful
combatants, including classified portions that will continue to give
the President and the military a great deal of flexibility.
If the President of the United States thinks these are the wrong
rules, I would hope he would submit new rules to Congress so that we
can debate them and pass them. I made this same suggestion in July, but
no alternative rule has been suggested so far. I am one Senator who
would give great weight to the President’s views on this matter.
This has been a gray area for the courts over time. In this gray
area, the question is, Who should set the rules? In the short term,
surely the President can. In the longer term, the people should,
through their elected representatives. We are their elected
representatives. It is time for us to act. It is time for us to set the
rules. We do not want courts legislating from the bench and writing the
rules. That leaves us to do our job.
In summary, it is time for Congress, which represents the people, to
clarify and set the rules for detention and interrogation of our
enemies. If the White House would prefer different rules, I hope the
President will tell us what rules and procedures he needs to succeed in
the war on terror.
If the argument is whether it is appropriate for Congress to set
clear standards, I believe Congress should set standards and will vote
to support the amendment of the Senator from Arizona.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SUNUNU. Mr. President, I rise in support of the McCain amendment.
There has been a lot of discussion about the new challenges we face in
dealing with organized terrorist cells around the world. The complexity
and the nature of those terrorist threats requires us to engage in ever
more combat activity that is nonconventional. We want to make sure we
do what we can to secure transportation and infrastructure, that we do
what we can to deploy technology, that we improve our preparedness. But
it does not change the fact that in dealing with terrorism our greatest
asset or our greatest tool will be intelligence gathering. Intelligence
gathering will require direct engagement with and interrogation of
suspects, trying to gather information that can help us disrupt these
We are trying to gather information that can help us prevent future
attacks. That process of interrogation, needless to say, is complex and
challenging. We have seen many of the problems and some of the abuses
that have been documented by some of the previous speakers.
I think this calls out for a process that is more clear and better
defined; interrogation tools, techniques, and procedures that we can be
sure are applied consistently in the field. That is why I think this
amendment is so important. That is why I think we have a fundamental
obligation to support this amendment or at least some approach to
clarify these processes, standards, and procedures used for
I can think of two basic reasons that this is important and that it
will benefit our troops and our country. First, by establishing clear
lines, procedures, and process for interrogation, we help our own
troops, whether working in the uniformed services or working in covert
operations or other intelligence-gathering activities. We can be sure
that they know what the allowances are, that they know what the process
is, that they know what the procedure is, and, in effect, we provide
them with appropriate protection and safeguards in doing their job.
In a similar way, we provide those individuals with protection in the
field of combat should they be taken as a prisoner of war. We want to
make sure our enemies do not have justification for using any
interrogation techniques that we would consider to be improper, cruel,
First, we are providing protection and establishing this clarity.
Second, I think we are sending an important message to our allies and
our adversaries–a message that while the legal standards that are
enshrined in the Constitution do not apply to everyone in the world,
our commitment to these basic principles of life, liberty, and the
pursuit of happiness, our commitment to basic principles of human
dignity and human rights do apply and we must find ways to define these
standards, to clarify this commitment, even in the area of
interrogating enemy combatants and interrogating potential terrorists,
suspected terrorists, in the field.
So we send a clear message to our allies and adversaries that our
commitment to these principles is real, that our desire to establish
uniform standards is real.
I do not know, not having the experience of some of my colleagues,
whether this is the perfect standard, whether the requirements and the
precise language in this amendment are ideal, but I think this is a
fair-minded approach that allows the military itself, through its code
of conduct, to establish these definitions that allows for the
establishment of a classified annex to deal with covert operations,
deal with the most sensitive of captives and the most sensitive of
interrogations so that we are not undermining the intelligence
gathering that we are attempting to facilitate.
In fact, the approach that is taken has been endorsed, as was
indicated by the Senator from Arizona, by many who have had very close
and intimate experience with this type of interrogation. In the letter
that Senator McCain entered into the Record there were two particular
points that were made that I want to underscore, and that is, first,
“the abuse of prisoners hurts America’s cause.” I think that is just
a fundamental and important underlying point in this debate, that
prisoner abuse hurts our cause. It hurts the moral arguments we are
trying to make, the political arguments we are trying to make, and it
does put our own men and women serving in uniform or in intelligence-
gathering operations at risk.
Second, the United States should have one standard for interrogating
enemy prisoners that is effective, lawful, and humane. That point
brings me back to the concern that we send a clear message to our
allies and adversaries that our commitment to human dignity and human
rights is universal.
So I am pleased to support the amendment. I think it is a very
important first step. I think it gives the military the flexibility
that it deserves, and I hope the military will use that flexibility
well to add clarity, standards, process, and procedure that will enable
us to continue to interrogate prisoners and continue to gather
intelligence in dealing with these terrorist networks around the world,
but do it in a way that is consistent with the intent, the principle,
and the philosophy of our Constitution.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I rise today in support of amendment No.
1977, which has been offered by Senator McCain, the Presiding Officer,
Senator Graham, Senator Hagel, Senator Smith, and Senator Collins.
First, let me commend Senator McCain for the courage that he has shown,
again, in offering this amendment. There is not a single person in
Congress who can speak with more authority than Senator John McCain on
the treatment of prisoners of war.
I have come to this floor many times to address this issue, but my
voice is weak compared to his. He has lived this experience in a way
that none of us ever have or ever will. I believe his voice should be
listened to more than some because he has given so many years of his
life to this country and suffered as a prisoner of war personally.
This should be a noncontroversial amendment. It really requires two
very simple and straightforward things: First, that the treatment of
detainees comply with the Army’s Field Manual on Interrogation; and,
second, that the United States may not subject anyone in our custody to
torture or cruel, inhumane, or degrading treatment. It is that
This amendment would affirm our Nation’s very important, longstanding
obligation not to engage in torture or other cruel treatment. This
standard is enshrined in our U.S. Constitution and in several treaties
which our Nation has adopted as the law of the land.
Just as important, this amendment would make the rules clear for our
soldiers so they know what the standards are that they should follow in
the treatment of detainees. We owe this to our troops. If they are
going to risk their lives every day in defense of our country, we
should give them standards of conduct that are clear and unequivocal.
The prohibition on torture and other cruel treatment is deeply rooted
in the history of America. Our Founding Fathers made it clear in the
Bill of Rights that torture and other forms of cruel treatment are
These principles have even guided us during the times of great
national testing. During the Civil War, President Abraham Lincoln asked
Francis Lieber, a military law expert, to create a set of rules to
govern the conduct of U.S. soldiers in the Civil War. The result was
the Lieber Code. It prohibited torture and other cruel treatment of
captured enemy forces. It really was the foundation for the Geneva
After World War II, the United States took the lead in establishing a
number of treaties that banned the use of torture and other cruel
treatment against all persons at all times. There are no exceptions to
The United States has ratified these treaties, including the Geneva
Conventions and the torture convention. They are the law of the land.
Twice in the last year and a half, I have authored amendments to
affirm our Nation’s longstanding position that torture and other cruel
treatment are illegal. Twice the Senate unanimously approved my
amendments. Both times the amendments were killed behind closed doors
of conference committees. Both times these amendments, which I offered
and which were accepted by the Senate, were stricken from the bill at
the insistence of the administration.
As I understand it, the administration does not support Senator
McCain’s amendment. I sincerely hope that after this debate, they will.
Why would the administration oppose an amendment that affirms our
longstanding obligation not to engage in torture or cruel, inhumane,
and degrading treatment? Sadly, it is because the actions that they
have taken on this critical question have been unclear and
In early 2002, Alberto Gonzales, who was then-White House Counsel,
recommended to President Bush that the Geneva Conventions should not
apply to the war on terrorism. Colin Powell, former Chairman of the
Joint Chiefs of Staff, who was then-Secretary of State, objected
strenuously to Attorney General Gonzales’ conclusion. He argued that we
could effectively fight the war on terrorism and we could live by the
Geneva Conventions, which have been the law of the land in America for
over half a century.
Unfortunately, the President rejected Secretary Powell’s wise counsel
and instead accepted Attorney General Gonzales’ recommendations. In
February of 2002, he issued a memo determining that the Geneva
Conventions would not apply to the war on terrorism.
Then the administration unilaterally created new policies on the use
of torture. I am referring to, among other things, the well-known Bybee
memo of August 1, 2002, which has been publicly disclosed. They have
claimed that the President has the right to set aside the law that
makes torture a crime. They have narrowly defined torture as limited
only to abuse that causes pain equivalent to organ failure or death.
They claim that it is legal to subject detainees to cruel, inhuman,
and degrading treatment even though Congress has ratified the torture
convention, which explicitly prohibits cruel, inhuman, and degrading
treatment. This fact was verified by Attorney General nominee Gonzales
during confirmation hearings before the Senate Judiciary Committee, in
response to a question which I asked him directly.
Despite all of this, the administration continues to insist that
their policy is not to treat detainees inhumanely.
What does this mean? Recently, I asked Timothy Flanigan this
question. He was the Deputy to White House Counsel Alberto Gonzales.
Mr. Flanigan has been nominated to be the Deputy Attorney General, the
second highest law enforcement official in the Nation. Mr. Flanigan
said inhumane treatment is “not susceptible to a succinct
I asked him whether the White House had provided any guidance to our
troops on the meaning of inhumane treatment. He acknowledged that they
I asked Mr. Flanigan about specific abuses. I asked him: would it be
inhumane to beat prisoners or subject them to mock executions? He said,
“It depends on the facts and circumstances.”
I cannot imagine facts and circumstances in which it would be humane
to subject a detainee to a mock
execution. Last week an editorial in the Washington Post called Mr.
Flanigan’s answers to my questions, “evasive legalisms in response to
simple questions about uncivilized conduct.”
How are our service men and women supposed to know how to treat
detainees when high-ranking administration officials do not seem to
know or refuse to respond to these direct questions?
The administration acknowledges that some people held by our
Government have been mistreated. Some have been tortured. They say
these abuses were committed by a few bad apples, rogue soldiers on a
But is it any wonder that people have been abused when the
administration and Congress do not make it clear that American policy
prohibits subjecting detainees to cruel and degrading treatment? Is it
any wonder that people have been abused when we refuse to repudiate un-
American practices such as beating detainees? The administration should
not point the finger of blame at our troops for the logical
consequences of muddled and often contradictory policies.
I have been to Iraq. I have spent time with our troops. I have been
humbled by their courage and sacrifice. I have visited Walter Reed
Hospital many times. I have spoken with young soldiers w