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Leahy Presses For Closer Oversight On Iraqi Prison
Abuses
[Senator Patrick
Leahy (D-Vt.), the ranking Democratic member of the Senate Judiciary
Committee, pressed Thursday for greater congressional oversight in the
abuses inside prisons in
Iraq and Afghanistan. Leahy’s
statement from the Committee’s executive business meeting Thursday
morning follows.]
___________________
Opening Statement
Of Senator Patrick Leahy
Executive Business Meeting
Senate Judiciary Committee
May 13, 2004
I
have seen the graphic pictures of the barbaric murder of Nicholas
Berg, an atrocity of such depravity that it is hard to fathom. I have
also seen the additional photographs of abuse at prisons in
Iraq that were made available by the Pentagon for three hours
yesterday to Senators.
My
heart goes out to the Berg family. Their grief is hard to imagine.
If we can be of assistance to them or can help Senator Specter assist
them if they want additional information about the hunt for his
killers or about his delayed departure from the dangerous situation in
Iraq, we should do whatever we can to help. I will ask
the FBI about its role in the process and his interrogation and what
steps American authorities took to secure his safety and his safe
departure from the war zone.
A Slow Response, Then A Rapid Defense
In
Senate hearings before Appropriations, Armed Services and other
committees over the past couple of weeks, many of us have probed for
answers and a better understanding of what has occurred during the
U.S. occupation of Iraq. It is more than a year since
the President declared major combat operations concluded. It is more
than a year since he replaced General Jay Garner with Ambassador
Bremer. It is more than 16 months since international human rights
organizations sought to alert the Administration to prison and
detention abuses in Afghanistan and elsewhere and 14 months since I
began to ask oversight questions of the Administration based on
reports of abuses.
It
appears that reports and concerns about abusive practices met with
little response, and it was only in January, when the military was
confronted with the photographic evidence of the abuses, that they
began to take it seriously. Five months later, the Administration has
its talking points and appears with its supporters to be circling the
wagons.
I
commend Senators on both sides of the aisle -- for example, Senator
Graham as well as Senator Kennedy, Senator McCain and Senator Levin --
for their efforts during the Armed Services hearings to get to the
truth.
I
was disappointed to see President Bush leap from his declarations last
week that we needed to let the investigations take their course to
determine what transpired and why, to a definitive declaration at the
beginning of this week that the senior civilian leadership at the
Pentagon is doing a superb job. The Administration and its supporters
have prejudged this matter and seem already to have determined that,
no matter what the facts may turn out to be, there is to be no
accountability beyond those serving in the prison.
At
the Appropriations hearing yesterday I asked Secretary Rumsfeld to
answer the question he posed last October in a memo: Are we
capturing, killing or dissuading more terrorists every day than the
madrasas and radical clerics are recruiting, training and deploying
against us? He said yesterday that he did not know the answer.
Last week, at a hearing before this Committee, I asked a Justice
Department official whether the Department is investigating these
allegations of torture and abuse. The answer I received amounted to
“no.” In particular, I noted the jurisdiction of the Department of
Justice and the FBI under the Military Extraterritorial Jurisdiction
Act of 2000. This is a measure I worked on when Senator Sessions
introduced it in 1999, and which this Committee reported out and that
the Senate considered and passed twice in 1999 and 2000, to clarify
what some viewed as a loophole in the applicability of our criminal
laws to those who accompany our military overseas but who are not
subject to the Uniform Code of Military Conduct. Curiously, the
Pentagon did not even get around to proposing rules to implement the
law until just recently, even though the law was used last year to
prosecute a spouse who was brought back from Turkey and
charged in U.S. federal court in connection with the death of an Air
Force staff sergeant.
Given the reports and allegations of abuses of Iraqi prisoners that
involved civilian contractors, given the statement of the Chairman of
the Joint Chiefs of Staff that the Department of Justice would handle
the prosecutions of civilian contractors, and especially given the
assurances of the civilian leadership that we will investigate and get
to the bottom of these matters, I am troubled at the passivity being
displayed by the Department of Justice.
Although we now know that the Administration has known about
allegations of abuse of Iraqi prisoners for a year and about the
pictures documenting the abuses for five months, it was only during
these last few weeks that the American news media – not the
Administration -- informed Congress, the American people and the world
of these practices. The shock and outrage expressed by senior
Administration officials was hard to take in light of the
Administration’s knowledge of these allegations and various
investigative reports it has had for some time — matters it had
knowingly kept from the Republican and Democratic leadership of
Congress and from relevant Committees.
Oversight Requests Brushed Aside
Two weeks ago I urged our Chairman to hold a hearing on these matters
within our jurisdiction. I believe we should be concerned about civil
liberties, about prison practices and conditions, about whether those
affiliating with our Government are complying with our commitments to
the rule of law, including international law. In particular, I had
received assurances from the General Counsel of the Department of
Defense, William J. Haynes -- someone who the Administration has
nominated to a lifetime appointment to the federal judiciary --
regarding our compliance with the Geneva Convention and our compliance
with the Convention Against Torture.
Last fall I raised a number of oversight concerns about a Syrian-born
Canadian citizen, Maher Arar, who was
detained by U.S. officials and then
deported to Syria, even though he was carrying a Canadian passport.
Mr. Arar claimed that he was physically tortured
during his detention in Syria, a nation with a
well-documented history of state-sponsored torture. In fact,
President Bush declared on November 7, 2003, that Syria has left “a
legacy of torture, oppression, misery, and ruin” to its people. This
is a country against which President Bush ordered sanctions just this
week under the Syria Accountability Act.
I wrote to FBI Director
Mueller and Attorney General Ashcroft during the week of
November 17, 2003, for more information on the case.
I finally received a letter in response last week. The
Department, which answered for the FBI, said that it could not answer
my questions because Mr. Arar has filed a lawsuit under the Torture
Victims Protection Act, among other laws. This is a rather convenient
response for the Department to offer
six months after it
received my letter. But the truth is that Mr. Arar filed his suit on
January 22, 2004, a full two months after I wrote to the Attorney
General and the FBI. The Department could have, and should have,
responded promptly to my questions on this matter. Instead, it chose
to follow its familiar pattern of delay and obfuscation. Perhaps now
the Administration will agree that the Senate deserves an answer.
Stories like Mr. Arar’s are appalling and, if true,
seriously damage our credibility as a responsible member of the
international community.
Abuse Allegations Brushed Aside
Unfortunately, accusations of
abuse by military personnel have surfaced several times since we began
to wage war in Afghanistan and Iraq. A March 4, 2003,
article in The New York Times
described the treatment of Afghan prisoners at the Bagram air base
after two young prisoners died in U.S. military custody. Other
prisoners described being forced to stand naked in a cold room for 10
days without interruption, with their arms raised and chained to the
ceiling and their swollen ankles shackled. They also said they were
denied sleep for days and forced to wear hoods that cut off the supply
of oxygen. After 17 months of inquiries to the Administration, Human
Rights Watch issued a report documenting similar charges after
reviewing U.S. practices in Afghanistan over the past two years.
After hearing from military sources a year ago, the Committee on
International Law of the Association of the Bar of New York City
compiled a 110-page report examining U.S. and
international legal standards governing the treatment of prisoners.
Military officers reportedly told the New York City Bar
representatives that the DoD general counsel was instrumental in
creating “an atmosphere of legal ambiguity” that has contributed to
the mistreatment of prisoners in Afghanistan and Iraq.
The February 2004 report by International Committee of the Red Cross (ICRC)
includes charges of brutality resulting in death, physical and
psychological coercion, and prolonged solitary confinement. The ICRC
reported these findings to Coalition Forces throughout 2003, and yet
the mistreatment continued. U.S. forces systematically
violated the Geneva Conventions, the ICRC report found. It described
the abuse as “standard operating procedure.”
Conduct Beneath Our Great Nation
The inhumane treatment of prisoners, whoever they are, is beneath a
great nation. It is also illegal. That is the law whether
U.S. military officers engage in such conduct themselves, or
they turn over prisoners to the government agents of another country
where torture is commonly used, in order to let others do the dirty
work. It is also the law when contractors or subcontractors of the
U.S. military are involved.
I
have warned for years as well as in these recent weeks that we place
Americans in greater dangers when we engage in and condone treatment
that we seek to prevent around the world. It is hypocritical, it is
wrong and it cannot be tolerated. It forfeits our credibility in
criticizing other governments for treating prisoners inhumanely if we
do not conform to recognized Geneva practices for
prisoners. It undermines our reputation as a nation of laws. It
damages our national security and foreign policy interests abroad.
And it invites others to use similar tactics against our soldiers and
citizens.
Administration’s Empty
Assurances To Congress
When allegations of rendition
and possible breaches of the Convention Against Torture
(“Torture Convention”) surfaced in the summer
of 2003, I wrote to Administration officials asking for assurances
that the United States is complying with our obligations under this
Convention. I received a response from the Mr. Haynes, the DoD
counsel, that contained a welcome commitment by the Adminsitration
that it is the policy of the United States to comply with all of our
legal obligations under the Torture Convention. I wrote to Mr. Haynes
again for clarification on a number of points, such as how the
Administration reconciled this statement of policy with reported acts
of rendition and accusations of the use of interrogation techniques
rising to or near the level of torture. After two months with no
response, another letter, this one not from Mr. Haynes himself but
from a subordinate, was delivered late at night on the eve of Mr.
Haynes’ November 19, 2003, confirmation hearing for a seat on the
Fourth Circuit Court of Appeals. That letter was completely
unresponsive to my questions.
As it turns out, the
reassurances I was given, the Senate was given and the American people
were given were not true. An editorial in
The Washington Post on May
11 said it well: “On June 27 President Bush pledged in a
speech that the United States would not use torture on detainees in
the war on terrorism. The same day, the
Defense Department’s general counsel released a letter specifiying
that ‘all interrogations, wherever they may occur,’ would not violate
prohibitions in the U.S. Constituion against cruel and unusual
punishment. It turns out those assurances were false.”
The Washington Post wrote
again yesterday on the assurances given about strict adherence to the
Geneva Conventions in Iraq by Administration officials, this time by
Under Secretary of Defense for Intelligence Stephen A. Cambone. The
editorial noted that “these assertions are contradicted by
International Red Cross and Army investigators, by U.S. generals
overseeing the prisoners, and by Mr. Cambone himself.”
A Nominee Who Requires Further Review
With respect to Mr. Haynes, Senator Kennedy has sent him inquiries in
connection with these recent revelations. Senator Durbin has urged
the Chairman to hold another hearing on Mr. Haynes’ nomination. As
precedent for such a hearing on a nomination already on the calendar,
but reported by this Committee without a single affirmative vote from
a Democratic Senator, I would point to the Chairman’s practice of
having hearings on legislation and a constitutional amendment after
they are reported and pending on the Senate calendar. I also recall
that in connection with the judicial nomination of Judge Frederica
Massiah-Jackson, a second hearing was held after that nomination had
been reported to the Senate. I hope the Chairman will reconsider and
that the declaration by his spokesperson, that no additional hearing
will be held, will be reconsidered.
During Mr. Haynes’ nomination proceedings earlier this year, many
Members of this Committee questioned him about his legal work on
issues concerning detainees and interrogation tactics. His answers
were overwhelmingly non-responsive, and Members are continuing to
pursue responsive answers to their questions, to no avail.
Accordingly, many Members passed on voting for his nomination in
Committee.
Since the time of Mr. Haynes’ Committee vote, several press reports
and editorials have directly implicated him in the loosening of legal
standards for the detainment and interrogation of detainees in
Iraq. Many of us remain concerned about the permissive
environment that may have fomented the cruelty evidenced by the
photographs taken at Abu Ghraib. According to press reports, defense
contractors who participated in the interrogation of Iraqi prisoners
were operating in a “legal twilight zone.” These reports reflect
directly on the actions of the lead lawyer at the Defense Department.
At
this week’s hearing before the Senate Armed Services Committee, the
Under Secretary of Defense for Intelligence offered to have Mr. Haynes
brief Senators on issues arising out of the military’s treatment of
detainees in Iraq. Senator Kennedy and Senator Durbin
were justified in their requests to have Mr. Haynes called back to
testify before this Committee to answer questions about his
involvement in setting policies that may have facilitated the
situation at Abu Ghraib.
A Nominee With A Troubling View On
Torture
In
addition to Mr. Haynes, there is another nominee of this
Administration who has spoken and written widely on these matters.
That is David B. Rivkin Jr. Mr. Rivkin has been nominated by
President Bush to an executive position in the Department of Justice
to rule on claims, including claims of mistreatment and torture. I
have been deeply concerned by the Mr. Rivkin’s views concerning
torture and concerning cruel, inhuman, or degrading treatment. He has
claimed, for example, that some forms of “aggressive interrogation” --
which according to him could include deprivation of food and water,
mental pain and suffering, contorted positions, sleep
deprivation, and even beatings – are arguably technically legal in
certain cases. Of course the fact that most legal authorities,
including the Israeli Supreme Court and the European Court of Human
Rights, disagree with Mr. Rivkin’s views have done little to dissuade
him, and he has continued to write and speak in defense of the
Administration’s “aggressive” approach to detainees and in favor of
punishment for captured insurgents, including with respect to Iraq, as
recently as last month.
Mr. Rivkin’s position is clear from an article he co-authored in
January 2003: “The United States has not granted the
rights of honorable prisoners of war to the Guantanamo Bay detainees
because they are neither legally nor morally entitled to those rights.
. . . Article 17 of that treaty . . . is inapplicable to the
Guantanamo detainees and does not limit the United States' right to
interrogate them. Moreover, even assuming that the detainees have
been subjected to the interrogation methods . . . including painful
bindings, contorted positions, sleep deprivation, piercing noises and
even beatings -- a claim that al Qaeda members are trained to make and
that has not been substantiated -- these do not, as a matter of law,
constitute torture.
Mr. Rivkin’s narrow views of human rights law and the definition of
torture raised significant concerns in connection with his nomination
and raise additional concerns about this Administration’s policies and
practices. In numerous articles over the years, Mr. Rivkin has argued
that international humanitarian law, a well-established component of
international law that protects civilians during wartime, is
illegitimate. He has also criticized the International Committee of
the Red Cross and other organizations for “relentlessly” promoting
international humanitarian law.
I
voted against Mr. Rivkin last year when his nomination was considered
by this Committee because I did not think, based on his positions,
that he could consider such claims fairly. I am astounded that the
Administration chose to resubmit his nomination this year -- after
abuses at several U.S. detention centers were widely
reported in the press and alleged to have been due, in part, to the
same narrow view of our obligations under international law that Mr.
Rivkin has espoused. The Senate’s obligation to
consent on nominees is not a rubber-stamp but an essential check to
ensure that those who serve in positions of public trust uphold core
constitutional values and human rights.
Congressional Oversight is Vital
We
need to know more about this Administration’s policies in these
matters in light of the views of its nominees. During hearings this
week Secretary Rumsfeld and General Myers were quick to lay at the
feet of the Administration’s lawyers the approval of the interrogation
and detention practices it is using. We need to know who in the
Department of Justice and in the White House are being consulted about
these matters and what they are approving. The Senate was gracious
enough to confirm to head the Department of Justice Office of Legal
counsel a former Defense Department counsel. Since the Attorney
General will not answer my requests for information about legal
opinions rendered by the Office of Legal Counsel, we do not yet know
how deeply involved in the development and approval of these policies
the Attorney General has been. We also should learn more about
Justice Department involvement in sending to Iraq to oversee the
refurbishing of Abu Ghraib prison someone who reportedly resigned from
a State correctional department after a mentally ill inmate died while
shackled to a restraining chair, naked for 16 hours, and whose private
prison company was reportedly under investigation by the Justice
Department for unsafe conditions.
We
in the Senate are entitled to know what the policies of the United
States Government are and when those policies are justified as legally
sanctioned, and we are entitled to know the basis and analysis for
that legal judgment by the Executive Branch.
Three weeks ago, the Supreme Court heard arguments in the first in a
series of cases arising from the Administration’s policies and
practices. The case involved the detentions at the U.S.
military facility at Guantanamo Bay. That was one of the topics on
which I had expected we would have held hearings. Two weeks ago, the
Court heard argument in the case involving Vice President Cheney’s
refusal to reveal who participated in and advised the Administration’s
energy task force and in the constitutional challenges to the
Administration’s position that it has the power to detain American
citizens and others whom the President declared enemy combatants
without a hearing, without a trial and with a limited right to
counsel, for an indefinite period of time.
These cases raise a number of matters of interest to this Committee.
I have argued for some time that we are strengthened as a country and
certainly practices affecting civil liberties would be on more solid
legal footing if Congress had been allowed by this Administration to
be a full partner in the development of legal structures and
practices. Last week an editorial in
The Washington Times
reached the same conclusion, that it might be useful to enact laws
bringing clarity and consistency to these matters. I could not agree
more. That is what I have been urging with respect to military
tribunals and detention and other matters from the outset. This
Administration, instead, chooses to go it alone. Without the bulwark
of congressional authorization, its practices should be subject to
more searching inquiry by the judicial branch as the last remaining
check and balance on Executive excess. Just as I commend the 9/11
Commission for its attention to its duties, I want to acknowledge the
judiciary for the vital role it needs to play to preserve our
constitutional democracy.
Unchecked Government Power Invites
Abuses
The abuses at the Abu Ghraib prison, along with reports of
mistreatment and torture at other U.S. detention
facilities and of many innocents being detained by mistake without any
review process, raise serious and important concerns about the
policies and positions this Administration has taken in pursuing its
war on terror.
In
its policies on enemy combatants, military commissions, and treatment
of detainees, the Bush Administration has acted unilaterally, with
virtually no input or oversight by Congress, with minimal review by
the courts, and with flagrant disregard for the views of the
international community. Instead of checks and balances, it wrote
itself a blank check and said to the country and the world, “trust
us.”
In
the three cases currently pending before the Supreme Court, the
Administration has claimed unlimited and unreviewable authority to
designate and indefinitely detain U.S. citizens and
foreign nationals as “enemy combatants.” It has detained more than
600 foreign nationals from more than 40 countries at Guantanamo Bay
and argued that these detainees are entitled to no protection under
either the Geneva Conventions or the Bill of Rights and can be held
without charge for the duration of the “war on terror,” a period of
time that is impossible to predict and could last for decades.
We
do not even know if these detainees were combatants engaged in battle
against the U.S., if they were aid workers caught up in
the crossfire, or if they were sold for bounty to the U.S. military.
But the Administration says, “trust us,” we will do the right thing.
In fact, Deputy Solicitor General Paul Clement went so far as to
claim, in the Guantanamo Bay case that the Administration’s actions
were beyond the reach of the law,
even if detainees were being tortured or summarily executed.
Similarly, during oral argument in the case of an American citizen who
is being detained as an “enemy combatant,” the Deputy Solicitor
General brushed aside a Supreme Court Justice’s concern that there be
some check against torture and abuse. He argued, “[W]here the
Government is on a war footing … you have to trust the executive to
make the kind of quintessential military judgments that are involved
in things like that.”
As
the abuses in Abu Ghraib demonstrate, we cannot just trust the
executive to protect human rights. Rather, we need to trust our
constitutional system of checks and balances on government power. As
Major General Taguba’s testimony to the Armed Services Committee
suggested, it is precisely when there is a lack of appropriate
supervision or oversight, a lack of clear rules, and a lack of
discipline that abuses occur.
Disastrous Consequences
Unfortunately, the abuses at Abu Ghraib prison also demonstrate the
disastrous consequences -- on our foreign policy, on our security, and
on human rights worldwide -- when there is no check. It is not just
Abu Ghraib but history that teaches us that the executive branch
should not be given unchecked authority during wartime. Certain
aspects of the “war on terror” may be unprecedented, but the
challenges to constitutional liberties that we face now are comparable
to those that the nation has confronted before. As we aim to expand
and support democracy, freedom and human rights around the world, we
must serve as a role model. We should show the world that, in a
democracy, no branch of government can rule without oversight, and
that the rule of law must be followed, especially when it is most
tempting not to do so.
I
wrote a letter to the Attorney General on April 8, 2004,
asking him to explain why the Justice Department was seeking to
overturn a $653 million judgment awarded to former U.S. POWs who were
tortured by the Iraqi military during the 1991 Persian Gulf War. The
former POWs won the judgment against the Iraqi government in June 2003
and are seeking payment from frozen Iraqi assets in the U.S.
The Secretary of Defense recently told the Armed Services Committee
that he is “seeking a way to provide appropriate compensation to those
detainees who suffered such grievous and brutal abuse.” He continued,
“It’s the right thing to do.” It may well be the right thing to do in
the case of abused Iraqi detainees, but it is certainly the right
thing to do in the case of American veterans of the Gulf War. I am
most disappointed by DOJ’s position on this, and I look forward to
receiving the Attorney General’s explanation of its decision to
actively oppose the former POWs’ judgment to compensate them for the
torture they endured.
Honoring Law Enforcement’s Active And
Fallen Heroes
Finally, I want to note that this is National Police Week and based on
our resolutions, S. Res. 310, Saturday is National Peace Officers
Memorial Day. This is a matter on which this Committee acted at our
last meeting. We are right to remember and commemorate the sacrifice
and commitment of our law enforcement officers serving our
communities, States and country. We annually honor the officers and
their families who made the ultimate sacrifice for public safety. I
commend Senator Campbell for his leadership in this issue and thank
Senators on both sides of the aisle for their support.
We
thank all of our nation’s brave law enforcement officers for their
unwavering commitment to the safety and protection of their fellow
citizens. They are real-life heroes. Currently, more than 850,000
men and women guard our communities at great risk. Each year, 1 in 15
officers is assaulted, 1 in 46 officers is injured, and 1 in 5,255
officers is killed in the line of duty in the United
States every other day. In 2003, 146 law enforcement officers died
while serving in the line of duty. Already this year, another 43
police officers have been killed in the line of duty.
During the 108th Congress, we have improved the Justice
Department’s Public Safety Officers Benefits (PSOB) program by
enacting into law the Hometown Heroes Survivors Benefits Act (Public
Law 108-182), which allows survivors of public safety officers who
suffer fatal heart attacks or strokes while participating in
nonroutine stressful or strenuous physical activities to qualify for
federal survivor benefits.
The Senate also passed the Campbell-Leahy Bulletproof
Vest Partnership Grant Act (S. 764), which will extend through FY 2007
the authorization of appropriations for the Bulletproof Vest
Partnership Grant Program that helps State, tribal and local
jurisdictions purchase armor vests for use by law enforcement
officers. The House has yet to act on this important measure. We
want to be sure that every police officer who needs a bulletproof vest
gets one and that those vests provide the protection needed.
This National Peace Officers Memorial Day, Vermonters will remember
our brave State Police Trooper, Sergeant Michael Johnson, who was
killed last Father’s Day while trying to stop a suspect leading two
other State troopers on a high-speed chase. Sergeant Johnson was not
even on duty, but he went to help his fellow troopers that Sunday
afternoon after hearing their trouble on his radio. He had just
deployed a set of tire spikes across the interstate when the suspect
swerved to avoid the spikes and struck him. Sergeant Johnson left
behind his wife and three children. Words are insufficient for the
brave sacrifice of the man who was so admired by his family, community
and the Vermont State Police force. In memory of his bravery and
service to his family, community, State and country, Sergeant Johnson
will be one of the names added this year to the National Law
Enforcement Officers Memorial.
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