Floor Statement Of Senator Patrick Leahy
The Torture Memos
And Squandered Leadership
June 23, 2004

In the weeks since a courageous soldier-whistleblower and a probing journalist revealed to the world the abuses at Abu Ghraib prison, evidence has continued to seep out almost daily of similar mistreatment of prisoners in other U.S. military detention centers in Iraq, Afghanistan and Guantanamo.  White House officials and the political appointees in the Department of Defense have tried to deflect their own responsibility by singling out a few “bad apples” for punishment.  But bit by bit, the press is uncovering new information, and it all points toward those higher up in the chain of command.

On May 15 of this year, President Bush said, “the cruelty of a few has brought discredit to their uniform and embarrassment to our country.”  That statement, it now turns out, was only partly true.  Since then, we have learned a great deal about what was discussed and debated at the highest levels of our government.

While the President insists that he wants to get to the bottom of this, high-level White House and Pentagon officials refuse to answer questions or to disclose the relevant documents requested by the Congress.  They deny any pattern of illegality in the interrogation and treatment of prisoners, while it becomes clearer by the day that this scandal was set in motion by the actions of senior officials.

We learned that in October 2003, General Sanchez ordered the “harmonization” of military policing and intelligence in Iraq, placing military intelligence in control of key cellblocks at Abu Ghraib prison. 

We learned from the Washington Post that, over the past 18 months, the Army has opened investigations into at least 91 cases of possible misconduct by soldiers against detainees in Iraq and Afghanistan.  And the President talks about a few bad apples.  The President’s comments have become harder and harder to swallow. 

We learned on June 7 from the Wall Street Journal about a March 2003 Pentagon report contending that the President was not bound by laws prohibiting torture.  This report went so far as to say that government agents who tortured prisoners at the President’s direction cannot be prosecuted by the Justice Department. 

The very next day, the Washington Post reported that in August 2002 the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad “may be justified.”  The memo argued that the President has absolute authority in the “war against terrorism” and that international treaties against torture, which the United States ratified, “may be unconstitutional.” And, this report continued, Congress is completely powerless when the President acts as Commander in Chief. 

That same day, the Attorney General made his first appearance before the Judiciary Committee in 15 months.  He refused to give a copy of the Justice Department memo to members of the Committee even though he was unable to say on what legal authority he based his refusal. 

A week later, Republicans on the Judiciary Committee blocked a subpoena seeking these documents.  Some called it a “fishing expedition,” even though we asked for a grand total of 23 documents.  The committee of jurisdiction had the opportunity and the responsibility to get us closer to the truth about why these abuses occurred, but the Republicans chose to circle the wagons instead of doing what is right for the country.

The stonewalling in the prison abuse scandal has been building to a crisis point.  Yesterday, responding to public pressure, the White House has released a small subset of the documents that offers a glimpse into the genesis of this scandal.  There are many items missing from this release, however, including all but three of the 23 items Judiciary Committee Democrats requested in the subpoena that was voted down by Republicans last week.  Where are the 20 remaining documents?  Perhaps the most ominous omission is the lack of any documents reflecting White House involvement in this issue since military action began in Iraq last year.  The released documents to not include a single reference to the treatment or interrogation of detainees in Iraq, despite the heinous abuses at Abu Ghraib that we have all seen with our own eyes. 

The White House released a presidential memorandum dated February 7, 2002, directing that al Qaeda and Taliban detainees be treated humanely.  But, did the President sign any directive regarding the treatment or interrogation of detainee after February 7, 2002?  More specifically, did the President sign any directive after the United States invaded Iraq on March 19, 2003?  These questions remain unanswered. 

Last week we learned that Secretary Rumsfeld personally approved plans to hide some of the prisoners in Iraq so that they could not be visited by the International Committee of the Red Cross.  They became nameless, faceless, and numberless.  This is not only Kafkaesque, it was a direct violation of the Geneva Conventions.  In a press conference last Thursday, Secretary Rumsfeld acknowledged his role in hiding these “ghost prisoners,” including one “high value” prisoner who was lost in custody for 7 months.

Yet in the same breath, Secretary Rumsfeld said, “I have not seen anything that suggests that a senior civilian or military official of the United States of America . . . could be characterized as ordering or authorizing or permitting torture or acts that are inconsistent with our international treaty obligations or our laws or our values as a country.” 

Secretary Rumsfeld should read the memos written by the Department of Justice and by his own legal staff at the Pentagon.  The leaked and released documents reveal plenty to suggest that legal arguments were made and orders were signed in violation of our laws and treaty obligations.  The few documents released by the White House yesterday serve to confirm earlier press reports and postings.

A year ago, after learning that the United States might be using techniques that pushed the limits of the Torture Convention, I wrote to the White House looking for assurances that the Administration was complying with U.S. and international law.  I received a letter that stated clearly and unequivocally that it was and would continue to do so. 

In fact, we now know that the White House and the Pentagon were actively working to circumvent the law.  Guidelines for interrogating prisoners were applied routinely in multiple locations in ways that were illegal.  It is also clear that U.S. officials knew the law was being violated and for months, possibly years, did virtually nothing about it.  Instead, they detailed their lawyers to find legal loopholes and interpretations that would redefine torture and devise innocuous sounding labels for their interrogation techniques, such as “sensory deprivation” or “stress and duress.”

I wrote to the White House, the Pentagon and the CIA last June – a year ago – about the reported torture of Afghan prisoners by U.S. interrogators in December 2003.  Two of those prisoners, both of young age, had died during interrogation.  Others described being forced to stand naked in a cold room for days without interruption, with their arms raised and chained to the ceiling and their swollen ankles shackled.  They said they were denied sleep and forced to wear hoods that cut off the supply of oxygen. 

My letter, and subsequent letters, were either ignored or received responses which, in retrospect, bore no resemblance to the facts.  Sixteen months later, the investigations of those deaths, ruled homicides, remain incomplete. 

Just last week, in a case we had not known of previously, a CIA contractor was indicted for beating an Afghan detainee with a large flashlight.  The Afghan, who had surrendered himself at the gates of a U.S. military base, died in custody on June 21, 2003, just days before I received a letter from the Bush Administration saying that our government was in full compliance with the Torture Convention. 

Prisoners who are suspected of having killed or attempted to kill Americans do not deserve comforts.  But the use of torture undermines our global efforts against terrorism and is beneath a great nation. 

It is illegal whether U.S. personnel engage in such conduct themselves or they hand over prisoners to the government agents of another country where torture is commonly used.  That happened in 2002, when U.S. agents sent a Canadian citizen to Syria, letting others do the dirty work.  Yet the White House will not provide us with the documents in which they concoct theories to justify turning over detainees to foreign nations that conduct torture.                                                 

Mr. President, there are many victims of this policy.  First are the Iraqis, Afghans, and other detainees -- some of them innocent of any crime -- who were tortured or subjected to cruel and degrading treatment.  The International Committee of the Red Cross reported that it was told by the U.S.-run Coalition Provisional Authority in Iraq that 70 to 90 percent of those in detention were innocent civilians who had been swept up in raids. 

That was information that U.S. officials gave to the ICRC.  It came from our own government.  It is no wonder that after the horrific images were broadcast around the world the Pentagon started to clean out Abu Ghraib, releasing thousands of prisoners who apparently never should have been there. 

We now know that many other Iraqis and Afghans died in U.S. custody, in conditions so abhorrent they conjure up images reminiscent of a Charles Dickens novel.  Many of those deaths were never investigated.

The other victims of this policy are our own soldiers, who overwhelmingly perform their duties with honor and courage, and who now have been unfairly tarnished and endangered by these images and this scandal.

Our troops have also been tarnished by profiteering companies, none more brazen than Halliburton, which have reaped huge profits while our soldiers are risking their lives and losing their lives.  Yet Republicans blocked Senate action to make war profiteering a crime and hold these people accountable.

Countless people around the world, especially in the Middle East, suspected that President Bush’s decision to invade Iraq had a lot more to do with Iraqi oil than with any of the other reasons he gave that have since been proven false.

I do not share that view, but what better evidence to fuel those charges than Halliburton’s non-competitive contracts and waste – it is fraud and abuse on a scale that would shock the conscience of anyone except perhaps an Enron executive?  Halliburton seems to regard the U.S. Treasury as its own personal bank account.  With “cost plus” contracts, what do they care how much they overcharge the taxpayers?  They are guaranteed their profits regardless.  It is the antithesis of patriotism.

And then there is America itself.  Our Bill of Rights was the model for the Universal Declaration of Human Rights.  Generations of Americans have tried to live up to its promise and to set an example for the world.  The damage this Administration has caused to our credibility and reputation as a nation of laws and of decency will take years to repair.  Just as they have squandered so much of the world’s respect and support for our country after September 11, so now have they squandered much of the human rights leadership that has taken so many years to painstakingly build.  This is a travesty of monumental proportions.

The individuals who committed those acts are being punished, as they must be.  But what of those who gave the orders or set the tone or looked the other way? What of the White House and Pentagon lawyers who tried to justify the use of torture in their legal arguments?  These lawyers have twisted the law, advising the President that for an abuse to rise to the level of torture it must go on for months or even years, and be so severe as to generate the type of pain that would result from organ failure or even death. 

Think about that, and you begin to realize how destructive and outrageous this is.

And what of the President?  Last March, referring to the capture of U.S. soldiers by Iraqi forces, President Bush said, “We expect them to be treated humanely, just like we'll treat any prisoner of theirs that we capture humanely.  If not, the people who mistreat the prisoners will be treated as war criminals.” 

At the same time, the President's own lawyer, ignoring the Torture Convention altogether, called the Geneva Conventions “quaint” and “obsolete.”  Today, soldiers who have spoken out about the crimes they witnessed and the involvement of their superiors have been threatened and punished by the Defense Department they have honorably served.

Mr. President, one need only review history to understand why the law makes no exception for torture.  The torture of criminal suspects flagrantly violates the presumption of innocence on which our criminal jurisprudence is based, and confessions extracted through torture are notoriously unreliable.

Once exceptions are made for torture it is impossible to draw the line, and more troubling is who would be in charge of drawing it.  If torture is justified in Afghanistan, why is it not justified in China, or Syria, or Argentina, or Miami?

If torture is justified to obtain information from a suspected terrorist, why not from his wife or children, or from his friends or acquaintances who might know of his activities or his whereabouts?  This has happened in many countries, and decades later those societies are still trying to recover.

The United States cannot become the model of justice our forefathers envisioned if we continue to tolerate the twisted logic that has been given currency with increasing regularity in U.S. military prisons and in the White House since 9/11.  Some argue it is a new world since those terrible attacks on our country three years ago.  And to some degree, they are right, which is why we have reacted with tougher laws and better tools to fight this war.  But do we really want to usher in a new world that justifies inhumane, immoral and cruel treatment as any means to an end?

As a nation of laws, and as the world’s oldest democracy and champion of human rights, we must categorically reject the dangerous notion that is now in our midst – seeking our assent, or our silence – that torture can be legally justified and normalized.

President Bush has said he wants the whole truth, but he and his administration have been stonewalling from the top.  The President must order all relevant agencies to release the memos from which these policies were devised. 

He must clearly and unequivocally order all of his subordinates and every member of our armed services to adhere to our international treaty obligations including the Geneva Conventions, the Torture Convention, and all applicable U.S. laws. 

And finally, there needs to be a thorough, independent investigation of the actions of those involved, from the people who committed abuses, to the officials who set these policies in motion. 

Only when these actions are taken will we begin to heal the damage that has been done. 

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