U.S. SENATOR PATRICK LEAHY

Statement Of Patrick Leahy
Status Of Attempts To Obtain Administration Memorandums
On Torture Policy And The Interrogation And Treatment Of Foreign Prisoners
July 22, 2004

Mr. LEAHY:  Mr. President, as we go out of session for the long recess at the end of this week, I am disappointed to report that Congress seems content to let the issue of foreign prisoner abuse linger without effective congressional oversight.    

The House Armed Services Committee made it clear weeks ago that it believed the ongoing military investigations into the abuses were sufficient.  Until today, the Senate Armed Services Committee had not held a hearing on the prisoner abuse issue in more than a month.  Chairman Warner called a hearing this morning to hear a report on one of the investigations: an assessment of Army detention operation doctrine and training, completed by the Army Inspector General.    

Waiting for the Administration to investigate itself is not the answer.  There are at least four completed and seven ongoing military reviews into the treatment of prisoners held in detention facilities in Iraq, Afghanistan, and Guantanamo Bay.  While these reviews are necessary, they fail to address critical issues:  What role did White House officials, the Justice Department and other agencies play in developing the policies that allowed these abuses to occur?  The military investigations may uncover what went wrong at the bottom of the chain of command, but it will take aggressive congressional oversight to discover what went wrong at the top of the chain. 

We need to get to the bottom of this scandal, but we also need to get to the top of it.  Only by doing that can we responsibly put it behind us and repair the damage it threatens to our security, to our credibility and to the safety of our troops.

Circling The Wagons

Numerous attempts in Congress to uncover the truth have failed because Republicans have circled the wagons and refused to support oversight efforts.  In the past week, Democratic members of the House introduced resolutions requiring the Secretary of State and the Attorney General to turn over all documents related to the treatment of prisoners in Iraq, Afghanistan and Guantanamo Bay.  The resolutions failed on straight party-line votes, first on July 15 in the House International Relations Committee, and yesterday in the House Judiciary Committee. 

The Document Subpoena Request

Democratic members of the Senate Judiciary Committee tried to make progress as long ago as June 17, 2004, but the Committee, on a party-line vote, rejected a subpoena resolution for documents relating to the interrogation and treatment of detainees.  Since that date, no action has been taken by the Senate Judiciary Committee, despite the clear need to resolve these issues.

In the June 17 Committee meeting, and in subsequent days on the Senate Floor, several Senators said that we should give the Administration more time to respond to inquiries, even though some of us had been asking for information for more than a year.  Questions were submitted to the Attorney General on June 15, following his appearance before the Committee a week earlier.  In the June 8 hearing, the Attorney General refused to provide information and essentially demanded that the Committee issue a subpoena for the requested materials. 

On June 17, Democratic Judiciary Committee members were urged to withhold a subpoena and to give the Attorney General until the end of the month to respond.  At that time, Chairman Hatch said he believed the Administration should comply; he said that it was “the right thing to do.”  He said that if the Administration did not respond by the end of June, then “I may very well vote for a subpoena at that time.”  That same day, Senator DeWine said, “I think the Administration has to [clarify the policy] and has to release the information that will clarify that.”  Senator Specter said, “I believe that this Committee ought to know what the interrogation practices are and I am prepared to pursue them.”  But all in all, the Republicans asked us to give the Department more time, to wait for the Attorney General to answer our questions. 

And then, the Attorney General — through an aide — on July 1, again thumbed his nose at his obligations to the Committee of jurisdiction over the Department of Justice.  He refused to provide a comprehensive set of answers to questions submitted by the nine Democratic members of this Committee, he refused to provide almost all of the documents that were requested, and, again, he refused even to provide an index of the documents being withheld.  Because of the continued stonewalling by the Administration, Congress and its committees of jurisdiction over the Department of Justice remain largely in the dark about these pertinent matters. 

Other Senate committees have faced similar obstacles, even when there have been bipartisan requests for information.  The Pentagon played games with the Senate Armed Services Committee for seven weeks before showing members the reports on treatment of prisoners in Iraq produced by the International Committee of the Red Cross (ICRC).  While such reports are generally not released, the ICRC agreed early on that members of Congress should have access to them on a confidential basis.  Members of the House and Senate Armed Services Committees were first shown ICRC reports on Iraq last Wednesday, July 14, after having requested them in early June. 

Access to these reports was extremely limited, causing some Members of the House Armed Services Committee to complain that the information was stale and that Pentagon briefers were unable to shed light on the abuses.  It is puzzling that Members of Congress — and specifically Members of the committees of jurisdiction — should be treated so incidentally. 

The ICRC reports did make an important contribution, however.  They apparently confirm that U.S. officials should have been alerted to the prisoner abuse at Abu Ghraib prison months before the Pentagon announced an investigation on January 16, 2004, and before General Taguba was assigned to lead this inquiry on January 31, 2004.  According to House members, the ICRC reports alleged serious abuses at Abu Ghraib last fall, a time period that coincides with the point at which U.S. military intelligence reportedly took control of certain cellblocks of Abu Ghraib.  In addition to the ICRC reports, the New York Times has reported that in November 2003, a small group of interrogators at Abu Ghraib began sharing allegations of prisoner abuse with senior officers.  It is hard to comprehend the Administration’s apparent failure to respond to the ICRC and to internal military reports of abuse for weeks or months in late fall and early winter.   

Some individuals who committed abusive acts are being punished, as they must be.  But this issue runs much deeper.  What of those who gave the orders, 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?  The White House has now disavowed the analysis contained in the August 1, 2002, Office of Legal Counsel memorandum.  That memo, which was sent to the White House Counsel, argued that for acts to rise to the level of torture, they must go on for months or even years, or be so severe as to generate the type of pain that would result from organ failure or even death.  The White House and the Department of Justice now call that memo “irrelevant” and “unnecessary” and say that DOJ will spend weeks rewriting its analysis. 

A troubling editorial in the July 15 Washington Post charges that several detainees in secret CIA custody have probably been tortured, and that the August 1, 2002, memo was written after those acts occurred in order to justify the acts as legal. 

Still More Undisclosed Documents?

Meanwhile, we continue to hear of more documents.  The Department of Justice admitted in the July 1 letter to the Judiciary Committee that it had “given specific advice concerning specific interrogation practices,” but would not disclose such advice to members of the Committee, who are duly elected representatives of the people of the United States, as well as members of the committee of oversight for the Department of Justice.  USA Today reported on June 28 that the Justice Department issued a memo in August 2002 that “specifically authorized the CIA to use ‘waterboarding,’” an interrogation technique that is designed to make a prisoner believe he is suffocating.  This memo is reportedly classified and has not been released.  According to USA Today:  “Initially, the Office of Legal Counsel was assigned the task of approving specific interrogation techniques, but high-ranking Justice Department officials intercepted the CIA request, and the matter was handled by top officials in the Deputy Attorney General’s office and Justice's Criminal Division.” 

Undermining Oversight And Accountability

While former Administration officials grant press interviews and write opinion articles denying wrongdoing, and the White House and Justice Department hold closed briefings for the media to disavow the reasoning of this previously relied upon memoranda and to characterize what happened, Senators of the United States are denied basic information and access to the facts.  I would hope that the significance of such unilateralism and arrogance shown to the Congress and to its oversight committees will register with each and every member of this body.

These memos, which may have governed official action for nearly two years, are of particular concern because so much of what is happening in detention centers remains hidden.  In addition to Abu Ghraib in Iraq, Bagram in Afghanistan, and Guantanamo Bay, several shadowy detention centers are operated by the intelligence agencies or possibly the military, some under total secrecy.  A report on secret detentions was released on June 17, 2004, by Human Rights First, a non-profit research and advocacy organization formerly called the Lawyers Committee for Human Rights.  This report raises many important questions on the issue of foreign prisons.  I ask unanimous consent that the introduction be inserted in the Record.  The report, Ending Secret Detentions, describes a number of officially undisclosed locations that sources — typically unnamed government sources quoted in the press — have described as detention centers for terrorism suspects.  These sources have discussed facilities in Iraq, Afghanistan, Pakistan, Jordan, Diego Garcia, and on U.S. war ships.  The ICRC has not been allowed to visit these facilities.  It issued a public statement in March expressing its growing concern over “the fate of an unknown number of people captured … and held in undisclosed locations.”  To date, its requests for access to the prisons have been denied. 

In Iraq, where the Bush Administration claims to be following the Geneva Conventions, Human Rights First states that it is unclear if the ICRC has access to all detention facilities in the country.  Even if it did, the Secretary of State admitted in June that he had approved requests to hide certain detainees from the International Red Cross.

Secret Detention Centers

And what of the secret detention centers?  Have these facilities been managed by officials operating under the legal analysis contained in DOJ memos that argue for a very narrow reading of the prohibition on torture?  Have they been managed by officials acting in accordance with the President’s determination that al Qaeda and Taliban suspects are not protected by the Geneva Conventions?  What is the legal status of these individuals?  Even in Iraq, where, as I just mentioned, the Administration claims to be applying the Geneva Conventions, there is a great deal of ambiguity.  The Human Rights First report describes new categories of prisoners in Iraq, including “security detainees,” “high value detainees,” and a group of prisoners whose status the Coalition Provisional Authority declined to discuss.  These are not categories of prisoners defined in the Geneva Conventions, and without full access given the ICRC, no one can verify the circumstances under which they are being held and interrogated. 

The Administration can provide a significant amount of information about its practices in handling foreign detainees without jeopardizing national security and while still protecting sensitive information.  This should include relevant facts about detention centers, and an accounting of the number of detainees, their nationality, and the legal authority under which each is held.  I also restate my longstanding request for the documents produced by the White House, the Justice Department, the Pentagon and other agencies that form the legal basis for this Administration’s treatment and interrogation of foreign prisoners.

Blocking The Doors To The Answers

With his words, President Bush says he wants the whole truth, but with his actions he and his Administration instead have cynically blocked the doors that lead to the answers.  The American people and the American troops who are put at risk by these policies and abuses need and deserve to understand how this happened, and they need to know it will not happen again.  For the sake of our national security interests and our credibility, we need to show the world the right way that a democratic society corrects its mistakes.  Thwarting adequate oversight and avoiding accountability will not make this problem go away, it will compound it.

# # # # #