[Pages S937-S957]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 2008--CONFERENCE
REPORT--Resumed

Cloture Motion

The PRESIDING OFFICER. Under the previous order, pursuant to rule
XXII, the Chair lays before the Senate the pending cloture motion,
which the clerk will state.
The bill clerk read as follows:

Cloture Motion

We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the conference
report to accompany H.R. 2082, Intelligence Authorization
Act.
John D. Rockefeller IV, Dianne Feinstein, Kent Conrad,
E. Benjamin Nelson, Russell D. Feingold, Barbara A.
Mikulski, Ron Wyden, Ken Salazar, Mark Pryor, Patty
Murray, Benjamin L. Cardin, Frank R. Lautenberg, Jack
Reed, Sheldon Whitehouse, Harry Reid, Carl Levin, Bill
Nelson.

The PRESIDING OFFICER. The question is, Is it the sense of the Senate
that debate on the conference report to accompany H.R. 2082, the
Intelligence Authorization Act, shall be brought to a close?
The yeas and nays are mandatory under the rule. The clerk will call
the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton),
the Senator from Missouri (Mrs. McCaskill), and the Senator from
Illinois (Mr. Obama) are necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 92, nays 4, as follows:

[Rollcall Vote No. 21 Leg.]

YEAS--92

Akaka
Alexander
Allard
Barrasso
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Brown
Brownback
Bunning
Byrd
Cantwell
Cardin
Carper
Casey
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kennedy
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Martinez
McCain
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Sanders
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Tester
Thune
Voinovich
Warner
Webb
Whitehouse
Wicker
Wyden

NAYS--4

Burr
Chambliss
DeMint
Vitter

NOT VOTING--4

Clinton
Graham
McCaskill
Obama
The motion was agreed to.
The PRESIDING OFFICER. On this vote, the yeas are 92, the nays are 4.
Three-fifths of the Senators duly chosen and sworn having voted in the
affirmative, the motion is agreed to.
Mr. DURBIN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. NELSON of Florida. Mr. President, I ask unanimous consent that
the order for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Tester). Without objection, it is so
ordered.
Mr. NELSON of Florida. Mr. President, while we are waiting here for
some of the determination of a time agreement with regards to the
consideration of the conference report, I want to go ahead and lend my
support and acknowledge to the rest of the Senate that this is a bill
that is very necessary to pass. Because, what this bill does, by
authorizing the activities of the intelligence community, it continues
to make the oversight function of the Congress--in particular, the
Senate and the House Intelligence Committees--poignant and relevant to
a community that is not accustomed to having oversight.
Our committee leadership, chairman and vice chairman, Senators
Rockefeller and Bond, as we say in the South, they have cracked the
whip with the intelligence community to get them to realize that this
is a constitutional government of shared powers; that the executive
branch doesn't just run the show--particularly on something as
sensitive as the collection of intelligence. Rather, it needs to be
done within the law, and one of the ways of ensuring that is through
the sharing of powers between two different branches of Government who
have checks and balances upon each other. We in the legislative branch
oversee the activities of the executive branch--in this case, all of
the intelligence community and their activities, which are absolutely
essential to the protection of our country. This conference report is a
very important bipartisan document, which increases the accountability
in the intelligence community, and it authorizes dozens of critical
intelligence programs to keep us safe every day.
The conference report includes a new, strong inspector general in the
Office of the Director of National Intelligence. Inspectors general are
increasingly important in the intelligence community, where billions of
dollars are spent outside of public view. Our committee, as well as the
American public, has to rely on the inspector general as an important
part of the oversight of the intelligence community.
As we look back, several years ago, we completely reorganized the
intelligence community. A Director of National Intelligence was set up
to integrate the disparate elements of the intelligence community. But
there is a lot more that needs to be done, and a strong inspector
general at the DNI is another step in the right direction.
The conference report also includes a provision that makes the
Director of the NRO--the National Reconnaissance Office--and the NSA--
the National Security Agency--subject to Senate confirmation. Now, why
is that important? That is important because, again, it is part of the
checks and balances of the separate branches of Government. Both of
these agencies, outside of the public view because of the top-secret
nature of this work, oversee large programs that cost vast amounts of
money, and not every program has been a success. So by having the
confirmations of the Directors of the NRO and the NSA come to the
Senate, it improves that accountability and responsiveness to the
legislative branch of Government.
The authorization bill also requires an assessment of the
vulnerability of the intelligence community's major acquisition
programs. We have to assess that the program is going to stay on track
and that it is not going off the rails with regard to cost. We are
talking about billions of dollars on some of these programs. By keeping
them on track, by knowing what to anticipate, it is much easier to plan
ahead.
This bill also provides an annual reporting system which will help us
keep in focus, curbing these cost overruns and these schedule delays.
If you don't do that, things are going to get out of control. As the
intelligence community continues to be more and more sophisticated
because of the technical means it employs, it is more and more
important that our oversight tools be in place and effective.
Now, that is enough alone to pass this bill, but we have an area of
disagreement coming up. We are expecting the minority to offer a point
of order that would remove a provision in the conference report. This
provision requires the Army Field Manual to be used as the standard for
interrogation methods. This Army Field Manual was released over a year
ago. It specifically prohibits cruel, inhuman, and degrading treatment.
There are eight techniques in the Army Field Manual that are
specifically prohibited from being used in conjunction with
intelligence interrogations: forcing the detainee to be naked, perform
sexual acts, or pose in a sexual manner; placing hoods or sacks over
the head of a detainee; using

[[Page S938]]

duct tape on the eyes; applying beatings, electric shock, burns, or
other forms of physical pain. The fourth is waterboarding. That is
prohibited. The fifth is using military working dogs. The sixth is
inducing hypothermia or heat energy. The seventh is conducting a mock
execution. The eighth is depriving the detainee of necessary food,
water, and medical care.
Now, haven't I just described what America is all about? Is that not
the standard by which we, as the leader of the world, have to announce
to the world what we believe in and how we are going to conduct
ourselves, and that is how we are going to conduct ourselves not only
among our own people and how we treat them but how we are going to
treat others?
The manual provides that three interrogation techniques may only be
used with higher level approval. The good cop-bad cop interrogation
tactic; the false flag tactic, where a detainee is made to believe he
is being held by another country; or separation, by which the detainee
is separated so he can't coordinate with other detainees on his story--
those techniques can be used, but it has to be approved at a higher
level.
Mr. President, there is something that is going to worry everybody,
and it has worried this Senator personally and as a member of the
Intelligence Committee. What if all of this doesn't work and the
country is in imminent peril? Well, along with the standards we are
going to set, which I hope we are going to pass into law--these
standards in the Army Field Manual which will state clearly what the
standards are for our country and how we are going to conduct
ourselves--there is always the constitutional authority under article
II.
As Commander in Chief, the President can act when the country is in
immediate peril. And if he so chooses, as Commander in Chief, to
authorize activities other than what the Army Field Manual allows, then
the President would be accountable directly to the American people
under the circumstances with which he invoked that article II authority
as Commander in Chief.
What we are saying today does not relate to the President's article
II power. We are setting statutory power. It is important that we tell
the rest of the world the standards of how we interrogate detainees. We
are putting these standards into law and we will ensure that these
techniques are in compliance with the humane treatment that we would
expect and hope our Americans would also receive.
I think there should be no confusion. We have an obligation to set
these standards into law. If that dire emergency ever occurred in the
future, the President has his own authority under article II of the
Constitution. But that is not the question here today before us. The
question is: What do we set as the standard of interrogation, and that
has to be that there is no torture allowed under this statutory law.
Therefore, when the point of order is raised that would take the Army
Field Manual standards for interrogation techniques out of the
conference report, I urge the Senators not to take this provision out
of this important intelligence reauthorization bill.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, the Senate will soon vote on the
intelligence authorization bill, which contains a provision requiring
all U.S. governmental agencies, including the CIA, to comply with the
Army Field Manual's prohibition on torture. This reform is urgently
needed. I commend the Intelligence Committee for adopting this
provision. Its enactment will ensure that the Government uses only
interrogation techniques that are lawful and those provisions should be
retained.
In the Detainee Treatment Act passed in 2005, Congress attempted to
reaffirm our commitment to the basic rights enshrined in the Geneva
Conventions and restore America's standing in the eyes of the world as
a nation that treats detainees with dignity and respect.
These rights reflect the values we cherish as a free society, and
also protects the lives of our service men and women. Today, however,
we know that the 2005 act has fallen short of our goals. By not
explicitly applying the Army Field Manual standards to all Government
agencies, we have left open a loophole that the Bush administration
promptly drove a Mack truck through.
The so-called enhanced interrogation program carried out in secret
sites became an international scandal and a profound stain on America
in the eyes of the world. The administration issued an executive order
last year to try to minimize the outcry, but the order failed to
renounce abuses such as waterboarding, mock executions, use of attack
dogs, beatings, and electric shocks.
The disclosure of secret opinions by the Office of Legal Counsel gave
further evidence that the administration had interpreted the Detainee
Treatment Act and other antitorture laws in an unacceptable, narrow
manner.
Attorney General Mukasey's refusal at his confirmation hearings to
say whether waterboarding is illegal gave us even more reason for
concern. The outrages do not end there. Two months ago, the New York
Times reported that in 2005 the CIA had destroyed at least two
videotapes documenting the use of abusive techniques on detainees in
its custody. These videotapes have been withheld from Federal courts,
the 9/11 Commission, and congressional committees. Two weeks ago in his
testimony before the Senate Judiciary Committee, the Attorney General
flat out refused to consider investigating possible past acts of
torture or to brief congressional committees on why he believed the
CIA's enhanced interrogation program is lawful.
Last week, we received official confirmation that the CIA had used
waterboarding on three detainees. At the same time, the White House
made the reckless claim that waterboarding is legal, and that the
President can authorize its use under certain circumstances.
The White House position is directly contrary to the findings of
courts, military tribunals, and legal experts that waterboarding is a
violation of U.S. law and a crime against humanity.
In the words of a former master instructor for U.S. Navy SEALs:

Waterboarding is slow motion suffocation with enough time
to contemplate the inevitability of blackout and expiration.
Usually the person goes into hysterics on the board. For the
uninitiated it is horrifying to watch and if it goes wrong,
it can lead straight to terminal hypoxia. When done right it
is controlled death.

Waterboarding has a long and brutal history. It is an ancient
technique of tyrants. In the 15th and 16th centuries, it was used in
the Spanish Inquisition. In the 19th century, it was used against
slaves in this country. In World War II, it was used against our troops
by Japan. We prosecuted Japanese officers for using it and sent them to
years and years of jail for following that procedure.
In the 1970s, it was used against political opponents by the Khmer
Rouge in Cambodia and military dictatorships in Chile and Argentina.
Today it is being used against pro-democracy activists in Burma. That
is the company we keep when we fail to reject waterboarding.
In fact, Attorney General Mukasey could not even bring himself to
reject the legal reasoning behind the infamous Bybee torture memo of
the Office of Legal Counsel which stated that physical pain amounts to
torture only if it is:

equivalent in intensity to the pain accompanying serious
physical injury, such as organ failure, impairment of bodily
function, or even death.

According to that memo, anything that fell short of that standard
would not be torture. This Bybee memorandum was in effect for 2\1/2\
years before it was ever effectively suspended. It was suspended then
by Attorney General Alberto Gonzales for the Judiciary Committee, quite
frankly, in order that his nomination could be favorably considered.
Included in the Bybee memoranda was a provision that was an absolute
defense for any of those who would be involved in this kind of torture,
unless prosecutors could prove a specific intent that the purpose of
the torture was to harm the individuals rather than to gain
information, therefore effectively giving carte blanche to any of those
who would be involved in torture.

When Attorney General Gonzales appeared before the Judiciary
Committee

[[Page S939]]

and effectively repealed the Bybee memoranda, he did so for the
Department of Defense but not for the Central Intelligence Agency, even
at that time a clear indication of what the administration was
intending to do with the Central Intelligence Agency. It should not be
any surprise to anyone that this has been ongoing and continuous.
According to that memo, again the Bybee memorandum, anything that
fell short of this standard would not be torture. CIA interrogators
called the memo their ``golden shield'' because it allowed them to use
virtually any interrogation method they wanted.
When the memo--this is the Bybee memo--became public, its flaws were
obvious. Dean Harold Koh of Yale Law School testified that in his
professional opinion as a law professor and a law dean, the Bybee
memoranda is ``perhaps the most clearly legal erroneous opinion I have
ever read [because of all of the previous statutes and laws that have
been passed to prohibit torture by the Congress of the United States
and those initiated and supported by Republican presidents, by Ronald
Reagan, as well as Democratic presidents''.]
This was not a partisan series of statements about what the United
States position has historically been. The Bush administration was
embarrassed into withdrawing the memo. To this day, no one in the
administration has repudiated its content. The torture memo continues
to haunt this country. I have asked the Attorney General several times
to reject its legal reasoning, but he continues to refuse to do so. The
only solution is for Congress to apply the Army Field Manual's
standards to the entire Government. There has rarely if ever been a
greater need to restore the rule of law to America's interrogation
practices.
The field manual represents our best effort to develop the most
effective interrogation standards. The manual clearly states that: Use
of torture is not only illegal but also it is a poor technique that
yields unreliable results, may damage subsequent collection efforts,
and can induce the source to say what he thinks the interrogator wants
to hear.
We have on trial in military courts six of those who are going to be
tried because of 9/11. There is no question there is going to be a
whole series of appeals because of the use of various techniques
against them. It may very well be that some turn out--because of the
violations of basic and fundamental, some constitutional rights, there
will be a question about what the outcome is going to be with regard to
those individuals.
Why not get it right from the start? The manual gives our
interrogators great flexibility, provides all the techniques necessary
to effectively question detainees, but it makes clear that illegal and
inhumane methods are not permitted.
In a letter to our troops dated May 7, 2007, General Petraeus stated:

Our experience in applying the interrogation standards laid
out in the Army Field Manual . . . shows that the techniques
in the Manual work effectively and humanely in eliciting the
information from detainees.

Applying the field manual's standards throughout our Government will
move us closer to repairing the damage to our international reputation
in the wake of the Abu Ghraib scandal. It will once again commit the
United States to be the world's beacon for human rights and fair
treatment. It will improve the quality of intelligence gathering, and
protect own personnel from facing punishment, condemnation, or
mistreatment anywhere in the world. It will make us more, not less,
safe.
Torture is a defining issue. It is clear that under the Bush
administration we have lost our way. By applying the field manual
standards to all U.S. Government interrogations, Congress will bring
America back from the brink, back to our values, back to basic decency,
back to the rule of law.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, today's debate goes to the heart of
what our country is and what we wish it to be, by asking this: Will the
United States of America condone torture? Is there, at America's heart,
a heart of darkness? This authorization bill for America's intelligence
community offers us the opportunity to answer that question decisively.
It contains provisions for which I have fought from my initial
amendment in committee, and which I am proud to support today, that
would prohibit members of the intelligence community from using
interrogation techniques beyond those authorized in the Army Field
Manual.
By adopting this amendment, the two Intelligence Committees,
Congress's experts on these matters, have sent a clear signal to
America and to the world that in this country the rule of law is our
strongest bulwark against those who would do us harm.
I hope that today the Senate will have the confidence in our values
to reaffirm that signal and pass this legislation with the Army Field
Manual provision included.
Over the past several months, the American people have become all too
familiar with the issue of torture. I want to discuss one technique in
particular today, waterboarding, or water torture, or the water cure,
which dates back to the Spanish Inquisition of the 14th century.
Waterboarding was a favorite of torturers, because its terrible
effects could be generated without the visible damage accompanying the
rack, the screw, the iron, the whip, or the gouge. It could be done
over and over.

In the 20th century, waterboarding was done in the Philippines, where
colonizers wielded it against indigenous peoples. It has been used in
Sri Lanka, in Tunisia, by the Khmer Rouge in Cambodia--we are in the
tradition of Pol Pot--by the French in Algeria, by the Japanese in
World War II, and by military dictatorships in Latin America. The
technique ordinarily involves strapping a captive in a reclining
position, heels above head, putting a cloth over his face and pouring
water over the cloth to create the feeling of suffocation and drowning.
It leaves no marks on the body, but it causes extreme physical and
psychological suffering.
A French journalist, Henri Alleg, was subjected to this method of
interrogation during the struggle for Algerian independence. He wrote
in his 1958 book ``The Question'':

I tried, by contracting my throat, to take in as little
water as possible and to resist suffocation by keeping air in
my lungs for as long as I could. But I couldn't hold on for
more than a few moments. I had the impression of drowning,
and a terrible agony, that of death itself, took possession
of me.

Waterboarding is associated with criminal, tyrant, and repressive
regimes, with rulers who sought from their captives not information but
propaganda, meant for broadcast to friends or enemies whether true or
false. Regimes that employed the technique of waterboarding generally
did not do so to obtain information; rather, to obtain compliance. But
no matter the purpose or the reason, its use was and is indefensible.
Water torture was not unknown to Americans. A 1953 article in the New
York Times quotes LTC William Harrison of the U.S. Air Force, who said
he was ``tortured with the `water treatment' by Communist North
Koreans.'' In testimony before a U.S. military tribunal, CAPT Chase Jay
Nielsen described being waterboarded by his Japanese captors following
the 1942 Doolittle raid by U.S. aviators. From all this, America's
military knew there was a chance our servicemen and servicewomen would
be subjected to water torture.
The Defense Department established the SERE program--survive, evade,
resist, and escape--to train select military personnel who are at high
risk of capture by enemy forces or isolation within enemy territory.
The program has also subjected certain service personnel to extreme
interrogation techniques, including waterboarding, in an effort to
prepare them for the worst--the possibility of capture and torture at
the hands of a depraved or tyrannical enemy.
According to Malcolm Nance, a former master instructor and chief of
training, at the U.S. Navy SERE school in San Diego:

[O]ur training was designed to show how an evil
totalitarian enemy would use torture at the slightest whim.

Those who have experienced this technique, even at the hands of their
own brothers in arms, are unequivocal about its effect. Former Deputy
Secretary of State Richard Armitage, who underwent waterboarding during
SERE training, said this:

[[Page S940]]

As a human being, fear and helplessness are pretty
overwhelming. . . . this is not a discussion that Americans
should even be having. It is torture.

Our colleague in this body, Senator John McCain, has said the same.
Yet it was to this relic of the dungeons of the inquisition, of the
Cambodian killing fields, and of the huntas of the Southern Hemisphere
that the Bush administration turned for guidance. I will speak later
about how our Department of Justice came to approve this. But for now,
we know that last week, in a stunning public admission, the CIA
Director General, Michael Hayden, admitted the United States
waterboarded three detainees following the September 11 attacks. The
virus of waterboarding had traveled from tyrant regimes, through the
SERE program, and infected America's body politic.
Retired BG David Irvin, of the U.S. Army Reserve, a former
intelligence officer and instructor in interrogation, and Joe Navarro,
interrogator with the FBI, recently wrote:

[T]here is considerable evidence that the CIA had to
scramble after 9/11 to develop an interrogation program and
turned to individuals with no professional experience in the
field. . . . Given the crisis atmosphere of the day, it is
all too easy to believe the comment of an intelligence
insider who said of the secret program to detain and
interrogate al Qaeda suspects that ``quality control went out
the window.''

Don't let us jump out the window after it.
America's military is expressly prohibited from using torture because
intelligence experts in our Armed Forces know torture is an ineffective
method of obtaining actionable intelligence. Again, I will speak later
about the false assertion that this program was designed for 18-year-
old novices. Some of the most sophisticated intelligence interrogations
are done by our military after intense training. Our military adheres
to the Army Field Manual on Human Intelligence Collector Operations. At
a hearing before the Senate Select Committee on Intelligence, on which
I serve, I asked COL Steven Kleinman, a 22-year veteran of
interrogations, a senior intelligence officer in the U.S. Air Force
Reserves, and a veteran interrogator with plenty of experience overseas
in the Middle East, about his experience conducting interrogations
using the Army Field Manual.
He said:

I am not at all limited by the Army Field Manual in terms
of what I need to do to generate useful information. . . .
I've never felt any necessity or operational requirement to
bring physical, psychological or emotional pressure on a
source to win their cooperation.

A significant number of retired military leaders have written to the
chairman and vice chairman of the Intelligence Committee saying:

interrogation methods authorized by the field manual have
proven effective in eliciting vital intelligence from
dangerous enemy prisoners. . . . And the principles reflected
in the Field Manual are values that no U.S. agency should
violate.

And GEN David Petraeus, commander of U.S. forces serving in Iraq,
reiterated this point when he wrote last year to every soldier serving
in the Iraq theater:

Some may argue that we would be more effective if we
sanctioned torture or other expedient methods to obtain
information from the enemy. They would be wrong. Beyond the
basic fact that such actions are illegal, history shows that
they also are frequently neither useful nor necessary. . . .
our experience in applying the interrogation standards
laid out in the Army Field Manual on Human Intelligence
Collector Operations that was published last year shows
that the techniques in the manual work effectively and
humanely in eliciting information from detainees.

The cochairs of the 9/11 Commission emphatically agree. On Monday,
the chairmen, together with two former Secretaries of State, three
former National Security Advisors, and other national security experts,
wrote that ``[c]ruel, inhuman and degrading treatment of prisoners
under American control makes us less safe, violates our national
values, and damages America's reputation in the world.''
Torture is ineffective. It is wrong. It is dangerous to all those who
serve the United States of America in harm's way. It should never, ever
be used by any person who represents the United States of America or
any agency that flies the American flag.
I was proud last July to introduce an amendment in the Intelligence
Committee that would write this rule into law. When that effort did not
succeed, I was proud again last winter to support Senator Feinstein's
amendment in conference.
I call on all my colleagues to support this legislation. We can
journey no longer down Winston Churchill's stairway which leads to a
dark gulf. As Winston Churchill said:

It is a fine broad stairway at the beginning, but after a
bit, the carpet ends. A little farther on, there are only
flagstones, and a little farther on still these break beneath
your feet.

The United States of America--the city on a hill, the light of the
world, the promise of generations--must not ever condone torture.
Torture breaks that promise. Torture extinguishes that light. Torture
darkens that city. I hope by our actions today, we in the Senate will
help turn this country back toward our centuries-old promise. I hope we
will turn toward the light.
I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I almost have no words to praise the
Senator from Rhode Island for the eloquence and strength of his speech,
which was not only grounded in very deep substance but was delivered
with elegiac nature that both culled the human spirit as well as
grounded the futility of torture. I congratulate him.
I also rise strongly in support of section 327 of the intelligence
authorization conference report. I recognize it will be controversial.
I don't care. It is important that some background on this section be
provided. Some of it has been this morning. During the conference on
the authorization bill, the conferees adopted an amendment that would
require the intelligence community to conduct its interrogation in
accordance with the terms of the U.S. Army Field Manual. The full
membership of the House Intelligence Committee and the Senate
Intelligence Committee served on the conference committee. So it was a
majority of those two committees that came to that conclusion.
Section 327 of the intelligence authorization conference report
directly parallels the provision in the Detainee Treatment Act that
forbids subjecting anyone in Department of Defense custody to any
treatment or technique of interrogation not authorized by and listed in
the U.S. Army Field Manual on intelligence interrogation. Section 327
applies these same restrictions to the intelligence community at large.
The effect of section 327 is, therefore, to require all of the U.S.
Government operate their interrogation programs under a single
interrogation standard, the standard set by the U.S. military. Adopting
the military standard for interrogation as the universal standard makes
sense, and I hope some of my colleagues are listening. It is the
members of the military who most benefit from reciprocal obligations of
the Geneva Convention requiring humane treatment of prisoners and who
are most likely to be subjected to retaliation based on the failure of
the United States to follow those obligations. That statement is
frequently made, and then it is frequently absorbed and discarded.
Think about it. Retaliation is the way of the world, and it will be no
different here. What we do to others, they will do to us.
The U.S. Army Field Manual on interrogation was revised in September
2006 after significant interagency review. This included a review by
the Central Intelligence Agency. By providing a number of approach
strategies such as the incentive approach, emotional approach, and the
Mutt-and-Jeff approach, the Army Field Manual gives interrogators
significant flexibility to shape the interrogation. It doesn't
delineate exactly how. It gives them a lot of flexibility.
The Army Field Manual also explicitly prohibits, as we know,
waterboarding, forcing detainees to be naked, inducing hypothermia or
heat injury or subjecting a detainee to beatings, as well as a number
of other things. All this raises the question at the heart of this
debate: Should the Central Intelligence Agency, the well-known CIA, be
allowed to use coercive interrogation techniques to obtain information
from al-Qaida detainees?
This debate is about more than legality. It is about more than
ensuring

[[Page S941]]

that the intelligence community has the tools it needs to protect us.
It is also about morality, the way we see ourselves, who we are, who we
want to be as a nation, and what we represent to the world. What we
represent to the world has a direct effect on the number of people who
determine they want to join the jihadists movement and come after us.
It is a decision that can and should be left to Members of Congress
who are the representatives of the American people. In the early period
of the CIA program's existence, I repeatedly called--and I am extremely
frustrated by this, extremely frustrated--for an Intelligence Committee
investigation into the Agency's detention interrogation practices.
That was in the committee. I was, at that point, vice chairman and
could not control, obviously, the vote. So on vote margins of one, we
lost. We could not get anything going in the way of studying the
subject and investigation of the subject. Then I moved to the floor and
once again could not get the committee to investigate the subject. I
also tried to have the CIA brief all the members of the committee on
the interrogation program. That also did not happen.
I recognized that assessing the need for the CIA's enhanced
interrogation techniques, the intelligence obtained from detainees, and
the importance of maintaining America's position in the world were
issues that we in Congress needed to debate and discuss, and,
unfortunately, we did not.
About a year and a half ago, the full membership of the Intelligence
Committee was finally provided information about CIA's interrogation
program. It is the whole point of oversight. They are not accustomed to
us doing that--not just the CIA, but the intelligence community--having
representatives of the people asking questions. They think it is an
elite field for them. They are proud of their traditions. They fight
among themselves, and they do not build into their thinking what it is
that the Congress might feel about this.
About a year and a half ago, as I say, we were brought into their
interrogation program. Since that time, our committee has held multiple
hearings on that subject. We have done our best to learn as much as
possible about the basis for and the consequences of CIA's program, as
well as interrogation in more general terms.
These briefings and hearings have led the committee to conclude that
all agencies of the U.S. Government should be required to comply with a
single standard for interrogation of detainees. The Army Field Manual
provides a standard of humane treatment that indisputably complies with
our international obligations under the Geneva Conventions, as well as
with U.S. laws.
The CIA has briefed the committee on several occasions about its
interrogation of al-Qaida detainees. The CIA has described the basis
for the program, and why they think it should be allowed to continue.
Although the CIA has described the information obtained from its
program, I have heard nothing--nothing--that leads me to believe that
information obtained from interrogation using coercive interrogation
techniques has prevented an imminent terrorist attack.
This is true for a very simple reason. Once a terrorist is captured,
his fellow plotters, understandably, change their plans. In other
words, I do not believe the CIA has ever been in an actual ``ticking
timebomb'' scenario, nor do I think it is ever likely to be placed in
that situation. That does not mean the information obtained from the
program has not been valuable. Of course information about al-Qaida is
exceedingly valuable from an intelligence standpoint. It is bits and
pieces of information that allow our intelligence professionals to
assess al-Qaida's capabilities and to determine how best to protect
ourselves as a nation. But, more to the point, I have not heard nor
have I seen any evidence that supports the intelligence community's
claim that using enhanced interrogation techniques is the only way to
obtain this type of intelligence; that is, to get what they need to
get.
After 9/11, the intelligence community decided that coercive
interrogation tactics were the best way to obtain intelligence. It was
perhaps a little bit understandable then in terms of the general panic
of the Nation. But the intelligence community--I say this gravely--did
not take the time to research what interrogation techniques might be
most effective to come to this conclusion, nor did they reach out to
the interrogators with experience, particularly those questioning
Islamic terrorists. They did not do that. They were going to do it
their way. They simply assumed--and they simply still assume--that
coercive interrogation techniques were the best way to obtain
information.
To this Senator, this was clearly a flawed approach. But at this
point, the administration is so invested in the use of these techniques
they can no longer psychologically or otherwise step back to assess
what methods are most effective to obtain intelligence. They go by the
mantra, they go by what has been done before.
To address this question, the committee explored how other Government
agencies conduct interrogation. The committee considered critical
interrogations of individuals who do not want to disclose information--
people who are hardheaded and do not want to talk--interrogations where
obtaining information can prevent widespread injury or death.
Every day, military interrogators in Iraq and Afghanistan question
individuals with information that can save lives--every single day--
questions about where explosive devices are hidden, where captured
soldiers have been taken, or where caches of weapons are stored, and a
lot more.
Now, the CIA loves to argue: Oh, but they are just 18- to 20-year-old
kids. They don't have the experience. We have experience. We have
experience. We have been at it. We are the professionals. They did that
at our public, open threats hearing a week or so ago.
Now, there is something called the FBI. They deal with pretty bad
people, too. Their agents face life-and-death situations in both the
world of terrorism and every-day criminality. Some of the individuals
the FBI interrogate are senior leaders, individuals who are committed
to staying silent and not sharing the information they possess. In
fact, FBI agents recently questioned the top al-Qaida leaders who were
formerly in CIA custody, gathering enough information from those al-
Qaida leaders to build cases for trial, which we have recently read
about.
Some of these FBI agents have been conducting interrogations for two
or three decades. That does not sound like 18- to 20-year-olds. They
are, without question, recognized experts in their field, and they are
remarkably effective at obtaining the information they need. Yet both
the FBI and the military have told us they do not need enhanced
interrogation techniques. Are these naive organizations? Are these
people who do not know what they are talking about? Are these people
who do not have stakes at hand? They are out on the battlefield. They
are not only at Guantanamo. They are out on the battlefield. They have
told the committee the interrogation techniques included in the Army
Field Manual provide them with flexibility they need to obtain the
information they need.
Indeed, representatives from both the military and the FBI--both--
stated emphatically they have the tools they need to obtain necessary
and reliable intelligence.
After considering the CIA's arguments, and those of the FBI and the
U.S. military, I am simply not convinced that harsh CIA tactics are
necessary to obtain intelligence information.
We also had people who were neutral who had experience in
interrogation but were not currently in the practice of it. Their
information to us also was that to terrorize, to torture, to manhandle,
to do whatever, does not work. Human beings are human beings, and there
are ways to get at them. In fact, coercive interrogation techniques can
lead prisoners--and probably will in many cases--to say anything at all
for the purpose of stopping the interrogation. As a result, coercive
techniques can produce information that is fabricated and ultimately
lead to flawed and misleading intelligence reports. This is not
academic or hypothetical. Bad intelligence is a real danger.

[[Page S942]]

In the early years and months after 2001, we were awash with bad
intelligence in Washington, DC, not all of it coming out of coercive
techniques, but out of a complete misunderstanding of what intelligence
is all about. In fact, there was a condescension from the
administration about the role of intelligence in providing reliable
information. So this is not an academic or hypothetical point. Bad
intelligence is a real danger when employing coercive interrogation
techniques.

Intelligence reporting from an al-Qaida detainee--a very famous one
named al-Libi he said Iraq was providing al-Qaida training in chemical
and biological weapons prior to the war, which was publicly trumpeted
by the President of the United States, by the Secretary of Defense, by
the Secretary of State, and other senior administration officials as
proof of operating links between Iraq and al-Qaida and, therefore, as a
basis for going in to invade Iraq.
Of course, basically all of us feel now that what the President said
on March 23 in the other body, in his speech which gave him the
authority to go to war, was based on intelligence which was almost
entirely incorrect, and virtually everything he said, other than some
rhetoric here and there--everything he said turned out to be wrong,
and, therefore, was one of the most extraordinary disservices to the
American people, not to speak of the dead and the wounded, that I can
remember in my lifetime. But the Nation was inspired by the thought of
fighting terror, and so on they went.
Ultimately, al-Libi, who said these things, recanted. He recanted,
and it was determined by the CIA that he had fabricated this central
allegation of this link between al-Qaida and Iraq and other information
based on his claim of mistreatment during the interrogations.
So this is not an academic point. America went to war based on an
alleged threat that was partially based on fabricated information
produced under coercive interrogation.
Apart from the question of efficacy and the risk of bad intelligence,
the committee has explored the consequences of having a different,
secret standard of interrogation for the intelligence community. This
is where the need for section 327 becomes clear.
Since the disclosure of information about the existence of secret
prisons, and the use of harsh interrogation techniques, the reputation
and moral authority of the United States have suffered dramatically. It
is not a casual statement. One can say, yes, a lot of people have said
that. But when that is true, that means that in Africa and Southeast
Asia and South America and in the Middle East it becomes much easier
for al-Qaida and those who would do us ill--and people within the
United States who may belong to no formal organization like that at
all--to develop anger, to develop a search for meaning to their lives
because they do not see hope in their lives, and so they join. They
join a group that will do damage. Some of our techniques have
significantly increased the likelihood of that happening.
Rather than being a world leader in human rights, we have become
known for the unapologetic use of aggressive interrogation techniques.
Indeed, even Canada has included us on a list of countries that engage
in torture.
Allowing the CIA to continue to use coercive interrogation techniques
that are not part of the Army Field Manual is another piece of fodder
for terrorist propaganda that cannot be underestimated. It is not just
a rhetorical statement. It cannot be underestimated. It is no way to
win the hearts and minds of the Muslim world. Ultimately, the war on
terrorism is a war of ideas. Without a public standard of humane
treatment, it is impossible to convince the world that we take our
international obligations seriously, that we treat people humanely, and
that we are a country of laws and we adhere to these laws.
We must uphold those standards that differentiate us from the
terrorists whom we are fighting. If our Government continues to use
secret interrogation techniques that many are convinced constitute
torture, America's standing in the world will continue to go down even
more. Every time it goes down, there are more people who sign up to do
us harm.

The Israeli Supreme Court concluded, when it forbade the use of harsh
interrogation techniques, the following:

This is the destiny of democracy, as not all means are
acceptable to it and not all practices employed by its
enemies are open before it. Although a democracy must often
fight with one hand tied behind its back, it nonetheless has
the upper hand. Preserving the rule of law, and recognition
of an individual's liberty, constitutes an important
component in its understanding of security. At the end of the
day, they strengthen its spirit and its strength and allow it
to overcome its difficulties.

So in closing, passing section 327 is critical to regaining our moral
authority in the world--which is a little bit too easy to say; it is
going to take a lot more than that but it is a start--and convincing
people that the United States believes in due process and human rights
rather than fear. Having a separate standard of interrogations for the
CIA--as much as it may want to have it, as much as it may have pride in
having their secret standard, as much as they talk about 18- to 20-
year-olds--is simply not worth the cost. I, therefore, urge my
colleagues to support section 327.
But no matter how the Senate votes on this motion, if it comes up,
the CIA should very carefully consider the actions of the House and
Senate Intelligence Committee. All Members need to consider what this
large group concluded. The members of our committees are the only
Members of Congress who have been briefed on the program and who are
privy to the administration's best arguments in support of the program.
That has to be said from time to time, and it sounds a bit arrogant,
but there are people on the Intelligence Committees, both in the House
and the Senate, who get briefings, and they know things that are not
necessarily known to the rest of the Congress. Yet despite those
briefings, a bipartisan majority of both the House and the Senate
Intelligence Committees have determined that it is in the Nation's best
interest to have only one standard of interrogation, a standard that
can be publicly judged by the entire world, and this judgment by the
representatives of the American people--that is, what we did in the
conference committee--cannot be ignored.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. Mr. President, I compliment my distinguished friend from
West Virginia. He has been a very bipartisan worker on the Senate
Select Committee on Intelligence. I have been on that committee for an
awfully long time, and I have a lot of respect for him. I just want to
make that point for the record. I know he spends a lot of time trying
to do his job well. We don't always agree, but we do agree on an awful
lot. I particularly appreciate his work on the FISA bill. I know it is
a very difficult position for him to be in. It is a very technical,
very difficult bill, a complex bill, with a lot of matters conducted in
public. I think he did a terrific job in seeing this bill through to
the Senate floor.
I also would like to take a moment to thank my colleague and friend
who works with me, Jesse Baker. He is a Secret Service detailee on my
staff who has been invaluable in helping me prepare for the important
FISA debate.
I also thank the very able counsel of the Intelligence Committee,
Kathleen Rice, along with Jack Livingston, Mike Davidson, and Chris
Healey, all of whom I think played a significant role in the FISA bill,
among so many other things as well. I also would like to pay tribute to
my colleague on the Intelligence Committee, my staffer who works with
me, Paul Matulic, who is one of the most articulate and knowledgeable
foreign policy people in government today. I am very grateful for his
work and the effort he has put forth to try to assist me in these very
difficult times and very difficult jobs.
This might be a historic week for the Senate Select Committee on
Intelligence, at least in comparison with the last 3 years. Last night,
we passed, after over a year of work and preparation, including the 6-
month interim Protect America Act, the FISA modernization bill. I truly
hope our House colleagues can expedite this bill and get it to the
President for his signature before the legal regime governing our
essential technical capabilities expires this weekend.
I wish to congratulate both the chairman, as I have said here
earlier,

[[Page S943]]

and vice chairman, Senator Bond, for their sustained efforts on this
issue. It wouldn't have been passed without their sterling leadership
and their willingness to make some tough calls and to stick to them.
I have often said I am metagrobolized--confounded, you might say--
that we have heard about the asymmetrical advantages that our terrorist
enemies have, while we are reluctant to use our own significant
asymmetrical advantages to defend ourselves from these terrorists'
intentions. The terrorists do have asymmetrical advantages, to be sure:
They are substate actors, and they do not operate according to any
national or international law, including the law of war. They hide
among civilians, target civilians, and terrorize civilization. If al-
Qaida could get its hands on a weapon of mass destruction, everything
we know about them suggests they would use it against the West.
But we in the West also have asymmetrical advantages as well. Two
significant advantages are our technological prowess and our adherence
to the rule of law. Our technology, as we have revealed in more ways
than I think prudent in our open debate, provides us unparalleled
advantages in tracking the enemy. Our collection has prevented
terrorist attacks against us, and our continued collection makes the
enemy dedicate a significant amount of its time to avoiding us--time
that it would use plotting against us. In this sense, our technological
collection is not just a defensive tool but an offensive tool as well.
Americans and their leaders are right to expect that all of this
Nation's activities should adhere to the rule of law, and this long
debate over FISA modernization should, at the very least, assure
everyone that we adhere to a legal regime, even when it seems
aggravatingly slow to adjust it to modern technology and threats
unimagined in the 1970s when the original FISA Act was enacted.

So I again wish to congratulate the chairman and the vice chairman
for their leadership in getting this important piece of legislation
passed, finally, last night. It was a major banner day for us. This
bill was long overdue, and I give credit to those who have worked so
hard--long and hard--to see that it was done.
The passage of an intelligence authorization bill is also an
important measure of how we advance the rule of law. The balance of
powers so beautifully articulated in our system of government requires
an active role for this body and, since the 1970s, we have
institutionalized a role of oversight for intelligence in the two
committees of the Senate and the House.
Our principal vehicle is the authorization bill. This process has
been derailed for several years now, as Members operating with
individualized agendas have created a dynamic that has thwarted the
institutional need for authorization. It is a fact that, if some
concede that an authorization bill is not essential, the self-
moderating dynamic that keeps one from offering controversial
amendments on a bill is removed. We have seen this with the foreign
relations authorization bills. I don't want to see it happen with the
intelligence authorization bill.
This year's bill has some very important measures in it, most of them
in the classified annex and therefore not subject to discussion now. It
is, after all, an authorization for the intelligence community--or IC--
which does, after all, require a minimum of secrecy to function
effectively. The bill does have measures in the unclassified annex
worthy of passage, however, to include additional and needed
authorities for the Director of National Intelligence, directions on
personnel level assessments for the IC, directions on business
enterprise architecture modernization, and limits on excessive cost
growths of certain systems.
The bill, however, has been strapped by a provision added during
conference that was not a part of either the House or Senate bills
going into conference that would in this case limit all IC
interrogation techniques to the Army Field Manual. Now, this provision
is widely seen as a prophylactic against the use of torture, and there
begins the misconceptions.
The United States does not torture. Whether the process known as
waterboarding constituted torture when it was used in three cases in
the past--and we cannot discuss exactly how it was used here--is a
debate to be held among historians and scholars of the law. I do not
wish to inhibit that debate. I also do not wish to violate U.S.
domestic law or international law to which we are committed as a
nation. The rule of law serves our advantage.
But the conflict over what was lawful in interpretation in the first
2 years after the 9/11 attacks recognizes, to the honest analyst, that
there is murkiness at the intersection of law, policy, and legal
interpretation. That has always been the case. As I say, I do not want
to inhibit this debate.
I also do not wish that historic debate to inhibit any techniques we
need to use for interrogation today. Last week, in an open session of
the Senate Select Committee on Intelligence, Director Mike Hayden--
General Hayden--spoke forcefully, openly, and articulately about the
issue of waterboarding. He said in public that, No. 1, less than one-
third of less than 100 detainees held by the CIA since 9/11 have ever
been subjected to enhanced interrogation techniques. No. 2, of that
small sample, only three have been subjected to waterboarding. No. 3,
waterboarding has not been used for almost 5 years. Yet we have heard
nothing but screaming about this issue, as though it was relevant
today.
As Director Hayden went on to state, there is a universe of lawful
interrogation techniques. This includes FBI procedures, the Army Field
Manual, and the enhanced interrogation techniques used by the CIA, but
which, I repeat, does not include waterboarding today. The DCI made it
plain--the Director of Central Intelligence made it plain that the CIA
will play to ``the edges that the American political process allows us.
It is our duty to play to that edge.'' The DCI also made it clear that
if the Congress directs that line is set by the Army Field Manual, then
that will be the line in law that CIA officers will respect and adhere
to.
So Congress must act soberly and responsibly in addressing the
question of enhanced interrogation techniques. As the hearing last week
made clear to anyone listening, the various approaches--FBI techniques,
DOD's Army Field Manual, and CIA's enhanced techniques--address various
subjects under different circumstances with different sets of goals.
Director Maples told me he could not imagine that anyone would have
objected to the use of current enhanced techniques if they could have
gained the intelligence that would have prevented the attack on the USS
Cole.

In my mind, the greatest advantage of the enhanced interrogation
techniques is the public ambiguity surrounding the fact that they are
classified. I don't want an al-Qaida operative we have just wrapped up
to know what is in our playbook. But I want to make clear, ambiguity is
not--I repeat, not--a cloak for torture.
I can't go into details here, but I can say I have been constantly
amazed as I have studied this issue in the Intelligence Committee over
some of the sanctimony that has been used by some people on the Senate
floor addressing this issue, and off the Senate floor as well. I can
quite comfortably say there are actions the American public has
routinely witnessed on some of our most popular television police shows
over the past two decades that would exceed anything in the enhanced
interrogation techniques allowed by the CIA. I find this to be ironic.
I cannot support this conference report if it has the language
limiting interrogation to the Army Field Manual. This is a manual
written for our soldiers, all of whom I think we all agree are brave,
dedicated warriors, but most of whom are young and inexperienced in the
needs of interrogation. They should have their manual. I must point
out, however, that Army Field Manuals are subject to revision by the
Executive at any time, so that we in Congress are acting a little too
self-satisfied by this simple gesture if we actually believe we are
rectifying the rule of law.
I say, let's have this debate and let's really define what it is we
wish to proscribe, and let's understand the needs of our intelligence
and the consequences for our actions--consequences that could be very
grave if we keep playing games with these issues--or should I say
political games. Both would be wrong, in my opinion.

[[Page S944]]

Much of this debate must be classified, but the Senate has procedures
for closed sessions, and, after all, the Senate Select Committee on
Intelligence was created for just this need. I serve on that august
committee, and I have served on it for a long time.
Sometimes I feel as if I am on the corner of sanctimony and
righteousness. Sanctimony has popular appeal--it gains the approving
tut-tutting of the chattering masses. Often it is more bombast than
substance, more Babbittry than bravery. Righteousness is not always a
function of the approval of the masses. Those who go to war to defend
do things that are lawful but sometimes unpleasant--sometimes very
unpleasant. In the choice between sanctimony and righteousness, I will
choose the latter.
I do not wish to calumniate anyone in this debate. I presume that
people are motivated by the purest of motives, as is always the case in
the Senate--or should I say I hope it is always the case in the Senate.
I wish, however, that we had more substantive debate on some of these
difficult questions.
So because this conference report includes a measure limiting
interrogation techniques for our intelligence professionals in the Army
Field Manual--a measure added at the last minute in conference,
something that was in neither bill, the House's or the Senate's--I will
vote against the conference report and urge us all to reengage in this
debate so that the lines of law we draw, that our intelligence
professionals will respect, are lines that also maintain our best
defenses within the rule of law.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Menendez). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. VITTER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. VITTER. Mr. President, I ask unanimous consent that I be
permitted to speak for 15 minutes as in morning business and to yield
some of that time to the distinguished Senator from Pennsylvania who
joins me on the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.

Nomination of David Dugas

Mr. VITTER. Mr. President, I come to the floor with welcome support
of the distinguished Senator from Pennsylvania, who serves so ably on
the Judiciary Committee, to talk about the pending nomination of David
Dugas to fill a vacancy in the Middle District of Louisiana.
This is a vacancy that has existed for over a year, and, in fact,
coming up very soon in March will unfortunately, if we do not act
before then, will be noting the 1-year anniversary of the nomination of
David Dugas to fill this vacancy in the Middle District of Louisiana,
of course nominated by President Bush.
Mr. Dugas is currently U.S. attorney in that same district. In that
capacity, of course, he had to come before this Senate and be
confirmed; and he was by unanimous consent. So that was a very
resounding confirmation of him, which included support by my colleague
from Louisiana, Senator Landrieu.
In terms of this judicial nomination, Mr. Dugas has received the
highest rating possible by the American Bar Association. He is
eminently qualified. There is nothing in his background or his dealings
or his job as a U.S. attorney that remotely suggests otherwise.
Yet there has been great delay and obstructionism, in my opinion, in
terms of considering this worthy nomination. In fact, even though we
are coming up on the 1-year mark of President Bush's nomination of him,
he has yet to receive a hearing before the Judiciary Committee because
my colleague, Senator Landrieu, has not turned in her so-called blue
slip.
I rise to make note of this, and in a few minutes I will have a
unanimous consent to propose to the Senate to remedy this situation. I
have also specifically invited Senator Leahy, Chairman of the Judiciary
Committee, and Senator Landrieu, my colleague from Louisiana, to join
us on the floor for an appropriate colloquy.
With that introduction, I yield such time as he would consume to my
distinguished colleague from Pennsylvania, the ranking member of the
Judiciary Committee.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I join the Senator from Louisiana in his
request to have a hearing and then proceed with an up-or-down vote. I
have reviewed the record of the nominee. It appears to me that the
nominee is qualified for the position.
In his service as a U.S. attorney, he has already had Senate
confirmation. But the basic proposition of having a hearing and a vote,
I think, is very fundamental to so many pending nominees beyond the
nominee addressed by the Senator from Louisiana today.
I have discussed this issue on a number of occasions with the senior
Senator from Louisiana, and she has been of the view that she ought not
to return the blue slip, and I respect her decision. But I also respect
the position of Senator Vitter in trying to move forward.
It would be my hope that we could come to some accommodation, that we
could find some way to set a timetable for a hearing, at least on that.
Senator Vitter has advised me that he has written to both the
distinguished chairman and the senior Senator from Louisiana and that
there is to be a unanimous consent request. I know Senator Vitter will
await the arrival of someone who can object because my expectation is a
unanimous consent request will be objected to. But the issue involved
is to raise the issue and to make the point as to what has happened and
to try to see if there can be some accommodation, as noted by the floor
discussion today.
I see Senator Vitter nodding in the affirmative. In my capacity as
ranking member on the Judiciary Committee, I would like to get these
nominations to move forward.
I yield the floor.
Mr. VITTER. I thank the distinguished Senator from Pennsylvania,
first for his service on the Judiciary Committee; it has been very
distinguished, to serve there as many years very ably, now-ranking
member, and specifically for his support on this nomination and others
to try to break through the gridlock, break through the partisanship,
move forward in a positive way for the country.
I believe that is absolutely necessary in a number of cases, but the
one that surely hits closest to home for me is this nomination of David
Dugas to a judgeship in the Middle District of Louisiana. So I thank
the ranking member for all his help and support; I know it will
continue.
Again, let me note I wrote to Chairman Leahy that I would be taking
the floor this week to make the upcoming unanimous consent request. I
did the same to my colleague from Louisiana, Senator Landrieu. As soon
as we figured out the time that would be available, we sent them word,
and I sincerely hope they can both join me on the floor because I think
it would be very useful and very informative to have an appropriate
discussion and colloquy about this case. So I certainly invite that. I
would encourage them to accept the invitation to join me on the floor.
Let me point out and reiterate some very important points about this
nomination. President Bush made the nomination some time ago. That was
March of last year. We are coming up quickly on the 1-year mark of this
nomination. The vacancy in the Middle District has been open even a
little bit longer, over a year.
Because of that, a backlog of cases is quickly mounting in the Middle
District. The Middle District is an area surrounding Baton Rouge, LA,
the capital of the State. It has felt a huge influx of people, of
residents, and of litigation, largely because of Hurricane Katrina.

Because of that, because of this vacancy, judicial backlogs have been
mounting and mounting. We are not quite to the point--and this is
defined in law and by rules of the court--we are not quite to the point
that it is defined as a ``judicial emergency,'' but we are quickly
coming up to that line.
So the people of Louisiana, the people of the Middle District are not
being served well and properly and as quickly as they should be. This
vacancy needs to be filled for that reason.
Now, let us look at the man who President Bush has chosen to fill the

[[Page S945]]

vacancy. By all accounts, he is eminently qualified. Mr. Dugas is the
sitting U.S. attorney in the Middle District. He has done a very fine
job in that position, has won praise from many different quarters,
particularly from law enforcement.
He has many admirers and allies in the law enforcement community:
Sheriffs across the State, chiefs of police, district attorneys, many
others. They have written in to many of us about this nomination in
strong support.
Mr. Dugas was already considered by the Senate, of course he had to
be, for his present job of U.S. attorney. He was considered very
favorably. In fact, it was considered completely noncontroversial, and
he was confirmed swiftly by unanimous consent. In that process, of
course, my colleague, Senator Landrieu, was here at the time and was
part of that very positive sweeping confirmation.
As I said, for this judicial vacancy, Mr. Dugas has received the
highest rating possible by the American Bar Association. That is a
distinguished professional organization, it is not political, it is
certainly not leaning to the right. Nobody would think that. They have
rated this nominee of President Bush with their highest rating possible
for a judicial nomination.
Yet this languishes and languishes. In another month's time, we are
going to be on the 1-year mark of the nomination, with this backlog of
cases mounting, as we near a judicial emergency in the district.
I do not think that is right. I do not think that is serving the
people of Louisiana at all. I do not think that is serving the people
of the country at all.
Mr. Dugas deserves better. More importantly, the people of Louisiana
deserve better. The people of Louisiana and of the country want us to
act as grownups and to come together and do our work in a timely,
respectful way. They don't think this sort of partisanship and
obstructionism, particularly over judgeships, falls into that
definition.
This got particularly bad a few years ago. I was hopeful. Since I
have been here, not because of my influence but just in general, since
I got here, the Senate has become more responsive and more responsible
about nominations, particularly judicial nominations. Unfortunately,
this is a clear example in the other direction. Let's clear up this
example. Let's move it off the list of those examples of partisanship
and obstruction. Let's act in a reasonable--late, by now, but
reasonable way, finally moving forward with this highly qualified
nominee before this district gets to a state of judicial emergency,
which is looming.
That is my simple and reasonable request. With all that background, I
will now propound a unanimous consent request.
I ask unanimous consent that if the Committee on the Judiciary has
not held a hearing on PN 349, the nomination of David Dugas of
Louisiana to be U.S. district judge for the Middle District of
Louisiana, and reported the nomination to the Senate by March 19, 2008,
which would be the 1-year anniversary of his nomination being
transmitted, that on the next calendar day the Senate is in session,
the Committee on the Judiciary be discharged from further consideration
of the nomination; that the Senate proceed to executive session to
consider the nomination; that there be 1 hour of debate equally divided
between the chairman and the ranking member of the Committee on the
Judiciary or their designees; that upon the use or yielding back of
such time, the Senate immediately proceed to a rollcall vote on the
nomination; that if the nomination is confirmed, the motion to
reconsider be considered made and laid upon the table; that the
President be immediately notified of the Senate's actions; and that the
Senate then resume legislative session.
The PRESIDING OFFICER. The Chair, in my capacity as a Senator from
the State of New Jersey and on behalf of the majority leader, objects.
Mr. VITTER. Of course, I am disappointed--not surprised but
disappointed--at the objection.
I resume my plea specifically to Senator Leahy, chairman of the
committee, and to Senator Landrieu, who has not turned in her blue slip
and is thus the reason for the committee not even holding a hearing,
that we move beyond this, that we have a hearing on this eminently
qualified nominee. If there is a reason to stop the nomination, surely
a hearing is the best venue and the best vehicle to illustrate that and
talk about it. I hope we move beyond the pure obstructionism and
partisanship that has us stuck in the mud with a judicial emergency in
the Middle District looming.
This is exactly the sort of obstruction the American people are tired
of. They spoke clearly to this over the last several years about
judicial nominees. Maybe we got a little better, but here we are again
in terms of this matter and this case which is surely important to
Louisiana. I urge all of my colleagues to work beyond this.
Specifically, I urge the chairman of the Judiciary and Senator Landrieu
to work beyond this. It is unfortunate that they couldn't accept my
invitation to have a useful, informative dialog and colloquy on the
issue on the floor. There has been no good explanation for inaction
that I have ever heard. A lot of people would like to hear some
discussion and explanation. I hope we will hear that soon. I hope in
the very near future we will move toward an appropriate resolution of
this matter, which is a hearing and a vote in Judiciary and then on the
floor of the Senate.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Lautenberg). Without objection, it is so
ordered.
Mr. DORGAN. Mr. President, we are considering the intelligence
authorization bill. My understanding is later this afternoon we will
have, perhaps, a final vote on the bill. There are many important
provisions in the bill. Many of us who have been here for some while--
from the destruction of the World Trade Center and the murder of
thousands of innocent Americans on 9/11, where terrorists used
airplanes loaded with fuel as guided missiles to bring down the World
Trade Center and attacked the Pentagon and through the subsequent
period leading up to the Iraq war--know we have had all kinds of
difficulties with the intelligence community.
We have a lot of men and women risking their lives all around the
world every day collecting intelligence, and yet most of us have been
through top secret briefings that we later find out to have been
absolutely false, wrong, just standing facts on their head.
So it is critically important for this country to have a good system
of intelligence gathering and good analysis of intelligence if we are
going to prevent the next terrorist attack against our country.
It is a difficult world out there. We have terrorists who would like
nothing more than to kill Americans and attack our country. So passing
an intelligence authorization bill that provides the resources,
provides a structure for a good system of intelligence is very
important to the safety and the security of this great country. That is
what the debate is about. That is what the upcoming vote is about.

But there is one provision that has caused a special concern for some
in this Intelligence reauthorization bill, and I want to talk about it
a bit. That is the provision that deals with the subject of torture.
One of the most important provisions in this legislation is one that
makes the Army Field Manual provisions on interrogations applicable to
all U.S. Government personnel. Right now, those provisions which forbid
torture apply only to the military. Those provisions do not apply to
some others that are conducting interrogations on behalf of our
Government. That means that some others who work for the U.S.
Government--the CIA, for example; contractors, for example--may use
interrogation techniques which may constitute torture and which are
forbidden in the Army Field Manual. This legislation incorporates the
Army Field Manual provisions on interrogations and says it applies to
all personnel from the United States.
Now, why is that important? Because it makes a vote for this bill a
vote

[[Page S946]]

against torture. It is a vote that says American values and torture are
not in any way compatible. Voting for this bill is a vote for a country
that has been looked up to throughout the world because of our system
of values. It is that simple, and it is that important.
Let me say that I acknowledge today there are tyrants and despots and
dictators and a lot of evil people in this world and throughout history
who have used and have always justified the use of torture--but not
this country. We have not done that, with the exception of some recent
disclosures I will talk about.
Some people argue that this issue of torture is especially about
waterboarding. Waterboarding is a more antiseptic term. It should be
described as water torture. Some people say that: Well, we have
waterboarded. In fact, it has been disclosed by administration
officials that we have waterboarded--which is water tortured--three of
the most dangerous, despicable terrorists who attacked this United
States, and we only did it at a time when we thought they would provide
information or had information that would allow us to avoid other
catastrophic attacks, and we need to be able to do that again in the
future, if necessary, if some despicable terrorist is planning an
attack on this country.
Let me talk a little bit about what we are describing here.
waterboarding is a practice that has been around for centuries, and it
has been known--widely known--as torture for a long time. In fact,
waterboarding has been prosecuted as torture and as a war crime on many
occasions in history. Trying now to claim it is legal, that it is not
torture, or that it is something other than torture doesn't square with
the facts. Second, history teaches us that torture is not effective.
Aside from the question of morality, it is not effective. Those who
know tell us that those being tortured will often tell you anything
they think you want to hear in order to have the torture stopped.
The provisions in the Army Field Manual set forth the many approved
methods to get reliable information, but those methods do not include
what is defined as torture.
The question about torture is: If you decide that torture is
appropriate and available as a tool for our country to use, why stop at
waterboarding? There are many other forms of torture that are even more
heinous, more abusive: putting people in boiling water, pulling out
their fingernails, amputations, electric shock. Justifying torture is a
very slippery slope that doesn't have a pleasant end for a country that
cares about its system of values. We don't do that and haven't done
that. We haven't been engaged in torture as a country for a couple of
centuries because we don't belong to that group of people in the world
who want to do damage and want to commit mayhem and want to kill
others. We hold ourselves to a higher standard in this country--always
have--a higher standard, a standard that all of us can be proud of.
It is interesting when you think back to the Cold War. We won the
Cold War, but we didn't win it with bombs and bullets; we won it with
American values and American standards, and American rights. The other
evening I saw a very large portion of the Berlin Wall that had been
transported to the United States of America. It was a wall that kept
the free world out and it was a wall that kept those in East Germany
behind it, living in oppression, living in a circumstance where they
were denied freedom. I was thinking again about the Cold War and the
fact that we didn't win the war with bombs.
I have in my desk something I have had there for a long period of
time, if I might show it by unanimous consent. This is a piece of a
wing from a Soviet Backfire bomber. This bomber very likely carried a
nuclear weapon that would have been used against the United States.
Actually, we sawed part of the wing off this Soviet bomber because when
the Cold War was over, we reached an agreement to destroy delivery
systems. I have also in my desk a hinge. This hinge used to be on a
missile silo that held a missile with a nuclear warhead on its tip
aimed at a U.S. city. It was in Ukraine. Where that missile used to
sit, there are now sunflowers growing. It is now a sunflower field. The
missile is gone, the warhead is gone. This bomber is now in pieces.
We won the Cold War. And we have agreements with Russia, Ukraine and
other former Soviet republics under which we help destroy their Cold
War weapons and delivery systems. But we didn't win the Cold War with
bombs; we didn't blow up that Backfire bomber. We didn't blow up the
Soviet missile silo with one of our missiles. We won the Cold War
because of our values. American values won the Cold War.
What are those values? Well, people are free. They believed what they
said. They believed what they wanted. The Government had to respect the
rights of everyone in this country. We were a country that had a
government based on a Constitution that had a Bill of Rights that
applies to all Americans. Our country stood for liberty, human rights,
human dignity, the rule of law. That is what won the Cold War. Those
values were so strong that in the middle of the Cold War with the
Soviet Union, those values shone a light of hope into the darkest cells
and the deepest part of the Soviet Union. In the gulag prisons, in the
outermost reaches of Siberia, those values reached those cells.
Millions of prisoners had been held, often in solitary confinement,
simply for thinking and speaking freely. Many were there for years;
some swept off the streets, never to reappear again; many tortured into
false confessions, and many murdered. Some survived, however, and
talked about their experience, and about how important the idea of
America was to them, how important the idea of freedom was to those who
had been detained and had not been able to experience freedom, and to
those who had been tortured by a country that didn't want them to be
free. It was a clear and vast difference between America and the Soviet
Union. As imperfect as we are, the basic foundation and bedrock of
values in this country is what shined so brightly in the middle of the
Cold War. It wasn't the amount of bombs and bullets each country had;
it was what we stood for.

When the Berlin Wall fell in 1989, the Iron Curtain was lifted, all
of those police states crumbled, and every single one of them became
free countries that provided freedom to their citizens. Every single
one chose freedom and democracy. That is how powerful the idea and the
values of this country have been.
What I say today is we have to regain the moral high ground and
describe our values in circumstances that make it clear that we do not
subscribe to some things others might. We do not support torture. We
will not support torture. It is not what our country is about. From the
very beginning in this country, America has held itself to a higher
standard. George Washington, leading the Continental Army--think about
it: 5,000 soldiers in the Continental Army going up against a British
Army of 50,000 soldiers, and our 5,000 were shopkeepers and farmers;
5,000 against 50,000, and we prevailed over time. George Washington,
after a large number of his troops were captured and slaughtered--he
saw the Hessian mercenaries kill unarmed prisoners. After that, George
Washington and his troops captured a large number of British soldiers,
and many of the troops justifiably wanted revenge. They sought to
execute them just as they had seen done to unarmed American prisoners.
George Washington refused. He refused to treat the prisoners as his
soldiers had been treated. He insisted America was different. He said:
We are different, and we are going to treat people the way they should
be treated, not the way they treated us, and that has been our
birthright.
That is why this discussion right now is so very important. It goes
to the core of what we are and who we are as a nation. Quite simply, we
have to say unequivocally: We are against torture. We, the Congress of
the United States, must say that torture is un-American, simply because
it is. No hair splitting, no fancy words, no legal distinction about
what might or might not be torture. That will begin to restore, I
think, our rightful place if we say we are against torture.
Let me briefly continue to say that being against torture is being
for an America that is better than its enemies. It is that simple. I
said we fought and won the Cold War after many decades. We faced
nuclear annihilation during that period. We faced a

[[Page S947]]

ruthless enemy all around the world, and yet we won that war. We did
that with our reputation, our values, and our moral authority intact.
It was and still is, I think, a beacon of hope around the world.
Those values and that moral authority, I believe, are what is going
to allow us to prevail in the battle against the terrorists who wish to
do harm--not just here but in other parts of the world as well. We
need--and I believe the world needs--an America that people respect and
admire, an America that is different, that begins in a manner that is
loud and clear saying: We do not torture. This will empower our country
and make us stronger.
I was very disappointed last week to hear the head of our
intelligence service, and then to hear a spokesperson for the White
House, say: Yes, we have waterboarded. They used the term--the right
term--water torture; yes, we have done that. We did it because we must,
and we reserve the right to do it again. It is exactly the wrong thing
for this country. It is not just me saying that. I am not just quoting
George Washington who has established the higher standard, and God
bless him for doing so. Let me read what General Petraeus said, who
leads the American troops in Iraq right now. Our most senior commander
in Iraq, GEN David Petraeus, sent a letter to every Soldier, every
Sailor, every Airman, Marine, and Coast Guardsman serving in Iraq. He
said this:

Our values and the laws governing warfare teach us to
respect human dignity, maintain our integrity, and do what is
right. Adherence to our values distinguishes us from our
enemy.
This fight depends on securing the population, which must
understand that we--not our enemies--occupy the high ground.

Continuing to quote:

That is General Petraeus, who leads our troops in Iraq, and says
those who believe that torture is appropriate would be wrong.
Mr. DURBIN. Will the Senator yield for a question?
Mr. DORGAN. I am happy to.
Mr. DURBIN. I thank the Senator for his comments, and I thank Senator
Feinstein for the support language. Some argue that this language was
not necessary, that the McCain amendment, which passed 90 to 9, made it
clear that whether you are in uniform or not torture is not the policy
of the United States. Others argue that the Geneva Conventions had
already made that clear for decades before it was brought into question
by this administration.
I ask the Senator from North Dakota if he struggles with the same
thought that I do. At some point after World War II, we prosecuted
Japanese soldiers who tortured American prisoners of war using
waterboarding and charged them with war crimes; and we are now at a
point in our history, some 60 years later, where General Hayden
testifies under oath before Congress that our Nation engaged in the
same conduct, at least three times previously, when it came to
waterboarding. I wonder if the Senator from North Dakota struggles with
the same concept of justice as was applied after World War II and as it
appears to be applied by this administration?
Mr. DORGAN. Mr. President, that is a significant contradiction for
our country. I was as surprised and disappointed as the Senator from
Illinois was to have one of the leading officials in this
administration testify under oath that, yes, in fact, waterboarding had
been used. It was in fact legal, they said, and it would be used again,
if necessary, and could be sanctioned by the President of the United
States.
The Senator is correct that this Congress passed a piece of
legislation that defined waterboarding as torture and prohibits it, and
the President at the White House, in a signing statement accompanying
the legislation, essentially said: It doesn't matter so much what the
legislation says; what matters is what I will decide to do.
Now, we have a disclosure--a public disclosure--to the world that
this country has employed a technique that has, for hundreds of years,
been described as torture.
I know and understand the passions that exist. I understand what I
would like to see done to Osama bin Laden when he is captured. I
understand the passions. But I also understand that what has given this
country a different standing in the world is our value system.
Again, let me, if I might, for the Senator from Illinois, refer back
to George Washington, which I described earlier before the Senator came
on the Senate floor. When I think of the odds facing the Revolutionary
Army, it is pretty unbelievable. The Senator from Illinois and I were
at Mount Vernon recently, and we saw a display describing that at one
point there were 5,000 soldiers in the Continental Army and 50,000
British soldiers. That was the fight. Our soldiers were shopkeepers and
farmers, ordinary folks off the street. Theirs were trained British
soldiers. So it was 5,000 to 50,000. George Washington and his soldiers
saw members of the Continental Army captured and then, unarmed,
murdered, executed by the British soldiers and the Hessians.
Washington's soldiers, when capturing some British soldiers, wanted
to do the same thing. But he said, nothing doing, we are not going to
do that. George Washington said that we are different and we are going
to treat people the way they should be treated, not the way they
treated us.
When you think of that set of standards and values and then wind your
way through the discussion in recent days, and to have a top U.S.
official say, yes, we have used waterboarding--and it is widely
acknowledged as torture--we used it and it was legal and we intend to
use it again if it is necessary.
Mr. DURBIN. I am sure the Senator is aware that this questionable
chapter in American history--which I think will haunt us for
generations to come--also involves people other than the general who
testified. There is an individual who has been nominated by the
President to be head of the Office of Legal Counsel, Steven Bradbury.
He has been rejected four times by the Senate. The President said last
week that he was the most important appointment. A month or two before,
he told the majority leader he didn't want to talk about any other
appointments until Mr. Bradbury was approved. Bradbury's tenure in the
Office of Legal Counsel goes back to the period of time when this
administration was rewriting torture policy in America--a policy which
they at one point accepted and later rejected. Many of us have said if
Mr. Bradbury is coming before us for consideration, we want to see
those memos written--memos which James Comey, former Deputy Attorney
General, said the United States would be ashamed if they ever became
public.
I say to the Senator from North Dakota that not only do we have to do
our part, but this administration has to do its part as well. Those who
were engaged in this questionable--if not embarrassing, if not
shameful--conduct involving torture policy must be held accountable to
the administration. They are certainly not deserving of a promotion,
which is what they are suggesting for Mr. Bradbury.

I ask the Senator from North Dakota, reflecting on what this
administration has been through, the many times they have told us
torture was not being used, that waterboarding was not being used, and
now with this disclosure of at least three instances admitted under
oath, I wonder if even this legislation--including the Feinstein
amendment--would restrain this President in the future, in the next few
months, as we face challenges that we cannot even imagine at this
moment.
Mr. DORGAN. Mr. President, it is far more than disappointing to me,
and I think to a lot of people in this Chamber and across the country,
that the President received advice from people who work for him in the
White House and have said this under oath and on television and in
every other venue that under the Commander in Chief powers, the
President has the power to do almost anything. He can put out a drift-
net and collect every communication under every condition--e-mails and
telephone calls. Go to the documentary recently done, entitled ``No Way
Out'' and view the interviews by this administration's officials, who
take the position that this President has the authority as Commander in
Chief to do almost anything. That includes this issue of torture.

[[Page S948]]

The point I make is that we have a piece of legislation that we will
vote on later this afternoon. Included in that legislation is a
provision that says the Army Field Manual will describe the conditions
of interrogation of enemy combatants. I just read what General Petraeus
said to all of his soldiers--that torture is inappropriate and will not
be allowed. The Army Field Manual prevents torture. What we are saying
in the conference report that we will vote on in an hour or two is that
the Army Field Manual's restrictions on torture apply to all U.S.
Government officials and contractors doing interrogation.
My concern about this administration--and I think it is echoed by the
Senator from Illinois--is that they have decided they are not bound by
the law, they are not bound by what the Congress enacts. They are doing
other sorts of dances with signing statements and interpretations of
the Constitution to say that under the Commander in Chief powers they
can do almost anything if they believe there is some kind of a threat.
That is a very dangerous mind set, in my judgment, for any
administration at any time.
Mr. DURBIN. If the Senator will yield for one last question, I thank
him for that quote from President Washington which talked about the
terrible circumstances the Continental Army faced and how, in those
days before there even was an America, they would establish a different
set of values in this part of the world. He admonished his troops to
live by those values.
I am sure the Senator knows that each year our State Department
publishes a report card on human rights of nations around the world. We
are critical of nations that engage in torture. We are critical of
nations that engage in conduct that is inconsistent with our values. I
say to the Senator from North Dakota, how can we maintain that moral
status and moral authority if we are found compromising something as
fundamental as torture and waterboarding and the Geneva Conventions,
which guided us for decades?
Mr. DORGAN. The Senator answers the question by phrasing the
question. Let me conclude by saying this: We have 43 top retired
military leaders of the U.S. Armed Forces who have written a letter. As
one, they say:

We believe it is vital to the safety of our men and women
in the uniform of the United States not to sanction the use
of interrogation methods it would find unacceptable if
inflicted on our captured Americans.

Today there are men and women fighting for this country. If captured,
how would we react if the leader of a group that captured them says: We
are torturing them because we feel we can get information, and we can
only get it by torturing them, and we believe torture is legal. We are
going to waterboard them, we believe it is legal. We have already done
it, and we intend to do it again if we need to.
How would we feel if that were somebody else talking about how they
are going to treat American soldiers? That is unacceptable. We have a
country with a higher moral purpose and standards that have served us
for two centuries, and we should not obliterate that just because we
have some people in this administration who believe it is appropriate.
It is not.
John McCain knows that. He led the fight to put a provision in law
that prohibits torture. This President did a signing statement next to
the legislation he signed, saying: I don't have to abide by it if I
don't feel like it.
That is a scary thought in a democracy. I hope this afternoon we will
register a very strong vote in support of this conference report and
against the concept of our country engaging in torture.
I yield the floor.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. REID. Mr. President, I ask unanimous consent that the vote on
adoption of the conference report to accompany H.R. 2082, the
Intelligence Authorization Act, occur at 4:30 p.m. today; that no
points of order be in order; and that the time until then be equally
divided between the two leaders or their designees.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. So there is an equal balance of time in the next--we have 2
hours. I think it should work out fine. Either side will have
approximately an hour, so that should work out well.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. WHITEHOUSE. Mr. President, I want to follow the lead of the
distinguished Senator from North Dakota and my friend, the Senator from
Illinois, and continue on this question with the determination the
Government has made that waterboarding is legal.
It is a question that matters so much to wary and watchful nations,
disheartened and distrustful in the wake of 7 years of failed
leadership and broken promises. It is also a question that matters
immensely to the billions of men, women, and children around the globe
who look to this country, the United States of America, as a beacon of
light that shows the way nations ought to act and the way the world
ought to be. It is a question that matters to the American people who
are sick of asking: Is it wrong? and being told: Well, it depends.
The people of America still do not know how this came about--in
particular, how the Department of Justice came to approve this sordid
technique. I believe we are in a position where the concerns we have
about torture overlap with some of the concerns we have had in this
Chamber about the independence and integrity of the Department of
Justice. Here is what we know.
We know that Attorney General Michael Mukasey has said that ``the CIA
sought advice from the Department of Justice, and the Department
informed the CIA that [waterboarding's] use would be lawful under the
circumstances and within the limits and safeguards of the program.'' We
know in 2002, John Yoo of the Office of Legal Counsel drafted a memo,
later approved by Assistant Attorney General Jay Bybee, which reads, in
part:

There is a significant range of acts that, though they
might constitute cruel, inhuman, or degrading treatment or
punishment, failed to rise to the level of torture.

As Evan Wallach of the Columbia Journal of Transnational Law has
written:

None of the Memo's analysis explains why waterboarding does
not cause physical or psychological pain sufficient to meet
the criminalization standards it enunciates.

We have asked for further clarification, but in a hearing before the
Judiciary Committee, Attorney General Mukasey refused to comment on the
legality of waterboarding because the technique was not currently in
use and because of what he described as ``the absence of concrete facts
and circumstances.'' Even though the Department of Justice is now
conducting an investigation into whether tape recordings of alleged
waterboarding sessions were improperly destroyed, they would not look
into whether the conduct on the tape was in and of itself improper.
The argument is that no one who relies in good faith on the
Department's past advice should be subject to criminal investigations
for actions taken in reliance on that advice, which raises the question
within the question: How did that advice come to be given in the first
place?
How did the best and brightest of the Department of Justice overlook
the facts of the history of waterboarding prosecutions in which the
United States was directly involved, and why was such guidance approved
when contravening precedents appear clearly to be in evidence?
Mr. President, I commend to my colleagues the article written by Evan
Wallach, Columbia Journal of Transnational Law, entitled ``Drop by
Drop: Forgetting the History of Water Torture in U.S. Courts.'' The
full cite is 45 Columbia Journal of Transnational Law 468 (2007).
Mr. President, the U.S. Government long considered waterboarding a
form of torture, prosecutable as a war crime and punishable
accordingly. This history includes war crimes prosecutions against
Japanese soldiers who waterboarded American aviators in World War II,
the use of water torture by U.S. soldiers in the Philippines, and even
an incident of waterboarding by a local sheriff prosecuted by the
Department of Justice itself. Let me start with that.
I am reading from the Wallach law review article in which it reports:

In 1983, the Department of Justice affirmed that the use of
water torture techniques was indeed criminal conduct under
U.S. law.

[[Page S949]]

A sheriff in a Texas county waterboarded prisoners in order to
extract confessions. Count one of the indictment asserted that the
defendants conspired to--and this is a quote from the Department's own
indictment--``subject prisoners to a suffocating `water torture' ordeal
in order to coerce confessions. This generally included the placement
of a towel over the nose and mouth of the prisoner and the pouring of
water in the towel until the prisoner began to move, jerk, or otherwise
indicate he was suffocating and/or drowning.''
The sheriff and his deputies were all convicted by a jury under count
one. It didn't end there. The case then went up on appeal, and the
United States Court of Appeals for the Fifth Circuit rendered a
decision. I have in my hands United States of America v. Lee, 744 F.2d
1124, decided in 1984, in which they gave appellate review of these
convictions.
Finally, at sentencing, U.S. District Judge James DeAnda's comments,
according to the article, were ``He told the former Sheriff that he had
allowed law enforcement to fall into `the hands of a bunch of thugs.
The operation down there would embarrass the dictator of a country.' ''
That is the opinion of a U.S. district court judge at a sentencing on
waterboarding.
How is it that when the Department of Justice, the Office of Legal
Counsel were asked for their opinion, they were able to write this
opinion? I have it in my hand. This is the unclassified version. It has
been substantially redacted. Even so, it is 50 pages long--50 pages
long. They did 50 pages of legal research and could not find a U.S.
Court of Appeals case in which the Department of Justice itself had
brought the charges? Here is the case, United States v. Lee. It
describes the facts:

Lee was indicted along with two other deputies, Floyd Baker
and James Glover, and the County Sheriff James Parker, based
on a number of incidents in which prisoners were subjected to
a ``water torture'' in order to prompt confessions to various
crimes.

Throughout the rest of the opinion, these are referred to as
``torture'' and ``torture incidents.''
All one has to have is Lexus or Westlaw and plug in the words ``water
torture'' and find this case. How is it possible that the Office of
Legal Counsel could not have found this? How is it possible that they
could have also missed what the Columbia Law School was able to find--a
telegram from Secretary of State Cordell Hull to the Japanese
Government objecting to the mistreatment of American prisoners, which
included specifically waterboarding and describing the ``brutal and
bestial methods of extorting alleged confessions''? That is our
Secretary of State in an official communication to the Japanese
Government describing, among other tortures, water tortures as brutal
and bestial methods to extort alleged confessions. How could they not
have found that? How could they not have found the charges the Senator
from North Dakota referred to in which Japanese soldiers were brought
up on charges in front of military tribunals--military tribunals
staffed with American judges, military tribunals staffed with American
prosecutors--for waterboarding American prisoners?
Here are some examples. One of the Japanese officers was named Hata
and the article describes the charges and specifications against
Officer Hata, which included this:

. . . Hata did, willfully and unlawfully, brutally
mistreat and torture Morris O. Killough, an American Prisoner
of War, by beating and kicking him, by fastening him on a
stretcher and pouring water up his nostrils.
Similarly, Hata did willfully and unlawfully, brutally
mistreat and torture Thomas B. Armitage, William O. Cash and
Monroe Dave Woodall, American Prisoners of War, by beating
and kicking them, by forcing water into their mouths and
noses. . . .

The charge and specifications against Officer Asano were:

Asano did, willfully and unlawfully, brutally mistreat and
torture Morris O. Killough, an American Prisoner of War, by
beating and kicking him, by fastening him on a stretcher and
pouring water up his nostrils. . . .
Asano did, willfully and unlawfully, brutally mistreat and
torture Thomas B. Armitage, William O Cash and Munroe Dave
Woodall, American Prisoners of War, by beating and kicking
them, by forcing water into their mouths and noses. . . .

The charge and specifications against Officer Kita were again,
``willfully and unlawfully, brutally mistreat and torture John Henry
Burton, an American Prisoner of War, by beating him and by forcing
water into his nose.''
Over and over the testimony describes exactly what we know as
waterboarding. The charges and specifications by this tribunal staffed
by American officers describe that they did willfully and unlawfully
commit cruel, inhuman, and brutal acts and atrocities and other
offenses, including strapping them to a stretcher and pouring water
down their nostrils, by holding the prisoner's head back and forcing
him to swallow a bucketful of sea water over and over and over.
How could they have missed it? How could they have missed it? How
could they miss the decision on point by the U.S. Court of Appeals for
the Fifth Circuit?
What else do we know about the Office of Legal Counsel? We know that
the conditions there were pretty ripe for abuse. We know they were
doing this in secret, protected from public scrutiny, protected from
peer review, protected from critical analysis under the veil of
secrecy, deep secrecy in which they were operating, coming up with the
theories as they pleased, thinking they would never see the light of
day. So they did not have to do their homework. Somebody might have
done a little research and found the Fifth Circuit decision on point,
but, no, they did not need to.
It is part of a pattern because, as the Presiding Officer will
recall, when I was offered the chance to read the secret Office of
Legal Counsel opinions related to the warrantless wiretapping program,
I went and took some notes, and when I got back here, I eventually was
able to get them declassified. They described other interesting
theories that grew in that hothouse of legal ideology, protected from
the glare of public scrutiny, ideas such as the President is not
obliged to follow Executive orders. He is not obliged to give anybody
notice that he is violating Executive orders. He can live in a parallel
universe in constant violation of his own Executive orders and nothing
is wrong with that, other than, of course, the fact that it completely
degrades and destroys the entire structure of Executive orders as a law
function of the United States of America.
Another argument is that under article II, the President's power as
Commander in Chief, he has the authority to determine what his powers
are. Think about that for a moment. They assert article II gives them
the authority to decide what the scope of his article II powers are. I
seem to remember a decision called Marbury v. Madison saying it is
``emphatically the province of the judicial department to decide what
the law is.''
The last one, my personal favorite, is that the Department of Justice
is bound by the legal determinations of the President. It is a good
thing that was not the case when President Nixon was the President and
made the legal determination if the President does it, it doesn't
violate the law.
So what on Earth has been going on at the Office of Legal Counsel, an
office that used to be distinguished for its probity, for its analysis,
for its scholarship, an office on which the Department of Justice
relies?
Just as Americans rely on the Department of Justice to provide
guidance in our Government, to provide a moral compass within the
Department of Justice, the Office of Legal Counsel is supposed to be
the place where they try to get it right. How could they try to get it
right when they cannot even find a Fifth Circuit Court of Appeals
decision on water torture when you are looking up whether it is
illegal? If I were a partner in a law firm and a junior associate came
to me with a memo such as this that had missed the case on point, do
you think he would have much of a career? I don't think so. It is a
fatal failure of legal analysis. And yet, where there is supposed to be
the very best at the legal counsel of the Department of Justice, they
missed all of it. If there has been a systematic breakdown in this
institution of Government long known for probity and scholarship, if it
has been captured and behind a veil of secrecy rendered a political
ideological tool, that is a matter of very legitimate public concern.
I am pleased to say Senator Durbin and myself have written to the
inspector general of the Department of Justice and to the Office of
Professional

[[Page S950]]

Responsibility of the Department of Justice to look into exactly that
matter.
I thank the Presiding Officer for his patience with me. I thank the
distinguished Senator from Florida for his patience.
I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
Mr. NELSON of Florida. Mr. President, we have heard one of the best--
I cannot use ``oration'' because it was far superior. It was one of the
best explanations of how the Department of Justice has gone awry by the
Senator from Rhode Island. I commend the Senator from Rhode Island. I
thank him for his legal analysis, and I wish to underscore what he has
said, that the reason the Department of Justice was ignoring that Court
of Appeals decision, the reason the Department of Justice was ignoring
all of the history of the record that has been built over time, of
which the Senator cited the statements from World War II, the reason
all of that has been ignored or purposely missed is because the
Department of Justice became politicized so that politics became the
rule of the day instead of the rule of law.
In a nation that recognizes it is a nation of law, not a rule of men,
when politics is inserted for law, then we get into the trouble we have
gotten into. That is what brings us here.
I have already addressed this subject of why my conclusion, a long
deliberative process of coming to the question, that we ought to etch
into law the Army Field Manual as the standard by which the
intelligence community will carry out their interrogations. That ought
to be the law.
I thank the Senators who have spoken in favor of this legislation. We
are going to have a chance to vote on it pretty soon. Each of us can
determine what we think ought to be representative of America, if it
ought to be torture or not. We are clearly going to have an opportunity
to say that because we are going to vote on a proposed law that says:
Is torture going to be the standard for America?
I wish to speak on another subject, so I guess the appropriate
parliamentary procedure is for me to ask consent to speak as in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Rape and Sexual Assault Investigations

Mr. NELSON of Florida. Mr. President, thus far, the Department of the
Army has acknowledged that there have been 124 incidents of sexual
assault against contractor and military personnel in Iraq which are
currently under investigation. We know of only three of those cases
that are now being considered by the Department of Justice and,
therefore, the Department of Justice will not respond to my entreaties
about this investigation because they say it is an ongoing criminal
investigation.

However, in other cases, we have gathered some facts, and these facts
have been quite telling. There does not seem to be a standard to
protect female contractors or military personnel from sexual assault in
Iraq under the jurisdiction of the U.S. Army. The 124 cases of sexual
assaults of both contractors and military personnel have been
acknowledged just under the Department of the Army. The question is,
under the other branches of the service whose contracts are being
administered by civilian contractors, how many are there; and are there
similar cases in the other theater of operations--Afghanistan as well
as in Iraq?
What we also know from the facts we have gathered thus far is the
problem is not within the U.S. military nearly so much as it is among
contractor personnel because there is a nebulous set of regulations as
to how it is to be handled on the reporting of a rape. Untold numbers
of sexual assaults have been committed in Iraq, and the Departments of
Justice, Defense, and State are providing very little information on
whether they have been prosecuted. It is time we have this information.
Last December, I wrote to the Secretary of Defense asking him to
launch an investigation by DOD's inspector general into the rape and
sexual assault cases in both Iraq and Afghanistan. I sent similar
letters to the Secretary of State regarding the investigations carried
out under the Bureau of Diplomatic Security, and I requested that the
Attorney General update me on the status of the related criminal
investigations. I asked whether and why evidence in the sexual assault
cases was turned over to the private firms.
I got into this when one of my constituents in Tampa, FL, came forth
and told about the assault case. This had followed a Texas case that
had been elevated to the public sphere. Apparently, one of these women
was assaulted, then went to see the doctor, and a rape kit was prepared
by the military doctors. That kit would have the evidence of the rape,
and it was turned over to the civilian contractor. Suddenly, the rape
kit disappeared.
So the question is, what steps has the Department of Defense taken to
ensure the full investigation and prosecution of these cases?
In the meantime, the Department of State has told our office that
diplomatic security has investigated four cases. One of them was the
Texas lady, and that was where a contractor personnel assaulted another
contractor personnel. Another involved a State Department employee who
allegedly assaulted a woman employed by a contractor--in this case KBR.
Then another case involved two State Department employees. According to
the State Department, three of the cases were referred to the
Department of Justice for investigation and possible prosecution.
Recently, our Senate staff met with representatives of the Department
of Defense IG's office, and we asked them to brief us because of the
response received from the Department of Defense, which certainly did
not answer my questions. The inspector general's office stated that,
and this is what blew our mind, the Army Criminal Investigation Command
has investigated 124 cases of sexual assault. Now, that is just the
Army, and that is just in Iraq. And that is just in the 3 years of
2005, 2006, and 2007. So what about the other services and what about
Afghanistan?
So this naturally leads me to question whether there could be
hundreds of additional investigations going on about contractor
personnel--specifically in the ones that have come to us, it was the
contractor KBR--and it suggests that perhaps there could be many
assaults that have not been investigated at all. And because the
inspector general's office would not provide information on the
disposition of these investigations, it certainly is unclear whether
there has been any prosecution of these within the military or the
criminal justice systems, or whether it has been dealt with
administratively.
Now, one of my Florida constituents was, and I will use the word
advisedly, allegedly sexually battered in Iraq in 2005. And although
the Naval Criminal Investigative Service was supposed to be
investigating her case, they will not even say anything about the basic
matters of the case because, the Navy says:

Law enforcement records are exempt from disclosure at the
time requested if it can be reasonably expected to interfere
with the enforcement proceedings.

I think we in this Congress, we in the Senate, and those of us on the
Senate Armed Services Committee and the Senate Foreign Relations
Committee, certainly have an obligation to investigate. Because cases
such as this can languish far too long without any information from the
Government coming forth in order to protect these individuals.
So I have asked that our office follow up with the Defense
Department, with the following detailed questions: The actual numbers
of the sexual assault cases reported since 2001 in Afghanistan and
since 2003 in Iraq and the disposition of each case. I have asked to
have the information of the service components or the Government
agencies involved in each resulting investigation. I have asked for the
status of the persons involved in each case--in other words, I want to
know whether they are Active military, U.S. Government civilian
employees, contractor employees or are they an Iraqi or Afghani
national.
I have asked for an explanation of the U.S. jurisdiction or the
investigative authority for sexual assault allegations in both those
areas in which we are engaged--Iraq and Afghanistan. And I have asked
for a clear explanation of the rules, regulations, policies, and
processes under which sexual assaults are investigated, evidence is
obtained, and responsible individuals are held accountable. I have also
asked

[[Page S951]]

for a clear explanation of how the Department of Defense divides
authority among all its various investigative arms in these sexual
assault cases.
I have had to ask these questions because DOD and the Department of
State have not been forthcoming. Yet what is being told by some of
these assault victims is absolutely horrifying. For example: One female
contractor employee, during cocktail conversation, suddenly, totally,
passed out. Apparently, her drink had been spiked. She awoke to find
out she had been assaulted many times. Upon seeing a military doctor,
in fact, that was confirmed and the rape kit was prepared. But when the
rape kit was turned over to the contractor, it amazingly disappeared.
The evidence disappeared. That contract employee then, upon asking
questions, was locked in a container and could not get out of the
container to go and tell her story to other personnel of her
contractor, and she only got out because she was able to persuade
someone to let her use a cell phone to call her father back in the
United States. That is how she got out of her confinement.
Now, if all of that is true, there is simply no excuse for this. But
what we need to determine is the truth. It is a shame that the senior
Senator from Florida has to come to the floor of the Senate to elevate
this issue in order to say to the Department of Defense and the
Department of State that we want the answers to our questions.
I have asked the questions. I expect, on behalf of the Congress of
the United States, that we will get the answers.
I yield the floor.
Mr. President, I ask unanimous consent that the time during the
quorum be equally divided between the two sides.
The PRESIDING OFFICER (Mr. Cardin). Without objection, it is so
ordered.
Mr. NELSON of Florida. Mr. President, I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. FEINSTEIN. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to speak for
up to 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. I spoke earlier this morning, so I will be brief.
It would appear that the Senate is poised to pass a measure that
would end the debate over torture in our Nation. It would require the
CIA to follow the Army Field Manual when it comes to interrogations of
detainees, and it would create a uniform standard for interrogation
across the Government. It would prohibit waterboarding and certain
other coercive interrogation techniques. I deeply believe it will go a
long way toward restoring our Nation's credibility.
I have spoken with experts on interrogation, numerous retired three
and four star generals, and human rights leaders. From our discussions,
I am absolutely convinced that we must have a uniform standard for
interrogation of detainees across the Government. That is what putting
the CIA under the Army Field Manual would do.
This debate is about values. We are a nation of values, and we
believe in the rule of law. It is fair to say that America has been
diminished around the world. Our standing is at an all-time low, not
only among our allies but also our enemies. This comes from Abu Ghraib.
It comes from Guantanamo. It comes from renditions, and it comes from
black sites. It comes from waterboarding, a technique used during the
Spanish Inquisition to get religious dissenters to publicly disavow
their beliefs.
Let me give one example of why a clear, single standard for all
detainee interrogation is needed.
Until a couple of weeks ago, the executive branch refused to admit
that it had waterboarded anyone.
Then last week, at a public hearing, General Hayden stated that the
CIA has waterboarded three detainees: Abu Zubaydah, Abd al-Rahim al-
Nashiri, and Khalid Sheikh Mohammed. General Hayden said this was done
in the past and would not be used in the future.
In fact, General Hayden said that waterboarding itself was no longer
necessary. These were two major revelations. The U.S. Government had,
in fact, authorized waterboarding, and we weren't going to do it again.
The very next day, a White House spokesman, Tony Fratto, said the
President could reauthorize the use of waterboarding at any time. At
this point, we had returned to a state of confusion. The CIA was saying
waterboarding was not authorized and not needed. The White House was
saying waterboarding was still on the table.

That was not the end. The very next day, General Hayden testified in
open session again, this time in front of the House Intelligence
Committee. Here is what he said:

In my own view, the view of my lawyers and the Department
of Justice, it is not certain that that technique--

Meaning waterboarding--

would be considered lawful under current statute. . . .

So here you have a mix of views. Here you have unclear American
policy.
The bill which we have before us today clears up that confusion, and
it states once and for all what the U.S. Government would do; that
there would be 19 specific approaches documented over many pages for
each approach in this volume, and 8 specific techniques that are
banned, one of which is waterboarding.
So we have the opportunity today to take a stand--to clear the air
and to say that the U.S. Government follows uniform specific standards
for interrogation of detainees as put forward by the Army Field Manual.
I would like to quote a statement the President of the United
States--President Bush--made on June 22, 2004. Here is his quote:

We do not condone torture. I have never ordered torture. I
will never order torture. The values of this country are such
that torture is not a part of our soul and our being.

President Bush, if you stand by these words, you will sign this
intelligence authorization bill.
Thank you, Mr. President. I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, how much time do I have left out of
the 5 minutes?
The PRESIDING OFFICER. A minute and a half.
Mrs. FEINSTEIN. Mr. President, if I may, I very much would like to
thank a few people who have been very helpful in this whole thing. The
first is David Grannis, my intelligence liaison, who has been with me
all the way. I thank the Partnership for a Secure America and the 18
former national security officials who wrote in support of the Army
Field Manual.
I thank Senators Hagel and Snowe for taking a stand for what is right
for America in the Intelligence Committee. I thank our chairman,
Senator Rockefeller, for being willing to risk the passage of this
legislation by supporting this very important amendment.
I also thank Senator Whitehouse. He offered this amendment when it
was in the Senate Intelligence Committee. I thank him for his tireless
efforts in support of this conference report. I have seen him on the
Senate floor at least twice today. He was a cosponsor of the amendment
I offered in the conference, and I know his staff has been very
effective in working on this amendment.
I thank Senator Tom Carper of Delaware who has done a lot of work on
this issue on the telephone.
I thank my colleague and friend, Senator Ron Wyden, who came earlier
to the floor to speak on this issue.
So there have been many people working toward this vote, and it looks
as if it may just happen. I would like them to know that we are very
grateful for their support.
Oh, one more: Senator Feingold. Senator Feingold was a cosponsor

[[Page S952]]

when I offered the amendment in the Intelligence Committee. I very much
thank him for his steadfastness.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Republican whip.
Mr. KYL. Mr. President, we are going to be voting in about an hour or
so on the conference report on the Intelligence Authorization Act. I
would like to explain briefly the reasons I think we should vote
against that reauthorization.
There are two primary reasons. First has to do with the additional
provision that was passed neither by the House nor by the Senate but
was dropped into the conference report without Republican involvement;
that is, the provision that Senator Feinstein authored that would
substitute for the authority that agencies of the United States
currently have--agencies such as the Central Intelligence Agency--to
interrogate foreign terrorists. It would substitute for the current
rules under which they operate the U.S. Army Field Manual.
The U.S. Army Field Manual is a document that is prepared for use for
all of our military Armed Forces, to provide rules of the road for them
in interrogating enemy prisoners of war. So when they capture someone
on the battlefield, in order to ensure that the Geneva Conventions are
adhered to, there is a set of guidelines set out in the Army Field
Manual that very explicitly explain to our soldiers exactly how they
need to treat these prisoners and what kind of interrogation in which
they can engage.
A couple of years ago, when the Congress and the administration got
together and revised our procedures and the statute dealing with this
subject, the explicit decision was made to not have the Army Field
Manual govern the interrogations by other Government agencies. That was
a wise decision then, and it is a wise decision now.
There are reasons the U.S. Army would want to have a set of rules for
soldiers capturing enemies on the battlefield. But there is quite a
different situation presented when you have captured a terrorist and
you want to interrogate that terrorist and you have at your disposal
Central Intelligence Agency trained personnel or other special
personnel who are trained in interrogation techniques that comply with
the Geneva Conventions accords, are not torture, are authorized by law,
but may be outside the particular scope of the Army Field Manual.
This is a gross oversimplification, but for people to generally
appreciate what I am talking about, you have all seen movies where a
prisoner of war is captured, and they say: Give me your name, rank, and
serial number, and that is pretty much all an enemy soldier is required
to provide. You cannot torture them to get them to tell you anything
beyond those three pieces of information, and that is as it should be.
Interestingly, our terrorist adversaries know well the Army Field
Manual, and if they are captured as enemy POWs on the battle ground by
U.S. Army personnel, they know precisely what kind of interrogation to
expect. In fact, we know they are trained on how to resist the
interrogation techniques and not provide information. It would be a
horrible mistake for us to assume that the techniques that are
appropriate for Army battlefield capture interrogation should apply as
well to situations in which a CIA person is interrogating a terrorist--
someone who is not fighting for another country in a uniform captured
on the battlefield.
That is the essence of the Feinstein proposal, and it is one of the
reasons the President has made it very clear that were this conference
report to pass, he will veto the bill; indeed, he should.
There are other reasons for the President's decision to veto the bill
as well. Let me just mention a couple of them. One of the things that
relates to this interrogation matter is a requirement in the bill that
a report to Congress must be made of the identity of each and every
official who has determined that any interrogation method complies with
specific Federal statutes, why the official reached the conclusion, and
the related legal advice of the Department of Justice.
This may seem benign on the surface but, I submit, is in the nature
of harassment of officials who are trying to make decisions about the
application of law. They come to judgments. They advise the people who
are asking for the advice, and then action is taken on that basis. If
Congress needs a report every time a Government official makes a
decision, clearly that agency cannot function.
Secondly, there are too many opportunities for second guessing, too
much of an incentive for the people who are doing the work we ask them
to do to not make any decisions, not engage in that work because they
might make a mistake. This is exactly the kind of ethos we do not want
in our intelligence community.
Another requirement of the bill is the creation of another inspector
general. We already have inspectors general for each of the elements of
the intelligence community, but there would be a new one under the DNI.
But his primary responsibility would be to report to Congress rather
than the DNI.
There are other requirements for reports that have already occupied
far too much attention of our intelligence community. There are
requirements for congressional confirmation of several new positions,
positions that currently do not require congressional confirmation
because they are not political offices. It is the head of the NRO, for
example, the head of NSA. These are agencies that have been peopled
with professionals, people who do not have anything to do with
politics. They should not have to come to the Senate and get grilled by
Senators--more importantly, Senators who then might hold them up.
You have heard about the holds Senators place on nominees. I do not
know how many executive nominees and judges we have waiting
confirmation by the Senate right now, but there are a lot. What happens
is, because Senator X does not like the administration's position on
something, they decide to put a hold on an important executive branch
nominee. As a result, too many positions are vacant today because of
unrelated holds by Senators. It just presents the Senate with an
additional way to hold up action on people, in effect, to blackmail an
administration into doing what it wants.
There are a variety of other problems the President has pointed to in
this legislation that will require the President to veto it. But I want
to conclude by simply saying that a great deal of credit goes to
Senators Rockefeller and Bond for their work in trying to create an
authorization bill for the intelligence community against great odds.
There is a lot of disagreement among people on the Intelligence
Committee itself, as well as others in this body, about what ought to
be done, and they came to, in effect, an agreement that except for the
Feinstein proposal--that, as I said, was added in the conference; it
was not passed by either the Senate or the House--they came to an
agreement on a bill that Senator Bond has described as pretty
effective.

Hopefully, with the President now indicating he will veto the
legislation over the provisions I have identified, and some others, the
other side will recognize it is important to fix those problems, clean
it up, get a bill back to the President he can sign, and we can move
forward.

FISA

Now, the last thing, Mr. President, I want to do is change the
subject very slightly because we just had a conversation with the
President, who reiterated his deep concern about the apparent
unwillingness of the House of Representatives to reauthorize the
Foreign Intelligence Surveillance Act so that we can engage in
intelligence collection against this country's worst enemies: al-Qaida
and other terrorists.
This body, with a vote of 68 to 29--a very bipartisan vote--agreed on
a Foreign Intelligence Surveillance Act reauthorization for a period of
6 years. The key feature of it--different from the current law--is
retroactive immunity for those telecommunications companies that might
have assisted the United States in gathering this intelligence. That
was following the Intelligence Committee's work--again, great work; 13
to 2 was the vote in the Intelligence Committee, bipartisan--supporting
that legislation. It has now been sent to the House of Representatives.
All the House of Representatives needs to do is to take this bill,
which has bipartisan support in the Senate, pass it, and send it to the
President for his signature.

[[Page S953]]

The President's point, just a few moments ago, to us was it would be
an abdication of responsibility for the Congress not to accomplish this
result before it leaves on a recess on Friday.
This intelligence collection is critical to the security of the
United States. The point of the most recent legislation is to provide
retroactive liability protection for those companies that have aided
the United States pursuant to its request.
In effect, what happened was the President and the Attorney General
requested various telecommunications companies to help us collect
electronic information on people we have targeted as necessary for
collection purposes. They did not have to do it. They volunteered to
help us. They understood the threat to the United States and, like any
good citizen would do when called upon by the Commander in Chief, they
agreed to assist. Now, some of them have been sued. They are, of
course, accountable to their boards of directors who have a
responsibility under Federal law to protect shareholder interests.

What some of these companies are finding is an increasing difficulty
of assisting the United States and continuing to stay in business. They
have their own business responsibilities. They have to engage in
activities both in this country and in other countries sometimes. They
have to get customers. They have to make business agreements with other
parties. When too many other folks say: We don't want to do business
with you because of the potential that you are going to be sued or that
you have been sued, and then there is the question of whether we are
going to be drawn into all that, then it makes it impossible for those
companies to assist the United States.
The point is this: There is an increasing concern that some of these
companies are not going to be able to provide this assistance to us if
we don't solve this retroactive immunity issue. Some people have said:
Well, we will simply temporarily extend the existing law. The reason
that doesn't solve the problem is because the existing law doesn't
provide that retroactive immunity. That is the point of this
legislation, and if this legislation doesn't provide that retroactive
immunity pretty soon, there could well come a point in time when we
don't have any telecommunications companies left doing this work for us
to matter.
Mr. WARNER. Mr. President, will the Senator yield?
Mr. KYL. I am delighted to yield to the Senator from Virginia.
Mr. WARNER. Mr. President, I am delighted the Senator from Arizona
brought this up because I have participated in a number of debates with
our distinguished colleague from Missouri. What we always have to
remind our colleagues of, as well as the American public, is that these
companies have volunteered. They are not in this for a profit motive.
There is some compensation for expenses. They are not unlike the men
and women of the Armed Forces, all of whom today are in uniform because
they raised their right arm and volunteered. We cannot ask these
companies to subject themselves to the uncertainty and the threats
associated with legal processes. We are going to lose a very important
component of what I call the American spirit: voluntarism. Whether it
is in the corporate world, whether it is in the Armed Forces or any
other number of activities, we are a Nation known for people who step
forward and volunteer.
This is a clear example of how these companies cannot continue under
the situation that persists today, because the directors of those
companies, their corporate boards, have an obligation to their
stockholders. It is a stretch to say to the stockholders, who are part
of the voluntarism they are doing to serve the cause of freedom in the
United States, that they should be subjected to a lot of court suits.
So I appreciate the Senator bringing this up. It is important. We
have to remind our colleagues about it. I am proud of what this Chamber
did. They voted it through, very clearly.
Mr. KYL. Madam President, if I could say to the Senator from
Virginia, I hadn't thought of putting it quite the way he did. He is,
exactly right. We have thousands of young men and women who volunteer
to serve their country. What would we think if part of that service
means getting sued by somebody? Wouldn't we provide them protection
from those kinds of lawsuits? Obviously, we would. The companies that
serve us every day when we pick up the phone to make a phone call--we
want them to be there to help us--they step forward when the President
asks them to volunteer to serve their country, at no profit, as the
Senator makes clear, and then they get sued and we are not willing to
provide protection to them.
Mr. WARNER. Madam President, I couldn't agree more. Furthermore, the
service they are doing by virtue of this voluntarism directly
contributes to the safety and the welfare of the men and women in the
Armed Forces who are engaged in harm's way beyond our shores.
Mr. KYL. Madam President, that is another very good point.
Mr. WARNER. At this point, we have about run out of time, and I wish
to say a few words about the pending matter.
Mr. KYL. Let me conclude these remarks then. The key point I am
trying to make is we have related activities. We have the Intelligence
Authorization bill on the floor, but we also have a couple of days
before this recess to see that the great work the Senate did is adopted
by the House of Representatives so the President can sign it.
Having just come from the White House, the President asked us to
please convey his sense of concern for the people of this country, for
the security of those soldiers whom we sent to do a mission, if we
can't get good intelligence on this terrorist enemy, and the only way--
the best way we can do that is through the interception of these
communications. It cannot be done if there are no telecommunications
companies willing to assist us. There could well come a point in time
when, because we haven't done our job of providing them liability
protection, there is nobody there to provide the help to us.
So I thank the Senator from Virginia, and again I get back to my
original point, which was I hope that in a few moments, knowing the
President is going to veto this piece of legislation, we will support
his position and vote no on the authorization conference report.
I yield the floor.
The PRESIDING OFFICER (Ms. Klobuchar). The Senator from Virginia has
23 minutes remaining.
Mr. WARNER. Fine. That is under the control of the distinguished
Senator from Missouri, and I will ask for such time as I may need at
this point.
I have always considered myself, here in the Senate, to be most
fortunate for the various assignments I have had through this being my
30th year. There have been periods when I have served on the
Intelligence Committee. I was once the ranking member of the
Intelligence Committee. Then, fortunately, I was selected to go back on
the Intelligence Committee several years ago. It has been a part of my
overall service to the Senate, and indeed to the Nation, to be on that
committee.
I was at first introduced to the world of intelligence in 1969 when I
was fortunate enough to go to the U.S. Department of Defense at the
Pentagon and serve the Navy, first as Under Secretary and then
Secretary. So I have actively been involved in the work of the
intelligence community for some many years.
I am greatly concerned that we have before us today a piece of
legislation which, even though a member of the committee and even
though I worked with my colleagues to frame this legislation, I will
have to vote against because of the actions that took place in the
conference committee where an out-of-scope provision was put in--for
the best of intentions, I am sure, but it wasn't carefully thought
through, in my judgment, because this provision would say that
henceforth, the CIA and the Federal Bureau of Investigation would have
to conduct their interrogation procedures in accordance with the Army
Field Manual.
I was privileged again to be one of a group of a small number of
Senators who, in the year 2005, worked on the Detainee Act and then
subsequently, in 2006, worked on other legislation to try to delineate
carefully the responsibilities of various agencies and departments of
our Government as it related to the all-important collection of our
intelligence and a part of that collection procedure being the
interrogation

[[Page S954]]

of detainees. Now, we decided, after a lot of careful deliberation of
the 2005 act, that we would restrict that to the men and women in the
Armed Forces.
There was a very good reason for that. In the course of our conflicts
in Iraq and Afghanistan, detainees came into the possession of our
field forces, operating in combat conditions most of the times when
these detainees were caught, and relatively, so to speak, while the
military people are magnificently trained throughout their careers to
deal with these situations of combat and the like, very few of them
have had the opportunity to get into the profession of interrogation.
In order to give them the protection they needed in performing
interrogation at what we call the field and tactical level, it was
important to draw up this act and to prescribe very clearly for the men
and women in uniform--I repeat that: only for the men and women in
uniform--very clearly the procedures they must follow to accord the
values of our framework of laws, the fact that this is not a nation
that stands for torture, and to also give them protection in the event
that somehow they were challenged in a court of law, be it a military
court or other courts, as to their performance by virtue of their
interrogating activities of certain detainees. So there were many
reasons to put it all down and say that this is the Army Field Manual,
prescribe the authorized techniques, and therefore allow the men and
women of the Armed Forces to continue their operations militarily,
tactically, and to follow that field manual in such instances where it
is necessary to interrogate detainees.
But in the course of that debate--and understandably and I think
quite properly--attention was given to whether we should have this type
of procedure applicable to all the Government agencies and departments
of our Federal Government. The decision was made, and the answer was
no--not quickly, no; it was a deliberate no reached after a lot of
careful consideration--that this Detainee Act should be for the purpose
of our military people, and we purposely did not include the CIA and
the FBI. As time evolved into 2006, when we had that legislation, once
again we reiterated we would not include either the CIA or the DIA and
then in any way at that time legislate their program, other than to say
that the conduct of the CIA program and the FBI program has to be in
total compliance with all the laws of our land, which in no way
sanctioned abusive treatment, torture or those sorts of things. It is
not a part of it.
Furthermore, that both the procedures by the CIA and the FBI had to
be in compliance with the treaties, the treaty obligations we have,
particularly article 3, common article 3, which has been debated so
carefully on the floor of the Senate.
So, in effect, what we have before us momentarily in this vote is
overruling the decisions that were made by this body in the context of
drawing up those two statutes, one in 2005 and one in 2006. So I, for
that reason, feel very strongly that I cannot support this. I think it
has been indicated that the President doesn't support it and that if
this were to arrive at his desk, in all probability, we would have a
veto, and that would be regrettable because a lot of work has been put
into this bill. There are portions of it that the distinguished Senator
from Arizona, Mr. Kyl, talked about which hopefully can be corrected.
But we need an Intelligence bill. We have marvelous staff in the Senate
and others who work on this problem of legislation year after year, and
we are long overdue to have an Intelligence bill. It is unfortunate
that in the last throes of the legislative process, in a conference,
this provision, which we clearly know to be out of scope, was put into
the bill, and it is for that reason that I will have to oppose the
bill.
There is another reason I would have to oppose it, and that is that
the Army Field Manual, again, was for the military, but it is a manual.
Certainly, under the current way it is framed and put together in the
law, a manual can be changed. So while there are some 19 techniques
that are detailed as approved for the use of our troops in the field
and elsewhere, who is to say they couldn't add some more and that at
that point Congress is not involved. So I am not sure people thought
through the technical aspects of this thing, and to me, it is a very
unwise decision.
But I wish to reiterate to our colleagues that by virtue of taking
the stance I take--and I presume a goodly number of individuals will
join in this, unfortunately, and vote against this bill--this is not to
say, in any way, that we are sanctioning that the Agency, the CIA,
employ techniques which are in any way constituted as abusive treatment
of human beings or torture or degrading.
All of that is carefully spelled out in the framework of the laws of
2005 and 2006, and it cannot be done by the agency, nor the FBI--nor
are they doing it. The Intelligence Committee has had a series of
hearings. We have had the DNI, the Director of the CIA, the head of the
FBI, and all of them have been carefully questioned and are on record
saying that these procedures, which would be tantamount and
antithetical to our laws of 2005 and 2006 are not employed now, and
they will not be in the future.
It is for that reason that I will have to oppose this bill. I urge my
colleagues to do likewise because we will be taking away from the
agencies the ability to perform a very limited number of
interrogations, a very limited number--but they do them in an entirely
different framework of circumstances, environment, than does the Army
or other military members of our Army, Navy, Air Force, and Marine
Corps under the Army Field Manual.
The techniques applied by the CIA are in compliance with the laws,
but they are not all written up so that a detainee knows full well that
if they are apprehended, they will be subjected to the interrogation
procedures of the agencies; he would know all about it if it is written
up as it is in the Army Field Manual. That would take away a good deal
of the psychological impact of highly skilled interrogating procedures.
We are about to throw those away, abandon them.
This is a very dangerous and complex world. I sometimes think, in the
course of this political campaign, as I listen to my good friends--
three of them Members of this Chamber--vying for the Presidency of the
United States, the awesome framework of complex situations that is
going to face the next President of the United States. I must say, I
have a few years behind me, and I have seen a good bit of history in
this country, but never before has the next President, whoever it may
be--never before have they faced such an awesome, complex situation in
the world that is so fraught with hatred and terrorism and threats to
the basic freedoms of our Nation and many other nations.
It is going to be a real challenge for that next President to
shoulder the responsibilities of Commander in Chief of the Armed Forces
of the United States. And this set of procedures that we presently have
in place, which complies with the law of our land, which complies with
international treaties, must be left intact to enable the Intelligence
Committee to conduct their interrogations and do so to produce facts
which could very well save this Nation and facts that are, every day,
helping to save the men and women of the Armed Forces in uniform
wherever they are in the world--primarily in Iraq and Afghanistan--as
they pursue their courageous responsibilities on behalf of us here at
home.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. BOND. Madam President, I believe it is important to clear up for
the record, for the benefit of my colleagues and the American people,
some statements that were made earlier today about waterboarding,
interrogation techniques and the Army Field Manual.
During the House and Senate conference for the fiscal year 2008
intelligence authorization bill, an amendment--section 327--was adopted
that would prevent any element of the intelligence community from using
any interrogation technique not authorized by the Army Field Manual.
Earlier today, we heard that the full membership of the conference
committee, the full membership of the House Intelligence Committee and
Senate Intelligence Committee all came to the conclusion that all
interrogations should be conducted within the terms of the U.S. Army
Field Manual.

[[Page S955]]

Let's be clear: this particular amendment only passed by a one-vote
margin. The conference was sharply divided on this issue, as reflected
by the fact that no House Republicans signed the conference report and
only two Senate Republicans signed the report.
The problem with this provision is not that it says that
interrogators cannot use certain techniques. Most of the techniques
prohibited by the field manual are so repugnant that I think we can all
agree they should never be used.
In fact, this vote is not about torture, and it is not about
waterboarding. We all think that torture is repugnant. And whether one
believes that waterboarding is torture is really irrelevant because
waterboarding is not in the CIA's interrogation program.
The problem is that the provision in the conference report
establishes a very limited set of techniques, and these are the only
techniques that any interrogator may use.
So the vote is really about whether the FBI and CIA should be
restricted to a set of 19 unclassified techniques, designed for the
Army, which have not been examined fully by some agencies.
If this legislation passes and is signed into law, all of us need to
understand fully that FBI and CIA interrogators may only use the 19
techniques authorized in the field manual. And all of us need to
understand that no one can say for sure that this will not impact our
future intelligence collection.
As CIA Director Hayden has said: ``I don't know of anyone who has
looked at the Army Field Manual who could make the claim that what's
contained in there exhausts the universe of lawful interrogation
techniques consistent with the Geneva Convention.''
If we are going to demand that all Government agencies must use only
these techniques, we must make sure that the field manual does not
leave out other moral and legal techniques needed by these agencies.
And I don't believe that the Intelligence Committee has adequately
pursued this issue.
Having a single interrogation standard does not account for the
significant differences in why and how intelligence is collected by the
military, CIA, and FBI.
Much has been made of the FBI saying that they do not use coercive
techniques. That is accurate. The FBI operates in a different world--
where confessions are usually admitted into evidence during a
prosecution. This means that they have to satisfy standards of
voluntariness that do not bind either the military or the CIA.
But significant concerns have been raised about whether the FBI would
even be able to conduct ordinary interrogations using only those
techniques authorized by the field manual.
A time-honored technique, one that has led to countless successful
prosecutions, is deception--for example, telling a suspect that his
associate has confessed even though the associate has refused to
cooperate. But, it's unclear where this type of deception is authorized
in the field manual. So, under this amendment, the FBI could be barred
from using this simple, yet invaluable, technique.
FBI lawyers have told us that they need more time to conduct a full
legal review of the field manual and determine along with their
counterintelligence and counterterrorism divisions what impact using
only the field manual would have on interrogations. We should give them
time to do this review before we pass a bill that could severely
undermine their interrogation practices.

Aside from these concerns, the Army Field Manual on Interrogation was
designed as a training document. It is changeable, which means the
Congress--and the CIA and FBI have no idea what techniques may be
added--or subtracted--tomorrow, next month, or next year. A moving
document is not a sound basis for good legislation.
There are also practical consequences to applying this unclassified
military training manual to civilian agencies; as we heard earlier,
having one standard that can be publicly judged by the entire world. We
are talking about intelligence interrogations. We should not broadcast
to the world, to our enemies, exactly what techniques our intelligence
professionals may use when seeking information from terrorists.
The wide availability of the field manual on the internet makes it
almost certain that al-Qaida is training its operatives to resist the
authorized techniques.
Supporters of this provision also argue that the Army Field Manual
gives interrogators sufficient flexibility to shape the interrogation.
Yet, some of the techniques in the field manual are allowed only if the
interrogator obtains permission from ``the first O-6 in the
interrogator's chain of command.'' What that means is that an
interrogator has to get permission from an Army or Marine Corps colonel
or a Navy captain before proceeding. So in order to have any
flexibility, will the CIA and FBI have to bring colonels and captains
to all of their interrogations? These interrogations will get awfully
crowded pretty quickly.
We have been told that the field manual incorporates the Golden rule.
Do unto others as you would have them do to unto you is an admirable
standard. But when dealing with terrorists who have shown no regard for
morality, humanity, and decency, it is somewhat out of place.
Do we really expect that if we restrict ourselves to techniques in
the Field Manual that al-Qaida will do the same? While we are arguing
about whether waterboarding is torture, they are chopping off heads and
using women and children to conduct their suicide bombings. Now, I am
not suggesting that we resort to their barbaric tactics. I am simply
saying that we should not base this important decision that will bind
all of our intelligence interrogations on the hope that al-Qaida will
discover civility.
Let me also clarify a comment from our distinguished committee
chairman about the interrogation of Ibn Shaykh al-Libi. It was
suggested that al-Libi lied to interrogators because of the CIA's
``coercive'' techniques. However, al-Libi was not in CIA custody--or
foreign custody for that matter--when he made claims about Iraq
training al-Qaida members in poisons and gases.
In fact, it was only when al-Libi was interviewed by CIA officers
that he recanted his earlier statements.
I believe we still have a lot of work to do before we impose
restrictions on CIA and FBI interrogations that could have severe
consequences for our intelligence collection.
Now, I want to make clear what my position is here today. For the
past several months, I have worked hard to put together a reasonable
bill that allows the Intelligence Committees to conduct necessary
oversight, while cognizant of the administration's concerns about
resources and executive branch prerogatives.
I understand that no administration likes oversight. But oversight is
essential to what Congress does: We have an obligation to the taxpayers
to make laws and appropriate funds responsibly. And in order to do
this, we have to know how the money is being spent and what activities
are being conducted.
I have reviewed closely the Statement of Administration Policy on
this bill and I am confident that we have addressed or resolved all but
one of the concerns listed there. One provision remains that merits a
veto and that is the amendment before us: the Army Field Manual
interrogation techniques.
At the end of the day, if this provision is removed, I will support
this bill. But in its current form, I cannot support it and I urge my
colleagues to vote against the conference report.
Mr. President, I thank the distinguished Senator from Virginia, who
has played the lead in so many things, such as the Detainee Treatment
Act and other major pieces of legislation, for his very thoughtful
discussion of these issues.
It has been very troubling to me to hear on the floor today some
things about what the CIA does that are absolutely not true. We have
heard all kinds of descriptions of techniques that are barred by the
Army Field Manual. The techniques barred by the Army Field Manual, the
horrors that were outlined, are not tactics the CIA uses. They do not
use them. They would probably violate the Geneva Conventions and many
other laws, which absolutely do cover interrogations by the CIA. When
one raises the spectrum that the CIA may be torturing detainees, No. 1,
it is not true; No. 2, for those who know what is going on, it is
irresponsible; No. 3, it is the kind of thing

[[Page S956]]

that fuels the media of our enemies. I would not be surprised to see
some of these comments reported in Al-Jazeera.
What happened at Abu Ghraib was tragic. There were criminal acts by
American troops. We punished them, but nobody talks about the fact that
we punished them and sent them to prison. They went to the brig, as
they should. Now we have heard discussions attributing to the CIA all
manner of activities that are wrong, improper, not usable, and are not
used.
I think it is important we clear the record. I wish some of the
people who know better would say I didn't mean to say that the CIA does
these things, because the people on the Intelligence Committee know
precisely what is done and what is not done.
Mr. WARNER. Will the Senator yield for a moment?
Mr. BOND. I am happy to.
Mr. WARNER. As a Senator from Virginia, I am proud to have the CIA
principal office in my State. I have been working with them for 30-
some-odd years. I have gotten to know many of them through the years.
They are not people who would set out to violate the laws of our
Nation. They are just like you and me. They have families and the same
values we share in the Senate and in our neighborhoods. They do go
abroad and assume an awful lot of personal risk on a number of
missions. But in terms of following the laws of our Nation, and the
international laws, I think they stand head and shoulders, and they are
to be commended.
Mr. BOND. Madam President, I thank my distinguished colleague from
Virginia. He is one of the real experts in this body on military and
intelligence affairs. I can tell you that having talked with General
Hayden and the other top officers of the Agency, getting to know
Attorney General Mike Mukasey and those other responsible, high-
principled officials who are overseeing it, it is not a danger that we
are going to see torture or inhumane or degrading treatment used.
Now, again, during the House-Senate conference for the fiscal year
2008 Intelligence authorization bill, an amendment--section 327--was
adopted that would prevent any element of the intelligence community
from using an interrogation technique not authorized by the Army Field
Manual.
Earlier today, it was stated on the floor that the full membership of
the conference committee, the full membership of the House Intelligence
Committee, and the Senate Intelligence Committee came to the conclusion
that interrogations should be conducted within the terms of the U.S.
Army Field Manual.
Let me be particularly clear that this amendment only passed by a
one-vote margin. The conference was sharply divided on the issue, as
reflected by the fact that no House Republicans signed the conference
report and only two Senate Republicans signed the report.
The problem with this provision is not that it says the interrogators
cannot use certain techniques. Most of the techniques prohibited by the
Army Field Manual are so repugnant that I think we can all agree they
should not be and would never be used.
In fact, this vote is not about torture or about waterboarding.
Despite what you have heard on the floor, it is not about
waterboarding. Torture is repugnant. We have stated that time and time
again--in the Detainee Treatment Act and in other laws we passed.
Whether one believes it is torture is irrelevant because waterboarding
is not in the CIA's interrogation program.
The problem is the provision in the conference report establishes a
very limited set of techniques, and these are the only techniques any
interrogator may use. So the vote is about whether the FBI and CIA
should be restricted to a set of 19 unclassified techniques, designed
for the Army, which have not been examined fully by some agencies. I
say ``19 unclassified techniques'' because those techniques not only
have been published widely, but they are included in al-Qaida training
manuals. So the al-Qaida high-value leaders--the people with the
information--know precisely what it is all about.
If this legislation passes, and were it to be signed into law--which
all of us know it will not--we all need to understand fully that the
FBI and CIA interrogators may only use the 19 techniques authorized in
the field manual. According to the field manual, they would have to get
a clearance from an OC-6, a military officer. That was designed for the
military, not for the CIA, not for the FBI. When my distinguished
colleague from Virginia passed the Detainee Treatment Act, he and the
Senator from Arizona, Senator McCain, expressly left the CIA out of the
limitations to the Army Field Manual.
As CIA Director Michael Hayden has said:

I don't know anyone who has looked at the Army Field Manual
who could make the claim that what's contained in there
exhausts the universe of lawful interrogation techniques
consistent with the Geneva Conventions.

He described a whole area of techniques. There are a whole group of
techniques that we use on the volunteers who join our Marines, Special
Forces, our SEALs, our pilots, which I described earlier today. Many
tactics are far more difficult to withstand than the techniques that
are used by the CIA in its interrogation.
If we are going to demand that all Government agencies must use only
these techniques, we must make sure the Army Field Manual doesn't leave
out other moral and legal techniques needed by these agencies. I don't
believe the Intelligence Committee has adequately pursued this issue.
How many of those techniques do we want to publish so our al-Qaida
targets will know how to resist them? Having a single interrogation
standard does not account for the significant differences in why and
how intelligence is collected by the military, CIA and FBI, and from
whom it is collected.

Much has been made of the FBI saying they do not use coercive
techniques. That is accurate. The FBI operates in a different world--
where confessions are usually admitted into evidence during a
prosecution. This means they have to satisfy standards of voluntariness
that do not bind either the military or CIA. When they question
somebody, they are trying to stop a terrorist attack from happening in
the future. They are in the field. The FBI is investigating a crime
that has been committed in the hopes of punishing those people. There
are significant concerns about whether the FBI would even be able to
conduct ordinary interrogations using the techniques in the Army Field
Manual.
A time-honored technique, one that has led to countless successful
prosecutions, is deception--for example, telling a suspect that his
associate has confessed even though the associate has refused to
cooperate. But as I read the Army Field Manual, I don't see that that
is authorized. So under this amendment, the FBI could be barred from
using this simple, yet invaluable, technique.
FBI lawyers have told us they need more time to conduct a full legal
review of the Army Field Manual to determine, along with their
counterintelligence and counterterrorism divisions, what impact using
only the field manual would have on interrogations. We should give them
time to do this review before we pass a bill that could severely
undermine their interrogation practices.
Aside from these concerns, the Army Field Manual on Interrogation was
designed as a training document. It is changeable, which means the
Congress--and the CIA and FBI--has no idea what techniques may be added
or subtracted tomorrow, next month or next year.
Are we really ready in this body to define something as a standard, a
changing field manual? When do we ever do that, saying everybody has to
follow the Army Field Manual, and the Army Field Manual can be changed
when and if it is ready. There are practical consequences. The
unclassified military training level is not applicable to questioning
high-value detainees.
This is, I suggest, a very bad measure. I believe the bill without
this amendment would have been a very good one. I cannot urge my
colleagues to vote for it.
The PRESIDING OFFICER. All time has expired. The question is on
agreeing to the conference report to accompany H.R. 2082.
Mr. WARNER. Have the yeas and nays been ordered?
The PRESIDING OFFICER. They have not been ordered.

[[Page S957]]

Mr. WARNER. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton),
the Senator from Missouri (Mrs. McCaskill), and the Senator from
Illinois (Mr. Obama) are necessarily absent.
Mr. KYL. The following Sentor is necessarily absent: the Senator from
South Carolina (Mr. Graham).
Further, if present and voting, the Senator from South Carolina (Mr.
Graham) would have voted ``nay.''
The result was announced--yeas 51, nays 45, as follows:

[Rollcall Vote No. 22 Leg.]

YEAS--51

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Carper
Casey
Collins
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Hagel
Harkin
Inouye
Johnson
Kennedy
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
Lugar
Menendez
Mikulski
Murray
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Salazar
Sanders
Schumer
Smith
Snowe
Stabenow
Tester
Webb
Whitehouse
Wyden

NAYS--45

Alexander
Allard
Barrasso
Bennett
Bond
Brownback
Bunning
Burr
Chambliss
Coburn
Cochran
Coleman
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Grassley
Gregg
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lieberman
Martinez
McCain
McConnell
Murkowski
Nelson (NE)
Roberts
Sessions
Shelby
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Wicker

NOT VOTING--4

Clinton
Graham
McCaskill
Obama
The conference report was agreed to.
Mr. REID. Madam President, I move to reconsider vote.
Mr. LEAHY. I move to lay that motion on the table.
The PRESIDING OFFICER. Without objection, it is so ordered.

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