(Senate - October 01, 2004)

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[Pages S10256-S10259]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                       ABUSE OF FOREIGN DETAINEES

  Mr. LEAHY. Mr. President, almost five months after learning of the 
atrocities that occurred at Abu Ghraib, several of the investigations 
into U.S. detention policies are now complete. I commend Chairman 
Warner for his efforts to investigate this scandal, but he remains 
hampered by the leadership of his own party and an administration that 
does not want the full truth revealed. While the investigations provide 
new insight into how the abuses occurred, they frequently raise as many 
new questions as they answer. Despite calls from a small handful of us 
who want to find the truth, Congress and this administration have 
failed to seriously investigate acts that bring dishonor upon our great 
Nation and endanger our soldiers overseas.
  The Bush administration circled the wagons long ago and has 
continually maintained that the abuses were the work of `a few bad 
apples.' I have long said that somewhere in the upper reaches of the 
executive branch a process was set in motion that rolled forward until 
it produced this scandal. Even without a truly independent 
investigation, we now know that the responsibility for abuse runs high 
up into the chain of command. To put this matter behind us, first we 
need to understand what happened at all levels of government. It is the 
responsibility of the Senate to investigate the facts, from genesis to 
final approval to implementation and abuse. However, this Senate, and 
in particular the Judiciary Committee, continues to fall short in its 
oversight responsibilities.
  Democrats on the Judiciary Committee attempted in June to force the 
disclosure of policy memos on the treatment of detainees, but were 
defeated by a party-line vote. Recently, a Federal judge, recognizing 
the importance of public examination of such documents, ordered the 
Bush administration to comply with freedom of information laws and 
release a list of all documents on the detentions at Abu Ghraib prison 
by October 15. I commend this decision, but even that list would not 
tell the entire story.
  A recent Washington Post column addressed the administration's 
attempt to whitewash this scandal. Jackson Diehl wrote:

       Cynics will not be surprised to learn that senior military 
     commanders and Bush administration officials are on the verge 
     of avoiding any accountability for the scandal of prisoner 
     abuse in Iraq and Afghanistan--despite the enormous damage 
     done by that affair to U.S. standing in Iraq and around the 
     world; despite the well-documented malfeasance and possible 
     criminal wrongdoing by those officials; despite the 
     contrasting prosecution of low-ranking soldiers.

  Allowing senior officials to avoid accountability sets a dangerous 
precedent. It is time for Congress, even this Republican Congress, to 
do its job and take action. We must send a message that no one in the 
chain of command--from an enlisted private at Abu Ghraib to the 
Commander-in-Chief--is above the laws of our Nation.
  The investigations completed thus far provide additional insight into 
how the prison abuses occurred, but their narrow mandates prevented 
them from addressing critical issues. The reports by the Army Inspector 
General, Maj. Gen. George Fay, and Lt. Gen. Anthony Jones all suffered 
from structural limitations. The Army IG report was designed as ``a 
functional analysis'' of operations, not an investigation into any 
specific incidents. The Fay and Jones reports, tasked with reviewing 
the role of military intelligence at Abu Ghraib, were limited in scope 
to the military itself despite acknowledging that relationships between 
military intelligence, military police, and outside agencies were 
significant to the breakdown in order. Overall, these investigations 
collectively suffered from a lack of scope and authority, leaving key 
inquiries into issues like contractor abuses and ``ghost detainees'' 
  The panel led by former Defense Secretary James Schlesinger was 
similarly limited to the role of the military and could not investigate 
the role of the CIA. The Schlesinger panel had no subpoena power and 
lacked true independence. Its loyalty to the Secretary of Defense is 
betrayed by its acceptance of a policy that is proving to be one of the 
root causes of this scandal. In August 2002, Assistant Attorney General

[[Page S10257]]

Jay Bybee wrote in a memo to White House Counsel Alberto Gonzales that, 
``While many of these techniques may amount to cruel, inhuman or 
degrading treatment, they do not produce pain or suffering of the 
necessary intensity to meet the definition of torture.'' Alarmingly, in 
his recent testimony before the Senate Armed Services Committee, Dr. 
Schlesinger sounded more like an administration official than an 
independent investigator. His statement to the committee that, ``What 
constitutes humane treatment lies in the eye of the beholder'' is 
something I would have expected to read in a memo from Jay Bybee, not 
the head of an ``independent'' commission.
  I could not disagree more with the statements of Dr. Schlesinger and 
Mr. Bybee. The Geneva Conventions and Convention Against Torture define 
humane treatment of prisoners, setting standards that protect our own 
soldiers when they are captured. A number of State Department lawyers 
fought to protect these standards in early 2002, when the President 
broke with decades of policy and decided against providing the Geneva 
protections to terrorist suspects. Military lawyers fought the same 
battle after Secretary Rumsfeld approved techniques for use at 
Guantanamo that are illegal under the Geneva Conventions.
  The recently released reports illustrate why an independent 
investigation is still necessary. They brought us closer to the truth, 
but questions remain unanswered. Despite its failings, the Schlesinger 
report refuted the administration's efforts to avoid responsibility and 
to minimize this scandal as the misdeeds of `a few bad apples.' The 
report documents a failure of leadership by some at higher levels in 
the chain of command, as well as poor planning from the top and a great 
deal of confusion about which interrogation and detention practices 
were acceptable. But the confusion was not caused solely by a lack of 
leadership. In recent months we have learned that senior officials in 
the White House, the Justice Department and the Pentagon set in motion 
a systematic effort to minimize, distort and even ignore our laws, 
policies and agreements on torture and the treatment of prisoners. The 
Schlesinger panel failed to follow the investigation to the highest 
levels of the administration.
  Ultimately, what emerges from these reports is a striking 
contradiction. The reports state that there was no official policy of 
abuse and they do not recommend punishment for high-ranking officials. 
And yet, the reports show that decisions that were made by top 
officials, including the President himself, led to the abuses that 
occurred in the fields of battle.
  Piecing together the facts and findings of these reports with 
information contained in other official documents and press accounts, a 
timeline emerges that shows how edicts from Washington trickled down, 
crossed oceans, and migrated from the front lines on one continent to 
the next.
  In February 2002, President Bush signed a memorandum stating that the 
Geneva Conventions did not apply to members of al-Qaida and the 
Taliban. That decision was taken at the recommendation of the Attorney 
General and White House counsel, and over the objection of the 
Secretary of State.

  Eight months later, in October 2002, with hundreds of prisoners 
captured in Afghanistan then being held at Guantanamo Bay, the 
Schlesinger report states that authorities at the base ``requested 
approval of strengthened counter-interrogation techniques.'' In 
December of that year, according to the Fay report, Secretary Rumsfeld 
approved for use at Guantanamo techniques such as ``stress positions, 
isolation for up to thirty days, removal of clothing and the use of 
detainees' phobias (such as the use of dogs).'' Lawyers in the military 
reacted negatively, strenuously arguing that the use of such techniques 
was anathema to military tradition and would ultimately come back to 
haunt the armed services. In January 2003, Secretary Rumsfeld rescinded 
his approval of the extreme interrogation techniques; new guidelines 
were issued in April 2003 from a Defense Department working group.
  The Fay report reveals, however, that despite the Secretary's shift 
in policy, the methods he had authorized in December 2002 for use only 
at Guantanamo Bay quickly migrated to Afghanistan and other locations 
where our military is active. As early as December 2002, reports 
General Fay, ``interrogators in Afghanistan were removing clothing, 
isolating people for long periods of time, using stress positions, 
exploiting fear of dogs and implementing sleep and light deprivation.''
  It was also in December 2002 that two prisoners in U.S. custody were 
killed. Both deaths were ruled homicides by pathologists, but, at the 
time, the Army publicly attributed them to natural causes. It was not 
until journalists saw copies of the death certificates, which had been 
given to the non-English speaking families of the deceased, that the 
truth about the fatalities came out. In September, criminal charges 
were finally filed, 20 months after the deaths occurred.
  These deaths are deeply disturbing, but at least we know some of the 
details of the cases and can seek justice against the perpetrators. A 
recent report by the Crimes of War Project uncovered an Afghan 
detainee's death that was never reported up the military chain of 
command. The detainee, Jamal Naseer, died in March 2003, allegedly 
after weeks of torture by American soldiers. Because the Special Forces 
unit that reportedly controlled the detention facility failed to report 
the death, it was never investigated. This incident is very troubling 
on its own, but, like so many other incidents we have discovered, it 
points to a much larger problem. The U.S. Army Criminal Investigation 
Command received a tip about Naseer's death earlier this year, but 
could not investigate the matter due to a lack of information. 
Christopher Coffey, an Army detective based at Bagram air base, told 
the L.A. Times:

       We're trying to figure out who was running the base. We 
     don't know what unit was there. There are no records. The 
     reporting system is broke across the board. Units are 
     transferred in and out. There are no SOPs [standard operating 
     procedures] and each unit acts differently.

  The L.A. Times article illustrates a serious failure of leadership by 
the Department of Defense and the obvious shortcomings of allowing the 
Pentagon to investigate itself. The Army Inspector General's report, 
released in July, stated that the investigation's team ``that visited 
Iraq and Afghanistan discovered no incidents of abuse that had not been 
reported through command channels; all incidents were already under 
investigation.'' We now know this cannot be accurate. What we don't 
know is how many more deaths and cases of torture have gone unreported.
  As I stated before, the Schlesinger report agreed with administration 
policy that detainees did not merit Geneva protections, a position with 
which I and many of those in uniform disagree. The panel acknowledged, 
however, that the President's policy of treating al-Qaida and Taliban 
detainees ``consistent with the principles of Geneva,'' was ``vague and 
lacking.'' Even a government treating prisoners ``consistent'' with the 
Conventions would not rely on interrogation practices like the ones we 
have witnessed. The techniques I just described, ones that were used in 
Guantanamo, Afghanistan, and Iraq are clearly illegal under the Geneva 
Conventions. Secretary Rumsfeld and, later, Lt. Gen. Ricardo Sanchez, 
authorized the use of techniques that were contrary to both U.S. 
military manuals and international law. Given this incredible 
overstepping of bounds, I find it incredible that the reports generated 
thus far have not recommended punishment of any kind for high level 
  Meanwhile, the CIA conducted its own set of interrogations. The Fay 
and Schlesinger reports state that the CIA operated under a different 
set of rules, sometimes including the military and sometimes not. The 
Fay report states that ``the CIA's detention and interrogation 
practices contributed to a loss of accountability and abuse at Abu 
Ghraib.'' The result: further confusion among soldiers in the field 
over appropriate standards of treatment and the application of the 
Geneva Conventions.
  How did these techniques, which were rescinded by Secretary Rumsfeld 
in January 2003 become so prevalent in Iraq? The Fay report states it 
flatly: ``Concepts for the non-doctrinal, in-field manual approaches 
and practices

[[Page S10258]]

clearly came from documents and personnel in Afghanistan and 
Guantanamo.'' Ultimately, the ``non-doctrinal'' approaches used at Abu 
Ghraib included nakedness and humiliation, the use of dogs to ``fear 
up'' detainees, and sexual and physical assaults. These approaches 
migrated to Iraq a number of ways, any of which might have been 
prevented by clear statements of policy from the top. Members of the 
519th Military Intelligence Battalion served at Bagram Air Force Base 
in Afghanistan in 2002. Some of these soldiers have been implicated in 
the deaths of the two prisoners at Bagram. A number of soldiers from 
the 519th were sent to Iraq, and some of those have been implicated in 
the Abu Ghraib abuse scandal. As we all know, military intelligence 
played a major role in directing and carrying out the abuses at Abu 
  In addition, as the Fay report cites, ``Interrogators in Iraq, 
already familiar with the practice of some of these new ideas, 
implemented them even prior to any policy guidelines.'' Before long, as 
the Schlesinger report states, policy guidance backed up the 
interrogators' actions. In August 2003, Maj. Gen. Miller ``brought the 
Secretary of Defense's April 16, 2003, policy guidelines for Guantanamo 
with him,'' and gave this policy to Lt. Gen. Sanchez, who was, at the 
time, the highest level commander in Iraq. On September 14 of last 
year, according to the Schlesinger report, Lt. Gen. Sanchez approved a 
policy on interrogation that included techniques that, up to that 
point, had only been officially applied to so-called enemy combatants--
those who, in the minds of President Bush and Secretary Rumsfeld, were 
not protected by the Geneva Conventions. The Bush administration has 
steadfastly claimed that the Geneva Conventions apply to the war in 
Iraq. And yet, Lt. Gen. Sanchez determined, with no authorization to do 
so, that some of the detainees held in Iraq were to be categorized as 
unlawful combatants.
  How did Lt. Gen. Sanchez justify his authority to approve such 
techniques? The Schlesinger report found that Lt. Gen. Sanchez relied 
on the President's February 2002 memorandum and the Department of 
Justice's notorious August 1, 2002 memo twisting the definition of 
torture. It is deeply troubling, given this evidence, that the Bush 
administration has held fast to the contention that the abuses at Abu 
Ghraib were committed by ``a few bad apples.'' And it is extremely 
disconcerting that the very outcome that military lawyers warned of 
when they fought against the administration's desire to suspend the 
Geneva Conventions--the undermining of the military's tradition of 
upholding the rule of law--came to fruition. Our armed forces have been 
tainted by this scandal and our soldiers in the field placed at greater 
  The Sanchez policy guidelines were technically in effect for only a 
month before being revised. But, as in Afghanistan, these illegal 
techniques were put to use almost immediately. Interrogators in Iraq 
relied upon the guidelines and may have done so believing that they 
were appropriate. The Jones report states that, ``Some of these 
incidents involved conduct which, in retrospect, violated international 
law. However, at the time some of the soldiers or contractors committed 
the acts, they may have honestly believed the techniques were 
  I find it deeply disturbing that American soldiers would have acted 
on such guidelines. I have stated many times that those who violated 
the laws by assaulting and humiliating prisoners should be prosecuted. 
The buck should not stop there, however. The reports have shown that 
there was a serious breakdown in training and operations. There was one 
MP for every 75 prisoners at Abu Ghraib when the abuses occurred. And 
as the Army Inspector General found, interrogation facilities lacked 
oversight processes and control mechanisms. Even routine inspections 
were lacking.
  What these reports show--and, unfortunately, it is an unstated 
revelation one discovers by reading between the lines--is that once 
President Bush and his top advisors let the genie out of the bottle by 
denying the protections of the Geneva Conventions and rewriting the 
definition of torture, they set off a chain reaction that spanned the 
globe. By changing the rules of treatment and interrogation for one 
group of detainees, by tossing away decades of military protocol, by 
writing and rescinding and rewriting guidelines so often that soldiers 
had no clear understanding of policy or practice, and by allowing the 
CIA to operate in the shadows, the leaders of the Bush administration 
lost control. What was initiated for one group of detainees in one 
location spilled over into other countries and to very different types 
of prisoners.
  A day or two after the release of the Schlesinger and Fay-Jones 
reports, Secretary Rumsfeld still claimed that there was no evidence 
that prisoners had been abused during interrogations. I wonder if he 
took the time to read or to request a briefing on these investigations. 
He made the same statement twice before his handlers corrected him, in 
the middle of a press conference. Incredibly, he again misstated the 
facts, ``correcting'' himself to say that only two or three cases of 
abuse took place during interrogation. In fact, 13 of 44 instances of 
abuse involved interrogation. It leaves me to wonder. Meanwhile, 
President Bush has kept quiet about the findings of the reports. His 
silence is deafening.
  As I have said before, there needs to be a thorough, independent 
investigation of the actions of those involved, from the people who 
committed abuses, to the officials who set these policies in motion. An 
independent commission, structured on the model of the 9/11 Commission, 
will allow us begin to heal the damage that has been done.
  I am not alone in calling for an independent commission. Several 
organizations, including the American Bar Association, Human Rights 
First, Amnesty International, and Human Rights Watch, have urged the 
creation of an independent, bipartisan commission to investigate the 
prisoner abuses. A recent letter from eight retired generals and 
admirals to President Bush asked him to appoint a prisoner abuse 
commission modeled on the 9/11 Commission. In that letter, the flag 
officers stated, ``internal investigations by their nature . . . suffer 
from a critical lack of independence. Americans have never thought it 
wise or fair for one branch of government to police itself.''
  The 9/11 Commission provides more than a structural model for a new 
commission; it also provides a lesson in how perseverance can overcome 
the administration's refusal to seek the truth. The Bush administration 
initially opposed the formation of the 9/11 Commission, just as it now 
opposes a prisoner abuse commission. The administration used the same 
argument against both commissions. It asserts that the numerous 
internal investigations are sufficient to uncover the truth. Dr. James 
Schlesinger, the head of the panel established by Secretary Rumsfeld to 
investigate the prisoner abuses, addressed this issue in his testimony 
to the Senate Government Affairs Committee in February 2002, as it 
debated the need for the 9/11 Commission. He argued for the creation of 
the Commission because, ``to this point many questions have been 
addressed piecemeal--or not at all. The purpose of the National 
Commission would be systematically and comprehensively to address such 
questions--and to give a complete accounting of the events leading up 
to 9/11. In my judgment, such a Commission would serve a high, indeed 
indispensable, national purpose.'' This is exactly the same reason we 
need an independent commission to investigate the prisoner abuse 
  The Governmental Affairs Committee report on the bill to establish 
the 9/11 Commission stated that it ``is a bipartisan initiative to help 
answer the many remaining questions in a constructive, methodical, and 
non-partisan way. The commission would complement investigations being 
undertaken by Congress and the Executive Branch.'' A prisoner abuse 
commission would fulfill a similar need--to fill the gaps that 
inevitably occur when an investigation is addressed in a piecemeal 
fashion. We already know some gaps exist--such as the ghost detainee 
problem and the role of contractors--others are sure to arise in the 
course of an independent investigation.
  International law, as well as the Defense Department's own policies, 
requires the registration and accounting of all detainees. Detainees 
kept off of the official rolls--so called 'ghost detainees'--are held 
in violation of the law. The Fay-Jones report revealed that the ghost 
detainee problem was

[[Page S10259]]

far more pervasive than the Defense Department had previously 
acknowledged. General Kern, the investigation's appointing officer, 
testified before the Senate Armed Services Committee that there could 
be as many as 100 ghost detainees, but his panel could not thoroughly 
investigate the matter because the CIA refused to cooperate in the 
  These revelations should not come as a surprise--human rights groups 
have been calling for an investigation into the ghost detainee issue 
for months. I first wrote to the National Security Advisor about 
mistreatment of detainees in June 2003, including a request for 
information on prisoners transferred in secret by the United States to 
other nations for interrogation. A report on secret detentions was 
released on June 17, 2004, by Human Rights First. The report, titled, 
Ending Secret Detentions, describes a number of officially undisclosed 
locations that sources--typically unnamed government sources quoted in 
the press--have described as detention centers for terrorism suspects. 
These sources have discussed facilities in Iraq, Afghanistan, Pakistan, 
Jordan, Diego Garcia, and on U.S. war ships. The ICRC has not been 
allowed access to these facilities. It issued a public statement in 
March expressing its growing concern over ``the fate of an unknown 
number of people captured . . . and held in undisclosed locations.'' To 
date, its requests have been denied.
  After being rebuffed by the CIA, the Fay-Jones panel asked two 
offices to conduct further investigations into the ghost detainee 
issue: the Department of Defense Inspector General and the CIA 
Inspector General. Once again, this would result in one branch of 
government to policing itself. Like the Fay-Jones panel, the Inspectors 
General lack the authority to follow such investigations beyond their 
own departments--again allowing many questions to remain unanswered. We 
need to know what role senior administration officials in the White 
House, Justice Department, Defense Department, and CIA played in 
formulating the policies that allowed the illegal detention of ghost 
detainees. We know this problem emanated from senior officials--
Secretary Rumsfeld admitted in June that he approved the secret 
detention of one detainee at the request of CIA Director Tenet. Only an 
independent commission with significant authority will be able to fully 
investigate this matter.
  The Fay-Jones report also found that civilian contractors were 
complicit in the abuse of detainees. We already knew this, but the 
panel's findings raise new questions about whether the contractors will 
be held accountable for their actions. Thus far, one contractor has 
been charged for abuse in Afghanistan, but no charges have been filed 
against contractors in Iraq. As P.W. Singer points out in his recent 
Washington Post op-ed, ``Army investigators are at a loss over how to 
hold the contractors accountable. The Army referred individual 
employees' names to the Justice Department more than three months ago, 
but Attorney General Ashcroft has yet to take action.'' As these cases 
are referred to the Justice Department, the Judiciary Committee must 
fulfill its oversight responsibility to ensure these crimes do not go 
unpunished. Given the reports and allegations of abuses of Iraqi 
prisoners that involved civilian contractors, I am deeply troubled at 
the passivity being displayed by the Department of Justice. If 
loopholes exist in the law, the Department should be working with 
Congress to fill them.
  Some argue that another investigation will prevent us from putting 
the scandal behind us, but ignoring the problem will not make it go 
away. Each week brings new allegations that reveal how much we still 
don't know. Human rights groups and journalists have been unrelenting 
in their efforts to uncover this scandal, and I applaud their 
contributions. The report released recently by the War Crimes Project 
revealed unreported deaths in Afghanistan. Veteran journalist Seymour 
Hersh claims in his new book that senior military and national security 
officials were repeatedly warned in 2002 and 2003 that prisoners were 
being abused. Mr. Hersh writes that FBI agents notified their superiors 
about abuses at Guantanamo and that these reports were passed along to 
officials at the Pentagon. The ACLU continues to fight in Federal 
courts to compel the administration to release documents related to 
torture. Even without further Government action, this scandal is not 
going to go away. It is time for us to lead the investigation, rather 
than wait to read about the latest discovery of abuse in tomorrow's 
paper. We must establish an independent commission.
  In the coming months, the remaining Pentagon investigations will come 
to an end. It will be like finding an old jigsaw puzzle in the back of 
the closet--it looks complete, but you can never tell if there are 
pieces missing until you try to put it together. An independent 
commission can take on this important task; it will ensure that no 
pieces are missing and that we have a complete, unbiased assessment of 
a sad chapter in our Nation's history. The 9/11 Commission showed us 
that it can be painful to dredge up the past, but it is also a 
necessary step to moving forward.