Senator Durbin apologized yesterday for his earlier remarks. Frankly, I have to wonder why - has our country come to the point where those who oppose torture must apologize for opposing it? Apparently so. In recent months we've seen:
- the senior Bush legal advisor who wrote or approved the majority of memos justifying torture and secret detention was nominated and approved by the Senate to be Attorney General;
- the senior officer in charge of Abu Ghraib promoted;
- a lieutenant in the Navy seals acquited for the beating death of a detainee in his custody, and then promoted;
- the Bush regime has defied a Supreme Court ruling regarding prisoner access to legal protections
And now, Republicans in Congress want to cut funding for the International Committee of the Red Cross because the ICRC has reported on the many prisoner abuses and violations of international law committed by the U.S.
There was no apology needed. Not from Durbin, not from anyone else, not even from the torturers. I do hope someday to see those responsible for the torture, i.e. Bush, Rumsfeld, Cheney, and Gonzalez, standing up in court to explain why they should not be punished for their crimes. But apologies? It's far too late for that.
Apparently,
Human Rights Watch sent the following letter to U.S. senators:
June 20, 2005
Dear Senator:
Critics of the Bush administration's detention policies, including Senator Richard Durbin, have recently stirred controversy by comparing interrogation techniques used in Guantanamo and Iraq to those used in the Soviet penal system known as the "gulag."
Clearly, there are profound and fundamental differences between the global detention system the United States has established in places such as Guantanamo Bay, and the prison camps of Stalin's Soviet Union. .....
Nonetheless, in his floor statement of June 14th, Senator Durbin was absolutely right in two important respects.
First, the interrogation practices he cited, which were allegedly witnessed by FBI agents in Guantanamo, are consistent with practices that were approved by Secretary of Defense Rumsfeld and U.S. military commanders. For example, the agent who recounted seeing detainees "chained hand and foot in a fetal position on the floor, with no chair, food or water," who had "urinated or defecated on themselves and had been left there for 18-24 hours" was describing, in vivid terms, what the Defense Department refers to as a "stress position" -- a technique that was approved for a time by Secretary Rumsfeld for Guantanamo as well as by commanders in Iraq. The agent who stated that he saw detainees held in rooms so frigid that they were "left shaking in cold" and the agent who saw a detainee "almost unconscious in a room with a temperature probably over 100 degrees" next to a pile of his own hair were both describing a technique known as "environmental manipulation" -- using extremes of hot and cold to induce suffering and stress -- that was at various points approved in both Guantanamo and Iraq.
Second, as disturbing as it may seem, these and other interrogation methods approved by the Bush administration were among the favored methods of the Soviet secret police at the height of Stalin's terror. Techniques such as "stress positions" (which include forcing prisoners to stand or squat for extended periods of time, or binding them in painful, contorted postures), sleep deprivation, exposure to heat and cold, long periods of isolation, often with deprivation of light and sound, removal of clothing, and threatening prisoners with dogs (all of which were approved by U.S. officials in the last three years) were developed and perfected by the Soviet NKVD -- the predecessor of the KGB --during that terrible time. The Soviets employed these methods, often in combination, to cause fear, disorientation, humiliation, and physical pain, without leaving physical scars. In fact, these were among the most notorious techniques used to coerce confessions from the victims of Stalin’s show trials in the 1930’s. Knowledge of these methods undoubtedly passed to modern interrogators from their predecessors, who may well have learned of them from the documented record of the Soviet police state.
Stalin used these techniques because they were effective, not in getting the truth out of prisoners, but in making them lie -- to confess to crimes they did not commit so that their spirits would be broken along with their bodies. Such cruel methods obviously have no place in a democratic society that upholds the law. Just as important, they should be of no use to a society that needs accurate intelligence from detainees, rather than forced and false confessions. Congress should require a clear set of interrogation rules that forbid all US government agencies from engaging in such conduct.
Sincerely,
Tom Malinowski
Washington Advocacy Director
Human Rights Watch
FLOOR STATEMENT BY SENATOR RICHARD J. DURBIN ON
GUANTANAMO BAY
JUNE 14, 2005
Mr. President, there has been a lot of discussion in recent days about whether to close the
detention center at Guantanamo Bay. This debate misses the point. It is not a question of
whether detainees are held at Guantanamo Bay or some other location. The question is how we
should treat those who have been detained there. Whether we treat them according to the law or
not does not depend on their address. It depends on our policy as a nation.
How should we treat them? This is not a new question. We are not writing on a blank
slate. We have entered into treaties over the years, saying this is how we will treat wartime
detainees. The United States has ratified these treaties. They are the law of the land as much as
any statute we passed. They have served our country well in past wars. We have held ourselves
to be a civilized country, willing to play by the rules, even in time of war.
Unfortunately, without even consulting Congress, the Bush administration unilaterally
decided to set aside these treaties and create their own rules about the treatment of prisoners.
Frankly, this Congress has failed to hold the administration accountable for its failure to
follow the law of the land when it comes to the torture and mistreatment of prisoners and
detainees.
I am a member of the Judiciary Committee. For two years, I have asked for hearings on
this issue. I am glad Chairman Specter will hold a hearing on wartime detention policies
tomorrow. I thank him for taking this step. I wish other members of his party would be willing
to hold this administration accountable as well.
It is worth reflecting for a moment about how we have reached this point. Many people
who read history remember, as World War II began with the attack on Pearl Harbor, a country in
fear after being attacked decided one way to protect America was to gather together Japanese
Americans and literally imprison them, put them in internment camps for fear they would be
traitors and turn on the United States. We did that. Thousands of lives were changed.
Thousands of businesses destroyed. Thousands of people, good American citizens, who
happened to be of Japanese ancestry, were treated like common criminals.
It took almost 40 years for us to acknowledge that we were wrong, to admit that these
people should never have been imprisoned. It was a shameful period in American history and
one that very few, if any, try to defend today.
I believe the torture techniques that have been used at Abu Ghraib and Guantanamo and
other places fall into that same category. I am confident, sadly confident, as I stand here, that
decades from now people will look back and say: What were they thinking? America, this great,
kind leader of a nation, treated people who were detained and imprisoned, interrogated people in
the crudest way? I am afraid this is going to be one of the bitter legacies of the invasion of Iraq.
We were attacked on September 11, 2001. We were clearly at war.
We have held prisoners in every armed conflict in which we have engaged. The law was
clear, but some of the President's top advisers questioned whether we should follow it or whether
we should write new standards.
Alberto Gonzales, then-White House chief counsel, recommended to the President the
Geneva Convention should not apply to the war on terrorism.
Colin Powell, who was then Secretary of State, objected strenuously to Alberto Gonzales'
conclusions. I give him credit. Colin Powell argued that we could effectively fight the war on
terrorism and still follow the law, still comply with the Geneva Conventions. In a memo to
Alberto Gonzales, Secretary Powell pointed out the Geneva Conventions would not limit our
ability to question the detainees or hold them even indefinitely. He pointed out that under
Geneva Conventions, members of al-Qaida and other terrorists would not be considered
prisoners of war.
There is a lot of confusion about that so let me repeat it. The Geneva Conventions do not
give POW status to terrorists.
In his memo to Gonzales, Secretary Powell went on to say setting aside the Geneva
Conventions “will reverse over a century of U.S. policy and practice... and undermine the
protections of the law of war for our own troops... It will undermine public support among
critical allies, making military cooperation more difficult to sustain.”
When you look at the negative publicity about Guantanamo, Secretary Colin Powell was
prophetic.
Unfortunately, the President rejected Secretary Powell's wise counsel, and instead
accepted Alberto Gonzales' recommendation, issuing a memo setting aside the Geneva
Conventions and concluding that we needed “new thinking in the law of war.”
After the President decided to ignore Geneva Conventions, the administration unilaterally
created a new detention policy. They claim the right to seize anyone, including even American
citizens, anywhere in the world, including in the United States, and hold them until the end of the
war on terrorism, whenever that may be.
For example, they have even argued in court they have the right to indefinitely detain an
elderly lady from Switzerland who writes checks to what she thinks is a charity that helps
orphans but actually is a front that finances terrorism.
They claim a person detained in the war on terrorism has no legal rights -- no right to a
lawyer, no right to see the evidence against them, no right to challenge their detention. In fact, the
Government has claimed detainees have no right to challenge their detention, even if they claim
they were being tortured or executed.
This violates the Geneva Conventions, which protect everyone captured during wartime.
The official commentary on the convention states: “Nobody in enemy hands can fall outside the
law.”
That is clear as it can be. But it was clearly rejected by the Bush administration when
Alberto Gonzales as White House counsel recommended otherwise.
U.S. military lawyers called this detention system “a legal black hole.” The Red Cross
concluded, “U.S. authorities have placed the internees in Guantanamo beyond the law.”
Using their new detention policy, the administration has detained thousands of individuals
in secret detention centers all around the world, some of them unknown to Members of Congress.
While it is the most well-known, Guantanamo Bay is only one of them. Most have been captured
in Afghanistan and Iraq, but some people who never raised arms against us have been taken
prisoner far from the battlefield.
Who are the Guantanamo detainees? Back in 2002, Secretary Rumsfeld described them as
“the hardest of the hard core.” However, the administration has since released many of them, and
it has now become clear that Secretary Rumsfeld's assertion was not completely true.
Military sources, according to the media, indicate that many detainees have no connection
to al-Qaida or the Taliban and were sent to Guantanamo over the objections of intelligence
personnel who recommended their release. One military officer said: “We're basically
condemning these guys to a long-term imprisonment. If they weren't terrorists before, they
certainly could be now.”
Last year, in two landmark decisions, the Supreme Court rejected the administration's
detention policy. The Court held that the detainees' claims that they were detained for over two
years without charge and without access to counsel “unquestionably describe custody in violation
of the Constitution, or laws or treaties of the United States.”
The Court also held that an American citizen held as an enemy combatant must be told the
basis for his detention and have a fair opportunity to challenge the Government's claims. Justice
Sandra Day O'Connor wrote for the majority: “A state of war is not a blank check for the
President when it comes to the rights of the Nation's citizens.”
You would think that would be obvious, wouldn't you? But yet, this administration, in this
war, has viewed it much differently.
I had hoped the Supreme Court decision would change the administration policy.
Unfortunately, the administration has resisted complying with the Supreme Court's decision.
The administration acknowledges detainees can challenge their detention in court, but it
still claims that once they get to court, they have no legal rights. In other words, the
administration believes a detainee can get to the courthouse door but cannot come inside.
A Federal court has already held the administration has failed to comply with the Supreme
Court's rulings. The court concluded that the detainees do have legal rights, and the
administration's policies “deprive the detainees of sufficient notice of the factual bases for their
detention and deny them a fair opportunity to challenge their incarceration.”
The administration also established a new interrogation policy that allows cruel and
inhuman interrogation techniques.
Remember what Secretary of State Colin Powell said? It is not a matter of following the
law because we said we would, it is a matter of how our troops will be treated in the future. That
is something often overlooked here. If we want standards of civilized conduct to be applied to
Americans captured in a warlike situation, we have to extend the same manner and type of
treatment to those whom we detain, our prisoners.
Secretary Rumsfeld approved numerous abusive interrogation tactics against prisoners in
Guantanamo. The Red Cross concluded that the use of those methods was "a form of torture."
The United States, which each year issues a human rights report, holding the world
accountable for outrageous conduct, is engaged in the same outrageous conduct when it comes to
these prisoners.
Numerous FBI agents who observed interrogations at Guantanamo Bay complained to
their supervisors. In one e-mail that has been made public, an FBI agent complained that
interrogators were using “torture techniques.”
That phrase did not come from a reporter or politician. It came from an FBI agent
describing what Americans were doing to these prisoners.
With no input from Congress, the administration set aside our treaty obligations and
secretly created new rules for detention and interrogation. They claim the courts have no right to
review these rules. But under our Constitution, it is Congress's job to make the laws, and the
court's job to judge whether they are constitutional.
This administration wants all the power: legislator, executive, and judge. Our founding
father were warned us about the dangers of the Executive Branch violating the separation of
powers during wartime. James Madison wrote: “The accumulation of all powers, legislative,
executive, and judiciary, in the same hands may justly be pronounced the very definition of
tyranny.”
Other Presidents have overreached during times of war, claiming legislative powers, but
the courts have reined them back in. During the Korean war, President Truman, faced with a steel
strike, issued an Executive order to seize and operate the Nation's steel mills. The Supreme Court
found that the seizure was an unconstitutional infringement on the Congress’s lawmaking power.
Justice Hugo Black, writing for the majority, said: “The Constitution is neither silent nor
equivocal about who shall make the laws which the President is to execute ... The Founders of this
Nation entrusted the lawmaking power to the Congress alone in both good times and bad.”
To win the war on terrorism, we must remain true to the principles upon which our
country was founded. This Administration’s detention and interrogation policies are placing our
troops at risk and making it harder to combat terrorism.
Former Congressman Pete Peterson of Florida, a man I call a good friend and a man I
served with in the House of Representatives, is a unique individual. He is one of the most
cheerful people you would ever want to meet. You would never know, when you meet him, he
was an Air Force pilot taken prisoner of war in Vietnam and spent 6 1/2 years in a Vietnamese
prison. Here is what he said about this issue in a letter that he sent to me. Pete Peterson wrote:
From my 6 1/2 years of captivity in Vietnam, I know what life in a foreign prison is like.
To a large degree, I credit the Geneva Conventions for my survival....This is one reason
the United States has led the world in upholding treaties governing the status and care of
enemy prisoners: because these standards also protect us....We need absolute clarity that
America will continue to set the gold standard in the treatment of prisoners in wartime.
Abusive detention and interrogation policies make it much more difficult to win the
support of people around the world, particularly those in the Muslim world. The war on terrorism
is not a popularity contest, but anti-American sentiment breeds sympathy for anti-American
terrorist organizations and makes it far easier for them to recruit young terrorists.
Polls show that Muslims have positive attitudes toward the American people and our
values. However, overall, favorable ratings toward the United States and its Government are very
low. This is driven largely by the negative attitudes toward the policies of this administration.
Muslims respect our values, but we must convince them that our actions reflect these
values. That’s why the 9/11 Commission recommended: “We should offer an example of moral
leadership in the world, committed to treat people humanely, abide by the rule of law, and be
generous and caring to our neighbors.”
What should we do? Imagine if the President had followed Colin Powell's advice and
respected our treaty obligations. How would things have been different?
We still would have the ability to hold detainees and to interrogate them aggressively.
Members of al-Qaida would not be prisoners of war. We would be able to do everything we need
to do to keep our country safe. The difference is, we would not have damaged our reputation in
the international community in the process.
When you read some of the graphic descriptions of what has occurred here -- I almost
hesitate to put them in the record, and yet they have to be added to this debate. Let me read to you
what one FBI agent saw. And I quote from his report:
On a couple of occasions, I entered interview rooms to find a detainee chained hand and
foot in a fetal position to the floor, with no chair, food or water. Most times they urinated
or defecated on themselves, and had been left there for 18-24 hours or more. On one
occasion, the air conditioning had been turned down so far and the temperature was so
cold in the room, that the barefooted detainee was shaking with cold....On another
occasion, the [air conditioner] had been turned off, making the temperature in the
unventilated room well over 100 degrees. The detainee was almost unconscious on the
floor, with a pile of hair next to him. He had apparently been literally pulling his hair out
throughout the night. On another occasion, not only was the temperature unbearably hot,
but extremely loud rap music was being played in the room, and had been since the day
before, with the detainee chained hand and foot in the fetal position on the tile floor.
If I read this to you and did not tell you that it was an FBI agent describing what
Americans had done to prisoners in their control, you would most certainly believe this must have
been done by Nazis, Soviets in their gulags, or some mad regime -- Pol Pot or others -- that had no
concern for human beings. Sadly, that is not the case. This was the action of Americans in the
treatment of their prisoners.
It is not too late. I hope we will learn from history. I hope we will change course.
The President could declare the United States will apply the Geneva Conventions to the
war on terrorism. He could declare, as he should, that the United States will not, under any
circumstances, subject any detainee to torture, or cruel, inhuman, or degrading treatment. The
administration could give all detainees a meaningful opportunity to challenge their detention
before a neutral decisionmaker.
Such a change of course would dramatically improve our image and it would make us
safer. I hope this administration will choose that course. If they do not, Congress must step in.
The issue debated in the press today misses the point. The issue is not about closing
Guantanamo Bay. It is not a question of the address of these prisoners. It is a question of how we
treat these prisoners. To close down Guantanamo and ship these prisoners off to undisclosed
locations in other countries, beyond the reach of publicity, beyond the reach of any surveillance, is
to give up on the most basic and fundamental commitment to justice and fairness, a commitment
we made when we signed the Geneva Convention and said the United States accepts it as the law
of the land, a commitment which we have made over and over again when it comes to the issue of
torture. To criticize the rest of the world for using torture and to turn a blind eye to what we are
doing in this war is wrong, and it is not American.
During the Civil War, President Lincoln, one of our greatest presidents, suspended habeas
corpus, which gives prisoners the right to challenge their detention. The Supreme Court stood up
to the President and said prisoners have the right to judicial review even during war.
Let me read what that Court said:
The Constitution of the United States is a law for rulers and people, equally in war and in
peace, and covers with the shield of its protection all classes of men, at all times, and
under all circumstances. No doctrine, involving more pernicious consequences, was ever
invented by the wit of man than that any of its provisions could be suspended during any
of the great exigencies of government. Such a doctrine leads directly to anarchy or
despotism.
Mr. President, those words still ring true today. The Constitution is a law for this
administration, equally in war and in peace. If the Constitution could withstand the Civil War,
when our nation was literally divided against itself, surely it will withstand the war on terrorism.
I yield the floor.
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