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The ACTING PRESIDENT pro tempore: Under the previous order, the Senate will resume consideration of H.R. 2863, which the clerk will report.

The assistant legislative clerk read as follows:

A bill (H.R. 2863) making appropriations for the Department of Defense for the fiscal year ending September 30, 2006, and for other purposes.

Pending:

Bayh amendment No. 1933, to increase by $360,800,000 amounts appropriated by title IX for Other Procurement, Army, for the procurement of armored Tactical Wheeled Vehicles for units deployed in Iraq and Afghanistan, and to increase by $5,000,000 amounts appropriated by title IX for Research, Development, Test and Evaluation, Defense-Wide, for industrial preparedness for the implementation of a ballistics engineering research center.

McCain amendment No. 1978, to prohibit the use of funds to pay salaries and expenses and other costs associated with reimbursing the Government of Uzbekistan for services rendered to the United States at Karshi-Khanabad airbase in Uzbekistan.

Reed/Hagel amendment No. 1943, to transfer certain amounts from the supplemental authorizations of appropriations for Iraq, Afghanistan, and the Global War on Terrorism to amounts for Operation and Maintenance, Army, Operation and Maintenance, Marine Corps, Operation and Maintenance, Defense-wide activities, and Military Personnel in order to provide for increased personnel strengths for the Army and the Marine Corps for fiscal year 2006.

Warner/Levin modified amendment No. 1955, to authorize appropriations for fiscal year 2006 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe personnel strengths for such fiscal year for the Armed Forces.

The Acting President pro tempore: The Senator from Arizona is recognized.

Amendment No. 1977

Mr. McCAIN: Mr. President, from my conversations with the Senator from Alaska, the chairman, I believe he agrees we will move forward; therefore, I call up amendment No. 1977, which is filed at the desk.

The Acting President pro tempore: Without objection, the pending amendments are set aside for the consideration of this amendment, which the clerk will now report.

The assistant legislative clerk read as follows:

The Senator from Arizona [Mr. McCain], for himself, Mr. Graham, Mr. Hagel, Mr. Smith, and Ms. Collins, proposes an amendment numbered 1977.

Mr. McCAIN: Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

The ACTING PRESIDENT pro tempore: Without objection, it is so ordered.

The amendment is as follows:

McCain: Mr. President, this amendment would do two things: one, establish the Army Field Manual as the uniform standard for the interrogation of Department of Defense detainees; and, two, prohibit cruel, inhumane, and degrading treatment of prisoners in the detention of the Government. It is pretty simple and straightforward.

Mr. President, I regret, of course, as all my colleagues do, that this amendment has to be brought up on an appropriations bill. We are only doing so because so far we have been unable to get sufficient agreement to bring up the Defense authorization bill. I have made it very clear, over a long period of time, my feeling about how important it is to take up and complete the authorization bill, but that is a subject for another day. I know good-faith efforts are being made on both sides to try to get the authorization bill up. But that has not happened so, therefore, we are addressing this issue.

By the way, I have had a preliminary ruling that this amendment is germane because there is reference made to it in the House version of the appropriations bill. The Senate has an obligation to address the authorizing legislation, as it has an obligation to deal with the issue that apparently led to the bill being pulled from the floor, which is America's treatment of its detainees.

Several weeks ago, I received a letter from CPT Ian Fishback, a member of the 82nd Airborne Division at Fort Bragg, and a veteran of combat in Afghanistan and Iraq, and a West Point graduate. Over 17 months, he struggled to get answers from his chain of command to a basic question: What standards apply to the treatment of enemy detainees? But he found no answers.

In his remarkable letter, he pleads with Congress, asking us to take action to establish standards to clear up the confusion, not for the good of the terrorists but for the good of our soldiers and our country. Captain Fishback closes his letter by saying:

I strongly urge you to do justice to your men and women in uniform. Give them clear standards of conduct that reflect the ideals they risk their lives for.

This comes from a young captain in the U.S. Army who has served his country both in Iraq and Afghanistan and who says it in a far more eloquent fashion than I have ever been able to. By the way, I thank God every day that we have men and women the caliber of Captain Fishback serving in our military. I believe the Congress has a responsibility to answer this call, a call that has come not just from this one brave soldier but from so many of our men and women in uniform. We owe it to them. We sent them to fight for us in Afghanistan and Iraq. We placed extraordinary pressure on them to extract intelligence from detainees, but then we threw out the rules that our soldiers had trained on and replaced them with a confusing and constantly changing array of standards. We demanded intelligence without ever clearly telling our troops what was permitted and what was forbidden. And when things went wrong, we blamed them, and we punished them. I believe we have to do better than that.

I can understand why some administration lawyers might have wanted ambiguity so that every hypothetical option is theoretically open, even those the President has said he does not want to exercise. But war doesn't occur in theory, and our troops are not served by ambiguity. They are crying out for clarity. The Congress cannot shrink from this duty. We cannot hide our heads, pulling bills from the floor and avoiding votes. We owe to it our soldiers during this time of war to take a stand. So while I would prefer to offer this amendment to the DOD authorization bill, I am left with no choice but to offer it to this appropriations measure. I would note that I am offering this amendment in accordance with the options afforded under rule XVI of the Standing Rules of the Senate.

The amendment I am offering combines the two amendments I previously filed to the authorizing measure. To fight terrorism, we need intelligence. That much is obvious. What should also be obvious is that the intelligence we collect must be reliable and acquired humanely, under clear standards understood by all our fighting men and women. To do differently would not only offend our values as Americans but undermine our war effort, because abuse of prisoners harms, not helps, in the war on terror.

First, subjecting prisoners to abuse leads to bad intelligence, because under torture, a detainee will tell his interrogator anything to make the pain stop. Second, mistreatment of our prisoners endangers U.S. troops who might be captured by the enemy--if not in this war, then in the next. And third, prisoner abuses exact on us a terrible toll in the war of ideas, because inevitably these abuses become public. When they do, the cruel actions of a few darken the reputation of our country in the eyes of millions. American values should win against all others in any war of ideas, and we can't let prisoner abuse tarnish our image. Yet reports of detainee abuse continue to emerge, in large part, I believe, because of confusion in the field as to what is permitted and what is not. This amendment will go a long way toward clearing up this confusion.

The first part of the amendment would establish the Army Field Manual as the uniform standard for the interrogation of Department of Defense detainees. The Army Field Manual and its various editions have served America well through wars against both regular and irregular foes. It embodies the values Americans have embraced for generations, while preserving the ability of our interrogators to extract critical intelligence from ruthless foes. Never has this been more important than today in the midst of the war on terror. The Army Field Manual authorizes interrogation techniques that have proven effective in extracting lifesaving information from the most hardened enemy prisoners. It is consistent with our laws and, most importantly, our values. Let's not forget that al-Qaida sought not only to destroy American lives on September 11, but American values, our way of life, and all we cherish.

We fight not just to preserve our lives and liberties, but also American values. We will never allow the terrorists to take those away. In this war--that we must win, that we will win--we must never simply fight evil with evil.

This amendment would establish the Army Field Manual as the standard for interrogation of all detainees held in DOD custody. The manual has been developed by the executive branch for its own uses, and a new edition, written to take into account the needs of the war on terror and with a new classified annex, is due to be issued soon. This amendment would not set the field manual in stone. It could be changed at any time.

The advantage of setting a standard for interrogation based on the field manual is to cut down on the significant level of confusion that still exists with respect to which interrogation techniques are allowed. The Armed Services Committee has held hearings with a slew of high-level Defense Department officials, from regional commanders to judge advocate generals to the Department's deputy general counsel. A chief topic of discussion in these hearings was what specific interrogation techniques are permitted, in what environments, with which DOD detainees, by whom and when. The answers have included a whole lot of confusion. If the Pentagon's top minds can't sort these matters out, after exhaustive debate and preparation, how in the world do we expect our enlisted men and women to do so?

Confusion about the rules results in abuses in the field. We need a clear, simple, and consistent standard, and we have it in the Army Field Manual on interrogation. That is not just my opinion but that of many more distinguished military minds than mine. I refer to a letter expressing strong support for this amendment signed by 28 former high- ranking military officers, including GEN Joseph Hoar, who commanded CENTCOM; GEN John Shalikashvili, former Chairman of the Joint Chiefs of Staff; RADM John Hutson and RADM Don Guter, who each served as the Navy's top JAG; and LTG Claudia Kennedy, who served as Deputy Chief of Staff for Army Intelligence. These and other distinguished officers believe the abuses at Abu Ghraib, Guantanamo, and elsewhere took place in part because our soldiers received ambiguous instructions which in some cases authorized treatment that went beyond what the field manual allows, and that had the manual been followed across the board, we could have avoided the prisoner abuse scandal.

Why wouldn't any of us do whatever we could to have prevented that?

By passing this amendment, our servicemembers can follow the manual consistently from now on. Our troops deserve no less.

I ask unanimous consent that the letter from 29 retired military officers be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:

September, 2005.

Dear Senator McCain:

We strongly support your proposed amendments to the Defense Department Authorization bill concerning detainee policy, including requiring all interrogations of detainees in DOD custody to conform to the U.S. Army's Field Manual on Intelligence Interrogation (FM 34-52), and prohibiting the use of torture and cruel, inhuman and degrading treatment by any U.S. government agency.

The abuse of prisoners hurts America's cause in the war on terror, endangers U.S. service members who might be captured by the enemy, and is anathema to the values Americans have held dear for generations. For many years, those values have been embodied in the Army Field Manual. The Manual applies the wisdom and experience gained by military interrogators in conflicts against both regular and irregular foes. It authorizes techniques that have proven effective in extracting life-saving information from the most hardened enemy prisoners. It also recognizes that torture and cruel treatment are ineffective methods, because they induce prisoners to say what their interrogators want to hear, even if it is not true, while bringing discredit upon the United States.

It is now apparent that the abuse of prisoners in Abu Ghraib, Guantanamo and elsewhere took place in part because our men and women in uniform were given ambiguous instructions, which in some cases authorized treatment that went beyond what was allowed by the Army Field Manual. Administration officials confused matters further by declaring that U.S. personnel are not bound by longstanding prohibitions of cruel treatment when interrogating non-U.S. citizens on foreign soil. As a result, we suddenly had one set of rules for interrogating prisoners of war, and another for "enemy combatants;" one set for Guantanamo, and another for Iraq; one set for our military, and another for the CIA. Our service members were denied clear guidance, and left to take the blame when things went wrong. They deserve better than that.

The United States should have one standard for interrogating enemy prisoners that is effective, lawful, and humane. Fortunately, America already has the gold standard in the Army Field Manual. Had the Manual been followed across the board, we would have been spared the pain of the prisoner abuse scandal. It should be followed consistently from now on. And when agencies other than DOD detain and interrogate prisoners, there should be no legal loopholes permitting cruel or degrading treatment.

The amendments proposed by Senator McCain would achieve these goals while preserving our nation's ability to fight the war on terror. They reflect the experience and highest traditions of the United States military. We urge the Congress to support this effort.

Sincerely,

• Joseph Hoar, USMC (Ret.),
• General John Shalikashvili, USA (Ret.),
• General Donn A. Starry, USA (Ret.),
• Lieutenant General Ron Adams, USA (Ret.),
• Lieutenant General Robert G. Gard, Jr., USA (Ret.),
• Lieutenant General Jay M. Garner, USA (Ret.),
• Vice Admiral Lee F. Gunn, USN (Ret.),
• Lieutenant General Claudia J. Kennedy, USA (Ret.),
• Lieutenant General Charles Otstott, USA (Ret.),
• Vice Admiral Jack Shanahan, USN (Ret.),
• Major General Eugene Fox, USA (Ret.),
• Major General John L. Fugh, USA (Ret.),
• Rear Admiral Donald J. Guter, USN (Ret.),
• Major General Fred E. Haynes, USMC (Ret.).
• Rear Admiral John D. Hutson, USN (Ret.),
• Major General Melvyn Montano, ANG (Ret.),
• Major General Robert H. Scales, USA (Ret.),
• Major General Michael J. Scotti, USA (Ret.),
• Brigadier General David M. Brahms, USMC (Ret.),
• Brigadier General James Cullen, USA (Ret.),
• Brigadier General Evelyn P. Foote, USA (Ret.),
• Brigadier General David R. Irvine, USA (Ret.),
• Brigadier General Richard O'Meara, USA (Ret.),
• Brigadier General John K. Schmitt, USA (Ret.),
• Brigadier General Stephen N. Xenakis, USA (Ret.),
• Ambassador/Former Vietnam POW Douglas "Pete" Peterson, USAF (Ret.),
• Former Vietnam POW Commander Frederick C. Baldock, USN (Ret.),
• Former Vietnam POW Commander Phillip N. Butler, USN (Ret.).

McCain: The second part of this amendment should not be objectionable to anyone since I am actually not proposing anything new. The prohibition against cruel, inhumane, and degrading treatment has been a long-standing principle in both law and policy in the United States. Before I get into why the amendment is necessary, let me first review the history.

The Universal Declaration of Human Rights, adopted in 1948, states simply:

No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.

The International Covenant on Civil and Political Rights, to which the United States is a signatory, states the same. The binding Convention Against Torture, negotiated by the Reagan administration and ratified by this body, prohibits cruel, inhuman, and degrading treatment. On last year's DOD authorization bill, the Senate passed a bipartisan amendment reaffirming that no detainee in U.S. custody can be subject to torture or cruel treatment, as the U.S. has long defined those terms. All of this seems to be common sense, in accordance with longstanding American values. But since last year's DOD bill, a strange legal determination was made that the prohibition in the Convention Against Torture against cruel, inhuman, or degrading treatment does not legally apply to foreigners held outside the United States. They can apparently be treated inhumanely. This is the administration's position, even though Judge Abe Soafer, who negotiated the Convention Against Torture for President Reagan, said in a recent letter that the Reagan administration never intended the prohibition against cruel, inhuman, or degrading treatment to apply only on U.S. soil.

What all this means is that America is the only country in the world that asserts a legal right to engage in cruel and inhuman treatment. But the crazy thing is, it is not even necessary because the administration has said it will not engage in cruel, inhuman, or degrading treatment as a matter of policy. What this also means is that confusion about the rules becomes rampant again. We have so many differing legal standards and loopholes that our lawyers and generals are confused. Just imagine our troops serving in prison in the field.

The amendment I am offering simply codifies what is current policy and reaffirms what was assumed to be existing law for years. In light of the administration's stated commitment, it should require no change in our current interrogation and detention practices. What it would do is restore clarity on a simple and fundamental question: Does America treat people inhumanely? My answer is no. And from all I have seen, America's answer has always been no.

I travel a lot around the world, usually at taxpayers' expense. Everywhere I go, I encounter this issue of the treatment of prisoners and the photos of Abu Ghraib and what is perceived in the world to be continued mistreatment of prisoners. It is harming our image in the world terribly. We have to clarify that that is not what the United States is all about. That is what makes us different. That is what makes us different from the enemy we are fighting. The most important thing about it is not our image abroad but our respect for ourselves at home.

Let me close by noting that I hold no brief for the prisoners. I do hold a brief for the reputation of the United States of America. We are Americans. We hold ourselves to humane standards of treatment of people, no matter how evil or terrible they may be. To do otherwise undermines our security, but it also undermines our greatness as a nation. We are not simply any other country. We stand for something more in the world, a moral mission, one of freedom and democracy and human rights at home and abroad. We are better than these terrorists, and we will win. The enemy we fight has no respect for human life or human rights. They don't deserve our sympathy. But this isn't about who they are; this is about who we are. These are the values that distinguish us from our enemies.

I urge my colleagues to support the amendment.

I yield the floor.

The Acting president pro tempore: The Senator from Alaska is recognized.

Mr. Stevens: Mr. President, this is a difficult subject to discuss, and as the minority leader indicated, no one is more qualified to talk about this than the Senator from Arizona.

It is with some trepidation that I try to explain to him the position of the administration and with which I happen to agree. The problem is not the goal of the Senator from Arizona; the problem is the way it would be carried out under this amendment. This amendment would require that the field manual be changed. Currently the field manual has a general description of the techniques of interrogation, and it allows flexibility to determine what will be used in terms of interrogation techniques based upon the circumstances that exist. We know that terrorists train their people to deal with the techniques of our interrogation, so those techniques change under various circumstances.

One of the situations I would call to the attention of the Senator from Arizona is as we have visited with our people in the field, now we have a unique circumstance of having multinational and multiagency teams that are in the field. The question comes down to who has custody or effective control of a person. Particularly I remember one team we saw which had five different nationalities including the intelligence agencies and military agencies of those nations. If this becomes law, it is my opinion that those teams will be handled so that the United States does not have custody, does not have control, and the kind of treatment we seek will not be given to people who are made prisoners by multinational teams that are searching out terrorists throughout the world.

This is a different war now. I believe we are seeing the beginning of a crusade against freedom from the militant terrorist Islamic entities throughout the world. We see the suicide bombers. We see the people who are inflicting terrible damage from Indonesia, the Philippines, to all throughout the Central Command, and we have teams out trying to find these people.

Of course, one of their first jobs is to interrogate anyone they capture to try to see if we can find out where the rest of them are and how they are functioning. If this amendment passes, the United States will not have effective control of those people. It will be impossible to interrogate under the systems we have used in the past because we cannot list in a field manual all of the interrogation techniques that will be used. It takes thousands of pages anyway. But the techniques vary upon the circumstances and the physical location of the people involved.

I have some memory from World War II in China when I witnessed some of our people--I was just a pilot, but I was conveying some of these people from place to place who had been tortured, and I can tell you they were brutally treated by the Chinese when we were taking these people from place to place and they had prisoners. Some of them were not Chinese. They were prisoners obviously of Japan. We had freed some of them, and they were--I have memory that those who were freed were still the responsibility of the United States.

But as a practical matter, what do you do with regard to a law that says that all of the techniques must be listed in the field manual; regardless of nationality or physical location, if an individual is in the custody or physical control of the United States, they shall be subject to only the means of interrogation listed in the field manual.

I appreciate very much what the Senator is trying to do. I think most of us have gone down to Guantanamo to satisfy ourselves that what is happening down there is in accordance with our concepts. Those people are totally under the custody of the United States, and certainly from my point of view what we saw when we were down there, we were convinced they were receiving the kind of treatment and the interrogations were not such that they would be affected by this amendment.

It is the people in the field, not people really handling prisoner camps or handling interrogation of those persons who are seized by our forces and brought to a camp or brought to a place, a jail such as we all know has gone wrong in Iraq--but I am talking the people in the field now, multinational teams, and their job is to find out what these people who are captured know in order to prevent further acts of terrorism. It is a very touchy thing to deal with, I know, to really talk about it.

The administration has told us that they are complying with all the constitutional, statutory, treaty obligations that apply to U.S. interrogation practices. They are telling us that they know the Convention Against Torture requires the United States to ensure that torture is a crime whether committed anywhere by a U.S. national or to prevent any of the entities that are under the control of the United States from any acts of cruel, inhumane, or degrading treatment or punishment. We totally agree with the efforts of the Senator from Arizona in that regard, and the President has directed the Armed Forces to treat any detainee humanely and comply with the appropriate and consistent military procedures that are consistent with the Geneva Conventions.

That is a given. But this amendment goes further. This amendment will cover those entities with multiple nationalities, multiple agencies, and because of the circumstances our people in the past have taken control of these, and some of the activities of the other nationalities involved would not be consistent with this amendment. I say what will happen in the future is we will just not take control of them. This will be a deterrent to our people from taking the leadership, and as they do, they will do everything they can to comply with the Geneva Conventions. It is those circumstances, the new type of entities we use to combat terrorism that worries the administration. So I can say--and I know the Senator from Arizona understands--it is the position of the administration that this amendment goes too far.

We will not make a point of order. There is no point of order that I know will apply to it anyway. But I do believe it is a matter that ought to be approached with caution. What does a multinational team do if they pick up a prisoner who they believe can give them information as to the location of terrorists who have committed severe acts of terrorism? The decision will be made, I am sure, that we not take custody. The custody will go to other nationalities involved in the team. We will have no control. I believe the amendment of the Senator from Arizona is going to carry, but I believe we have to give serious consideration to the implications I have just mentioned, and I hope the Senate will keep that in mind.

I yield the floor.