Liberated Text -> Congressional Record -> Nine Senators of Shame

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The Presiding Officer: The Senator from Illinois.

Mr. Durbin: Mr. President, I rise today in support of amendment No. 1977, which has been offered by Senator McCain, the Presiding Officer, Senator Graham, Senator Hagel, Senator Smith, and Senator Collins. First, let me commend Senator McCain for the courage that he has shown, again, in offering this amendment. There is not a single person in Congress who can speak with more authority than Senator John McCain on the treatment of prisoners of war. I have come to this floor many times to address this issue, but my voice is weak compared to his. He has lived this experience in a way that none of us ever have or ever will. I believe his voice should be listened to more than some because he has given so many years of his life to this country and suffered as a prisoner of war personally.

This should be a noncontroversial amendment. It really requires two very simple and straightforward things: First, that the treatment of detainees comply with the Army's Field Manual on Interrogation; and, second, that the United States may not subject anyone in our custody to torture or cruel, inhumane, or degrading treatment. It is that straightforward.

This amendment would affirm our Nation's very important, longstanding obligation not to engage in torture or other cruel treatment. This standard is enshrined in our U.S. Constitution and in several treaties which our Nation has adopted as the law of the land.

Just as important, this amendment would make the rules clear for our soldiers so they know what the standards are that they should follow in the treatment of detainees. We owe this to our troops. If they are going to risk their lives every day in defense of our country, we should give them standards of conduct that are clear and unequivocal.

The prohibition on torture and other cruel treatment is deeply rooted in the history of America. Our Founding Fathers made it clear in the Bill of Rights that torture and other forms of cruel treatment are prohibited.

These principles have even guided us during the times of great national testing. During the Civil War, President Abraham Lincoln asked Francis Lieber, a military law expert, to create a set of rules to govern the conduct of U.S. soldiers in the Civil War. The result was the Lieber Code. It prohibited torture and other cruel treatment of captured enemy forces. It really was the foundation for the Geneva Conventions.

After World War II, the United States took the lead in establishing a number of treaties that banned the use of torture and other cruel treatment against all persons at all times. There are no exceptions to this prohibition.

The United States has ratified these treaties, including the Geneva Conventions and the torture convention. They are the law of the land.

Twice in the last year and a half, I have authored amendments to affirm our Nation's longstanding position that torture and other cruel treatment are illegal. Twice the Senate unanimously approved my amendments. Both times the amendments were killed behind closed doors of conference committees. Both times these amendments, which I offered and which were accepted by the Senate, were stricken from the bill at the insistence of the administration.

As I understand it, the administration does not support Senator McCain's amendment. I sincerely hope that after this debate, they will.

Why would the administration oppose an amendment that affirms our longstanding obligation not to engage in torture or cruel, inhumane, and degrading treatment? Sadly, it is because the actions that they have taken on this critical question have been unclear and inconsistent.

In early 2002, Alberto Gonzales, who was then-White House Counsel, recommended to President Bush that the Geneva Conventions should not apply to the war on terrorism. Colin Powell, former Chairman of the Joint Chiefs of Staff, who was then-Secretary of State, objected strenuously to Attorney General Gonzales' conclusion. He argued that we could effectively fight the war on terrorism and we could live by the Geneva Conventions, which have been the law of the land in America for over half a century.

Unfortunately, the President rejected Secretary Powell's wise counsel and instead accepted Attorney General Gonzales' recommendations. In February of 2002, he issued a memo determining that the Geneva Conventions would not apply to the war on terrorism.

Then the administration unilaterally created new policies on the use of torture. I am referring to, among other things, the well-known Bybee memo of August 1, 2002, which has been publicly disclosed. They have claimed that the President has the right to set aside the law that makes torture a crime. They have narrowly defined torture as limited only to abuse that causes pain equivalent to organ failure or death.

They claim that it is legal to subject detainees to cruel, inhuman, and degrading treatment even though Congress has ratified the torture convention, which explicitly prohibits cruel, inhuman, and degrading treatment. This fact was verified by Attorney General nominee Gonzales during confirmation hearings before the Senate Judiciary Committee, in response to a question which I asked him directly.

Despite all of this, the administration continues to insist that their policy is not to treat detainees inhumanely.

What does this mean? Recently, I asked Timothy Flanigan this question. He was the Deputy to White House Counsel Alberto Gonzales. Mr. Flanigan has been nominated to be the Deputy Attorney General, the second highest law enforcement official in the Nation. Mr. Flanigan said inhumane treatment is "not susceptible to a succinct definition."

I asked him whether the White House had provided any guidance to our troops on the meaning of inhumane treatment. He acknowledged that they had not.

I asked Mr. Flanigan about specific abuses. I asked him: would it be inhumane to beat prisoners or subject them to mock executions? He said,

"It depends on the facts and circumstances."

I cannot imagine facts and circumstances in which it would be humane to subject a detainee to a mock execution. Last week an editorial in the Washington Post called Mr. Flanigan's answers to my questions, "evasive legalisms in response to simple questions about uncivilized conduct."

How are our service men and women supposed to know how to treat detainees when high-ranking administration officials do not seem to know or refuse to respond to these direct questions?

The administration acknowledges that some people held by our Government have been mistreated. Some have been tortured. They say these abuses were committed by a few bad apples, rogue soldiers on a night shift.

But is it any wonder that people have been abused when the administration and Congress do not make it clear that American policy prohibits subjecting detainees to cruel and degrading treatment? Is it any wonder that people have been abused when we refuse to repudiate un- American practices such as beating detainees? The administration should not point the finger of blame at our troops for the logical consequences of muddled and often contradictory policies.

I have been to Iraq. I have spent time with our troops. I have been humbled by their courage and sacrifice. I have visited Walter Reed Hospital many times. I have spoken with young soldiers who have suffered horrible injuries in the war, and I have attended funerals for soldiers who lost their lives in this war, many from my own home State.

Our troops around the world and their families at home deserve our respect, admiration, and support.

Just a few weeks ago, a brave U.S. serviceman stepped forward to say that he and other American soldiers need clear rules and guidance on how to deal with detainees. CPT Ian Fishback is a graduate of West Point. He served in combat both in Afghanistan and Iraq. He was so disturbed by what he had experienced that he wrote to our colleague, Senator McCain. The letter is now public. It was published in the Washington Post last week.

Senator McCain entered part of the letter into the record earlier today. Let me read a little more of the letter, which speaks so powerfully and eloquently to our soldiers' need for guidance and leadership. Listen to what Captain Fishback wrote:

For 17 months I tried to determine what specific standards governed the treatment of detainees. . . . Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq.

This administration should stand by the time-honored Geneva Conventions and the torture convention, rules that have served us well in the past, rules that our soldiers are trained in and understand. To replace them with vague directives to reat detainees humanely fails to provide basic guidance that our troops desperately need.

Listen to what Captain Fishback also wrote:

I can remember as a cadet at West Point, resolving to ensure that my men would never commit a dishonorable act, that I would protect them from that type of burden. It absolutely breaks my heart that I failed some of them in this regard.

It breaks my heart to think that this soldier, risking his life for America in Afghanistan and Iraq, is now reaching out to us because we have failed to provide him with guidance. I am thankful that Senator McCain has stepped forward, along with you, Mr. President, and many others in this Chamber, to give him that guidance.

Captain Fishback is an honorable man. Like the overwhelming majority of the fine men and women who serve our country, he has not failed. We have failed--to give him clear direction in his conduct as a soldier.

The administration has failed to set clear rules for the treatment of detainees. We need to step in and clarify these with the amendment offered by Senator McCain. Cruel, inhuman, and degrading treatment are prohibited. The Army Field Manual governs the treatment of detainees. Senator McCain's amendment will make that clear.

In the past, the administration has opposed amendments that affirm that cruel, inhuman, or degrading treatment is illegal because they "would have provided legal protections to foreign prisoners to which they are not now entitled."

But the administration is not correct in this assertion. Cruel, inhuman, or degrading treatment is already prohibited by the torture convention.

Their reasoning is revealing, however. They do not seem to understand the real issue at stake in this debate. This is not about legal protections for foreign prisoners. It is about who we are as a people. Torture is not American; abusing detainees is not the American way. Our brave men and women in uniform understand this, and the plaintive plea of Captain Fishback makes that clear.

I correspond with another soldier who served in Iraq and started sending me e-mails late at night about what was really happening on the ground. He keeps in touch with me now from time to time. He recently wrote to me and said:

We need to go back toward a strict application of the Geneva conventions. That is where our honor lies and that is what I was taught since the day I joined the service.

Retired RADM John Hutson served our country for 28 years, and for the last 3 years of his career he was the Judge Advocate General, the top lawyer of the Navy. He worked with me on the amendments I authored. He supports Senator McCain's amendment. In a letter to me he wrote:

Clarion opposition to torture and other abuse by the U.S. will help protect U.S. troops who are in harm's way.

Former Congressman Pete Peterson, a good friend of mine and many in this body, was also a prisoner of war in Vietnam, like Senator McCain. He was in prison for 6.5 years.

In a letter to me in support of our efforts he wrote:

Congress must affirm that America stands by its moral and legal obligation to treat all prisoners, regardless of status, as we would want the enemy to treat our own. Our courageous men and women deserve nothing less.

Let me close finally by a quote from Captain Fishback's letter.

Some argue that since our actions are not as horrifying as Al-Qaeda's, we should not be concerned. When did Al Qaeda become any type of standard by which we measure the morality of the United States? We are America, and our actions should be held to a higher standard, the ideals expressed in documents such as the Declaration of Independence and the Constitution. . . .If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession. I would rather die fighting than give up even the smallest part of the idea that is "America."

We are so fortunate to have men of his dedication and character serving our country in uniform. We owe it to him, we owe it to the hundreds of thousands of men and women who serve us every single day and risk their lives, to set clear rules so they know how to treat detainees in custody.

I urge my colleagues to support the amendment of Senator McCain. I yield the floor.