Liberated Text -> Congressional Record -> Nine Senators of Shame
The Presiding Officer: The Senator from Arizona.
McCain: Mr. President, I ask unanimous consent that the Senator from Illinois, Mr. Durbin, be added as a cosponsor.
The Presiding Officer: Without objection, it is so ordered.
McCain: Mr. President, first I thank my friend and colleague from South Carolina for his comments in support of this amendment. He does occupy a unique position in this body, having served 20 years--6\1/2\ years on active duty as an Air Force lawyer and member of the JAG Corps, and remains in the Reserves to this day. He obviously brings a perspective to this issue which is very important.
I think the Senator from South Carolina described the confusion that existed over a period of time about this whole issue of treatment of prisoners. There was a set of instructions issued which were in effect for a couple of months, which were strongly objected to by the uniformed legal corps in the Pentagon. Yet their concerns were overridden.
The Senator from South Carolina quoted one of them. Another one was by RADM Michael Lohr, the Navy's Judge Advocate General. He said the situation at the American prison in Guantanamo, Cuba, might be so legalistically unique that the Geneva Conventions and even the Constitution did not necessarily apply. But, he asked,
Will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values?
General Rives said if the White House permitted abusive interrogations at Guantanamo Bay, it would not be able to restrict them to that single prison. He argued that soldiers elsewhere would conclude that their commanders were condoning illegal behavior. And that is precisely what happened at Abu Ghraib after the general who organized the abuse of prisoners at Guantanamo went to Iraq to toughen up the interrogation of prisoners there.
I think it is clear that the White House ignored those military lawyers' advice a couple of years ago. We now have, thanks to the yearlong effort of the Senator from South Carolina, those communications of deep concern to every uniformed JAG in the Department of Defense, about the issuance of instructions which basically violated our commitment to the Geneva Conventions.
In order to have the record complete, a couple of months later those were rescinded and different orders were issued at that time. But what if you are at the end of the chain and you get these kinds of mixed messages?
So I thank the Senator from South Carolina for pointing out from his unique perspective how important this is, since it is the men and women who are in the JAG Corps who are responsible for prosecuting those who violate Geneva Conventions, and they need clear guidance; or defending someone who is accused of violating them, as our men and women of the military are entitled to defense just as they are subject to prosecution.
Again, I thank the Senator from South Carolina. I appreciate the defense of the Senator from Alaska of the administration's position on this issue. I do not think he has been well informed by the administration, particularly concerning the Army Field Manual.
The Army Field Manual has a classified section which would not be available to anyone except for those who have a need to know. The Army Field Manual has been used for decades. The Army Field Manual is being revised as we speak to try to meet the new challenges we face. But the Army Field Manual, I am confident, will be in keeping with the fundamental commitments we have made.
All my career I have supported the rights and prerogatives of the Commander in Chief. We need a strong President, and in wartime this is more important than ever. I understand the administration would want to preserve the President's flexibility and wartime powers, and I do not believe that we can afford to have 535 Secretaries of State, Secretaries of Defense, or even Presidents of the United States.
I would like to point out the Congress not only has the right but the obligation to act. Article I, section 8 of the Constitution of the United States, clause 11:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water[.]
I repeat:
. . . make Rules concerning Captures on Land and Water[.]
Someone is going to come down to the floor and say that applied back in the time of the Framers of the Constitution; it didn't apply to today. At least from my point of view, unless there is an overriding need to change the Constitution of the United States--if that clause of the Constitution no longer applies, then lets amend the Constitution and remove it; otherwise, lets live by it.
The Congress has the responsibility:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water[.]
I do not see how anyone could view this as an unwarranted intervention in an issue such as this. The courts, as the Senator from South Carolina pointed out so well, are asking us--that well-known liberal judge, Justice Scalia, has said we need the Congress of the United States involved in this issue. We, the courts, cannot do it ourselves.
As the Senator from South Carolina pointed out, if we do not fulfill our constitutional role, we are negligent. We owe it to our troops and our country to speak on this issue.
I very much respect my friend, the Vice President of the United States, Vice President Cheney. He and I have been friends for many years. I respect the way that he carefully guards the prerogatives of the President. But on this issue, I hope he and others would understand that we are dutybound to take action.
I would like, again, to refer back to Captain Fishback. He is what I view as the tip of the iceberg that exists in the military today. They know how important this war on terror is. They are the ones who are fighting it. Captain Fishback served in Afghanistan and in Iraq, and the ones I hear from are men and women in the military who have a very strong commitment to winning the war on terror. They have laid their lives on the line to win it. But they want clear, unequivocal guidelines as to how to treat prisoners of war.
I would like to believe that this is the last war in which the United States will ever be involved. I would like to believe that from now on, after we win this war on terror, we will have peace and the United States will never send its men and women in harm's way again.
History shows me otherwise. What happens in the next conflict when American military personnel are held captive by the enemy and they make the argument, with some validity, that we have violated the rules of war? What happens to our men and women in the military then?
There are some who will say they wouldn't respect the rules of war, anyway. If they are not sure they are going to win, as the Germans weren't in World War II, they might treat our prisoners according to certain standards if we insist upon those standards.
I think there is a lot at stake. I respect the position of the administration, that these should be under the authority and responsibility and would erode the flexibility of the President of the United States. I don't believe so.
This amendment basically restates what we have been practicing for certainly all of the 21st and the 20th centuries.
I think we owe it to the people, these brave young Americans such as Captain Fishback, who want and deserve a clarification in the way they can carry out their responsibilities and duties as they travel into harm's way.
I thank the Senator from New Hampshire, the Senator from Tennessee, the Senator from Illinois, and my friend from South Carolina for their eloquent statements on this issue.
I ask for the yeas and nays on this amendment.
The Presiding Officer: Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
McCain: Mr. President, I yield the floor.