Congressional Record: June 22, 2004 (Senate)
Page S7134-S7152


  I will take a moment of the Senate's time to express, quite frankly, 
my appreciation to the Senator from Nevada in offering the amendment 
that he had, which he did a few moments ago as a member of the 
Judiciary Committee. We know there are four committees which are in one 
way or another looking at the prisoner abuse scandal and tragedy. We 
have the Intelligence Committee that is looking at it. They are very 
much tied up with the 9/11 Commission that has made its report. We had 
the Foreign Relations Committee that had not had hearings on it. We 
have the Armed Services Committee under the leadership of Senator 
Warner, which has done a first rate job trying to work through this 
whole dilemma. He is recognized by the members of the committee, and by 
others, as someone who has worked toward trying to find the facts on 
this situation. And there is the Judiciary Committee. We have seen in 
the published reports a number of memoranda were developed by the 
Justice Department as to the responsibility that the Executive has 
under these circumstances of recommending, roughly, under his ability 
as Commander in Chief, that he may very well be immune from any kind of 
rules, regulations, or orders that he might support in terms of the 
treatment of prisoners.
  That concept runs counter to the view of 500 constitutional lawyers 
who issued a press release raising very serious constitutional issues 
and questions.
  What the Judiciary Committee has been attempting to do is to review 
the various recommendations that have been developed by the Justice 
Department and the other agencies. It has been an interagency effort. 
This is not just the Justice Department advising the President on a 
matter of an Executive order. As a matter of fact, it was very clear 
during the hearing of the Judiciary Committee that the Attorney General 
did not claim executive privilege. But there was the incident where the 
Attorney General said that even though he is not claiming executive 
privilege, and even though he is not quoting a statute that might make 
him exempt from making these documents available, he still was refusing 
to make them available.
  We had a brief discussion during the course of the committee hearing 
as to whether that was contempt of Congress. We are not trying to get 
into that whole situation. We are just trying to find out what these 
documents said in the interagency agreements that were being developed.
  Now we are told this afternoon that approximately 3 of the documents 
of the 23 that were actually requested are available to the committee. 
Two of those are already on the Internet.
  This is a matter of enormous importance and consequence. The American 
people see on television and hear on the radio and read in the 
newspapers about prison policy over there. We have recommendations made 
by the Justice Department, and there is a refusal to cooperate with the 
Congress. It is entirely appropriate that this institution have access 
to that material. That was the purpose of the amendment that was 
offered by the Senator from Nevada. It was entirely appropriate. I find 
it very necessary. There are many important matters in this Defense 
authorization bill. But it certainly seems this is a matter of very 
important consequence.
  I believe the amendment still has great importance and relevance. I 
think the Senate ought to know what the Senator from Nevada was 
involved in is not only an honorable position but also a necessary one. 
But as he pointed out, we are now trying to move the process forward in 
terms of the Defense authorization bill.
  I ask if I can have the full amount of time now to address the 
substance. Do I understand we have 15 minutes? Could I ask for 15 
minutes? I ask consent for that.
  The PRESIDING OFFICER. The Senator is entitled to 15 minutes.

                           Amendment No. 3377

  Mr. KENNEDY. I thank the Chair. Mr. President, at an appropriate time 
I will call up amendment No. 3377. I ask unanimous consent the Senator 
from West Virginia, Mr. Byrd, be added as a cosponsor to this 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Mr. President, on June 30, sovereignty in Iraq will be 
transferred to the interim government. For the sake of the Iraqi people 
and our nearly 140,000 troops in Iraq, we all hope that the interim 
government will succeed, that its appointment begins a new stage in 
Iraq in which the security situation will improve at long last for our 
troops, and that we will no longer see a continuation of the 
administration's flawed policy that has generated so much turmoil in 
the past year and so many casualties for our forces.
  Unfortunately, the violence continues. Twenty-two American soldiers 
have been killed in the 22 days since the announcement of the interim 
government. More than 450 American soldiers have been wounded in that 
  Even with the transfer of sovereignty and the recent United Nations 
resolution on the Iraqi transition, the key question is, when will the 
violence stop? When will the international community join us in 
securing and reconstructing Iraq? Or will the bulls-eye remain on the 
back of every member of our armed forces in Iraq?
  The amendment I am offering today with Senators Levin, Byrd, Leahy, 
Dayton, and Feingold seeks answers to these questions.
  Our amendment requires the President to tell the American people 
whether or when the administration's policy will bring more 
international troops, police, and resources to Iraq. That's what we owe 
to our forces. That's what we owe to their families. And that's what we 
owe to the American people.
  The amendment requires the President to submit a report to Congress 
on the administration's plan for the security and reconstruction of 
Iraq no later than 30 days after the date of enactment of the bill.
  The report must address whether and when the administration's 
strategy of working with the United Nations and other nations will 
bring more international troops, police, and resources to Iraq and 
provide relief to the men and women of our armed forces. It must assess 
the administration's strategy for strengthening the Iraqi police and 
military, its reconstruction efforts, and its progress toward 
democratic elections. And it must provide an estimate--an estimate--of 
the number of American troops we anticipate will be in Iraq at the end 
of next year.
  Two subsequent reports will provide updated assessments--one 6 months 
after the bill becomes law and the other just before the end of 2005.
  This week, President Bush will travel to Ireland for a summit between 
the United States and the member nations of the European Union. He will 
also attend a NATO summit in Istanbul. We all hope he will succeed in 
persuading the international community to join us in a more significant 
way in Iraq.

[[Page S7141]]

  Unfortunately, the likelihood of that happening--even with the 
transfer of sovereignty and a new UN resolution--is far from clear. At 
best, the administration now expects that our allies in Iraq will not 
withdraw any of their current troops from the coalition.
  On June 7, just a day before the UN approved the resolution 
supporting the interim government in Iraq National Security Advisor 
Rice said:

       I don't expect that there will be a large infusion of more 
     foreign forces. In fact, I think that what you will see, is 
     that some of the countries that have had particularly 
     difficult situations, some of our coalition partners, will 
     find this resolution makes them capable of staying the 

  On June 10, after the G-8 Summit, President Bush said that he didn't:

       . . . expect more troops from NATO to be offered up. That's 
     an unrealistic expectation. nobody is suggesting that.

  Those were his words.
  On June 13, Secretary of State Powell said the same thing:

       We're not expecting major additional contributions of 
     troops from our NATO allies beyond the 16 nations that are 
     already involved.

  The message from the administration is loud and clear: We'll stay the 
course, but we don't expect any more international troops. America will 
continue to be the only major military presence on the ground in Iraq.
  American soldiers have been bearing a grossly disproportionate share 
of the burden for far too long.

       No policy in Iraq can be considered effective if it fails 
     to bring in the international community in a way that reduces 
     the burden on our men and women in uniform, and takes the 
     American face off the military occupation in Iraq.

  As General Abizaid told the Armed Services Committee on May 19--there 
are not enough troops from other nations in Iraq. The ``effort needs to 
be not just American, but it needs to be international.''
  The administration had a brilliant plan to win the war, but it had no 
plan to win the peace. That failure has been putting a severe strain on 
our military and their loved ones left behind in America.
  Mr. President, 830 American soldiers have paid the ultimate price in 
  More than 5,130 soldiers have been sounded.
  America has nearly 90 percent of the troops on the ground, and more 
than 95 percent of the killed and wounded have been Americans.
  The war is now costing us $4.7 billion every month.
  In fact, the burden on U.S. troops has been increasing, since first 
Spain, then Honduras, Nicaragua, and El Salvador pulled their troops 
out of Iraq.
  More than a quarter of the current forces in Iraq are reservists, as 
are nearly half the current forces in Kuwait. Eighteen percent of our 
active duty Army is serving in Iraq, and 16 of our 33 combat brigades 
are serving there.
  The Army is now under a stop-loss order that prevents troops from 
leaving active duty while deployed to Iraq, and for another 90 days 
after returning to their home bases.
  The average tour of duty for a reservist recalled to active duty is 
now 320 days--ten months. According to the Department of Defense, the 
average tour of duty for a reservist during the first Gulf war was 156 
days. In the deployments in Bosnia, and Kosovo, it was 200 days.
  An Army brigade commander recently spoke about the exasperation of 
our soldiers: ``A soldier just said to me, `what happened to the 
volunteer force? This is a draft.' ''
  Others in the military leadership have spoken out on the strain on 
the military.
  On January 21, LTG James R. Helmly, head of the Army Reserves, 
discussed the effect on reservists. He said, ``the 205,000 soldier 
force must guard against a potential crisis in its ability to retain 
troops.'' He said that serious problems are being masked temporarily 
because reservists are barred from leaving the military.
  The same day, LTG John Riggs also spoke of the strain. He said, ``I 
have been in the Army 39 years, and I've never seen the Army as 
stretched in that 39 years as I have today.''
  On February 5, GEN Peter Schoomaker, the Army Chief of Staff said, 
``There is no question that the Army is stressed.''
  On June 2, GEN Franklin L. Hagenbeck, the Army's deputy chief of 
staff in charge of human resources and personnel, said that the Army is 
  These are the cold, hard facts. They cannot be glossed over. If we 
continue to go it alone, the mission is impossible. The need is urgent 
to bring in the international community in Iraq in a major way. It may 
well be that only a new President in the White House will be able to 
persuade other nations to trust us enough to participate in the 
difficult and dangerous mission.
  In fact, the need for international participation was abundantly 
clear before we went to war. As former Secretary of State James Baker 
wrote on August 25, 2002, ``The costs in all areas will be much 
greater, as will the political risks, both domestic and international, 
if we end up going it alone, or with only one or two other countries.''

       Last July, by the unanimous vote of 97-0, the Senate 
     approved an amendment urging the President to consider 
     requesting formally and expeditiously that NATO organize a 
     force for deployment in post-war Iraq similar to the NATO 
     forces in Afghanistan, Bosnia and Kosovo.
       We also asked the President to consider calling on the 
     United Nations to urge its member states to provide military 
     forces and civilian police to promote stability and security 
     in Iraq, and provide resources to help rebuild and administer 

  President Bush says that the administration is working with the 
international community. But what are the results? Are more nations 
sending troops, police, and resources? When will the American face be 
taken off the occupying force? When will Iraq be more secure? When will 
more American soldiers return home? How long, and how heavy will the 
burden be? Will the President obtain additional foreign commitments for 
troops and resources at the Summits with the European Union and NATO in 
the coming days or will he return empty-handed once again?
  The American people and our soldiers serving in Iraq deserve to know 
the results of the administration's efforts to work with the 
international community.
  All we are asking in this amendment is a progress report from the 
President on the administration's efforts to work with the 
international community. All we are asking is how many troops we expect 
to have in Iraq in coming months.
  Given the high stakes, the President should provide the information. 
Our troops deserve it, America deserves it, and the Iraqi people 
deserve it.
  I will mention past precedent for this proposal because we will hear 
from those opposed to it that we do not really have as much time as we 
should, 30 days after the bill is passed. We are going to be, 
hopefully, concluding this bill. It will take the better part of the 
month prior to the time we recess for the August break to be able to 
conclude, I expect, the conference. The President may sign that then.
  The PRESIDING OFFICER. The Senator has spoken for 15 minutes.
  Mr. KENNEDY. Can I get 5 more minutes?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. I understand the Senator from Vermont is eager to talk. 
I will conclude and come back to this, if I can have 4 more minutes to 
  I draw the attention of Members to the precedence in 1995; the 
Defense authorization bill required assessing the implication of the 
U.S. military readiness, the participation of ground forces in Bosnia. 
It had to include 11 estimates of the total number of forces required 
to carry out the operation, estimates of the duration of the operation, 
estimates of the cost, and how many Reserve units would be necessary 
for the operation. This was true in 1997; this was true in 1998; it was 
true in 1999. There are all kinds of precedents for this.
  We are entitled to this information. This amendment will make sure we 
will be able to receive it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I will say that I agree with the second-
degree amendment the Senator from Massachusetts has temporarily 
withdrawn. Obviously it will be reoffered. The reason I agree, Congress 
not only has done a very poor job of oversight; with some

[[Page S7142]]

exceptions, the administration has taken advantage of that and made it 
a practice to deny oversight cooperation to Congress.
  The stonewalling in the prison abuse scandal has been building to a 
crisis point. Today, finally, after huge pressure, the White House has 
released a small subset of the documents that offer glimpses into the 
genesis of this scandal. All should have been provided earlier to 
Congress. We know a lot has been held back, and remains hidden from 
public view.
  While this is a self-serving selection on the part of the 
administration, it is at least a beginning, a tiny beginning, a tiny 
baby step. But if we want the Judiciary Committee and the Senate to 
find the whole truth, we will need much more cooperation and extensive 
  The documents released today raise more questions than they answer. I 
will give some examples, speaking now of the documents released today.
  The White House released only 3 of the 23 documents that members of 
the Senate Judiciary Committee requested and tried to subpoena last 
week. In having released only 3 of the 23 we asked for, I point out 
that 2 of the 3 were already available on the Internet. Where are the 
other 20 documents we asked for? They have given us one that was not 
already on the Internet. Where are the other 20?
  The White House released a Presidential memorandum dated February 7, 
2002, directing that al-Qaida and Taliban detainees be treated 
humanely. Did the President sign any directive regarding the treatment 
or interrogation of detainees after February 7, 2002, more than 2 years 
ago? More specifically, did the President sign any directive after the 
United States invaded Iraq in March of 2003?
  The latest document released by the White House is dated April 16th, 
2003. Why is that, when many of the worst abuses that we know of 
occurred months later, in the fall of 2003. Why has the White House 
stopped with memoranda produced in April 2003?

  I live on the side of a mountain in Vermont. I know that water flows 
downhill, but so does Government policy. Somewhere in the upper reaches 
of this administration a process was set in motion that seeped forward 
until it produced a scandal.
  All of us want to put the scandal behind us, but to do that we have 
to know what happened. And we cannot get to the bottom of this until 
there is a clear picture of what happened at the top. We need to keep 
the pressure on until we get honesty and answers. So I will support 
Senator Kennedy's second-degree amendment when it is offered.
  Mr. KENNEDY. Mr. President, will the Senator yield?
  Mr. LEAHY. Yes.
  Mr. KENNEDY. Would the Senator agree with me it is time for the 
administration to level with the American people on this issue?
  Mr. LEAHY. Mr. President, I would agree with the Senator from 
Massachusetts, it is time to level with the American people. We tried 
to subpoena these records last week. We were rebuffed on a party-line 
vote, with many on the other side saying: But they are going to be 
forthcoming. We now get 3 out of 23 documents, 2 of which were already 
on the Internet.
  When are they going to be forthcoming? We want to understand what 
happened. As I said, if you are going to get to the bottom of what 
happened, you have to start at the top. President Bush has said he 
wants to get to the bottom of this. I agree with him, but I think we 
have to start at the top to find out what happened there. And simply 
prosecuting some corporals and sergeants and privates does not get to 
the bottom of what happened.
  Mr. KENNEDY. Finally, if the Senator will yield, I remember our 
ranking member being at that hearing. The Attorney General was asked 
whether he was asserting executive privilege, and he said no. Then it 
was pointed out by members that there are times when the Attorney 
General does not have to respond because it is spelled out in statute 
that he does not have to respond. But that was not the case. So it is a 
circumstance that the Attorney General of the United States felt he 
would not respond to these requests on the basis of his own actions.
  Would the Senator not agree with me that there is no one who is above 
the law in the system of jurisprudence in the United States of America? 
The continued unwillingness to provide these documents is certainly 
going to prolong the agony of the administration in terms of its 
willingness to cooperate with the committee. And would he not agree 
with me it is better to get that material here and get the instance 
behind us?
  I remember--if the Senator will permit me to continue--I had the good 
opportunity to meet the new President of Iraq. I asked him about the 
prison scandal. I asked: What can the United States do in order to deal 
with this issue? He said: It is very clear. You have to complete the 
investigation for which your country is noted. You have to complete the 
review and hold those accountable who are responsible. When that 
happens, Iraqis will take a new look at this country.
  Would the Senator not agree with me that was good guidance and good 
advice, and that it ought to be followed, and that it is going to be 
impossible to follow as long as they refuse to cooperate with the 
  Mr. LEAHY. Mr. President, the Senator from Massachusetts is 
absolutely right. I also had the good fortune to meet with the new 
interim President of Iraq. I actually asked him a similar question, and 
what the Senator from Massachusetts says is absolutely so. He said: Get 
it all out. He spoke of making it as transparent as possible. He said: 
The United States has always had a reputation of being honest, of being 
a democratic nation, of admitting our mistakes, and, of course, of 
being proud of those things we have accomplished that we can be so 
proud of. If we want to maintain that credibility, get it all out.

  The Senator from Massachusetts said that in our system, nobody is 
above the law. I thank God that is so, that the Founders of this 
country were wise enough to set in place a system where nobody--
nobody--was above the law. We have demonstrated this over and over 
again throughout our history as a nation. Anybody who has tried to step 
above it, the checks and balances stop that.
  What the administration can do is so easy: Answer the questions. The 
Attorney General refused to answer our questions. But he did not do it 
on the basis of any of the very limited reasons that a question might 
be refused--either because the information being sought is classified, 
which requires us to go into closed session, or because the President 
has asserted executive privilege, which the President did not in this 
  They have sent up 3 of the 23 items we requested. Two of the 3 items 
were already on the Internet. But at least we are one item forward. 
Let's get the rest of the information and documents up here, and then 
let the Senate do what it should do: Let the various committees 
actually ask questions and seek answers.
  Mr. President, I see my good friend from Pennsylvania on the floor 
seeking recognition, so I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, in the absence of any other Senator 
seeking recognition on the pending legislation, I ask unanimous consent 
that I may speak up to 10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Specter are printed in today's Record under 
``Morning Business.'')
  Mr. SPECTER. I thank the Chair and yield the floor.
  Mr. WARNER. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Mr. President, I ask unanimous consent to address the 
Senate for 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Mr. President, I join my colleague and ranking member on 
the Judiciary Committee, the Senator from Vermont, as well as my 
colleague, the Senator from Massachusetts, in expressing support for 
the amendment we

[[Page S7143]]

will vote upon either tonight or tomorrow, and to express my 
displeasure that the documents that we have received are so inadequate 
in terms of what we have requested.
  The first point I will make is, don't let anybody think that because 
this is a thick pile, it really has the nub of the matter. It does not.
  The bottom line is that I would say that an ounce of disclosure is 
going to buy this White House a pound of problems. These documents 
raise more questions than they answer. The White House is better off 
coming clean and releasing all relevant and nonclassified documents.
  In the Judiciary Committee, we have asked the administration for 23 
specific documents as a starting point. Of the 13 the White House 
released today, only 3 are among those we asked for; 3 out of 23 is not 
a very good average. It is not even a good batting average, and we are 
pretty lenient there when we are above a third.
  It seems painfully clear that this administration devised a 
strained--some would say tortured--new definition of torture. Then 
someone in the administration authorized the use of new ``interrogation 
techniques'' that would have run afoul of the old definition of torture 
but under the new definition were permissible.
  Anybody who thinks those line soldiers at Abu Ghraib were acting on 
their own initiative must have his head in the sand.
  It is absolutely unacceptable that the actions of a few in our 
military and our Government have brought shame on the 99.9 percent of 
our troops who serve us so honorably and well and are fighting for the 
freedom of the Iraqi people.
  We must not compound that error by letting a few soldiers at the 
bottom of the line take the fall if authorities higher up gave them the 
green light.
  This matter must be pursued no matter where it leads, no matter how 
high it goes. If anyone at the Cabinet level or in the White House 
opened the door to the kind of abuse we saw in those pictures from Abu 
Ghraib, it is time to own up to it.
  The credibility of the administration is on the line and the release 
of a handful of documents simply doesn't do the job.
  I will repeat that it is not enough to release a few inches of 
documents. The White House should publicly disclose all relevant and 
nonclassified documents. Relevant classified documents should be 
provided to the Judiciary Committee and Armed Services Committee so we 
can get to the bottom of this.
  Mr. President, I am aware of the difficulties in these situations. We 
are in the post-9/11 world, a brave new world. Sometimes things do have 
to change and be adjusted. We don't know where the balance should be 
exactly. That is the difficulty. But one thing I know for sure is that 
there should be debate as to what methods of interrogation should be 
allowed and used because that deals with the fundamental balance of 
security and liberty, and that is the balance the Founding Fathers 
focused on probably more than any other. That is the balance; they 
wanted open debate.
  So the thing I am sure of is not where you draw the line. I think 
anybody who says that is certainly making a mistake. Rather, the thing 
I am certain of is, if there is open debate and discussion between the 
executive and legislative branches, which is what the Founding Fathers 
most certainly intended, we will almost inevitably end up in these most 
serious and delicate matters with a very good solution.
  The problem, of course, is this: The Justice Department and the 
Attorney General have a penchant for secrecy. They have avoided at all 
costs open debate and discussion. The results almost always inevitably 
boomerang on them, and they end up having to backtrack anyway, but in a 
way that doesn't do justice and do right for the people they represent 
and for America and the world.
  So the bottom line is this: At the end of the day, if we don't know 
who authorized what, when it was authorized, and whether it explains 
why the detainees at Abu Ghraib were treated the way they were, then 
the job is simply not done.
  I thank my colleagues from Vermont, Massachusetts, Wisconsin, and 
Illinois for their leadership on this issue and encourage my colleagues 
to support this amendment.
  I yield back the remainder of my time, and I suggest the absence of a 
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Wisconsin.


  Mr. REID. I want to congratulate the Senator from Arkansas. He has 
added a new dimension to the Senate. He is someone who is thoughtful, 
and above all he is so concerned about the partisan contentiousness in 
the Senate, and he has spoken to Senator Daschle and me and others 
about the need to do something about this. I want the Senator from 
Arkansas to know how much we appreciate his being the good Senator that 
he is and being concerned about what is going on here on the Senate 
  We have worked on this bill--I do not know, but I think this is about 
the 12th day. Some of those days were Mondays and Fridays, so I really 
do not know how many real days we have had to work on this bill, but it 
has been a long, tedious process to work through more than 300 
amendments. We can see light at the end of the tunnel.
  When the majority learned the minority was going to offer an 
amendment calling for the Attorney General to divulge certain 
information, as a result action was brought to a standstill. I have 
some difficulty understanding that, but I believe that on difficult 
amendments the majority and minority should face it and just vote on 
them rather than bring legislation to a standstill, but the decision 
has been made to not do anything on this legislation.
  At first glance, I thought I did not agree with what the majority was 
doing, but they have done this in the past and that is what they want 
to do, and we just have to live with it. It has been brought to my 
attention, though, that a bus pulled up in front of the Senate, and now 
the Republican Senators are at a reception at the White House. I do not 
know how many of them but enough that there is nothing being done here. 
We are trying very hard to finish this bill and we are not doing 
anything because the Republican Senators are at the White House for a 
reception? If, in fact, we had been told that, we could certainly have 
had people offering amendments and have no votes during that period of 
time. We do that on many occasions. But I think this legislation is not 
turning out as well as I thought it should, which has been handled so 
well by the two managers of this bill.
  The distinguished chairman of the committee thought I should not have 
offered a second-degree amendment because he thought he should have 
that right. Perhaps he was right. So I withdrew my amendment and we are 
in the position where we would be if I had not offered that amendment. 
That is the status of the Senate today.

  But as I have said and others have said, including Senator Leahy, 
that is an amendment we will need to vote on before we finish this 
legislation. At 6:20, the managers are going to offer all amendments 
that have not even been agreed upon, voted upon, or somehow that are on 
the list that haven't been offered. The way things are going we could 
end up with quite a few amendments to vote on because each of those 
amendments do carry with them the potential of having a second-degree 
amendment offered to each one of them. If we wind up with 15 amendments 
that haven't been offered, we could wind up with 30 votes. I hope that 
is not the case.
  We have also been told there is a need to vote on judges. I 
understand the reason for that. We will have to take that into 
consideration over here.
  My only point is after the reception is over, which should be around 
5 to 6, maybe we could get back to working on this most important 
legislation. I think it has not accomplished what we need to accomplish 
here by simply bringing the Senate to a standstill this afternoon. 
Since the Senate picture was taken, we haven't done anything. We might 
just as well have stayed here and had other poses, I guess.
  I hope we can work our way through this little situation we have 
here. We have some amendments. Senator Kennedy's amendment, I am sure, 
will require a little more debate. Most of the amendments have been 
debated. People have come over, those who are going to offer 
amendments, and stated their positions.
  I recognize the importance of this legislation. As we speak, in Iraq 
and Afghanistan we have men and women who are actually on the firing 
lines. I don't know how many in Iraq have been injured or killed today. 
We know what happens every day. We know in Baghdad there are scores of 
attacks by these terrorists. Iraqis are being killed every day. This 
bill is an important piece of legislation. I think we all need to 
recognize that.
  Yesterday, when I was here at my desk, my BlackBerry went off. I 
looked at it and it was CNN breaking news, to report four American 
soldiers had been shot. They had been found dead, shot multiple times 
in the head. There were 2 other soldiers killed and 11 who had been 
wounded in that same action.
  What we do here is extremely important. There is nothing that we do 
during the year more important than this Defense authorization bill. I 
hope we can finish it because there is no reason we should not be able 
to. I hope the majority will not prevent us from completing action on 
this bill because we have requested a vote on the Leahy amendment.
  Let me read again what this amendment says. The purpose is:

       To direct the Attorney General to submit to the Committee 
     on the Judiciary of the Senate all documents in the 
     possession of the Department of Justice relating to the 
     treatment and interrogation of individuals held in the 
     custody of the United States.

  That is directly related to this Defense bill.
  I read the purpose. The amendment says:

       The Attorney General shall submit to the Committee on the 
     Judiciary of the Senate all documents and records produced 
     from January 20, 2001, to the present, and in the possession 
     of the Department of Justice, describing, referring or 
     relating to the treatment or interrogation of prisoners of 
     war, enemy combatants, and individuals held in the custody or 
     under the physical control of the United States Government or 
     an agent of the United States Government in connection with 
     investigations or interrogations by the military, the Central 
     Intelligence Agency, intelligence, antiterrorist or 
     counterterrorist offices in other agencies, or cooperating 
     governments, and the agents or contractors of such agencies 
     or governments.

  This is directly related to what is going on in Iraq, what is going 
on in Afghanistan, and other trouble spots in the world.
  I hope after a very short debate we can bring this before the Senate, 
vote on it, and complete the other issues on this bill, some of which 
are contentious, some of which are not. Most of them are not. We could 
dispose of them in a few minutes.
  But it is not as if this has nothing to do with this legislation. We 
on this side have been very careful. Even though we had a number of 
Senators who wanted to offer amendments dealing with unemployment 
compensation, overtime, minimum wage, and things of that nature, we 
decided not to put them on this bill because of the importance of this 
bill. But this amendment which Senator Leahy or someone will offer at a 
subsequent time is directly related to this legislation.
  I hope during this quiet time the staffs are able to clear a lot of 
amendments. That will save us a significant amount of time. The staffs 
of this committee are as good as any staffs we have in the Senate. I am 
sure if it is possible to clear those, they will be cleared.
  But I hope in clearing these amendments we will get back to where we 
were prior to the Senate picture that was taken at 2:15.
  The PRESIDING OFFICER. The Senator from Illinois, Mr. Durbin.
  Mr. DURBIN. Mr. President, I rise to speak to the Reid amendment, 
which I understand has been formally withdrawn at this moment but 
certainly is the topic of consideration and discussion.
  Mr. REID. And will come back.
  Mr. DURBIN. It will return, according to the Senator from Nevada, for 
the consideration of the Senate.
  That amendment by Senator Reid of Nevada would require Attorney 
General Ashcroft to provide the Judiciary Committee with all the 
documents in the Justice Department's possession relating to the 
treatment and interrogation of detainees.
  This is an extremely serious issue for America. Literally, the world 
is watching us and asking whether the United States will stand behind 
its treaty obligations in this age of terrorism.
  It is clear that our enemies do not respect the rules in their 
relentless quest to kill Americans. The barbaric treatment of Nicholas 
Berg and Paul Johnson have reminded us all of that fact.

[[Page S7146]]

  But this is what distinguishes the United States from the terrorists 
we fight. There are some lines we in the United States will not cross. 
Torture is one of them. We have said repeatedly, since the time of 
President Abraham Lincoln, that torture is inconsistent with the 
principles of liberty and the rule of law that underpins our democracy.
  Two weeks ago, Attorney General Ashcroft appeared before the Senate 
Judiciary Committee as our Nation's chief law enforcement officer. He 
said on the record that the administration opposes torture and that 
torture is not justified or, in his words, productive. But he refused 
at that time to provide us with the Justice Department memos dealing 
with coercive interrogation tactics.
  I asked him repeatedly: Attorney General Ashcroft, under what legal 
or constitutional basis would you deny this committee copies of these 
  I asked him if he was asserting executive privilege on behalf of the 
President. He said he was not.
  I asked him if he could identify any statute by which he would be 
absolved from his duty to respond favorably and positively to a request 
by the Senate Judiciary Committee for these memos, and he could not 
cite any statute.
  At one point he said he personally believed that it was not 
appropriate to produce these memos. I responded by saying that, as 
interesting as that may be, the Attorney General's personal beliefs are 
not the law. It is the law which governs us.
  Now, at the eleventh hour, today, in an effort to defeat the growing 
pressure to release these memos, the White House has provided Congress 
with a number of documents, including one of the Justice Department's 
torture memos. But a quick review of the documents provided reveals 
they have given us only a small part of what we have asked for. Just 
last week the Senate Judiciary Committee considered a request for some 
23 documents of the Department of Justice related to interrogation 
techniques and torture. That request for subpoena was defeated in the 
Senate Judiciary Committee on a party-line vote, 10 to 9, all 
Republicans voting against disclosure of the documents, all Democrats 
voting in favor. We take a look at the documents produced voluntarily 
by the White House today and find only 3 of the 23 documents subject to 
the subpoena have actually been produced.
  But the Justice Department's torture memo, which has been produced 
after it was leaked on the Internet for all to read, is a memo which we 
now know raises very troubling questions and completely contradicts 
statements made by Attorney General Ashcroft before the Judiciary 
Committee. It makes it clear if Congress and the Senate are to meet 
their obligation under the Constitution, we must ask harder questions 
and we must dig deeper.

  In the memo, the Justice Department makes unprecedented assertions 
about executive power, assertions that I believe violate basic 
constitutional principles. The Justice Department concludes the torture 
statute, which makes torture a crime, does not apply to interrogations 
conducted under the President's Commander in Chief authority.
  At the hearing 2 weeks ago before the Senate Judiciary Committee, 
Attorney General Ashcroft said unequivocally it was not his job to 
define torture. He went on to say, it is not the job of the 
administration to define torture. He said that is the job of Congress.
  Sadly, as we take a look at this Department of Justice memo produced 
long before the Attorney General's testimony, we find on page 13 the 
following statement, and I ask listeners to reach their own conclusion 
as to whether what I am about to read from Attorney General Ashcroft's 
memo on interrogation is an attempt to define torture. I quote from the 
Department of Justice memo dated August 1, 2002:

       The victim must experience intense pain or suffering of the 
     kind that is equivalent to the pain that would be associated 
     with serious physical injury so severe that death, organ 
     failure, or permanent damage resulting in a loss of 
     significant body function would likely result.

  How can anyone read those words and reach any other conclusion but 
that the Department of Justice in August of 2002 issued this memorandum 
defining torture. That, of course, is something the Attorney General 
said was not their job. He is right; it was not their job. But it was 
done, anyway.
  They also claim torture must involve ``intense pain or suffering of 
the kind that is equivalent to the pain associated with serious 
physical injury so severe that death, organ failure, or permanent 
damage resulting in a loss of significant body function will likely 
  Ask yourself the obvious question: Why did the Department of Justice 
produce this memo? Who asked for it? Was it the intelligence agencies 
of the U.S. Government? The White House? We honestly do not know the 
answer to that.
  If this opinion by the Attorney General's office was at the request 
of some other agency of Government, we should know that. We should know 
which agency of Government said to the Attorney General, we need an 
advisory opinion, we need your best guess as to how far we can go in 
interrogation techniques.
  Although the Attorney General said to us repeatedly, the law speaks 
for itself--when he said that, he was referring to our laws, our 
Constitution, the treaties we have entered into--in fact, the Attorney 
General and his Department of Justice decided the law was not enough. 
They needed to add very graphic and specific definitions such as the 
one I read.
  Now, of course, there is an important and underlying issue here. 
Under our Constitution, which we have all sworn to uphold--not only 
Members of Congress but members of the President's Cabinet--the 
President does not have the authority to choose which laws he will obey 
or to make his own laws. There is no wartime exception to 
our Constitution.

  Article I, section 1 of the Constitution says all legislative powers 
are vested in Congress. Article II, section 3 of the Constitution says 
the President shall take care that the laws be faithfully executed. 
Article VI provides that laws made by Congress and treaties ratified by 
the Senate are the supreme law of the land.
  Retired RADM John Hutson was a Navy judge advocate for 28 years. From 
1997 to the year 2000 he was the judge advocate general, the top lawyer 
in the Navy. He rejects the Justice Department interpretation of 
torture law, saying:

       If the president's inherent authority as commander in chief 
     trumps domestic and international law, where is the limit? If 
     every sovereign can ignore the law, then no one is bound by 

  The Supreme Court considered a similar question related to the 
Justice Department position. President Truman, faced with a steel 
strike during the Korean war, issued an Executive order to seize and 
operate the Nation's steel mills. In the historic Youngstown steel 
case, the Court found the seizure of the steel mills was an 
unconstitutional infringement on Congress's lawmaking power and that it 
was not justified in wartime as an exercise of the President's 
Commander in Chief authority.
  Justice Hugo Black, writing for the majority, said:

       The Constitution is neither silent nor equivocal about who 
     shall make laws which the President is to execute . . . The 
     Founders of this Nation entrusted the lawmaking power to the 
     Congress alone in both good and bad times.

  It seems clear the Justice Department memo was the basis for a 
Defense Department memo that makes very similar arguments about 
torture. For example, the Department of Defense memo argues the statute 
outlawing torture does not apply to the detention and interrogation of 
enemy combatants by the President pursuant to the Commander in Chief 
  The difficult question we have to answer is this: What have these 
memos produced by the Department of Justice wrought? We know, now, 
because of the graphic illustration of the abuses at Abu Ghraib prison, 
that soldiers in the uniform of the United States of America performed 
some horrible and shameful acts for which no one has made any excuses. 
Even the President has said that does not represent America. What they 
did was clearly wrong.
  The important and obvious question for all to ask as a follow-on is, 
Was this an incident involving the conduct of a handful of officers or 
did it represent a policy promulgated by this Government, supported by 
memoranda from

[[Page S7147]]

the Department of Justice and those from the Department of Defense? 
Therein lies the critical question.
  Last week, President Bush was asked about the Justice Department 
torture memo and he said he did not remember if he had ever seen it; he 
said he issued an authorization that conformed with U.S. law and treaty 
obligations, and he would not say whether he would authorize the use of 
torture but that we should be ``comforted'' by the ``laws on the 
  The President is correct; the law is very clear. The United States is 
not permitted to engage in torture or cruel, inhumane, or degrading 
treatment. But I am not comforted because we don't know if the 
administration followed the Justice Department interpretation which 
would allow the President to set aside these laws. We have gone too 

  We have to follow the paper trail to determine who requested the 
memos and what was done in response to them. We need to find out 
whether the legal arguments contained in these memos were used to 
justify the use of torture at Guantanamo, at Abu Ghraib, or any other 
facility controlled by the United States of America. We need to know 
whether the President or anyone else in this administration authorized 
the use of torture as defined by the Department of Justice memo.
  The Senate has an obligation to the Constitution and the American 
people to answer these questions. The only way to do that is to obtain 
all of the relevant documents.
  The great challenge of our age in combatting terrorism while 
remaining true to the principles which our country is based upon is to 
make certain we respect liberty and the rule of law. We must not 
sacrifice freedom and the rule of law at the altar of security. We must 
respect the freedoms protected by the Bill of Rights. Our laws must not 
fall silent during time of war.
  I urge my colleagues to support the Reid amendment. I yield the