[Congressional Record: February 13, 2008 (Senate)]
[Page S927-S936]


  Mrs. FEINSTEIN. Mr. President, yesterday was a big day before the 
Senate. We had the Foreign Intelligence Surveillance Act bill. Today is 
an even bigger day because the intelligence authorization bill is going 
to be before the Senate, and today we will grapple with something that 
I think should be major in our consciousness and major in our 
deliberations. It is central to who we are as a nation. The question is 
whether the United States should continue to go to the ``dark side,'' 
down the road of torture, and continue to allow the CIA and other 
intelligence agencies to practice or outsource state-sanctioned 
torture. To me, the answer is clear, and I hope it is to everyone. The 
answer should be no.
  Today we are living in a legal limbo, where the rules are shrouded by 
ambiguity. The time has come to change this once and for all. The way 
to do it is to support the fiscal year 2008 intelligence authorization 
bill, which would prohibit all interrogation techniques by the CIA and 
place the intelligence community under the uniform standard of the Army 
Field Manual. If that bill passes, and it has passed the House of 
Representatives, if it passes here today, we have a uniform standard 
for the entire American Government with respect to coercive 
interrogation techniques.
  The Army Field Manual, which looks like this, has 19 interrogation 
protocols. They are proven, they are flexible, and they are effective. 
The CIA interrogation program, on the other hand, I believe, is 
immoral, illegal, sometimes ineffective, and often counterproductive. I 
wish to simply read something which appeared in the newspapers, and 
what this says is:

       The book on interrogation has been written. We just need to 
     follow it.

  And they refer to this book, Mr. President.

       Cruel and inhuman and degrading treatment of prisoners 
     under American control makes us less safe, violates our 
     Nation's values, and damages America's reputation in the 
     world. That is why, in 2004, the bipartisan 9/11 Commission 
     called for humane treatment of those captured by the United 
     States Government and our allies in the struggle against 
     terrorism. Congress and the Pentagon responded with clear and 
     comprehensive new rules for the military so that 
     interrogation techniques practiced by the military today are 
     both humane and effective. But not all United States agencies 
     are following these rules. Congress should require the entire 
     U.S. Government and those acting on its behalf to follow the 
     Army Field Manual on Human Intelligence Collector Operations. 
     Doing so will make us safer while safeguarding our cherished 
     values and our vital national interests.

  This was signed by Zbigniew Brzezinski, Warren Christopher, Lawrence 
Eagleburger, Slade Gorton, Lee Hamilton, Gary Hart, Rita Houser, Karla 
Hills, Thomas Kean, Anthony Lake, John Lehman, Richard Leon, Robert 
McFarlane, Donald McHenry, Sam Nunn, Thomas Pickering, Ted 
Sorensen, and John Whitehead. It is a bipartisan group that has come 
out with this, and I believe we should absorb it and use that 

  The Army Field Manual provision has the support of the Intelligence 
Committees. I offered the amendment in the conference between the House 
and the Senate on the intel authorization bill. It was passed by the 
Senate and it was passed by the House, and it is part of the bill, and 
as I said, the House has passed their bill. The amendment was the 
subject of passionate and considered debate in Congress. It has unique 
support--18 former security officials, as I have said--and this Army 
Field Manual was issued in its current form by the Department of the 
Army in September of 2006. It followed the requirements of the Detainee 
Treatment Act, and it applies uniformly across all elements of the 
military and civilian elements of the Department of Defense.
  The manual was published after more than 3 years of drafting and 
coordination. This was the most scrutinized field manual the Army has 
ever produced, including reviews and comments by every relevant 
Pentagon office, every combatant commander, the White House, the DNI, 
the CIA, and the Defense Intelligence Agency. The Departments of 
Justice and State have also concurred with the manual's guidance. For 
the first time ever, the Army consulted with Congress in the persons of 
Senators McCain, Warner, and Levin in drafting the manual.
  The manual complies with the Uniform Code of Military Justice, the 
Geneva Conventions, and the Detainee Treatment Act. There is perhaps no 
more authoritative figure on the manual than our commanding officer in 
Iraq, GEN David Petraeus. In a response to a survey showing that 
American troops in Iraq would consider torture in order to save their 
comrades, Petraeus wrote to the entire multinational force on May 10, 
2007, and here is some of what he said:

       Certainly, extreme physical action can make someone 
     ``talk''; however, what the individual says may be of 
     questionable value. In fact, our experience in applying the 
     interrogation standards laid out in the Army Field Manual 
     shows that the techniques in the manual work effectively and 
     humanely in eliciting information from detainees.

  Now, what does the manual do? It specifically authorizes 19 
approaches--you could call them interrogation techniques--and they are 
well thought out and each one is several pages on how to apply it. One 
of them can only be used on unlawful army combatants with the prior 
approval of the combatant commander. These techniques describe ways to 
build rapport with the detainee in order to get him or her to share 
  GEN Michael Maples, the Director of the DIA, recently rebutted the 
contention that the Army Field Manual wouldn't have covered the 
interrogation method used by an FBI special agent to get Saddam Hussein 
to finally come clean that he had no weapons of mass destruction.
  So the manual specifically prohibits eight techniques, and here is 
what they are:
  Forcing a detainee to be naked, perform sexual acts, pose in a sexual 
manner; placing hoods or sacks over the

[[Page S928]]

head of a detainee; using duct tape over the eyes; beatings, electric 
shock, burns, or other forms of physical pain; waterboarding--very much 
the talk of the Nation; use of military working dogs; inducing 
hypothermia or heat injury; conducting mock executions; depriving 
detainee of necessary food, water, or medical care.
  Those are the eight prohibited techniques in the Army Field Manual. 
It also incorporates what is called the ``golden rule,'' and this is 
important. It is an approach to interrogation. It requires military 
personnel to ask this question: If an interrogation technique were to 
be used against an American soldier, would I believe the soldier had 
been abused?
  Adopting this conference report would extend that ``golden rule'' to 
CIA interrogations, to station agents all across the globe, and make 
sure that no coercive technique could be used if we would not be 
comfortable with the same technique being used against an American 
  Now, here are some facts about the CIA program. The CIA has used 
coercive techniques on detainees since September 11, 2001, under the 
President's authorization and approval of the Department of Justice. 
The CIA has waterboarded three detainees--Abu Zubaydah, Abd al-Rahim 
al-Nashiri, and Khalid Shaikh Mohammed.
  The White House believes that waterboarding could be used in the 
future, even though General Hayden has recently publicly questioned its 
legality. The CIA has used contractors for interrogations, as General 
Hayden admitted in an open, public hearing this past week. So the CIA 
has outsourced what is an inherently governmental function of 
questionable legality and morality.
  More importantly, the CIA's interrogation techniques change. There is 
no uniform standard. There is no standard as to how they are to be 
combined, what the circumstances are. Think about this. Done with cold 
calculation, any interrogation technique, when applied over the course 
of hours or days or months, and in combination with other techniques, 
can cross the line into illegality. An interrogator can choose from a 
menu of coercive approaches, pick several of them, and go to work. So 
don't be fooled. Even the least coercive-sounding technique, when used 
relentlessly or in combination, can be torture.
  Now, in addition to being immoral, I believe the CIA interrogation 
program is illegal.
  I say this as a member of the Intelligence Committee, and I say this 
as one who has been briefed several times on these techniques. These 
techniques have violated the Convention Against Torture and the U.S. 
torture statute by inflicting severe physical or mental pain or 
suffering to others. It has violated Geneva Convention common article 
III, which prohibits outrages upon personal dignity, in particular 
humiliating and degrading treatment.
  The medical research is clear. Coercive techniques cause severe pain 
and suffering. That is why both the AMA and the American Psychological 
Association have passed resolutions against their members participating 
in such interrogations.
  In a letter dated September 13, 2006, retired General and former 
Secretary of State Powell wrote this:

       The world is beginning to doubt the moral basis of our 
     fight against terrorism.

  I think that says it in a nutshell. As every Member knows, we will 
never win the war on terror by capturing or killing or torturing all 
our enemies. We will only win the war by our ideals and by removing any 
public support for al-Qaida's vision.
  Using torture cuts away from our moral high ground. It takes America 
into the ``dark side,'' and thus it reduces our ability to win this 
war. I believe we should end this now.
  The military is the segment of the U.S. population most likely to be 
captured and interrogated by our enemies. They know any technique we 
authorize can be used against them, and that is the point. If the 
United States uses waterboarding, you can be sure that waterboarding 
will be used against our station agents, against our military. It is a 
mistake to do so.
  That is why 43 retired generals and admirals, including 10 four-star 
officers, have signed a letter to Congress denouncing coercive 
techniques and supporting the single unified uniform standard for the 
entire Government, the Army Field Manual.
  Here is what they wrote:

       We believe that it is vital to the safety of our men and 
     women in uniform that the United States not sanction the use 
     of interrogation methods it would find unacceptable if 
     inflicted by the enemy against captured Americans. That 
     principle, embedded in the Army Field Manual, has guided 
     generations of military personnel in combat.

  And the letter goes on.
  I have listened to the experts such as FBI Director Mueller and DIA 
Director General Maples. They all insist that even with hardened 
terrorists you get more and better intelligence with the gloves on than 
when you take them off.
  The CIA cannot show that coercive techniques are more effective than 
noncoercive techniques. And I wish I could say what I know from a 
classified setting, but I cannot. They point to the anecdotes they have 
declassified, while the counterexamples remain classified.
  So I can only summarize and say this: This is the moment where the 
Senate stands up. The House has stood up. They have passed a bill. If 
we want to ban waterboarding, if we want to ban the eight techniques 
banned by the Army Field Manual, this is our moment to do so. I think 
we should stand tall. I think we should adhere to our principles. I 
think we should raise what we say internally and once again regain the 
world's credibility. I hope we maintain the Senate bill as it is.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from West Virginia is 
  Mr. ROCKEFELLER. Mr. President, action on the fiscal year 2008 
authorization bill for intelligence is so long overdue I do not even 
know how to explain it. It is over 2 years overdue. It is a very 
important bill.
  Beginning in 1978, after the two congressional intelligence 
committees were established, the Congress passed an annual intelligence 
authorization bill every year. It does not sound interesting, but it 
has a great deal to do with how the intelligence community operates. We 
passed it for 27 consecutive years. And there was no exception to that. 
This legislation was one of very few nonappropriations measures that 
Congress has always considered ``must pass.'' Yet we have failed to 
pass it for the last number of years, and it is a matter of 
  The importance of our intelligence programs to our national security 
has always been very obvious. The importance of strong congressional 
oversight of the intelligence activities has been equally obvious; 
although it has been spottier in the recent past, it no longer is.
  Then in 2005 and 2006, the bills reported out of the Senate 
Intelligence Committee were never brought to the Senate for 
consideration. There were internal reasons for that. I will spare the 
Presiding Officer from a discussion of those matters, and it is no 
longer important why.
  But we have to do this bill. The intelligence authorization bill is 
the tool the Congress uses to provide direction, specific direction, 
and to enforce the oversight that we do. It involves many of the most 
sensitive national security programs conducted by the U.S. Government.
  The 2008 authorization bill includes provisions to improve the 
efficiency of the intelligence community. It is a bland statement, but 
it is a very important series of parts. The bill produces better 
intelligence. We provided flexibility and authority to the DNI. We gave 
him a tremendous responsibility and then did not give him enough 
flexibility to exercise that responsibility. We do that in this bill.

  We require much greater accountability from the intelligence 
community. That is oversight. We require greater accountability from 
the intelligence community and its managers. We improve the mechanisms 
for conducting oversight of intelligence programs and we reform 
intelligence program acquisition procedures. All of that is oversight.
  Many of the provisions were included at the request of the National 
Intelligence Director in this bill. I always believe in reaching out to 
the professionals in doing this.
  The creation of the DNI position was the result of the most 
significant reform of the intelligence community in 50 years. And the 
current DNI, ADM

[[Page S929]]

Mike McConnell, is absolutely superb. The Office of Director of 
National Intelligence has now existed for 2\1/2\ years, and we have 
begun identifying ways to help the DNI better coordinate the 16 
elements of the intelligence community, which are scattered around the 
Government, some of which do a very good job and some of which do not. 
Now he is pulling all of this together and he is doing a good job.
  Starting with personnel authority, this bill uses a much more 
flexible approach to authorizing personnel levels. Those are very 
delicate. We also give the DNI the ability to exceed personnel ceilings 
by as much as 3 percent because he needs to have that. He is in the 
process of trying to figure out how to adjust all of this and work it 
right. He needs flexibility. It also provides additional flexibility to 
encourage the DNI to convert contractor positions to Government 
employees when appropriate.
  Every Member knows the real power is the power of the purse. It is 
the same with the DNI. And this bill changes reprogramming requirements 
to make it easier to address, as they say, emerging needs in critical 
situations, a crisis. We give him the financial flexibility to do that. 
He needs that flexibility, and he now will have it if we pass this 
  It authorizes the DNI to use interagency funding amongst his various 
agencies that he oversees to establish national intelligence centers if 
he so chooses. The bill also allows the DNI to fund information-sharing 
efforts across the intelligence community. That was the whole point of 
the 9/11 Commission. That is the whole point of reducing stovepipes.
  Finally, it repeals several unneeded and burdensome reporting 
requirements. Frankly, we can use up a lot of people's time on 
something that we no longer need. We reduce some reporting requirements 
without in any way compromising accountability because oversight is the 
whole point of this bill.
  As it increases the authority of the DNI, the bill also improves 
oversight of the intelligence community in other ways. The bill creates 
a strong independent inspector general in the office of the DNI. It has 
to be confirmed by the Senate. That is called oversight. Confirmed by 
the Senate. That means it has to report to the committee. Accountable 
to the committee. It has to tell us the truth. Confirmation allows 
inspectors general to do very difficult things within their own 
departments that maybe some of the leaders will not do.
  It establishes statutory inspectors general in the National Security 
Agency, the NRO, the NGA and the Defense Intelligence Agency. So these 
are all there. They are all accountable. They are all oversight tools 
that we want.
  The bill also gives the Congress more oversight of the major 
intelligence agencies by requiring Senate confirmation of the Directors 
of NSA and NRO. Right now we do not have to confirm them. If we do not 
confirm, that means they do not have the same relationship with the 
Senate. We confirm the CIA, but we do not confirm the NSA.
  You tell me, particularly after we passed the FISA bill yesterday, 
how is it possible that we would not be able to confirm the head of the 
National Security Agency as well under this bill? We can, which makes 
him accountable to us, which means he reports to us, which means we can 
do oversight over him much more aggressively.
  As we describe in our conference report:

       . . . of the need for NSA's authorized collection to be 
     consistent with the protection of the civil liberties and 
     private interests of U.S. persons.

  Through confirmation of the NSA Director, we can ensure that 
continues or starts to be so.
  As we increase the DNI's flexibility to manage personnel, we require 
an annual assessment. That sounds boring, but, no, it is not. It is 
very important--an annual assessment of personnel levels across the 
intelligence community: How are they distributed? Are they in the right 
place? Are people protecting their turf? The DNI is in charge of this. 
We want to give him all the support, and we want this all reported to 
us in our committee so we can watch it.
  We also required the inclusion of a statement that those levels are 
supported by adequate infrastructure, training, funding, and a review 
of the appropriate use of contractors, which has become a very 
interesting subject in these months and years.
  This bill also addresses an issue that has concerned the committee 
for a long time, the lack of accountability for failures and 
programmatic blunders. That is called oversight.
  We want accountability. We want it in front of us. We want our hands 
on it. The bill gives the DNI the authority to conduct accountability 
reviews across the intelligence community if he deems it necessary or 
if we request it in our committee. It is called oversight.
  This also improves financial management by requiring a variety of 
actions related to the production of auditable financial statements. 
That sounds pretty boring, but, no, it is not. When you get into the 
intelligence community, when you get to classified numbers, things of 
that sort, it is very important to have someone watching. That is 
oversight. We will have that if this bill passes.
  The final major theme in the bill is the reform of the acquisition 
process. The bill requires a vulnerability assessment of all major 
acquisition programs. Well, acquisition is a very large word in 
intelligence and a very expensive word. We have made some very big 
mistakes, we have not been able to correct them.
  But that is a discussion for another day. So we have a classified 
annex. Any Senator who wants to look at what is behind all of those 
numbers can do that very easily.
  I have other things I wish to talk about, particularly the Army Field 
Manual. But I have a whole different speech awaiting my colleagues on 
that later in the day.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, I thank my colleague with whom I have worked 
closely on this and many other matters.
  One of the most important means that Congress has for conducting 
oversight of the intelligence community is through the annual 
authorization bill for the intelligence agency. Regrettably, we can't 
call it an annual Intelligence Authorization bill because Congress was 
unable to pass a bill in 2006 and 2007. Unfortunately, it appears we 
are on a path that may prevent us from getting an authorization bill 
signed for fiscal year 2008.
  When I assumed the duties as vice chairman of the select committee at 
the beginning of this Congress, one of my top priorities--and that of 
the committee--was to get an Intelligence Authorization bill signed 
into law. During the first month of our tenure, we tried to resuscitate 
the fiscal year 2007 bill but could not get it out of the Senate. When 
the time came to fashion a bill for fiscal year 2008, we had better 
luck. But as Louis Pasteur once said, ``Chance favors the prepared 
mind.'' The committee worked hard to include in the chairman and vice 
chairman's mark only those provisions that had strong bipartisan 
support. Our rule was if either side objected to a provision, it would 
not be included. After our markup, we added a number of other good 
government provisions that had strong bipartisan support. 
Unfortunately, the committee also added a number of problematic 
provisions that caused our bill to stall on the floor.
  I believed we had largely succeeded in our process of accomplishing 
the goals of a bipartisan bill. We worked closely with the 
administration to address some of their concerns. Some were easier to 
resolve than others. We all know there is one very problematic 
amendment relating to the Army Field Manual that was added during the 
conference between the House and the Senate. I will address that later. 
But now I wish to talk about some of the good things in this conference 
  First, I have often said--and I believe responsible observers now 
agree--that in creating the Director of National Intelligence, we gave 
him a tremendous amount of responsibility but darn little authority to 
get the job done. This conference report attempts to address that 
problem by giving the DNI clearer authority and greater flexibility to 
oversee the intelligence community. For example, section 410 gives the 
DNI statutory authority to use national intelligence program funds 
quickly to address deficiencies or needs relating to

[[Page S930]]

intelligence information or access or sharing capabilities. The DNI may 
also use funds to pay for non-NIP--national intelligence program--
activities and to address critical gaps in those areas.
  Section 409 expands the number of officials in the office of the DNI 
who can protect sources and methods from unauthorized disclosure. This 
authority may now be delegated to the Principal Deputy Director of 
National Intelligence and the chief information officer of the 
intelligence community. These are all good things, all things the 
administration needs. We also included provisions that will ensure that 
the men and women of our intelligence community who must work 
undercover may do so at less risk of disclosure and, consequently, less 
risk to their personal safety.
  Section 305 allows the DNI to delegate the authority to authorize 
travel on any common carrier for purposes of preserving cover of 
certain employees. Section 325 extends to the head of each intelligence 
community element the authority to exempt certain gifts from otherwise 
applicable reporting requirements. Without this exemption, detailed 
information about the receipt of gifts from foreign governments must be 
published in the Federal Register. Imagine if an undercover agent 
receives a gift from one of the targets he is working and has to report 
it in the Federal Register. That not only blows his cover, it probably 
ends his life. That is a great national security concern to operatives 
who have received such gifts as part of their covert actions.
  One particular provision will reduce the personnel and resources used 
to respond to many congressional reporting requirements. In section 
330--again, in response to a request of the DNI--we eliminated a number 
of reporting requirements. It is a small step but an important one, as 
each reporting requirement diverts valuable resources from the intended 
purpose. I hope, within the 2009 Intelligence Authorization bill, we 
can make even greater progress in reducing unnecessary and duplicative 
reporting requirements that burden the intelligence community.
  There are a number of provisions in this conference report that are 
essential for promoting good government. Too often we have seen 
programs or acquisitions of major systems balloon in cost and decrease 
in performance. That is unacceptable. We as taxpayers are spending 
substantial sums of money to ensure that the intelligence community has 
the tools it needs to keep us safe. If we don't demand accountability 
in how these tools are operated or created, then we are failing the 
taxpayers. We are failing the intelligence community. We are failing 
the mission I would hope we all agree is essential.
  I sponsored several amendments that require the intelligence 
community to perform vulnerability assessments of major systems and to 
keep track of excessive cost growth of major systems. This latter 
provision is modeled on the Nunn-McCurdy provision which has guided 
Defense Department acquisitions for years. I believe these provisions 
will encourage earlier identification, the solving of problems relating 
to the acquisition of major systems. Too often such problems have not 
been identified until exorbitant sums of money have been spent. In some 
cases, several billions of dollars have been blown before the waste 
stopped. Unfortunately, too often, once they have sunk a bunch of money 
into a project, they refuse to cancel it, even though they are 
continuing to throw good money after bad.
  Similarly, the intelligence community must get a handle on their 
personnel. I don't share the belief some have that the Office of the 
Director of National Intelligence is too large. In fact, I think we 
need to make sure our National Counterterrorism Center and National 
Counterproliferation Center have more resources, not less. They are the 
ultimate idea for creating a centralized intelligence community, 
bringing analysts and collectors together from all of the 16 different 
elements of the community.
  I am concerned about the number of contractors used by the 
intelligence community to perform functions better left to Government 
employees. There are some jobs that demand the use of contractors--for 
example, certain technical jobs or short-term functions--but too often 
the quick fix is to hire contractors, not long-term support. So this 
conference report includes a provision calling for an annual personnel 
level assessment for the intelligence community. These assessments will 
ensure that before more people are brought in, there are adequate 
resources to support them and enough work to keep them busy.

  Finally, we have included section 312, which requires the DNI to 
create a business enterprise architecture that defines all intelligence 
community business systems. The endgame is to encourage implementation 
of interoperable intelligence community business systems, getting 
everyone on the same page; in sum, making sure everybody is talking to 
each other and everybody who needs to know can listen in, a simple but 
not-yet-achieved objective. Given the substantial sums of money we are 
spending on these systems, we should be making certain the systems are 
efficiently and effectively coordinated; again, a good government 
  There were a number of adjustments we had to make. We responded to 
concerns of the administration, and I worked particularly with my 
Democratic colleagues--and I thank them for their support--to make 
adjustments that would allow the bill to clear the Senate for the first 
time in 2 years. Let me highlight some of those adjustments because it 
is important to remember how much effort it took to return the bill to 
a bipartisan state.
  No. 1, we struck a section that would have required the President to 
provide Congress with any President's daily brief involving Iraq during 
a certain time period. The PDBs have not been disclosed. As a matter of 
fact, they only came to light when a former official in the previous 
administration put some PDBs in his BVDs and stuck them out at the 
archives for reasons no one has adequately explained.
  We struck two sections that contained controversial notification and 
funding restrictions. We struck a provision requiring declassification 
of the budgetary top line of the national intelligence program because 
it had already passed Congress in S. 4, the so-called 9/11 bill. We 
struck a section that required the CIA Director to make available to 
the public a declassified version of a CIA inspector general report on 
CIA accountability related to the terrorist attacks. That was also 
required by S. 4. It was about time the CIA internal IG report be made 
available. Everybody else had to air their failings, and it was time 
the CIA did so as well.
  We struck a section that would have allowed the public interest 
declassification board to conduct declassification reviews at the 
request of Congress, regardless of whether the review is requested by 
the President. We also struck a provision that would have required a 
national intelligence estimate on global climate change, largely 
because the DNI, which is not equipped to conduct an NIE on climate 
change, had outsourced the responsibility for putting together an 
assessment, and there was no need to mandate this in law.
  Finally, we made modifications to at least seven other provisions to 
address concerns raised by the administration and by our Senate 
colleagues. The end result was, we get a fiscal year 2008 Intelligence 
Authorization bill passed out of the Senate by unanimous consent in 
early October 2007. I thank my colleagues for allowing us to do that. 
It was long overdue, and it was a badly needed action. Then, however, 
we went to conference.
  I urged my conferees to avoid inclusion of controversial provisions. 
We kept our negotiations to the base text of both bills. Given that we 
hadn't had an intel bill during the past 2 years, there were a lot 
provisions to negotiate. I guess you could say there was a lot of pent-
up oversight. After a lot of hard work, we were able to merge the two 
bills in a manner we believed would receive strong bipartisan support. 
Unfortunately, despite my warnings, history again repeated itself. 
During the conference markup, the Senate adopted, by a one-vote margin, 
a controversial provision that limits the intelligence community to 
using only those interrogation techniques authorized by the U.S. Army 
Field Manual on human intelligence collector operations. As I will 
discuss later, to adopt that provision and put it into law

[[Page S931]]

would, according to the Director of the CIA, shut down the most 
valuable intelligence collection program the CIA has, a program that 
has protected our homeland and our troops abroad from terrorist 
attacks. Because it was adopted, I couldn't sign the conference report 
that I and my colleagues worked so hard to enact.
  Another consequence of that vote was it caused the conference report 
to languish in the Senate for more than 2 months now. Shortly after the 
passage of the conference report, the administration released a 
statement of administration policy and--certainly not to my surprise--
at the top of their list of objectionable provisions was the limitation 
on interrogation techniques provisions. We have heard some 
misstatements on this floor about interrogation and the techniques 
used. Frankly, I share some of the same concerns raised by the 
administration with respect to this provision. Statements made about 
the interrogation program of the CIA are not accurate. They have been 
blown totally out of context, and they deserve a response. This 
section, if it were enacted in law--and it will not be--would prevent 
the intelligence community from conducting the interrogation of senior 
al-Qaida terrorists to obtain intelligence needed to protect the 
country from attack.
  During its consideration of the Detainee Treatment Act of 2005, 
Congress wisely decided that while the Army Field Manual was a good 
standard for military interrogators who number in the tens of 
thousands, with limited supervision and limited training, it was not 
the standard that should be used by the CIA.
  CIA interrogators are highly trained, operate under tremendous 
oversight and rules and supervision in interrogating those top hardened 
terrorist leaders, who have information on how the system operates and 
who the major players are. They do not outsource this job to 
contractors such as Blackwater or others. It is my understanding if 
they use contractors, it is former interrogators who are brought back 
in because of their experience. They are subject to the supervision of 
the CIA, with multiple layers of supervision and oversight by video 
cameras. It is highly irresponsible to say the CIA has outsourced 
torture. We do not do torture.
  Now, a lot of people say we have lost a lot because of our inhumane 
treatment. They are referring to Abu Ghraib. We all agree that what was 
done at Abu Ghraib was inhuman and degrading. But it was not done by 
anybody in the intelligence field or for intelligence purposes. It was 
done by renegade troops who have been prosecuted, punished, and 
imprisoned for the violations of basic decency. Yes, that has hurt us 
worldwide, but that is not the standard which is allowable, 
permissible, or acceptable by any of our interrogators.
  Mention has been made of eight techniques that are banned in the Army 
Field Manual. I agree, those techniques that are banned in the Army 
Field Manual should be banned. Those are not techniques that should be 
used. The Army Field Manual was meant for the Army in limiting the 
number of techniques that can be used. It applies to them only for the 
Army, for the Army's use. There are quite a number of techniques that 
fall within the same category that are not torture, inhuman, degrading, 
or cruel. If they are not included in the Army Field Manual, then they 
would not be permitted to be used, if this were made law, by the CIA, 
the FBI, or anybody else.
  But to apply the Army Field Manual--it says you can only use these 
interrogation techniques if you get authorization from ``the first 0-6 
in the interrogator's chain-of-command''--well, that would mean the CIA 
would have to go over to the Army and say: Do you have an 0-6 who can 
come over and look over the shoulders of our interrogators? Well, you 
do not have to worry about that because the CIA program would be 
  It allows the Army to set the interrogation standards for the entire 
intelligence community. It is important that my colleagues recognize 
this interrogation provision is not an antitorture provision. The 
previous speakers have said we need to pass this law to outlaw torture. 
It is outlawed. The law prohibits the United States from using torture. 
This provision prevents the intelligence community from engaging in 
other lawful interrogation techniques that fall outside the scope of 
the Army Field Manual.
  Why is that important? Because everything in the Army Field Manual 
has been published in the al-Qaida manuals. The top officials of al-
Qaida know those techniques better than the interrogators know them. 
They know how to resist them, and they are ineffective.
  Now, some on the other side of the aisle would like to frame this 
provision as being about waterboarding. It is not.
  The Attorney General has publicly stated that the CIA no longer uses 
waterboarding. The technique is not one of the approved techniques. The 
Director of the CIA has publicly stated that there were only three 
individuals waterboarded and the technique has not been used since 
2003. It was used in the crisis right after 2001, when tremendous 
amounts of valuable information were gained from the three individuals 
  What we are talking about here is not waterboarding. Some of my 
colleagues have said that the EITs are not effective--enhanced 
interrogation techniques. Well, that is absolutely not true. That is 
precisely the opposite of what the CIA Director has told us in our 
classified hearings and explained it.
  Now, the CIA Director has said they have held less than 100 people in 
their custody, and less than one-third of those have been submitted to 
enhanced interrogation techniques.
  These are the hardened terrorists who have the most information that 
is needed to protect our troops, our allies abroad, and those of us 
here at home.
  Those techniques--which are different from but no harsher than the 
techniques that are in the Army Field Manual--are unknown to the 
detainees. Those detainees on whom the EITs--not including 
waterboarding--have been used have produced the most productive 
information and intelligence. Literally thousands upon thousands of the 
most important intelligent collections have come from the cooperating 
detainees who did not know what was going to happen to them, even 
though no torture, cruel, inhuman, or degrading techniques were used on 
  Many of the techniques that are used--and I have reviewed them--are 
far less coercive or strenuous than what we apply to our military 
volunteers: young men and women of America who join the Marines, the 
SEALs, the Special Operations Forces, or pilots who go through 
the survival, evasion, resistance, and escape training, or the SERE 
training. We do not even use the most strenuous of those techniques on 
our detainees.

  Those who say we do not want our enemies to use any more harsh 
techniques than we use on them--well, good luck. You have seen Abu 
Musab al-Zarqawi beheading people. Those are not techniques that 
anybody would suggest. A beheading probably eliminates a source of 
further information.
  But the problem is, the techniques that are used would be banned. The 
techniques--that are not cruel, that are not inhuman, that are used on 
our own voluntary military enlistees--are prohibited because they are 
not included in the Army Field Manual. One good reason they are not is 
because we do not want to publicize them or they would no longer be 
effective in use against those high-value detainees who will not 
cooperate otherwise. I cannot support a bill that contains that 
  So here we are on the floor--the farthest we have gotten in 3 years. 
It looks as though history is going to repeat itself. No wonder 
congressional ratings are at an all-time low. I believe our inability 
to work in a bipartisan fashion on a consistent basis may be harming 
us. Yesterday's success with the FISA Amendments Act is a model example 
of what can be accomplished when we work together. For the most part, 
the committee's work on the Intel bill followed that model, although we 
were unable to protect the bipartisan compromise in the end.
  As the vice chairman of the Senate Intelligence Committee, I have 
invested a very significant amount of time and effort to provide 

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oversight of the intelligence community through this bill. I know my 
distinguished chairman, Senator Rockefeller, has made those same 
efforts and shares the goal.
  However, I have often said that no bill is better than a bad bill. 
Right now, with this provision in it, this is a bad bill because what 
it would do, according to the Director of National Intelligence, is to 
shut down the most effective interrogation program the CIA has to use 
to induce cooperation from those leaders of al-Qaida and other 
terrorist organizations who know about the plots to attack the United 
States and to attack our allies.
  Mr. President, I urge my colleagues to support cloture so we can move 
forward on the process on this legislation, but the President has 
stated he will veto the bill and, regrettably, I must say that despite 
all the good things in the bill, he is correct. We cannot afford the 
risk to this country, to our personal safety, to our desire to avoid 
another 9/11, by saying we can no longer allow the CIA to use the 
acceptable techniques that are not published but that are very 
effective in assuring cooperation of high-value detainees whom we in 
this country capture through the CIA. Regrettably, while I urge my 
colleagues to support cloture, I cannot urge them to pass this measure.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Menendez). The Senator from Oregon.
  Mr. WYDEN. Mr. President, how much time do I have remaining at this 
  The PRESIDING OFFICER. The Senator has 3 minutes.
  Mr. WYDEN. Mr. President and colleagues, I ask unanimous consent to 
have my time--you said I have 3 minutes; I see my friend on the floor--
to have my time extended by 3 minutes so I would have a total of 6 
  The PRESIDING OFFICER. Is there objection?
  Mr. BOND. That is acceptable. No objection.
  Mr. President, I ask unanimous consent for 2 additional minutes after 
that, if that could be part of the request.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. WYDEN. Mr. President, thank you, and I thank my friend from 
Missouri as well.
  I especially want to express my appreciation for the outstanding work 
of Senator Feinstein, my seatmate on the Intelligence Committee, who I 
think understands it is possible in this country to fight terrorism 
ferociously and still be sensitive to American values and the rule of 
law. That is what I want to spend a few minutes talking about because I 
think under the approach developed by Senator Feinstein this 
legislation does that.
  I start by responding to the point my friend from Missouri has made 
about the most dangerous terrorists whom we are involved in 
interrogating. It seems to me these individuals are literally human 
ticking timebombs. They have information, for example, about operations 
we absolutely must have information on in order to protect the American 
people. But I have come to the conclusion it is possible to get this 
essential information we need from these human ticking timebombs--the 
time-sensitive threat information--without practices that violate our 
values and violate the rule of law.
  The reason I have come to that conclusion--and why I so strongly 
support what Senator Feinstein is doing--that is what some of our key 
officials tell us in the executive branch. For example, this week, I 
asked FBI Director Mueller about whether it was possible to use 
noncoercive techniques effectively in terms of getting this information 
from human ticking timebombs, and the Director said, to his credit, 
yes, it was possible to use noncoercive techniques to get the 
information necessary to protect the United States of America. The fact 
is, the military has said it as well.
  It is that core principle Senator Feinstein has picked up in her 
work. She believes, as I do, we will take no backseat to anyone in 
terms of fighting the terrorists relentlessly, but we can do it, as 
Director Mueller and the military have said, in line with the rule of 
law and in line with American values.
  With respect to the role of the military, they already abide by 
interrogation rules that are flexible and effective. They have been 
used by professional military interrogators with many years of 
experience, and they are clearly effective.
  Some have suggested, incorrectly in my view, that the military rules 
make better interrogators, follow the same rules as new recruits, but 
that is not right. The Army Field Manual actually makes it quite clear 
which techniques are authorized for all servicemembers and which 
require special permission to use.
  It is my view that our country has paid dearly for this secret 
interrogation program. My friend from Missouri has indicated, in his 
view, you cannot torture, but the case was strong for the Feinstein 
amendment a couple months ago, and it is even stronger today because 
General Hayden has said that in the past, waterboarding has been used 
and, in fact, my view is that the need for this legislation, just on 
the basis of the developments over the last few weeks, is even more 
important than it was because these practices that have come to light 
in the last few weeks have damaged our relations, damaged our moral 
  The tragic part of this, on the basis of the answers from Mr. Mueller 
in open session this week and the military is that these coercive 
techniques are not effective or even necessary. I share the view of my 
friend from Missouri about how important it is to get this time-
sensitive threat information.
  He and I have talked about this on many occasions. Of course, we 
cannot get into any of the matters that are classified. I share his 
view, but it is possible, I say to my colleagues, to get that 
information without breaching the values Americans hold dearly and the 
rule of law.
  I hope my colleagues will support the important work by the Senator 
from California. This is an issue we have looked at. It has had 
bipartisan support in the past.
  I am very appreciative of what Senator McCain, who knows a little bit 
about this, has had to say in the past about fighting terrorism 
relentlessly and protecting our values.
  I hope my colleagues will support the efforts of the Senator from 
California. If her case was strong several months ago, I think it is 
even stronger today on the basis of what we have learned in open 
  Mr. FEINGOLD. Mr. President, I support the intelligence authorization 
conference report, which is so important to Congress's efforts to 
conduct oversight of the intelligence community. The administration's 
illegal actions and its relentless efforts to obtain vast new 
eavesdropping authorities make oversight more important than ever. I 
particularly support the provision limiting interrogation techniques to 
those authorized by the Army Field Manual. I was a cosponsor of this 
amendment when it was offered in conference, and I am pleased that it 
has the support of bipartisan majorities of both the Senate and House 
Intelligence Committees. It represents, at long last, an important step 
toward bringing this administration into conformity with the law and 
with our national principles. It also represents a clear decision by 
the very Members of Congress who have been briefed on the CIA's 
interrogation program that the use of so-called enhanced interrogation 
techniques is not in our country's best interests.
  When the intelligence authorization bill was marked up by the 
committee in May, I made my position clear. I could not support the 
CIA's program on moral, legal, or national security grounds. When I was 
finally fully briefed on the program, it was clear that what was going 
on was profoundly wrong. It did not represent what we, as a nation, 
stand for, or what we are fighting for in this global struggle against 
al-Qaida. And it was not making our country any safer. I also concluded 
that if the American people knew what we in the Intelligence Committee 
knew, they would agree.
  The program also cannot stand up to any serious legal scrutiny. To 
take just one interrogation technique that the administration has 
acknowledged using in the past, waterboarding is torture, pure and 
simple. Everyone knows this. The rest of the world knows this. And, in 
every other context, our own government knows this. What Orwellian

[[Page S933]]

world do we inhabit in which the administration attempts to argue 
otherwise? And in what world does waterboarding not ``shock the 
conscience,'' the test required by the Detainee Treatment Act? I 
suspect that the administration knows full well that its legal 
justifications for the program are empty, and that is why the Attorney 
General has refused to tell Congress why he believes the program is 
legal and has instead referenced Justice Department analyses that have 
also been withheld from Congress.
  The CIA's interrogation policy is undermining our ability to fight 
al-Qaida. It has diminished our standing in the world, precisely when 
we should be providing global leadership against this growing threat. 
And it has denied us the moral high ground that is so critical if we 
are to reach out to parts of the world in which al-Qaida seeks to 
operate and recruit. By passing this conference report, we can begin to 
reverse this damage. We can also, finally, reassure our troops that 
torture is torture and that if you are captured by the enemy, the 
American government will not equivocate about the Geneva Conventions 
protections to which you are entitled.
  The administration has repeatedly attempted to sell this program by 
arguing that Members of Congress have been briefed, as if the mere fact 
of telling members of Congress means that the program must be legal. 
The President made this argument last fall. And the Director of the CIA 
did so again last week. But, what the administration always fails to 
mention is that as members of the Intelligence Committees have learned 
about the program, opposition has steadily increased. I have sent a 
classified letter detailing my serious concerns and so, too, have 
others. And now, we have bipartisan majorities of both intelligence 
committees saying ``enough is enough.''
  It has long been my position that interrogation techniques should be 
limited to those authorized by the Army Field Manual. This approach 
brings the CIA into conformity with the rules by which our men and 
women in uniform defend our nation and themselves. We fought Nazi 
Germany and the battles of the Cold War without resorting to 
government-sanctioned torture. We can surely defend America and defend 
our principles now. It is time to bring an end to this stain on our 
Nation, and to make the American people proud again.
  Mr. LEAHY. Mr. Presdient, this Report contains a provision that 
reinforces the prohibition against our Government engaging in torture. 
It expressly prohibits interrogation techniques that are not authorized 
by the United States Army Field Manual. By passing this bill, we will 
not only respond to this administration's ambiguity about torture by 
reiterating that it is off the table, we will be sending a message to 
the world that the United States is a country that does not tolerate 
torture. Whether waterboarding is torture and illegal does not depend 
on the circumstances.
  When it comes to our core values--that which makes our country great 
and defines America's place in the world--it does not depend on the 
circumstances. America, the great and good Nation that has been a 
beacon to the world on human rights, does not torture and should stand 
against torture.
  Let me be clear. This provision should not be necessary. 
Waterboarding, and other forms of torture, are already clearly illegal. 
Waterboarding has been recognized as torture for the last 500 years. 
President Teddy Roosevelt prosecuted American soldiers for 
waterboarding more than 100 years ago. We prosecuted Japanese soldiers 
for waterboarding Americans during World War II.
  I support this provision, despite the fact that there is no question 
that waterboarding is already illegal, because this administration has 
chosen to ignore the law. They have admitted they have engaged in 
waterboarding, otherwise known as water torture, and they refuse to say 
they will not do it again. The positions they have taken publicly on 
this subject are, I believe, so destructive to the core values of this 
Nation and our standing in the world, that this Congress should say, 
again--very clearly--that our Government is not permitted to engage in 
these shameful practices.
  Tragically, this administration has so twisted America's role, laws 
and values that our own State Department and high-ranking officials in 
our Department of Justice cannot say that waterboarding of an American 
is illegal. If an enemy decided to waterboard an American soldier, they 
can now quote statements from high officials in our own Government to 
support their argument that the technique breaks no laws. That is how 
low we have sunk.
  Our top military lawyers and our generals and admirals understand 
this issue. They have said consistently that waterboarding is torture 
and is illegal. They have told us again and again at hearings and in 
letters that intelligence gathered through cruel techniques like 
waterboarding is not reliable, and that our use and endorsement of 
these techniques puts our brave men and women serving in the armed 
forces at risk. That is why they have so explicitly prohibited such 
techniques in their own Army Field Manual, and it is an example that 
the rest of the Government should follow.
  So, despite the fact that the law is already clear, I urge the Senate 
to pass this provision, and I urge the President to promptly sign it 
into law, making the policy of our Nation clear. Our values cannot 
permit this to be an open question. We must put an end to the damage 
that this administration's positions have caused to our standing and 
the risks that they have taken with the safety of American citizens and 
soldiers around the world.
  Mr. LEVIN. Mr. President, I urge my colleagues to support the 
intelligence authorization conference report which includes a 
requirement that all Government agencies, including the CIA, comply 
with the Army Field Manual on Interrogations in the treatment and 
interrogation of detainees.
  The result will be a single standard of treatment for detainees, a 
standard consistent with American values and international standards. 
The Army Field Manual is consistent with our obligations under Common 
Article 3 of the Geneva Conventions, which prohibits subjecting 
detainees to ``cruel treatment and torture.'' This is the standard to 
which our soldiers are trained and which they live by.
  Consistent with this standard, the Army Field Manual specifically 
prohibits certain interrogation techniques. These include: forced 
nudity; ``waterboarding,'' that is, inducing the sensation of drowning; 
using military working dogs in interrogations; subjecting detainees to 
extreme temperatures; and mock executions.
  Unfortunately, the Bush administration has insisted that it reserves 
the right for the CIA to engage in certain ``enhanced interrogation 
techniques.'' It has been reported that these CIA techniques include 
``waterboarding.'' While this Justice Department continues to refuse to 
say one way or the other, let there be no doubt: waterboarding is 
  The Judge Advocates General of all four services have told us 
unequivocally that waterboarding is illegal.
  Requiring that all Government agencies comply with the standards of 
the Army Field Manual is not mushy intellectualism. It is hard-headed 
pragmatism. When we fail to live up to our own standards for humane 
treatment, we compromise our moral authority. Our security depends on 
the willingness of others to work with us and share information, 
information which could prevent the next attack. When we project moral 
hypocrisy, we lose the support of the world in the fight against the 
  Requiring a single standard for the treatment of detainees consistent 
with the Army Field Manual protects our men and women in uniform, 
should they be captured. It strengthens our hand in demanding that 
American prisoners be treated humanely, consistent with values embodied 
in the Field Manual.
  I urge my colleagues to support the intelligence authorization 
conference report with the provision that standards in the Army Field 
Manual for treatment of detainees will apply to all elements of the 
intelligence community.
  Mr. GRAHAM. Mr. President, I oppose the conference report on the 
intelligence authorization bill.
  I was troubled to learn the Intelligence Committees inserted in the 
conference report a provision to apply

[[Page S934]]

the Army Field Manual to the CIA program. This was done without any 
hearing or vote in either the House or the Senate.
  I strongly regret the committee chose this course of action since it 
denies the Senate the opportunity to fully appreciate the implications 
of such a restriction on the CIA program.
  It would be a colossal mistake for us to apply the Army Field Manual 
to the operations of the CIA. I have been briefed on the current CIA 
program to interrogate high value targets. It is aggressive, effective, 
lawful and in compliance with our legal obligations. Unfortunately, the 
intelligence authorization bill as currently drafted will destroy the 
CIA program.
  I believe in flexibility for the CIA program within the boundaries of 
current law. The CIA must have the ability to gather intelligence for 
the war on terror. In this new war, knowledge of the enemy and its plan 
is vitally important and the Army Field Manual provision will weaken 
our intelligence gathering operations.
  It is regrettable that the debate on the intelligence authorization 
bill has become a debate about waterboarding. Waterboarding is not part 
of the CIA program.
  However, waterboarding, under any circumstances, represents a clear 
violation of U.S. law and it was the clear intent of Congress to 
prohibit this practice. In 2005 and 2006, the Senate overwhelmingly and 
in a bipartisan fashion stood up against cruel, inhuman and degrading 
treatment and abided by the Supreme Court's decision in the Hamdan case 
that that those in our custody are protected by the Geneva Conventions. 
Indeed, senior administration officials assured us that the language 
contained in the Military Commissions Act clearly outlawed 
  Imagine my surprise when the Attorney General and Director of 
National Intelligence stated that waterboarding may be legal in certain 
circumstances. I cannot understand what legal reasoning could possibly 
lead them to this conclusion.
  Given the Attorney General's recognition during his nomination 
hearing that the President cannot waive congressionally mandated 
restrictions on interrogation techniques, including those included in 
the McCain amendment and the Military Commissions Act, it is 
inexplicable that the administration not only has failed to publicly 
declare waterboarding illegal, but has actually indicated that it may 
be legal.
  During the past several weeks we have heard many justifications for 
the administration's incomprehensible legal analysis. At the end of the 
day, it appears it is the view of the administration is that the ends 
justify the means and that adhering to our values, laws, and treaty 
obligations will weaken our nation. I strongly disagree.
  I support aggressive interrogation of detainees in the in the war on 
terror. And the CIA program is a vital component in securing our 
Nation. As we interrogate and detain those who are intent on 
destruction of our country and all those who fight for liberty, we can 
never forget that we are, first and foremost, Americans. The laws and 
values that have built our Nation are a source of strength, not 
weakness, and we will win the war on terror not in spite of devotion to 
our cherished values but because we have held fast to them.
  Mr. McCAIN. Mr. President, I oppose passage of the intelligence 
authorization conference report in its current form.
  During conference proceedings, conferees voted by a narrow margin to 
include a provision that would apply the Army Field Manual to the 
interrogation activities of the Central Intelligence Agency. The 
sponsors of that provision have stated that their goal is to ensure 
that detainees under American control are not subject to torture. I 
strongly share this goal, and believe that only by ensuring that the 
United States adheres to our international obligations and our deepest 
values can we maintain the moral credibility that is our greatest asset 
in the war on terror.
  That is why I fought for passage of the Detainee Treatment Act, DTA, 
which applied the Army Field Manual on interrogation to all military 
detainees and barred cruel, inhumane and degrading treatment of any 
detainee held by any agency. In 2006, I insisted that the Military 
Commissions Act, MCA, preserve the undiluted protections of Common 
Article 3 of the Geneva Conventions for our personnel in the field. And 
I have expressed repeatedly my view that the controversial technique 
known as ``waterboarding'' constitutes nothing less than illegal 
  Throughout these debates, I have said that it was not my intent to 
eliminate the CIA interrogation program, but rather to ensure that the 
techniques it employs are humane and do not include such extreme 
techniques as waterboarding. I said on the Senate floor during the 
debate over the Military Commissions Act, ``Let me state this flatly: 
it was never our purpose to prevent the CIA from detaining and 
interrogating terrorists. On the contrary, it is important to the war 
on terror that the CIA have the ability to do so. At the same time, the 
CIA's interrogation program has to abide by the rules, including the 
standards of the Detainee Treatment Act.'' This remains my view today.
  When, in 2005, the Congress voted to apply the field manual to the 
Department of Defense, it deliberately excluded the CIA. The field 
manual, a public document written for military use, is not always 
directly translatable to use by intelligence officers. In view of this, 
the legislation allowed the CIA to retain the capacity to employ 
alternative interrogation techniques. I would emphasize that the DTA 
permits the CIA to use different techniques than the military employs 
but that it is not intended to permit the CIA to use unduly coercive 
techniques--indeed, the same act prohibits the use of any cruel, 
inhumane, or degrading treatment.
  Similarly, as I stated after passage of the Military Commissions Act 
in 2006, nothing contained in that bill would require the closure of 
the CIA's detainee program; the only requirement was that any such 
program be in accordance with law and our treaty obligations, including 
Geneva Common Article 3.
  The conference report would go beyond any of the recent laws that I 
just mentioned--laws that were extensively debated and considered--by 
bringing the CIA under the Army Field Manual, extinguishing thereby the 
ability of that agency to employ any interrogation technique beyond 
those publicly listed and formulated for military use. I cannot support 
such a step because I have not been convinced that the Congress erred 
by deliberately excluding the CIA. I believe that our energies are 
better directed at ensuring that all techniques, whether used by the 
military or the CIA, are in full compliance with our international 
obligations and in accordance with our deepest values. What we need is 
not to tie the CIA to the Army Field Manual but rather to have a good 
faith interpretation of the statutes that guide what is permissible in 
the CIA program.
  This necessarily brings us to the question of waterboarding. 
Administration officials have stated in recent days that this technique 
is no longer in use, but they have declined to say that it is illegal 
under current law. I believe that it is clearly illegal and that we 
should publicly recognize this fact.
  In assessing the legality of waterboarding, the administration has 
chosen to apply a ``shocks the conscience'' analysis to its 
interpretation of the DTA. I stated during the passage of that law that 
a fair reading of the prohibition on cruel, inhumane, and degrading 
treatment outlaws waterboarding and other extreme techniques. It is, or 
should be, beyond dispute that waterboarding ``shocks the conscience.''
  It is also incontestable that waterboarding is outlawed by the 
Military Commissions Act, and it was the clear intent of Congress to 
prohibit the practice. The MCA enumerates grave breaches of Common 
Article 3 of the Geneva Conventions that constitute offenses under the 
War Crimes Act. Among these is an explicit prohibition on acts that 
inflict ``serious and non-transitory mental harm,'' which the MCA 
states ``need not be prolonged.'' Staging a mock execution by inducing 
the misperception of drowning is a clear violation of this standard. 
Indeed, during the negotiations, we were personally assured by 
administration officials that this language, which applies to all 
agencies of the U.S. Government, prohibited waterboarding.

[[Page S935]]

  It is unfortunate that the reluctance of officials to stand by this 
straightforward conclusion has produced in the Congress such 
frustration that we are today debating whether to apply a military 
field manual to nonmilitary intelligence activities. It would be far 
better, I believe, for the administration to state forthrightly what is 
clear in current law--that anyone who engages in waterboarding, on 
behalf of any U.S. Government agency, puts himself at risk of criminal 
prosecution and civil liability.
  We have come a long way in the fight against violent extremists, and 
the road to victory will be longer still. I support a robust offensive 
to wage and prevail in this struggle. But as we confront those 
committed to our destruction, it is vital that we never forget that we 
are, first and foremost, Americans. The laws and values that have built 
our Nation are a source of strength, not weakness, and we will win the 
war on terror not in spite of devotion to our cherished values but 
because we have held fast to them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I have enjoyed a good working relationship 
with my good friend, the Senator from Oregon, but, unfortunately, he 
did not listen to all the testimony we had from the leaders of the 
intelligence community.
  While he suggests we must fight terrorism and uphold our values, that 
is precisely what the CIA program is designed to do. Going forward, 
that is the program that will comport with all our values and our 
views, but it will be necessary.
  The CIA's enhanced interrogation techniques, on which he and I have 
had the opportunity to be briefed, are different from but not outside 
the scope of those included for use in the Army Field Manual.
  As I stated previously, the difference is that since they are not 
published, as the Army Field Manual is, they are not included in the 
al-Qaida handbook, they are not known to high-value targets with whom 
we may come in contact and be able to capture. We are talking only of a 
couple or three dozen at the most who require those techniques.
  He said the FBI Director does not use any harsh techniques. But if 
you recall, in answer to one of my questions describing one of the 
techniques one of the FBI interrogators used, it is not in the Army 
Field Manual. They use different techniques. They use different 
techniques, but they would be limited to the Army Field Manual.
  I suggest that when they are dealing with the criminals who may not 
be part of an organized terrorist conspiracy, they would not 
necessarily need to use them.
  General Hayden did say that waterboarding was used three times in the 
past. He has stated clearly it is not being used now. He stated the 
different enhanced interrogation techniques that are similar to, but 
different from, the Army Field Manual are only used in very limited 
circumstances, and those circumstances are the circumstances in which 
high-value detainees, with knowledge of the organization, the threats 
they pose, the plots they are planning to undertake, will not talk as 
long as they are subjected only to techniques they are familiar with in 
the Army Field Manual.
  Yes, the CIA, a couple, three dozen, somewhere in there, may have 
used enhanced interrogation techniques. Almost 10,000 valuable pieces 
of information have come from the CIA's program. We are safer in the 
United States because we have disrupted plots from Fort Dix to 
Lackawanna to Chicago to Torrance, CA--across this Nation--because of 
good intelligence--electronic surveillance and enhanced interrogation 
of high-value detainees.
  If we take this step in the Congress, I believe the President will 
veto it, as he should, because to say that the CIA should be fitted 
into the Army Field Manual standard is, I believe, a real threat to the 
effectiveness of our collection.
  Regrettably, discussions that imply on this floor that we continue to 
use or will continue to use any techniques that are cruel, inhumane, 
degrading or torture is not only simply wrong--flat wrong--but it is 
irresponsible because there are ears and eyes out there in the world, 
Al-Jazeera's and others, who will be picking them up, who will be 
transmitting them, and who will use that to tar the reputation of our 
intelligence collectors. They do not deserve that. Our security does 
not deserve that.
  Let's be clear, we are not talking about any cruel, inhumane, 
degrading or torture techniques. They are different than what is 
published in the Army Field Manual. That is the only reason they are 
  I regret the measure before us has this ban that will shut down the 
most valuable source of information our intelligence community has.
  I cannot urge my colleagues to support final passage of this 
conference report.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, I will use leader time to make a statement.
  We are going to vote in a few moments whether to invoke cloture on 
the intelligence authorization conference report. It is my 
understanding the minority is going to support us on this vote. I 
appreciate that very much.
  America has been without an intelligence authorization bill for 
almost 3 years. That is certainly long enough. The bill before us 
contains many important provisions that will strengthen our 
intelligence capabilities to fight terrorism and keep our country safe. 
The bill includes a number of provisions that will begin to restore 
proper congressional oversight and includes a provision sponsored by 
Senator Feinstein that will require all intelligence professionals in 
the U.S. Government to adhere to the interrogation standards included 
in the Army Field Manual.
  I appreciate the work of Senator Feinstein, who has dedicated much of 
her life to making our country safer. She spends untold hours, along 
with other Intelligence Committee members, in the Hart Building, 
listening to and evaluating what is happening in the intelligence 
community in our country and around the world. She is a good Senator, 
and her insight into what needs to be done in this instance speaks 
volumes. I underline and underscore my appreciation for her work. I 
urge all my colleagues to join with me in voting to support her in this 
effort. We will have that opportunity because cloture is going to be 
  It is my understanding a Republican or a Democrat will raise a point 
of order regarding the Feinstein amendment. The reason a Democrat would 
do it is to move this along, to get this over with. There is no reason 
to wait 30 hours postcloture, with everyone wondering when it will come 
up. We should do it, get it out of the way, work out some agreeable 
time with my colleagues, or we will go ahead and do it ourselves. There 
is an hour under the rule to debate the motion. There will be an effort 
to waive this point of order which, under the rules, requires 60 votes. 
Should Republicans force a vote to waive the point of order, I urge all 
my colleagues to waive the point of order.

  This is a question of moral authority. The Senate should stand as one 
to declare that America has one standard of interrogation. We are 
living as Americans in a world where everything we do is watched and 
watched very closely. We are asking other countries to follow our moral 
lead, to embrace our way of life, to aspire to the American standard of 
liberty. Yet I fear too often this administration's actions betray 
those goals.
  A couple weeks ago, Attorney General Mukasey refused to say that 
waterboarding is legal. What is waterboarding? We know what it is. It 
came from the Inquisition and King Ferdinand and Queen Isabella. That 
is where it originated. It is nothing new. It has been going on for 
centuries, and it is torture at its worst where you, in effect, drown 
somebody and revive them after they can no longer breathe.
  Last week, CIA Director Hayden publicly confirmed the United States 
had waterboarded individuals who were in our custody. The next day, the 
White House affirmatively declared waterboarding is legal and President 
Bush is free to authorize our intelligence agencies to resume its use.
  President Bush may not care much what we in Congress, Democrats or 
Republicans, think. For 6 years, he had carte blanche to do what he 

[[Page S936]]

The last year has not been that way. We are an equal branch of 
Government, and it is time we made him understand this.
  The administration can develop as many novel and convoluted legal 
theories as it wishes, but they cannot change the simple fact that has 
long been settled law, that waterboarding is torture and it is illegal. 
It is illegal in America, and it is illegal throughout the world. In 
decades past, America has prosecuted our enemies and even our own 
troops for waterboarding.
  This debate is not just about one kind of torture. It is not just 
about waterboarding. It is about ensuring that no form of torture, 
cruel or inhumane interrogation techniques that are illegal under the 
Geneva Conventions and prohibited by the Army Field Manual, are used. 
This includes beating prisoners. This includes sexually humiliating 
prisoners. It includes threatening them with dogs, depriving them of 
food and water, performing mock executions, putting electricity charges 
on various parts of their body, burning them.
  These techniques are repugnant. They are repugnant to every American. 
They fly in the face of our most basic values. They should be 
completely off limits to the U.S. Government. We have already seen the 
damage these torture efforts can cause. The world saw it in the Abu 
Ghraib prison situation. The revelation that American personnel had 
engaged in such terrible behavior, behavior we have always strongly 
condemned when used by others, caused tremendous damage to our Nation's 
moral authority. The recruiting opportunity it provided our terrorist 
enemies cannot be understated and cannot be undone.
  This is not a Senator saying this. Forty-three retired military 
leaders of the U.S. Armed Forces have written us a letter strongly 
stating that all U.S. personnel, military and civilian, should be held 
to a single standard. These honored leaders wrote:

       We believe it is vital to the safety of our men and women 
     in uniform that the United States not sanction the use of 
     interrogation methods it would find unacceptable if inflicted 
     by the enemy against captured Americans.

  They stated the interrogation methods in the Army Field Manual ``have 
proven effective'' and that they ``are sophisticated and flexible.''
  My friend, the ranking member of this committee, says these horrible 
techniques are necessary. They are not. They are not necessary. There 
are many things that have been used and can be used, as indicated by 
these 43 leading military experts. They say present interrogation 
techniques, setting these others aside, are sophisticated and flexible 
and they work. They explicitly reject the argument that the field 
manual is too simplistic for civilian interrogators.
  Our commander in Iraq, General Petraeus, a four-star general, whom we 
like to throw around here as knowing all and has done a wonderful job 
in Iraq, wrote an open letter to the troops in May. He had this to say:

       Some may argue that we would be more effective if we 
     sanctioned torture and other expedient methods to obtain 
     information from the enemy.

  He went on to say:

       They would be wrong. . . . [H]istory shows that [such 
     actions] are frequently neither useful nor necessary.
       Certainly, extreme physical action can make someone 
     ``talk;'' however, what the individual says may be of 
     questionable value.

  We all know that.

       In fact, our experience in applying the interrogation 
     standards laid out in the Army Field Manual . . . shows that 
     the techniques in the manual work effectively and humanely in 
     eliciting information from detainees.

  So says General Petraeus.
  Mr. President, just yesterday, a bipartisan group of foreign policy 
experts joined to call upon Congress to endorse the application of the 
Army Field Manual standards across all U.S. agencies.
  The group included, but was not limited to, the Chairman and Vice 
Chairman of the 9/11 Commission, Governor Keane and Congressman 
Hamilton; two former Secretaries of State; three former national 
security advisers; a former Secretary of the Navy; and other highly 
regarded officials from both parties.
  The Bush administration's continued insistence on its right to use 
abusive techniques gives license to our enemies abroad, puts at risk 
our soldiers and citizens who may fall into enemy hands, and serves as 
an ongoing recruiting tool for militant extremists.
  Meanwhile, the widespread belief that our country uses abusive 
interrogation methods has weakened our ability to create coalitions of 
our allies to fight our enemies because other countries have at times 
refused to join us.
  Mr. President, many of us thought the Congress had addressed the 
issue of torture once and for all when we overwhelmingly passed the 
McCain amendment in 2005.
  But President Bush immediately issued a signing statement casting 
doubt on his willingness to enforce a ban on torture, and his 
administration has worked ever since to undermine what Senator McCain 
offered and was passed here overwhelmingly.
  This vote today gives Congress the chance to show President Bush that 
we meant what we said 3 years ago when we passed the McCain amendment.
  Today, we have an opportunity to begin to rebuild America's precious 
and diminished moral authority. Today, we can strengthen the war on 
  I urge us to stand together to support cloture and, if necessary, to 
vote to waive the point of order on the Feinstein amendment, which is 
part of the very good conference report dealing with intelligence 
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, how much time do I have?
  The PRESIDING OFFICER. The Senator has 1 minute 23 seconds.
  Mr. BOND. Mr. President, regrettably, the record doesn't meet the 
issue before us. Waterboarding is not an issue here. Waterboarding is 
not banned. The techniques that are being used are in compliance with 
all of the convention. They are not torture, cruel, or humanly 
  The only reason to have a separate program, which Congress recognized 
in the 2005 Military Detainee Act, for having a different standard was 
for a few high-value targets who needed different techniques--not more 
harsh techniques but techniques that are less severe than the training 
techniques we put our enlisted Marines, SEALs, Special Forces, and the 
pilots through. If they are not published in the Army Field Manual, 
they don't know about them, and that leads them to cooperate.
  The most successful intelligence collection program that the CIA has 
does not involve torture or any kind of unlawful conduct. It is 
unfortunate--and I regret to say very harmful--to the United States to 
suggest that it does. I strongly believe we cannot afford to shut down 
the CIA's interrogation of high-value detainees.
  I yield the floor.
  Mr. REID. Mr. President, don't you think this great country of ours--
the moral authority of the world--can continue our work, our 
interrogation of prisoners, both military and civilian, by not beating 
them, sexually humiliating them, bringing dogs and having dogs chomp at 
them, like at Abu Ghraib? Do we need to deprive them of food and water, 
provide mock executions, shock them with electricity, as was done 
during the first gulf war to American prisoners who were captured by 
the Iraqis, one of whom was from Nevada? We don't need to do that. We 
don't need to burn them. We don't need to cause them other types of 
pain that are listed in field manuals.
  Mr. President, we have 43 leading military experts who have told us 
that. We have had the two people who led the 9/11 Commission who have 
told us that you don't need that, along with former Secretaries of 
State and national security advisers to various Presidents, Democrats 
and Republicans.
  America is better than this. We don't need to do this. The CIA can 
get along without having to do all these terrible things. We are told 
by General Petraeus that these techniques don't work anyway and that 
any of the information you get is unreliable. Listen to General 
Petraeus. Let's do the right thing on this issue when it comes up, Mr. 


[Congressional Record: February 13, 2008 (Senate)]
[Page S937-S957]


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will state.
  The bill clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the conference 
     report to accompany H.R. 2082, Intelligence Authorization 
          John D. Rockefeller IV, Dianne Feinstein, Kent Conrad, 
           E. Benjamin Nelson, Russell D. Feingold, Barbara A. 
           Mikulski, Ron Wyden, Ken Salazar, Mark Pryor, Patty 
           Murray, Benjamin L. Cardin, Frank R. Lautenberg, Jack 
           Reed, Sheldon Whitehouse, Harry Reid, Carl Levin, Bill 

  The PRESIDING OFFICER. The question is, Is it the sense of the Senate 
that debate on the conference report to accompany H.R. 2082, the 
Intelligence Authorization Act, shall be brought to a close?
  The yeas and nays are mandatory under the rule. The clerk will call 
the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from Missouri (Mrs. McCaskill), and the Senator from 
Illinois (Mr. Obama) are necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from South Carolina (Mr. Graham).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 92, nays 4, as follows:

                      [Rollcall Vote No. 21 Leg.]


     Nelson (FL)
     Nelson (NE)



                             NOT VOTING--4

  The motion was agreed to.
  The PRESIDING OFFICER. On this vote, the yeas are 92, the nays are 4. 
Three-fifths of the Senators duly chosen and sworn having voted in the 
affirmative, the motion is agreed to.
  Mr. DURBIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NELSON of Florida. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Tester). Without objection, it is so 
  Mr. NELSON of Florida. Mr. President, while we are waiting here for 
some of the determination of a time agreement with regards to the 
consideration of the conference report, I want to go ahead and lend my 
support and acknowledge to the rest of the Senate that this is a bill 
that is very necessary to pass. Because, what this bill does, by 
authorizing the activities of the intelligence community, it continues 
to make the oversight function of the Congress--in particular, the 
Senate and the House Intelligence Committees--poignant and relevant to 
a community that is not accustomed to having oversight.
  Our committee leadership, chairman and vice chairman, Senators 
Rockefeller and Bond, as we say in the South, they have cracked the 
whip with the intelligence community to get them to realize that this 
is a constitutional government of shared powers; that the executive 
branch doesn't just run the show--particularly on something as 
sensitive as the collection of intelligence. Rather, it needs to be 
done within the law, and one of the ways of ensuring that is through 
the sharing of powers between two different branches of Government who 
have checks and balances upon each other. We in the legislative branch 
oversee the activities of the executive branch--in this case, all of 
the intelligence community and their activities, which are absolutely 
essential to the protection of our country. This conference report is a 
very important bipartisan document, which increases the accountability 
in the intelligence community, and it authorizes dozens of critical 
intelligence programs to keep us safe every day.
  The conference report includes a new, strong inspector general in the 
Office of the Director of National Intelligence. Inspectors general are 
increasingly important in the intelligence community, where billions of 
dollars are spent outside of public view. Our committee, as well as the 
American public, has to rely on the inspector general as an important 
part of the oversight of the intelligence community.
  As we look back, several years ago, we completely reorganized the 
intelligence community. A Director of National Intelligence was set up 
to integrate the disparate elements of the intelligence community. But 
there is a lot more that needs to be done, and a strong inspector 
general at the DNI is another step in the right direction.
  The conference report also includes a provision that makes the 
Director of the NRO--the National Reconnaissance Office--and the NSA--
the National Security Agency--subject to Senate confirmation. Now, why 
is that important? That is important because, again, it is part of the 
checks and balances of the separate branches of Government. Both of 
these agencies, outside of the public view because of the top-secret 
nature of this work, oversee large programs that cost vast amounts of 
money, and not every program has been a success. So by having the 
confirmations of the Directors of the NRO and the NSA come to the 
Senate, it improves that accountability and responsiveness to the 
legislative branch of Government.
  The authorization bill also requires an assessment of the 
vulnerability of the intelligence community's major acquisition 
programs. We have to assess that the program is going to stay on track 
and that it is not going off the rails with regard to cost. We are 
talking about billions of dollars on some of these programs. By keeping 
them on track, by knowing what to anticipate, it is much easier to plan 
  This bill also provides an annual reporting system which will help us 
keep in focus, curbing these cost overruns and these schedule delays. 
If you don't do that, things are going to get out of control. As the 
intelligence community continues to be more and more sophisticated 
because of the technical means it employs, it is more and more 
important that our oversight tools be in place and effective.
  Now, that is enough alone to pass this bill, but we have an area of 
disagreement coming up. We are expecting the minority to offer a point 
of order that would remove a provision in the conference report. This 
provision requires the Army Field Manual to be used as the standard for 
interrogation methods. This Army Field Manual was released over a year 
ago. It specifically prohibits cruel, inhuman, and degrading treatment.
  There are eight techniques in the Army Field Manual that are 
specifically prohibited from being used in conjunction with 
intelligence interrogations: forcing the detainee to be naked, perform 
sexual acts, or pose in a sexual manner; placing hoods or sacks over 
the head of a detainee; using

[[Page S938]]

duct tape on the eyes; applying beatings, electric shock, burns, or 
other forms of physical pain. The fourth is waterboarding. That is 
prohibited. The fifth is using military working dogs. The sixth is 
inducing hypothermia or heat energy. The seventh is conducting a mock 
execution. The eighth is depriving the detainee of necessary food, 
water, and medical care.
  Now, haven't I just described what America is all about? Is that not 
the standard by which we, as the leader of the world, have to announce 
to the world what we believe in and how we are going to conduct 
ourselves, and that is how we are going to conduct ourselves not only 
among our own people and how we treat them but how we are going to 
treat others?
  The manual provides that three interrogation techniques may only be 
used with higher level approval. The good cop-bad cop interrogation 
tactic; the false flag tactic, where a detainee is made to believe he 
is being held by another country; or separation, by which the detainee 
is separated so he can't coordinate with other detainees on his story--
those techniques can be used, but it has to be approved at a higher 
  Mr. President, there is something that is going to worry everybody, 
and it has worried this Senator personally and as a member of the 
Intelligence Committee. What if all of this doesn't work and the 
country is in imminent peril? Well, along with the standards we are 
going to set, which I hope we are going to pass into law--these 
standards in the Army Field Manual which will state clearly what the 
standards are for our country and how we are going to conduct 
ourselves--there is always the constitutional authority under article 
  As Commander in Chief, the President can act when the country is in 
immediate peril. And if he so chooses, as Commander in Chief, to 
authorize activities other than what the Army Field Manual allows, then 
the President would be accountable directly to the American people 
under the circumstances with which he invoked that article II authority 
as Commander in Chief.
  What we are saying today does not relate to the President's article 
II power. We are setting statutory power. It is important that we tell 
the rest of the world the standards of how we interrogate detainees. We 
are putting these standards into law and we will ensure that these 
techniques are in compliance with the humane treatment that we would 
expect and hope our Americans would also receive.
  I think there should be no confusion. We have an obligation to set 
these standards into law. If that dire emergency ever occurred in the 
future, the President has his own authority under article II of the 
Constitution. But that is not the question here today before us. The 
question is: What do we set as the standard of interrogation, and that 
has to be that there is no torture allowed under this statutory law.
  Therefore, when the point of order is raised that would take the Army 
Field Manual standards for interrogation techniques out of the 
conference report, I urge the Senators not to take this provision out 
of this important intelligence reauthorization bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, the Senate will soon vote on the 
intelligence authorization bill, which contains a provision requiring 
all U.S. governmental agencies, including the CIA, to comply with the 
Army Field Manual's prohibition on torture. This reform is urgently 
needed. I commend the Intelligence Committee for adopting this 
provision. Its enactment will ensure that the Government uses only 
interrogation techniques that are lawful and those provisions should be 
  In the Detainee Treatment Act passed in 2005, Congress attempted to 
reaffirm our commitment to the basic rights enshrined in the Geneva 
Conventions and restore America's standing in the eyes of the world as 
a nation that treats detainees with dignity and respect.
  These rights reflect the values we cherish as a free society, and 
also protects the lives of our service men and women. Today, however, 
we know that the 2005 act has fallen short of our goals. By not 
explicitly applying the Army Field Manual standards to all Government 
agencies, we have left open a loophole that the Bush administration 
promptly drove a Mack truck through.
  The so-called enhanced interrogation program carried out in secret 
sites became an international scandal and a profound stain on America 
in the eyes of the world. The administration issued an executive order 
last year to try to minimize the outcry, but the order failed to 
renounce abuses such as waterboarding, mock executions, use of attack 
dogs, beatings, and electric shocks.
  The disclosure of secret opinions by the Office of Legal Counsel gave 
further evidence that the administration had interpreted the Detainee 
Treatment Act and other antitorture laws in an unacceptable, narrow 
  Attorney General Mukasey's refusal at his confirmation hearings to 
say whether waterboarding is illegal gave us even more reason for 
concern. The outrages do not end there. Two months ago, the New York 
Times reported that in 2005 the CIA had destroyed at least two 
videotapes documenting the use of abusive techniques on detainees in 
its custody. These videotapes have been withheld from Federal courts, 
the 9/11 Commission, and congressional committees. Two weeks ago in his 
testimony before the Senate Judiciary Committee, the Attorney General 
flat out refused to consider investigating possible past acts of 
torture or to brief congressional committees on why he believed the 
CIA's enhanced interrogation program is lawful.
  Last week, we received official confirmation that the CIA had used 
waterboarding on three detainees. At the same time, the White House 
made the reckless claim that waterboarding is legal, and that the 
President can authorize its use under certain circumstances.
  The White House position is directly contrary to the findings of 
courts, military tribunals, and legal experts that waterboarding is a 
violation of U.S. law and a crime against humanity.
  In the words of a former master instructor for U.S. Navy SEALs:

       Waterboarding is slow motion suffocation with enough time 
     to contemplate the inevitability of blackout and expiration. 
     Usually the person goes into hysterics on the board. For the 
     uninitiated it is horrifying to watch and if it goes wrong, 
     it can lead straight to terminal hypoxia. When done right it 
     is controlled death.

  Waterboarding has a long and brutal history. It is an ancient 
technique of tyrants. In the 15th and 16th centuries, it was used in 
the Spanish Inquisition. In the 19th century, it was used against 
slaves in this country. In World War II, it was used against our troops 
by Japan. We prosecuted Japanese officers for using it and sent them to 
years and years of jail for following that procedure.
  In the 1970s, it was used against political opponents by the Khmer 
Rouge in Cambodia and military dictatorships in Chile and Argentina. 
Today it is being used against pro-democracy activists in Burma. That 
is the company we keep when we fail to reject waterboarding.
  In fact, Attorney General Mukasey could not even bring himself to 
reject the legal reasoning behind the infamous Bybee torture memo of 
the Office of Legal Counsel which stated that physical pain amounts to 
torture only if it is:

       equivalent in intensity to the pain accompanying serious 
     physical injury, such as organ failure, impairment of bodily 
     function, or even death.

  According to that memo, anything that fell short of that standard 
would not be torture. This Bybee memorandum was in effect for 2\1/2\ 
years before it was ever effectively suspended. It was suspended then 
by Attorney General Alberto Gonzales for the Judiciary Committee, quite 
frankly, in order that his nomination could be favorably considered.
  Included in the Bybee memoranda was a provision that was an absolute 
defense for any of those who would be involved in this kind of torture, 
unless prosecutors could prove a specific intent that the purpose of 
the torture was to harm the individuals rather than to gain 
information, therefore effectively giving carte blanche to any of those 
who would be involved in torture.

  When Attorney General Gonzales appeared before the Judiciary 

[[Page S939]]

and effectively repealed the Bybee memoranda, he did so for the 
Department of Defense but not for the Central Intelligence Agency, even 
at that time a clear indication of what the administration was 
intending to do with the Central Intelligence Agency. It should not be 
any surprise to anyone that this has been ongoing and continuous.
  According to that memo, again the Bybee memorandum, anything that 
fell short of this standard would not be torture. CIA interrogators 
called the memo their ``golden shield'' because it allowed them to use 
virtually any interrogation method they wanted.
  When the memo--this is the Bybee memo--became public, its flaws were 
obvious. Dean Harold Koh of Yale Law School testified that in his 
professional opinion as a law professor and a law dean, the Bybee 
memoranda is ``perhaps the most clearly legal erroneous opinion I have 
ever read [because of all of the previous statutes and laws that have 
been passed to prohibit torture by the Congress of the United States 
and those initiated and supported by Republican presidents, by Ronald 
Reagan, as well as Democratic presidents''.]
  This was not a partisan series of statements about what the United 
States position has historically been. The Bush administration was 
embarrassed into withdrawing the memo. To this day, no one in the 
administration has repudiated its content. The torture memo continues 
to haunt this country. I have asked the Attorney General several times 
to reject its legal reasoning, but he continues to refuse to do so. The 
only solution is for Congress to apply the Army Field Manual's 
standards to the entire Government. There has rarely if ever been a 
greater need to restore the rule of law to America's interrogation 
  The field manual represents our best effort to develop the most 
effective interrogation standards. The manual clearly states that: Use 
of torture is not only illegal but also it is a poor technique that 
yields unreliable results, may damage subsequent collection efforts, 
and can induce the source to say what he thinks the interrogator wants 
to hear.
  We have on trial in military courts six of those who are going to be 
tried because of 9/11. There is no question there is going to be a 
whole series of appeals because of the use of various techniques 
against them. It may very well be that some turn out--because of the 
violations of basic and fundamental, some constitutional rights, there 
will be a question about what the outcome is going to be with regard to 
those individuals.
  Why not get it right from the start? The manual gives our 
interrogators great flexibility, provides all the techniques necessary 
to effectively question detainees, but it makes clear that illegal and 
inhumane methods are not permitted.
  In a letter to our troops dated May 7, 2007, General Petraeus stated:

       Our experience in applying the interrogation standards laid 
     out in the Army Field Manual . . . shows that the techniques 
     in the Manual work effectively and humanely in eliciting the 
     information from detainees.

  Applying the field manual's standards throughout our Government will 
move us closer to repairing the damage to our international reputation 
in the wake of the Abu Ghraib scandal. It will once again commit the 
United States to be the world's beacon for human rights and fair 
treatment. It will improve the quality of intelligence gathering, and 
protect own personnel from facing punishment, condemnation, or 
mistreatment anywhere in the world. It will make us more, not less, 
  Torture is a defining issue. It is clear that under the Bush 
administration we have lost our way. By applying the field manual 
standards to all U.S. Government interrogations, Congress will bring 
America back from the brink, back to our values, back to basic decency, 
back to the rule of law.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, today's debate goes to the heart of 
what our country is and what we wish it to be, by asking this: Will the 
United States of America condone torture? Is there, at America's heart, 
a heart of darkness? This authorization bill for America's intelligence 
community offers us the opportunity to answer that question decisively. 
It contains provisions for which I have fought from my initial 
amendment in committee, and which I am proud to support today, that 
would prohibit members of the intelligence community from using 
interrogation techniques beyond those authorized in the Army Field 
  By adopting this amendment, the two Intelligence Committees, 
Congress's experts on these matters, have sent a clear signal to 
America and to the world that in this country the rule of law is our 
strongest bulwark against those who would do us harm.
  I hope that today the Senate will have the confidence in our values 
to reaffirm that signal and pass this legislation with the Army Field 
Manual provision included.
  Over the past several months, the American people have become all too 
familiar with the issue of torture. I want to discuss one technique in 
particular today, waterboarding, or water torture, or the water cure, 
which dates back to the Spanish Inquisition of the 14th century.
  Waterboarding was a favorite of torturers, because its terrible 
effects could be generated without the visible damage accompanying the 
rack, the screw, the iron, the whip, or the gouge. It could be done 
over and over.

  In the 20th century, waterboarding was done in the Philippines, where 
colonizers wielded it against indigenous peoples. It has been used in 
Sri Lanka, in Tunisia, by the Khmer Rouge in Cambodia--we are in the 
tradition of Pol Pot--by the French in Algeria, by the Japanese in 
World War II, and by military dictatorships in Latin America. The 
technique ordinarily involves strapping a captive in a reclining 
position, heels above head, putting a cloth over his face and pouring 
water over the cloth to create the feeling of suffocation and drowning. 
It leaves no marks on the body, but it causes extreme physical and 
psychological suffering.
  A French journalist, Henri Alleg, was subjected to this method of 
interrogation during the struggle for Algerian independence. He wrote 
in his 1958 book ``The Question'':

       I tried, by contracting my throat, to take in as little 
     water as possible and to resist suffocation by keeping air in 
     my lungs for as long as I could. But I couldn't hold on for 
     more than a few moments. I had the impression of drowning, 
     and a terrible agony, that of death itself, took possession 
     of me.

  Waterboarding is associated with criminal, tyrant, and repressive 
regimes, with rulers who sought from their captives not information but 
propaganda, meant for broadcast to friends or enemies whether true or 
false. Regimes that employed the technique of waterboarding generally 
did not do so to obtain information; rather, to obtain compliance. But 
no matter the purpose or the reason, its use was and is indefensible.
  Water torture was not unknown to Americans. A 1953 article in the New 
York Times quotes LTC William Harrison of the U.S. Air Force, who said 
he was ``tortured with the `water treatment' by Communist North 
Koreans.'' In testimony before a U.S. military tribunal, CAPT Chase Jay 
Nielsen described being waterboarded by his Japanese captors following 
the 1942 Doolittle raid by U.S. aviators. From all this, America's 
military knew there was a chance our servicemen and servicewomen would 
be subjected to water torture.
  The Defense Department established the SERE program--survive, evade, 
resist, and escape--to train select military personnel who are at high 
risk of capture by enemy forces or isolation within enemy territory. 
The program has also subjected certain service personnel to extreme 
interrogation techniques, including waterboarding, in an effort to 
prepare them for the worst--the possibility of capture and torture at 
the hands of a depraved or tyrannical enemy.
  According to Malcolm Nance, a former master instructor and chief of 
training, at the U.S. Navy SERE school in San Diego:

       [O]ur training was designed to show how an evil 
     totalitarian enemy would use torture at the slightest whim.

  Those who have experienced this technique, even at the hands of their 
own brothers in arms, are unequivocal about its effect. Former Deputy 
Secretary of State Richard Armitage, who underwent waterboarding during 
SERE training, said this:

[[Page S940]]

       As a human being, fear and helplessness are pretty 
     overwhelming. . . . this is not a discussion that Americans 
     should even be having. It is torture.

  Our colleague in this body, Senator John McCain, has said the same. 
Yet it was to this relic of the dungeons of the inquisition, of the 
Cambodian killing fields, and of the huntas of the Southern Hemisphere 
that the Bush administration turned for guidance. I will speak later 
about how our Department of Justice came to approve this. But for now, 
we know that last week, in a stunning public admission, the CIA 
Director General, Michael Hayden, admitted the United States 
waterboarded three detainees following the September 11 attacks. The 
virus of waterboarding had traveled from tyrant regimes, through the 
SERE program, and infected America's body politic.
  Retired BG David Irvin, of the U.S. Army Reserve, a former 
intelligence officer and instructor in interrogation, and Joe Navarro, 
interrogator with the FBI, recently wrote:

       [T]here is considerable evidence that the CIA had to 
     scramble after 9/11 to develop an interrogation program and 
     turned to individuals with no professional experience in the 
     field. . . . Given the crisis atmosphere of the day, it is 
     all too easy to believe the comment of an intelligence 
     insider who said of the secret program to detain and 
     interrogate al Qaeda suspects that ``quality control went out 
     the window.''

  Don't let us jump out the window after it.
  America's military is expressly prohibited from using torture because 
intelligence experts in our Armed Forces know torture is an ineffective 
method of obtaining actionable intelligence. Again, I will speak later 
about the false assertion that this program was designed for 18-year-
old novices. Some of the most sophisticated intelligence interrogations 
are done by our military after intense training. Our military adheres 
to the Army Field Manual on Human Intelligence Collector Operations. At 
a hearing before the Senate Select Committee on Intelligence, on which 
I serve, I asked COL Steven Kleinman, a 22-year veteran of 
interrogations, a senior intelligence officer in the U.S. Air Force 
Reserves, and a veteran interrogator with plenty of experience overseas 
in the Middle East, about his experience conducting interrogations 
using the Army Field Manual.
  He said:

       I am not at all limited by the Army Field Manual in terms 
     of what I need to do to generate useful information. . . . 
     I've never felt any necessity or operational requirement to 
     bring physical, psychological or emotional pressure on a 
     source to win their cooperation.

  A significant number of retired military leaders have written to the 
chairman and vice chairman of the Intelligence Committee saying:

       interrogation methods authorized by the field manual have 
     proven effective in eliciting vital intelligence from 
     dangerous enemy prisoners. . . . And the principles reflected 
     in the Field Manual are values that no U.S. agency should 

  And GEN David Petraeus, commander of U.S. forces serving in Iraq, 
reiterated this point when he wrote last year to every soldier serving 
in the Iraq theater:

       Some may argue that we would be more effective if we 
     sanctioned torture or other expedient methods to obtain 
     information from the enemy. They would be wrong. Beyond the 
     basic fact that such actions are illegal, history shows that 
     they also are frequently neither useful nor necessary. . . . 
     our experience in applying the interrogation standards 
     laid out in the Army Field Manual on Human Intelligence 
     Collector Operations that was published last year shows 
     that the techniques in the manual work effectively and 
     humanely in eliciting information from detainees.

  The cochairs of the 9/11 Commission emphatically agree. On Monday, 
the chairmen, together with two former Secretaries of State, three 
former National Security Advisors, and other national security experts, 
wrote that ``[c]ruel, inhuman and degrading treatment of prisoners 
under American control makes us less safe, violates our national 
values, and damages America's reputation in the world.''
  Torture is ineffective. It is wrong. It is dangerous to all those who 
serve the United States of America in harm's way. It should never, ever 
be used by any person who represents the United States of America or 
any agency that flies the American flag.
  I was proud last July to introduce an amendment in the Intelligence 
Committee that would write this rule into law. When that effort did not 
succeed, I was proud again last winter to support Senator Feinstein's 
amendment in conference.
  I call on all my colleagues to support this legislation. We can 
journey no longer down Winston Churchill's stairway which leads to a 
dark gulf. As Winston Churchill said:

       It is a fine broad stairway at the beginning, but after a 
     bit, the carpet ends. A little farther on, there are only 
     flagstones, and a little farther on still these break beneath 
     your feet.

  The United States of America--the city on a hill, the light of the 
world, the promise of generations--must not ever condone torture. 
Torture breaks that promise. Torture extinguishes that light. Torture 
darkens that city. I hope by our actions today, we in the Senate will 
help turn this country back toward our centuries-old promise. I hope we 
will turn toward the light.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I almost have no words to praise the 
Senator from Rhode Island for the eloquence and strength of his speech, 
which was not only grounded in very deep substance but was delivered 
with elegiac nature that both culled the human spirit as well as 
grounded the futility of torture. I congratulate him.
  I also rise strongly in support of section 327 of the intelligence 
authorization conference report. I recognize it will be controversial. 
I don't care. It is important that some background on this section be 
provided. Some of it has been this morning. During the conference on 
the authorization bill, the conferees adopted an amendment that would 
require the intelligence community to conduct its interrogation in 
accordance with the terms of the U.S. Army Field Manual. The full 
membership of the House Intelligence Committee and the Senate 
Intelligence Committee served on the conference committee. So it was a 
majority of those two committees that came to that conclusion.
  Section 327 of the intelligence authorization conference report 
directly parallels the provision in the Detainee Treatment Act that 
forbids subjecting anyone in Department of Defense custody to any 
treatment or technique of interrogation not authorized by and listed in 
the U.S. Army Field Manual on intelligence interrogation. Section 327 
applies these same restrictions to the intelligence community at large.
  The effect of section 327 is, therefore, to require all of the U.S. 
Government operate their interrogation programs under a single 
interrogation standard, the standard set by the U.S. military. Adopting 
the military standard for interrogation as the universal standard makes 
sense, and I hope some of my colleagues are listening. It is the 
members of the military who most benefit from reciprocal obligations of 
the Geneva Convention requiring humane treatment of prisoners and who 
are most likely to be subjected to retaliation based on the failure of 
the United States to follow those obligations. That statement is 
frequently made, and then it is frequently absorbed and discarded. 
Think about it. Retaliation is the way of the world, and it will be no 
different here. What we do to others, they will do to us.
  The U.S. Army Field Manual on interrogation was revised in September 
2006 after significant interagency review. This included a review by 
the Central Intelligence Agency. By providing a number of approach 
strategies such as the incentive approach, emotional approach, and the 
Mutt-and-Jeff approach, the Army Field Manual gives interrogators 
significant flexibility to shape the interrogation. It doesn't 
delineate exactly how. It gives them a lot of flexibility.
  The Army Field Manual also explicitly prohibits, as we know, 
waterboarding, forcing detainees to be naked, inducing hypothermia or 
heat injury or subjecting a detainee to beatings, as well as a number 
of other things. All this raises the question at the heart of this 
debate: Should the Central Intelligence Agency, the well-known CIA, be 
allowed to use coercive interrogation techniques to obtain information 
from al-Qaida detainees?
  This debate is about more than legality. It is about more than 

[[Page S941]]

that the intelligence community has the tools it needs to protect us. 
It is also about morality, the way we see ourselves, who we are, who we 
want to be as a nation, and what we represent to the world. What we 
represent to the world has a direct effect on the number of people who 
determine they want to join the jihadists movement and come after us.
  It is a decision that can and should be left to Members of Congress 
who are the representatives of the American people. In the early period 
of the CIA program's existence, I repeatedly called--and I am extremely 
frustrated by this, extremely frustrated--for an Intelligence Committee 
investigation into the Agency's detention interrogation practices.
  That was in the committee. I was, at that point, vice chairman and 
could not control, obviously, the vote. So on vote margins of one, we 
lost. We could not get anything going in the way of studying the 
subject and investigation of the subject. Then I moved to the floor and 
once again could not get the committee to investigate the subject. I 
also tried to have the CIA brief all the members of the committee on 
the interrogation program. That also did not happen.
  I recognized that assessing the need for the CIA's enhanced 
interrogation techniques, the intelligence obtained from detainees, and 
the importance of maintaining America's position in the world were 
issues that we in Congress needed to debate and discuss, and, 
unfortunately, we did not.
  About a year and a half ago, the full membership of the Intelligence 
Committee was finally provided information about CIA's interrogation 
program. It is the whole point of oversight. They are not accustomed to 
us doing that--not just the CIA, but the intelligence community--having 
representatives of the people asking questions. They think it is an 
elite field for them. They are proud of their traditions. They fight 
among themselves, and they do not build into their thinking what it is 
that the Congress might feel about this.
  About a year and a half ago, as I say, we were brought into their 
interrogation program. Since that time, our committee has held multiple 
hearings on that subject. We have done our best to learn as much as 
possible about the basis for and the consequences of CIA's program, as 
well as interrogation in more general terms.
  These briefings and hearings have led the committee to conclude that 
all agencies of the U.S. Government should be required to comply with a 
single standard for interrogation of detainees. The Army Field Manual 
provides a standard of humane treatment that indisputably complies with 
our international obligations under the Geneva Conventions, as well as 
with U.S. laws.
  The CIA has briefed the committee on several occasions about its 
interrogation of al-Qaida detainees. The CIA has described the basis 
for the program, and why they think it should be allowed to continue.
  Although the CIA has described the information obtained from its 
program, I have heard nothing--nothing--that leads me to believe that 
information obtained from interrogation using coercive interrogation 
techniques has prevented an imminent terrorist attack.
  This is true for a very simple reason. Once a terrorist is captured, 
his fellow plotters, understandably, change their plans. In other 
words, I do not believe the CIA has ever been in an actual ``ticking 
timebomb'' scenario, nor do I think it is ever likely to be placed in 
that situation. That does not mean the information obtained from the 
program has not been valuable. Of course information about al-Qaida is 
exceedingly valuable from an intelligence standpoint. It is bits and 
pieces of information that allow our intelligence professionals to 
assess al-Qaida's capabilities and to determine how best to protect 
ourselves as a nation. But, more to the point, I have not heard nor 
have I seen any evidence that supports the intelligence community's 
claim that using enhanced interrogation techniques is the only way to 
obtain this type of intelligence; that is, to get what they need to 
  After 9/11, the intelligence community decided that coercive 
interrogation tactics were the best way to obtain intelligence. It was 
perhaps a little bit understandable then in terms of the general panic 
of the Nation. But the intelligence community--I say this gravely--did 
not take the time to research what interrogation techniques might be 
most effective to come to this conclusion, nor did they reach out to 
the interrogators with experience, particularly those questioning 
Islamic terrorists. They did not do that. They were going to do it 
their way. They simply assumed--and they simply still assume--that 
coercive interrogation techniques were the best way to obtain 
  To this Senator, this was clearly a flawed approach. But at this 
point, the administration is so invested in the use of these techniques 
they can no longer psychologically or otherwise step back to assess 
what methods are most effective to obtain intelligence. They go by the 
mantra, they go by what has been done before.
  To address this question, the committee explored how other Government 
agencies conduct interrogation. The committee considered critical 
interrogations of individuals who do not want to disclose information--
people who are hardheaded and do not want to talk--interrogations where 
obtaining information can prevent widespread injury or death.
  Every day, military interrogators in Iraq and Afghanistan question 
individuals with information that can save lives--every single day--
questions about where explosive devices are hidden, where captured 
soldiers have been taken, or where caches of weapons are stored, and a 
lot more.
  Now, the CIA loves to argue: Oh, but they are just 18- to 20-year-old 
kids. They don't have the experience. We have experience. We have 
experience. We have been at it. We are the professionals. They did that 
at our public, open threats hearing a week or so ago.
  Now, there is something called the FBI. They deal with pretty bad 
people, too. Their agents face life-and-death situations in both the 
world of terrorism and every-day criminality. Some of the individuals 
the FBI interrogate are senior leaders, individuals who are committed 
to staying silent and not sharing the information they possess. In 
fact, FBI agents recently questioned the top al-Qaida leaders who were 
formerly in CIA custody, gathering enough information from those al-
Qaida leaders to build cases for trial, which we have recently read 
  Some of these FBI agents have been conducting interrogations for two 
or three decades. That does not sound like 18- to 20-year-olds. They 
are, without question, recognized experts in their field, and they are 
remarkably effective at obtaining the information they need. Yet both 
the FBI and the military have told us they do not need enhanced 
interrogation techniques. Are these naive organizations? Are these 
people who do not know what they are talking about? Are these people 
who do not have stakes at hand? They are out on the battlefield. They 
are not only at Guantanamo. They are out on the battlefield. They have 
told the committee the interrogation techniques included in the Army 
Field Manual provide them with flexibility they need to obtain the 
information they need.
  Indeed, representatives from both the military and the FBI--both--
stated emphatically they have the tools they need to obtain necessary 
and reliable intelligence.
  After considering the CIA's arguments, and those of the FBI and the 
U.S. military, I am simply not convinced that harsh CIA tactics are 
necessary to obtain intelligence information.
  We also had people who were neutral who had experience in 
interrogation but were not currently in the practice of it. Their 
information to us also was that to terrorize, to torture, to manhandle, 
to do whatever, does not work. Human beings are human beings, and there 
are ways to get at them. In fact, coercive interrogation techniques can 
lead prisoners--and probably will in many cases--to say anything at all 
for the purpose of stopping the interrogation. As a result, coercive 
techniques can produce information that is fabricated and ultimately 
lead to flawed and misleading intelligence reports. This is not 
academic or hypothetical. Bad intelligence is a real danger.

[[Page S942]]

  In the early years and months after 2001, we were awash with bad 
intelligence in Washington, DC, not all of it coming out of coercive 
techniques, but out of a complete misunderstanding of what intelligence 
is all about. In fact, there was a condescension from the 
administration about the role of intelligence in providing reliable 
information. So this is not an academic or hypothetical point. Bad 
intelligence is a real danger when employing coercive interrogation 

  Intelligence reporting from an al-Qaida detainee--a very famous one 
named al-Libi he said Iraq was providing al-Qaida training in chemical 
and biological weapons prior to the war, which was publicly trumpeted 
by the President of the United States, by the Secretary of Defense, by 
the Secretary of State, and other senior administration officials as 
proof of operating links between Iraq and al-Qaida and, therefore, as a 
basis for going in to invade Iraq.
  Of course, basically all of us feel now that what the President said 
on March 23 in the other body, in his speech which gave him the 
authority to go to war, was based on intelligence which was almost 
entirely incorrect, and virtually everything he said, other than some 
rhetoric here and there--everything he said turned out to be wrong, 
and, therefore, was one of the most extraordinary disservices to the 
American people, not to speak of the dead and the wounded, that I can 
remember in my lifetime. But the Nation was inspired by the thought of 
fighting terror, and so on they went.
  Ultimately, al-Libi, who said these things, recanted. He recanted, 
and it was determined by the CIA that he had fabricated this central 
allegation of this link between al-Qaida and Iraq and other information 
based on his claim of mistreatment during the interrogations.
  So this is not an academic point. America went to war based on an 
alleged threat that was partially based on fabricated information 
produced under coercive interrogation.
  Apart from the question of efficacy and the risk of bad intelligence, 
the committee has explored the consequences of having a different, 
secret standard of interrogation for the intelligence community. This 
is where the need for section 327 becomes clear.
  Since the disclosure of information about the existence of secret 
prisons, and the use of harsh interrogation techniques, the reputation 
and moral authority of the United States have suffered dramatically. It 
is not a casual statement. One can say, yes, a lot of people have said 
that. But when that is true, that means that in Africa and Southeast 
Asia and South America and in the Middle East it becomes much easier 
for al-Qaida and those who would do us ill--and people within the 
United States who may belong to no formal organization like that at 
all--to develop anger, to develop a search for meaning to their lives 
because they do not see hope in their lives, and so they join. They 
join a group that will do damage. Some of our techniques have 
significantly increased the likelihood of that happening.
  Rather than being a world leader in human rights, we have become 
known for the unapologetic use of aggressive interrogation techniques. 
Indeed, even Canada has included us on a list of countries that engage 
in torture.
  Allowing the CIA to continue to use coercive interrogation techniques 
that are not part of the Army Field Manual is another piece of fodder 
for terrorist propaganda that cannot be underestimated. It is not just 
a rhetorical statement. It cannot be underestimated. It is no way to 
win the hearts and minds of the Muslim world. Ultimately, the war on 
terrorism is a war of ideas. Without a public standard of humane 
treatment, it is impossible to convince the world that we take our 
international obligations seriously, that we treat people humanely, and 
that we are a country of laws and we adhere to these laws.
  We must uphold those standards that differentiate us from the 
terrorists whom we are fighting. If our Government continues to use 
secret interrogation techniques that many are convinced constitute 
torture, America's standing in the world will continue to go down even 
more. Every time it goes down, there are more people who sign up to do 
us harm.

  The Israeli Supreme Court concluded, when it forbade the use of harsh 
interrogation techniques, the following:

       This is the destiny of democracy, as not all means are 
     acceptable to it and not all practices employed by its 
     enemies are open before it. Although a democracy must often 
     fight with one hand tied behind its back, it nonetheless has 
     the upper hand. Preserving the rule of law, and recognition 
     of an individual's liberty, constitutes an important 
     component in its understanding of security. At the end of the 
     day, they strengthen its spirit and its strength and allow it 
     to overcome its difficulties.

  So in closing, passing section 327 is critical to regaining our moral 
authority in the world--which is a little bit too easy to say; it is 
going to take a lot more than that but it is a start--and convincing 
people that the United States believes in due process and human rights 
rather than fear. Having a separate standard of interrogations for the 
CIA--as much as it may want to have it, as much as it may have pride in 
having their secret standard, as much as they talk about 18- to 20-
year-olds--is simply not worth the cost. I, therefore, urge my 
colleagues to support section 327.
  But no matter how the Senate votes on this motion, if it comes up, 
the CIA should very carefully consider the actions of the House and 
Senate Intelligence Committee. All Members need to consider what this 
large group concluded. The members of our committees are the only 
Members of Congress who have been briefed on the program and who are 
privy to the administration's best arguments in support of the program. 
That has to be said from time to time, and it sounds a bit arrogant, 
but there are people on the Intelligence Committees, both in the House 
and the Senate, who get briefings, and they know things that are not 
necessarily known to the rest of the Congress. Yet despite those 
briefings, a bipartisan majority of both the House and the Senate 
Intelligence Committees have determined that it is in the Nation's best 
interest to have only one standard of interrogation, a standard that 
can be publicly judged by the entire world, and this judgment by the 
representatives of the American people--that is, what we did in the 
conference committee--cannot be ignored.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I compliment my distinguished friend from 
West Virginia. He has been a very bipartisan worker on the Senate 
Select Committee on Intelligence. I have been on that committee for an 
awfully long time, and I have a lot of respect for him. I just want to 
make that point for the record. I know he spends a lot of time trying 
to do his job well. We don't always agree, but we do agree on an awful 
lot. I particularly appreciate his work on the FISA bill. I know it is 
a very difficult position for him to be in. It is a very technical, 
very difficult bill, a complex bill, with a lot of matters conducted in 
public. I think he did a terrific job in seeing this bill through to 
the Senate floor.
  I also would like to take a moment to thank my colleague and friend 
who works with me, Jesse Baker. He is a Secret Service detailee on my 
staff who has been invaluable in helping me prepare for the important 
FISA debate.
  I also thank the very able counsel of the Intelligence Committee, 
Kathleen Rice, along with Jack Livingston, Mike Davidson, and Chris 
Healey, all of whom I think played a significant role in the FISA bill, 
among so many other things as well. I also would like to pay tribute to 
my colleague on the Intelligence Committee, my staffer who works with 
me, Paul Matulic, who is one of the most articulate and knowledgeable 
foreign policy people in government today. I am very grateful for his 
work and the effort he has put forth to try to assist me in these very 
difficult times and very difficult jobs.
  This might be a historic week for the Senate Select Committee on 
Intelligence, at least in comparison with the last 3 years. Last night, 
we passed, after over a year of work and preparation, including the 6-
month interim Protect America Act, the FISA modernization bill. I truly 
hope our House colleagues can expedite this bill and get it to the 
President for his signature before the legal regime governing our 
essential technical capabilities expires this weekend.
  I wish to congratulate both the chairman, as I have said here 

[[Page S943]]

and vice chairman, Senator Bond, for their sustained efforts on this 
issue. It wouldn't have been passed without their sterling leadership 
and their willingness to make some tough calls and to stick to them.
  I have often said I am metagrobolized--confounded, you might say--
that we have heard about the asymmetrical advantages that our terrorist 
enemies have, while we are reluctant to use our own significant 
asymmetrical advantages to defend ourselves from these terrorists' 
intentions. The terrorists do have asymmetrical advantages, to be sure: 
They are substate actors, and they do not operate according to any 
national or international law, including the law of war. They hide 
among civilians, target civilians, and terrorize civilization. If al-
Qaida could get its hands on a weapon of mass destruction, everything 
we know about them suggests they would use it against the West.
  But we in the West also have asymmetrical advantages as well. Two 
significant advantages are our technological prowess and our adherence 
to the rule of law. Our technology, as we have revealed in more ways 
than I think prudent in our open debate, provides us unparalleled 
advantages in tracking the enemy. Our collection has prevented 
terrorist attacks against us, and our continued collection makes the 
enemy dedicate a significant amount of its time to avoiding us--time 
that it would use plotting against us. In this sense, our technological 
collection is not just a defensive tool but an offensive tool as well. 
Americans and their leaders are right to expect that all of this 
Nation's activities should adhere to the rule of law, and this long 
debate over FISA modernization should, at the very least, assure 
everyone that we adhere to a legal regime, even when it seems 
aggravatingly slow to adjust it to modern technology and threats 
unimagined in the 1970s when the original FISA Act was enacted.

  So I again wish to congratulate the chairman and the vice chairman 
for their leadership in getting this important piece of legislation 
passed, finally, last night. It was a major banner day for us. This 
bill was long overdue, and I give credit to those who have worked so 
hard--long and hard--to see that it was done.
  The passage of an intelligence authorization bill is also an 
important measure of how we advance the rule of law. The balance of 
powers so beautifully articulated in our system of government requires 
an active role for this body and, since the 1970s, we have 
institutionalized a role of oversight for intelligence in the two 
committees of the Senate and the House.
  Our principal vehicle is the authorization bill. This process has 
been derailed for several years now, as Members operating with 
individualized agendas have created a dynamic that has thwarted the 
institutional need for authorization. It is a fact that, if some 
concede that an authorization bill is not essential, the self-
moderating dynamic that keeps one from offering controversial 
amendments on a bill is removed. We have seen this with the foreign 
relations authorization bills. I don't want to see it happen with the 
intelligence authorization bill.
  This year's bill has some very important measures in it, most of them 
in the classified annex and therefore not subject to discussion now. It 
is, after all, an authorization for the intelligence community--or IC--
which does, after all, require a minimum of secrecy to function 
effectively. The bill does have measures in the unclassified annex 
worthy of passage, however, to include additional and needed 
authorities for the Director of National Intelligence, directions on 
personnel level assessments for the IC, directions on business 
enterprise architecture modernization, and limits on excessive cost 
growths of certain systems.
  The bill, however, has been strapped by a provision added during 
conference that was not a part of either the House or Senate bills 
going into conference that would in this case limit all IC 
interrogation techniques to the Army Field Manual. Now, this provision 
is widely seen as a prophylactic against the use of torture, and there 
begins the misconceptions.
  The United States does not torture. Whether the process known as 
waterboarding constituted torture when it was used in three cases in 
the past--and we cannot discuss exactly how it was used here--is a 
debate to be held among historians and scholars of the law. I do not 
wish to inhibit that debate. I also do not wish to violate U.S. 
domestic law or international law to which we are committed as a 
nation. The rule of law serves our advantage.
  But the conflict over what was lawful in interpretation in the first 
2 years after the 9/11 attacks recognizes, to the honest analyst, that 
there is murkiness at the intersection of law, policy, and legal 
interpretation. That has always been the case. As I say, I do not want 
to inhibit this debate.
  I also do not wish that historic debate to inhibit any techniques we 
need to use for interrogation today. Last week, in an open session of 
the Senate Select Committee on Intelligence, Director Mike Hayden--
General Hayden--spoke forcefully, openly, and articulately about the 
issue of waterboarding. He said in public that, No. 1, less than one-
third of less than 100 detainees held by the CIA since 9/11 have ever 
been subjected to enhanced interrogation techniques. No. 2, of that 
small sample, only three have been subjected to waterboarding. No. 3, 
waterboarding has not been used for almost 5 years. Yet we have heard 
nothing but screaming about this issue, as though it was relevant 
  As Director Hayden went on to state, there is a universe of lawful 
interrogation techniques. This includes FBI procedures, the Army Field 
Manual, and the enhanced interrogation techniques used by the CIA, but 
which, I repeat, does not include waterboarding today. The DCI made it 
plain--the Director of Central Intelligence made it plain that the CIA 
will play to ``the edges that the American political process allows us. 
It is our duty to play to that edge.'' The DCI also made it clear that 
if the Congress directs that line is set by the Army Field Manual, then 
that will be the line in law that CIA officers will respect and adhere 
  So Congress must act soberly and responsibly in addressing the 
question of enhanced interrogation techniques. As the hearing last week 
made clear to anyone listening, the various approaches--FBI techniques, 
DOD's Army Field Manual, and CIA's enhanced techniques--address various 
subjects under different circumstances with different sets of goals. 
Director Maples told me he could not imagine that anyone would have 
objected to the use of current enhanced techniques if they could have 
gained the intelligence that would have prevented the attack on the USS 

  In my mind, the greatest advantage of the enhanced interrogation 
techniques is the public ambiguity surrounding the fact that they are 
classified. I don't want an al-Qaida operative we have just wrapped up 
to know what is in our playbook. But I want to make clear, ambiguity is 
not--I repeat, not--a cloak for torture.
  I can't go into details here, but I can say I have been constantly 
amazed as I have studied this issue in the Intelligence Committee over 
some of the sanctimony that has been used by some people on the Senate 
floor addressing this issue, and off the Senate floor as well. I can 
quite comfortably say there are actions the American public has 
routinely witnessed on some of our most popular television police shows 
over the past two decades that would exceed anything in the enhanced 
interrogation techniques allowed by the CIA. I find this to be ironic.
  I cannot support this conference report if it has the language 
limiting interrogation to the Army Field Manual. This is a manual 
written for our soldiers, all of whom I think we all agree are brave, 
dedicated warriors, but most of whom are young and inexperienced in the 
needs of interrogation. They should have their manual. I must point 
out, however, that Army Field Manuals are subject to revision by the 
Executive at any time, so that we in Congress are acting a little too 
self-satisfied by this simple gesture if we actually believe we are 
rectifying the rule of law.
  I say, let's have this debate and let's really define what it is we 
wish to proscribe, and let's understand the needs of our intelligence 
and the consequences for our actions--consequences that could be very 
grave if we keep playing games with these issues--or should I say 
political games. Both would be wrong, in my opinion.

[[Page S944]]

Much of this debate must be classified, but the Senate has procedures 
for closed sessions, and, after all, the Senate Select Committee on 
Intelligence was created for just this need. I serve on that august 
committee, and I have served on it for a long time.
  Sometimes I feel as if I am on the corner of sanctimony and 
righteousness. Sanctimony has popular appeal--it gains the approving 
tut-tutting of the chattering masses. Often it is more bombast than 
substance, more Babbittry than bravery. Righteousness is not always a 
function of the approval of the masses. Those who go to war to defend 
do things that are lawful but sometimes unpleasant--sometimes very 
unpleasant. In the choice between sanctimony and righteousness, I will 
choose the latter.
  I do not wish to calumniate anyone in this debate. I presume that 
people are motivated by the purest of motives, as is always the case in 
the Senate--or should I say I hope it is always the case in the Senate. 
I wish, however, that we had more substantive debate on some of these 
difficult questions.
  So because this conference report includes a measure limiting 
interrogation techniques for our intelligence professionals in the Army 
Field Manual--a measure added at the last minute in conference, 
something that was in neither bill, the House's or the Senate's--I will 
vote against the conference report and urge us all to reengage in this 
debate so that the lines of law we draw, that our intelligence 
professionals will respect, are lines that also maintain our best 
defenses within the rule of law.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Menendez). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. VITTER. 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. VITTER. Mr. President, I ask unanimous consent that I be 
permitted to speak for 15 minutes as in morning business and to yield 
some of that time to the distinguished Senator from Pennsylvania who 
joins me on the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                       Nomination of David Dugas

  Mr. VITTER. Mr. President, I come to the floor with welcome support 
of the distinguished Senator from Pennsylvania, who serves so ably on 
the Judiciary Committee, to talk about the pending nomination of David 
Dugas to fill a vacancy in the Middle District of Louisiana.
  This is a vacancy that has existed for over a year, and, in fact, 
coming up very soon in March will unfortunately, if we do not act 
before then, will be noting the 1-year anniversary of the nomination of 
David Dugas to fill this vacancy in the Middle District of Louisiana, 
of course nominated by President Bush.
  Mr. Dugas is currently U.S. attorney in that same district. In that 
capacity, of course, he had to come before this Senate and be 
confirmed; and he was by unanimous consent. So that was a very 
resounding confirmation of him, which included support by my colleague 
from Louisiana, Senator Landrieu.
  In terms of this judicial nomination, Mr. Dugas has received the 
highest rating possible by the American Bar Association. He is 
eminently qualified. There is nothing in his background or his dealings 
or his job as a U.S. attorney that remotely suggests otherwise.
  Yet there has been great delay and obstructionism, in my opinion, in 
terms of considering this worthy nomination. In fact, even though we 
are coming up on the 1-year mark of President Bush's nomination of him, 
he has yet to receive a hearing before the Judiciary Committee because 
my colleague, Senator Landrieu, has not turned in her so-called blue 
  I rise to make note of this, and in a few minutes I will have a 
unanimous consent to propose to the Senate to remedy this situation. I 
have also specifically invited Senator Leahy, Chairman of the Judiciary 
Committee, and Senator Landrieu, my colleague from Louisiana, to join 
us on the floor for an appropriate colloquy.
  With that introduction, I yield such time as he would consume to my 
distinguished colleague from Pennsylvania, the ranking member of the 
Judiciary Committee.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I join the Senator from Louisiana in his 
request to have a hearing and then proceed with an up-or-down vote. I 
have reviewed the record of the nominee. It appears to me that the 
nominee is qualified for the position.
  In his service as a U.S. attorney, he has already had Senate 
confirmation. But the basic proposition of having a hearing and a vote, 
I think, is very fundamental to so many pending nominees beyond the 
nominee addressed by the Senator from Louisiana today.
  I have discussed this issue on a number of occasions with the senior 
Senator from Louisiana, and she has been of the view that she ought not 
to return the blue slip, and I respect her decision. But I also respect 
the position of Senator Vitter in trying to move forward.
  It would be my hope that we could come to some accommodation, that we 
could find some way to set a timetable for a hearing, at least on that.
  Senator Vitter has advised me that he has written to both the 
distinguished chairman and the senior Senator from Louisiana and that 
there is to be a unanimous consent request. I know Senator Vitter will 
await the arrival of someone who can object because my expectation is a 
unanimous consent request will be objected to. But the issue involved 
is to raise the issue and to make the point as to what has happened and 
to try to see if there can be some accommodation, as noted by the floor 
discussion today.
  I see Senator Vitter nodding in the affirmative. In my capacity as 
ranking member on the Judiciary Committee, I would like to get these 
nominations to move forward.
  I yield the floor.
  Mr. VITTER. I thank the distinguished Senator from Pennsylvania, 
first for his service on the Judiciary Committee; it has been very 
distinguished, to serve there as many years very ably, now-ranking 
member, and specifically for his support on this nomination and others 
to try to break through the gridlock, break through the partisanship, 
move forward in a positive way for the country.
  I believe that is absolutely necessary in a number of cases, but the 
one that surely hits closest to home for me is this nomination of David 
Dugas to a judgeship in the Middle District of Louisiana. So I thank 
the ranking member for all his help and support; I know it will 
  Again, let me note I wrote to Chairman Leahy that I would be taking 
the floor this week to make the upcoming unanimous consent request. I 
did the same to my colleague from Louisiana, Senator Landrieu. As soon 
as we figured out the time that would be available, we sent them word, 
and I sincerely hope they can both join me on the floor because I think 
it would be very useful and very informative to have an appropriate 
discussion and colloquy about this case. So I certainly invite that. I 
would encourage them to accept the invitation to join me on the floor.
  Let me point out and reiterate some very important points about this 
nomination. President Bush made the nomination some time ago. That was 
March of last year. We are coming up quickly on the 1-year mark of this 
nomination. The vacancy in the Middle District has been open even a 
little bit longer, over a year.
  Because of that, a backlog of cases is quickly mounting in the Middle 
District. The Middle District is an area surrounding Baton Rouge, LA, 
the capital of the State. It has felt a huge influx of people, of 
residents, and of litigation, largely because of Hurricane Katrina.

  Because of that, because of this vacancy, judicial backlogs have been 
mounting and mounting. We are not quite to the point--and this is 
defined in law and by rules of the court--we are not quite to the point 
that it is defined as a ``judicial emergency,'' but we are quickly 
coming up to that line.
  So the people of Louisiana, the people of the Middle District are not 
being served well and properly and as quickly as they should be. This 
vacancy needs to be filled for that reason.
  Now, let us look at the man who President Bush has chosen to fill the

[[Page S945]]

vacancy. By all accounts, he is eminently qualified. Mr. Dugas is the 
sitting U.S. attorney in the Middle District. He has done a very fine 
job in that position, has won praise from many different quarters, 
particularly from law enforcement.
  He has many admirers and allies in the law enforcement community: 
Sheriffs across the State, chiefs of police, district attorneys, many 
others. They have written in to many of us about this nomination in 
strong support.
  Mr. Dugas was already considered by the Senate, of course he had to 
be, for his present job of U.S. attorney. He was considered very 
favorably. In fact, it was considered completely noncontroversial, and 
he was confirmed swiftly by unanimous consent. In that process, of 
course, my colleague, Senator Landrieu, was here at the time and was 
part of that very positive sweeping confirmation.
  As I said, for this judicial vacancy, Mr. Dugas has received the 
highest rating possible by the American Bar Association. That is a 
distinguished professional organization, it is not political, it is 
certainly not leaning to the right. Nobody would think that. They have 
rated this nominee of President Bush with their highest rating possible 
for a judicial nomination.
  Yet this languishes and languishes. In another month's time, we are 
going to be on the 1-year mark of the nomination, with this backlog of 
cases mounting, as we near a judicial emergency in the district.
  I do not think that is right. I do not think that is serving the 
people of Louisiana at all. I do not think that is serving the people 
of the country at all.
  Mr. Dugas deserves better. More importantly, the people of Louisiana 
deserve better. The people of Louisiana and of the country want us to 
act as grownups and to come together and do our work in a timely, 
respectful way. They don't think this sort of partisanship and 
obstructionism, particularly over judgeships, falls into that 
  This got particularly bad a few years ago. I was hopeful. Since I 
have been here, not because of my influence but just in general, since 
I got here, the Senate has become more responsive and more responsible 
about nominations, particularly judicial nominations. Unfortunately, 
this is a clear example in the other direction. Let's clear up this 
example. Let's move it off the list of those examples of partisanship 
and obstruction. Let's act in a reasonable--late, by now, but 
reasonable way, finally moving forward with this highly qualified 
nominee before this district gets to a state of judicial emergency, 
which is looming.
  That is my simple and reasonable request. With all that background, I 
will now propound a unanimous consent request.
  I ask unanimous consent that if the Committee on the Judiciary has 
not held a hearing on PN 349, the nomination of David Dugas of 
Louisiana to be U.S. district judge for the Middle District of 
Louisiana, and reported the nomination to the Senate by March 19, 2008, 
which would be the 1-year anniversary of his nomination being 
transmitted, that on the next calendar day the Senate is in session, 
the Committee on the Judiciary be discharged from further consideration 
of the nomination; that the Senate proceed to executive session to 
consider the nomination; that there be 1 hour of debate equally divided 
between the chairman and the ranking member of the Committee on the 
Judiciary or their designees; that upon the use or yielding back of 
such time, the Senate immediately proceed to a rollcall vote on the 
nomination; that if the nomination is confirmed, the motion to 
reconsider be considered made and laid upon the table; that the 
President be immediately notified of the Senate's actions; and that the 
Senate then resume legislative session.
  The PRESIDING OFFICER. The Chair, in my capacity as a Senator from 
the State of New Jersey and on behalf of the majority leader, objects.
  Mr. VITTER. Of course, I am disappointed--not surprised but 
disappointed--at the objection.
  I resume my plea specifically to Senator Leahy, chairman of the 
committee, and to Senator Landrieu, who has not turned in her blue slip 
and is thus the reason for the committee not even holding a hearing, 
that we move beyond this, that we have a hearing on this eminently 
qualified nominee. If there is a reason to stop the nomination, surely 
a hearing is the best venue and the best vehicle to illustrate that and 
talk about it. I hope we move beyond the pure obstructionism and 
partisanship that has us stuck in the mud with a judicial emergency in 
the Middle District looming.
  This is exactly the sort of obstruction the American people are tired 
of. They spoke clearly to this over the last several years about 
judicial nominees. Maybe we got a little better, but here we are again 
in terms of this matter and this case which is surely important to 
Louisiana. I urge all of my colleagues to work beyond this. 
Specifically, I urge the chairman of the Judiciary and Senator Landrieu 
to work beyond this. It is unfortunate that they couldn't accept my 
invitation to have a useful, informative dialog and colloquy on the 
issue on the floor. There has been no good explanation for inaction 
that I have ever heard. A lot of people would like to hear some 
discussion and explanation. I hope we will hear that soon. I hope in 
the very near future we will move toward an appropriate resolution of 
this matter, which is a hearing and a vote in Judiciary and then on the 
floor of the Senate.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Lautenberg). Without objection, it is so 
  Mr. DORGAN. Mr. President, we are considering the intelligence 
authorization bill. My understanding is later this afternoon we will 
have, perhaps, a final vote on the bill. There are many important 
provisions in the bill. Many of us who have been here for some while--
from the destruction of the World Trade Center and the murder of 
thousands of innocent Americans on 9/11, where terrorists used 
airplanes loaded with fuel as guided missiles to bring down the World 
Trade Center and attacked the Pentagon and through the subsequent 
period leading up to the Iraq war--know we have had all kinds of 
difficulties with the intelligence community.
  We have a lot of men and women risking their lives all around the 
world every day collecting intelligence, and yet most of us have been 
through top secret briefings that we later find out to have been 
absolutely false, wrong, just standing facts on their head.
  So it is critically important for this country to have a good system 
of intelligence gathering and good analysis of intelligence if we are 
going to prevent the next terrorist attack against our country.
  It is a difficult world out there. We have terrorists who would like 
nothing more than to kill Americans and attack our country. So passing 
an intelligence authorization bill that provides the resources, 
provides a structure for a good system of intelligence is very 
important to the safety and the security of this great country. That is 
what the debate is about. That is what the upcoming vote is about.

  But there is one provision that has caused a special concern for some 
in this Intelligence reauthorization bill, and I want to talk about it 
a bit. That is the provision that deals with the subject of torture.
  One of the most important provisions in this legislation is one that 
makes the Army Field Manual provisions on interrogations applicable to 
all U.S. Government personnel. Right now, those provisions which forbid 
torture apply only to the military. Those provisions do not apply to 
some others that are conducting interrogations on behalf of our 
Government. That means that some others who work for the U.S. 
Government--the CIA, for example; contractors, for example--may use 
interrogation techniques which may constitute torture and which are 
forbidden in the Army Field Manual. This legislation incorporates the 
Army Field Manual provisions on interrogations and says it applies to 
all personnel from the United States.
  Now, why is that important? Because it makes a vote for this bill a 

[[Page S946]]

against torture. It is a vote that says American values and torture are 
not in any way compatible. Voting for this bill is a vote for a country 
that has been looked up to throughout the world because of our system 
of values. It is that simple, and it is that important.
  Let me say that I acknowledge today there are tyrants and despots and 
dictators and a lot of evil people in this world and throughout history 
who have used and have always justified the use of torture--but not 
this country. We have not done that, with the exception of some recent 
disclosures I will talk about.
  Some people argue that this issue of torture is especially about 
waterboarding. Waterboarding is a more antiseptic term. It should be 
described as water torture. Some people say that: Well, we have 
waterboarded. In fact, it has been disclosed by administration 
officials that we have waterboarded--which is water tortured--three of 
the most dangerous, despicable terrorists who attacked this United 
States, and we only did it at a time when we thought they would provide 
information or had information that would allow us to avoid other 
catastrophic attacks, and we need to be able to do that again in the 
future, if necessary, if some despicable terrorist is planning an 
attack on this country.
  Let me talk a little bit about what we are describing here. 
waterboarding is a practice that has been around for centuries, and it 
has been known--widely known--as torture for a long time. In fact, 
waterboarding has been prosecuted as torture and as a war crime on many 
occasions in history. Trying now to claim it is legal, that it is not 
torture, or that it is something other than torture doesn't square with 
the facts. Second, history teaches us that torture is not effective. 
Aside from the question of morality, it is not effective. Those who 
know tell us that those being tortured will often tell you anything 
they think you want to hear in order to have the torture stopped.
  The provisions in the Army Field Manual set forth the many approved 
methods to get reliable information, but those methods do not include 
what is defined as torture.
  The question about torture is: If you decide that torture is 
appropriate and available as a tool for our country to use, why stop at 
waterboarding? There are many other forms of torture that are even more 
heinous, more abusive: putting people in boiling water, pulling out 
their fingernails, amputations, electric shock. Justifying torture is a 
very slippery slope that doesn't have a pleasant end for a country that 
cares about its system of values. We don't do that and haven't done 
that. We haven't been engaged in torture as a country for a couple of 
centuries because we don't belong to that group of people in the world 
who want to do damage and want to commit mayhem and want to kill 
others. We hold ourselves to a higher standard in this country--always 
have--a higher standard, a standard that all of us can be proud of.
  It is interesting when you think back to the Cold War. We won the 
Cold War, but we didn't win it with bombs and bullets; we won it with 
American values and American standards, and American rights. The other 
evening I saw a very large portion of the Berlin Wall that had been 
transported to the United States of America. It was a wall that kept 
the free world out and it was a wall that kept those in East Germany 
behind it, living in oppression, living in a circumstance where they 
were denied freedom. I was thinking again about the Cold War and the 
fact that we didn't win the war with bombs.
  I have in my desk something I have had there for a long period of 
time, if I might show it by unanimous consent. This is a piece of a 
wing from a Soviet Backfire bomber. This bomber very likely carried a 
nuclear weapon that would have been used against the United States. 
Actually, we sawed part of the wing off this Soviet bomber because when 
the Cold War was over, we reached an agreement to destroy delivery 
systems. I have also in my desk a hinge. This hinge used to be on a 
missile silo that held a missile with a nuclear warhead on its tip 
aimed at a U.S. city. It was in Ukraine. Where that missile used to 
sit, there are now sunflowers growing. It is now a sunflower field. The 
missile is gone, the warhead is gone. This bomber is now in pieces.
  We won the Cold War. And we have agreements with Russia, Ukraine and 
other former Soviet republics under which we help destroy their Cold 
War weapons and delivery systems. But we didn't win the Cold War with 
bombs; we didn't blow up that Backfire bomber. We didn't blow up the 
Soviet missile silo with one of our missiles. We won the Cold War 
because of our values. American values won the Cold War.
  What are those values? Well, people are free. They believed what they 
said. They believed what they wanted. The Government had to respect the 
rights of everyone in this country. We were a country that had a 
government based on a Constitution that had a Bill of Rights that 
applies to all Americans. Our country stood for liberty, human rights, 
human dignity, the rule of law. That is what won the Cold War. Those 
values were so strong that in the middle of the Cold War with the 
Soviet Union, those values shone a light of hope into the darkest cells 
and the deepest part of the Soviet Union. In the gulag prisons, in the 
outermost reaches of Siberia, those values reached those cells. 
Millions of prisoners had been held, often in solitary confinement, 
simply for thinking and speaking freely. Many were there for years; 
some swept off the streets, never to reappear again; many tortured into 
false confessions, and many murdered. Some survived, however, and 
talked about their experience, and about how important the idea of 
America was to them, how important the idea of freedom was to those who 
had been detained and had not been able to experience freedom, and to 
those who had been tortured by a country that didn't want them to be 
free. It was a clear and vast difference between America and the Soviet 
Union. As imperfect as we are, the basic foundation and bedrock of 
values in this country is what shined so brightly in the middle of the 
Cold War. It wasn't the amount of bombs and bullets each country had; 
it was what we stood for.

  When the Berlin Wall fell in 1989, the Iron Curtain was lifted, all 
of those police states crumbled, and every single one of them became 
free countries that provided freedom to their citizens. Every single 
one chose freedom and democracy. That is how powerful the idea and the 
values of this country have been.
  What I say today is we have to regain the moral high ground and 
describe our values in circumstances that make it clear that we do not 
subscribe to some things others might. We do not support torture. We 
will not support torture. It is not what our country is about. From the 
very beginning in this country, America has held itself to a higher 
standard. George Washington, leading the Continental Army--think about 
it: 5,000 soldiers in the Continental Army going up against a British 
Army of 50,000 soldiers, and our 5,000 were shopkeepers and farmers; 
5,000 against 50,000, and we prevailed over time. George Washington, 
after a large number of his troops were captured and slaughtered--he 
saw the Hessian mercenaries kill unarmed prisoners. After that, George 
Washington and his troops captured a large number of British soldiers, 
and many of the troops justifiably wanted revenge. They sought to 
execute them just as they had seen done to unarmed American prisoners. 
George Washington refused. He refused to treat the prisoners as his 
soldiers had been treated. He insisted America was different. He said: 
We are different, and we are going to treat people the way they should 
be treated, not the way they treated us, and that has been our 
  That is why this discussion right now is so very important. It goes 
to the core of what we are and who we are as a nation. Quite simply, we 
have to say unequivocally: We are against torture. We, the Congress of 
the United States, must say that torture is un-American, simply because 
it is. No hair splitting, no fancy words, no legal distinction about 
what might or might not be torture. That will begin to restore, I 
think, our rightful place if we say we are against torture.
  Let me briefly continue to say that being against torture is being 
for an America that is better than its enemies. It is that simple. I 
said we fought and won the Cold War after many decades. We faced 
nuclear annihilation during that period. We faced a

[[Page S947]]

ruthless enemy all around the world, and yet we won that war. We did 
that with our reputation, our values, and our moral authority intact. 
It was and still is, I think, a beacon of hope around the world.
  Those values and that moral authority, I believe, are what is going 
to allow us to prevail in the battle against the terrorists who wish to 
do harm--not just here but in other parts of the world as well. We 
need--and I believe the world needs--an America that people respect and 
admire, an America that is different, that begins in a manner that is 
loud and clear saying: We do not torture. This will empower our country 
and make us stronger.
  I was very disappointed last week to hear the head of our 
intelligence service, and then to hear a spokesperson for the White 
House, say: Yes, we have waterboarded. They used the term--the right 
term--water torture; yes, we have done that. We did it because we must, 
and we reserve the right to do it again. It is exactly the wrong thing 
for this country. It is not just me saying that. I am not just quoting 
George Washington who has established the higher standard, and God 
bless him for doing so. Let me read what General Petraeus said, who 
leads the American troops in Iraq right now. Our most senior commander 
in Iraq, GEN David Petraeus, sent a letter to every Soldier, every 
Sailor, every Airman, Marine, and Coast Guardsman serving in Iraq. He 
said this:

       Our values and the laws governing warfare teach us to 
     respect human dignity, maintain our integrity, and do what is 
     right. Adherence to our values distinguishes us from our 
       This fight depends on securing the population, which must 
     understand that we--not our enemies--occupy the high ground.

  Continuing to quote:

       Some may argue that we would be more effective if we 
     sanctioned torture or other expedient methods to obtain 
     information from the enemy. They would be wrong. Beyond the 
     basic fact that such actions are illegal, history shows us 
     that they also are frequently neither useful nor necessary.

  That is General Petraeus, who leads our troops in Iraq, and says 
those who believe that torture is appropriate would be wrong.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. DORGAN. I am happy to.
  Mr. DURBIN. I thank the Senator for his comments, and I thank Senator 
Feinstein for the support language. Some argue that this language was 
not necessary, that the McCain amendment, which passed 90 to 9, made it 
clear that whether you are in uniform or not torture is not the policy 
of the United States. Others argue that the Geneva Conventions had 
already made that clear for decades before it was brought into question 
by this administration.
  I ask the Senator from North Dakota if he struggles with the same 
thought that I do. At some point after World War II, we prosecuted 
Japanese soldiers who tortured American prisoners of war using 
waterboarding and charged them with war crimes; and we are now at a 
point in our history, some 60 years later, where General Hayden 
testifies under oath before Congress that our Nation engaged in the 
same conduct, at least three times previously, when it came to 
waterboarding. I wonder if the Senator from North Dakota struggles with 
the same concept of justice as was applied after World War II and as it 
appears to be applied by this administration?
  Mr. DORGAN. Mr. President, that is a significant contradiction for 
our country. I was as surprised and disappointed as the Senator from 
Illinois was to have one of the leading officials in this 
administration testify under oath that, yes, in fact, waterboarding had 
been used. It was in fact legal, they said, and it would be used again, 
if necessary, and could be sanctioned by the President of the United 
  The Senator is correct that this Congress passed a piece of 
legislation that defined waterboarding as torture and prohibits it, and 
the President at the White House, in a signing statement accompanying 
the legislation, essentially said: It doesn't matter so much what the 
legislation says; what matters is what I will decide to do.
  Now, we have a disclosure--a public disclosure--to the world that 
this country has employed a technique that has, for hundreds of years, 
been described as torture.
  I know and understand the passions that exist. I understand what I 
would like to see done to Osama bin Laden when he is captured. I 
understand the passions. But I also understand that what has given this 
country a different standing in the world is our value system.
  Again, let me, if I might, for the Senator from Illinois, refer back 
to George Washington, which I described earlier before the Senator came 
on the Senate floor. When I think of the odds facing the Revolutionary 
Army, it is pretty unbelievable. The Senator from Illinois and I were 
at Mount Vernon recently, and we saw a display describing that at one 
point there were 5,000 soldiers in the Continental Army and 50,000 
British soldiers. That was the fight. Our soldiers were shopkeepers and 
farmers, ordinary folks off the street. Theirs were trained British 
soldiers. So it was 5,000 to 50,000. George Washington and his soldiers 
saw members of the Continental Army captured and then, unarmed, 
murdered, executed by the British soldiers and the Hessians.
  Washington's soldiers, when capturing some British soldiers, wanted 
to do the same thing. But he said, nothing doing, we are not going to 
do that. George Washington said that we are different and we are going 
to treat people the way they should be treated, not the way they 
treated us.
  When you think of that set of standards and values and then wind your 
way through the discussion in recent days, and to have a top U.S. 
official say, yes, we have used waterboarding--and it is widely 
acknowledged as torture--we used it and it was legal and we intend to 
use it again if it is necessary.
  Mr. DURBIN. I am sure the Senator is aware that this questionable 
chapter in American history--which I think will haunt us for 
generations to come--also involves people other than the general who 
testified. There is an individual who has been nominated by the 
President to be head of the Office of Legal Counsel, Steven Bradbury. 
He has been rejected four times by the Senate. The President said last 
week that he was the most important appointment. A month or two before, 
he told the majority leader he didn't want to talk about any other 
appointments until Mr. Bradbury was approved. Bradbury's tenure in the 
Office of Legal Counsel goes back to the period of time when this 
administration was rewriting torture policy in America--a policy which 
they at one point accepted and later rejected. Many of us have said if 
Mr. Bradbury is coming before us for consideration, we want to see 
those memos written--memos which James Comey, former Deputy Attorney 
General, said the United States would be ashamed if they ever became 
  I say to the Senator from North Dakota that not only do we have to do 
our part, but this administration has to do its part as well. Those who 
were engaged in this questionable--if not embarrassing, if not 
shameful--conduct involving torture policy must be held accountable to 
the administration. They are certainly not deserving of a promotion, 
which is what they are suggesting for Mr. Bradbury.

  I ask the Senator from North Dakota, reflecting on what this 
administration has been through, the many times they have told us 
torture was not being used, that waterboarding was not being used, and 
now with this disclosure of at least three instances admitted under 
oath, I wonder if even this legislation--including the Feinstein 
amendment--would restrain this President in the future, in the next few 
months, as we face challenges that we cannot even imagine at this 
  Mr. DORGAN. Mr. President, it is far more than disappointing to me, 
and I think to a lot of people in this Chamber and across the country, 
that the President received advice from people who work for him in the 
White House and have said this under oath and on television and in 
every other venue that under the Commander in Chief powers, the 
President has the power to do almost anything. He can put out a drift-
net and collect every communication under every condition--e-mails and 
telephone calls. Go to the documentary recently done, entitled ``No Way 
Out'' and view the interviews by this administration's officials, who 
take the position that this President has the authority as Commander in 
Chief to do almost anything. That includes this issue of torture.

[[Page S948]]

  The point I make is that we have a piece of legislation that we will 
vote on later this afternoon. Included in that legislation is a 
provision that says the Army Field Manual will describe the conditions 
of interrogation of enemy combatants. I just read what General Petraeus 
said to all of his soldiers--that torture is inappropriate and will not 
be allowed. The Army Field Manual prevents torture. What we are saying 
in the conference report that we will vote on in an hour or two is that 
the Army Field Manual's restrictions on torture apply to all U.S. 
Government officials and contractors doing interrogation.
  My concern about this administration--and I think it is echoed by the 
Senator from Illinois--is that they have decided they are not bound by 
the law, they are not bound by what the Congress enacts. They are doing 
other sorts of dances with signing statements and interpretations of 
the Constitution to say that under the Commander in Chief powers they 
can do almost anything if they believe there is some kind of a threat. 
That is a very dangerous mind set, in my judgment, for any 
administration at any time.
  Mr. DURBIN. If the Senator will yield for one last question, I thank 
him for that quote from President Washington which talked about the 
terrible circumstances the Continental Army faced and how, in those 
days before there even was an America, they would establish a different 
set of values in this part of the world. He admonished his troops to 
live by those values.
  I am sure the Senator knows that each year our State Department 
publishes a report card on human rights of nations around the world. We 
are critical of nations that engage in torture. We are critical of 
nations that engage in conduct that is inconsistent with our values. I 
say to the Senator from North Dakota, how can we maintain that moral 
status and moral authority if we are found compromising something as 
fundamental as torture and waterboarding and the Geneva Conventions, 
which guided us for decades?
  Mr. DORGAN. The Senator answers the question by phrasing the 
question. Let me conclude by saying this: We have 43 top retired 
military leaders of the U.S. Armed Forces who have written a letter. As 
one, they say:

       We believe it is vital to the safety of our men and women 
     in the uniform of the United States not to sanction the use 
     of interrogation methods it would find unacceptable if 
     inflicted on our captured Americans.

  Today there are men and women fighting for this country. If captured, 
how would we react if the leader of a group that captured them says: We 
are torturing them because we feel we can get information, and we can 
only get it by torturing them, and we believe torture is legal. We are 
going to waterboard them, we believe it is legal. We have already done 
it, and we intend to do it again if we need to.
  How would we feel if that were somebody else talking about how they 
are going to treat American soldiers? That is unacceptable. We have a 
country with a higher moral purpose and standards that have served us 
for two centuries, and we should not obliterate that just because we 
have some people in this administration who believe it is appropriate. 
It is not.
  John McCain knows that. He led the fight to put a provision in law 
that prohibits torture. This President did a signing statement next to 
the legislation he signed, saying: I don't have to abide by it if I 
don't feel like it.
  That is a scary thought in a democracy. I hope this afternoon we will 
register a very strong vote in support of this conference report and 
against the concept of our country engaging in torture.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, I ask unanimous consent that the vote on 
adoption of the conference report to accompany H.R. 2082, the 
Intelligence Authorization Act, occur at 4:30 p.m. today; that no 
points of order be in order; and that the time until then be equally 
divided between the two leaders or their designees.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. So there is an equal balance of time in the next--we have 2 
hours. I think it should work out fine. Either side will have 
approximately an hour, so that should work out well.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. WHITEHOUSE. Mr. President, I want to follow the lead of the 
distinguished Senator from North Dakota and my friend, the Senator from 
Illinois, and continue on this question with the determination the 
Government has made that waterboarding is legal.
  It is a question that matters so much to wary and watchful nations, 
disheartened and distrustful in the wake of 7 years of failed 
leadership and broken promises. It is also a question that matters 
immensely to the billions of men, women, and children around the globe 
who look to this country, the United States of America, as a beacon of 
light that shows the way nations ought to act and the way the world 
ought to be. It is a question that matters to the American people who 
are sick of asking: Is it wrong? and being told: Well, it depends.
  The people of America still do not know how this came about--in 
particular, how the Department of Justice came to approve this sordid 
technique. I believe we are in a position where the concerns we have 
about torture overlap with some of the concerns we have had in this 
Chamber about the independence and integrity of the Department of 
Justice. Here is what we know.
  We know that Attorney General Michael Mukasey has said that ``the CIA 
sought advice from the Department of Justice, and the Department 
informed the CIA that [waterboarding's] use would be lawful under the 
circumstances and within the limits and safeguards of the program.'' We 
know in 2002, John Yoo of the Office of Legal Counsel drafted a memo, 
later approved by Assistant Attorney General Jay Bybee, which reads, in 

       There is a significant range of acts that, though they 
     might constitute cruel, inhuman, or degrading treatment or 
     punishment, failed to rise to the level of torture.

  As Evan Wallach of the Columbia Journal of Transnational Law has 

       None of the Memo's analysis explains why waterboarding does 
     not cause physical or psychological pain sufficient to meet 
     the criminalization standards it enunciates.

  We have asked for further clarification, but in a hearing before the 
Judiciary Committee, Attorney General Mukasey refused to comment on the 
legality of waterboarding because the technique was not currently in 
use and because of what he described as ``the absence of concrete facts 
and circumstances.'' Even though the Department of Justice is now 
conducting an investigation into whether tape recordings of alleged 
waterboarding sessions were improperly destroyed, they would not look 
into whether the conduct on the tape was in and of itself improper.
  The argument is that no one who relies in good faith on the 
Department's past advice should be subject to criminal investigations 
for actions taken in reliance on that advice, which raises the question 
within the question: How did that advice come to be given in the first 
  How did the best and brightest of the Department of Justice overlook 
the facts of the history of waterboarding prosecutions in which the 
United States was directly involved, and why was such guidance approved 
when contravening precedents appear clearly to be in evidence?
  Mr. President, I commend to my colleagues the article written by Evan 
Wallach, Columbia Journal of Transnational Law, entitled ``Drop by 
Drop: Forgetting the History of Water Torture in U.S. Courts.'' The 
full cite is 45 Columbia Journal of Transnational Law 468 (2007).
  Mr. President, the U.S. Government long considered waterboarding a 
form of torture, prosecutable as a war crime and punishable 
accordingly. This history includes war crimes prosecutions against 
Japanese soldiers who waterboarded American aviators in World War II, 
the use of water torture by U.S. soldiers in the Philippines, and even 
an incident of waterboarding by a local sheriff prosecuted by the 
Department of Justice itself. Let me start with that.
  I am reading from the Wallach law review article in which it reports:

       In 1983, the Department of Justice affirmed that the use of 
     water torture techniques was indeed criminal conduct under 
     U.S. law.

[[Page S949]]

  A sheriff in a Texas county waterboarded prisoners in order to 
extract confessions. Count one of the indictment asserted that the 
defendants conspired to--and this is a quote from the Department's own 
indictment--``subject prisoners to a suffocating `water torture' ordeal 
in order to coerce confessions. This generally included the placement 
of a towel over the nose and mouth of the prisoner and the pouring of 
water in the towel until the prisoner began to move, jerk, or otherwise 
indicate he was suffocating and/or drowning.''
  The sheriff and his deputies were all convicted by a jury under count 
one. It didn't end there. The case then went up on appeal, and the 
United States Court of Appeals for the Fifth Circuit rendered a 
decision. I have in my hands United States of America v. Lee, 744 F.2d 
1124, decided in 1984, in which they gave appellate review of these 
  Finally, at sentencing, U.S. District Judge James DeAnda's comments, 
according to the article, were ``He told the former Sheriff that he had 
allowed law enforcement to fall into `the hands of a bunch of thugs. 
The operation down there would embarrass the dictator of a country.' '' 
That is the opinion of a U.S. district court judge at a sentencing on 
  How is it that when the Department of Justice, the Office of Legal 
Counsel were asked for their opinion, they were able to write this 
opinion? I have it in my hand. This is the unclassified version. It has 
been substantially redacted. Even so, it is 50 pages long--50 pages 
long. They did 50 pages of legal research and could not find a U.S. 
Court of Appeals case in which the Department of Justice itself had 
brought the charges? Here is the case, United States v. Lee. It 
describes the facts:

       Lee was indicted along with two other deputies, Floyd Baker 
     and James Glover, and the County Sheriff James Parker, based 
     on a number of incidents in which prisoners were subjected to 
     a ``water torture'' in order to prompt confessions to various 

  Throughout the rest of the opinion, these are referred to as 
``torture'' and ``torture incidents.''
  All one has to have is Lexus or Westlaw and plug in the words ``water 
torture'' and find this case. How is it possible that the Office of 
Legal Counsel could not have found this? How is it possible that they 
could have also missed what the Columbia Law School was able to find--a 
telegram from Secretary of State Cordell Hull to the Japanese 
Government objecting to the mistreatment of American prisoners, which 
included specifically waterboarding and describing the ``brutal and 
bestial methods of extorting alleged confessions''? That is our 
Secretary of State in an official communication to the Japanese 
Government describing, among other tortures, water tortures as brutal 
and bestial methods to extort alleged confessions. How could they not 
have found that? How could they not have found the charges the Senator 
from North Dakota referred to in which Japanese soldiers were brought 
up on charges in front of military tribunals--military tribunals 
staffed with American judges, military tribunals staffed with American 
prosecutors--for waterboarding American prisoners?
  Here are some examples. One of the Japanese officers was named Hata 
and the article describes the charges and specifications against 
Officer Hata, which included this:

        . . . Hata did, willfully and unlawfully, brutally 
     mistreat and torture Morris O. Killough, an American Prisoner 
     of War, by beating and kicking him, by fastening him on a 
     stretcher and pouring water up his nostrils.
       Similarly, Hata did willfully and unlawfully, brutally 
     mistreat and torture Thomas B. Armitage, William O. Cash and 
     Monroe Dave Woodall, American Prisoners of War, by beating 
     and kicking them, by forcing water into their mouths and 
     noses. . . .

  The charge and specifications against Officer Asano were:

       Asano did, willfully and unlawfully, brutally mistreat and 
     torture Morris O. Killough, an American Prisoner of War, by 
     beating and kicking him, by fastening him on a stretcher and 
     pouring water up his nostrils. . . .
       Asano did, willfully and unlawfully, brutally mistreat and 
     torture Thomas B. Armitage, William O Cash and Munroe Dave 
     Woodall, American Prisoners of War, by beating and kicking 
     them, by forcing water into their mouths and noses. . . .

  The charge and specifications against Officer Kita were again, 
``willfully and unlawfully, brutally mistreat and torture John Henry 
Burton, an American Prisoner of War, by beating him and by forcing 
water into his nose.''
  Over and over the testimony describes exactly what we know as 
waterboarding. The charges and specifications by this tribunal staffed 
by American officers describe that they did willfully and unlawfully 
commit cruel, inhuman, and brutal acts and atrocities and other 
offenses, including strapping them to a stretcher and pouring water 
down their nostrils, by holding the prisoner's head back and forcing 
him to swallow a bucketful of sea water over and over and over.
  How could they have missed it? How could they have missed it? How 
could they miss the decision on point by the U.S. Court of Appeals for 
the Fifth Circuit?
  What else do we know about the Office of Legal Counsel? We know that 
the conditions there were pretty ripe for abuse. We know they were 
doing this in secret, protected from public scrutiny, protected from 
peer review, protected from critical analysis under the veil of 
secrecy, deep secrecy in which they were operating, coming up with the 
theories as they pleased, thinking they would never see the light of 
day. So they did not have to do their homework. Somebody might have 
done a little research and found the Fifth Circuit decision on point, 
but, no, they did not need to.
  It is part of a pattern because, as the Presiding Officer will 
recall, when I was offered the chance to read the secret Office of 
Legal Counsel opinions related to the warrantless wiretapping program, 
I went and took some notes, and when I got back here, I eventually was 
able to get them declassified. They described other interesting 
theories that grew in that hothouse of legal ideology, protected from 
the glare of public scrutiny, ideas such as the President is not 
obliged to follow Executive orders. He is not obliged to give anybody 
notice that he is violating Executive orders. He can live in a parallel 
universe in constant violation of his own Executive orders and nothing 
is wrong with that, other than, of course, the fact that it completely 
degrades and destroys the entire structure of Executive orders as a law 
function of the United States of America.
  Another argument is that under article II, the President's power as 
Commander in Chief, he has the authority to determine what his powers 
are. Think about that for a moment. They assert article II gives them 
the authority to decide what the scope of his article II powers are. I 
seem to remember a decision called Marbury v. Madison saying it is 
``emphatically the province of the judicial department to decide what 
the law is.''
  The last one, my personal favorite, is that the Department of Justice 
is bound by the legal determinations of the President. It is a good 
thing that was not the case when President Nixon was the President and 
made the legal determination if the President does it, it doesn't 
violate the law.
  So what on Earth has been going on at the Office of Legal Counsel, an 
office that used to be distinguished for its probity, for its analysis, 
for its scholarship, an office on which the Department of Justice 
  Just as Americans rely on the Department of Justice to provide 
guidance in our Government, to provide a moral compass within the 
Department of Justice, the Office of Legal Counsel is supposed to be 
the place where they try to get it right. How could they try to get it 
right when they cannot even find a Fifth Circuit Court of Appeals 
decision on water torture when you are looking up whether it is 
illegal? If I were a partner in a law firm and a junior associate came 
to me with a memo such as this that had missed the case on point, do 
you think he would have much of a career? I don't think so. It is a 
fatal failure of legal analysis. And yet, where there is supposed to be 
the very best at the legal counsel of the Department of Justice, they 
missed all of it. If there has been a systematic breakdown in this 
institution of Government long known for probity and scholarship, if it 
has been captured and behind a veil of secrecy rendered a political 
ideological tool, that is a matter of very legitimate public concern.
  I am pleased to say Senator Durbin and myself have written to the 
inspector general of the Department of Justice and to the Office of 

[[Page S950]]

Responsibility of the Department of Justice to look into exactly that 
  I thank the Presiding Officer for his patience with me. I thank the 
distinguished Senator from Florida for his patience.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, we have heard one of the best--
I cannot use ``oration'' because it was far superior. It was one of the 
best explanations of how the Department of Justice has gone awry by the 
Senator from Rhode Island. I commend the Senator from Rhode Island. I 
thank him for his legal analysis, and I wish to underscore what he has 
said, that the reason the Department of Justice was ignoring that Court 
of Appeals decision, the reason the Department of Justice was ignoring 
all of the history of the record that has been built over time, of 
which the Senator cited the statements from World War II, the reason 
all of that has been ignored or purposely missed is because the 
Department of Justice became politicized so that politics became the 
rule of the day instead of the rule of law.
  In a nation that recognizes it is a nation of law, not a rule of men, 
when politics is inserted for law, then we get into the trouble we have 
gotten into. That is what brings us here.
  I have already addressed this subject of why my conclusion, a long 
deliberative process of coming to the question, that we ought to etch 
into law the Army Field Manual as the standard by which the 
intelligence community will carry out their interrogations. That ought 
to be the law.
  I thank the Senators who have spoken in favor of this legislation. We 
are going to have a chance to vote on it pretty soon. Each of us can 
determine what we think ought to be representative of America, if it 
ought to be torture or not. We are clearly going to have an opportunity 
to say that because we are going to vote on a proposed law that says: 
Is torture going to be the standard for America?
  I wish to speak on another subject, so I guess the appropriate 
parliamentary procedure is for me to ask consent to speak as in morning 
  The PRESIDING OFFICER. Without objection, it is so ordered.

                 Rape and Sexual Assault Investigations

  Mr. NELSON of Florida. Mr. President, thus far, the Department of the 
Army has acknowledged that there have been 124 incidents of sexual 
assault against contractor and military personnel in Iraq which are 
currently under investigation. We know of only three of those cases 
that are now being considered by the Department of Justice and, 
therefore, the Department of Justice will not respond to my entreaties 
about this investigation because they say it is an ongoing criminal 

  However, in other cases, we have gathered some facts, and these facts 
have been quite telling. There does not seem to be a standard to 
protect female contractors or military personnel from sexual assault in 
Iraq under the jurisdiction of the U.S. Army. The 124 cases of sexual 
assaults of both contractors and military personnel have been 
acknowledged just under the Department of the Army. The question is, 
under the other branches of the service whose contracts are being 
administered by civilian contractors, how many are there; and are there 
similar cases in the other theater of operations--Afghanistan as well 
as in Iraq?
  What we also know from the facts we have gathered thus far is the 
problem is not within the U.S. military nearly so much as it is among 
contractor personnel because there is a nebulous set of regulations as 
to how it is to be handled on the reporting of a rape. Untold numbers 
of sexual assaults have been committed in Iraq, and the Departments of 
Justice, Defense, and State are providing very little information on 
whether they have been prosecuted. It is time we have this information.
  Last December, I wrote to the Secretary of Defense asking him to 
launch an investigation by DOD's inspector general into the rape and 
sexual assault cases in both Iraq and Afghanistan. I sent similar 
letters to the Secretary of State regarding the investigations carried 
out under the Bureau of Diplomatic Security, and I requested that the 
Attorney General update me on the status of the related criminal 
investigations. I asked whether and why evidence in the sexual assault 
cases was turned over to the private firms.
  I got into this when one of my constituents in Tampa, FL, came forth 
and told about the assault case. This had followed a Texas case that 
had been elevated to the public sphere. Apparently, one of these women 
was assaulted, then went to see the doctor, and a rape kit was prepared 
by the military doctors. That kit would have the evidence of the rape, 
and it was turned over to the civilian contractor. Suddenly, the rape 
kit disappeared.
  So the question is, what steps has the Department of Defense taken to 
ensure the full investigation and prosecution of these cases?
  In the meantime, the Department of State has told our office that 
diplomatic security has investigated four cases. One of them was the 
Texas lady, and that was where a contractor personnel assaulted another 
contractor personnel. Another involved a State Department employee who 
allegedly assaulted a woman employed by a contractor--in this case KBR. 
Then another case involved two State Department employees. According to 
the State Department, three of the cases were referred to the 
Department of Justice for investigation and possible prosecution.
  Recently, our Senate staff met with representatives of the Department 
of Defense IG's office, and we asked them to brief us because of the 
response received from the Department of Defense, which certainly did 
not answer my questions. The inspector general's office stated that, 
and this is what blew our mind, the Army Criminal Investigation Command 
has investigated 124 cases of sexual assault. Now, that is just the 
Army, and that is just in Iraq. And that is just in the 3 years of 
2005, 2006, and 2007. So what about the other services and what about 
  So this naturally leads me to question whether there could be 
hundreds of additional investigations going on about contractor 
personnel--specifically in the ones that have come to us, it was the 
contractor KBR--and it suggests that perhaps there could be many 
assaults that have not been investigated at all. And because the 
inspector general's office would not provide information on the 
disposition of these investigations, it certainly is unclear whether 
there has been any prosecution of these within the military or the 
criminal justice systems, or whether it has been dealt with 
  Now, one of my Florida constituents was, and I will use the word 
advisedly, allegedly sexually battered in Iraq in 2005. And although 
the Naval Criminal Investigative Service was supposed to be 
investigating her case, they will not even say anything about the basic 
matters of the case because, the Navy says:

       Law enforcement records are exempt from disclosure at the 
     time requested if it can be reasonably expected to interfere 
     with the enforcement proceedings.

  I think we in this Congress, we in the Senate, and those of us on the 
Senate Armed Services Committee and the Senate Foreign Relations 
Committee, certainly have an obligation to investigate. Because cases 
such as this can languish far too long without any information from the 
Government coming forth in order to protect these individuals.
  So I have asked that our office follow up with the Defense 
Department, with the following detailed questions: The actual numbers 
of the sexual assault cases reported since 2001 in Afghanistan and 
since 2003 in Iraq and the disposition of each case. I have asked to 
have the information of the service components or the Government 
agencies involved in each resulting investigation. I have asked for the 
status of the persons involved in each case--in other words, I want to 
know whether they are Active military, U.S. Government civilian 
employees, contractor employees or are they an Iraqi or Afghani 
  I have asked for an explanation of the U.S. jurisdiction or the 
investigative authority for sexual assault allegations in both those 
areas in which we are engaged--Iraq and Afghanistan. And I have asked 
for a clear explanation of the rules, regulations, policies, and 
processes under which sexual assaults are investigated, evidence is 
obtained, and responsible individuals are held accountable. I have also 

[[Page S951]]

for a clear explanation of how the Department of Defense divides 
authority among all its various investigative arms in these sexual 
assault cases.
  I have had to ask these questions because DOD and the Department of 
State have not been forthcoming. Yet what is being told by some of 
these assault victims is absolutely horrifying. For example: One female 
contractor employee, during cocktail conversation, suddenly, totally, 
passed out. Apparently, her drink had been spiked. She awoke to find 
out she had been assaulted many times. Upon seeing a military doctor, 
in fact, that was confirmed and the rape kit was prepared. But when the 
rape kit was turned over to the contractor, it amazingly disappeared. 
The evidence disappeared. That contract employee then, upon asking 
questions, was locked in a container and could not get out of the 
container to go and tell her story to other personnel of her 
contractor, and she only got out because she was able to persuade 
someone to let her use a cell phone to call her father back in the 
United States. That is how she got out of her confinement.
  Now, if all of that is true, there is simply no excuse for this. But 
what we need to determine is the truth. It is a shame that the senior 
Senator from Florida has to come to the floor of the Senate to elevate 
this issue in order to say to the Department of Defense and the 
Department of State that we want the answers to our questions.
  I have asked the questions. I expect, on behalf of the Congress of 
the United States, that we will get the answers.
  I yield the floor.
  Mr. President, I ask unanimous consent that the time during the 
quorum be equally divided between the two sides.
  The PRESIDING OFFICER (Mr. Cardin). Without objection, it is so 
  Mr. NELSON of Florida. Mr. President, I suggest the absence of a 
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. FEINSTEIN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to speak for 
up to 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. I spoke earlier this morning, so I will be brief.
  It would appear that the Senate is poised to pass a measure that 
would end the debate over torture in our Nation. It would require the 
CIA to follow the Army Field Manual when it comes to interrogations of 
detainees, and it would create a uniform standard for interrogation 
across the Government. It would prohibit waterboarding and certain 
other coercive interrogation techniques. I deeply believe it will go a 
long way toward restoring our Nation's credibility.
  I have spoken with experts on interrogation, numerous retired three 
and four star generals, and human rights leaders. From our discussions, 
I am absolutely convinced that we must have a uniform standard for 
interrogation of detainees across the Government. That is what putting 
the CIA under the Army Field Manual would do.
  This debate is about values. We are a nation of values, and we 
believe in the rule of law. It is fair to say that America has been 
diminished around the world. Our standing is at an all-time low, not 
only among our allies but also our enemies. This comes from Abu Ghraib. 
It comes from Guantanamo. It comes from renditions, and it comes from 
black sites. It comes from waterboarding, a technique used during the 
Spanish Inquisition to get religious dissenters to publicly disavow 
their beliefs.
  Let me give one example of why a clear, single standard for all 
detainee interrogation is needed.
  Until a couple of weeks ago, the executive branch refused to admit 
that it had waterboarded anyone.
  Then last week, at a public hearing, General Hayden stated that the 
CIA has waterboarded three detainees: Abu Zubaydah, Abd al-Rahim al-
Nashiri, and Khalid Sheikh Mohammed. General Hayden said this was done 
in the past and would not be used in the future.
  In fact, General Hayden said that waterboarding itself was no longer 
necessary. These were two major revelations. The U.S. Government had, 
in fact, authorized waterboarding, and we weren't going to do it again.
  The very next day, a White House spokesman, Tony Fratto, said the 
President could reauthorize the use of waterboarding at any time. At 
this point, we had returned to a state of confusion. The CIA was saying 
waterboarding was not authorized and not needed. The White House was 
saying waterboarding was still on the table.

  That was not the end. The very next day, General Hayden testified in 
open session again, this time in front of the House Intelligence 
Committee. Here is what he said:

       In my own view, the view of my lawyers and the Department 
     of Justice, it is not certain that that technique--

  Meaning waterboarding--

     would be considered lawful under current statute. . . .

  So here you have a mix of views. Here you have unclear American 
  The bill which we have before us today clears up that confusion, and 
it states once and for all what the U.S. Government would do; that 
there would be 19 specific approaches documented over many pages for 
each approach in this volume, and 8 specific techniques that are 
banned, one of which is waterboarding.
  So we have the opportunity today to take a stand--to clear the air 
and to say that the U.S. Government follows uniform specific standards 
for interrogation of detainees as put forward by the Army Field Manual.
  I would like to quote a statement the President of the United 
States--President Bush--made on June 22, 2004. Here is his quote:

       We do not condone torture. I have never ordered torture. I 
     will never order torture. The values of this country are such 
     that torture is not a part of our soul and our being.

  President Bush, if you stand by these words, you will sign this 
intelligence authorization bill.
  Thank you, Mr. President. I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, how much time do I have left out of 
the 5 minutes?
  The PRESIDING OFFICER. A minute and a half.
  Mrs. FEINSTEIN. Mr. President, if I may, I very much would like to 
thank a few people who have been very helpful in this whole thing. The 
first is David Grannis, my intelligence liaison, who has been with me 
all the way. I thank the Partnership for a Secure America and the 18 
former national security officials who wrote in support of the Army 
Field Manual.
  I thank Senators Hagel and Snowe for taking a stand for what is right 
for America in the Intelligence Committee. I thank our chairman, 
Senator Rockefeller, for being willing to risk the passage of this 
legislation by supporting this very important amendment.
  I also thank Senator Whitehouse. He offered this amendment when it 
was in the Senate Intelligence Committee. I thank him for his tireless 
efforts in support of this conference report. I have seen him on the 
Senate floor at least twice today. He was a cosponsor of the amendment 
I offered in the conference, and I know his staff has been very 
effective in working on this amendment.
  I thank Senator Tom Carper of Delaware who has done a lot of work on 
this issue on the telephone.
  I thank my colleague and friend, Senator Ron Wyden, who came earlier 
to the floor to speak on this issue.
  So there have been many people working toward this vote, and it looks 
as if it may just happen. I would like them to know that we are very 
grateful for their support.
  Oh, one more: Senator Feingold. Senator Feingold was a cosponsor

[[Page S952]]

when I offered the amendment in the Intelligence Committee. I very much 
thank him for his steadfastness.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Republican whip.
  Mr. KYL. Mr. President, we are going to be voting in about an hour or 
so on the conference report on the Intelligence Authorization Act. I 
would like to explain briefly the reasons I think we should vote 
against that reauthorization.
  There are two primary reasons. First has to do with the additional 
provision that was passed neither by the House nor by the Senate but 
was dropped into the conference report without Republican involvement; 
that is, the provision that Senator Feinstein authored that would 
substitute for the authority that agencies of the United States 
currently have--agencies such as the Central Intelligence Agency--to 
interrogate foreign terrorists. It would substitute for the current 
rules under which they operate the U.S. Army Field Manual.
  The U.S. Army Field Manual is a document that is prepared for use for 
all of our military Armed Forces, to provide rules of the road for them 
in interrogating enemy prisoners of war. So when they capture someone 
on the battlefield, in order to ensure that the Geneva Conventions are 
adhered to, there is a set of guidelines set out in the Army Field 
Manual that very explicitly explain to our soldiers exactly how they 
need to treat these prisoners and what kind of interrogation in which 
they can engage.
  A couple of years ago, when the Congress and the administration got 
together and revised our procedures and the statute dealing with this 
subject, the explicit decision was made to not have the Army Field 
Manual govern the interrogations by other Government agencies. That was 
a wise decision then, and it is a wise decision now.
  There are reasons the U.S. Army would want to have a set of rules for 
soldiers capturing enemies on the battlefield. But there is quite a 
different situation presented when you have captured a terrorist and 
you want to interrogate that terrorist and you have at your disposal 
Central Intelligence Agency trained personnel or other special 
personnel who are trained in interrogation techniques that comply with 
the Geneva Conventions accords, are not torture, are authorized by law, 
but may be outside the particular scope of the Army Field Manual.
  This is a gross oversimplification, but for people to generally 
appreciate what I am talking about, you have all seen movies where a 
prisoner of war is captured, and they say: Give me your name, rank, and 
serial number, and that is pretty much all an enemy soldier is required 
to provide. You cannot torture them to get them to tell you anything 
beyond those three pieces of information, and that is as it should be.
  Interestingly, our terrorist adversaries know well the Army Field 
Manual, and if they are captured as enemy POWs on the battle ground by 
U.S. Army personnel, they know precisely what kind of interrogation to 
expect. In fact, we know they are trained on how to resist the 
interrogation techniques and not provide information. It would be a 
horrible mistake for us to assume that the techniques that are 
appropriate for Army battlefield capture interrogation should apply as 
well to situations in which a CIA person is interrogating a terrorist--
someone who is not fighting for another country in a uniform captured 
on the battlefield.
  That is the essence of the Feinstein proposal, and it is one of the 
reasons the President has made it very clear that were this conference 
report to pass, he will veto the bill; indeed, he should.
  There are other reasons for the President's decision to veto the bill 
as well. Let me just mention a couple of them. One of the things that 
relates to this interrogation matter is a requirement in the bill that 
a report to Congress must be made of the identity of each and every 
official who has determined that any interrogation method complies with 
specific Federal statutes, why the official reached the conclusion, and 
the related legal advice of the Department of Justice.
  This may seem benign on the surface but, I submit, is in the nature 
of harassment of officials who are trying to make decisions about the 
application of law. They come to judgments. They advise the people who 
are asking for the advice, and then action is taken on that basis. If 
Congress needs a report every time a Government official makes a 
decision, clearly that agency cannot function.
  Secondly, there are too many opportunities for second guessing, too 
much of an incentive for the people who are doing the work we ask them 
to do to not make any decisions, not engage in that work because they 
might make a mistake. This is exactly the kind of ethos we do not want 
in our intelligence community.
  Another requirement of the bill is the creation of another inspector 
general. We already have inspectors general for each of the elements of 
the intelligence community, but there would be a new one under the DNI. 
But his primary responsibility would be to report to Congress rather 
than the DNI.
  There are other requirements for reports that have already occupied 
far too much attention of our intelligence community. There are 
requirements for congressional confirmation of several new positions, 
positions that currently do not require congressional confirmation 
because they are not political offices. It is the head of the NRO, for 
example, the head of NSA. These are agencies that have been peopled 
with professionals, people who do not have anything to do with 
politics. They should not have to come to the Senate and get grilled by 
Senators--more importantly, Senators who then might hold them up.
  You have heard about the holds Senators place on nominees. I do not 
know how many executive nominees and judges we have waiting 
confirmation by the Senate right now, but there are a lot. What happens 
is, because Senator X does not like the administration's position on 
something, they decide to put a hold on an important executive branch 
nominee. As a result, too many positions are vacant today because of 
unrelated holds by Senators. It just presents the Senate with an 
additional way to hold up action on people, in effect, to blackmail an 
administration into doing what it wants.
  There are a variety of other problems the President has pointed to in 
this legislation that will require the President to veto it. But I want 
to conclude by simply saying that a great deal of credit goes to 
Senators Rockefeller and Bond for their work in trying to create an 
authorization bill for the intelligence community against great odds. 
There is a lot of disagreement among people on the Intelligence 
Committee itself, as well as others in this body, about what ought to 
be done, and they came to, in effect, an agreement that except for the 
Feinstein proposal--that, as I said, was added in the conference; it 
was not passed by either the Senate or the House--they came to an 
agreement on a bill that Senator Bond has described as pretty 

  Hopefully, with the President now indicating he will veto the 
legislation over the provisions I have identified, and some others, the 
other side will recognize it is important to fix those problems, clean 
it up, get a bill back to the President he can sign, and we can move 


  Now, the last thing, Mr. President, I want to do is change the 
subject very slightly because we just had a conversation with the 
President, who reiterated his deep concern about the apparent 
unwillingness of the House of Representatives to reauthorize the 
Foreign Intelligence Surveillance Act so that we can engage in 
intelligence collection against this country's worst enemies: al-Qaida 
and other terrorists.
  This body, with a vote of 68 to 29--a very bipartisan vote--agreed on 
a Foreign Intelligence Surveillance Act reauthorization for a period of 
6 years. The key feature of it--different from the current law--is 
retroactive immunity for those telecommunications companies that might 
have assisted the United States in gathering this intelligence. That 
was following the Intelligence Committee's work--again, great work; 13 
to 2 was the vote in the Intelligence Committee, bipartisan--supporting 
that legislation. It has now been sent to the House of Representatives. 
All the House of Representatives needs to do is to take this bill, 
which has bipartisan support in the Senate, pass it, and send it to the 
President for his signature.

[[Page S953]]

  The President's point, just a few moments ago, to us was it would be 
an abdication of responsibility for the Congress not to accomplish this 
result before it leaves on a recess on Friday.
  This intelligence collection is critical to the security of the 
United States. The point of the most recent legislation is to provide 
retroactive liability protection for those companies that have aided 
the United States pursuant to its request.
  In effect, what happened was the President and the Attorney General 
requested various telecommunications companies to help us collect 
electronic information on people we have targeted as necessary for 
collection purposes. They did not have to do it. They volunteered to 
help us. They understood the threat to the United States and, like any 
good citizen would do when called upon by the Commander in Chief, they 
agreed to assist. Now, some of them have been sued. They are, of 
course, accountable to their boards of directors who have a 
responsibility under Federal law to protect shareholder interests.

  What some of these companies are finding is an increasing difficulty 
of assisting the United States and continuing to stay in business. They 
have their own business responsibilities. They have to engage in 
activities both in this country and in other countries sometimes. They 
have to get customers. They have to make business agreements with other 
parties. When too many other folks say: We don't want to do business 
with you because of the potential that you are going to be sued or that 
you have been sued, and then there is the question of whether we are 
going to be drawn into all that, then it makes it impossible for those 
companies to assist the United States.
  The point is this: There is an increasing concern that some of these 
companies are not going to be able to provide this assistance to us if 
we don't solve this retroactive immunity issue. Some people have said: 
Well, we will simply temporarily extend the existing law. The reason 
that doesn't solve the problem is because the existing law doesn't 
provide that retroactive immunity. That is the point of this 
legislation, and if this legislation doesn't provide that retroactive 
immunity pretty soon, there could well come a point in time when we 
don't have any telecommunications companies left doing this work for us 
to matter.
  Mr. WARNER. Mr. President, will the Senator yield?
  Mr. KYL. I am delighted to yield to the Senator from Virginia.
  Mr. WARNER. Mr. President, I am delighted the Senator from Arizona 
brought this up because I have participated in a number of debates with 
our distinguished colleague from Missouri. What we always have to 
remind our colleagues of, as well as the American public, is that these 
companies have volunteered. They are not in this for a profit motive. 
There is some compensation for expenses. They are not unlike the men 
and women of the Armed Forces, all of whom today are in uniform because 
they raised their right arm and volunteered. We cannot ask these 
companies to subject themselves to the uncertainty and the threats 
associated with legal processes. We are going to lose a very important 
component of what I call the American spirit: voluntarism. Whether it 
is in the corporate world, whether it is in the Armed Forces or any 
other number of activities, we are a Nation known for people who step 
forward and volunteer.
  This is a clear example of how these companies cannot continue under 
the situation that persists today, because the directors of those 
companies, their corporate boards, have an obligation to their 
stockholders. It is a stretch to say to the stockholders, who are part 
of the voluntarism they are doing to serve the cause of freedom in the 
United States, that they should be subjected to a lot of court suits.
  So I appreciate the Senator bringing this up. It is important. We 
have to remind our colleagues about it. I am proud of what this Chamber 
did. They voted it through, very clearly.
  Mr. KYL. Madam President, if I could say to the Senator from 
Virginia, I hadn't thought of putting it quite the way he did. He is, 
exactly right. We have thousands of young men and women who volunteer 
to serve their country. What would we think if part of that service 
means getting sued by somebody? Wouldn't we provide them protection 
from those kinds of lawsuits? Obviously, we would. The companies that 
serve us every day when we pick up the phone to make a phone call--we 
want them to be there to help us--they step forward when the President 
asks them to volunteer to serve their country, at no profit, as the 
Senator makes clear, and then they get sued and we are not willing to 
provide protection to them.
  Mr. WARNER. Madam President, I couldn't agree more. Furthermore, the 
service they are doing by virtue of this voluntarism directly 
contributes to the safety and the welfare of the men and women in the 
Armed Forces who are engaged in harm's way beyond our shores.
  Mr. KYL. Madam President, that is another very good point.
  Mr. WARNER. At this point, we have about run out of time, and I wish 
to say a few words about the pending matter.
  Mr. KYL. Let me conclude these remarks then. The key point I am 
trying to make is we have related activities. We have the Intelligence 
Authorization bill on the floor, but we also have a couple of days 
before this recess to see that the great work the Senate did is adopted 
by the House of Representatives so the President can sign it.
  Having just come from the White House, the President asked us to 
please convey his sense of concern for the people of this country, for 
the security of those soldiers whom we sent to do a mission, if we 
can't get good intelligence on this terrorist enemy, and the only way--
the best way we can do that is through the interception of these 
communications. It cannot be done if there are no telecommunications 
companies willing to assist us. There could well come a point in time 
when, because we haven't done our job of providing them liability 
protection, there is nobody there to provide the help to us.
  So I thank the Senator from Virginia, and again I get back to my 
original point, which was I hope that in a few moments, knowing the 
President is going to veto this piece of legislation, we will support 
his position and vote no on the authorization conference report.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Klobuchar). The Senator from Virginia has 
23 minutes remaining.
  Mr. WARNER. Fine. That is under the control of the distinguished 
Senator from Missouri, and I will ask for such time as I may need at 
this point.
  I have always considered myself, here in the Senate, to be most 
fortunate for the various assignments I have had through this being my 
30th year. There have been periods when I have served on the 
Intelligence Committee. I was once the ranking member of the 
Intelligence Committee. Then, fortunately, I was selected to go back on 
the Intelligence Committee several years ago. It has been a part of my 
overall service to the Senate, and indeed to the Nation, to be on that 
  I was at first introduced to the world of intelligence in 1969 when I 
was fortunate enough to go to the U.S. Department of Defense at the 
Pentagon and serve the Navy, first as Under Secretary and then 
Secretary. So I have actively been involved in the work of the 
intelligence community for some many years.
  I am greatly concerned that we have before us today a piece of 
legislation which, even though a member of the committee and even 
though I worked with my colleagues to frame this legislation, I will 
have to vote against because of the actions that took place in the 
conference committee where an out-of-scope provision was put in--for 
the best of intentions, I am sure, but it wasn't carefully thought 
through, in my judgment, because this provision would say that 
henceforth, the CIA and the Federal Bureau of Investigation would have 
to conduct their interrogation procedures in accordance with the Army 
Field Manual.
  I was privileged again to be one of a group of a small number of 
Senators who, in the year 2005, worked on the Detainee Act and then 
subsequently, in 2006, worked on other legislation to try to delineate 
carefully the responsibilities of various agencies and departments of 
our Government as it related to the all-important collection of our 
intelligence and a part of that collection procedure being the 

[[Page S954]]

of detainees. Now, we decided, after a lot of careful deliberation of 
the 2005 act, that we would restrict that to the men and women in the 
Armed Forces.
  There was a very good reason for that. In the course of our conflicts 
in Iraq and Afghanistan, detainees came into the possession of our 
field forces, operating in combat conditions most of the times when 
these detainees were caught, and relatively, so to speak, while the 
military people are magnificently trained throughout their careers to 
deal with these situations of combat and the like, very few of them 
have had the opportunity to get into the profession of interrogation. 
In order to give them the protection they needed in performing 
interrogation at what we call the field and tactical level, it was 
important to draw up this act and to prescribe very clearly for the men 
and women in uniform--I repeat that: only for the men and women in 
uniform--very clearly the procedures they must follow to accord the 
values of our framework of laws, the fact that this is not a nation 
that stands for torture, and to also give them protection in the event 
that somehow they were challenged in a court of law, be it a military 
court or other courts, as to their performance by virtue of their 
interrogating activities of certain detainees. So there were many 
reasons to put it all down and say that this is the Army Field Manual, 
prescribe the authorized techniques, and therefore allow the men and 
women of the Armed Forces to continue their operations militarily, 
tactically, and to follow that field manual in such instances where it 
is necessary to interrogate detainees.
  But in the course of that debate--and understandably and I think 
quite properly--attention was given to whether we should have this type 
of procedure applicable to all the Government agencies and departments 
of our Federal Government. The decision was made, and the answer was 
no--not quickly, no; it was a deliberate no reached after a lot of 
careful consideration--that this Detainee Act should be for the purpose 
of our military people, and we purposely did not include the CIA and 
the FBI. As time evolved into 2006, when we had that legislation, once 
again we reiterated we would not include either the CIA or the DIA and 
then in any way at that time legislate their program, other than to say 
that the conduct of the CIA program and the FBI program has to be in 
total compliance with all the laws of our land, which in no way 
sanctioned abusive treatment, torture or those sorts of things. It is 
not a part of it.
  Furthermore, that both the procedures by the CIA and the FBI had to 
be in compliance with the treaties, the treaty obligations we have, 
particularly article 3, common article 3, which has been debated so 
carefully on the floor of the Senate.
  So, in effect, what we have before us momentarily in this vote is 
overruling the decisions that were made by this body in the context of 
drawing up those two statutes, one in 2005 and one in 2006. So I, for 
that reason, feel very strongly that I cannot support this. I think it 
has been indicated that the President doesn't support it and that if 
this were to arrive at his desk, in all probability, we would have a 
veto, and that would be regrettable because a lot of work has been put 
into this bill. There are portions of it that the distinguished Senator 
from Arizona, Mr. Kyl, talked about which hopefully can be corrected. 
But we need an Intelligence bill. We have marvelous staff in the Senate 
and others who work on this problem of legislation year after year, and 
we are long overdue to have an Intelligence bill. It is unfortunate 
that in the last throes of the legislative process, in a conference, 
this provision, which we clearly know to be out of scope, was put into 
the bill, and it is for that reason that I will have to oppose the 
  There is another reason I would have to oppose it, and that is that 
the Army Field Manual, again, was for the military, but it is a manual. 
Certainly, under the current way it is framed and put together in the 
law, a manual can be changed. So while there are some 19 techniques 
that are detailed as approved for the use of our troops in the field 
and elsewhere, who is to say they couldn't add some more and that at 
that point Congress is not involved. So I am not sure people thought 
through the technical aspects of this thing, and to me, it is a very 
unwise decision.
  But I wish to reiterate to our colleagues that by virtue of taking 
the stance I take--and I presume a goodly number of individuals will 
join in this, unfortunately, and vote against this bill--this is not to 
say, in any way, that we are sanctioning that the Agency, the CIA, 
employ techniques which are in any way constituted as abusive treatment 
of human beings or torture or degrading.
  All of that is carefully spelled out in the framework of the laws of 
2005 and 2006, and it cannot be done by the agency, nor the FBI--nor 
are they doing it. The Intelligence Committee has had a series of 
hearings. We have had the DNI, the Director of the CIA, the head of the 
FBI, and all of them have been carefully questioned and are on record 
saying that these procedures, which would be tantamount and 
antithetical to our laws of 2005 and 2006 are not employed now, and 
they will not be in the future.
  It is for that reason that I will have to oppose this bill. I urge my 
colleagues to do likewise because we will be taking away from the 
agencies the ability to perform a very limited number of 
interrogations, a very limited number--but they do them in an entirely 
different framework of circumstances, environment, than does the Army 
or other military members of our Army, Navy, Air Force, and Marine 
Corps under the Army Field Manual.
  The techniques applied by the CIA are in compliance with the laws, 
but they are not all written up so that a detainee knows full well that 
if they are apprehended, they will be subjected to the interrogation 
procedures of the agencies; he would know all about it if it is written 
up as it is in the Army Field Manual. That would take away a good deal 
of the psychological impact of highly skilled interrogating procedures. 
We are about to throw those away, abandon them.
  This is a very dangerous and complex world. I sometimes think, in the 
course of this political campaign, as I listen to my good friends--
three of them Members of this Chamber--vying for the Presidency of the 
United States, the awesome framework of complex situations that is 
going to face the next President of the United States. I must say, I 
have a few years behind me, and I have seen a good bit of history in 
this country, but never before has the next President, whoever it may 
be--never before have they faced such an awesome, complex situation in 
the world that is so fraught with hatred and terrorism and threats to 
the basic freedoms of our Nation and many other nations.
  It is going to be a real challenge for that next President to 
shoulder the responsibilities of Commander in Chief of the Armed Forces 
of the United States. And this set of procedures that we presently have 
in place, which complies with the law of our land, which complies with 
international treaties, must be left intact to enable the Intelligence 
Committee to conduct their interrogations and do so to produce facts 
which could very well save this Nation and facts that are, every day, 
helping to save the men and women of the Armed Forces in uniform 
wherever they are in the world--primarily in Iraq and Afghanistan--as 
they pursue their courageous responsibilities on behalf of us here at 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Madam President, I believe it is important to clear up for 
the record, for the benefit of my colleagues and the American people, 
some statements that were made earlier today about waterboarding, 
interrogation techniques and the Army Field Manual.
  During the House and Senate conference for the fiscal year 2008 
intelligence authorization bill, an amendment--section 327--was adopted 
that would prevent any element of the intelligence community from using 
any interrogation technique not authorized by the Army Field Manual.
  Earlier today, we heard that the full membership of the conference 
committee, the full membership of the House Intelligence Committee and 
Senate Intelligence Committee all came to the conclusion that all 
interrogations should be conducted within the terms of the U.S. Army 
Field Manual.

[[Page S955]]

  Let's be clear: this particular amendment only passed by a one-vote 
margin. The conference was sharply divided on this issue, as reflected 
by the fact that no House Republicans signed the conference report and 
only two Senate Republicans signed the report.
  The problem with this provision is not that it says that 
interrogators cannot use certain techniques. Most of the techniques 
prohibited by the field manual are so repugnant that I think we can all 
agree they should never be used.
  In fact, this vote is not about torture, and it is not about 
waterboarding. We all think that torture is repugnant. And whether one 
believes that waterboarding is torture is really irrelevant because 
waterboarding is not in the CIA's interrogation program.
  The problem is that the provision in the conference report 
establishes a very limited set of techniques, and these are the only 
techniques that any interrogator may use.
  So the vote is really about whether the FBI and CIA should be 
restricted to a set of 19 unclassified techniques, designed for the 
Army, which have not been examined fully by some agencies.
  If this legislation passes and is signed into law, all of us need to 
understand fully that FBI and CIA interrogators may only use the 19 
techniques authorized in the field manual. And all of us need to 
understand that no one can say for sure that this will not impact our 
future intelligence collection.
  As CIA Director Hayden has said: ``I don't know of anyone who has 
looked at the Army Field Manual who could make the claim that what's 
contained in there exhausts the universe of lawful interrogation 
techniques consistent with the Geneva Convention.''
  If we are going to demand that all Government agencies must use only 
these techniques, we must make sure that the field manual does not 
leave out other moral and legal techniques needed by these agencies. 
And I don't believe that the Intelligence Committee has adequately 
pursued this issue.
  Having a single interrogation standard does not account for the 
significant differences in why and how intelligence is collected by the 
military, CIA, and FBI.
  Much has been made of the FBI saying that they do not use coercive 
techniques. That is accurate. The FBI operates in a different world--
where confessions are usually admitted into evidence during a 
prosecution. This means that they have to satisfy standards of 
voluntariness that do not bind either the military or the CIA.
  But significant concerns have been raised about whether the FBI would 
even be able to conduct ordinary interrogations using only those 
techniques authorized by the field manual.
  A time-honored technique, one that has led to countless successful 
prosecutions, is deception--for example, telling a suspect that his 
associate has confessed even though the associate has refused to 
cooperate. But, it's unclear where this type of deception is authorized 
in the field manual. So, under this amendment, the FBI could be barred 
from using this simple, yet invaluable, technique.
  FBI lawyers have told us that they need more time to conduct a full 
legal review of the field manual and determine along with their 
counterintelligence and counterterrorism divisions what impact using 
only the field manual would have on interrogations. We should give them 
time to do this review before we pass a bill that could severely 
undermine their interrogation practices.

  Aside from these concerns, the Army Field Manual on Interrogation was 
designed as a training document. It is changeable, which means the 
Congress--and the CIA and FBI have no idea what techniques may be 
added--or subtracted--tomorrow, next month, or next year. A moving 
document is not a sound basis for good legislation.
  There are also practical consequences to applying this unclassified 
military training manual to civilian agencies; as we heard earlier, 
having one standard that can be publicly judged by the entire world. We 
are talking about intelligence interrogations. We should not broadcast 
to the world, to our enemies, exactly what techniques our intelligence 
professionals may use when seeking information from terrorists.
  The wide availability of the field manual on the internet makes it 
almost certain that al-Qaida is training its operatives to resist the 
authorized techniques.
  Supporters of this provision also argue that the Army Field Manual 
gives interrogators sufficient flexibility to shape the interrogation. 
Yet, some of the techniques in the field manual are allowed only if the 
interrogator obtains permission from ``the first O-6 in the 
interrogator's chain of command.'' What that means is that an 
interrogator has to get permission from an Army or Marine Corps colonel 
or a Navy captain before proceeding. So in order to have any 
flexibility, will the CIA and FBI have to bring colonels and captains 
to all of their interrogations? These interrogations will get awfully 
crowded pretty quickly.
  We have been told that the field manual incorporates the Golden rule. 
Do unto others as you would have them do to unto you is an admirable 
standard. But when dealing with terrorists who have shown no regard for 
morality, humanity, and decency, it is somewhat out of place.
  Do we really expect that if we restrict ourselves to techniques in 
the Field Manual that al-Qaida will do the same? While we are arguing 
about whether waterboarding is torture, they are chopping off heads and 
using women and children to conduct their suicide bombings. Now, I am 
not suggesting that we resort to their barbaric tactics. I am simply 
saying that we should not base this important decision that will bind 
all of our intelligence interrogations on the hope that al-Qaida will 
discover civility.
  Let me also clarify a comment from our distinguished committee 
chairman about the interrogation of Ibn Shaykh al-Libi. It was 
suggested that al-Libi lied to interrogators because of the CIA's 
``coercive'' techniques. However, al-Libi was not in CIA custody--or 
foreign custody for that matter--when he made claims about Iraq 
training al-Qaida members in poisons and gases.
  In fact, it was only when al-Libi was interviewed by CIA officers 
that he recanted his earlier statements.
  I believe we still have a lot of work to do before we impose 
restrictions on CIA and FBI interrogations that could have severe 
consequences for our intelligence collection.
  Now, I want to make clear what my position is here today. For the 
past several months, I have worked hard to put together a reasonable 
bill that allows the Intelligence Committees to conduct necessary 
oversight, while cognizant of the administration's concerns about 
resources and executive branch prerogatives.
  I understand that no administration likes oversight. But oversight is 
essential to what Congress does: We have an obligation to the taxpayers 
to make laws and appropriate funds responsibly. And in order to do 
this, we have to know how the money is being spent and what activities 
are being conducted.
  I have reviewed closely the Statement of Administration Policy on 
this bill and I am confident that we have addressed or resolved all but 
one of the concerns listed there. One provision remains that merits a 
veto and that is the amendment before us: the Army Field Manual 
interrogation techniques.
  At the end of the day, if this provision is removed, I will support 
this bill. But in its current form, I cannot support it and I urge my 
colleagues to vote against the conference report.
  Mr. President, I thank the distinguished Senator from Virginia, who 
has played the lead in so many things, such as the Detainee Treatment 
Act and other major pieces of legislation, for his very thoughtful 
discussion of these issues.
  It has been very troubling to me to hear on the floor today some 
things about what the CIA does that are absolutely not true. We have 
heard all kinds of descriptions of techniques that are barred by the 
Army Field Manual. The techniques barred by the Army Field Manual, the 
horrors that were outlined, are not tactics the CIA uses. They do not 
use them. They would probably violate the Geneva Conventions and many 
other laws, which absolutely do cover interrogations by the CIA. When 
one raises the spectrum that the CIA may be torturing detainees, No. 1, 
it is not true; No. 2, for those who know what is going on, it is 
irresponsible; No. 3, it is the kind of thing

[[Page S956]]

that fuels the media of our enemies. I would not be surprised to see 
some of these comments reported in Al-Jazeera.
  What happened at Abu Ghraib was tragic. There were criminal acts by 
American troops. We punished them, but nobody talks about the fact that 
we punished them and sent them to prison. They went to the brig, as 
they should. Now we have heard discussions attributing to the CIA all 
manner of activities that are wrong, improper, not usable, and are not 
  I think it is important we clear the record. I wish some of the 
people who know better would say I didn't mean to say that the CIA does 
these things, because the people on the Intelligence Committee know 
precisely what is done and what is not done.
  Mr. WARNER. Will the Senator yield for a moment?
  Mr. BOND. I am happy to.
  Mr. WARNER. As a Senator from Virginia, I am proud to have the CIA 
principal office in my State. I have been working with them for 30-
some-odd years. I have gotten to know many of them through the years. 
They are not people who would set out to violate the laws of our 
Nation. They are just like you and me. They have families and the same 
values we share in the Senate and in our neighborhoods. They do go 
abroad and assume an awful lot of personal risk on a number of 
missions. But in terms of following the laws of our Nation, and the 
international laws, I think they stand head and shoulders, and they are 
to be commended.
  Mr. BOND. Madam President, I thank my distinguished colleague from 
Virginia. He is one of the real experts in this body on military and 
intelligence affairs. I can tell you that having talked with General 
Hayden and the other top officers of the Agency, getting to know 
Attorney General Mike Mukasey and those other responsible, high-
principled officials who are overseeing it, it is not a danger that we 
are going to see torture or inhumane or degrading treatment used.
  Now, again, during the House-Senate conference for the fiscal year 
2008 Intelligence authorization bill, an amendment--section 327--was 
adopted that would prevent any element of the intelligence community 
from using an interrogation technique not authorized by the Army Field 
  Earlier today, it was stated on the floor that the full membership of 
the conference committee, the full membership of the House Intelligence 
Committee, and the Senate Intelligence Committee came to the conclusion 
that interrogations should be conducted within the terms of the U.S. 
Army Field Manual.
  Let me be particularly clear that this amendment only passed by a 
one-vote margin. The conference was sharply divided on the issue, as 
reflected by the fact that no House Republicans signed the conference 
report and only two Senate Republicans signed the report.
  The problem with this provision is not that it says the interrogators 
cannot use certain techniques. Most of the techniques prohibited by the 
Army Field Manual are so repugnant that I think we can all agree they 
should not be and would never be used.
  In fact, this vote is not about torture or about waterboarding. 
Despite what you have heard on the floor, it is not about 
waterboarding. Torture is repugnant. We have stated that time and time 
again--in the Detainee Treatment Act and in other laws we passed. 
Whether one believes it is torture is irrelevant because waterboarding 
is not in the CIA's interrogation program.
  The problem is the provision in the conference report establishes a 
very limited set of techniques, and these are the only techniques any 
interrogator may use. So the vote is about whether the FBI and CIA 
should be restricted to a set of 19 unclassified techniques, designed 
for the Army, which have not been examined fully by some agencies. I 
say ``19 unclassified techniques'' because those techniques not only 
have been published widely, but they are included in al-Qaida training 
manuals. So the al-Qaida high-value leaders--the people with the 
information--know precisely what it is all about.
  If this legislation passes, and were it to be signed into law--which 
all of us know it will not--we all need to understand fully that the 
FBI and CIA interrogators may only use the 19 techniques authorized in 
the field manual. According to the field manual, they would have to get 
a clearance from an OC-6, a military officer. That was designed for the 
military, not for the CIA, not for the FBI. When my distinguished 
colleague from Virginia passed the Detainee Treatment Act, he and the 
Senator from Arizona, Senator McCain, expressly left the CIA out of the 
limitations to the Army Field Manual.
  As CIA Director Michael Hayden has said:

       I don't know anyone who has looked at the Army Field Manual 
     who could make the claim that what's contained in there 
     exhausts the universe of lawful interrogation techniques 
     consistent with the Geneva Conventions.

  He described a whole area of techniques. There are a whole group of 
techniques that we use on the volunteers who join our Marines, Special 
Forces, our SEALs, our pilots, which I described earlier today. Many 
tactics are far more difficult to withstand than the techniques that 
are used by the CIA in its interrogation.
  If we are going to demand that all Government agencies must use only 
these techniques, we must make sure the Army Field Manual doesn't leave 
out other moral and legal techniques needed by these agencies. I don't 
believe the Intelligence Committee has adequately pursued this issue.
  How many of those techniques do we want to publish so our al-Qaida 
targets will know how to resist them? Having a single interrogation 
standard does not account for the significant differences in why and 
how intelligence is collected by the military, CIA and FBI, and from 
whom it is collected.

  Much has been made of the FBI saying they do not use coercive 
techniques. That is accurate. The FBI operates in a different world--
where confessions are usually admitted into evidence during a 
prosecution. This means they have to satisfy standards of voluntariness 
that do not bind either the military or CIA. When they question 
somebody, they are trying to stop a terrorist attack from happening in 
the future. They are in the field. The FBI is investigating a crime 
that has been committed in the hopes of punishing those people. There 
are significant concerns about whether the FBI would even be able to 
conduct ordinary interrogations using the techniques in the Army Field 
  A time-honored technique, one that has led to countless successful 
prosecutions, is deception--for example, telling a suspect that his 
associate has confessed even though the associate has refused to 
cooperate. But as I read the Army Field Manual, I don't see that that 
is authorized. So under this amendment, the FBI could be barred from 
using this simple, yet invaluable, technique.
  FBI lawyers have told us they need more time to conduct a full legal 
review of the Army Field Manual to determine, along with their 
counterintelligence and counterterrorism divisions, what impact using 
only the field manual would have on interrogations. We should give them 
time to do this review before we pass a bill that could severely 
undermine their interrogation practices.
  Aside from these concerns, the Army Field Manual on Interrogation was 
designed as a training document. It is changeable, which means the 
Congress--and the CIA and FBI--has no idea what techniques may be added 
or subtracted tomorrow, next month or next year.
  Are we really ready in this body to define something as a standard, a 
changing field manual? When do we ever do that, saying everybody has to 
follow the Army Field Manual, and the Army Field Manual can be changed 
when and if it is ready. There are practical consequences. The 
unclassified military training level is not applicable to questioning 
high-value detainees.
  This is, I suggest, a very bad measure. I believe the bill without 
this amendment would have been a very good one. I cannot urge my 
colleagues to vote for it.
  The PRESIDING OFFICER. All time has expired. The question is on 
agreeing to the conference report to accompany H.R. 2082.
  Mr. WARNER. Have the yeas and nays been ordered?
  The PRESIDING OFFICER. They have not been ordered.

[[Page S957]]

  Mr. WARNER. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from Missouri (Mrs. McCaskill), and the Senator from 
Illinois (Mr. Obama) are necessarily absent.
  Mr. KYL. The following Sentor is necessarily absent: the Senator from 
South Carolina (Mr. Graham).
  Further, if present and voting, the Senator from South Carolina (Mr. 
Graham) would have voted ``nay.''
  The result was announced--yeas 51, nays 45, as follows:

                      [Rollcall Vote No. 22 Leg.]


     Nelson (FL)


     Nelson (NE)

                             NOT VOTING--4

  The conference report was agreed to.
  Mr. REID. Madam President, I move to reconsider vote.
  Mr. LEAHY. I move to lay that motion on the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.