[Congressional Record: June 9, 2009 (Senate)]
[Page S6359-S6361]                        


  Mr. WHITEHOUSE. Mr. President, I wish to now change the subject and 
speak about an incident that is not part of anybody's proud heritage 
and that is the evidence we have recently heard about America's descent 
into torture. I know it is an awkward subject to talk about, an awkward 
subject to think about. On the one hand, we, as Americans, love our 
country, we hate the violence that has been done to us, and we want 
more than anything to protect our people from attacks. On the other 
hand, torture is wrong and we have known it and behaved accordingly in 
far worse circumstances than now.
  When Washington's troops hid in the snows of Valley Forge from a 
superior British force bent on their destruction, we did not torture. 
When our capital city was occupied and our Capitol burned by troops of 
the world's greatest naval power, we did not torture. When Nazi powers 
threatened our freedom in one hemisphere and Japanese aircraft 
destroyed much of our Pacific fleet in the other, we did not torture. 
Indeed, even when Americans took arms against Americans in our bloody 
Civil War, we did not torture.
  I know this is not easy. Our instincts to protect our country are set 
against our historic principles and our knowledge of right versus 
wrong. It is all made more difficult by how much that is untrue, how 
much that is misleading, and how much that is irrelevant have crowded 
into this discussion. It is hard enough to address this issue without 
being ensnared in a welter of deception.
  To try to clarify it, I wish to say a few things. The first is that I 
see three issues we need to grapple with. The first is the torture 
itself: What did Americans do? In what conditions of humanity and 
hygiene were the techniques applied? With what intensity and duration? 
Are our preconceptions about what was done based on the sanitized 
descriptions of techniques justified? Or was the actuality far worse? 
Were the carefully described predicates for the torture techniques and 
the limitations on their use followed in practice? Or did the torture 
exceed the predicates and bounds of the Office of Legal Counsel 
  We do know this. We do know that Director Panetta of the CIA recently 
filed an affidavit in a U.S. Federal court saying this:

       These descriptions--

  He is referring to descriptions of EITs--enhanced interrogation 
techniques--the torture techniques.
  He says in his sworn affidavit:

       These descriptions, however, are of EITs as applied in 
     actual operations and are of a qualitatively different nature 
     than the EIT descriptions in the abstract contained in the 
     OLC memoranda.

  The words ``as applied'' and ``in the abstract'' are emphasized in 
the text.

       These descriptions, however, are of EITs as applied in 
     actual operations and are of a qualitatively different nature 
     than the EIT descriptions in the abstract contained in the 
     OLC memoranda.

  The questions go on: What was the role of private contractors? Why 
did they need to be involved? And did their peculiar motivations 
influence what was done? Ultimately, was it successful? Did it generate 
the immediately actionable intelligence protecting America from 
immediate threats that it had been sold as producing? How did the 
torture techniques stack up against professional interrogation?
  Well, that is a significant array of questions all on its own, and we 
intend to answer them in the Senate Intelligence Committee under the 
leadership of Chairman Feinstein, expanding on work already done, 
thanks to the

[[Page S6360]]

previous leadership of Chairman Rockefeller.
  There is another set of questions around how this was allowed to 
happen. When one knows that America has over and over prosecuted 
waterboarding, both as crime and as war crime; when one knows that the 
Reagan Department of Justice convicted and imprisoned a Texas sheriff 
for waterboarding prisoners; when one sees no mention of this history 
in the lengthy opinions of the Office of Legal Counsel at DOJ that 
cleared the waterboarding--no mention whatsoever; when assertions of 
fact made in those OLC opinions prove to be not only false but provably 
false from open source information available at the time; when one 
reads Chairman Levin's excellent Armed Services Committee reports on 
what happened at the Department of Defense, it is hard not to wonder 
what went wrong. Was a fix put in? And, if so, how? A lot of damage was 
done within the American institutions of government to allow this to 
  If American democracy is important, damage to her institutions is 
important and needs to be understood. Much of this damage was done to 
one of America's greatest institutions--the U.S. Department of Justice. 
I am confident the Judiciary Committee, under Chairman Leahy's 
leadership, will assure that we understand and repair that damage and 
protect America against it ever happening again.
  Finally--and I am very sorry to say this--but there has been a 
campaign of falsehood about this whole sorry episode. It has disserved 
the American public. As I said earlier, facing up to the questions of 
our use of torture is hard enough. It is worse when people are misled 
and don't know the whole truth and so can't form an informed opinion 
and instead quarrel over irrelevancies and false premises. Much 
debunking of falsehood remains to be done but cannot be done now 
because the accurate and complete information is classified.
  From open source and released information, here are some of the 
falsehoods that have been already debunked. I will warn you the record 
is bad, and the presumption of truth that executive officials and 
agencies should ordinarily enjoy is now hard to justify. We have been 
misled about nearly every aspect of this program.
  President Bush told us ``America does not torture'' while authorizing 
conduct that America itself has prosecuted as crime and war crime, as 
  Vice President Cheney agreed in an interview that waterboarding was 
like ``a dunk in the water'' when it was actually a technique of 
torture from the Spanish Inquisition to Cambodia's killing fields.
  John Yoo, who wrote the original torture opinions, told Esquire 
magazine that waterboarding was only done three times. Public reports 
now indicate that just two detainees were waterboarded 83 times and 183 
times. Khalid Shaikh Mohammed reportedly was waterboarded 183 times. A 
former CIA official had told ABC News: ``KSM lasted the longest on the 
waterboard--about a minute and a half--but once he broke, it never had 
to be used again.''
  We were told that waterboarding was determined to be legal, but we 
were not told how badly the law was ignored and manipulated by the 
Department of Justice's Office of Legal Counsel, nor were we told how 
furiously government and military lawyers tried to reject the defective 
OLC opinions.
  We were told we couldn't second guess the brave CIA officers who did 
this unpleasant duty, and then we found out that the program was led by 
private contractors with no real interrogation experience.
  Former CIA Director Hayden and former Attorney General Mukasey wrote 
that military interrogators need the Army Field Manual to restrain 
abuse by them, a limitation not needed by the experienced experts at 
the CIA.
  Let's look at that. The Army Field Manual is a code of honor, as 
reflected by General Petraeus' May 10, 2000, letter to the troops in 
Iraq. He wrote this:

       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. . . . 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.
       We are indeed warriors. . . . What sets us apart from our 
     enemies in this fight, however, is how we behave. In 
     everything we do, we must observe the standards and values 
     that dictate that we treat noncombatants and detainees with 
     dignity and respect.

  Military and FBI interrogators, such as Matthew Alexander, Steve 
Keinman, and Ali Soufan, it appears, are the true professionals. We 
know now that the ``experienced interrogators'' referenced by Hayden 
and Mukasey had actually little to no experience.
  Philip Zelikow, who served in the State Department under the Bush 
administration, testified in a subcommittee that I chaired. He said the 
CIA ``had no significant institutional capability to question enemy 
captives'' and ``improvised'' their program of ``cooly calculated 
dehumanizing abuse and physical torment.'' In fact, the CIA cobbled its 
program together from techniques used by the SERE Program, designed to 
prepare captured U.S. military personnel for interrogation by tyrant 
regimes who torture not to generate intelligence but to generate 
  Colonel Kleinman submitted testimony for our hearing, in which he 

       These individuals were retired military psychologists who, 
     while having extensive experience in SERE (survival, evasion, 
     resistance, and escape) training, collectively possessed 
     absolutely no firsthand experience in the interrogation of 
     foreign nationals for intelligence purposes.

  To the proud, experienced, and successful interrogators of the 
military and the FBI, I believe Judge Mukasey and General Hayden owe an 
  Finally, we were told that torturing detainees was justified by 
American lives saved--saved as a result of actionable intelligence 
produced on the waterboard. That is the clincher, they stay--lives 
saved at the price of a little unpleasantness. But is it true? That is 
far from clear.
  FBI Director Mueller has said he is unaware of any evidence that 
waterboarding produced actionable information. Nothing I have seen 
convinces me otherwise. The examples we have been able to investigate--
for instance, of Abu Zubaida providing critical intelligence on Khalid 
Shaik Mohammed and Jose Padilla--turned out to be false. The 
information was obtained by regular professional interrogators before 
waterboarding was even authorized.
  As recently as May 10, our former Vice President went on a television 
show to relate that the interrogation process we had in place produced 
from certain key individuals, such as Abu Zubaida--he named him 
specifically--actionable information. Well, we had a hearing inquiring 
into that, and we produced the testimony of the FBI agent who actually 
conducted those interrogations.
  Here is what happened. Abu Zubaida was injured in a firefight and 
captured in Afghanistan. He was flown to an undisclosed location for 
interrogation. The first round of interrogation conducted 
professionally by Soufan and his assistant from the CIA produced such 
significant intelligence information that a jet with doctors on it was 
scrambled from Langley--from this area--and flown to the undisclosed 
location so that the best medical care could be provided to Abu Zubaida 
so he could continue to talk. That was the first round of information.
  In the second interrogation, conducted consistent with professional 
interrogation techniques, Abu Zubaida disclosed that the mastermind of 
9/11 attacks was Khalid Shaik Mohammed. That may be the apex piece of 
intelligence information we have obtained during the course of the 
  At that point, the private contractors arrived, and for some reason 
Abu Zubaida was handed over to them so they could apply their enhanced 
interrogation techniques. Ali Soufan testified that at that point they 
got no further information. What triggered the first round of 
information was that Soufan knew about Zubaida's pet name that his 
mother used for him. When he used that nickname, Zubaida fell apart. He 
didn't know how to defend himself, and he began to disclose this very 
important information.
  Knowledge, outwitting people, playing on mental weaknesses, taking 
advantage of our skills as Americans--that is what worked and got the 
information about Mohammed. He was

[[Page S6361]]

turned over to the private contractors for enhanced techniques and they 
got nothing.
  It was then determined that because the interrogation had become 
unproductive, he should be returned to the FBI agent and CIA agent who 
had twice interrogated him. It was in the third round that he disclosed 
information about Jose Padilla, the so-called dirty bomber, which was 
so important that Attorney General Ashcroft held a press conference, I 
believe in Moscow, to celebrate the discovery of this information. 
Again, for some reason, he was turned back again to the private 
contractors for the application of more abusive techniques, and again 
the flow of information stopped.
  For a third time, he was returned to the FBI and CIA agents again for 
professional interrogation, but by now he had been so compromised by 
the techniques, even they were unsuccessful in getting further 
  As best as I have been able to determine, for the remaining sessions 
of 83 waterboardings that have been disclosed as being associated with 
this interrogation, no further actionable information was obtained. Yet 
the story has been exactly the opposite. The story over and over has 
been that once you got these guys out of the hands of the FBI and the 
military amateurs and into the hands of the trained CIA professionals, 
who can use the tougher techniques, that is when you get the 
information. In this case, at least, the exact opposite was the truth, 
and this was a case cited by the Vice President by name.
  The costs of this could be high. There has been no accounting of the 
wild goose chases our national security personnel may have been sent on 
by false statements made by torture victims seeking to end their agony; 
no accounting of intelligence lost if other sources held back from 
dealing with us after our dissent into what Vice President Cheney 
refers to as the ``dark side''; no accounting of the harm to our 
national standing or our international good will from this program; no 
accounting of the benefit to our enemies' standing--particularly as 
measured in militant recruitment or fundraising; and no accounting of 
the impact this program had on information sharing with foreign 
governments whose laws prohibit such mistreatment.
  At the heart of all these falsehoods lies a particular and specific 
problem: The ``declassifiers'' in the U.S. Government are all in the 
executive branch. No Senator can declassify, and the procedure for the 
Senate as an institution to declassify something is so cumbersome that 
it has never been used. Certain executive branch officials, on the 
other hand, are at liberty to divulge classified information. When it 
comes out of their mouth, it is declassified because they are 
declassified. Its very utterance by those requisite officials is a 
declassification. What an institutional advantage. The executive branch 
can use, and has used, that one-sided advantage to spread assertions 
that either aren't true at all or may be technically true but only on a 
strained, narrow interpretation that is omitted, leaving a false 
impression, or that sometimes simply supports one side of an argument 
that has two sides--but the other side is one they don't want to face 
up to and don't declassify.
  One can hope the Obama administration will be more honorable. I 
suspect and believe they will be. But the fact is that a cudgel that so 
lends itself to abuse will some day again be abused, and we should find 
a way to correct that imbalance. It is intensely frustrating to have 
access to classified information that proves a lie and not be able to 
prove that lie. It does not serve America well for Senators to be in 
that position.
  Chairman Levin has already done excellent work in the Armed Services 
Committee, and there is no reason to believe that good work won't 
continue. Chairman Rockefeller has done excellent work in the 
Intelligence Committee, and his successor, Senator Feinstein, has 
picked up the mantle and continues forward with energy and 
determination. We can be proud of what she is doing. Chairman Leahy has 
begun good work in the Judiciary Committee, and more will ensue when we 
see the report of the Department of Justice Office of Professional 
Responsibility about what went wrong in the Office of Legal Counsel. 
The new administration, I hope and expect, is itself drilling down to 
the details of this sordid episode and not letting themselves be fobbed 
off with summaries or abridged editions. In short, a lot is going on, 
and a lot should be going on.
  While it is going on, I want my colleagues and the American public to 
know that measured against the information I have been able to gain 
access to, the story line we have been led to believe--the story line 
about waterboarding we have been sold--is false in every one of its 
  I ask that my colleagues be patient and be prepared to listen to the 
evidence when all is said and done before they wrap themselves in that 
story line.
  I thank the Presiding Officer. I know the hour is late. I appreciate 
his courtesy.