Congressional Record: November 7, 2005 (Senate) Page S12420-S12422 TREATMENT OF DETAINEES Mr. ROCKEFELLER. Mr. President, I commend Senator Levin and others for their leadership in proposing this amendment. I am proud to be an original cosponsor of the amendment based on the belief that a comprehensive, objective, and independent investigation into the collection of intelligence through the detention, interrogation, and rendition of prisoners is long overdue. While I am a strong supporter of the amendment, I regret greatly the fact that we have been forced to seek the creation of a national commission on such a critically important matter that falls squarely within the oversight responsibility of the Congress. Unfortunately, Congress's unwillingness to carry out these oversight duties in the past year has left us with no remaining alternative but to seek the creation of a national commission. Why do I say this? The collection of intelligence through interrogation and rendition is an extremely important part of our counterterrorism effort. The interrogation of captured terrorists and insurgents is, in fact, one of the most important of intelligence tools. We must ensure that those interrogations are carried out in a proper and effective manner. This tool, as with all others, must be applied within the bounds of our laws and our own national moral framework, and it must be subject to the same scrutiny and congressional oversight as every other aspect of intelligence. This, unfortunately, has not been the case. Despite the critical importance of interrogation-derived intelligence and the growing controversy surrounding retention, interrogation, and rendition policies and practices, the Congress has largely ignored the issue, holding a limited number of hearings that have provided limited insight. More disturbing, the Senate Intelligence Committee, the Senate committee charged with overseeing U.S. intelligence programs and the only one with jurisdiction to investigate all aspects of this issue, is sitting on the sidelines and effectively abdicating its oversight responsibility to media investigative reporters. As the Intelligence Committee's vice chairman, I have been pushing for the past 10 months for a formal investigation into the legal and operational [[Page S12421]] questions at the heart of the detention interrogation controversy, as has my colleague from the State of Michigan, Senator Levin. My proposal that the Intelligence Committee conduct an investigation into this matter was rejected. A decision was made that the Intelligence Committee, as it is charged to do, would not formally examine the legal and operational aspects of our detention and interrogation program despite compelling and disturbing evidence that serious, possibly criminal, abuses had occurred. Now, this decision is particularly curious given the litany of investigations carried out by the Intelligence Committee in the past. In recent years, our committee has produced detailed investigative reports into prewar intelligence on Iraq, technology transfer to China, the bombing of the USS Cole, and the shooting down of the missionary plane in Peru, and on and on. In fact, on July 30, 1999, a few years before he became our current chairman, Senator Pat Roberts wrote to then-Chairman Richard Shelby and Vice Chairman Bob Kerrey requesting an investigation into the intelligence related to the downing of CDR Michael Scott Speicher's F-18 plane in the early stages of the Persian Gulf war. The committee responded favorably to Senator Roberts' request, conducted the investigation, and produced a report. Each of the committee reports was produced as a result of formally authorized investigations, and each was a constructive contribution to understanding not just how and why intelligence failures occur but what action should be taken to avoid them in the future. Our unanimously approved first phase of our Iraq report last July, which was the weapons of mass destruction aspect, was a rather thorough and devastating critique of the collection and analytical failings of our intelligence community prior to the war that has provided, frankly, a very critical momentum to an intelligence reform movement that was already gathering steam and ended up in the passage of landmark legislation in December, which most people would have said a couple of months earlier was not possible. Yet when presented with a similar set of compelling reports on how the United States detains and interrogates prisoners, the majority on the committee has prevented us from pursuing an investigation. Why? Well over a year has passed since the appearance of photographs graphically portraying the abuse of Iraqi prisoners at Abu Ghraib prison. As my colleagues know, these images and other reports of abuse provided a powerful propaganda tool to our terrorist enemies. Since then we have seen a steady stream of accusations relating to the way the U.S. military and intelligence agencies treat individuals in their custody. Allegations of mistreatment have surfaced wherever the United States holds prisoners overseas--across Iraq, Afghanistan, and at Guantanamo Bay, Cuba. Troubling new revelations have become an almost daily occurrence, with a disturbing number of these instances resulting in prisoner deaths. At least 26 prisoners have died in American custody, and the unsettling charge has been leveled against the United States that we are exporting torture through rendition practices that lack accountability. Who can honestly say that these events and allegations are not serious enough to warrant an Intelligence Committee investigation? My good friend and chairman of the Senate Armed Services Committee, Senator John Warner, believed such an investigation was needed back in February of this year, and at the February 18 open Intelligence Committee hearing on worldwide threats, which we do once a year, Senator Warner remarked: And there's an issue out here, I say to my distinguished chairman and ranking member and colleagues on the committee, which I think we've got to address both in my committee and in this committee, and that is the manner in which we gain intelligence from those that are captured, either on the battlefield or in other areas. My hope was that sort of congressional inquiry referenced by Senator Warner back in February would have become a reality. The Armed Services Committee and the Intelligence Committee with their respective oversight of the military and intelligence communities could have provided the sort of complementary reviews into troubling allegations swirling around our interrogation of prisoners in Afghanistan, Iraq, and, as I said, Guantanamo Bay. Regrettably, our efforts and those of Senator Levin to authorize and conduct such an investigation have not succeeded. We are now, therefore, left by default with the remaining option of turning over this responsibility to a national commission to carry it out. If the Senate oversight committees are either unwilling or unable to tackle the tough but necessary questions associated with detention, interrogation, and rendition of prisoners, then we should step aside, if we have to, regrettably, and let the work be done by those unfettered by other considerations. I am confident that this new national commission, like the 9/11 Commission, and the Weapons of Mass Destruction Commission before it, will provide the sort of comprehensive review of U.S. policy and practices relating to the treatment of detainees that has been absent so far. Our amendment calls for a 12-month investigation in which all aspects of all of this must be looked at. More specifically, the 10-person commission will examine and report upon the policies and practices of the United States relating to the treatment of individuals detained since September 11, 2001. The commission will also be tasked to evaluate causes and factors that have contributed to the alleged mistreatment of detainees, including an assessment of either those directly or indirectly responsible for the mistreatment. I am worried about the legal aspects of our underpinning, and I will more or less close with this: On May 18, 2005, the Central Intelligence Agency issued a statement that ``CIA policies on interrogation have always followed legal guidance from the Department of Justice.'' That may or may not be so, but was that legal guidance supportable? That is what you have to ask. Was it supportable? Was it factual? A lengthy legal opinion on the Department of Justice interrogation practices, which had been issued in secret, in August, 2002, was quickly repudiated by the White House when it became public in June of 2004 and was then superseded by a public Justice Department legal opinion in December of 2004. As that episode shows, secret interpretations of the law beyond the oversight of the Congress are an invitation to potentially great error. What supporting roles do the CIA and FBI play in the interrogation of suspects of military-run prisons and how are their activities coordinated? It has been publicly reported that the CIA requested that a number of prisoners held in Iraq not be registered and be kept from international inspection; therefore, the so-called ghost detainees. More recently, it has come to light that FBI officials lodged strenuous complaints about what they considered to be the mistreatment of prisoners held at Guantanamo Bay. These reports and others strongly suggest that different agencies are operating under different sets of rules, or they are not coordinated. This is a recipe for disaster which will come back to haunt us one of these days. The commission will also review policies regarding the controversial practice of the United States of rendering detainees to foreign governments for interrogation. Our practice of contracting out to foreign governments the interrogation of detainees is, to this Senator, particularly troubling. There have been numerous reports of individuals turned over by the United States to a foreign government for interrogation allegedly being tortured. In addition to the ethical and legal considerations associated with this practice, the veracity of the information gained from these and other detainees is called into question if these statements were made under physical coercion. Therefore, it is important that we have a thorough evaluation of the current policy guidelines and field directives for when it is appropriate to render a detainee to another country and what intelligence is gained from such a practice. More specifically, we must examine the validity of assurances that the [[Page S12422]] United States is given when detainees are rendered to other countries that they will not be tortured. The PRESIDING OFFICER (Mr. Coburn). The Senator's time has expired. Mr. ROCKEFELLER. I hope my colleagues will support the amendment. I thank the Presiding Officer. The PRESIDING OFFICER. The Senator from Virginia. Mr. WARNER. Mr. President, I do have the privilege of being an ex officio member of the Intelligence Committee. I served 8 years on that committee, and my concluding years was as ranking member. I have a very high respect for that committee and find, from my participation, together with others on it, under the leadership of Chairman Roberts and Senator Rockefeller, that the committee does a very good job. Mr. President, I wish to speak in opposition about this question of the need for this country to establish an independent commission to investigate the detention and interrogation operations conducted by the Department of Defense and other elements of the Government in conjunction with the war on terrorism. Mr. President, I ask unanimous consent to speak in morning business. The PRESIDING OFFICER. Without objection, it is so ordered. ____________________ Congressional Record: November 7, 2005 (Senate) Page S12432-S12436 Amendment No. 2430 Mr. LEVIN. Mr. President, very briefly, on the question of the independent commission, my good friend from Virginia rattled off a bunch of statistics as to how many investigations have taken place, how many hearings have been held, how many witnesses have been interviewed, with something like 12 major investigations. We have had 40 closed hearings, I think he said, 30 open hearings, and 16,000 pages of documents have been obtained. As I thought was going to happen, those kinds of numbers were going to be utilized. The problem is, they are not particularly relevant to the point which this commission amendment seeks to address, which is there are huge gaps in these investigations. There could be 20 hearings or 50 hearings or 100 hearings, but these investigations have not gotten to 5 major points, such as, What is the role of the intelligence community? The people who have done the investigating have said they have not gotten to that point, they have not reached that issue. The CIA has not cooperated with them. So we have that huge gap in the investigations that have taken place so far. Are there secret prisons around the world being maintained? What about the ghost detainees? There is not a week that goes by that we are not reading about an issue that relates to the intelligence community, particularly the CIA's role in terms of interrogating detainees. Yet that is an almost complete blank slate. All of those investigations which have been made, which the Senator from Virginia referred to, have said: Well, we have not gotten into that issue. We were not allowed to get into that issue. Another major area is the U.S. Government policy on rendition. We have not had any investigation on that. Another major area is the role of contractors. We have not had any investigation on that. Another major area is the legality of the interrogation techniques, particularly the two major documents setting forth the techniques which were going to be used, the so-called second Bybee memo and the memo from Mr. Yoo to the Department of Defense general counsel, Mr. Haynes. We have not gotten there. So there has been no investigation of the legality of the interrogation techniques permitted by the Office of Legal Counsel's memos to which I have just referred. And there are a number of outstanding document requests which have been flatout denied relative to what happened at Guantanamo. Now, it does not make any difference how many hearings have been held--as long as you have those gaps which are greater than the amount covered, you have not had a thorough investigation, or anything close, of detainee abuses and these so-called secret prisons around the world which are allegedly [[Page S12433]] maintained. That is the point. That is why you need an independent commission. You cannot sweep this under the rug. It is going to pop up again. There is going to be another captain who is going to show up-- and my friend from Virginia met with this captain. This is a letter to Senator McCain from Captain Fishback, who is in a parachute infantry regiment in the 82nd Airborne Division at Fort Bragg, talking about the way intelligence personnel were used to give directions to soften up detainees. But we have had no investigation of intelligence. So you have an honorable member of the U.S. military, CPT Ian Fishback. I had a personal conversation with this captain where he described to me what I just said, that there were directions from the intelligence community to soften up detainees. He says: Instead of resolving my concerns, the approach for clarification process leaves me deeply troubled. This is a letter to Senator McCain. I ask unanimous consent it be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: [From the Washington Post, Sept. 28, 2005] A Matter of Honor Dear Senator McCain: I am a graduate of West Point currently serving as a Captain in the U.S. Army Infantry. I have served two combat tours with the 82nd Airborne Division, one each in Afghanistan and Iraq. While I served in the Global War on Terror, the actions and statements of my leadership led me to believe that United States policy did not require application of the Geneva Conventions in Afghanistan or Iraq. On 7 May 2004, Secretary of Defense Rumsfeld's testimony that the United States followed the Geneva Conventions in Iraq and the ``spirit'' of the Geneva Conventions in Afghanistan prompted me to begin an approach for clarification. For 17 months, I tried to determine what specific standards governed the treatment of detainees by consulting my chain of command through battalion commander, multiple JAG lawyers, multiple Democrat and Republican Congressmen and their aides, the Ft. Bragg Inspector General's office, multiple government reports, the Secretary of the Army and multiple general officers, a professional interrogator at Guantanamo Bay, the deputy head of the department at West Point responsible for teaching Just War Theory and Law of Land Warfare, and numerous peers who I regard as honorable and intelligent men. Instead of resolving my concerns, the approach for clarification process leaves me deeply troubled. Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq. This is a tragedy. I can remember, as a cadet at West Point, resolving to ensure that my men would never commit a dishonorable act; that I would protect them from that type of burden. It absolutely breaks my heart that I have failed some of them in this regard. That is in the past and there is nothing we can do about it now. But, we can learn from our mistakes and ensure that this does not happen again. Take a major step in that direction; eliminate the confusion. My approach for clarification provides clear evidence that confusion over standards was a major contributor to the prisoner abuse. We owe our soldiers better than this. Give them a clear standard that is in accordance with the bedrock principles of our Nation. Some do not see the need for this work. Some argue that since our actions are not as horrifying as Al Qaeda's, we should not be concerned. When did Al Qaeda become any type of standard by which we measure the morality of the United States? We are America, and our actions should be held to a higher standard, the ideals expressed in documents such as the Declaration of Independence and the Constitution. Others argue that clear standards will limit the President's ability to wage the War on Terror. Since clear standards only limit interrogation techniques, it is reasonable for me to assume that supporters of this argument desire to use coercion to acquire information from detainees. This is morally inconsistent with the Constitution and justice in war. It is unacceptable. Both of these arguments stem from the larger question, the most important question that this generation will answer. Do we sacrifice our ideals in order to preserve security? Terrorism inspires fear and suppresses ideals like freedom and individual rights. Overcoming the fear posed by terrorist threats is a tremendous test of our courage. Will we confront danger and adversity in order to preserve our ideals, or will our courage and commitment to individual rights wither at the prospect of sacrifice? My response is simple. If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession. I would rather die fighting than give up even the smallest part of the idea that is ``America.'' Once again, I strongly urge you to do justice to your men and women in uniform. Give them clear standards of conduct that reflect the ideals they risk their lives for. With the Utmost Respect, Capt. Ian Fishback, 1st Battalion, 504th Parachute Infantry Regiment, 82nd Airborne Division, Fort Bragg, NC. Mr. LEVIN. He sets forth what has happened here in terms of abuses and how it hurts our military. It hurts him. It is not just hurting our honor, it makes their lives more dangerous in case they are ever captured. And he ends by saying: If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession. I would rather die fighting than give up even the smallest part of the idea that is ``America.'' Now, that is a member of the U.S. military. We cannot sweep this under the rug. The investigations so far have swept critical issues under the rug. They are going to surface sooner or later. Better to have an independent commission take a look at them, get it away from any partisanship, and have a commission the way the 9/ 11 Commission was appointed, with five Democratic appointees, five Republican appointees, and have the President appoint the chairman of the commission. But we owe it to the Captain Fishbacks of this world. We owe it to all the men and women who serve so honorably, which is 99 percent, probably 99.9 percent, of our military. We owe it to them to protect them. One way to protect them is to make sure we have a thorough investigation, without these major gaps, as to what went wrong. Mr. President, I ask unanimous consent that additional material be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Gaps in the DoD Detainee Abuse Reviews The carefully-carved out mandates of the nearly a dozen reviews have left significant gaps and critical issues unexamined. 1. Role of CIA: Limited or no cooperation from CIA with investigations. 2. Rendition: No investigation into practice of rendering prisoners to foreign countries for interrogation. 3. Contractors: Insufficient information on role of contractors in interrogations and detainee abuse. 4. Special Operations Forces: Allegations of abuses by Special Operations Forces remain unexamined. 5. Legality of Interrogation Techniques: Investigations have avoided looking at the legality of the interrogation techniques that may have been authorized by DoD officials and others. 6. Key Documents Missing: Key policy and legal documents from the Defense and Justice Departments not provided to Congress. ____ [From the Washington Post, Nov. 2, 2005] CIA Holds Terror Suspects in Secret Prisons (By Dana Priest) The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement. The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantanamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents. The hidden global internment network is a central element in the CIA's unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA's covert actions. The existence and locations of the facilities--referred to as ``black sites'' in classified White House, CIA, Justice Department and congressional documents--are known to only a handful of officials in the United States and, usually, only to the President and a few top intelligence officers in each host country. The CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held. Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are [[Page S12434]] made about whether they should be detained or for how long. While the Defense Department has produced volumes of public reports and testimony about its detention practices and rules after the abuse scandals at Iraq's Abu Ghraib prison and at Guantanamo Bay, the CIA has not even acknowledged the existence of its black sites. To do so, say officials familiar with the program, could open the U.S. government to legal challenges, particularly in foreign courts, and increase the risk of political condemnation at home and abroad. But the revelations of widespread prisoner abuse in Afghanistan and Iraq by the U.S. military--which operates under published rules and transparent oversight of Congress-- have increased concern among lawmakers, foreign governments and human rights groups about the opaque CIA system. Those concerns escalated last month, when Vice President Cheney and CIA Director Porter J. Goss asked Congress to exempt CIA employees from legislation already endorsed by 90 Senators that would bar cruel and degrading treatment of any prisoner in U.S. custody. Although the CIA will not acknowledge details of its system, intelligence officials defend the agency's approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantanamo Bay. The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation. The secret detention system was conceived in the chaotic and anxious first months after the Sept. 11, 2001, attacks, when the working assumption was that a second strike was imminent. Since then, the arrangement has been increasingly debated within the CIA, where considerable concern lingers about the legality, morality and practicality of holding even unrepentant terrorists in such isolation and secrecy, perhaps for the duration of their lives. Mid-level and senior CIA officers began arguing two years ago that the system was unsustainable and diverted the agency from its unique espionage mission. ``We never sat down, as far as I know, and came up with a grand strategy,'' said one former senior intelligence officer who is familiar with the program but not the location of the prisons. ``Everything was very reactive. That's how you get to a situation where you pick people up, send them into a netherworld and don't say, `What are we going to do with them afterwards?' '' It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA's internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing. Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA's approved ``Enhanced Interrogation Techniques,'' some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as ``waterboarding,'' in which a prisoner is made to believe he or she is drowning. Some detainees apprehended by the CIA and transferred to foreign intelligence agencies have alleged after their release that they were tortured, although it is unclear whether CIA personnel played a role in the alleged abuse. Given the secrecy surrounding CIA detentions, such accusations have heightened concerns among foreign governments and human rights groups about CIA detention and interrogation practices. The contours of the CIA's detention program have emerged in bits and pieces over the past two years. Parliaments in Canada, Italy, France, Sweden and the Netherlands have opened inquiries into alleged CIA operations that secretly captured their citizens or legal residents and transferred them to the agency's prisons. More than 100 suspected terrorists have been sent by the CIA into the covert system, according to current and former U.S. intelligence officials and foreign sources. This figure, a rough estimate based on information from sources who said their knowledge of the numbers was incomplete, does not include prisoners picked up in Iraq. The detainees break down roughly into two classes, the sources said. About 30 are considered major terrorism suspects and have been held under the highest level of secrecy at black sites financed by the CIA and managed by agency personnel, including those in Eastern Europe and elsewhere, according to current and former intelligence officers and two other U.S. government officials. Two locations in this category--in Thailand and on the grounds of the military prison at Guantanamo Bay--were closed in 2003 and 2004, respectively. A second tier--which these sources believe includes more than 70 detainees--is a group considered less important, with less direct involvement in terrorism and having limited intelligence value. These prisoners, some of whom were originally taken to black sites, are delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes known as ``rendition.'' While the first-tier black sites are run by CIA officers, the jails in these countries are operated by the host nations, with CIA financial assistance and, sometimes, direction. Morocco, Egypt and Jordan have said that they do not torture detainees, although years of State Department human rights reports accuse all three of chronic prisoner abuse. The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or to otherwise verify their well-being, said current and former and U.S. and foreign government and intelligence officials. Most of the facilities were built and are maintained with congressionally appropriated funds, but the White House has refused to allow the CIA to brief anyone except the House and Senate intelligence committees' chairmen and vice chairmen on the program's generalities. The Eastern European countries that the CIA has persuaded to hide al Qaeda captives are democracies that have embraced the rule of law and individual rights after decades of Soviet domination. Each has been trying to cleanse its intelligence services of operatives who have worked on behalf of others-- mainly Russia and organized crime. origins of the black sites The idea of holding terrorists outside the U.S. legal system was not under consideration before Sept. 11, 2001, not even for Osama bin Laden, according to former government officials. The plan was to bring bin Laden and his top associates into the U.S. justice system for trial or to send them to foreign countries where they would be tried. ``The issue of detaining and interrogating people was never, ever discussed,'' said a former senior intelligence officer who worked in the CIA's Counterterrorist Center, or CTC, during that period. ``It was against the culture and they believed information was best gleaned by other means.'' On the day of the attacks, the CIA already had a list of what it called High-Value Targets from the al Qaeda structure, and as the World Trade Center and Pentagon attack plots were unraveled, more names were added to the list. The question of what to do with these people surfaced quickly. The CTC's chief of operations argued for creating hit teams of case officers and CIA paramilitaries that would covertly infiltrate countries in the Middle East, Africa and even Europe to assassinate people on the list, one by one. But many CIA officers believed that the al Qaeda leaders would be worth keeping alive to interrogate about their network and other plots. Some officers worried that the CIA would not be very adept at assassination. ``We'd probably shoot ourselves,'' another former senior CIA official said. The agency set up prisons under its covert action authority. Under U.S. law, only the president can authorize a covert action, by signing a document called a presidential finding. Findings must not break U.S. law and are reviewed and approved by CIA, Justice Department and White House legal advisers. Six days after the Sept. 11 attacks, President Bush signed a sweeping finding that gave the CIA broad authorization to disrupt terrorist activity, including permission to kill, capture and detain members of al Qaeda anywhere in the world. It could not be determined whether Bush approved a separate finding for the black-sites program, but the consensus among current and former intelligence and other government officials interviewed for this article is that he did not have to. Rather, they believe that the CIA general counsel's office acted within the parameters of the Sept. 17 finding. The black-site program was approved by a small circle of White House and Justice Department lawyers and officials, according to several former and current U.S. government and intelligence officials. Deals With 2 Countries Among the first steps was to figure out where the CIA could secretly hold the captives. One early idea was to keep them on ships in international waters, but that was discarded for security and logistics reasons. CIA officers also searched for a setting like Alcatraz Island. They considered the virtually unvisited islands in Lake Kariba in Zambia, which were edged with craggy cliffs and covered in woods. But poor sanitary conditions could easily lead to fatal diseases, they decided, and besides, they wondered, could the Zambians be trusted with such a secret? Still without a long-term solution, the CIA began sending suspects it captured in the first month or so after Sept. 11 to its longtime partners, the intelligence services of Egypt and Jordan. A month later, the CIA found itself with hundreds of prisoners who were captured on battlefields in Afghanistan. A short-term solution was improvised. The agency shoved its highest-value prisoners into metal shipping containers set up on a corner of the Bagram [[Page S12435]] Air Base, which was surrounded with a triple perimeter of concertina-wire fencing. Most prisoners were left in the hands of the Northern Alliance, U.S.-supported opposition forces who were fighting the Taliban. ``I remember asking: What are we going to do with these people?'' said a senior CIA officer. ``I kept saying, where's the help? We've got to bring in some help. We can't be jailers--our job is to find Osama.'' Then came grisly reports, in the winter of 2001, that prisoners kept by allied Afghan generals in cargo containers had died of asphyxiation. The CIA asked Congress for, and was quickly granted, tens of millions of dollars to establish a larger, long-term system in Afghanistan, parts of which would be used for CIA prisoners. The largest CIA prison in Afghanistan was code-named the Salt Pit. It was also the CIA's substation and was first housed in an old brick factory outside Kabul. In November 2002, an inexperienced CIA case officer allegedly ordered guards to strip naked an uncooperative young detainee, chain him to the concrete floor and leave him there overnight without blankets. He froze to death, according to four U.S. government officials. The CIA officer has not been charged in the death. The Salt Pit was protected by surveillance cameras and tough Afghan guards, but the road leading to it was not safe to travel and the jail was eventually moved inside Bagram Air Base. It has since been relocated off the base. By mid-2002, the CIA had worked out secret black-site deals with two countries, including Thailand and one Eastern European nation, current and former officials said. An estimated $100 million was tucked inside the classified annex of the first supplemental Afghanistan appropriation. Then the CIA captured its first big detainee in March 28, 2002. Pakistani forces took Abu Zubaida, al Qaeda's operations chief, into custody and the CIA whisked him to the new black site in Thailand, which included underground interrogation cells, said several former and current intelligence officials. Six months later, Sept. 11 planner Ramzi Binalshibh was also captured in Pakistan and flown to Thailand. But after published reports revealed the existence of the site in June 2003, Thai officials insisted the CIA shut it down, and the two terrorists were moved elsewhere, according to former government officials involved in the matter. Work between the two countries on counterterrorism has been lukewarm ever since. In late 2002 or early 2003, the CIA brokered deals with other countries to establish black-site prisons. One of these sites--which sources said they believed to be the CIA's biggest facility now--became particularly important when the agency realized it would have a growing number of prisoners and a shrinking number of prisons. Thailand was closed, and sometime in 2004 the CIA decided it had to give up its small site at Guantanamo Bay. The CIA had planned to convert that into a state-of-the-art facility, operated independently of the military. The CIA pulled out when U.S. courts began to exercise greater control over the military detainees, and agency officials feared judges would soon extend the same type of supervision over their detainees. In hindsight, say some former and current intelligence officials, the CIA's problems were exacerbated by another decision made within the Counterterrorist Center at Langley. The CIA program's original scope was to hide and interrogate the two dozen or so al Qaeda leaders believed to be directly responsible for the Sept. 11 attacks, or who posed an imminent threat, or had knowledge of the larger al Qaeda network. But as the volume of leads pouring into the CTC from abroad increased, and the capacity of its paramilitary group to seize suspects grew, the CIA began apprehending more people whose intelligence value and links to terrorism were less certain, according to four current and former officials. The original standard for consigning suspects to the invisible universe was lowered or ignored, they said. ``They've got many, many more who don't reach any threshold,'' one intelligence official said. Several former and current intelligence officials, as well as several other U.S. government officials with knowledge of the program, express frustration that the White House and the leaders of the intelligence community have not made it a priority to decide whether the secret interment program should continue in its current form, or be replaced by some other approach. Meanwhile, the debate over the wisdom of the program continues among CIA officers, some of whom also argue that the secrecy surrounding the program is not sustainable. ``It's just a horrible burden,'' said the intelligence officials. ____ ACCOUNTABILITY OF SENIOR-LEVEL OFFICERS ---------------------------------------------------------------------------------------------------------------- Name Investigative findings Accountability ---------------------------------------------------------------------------------------------------------------- Overall...................................... Schlesinger Panel: ``[T]he abuses were No action taken. not just the failure of some individuals to follow known standards, and they are more than the failure of a few leaders to enforce proper discipline. There is both institutional and personal responsibility at higher levels.'' Lt. General Ricardo Sanchez, Commander, CJTF- Jones Report: Findings included: Army Inspector General 7. CJTF-7 policies memos ``led indirectly finds allegations of to some of the non-violent and non- dereliction of duty sexual abuse.'' improperly communicating Sanchez ``failed to ensure proper interrogation policies staff oversight of detention to be unsubstantiated. operations.'' Rejects 15 findings from Schlesinger Panel Report: LTG Sanchez the reports of Generals established ``confused command Kern and Jones and the relationship'' at Abu Gharib. Schlesinger Panel. Maj. Gen. Walter Wojdakowski, Deputy Jones Report: MG Wojdakowski ``failed Army Inspector General Commander, CJTF-7. to ensure proper staff oversight of finds allegation of detention and interrogation dereliction of duty to operations.'' be unsubstantiated. Schlesinger Panel Report: MG Rejects 10 findings in Wojdakowski ``failed to initiate reports of Generals Kern action to request additional military and Jones and of the police for detention operations after Schlesinger Panel. it became clear that there were insufficient assets in Iraq.'' Maj. Gen. Barbara Fast, C/J-2, Director for Schlesinger Panel Report: MG Fast Army IG finds allegation Intelligence, CJTF-7. ``failed to advise the commander of dereliction of duty properly on directives and policies to be unsubstantiated, needed for the operation of the rejecting findings in [Joint Interrogation and Detention reports of Generals Kern Center], for interrogation techniques and Jones and of the and for appropriately monitoring the Schlesinger Panel. activities of Other Government Agencies (OGAs)'' in Iraq. Maj. Gen. Geoffrey Miller, Commander, JTF- Schmidt-Furlow Report: Found that: General Craddock, GTMO. ``the creative, aggressive, and Commander, U.S. Southern persistent interrogation of [Detainee Command disapproves the 063] resulted in the cumulative recommendation MG Miller effect being degrading and abusive be held accountable, treatment.'' saying the interrogation MG Miller ``failed to monitor the ``did not result in any interrogation and exercise commander violation of any U.S. discretion by placing limits on the law or policy, and the application of otherwise authorized degree of supervision techniques and approaches used in provided by MG Miller that interrogation.'' does not warrant Recommendation: MG Miller ``should be admonishment under the held accountable for failing to circumstances.'' General supervise the interrogation of ISN Craddock forwards report 063 and should be admonished for that to Army IG for review failure.'' and action as appropriate. ---------------------------------------------------------------------------------------------------------------- Mr. LEVIN. Mr. President, I yield the floor. I believe the Senator from Iowa is ready, in case the Senator from Virginia is ready to have his amendment offered. The PRESIDING OFFICER. The Senator from Virginia. Mr. WARNER. Mr. President, first I want to clarify one thing. The distinguished Senator from Michigan, as the ranking member of our committee, participated in all of the hearings of the Armed Services Committee. There were many hearings on the issue of the detainees, Abu Ghraib. Then we went through the series of analyses by the Army inspector general. And on and on we went. I do hope when he made a reference to sweeping things under the rug-- I do not think our committee ever tried to sweep anything under the rug. Mr. LEVIN. I thank my good friend from Virginia. What our committee has done is held some hearings. They are important hearings. They are valuable hearings. They have not covered five critical areas. Those areas have to be brought to the surface. As to those areas, I am not saying the chairman or our committee has swept them under the rug. We have allowed those issues to be unaddressed. Mr. WARNER. Mr. President, I say to the Senator, when you use the term ``we,'' let's be more specific. You mean the Congress in its various oversight capacities? Maybe the Intelligence Committee, which basically has primary jurisdiction over intelligence issues, like you point out the intelligence aspects of this? The Foreign Relations Committee has held hearings on this issue. Indeed, the Defense Appropriations Subcommittee has held some hearings. So I judge that the ``we'' you refer to is the broad responsibilities of the several committees in the Congress? Mr. LEVIN. I thank my good friend for that clarification. The ``we'' applies to the Congress. We, the Congress, have oversight responsibility. We have not carried it out. There are at least five major areas where we have failed to carry it out. We have to address those [[Page S12436]] areas. We have been unable to do so. I see no evidence that we will. Therefore, the only way we can do this is with an outside, independent, 9/11-type panel. But I was not in any way suggesting that any one committee has been the source of this failure. It is all of the Congress together, which, obviously, is in the control of the Republican majority. That is a fact. But, nonetheless, we as a Congress have not carried out the oversight responsibility which our troops deserve. I hope I have assured my friend. Mr. WARNER. Thank you, Mr. President. I just wanted to make certain. Mr. LEVIN. I did not mean in any way to impugn-- Mr. WARNER. In our committee, you have sat side by side through almost every minute of the many hours of hearings we have had on this subject. While there may be areas which our committee may yet probe on this matter--as a matter of fact, I do not think the whole series of hearings we have had has come to a conclusion. We still have the issue of the overall accountability. So there may be some point in time--but I have always felt we should allow more of the court-martial and various Uniform Code of Military Justice prosecutions, which are underway, to be completed. I will be discussing that further with the Senator. But I just did not want it indicated that our committee had brushed anything under the table. Mr. LEVIN. I thank my friend again. I would say of all the committees I know of, our committee, the Armed Services Committee, have carried out their responsibilities better than other committees. I wish to give credit where credit is due--to our chairman. I do not know of any more honorable, decent, hard-working, fair person in this body or any body in which I have ever served. We have still, overall, as a Congress, failed in five major areas to look at the way in which detainees have been handled. That failure is going to come back to haunt our troops, and it is haunting our Nation right now. But I surely did not mean in any way to single out our committee as being the source of that failure. But we are part of a larger failure in terms of the whole Congress failing to carry out its oversight responsibility. Now, Mr. President, I wonder if my friend would accept a unanimous consent request that the time we have just taken on this subject be in morning business rather than deducted from the time on this amendment, given the interest in it. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. Who yields time? Mr. WARNER. Mr. President, I see our distinguished colleague from Iowa has taken the floor on a matter relating to the bill. I yield the floor. Mr. LEVIN. Will the Senator yield for a unanimous consent request? The PRESIDING OFFICER. The Senator from Michigan. Mr. LEVIN. Mr. President, I ask unanimous consent that there be 5 minutes provided to Senator Salazar prior to the vote at 5:30. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.