Jun 17 2008

Senate Armed Services Committee Hearing

Opening Statement for Detainee & Interrogation Hearing

Thank you, Mr. Chairman and thank you to the witnesses for testifying before us today.


Let me begin by saying, I have long made clear I believe the Administration’s lawyers used bizarre legal theories to justify harsh interrogation techniques.


I have also been troubled by the fact they implemented these procedures over the strenuous objections of military lawyers and many others with expertise in these issues.


The guidance they provided will go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation’s military and intelligence communities.


I do not believe the members of the Administration who played a major role in developing interrogation policies were motivated by anything other than a desire to protect our nation.  Their service to our nation in that respect is to be appreciated.


However, if the Administration adhered to the letter and spirit of the law, our treaty obligations, and adequately consulted with Congress, we wouldn’t be here today.


It is important we all understand and agree that the high ground in the war against Islamic extremism is the moral high ground.  We are not going to conquer our enemy on a battlefield.  There will be no surrender with a white flag.  It is a battle of ideas and values, and the issues we are going to discuss today represent a lost opportunity in this war.


I’d like to briefly outline where we were in the aftermath of the tragic events of September 11th and where we are today in terms of the interrogation, detention, and trial of enemy combatants for war crimes.


Let’s face the cold, hard facts.  On September 10, 2001, America was unprepared.  We weren’t ready to fight an enemy that claimed no country and wore no uniform.  We weren’t ready to capture, detain, and interrogate terror suspects who represent no nation-state and indiscriminately kill civilians and soldiers alike.


After we invaded Iraq , we underestimated the threat of an insurgency and we were slow to adapt to the situation on the ground.  We were ill equipped to manage Abu Ghraib and perplexed by what to do with unlawful combatants in Afghanistan .


I don’t offer our lack of preparation for this long war against radical Islamic extremism as an excuse, but rather as the context in which a series of extraordinarily poor decisions were made at the Pentagon, the Department of Justice, and the White House with respect to detainees.


To the great regret of many of us, the Administration pursued a “Go it Alone” strategy when it came to the treatment and detention of unlawful enemy combatants.


Under the rubric of the Commander in Chief’s inherent authority in a time of war and armed with the Authorization to Use Military Force, which Congress passed in the days after September 11th, the Administration implemented policies that were drafted, implemented, revised, rescinded and reissued in an endless loop.


Interrogation techniques which were supposed to be limited to Guantanamo Bay may have migrated to Iraq and Afghanistan .  The chaos was created by Administration lawyers’ decision to ignore the advice of senior military leaders and military lawyers and depart from decades of adherence to the Army Field Manual, the Uniform Code of Military Justice, and the Geneva Conventions.


It is hard to fathom that our nation and the world would have to hear the United States discuss documents like the “torture memo.”  Eventually, the departure from the time honored standards of the Geneva Conventions and their well-known and respected rules of restraint were replaced with a new set of untested procedures which became dangerously and disastrously confused.  Detainee abuse was the unfortunate result.


Mr. Haynes, who will come before this committee today, wrote in an official document that waterboarding “may be legally available” to the military, never mind the fact that it is clearly prohibited under the UCMJ.


The final report of the working group on interrogation convened by Mr. Haynes reiterated an OLC opinion that “in order to respect the President’s inherent constitutional authority to manage a military campaign…[the prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.”


I could go on and on about the legal analysis that any first year law student could poke holes in.


Regarding detention and prosecution of detainees, we follow a similar pattern.  I fought for years with the Administration to ensure the policies implemented for determining who is an enemy combatant and who should be tried for violations of war crimes followed the law of war.  Here again, the Administration tried to play cute with the law on evidence obtained by coercive means, and access to classified evidence just to name two areas.


Congress was late in exercising its authority in these matters.  But the key point is that we eventually did.


The passage of the McCain Amendment ensured that this nation wouldn’t engage in interrogation techniques that constituted cruel, inhuman or degrading treatment.


The Bush Administration fought Senator McCain on this prohibition, but Congress passed it overwhelmingly.  The McCain Amendment started putting us back on the road to upholding the best traditions of our nation and restoring our standing in the world.


In the same bill, the Detainee Treatment Act, the Army Field Manual became the standard for all Department of Defense interrogations.


With the passage of the Military Commissions Act we have ensure that all of our interrogators are fully compliant with the Convention Against Torture, and Common Article 3 of the Geneva Conventions.


The Military Commissions Act put in place procedures that our nation can be proud of when it comes to prosecuting detainees for War Crimes.


I deeply regret the recent Supreme Court ruling providing a Constitutional right of habeas corpus to non-citizen terror suspects.  I think the American people are going to be deeply disturbed to learn that the mastermind of 9/11, Khalid Sheik Muhammad, has the same constitutional rights as they do.


As Chief Justice Roberts argued in his dissenting opinion:


“So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to determine—through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests…has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.” (p. 27-28)


Unfortunately, the Administration didn’t want to give detainees an inch.  Congress eventually gave them a few hundred yards and now the Supreme Court has given them a few miles.


As long as these investigations go on, I am confident we will continue to find mistakes and uncover more poor policy decisions.


But the overriding question is -- have we learned from our mistakes and are we all moving forward on a solid basis?  The answer is yes.


The fact that the legal and policy decisions made from 2002-2005 were based on inadequate legal analysis used to justify harsh treatment of detainees is not news to me.


I don’t think it is news to anyone on this Committee or anyone who has followed or reviewed any of the 15 different Department of Defense investigations that have been launched in the last five years or the numerous hearings held in the House and Senate. This Committee alone has had 17 separate briefings and hearings on detainee abuses.


Senator Warner is to be commended to making the difficult decision to have this committee fully investigate the Abu Ghraib scandal so that the American people and the world would know that when this country makes mistakes, it doesn’t hide from them or cover them up.


So, respectfully, Mr. Chairman, we are not breaking new ground here.  The abuses, the inconsistencies, and the pattern of poor judgment in these matters are well documented.


The fact is that we have come a long way in the past five years.  Secretary Rumsfeld is gone.  Wolfowitz, Cambone and Feith are all gone. John Yoo and Jim Haynes are gone.


I look forward to hearing from the witnesses today and hope that we continue to try to find a way to protect our nation that recognizes that even though we are at war, we must operate within the bounds of the laws and treaties that make our nation strong.


Thank you, Mr. Chairman