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The Honorable Patrick Leahy
United States Senator
A number of us remain concerned about the abuse of foreign prisoners, and about the guidance provided by the President's lawyers with regard to torture. Much has happened since June 17, 2004, when the Judiciary Committee defeated, on a party-line vote, a subpoena resolution for documents relating to the interrogation and treatment of detainees. Yet because of continued stonewalling by the Administration, we remain largely in the dark. No action has yet been taken by this Committee.
In the June 17 Committee markup, several Senators said that we should give the Administration more time to respond to inquiries, although some of us had been asking for information for more than a year. Questions were submitted to the Attorney General on June 15 following his appearance before the Committee a week earlier when he refused to provide information and demanded a subpoena. We were encouraged to withhold in offering a subpoena and to give him until the end of the month to respond. And then, the Attorney General -- through an aide, on July 1 -- again thumbed his nose at his obligations to this oversight Committee, refusing to provide a comprehensive set of answers to questions submitted by the nine Democratic members of this Committee, refusing to provide almost all of the documents that were requested, and, again, refusing even to provide an index of the documents being withheld.
There is ample evidence that American officials, both military and CIA, have used extremely harsh interrogation techniques overseas, and that many prisoners have died in our custody. Administration officials admit that 37 foreign prisoners have died in captivity, and several of these cases are under investigation, some as homicides. On June 17, David Passaro, a CIA contractor, was indicted for assault for beating an Afghan detainee with a large flashlight. The prisoner, who had surrendered at the gates of a U.S. military base in Afghanistan, died in custody on June 21, 2003, just days before I received a letter from the Bush Administration saying that our Government was in full compliance with the Torture Convention.
Some individuals who committed abusive acts are being punished, as they must be. But what of those who gave the orders, set the tone or looked the other way? What of the White House and Pentagon lawyers who tried to justify the use of torture in their legal arguments? The White House has now disavowed the analysis contained in the August 1, 2002, memo signed by Jay Bybee, then head of the Office of Legal Counsel. That memo, which was sent to the White House Counsel, argued that for acts to rise to the level of torture, they must go on for months or even years, or be so severe as to generate the type of pain that would result from organ failure or even death. The White House and DOJ now call that memo "irrelevant" and "unnecessary" and say that DOJ will spend weeks rewriting its analysis.
As we all know, on June 22, 2004, the White House released a few hundreds of pages of documents -- a self-serving and highly selective subset of materials. The documents that were released raised more questions than they answered. Now, more than two weeks later, none of those issues have been resolved.
For example, the White House released a January 2002 memo signed by President Bush calling for the humane treatment of detainees. Did the President sign any orders or directives after January 2002? Did he sign any with regard to prisoners in Iraq?
Why did Secretary Rumsfeld issue and later rescind tough interrogation techniques? And how did these interrogation techniques come to be used in Iraq, where the Administration maintains that it has followed the Geneva Conventions?
Where is the remaining 95 percent of material requested by members of the Senate Judiciary Committee? Why is the White House withholding relevant documents produced after April 2003?
I was gratified that the Senate on June 23 passed an amendment that I offered to the Defense Authorization Bill that will clarify U.S. policy with regard to the treatment of prisoners and increase transparency. But the stonewalling continues: The Pentagon opposes this amendment. I am hopeful that we will prevail in keeping this provision in the bill. Five Republican Senators supported the amendment against an attempt to table it. Three of those are members of this Committee, Senators Specter, DeWine, and Graham. They were joined by Senators McCain and Hagel. I thank each of them. I also want to commend the Senate for adopting, also as part of the Defense Authorization Bill, the Durbin amendment against torture, and I want to acknowledge an important step taken in the House on the same day. The House Appropriations Committee added language to the 2005 Justice Department spending bill that would prohibit any department official or contractor from providing legal advice that could support or justify use of torture.