Guantanamo Bay

GUANTANAMO BAY -- (Senate - July 11, 2006)

Mr. DURBIN. Mr. President, I thank my leader on the Democratic side.

Yesterday I visited Guantanamo Bay, along with my colleague, Senator GEORGE ALLEN of Virginia. RADM Harry Harris, commander of the Joint Task Force in Guantanamo, spent most of his day giving us a very informative briefing and a tour of the facilities.

I thank the admiral, and I thank all the soldiers and sailors at Guantanamo for their service to our country. They are great Americans doing a difficult job in a dangerous place.

I met with several young men and women from Illinois. I had lunch with them. As I always do, I left with even greater respect for our men and women in uniform. They are truly our best. They deserve our gratitude every single day.

I am old enough to remember the Vietnam war. It was a divisive war politically, and our divisions were taken out on the soldiers. That should never happen again. We can debate the policies of the United States on the floor of the Senate, but we should never debate the courage and commitment of our men and women in uniform. It is beyond reproach.

For some time, I have been critical of the Bush administration's policies on interrogation and detention. I believe these policies are not true to American values. They have hurt our efforts in the war on terrorism. They put our brave men and women in uniform at even greater risk.

Let me be clear. My criticism of the administration's policies does not reflect in any way on the fine men and women in the military. In fact, I think the Bush administration's policies in many case have done a disservice to our military. The men and women serving at Guantanamo have a difficult job. The administration's confusing, conflicting, and, according to the recent Supreme Court decision, illegal policies have made their job even more difficult.

After the September 11 terrorist attacks, the Bush administration unilaterally decided to set aside treaties which the Senate had ratified and which had been followed and honored by previous administrations of both political parties--treaties that have served us well for generations.

Alberto Gonzales, who was then White House Counsel to the President, recommended to him that the Geneva Conventions should not apply to the war on terrorism. But Colin Powell, who was then Secretary of State, objected to Mr. Gonzales's recommendation. He argued that we should comply with the Geneva Conventions and that we could do so and still effectively fight the war on terrorism.

In a memo to White House Counsel Gonzales, Secretary Powell pointed out the Geneva Conventions do not limit our ability to hold and question a detainee. He also noted that the Geneva Conventions do not give Prisoner of War status to terrorists. That was Secretary Powell's opinion.

In his memo, Secretary Powell went on to say that setting aside the Geneva Conventions:

will reverse over a century of U.S. policy and practice ..... and undermine the protections of the law of war for our own troops. ..... It will undermine public support among critical allies, making military cooperation more difficult to sustain.

When you look at the negative publicity about Guantanamo today, Secretary Colin Powell's words a few years ago were clearly prophetic.

Unfortunately, President Bush rejected Secretary Powell's counsel and instead stood by White House Counsel Gonzales's conclusion. On February 7, 2002, the President issued a memo dictating that the Geneva Conventions would not apply to the war on terrorism.

After the President decided to ignore the Geneva Conventions, the administration unilaterally created its own new detention policy. They claimed the right to seize anyone, including an American citizen in the United States, and hold him until the end of the war on terrorism, whenever that might be.

They claimed that Americans and others who were detained have no legal rights. That means no right to challenge their detention, no right to see the evidence against them, and no right to even know why they are being held.

In August of 2002, the Justice Department issued its infamous torture memo. This memo narrowly redefined the meaning of torture. It said abuse only rises to the level of torture if it causes pain equivalent to organ failure or death. The memo also concluded the President had the authority to order the use of torture, even though torture is a crime under U.S. law. This became official administration policy for over 2 years before it was withdrawn under public pressure.

Relying on the President's Geneva Conventions determination and the Justice Department's torture memo, Defense Secretary Rumsfeld approved numerous abusive interrogation tactics for use against prisoners in Guantanamo Bay, including threatening detainees with dogs and forcing detainees into painful stress positions for long periods of time. The International Committee for the Red Cross has concluded that the use of these techniques is torture.

What has been the impact of the Bush administration's detention and interrogation policies? As a result of these policies, and despite the fine service of our military, Guantanamo has become a divisive, negative symbol of America around the world. Even Great Britain, our closest ally in the war on terrorism, has called for Guantanamo to be closed. This is what Lord Goldsmith, the Attorney General of Great Britain, said:

Not only would it, in my personal opinion, be right to close Guantanamo as a matter of principle, I believe it would also help to remove what has become a symbol to many--right or wrong--of injustice. The historic tradition of the United States as a beacon of freedom, liberty, and of justice deserves the removal of this symbol.

Some people dismiss our allies' views on Guantanamo. They say it is up to the United States to decide how to fight terrorism and other countries should stay out of our business.

Of course, we need to do whatever it takes to protect America and keep us safe, whatever the international criticism. But look at the price we are paying for these administration policies. Our closest allies say it is more difficult to cooperate with the United States' efforts in the war on terrorism. As Lord Goldsmith said, Guantanamo is harming the image of the United States around the world.

It bears noting that in terms of lives committed to the cause, Great Britain was our strongest ally in the invasion of Iraq. Their judgment on Guantanamo deserves our respect.

And it is not just foreign governments that have criticized the administration's policies. It is also brave Americans who are fighting on the frontlines in the war on terrorism.

According to a publicly released FBI memo, at least 26 FBI agents have complained about abuses they witnessed at Guantanamo. According to the memo, during 2002 and 2003, 17 of these agents were complaining about ``DOD [Department of Defense] approved interrogation techniques.'' In other words, these FBI agents were not complaining about the actions of bad apples or rogue soldiers; they were complaining about tactics that were approved by the administration and were used at that time, in 2002 and 2003, at Guantanamo. The concerns raised by the FBI are currently under investigation by the Justice Department's Inspector General.

When I raised these concerns yesterday at Guantanamo, before the men and women who are in charge of that facility, they understood what I was speaking of. They referred me to the Inspector General and said these matters are under investigation. One of the lead interrogators drew me aside and said privately to me: I don't want to ever be part of that kind of conduct. I believe him, and I respect him for what he said.

In addition to FBI agents, several military lawyers, known as Judge Advocate Generals, have also raised serious concerns about administration policies. Their concerns are found in the so-called JAG memos which have been made public. For instance, Major General Jack Rives in February 2003 said:

We have taken the legal and moral ``high road'' in the conduct of our military operations regardless of how others may operate. Our forces are trained in this legal and moral mindset beginning the day they enter active duty ..... We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful.

Of course, the Supreme Court has weighed in now. In 2004, in two landmark decisions, the Supreme Court rejected the administration's detention policies. The Court held, as Justice Sandra Day O'Connor famously wrote for the majority in the Hamdi case:

A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.

Unfortunately, the administration continued to implement policies for the treatment of detainees that violate the Constitution, treaties, and laws of the United States.

Two weeks ago in the Hamdan decision, the Supreme Court again rejected the administration's policies. The Court held that the Administration's military commissions are illegal and that the President is required to comply with the Uniform Code of Military Justice and the Geneva Conventions. The Supreme Court reminded the President that no man is above the law, even during a war.

In my estimation, the fine men and women at Guantanamo are working hard to overcome the damage done by the Administration's policies. For example, they no longer use abusive interrogation techniques that the administration approved. In fact, as the chief interrogator told me yesterday, the techniques currently being used at Guantanamo comply with the Geneva Conventions. He said the Geneva Conventions provide sufficient flexibility to interrogate detainees effectively.

I asked the chief interrogator yesterday in Cuba at Guantanamo: If you were told today that you had to follow the Geneva Conventions in the way that you interrogate all of the detainees at Guantanamo, what would you have to change? He said: Nothing. I said: Do you follow the McCain torture amendment which passed the Senate 90 to 9? He said: We do.

So to argue that respecting the Geneva Conventions would in any way diminish our ability to interrogate these detainees is not right, at least not in the mind of our chief interrogator at Guantanamo. This is what Secretary of State Colin Powell told the President 4 years ago. I wish the President had followed his counsel.

According to a report in this morning's Financial Times, in response to the Hamdan decision, the Defense Department has finally acknowledged that Common Article 3 of the Geneva Conventions applies to all detainees in U.S. military custody. If this is true, it is a belated but necessary and welcome step in the right direction.

Our troops at Guantanamo are doing their best, but they have a heavy burden to carry. Every day they wake up, put on their uniforms and face the challenges of performing a very difficult job. Now they face the added burden of attempting to rehabilitate the image of Guantanamo.

Our young soldiers and sailors should not have to carry that burden alone. It is long past time for Congress to help. Congress must ask: Have we given our troops an impossible task?

I have come to the difficult conclusion that it is time to close Guantanamo. We should immediately begin phasing out the detention and interrogation operations at Guantanamo Bay, with the goal of closing the Guantanamo detention facilities before the end of this calendar year. Even President Bush has acknowledged that Guantanamo should be closed. Despite the valiant efforts of our troops, Guantanamo has become a powerful, negative symbol around the world for the failures of this administration.

As Admiral Harris told me yesterday, many of the detainees can be charged, transferred to other countries, or released. In addition, there may be a continuing need to detain a small number of individuals who cannot be charged with a crime, but who still pose a danger to our country. I do not believe that we should release anyone who is a danger to our country or a danger to our troops. It is right that we hold them, if they are such a danger, in the appropriate legal fashion.

Of course, closing Guantanamo is just the beginning of this process. There are still many serious flaws in the administration's interrogation and detention policies. An example is the signing statement the President added to the McCain torture amendment last year, which still raises questions about what the intent of the administration is when it comes to torture. The Senate spoke 90 to 9 in a bipartisan fashion. I was proud to be a cosponsor of the McCain amendment, which said that we will not engage in torture, cruel, inhuman or degrading treatment of prisoners. That should be a clear standard for the United States to follow unequivocally.

The Supreme Court, 2 weeks ago, made it clear: We are a Nation of laws, even during a war. No person in America is above the law, including the President.

It is time for Congress to make it clear to the President that he is bound by the treaties we ratify and the laws we pass, whether it is the Geneva Conventions, the Uniform Code of Military Justice or the McCain torture amendment.

It is time for us to fulfill our constitutional responsibilities. Our brave men and women in uniform are doing their job. Now it is time for Congress to do its job.

Mr. President, this trip yesterday was an important trip for me, personally, to see Guantanamo firsthand and to meet the men and women who are doing such a great job for our country. My heart goes out to them because I know the sacrifice they are making to serve our Nation. My heart goes out to them as well because, for the last several years, they have been given conflicting messages and conflicting policies from this administration. These men and women in uniform are trained to follow the rule of law and the Geneva Conventions and the Uniform Code of Military Justice, but the conflicting policies of this administration on torture and detention have created an atmosphere which is unfair to the troops and inconsistent with the values of America.

It is clear now that we must close Guantanamo. It has become a negative symbol of the United States around the world. We must transfer those prisoners to new facilities to signal to the world that the decision of the Supreme Court has charted a new course and a new direction for America, that we have received this message and we must move forward, and we must make it clear to the world that despite the threat of terrorism, the United States will still follow the rule of law, we will follow the Geneva Conventions, we will follow the Uniform Code of Military Justice, and we will follow the bipartisan McCain torture amendment. We must make it clear that we will keep America safe, and we will also protect our values in the process.

Mr. President, I yield the floor.

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