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Statement Of Senator Patrick Leahy
On The Abuse Of Prisoners In U.S. Military Custody
May 5, 2004

Mr. President, as an American, as a former prosecutor, as a United States Senator who has spoken out in defense of human rights wherever they are violated, and as the Ranking Member of the Foreign Operations Subcommittee that has appropriated hundreds of millions of dollars to promote respect for the rule of law in countries around the world, I was outraged and disgusted by the reports of abuse of Iraqi prisoners by United State military personnel and the civilian contractors working with them. 

Not only has this caused serious harm, both physical and psychological, to the individuals who were subjected to this mistreatment, it has tarnished the reputation of all Americans and our Nation as a whole.

I have listened as top officials at the Department of Defense, the National Security Advisor, the Secretary of State, and other Administration officials, have said they were “shocked” and “stunned” by these reports.  And I have heard them, in a coordinated attempt at damage control, say that these were isolated incidents involving only a handful of individuals whose conduct, while reprehensible, should not be seen as indicative of a larger failure.  

I have no doubt that the vast majority of American men and women who are risking their lives in Iraq, Afghanistan, and elsewhere are as disgusted by these abhorrent acts as the rest of us.  But I could not disagree more with those who would characterize these incidents as aberrations.  While President Bush, Secretary Rumsfeld, General Myers, Secretary Powell and Condoleezza Rice, may have been shocked by the photographs that have been on the front page of every newspaper in the world, they should not have been surprised by the revelations themselves.  These types of abuses have been going on at U.S. military detention facilities for a long time, and the Administration has known about the incidents in Iraq for five months.  This fact signals a failure of leadership at several levels. 

The mistreatment of prisoners by the U.S. military in Iraq was not limited to the crimes that have come to light at the Abu Ghraib prison.  Rather, there was, in the words of the U.S. Army’s own inquiry, a “systemic and illegal abuse of detainees.”  It is revealing, and particularly disturbing, that the U.S. personnel involved conducted themselves so openly, even posing with the victims of their sadistic acts.  They obviously felt they had no reason to believe that their superiors would be upset with their conduct.  The brazenness of these acts, the reported role of U.S. intelligence officers in encouraging such treatment to “soften up” detainees for interrogations, combined with earlier reports of similar abuses in Iraq and Afghanistan, suggests a much larger failure. 

And let’s be clear.  We are not talking only about the individuals who engaged in these abusive acts.  We are talking about a failure of leadership by an Administration that, well before this latest scandal, had already severely damaged this Nation’s reputation and effectiveness in a war against terrorism that is increasingly perceived by Muslims around the world as a war against Islam itself.  The growing anger and hostility toward our troops has been exploited by Saddam loyalists and extremists who answer to Iran’s ayatollahs.  They have committed despicable acts of violence against Americans, including the desecration of corpses.

The acts described in the investigative report by Major General Antonio Taguba, including beatings, repeated sexual abuse and humiliation, and threats and simulation of rape and of torture by electric shock, violate the Geneva Conventions.  They clearly contradict President Bush’s pledge on June 26, 2003, that the United States will neither “torture” terrorist suspects, nor use “cruel and unusual” treatment to interrogate them.  They also contradict the more detailed policy on interrogations outlined in a June 25, 2003, letter to me by Defense Department General Counsel William Haynes. 

Frankly, I regret to say that I was not among those who were shocked by these revelations.  Revolted, yes.  Shocked, I was not.  I have been concerned, as have others, about ongoing reports of physical and psychological abuse and the denial of rights of detainees in U.S. military custody since September 11, 2001, not only in Iraq but in Afghanistan and Guantanamo. 

These abuses have been well documented by reputable human rights organizations, as well as by members of the press.  Some of the cases involve allegations of torture or cruel, inhuman and degrading treatment by U.S. military and intelligence personnel.  Other cases involve allegations of the denial of due process, incommunicado detention without charge, and the refusal of access to attorneys.

So when I hear the National Security Advisor, or the Secretary of Defense, say they are determined to get to the bottom of this, I frankly have to wonder, especially as they have known about this for a long time.  I first wrote to National Security Advisor Rice a year ago about reports of cruel and degrading treatment of Afghan detainees.

I have written several times to the General Counsel of the Department of Defense and to the Director of the CIA.  I have sought answers to questions about policy, training, and accountability.  Some of my questions have been answered; many have been ignored despite repeated requests. 

Were Secretary Rumsfeld or Condoleezza Rice not aware of the press reports, the inquiries by Members of Congress, or the reports of human rights organizations?  Or was the abuse of nameless, non-white Muslims suspected of being terrorists, regardless of whether they were guilty or innocent, simply a low priority until it became a public relations and foreign policy disaster?

Let me cite just a few, of many, examples:

On December 25, 2002, the Washington Post reported, “‘If you don't violate someone's human rights some of the time, you probably aren’t doing your job,’ said one official who has supervised the capture and transfer of accused terrorists. ‘I don't think we want to be promoting a view of zero tolerance on this.’”

Quote, “Bush Administration officials said the CIA, in practice, is using a narrow definition of what counts as ‘knowing’ that a suspect has been tortured.  ‘If we’re not there in the room, who is to say?’ said one official conversant with recent reports . . . ”.  Unquote.

One can only wonder if anyone would have been punished, or if we would have even heard about it, if the photographs of the abuses at Abu Ghraib had not been published.

On March 4, 2003, the New York Times described the treatment of Afghan prisoners at the Bagram Air Base after two young prisoners died in U.S. military custody.  Their deaths were ruled homicides, but the investigations of those deaths have never been released.  Other prisoners described being forced to stand naked in a cold room for 10 days without interruption, with their arms raised and chained to the ceiling and their swollen ankles shackled.  They also said they were denied sleep for days and forced to wear hoods that cut off the supply of oxygen. 

That same day, the Wall Street Journal reported that a U.S. law enforcement official said, “because the [Convention Against Torture] has no enforcement mechanism, as a practical matter, ‘you’re only limited by your imagination.’”

On March 9, 2003, the New York Times reported, “Intelligence officials . . . acknowledged that some suspects had been turned over to security services in countries known to employ torture.”

On June 2, 2003, when allegations of possible breaches of the Convention Against Torture surfaced, I wrote to National Security Advisor Rice, asking for assurance that the United States is complying with its obligations under the Convention.  I received a response from General Counsel Haynes.  His letter contained a welcome commitment by the Administration that it is the policy of the United States to comply with all of its legal obligations under the Convention.

Similarly, Senator Specter wrote to Dr. Rice asking for “clarification about numerous stories concerning alleged mistreatment of enemy combatants in U.S. custody,” and to explain how the Administration ensures that torture does not occur when it sends detainees to countries that are known to practice torture.

On September 9, 2003, I wrote to Mr. Haynes again for clarification on a number of points, such as how the Administration reconciled his statement of policy with reports that detainees were sent to countries where torture is practiced, and the reported use of interrogation techniques rising to or near the level of torture.  After two months with no response, another letter, this one not from Mr. Haynes himself but from a subordinate, was delivered late at night on the eve of Mr. Haynes’ November 19, 2003, confirmation hearing for a seat on the Fourth Circuit Court of Appeals.  That letter was totally unresponsive to my questions. 

I also raised concerns when the case surfaced of a Canadian-Syrian citizen, Maher Arar, who was sent by U.S. authorities to Syria, where Arar says he was physically tortured.  Syria has a well-documented history of torture.  In fact, President Bush stated on November 7, 2003, that Syria has left “a legacy of torture, oppression, misery, and ruin” to its people.  

I wrote to FBI Director Mueller on November 17, 2003, for more information on the case.  Later that week, I wrote to Attorney General Ashcroft with additional questions.  Neither of these letters from last year has been answered. 

On January 6, 2004, Human Rights Watch wrote to Secretary Rumsfeld to express concern about the detention by U.S. forces in Iraq of innocent, close relatives of a wanted person in order to compel the person to surrender, which amounts to hostage-taking, classified as a war crime under the Geneva Conventions.

On January 13, 2004, the Asian Wall Street Journal reported that a suspect detained by U.S. forces in Iraq said that “he was ordered to stand upright until he collapsed after 13 hours,” and that interrogators, “burned his arm with a cigarette.”

On January 18, 2004, the Sunday Times of London reported that a detainee held by coalition forces in Iraq said that during his three months in detention he was, “beaten frequently, given shocks with an electric cattle prod and had one of his toenails [torn] off.”

Mr. President, throughout this period there were not only continuous press reports of abuses of Afghan, Iraqi, and other detainees in U.S. military custody.  There were also repeated requests by human rights organizations, myself, and others, for clarification of the policies and procedures used in interrogations.  What we got, it seems, were, at best, reassuring statements by officials in Washington that were repeatedly ignored in the field. 

Several things bother me beyond the reports themselves.  Not only is there a long pattern of abuse that has been documented.  But with respect to the allegations at Abu Ghraib, Secretary Rumsfeld and General Myers knew of these incidents and for over a week they not only did not disclose them to the Congress or the American people, they urged CBS News not to broadcast the photographs. 

Major General Taguba’s report was written three months ago, and as of yesterday Secretary Rumsfeld said he still had not read it through. 

There has been an appalling lack of appreciation or concern for the seriousness and frequency of these incidents.

Mr. President, none of us believes that prisoners of war, some of whom are suspected of having killed or attempted to kill Americans, should be rewarded with comforts.  Harsh treatment may, at times, be justified.  But we also know that many of the people who have been detained, who have been depicted as terrorists and whose rights have been violated, have turned out to be innocent of any crime.

The use of torture or the inhuman or degrading treatment of prisoners, whoever they are, is beneath this Nation.  It is also illegal.  That is the law whether U.S. military officers engage in such conduct themselves, or they turn over prisoners to the government agents of another country where torture is commonly used, in order to let others do the dirty work.  It is also the law when contractors or subcontractors of the U.S. military are involved. 

It undermines our reputation as a Nation of laws, it hurts our credibility with other nations, and it invites others to use similar tactics against our troops and other Americans.

Torture is routinely used today in dozens of countries.  In fact, some of those who have complained the loudest about the abuses at Abu Ghraib are among the world’s worst violators of human rights.  Their mistreatment of prisoners is flagrant, it is pervasive, and it is a matter of state policy.

So I am cognizant of the hypocrisy of some of those who have equated the U.S. military with Saddam Hussein’s regime, which tortured and murdered hundreds of thousands of people.  Nothing could be further from the truth.  But that does not detract from the fact that the Bush Administration’s response to the pattern of reports of abuse of detainees has been woefully inadequate.  It has been negligent, and innocent people have suffered and some quite possibly have died as a result.  This negligence is anything but benign in the damage it threatens to our national security and foreign policy interests, at a particularly dangerous time.     

What should be done?  Human rights groups have suggested a number of important actions which I believe are long overdue.  The Administration should:

-- Undertake an investigation of the interrogation practices wherever detainees are held around the world, whether the facilities are run by the U.S. military or the Central Intelligence Agency, and make the results public.

-- Prosecute any military or intelligence personnel found to have engaged in or encouraged any acts amounting to torture or inhuman treatment.  Administrative penalties are inadequate.  There needs to be a clear signal that these abuses will not be tolerated.

-- Ensure that all interrogators working for the United States, whether employees of the military, intelligence agencies, or private contractors, understand and abide by specific guidelines consistent with the policy outlined by General Counsel Haynes last year, which prohibited interrogation methods abroad that would be barred in the United States by the U.S. Constitution as well as by the Geneva Conventions.  These guidelines should be publicly available.

-- Grant the International Committee of the Red Cross access to all detainees held by the United States in the campaign against terrorism throughout the world, whether held in facilities run by the U.S. military or intelligence services, or held by other governments at the behest of the United States.  The United States should not be operating undisclosed detention facilities to which no independent monitors have access.

-- Make public information about who is detained by occupation forces in Iraq and Afghanistan, and why, and enable families of detainees to visit their relatives.  Even with internal safeguards, incommunicado detention is an invitation to abuse.

-- Videotape all interrogations and other interaction with detainees so responsible personnel know there will be a record of any abuses.  These videotapes should be regularly reviewed by supervisory personnel to ensure full compliance with interrogation and detention standards in U.S. and international law.

-- Release the results of the investigation the Defense Department conducted into deaths in custody of two detainees held at Bagram Air Base in Afghanistan. 

-- Ensure that private contractors working for the United States in military or intelligence roles operate under clear, legal procedures so they can be held criminally responsible for complicity in illegal acts.  Under the Military Extraterritorial Jurisdiction Act, which I worked with Senators Sessions and DeWine to enact in the 106th Congress, a contractor or subcontractor of the military can be prosecuted in Federal court if the crime of which he is accused is a felony when committed in the United States. 

-- Take responsibility and be accountable for the breakdown of civilian control and loss of lawful authority.                                                       

Mr. President, two and a half years ago, shortly after 2,986 people of some 60 nationalities died in the attacks on the World Trade Center, on the Pentagon, and in a lonely field in Pennsylvania, there were expressions of sympathy and good will toward our country unlike any we had experienced since the end of the Second World War. 

I remember how the cover of the French newspaper, Le Monde, proclaimed “Today, We Are All Americans.”  The National Anthem was played at Buckingham Palace.

Today, that sympathy and good will, which offered such promise, has long since dissipated.  In fact, it has been squandered.  Squandered by an Administration blinded by arrogance, steeped in condescension, prone to distortions of the truth, motivated by simplistic notions of “good versus evil,” and having only the most rudimentary understanding of the Iraqi people, their culture, their faith and traditions. 

While we are continually treated with rosy assertions that things are getting better, the number of U.S. casualties soars.  What was conceived as a campaign against terrorism, focused on al Qaeda, is increasingly perceived by many of the world’s 1 billion, 200 million Muslims as a war of aggression against Islam by the United States and our predominantly Christian allies.

I have no doubt that most Iraqis are relieved to be rid of Saddam Hussein and the horrors of his regime.  Most Iraqis abhor violence and want to rebuild their country.  Nor should there be any doubt about our concern for the safety of the overwhelming majority of American soldiers and civilians whose motives are honorable and who are bravely risking their lives. 

But the individuals at Abu Ghraib prison, at Bagram Air Base, and elsewhere who have violated the rights of prisoners, were not acting in a vacuum.  There was a culture that encouraged or allowed it.  Discipline was lacking.  Accountability was lacking.  And just as those who committed these crimes should be prosecuted, the civilian and military officials who failed in their responsibility to ensure that the law was respected should also be held accountable. 

Mr. President, I ask unanimous consent that a May 4, 2004, OpEd in the Washington Post by Leonard S. Rubenstein, Executive Director of Physicians for Human Rights, entitled “Stopping the Abuse of Detainees,” be printed in the Record.