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…must have been done by Nazis, Soviets in their gulags, or some mad regime…


Judging by the panel discussion that closed out Fox News’s Sunday with Chris Wallace for the morning of June 19, the most important item around the world for the previous seven days was U.S. Senator Richard Durbin’s remarks on the floor of the Senate chamber the Tuesday before (June 14) about the “detention center at Guantanamo Bay.”

At least the most interesting item. Certainly the most useful. Fox News played a couple of clips. (They were desultory and above all wrenched from their original context—as you may have guessed.) The panelists—besides Wallace, Fox News’s Brit Hume, Weekly Standard editor William Kristol, and National Public Radio’s Mara Liasson and Juan Williams—though I should add that these zombies spend so much time on the air at Fox, their affiliation might as well be listed as Rupert Murdoch’s News Corporation—all then agreed that the Senator’s remarks had egregiously wronged the United States of America. And all agreed that the Senator needed to make amends for his words, there being some disagreement as to what steps were required of him. None of the other items dealt with on the Wallace program this Sunday—the American Secretary of State‘s laughable concerns about bringing democracy to the Middle East so that the United States can be secure; the equally laughable hysteria over the Oil-for-Food affair at the United Nations; and the release of the “bipartisan” Task Force on the United Nations‘ report, and whether that scourge of unilateralism, Secretary-General Kofi Annan, will survive the last 18 months of his term—came close to evoking the same degree of passion. Watching Fox News’s Sunday with Chris Wallace this morning, I came away more convinced than ever that were the U.S. Government to declare war on the rest of the world, or deploy its peerless weapons of mass destruction to destroy another country one day, Fox News would try its best to divert attention to something more urgent—like whether the carping from the halls of the UN General Assembly had gone too far in portraying the action as lethal for the parties involved. But the Wallace program’s attack on Senator Durbin did suggest to me that Durbin must have said something important and worthwhile. Only a network as unbalanced and downright unfair as Fox wasn’t about to let its audience learn what Durbin actually had said.

Of course, Fox News has hardly been alone. For example, two days after Durbin spoke, White House Press Secretary Scott McClellan enjoyed the following exchange with a reporter (June 16):

Scott, Senator Durbin compares the treatment of detainees at Guantanamo with the way Nazis abused prisoners during World War II. How is the President reacting to these accusations?

MR. McCLELLAN: I think the Senator’s remarks are reprehensible. It’s a real disservice to our men and women in uniform who adhere to high standards and uphold our values and our laws. To compare the way our military treats detainees with the Soviet gulags, the Nazi concentration camps, and Pol Pot’s regime is simply reprehensible. And to suggest that these individuals — I notice comments were made that — comparing it to the internment of Japanese Americans during World War II. To suggest that these enemy combatants who are detained at Guantanamo Bay should be released just is simply beyond belief to me. These are dangerous individuals who were picked up on the battlefield. They were picked up on the battlefield in the fight against American forces. They were picked up on the battlefield because they are individuals who are involved in plots to do harm to the American people and to innocent civilians.

And so I just think those remarks are reprehensible and they are a real disservice to our men and women in uniform. Our men and women in uniform go out of their way to treat detainees humanely, and they go out of their way to hold the values and the laws that we hold so dear in this country. And when you talk about the gulags and the concentration camps in Pol Pot’s regime, millions of people, innocent people, were killed by those regimes.

Senate Majority Leader Bill Frist of Tennessee has formally called upon “Senator Durbin to withdraw his comments and provide an appropriate apology,” the Washington Post reports, adding that Frist believes “other Democratic leaders should also seek an apology.” “Shameful does not begin to describe this heinous slander against our country,” the Post quotes Frist as saying, “and the brave men and women risking their lives every day to defend it.”

According to the Post, Frist’s June 18 statement also claimed that “In captivity at Guantanamo are murderers…many dangerous murderers. They are in jail cells where they belong…and not on the battlefields in Iraq and Afghanistan…or on the streets of Nashville, Boston, Miami or New York.”

My ass, Senator. (And by the way: Have you, Dr. Frist, managed to locate the late Terri Schiavo’s soul yet, and asked it what its wishes really were for the body it had left behind in a permanently vegetative state?)

Still. Witnessing all of this, I can’t help but wonder whether anybody out there has even had the chance to consider Durbin’s actual remarks, in their entirety and in their original context—which means sentence upon sentence, as Durbin himself delivered them on the floor of the Senate, and not in the snippets aired over Fox News?

With this concern in mind, I have decided to reproduce Durbin’s actual words here, just as they occur in the Congressional Record‘s archive of them for Tuesday, June 14, 2005. (For both the text of Durbin’s remarks, and links to them, see below.)

Note that the passage over which Durbin has been subjected to such withering attacks is the following (S6954, col. 3):

When you read some of the graphic descriptions of what has occurred here–I almost hesitate to put them in the RECORD, and yet they have to be added to this debate. Let me read to you what one FBI agent saw. And I quote from his report:

On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they urinated or defecated on themselves, and had been left there for 18-24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold. ….. On another occasion, the [air conditioner] had been turned off, making the temperature in the unventilated room well over 100 degrees. The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his hair out throughout the night. On another occasion, not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor.

If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime–Pol Pot or others–that had no concern for human beings. Sadly, that is not the case. This was the action of Americans in the treatment of their prisoners.

It is for having uttered the words in this last paragraph in particular—all 76 words of it—that Durbin has been taken to task by the right-wing in the States, and largely abandoned by his Democratic colleagues in the Senate.

And yet I for one couldn’t agree with Durbin’s point more. Which, if anything, understates the case against the regime in Washington over its general lawlessness, its ruthlessness, and the threat that it poses to the security of people in places not only such as Afghanistan, Iraq, and Pakistan—but right here in this country, too.

Durbin continued (S6594, col. 3 – S6595, col. 1):

It is not too late. I hope we will learn from history. I hope we will change course. The President could declare the United States will apply the Geneva Conventions to the war on terrorism. He could declare, as he should, that the United States will not, under any circumstances, subject any detainee to torture, or cruel, inhuman, or degrading treatment. The administration could give all detainees a meaningful opportunity to challenge their detention before a neutral decisionmaker.

Such a change of course would dramatically improve our image and it would make us safer. I hope this administration will choose that course. If they do not, Congress must step in.

The issue debated in the press today misses the point. The issue is not about closing Guantanamo Bay. It is not a question of the address of these prisoners. It is a question of how we treat these prisoners. To close down Guantanamo and ship these prisoners off to undisclosed locations in other countries, beyond the reach of publicity, beyond the reach of any surveillance, is to give up on the most basic and fundamental commitment to justice and fairness, a commitment we made when we signed the Geneva Convention and said the United States accepts it as the law of the land, a commitment which we have made over and over again when it comes to the issue of torture. To criticize the rest of the world for using torture and to turn a blind eye to what we are doing in this war is wrong, and it is not American.

And while I disagree with the last four words (i.e., Durbin’s “it is not American” is at best sappy), I can’t help but wonder what, exactly, Durbin’s critics have found so objectionable in his remarks. Do you suppose it was when he told the Senate about the role of the U.S. energy sector in policymaking, including “doctoring environmental documents and statements to make it look as if there is no threat of global warming” (S5692, col. 2)? Or when Durbin told them that he voted against the October, 2002 Use of Force Resolution because he “believed this administration had misled the American people about the real threat in Iraq,” and that upon militarily seizing Iraq, “didn’t know what to do next” (S5692, col. 3)?

Or how about when Durbin at great length lectured them (i.e., for roughly the 2,300 words prior to his entering the single memo of “what one FBI agent saw” into the Congressional Record) about the multiple violations of law, both domestic, international, and humanitarian, the barbarity of the practices to have come to light at prisons such as Abu Ghraib and Guantanamo Bay’s Camp X-Ray, and the tyranny of the regime in Washington responsible for it all, which, in Durbin’s words, “wants all the power: legislator, executive, and judge,” and disregards anybody or anything that stands in its way (S6593S6594)?

I do not recall any occasion on which Senator Frist or one of the spokespeople for the regime in Washington made any effort to assess the validity of these statements. Or any occasion on which Fox News aired clips during which Senator Durbin could be seen as well as heard uttering them.

In my opinion, not only should Senator Durbin not apologize for anything. (In point of fact, to date, he has released two statements addressing the controversary. The most he has conceded is that (June 17): “I have learned from my statement that historical parallels can be misused and misunderstood. I sincerely regret if what I said caused anyone to misunderstand my true feelings: our soldiers around the world and their families at home deserve our respect, admiration and total support.” Which is already to have conceded far too much.)

But it is those who have been attacking Durbin who owe Durbin an apology.

Just like they owe the rest of the world an apology. Beginning with the untold thousands of unlawfully held prisoners in the vast and expanding American gulag—one very small part of which is the highly visible Camp X-Ray at Guantanamo Bay.

Senator Richard Durbin, Speaking on Senate Floor, Congressional Record, June 14, 2005, pp. 6591-6595

S6591 (beginning in col. 3)
S6592
S6593
S6594 (see esp. col. 3)
S6595

Detainees,” Hearing of the Senate Judiciary Committee, June 15, 2005

Durbin Statement on Guantanamo,” Press Release, U.S. Senator Dick Durbin, June 15, 2005
Durbin Statement on Previous Comments Regarding Guantanamo Bay,” Press Release, U.S. Senator Dick Durbin, June 17, 2005

‘FOX News Sunday’ Transcript: Amnesty Int’l USA Chief William Schulz,” Fox News Sunday with Chris Wallace, June 5, 2005

Press Breifing By Scott McClellan,” White House Office of the Press Secretary, June 16, 2005

U.S. Senator Stands by Nazi Remark,” Al Jazeera, June 16, 2005
Amnesty attacks move to expand Guantanamo prison,” Demetri Sevastopulo, Financial Times, June 18, 2005
Frist Insists on Apology For Durbin’s Remarks,” Washington Post, June 19, 2005

American Interests and UN Reform, Report of the Task Force on the United Nations, Newt Gingrich and George Mitchell et al., United States Institute of Peace, June, 2005 (For the complete PDF version of the same.)

…interrogators, in an attempt to rattle suspects, flushed a Qur’an down a toilet…, ZNet, May 19, 2005

Senator Richard Durbin, Speaking on Senate Floor, Congressional Record, June 14, 2005, pp. 6591-6595

—-S6591 (beginning in col. 3)—-
…………
Mr. HARKIN. I yield the floor, and I thank my colleague from Illinois.
The PRESIDING OFFICER (Mr. THUNE). The Senator from Illinois is recognized for up to 25 minutes.
Mr. DURBIN. Let me thank my colleague from Iowa. He and I have something in common: We are interested in alcohol fuels, ethanol and diesel. We understand these are homegrown. You don’t have to wait for the OPEC cartel to decide to send them to you. We grow the corn in the field, and one out of every six bushels of corn that is grown in America creates ethanol, alcohol fuel.
Earlier, my colleague and friend from New York was talking about, What could this possibly mean to farmers? He doesn’t understand the mechanics of the market. More demand raises prices. Demand for corn to use it to create ethanol and alcohol fuels will help farmers. As farmers receive higher prices for their corn, there are lower payments in the Federal programs. The taxpayers are going to benefit as well.
Mr. HARKIN. That is right.
Mr. DURBIN. What the Senator from New York failed to note–and I was about to interrupt him, but since I live with him, I interrupt him all the time–I just live with him in Washington, incidentally; there is a family situation otherwise. What I was going to remind him was when these trucks are coming in with ethanol into New York and getting stalled in traffic and burning up their fuel, if they have ethanol in their tanks, there is less pollution in his beautiful New York City. So we have another added benefit here–not just more income for farmers and less in payments by taxpayers for farm programs but cleaner air and less dependence on foreign oil.
I hope Senator Harkin and I can take this on as a class project, to try to work on Senator Schumer from New York. He is a very delightful man and does a great job for his State, but he needs some very fundamental education on corn and ethanol and what it means for America.
Mr. HARKIN. I join with the Senator. We will do a little educating for him.
Mr. DURBIN. This is probably a task we should not undertake because it is momentous, but we will try anyway. This is the Energy bill. It is a big bill, as you can tell. I sat down and did something kind of unique: I decided to read it, just to decide what we are voting on. I don’t say that entirely in a negative fashion because some of this is so technical, you need to have staff go through and figure out exactly what is happening in this bill.

The one thing that is most important about this bill is not the fact that Senator Domenici of New Mexico has worked so hard on it with Senator Bingaman and done such a good job on a bipartisan basis to bring it to us. That is a positive thing, and I complimented Senator Domenici about it

—-S6592—-

earlier. What is troubling about this bill is it is setting out to establish:
the enhancement of the energy security of the United States.
Since it is setting out to establish America’s energy policy, you would think to yourself, How do most Americans come in contact with energy each day? Certainly when you flip the lights on in the morning or in the evening, you come in contact with electricity, but equally so, when you get into that car or into that truck or on that bus, you are in contact with the energy policy of America.
If that is an important part of our life experience with energy, if over 60 percent of all the oil we bring into the United States is used to fuel vehicles, trucks and cars, you would just assume that a large part of this bill of almost 800 pages must be devoted to the whole question of the fuel efficiency of cars and trucks. Isn’t that obvious? Wouldn’t that be one of the first things?
Sadly, you are going to have to search long and hard to find any reference in here to the fuel economy and fuel efficiency of cars and trucks in America. The question I have asked over and over again is, How can you have an honest energy policy for America and not talk about that? How can you really have a policy that reduces our dependence on foreign oil if we do not talk about more fuel-efficient cars and trucks–more conservation?
I don’t think you can. The only provision in this bill that addresses that, in the most indirect and oblique way, says that over the next 10 years, we will reduce the demand for oil in America by 1 million barrels a day. That is a good thing. I support that. It doesn’t spell out how we will do it. Frankly, it doesn’t reflect the ambition we should have in putting together this bill because we can do better. We can do a lot better.
Tomorrow, Senator MARIA CANTWELL of Washington is going to offer the amendment from the Democratic side about energy policy. It is our lead amendment. The reason it is our lead amendment is we believe it gets to the heart of the question. Here is what we believe in our Democratic Senate caucus. We think we should add to this bill language which says: Over the next 20 years, we will reduce our dependence on foreign oil in America by 40 percent.
Frankly, I think we can do better, but we establish a standard of 40 percent. Today, 58 percent of all of the oil that we burn each day in America comes from overseas–58 percent. Unchecked, unchanged, it is estimated that in 20 years, it will be 68 percent. More than two out of every three barrels of oil will be imported into the United States.
If the Democratic amendment is adopted–and I hope it is, on a bipartisan basis–if we reduce the foreign imports by 40 percent over the next 20 years, the number will go from 58 percent to 56 percent. That is still too high, but to do nothing means that our dependence on foreign oil will grow.
Depending on foreign oil means depending on the people who own it. I do not want my future, the
future of my children or grandchildren, in the hands of the Saudi Royal Family. That is what their future will be tied to–in a world where there will be even more competition over OPEC oil.
You cannot pick up a magazine or an article anywhere that does not refer to the growth of China and its economy. They are just sucking away jobs from America, to paraphrase Ross Perot, and creating new opportunities for jobs in a country that is deficient in energy. So they are looking all over the world to find where they can import gas and oil so they can fuel the growing Chinese economy.
What it means, of course, is China will be our competitor for that oil in the years to come. If we do not take care to reduce our dependence on foreign oil, we will find ourselves in a predicament even worse than today, where the cost of oil will be increasing because of increased demand for limited resources, and our dependence will be increasing at the same time. What a recipe for economic disaster in America.
I will tell you one thing that is troubling. Remember the only provision in this bill related to fuel efficiency that I mentioned earlier that wants to reduce our dependence on foreign oil by a million barrels a day? We just got an official statement from the Bush White House today–they oppose that provision. They want to take it out of the bill. That is the only provision in the bill relative to fuel efficiency and fuel economy, and they want to have it taken out of the bill.
This is the same administration that does not concede the fact that there is global warming, the same administration which last week had to dismiss a man who was doctoring environmental documents and statements to make it look as if there is no threat of global warming. This same administration says they want to take out the only provision in the bill that would move us toward less dependence on foreign oil. What are they thinking? This is the leadership in the White House?
The President can walk, literally hand in hand, with a Saudi prince at his ranch in Texas, but does America want to walk hand in hand with a Saudi prince for the next 20 years? Not me–no. I want to see us move toward energy independence. It is not likely we will reach it in its entirety in my lifetime, but don’t we owe it to future generations to lessen our dependence on foreign oil?
Which moves me to a second topic, which is related. That dependence on foreign oil draws us into a lot of predicaments around the world. Ask the 150,000 American soldiers in Iraq today. Ask whether we would be as focused as we are on the Middle East and its stability if we were not dependent on those oil tankers every single day leaving that Arabian peninsula, the Arabian area, coming into the United States with this oil we need so desperately. I do not think it is likely we would be there with that much intensity of feeling. But we are there.
Because of our dependence on foreign oil, we have been drawn into a conflict, now more than 2 years in length, with no end in sight. I was one of 23 Senators who voted against the Use of Force Resolution that authorized President Bush to invade Iraq. That was not because I had any sympathy for Saddam Hussein–I never have had–but because I believed this administration had misled the American people about the real threat in Iraq. It turns out afterward we were misled, there were no weapons of mass destruction, no nuclear weapons, no connection with 9/11. It turns out the threats we were told existed did not exist. The American people were misled.
Sadly, this administration took the best military in the world and invaded Iraq and very quickly made short order of Saddam Hussein and his troops but didn’t know what to do next. They won the war. They couldn’t figure out how to win the peace. And we still pay the heaviest possible price every single day because of their lack of preparedness.
Think about it. Over the weekend, the number of American soldiers killed in Iraq in combat now has reached about 1,700–1,700 of our sons and daughters have given their lives in Iraq, with no end in sight.
Soldiers sent into battle by an administration which has received every penny they have asked for from Congress to supply our troops. Soldiers sent into battle, killed, still today, in unarmored humvees. Soldiers without body armor. Soldiers without the proper equipment.
I have been there. I have seen it. I have heard it. I have talked to these soldiers. I know a few weeks ago in Iraq this was the case. That, to me, is a tragedy and a travesty.
What is also troubling is that this Congress is afraid to even ask the hard questions of this administration. When was the last time we had a serious hearing on Capitol Hill about the contract abuses of Halliburton in Iraq? We will have to search the Congressional Record long and hard to find there has not been such a hearing. We do not get into that issue. When was the last time we had a hearing on Capitol Hill about the serious problems we are having in recruiting new soldiers, marines, sailors, and airmen? That is a big problem. The best military in the world needs the best men and women. Why is it they will not join the ranks to fight in this war in Iraq and Afghanistan? That is worth a hearing, isn’t it? We are still waiting for it.

There will be a hearing tomorrow–and I commend the chairman of the Senate Judiciary Committee, Senator Arlen Specter–to discuss some of the basic issues about a very serious problem that we face.

—-S6593—-

Mr. President, there has been a lot of discussion in recent days about whether to close the detention center at Guantanamo Bay. This debate misses the point. It is not a question of whether detainees are held at Guantanamo Bay or some other location. The question is how we should treat those who have been detained there. Whether we treat them according to the law or not does not depend on their address. It depends on our policy as a nation.
How should we treat them? This is not a new question. We are not writing on a blank slate. We have entered into treaties over the years, saying this is how we will treat wartime detainees. The United States has ratified these treaties. They are the law of the land as much as any statute we passed. They have served our country well in past wars. We have held ourselves to be a civilized country, willing to play by the rules, even in time of war.
Unfortunately, without even consulting Congress, the Bush administration unilaterally decided to set aside these treaties and create their own rules about the treatment of prisoners.
Frankly, this Congress has failed to hold the administration accountable for its failure to follow the law of the land when it comes to the torture and mistreatment of prisoners and detainees.
I am a member of the Judiciary Committee. For two years, I have asked for hearings on this issue. I am glad Chairman Specter will hold a hearing on wartime detention policies tomorrow. I thank him for taking this step. I wish other members of his party would be willing to hold this administration accountable as well.
It is worth reflecting for a moment about how we have reached this point. Many people who read history remember, as World War II began with the attack on Pearl Harbor, a country in fear after being attacked decided one way to protect America was to gather together Japanese Americans and literally imprison them, put them in internment camps for fear they would be traitors and turn on the United States. We did that. Thousands of lives were changed. Thousands of businesses destroyed. Thousands of people, good American citizens, who happened to be of Japanese ancestry, were treated like common criminals.
It took almost 40 years for us to acknowledge that we were wrong, to admit that these people should never have been imprisoned. It was a shameful period in American history and one that very few, if any, try to defend today.
I believe the torture techniques that have been used at Abu Ghraib and Guantanamo and other places fall into that same category. I am confident, sadly confident, as I stand here, that decades from now people will look back and say: What were they thinking? America, this great, kind leader of a nation, treated people who were detained and imprisoned, interrogated people in the crudest way? I am afraid this is going to be one of the bitter legacies of the invasion of Iraq.
We were attacked on September 11, 2001. We were clearly at war.
We have held prisoners in every armed conflict in which we have engaged. The law was clear, but some of the President’s top advisers questioned whether we should follow it or whether we should write new standards.
Alberto Gonzales, then-White House chief counsel, recommended to the President the Geneva Convention should not apply to the war on terrorism.
Colin Powell, who was then Secretary of State, objected strenuously to Alberto Gonzales’ conclusions. I give him credit. Colin Powell argued that we could effectively fight the war on terrorism and still follow the law, still comply with the Geneva Conventions. In a memo to Alberto Gonzales, Secretary Powell pointed out the Geneva Conventions would not limit our ability to question the detainees or hold them even indefinitely. He pointed out that under Geneva Conventions, members of al-Qaida and other terrorists would not be considered prisoners of war.
There is a lot of confusion about that so let me repeat it. The Geneva Conventions do not give POW status to terrorists.
In his memo to Gonzales, Secretary Powell went on to say 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 , Secretary Colin Powell was prophetic.
Unfortunately, the President rejected Secretary Powell’s wise counsel, and instead accepted Alberto Gonzales’ recommendation, issuing a memo setting aside the Geneva Conventions and concluding that we needed “new thinking in the law of war.”
After the President decided to ignore Geneva Conventions, the administration unilaterally created a new detention policy. They claim the right to seize anyone, including even American citizens, anywhere in the world, including in the United States, and hold them until the end of the war on terrorism, whenever that may be.
For example, they have even argued in court they have the right to indefinitely detain an elderly lady from Switzerland who writes checks to what she thinks is a charity that helps orphans but actually is a front that finances terrorism.
They claim a person detained in the war on terrorism has no legal rights–no right to a lawyer, no right to see the evidence against them, no right to challenge their detention. In fact, the Government has claimed detainees have no right to challenge their detention, even if they claim they were being tortured or executed.
This violates the Geneva Conventions, which protect everyone captured during wartime.
The official commentary on the convention states:
Nobody in enemy hands can fall outside the law.
That is clear as it can be. But it was clearly rejected by the Bush administration when Alberto Gonzales as White House counsel recommended otherwise.
U.S. military lawyers called this detention system “a legal black hole.” The Red Cross concluded, “U.S. authorities have placed the internees in Guantanamo beyond the law.”
Using their new detention policy, the administration has detained thousands of individuals in secret detention centers all around the world, some of them unknown to Members of Congress. While it is the most well-known, Guantanamo Bay is only one of them. Most have been captured in Afghanistan and Iraq, but some people who never raised arms against us have been taken prisoner far from the battlefield.
Who are the Guantanamo detainees? Back in 2002, Secretary Rumsfeld described them as “the hardest of the hard core.” However, the administration has since released many of them, and it has now become clear that Secretary Rumsfeld’s assertion was not completely true.
Military sources, according to the media, indicate that many detainees have no connection to al-Qaida or the Taliban and were sent to Guantanamo over the objections of intelligence personnel who recommended their release. One military officer said:
We’re basically condemning these guys to a long-term imprisonment. If they weren’t terrorists before, they certainly could be now.
Last year, in two landmark decisions, the Supreme Court rejected the administration’s detention policy. The Court held that the detainees’ claims that they were detained for over two years without charge and without access to counsel “unquestionably describe custody in violation of the Constitution, or laws or treaties of the United States.”
The Court also held that an American citizen held as an enemy combatant must be told the basis for his detention and have a fair opportunity to challenge the Government’s claims. Justice Sandra Day O’Connor wrote for the majority:
A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.
You would think that would be obvious, wouldn’t you? But yet, this administration, in this war, has viewed it much differently.

I had hoped the Supreme Court decision would change the administration policy. Unfortunately, the administration has resisted complying with the Supreme Court’s decision.

—-S6594—-

The administration acknowledges detainees can challenge their detention in court, but it still claims that once they get to court, they have no legal rights. In other words, the administration believes a detainee can get to the courthouse door but cannot come inside.
A Federal court has already held the administration has failed to comply with the Supreme Court’s rulings. The court concluded that the detainees do have legal rights, and the administration’s policies “deprive the detainees of sufficient notice of the factual bases for their detention and deny them a fair opportunity to challenge their incarceration.”
The administration also established a new interrogation policy that allows cruel and inhuman interrogation techniques.
Remember what Secretary of State Colin Powell said? It is not a matter of following the law because we said we would, it is a matter of how our troops will be treated in the future. That is something often overlooked here. If we want standards of civilized conduct to be applied to Americans captured in a warlike situation, we have to extend the same manner and type of treatment to those whom we detain, our prisoners.
Secretary Rumsfeld approved numerous abusive interrogation tactics against prisoners in Guantanamo . The Red Cross concluded that the use of those methods was “a form of torture.”
The United States, which each year issues a human rights report, holding the world accountable for outrageous conduct, is engaged in the same outrageous conduct when it comes to these prisoners.
Numerous FBI agents who observed interrogations at Guantanamo Bay complained to their supervisors. In one e-mail that has been made public, an FBI agent complained that interrogators were using “torture techniques.”
That phrase did not come from a reporter or politician. It came from an FBI agent describing what Americans were doing to these prisoners.
With no input from Congress, the administration set aside our treaty obligations and secretly created new rules for detention and interrogation. They claim the courts have no right to review these rules. But under our Constitution, it is Congress’s job to make the laws, and the court’s job to judge whether they are constitutional.
This administration wants all the power: legislator, executive, and judge. Our founding father were warned us about the dangers of the Executive Branch violating the separation of powers during wartime. James Madison wrote:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny.
Other Presidents have overreached during times of war, claiming legislative powers, but the courts have reined them back in. During the Korean war, President Truman, faced with a steel strike, issued an Executive order to seize and operate the Nation’s steel mills. The Supreme Court found that the seizure was an unconstitutional infringement on the Congress’s lawmaking power. Justice Hugo Black, writing for the majority, said:
The Constitution is neither silent nor equivocal about who shall make the laws which the President is to execute ….. The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good times and bad.
To win the war on terrorism, we must remain true to the principles upon which our country was founded. This Administration’s detention and interrogation policies are placing our troops at risk and making it harder to combat terrorism.
Former Congressman Pete Peterson of Florida, a man I call a good friend and a man I served with in the House of Representatives, is a unique individual. He is one of the most cheerful people you would ever want to meet. You would never know, when you meet him, he was an Air Force pilot taken prisoner of war in Vietnam and spent 6 1/2 years in a Vietnamese prison. Here is what he said about this issue in a letter that he sent to me. Pete Peterson wrote:
From my 6 1/2 years of captivity in Vietnam, I know what life in a foreign prison is like. To a large degree, I credit the Geneva Conventions for my survival. ….. This is one reason the United States has led the world in upholding treaties governing the status and care of enemy prisoners: because these standards also protect us. ….. We need absolute clarity that America will continue to set the gold standard in the treatment of prisoners in wartime.
Abusive detention and interrogation policies make it much more difficult to win the support of people around the world, particularly those in the Muslim world. The war on terrorism is not a popularity contest, but anti-American sentiment breeds sympathy for anti-American terrorist organizations and makes it far easier for them to recruit young terrorists.
Polls show that Muslims have positive attitudes toward the American people and our values. However, overall, favorable ratings toward the United States and its Government are very low. This is driven largely by the negative attitudes toward the policies of this administration.
Muslims respect our values, but we must convince them that our actions reflect these values. That’s why the Ð9/11 Commission recommended:
We should offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors.
What should we do? Imagine if the President had followed Colin Powell’s advice and respected our treaty obligations. How would things have been different?
We still would have the ability to hold detainees and to interrogate them aggressively. Members of al-Qaida would not be prisoners of war. We would be able to do everything we need to do to keep our country safe. The difference is, we would not have damaged our reputation in the international community in the process.
When you read some of the graphic descriptions of what has occurred here–I almost hesitate to put them in the RECORD, and yet they have to be added to this debate. Let me read to you what one FBI agent saw. And I quote from his report:

On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they urinated or defecated on themselves, and had been left there for 18-24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold. ….. On another occasion, the [air conditioner] had been turned off, making the temperature in the unventilated room well over 100 degrees. The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his hair out throughout the night. On another occasion, not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor.

If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime–Pol Pot or others–that had no concern for human beings. Sadly, that is not the case. This was the action of Americans in the treatment of their prisoners.
The PRESIDING OFFICER. The Senator’s time has expired.
Mr. DURBIN. Mr. President, I ask unanimous consent for 3 additional minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. It is not too late. I hope we will learn from history. I hope we will change course. The President could declare the United States will apply the Geneva Conventions to the war on terrorism. He could declare, as he should, that the United States will not, under any circumstances, subject any detainee to torture, or cruel, inhuman, or degrading treatment. The administration could give all detainees a meaningful opportunity to challenge their detention before a neutral decisionmaker.
Such a change of course would dramatically improve our image and it would make us safer. I hope this administration will choose that course. If they do not, Congress must step in.

The issue debated in the press today misses the point. The issue is not about closing Guantanamo Bay. It is not a question of the address of these prisoners. It is a question of how we treat these prisoners. To close down Guantanamo and ship these prisoners off to

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undisclosed locations in other countries, beyond the reach of publicity, beyond the reach of any surveillance, is to give up on the most basic and fundamental commitment to justice and fairness, a commitment we made when we signed the Geneva Convention and said the United States accepts it as the law of the land,
a commitment which we have made over and over again when it comes to the issue of torture. To criticize the rest of the world for using torture and to turn a blind eye to what we are doing in this war is wrong, and it is not American.
During the Civil War, President Lincoln, one of our greatest Presidents, suspended habeas corpus, which gives prisoners the right to challenge their detention. The Supreme Court stood up to the President and said prisoners have the right to judicial review even during war.
Let me read what that Court said:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions could be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.
Mr. President, those words still ring true today. The Constitution is a law for this administration, equally in war and in peace. If the Constitution could withstand the Civil War, when our Nation was literally divided against itself, surely it will withstand the war on terrorism.
I yield the floor.
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