Shocking Detainee Report, Flawed Legal Opinions Stress Need For Inquiry

WASHINGTON (Thursday, April 2, 2009) – In a statement released Thursday, Senator Patrick Leahy (D-Vt.) continued his push to establish a nonpartisan “Commission of Inquiry.”

In contrast to reports circulating on the Internet, Leahy said he is continuing to explore the proposal.

“I am not interested in a panel comprised of partisans intent on advancing partisan conclusions,” Leahy said.  “I regret that Senate Republicans have approached this matter to date as partisans.  That was not my intent or focus.  Indeed, it will take bipartisan support in order to move this forward.  I continue to talk about this prospect with others in Congress, and with outside groups and experts.  I continue to call on Republicans to recognize that this is not about partisan politics.  It is about being honest with ourselves as a country.  We need to move forward together.”

Earlier this year, Leahy, who chairs the Senate Judiciary Committee, proposed the establishment of a nonpartisan commission to examine flawed national security policies that led to the torture and mistreatment of detainees, the warrantless wiretapping of Americans, and extraordinary renditions.  On March 4, the Judiciary Committee heard from a panel of expert witnesses who provided testimony in support of such a review.  Since Senator Leahy first offered the Commission proposal, new facts have emerged that underscore the need for the panel.

Last October, Leahy issued a subpoena authorized by the Judiciary Committee to secure several opinions and memoranda from the office of Legal Counsel, as well as an index of all national security documents at the OLC.  The Bush administration largely refused to comply with the subpoena.  In early March, the Department of Justice released several memoranda from the Office of Legal Counsel regarding national security policies of the Bush administration that were responsive to his subpoena.  These memos include legal opinions that greatly expand presidential authority in disregard of established constitutional rights like the Fourth and First Amendments of the Constitution. 

Also in March, press accounts reported on details of a report prepared by the International Committee of the Red Cross about the treatment of detainees in U.S. custody.  The report is purported to conclude based on first-hand accounts from detainees that at least some were tortured while in U.S. custody.  Last week it was also reported that Bush administration officials attempted to secure a secret plea agreement from Binyam Mohammed, a British citizen recently released without conviction from Guantanamo, that would have prohibited him from suing the United States over his allegations that he was tortured while in U.S. custody.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On A Commission Of Inquiry
April 2, 2009

Mr. President, since I last came to the floor to discuss a proposal for a Commission of Inquiry, Americans have learned disturbing new facts that underscore the need for such a nonpartisan review.  In the last eight years, expansive views of presidential authority and misguided policies have dominated the question of how best to preserve and protect national security.  As Senators, we each take an oath to “support and defend the Constitution of the United States.”  In the months and years following 9/11, driven by an inflated view of executive power, the Bush-Cheney administration compromised many of the very laws and protections that are the heart of our democracy.  Their policies, which condoned torture, extraordinary renditions, and the warrantless wiretapping of Americans, have left a stain on America’s reputation in the world.

In recent weeks, we have also seen a few more opinions previously issued by the Office of Legal Counsel after 9/11 that had been kept secret until now.  I commend the new Attorney General on their release. I have asked that more be released, and it is my hope that they will be soon. These opinions sought to excuse policies that trample upon the Constitution and our duly enacted legal protections.  These opinions arise from an arrogant rationale that the President can do anything he wants to do, that the President is above the law.  The last President to make that claim was Richard Nixon.  We saw the results of that policy in Watergate.  It was through efforts like the Church Committee that we revised our laws and moved forward.  In my view, it is time to do so again.

Perhaps the most persuasive new revelation that demonstrates why we cannot just turn the page without reading it is Mark Danner’s account of a leaked copy of a report on the treatment of detainees at Guantanamo Bay.  The report, compiled by the International Committee of the Red Cross, is nothing short of chilling. One detainee interviewed describes: “Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow….The other was shorter, perhaps only [3 1/2 feet] in height. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. ...I was then put into the tall black box for what I think was about one and a half to two hours....They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe….”

The report continues to describe how these men were kept naked, shackled to a chair for weeks in freezing cold temperatures, forced with cold water to stay awake for days on end, bombarded with loud music, starved, and beaten over and over again. In one interview, a man describes how he was waterboarded:  He was “dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts.” As they poured water on him, he said “I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die.”

The report concludes that from those descriptions, this was torture.  And there is mounting evidence to suggest it was a Bush administration policy.  Media reports suggest that the CIA briefed high-level administration officials on the interrogation plan. Vice President Cheney admitted in an interview with ABC News that he supported the plan that authorized these measures, including waterboarding.  In fact he continues to claim, without any basis, that the Bush administration’s interrogation tactics, including torture, were appropriate and effective.  

This past Sunday, a Washington Post article described how the waterboarding of Abu Zubaida failed to produce any useful intelligence. Of course, Zubaida is a detainee who many Bush administration officials had long claimed provided useful intelligence only after he was subjected to harsh interrogation techniques.  According to Post interviews of former senior government officials, “not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions…Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida … was obtained before waterboarding was introduced.” 

Jack Goldsmith refers to the August 2002 “Bybee memo” as the “golden shield,” because it redefined torture in order to shield decisionmakers from liability for these tactics.  The release of related memos is needed.  Whether they end up shielding decisionmakers from prosecution, they should not shield them from accountability.  Accountability does not only happen in a courtroom.  We need to know what was done.  Transparency and accountability can help restore our reputation around the world.  Most importantly, to reestablish the trust of the American public in their government, they deserve to know and understand what happened. 

Just last week, we heard about the Bush administration’s attempt to silence Binyam Mohammed, a British citizen held for years as an enemy combatant at the detention facility at Guantanamo Bay.  He claims that he was tortured during the course of his detention.  Bush administration officials apparently demanded that he sign a secret plea bargain which would have prohibited him from ever suing the United States over his alleged torture in order to be sent back to the United Kingdom.  He did not and now Britain is investigating his allegations.  When asked about the involvement of a particular British intelligence agent, Mr. Mohammed said, “I feel very strongly that we shouldn’t scapegoat the little people. We certainly shouldn’t blame ‘Witness B,’ he was only following orders.” 

One of my concerns in proposing the Commission of Inquiry is that we not scapegoat or punish those of lesser rank.  Such a commission’s objective would be to find the truth – to provide accountability for the past.  People would be invited to come forward and share their knowledge and experiences, not for purposes of constructing criminal indictments, but to assemble the facts, to know what happened and to make sure mistakes are not repeated.  We have had successful oversight in some areas, but on issues including harsh interrogation tactics, extraordinary rendition and executive override of the laws, the last administration successfully kept many of us in the dark about what happened and who ordered it.  

One month ago, the Judiciary Committee held a hearing to explore my proposal.  A bipartisan panel of respected witnesses explained why we need such a commission.  Since that time, this idea has received a wide range of support from people all across this country.  I am not interested in a panel comprised of partisans intent on advancing partisan conclusions.  I regret that Senate Republicans have approached this matter to date as partisans.  That was not my intent or focus.  Indeed, it will take bipartisan support in order to move this forward. 

I continue to talk about this prospect with others in Congress, and with outside groups and experts.  I continue to call on Republicans to recognize that this is not about partisan politics.  It is about being honest with ourselves as a country.  We need to move forward together.

I recently heard from the Nobel Prize recipient Bishop Desmond Tutu about this proposal.  Bishop Tutu, respected throughout the world for his efforts for peace and justice in his own country of South Africa, offered his support for what we are trying to do. 

The legacy of the last administration left us facing crises in more areas than just the economy, the wars in Iraq and Afghanistan, and the worst recession since the Great Depression.  There is no question that those are all pressing issues.  But we cannot ignore the failures of government forever.  We do so at our peril.  

We are tackling tough issues in these difficult and uncertain times.  The Judiciary Committee has a full legislative agenda, having reported bipartisan legislation to fight fraud, public corruption and to aid the economy through patent reform.  But the fact remains that under the most remarkably broad expansion of executive authority in my lifetime, we have seen policies on detention and interrogation that undermined our values, our reputation and, many believe, our efforts to ensure national security. 

The country will need to have an honest discourse about what happened and what went wrong. I continue to feel strongly that a Commission of Inquiry would provide us the best nonpartisan setting in which to undertake that study and national conversation.  I think we should proceed sooner rather than later.  I am continuing to reach out and to work on the proposal.  But a conversation is not something I can undertake unilaterally.  As strongly as I feel, it will take the cooperation and commitment of others for this proposal to serve its intended purpose so that we can join together to move past the mistakes of the recent past.       

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