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Kerry Opposes Senate’s Failure on Torture Compromise

by Pamela Leavey

Earlier today, the Senate rejected a compromise amendment to the Bush administration’s ‘torture bill’, that “would have guaranteed such suspects access to the courts to challenge their imprisonment. ”

The vote was 51 to 48 against the amendment, which was offered by the Republican and Democratic leaders of the Judiciary Committee, Senator Arlen Specter of Pennsylvania and Senator Patrick J. Leahy of Vermont.

The action set the stage for final passage of the bill, which was approved on Wednesday by the House of Representatives.

John Kerry’s spoke eloquently and passionately on the Senate floor today in opposition to the Senate failure to “compromise” on torture.

Listen to the Audio here or Watch the Video here.

The text of John Kerry’s floor speech is below:

Mr. KERRY. Mr. President. The last week before we leave for a long recess is always extraordinarily busy—particularly when an election is only 42 days away. Sadly, it’s too often part of how business is done in this institution.

Today, the leadership of the Senate has decided that legislation that will directly impact America’s moral authority in the world merits only a few hours of debate. I am talking about moral authority that is essential to waging and winning a war on terror, and that is critical to the safety of American troops who may be captured.

If, in a few hours, we squander that moral authority, blur lines that have for decades been absolute, then no speech, no rhetoric, no promise can restore it.

Four years ago, we were at a similar situation. An Iraq War Resolution was rushed through the Senate because of election year politics – a political calendar, not a statesman’s calendar. Four years later the price we are paying is clear for saying to a President and an administration that we would trust them. Four years later, there is enough blame to go around and each of us must assume our share of the responsibility.

But today we face a different choice – it is to prevent an irreversible mistake, not to correct one. It is to stand up and be counted so that election-year politics do not further compromise our moral authority and the safety of our troops.

Every Senator must ask him or herself, does the bill before us treat Americas’ moral authority as a national asset that does not limit our power but magnifies our influence? Does it make clear that the United States government recognizes beyond any doubt that the protections of the Geneva Convention have to be applied to prisoners in order to comply with the law, restore our moral authority, and best protect American troops? Does it make clear that the United States does not engage in torture – -period?

Mr. President, a veteran of the Iraq War whom I know, Paul Rieckhoff, wrote something the other day that every Senator ought to think about as they wrestle with this bill.

He wrote that he was taught at Fort Benning, Georgia about the importance of the Geneva Conventions. He didn’t know what it meant until he arrived in Baghdad. Paul wrote,

    “America’s moral integrity was the single most important weapon my platoon had on the streets of Iraq. It saved innumerable lives, encouraged cooperation with our allies and deterred Iraqis from joining the growing insurgency. But those days are over. America’s moral standing has eroded, thanks to its flawed rationale for war and scandals like Abu Ghraib, Guantánamo and Haditha. The last thing we can afford now is to leave Article 3 of the Geneva Conventions open to reinterpretation, as President Bush proposed to do and can still do under the compromise bill that emerged last week.”

We each need to ask ourselves, in the rush to find a “compromise” we can all embrace, are we strengthening Americas’ moral authority or eroding it? Are we on the sides of the thousands of Paul Rieckhoffs in uniform today, or are we making their mission harder and even worse, putting them in greater danger if they are captured?

Paul writes eloquently,

    “If America continues to erode the meaning of the Geneva Conventions, we will cede the ground upon which to prosecute dictators and warlords. We will also become unable to protect our troops if they are perceived as being no more bound by the rule of law than dictators and warlords themselves. The question facing America is not whether to continue fighting our enemies in Iraq and beyond but how to do it best. My soldiers and I learned the hard way that policy at the point of a gun cannot, by itself, create democracy. The success of America’s fight against terrorism depends more on the strength of its moral integrity than on troop numbers in Iraq or the flexibility of interrogation options.”

Mr. President, I wish I could say this compromise serves Americas’ moral mission and protects our troops. But it doesn’t. No eloquence we can bring to this debate can change what this bill fails to do.

We have been told in press reports that it is a great compromise between the White House and my good friends, Senator McCain, Senator Warner, and Senator Graham. We have been told that it protects the “integrity and letter and sprit of the Geneva Conventions.”

I wish that what we are being told is true. It is not. Nothing in the language of the bill supports these claims. Let me be clear about something—something that it seems few people are willing to say. This bill permits torture. This bill gives the President the discretion to interpret the meaning and application of the Geneva Conventions. This bill gives an administration that lobbied for torture exactly what it wanted.

We are supposed to believe that there is an effective check on this expanse of presidential power with the requirement that the President’s interpretations be published in the Federal Register.

We shouldn’t kid ourselves. Let’s assume the President publishes his interpretation of permissible acts under the Geneva Convention. The interpretation, like the language in this bill, is vague and inconclusive. A concerned Senator or Congresswoman calls for oversight. Unless he or she is in the majority at the time, there won’t be a hearing. Let’s assume they are in the majority and get a hearing. Do we really think a bill will get through both houses of Congress? A bill that directly contradicts a Presidential interpretation of a matter of nation security? My guess is that it won’t happen, but maybe it will. Assume it does. The bill has no effect until the President actually signs it. So, unless the President chooses to reverse himself, all the power remains in the President’s hands. And all the while, Americas’ moral authority is in tatters. American troops are in greater jeopardy. And the war on terror is setback.

Could the President’s power grab be controlled by the courts? After all, it was the Supreme Court’s decision in Hamdan that invalidated the President’s last attempt to consolidate power and establish his own military tribunal system. The problem now is that the bill strips the courts the power to hear such a case when says “no person may invoke the Geneva Conventions . . . in any habeas or civil action.”

What are we left with? Unfettered presidential power to interpret what—other than the statutorily proscribed “grave violations”—violates the Geneva Conventions. No wonder the President was so confident that his CIA program could continue as is. He gets to keep setting the rules – rules his Administration has spent years now trying to blur.

Presidential discretion is not the only problem. The definitions of what constitute “grave breaches” of Article 3 are murky. Even worse, they are not consistent with either the Detainee Treatment Act or the recently-revised Army Field Manuel. These documents prohibit “cruel, inhuman, or degrading treatment.” defined as “the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eight, and Fourteenth Amendments.” The definition is supported by an extensive body of case law evaluating what treatment is required by our constitutional standards of “dignity, civilization, humanity, decency, and fundamental fairness.” And, I think quite tellingly, it is substantially similar the definition that my good friend, Senator McCain, chose to include in his bill. And there is simply no reason why the standard adopted by the Army Field Manual and the Detainee Treatment Act, which this Congress has already approved, should not apply for all interrogations in all circumstances.

In the bill before us, however, there is no reference to any constitutional standards. The prohibition of degrading conduct has been dropped. And, there are caveats allowing pain and suffering “incidental to lawful sanctions.” Nowhere does it tell us what “lawful sanctions” are.

So, what are we voting for with this bill? We’re voting to give the President the power to interpret the Geneva Conventions. We’re voting to allow pain and suffering incident to some un-defined lawful sanctions. The only guarantee we have that these provisions really will prohibit torture is the word of the President.

The word of the President. I wish I could say the words of the President were enough on an issue as fundamental as torture. Fifty years ago, President Kennedy sent his Secretary of State abroad on a crisis mission – to prove to our allies that Soviet missiles were being held in Cuba. The Secretary of State brought photos of the missiles. As he prepared to take them from his briefcase, our ally, a foreign head of state said, simply, “put them away. The word of the President of the United States is good enough for me.”

We each wish we lived in times like those. Perilous times, but times when Americas’ moral authority, our credibility, were unquestioned. Unchallenged.

But the word of the President today is questioned. This Administration said there were weapons of mass destruction in Iraq, that Saddam Hussein had ties to Al Qaeda, that they would exhaust diplomacy before we went to war, that the insurgency was in its last throes. None of these statements were true, and now we find our troops in the crossfire of civil war in Iraq with no end in sight. They keep saying the war in Iraq is making us safer, but our own intelligence agencies say it’s actually fanning the flames of jihad, creating a whole new generation of terrorists and putting our country at greater risk of terrorist attack. It is no wonder then that we are hesitant to blindly accept the word of the President on this question today.

The President said he agreed with Senator McCain’s anti-torture provisions in the Detainee Treatment Act. Yet, he issued a signing statement reserving the right to ignore them. He says flatly that “The United States does not torture” – and then tries to bully Congress into allowing him to do exactly that. And even here, he has promised to submit his interpretations of the Geneva Convention to the Federal Register — yet his Press Secretary announced that the Administration may not need to comply with that requirement.

We have seen the consequences of simply accepting the word of this Administration. No, the Senate can not just accept the word of this Administration that they will not engage in torture given the way in which everything they’ve already done and said on this most basic question has already put our troops at greater risk and undermined the very moral authority needed to win the war on terror. When the President says the United States doesn’t torture, there has to be no doubt about it. And when his words are unclear, Congress must step in to hold him to hold him accountable.

Mr. President, the Administration will use fear to try and bludgeon anyone who disagrees with them.

Just as they pretended Iraq is the central front in the war on terror even as their intelligence agencies told them their policy made terrorism worse, they will pretend America needs to squander its moral authority to win the war on terror.

They are wrong. Profoundly wrong. The President’s experts have told him that not only does torture put our troops at risk and undermine our moral authority but torture does not work. As Lieutenant General John Kimmons, the Army’s deputy chief of staff for intelligence, put it:

    “No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tell us that. Any piece of intelligence which is obtained under duress, through the use of abusive techniques, would be of questionable credibility. And additionally, it would do more harm than good when it inevitably became known that abusive practices were used. We can’t afford to go there.”

Neither justice nor good intelligence comes at the hands of torture. In fact, both depend on the rule of law. It would be wrong – tragically wrong – to authorize the President to require our sons and daughters to use torture for something that won’t even work.

Another significant problem with this bill is the unconstitutional elimination of the writ of habeas corpus. No less a conservative than Ken Starr got it right: “Congress should act cautiously to strike a balance between the need to detain enemy combatants during the present conflict and the need to honor the historic privilege of the writ of habeas corpus.” Ken Starr says “Congress should act cautiously.” How cautiously are we acting when we eliminate any right to challenge an enemy combatant’s indefinite detention? When we eliminate habeas corpus rights for aliens detained inside or outside the United States so long as the government believes they are enemy combatants? When we not only do this for future cases but apply it to hundreds of cases currently making their way through our court system?

The Constitution is very specific when it comes to Habeas Corpus. It says “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” We are not in a case of rebellion. Nor are we being invaded. Thus, we really don’t have the constitutional power to suspend the Great Writ. And, even if we did, the Constitution allows only for the writ to be suspended. It does not allow the Writ to be permanently taken away. Yet, this is exactly what the bill does. It takes the writ away—forever—from anyone the Administration determines is an “enemy combatant.” Even if they are lawfully on US soil and otherwise entitled to full Constitutional protections and even if they have absolutely no other recourse.

Think of what this means. This bill is giving the administration the power to pick up any non-U.S. citizen inside or outside of the United States, determine in their sole and unreviewable discretion that he is an unlawful combatant, and hold him in jail—be it Guantanamo Bay or a secret CIA prison—indefinitely. Once the Combatant Status Review Tribunal determines that person is an enemy combatant, that is the end of the story—even if the determination is based on evidence that even a military commission would not be allowed to consider because it is so unreliable. That person would never get the chance to challenge his detention; to prove that he is not, in fact, an enemy combatant.

We are not talking about whether detainees can file a habeas suit because they don’t have access to the internet or cable television. We’re talking about something much more fundamental: whether people can be locked up forever without even getting the chance to prove that the government was wrong in detaining them. Allow this to become the policy of the United States and just imagine the difficulty our law enforcement and our government will have arranging the release of an American citizen the next time our citizens are detained in other countries.

Mr. President, we all want to stop terrorist attacks. We all want to effectively gather as much intelligence as humanly possible. We all want to bring those who do attack us to justice. But, we weaken – not strengthen – our ability to do that when we undermine our own Constitution; when we throw away our system of checks and balances; when we hold detainees indefinitely without trial by destroying the Writ of Habeas Corpus; and when we permit torture. We endanger our moral authority at our great peril. I oppose this legislation because it will make us less safe and less secure. I urge my colleagues to do the same.

Thank you.

The roll call vote is available here.

2 Responses to “Kerry Opposes Senate’s Failure on Torture Compromise”

  1. As an antidote to this awful day, listen to JK’s wonderful speech at Johns Hopkins today. Audio has the Q and A, too.

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