As I am a military veteran and civil liberties activist who strongly believes in adherence to the Geneva Conventions, I’m going to let a Senator from my former home state have his say here:
Floor Statement of Sen. Richard Durbin
On the Durbin Torture Amendment
June 16, 2004
I hope we can work on this tomorrow, and I will confer with the chairman on that aspect.
I come to the floor today to offer amendment to the Defense Department authorization bill.
The amendment would reaffirm a very important, long-standing position of our nation: that the United States shall not engage in torture or cruel, inhuman or degrading treatment. This is a standard that is embodied in the U.S. Constitution and in numerous international agreements which the United States has ratified.
The amendment would require the Defense Secretary to issue guidelines to ensure compliance with this standard and to provide these guidelines to Congress. The Defense Secretary would also be required to report to Congress on any suspected violations of the prohibition on torture or cruel, inhuman or degrading treatment. The amendment specifically provides that this information should be provided to Congress in a manner and form that would protect national security.
Let me also explain what this amendment would not do. It would not impose any new legal obligations on the United States. It would not limit our ability to use the full range of interrogation techniques that are outlined in the Army interrogation manual. It would not affect the status of any person under the Geneva Conventions or whether any person is entitled to the protections of the Geneva Conventions.
It would only reaffirm and ensure compliance with our long-standing obligation not to subject detainees to torture or cruel, inhuman and degrading treatment.
The amendment is supported by a broad coalition of organizations and individuals, including human rights organizations like Human Rights Watch and Amnesty International, religious institutions such as the Episcopal Church, and military officers, such as retired Rear Admiral John Hutson.
Admiral Hutson was a Navy Judge Advocate for 28 years and from 1997-2000, he was the Judge Advocate General, the top lawyer in the Navy. In a letter in support of this amendment, he wrote:
It is absolutely necessary that the United States maintain the high ground in this area and that Congress take a firm stand on the issue. ….. It is critical that we remain steadfast in our absolute opposition to torture and [cruel, inhuman or degrading treatment]. Senator Durbin’s proposed amendment is a critical first step in that regard.
In the aftermath of 9/11, some have called for the United States to abandon this commitment. But President Bush has made it clear that he does not support this position. On June 26, 2003, the International Day in Support of Victims of Torture, the President said:
The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment.
I commend the President for standing behind our treaty obligations. Now the Congress must do no less. The world is watching us. They are asking whether the United States will stand behind its treaty obligations in the age of terrorism. With American troops in harm’s way, we need to tell the world and the American people that the United States is committed to treating all detainees humanely.
As we mourn the passing of President Ronald Reagan, we should recall his vision of America as a shining city upon a hill–a model of democracy, freedom and the rule of law that people around the world look to for inspiration. As President Reagan said in his Farewell Address to the Nation:
After 200 years, two centuries, [America] still stands strong and true on the granite ridge, and her glow has held steady no matter what storm. And she’s still a beacon, still a magnet for all who must have freedom.
President Reagan was right. Our city upon a hill must hold steady in defense of our principles no matter what storm. Despite the threat of terrorism, we must stand by our opposition to torture and other cruel treatment.
In fact, it was President Reagan who first transmitted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Senate with his recommendation that the Senate ratify the treaty.
We are in the process of defining our values as a country in the age of terrorism. We need to make it clear that we will not compromise principles that have guided us and other civilized nations for hundreds of years.
The prohibition on torture and other cruel treatment is deeply rooted in our history. In 15th and 16th Century England, the infamous Star Chamber issued warrants authorizing the use of torture against political opponents of the Crown. Supporters of the Star Chamber claimed that torture was necessary to protect the security of the state. Blackstone, the English jurist who greatly influenced the Founding Fathers, said: “It seems astonishing that this usage of torture should be said to arise from a tenderness to the lives of men.'’ Those words still ring true today.
In 1641, the Star Chamber was abolished and the use of torture warrants ended. A prohibition on torture and cruel treatment developed in English common law. The English Bill of Rights of 1689, which served as a model for our Bill of Rights, contained a ban on “cruel and unusual punishments.'’
This history carried great weight with the Framers of our Constitution. During the Constitutional Conventions, Patrick Henry, in a statement that typified the Founders’ views, said: “What has distinguished our ancestors? That they would not admit of tortures, or cruel and barbarous punishment.'’
During the Constitutional Convention, George Mason, who is known as “the Father of the Bill of Rights,'’ explained that the 5th Amendment ban on self-incrimination and the Eighth Amendment ban of cruel and unusual punishment both prohibit torture and cruel treatment.
Our history makes clear that these principles also guided us during times of war. During the Civil War, President Abraham Lincoln asked Francis Lieber, a military law expert, to create a set of rules to govern the conduct of U.S. soldiers in the field. The Lieber Code prohibited torture or other cruel treatment of captured enemy forces. It became the foundation for the modern law of war, which is embodied in the Geneva Conventions.
In the early twentieth century, the emergence of large police departments in the United States was accompanied by a dramatic increase in the abuse of suspects in police custody. President Hoover appointed the National Commission on Law Observance and Enforcement, also known as the Wickersham Commission, to review law enforcement practices. In 1931, the Commission’s findings shocked the nation and permanently transformed the nature of American law enforcement.
The Commission concluded:
The third degree is the employment of methods which inflict suffering, physical or mental, upon a person, in order to obtain from that person information about a crime. . . . The third degree is widespread. The third degree is a secret and illegal practice. When all allowances are made it remains beyond a doubt that the practice is shocking in its character and extent, violative of American traditions and institutions, and not to be tolerated.
The commission catalogued and condemned “third degree'’ methods, including, physical brutality, threats, sleep deprivation, exposure to extreme cold or heat–also known as “the sweat box'’–and blinding with powerful lights and other forms of sensory overload or deprivation.
The commission also discussed practical reasons to reject the “third degree'’:
The third degree involves the danger of false confessions. . . so many instances have been brought to our attention during this investigation that we feel convinced not only of its existence but of its seriousness.
The third degree impairs police efficiency. . . . It tends to make [police] less zealous in the search of objective evidence.
The third degree brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public. Probably the third degree has been a chief factor in bringing about the present attitude of hostility on the part of a considerable portion of the population toward the police and the very general failure of a large element of the people to aid or cooperate with the police in maintaining law and order.
Over the next two decades, numerous Supreme Court opinions cited the Wickersham Commission report and condemned the use of various third degree methods as unconstitutional.
As the landscape of American policing was being reshaped, the horrific abuses of Nazi Germany began to come to light. This reinforced American opposition to torture and other forms of cruel treatment.
One of the counts in the Nuremberg indictment of Gestapo officials detailed official orders approving the application of “third degree'’ techniques, including “[a] very simple diet (bread and water)[,] hard bunk[,] dark cell[,] deprivation of sleep[,] exhaustive drilling[,] ….. [and] flogging (for more than 29 strokes a doctor must be consulted)'’ as a means of obtaining evidence, or “information of important facts'’ regarding subversion. One of the defenses raised by Gestapo officers was that such actions were necessary to protect against Resistance terrorism.
After World War II, in the aftermath of Nuremberg and the disclosure of Nazi Gestapo tactics, the United States and our allies created a new international legal order based on respect for human rights.
One of its fundamental tenets was a universal prohibition on torture and cruel, inhuman, or degrading treatment. The United States took the lead in establishing a succession of international agreements that ban the use of torture and other cruel treatment against all persons at all times. There are no exceptions to this prohibition.
Eleanor Roosevelt was the Chair of the U.N. Commission that produced the Universal Declaration on Human Rights in 1948. The Universal Declaration states unequivocally, “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.'’
The United States, along with a majority of countries in the world, is a party to the Geneva Conventions, the International Covenant on Civil and Political Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, all of which prohibit torture and cruel, inhuman, or degrading treatment.
Army regulations that implement these treaty obligations state:
Inhumane treatment is a serious and punishable violation under international law and the Uniform Code of Military Justice. All prisoners will receive humane treatment without regard to race, nationality, religion, political opinion, sex, or other criteria. The following acts are prohibited: murder, torture, corporal punishment, mutilation, the taking of hostages, sensory deprivation, collective punishments, execution without trial by proper authority, and all cruel and degrading treatment. All persons will be respected as human beings. They will be protected against all acts of violence to include rape, forced prostitution, assault and theft, insults, public curiosity, bodily injury, and reprisals of any kind This list is not exclusive.
Some people may be asking, “What is, `cruel, inhuman or degrading treatment.’ ‘’ How can the United States be bound by such an uncertain standard?
The United States Senate debated this question before ratifying the International Covenant on Civil and Political Rights and the Torture Convention. In response to this concern, we filed reservations to both of these agreements. A reservation is a statement filed by the Senate that clarifies our obligations under international agreements.
These reservations state that the United States is bound to prevent “cruel, inhuman or degrading treatment'’ only to the extent that that phrase means the cruel, unusual and inhumane treatment or punishment prohibited by the U.S. Constitution. In other words, “cruel, inhuman or degrading treatment'’ is defined by the U.S. Constitution, and the United States is only prohibited from engaging in conduct that is already unconstitutional.
This provides certainty and clarity. In 1990, the Senate Foreign Relations Committee held a hearing on the Torture Convention and an official from the first Bush administration explained the reservation:
We have proposed this reservation because the terms “cruel, inhuman or degrading treatment or punishment'’ used in this Convention are vague and are not evolved concepts under international law. ….. On the other hand, the concept of cruel and unusual punishment under the United States Constitution is well developed, having evolved through court decisions over a period of 200 years.
The current administration has confirmed that it stands by this reservation. Last year, Defense Department General Counsel William Haynes said:
“[C]ruel, inhuman or degrading treatment or punishment'’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. United States policy is to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with this commitment.
Aside from our legal obligations, there are also important practical reasons for standing by our commitment not to engage in torture or other cruel treatment.
Torture is an ineffective interrogation tactic because it produces unreliable information. People who are being tortured will often lie to their torturer in order to stop the pain.
Resorting to torture and ill treatment of detainees would make us less secure, not more. It would create anti-American sentiment at a time when we need the support and assistance of other countries in the war on terrorism.
Finally, and most importantly, if we were to engage in torture or ill treatment of detainees, we would increase the risk of subjecting members of the Armed Forces to torture if they are captured by our enemies.
The U.S. Army fully recognizes these practical downsides. The Army Field Manual on Intelligence Interrogation states:
Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear. Revelation of use of torture by U.S. personnel will bring discredit upon the U.S. and its armed forces while undermining domestic and international support for the war effort. It may also place U.S. and allied personnel in enemy hands at a greater risk of abuse by their captors.
As the great American patriot Thomas Paine said: “He that would make his own liberty secure must guard even his enemy from oppression.'’
Sadly, the “third degree,'’ which was condemned by the Wickersham Commission in 1931 and in subsequent Supreme Court decisions, has reemerged in modern times with a new name: “stress and duress.'’ “Stress and duress'’ tactics, which are also known as “torture lite,'’ include extended food, sleep, sensory, or water deprivation, exposure to extreme heat or cold, and “position abuse,'’ which involves forcing detainees to assume positions designed to cause pain or humiliation. “Stress and duress'’ tactics clearly constitute torture or cruel, inhuman, or degrading treatment.
As the Supreme Court explained in Blackburn v. Alabama, a 1960 case:
[C]oercion can be mental as well as physical ….. the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstration were needed, that the efficiency of the rack and the thumbscrew can be matched, given the proper subject, by more sophisticated modes of “persuasion.'’
Let’s take one example: sleep deprivation. In Ashcraft v. Tennessee, a 1944 case, the Supreme Court held that a confession obtained by depriving a suspect of sleep and continuously questioning him for 36 hours was involuntarily coerced. For the majority, Justice Hugo Black wrote:
It has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired [quoting the Wickersham Commission]. ….. We think a situation such as that here shown by uncontradicted evidence is so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear.
As explained in a recent New York Times article by Adam Hochschild, sleep deprivation was widely used in the Middle Ages on suspected witches – it was called tormentum insomniae. Stalin’s secret police subjected prisoners to the “conveyer belt,'’ continuous questioning by numerous interrogators until the prisoner signed a confession. Former Israeli Prime Minister Menachem Begin wrote about his experience with sleep deprivation in a Soviet prison in the 1940s:
In the head of the interrogated prisoner a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep, to sleep just a little. ….. Anyone who has experienced this desire knows that not even hunger or thirst are comparable with it. ….. I came across prisoners who signed what they were told to sign, only to get what the interrogator promised them ….. uninterrupted sleep!
Another example is “position abuse.'’ In 2002, in a case called Hope v. Pelzer, the Supreme Court addressed this issue. Hope, a prisoner, was handcuffed to a “hitching post'’ for seven hours in the sun and not allowed to use the bathroom. The Court held that this violated the 8th Amendment prohibition on cruel and unusual punishment. The Court said:
The obvious cruelty inherent in this practice should have provided [the prison guards] with some notice that their alleged conduct violated Hope’s constitutional protection against cruel and unusual punishment. Hope was treated in a way antithetical to human dignity–he was hitched to a post for an extended period of time in a position that was painful, and under circumstances that were both degrading and dangerous.
In the 1930s, Stalin’s secret police forced dissidents to stand for prolonged periods to coerce confessions for show trials. In 1956, experts commissioned by the CIA documented the effects of forced standing. They found that ankles and feet swell to twice their normal size within 24 hours, the heart rate increases, some people faint, and the kidneys eventually shut down.
For many years, the United States has characterized the use of “stress and duress'’ by other countries as “Torture and Other Cruel, Inhuman and Degrading Treatment.'’ The State Department’s “Country Reports on Human Rights Practices,'’ which are submitted to Congress every year, have condemned “beatings,'’ “threats to detainees or their family members,'’ “sleep deprivation,'’ “depriv[ation] of food and water,'’ “suspension for long periods in contorted positions,'’ “prolonged isolation,'’ “forced prolonged standing,'’ “tying of the hands and feet for extended periods of time,'’ “public humiliation,'’ “sexual humiliation,'’ and “female detainees ….. being forced to strip in front of male security officers.'’
The Army Field Manual on Intelligence Interrogation characterizes “stress and duress'’ as illegal physical and mental torture. The Manual states that “acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or an aid to interrogation'’ are “illegal.'’ It defines “infliction of pain through ….. bondage (other than legitimate use of restraints to prevent escape),'’ “forcing an individual to stand, sit, or kneel in abnormal positions for prolonged periods of time,'’ “food deprivation,'’ and “any form of beating,'’ as “physical torture'’ and defines “abnormal sleep deprivation'’ as “mental torture'’ and prohibits the use of these tactics under any circumstances.
The Army Field Manual provides very specific guidance about interrogation techniques that may approach the line between lawful and unlawful actions. Before using a questionable interrogation technique, an interrogator is directed to ask whether “If your contemplated actions were perpetrated by the enemy against U.S. [prisoners of war], you would believe such actions violate international or U.S. law. ….. If you answer yes ….. do not engage in the contemplated action.'’
This is the Army’s version of “the golden rule'’ – do unto others as you would have them do to you. It is an important reminder that the prohibition on torture and other cruel treatment protects American soldiers as much as it does the enemy. If enemy forces used stress and duress tactics on American soldiers, we would condemn them. We must hold ourselves to the same standard.
The United States is not alone in condemning “torture lite.'’ In Israel, a country that has grappled with terrorism for decades, the Supreme Court held that “stress and duress'’ techniques violate international law and are absolutely prohibited. As the Court explained:
These prohibitions are “absolute.'’ There are no exceptions to them and there is no room for balancing. Indeed violence directed at a suspect’s body or spirit does not constitute a reasonable investigation practice.
For all of these reasons, it is vitally important that the Congress affirm the United States’ commitment not to engage in torture or cruel, inhuman or degrading treatment.
Our commitment to principle, even during difficult times, has made America a special country. In the age of terrorism, we may be tempted by the notion that torture is justified. But to sacrifice this principle would grant the terrorists a valuable victory at our expense.
The Israeli Supreme Court has explained:
Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and allow it to overcome its difficulties.
The brutal slaying of Nicholas Berg reminded us that our enemies do not respect any rules in their relentless quest to kill Americans. But that is what distinguishes us from the terrorists we fight. There are some lines that we will not cross. Torture and cruel, inhuman or degrading treatment are inconsistent with the principles of liberty and the rule of law that underpin our democracy.
As President Reagan reminded us, our city upon a hill must stand firm. The eyes of the world are upon us.
I urge my colleagues to support the amendment.
It has been suggested to me by staff that perhaps I would offer the amendment this evening and then ask unanimous consent it be set aside while we work things out with Chairman Warner and other Senators who are interested in this issue.
If there is no objection, with the understanding that I will not call up the amendment this evening and will wait until a decision from the chairman and the ranking member as to my place in line, I offer the amendment and merely at this point ask it be reported by the clerk.