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DRUDGE REPORT FLASH 2005®




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XXXXX DRUDGE REPORT XXXXX TUE APRIL 26, 2005 13:25:22 ET XXXXX

STATEMENT BY SENATOR EDWARD M. KENNEDY ON ANNIVERSARY OF ABU GHRAIB SCANDAL

The sad anniversary of the Abu Ghraib torture scandal is now upon us. It's an appropriate time to reflect on how well we've responded as a nation.

The images of cruelty, and perversion are still difficult to look at a year later. An Iraqi prisoner in a dark hood and cape, standing on a cardboard box with electrodes attached to his body. Naked men forced to simulate sex acts on each other. The corpse of a man who had been beaten to death, lying in ice, next to soldiers smiling and giving a "thumbs up" sign. A pool of blood from the wounds of a naked, defenseless prisoner attacked by a military dog.

These images are seared into our collective memory. The reports of widespread abuse by U.S. personnel were initially met with disbelief, then incomprehension. They stand in sharp contrast to the values America has always stood for-our belief in the dignity and worth of all people-our unequivocal stance against torture and abuse -- our commitment to the rule of law. The images horrified us and severely damaged our reputation in the Middle East and around the world.

On December 4, 2003, President Bush had proclaimed to the world that the capture of Saddam Hussein brought "further assurance that the torture chambers and the secret police are gone forever." The photos of Abu Ghraib made all too clear that torture continued in occupied Iraq.

Where are we a year later? Has this problem been resolved? Has the moral authority of the U.S. been restored? Have we recovered from what is perhaps the steepest and deepest fall from grace in our history?

Sadly, the answer is no, because at every opportunity, the Administration has tried to minimize the problem and avoid responsibility for it.

The tone was set at the very start. Senior-level military commanders knew about the problems much earlier. They knew about Abu Ghraib photos as early as January 2004. General Taguba submitted his scathing report on February 26th. Yet rather than deal with the problem honestly, Pentagon officials persuaded CBS News to delay its report while they developed a damage-control plan.

The plan included an effort to minimize the abuse as the work of "a few bad apples"-all conveniently lower-rank soldiers-in a desperate effort to emphasize the role of senior military officials in exposing the scandal and insulate the civilian leadership from responsibility.

It was clear from the start that further investigation of the abuses was needed. The American people deserved a thorough review of all detention and interrogation policies used by military and intelligence personnel abroad, and a full accounting of all officials responsible for the policies that allowed the abuses to take place.

What we got instead were nine incomplete and self-serving internal investigations by the Pentagon. None of the assigned investigators were given the authority to challenge the conduct of the civilian command. For example, the Schlesinger Panel's report found that abuses were "widespread" and that there was "both institutional and personal responsibility at higher levels," but Secretary Rumsfeld did not authorize the panel to address matters of personal accountability.

The assigned investigators were also denied the cooperation of the C.I.A., which had a central role in the torture scandal. General Fay found that C.I.A. practices led to "a loss of accountability, abuse" and "poisoned the atmosphere at Abu Ghraib." His efforts to fully uncover the agency's role, however, were stymied by their refusal to respond to his requests for information. Indeed, no investigation, Congressional or otherwise, has gotten full cooperation from the C.I.A.

With respect to matters under the Defense Department's control, the answers we've received have been inconsistent and incomplete.

In May 2004, General Sanchez categorically denied to the Senate Armed Services Committee that he had approved the use of sleep deprivation, excessive noise, and intimidation by guard dogs as interrogation techniques in Iraq. A memorandum uncovered last month by the ACLU, however, showed that he had in fact approved the use of these techniques.

Secretary Rumsfeld told the Committee that the military received its first indication of trouble at Abu Ghraib when a low-ranking soldier came forward in January 2004. Only later did we learn from press reports that throughout 2003, the Red Cross had provided the military with detailed reports about torture and other abuses at the prison and elsewhere in Iraq. The State Department and the Coalition Provision Authority also appealed to top military officials to stop the abuse during 2003.

The Church Report, released last month, rejected any connection between the official interrogation policies in Iraq and the abuses that occurred. The Fay Report, by contrast, blamed the abuses at Abu Ghraib on a number of "systemic problems" that included "inadequate interrogation doctrine and training" and "the lack of clear interrogation policy for the Iraq Campaign."

Other parts of the Church Report -- including those on the role of General Counsel William Haynes in adopting the radical legal reasoning of the Justice Department's Bybee Memorandum, over the vigorous objections of experienced JAG officers -- have been wrongly classified. In fact, the Defense Department has repeatedly abused its classification procedures to hide critical information from Congress and the public. Similarly, the Justice Department has gone to extremes to withhold from public scrutiny legal memos it considers too embarrassing to reveal.

Even Congress has been remiss in its responsibilities to oversee this scandal. As Senator Rockefeller, the vice-chairman of the Senate Select Committee on Intelligence said, "More disturbingly, the Senate Intelligence Committee - the Committee charged with overseeing intelligence programs and the only one with the jurisdiction to investigate all aspects of this issue - is sitting on the sidelines and effectively abdicating its oversight responsibility to media investigative reporters."

A year after Abu Ghraib, new revelations about abuse committed by U.S. personnel are still being reported frequently. The military has confirmed 28 acts of homicide committed against detainees in U.S. custody in Iraq and Afghanistan since 2002. Only one of these deaths took place at Abu Ghraib.

The Red Cross has documented scores of abuses at U.S. facilities across Iraq and Afghanistan and at the naval base at Guantanamo.

F.B.I. agents have reported "torture techniques" at Guantanamo, including techniques that senior Pentagon officials had specifically denied were being used.

Top officials in the Administration have endorsed interrogation methods that we've condemned in other countries, including binding prisoners in painful "stress" positions, threatening them with dogs, extended sleep deprivation, and simulated drownings.

The Administration has also increased the practice of "rendering" detainees to countries like Syria, Egypt, and Jordan -- countries that the State Department condemned in its most recent human rights reports because of their use of torture. The practice of "rendition" -- described by a former C.I.A. official as "finding someone else to do your dirty work" -- is a clear violation of our treaty obligations under the Convention Against Torture.

We know that many of these harsh techniques are no more effective at obtaining reliable information than traditional law-enforcement techniques. After considerable debate with the FBI, the military acknowledged that its methods were no more successful during interrogations at Guantanamo Bay than the FBI's methods. General Miller, the former commander at Guantanamo, testified that the Army Field Manual provided sufficient tools for intelligence gathering.

As Ambassador Negroponte, our nation's new intelligence czar said, "Not only is torture illegal and reprehensible, but even if it were not so, I don't think it's an effective way of producing useful information." Stripped to its essence, torturing prisoners is morally wrong and unproductive.

Yet, political leaders made a deliberate decision to throw out the well-established legal framework that has long made America the gold standard for human rights throughout the world. The Administration left our soldiers, case officers, and intelligence agents in a fog of ambiguity. They were told to "take the gloves off" without knowing what the limits were.

In a series of secret memos and correspondence -- some of which have still not been provided to Congress-top-level Administration lawyers engaged in a wholesale rewriting of human rights law.

They redefined torture so narrowly as to be meaningless.

They adopted a concept of Presidential power so expansive that it denied the authority of Congress to pass laws prohibiting acts of torture -- even in the Uniform Code of Military Justice.

They approved long-discredited defenses to torture like "necessity," "self-defense," and "superior orders" -- defenses that have been rejected since the Nuremberg Trials following World War II.

They argued that contrary to longstanding precedent, international law does not bind any U.S. official.

They reinterpreted our treaty obligations in order to authorize the C.I.A. to engage in cruel, inhuman and degrading treatment, to remove "protected persons" from Iraq for interrogation, and to "render" persons to countries known to practice torture.

In rewriting our human rights laws, the Administration consistently overruled the objections of experienced military personnel and diplomats. As Secretary of State Colin Powell warned the White House, "It will reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops." Senior Defense officials were warned that changing the rules could lead to so-called "force drift," in which, without clearer guidance, the level of force applied to an uncooperative detainee might well result in torture.

When leaders didn't like what they heard, they cut off the criticism. When Secretary Powell raised concerns about the decision not to apply the Geneva Conventions to the conflict in Afghanistan, White House Counsel Gonzales cut him out of the process. When lawyers objected to the radical views in the Bybee Torture Memorandum, Defense Department General Counsel Haynes cut them out of the process and made the memo official policy for the entire military.

What happened here was not a reasoned response to 9/11 -- an objective reassessment of our rules and policies to account for the rise in terrorism. Instead, the leaders used 9/11 to undermine any constraints on the power of the President, and the country has been paying a high price for their arrogance ever since.

Dozens of Administration memoranda involving post-9/11 detention and interrogation have come to light in the past year. Yet in not one of these memos is there an appreciation of how well the existing rules served the nation in past conflicts. Not one of them explains why the Army's interrogation manual, which discusses dozens of effective techniques that comply with domestic and international law, no longer serves America's interests. Not one of them comments on how compliance with the Geneva Conventions protects U.S. soldiers.

Clearly, the civilian lawyers in the Defense Department, the Justice Department, and the White House Counsel's office have been on an ideological mission. Their goal was not to reassess the current rules on detention and interrogation in light of the 9/11 attacks; their goal was to destroy them, and to a large extent, they succeeded.

The military was set adrift from its longstanding rules and traditions. The Bybee Torture Memorandum was eventually repudiated by the Justice Department, but the Pentagon's Working Group Report of April 2003, which incorporated the Bybee Memorandum nearly verbatim, has still not been explicitly superceded, and no new guidance has gone to the field.

Our men and women in the military are still not clear whether and to what extent they should consider themselves bound by the Convention Against Torture, the federal law prohibiting torture, or even the provisions of the Uniform Code of Military Justice that prohibit torture and cruel treatment. The basic validity of the military's "golden rule" -- treat captured enemy forces as we would want our own prisoners of war to be treated -- is in doubt.

The President has directed the military to treat detainees "humanely," but this directive has not provided adequate guidance to our troops. General Counsel Haynes himself advised Secretary Rumsfeld that simulated drowning, forced nudity, the use of dogs to create stress, threats to kill a detainee's family, and other extreme tactics all qualified as "humane." When the Pentagon's top civilian lawyer shows so little respect for human dignity, how can we expect more from our soldiers serving in the field?

As for the C.I.A., it was conspicuously excluded from the President's directive on humane treatment. More recently, we've learned that the Administration does not believe that the prohibition against cruel, inhuman and degrading treatment applies to foreigners held by our government agencies abroad. The C.I.A. concealed detainees from the Army and the Red Cross. It continues to send dozens of detainees to countries known to practice torture. It says it's conducting its own investigation into the abuses, but it refuses to provide a timetable or any preliminary findings. No agency should be above the law. The C.I.A. must answer for its activities.

Accountability for the torture scandal continues to be lacking.

We know about the prosecutions of the low-level, "bad apple" soldiers involved in the abuse at Abu Ghraib. But prosecutions have been declined for other soldiers, including 17 implicated in the deaths of three prisoners in Iraq and Afghanistan. Not a single C.I.A. official has been charged, although one private contractor is awaiting trial for the killing of a detainee in Afghanistan.

Even more disturbing, no action -- criminal, administrative, or otherwise -- has been taken against the high civilian officials responsible for the authorization of torture and mistreatment by U.S. officials in Iraq, Afghanistan, Guantanamo, and elsewhere. We know about the actions that have been taken against Charles Graner and Lynndie England. But what about William Haynes, Alberto Gonzales, Jay Bybee, John Yoo, David Addington, Douglas Feith?

These officials were warned of the consequences of undoing the rules before they changed them. They were informed of the objections to use of these harsh techniques. The FBI, the Naval Criminal Investigative Service, and the British all refused to participate in interrogations because they had such grave concerns about the brutal methods. Finally, one brave soldier, Joseph Darby, acknowledged that what was happening was wrong.

Far from being held accountable, some of these officials have been promoted. Bybee, who signed the notorious Justice Department memorandum redefining torture, was confirmed to a lifetime judgeship on a federal appellate court. Haynes, the General Counsel who made the Bybee Memorandum official policy for the military, has been re-nominated for another appellate judgeship. Gonzales now serves as the nation's Attorney General.

Last weekend, the Army's Inspector General revealed he had exonerated almost all of its top officers of any responsibility for abuse of detainees at Abu Ghraib, even though one of them, Lieutenant General Sanchez, explicitly approved the use of severe interrogation practices, and even through a review by former Secretary of Defense James Schlesinger found that General Sanchez and his deputy "failed to ensure proper staff oversight of" the operations at Abu Ghraib.

What signal does this pattern of prosecutions for low-ranking soldiers, exonerations for generals, and promotion for civilians send to our men and women in the armed services, and to our veterans?

The torture scandal is not going away on its own. Our nation will continue to be harmed by the reports of abuse of detainees in U.S. custody, the failure by top officials to take action, and the abandonment of our basic rules and traditions on human rights.

The scandal directly endangers U.S. soldiers and U.S. civilians abroad. We no longer demand that those we capture in the war on terrorism be treated as we treat prisoners of other wars. What will we say to a country that justifies its torture of a U.S. soldier by citing our support for such treatment? How we can we hold other nations accountable for their own human rights violations, when we continue to hold prisoners for years, without charging them or convicting them of anything?

The nation's standing as a leader on human rights and respect for the rule of law has been severely undermined.

We cannot simply answer, as some have done, that the behavior is acceptable because terrorists do worse. By lowering our standards, we have reduced our moral authority in the world. The torture scandal has clearly set back our effort in the war on terrorism. It is fueling the current insurgency in Iraq. Even our closest allies, such as Great Britain, have raised objections to our treatment and rendition of detainees.

Al Qaeda is still the gravest threat we face. The widespread perception that the U.S. condones torture only strengthens the ability of Al Qaeda and others to create a backlash of hatred against America around the world. If we do not act to locate official responsibility for Abu Ghraib, we will condone a new status quo in which our policy toward torture is technically one of zero tolerance, while de facto our officials tolerate and commit torture daily.

Many of us were struck by the rhetoric in President Bush's Inaugural Address. "From the day of our founding," he said, "we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth." Many of us would like to work with the President to develop a foreign policy that advances these important values. But rarely has the gulf between a President's rhetoric and his Administration's actions been so wide. It is simply not possible to reconcile his claim that "America's belief in human dignity will guide our policies" with the barbaric acts that have been committed in America's name.

We must not allow inaction to undermine two bedrock principles of human rights law that we worked hard to establish at Nuremberg: that higher officials cannot escape command responsibility and lower officials cannot excuse their actions by claiming that they were "just following orders."

It is time to come to terms with the continuing costs of the torture scandal, and respond effectively. We need to fully restore the nation's credibility and moral standing, so that we can more effectively pursue the nation's interests in the future.

First, we must acknowledge that the rule of law is not a luxury to be abandoned in time of war, or bent or circumvented at the whim and convenience of the White House. It is a fundamental safeguard in our democracy and a continuing source of our country's strength throughout the world.

Sadly, a recent National Defense Strategy policy contained this remarkable statement: "Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism." Who could have imagined that our government would ever describe "judicial processes" as a challenge to our national security-much less mention it in the same breath as terrorism? Such statements do not reflect traditional conservative values, and they are clearly inconsistent with the ideals that America has always stood for here and around the world.

Second, we must acknowledge and apply the broad consensus that exists against torture and inhumane treatment.

Never before has torture been a Republican versus Democrat issue. Instead, it's always been an issue of broad consensus and ideals, reflecting the fundamental values of the nation, and the ideals of the world.

President Reagan signed the Convention Against Torture in 1988. The first President Bush and President Clinton supported its ratification. The Senate Foreign Relations Committee, led by Senator Jesse Helms voted 10-0 in 1994 to recommend that the full Senate approve it. The Clinton Administration adopted a "zero tolerance" policy on torture. Torture became something that Americans of all political affiliations agreed never to do.

9/11 didn't nullify this consensus. We did not resolve as a nation to set aside our values and the Constitution after those vicious attacks. We did not decide as a nation to stoop to the level of the terrorists, and those who did deserve to be held fully accountable

Americans continue to be united in the belief that an essential part of winning the war on terrorism and protecting the country for the future is safeguarding the ideals and values that America stands for at home and around the world.

That includes the belief that torture is still beyond the pale. The vast majority of Americans strongly reject the cruel interrogation tactics used in Iraq, Afghanistan, and Guantanamo -- including the use of painful stress positions, sexual humiliation, threatening prisoners with dogs, and shipping detainees to countries that practice torture. The American people hold fast to our most fundamental values. It is time for all branches of the government to uphold those values as well. It is clear beyond a doubt that we cannot trust this Republican Congress or this Republican Administration to conduct the full investigation that should have been conducted long before now. We've had enough whitewashes by the Administration and Congressional Committees.

Finally, to implement these values, we need a full and independent investigation of our current detention, rendition, and interrogation policies, including an honest assessment of what went wrong in Iraq, Afghanistan, and Guantanamo.

The investigation will require genuine candor and cooperation by all officials and agencies in the Bush Administration, full accountability, a clear statement of respect for human rights, and a plan for protecting those rights throughout the government. Only a truly independent and thorough investigation can restore America's reputation and put us back on the right path to the future.

The challenges we face in the post-9/11 world are obvious, and the stakes are very high. Working together, we have met such challenges before, and I'm confident we can do so again. I urge all of my colleagues, on both sides of the aisle, to join together to protect the rule of law, protect our soldiers serving abroad, and restore America's standing in the world.

END

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