Posted on 06/01/2004 4:07:32 AM PDT by OXENinFLA
Mr. HATCH. Mr. President, what is the parliamentary situation?
The PRESIDING OFFICER. The DOD authorization.
Mr. HATCH. Thank you, Mr. President. That is what I want to talk about today, in part.
I rise today to respond to a few of the comments made yesterday by several of my Democratic colleagues. They have attacked the President and the administration for not being forthcoming in releasing documents notwithstanding the fact that the White House just declassified and released approximately 260 pages of legal memoranda that they sent to Senator Leahy and myself.
Let me take a moment to review the history.
On June 8, 2004, the Judiciary Committee held an oversight hearing of the Department of Justice. During the course of the hearing, Senator Kennedy asked the Attorney General for any legal memoranda that had been leaked to the public. Contrary to the suggestions of some, the Attorney General at no time refused to answer any question posed by Senators on the committee. He just gave answers with which my Democratic Colleagues did not agree.
Specifically, the Attorney General declined to agree--on the spot--to produce internal executive branch legal memoranda citing the President's right to have confidential advice from his staff. The Attorney General believed he did not have authority to release these documents. He believed that only the President could release them.
Instead, that same day after the hearing, the Department of Justice wrote a detailed letter responding to the inquiries of the ranking Democratic member of the Judiciary Committee on legal issues related to wartime decisions. The letter summarizes the Justice Department's legal opinion on whether various statutes and treaties apply on this war on terror, including the Uniform Code of Military Justice, the Special Maritime and Territorial Jurisdiction, the Military Extraterritorial Jurisdiction Act, the torture statute, Geneva Conventions, and the War Crimes Act.
These topics are precisely the subject matter of the documents at issue in the hearing. The Attorney General is not trying to cover up anything. There can be no question that the Justice Department wanted to be responsive to the committee but it was not in a position to release the documents without further consultation within the administration, including the White House and the Defense Department. That is only fair. It is prudent during time of war when some of the documents reveal potential interrogation techniques.
Yet they made the Attorney General of the United States a punching bag, which they have done consistently day in, day out in the Judiciary Committee on various markup days and hearings as well.
It is as though they literally hate the Attorney General of the United States. A man who I think is doing a bang-up, tremendous job. In fact, last week the Attorney General and the White House counsel both assured me that they would work with me to fairly resolve the matter. I represented that to the committee members and that wasn't enough. I was sarcastically challenged on that by more than one member of the committee on the Democratic side. I just calmly said: Give them a little time. They said they would work with us, and they will. And Mr. President, they did.
Last Tuesday, the Democratic members of the Judiciary Committee submitted a letter to the Attorney General, not just seeking the three documents mentioned at the hearing that Senator Kennedy made an issue of in the hearing, but seeking a total of 23 legal memoranda.
In addition to that, they provided a laundry list of document requests so broad that it could take a year to search the files of the entire Federal Government to comply with such a request. We would have to go all the way back to the Spanish-American War to give every document that has ever been brought forth, if you followed the kind of reasoning that they had.
Let me give you some examples. They asked for ``any other memoranda or documents from Alberto Gonzales, William Haynes, William Howard Taft, IV, or any senior administration, and in the possession of the Department of Justice, regarding the treatment or interrogation of individuals held in the custody of the U.S. Government.''
Any other senior administration official? That involves hundreds, if not thousands, of people. Come on.
For each of the 23 requested memos, the Democratic Senators wanted to know what has been redacted and why. They want an explanation for each classification status, and they want an indication of to whom each was circulated with copies of all cover letters and transmittal sheets.
When is it going to end? That kind of stuff is way out of bounds. It was an incredibly imprudent request. It was so broad that nobody in his or her right mind would try to fulfill it--and certainly not a White House that is responsible.
In addition to the 23 requested memos, this request includes 19 other broadly worded questions that require lengthy investigation and responses. They want all of this by June 30. That is in just 15 days, as if they were entitled to all of that.
This document request appears to be an old-fashioned fishing expedition of the lowest order. Any objective observer would have to conclude that this is not a legitimate exercise of our oversight function. They just want to use the typical go-to-the mattresses, scorched earth, litigation-like tactics to bury the Attorney General with a request so broad that no one could possibly comply with it.
Last Wednesday, before the ink was dry on the document request letter submitted last Tuesday, the ranking minority member circulated a proposed resolution to formally subpoena documents from the Department of Justice.
The Democrats did not even give the Attorney General the courtesy of a few days to respond to the original document request.
Yet, while the Democrats were engaging in this conspiracy, I was working with the White House and the Department of Justice. I told the entire committee of all my efforts last week. In fact, it is because of my efforts and the efforts of the President and the Department of Defense and the Justice Department that these documents have been declassified and disseminated so quickly.
Significantly, the three documents originally at issue in the Attorney General's hearing have been produced--that is, the actual documents that they called for in the hearing where you heard so much bad-mouthing of the Attorney General.
I got the cooperation of both the Attorney General and Alberto Gonzales himself last week.
I have put up with continual complaints by our friends on the other side of the aisle on the Judiciary Committee as to how poorly the committee is being run. I am sick and tired of it.
It is about time we got rid of some of these snotty, ridiculous, demeaning, and below-the-belt type of tactics and start respecting the President of the United States, the Attorney General, the Secretary of Defense, our young men and women overseas, and quit undermining what they are doing. We gave them the three documents they asked for and now there are all kinds of requests for more. We will never satisfy these types of voracious, problem-seeking people.
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Of course, it is not good enough for some of my colleagues to just give them the documents they asked for. The administration could have sent 1,000 memos and some of my Democratic colleagues would still not have been satisfied. Talk about transparency, their strategy is transparent. No matter what is sent, some will no doubt scream and complain it is not good enough, and they will get on this floor, with their holier-than-thou language, and say we must have transparency because that is the way we in the United States are.
If that is true, we do not need the CIA, we do not need the 15 intelligence agencies, and we do not need to protect our young men and women overseas anymore. We just have to have transparency. That is so ridiculous it is hard for me to believe how the American people can even give any kind of consideration to that kind of talk. Yet we are getting that kind of nonsense on the Senate floor almost constantly from people on the other side of the aisle.
This lack of good faith suggests this is more about trying to attack the Attorney General and the administration than about obtaining documents necessary for legitimate exercise of oversight. It is clear they want to subpoena to build a case to hold the Attorney General in contempt of Congress. Why they hate this former Member of Congress, this former Member of the Senate, I will never understand. There is not a more decent, honorable, religious, kind person I know than John Ashcroft, but he is being treated like dirt. This threatens to rapidly devolve into a political witch hunt of the worst order.
It is sad to see this blatant political posturing. It is particularly sad to see this uncalled-for partisan wrangling over an issue of national security in an election year. I don't think they are fooling anybody by their histrionics, and we sure had a lot of them over the last number of days--even the last couple of weeks. Really, you can go back in time, ever since President George Bush was elected.
The amendment offered yesterday by the Senator from Nevada and the amendment offered here is not limited to the three documents that were at issue in the hearing. Those documents have already been produced. It has not been limited to the 23 documents listed in the first part of their document request. It is a broadly worded subpoena that would encompass all documents and records on this subject since January 20, 2001, regardless of whether the documents were written by someone at the Department of Justice.
Talk about a fishing expedition, we are talking here about deep sea fishing--and the worst type. Do you know how many people work at the Department of Justice? It would take forever just to ask each of the 112,000 individuals at the Justice Department if they possessed any relevant documents. That is how ridiculous the request is.
Moreover, the Justice Department subpoena is poorly written, as I have been saying. It requests all documents and records ``describing, referring, or relating to the treatment or interrogation of prisoners of war, enemy combatants, and individuals held in the custody or physical control of the United States Government ..... in connection with the investigation of terrorist activity.'' And the subpoena is not limited to Justice Department records but also records possessed by the Department of Justice, written by other agencies, including the CIA or any military branch. This is simply too broad and they know it.
In addition, the subpoena requires records relating
to the treatment of prisoners. That broad term would appear to include all the interrogation or treatment records and all of the medical records of Zacarias Moussaoui and any other individual DOJ has prosecuted or is prosecuting on terror-related charges subsequent to 2001. This could include any interrogation, medical records shared between the Department of Defense and the FBI relating to detainees held at Guantanamo Bay or in Iraq, Afghanistan, or elsewhere. This information request can involve hundreds, if not thousands, of POW and other enemy combatants and hundreds of thousands of pages of records.
That is the type of base political activity that is going on in this body right now. It demeans, insults, and undermines our young men and women overseas fighting for us and risking their lives every day. I, for one, am sick and tired of it. I hope the American people wake up to this type of foolish conduct all in the interest of Presidential politics or just politics in general.
I don't see the practical utility of providing all of these records pertaining to individual detainees to the Judiciary Committee. Under the proposed subpoena, this information could conceivably include prosecution strategy memos. Can you imagine? Surveillance materials. Can you imagine? Information provided by and the identities of confidential informants. Can you imagine that? As well as FISA, that is, the Foreign Intelligence Surveillance Act materials. We normally do not get these types of documents in either Democrat or Republican administrations. And there is a good reason. Because this place is a sieve. You can't keep anything secret up here. It is easy to see why administrations do not like to give confidential, secret, or top secret or covert information, you name it, classified information, to people up here.
Their language is simply too broad. I am also troubled by the way in which the language appears to stray far away from general policy questions concerning the legal status of certain classes of detainees such as suspected al-Qaida members into matters affecting ongoing intelligence gathering and the prosecution of individual terrorist subjects.
Give me a break. Let's give our country a break. Let's give our President a break. Let's give our Attorney General a break. Above all, let's give our young men and women overseas a break from these types of partisan, political activities.
Let me say when the shoe was on the other foot, the Democrats have advocated just as I have. Four years ago, when President Clinton was in office, my colleague from Vermont, advocated the following practice:
Our standard practice should be to issue subpoenas only when attempts to obtain documents by other means have failed. At a minimum, we should at least request documents in writing before attempting to compel their production. ..... As part of this duty, the Committee should take every reasonable effort to see whether subpoenas are actually necessary before publicly requesting them.
That is the distinguished ranking member of the Judiciary Committee from Vermont speaking. Let's go through that one more time. When the shoe was on the other foot, and our side was asking for some documents, the quote was:
Our standard practice should be to issue subpoenas only when attempts to obtain documents by other means have failed.
That is a quote.
The fact is, they didn't even give the Attorney General time to even think about it before they were slapping a subpoena down in last week's markup, just a few days after. And then, four years ago my colleague from Vermont continued:
At a minimum, we should at least request documents in writing before attempting to compel their production.
I guess 2 days in writing is more than an ample request in their eyes now that they are in the minority and now that John Ashcroft is Attorney General.
As part of his duty, the committee should take every reasonable effort to see whether subpoenas are actually necessary before publicly requesting them.
No, they pursued a subpoena. We had to vote on it. It was a party-line vote. I guess they thought they could get at least one Republican to allow their nefarious scheme to go forward. They did not try to use every reasonable effort to see whether subpoenas were actually necessary. And I am sure the reason, they will say, is because John Ashcroft has not appeared before the committee in a long time.
My gosh, the man almost died this year. And I don't blame anybody for not wanting to come up in front of this bunch when all you do is get demeaned, with implications that you are a liar, that you are not cooperative, that you are not doing a good job, and many other implications, as well, that are derogatory in nature.
[Page: S7284] When are we going to start treating administration people with respect and dignity? Here the Democrats are not making any reasonable effort to attempt to obtain any of the documents by other means. They did not even give the Justice Department a day to respond to their written questions before drafting a subpoena. What kind of bullying tactic is that? We know what the Democrats are up to because the Senator from Vermont told us what the purpose of a subpoena was just 4 years ago.
He said:
[I]ssuing subpoenas may make for a good show of partisan force by the majority but certainly continues the erosion of civil discourse that has marked this Congress. Why is that true then but not now? Let me suggest that my Democratic colleagues are trying to take this one step further, as well. The minority is attempting to make a show of partisan force by distorting the facts for the American public.
Especially where the administration has indicated its willingness to be cooperative, issuing a subpoena would not merely continue the erosion of civil discourse; it would accelerate it by exponential proportions.
To suggest that the Senate issue a subpoena before the deadline to comply with a document request has even passed irreparably debilitates the credibility of my colleagues and shows they are merely grandstanding and not pursuing a legitimate oversight function, in spite of the holier-than-thou approach that some of them use.
Now, we have seen holier-than-thou approaches on both sides, I suppose, but I have never seen it worse than it is right now.
Yesterday, the President released not only the three documents at issue in the DOJ oversight hearing but 260 pages of documents, at my request--something I said I thought I could get them to do, after having talked with the Attorney General of the United States and Judge Gonzales. That was not good enough at the time. They were moaning and picking and groaning at me, saying they would never do it. But they did.
Thus far, the administration has released 13 lengthy memoranda relating to the treatment or interrogation of detainees, including relevant documents that were not specifically requested by the committee.
Come on. This administration has bent over backwards, and they will never satisfy these naysayers on the other side who want to make political points and who want to damage the Attorney General of the United States, the Secretary of Defense, and, above all, the President of the United States. I have to say, they are really good at playing this political game. They have a lot of help in our media in this country that seems to just go right along with it.
This may not be the end of the document production by the Departments of Justice and Defense, et cetera. The Department of Justice has until June 30, 2004, to respond to the Democrats' document request. It may well be that after June 30, 2004, there may be additional documents that we will need to see. But to seek such a broadly worded subpoena prematurely makes absolutely no sense. It flies in the face of reasonableness.
But let me say that it appears from what we know now--and I will expect the administration to correct me if I am wrong on this point--we have already gotten the most important documents. But I guess they just have not given the Democrats enough fodder with which they can attack the Attorney General and the President and others in this administration. After all, most of them were legal documents, legal opinions, where you can differ, and in most cases where they say, well, this is what the law is, but there is another side to it that could be argued, and the courts might find something to it. That is what you expect in a legal opinion. But they not only ask for the legal opinions; they ask for the preparatory documents that were leading up to the legal opinions.
I heard my colleague from Vermont mention, repeatedly: Like water, government policy flows downhill. I must say that I agree with him. Clearly, the most important document of those released by the White House is the one that the President of the United States signed on February 7, 2002. You do not get any higher than the President in this country, from a political standpoint.
In that memo, the President acknowledged that even though he was advised that he was not legally obligated to provide the protections of the Geneva Conventions to the Taliban or to the detainees at Guantanamo Bay, Cuba, that he intended to do so anyway.
But that is not enough for them. Here is the now unclassified White House memorandum for the Vice President, the Secretary of State, the Secretary of Defense, the Attorney General, the chief of staff to the President, the Director of Central Intelligence, the assistant to the President for National Security Affairs, the Chairman of the Joint Chiefs of Staff.
These are documents that are usually never given up by Presidents, by the way.
The subject: ``Humane Treatment of al Qaeda and Taliban Detainees.'' The part shown at the bottom on this page of the letter is in yellow. Let me read the paragraph just above that. Let me read No. 2:
Pursuant to my authority as Commander in Chief and Chief Executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the Attorney General in his letter of February 1, 2002, I hereby determine as follows:
Now, this is a finding, by the way:
a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.
I think that sounds pretty logical to a logical person. But look at this:
b. I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise this authority in this or future conflicts.
There is good reason why he reserved the right to exercise this authority--a very good reason--and that is, we are not fighting a conventional war; we are fighting a war in the most unconventional way, against people who do not wear uniforms, who do not represent a particular country, who are helter-skelter all over the world, who are vicious, brutal killers and murderers and terrorists, who have more than shown us how vicious they are. They do not deserve, in the eyes of many legal minds, the type of protections that Geneva would provide. But he is going to provide it to them anyway.
But that is not good enough over here. They have to find something, in some documents, in these hundreds of pages of documents, that can help to bring down this President.
Well, look, go to No. 3:
Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment.
Our Nation has been, and will continue to be, a strong supporter of Geneva and its principles. As a matter of policy, the U.S. Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
I do not know how you say it much more clearly than that. But you have read all the newspapers condemning the President. Yet the President is following Geneva. But he did. To hear the other side, you would think that he did not.
Look at No. 5:
I hereby reaffirm the order previously issued by the Secretary of Defense--
``[P]reviously issued by the Secretary of Defense''--
to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
I do not know what my colleagues need further, but that is what the President signed. My gosh, there is the President's signature right at the bottom of this letter.
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I hereby direct the Secretary of State to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.
My gosh, what is this all about? I will tell you what it is all about. It is about politics, pure and simple. They cannot win fairly, so they do it by distorting what is going on.
If they could win by distorting, that would be great, hunky-dory for them, I suppose. Well, it is not for me.
Paragraph 2b:
I accept the legal conclusion of the Attorney General .....
This is the fellow they are maligning all the time. This awful Attorney General, John Ashcroft. But he says:
I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.
He determines that the provisions of the Geneva will apply.
Of course, our values as a Nation, values that we share with the other nations in the world, call for us to treat detainees humanely .....
The fact is some of our knuckleheads--darn few of them--have treated detainees inhumanely. You would think the President himself went over there and did those awful things, or that Donald Rumsfeld, who has done a fantastic job in helping to change the whole military structure in many ways in this country for the better, had gone over there and done this, or General Abizaid.
That letter blows away these types of phony arguments.
After hundreds of pages of analysis, after months of research and writing, the most severe punishment the Secretary of Defense authorized is the ``use of mild, noninjurious physical contact such as grabbing, poking in the chest with the finger and light pushing.''
I could tell you, having studied it, there is a whole panoply of acceptable Geneva interrogation techniques. I can tell you not all of them were used. The top level of very stressful ones were not authorized to be used.
Everything I have seen says that. Why this body would want to issue a subpoena that, one, failed in committee--they couldn't get it through committee because everybody there recognized it was a political exercise, brought very prematurely, without giving the administration a chance to comply, in disregard of the committee chairman's, my, offer to bring about a release of documents, and with a release of documents that is, by any measure, impressive--and two, is not ripe since the deadline to respond to the document request has not even come and gone. Why they would do that is beyond me.
I said earlier today I am one of the few people who has gone to and gone completely through Guantanamo. I can only speak for the time I was at Guantanamo and that was a few weeks ago. But I went and witnessed their interrogation techniques. I saw two interrogations that were not staged for me--one with a very uncooperative al-Qaida member they would occasionally get something from and another with another one who has been very cooperative because of the techniques that have been used, that have been fair and reasonable, within the Geneva Conventions rules and techniques. I saw how they handled the prisoners. I saw the incentive systems to get the detainees to try to cooperate.
I saw the assault record of some of these vicious detainees who I think some on the other side would like to coddle right to bed every night. Dozens of assaults made against our soldiers, including, since these are open wire cells, on a number of occasions throwing urine and feces all over the soldiers who have to walk up and down the halls.
I don't know about you, but if somebody did that to me, I wouldn't be very happy. If I recall correctly, there have only been three times where they have had to discipline soldiers because the rest of them stood and took it, even though that is one of the most offensive things that could be done to somebody, three times. One was acquitted, the other two suffered severe punishment.
In other words, we have punished our soldiers for getting mad because somebody threw feces and urine on them. I would be mad. I am for our soldiers. I wish--I am not going to second-guess the military courts, but I wish they had not been punished other than maybe reprimanded. There are some down there who are so vicious they would kill our soldiers if they had a chance. And they have done things like this repeatedly. Dozens and dozens of assaults on our young men and women down there.
What bothers me, almost more than anything else, is I have described one of the Presidential findings, and there are others that are being read on the sides of mountains by Zarqawi and by Osama bin Laden, top secret documents that have been given up because of these types of shenanigans. These types of things put our young men and women at risk. These political games are putting young men and women at risk. To disclose anything about interrogations puts our young men and women at risk. That does not mean we should not prosecute those who have violated the President's order of humane treatment. But interestingly enough, in the Abu Ghraib prison situation, the minute it became known these types of activities were going on, investigations started and prosecutions have resulted. But that is not good enough because there is a demand that they have to go right up to the top which means even the President, as if he were over there in Abu Ghraib himself, or Rumsfeld was over in Abu Ghraib or General Abizaid, they should be punished, or there should at least be some responsibility on their part for this aberration of conduct by so few in the Abu Ghraib prison.
Let me tell you, I am getting sick of it. I am getting sick of this partisan activity. I don't have much of a voice right now because I am so doggone sick of it. Frankly, it is beneath the dignity of the Senate. I think there might come a time for subpoenas, if there had been no cooperation, if there had been plenty of honorable time given to the administration to comply, if there had been no compliance, if there hadn't been any effort by the chairman to try and obtain these documents, if there had been no response by the White House counsel or the White House itself, or if there had been no desire on the part of the Attorney General to cooperate. They now have all the documents they asked for at that hearing. And now we get a request, a broad request for so many more that would tie up all of these important people to such a degree that I think it damages our young men and women not only in Iraq but Afghanistan as well.
Why? Why is it? Why do we hear these holier than thou rantings? Because we have to make sure this administration does its job because we don't trust them, I guess. At least that seems to be the tenor of the argument, and that this administration must be doing something wrong because it had legal memoranda and legal opinions that indicated maybe the Geneva Conventions don't apply in this unconventional war, with unconventional, murderous, and vicious terrorists.
Well, let me say, I am disappointed they ignore these types of documents. I am disappointed we get all these documents and they are not satisfactory. I am disappointed there is a call for transparency of all these things. I guess Osama bin Laden can read these things as well,
or even Zarqawi, and know everything we are thinking, everything we do. He ought to be able to cut off a lot of heads with the knowledge we are giving him.
The fact is, almost any time anything is released here, it shows up in the liberal media. It shows up to the disadvantage of our country, to the disadvantage of our young men and women over there. I don't think anybody on this side is saying we should not be transparent in the ways we should be transparent, but to use that transparent argument and push it to its ultimate extreme means we should not have 15 intelligence agencies where we have classified information to protect our country. If you push it to the extreme, that is what you are saying. I believe it has been pushed to exactly that extreme.
I believe the demands have been extreme. They are unconscionable in some ways--not all of them. That is why the documents are being given to them. It was important to meet the reasonable requests for those three documents. They have been given. I don't see anything wrong with that
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I also believe we ought to respect the need to keep some matters from transparency in the best interests of our young men and women. I have to say I know that not all of our servants act appropriately. Everybody makes mistakes. Certainly, the things that happened in Abu Ghraib and in Afghanistan should never have happened. They need to be investigated, and, where appropriate, prosecutions have to take place. Nobody should be spared who participated in those wrongful, illegal activities that fly in the face of what the President approved and what the Secretary of Defense approved. I stand with my colleagues on the other side with regard to that. There is no doubt in my mind about that.
But when it comes to just playing crass politics and demanding more and more so it can be released to the public so ``transparency'' can be had over documents that should not be released to the public, then I have to call it what it is. It is crass political activity that flies in the face of what is right. I think directly and indirectly it hurts our young men and women overseas.
I yield the floor.
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