Introduction
The Senate is currently debating a bill on how we treat detainees in our custody, and, more broadly, on how we treat the principles on which our nation was founded.
The implications are far reaching for our national security interests abroad; the rights of Americans at home, our reputation in the world; and the safety of our troops.
The threat posed by the evil and nihilistic movement that has spawned terrorist networks is real and gravely serious. We must do all we can to defeat the enemy with all the tools in our arsenal and every resource at our disposal. All of us are dedicated to defeating this enemy.
The challenge before us on this bill, in the final days of session before the November election, is to rise above partisanship and find a solution that serves our national security interests. I fear that there are those who place a strategy for winning elections ahead of a smart strategy for winning the war on terrorism.
Democrats and Republicans alike believe that terrorists must be caught captured and sentenced. I believe that there can be no mercy for those who perpetrated 9/11 and other crimes against humanity. But in the process of accomplishing that I believe we must hold on to our values and set an example we can point to with pride, not shame. Those captured are going nowhere – they are in jail now – so we should follow the duty given us by the Supreme Court and carefully craft the right piece of legislation to try them. The president acted without authority and it is our duty now to be careful in handing this president just the right amount of authority to get the job done and no more.
Washington's Choice
During the Revolutionary War, between the signing of the Declaration of Independence, which set our founding ideals to paper, and the writing of our Constitution, which fortified those ideals under the rule of law, our values – our beliefs as Americans – were already being tested.
We were at war and victory was hardly assured, in fact the situation was closer to the opposite. New York City and Long Island had been captured. General George Washington and the continental army retreated across New Jersey to Pennsylvania, suffering tremendous casualties and a body blow to the cause of American Independence.
It was at this time, among these soldiers at this moment of defeat and despair, that Thomas Paine would write, "These are the times that try men's souls." Soon afterward, Washington led his soldiers across the Delaware River and onto victory in the Battle of Trenton. There he captured nearly 1000 foreign mercenaries and he faced a crucial choice.
How would General Washington treat these men? The British had already committed atrocities against Americans, including torture. As David Hackett Fischer describes in his Pulitzer Prize winning book, "Washington's Crossing," thousands of American prisoners of war were "treated with extreme cruelty by British captors." There are accounts of injured soldiers who surrendered being murdered instead of quartered. Countless Americans dying in prison hulks in New York harbor. Starvation and other acts of inhumanity perpetrated against Americans confined to churches in New York City.
The light of our ideals shone dimly in those early dark days, years from an end to the conflict, years before our improbable triumph and the birth of our democracy. General Washington wasn't that far from where the Continental Congress had met and signed the Declaration of Independence. But it's easy to imagine how far that must have seemed. General Washington announced a decision unique in human history, sending the following order for handling prisoners: "Treat them with humanity, and let them have no reason to complain of our Copying the brutal example of the British Army in their Treatment of our unfortunate brethren."
Therefore, George Washington, our commander-in-chief before he was our President, laid down the indelible marker of our nation's values even as we were struggling as a nation – and his courageous act reminds us that America was born out of faith in certain basic principles. In fact, it is these principles that made and still make our country exceptional and allow us to serve as an example. We are not bound together as a nation by bloodlines. We are not bound by ancient history; our nation is a new nation. Above all, we are bound by our values.
George Washington understood that how you treat enemy combatants could reverberate around the world. We must convict and punish the guilty in a way that reinforces their guilt before the world and does not undermine our constitutional values.
The Senate's Choice
Now these values – George Washington's values, the values of our founding – are at stake. We are debating far-reaching legislation that would fundamentally alter our nation's conduct in the world and the rights of Americans here at home. And we are debating it too hastily in a debate too steeped in electoral politics.
The Senate, under the authority of the Republican Majority and with the blessing and encouragement of the Bush-Cheney Administration, is doing a great disservice to our history, our principles, our citizens, and our soldiers.
The deliberative process is being broken under the pressure of partisanship and the policy that results is a travesty.
Process
Fellow Senators, the process for drafting this legislation to correct the administration's missteps has not befitted the "world's greatest deliberative body." Legitimate, serious concerns raised by our senior military and intelligence community have been marginalized, difficult issues glossed over, and debates we should have had have been shut off in order to pass a misconceived bill before Senators return home to campaign for re-election.
For the safety of our soldiers and the reputation of our nation, it is far more important to take the time to do the job right than to do it quickly and badly. There is no reason other than partisanship for not continuing deliberation to find a solution that works to achieve a true consensus based on American values.
In the last several days, the bill has undergone countless changes – all for the worse – and differs significantly from the compromise brokered between the Bush Administration and a few Senate Republicans last week.
We cannot have a serious debate over a bill that has been hastily written with little opportunity for serious review. To vote on a proposal that evolved by the hour, on an issue that is so important, is an insult to the American people, to the Senate, to our troops, and to our nation.
Politics
Fellow Senators, we all know we are holding this hugely important debate in the backdrop of November's elections. There are some in this body more focused on holding on to their jobs than doing their jobs right. Some in this chamber plan to use our honest and serious concerns for protecting our country and our troops as a political wedge issue to divide us for electoral gain.
How can we in the Senate find a proper answer and reach a consensus when any matter that does not serve the Majority's partisan advantage is mocked as weakness, and any true concern for our troops and values dismissed demagogically as coddling the enemy?
Substance
This broken process and its blatant politics will cost our nation dearly. It allows a discredited policy ruled by the Supreme Court to be unconstitutional to largely continue and to be made worse. This spectacle ill-serves our national security interests.
The rule of law cannot be compromised. We must stand for the rule of law before the world, especially when we are under stress and under threat. We must show that we uphold our most profound values.
We need a set of rules that will stand up to judicial scrutiny. We in this chamber know that a hastily written bill driven by partisanship will not withstand the scrutiny of judicial oversight.
We need a set of rules that will protect our values, protect our security, and protect our troops. We need a set of rules that recognizes how serious and dangerous the threat is, and enhances, not undermines, our chances to deter and defeat our enemies.
Our Supreme Court in its Hamdan v. Rumsfeld decision ruled that the Bush Administration's previous military commission system had failed to follow the Constitution and the law in its treatment of detainees.
As the Supreme Court noted, the Bush Administration has been operating under a system that undermines our nation's commitment to the rule of law.
The question before us is whether this Congress will follow the decision of the Supreme Court and create a better system that withstands judicial examination – or attempt to confound that decision, a strategy destined to fail again.
The bill before us allows the admission into evidence of statements derived through cruel, inhuman and degrading interrogation. That sets a dangerous precedent that will endanger our own men and women in uniform overseas. Will our enemies be less likely to surrender? Will informants be less likely to come forward? Will our soldiers be more likely to face torture if captured? Will the information we obtain be less reliable? These are the questions we should be asking. And based on what we know about warfare from listening to those who have fought for our country, the answers do not support this bill. As Lieutenant John F. Kimmons, the Army's Deputy Chief of Staff for Intelligence said, "No good intelligence is going to come from abusive interrogation practices."
Mr. President, I would like to submit for the Record letters and statements from former military leaders – including Generals Colin Powell and John Vessey, 9/11 Families, the religious community, retired judges, legal scholars and law professors, all of whom have registered serious concerns with this bill and its provisions.
The bill also makes significant changes to the War Crimes Act. As it is now written, the War Crimes Act makes it a federal crime for any soldier or national of the U.S. to violate, among other things, Common Article 3 of the Geneva Conventions in an armed conflict not of an international character. The administration has voiced concern that Common Article – which prohibits "cruel treatment or torture," "outrages against human dignity," and "humiliating and degrading treatment" – sets out an intolerably vague standard on which to base criminal liability, and may expose CIA agents to jail sentences for rough interrogation tactics used in questioning detainees.
But the current bill's changes to the War Crimes Act haven't done much to clarify the rules for our interrogators. What we are doing with this bill is passing on an opportunity to clearly state what it is we stand for and what we will not permit.
This bill undermines the Geneva Conventions by allowing the President to issue Executive Orders to redefine what permissible interrogation techniques happen to be. Have we fallen so low as to debate how much torture we are willing to stomach? By allowing this Administration to further stretch the definition of what is and is not torture, we lower our moral standards to those whom we despise, undermine the values of our flag wherever it flies, put our troops in danger, and jeopardize our moral strength in a conflict that cannot be won simply with military might.
Once again, there are those who are willing to stay a course that is not working, giving the Bush-Cheney administration a blank check – a blank check to torture, to create secret courts using secret evidence, to detain people, including Americans, to be free of judicial oversight and accountability, to put our troops in greater danger.
The bill has several other flaws as well.
This bill would not only deny detainees habeas corpus rights – a process that would allow them to challenge the very validity of their confinement – it would also deny these rights to lawful immigrants living in the United States. If enacted, this law would give license to this Administration to pick people up off the streets of the United States and hold them indefinitely without charges and without legal recourse.
Americans believe strongly that defendants, no matter who they are, should be able to hear the evidence against them. The bill we are considering does away with this right, instead providing the accused with only the right to respond to the evidence admitted against him. How can someone respond to evidence they have not seen?
Conclusion
At the very least, this is worth a debate on the merits, not on the politics. This is worth putting aside our differences – it's too important.
Our values are central. Our national security interests in the world are vital. And nothing should be of greater concern to those of us in this chamber than the young men and women who are, right now, wearing our nation's uniform, serving in dangerous territory.
After all, our standing, our morality, our beliefs are tested in this chamber. And their impact and their consequences are tested under fire; they are tested when American lives are on the line; they are tested when our strength and ideals are questioned by our friends and by our enemies.
When our soldiers face an enemy, when our soldiers are in danger, that is when our decisions in this chamber will be felt. Will that enemy surrender? Or will he continue to fight, with fear for how he might be treated and with hate directed not at us, but at the patriot wearing our uniform whose life is on the line?
When our nation seeks to lead the world in service to our interests and our values, will we still be able to lead by example?
Our values, our history, our interests, and our military and intelligence experts all point to one answer. Vladimir Bukovsky, who spent nearly 12 years in Soviet prisons, labor camps, and psychiatric hospitals for nonviolent human rights activities had this to say. "If Vice President Cheney is right, that some 'cruel, inhumane, or degrading' treatment of captives is a necessary tool for winning the war on terrorism, then the war is lost already."
Let's pass a bill that's been honestly and openly debated, not hastily cobbled together.
Let's pass a bill that unites us, not divides us.
Let's pass a bill that strengthens our moral standing in the world, that declares clearly that we will not retreat from our values before the terrorists. We will not give up who we are. We will not be shaken by fear and intimidation. We will not give one inch to the evil and nihilistic extremists who have set their sights on our way of life.
I saw with confidence and without fear that we are the United States of America, and that we stand now and forever for our enduring values to people around the world, to our friends, to our enemies, to anyone and everyone.
Before George Washington crossed the Delaware, before he could achieve that long-needed victory, before the tide would turn, before he ordered that prisoners be treated humanely, he ordered that his soldiers read Thomas Paine's writing. He ordered that they read about the ideals for which they would fight, the principles at stake, the importance of this American project.
Now we find ourselves at a moment when we feel threatened, when the world seems to have grown more dangerous, when our nation needs to ready itself for a long and difficult struggle against a new and dangerous enemy that means us great harm.
Just as Washington faced a hard choice, so do we. It's up to us to decide how we wage this struggle and not up to the fear fostered by terrorists. We decide.
This is a moment where we need to remind ourselves of the confidence, fearlessness, and bravery of George Washington – then we will know that we cannot, we must not, subvert our ideals – we can and must use them to win.
