Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. What is the parliamentary situation? Will the Senator yield? Will the Senator yield for a brief question?

Mr. KENNEDY. As I understand the rules, if you get a standing division and the Chair calls it and you are the author of the amendment and you are not satisfied, you can still ask for the yeas and nays, am I not correct?

Mr. KENNEDY. So you can say you want a voice vote and if you are not satisfied, you can ask for the yeas and nays. Can you get a standing division if you are not satisfied? You can still get the yeas and nays, am I not correct?

Mr. KENNEDY. Parliamentary inquiry: The Senator is not withdrawing his amendment permanently. Are you withdrawing your amendment permanently?

Mr. KENNEDY. I thank the Senator.

Mr. KENNEDY

Mr. KENNEDY. I support the extension of the Defense Department's program ensuring that its Federal contracting process in no way supports or subsidizes the discrimination that has long been a problem in the contracting business. The extension of the program through September 2009 is needed to help achieve that goal. The Senate Armed Services Committee has learned a great deal about the effects of discrimination in denying contracting opportunities for minority-owned businesses. The ugly reality is that contracting has long been dominated by ``old-boy'' networks that make it very difficult for African Americans, Latinos, Asians, and Native Americans to participate fairly in these opportunities, or even obtain information about them. Years of congressional hearings have shown that minorities historically have been excluded from both public and private construction contracts in general, and from Federal defense contracts in particular. Since its adoption, the Defense Department program, called the 1207 Program, has helped level the playing field for minority contractors. But there is still more to do, as the additional information we have received since the program was last reauthorized makes clear. Ever since the program was first adopted in 1986, racial and ethnic discrimination--both overt and subtle--have continued to erect significant barriers to minority participation in Federal contracting. In some cases, overt discrimination has prevented minority-owned businesses from obtaining needed loans and bonds. Prime contractors, unions, and suppliers of goods and materials have preferred to do business with White contractors rather than with minority firms. We have seen repeated reports of bid-shopping and of minority businesses being denied contracts despite submitting the lowest bid. The Department's decision to award a growing number of defense contracts noncompetitively has had the unfortunate effect of excluding minority-owned businesses from a significant number of contracting opportunities. No-bid contracts also hurt White-owned businesses, but they disadvantage minority-owned firms in particular. These problems affect a wide variety of areas in which the Department offers contracts, and the problems are detailed in many recent disparity studies, including: City of Dallas Availability and Disparity Study, Mason Tillman Associates, Ltd. (2002); City of Cincinnati Disparity Study, Griffin & Strong, P.C. (2002); Ohio Multi- Jurisdictional Disparity Studies, Mason Tillman Associates, Ltd. (2003); Procurement Disparity Study of the Commonwealth of Virginia, MGT of America, Inc. (2004); Alameda County Availability Study, Mason Tillman Associates (2004); City of New York Disparity Study, Mason Tillman Associates, Ltd. (2005). We are also mindful that the data contained in the Department of Commerce benchmark study supports the need for efforts to improve contracting opportunities for minority-owned businesses. The 1207 Program helps to correct these problems of discrimination without imposing an undue burden on White-owned businesses. Small businesses owned by White contractors are eligible to receive the benefits of the program if they are socially or economically disadvantaged. All of us benefit when recipients of Federal opportunities reflect America's diversity, and I am proud to support the reauthorization of the 1207 Program.

Mr. KENNEDY

Mr. KENNEDY. Well, Madam President, I have nothing but the highest regard and respect for those who are involved in the conflict and fighting for the United States. I regret sometimes that we have not provided them with the military equipment that we should have. But I have the highest regard and respect for the Armed Forces of the United States, and I have supported, and will continue to support, to make sure they have the equipment they need to carry on their mission. They are all heroes. The question is the policy. At some time, I will respond, whenever-- Madam President, what is the time allocation now?

Mr. KENNEDY. Fine. Well, that will be the answer. When the Senator is finished, I will be glad to respond generally to his theme.

Mr. KENNEDY. Well, I will make a brief comment in response to the general statement that the Senator made and use my own time. And then the Senator can use whatever time. Madam President, we were attacked on 9/11. We were attacked by Osama bin Laden. Where is Osama bin Laden today? Since 9/11 we have not captured him. The focus and attention was in Afghanistan. Nonetheless, this administration took us to war in Iraq. At that time, we had al- Qaida effectively by the throat and instead we lost that opportunity and now have ourselves bogged down in Iraq. That happens to be the fact. We have not enhanced the war against terror by being in Iraq. I think we made Iraq a training ground for terrorists. So I differ with my friend and colleague. I think the job should have been finished in Afghanistan. That is where Osama bin Laden has been. But the idea that the President of the United States--as I illustrated in 15 minutes of direct quotes; and I will not repeat them--brought the United States to war on the basis of the dangers that Saddam Hussein had a nuclear weapon and there was a tie between Saddam Hussein and al- Qaida is basically wrong. That is not the Senator from Massachusetts saying that. That is the 9/11 Commission saying that. Now, what is so wrong about trying to get the facts on this? The reason to get the facts and the reason it is so important--with the Rockefeller effort and the efforts by my friends, the Senators from Michigan and California, to get the facts--is because we do not want to repeat that. We have a dangerous situation in Iran. We have a dangerous situation in North Korea. We do not want to duplicate the mistakes that this country took with its leaders. We do not want to duplicate that. That is why this report is so important. Madam President, I stand by my statement that I think that the war in Iraq was a grave mistake, that the American people were misled, and that there is ultimately not going to be a military solution. There is the quagmire: a military solution to solve the problem in Vietnam, a military solution to try and solve the problem in Iraq. It is not going to work.

Mr. KENNEDY. Madam President, the definition of a quagmire is a complex or precarious position where disengagement is difficult. That says it, in regard to Iraq. This body understood the reason we went to war with Iraq was because this administration represented that Saddam Hussein had a nuclear weapon or was on the brink of getting nuclear weapons and, secondly, had ties with al-Qaida. Others may draw from another part of history, but I stand by that. Both of those facts are not so. It is important that we understand how we came about using those facts, which we see are not so, to make sure we are not going to make those mistakes in the future. I yield back the remainder of my time.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I'm honored to join Senator Leahy, Senator Obama, Senator Feingold, Senator Dodd and Senator Durbin in submitting this tribute to one of the world's most courageous human rights and environmental activists, Ken Saro-Wiwa, on the tenth anniversary of his death. Mr. Saro-Wiwa was a champion of nonviolence for social and economic justice and the environment in the oil-rich communities of the Niger Delta. He was a voice for hundreds of thousands of persons suffering from government repression and corporate greed, and he raised global awareness of the need for more responsible environmental and social practices by the oil industry. On this day ten years ago, Ken Saro-Wiwa and eight of his Ogoni compatriots were unjustly put to death based on apparently trumped-up charges by an apparently biased Nigerian military tribunal. Their only crime was their courage in daring to speak out against the exploitation of the Ogoni environment and its people. Despite widespread international condemnation of the killings, Mr. Saro-Wiwa has not been cleared of the false charges, and environmental and social degradation persists in the Ogoni and other communities in the Niger Delta. The resolution that we are introducing today calls on the Nigerian Government to conduct a thorough judicial review of the military tribunal, and to pay compensation to the heirs of Mr. Saro-Wiwa and his colleagues if a miscarriage of justice is found. A United Nations mission to Nigeria in 1996 found such a violation and called for such relief. The resolution also calls for increased assistance to the Ogoni people and for environmental support for the Niger Delta region. In addition, it calls for American oil companies operating in the Delta to follow more responsible social practices, and for the Government of Nigeria to ensure that its security forces are properly trained, so that nonviolent protest is never again met with violent repression. At a time when the Niger Delta is increasingly threatened by violence and instability from past failures to address these long-standing grievances, it is urgent that we honor the legacy of Ken Saro-Wiwa and the Ogoni people by seeking creative, nonviolent solutions to the environmental and social problems that plague the region. I urge my colleagues to support this resolution as an important step in that direction.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, is that the extent of the time?

Mr. KENNEDY. That is correct.

Mr. KENNEDY. Mr. President, I intend to speak probably 7 minutes. I will use the 2 minutes now and request time on the Levin amendment.

Mr. KENNEDY. Mr. President, a year and a half ago, Americans were stunned by the revolting images of men and women wearing the uniform of our Nation torturing and abusing prisoners at Abu Ghraib. At the time, we had hoped those photos pictured an isolated instance, but we have learned since that our own leaders at the highest levels of our Government, in the White House, in the Pentagon, and in the Central Intelligence Agency, have allowed a wide pattern of abuse to occur. Abu Ghraib, it seems, was only the tip of the iceberg. American officials abused prisoners in Iraq, Afghanistan, and Guantanamo, and now we learn the CIA maintains secret prisoners in Eastern Europe where Vice President Cheney arrogantly and unapologetically hopes to permit torture as a permanent part of American policy. These actions deeply offend American honor and ideals. They invite retribution on our own troops by those who treat them as we treat their prisoners, and they harm America's image around the world and make the war on terror that much harder to win. These abuses should not be swept under the rug and forgotten. The American people deserve to know what their government is doing. Those who have violated our norms and values under the color of the American flag should be held accountable. That is why I strongly support the Levin amendment to create a commission with responsibility for learning the truth. Its findings not only would bring much needed accountability of those responsible for these abuses but also would guide our handling of the detention and interrogation of detainees in the future. From what we have learned to date, it is clear that our political leaders made deliberate decisions 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. Top officials in the Administration endorsed and defended practices that we've condemned in other countries. And the consequences were foreseeable. In rewriting our human rights laws, the Administration consistently overruled the objections of experienced military personnel and those who represent American interests abroad. As Secretary of State Colin Powell warned the White House, ``it will reverse over a century of US 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 would lead to so-called ``force drift,'' and without clearer guidance, the level of force applied to an uncooperative detainee might well result in torture. But these wise words fell on deaf ears. Officials at the highest levels of the administration somehow viewed the rule as inconvenient and quaint. As Lawrence Wilkerson, former Chief of Staff to Secretary Powell, said: I don't think in our history we've ever had a presidential involvement, a secretarial involvement, a vice-presidential involvement, an Attorney General involvement in telling our troops essentially carte blanche is the way you should feel.

Mr. KENNEDY

Mr. KENNEDY. Yes.

Mr. KENNEDY. I thank the chairman of the Armed Services Committee for his typical courtesies and consideration. amendment no. 2430 Mr. President, we have created legal and literal black holes where individuals have been placed without hope of receiving due process or fair and humane treatment, and that is nothing short of a travesty. The warnings are all there. The military's judge advocate generals--people who have dedicated their lives to the defense of the country--warned that undoing the rules against abuse would undermine protections for our troops. The FBI warned the abuses at Guantanamo may violate longstanding American practices and policies. The International Red Cross warned that our actions violate and undermine international agreements that serve to protect our own troops when they are captured. But the Bush White House still is doing everything it can to avoid accountability. Only yesterday, President Bush said that the United States does not torture. Yet his own Vice President is lobbying Congress to allow the CIA to use these abusive techniques. There is little doubt that many of those detained are cold-blooded killers intent on harming Americans. They should be charged for their crimes and locked away. But we do not win the war on terror by stooping to their level. We do not win by desecrating the very ideals that our soldiers are fighting for. We win by setting an example, by doing unto others as we would have them do unto us. We know now that the prisoner abuse scandal is not merely the responsibility of a few bad apples as the administration initially claimed. We cannot simply blame a few low-ranking soldiers without looking at the role of William Haynes, David Addington, Jay Bybee, John Yoo, Timothy Flanigan, Alberto Gonzalez, and the Vice President in crafting these policies that led to these abuses. Mr. President, there have been 11 investigations into the treatment of detainees, 11, but not one has fully examined the extent to which officials at the top levels of the administration are responsible for these abuses, and not one has looked beyond the Pentagon to the CIA, the Justice Department, and the White House itself--not the Schlesinger report, not the 10 military investigations that have taken place. We can no longer let the White House off the hook. By refusing to act like the truth is important, the administration is only making the crisis worse, further embarrassing the Nation in the eyes of the world, and casting greater doubt on its commitment to the rule of law. We will not be able to move past the scandal as a nation until there is a full independent investigation of all that has gone wrong in our detention and interrogation policy and all the persons found responsible for these policies are held accountable. I urge my colleagues to support this amendment. I thank again the chairman of the committee for his indulgence.

Mr. KENNEDY. Will the Senator respond to a question?

Mr. KENNEDY. First of all, I thank the chairman of the Armed Services Committee for pursuing this issue, and I am grateful for his initiatives and those of Senator Levin. We had the opportunity in the Judiciary Committee to also pursue this issue during the nomination hearings of the Attorney General, Mr. Gonzalez, who had been the White House Counsel when the initial torture memorandum was prepared. There was no question that someone in the Central Intelligence Agency spoke to Mr. Gonzalez and he asked the Office of Legal Counsel in the Justice Department for advice about how to define the parameters of torture--of torture. And they received back a very detailed note from the Office of Legal Counsel. In that particular memorandum, known as the Bybee memorandum, was the legal guidance for the DOD. It effectively indicated that using any kinds of techniques on any individuals were permitted, as long as the intention was to get information and not to torture. Mr. Gonzalez was asked extensively about that memo. We asked about the author of that memo. And we then received--during the hearing--a revision of that torture memo by the Defense Department. For 2 years, the Bybee memo had been out there. That memorandum effectively absolved any members of the armed services that were involved in torture because they were doing the work of the Commander in Chief. Under that particular memorandum, if you were working under the Commander in Chief, you were effectively protected against any kind of prosecution in the future. That memorandum was withdrawn by the Justice Department and the Department of Defense. But it was in effect for 2 years. We don't know what the background was. We never found out in the Judiciary Committee who in the Central Intelligence Agency asked for that memorandum. We never found out what the contacts were between the agency and the Office of Legal Counsel. We never found that out. We never have found out whether it was repudiated by the Central Intelligence Agency. Those questions are still unanswered, I say to the Senator from Virginia. This enormous collection of studies that was done primarily for the Armed Services Committee is virtually free of any discussion, knowledge, or accountability of the Bybee memorandum, which is the basis for the policy of torture within the Defense Department. That is just one illustration of what took place. The American people are permitted, I think, to understand who was making judgments and decisions so that this memorandum was put in place, which basically permitted torture to take place. We are talking about waterboarding, and we are talking about being the target of military dogs. That was all out there. If the Senator can give me the authority for that kind of activity, for that kind of guidance, we would be much more interested in listening to the argument that we have had all of these studies, we know everything that needs to be known, when I don't believe that is the case.

Mr. KENNEDY. Absolved. This is the Bybee memorandum that was the basis for much of the torture activity that took place. A substantial part of it was included in the military working document which was released to the members of the military in all parts of the world. I haven't had a chance to mention this particular item, and there are many different items in the whole torture issue, but if the Senator wanted to respond later on, I would certainly welcome it. One of the most troublesome aspects of the whole issue on torture is that we still have no way of knowing who put this in, who guided this, who got in touch with the Office of Legal Counsel, what were those phone calls, who was asking for this, and why it was put into effect for 2 years.

Mr. KENNEDY. Yes, it is called the Bybee memorandum.

Mr. KENNEDY. No, it is in the record of the consideration of Mr. Gonzales for Attorney General.

Mr. KENNEDY. Mr. President, I know time is running short, but the point is, during this period of time, those same assurances were given. And what was being done at that particular time was also described as not meeting the criteria of torture. That was the troublesome aspect. Although when asked during the course of the hearing about the waterboarding and assault by dogs and other activities, I think the response of the military officials who were asked about it was that could fall within the definition of torture. Given the history of how the word ``torture'' has been used and looking at the Bybee memorandum which was the guidance for DOD, I think there are some very legitimate questions which we are very hopeful that an independent commission can resolve.

Mr. KENNEDY. Certainly it would, as far as I am concerned. I think with this commission we are trying to avoid these circumstances in the future, given the facts we have seen in the past. I thank the Chair.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the war against terrorism is as much as a contest of values and ideals as it is a military conflict. In this struggle, America should lead as it always has, setting an example by treating others as we would want to be treated ourselves, even in times of war. This golden rule has been tarnished and abandoned by the Bush administration. As a result, for much of the world, the American face in the war on terror is represented by images of torture and abuse. The ``anything goes'' attitude at the highest levels of the Bush White House has made the war on terror much harder to win. And it has placed our own soldiers at risk throughout the globe, should they be captured. How can we demand that the rest of the world abide by standards of common decency when we abuse prisoners ourselves? So I come to the floor today in strong support of the McCain amendment to protect American honor by ensuring clear rules for the interrogation of prisoners. This common sense proposal ensures that we have one standard of interrogation for our Government, and it makes sure the rules are clear so that our interrogators and case officers know what the limits are. Before September 11, 2001, everyone knew what the limits were. They were clearly laid out in the Army Field Manual, our laws, and our treaty obligations. Yet this administration began systematically taking those rules apart. COL. Larry Wilkerson, the chief of staff to Secretary Powell, said on NPR yesterday, ``The Secretary of Defense, under cover of the Vice President's office began to create an environment . . . of allowing the President in his capacity as Commander-in-Chief to deviate from the Geneva Conventions.'' William Taft, the State Department legal advisor in President Bush's first term, knew the consequences of that fundamental shift. In an address at American University, he said that the decision to violate international standards ``unhinged those responsible for the treatment of the detainees . . . from the legal guidelines for interrogation . . . embodied in the Army Field Manual for decades. Set adrift in uncharted waters and under pressure from their leaders to develop information on the plans and practices of al Qaeda, it was predictable that those managing the interrogation would eventually go too far.'' The Judge Advocate Generals from the Air Force, Navy, Army and Marines--in other words, the chief lawyers for every one of the uniformed services--warned that the adoption of interrogation policies contrary to the Geneva Conventions would result in grave harms. These are all professional military lawyers who have dedicated their lives and distinguished careers to serving the men and women in uniform and protecting their Nation. In an extraordinary set of memos they strongly opposed the legal theories foisted on them by the administration's lawyers. The JAGS warned that the policies would harm not only our efforts to stop terrorism, but would also put U.S. forces at risk who were themselves detained in this and future conflicts. One legal scholar called the administration's case some of the worst legal reasoning he had ever seen. As Air Force Major General Jack Rives said: ``We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful.'' Yet; despite the condemnation of these new interrogation policies by experienced diplomatic and military personnel alike, the administration persists in pursuing these disturbing practices. Just last week, Vice President Cheney himself suggested that the CIA should be exempt from the prohibitions against cruel, inhuman, and degrading treatment. As of this week, it is clear why. The CIA apparently is holding more than a hundred detainees in secret prisons around the world to interrogate them with the techniques roundly rejected by the military lawyers. This is unacceptable. In America, no one is above the law. There is no reason the CIA--or any other agency of our government--should be immune from American norms and standards of conduct. This amendment will make our message clear. As Americans, not only do we fight for our ideals, but we live by them. We can no longer tolerate ambiguity when it comes to the very standards we are trying to enforce around the world. In the first gulf war, our compliance with the Geneva Conventions-- the international gold standard for treatment of captives--was called ``the best of any nation in any conflict in the history of the Conventions'' by the International Red Cross, the organization charged with overseeing compliance with the conventions. There are good reasons that we should abide by the Geneva Conventions. They protect our own troops. The Conventions require that all captured combatants or prisoners of war must be visited by the Red Cross to help assure the world that their treatment is humane. The International Red Cross visited U.S. servicemen held prisoner in Kosovo in the 1990s. They visited our troops held in the first gulf war. As Milt Bearden, a former CIA official, wrote in this morning's New York Times, ``the treatment of prisoners generally reaches symmetry in any war.'' In other words, if we abuse prisoners in a war, others will abuse our soldiers if they are taken prisoner. As Mr. Bearden pointed out, our actions make a difference, even in extreme situations. He wrote, ``The policy of three presidents--Jimmy Carter, Ronald Reagan, and George H.W. Bush--was that both the Afghan mujahedeen insurgents we supported and their Soviet adversaries would be treated within the precepts of the Geneva Conventions when taken prisoner. I can state without reservation that the United States used its influence consistently to promote that policy, with overwhelmingly positive results.'' Sadly, our treatment of detainees at Abu Ghraib, in Afghanistan, Guantanamo, and other sites, makes it far more difficult for us to guarantee the protections of the Geneva Conventions for our military if they are captured, and degrades the international consensus against such abuse. America must lead by example. After the abuse of the detainees at Abu Ghraib, President Bush said, ``Their treatment does not reflect the nature of the American people. That is not the way we do things in America.'' Let's make the President's bold words into a reality and adopt the McCain amendment. Mr. President, I ask unanimous consent that full text of Mr. Bearden's op-ed be printed in the Record.