[House Report 109-376]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-376
======================================================================
REQUESTING THE PRESIDENT AND DIRECTING THE SECRETARY OF STATE TO
PROVIDE TO THE HOUSE OF REPRESENTATIVES CERTAIN DOCUMENTS IN THEIR
POSSESSION RELATING TO THE SECRETARY OF STATE'S TRIP TO EUROPE IN
DECEMBER 2005
_______
February 10, 2006.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Hyde, from the Committee on International Relations, submitted the
following
ADVERSE REPORT
together with
DISSENTING VIEWS
[To accompany H. Res. 642]
The Committee on International Relations, to whom was
referred the resolution (H. Res. 642) requesting the President
and directing the Secretary of State to provide to the House of
Representatives certain documents in their possession relating
to the Secretary of State's trip to Europe in December 2005,
having considered the same, reports unfavorably thereon without
amendment and recommends that the resolution not be agreed to.
TABLE OF CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Votes of the Committee........................................... 4
Committee Oversight Findings..................................... 4
Constitutional Authority Statement............................... 4
Dissenting Views................................................. 5
Purpose and Summary
House Resolution 642 requests the President and directs the
Secretary of State to transmit to the House of Representatives
not later than 14 days after the date of the adoption of the
resolution all documents, memoranda, and advisory legal
opinions in the possession of the President or Secretary of
State that the Department of State provided to the Executive
Office in preparation for the Secretary of State's trip to
Germany, Belgium, Romania, and Ukraine in December 2005,
relating to: (1) United States' policies under the United
Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment toward individuals captured
by or transferred to the United States or detained in United
States' custody; and (2) United States' policies regarding any
facility outside of the territory of the United States for the
detention of individuals captured by, or transferred to, the
United States or detained in United States' custody.
Background and Need for the Legislation
House Resolution 642 is a resolution of inquiry, which
pursuant to Rule XIII, clause 7 of the Rules of the House of
Representatives, directs the Committee to act on the resolution
within 14 legislative days or a privileged motion to discharge
the Committee is in order. H. Res. 642 was introduced and
referred to the Committee on International Relations on
December 18, 2005. The Committee held a markup session on
February 8, 2006. The Committee ordered H. Res. 642 reported
adversely on February 8, 2006.
Under the Rules and Precedents of the House, a resolution
of inquiry is one of the methods used by the House to obtain
information from the executive branch. According to Deschler's
Procedure it is a ``simple resolution making a direct request
or demand of the President or the head of an executive
department to furnish the House of Representatives with
specific factual information in the possession of the executive
branch.'' \1\
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\1\ Deschler's Precedents, H. Doc. No. 94-661, 94th Cong., 2d
Sess., vol. 7, ch. 24, section 8.
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On December 18, 2005, Rep. Lee of California introduced H.
Res. 642. The resolution seeks all documents, memoranda, and
advisory legal opinions in the possession of the President or
Secretary of State that the Department of State provided to the
Executive Office of the President in preparation for the
Secretary of State's trip to Germany, Belgium, Romania, and
Ukraine in December 2005, relating to: (1) United States'
policies under the United Nations Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment
toward individuals captured by or transferred to the United
States or detained in United States' custody; and (2) United
States' policies regarding any facility outside of the
territory of the United States for the detention of individuals
captured by, or transferred to, the United States or detained
in United States' custody.\2\
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\2\ H. Res. 642, 109th Cong. (December 18, 2005).
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The Committee has now reported twelve resolutions of
inquiry. In the debate surrounding these most recent
resolutions, proponents have accused the United States
Government of abusing detainees in its custody and of capturing
suspected terrorists and delivering them to countries for the
purpose of torture. The accusations come despite President
Bush's repeated assurances that the United States does not
believe in the use of torture. In January of 2005, the
President told the American people that, ``Torture is never
acceptable, nor do we hand over people to countries that do
torture.'' Secretary of State Condoleezza Rice has likewise
stated, without qualification, that, ``The United States has
not transported anyone, and will not transport anyone to a
country when we believe he will be tortured. Where appropriate,
the United States seeks assurances that transferred persons
will not be tortured.''
These assurances are not empty. The Department of Defense
(DoD) has aggressively sought to uphold American values while
remaining tough in the War on Terror. In the past two years,
DoD has completed twelve investigations into detainee abuse. In
one such investigation, former Secretary of Defense James
Schlesinger led an independent and comprehensive examination of
DoD's detention operations. In its final report, numbering over
one hundred pages, the Schlesinger Panel concluded that,
``[t]here is no evidence of a policy of abuse promulgated by
senior officials or military authorities.''
Similarly, none of the other eleven investigations found
any evidence of a policy that permits abuse. Vice Admiral
Albert T. Church, the Navy's Inspector General, led a
``comprehensive review'' of DoD detention operations. In his
report issued on March 10, 2005, Vice Admiral Church concluded
that there was no link between the United States' interrogation
policies and incidents of abuse.
While not identifying a policy of abuse, DoD's
investigations have uncovered incidents of abuse and
recommendations for reform have been made. DoD takes these
recommendations seriously. From the twelve investigations into
treatment of detainees, there have been 490 recommendations for
reform. DoD has addressed, or is in the process of addressing,
all of these recommendations. Some significant reforms which
have already been implemented include the establishment of: a
Detainee Operations Oversight Council that regularly reviews
the Department's detention practices; a Deputy Assistant
Secretary for Detainee Affairs responsible for detainee policy
across the Department; a Detainee Affairs Division on the Joint
Staff; and a two-star officer responsible for detention
operations in Iraq. Further, DoD has improved its reporting
relationship with the Red Cross and allows the Red Cross
twenty-four hour access to the detention facilities at
Guantanamo Bay.
When investigations uncover abuse, DoD holds accountable
the individuals responsible. Following the shameful conduct at
Abu Gharib, the commanding general was relieved of her command
and reduced in rank, the Intelligence Brigadier Commander was
relieved of his command, 47 Memoranda of Reprimand were issued,
24 soldiers were administratively separated, 8 courts-martial
were completed, and 4 officers received non-judicial
punishments.
This disciplinary action and these investigations show that
DoD takes seriously its responsibility to uphold American
values. This is what our nation demands--that we aggressively
fight the War on Terror and that we do so with the integrity
and humanity that our values require. As President Bush stated
last year, ``[t]his country does not believe in torture. We do
believe in protecting ourselves.''
Given DoD's dedication and vigilant oversight, it is not
only unnecessary, but irresponsible, to demand reams of
documents from the Executive Branch. In the course of DoD's
investigations into detention issues, over 16,000 pages of
documents were released. These documents included information
on classified interrogation techniques that could alert our
enemies to our sources and methods of gathering intelligence.
We should examine these already-public reports before demanding
more documents and further compromising our Nation's security.
The Committee voted to report House Resolution 642
adversely because the resolution was not only unnecessary, but
potentially damaging to the United States' efforts in the War
on Terror.
Hearings
The Committee did not hold hearings on H. Res. 642.
Committee Consideration
On February 8, 2006, the Full Committee marked up the
resolution, H. Res. 642, pursuant to notice, in open session.
The Committee agreed to a motion to report the resolution
adversely to the House by a record vote of 25 ayes to 17 nays.
Votes of the Committee
Clause (3)(b) of rule XIII of the Rules of the House of
Representatives requires that the results of each record vote
on an amendment or motion to report, together with the names of
those voting for or against, be printed in the Committee
report. The following record votes occurred during
consideration of H. Res. 642:
Vote to report to the House adversely:
Voting yes: Hyde, Smith (NJ), Burton, Ros-Lehtinen,
Rohrabacher, Royce, King, Chabot, Tancredo, Paul, Issa, Flake,
Davis, Green, Weller, Pence, McCotter, Harris, Wilson, Boozman,
Barrett, Mack, Fortenberry, McCaul, and Poe.
Voting no: Leach, Lantos, Faleomavaega, Payne, Brown,
Sherman, Wexler, Engel, Delahunt, Crowley, Berkley, Napolitano,
Schiff, Watson, Smith (WA), Chandler and Cardoza.
H. Res. 642 was ordered reported adversely to the House by
a vote of 25 ayes to 17 noes.
Committee Oversight Findings
The Committee held no oversight activities under clause
2(b)(1) of rule X of the Rules of the House of Representatives.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this resolution in article I, section 1 of the Constitution.
Dissenting Views
We are deeply disappointed with the majority's rejection of
this resolution of inquiry relating to U.S. policy towards
torture and cruel, inhumane and degrading treatment,
particularly in the context of the rejection of two other
related resolutions on the same day. We believe that in order
to fulfill our constitutional responsibilities, this Committee
and the Republican-controlled Congress more generally must
immediately do more to investigate the issues presented by
these resolutions.
The United States has been a leader in human rights
throughout its history. President Woodrow Wilson countered
colonialism by advocating self-determination. Eleanor Roosevelt
led the fight to adopt the Universal Declaration of Human
Rights in the 1940's, which was the first international
instrument to prohibit torture and cruel, inhumane and
degrading treatment. President's Truman and Kennedy put
protecting freedom at the heart of U.S. foreign policy.
President Carter renewed the focus of U.S. foreign policy on
human rights and democracy. And President Ronald Reagan helped
shepherd the Convention Against Torture and Cruel, Inhumane and
Degrading Treatment.
With respect to our own institution, over the past 15
years, this House has been at the forefront of efforts to
combat torture around the world. In 1992, Congress adopted a
measure to create a private cause of action in U.S. courts
against those who perpetrate torture. In 1994, this very
committee adopted the implementing legislation for the
Convention Against Torture, clearing the way for U.S.
ratification of that critical treaty. And since 1998, our
committee has adopted a number of measures to provide relief to
victims of torture around the world. The Congressional
attention to this matter is a legacy of which we should all be
proud. It is based on our own shared values that torture and
inhumane treatment is not acceptable anywhere, and should be
stamped out wherever it exists.
It is therefore with dismay that we have learned of the
abuses of individuals who have been detained by the U.S.
Government, either at the hands of our military force who we
believe have not been given the proper leadership or at the
hands of agents of foreign governments to whom the United
States has have turned over a number of individuals. These
revelations, most graphically demonstrated in the images of the
abuse at Abu Ghraib prison in Iraq which were seared into the
minds of millions of people around the globe. Indeed, beyond
the simple moral imperative to stop such abuses and the
historic commitment of the United States to abide by its
international obligations, the international reaction to the
images at Abu Ghraib demonstrates to us that these events do
not merely implicate the principles described above, but go to
the core of our national security. For it is these graphic
images that are used by our enemies in Al-Qaeda and its
affiliates to generate greater hostility against this country
and recruit more terrorists to be used to attack us and our
friends and allies.
It is against this backdrop that the three resolutions of
inquiry have been filed, seeking in the absence of any
comprehensive investigation by our Republican colleagues,
information on the Administration's approach to interrogation
of suspected terrorists and the treatment of detainees. Such an
investigation is critical and long overdue to counter the
notion that the United States does not care about these abuses.
By launching a thorough investigation and tracing the evidence
wherever it leads, we can help repair our damaged leadership in
the area of human rights. We hope that these three resolutions
will help contribute to a new momentum to launching such an
investigation.
H. Res. 593, introduced by our colleague Representative
Markey addresses the issue of the U.S. policies towards
extraordinary rendition. ``Rendition'' is a term used in the
international law enforcement community for the transfer of
suspects from one country to another. Extradition, generally
pursuant to treaty, is the formal mechanism for renditions,
although occasionally removal or deportation of an alien
without a formal extradition process is another lawful manner
of rendition. Transfers are also effectuated through a process
as ``extraordinary rendition'' or ``irregular rendition,''
which involves the extrajudicial transfer of a person from one
State to another.
Renditions are not new and have long been a tool for
international law enforcement cooperation. However, this
practice has come more into the public eye since September 11,
2001. According to press reports, the President has expanded
the CIA's authority to conduct renditions, and some reports
suggest that over 100 terrorism related renditions have
occurred. These renditions of terrorist suspects have been
surrounded by allegations of abuse by the receiving country,
confusion as to what type of assurances regarding treatment
have been obtained by the U.S. and allegations that the
rendition occurred without the consent of the country from
which the suspect was transferred. Examples of such cases
include:
A dual Canadian-Syrian citizen, Maher Arar,
was allegedly rendered to Syria, where he was allegedly
tortured and interrogated for suspected terrorist
activities with the acquiescence of the United States.
Canada has established a commission to review this
episode and Arar has filed a suit in U.S. courts.
U.S. intelligence operatives allegedly seized
in Italy and rendered to Egypt an Islamic cleric,
allegedly without the consent of the Italian
Government. Italy has issued arrest warrants for
thirteen persons allegedly involved in the case.
Mamdouh Habib, an Egyptian-born Australian in
American custody, was allegedly transported from
Pakistan to Afghanistan to Egypt to Guantanamo Bay. Now
back home in Australia, Habib alleges that he was
tortured during his six months in Egypt with beatings
and electric shocks, and hung from the walls by hooks.
The Administration has stated publicly that renditions have
occurred but have denied all wrongdoing. For example, Attorney
General Gonzales has been quoted as saying that the U.S. does
not send any person ``to countries where we believe or we know
that they're going to be tortured''. The CIA Director has said
that ``we have more oversight [over renditions] than we did
before''. Secretary of State Rice stated before her December
trip to Europe that ``the United States has not transported
anyone, and will not transport anyone to a country where we
believe he will be tortured. Where appropriate the United
States seeks assurances that transferred persons will not be
tortured.''
However, there is little publicly available information
from government sources regarding the nature and type of
renditions, the type of assurances that have been obtained by
the United States, and what type of monitoring there is of
these assurances to ensure that these statements are validated
by the facts. To date, we are not aware of any Congressional
hearing that has taken place specifically on the subject of
torture.
We note that Representative Markey, the sponsor of H. Res.
593, has introduced H.R. 952, the Torture Outsourcing
Prevention Act of 2005, which would prohibit rendition to any
country that commonly uses torture during detention and which
was referred to the Committee on International Relations. The
Committee has not considered nor held a hearing on the
legislation, in that context we deeply regret the opposition of
our Republican colleagues to Mr. Markey's resolution.
H. Res. 624, introduced by Mr. Ackerman, addresses the
Administration's approach to the application of the Convention
Against Torture and the Geneva Conventions and the role of the
State Department in devising that approach.
The United States is obligated under the Convention Against
Torture to ban not only torture but also cruel, inhumane and
degrading treatment. In addition, under Common Article 3 of the
Geneva Conventions, the United States has a duty to treat all
prisoners of war or civilian detainees humanely. The
application of these international treaty obligations, however,
has been controversial. In early 2002, the President decided
that the Geneva Conventions did not apply to detainees that the
Administration determined to be ``unlawful enemy combatants.''
In mid-2002, the Justice Department provided a memorandum to
then White House Counsel Alberto Gonzales strictly limiting the
application of the Convention Against Torture, a memorandum
which was subsequently withdrawn after it became public. In
2003, a Defense Department working group established procedures
based on this memorandum, which was subsequently overturned
when it became public. And in 2005, Attorney General Gonzalez
declared that the Convention Against Torture did not limit the
United States actions outside the United States, which was
immediately disputed by former Legal Adviser Abe Sofaer, who
helped shepherd the treaty through the Senate in 1984.
The shifting interpretation of U.S. legal obligations under
these various conventions as applied by the U.S. government led
to confusion, with some military officers expressing their
severe discomfort with the lack of standards as to what is
considered ``humane'' under U.S. law. Many argue that this
confusion contributed to a number of abuses by U.S. military
and civilian forces since September 11th, 2001. In addition to
the abuses that took place in Abu Ghraib in the Fall of 2003,
according to several outside groups, there have been 87
documented deaths in U.S. custody. Allegations of abuse
relating to misuse of the Koran to other inhumane practices
have been widely reported in the press.
This changing mosaic of interpretation of key human rights
obligations of the United States raises the question of how our
Government reached its legal conclusions. Press reports suggest
that lawyers in the Justice Department and the White House
reached decisions about the application of the Geneva
Conventions prior to consulting with the Department of State's
legal office, the Office of the Legal Adviser, and only made
modest changes after a formal objection was lodged by then
Secretary of State Powell. The various memoranda prepared by
the Justice Department and the Defense Department regarding
treatment of detainees and the application of the Convention
Against Torture were apparently done without any consultation
whatsoever with the Office of the Legal Adviser.
If these allegations are accurate, this process represents
a fundamental breakdown in government. The Office of the Legal
Adviser is the foremost repository of U.S. Government expertise
on international law. While the Justice Department has been
given the formal responsibility of providing legal opinions on
behalf of the U.S. Government, failure to consult with the
State Department, perhaps because of fears as to what the
Department would argue, is not a process which is designed to
lead to a coherent and accurate conclusion on this matter.
Indeed, not only has the Administration admitted that some of
its own original legal theories were, at a minimum, overbroad,
but these problems have caused significant friction with U.S.
allies and the international community.
Although there have been numerous (although arguably
incomplete, as will be discussed below) investigations into the
actual abuses themselves, and there have been some hearings in
the Senate where the issue of the overruling of Defense
Department military and career lawyers has been discussed, we
are not aware of any hearing regarding the failure of the White
House and the Justice Department to have a full and formal
vetting of controversial legal theories with the Department of
State.
This is not an academic question. With the enactment of the
McCain Amendment banning torture and cruel, inhumane and
degrading treatment as part of the FY2006 Defense Authorization
and Appropriations Acts, there remain a number of open
questions regarding the application and implementation of these
legal standards. Failure of the Administration to fully consult
the agencies and offices that have the greatest expertise may
well lead to future mistakes and problems in the implementation
of this critical amendment.
H. Res. 642, introduced by Representative Lee, addresses
the issues related to detainee treatment that arose prior to
Secretary of State Rice's December trip to Europe. That trip,
which had been billed as intending to turn a new page in the
Translatlantic relationship instead centered on news reports
from November 2005 which indicated that the United States had
secret facilities in European countries, including using a
Soviet-era compound in Eastern Europe, where ``ghost
detainees'' who had not been reported to the International
Committee of the Red Cross were being detained and
interrogated. These reports set off a fire storm of criticism
on the eve of a Secretary Rice's trip, overshadowed her own
agenda, and forced the United States to make new pronouncements
regarding its detainee policy.
H. Res. 642 asks for information related to these
announcements immediately before and during the trip. For
example, prior to the trip, Attorney General Gonzales had
stated that the Convention Against Torture does not obligate
the U.S. Government outside the United States, a position that
was the subject of strenuous objections by former U.S.
officials. During the trip, Secretary Rice seemed to back
track, suggesting that ``as a matter of policy , the United
States obligations under the CAT, which prohibits . . . cruel
and inhumane and degrading treatment, those obligations extend
to U.S. personnel wherever they are, whether they are in the
United States or outside the United States.'' Whether this
constitutes a change in legal position or a statement of policy
remains unclear. Secretary Rice had a number of discussions
with leaders of Western European countries that defused to some
degree the tensions over the reports of secret detention
facilities. However, both the Council of Europe and the
European Parliament have ongoing investigations of European
complicity with the U.S. practice of extraordinary renditions
and the issue of the secret prisons, although a recent interim
report of the Council of Europe did not find any ``irrefutable
evidence'' of secret facilities. The breadth of these inquiries
raises the question as to why the U.S. Congress is not pursuing
its own investigation. Ms. Lee's resolution tries to start such
an investigation.
The gaps in Congress' investigation of the torture issue
presented by these resolutions of inquiry points to a lack of
oversight and points to the problem of unity of government. In
addition to issues relating to extraordinary rendition, secret
facilities in Europe and broken government processes, many
point to other gaps or questions in the Administration's own
investigation of terrorism abuses:
The Independent Commission headed by former
Secretary of Defense Schlesinger that ``there is both
institutional and personal responsibility at higher
levels,'' but there have been no prosecutions against
senior officers for the abuses themselves.
For example, Colonel Thomas Pappas, who
commanded the military intelligence unit at Abu Ghraib,
has not been prosecuted but was given a reprimand, paid
a $4000 fee, and now has been given immunity for
testifying against two dog handlers, and an officer
under his command.
ieutenant General Randall Schmidt, who
investigated allegations by the FBI of interrogation
abuses at Guantanamo, recommended a reprimand of
General Geoffrey Miller, who some have alleged
recommended the use of dogs to intimidate detainees,
but General Miller's commanding officer rejected this
recommendation.
And now, General Miller has invoked his right
against self-incrimination.
Moreover, the Independent Commission and one
investigating officer, General Fay, also have stated
that detainee treatment by other government agencies
remains unclear.
We urge our Republican colleagues to support the
establishment of an independent commission to investigate these
abuses, as proposed by our colleague Representative Waxman and
Senator Levin. By doing so we can prove to the world that we
are serious about accountability for human rights violations
and counter the damage to our national security done by them.
The questions presented by the three resolutions rejected
by the Majority and the questions described above demand
answers. Our failure to even ask these questions is a
fundamental abdication of Congress' constitutional
responsibility to conduct oversight of the Executive Branch. We
urge our members to reconsider and schedule hearings in the
near future.
Tom Lantos.
Howard L. Berman.
Gary L. Ackerman.
Eni F.H. Faleomavaega.
Donald M. Payne.
Sherrod Brown.
Robert Wexler.
Eliot L. Engel.
William D. Delahunt.
Barbara Lee.
Joseph Crowley.
Earl Blumenauer.
Grace F. Napolitano.
Adam B. Schiff.
Diane E. Watson.
Adam Smith.
Betty McCollum.
Ben Chandler.