Wednesday, June 22, 2005

Senator Durbin's apology -- commentary and transcript

Senator Durbin has apologized for his controversial Senate comments, comparing U.S. prisoner abuse to abuse of prisoners in Soviet gulags and Nazi concentration camps. He got a ton of negative pressure against the comparison. Bill Frist said: "Shameful does not begin to describe this heinous slander against our country and the brave men and women risking their lives every day to defend it." And few on the national political scene were much friendlier. Durbin had vowed:
I'm certainly not going to be intimidated by the right-wing message machine," he said. "If I'm going to back off every time they decide their unhappy with my statements, then I really won't be doing my job. We're going to continue to follow this (and) demand that the administration be held accountable.
Apparently, he's changed his mind. I consider it a shame. If you look at Durbin's comments in context, it's pretty hard to see why they're even controversial, much less something he ought to regret and withdraw. Not a lot of people are looking at the comments in context, though. That's why I'm including the full transcript here; it's not that easy to find a full transcript online. I got it from the Congressional Reporters online. June 14, pp. S6592-S6594. I can't link to search results. I think that everyone should read the whole speech, but in the interest of brevity, I've provided an abridged version that hits the most important points and keeps things in context.
Mr. DURBIN. [discussion of energy bill omitted] Which moves me to a second topic, which is related. That dependence on foreign oil draws us into a lot of predicaments around the world. Ask the 150,000 American soldiers in Iraq today. ... It turns out afterward we were misled, there were no weapons of mass destruction, no nuclear weapons, no connection with 9/11. It turns out the threats we were told existed did not exist. The American people were misled. ... Mr. President, there has been a lot of discussion in recent days about whether to close the detention center at Guantanamo Bay. This debate misses the point. It is not a question of whether detainees are held at Guantanamo Bay or some other location. The question is how we should treat those who have been detained there. Whether we treat them according to the law or not does not depend on their address. It depends on our policy as a nation. How should we treat them? This is not a new question. We are not writing on a blank slate. We have entered into treaties over the years, saying this is how we will treat wartime detainees. The United States has ratified these treaties. They are the law of the land as much as any statute we passed. They have served our country well in past wars. We have held ourselves to be a civilized country, willing to play by the rules, even in time of war. Unfortunately, without even consulting Congress, the Bush administration unilaterally decided to set aside these treaties and create their own rules about the treatment of prisoners. ... I believe the torture techniques that have been used at Abu Ghraib and Guantanamo and other places fall into that same category [as the Japanese-American internment]. I am confident, sadly confident, as I stand here, that decades from now people will look back and say: What were they thinking? America, this great, kind leader of a nation, treated people who were detained and imprisoned, interrogated people in the crudest way? I am afraid this is going to be one of the bitter legacies of the invasion of Iraq. We were attacked on September 11, 2001. We were clearly at war. We have held prisoners in every armed conflict in which we have engaged. The law was clear, but some of the President's top advisers questioned whether we should follow it or whether we should write new standards. Alberto Gonzales, then-White House chief counsel, recommended to the President the Geneva Convention should not apply to the war on terrorism. Colin Powell, who was then Secretary of State, objected strenuously to Alberto Gonzales' conclusions. I give him credit. Colin Powell argued that we could effectively fight the war on terrorism and still follow the law, still comply with the Geneva Conventions. In a memo to Alberto Gonzales, Secretary Powell pointed out the Geneva Conventions would not limit our ability to question the detainees or hold them even indefinitely. He pointed out that under Geneva Conventions, members of al-Qaida and other terrorists would not be considered prisoners of war. ... After the President decided to ignore Geneva Conventions, the administration unilaterally created a new detention policy. They claim the right to seize anyone, including even American citizens, anywhere in the world, including in the United States, and hold them until the end of the war on terrorism, whenever that may be. For example, they have even argued in court they have the right to indefinitely detain an elderly lady from Switzerland who writes checks to what she thinks is a charity that helps orphans but actually is a front that finances terrorism. They claim a person detained in the war on terrorism has no legal rights--no right to a lawyer, no right to see the evidence against them, no right to challenge their detention. In fact, the Government has claimed detainees have no right to challenge their detention, even if they claim they were being tortured or executed. This violates the Geneva Conventions, which protect everyone captured during wartime. ... Who are the Guantanamo detainees? Back in 2002, Secretary Rumsfeld described them as "the hardest of the hard core." However, the administration has since released many of them, and it has now become clear that Secretary Rumsfeld's assertion was not completely true. Military sources, according to the media, indicate that many detainees have no connection to al-Qaida or the Taliban and were sent to Guantanamo over the objections of intelligence personnel who recommended their release. One military officer said: We're basically condemning these guys to a long-term imprisonment. If they weren't terrorists before, they certainly could be now. ... Secretary Rumsfeld approved numerous abusive interrogation tactics against prisoners in Guantanamo. The Red Cross concluded that the use of those methods was "a form of torture." The United States, which each year issues a human rights report, holding the world accountable for outrageous conduct, is engaged in the same outrageous conduct when it comes to these prisoners. Numerous FBI agents who observed interrogations at Guantanamo Bay complained to their supervisors. In one e-mail that has been made public, an FBI agent complained that interrogators were using "torture techniques. That phrase did not come from a reporter or politician. It came from an FBI agent describing what Americans were doing to these prisoners. With no input from Congress, the administration set aside our treaty obligations and secretly created new rules for detention and interrogation. They claim the courts have no right to review these rules. But under our Constitution, it is Congress’s job to make the laws, and the court’s job to judge whether they are constitutional. This administration wants all the power: legislator, executive, and judge. ... To win the war on terrorism, we must remain true to the principles upon which our country was founded. This Administration’s detention and interrogation policies are placing our troops at risk and making it harder to combat terrorism. Former Congressman Pete Peterson of Florida, a man I call a good friend and a man I served with in the House of Representatives, is a unique individual. He is one of the most cheerful people you would ever want to meet. You would never know, when you meet him, he was an Air Force pilot taken prisoner of war in Vietnam and spent 6 1/2 years in a Vietnamese prison. Here is what he said about this issue in a letter that he sent to me. Pete Peterson wrote: From my 6 1/2 years of captivity in Vietnam, I know what life in a foreign prison is like. To a large degree, I credit the Geneva Conventions for my survival. ..... This is one reason the United States has led the world in upholding treaties governing the status and care of enemy prisoners: because these standards also protect us. ..... We need absolute clarity that America will continue to set the gold standard in the treatment of prisoners in wartime. Abusive detention and interrogation policies make it much more difficult to win the support of people around the world, particularly those in the Muslim world. ... What should we do? Imagine if the President had followed Colin Powell’s advice and respected our treaty obligations. How would things have been different? We still would have the ability to hold detainees and to interrogate them aggressively. Members of al-Qaida would not be prisoners of war. We would be able to do everything we need to do to keep our country safe. The difference is, we would not have damaged our reputation in the international community in the process. When you read some of the graphic descriptions of what has occurred here—I almost hesitate to put them in the RECORD, and yet they have to be added to this debate. Let me read to you what one FBI agent saw. And I quote from his report: On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they urinated or defecated on themselves, and had been left there for 18–24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold. . . . On another occasion, the [air conditioner] had been turned off, making the temperature in the unventilated room well over 100 degrees. The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his hair out throughout the night. On another occasion, not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor. If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime—Pol Pot or others— that had no concern for human beings. Sadly, that is not the case. This was the action of Americans in the treatment of their prisoners. The PRESIDING OFFICER. The Senator’s time has expired. Mr. DURBIN. Mr. President, I ask unanimous consent for 3 additional minutes. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. DURBIN. It is not too late. I hope we will learn from history. I hope we will change course. The President could declare the United States will apply the Geneva Conventions to the war on terrorism. He could declare, as he should, that the United States will not, under any circumstances, subject any detainee to torture, or cruel, inhuman, or degrading treatment. The administration could give all detainees a meaningful opportunity to challenge their detention before a neutral decisionmaker. Such a change of course would dramatically improve our image and it would make us safer. I hope this administration will choose that course. If they do not, Congress must step in. The issue debated in the press today misses the point. The issue is not about closing Guantanamo Bay. It is not a question of the address of these prisoners. It is a question of how we treat these prisoners. To close down Guantanamo and ship these prisoners off to undisclosed locations in other countries, beyond the reach of publicity, beyond the reach of any surveillance, is to give up on the most basic and fundamental commitment to justice and fairness, a commitment we made when we signed the Geneva Convention and said the United States accepts it as the law of the land, a commitment which we have made over and over again when it comes to the issue of torture. To criticize the rest of the world for using torture and to turn a blind eye to what we are doing in this war is wrong, and it is not American. During the Civil War, President Lincoln, one of our greatest Presidents, suspended habeas corpus, which gives prisoners the right to challenge their detention. The Supreme Court stood up to the President and said prisoners have the right to judicial review even during war. Let me read what that Court said: The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions could be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism. Mr. President, those words still ring true today. The Constitution is a law for this administration, equally in war and in peace. If the Constitution could withstand the Civil War, when our Nation was literally divided against itself, surely it will withstand the war on terrorism. I yield the floor.
The controversial part, which is typically all you get when you hear discussion of this issue, is the part I've marked in bold near the end. The country flipped out when Durbin made the comparison, and the pressure was so intense that he eventually caved in. But look at the text. Here are some things that Durbin did not say: "The United States is as bad as the Nazis." "The United States is practically as bad as the Nazis." "The United States is anywhere near the realm of being at all similar in scope of amount of evil to the Nazis." What he said was, "look at these descriptions of torture acts. If you didn't know better, you'd probably think it was somebody REALLY terrible, like the Nazis, that were doing this." That's a factual claim, and it's obviously correct. Senator Durbin has apologized for using the words "Nazi" and "gulag". He has not apologized for stating that the United States government is illegally detaining people indefinitely without providing any reason, and that in some cases, those people are left chained in fetal position in their own feces, without food or water, in temperatures above 100 degrees, for over twenty-four hours. It is absolutely scandalous where the focus has been successfully placed.


  1. The abuse Sen. Durbin refers to should be and is being condemned. It is wrong, plain and simple: it does not produce the wanted intelligence results, it hurts our cause, and it is not what we stand for as a country.

    Having said that, there is a difference in kind, not just in degree, between abuse, which is what this is, and torture, which is what this is not. By inviting comparisons (which is what Sen. Durbin is doing) to the Nazis, the Gulag, and to Pol Pot, he uses the public's general lack of knowledge of history to score rhetorical points. The conditions described by the FBI agent are Bad. The public knows that the Nazis, the Gulag, and Pol Pot were Bad, but are kinda hazy on exactly why. But a knowledgeable person would not read an account of a prisoner being chained in his own filth, which is extremely unpleasant and degrading abuse, and equate that with the tearing out of fingernails and fetuses, which is torture. A knowledgeable person would not equate being in an unairconditioned room of over 100 degrees, which applies to most jails in the developing world, with shooting a shackled prisoner and witholding treatment to watch the progress of gangrene or amputating healthy limbs to learn about blood loss, which is torture. A knowledgable person would not hear a story about a person shivering in a room with the a/c on high (which, if it happened on a high school debate trip, would be called hazing), and confuse that with strapping prisoners in tanks of freezing water until they died.

    I read the quotes of the FBI agent, and while I do not condone – in fact, I condemn as ineffective, counterproductive, and wrong – the acts described, if I didn't already know that they were descriptions of the treament meted out to some prisoners in American custody, I would not believe that these were things that could only have been done by regimes capable of slaughtering millions upon millions. They sound like what they are: abuse, and while not what I expect and demand from my government, these methods (though probably not the loud rap music) could be found in many prisons and jails all across the world today.

    By mentioning the Nazis (over 11 million killed in the camps), the Gulag (a series over 400 forced labor camps that killed at least 3 million), and Pol Pot (whose Khmer Rouge wiped out nearly 1 out of 5 Cambodians in the 'Killing Fields'), Sen. Durbin did not help the cause of stopping abuse.

  2. Thanks for that comment, Joe.

    Here are some things that we can definitely agree on:

    (1) Prisoner abuse is bad.
    (2) Nazi torture is worse than the current American prisoner abuse that we know about.

    Now I think the key claim is this one:

    there is a difference in kind, not just in degree, between abuse, which is what this is, and torture, which is what this is not.

    I don't see that you've established that there's more at work here than a difference in degree. In fact, it seems very likely to me that the difference between torture and mere abuse really is exactly a difference in degree. Imagine a series of treatments gradually increasing in cruelty; at some point, the treatment would cross the vague boundry between non-torture mere abuse and torture.

    So I think that torture is a particually bad kind of abuse. What justifies the claim that it's a difference in kind?

    If there isn't a difference in kind, but merely a difference in degree, then what's wrong with making the comparison? By reminding us that what we are doing is the same *kind* of thing that these awful regimes have done, even if it isn't AS bad, I do think we're putting it in an appropriate context.