[Congressional Record: June 17, 2009 (Senate)]
[Page S6687-S6706]
Detainee Abuse Photos
Mr. GRAHAM. Mr. President, I come to the floor to acknowledge an
agreement I have reached with the majority leader and the
administration regarding the issue of detainee abuse photos. I think,
as my colleagues are well aware, there are some photos of alleged
detainee abuse that have existed for several years; more of the same,
nothing new. The President has decided to oppose their release.
The ACLU filed a lawsuit asking for these photos to be released.
General Petraeus and General Odierno are the two combat commanders, and
I ask unanimous consent that their statements be printed in the Record
following my remarks.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 1.)
Mr. GRAHAM. Mr. President, the lawsuit said if these photos are
released, our enemies will use them against our troops. These photos
will incite additional violence against men and women serving overseas
and Americans who are in theater. There is nothing new to be learned,
according to the President. I agree with that. These are more of the
same. The people involved at Abu Ghraib and other detainee abuse
allegations have been dealt with. The effect of releasing these photos
would be empowering our enemies. Every photo would become a bullet or
an IED. I wish to applaud the President for saying he opposes their
release.
The status of the lawsuit is that there is a stay on the second
circuit order that would allow the photos to be released until the
Supreme Court hears the petition of certiorari filed by the Supreme
Court.
I have been promised two things that were important to me to remove
my holds and to let the supplemental go without objection. No. 1, there
would be a freestanding vote on the Lieberman-Graham amendment, the
legislative solution to this lawsuit. The Senate has previously allowed
this legislation to become a part of the supplemental war funding bill.
It would prevent the disclosure of these photos for a 3-year period. If
the Secretary of Defense said they were harmful to our national
security interests, it could be renewed for 3 years. Senator Reid has
indicated to me that before July 8 we will have a chance to vote on
that provision as a freestanding bill, which I think will get the
Senate back on record in a timely fashion before the next court
hearing.
Secondly, I wanted to be assured by the administration that if the
Congress fails to do its part to protect these photos from being
released, the President would sign an Executive order which would
change their classification to be classified national security
documents that would be outcome determinative of the lawsuit. Rahm
Emanuel has indicated to me that the President is committed to not ever
letting these photos see the light of day, but they agree with me that
the best way to do it is for Congress to act.
So in light of that, I am going to remove my hold on the bills I have
a hold on, and I will support the supplemental. Because I think it is
very important for our soldiers, airmen, sailors, marines--anybody
deployed--civilian contractors and their families to know there is a
game plan. We are going to support General Petraeus and General Odierno
and all our combat commanders to make sure these photos never see the
light of day. I think we have a game plan that will work. It starts
with a vote in the Senate. I am urging the House to take this up as a
freestanding bill. There were 267 House Members who voted to keep our
language included in the supplemental. It was taken out. I am very
disappointed that it was taken out, but we now have a chance to start
over and get this right sooner rather than later.
With that understanding, that we are going to get a freestanding vote
on the Lieberman-Graham amendment and that the administration will do
whatever is required to make sure these photos never see the light of
day if Congress fails to act, I am going to lift my hold on all the
legislation and support the supplemental. I look forward to taking this
matter up as soon as possible.
I thank the Chair, and I yield the floor.
Exhibit 1
America's Top Generals Warn against Photo Release
declaration of general david h. petraeus, commander of the united
states central command
Endangering the Lives of U.S. Servicemen and Servicewomen
``The release of images depicting U.S. servicemen
mistreating detainees in Iraq and Afghanistan, or that could
be construed as depicting mistreatment, would likely deal a
particularly hard blow to USCENTCOM and U.S. interagency
counterinsurgency efforts in these three key nations, as well
as further endanger the lives of U.S. Soldiers, Marines,
Airmen, Sailors, civilians and contractors presently serving
there.'' (Declaration of General David H. Petraeus, para. 2,
Motion to Recall Mandate, 2nd Circuit Court of Appeals,
Docket No. 06-3140-cv)
Threaten Troops in Afghanistan
``Newly released photos depicting, or that could be
construed as depicting, abuse of detainees in U.S. military
custody in Iraq and Afghanistan would place U.S. servicemen
in Afghanistan at heightened risk and corrosively affect U.S.
relations with President Karazai's government, as well as
further erode control of the Afghanistan government in
general.'' (Declaration of General David H. Petraeus, para.
12, Motion to Recall Mandate, 2nd Circuit Court of Appeals,
Docket No. 06-3140-cv)
``An influx of foreign fighters from outside Afghanistan
and new recruits from within Afghan could materialize, as the
new photos serve as potent recruiting material to attract new
members to join the insurgency. . . . Attacks against newly-
arriving U.S. Marines and soon-to-arrive U.S. Army units in
the south, and transitioning U.S. Army units in the east,
could increase, thus further endangering the life and
physical safety of military personnel in these regions.''
(Declaration of General David H. Petraeus, para. 12, Motion
to Recall Mandate, 2nd Circuit Court of Appeals, Docket No.
06-3140-cv)
``In addition to fueling civil unrest, causing increased
targeting of U.S. and Coalition forces, and providing an
additional recruiting tool to insurgents and violent
extremist groups, the destabilizing effect on our partner
nations cannot be underestimated.'' (Declaration of General
David H. Petraeus, para. 12, Motion to Recall Mandate, 2nd
Circuit Court of Appeals, Docket No. 06-3140-cv)
Turn Back Progress in Iraq and Incite Violence
``Newly released photos depicting abuse, or that could be
construed as depicting abuse, of Iraqis in U.S. military
custody would inflame emotions across Iraq and trigger the
same motivations that prompted many young men to respond to
calls for jihad following the Abu Ghraib photo release. After
the Abu Ghraib photos were publicized in 2004, there was a
significant response to the call for jihad, with new
extremists committing themselves to violence against U.S.
forces. Al-Qaeda in Iraq (AQI) and Sunni insurgents groups
in Iraq will likely use any release of detainee abuse
images for propaganda purposes, and possibly as an
opportunity to widen the call for jihad against U.S.
forces, which could result in a near-term increase in
recruiting and attacks.'' (Declaration of General David H.
Petraeus, para. 7, Motion to Recall Mandate, 2nd Circuit
Court of Appeals, Docket No. 06-3140-cv)
Help Destabilize Pakistan
``Newly released photos depicting abuse of detainees in
U.S. military custody in Afghanistan and Iraq would
negatively affect the on-going efforts by Pakistan to counter
its internal extremist threat.'' (Declaration of General
David H. Petraeus, para. 8, Motion to Recall Mandate, 2nd
Circuit Court of Appeals, Docket No. 06-3140-cv)
declaration of general raymond t. odierno, commander of multi-national
force--iraq (MNF-I)
Release of Photos will Result in Harm to U.S. Soldiers
``The 2004 publication of detainee photos resulted in a
number of posting on internet websites. Perhaps the most
gruesome of internet reactions to the photo publication was a
video posted in May 2004 showing the decapitation murder of
U.S. contractor Nicholas Berg. A man believed to be Zarqawi
specifically made the linkage between the abuses at Abu
Ghraib and Berg's murder saying, And how does a free Muslim
sleep comfortably watching Islam being slaughtered and [its]
dignity being drained. The shameful photos are evil
humiliation for Muslim men and women in the Abu Ghraib
prison. . . . We tell you that the dignity of the Muslims at
the Abu Ghraib prison is worth the sacrifice of blood and
souls. We will send you coffin
[[Page S6692]]
after coffin and box after box slaughtered this way.''
(Declaration of General Raymond T. Odierno, para. 8, 9,
Motion to Recall Mandate, 2nd Circuit Court of Appeals,
Docket No. 06-3140-cv)
``I strongly believe the release of these photos will
endanger the lives of U.S. Soldiers, Airmen, Marines, Sailors
and civilians as well as the lives of our Iraqi partners.
Certain operating units are at particular risk of harm from
release of the photos. One example is our training teams
throughout Iraq. These are small elements of between 15 and
30 individuals who live on Iraqi-controlled installations and
thus do not have the same protections afforded to many of our
service members. In addition, as they assist our Iraqi
partners, members of such teams are regularly engaged in
small-unit patrols, making them more vulnerable to insurgent
attacks or other violence directed at U.S. forces.
Accordingly, there is good reason to conclude that the
soldiers in those teams and in similarly situated units would
face a particularly serious risk to their lives and physical
safety.'' (Declaration of General Raymond T. Odierno, 4,
Motion to Recall Mandate, 2nd Circuit Court of Appeals,
Docket No. 06-3140-cv)
``MNF-1 will likely experience an increase in security
incidents particularly aimed at U.S. personnel and facilities
following the release of the photos. Incidents of spontaneous
violence against U.S. forces, possibly including attacks from
outraged Iraqi police or army members are likely. Such
increased attacks will put U.S. forces, civilians, and Iraqi
partners at risk of being killed, injured, or kidnapped. The
photos will likely be used as a justification for adversaries
conducting retribution attacks against the U.S. for bringing
shame on Iraq.'' Declaration of General Raymond T. Odierno,
para. 11, Motion to Recall Mandate, 2nd Circuit Court of
Appeals, Docket No. 06-3140-cv)
Release of 2004 Photos Resulted in Successful Attacks Against
U.S. Forces
``The public dissemination of detainee abuse photos in 2004
likely contributed to a spike in violence in Iraq during the
third quarter of 2004 as foreign fighters and domestic
insurgents were drawn to Iraq to train and fight. Attacks on
C[oalition] F[orces] increased from around 700 in March 2004
to 1800 in May (after the photographs were broadcast and
published) and 2800 in August 2004. Attacks on C[oalition]
F[orces] did not subside to March 2004 levels until June
2008. These increased attacks resulted in the death of
Coalition Forces, Iraqi forces, and civilians.'' (Declaration
of General Raymond T. Odierno, Motion to Recall Mandate,
para. 7, 2nd Circuit Court of Appeals, Docket No. 06-3140-cv)
Increase Recruitment for Extremist Organizations and Incite
Attacks
``I believe these images will be used to inflame outrage against the
U.S. and be used by terrorist organizations to recruit new members. The
release of the photos will likely incite Muslim idealists to join the
cause to seek retribution for the dishonor they may perceive to have
been brought against all Muslims by the U.S. inside Iraq, the publicity
over the images could incite additional attacks on U.S. personnel by
members of the Iraq Security Forces.'' (Declaration of General Raymond
T. Odierno, Motion to Recall Mandate, para. 16, 2nd Circuit Court of
Appeals, Docket No. 06-3140-cv)
The ACTING PRESIDENT pro tempore. The Senator from Utah.
[...]
[Congressional Record: June 17, 2009 (Senate)]
[Page S6742]
DETAINEE PHOTOGRAPHIC RECORDS PROTECTION ACT OF 2009
Mr. REID. Mr. President, I ask unanimous consent the Senate proceed
to the immediate consideration of S. 1285.
The PRESIDING OFFICER. The clerk will report the bill by title.
A bill (S. 1285) to provide that certain photographic
records relating to the treatment of any individual engaged,
captured, or detained after September 11, 2001, by the Armed
Forces of the United States in operations outside the United
States shall not be subject to disclosure under section 552
of title 5, United States Code (commonly referred to as the
Freedom of Information Act), to amend section 552(b)(3) of
title 5, United States Code (commonly referred to as the
Freedom of Information Act), to provide that statutory
exemptions to the disclosure requirements of that Act shall
specifically cite to the provision of that Act authorizing
such exemptions, to ensure an open and deliberative process
in Congress by providing for related legislative proposals to
explicitly state such required citations, and for other
purposes.
There being no objection, the Senate proceeded to consider the bill.
Mr. REID. I ask unanimous consent the bill be read a third time,
passed, the motion to reconsider be laid on the table, and any
statements be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The bill (S. 1285) was ordered to be engrossed for a third reading,
was read the third time, and passed, as follows:
S. 1285
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. DETAINEE PHOTOGRAPHIC RECORDS PROTECTION.
(a) Short Title.--This section may be cited as the
``Detainee Photographic Records Protection Act of 2009''.
(b) Definitions.--In this section:
(1) Covered record.--The term ``covered record'' means any
record--
(A) that is a photograph that--
(i) was taken during the period beginning on September 11,
2001, through January 22, 2009; and
(ii) relates to the treatment of individuals engaged,
captured, or detained after September 11, 2001, by the Armed
Forces of the United States in operations outside of the
United States; and
(B) for which a certification by the Secretary of Defense
under subsection (c) is in effect.
(2) Photograph.--The term ``photograph'' encompasses all
photographic images, whether originals or copies, including
still photographs, negatives, digital images, films, video
tapes, and motion pictures.
(c) Certification.--
(1) In general.--For any photograph described under
subsection (b)(1)(A), the Secretary of Defense shall certify,
if the Secretary of Defense, in consultation with the
Chairman of the Joint Chiefs of Staff, determines that the
disclosure of that photograph would endanger --
(A) citizens of the United States; or
(B) members of the Armed Forces or employees of the United
States Government deployed outside the United States.
(2) Certification expiration.--A certification submitted
under paragraph (1) and a renewal of a certification
submitted under paragraph (3) shall expire 3 years after the
date on which the certification or renewal, as the case may
be, is submitted to the President.
(3) Certification renewal.--The Secretary of Defense may
submit to the President--
(A) a renewal of a certification in accordance with
paragraph (1) at any time; and
(B) more than 1 renewal of a certification.
(4) Notice to congress.--A timely notice of the Secretary's
certification shall be submitted to Congress.
(d) Nondisclosure of Detainee Records.--A covered record
shall not be subject to--
(1) disclosure under section 552 of title 5, United States
Code (commonly referred to as the Freedom of Information
Act); or
(2) disclosure under any proceeding under that section.
(e) Rule of Construction.--Nothing in this section shall be
construed to preclude the voluntary disclosure of a covered
record.
(f) Effective Date.--This section shall take effect on the
date of enactment of this Act and apply to any photograph
created before, on, or after that date that is a covered
record.
SEC. 2. OPEN FREEDOM OF INFORMATION ACT.
(a) Short Title.--This section may be cited as the ``OPEN
FOIA Act of 2009''.
(b) Specific Citations in Statutory Exemptions.--Section
552(b) of title 5, United States Code, is amended by striking
paragraph (3) and inserting the following:
``(3) specifically exempted from disclosure by statute
(other than section 552b of this title), if that statute--
``(A)(i) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the
issue; or
``(ii) establishes particular criteria for withholding or
refers to particular types of matters to be withheld; and
``(B) if enacted after the date of enactment of the OPEN
FOIA Act of 2009, specifically cites to this paragraph.''.
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