For Immediate Release
Office of the Press Secretary
June 22, 2004
Press Briefing by White House Counsel Judge Alberto Gonzales, Dod General Counsel William Haynes, Dod Deputy General Counsel Daniel Dell'Orto and Army Deputy Chief of Staff for Intelligence General Keith Alexander
Room 350 Eisenhower Executive Office Building
3:12 P.M. EDT
JUDGE GONZALES: I've got a fairly lengthy opening statement, but
there are some important points I need to make in order to frame our
discussion this afternoon. And I want to begin by reminding everyone
who we're fighting and what our enemy is trying to do to us, from using
airplanes to kill thousands of citizens, to using daggers to behead our
citizens. And so we must -- (inaudible) -- American citizens and
manage our solemn obligation under the law.
America today does face a different kind of enemy in al Qaeda and
its affiliates. And we face an enemy that targets innocent civilians,
and we have seen certainly graphic evidence of that in recent days. We
face an enemy that lies in the shadows, an enemy that doesn't sign
treaties, they don't wear uniforms, an enemy that owes no allegiance to
any country, they do not cherish life. An enemy that doesn't fight,
attack or plan according to accepted laws of war, in particular Geneva
Conventions.
President Bush knows his most important job is to protect this
nation. At the same time, he's made it clear, in the war against al
Qaeda and its supporters, the United States will follow its treaty
obligations and U.S. law, both of which prohibit the use of torture.
And this has been firm U.S. policy since the outset of this
administration and it remains our policy today.
We're releasing a series of documents this afternoon that highlight
the thorough deliberative process the administration used to make
policy decisions on how we wage a global war against a teacher
organization.
Now, we have been attacked by terrorists prior to September 11th --
the Khobar Towers bombing, the attack on the USS Cole, and the bombings
of our embassies in East Africa, among others -- the government had
previously dealt with these attacks as primarily a law enforcement
matter. But after September 11th, President Bush shifted our nation
from the law enforcement approach to dealing with terrorism to a
strategy that marshals all elements of national power to help fight
terrorism.
After President Bush declared that the U.S. was at war with al
Qaeda and its supporters, he made clear that our military would respond
in al Qaeda attacks. Our government had fundamental decisions to make
concerning how to apply treaties and U.S. law to an enemy that did not
wear uniform, owed no allegiance to any country, and was committed to
no treaty, and did not fight -- most importantly -- according to the
laws of war. I must tell you that these differences really imposed
legal and practical questions for policymakers trying to defend the
United States against the deadly and shadowy adversary, unlike any
enemy we've ever seen before.
Now, some questions we faced were, for example: What is the legal
status of individuals caught in this battle? How will they be
treated? To what extent can those detained be questioned to attain
information concerning possible future terrorist attacks? What are the
rules? What will our policies be?
As we debated these questions, the President made clear that he was
prepared to protect and defend the United States and its citizens, and
he would do so vigorously, but as the documents we are releasing today
show, that he would do so in a manner consistent with our nations
values and applicable law, including our treaty obligations.
You have two distinct set of documents, those that were generated
by government lawyers to explore the limits of the legal landscape as
to what the Executive Branch can do within the law and the Constitution
as an abstract matter; you also have documents that reflect the actual
decisions issued by the President and senior administration officials
directing the policies that our military would actually be obliged to
follow. So you have before you the legal theory and you have before
you the actual policy guidance that the President and his team
directed. And as these documents show, the policies ultimately adopted
by the President are more narrowly tailored than advised by his
lawyers, and are consistent with our treaty obligations, our
Constitution and our laws.
As you look through the first set, you can see lawyers trying to
think through the potential legal implications of the war on al Qaeda
and it supporters. Just as military theorists thought about new
strategies and tactics to fight terrorists, so, too, did lawyers in
looking at how this war fit into the current legal landscape.
These are tough issues, and some of the conclusions by the lawyers
you may find controversial. These opinions set forth a broad legal
framework in which the President and his team considered and ultimately
adopted more narrowly tailored policies.
Now, to the extent that some of these documents, in the context of
interrogations, explored broad legal theories, including legal theories
about the scope of the President's power as Commander-in-Chief, some of
their discussion, quite frankly, is irrelevant and unnecessary to
support any action taken by the President. The administration has made
clear before, and I will reemphasize today that the President has not
authorized, ordered or directed in any way any activity that would
transgress the standards of the torture conventions or the torture
statute, or other applicable laws.
Unnecessary, over-broad discussions in some of these memos that
address abstract legal theories, or discussions subject to
misinterpretation, but not relied upon by decision-makers are under
review, and may be replaced, if appropriate, with more concrete
guidance addressing only those issues necessary for the legal analysis
of actual practices. But I must emphasize that the analysis
underpinning the President's decisions stands and are not being
reviewed.
It's also important to note that these opinions were circulated
among lawyers and some Washington policymakers only. To my knowledge,
they never made it to the hands of soldiers in the field, nor to the
President. Now, they're interesting for lawyers to debate, and for the
public to debate what the rules should be as we try to deal with this
new threat. But, in reality, they do not reflect the policies that the
administration ultimately adopted.
The other set of documents you have consists of the President's
February 2002 directive and the memorandum issued by Secretary Rumsfeld
in the fall of 2002 and the winter of 2003. And these demonstrate
clearly the limits that the administration actually placed on treatment
and questioning of detainees in this war. These are our policies, and
they guide those in the field who are responsible for implementing
policies regarding treatment and questioning of detainees in this
conflict.
Now, there's been much confusion because of the leaks of legal
opinions concerning whether the administration in any way encouraged or
authorized torture, and what policies were actually authorized. We are
releasing these documents to highlight the policies that were, in fact,
authorized to give you insight into the great degree of care taken in
the policy-making process, and to inform the public that the policy
decisions made by the President are in keeping with the values of our
nation, our Constitution, our laws, and our treaty obligations. And we
believe the American people, when they understand the policies that
have actually been adopted to help us prevent future terrorist attacks
and save innocent lives, will understand and support what has been
done.
But if there still remains any question, let me say that the U.S.
will treat people in our custody in accordance with all U.S.
obligations including federal statutes, the U.S. Constitution and our
treaty obligations. The President has said we do not condone or commit
torture. Anyone engaged in conduct that constitutes torture will be
held accountable. The President has not directed the use of specific
interrogation techniques. There has been no presidential determination
necessity or self-defense that would allow conduct that constitutes
torture. There has been no presidential determination that
circumstances warrant the use of torture to protect the mass security
of the United States.
The President has given no order or directive that would immunize
from prosecution anyone engaged in conduct that constitutes torture.
All interrogation techniques actually authorized have been carefully
vetted, are lawful, and do not constitute torture.
Now, a few of the misinformed have asked whether the President's
February 7th determination contributed to the abuses at Abu Ghraib. We
categorically reject any connection. There are two separate legal
regimes that govern action in those arenas. In Iraq, it has always
been U.S. position that Geneva applies. From the early days of the
conflict, both the White House and the Department of Defense have been
very public and clear about that.
The President made no formal determination with respect to our
conflict in Iraq because it was automatic that Geneva would apply. Our
soldiers are trained from the first day in our service to follow the
Geneva Conventions.
Now, interrogation and detention policies in Iraq were issued by
General Sanchez in the field. They do not involve input from
Washington and are not related to legal opinions I have discussed
concerning the war against al Qaeda. The war in Iraq is covered by the
Geneva Conventions, so our policies there must meet those standards, in
addition to the torture convention. And military lawyers in the field
determine that the policies embodied in those memos comply with Geneva
Conventions.
As for the incidents at Abu Ghraib, they were not authorized and
have nothing to do with the policies contained in any of these memos.
The President has made clear that he condemns this conduct. He has
made clear that these activities are inconsistent with the specific
policy guidance. As you know, full investigations into the abuses at
Abu Ghraib are ongoing, and those engaged in this conduct will be held
accountable.
Two final points before quickly summarizing documents. First, this
briefing does not include CIA activities. I will say that all
interrogation techniques authorized for use by the Agency against the
Taliban and al Qaeda and in Iraq are lawful and do not constitute
torture. But to disclose anything more would be irresponsible during
this period of ongoing conflict.
And finally, the government is releasing an extraordinary set of
documents today, and this should not be viewed as setting any kind of
precedent. But we felt it important to set the record straight.
Additional documents may be withheld in the future for national
security and other reasons.
Now, let me very quickly just walk you through the documents. The
most important document is under Tab A, the President's February 7th
determination regarding humane treatment of al Qaeda and Taliban
detainees.
This is the only formal, written directive from the President
regarding treatment of detainees. The President determined that Geneva
does not apply with respect to our conflict with al Qaeda. Geneva
applies with respect to our conflict with the Taliban. Neither the
Taliban or al Qaeda are entitled to POW protections.
But the President also determined -- and this is quoting from the
actual document, paragraph 3; this is very important -- he said, "Of
course, our values as a nation, values that we share with many nations
in the world, call for us to treat detainees humanely, including those
who are not legally entitled to such treatment. Our nation has been,
and will continue to be, a strong supporter of Geneva and its
principles. As a matter of policy, the Armed Forces are to treat
detainees humanely, and to the extent appropriate and consistent with
military necessity, in a manner consistent with the principles of
Geneva.
Now, of course, the logic of Geneva applies to reciprocal
behavior. I agree to treat your captured soldiers in accordance with
certain standards in exchange for similar treatment. But to protect
terrorists when they ignore the law is to give incentive to continued
ignoring that law.
The President's determination is not controversial within the
Executive Branch. It is supported by various opinions from the
Department of Justice, and the legal advisor at the State Department
agrees that the President's decisions are consistent with our treaty
obligations and customary with international law.
Tab B is a memo to me from Jay Bybee, Assistant Attorney General,
regarding the application of treaties and laws to al Qaeda and Taliban
detainees. And basically, this memorandum provides the advise
concerning the application of Geneva Conventions and formed sort of the
basis for the President's February 7th determination.
Tab C is a letter to the President from the Attorney General
confirming that under either two legal theories, the Taliban fighter is
not eligible for POW status under the Geneva Convention, and explains
that both theories are available for the President to act upon.
Tab D has an information paper from the Department of Defense
confirming facts relating to the legal status of Taliban forces.
Tab E is a memo to me from Jay Bybee at the Department of Justice,
entitled, "Status of Taliban Forces under Article 4 of the Third Geneva
Convention," and this memo, again, provides a more detailed analysis of
the status of the Taliban forces, assuming that Geneva Convention
really applies to the conflict with them.
Now, the next set of documents are Department of Defense
determinations and related documents under Tabs F through I. I believe
all these documents had previously been provided to Congress. They've
now been declassified and are now available to the American people.
Tab F is a December 2nd action memo prepared by Secretary Rumsfeld
relating to interrogation techniques at Guantanamo during the period of
late 2002, early 2003. There is, at the end of the information under
Tab F, a summary of techniques actually authorized, and a summary of
techniques actually used.
Tab G is a January 15, 2000 decision document suspending the
December 2nd techniques.
Under Tab H is a January 2003 memo from Secretary Rumsfeld
establishing a working group to assess interrogation techniques at
Guantanamo.
Tab I is a working group report on interrogation dated April 4th, a
draft copy of which has been in the press.
Tab J, April 16 DOD memorandum regarding revised interrogation
techniques -- at Guantanamo.
Tab K is a memo to Jim Haynes from Jay Bybee, Office of Legal
Counsel for the Department of Justice, regarding potential legal
constraints applicable to interrogation of persons captured by U.S.
Armed Forces in Afghanistan. This memo addresses a narrow set of
questions raised by DOD related to the application of Miranda warnings,
and the 6th Amendment right to counsel for interrogations. So we were
concerned about whether or not we need to respect the Miranda rights
and the 6th Amendment right to counsel in Guantanamo. And we sought
legal guidance with respect to that.
Tab L is a letter to me from John Yoo addressing two issues,
whether or not comment that violates the standard of torture convention
might, nevertheless, violate -- that does not violate the standard of
torture convention might, nevertheless, violate the torture prohibition
and the prevention against torture, and also addressed whether the
International Criminal Court could assert jurisdiction over U.S.
personnel that were accused of wrongdoing in interrogations.
And finally, Tab M is an August 1 memo to me from Jay Bybee. This
was leaked sometime ago and has been the subject of substantial
discussion. And let me just make a few points about this. The
questions were posed about the torture convention and the anti-torture
statute because our values call for humane treatment. And our soldiers
need to know the limits of permissible conduct. We're going to be
aggressive in our interrogations, there's no question about that. But
always, within the requirements of applicable law.
Now, the memo was written in response to questions only about the
scope of the torture convention and the anti-torture act. There was no
request for a discussion of the pr's authority as Commander-in-Chief to
ignore existing statutes or treaties. And the questions were posed,
quite frankly, in August 2002, six months after the President's
determination about the application of Geneva to our conflict with al
Qaeda and the Taliban.
Thus that decision, the President's earlier decision, was not
affected or motivated in any way by the opinion in the August 1st
memo. The Commander-in-Chief override power discussed in the opinion
is, on its face -- on its face -- limited to our conflict with al
Qaeda. There is no indication that it applies to our conflict in
Iraq. Since the analysis is in the context of the current war against
the al Qaeda terrorist network, application with reason to Iraq would,
in my judgment, require additional analysis.
I don't want to get further into a discussion about the merits of
the opinion. I understand the Department of Justice is holding a
briefing later this afternoon to go into much greater detail about
these memos. But I want to reaffirm yet again that the United States
has very high values. We do not engage in torture. We are bound by
the convention against torture, as ratified by the United States.
Whatever broad language might be included in this legal memo, the
United States government has never authorized torture in reliance on
the argument that the convention against torture, or the torture
statute are somehow inapplicable to the current conflict. To the
contrary. All interrogation techniques authorized for use against the
Taliban and al Qaeda and in Iraq have been carefully vetted and
determined to not constitute torture under the definition provided by
Congress and the convention against torture, as ratified by the United
States.
We are a nation of rules and values. It's as simple as that. And
we are fighting this war accordingly.
And with that, I'll turn it over to Jim Haynes.
Q That's the definition on torture that you used? That's the
standard --
Q When you say, no torture, you mean --
MR. McCLELLAN: We'll come back to questions at the end. Let's let
everybody go through.
MR. HAYNES: I promise I won't spend as much time. I want to
introduce Mr. Dell'Orto in just a minute. But let me say a couple of
things echoing Judge Gonzales. One of them is, this is an
extraordinary session in a number of ways. We're providing
extraordinary amount of legal advice provided to senior decision-makers
--
Q Can you just introduce yourself?
Q Give your name, and spell your name.
MR. HAYNES: I'm sorry, I'm -- my name is William Haynes. I'm the
General Counsel of the Department of Defense.
Q Can you spell your last name?
MR. HAYNES: H-a-y-n-e-s. As I said, this is extraordinary in a
number of ways. It's extraordinary in what we're disclosing -- legal
opinions, advice to senior decision-makers, a whole lot of the
deliberative process of some of the most sensitive decision-making in
the course of conduct of a war -- two wars, as you'll see later. But
we're going to focus, for the most part, on global war on terror, in
particular, when Mr. Dell'Orto speaks, about the process by which we,
in the Defense Department decided how one should interrogate unlawful
combatants outside the United States in a conflict not governed by the
Geneva Conventions, strictly speaking, in a unique circumstance.
It's also a reflection of the extraordinary war we are in. Judge
Gonzales talked about the type of enemy we face, the type of enemy that
doesn't have armies, that doesn't have major combat vehicles and
equipment, that don't limit their targets to military targets, but
rather, do exactly the opposite. They seek to exploit the values that
we hold most dear, the values that are sacrosanct in centuries of the
kind of war, that is one should distinguish between lawful military
targets and civilian targets to protect innocent people from harm when
the terrible powers of war are unleashed.
Indeed, al Qaeda trains to that. Their manual spends -- their
training manual spends an extraordinary amount of time talking about
how to resist interrogation.
It's also a war in which one of the principal tools, for both
sides, is information, both on the side of the al Qaeda to seek to
exploit what we hold most dear, and in our case, to know what's coming
to protect the American people. So care with which the President
instructed us to treat people and in which the Secretary of Defense
employed in deciding what interrogation methods ought to be employed,
had to look at that unique circumstance. It had to consider both
values that we hold dear, standards that we wanted to uphold, as well
as the type of information that we were seeking to derive and try to
get that.
Now, as you listen to this next briefing, I'd like you to remember
a couple of things. When one talks about interrogation techniques, one
must remember that they always come in a context. They come in the
context of a governing legal regime, first off. They come in the
context of an individual who interrogates with particular
characteristics. They come in the context of the circumstances under
which somebody is questioned. They come in the context of how
techniques may be combined under certain circumstances and, of course,
the context of how they're all applied with all those in place.
But the bottom line, from the Defense Department's perspective, is
that they must be lawful. As the President has told us, they also must
be humane. The President told the Secretary of Defense that the
detainees held by the Department of Defense must be treated humanely
and consistent with military necessity, consistent with the principles
of Geneva Convention. The values that America holds dear must also be
in mind as we do that. And, of course, an important value is to
continue to protect the American people.
Now, what I'd like you to take away, you will form your own
judgment, but from Mr. Dell'Orto's briefing, who is intimately familiar
with the process that we employed in coming up with our techniques and
who has briefed a number of people on Capitol Hill, is the attention
and care with which we went about this process.
MR. DELL'ORTO: Hi, I'm Daniel J. Dell'Orto. The last name is
spelled D-e-l-l-'-O-r-t-o. I'm the Principle Deputy General Counsel of
the Department of Defense, and I report directly to Mr. Haynes.
What I want to do is talk to you about the development and
maturation of Guantanamo as a strategic intelligence center, and how
that came about. We go back to September 11th, 2001. On that day, the
existing doctrine dealing with interrogation of enemy combatants is the
Army field manual, 34-52 -- which it had several iterations, one in
1987, and the most recent one in 1992. It is designed for a Geneva
conflict, and specifically designed for the interrogation of enemy
prisoners of war, among the highest of protected parties in a
Geneva-governed conflict. And as both the Judge and Mr. Haynes have
indicated, we were dealing with an enemy on September 11th, and hence,
that did anything but act in a way that lawful combatants and armies --
professional armies had in the past.
Professional armies, whether they're constricted or volunteer, at
the end are disciplined. They fight in a disciplined way. They answer
to a chain of command, and, when they surrender and put down their arms
and are taken into custody, await the termination of hostilities so
they can go back to their farms and their shops and to their factories,
and their families.
The detainees at Guantanamo, many of them, have vowed to fight us
to their death or ours. And they vow to fight without following rules
of law, rules according to -- (inaudible) -- conflict.
And so in October of 2001, we commence active combat hostilities in
Afghanistan, and shortly thereafter, particularly as the war turns
quickly in our favor, we start to pick up combatants on the
battlefield. These are not people in uniform. They don't come with
unit rosters, manning documents, ID tags, or anything to indicate what
their ranks are, where they fit in the organization, where they stand
in the hierarchy. And so from that, you're not able to glean
immediately who they might be or who they might have -- or what they
might have in the way of information.
And so you have to sort them out. And, indeed, we sorted out more
than 10,000 in Afghanistan and reduced their number to a select few who
would make their way to Guantanamo, all enemy combatants, unlawful
combatants, and skinny down, if you will, to a number that we could
assess on the battlefield as having either significant intelligence
value or posing a continuing and significant threat to our nation. And
those select few make their way to Guantanamo for development of their
intelligence value.
We have not engaged in this type of activity -- that is strategic
intelligence-gathering -- coming from the battlefield environment in
quite some time. And so when we bring them to Guantanamo to a secure
base and begin the intelligence-gathering, we are, in essence, in
uncharted waters. So we're starting from ground zero. We have our
doctrine, and our doctrine is what we followed in the past. We
followed it in Desert Storm and in conflicts before.
And we put that doctrine to use. Now, significantly, you've got
copies of that report -- there's 52 extracts that talk about
interrogation techniques. There's nothing sacrosanct about those
techniques in terms of their exclusiveness. The commanders always have
their doctrine. And so commanders may supplement, as necessary, as
long as they've got the requisite legal review and other review that
goes along with them, and that they're implemented appropriately.
And so at Guantanamo, over time, the first detainees arriving on
11th of January, 2002, and from there on, going through the effort of
sorting them and trying to gain intelligence from them, we start a
process that matures at Guantanamo, from relatively little organization
to much greater organization through the spring and summer of 2002. By
that time, we're starting to sort who we have and get a feel for who
these guys are and where they may fit in the al Qaeda structure, the
Taliban structure.
As we come through the summer of 2002, a couple of things become
apparent: One, some of these people have been trained in
counter-interrogation techniques, resistance techniques. We have
found, by that time, on the battlefield, the al Qaeda training manual
to which Mr. Haynes alluded. In that manual is a chapter devoted to
resisting our techniques. Those techniques are published. They're
unclassified. The field manual is out on the street for anyone to look
at. And if you look at the document, the training manual, you'll see
how they go and prepare their fighters to resist our techniques.
The other thing we determined is that we've got some key people
there. Among them is a guy named al Khatani, a Saudi Arabian national
born in 1975 who was picked up on the battlefield at the
Pakistan-Afghani border in December of 2001. And we discovered and
learned during the course of this period of time that al Khatani had
taken a flight from the Toronto airport to the Orlando, Florida on the
4th of August, 2001. Waiting for him at the airport is Muhammad Atta,
one of the 9/11 hijackers. It's previously been reported that there
was a Customs agent on the ground at the airport in Orlando who found
something quite suspicious about al Khatani and, properly, turned him
away.
So al Khatani leaves the Orlando airport and makes his way back to
Afghanistan, where he's picked up in December of 2001. We have him in
Guantanamo during the summer, fall of 2002, and he is demonstrating
that he has been trained to resist our interrogation techniques.
As you may recall, in the fall of 2002, we have a spike in the
intelligence. We're coming across -- we're coming on to the first
anniversary of 9/11, and the intelligence is indicating we may very
well be threatened with another attack. Al Khatani is a person in
which -- whom we have considerable interest. He has resisted our
techniques. And so it is concluded at Guantanamo that it may be time
to inquire as to whether there may be more flexibility in the type of
techniques we use on him.
And so on the 11th of October of 2002, Guantanamo generates a
request to the Commander of Southern Command that additional techniques
beyond those in the field manual be approved for use against high-value
detainees, but most specifically, al Khatani. You have the request in
your documents.
That request makes its way up to the Commander of South Com. Part
of that request includes a multi-page, single-spaced legal review
supporting those techniques they requested -- they were in three
categories. The Commander of Southern Command, General Hill, forwards
those to the Joint Staff for review at the Pentagon on the 25th of
October of 2002. That request arrives at the Pentagon and it is
reviewed during November. And on the 2nd of December, 2002, the
Secretary of Defense approves, I think, all but three of the requested
techniques. And you'll see in your packet of information those
techniques that are requested and those that were ultimately approved.
The most severe of those approved is mild, non-injurious physical
contact -- poking, grabbing, lightly shoving.
Included in the request -- and you don't have it here because it's
classified -- is a detailed interrogation plan, as alluded to by Mr.
Haynes. It outlines the military necessity for doing this. It
outlines, in detail, the way the techniques are to be employed,
safeguards that would be employed. And, as I said, it had an
accompanying legal review.
Those techniques are put in place in early December, and not all
are approved or used. You'll also see in the chart that you have that
a subset of those approved are actually used. And so they're used in
December. During the latter stages of December, it comes to our
attention in our office, the Office of General Counsel, that there is
concern being expressed at Guantanamo about the techniques. Not clear
whether it is the techniques that are being used, the techniques that
have been requested, or somebody's speculation about a change in
techniques at Guantanamo. We're not clear on that. We do some
checking. We still can't get to ground truth on it. But in any event,
in early January, the General Counsel, determines that it may be time
to go to the Secretary and inform him of these concerns and to suggest
that perhaps we step back for a moment and conduct a more broad review
of interrogation techniques in the war on terror.
And so on the 12th of January, 2003, Mr. Haynes goes to the
Secretary of Defense and discusses this with him, who picks up the
phone
and calls General Hill and suspends the use of the category two and
the single category three technique that the Secretary had previously
approved in December of 2002. And on January 15th of 2003, the
Secretary follows that up with a written directive to General Hill to
rescind his December 2nd, 2002 memo, except where those category one
techniques, which are part of existing army doctrine.
The Secretary also directs the General Counsel to form a working
group to study the issue of interrogation techniques in the war on
terror. It's to be a multi-disciplinary group that would be comprised
of lawyers, intelligence experts who can inform the group of effective
techniques, representatives of the Joint Staff, representatives from
the office of Secretary of Defense Office of Policy. That group forms
and begins its work, pursuant to the General Counsel's directive, on
January 17th of 2003, and the Chairperson of that group is Mary Walker,
the General Counsel of the Department of the Air Force.
That group initially undertakes to complete its work in two weeks,
because, again, al Khatani is essentially on hold at that point for
gathering intelligence, and we want to get back to him. It becomes a
hotly debated issue among the group, because we are dealing with the
law, we're dealing with history, we're dealing with tradition, we're
dealing with many things that factor into the survey on what to do in a
new kind of war involving unlawful enemy combatants, one we had not
dealt with certainly in the history -- the nation's recent history.
And so the time to complete this extends beyond the end of January,
and goes through March and, ultimately -- through February/March, and
ultimately concludes on April 4th with a report to the Secretary.
The legal analysis is broad. It is informed by the DOJ Office of
Legal Counsel views on this. And again, because the Office of Legal
Counsel speaks with authority for the Executive Branch, we take pains
to ensure that that legal analysis comports with the Department of
Justice view on this issue.
It is also supplemented on the legal piece by the considerations of
the Uniform Code of Military Justice, which certainly had applicability
to the uniform services worldwide. And so that is a significant
portion of the legal analysis. It has a historical piece and
considerable policy analysis that is also part of the ultimate report.
There are conclusions in the report, and you'll see those in the
packet which you have, recommendations in the report, and a list of 35
techniques that are the result of the working group's work. They are
those techniques that the working group recommends for consideration
for approval. In the recommendations and the conclusions, you see the
sort of things that Mr. Haynes has already spoken about -- detailed
interrogation files, safeguards, legal reviews, medical care available,
things like that, to ensure that they have an orderly, organized,
structured process for dealing with interrogations.
I will say this about interrogation plans: An interrogator going
to talk to a detainee for the first time may simply go in with a very
informal plan, because all he will do is employ the direct approach.
He will sit down with him and discuss things with him. And so you may
not have a very detailed plan. As your interrogation becomes more
sophisticated, as it relies on more sophisticated techniques, that
interrogation plan becomes much more sophisticated, both in terms of
the detail and in terms of the safeguards that go along with it.
In late March, as the working group is finalizing it's report --
and there is a final draft available at that particular point in time
-- the matter of which techniques will ultimately be approved by the
Secretary is undertaken for decision. And the working group bubble
chart, if you will, that outlines the 35 techniques is presented to the
operational deputies for each of the military departments, each of the
military services, and ultimately to the chiefs for review.
Also during that time period, the Secretary, the General Counsel,
the Undersecretary for Policy, Deputy Secretary of Defense, Chairman of
the Joint Chiefs gather and they discuss their views on this. And
ultimately, from those processes come 24 techniques that the Chairman
of the Joint Chiefs of Staff recommends to the Secretary of Defense for
approval for use at Guantanamo against unlawful enemy combatants in the
war on terror -- specific to that group of people, specific to that
location, a strategic intelligent center, that by that time has matured
under General Miller's leadership to a very well-organized and
structured operation.
Several things about the Secretary's guidance. It outlines
techniques, it outlines requirements of safeguards, it outlines
requirements for notification to the Secretary for four of the 24
techniques. Interestingly, 17 of the 24 are from the existing
doctrine, and, arguably, 18 because the existing doctrine in FM34-52
actually combines two of those that are broken out in the working group
report. So either seven or six techniques are new, if you will, and
one of those had actually been in the manual -- so in some respects,
that's not even new.
The Secretary sent us his memo, which you have a copy of, to
General Hill on the 24th -- excuse me, the 16th of April, and also
directs the General he'll be briefed and that General Miller will be
briefed on the working group's efforts. Both are briefed subsequently,
and they are provided not the full 35 techniques; they are provided, by
way of the briefing, only the 24 that the Secretary approved.
The report, itself, is not distributed. It is not distributed
because, again, we have a fairly expansive legal analysis and we have a
range of techniques that go beyond what the Secretary has approved for
Guantanamo. We are not expecting, nor do we desire, nor do we intend
that that working group report its legal analysis for the full range of
techniques be exposed to the field at Guantanamo or anywhere else. The
guidance to Guantanamo is explicit, it's direct, and it circumscribed
with 24 techniques that are listed in detail. And that's where those
techniques go.
The commanders at both CENTCOM and Guantanamo are told, if you want
more than what's here, you have to come up, outline the military
necessity for those additional techniques, tell us what the techniques
are, give us the interrogation plan, give us the safeguards that are
going to be employed and the legal review that would go along with it.
And the Secretary, as I told you earlier, has told General Hill and
General Miller, for four of the techniques that I've approved, you need
to tell me before you use them, just to be on the safe side.
Interestingly, two of those four are under the existing guidance in the
manual.
And so that is the doctrine that is promulgated and then sent down
to Guantanamo. And that's as far as it goes.
What about Khatani? Did these techniques have any effect? Well,
let's see. Al-Khatani had told us when he was first captured that he
was in Afghanistan innocently, he was there to procure falcons because
he was selling -- he was an expert in falconry and he was going to sell
these falcons. He ultimately tells us that that cover story is false
when he's challenged on his inability to explain any details about
falconry. He admits that he met Osama bin Laden on several occasions.
He provides detailed information on the following people: Jose
Padilla, the dirty bomber; Richard Reid, the shoe bomber; and an
individual by the name of Adnan El Shukrijumah, otherwise known Tayar
Jafar, who, by the way, in the fall of 2002 was an individual we were
seeking based upon the threat information, and who, by the way, was one
of the six or seven people the Attorney General identified several
weeks ago when he listed the number of people in whom the Department of
Justice is interested, who may be wandering about the United States.
Al-Khatani also admitted that he knew one of the 9/11 pilots and
admitted that he had been sent to the United States by Khalid Shaykh
Muhammad. The joint task force at Guantanamo assesses that al-Khatani
was sent to the United States on August 4, 2001, to be a member of the
9/11 hijacking plot.
One last point. We talk about the structure at Guantanamo. And
while I want to make sure that I keep Guantanamo distinct from Iraq and
Abu Ghraib, two things of note. One, we were working on the working
group as we're building up to the war in Iraq. There was never any
misunderstanding or any thought that what we were doing there was going
to be used in Iraq. Everybody understood Iraq was going to be all
Geneva, all the time; what we were doing at Guantanamo was predicated
on the President's February 7, 2002 determination.
Here is a listing of what has happened by way of discipline at
Guantanamo. On September 17, 2002, a detainee threw toilet water at a
guard, who responded by attempting to spray the detainee with a water
hose. The guard was offered and accepted non-judicial punishment. He
was reduced a grade, he had a one-grade, one-rank reduction and was
restricted for several days.
On March 26, 2003, another detainee threw what was believed to be
toilet water, perhaps urine, on another guard. That guard attempted to
spray him -- actually, he did spray him with pepper spray. That guard
was offered non-judicial punishment. He declined and ultimately was
court-martialed. He was found not guilty at his court martial.
On April 10, 2003, a detainee was unruly, he was subdued. In the
course of that behavior, he bit a guard. After he was subdued, the
guard hit him with his hand-held radio. That guard was punished under
Article 15 of the Uniform Code of Military Justice, reduced in grade
and punished with extra duty for 45 days.
And those were guards. The only incident of misbehavior by an
interrogator was a female interrogator who went into the room to
interrogate a detainee, took off her uniform blouse, had her T-shirt
on, sat on the detainees lap as part of her interrogation technique,
and began to run her hands through his hair. The non-commissioned
officer who was observing the interrogation from the adjacent room
immediately went into the room, stopped the interrogation, pulled the
interrogator out and admonished her, counseled her -- she was suspended
from duties for 30 days.
Those are the incidents of misbehavior by the guards and
interrogators at Guantanamo that have been reported and that have been
dealt with. You should note that the al Qaeda training manual with
respect to resistance of interrogation techniques teaches its trainees
to report -- to claim alleged torture at virtually every turn, and
mistreatment at virtually every turn.
That completes my remarks on Guantanamo and the development of that
process. I'll introduce Lieutenant General Keith Alexander, who is the
G2, Deputy Chief of Staff for Intelligence in the United States Army,
who will talk about Iraq.
GENERAL ALEXANDER: What I'm going to do is describe how the policy
in Iraq was developed. What I want to do is take you back to the
summer of 2003, to the June-July time frame and bring you back to what
was going on in Iraq at that time.
As many of you will recall, we had just finished up operations, we
were replacing the combined force land component commander with 5th
Corps. General Sanchez was taking over. And our forces were starting
to take increased casualties. It was determined that we would set up
an operation called "Victory Bounty," which would go out and help sweep
up some of the Saddam fedayeen that we thought was causing the attacks
on our soldiers -- that we would also set up a place to interrogate the
Saddam fedayeen, and that place that was picked was Abu Ghraib.
Now, Abu Ghraib had been almost completely destroyed by the Iraqi
people after the completion of the hostilities in May. So we had at
Abu Ghraib was about 100 criminals going into this operation, and a
company of MPs. What we set there was the 519th MI Battalion, one
company of them with interrogators were sent to Abu Ghraib. They had
come out of Afghanistan at the end of December 2002 and spent most of
the war working with 5th Corps elements going up to Baghdad, and were
now set up to set up an interrogation center there at Abu Ghraib.
The officer in charge at Abu Ghraib, of interrogations, understood
the requirement to set up what she called the rules of engagement.
Those rules of engagement were a set of techniques that she would use
for her soldiers, because her soldiers had come from Europe, from
Afghanistan, from Guantanamo and from the United States, all those
various backgrounds, and she wanted to make sure that they had the
rules of engagement in their minds correct.
She got the sets of techniques that she and her deputy -- a warrant
officer interrogator -- felt were the correct sets of techniques to
use. They set that up in a memorandum with help from their battalion
commander. That memorandum went up to the 205th Middle East Brigade
and up to the combined joint task force seven. And it went between 4
and 25 August, it was looked at, at various levels. And on the 25th,
or thereabouts, two lawyers from the joint task force seven in Baghdad
came down -- one Australian, one U.S. They looked at those techniques
and said, these techniques look appropriate; what we're going to do is
take this back, have the staff judge advocate, Colonel Warren, look at
these and then send them up through the chain for approval.
On the 31st of August, General Miller comes from Guantanamo to
Baghdad, at the request of the joint staff. His mission was to help
get the most that we could out of human intelligence operations in Iraq
as a whole. We had learned a great deal in Guantanamo and we wanted to
ensure that the lessons that we had in Guantanamo were also in Iraq.
Let me give you an example of some of those lessons, something that
I think you will all understand quickly. As a reporter, as you go out
and talk to people you ask them questions. The best thing that you can
do in asking those questions is know information about those people.
How do you do that? The way that we were doing it was the interrogator
was left to come up with his analysis. The best way is to get an
analyst to go out and get the information on the people that you're
going to interrogate and help set up a plan -- something that we would
call, as an example, a tiger team, where an analyst and an interrogator
would work together and have the full power of all of our intelligence
community behind you.
It is those sorts of recommendations that General Miller would make
to the combined joint task force, to General Sanchez and others. He
went to Abu Ghraib with his team on 2 September. He had been in the
combined joint task force from 31 August and the 1st of September; they
had gotten briefings from the staff judge advocate and others, and he
had a copy of the techniques that the OIC at Abu Ghraib had
recommended.
When they went down and looked at operations at Abu Ghraib, one of
their recommendations was to better codify the techniques, make them
more transparent, make sure everybody understands them, walk through
and train your people on these techniques. That, as all have just
said, Colonel Warren understood that Iraq was under the Geneva
Convention. He taught that at the JAG school. That was clear in his
mind and is clear in the documents that will come up.
From the 4th of September on, they worked on setting up what will
become the first set of techniques that will be used in Iraq. They
come up with a draft set of documents on the 10th of September and the
first one on the 14th of September, General Sanchez signs, reflecting
that this is in lines with the Geneva Convention and sends it to his
boss, General Abizaid, asked for his concurrence, and implements that
guidance pending concurrence.
General Abizaid's folks looks at that and says, okay, we do have
some concerns on some of these, we want to start to discuss those, what
techniques you're going to approve and what ones you're going to
require approval from. They will, on the 28th, come up with a third --
the third draft, the 5th of October, a fourth draft, and on the 12th of
October, a signed copy that is the practice in effect.
I want to now just cover a couple of key points, because these
dates, I think, are important. So we have a signed set of techniques
on the 12th of October that has gone through a set of reviews with the
lawyers, the intel analysts there and others within both the combined
joint task force in Iraq and at Central Command. Those two go back and
forth and we get an approved copy.
First, the actions that took place at Abu Ghraib was not in any of
those documents that I talked about. It was reprehensible, it was
immoral, it was wrong. And that is the subject of ongoing
investigations today. I will tell you the second thing is, the dates
of the 12th of October, when we looked at the military police units
that go through there and the units that are coming in, the joint
interrogation and debriefing center will be stood up around the 20th of
September. We will transition the MP units and we will start to stand
up what's called the hard site around the 20th of September, and we'll
transition the MP units on the 1st of October from what was the 72nd to
the 372nd. The 372nd will go through a right seat ride from 1 October
to when we take over on 15 October.
That's a real quick overview of the evolution of the rules of
engagement in Iraq. Thank you.
MR. McCLELLAN: All right, we'll take questions now, and let me
just try to do this in an organized format. If whoever is asking the
question will direct it to a specific person that they want to answer
that question, that would be appreciated. Also you might let these
individuals know who you are with and what organizations and introduce
yourself, as well.
Jim, do you want to start off?
Q Yes, if I could. I think this is for you, Judge Gonzales,
I'm not sure. One, I gather what you were saying was that the
definition of torture that you referred to is the one in the torture
convention? If you could clarify that. And, two, what is the
distinction between terrorists, between the Khalid Shaykh Muhammads and
al Qaeda people we're arresting and the rest of the group? Is there a
difference in the interrogation techniques that are allowed for those
two different groups?
JUDGE GONZALES: Okay, I'll defer on second one to DOD. The
definition of torture that the administration uses is the definition
that Congress has given us in the torture statute and the reservation
of the torture convention. And that is -- that definition is a very --
I mean, Congress looked at conduct of the various leaders. The
definition that Congress used was a specific intent to inflict severe
physical or mental harm or suffering. That's the definition that
Congress has given us and that's the definition that we use.
Q If you would, as we're talking about the difference between
al Qaeda, for instance, and other people, would prolonged isolation,
for instance, be considered torture or no? And what is the difference
between al Qaeda and other sorts of people that are detained, other
detainees?
MR. HAYNES: The best answer to your question will be reflected in
the document dated April 16th from the Secretary of Defense to the
Commander of the Southern Command about how individuals detained at
Guantanamo would be interrogated. In each case, starting at the
interrogator level, there will be an evaluation of an individual
involved -- and I may even be supplementing in just a minute -- but the
individual involved, the information the interrogators believe he may
have. His particular physical circumstances, the circumstances of what
we know about him from other sources of information of prior
interrogations and the like, and there will be a specific plan
developed with input from lawyers and medical people about how best to
question, starting with the least intrusive means available. But a
plan that is very elaborate, the documents are often very (inaudible).
And depending on what techniques may be applied, will need to be
approved at various levels in the chain of command.
JUDGE GONZALES: But, Jim, let me -- didn't understand your
question. One thing that's clear, whether you're talking about in
Guantanamo and Afghanistan, the President said, we don't torture
people. And so it doesn't matter where you're at, we don't torture
people.
Q So it doesn't matter whether you're talking about Khalid
Shaykh Muhammad and Bin al-Shibh or --
JUDGE GONZALES: The President said we don't commit torture, we
don't condone torture.
MR. HAYNES: But the reason I -- and the Judge is correct to say
that, and there is no question -- no question in the chain of command
that torture is not allowed. Indeed, the President has said all
detainees held by the Department of Defense shall be treated humanely.
There is a floor below which we cannot go.
And the reason I was referring to the April 16th document is
because you will see that -- and Mr. Dell'Orto described -- the vast
majority of the techniques employed are an existing Army doctrine,
decades old, which were developed in the context of Geneva governing
conflicts for prisoners of war, which are so much more protected than
unlawful combatants in it's conflict. So there the standard --
Q Just one clarification --
MR. HAYNES: -- well below torture.
Q Just one clarification, and then I'll defer to my
colleagues. The question that I think there's a lot of confusion about
whether or not things like stress techniques and prolonged isolation,
those kinds of things are considered torture under U.S. laws and
treaties, or whether those are just more aggressive interrogation
techniques?
MR. HAYNES: Well, one of the points I tried to make earlier is
that techniques cannot be considered an isolation. Certainly, any one
technique improperly applied could, you know, produce all sorts of
undesirable consequences, including perhaps torture. But we -- the
United States is not permitted to go near that.
Q I have two questions based on the documents for Judge
Gonzales. First, in the presidential determination that (inaudible)
read us about, the President -- it's the United States Armed Forces to
treat detainees in a manner consistent with the principles of Geneva --
there's an "except" clause -- to the extent appropriate and consistent
with military necessity.
Well, why is that in there? It seems like some people could argue
that those would be appropriate exceptions -- it's a pretty broad word
-- and the "consistent with military necessity" exception could swallow
the rule.
And then the -- I didn't understand, is it the opinion of this
administration that "just as statutes that order a President to conduct
warfare in a certain manner would be unconstitutional, so, too, are
laws that seek to prevent the President from gaining the intelligence
he believes necessary to prevent attacks." Is that good law in this
administration?
JUDGE GONZALES: Terry, it's a scenario we've never even come close
to confronting. And so, you know, whether the lawyers have drawn this
box in terms of what is permitted, this President has drawn this box --
hasn't even come close. And so whether or not it's good law or not,
that's not what the President has done.
What he has done is ordered a standard of conduct that is clearly
lawful. He has not had to -- as I indicated, in terms of what he has
done or has not done, he has not exercised his Commander-in-Chief
override, he has not determined that torture is, in fact, necessary to
protect the national security of this country.
Q But, Your Honor, If I may, as his lawyer, (inaudible) -- or
the next President, whoever that might be -- might have to face that
moment. And is it incumbent on you to come up with a legal opinion on
whether or not he can?
JUDGE GONZALES: Perhaps if that hypothetical became a reality,
that would be something that I would be giving advice to the
President. But that is a hypothetical. And I know at least one
senator has said that we should never ever say that torture should
never, ever be used if it meant saving the lives of thousands of
Americans. But that is a hypothetical that we may not deal with. This
President has said we're not going to torture people.
Q Okay. How about the appropriate "military necessity"?
JUDGE GONZALES: I am not aware of -- that language was intended to
reflect the fact that as a legal matter, Geneva doesn't apply. And
there may be circumstances that conduct may be necessary, for military
necessity, to protect the troops, force protection, for example, that
might be necessary or appropriate. But I think you're focusing on the
exception and the President is very clear about the need to treat -- by
the Armed Forces, to treat detainees humanely and consistent with the
Geneva Convention and that has been their practice.
MR. HAYNES: If I may, just one follow up. The Geneva Conventions
include a number of requirements or provisions, including, for example,
that prisoners of war -- and prisoners of war are the ones that are
governed by that particular convention -- shall have access to a
canteen, musical instruments, periodic pay in Swiss francs, things of
that nature.
So that language is part of what's reflected in that. And the
"military necessity" component of it builds in the fact that -- which
is also within the Geneva Conventions -- that military necessity can
sometimes allow deviations from some of the principles, allow warfare
to be conducted in ways that might infringe on the otherwise applicable
articles of the convention that would be applicable.
Q Mr. Dell'Orto, a question for you. There seems to be in the
presentation you gave an assumption chain, if you will, having to do
with those who end up in Guantanamo, that they were selected from a
group captured in Afghanistan, therefore, there seems to be an
assumption that they're terrorists; there's an assumption that they've
been trained in techniques to avoid interrogation pressures, therefore,
if they're giving no information there's an assumption that they have
information to give and the pressure must be ramped-up.
As we've seen, there have been, I think, some very credible
accounts that there have been all kinds of mix up in people who got
brought into Guantanamo. And so how do you make the determination that
the person you've got whose not giving you information is somebody
who's trained in denying you information, versus just some guy who was
just rounded up with the usual suspects and has no business being
there?
MR. DELL'ORTO: Well, I don't accept the various premises of your
question. First, the determinations made on the battlefield are that
we have an unlawful enemy combatant. It's based upon all manner of
things that are considered -- is he carrying a weapon, who was he with
at the time he's captured. I mean, it's the traditional analysis you
go through -- that a commander in the field goes through when he picks
up a person. Is it hard in this instance because the guy may not be
wearing a uniform? It probably is.
But, still, given the fact that we go from 10,000 down to something
considerably less in number shows that there's quite a bit of care
taken to cull out, in this instance, not who is an enemy combatant
versus who isn't, but among the enemy combatants who are found on the
battlefield, who have significant intelligence value or pose a very
significant threat. So I would say, in the first instance, it's not a
presumption, it's a finding on the battlefield that you have an
unlawful enemy combatant.
Once you get him to Guantanamo, simply because he doesn't give you
a lot of information, doesn't necessarily lead you to conclude that he
has a lot more. It may be that he is a relatively -- a lower level al
Qaeda fighter, who may not have more information. But you piece all of
that together, the more people you talk to, the more linkage you
develop among these folks.
And so it may be that you never go to any additional techniques,
because you determine there's not much more information that he has.
He may, in fact, be a person, as we have had in over a hundred cases,
where we determined -- contrary to what we've done in previous
conflicts -- that we're going to release people prior to the end of
hostilities, even though we could have held him, because he is
determined to be of relatively low threat at this particular point in
time, and he has relatively low intelligence value to cause us to
retain him any longer.
And so we transfer him back to his country of origin, his home
country, either for an outright release, subject to a parole agreement
to which he agrees, so that he doesn't rejoin the fight, we hope,
and/or that he is returned to his home country for continued detention
by that country, if it has a basis to for detaining him, or for close
observation, to make sure that he doesn't leave the borders and return
to the fight somewhere.
So we don't necessarily -- we do pick up unlawful combatants, and
we screen them and get to those that we think are of particular value
for the purposes of Guantanamo, but once we get them there, if he turns
out not to have the intelligence that we thought he might, it doesn't
mean that we necessarily go to the next step in the interrogation
techniques. We may conclude that's as much as there is with him. And
so he becomes -- assuming he doesn't say, "I'm going to kill every
American I can get my hands on any time I see one" -- he doesn't pose a
particular threat, he becomes a candidate for release, as have over a
hundred of his compatriots, if you will.
Q And a quick follow. The particular al Qaeda member you
talked about, I believe there have been some published reports that he
was put through a process where he was being, you know, dunked in
water and made to believe he was going to drown. Are those reports
accurate? And is that a technique that's part of this approval?
MR. DELL'ORTO: It is not a technique that's part of this approval,
and based on everything I know, that is an absolute false report.
Q I'd like to push Judge Gonzales, if I could, just a little
bit on why you convened this today? You said it was to clear up, in
your words, much confusion. Mr. Haynes used the word "extraordinary"
to describe this session and this release several times in your
presentation. And, certainly, I've covered this White House since day
one and never seen anything like this. It is extraordinary.
(Laughter.) So, thank you, but also, is it fair to assume you think
you have an extraordinary public relations problem on your hands, is
that why you're doing this?
JUDGE GONZALES: I think -- what's your name, I'm sorry?
Q Scott Lindlaw, AP.
JUDGE GONZALES: Scott, we thought a lot about this, because we
know that all the information that we convey to you and to the world
also goes to our enemies. And that's something we had to consider
very, very carefully. On the other hand, we also felt that it was
harmful to this country, in terms of the notion that perhaps we may be
engaging in torture. That's contrary to the values of this President
and this administration. And we felt that was harmful, also.
And so weighing those considerations and the fact that,
regrettably, some of these techniques have already been leaked, and
probably are already known by the enemy, we made the decision that this
was probably the right
thing to do at this particular time.
Q And apart from public perception, Secretary Rumsfeld cited
three very concrete reasons, in terms of national security. He said
the perception of torture raised questions among American troops,
raised doubts, reduced the willingness of Iraqis and Afghans to
cooperate, and could possibly encourage torture by other countries
against American civilians, against American soldiers. Did that go in
to your calculation to do this today?
MR. McCLELLAN: Let me come back to what I said earlier in the
briefing. I think what went into our consideration was that there is a
lot of interest in the policies and the techniques that were put in
place. And so we wanted to make sure that you all have an accurate
account of the great lengths we went to, to come up with these policies
and make sure that the techniques were consistent with our policies and
with our values and with our laws. And so I think that's the context
you have to look at it in.
We also wanted to make sure that we set the record straight.
There's been a lot of reporting of bits and pieces, and this gives you
a comprehensive look at the great lengths we went to, to come up with
these techniques that are consistent with the policy the President
developed.
Q Judge Gonzales, and Mr. Haynes, if you would comment on this,
as well. Judge, I just wanted to clarify what you said in your opening
statement, that a lot of the discussion that you described is theory
and in the abstract. Did I hear you correctly to say that that was
considered to be unnecessary at a particular point? I just wanted -- I
may have that wrong. I just want to make sure I understand what it
is.
And then separate from that, I'm wondering if it's the view -- you
took great pains to say this was a very thoughtful and deliberative
process, which apparently it was. Mr. Haynes, if you would comment --
I mean, does this reflect the fact that the President may be taking an
overly narrow view of the legal options available to him, given the
fact that based on Mr. Dell'Orto's presentation, the more aggressive
interrogation techniques appear to work rather well with Mr.
al-Khatani, that maybe more aggressiveness is needed, and not less.
JUDGE GONZALES: Well, we obviously want to be as effective as we
can in our interrogations and getting information that will help this
country win the war against terrorism. But the President is very clear
that we're not going to do it in a way that jeopardizes our values, is
contrary to our values, and we're not going to engage in torture.
That's just his position.
In terms of my comment about the legal analysis, I'll give you an
example. The August 1 memo -- even though the questions presented to
the Department of Justice related to the torture convention, and
related to the torture statute and its application in this current
conflict, there was an analysis on a question that was not presented,
which was the President's constitutional authority as
Commander-in-Chief. He hasn't exercised that authority. It's
unnecessary. And so that would be one example of something that is
being looked at, and may -- the Department of Justice will make a
decision as to whether or not that's something that should continue to
remain, in their opinion.
Q I just want to follow up on Mr. Haynes' comment, as well.
Are you suggesting, Judge, that therefore it was counterproductive,
that analysis was counterproductive?
JUDGE GONZALES: No, I'm not suggesting that it was
counterproductive. As a lawyer, part of your job is to present options
to decision makers, you know? And I think that's what the Department
of Justice was doing here, was presenting options to the decision
maker. But they weren't necessary to the decision the President
ultimately made. They don't serve as the underpinnings for those
decisions.
Q If Mr. Haynes could comment on, doesn't this process of
these various meetings reflect a good deal of disagreement within this
administration about the best way to balance the values we have as a
country and this need to gather intelligence?
MR. HAYNES: I won't speak for the entire administration. I can
speak for the Defense Department, and confirm that there was a very,
very lively debate. It's what the Secretary wanted, in asking me to
convene this group, to get all the stakeholders, not just the lawyers,
because there are very important concerns that are not legal concerns.
And maybe I can use that and jump back to your first question, and if I
may, do a follow up to an earlier question.
I don't want to get too deep here, but the role of a lawyer must
not be understated or overstated. There can be a tendency to clothe
policy decisions in legal terms. And that's an overstep, overstepping
by a lawyer if he or she doesn't make that point clear. I don't mean
to say that a lawyer should step back and be very austere and discuss
only the law, but he must -- he or she must make the distinction
between what the law is and what the policy is, and in certain cases,
make recommendations -- make clear what is what.
This working group that got together included very, very good
lawyers and very, very good professionals in other fields. And they
disagreed. And you won't be surprised to hear the fact that when you
get more than one lawyer together, you sometimes get more than one
opinion. That certainly was and remains the case, particularly about
some of the aspects of the legal analysis. But I think that's healthy,
and the Secretary thinks that's healthy. And there were -- at the end
of the day, there were and remain differences of opinion on both ends
of the spectrum about what ought to be employed. So I think that
answers your question.
I'd like to briefly follow up on a question this gentleman asked
earlier, about how do you know whether you've got somebody that really
has more information or not. I'd invite you to look at some of the
other procedures that our department, the Defense Department has made
available to the public about how we look at detainees in Guantanamo.
There is so much process at Guantanamo. Judge Gonzales and Mr.
Dell'Orto talked about determinations on the battlefield about whether
somebody is an enemy combatant. There was an on the ground
determination, there was a screening that led to people coming to
Guantanamo.
There is in place, and published at DOD, additional process that
must be done. Within 90 days of arrival at Guantanamo there must be an
additional determination that somebody is an enemy combatant, and then
annually thereafter an additional determination. Everybody down there
has been through all that.
Now on top of that there are the interrogations that go on. There
are the threat assessments that go on. There are the law enforcement
evaluations that go on. There are other countries who come and
question people that go on. Just a month ago the Secretary issued some
new procedures that are to be begun as soon as this week, where a
separate official -- and it is the Secretary of the Navy who has been
designated as the deciding official -- will employ, at least annually,
for people at Guantanamo under our control, a review process in which
the detainee may present his own story to a panel of three military
officers who will review that information. That person will be
assisted by another military officer. Other departments and agencies
will be able to provide that information to those boards, and those
boards will make recommendations to the senior official, in this case
the Secretary of the Navy, who will make those determinations about
whether somebody should be released or transferred or various
purposes.
So wholly apart from the interrogators' evaluation of an
individual, there are lots of other eyes that look at these people.
Q Judge Gonzales, the presidential memorandum of February 7,
'02, was that the last time the President personally weighed-in on this
issue of treatment? And, given the atrocities we now know about, has
he expressed any interest in getting more involved going forward? And
for Mr. Dell'Orto, could you please give us a sense on the techniques
-- the new techniques that were approved -- the number or percentage of
enemy combatants who were recipients of these techniques?
JUDGE GONZALES: Ed, he weighed in as recently as this afternoon on
the issue of the treatment of detainees. On numerous occasions he's
talked publicly, and certainly privately, with his advisors about what
he expects, in terms of treatment of detainees. I mean, what he has
said -- I want people to follow the law, and that we don't torture
people, that's what he has said. That's something that he's been very,
very consistent, again as I said in my remarks, from the early days of
this administration.
MR. DELL'ORTO: I can't deal in precise numbers. I did point out
that the Secretary requires notification on four of the 24. Again, I
won't give you a precise number, but I would describe the notifications
that have come forward to date as being less than a handful; a very,
very minuscule percentage.
Q Of individuals?
MR. DELL'ORTO: Of individuals.
Q I was wondering -- I think Judge Gonzales might be the best
person to answer this question. As I recall, reading the memo that was
leaked in the Washington Post that caused all the controversy --
JUDGE GONZALES: Which memo that was leaked are you referring to?
(Laughter.)
Q One of the elements that has caused a lot of controversy was
not just the Commander-in-Chief's authority to allegedly waive it, but
the actual definition of the torture. It was criticized as a very
narrow definition. I read the memo, like, over a week ago, but there
were all sorts of things in there, like, if you didn't -- if you
weren't doing it just to make someone suffer, but for the purposes of
gathering information, maybe it wasn't torture then. It was just a
very narrow construction. And so far I've heard you say that, well, we
haven't tortured.
What's your interpretation of the congressional statute? Is it the
same one that was in the memo leaked in The Washington Post, or have
you adapted a different interpretation of that statute and treaty?
JUDGE GONZALES: I haven't looked at that memo closely recently.
So in terms of what that memo actually says, I'm not going to comment
specifically on it. I can say, as I said earlier, that the Department
of Justice is going to be giving a briefing, and so they can certainly
talk about their definition of torture. It is their analysis of
Congress' definition of torture.
And as I said earlier, and I said repeatedly, we are going to be
very aggressive in the interrogation of these detainees, because they
have information that may save American lives and the lives of our
allies. But the President has also been very, very clear about the
need to do this in a way that is consistent with our domestic and
international obligations. So I'm just going to leave it there.
Q Just to follow up, in any place -- in these other holding
facilities are you going beyond the 24 methods that the Secretary has
approved for Guantanamo, either through a special access program or
through another government agency, besides the Defense Department, or
just through ordinary Defense Department programs and other --
JUDGE GONZALES: We're not going to comment on anything beyond what
is -- accepted Department of Defense. Let me just say that throughout
the entire government, the directive is clear: no agency is to engage
in torture; every agency is expected to follow the law. As far as I'm
told, every interrogation technique that has been authorized or
approved throughout the government is lawful and does not constitute
torture.
Q On just what the Judge was saying, are we wrong to assume
then, that the CIA is not subject to these categories of interrogation
technique? For instance, if DOD -- if the military was --
JUDGE GONZALES: I'm not going to get into questions related to the
CIA.
Q But we know in certain instances that you had Agency people
along with military people, and isn't that just a convenient loophole
to allow one person to use certain techniques that are prohibited by
the other?
JUDGE GONZALES: I'm not going to get into discussions about the
CIA, except to repeat what I just said, and that is that the techniques
that they used that have been approved -- they've been approved and
vetted by the Department of Justice, are lawful and do not constitute
torture.
Q Judge, can you tell us which memos the President actually had
access to, or any one of you? I understand that he didn't have access
to all the directives -- Pentagon directives.
JUDGE GONZALES: I don't -- I can't say with certainty. I don't
believe -- with respect to Pentagon documents, I'm not -- I'd be
surprised if he had access to those. But it's possible that the
Secretary may have brought them to the President. I don't think so.
With respect to the opinions, I don't believe the President had access
to any legal opinions from the Department of Justice.
Q You just mentioned that the presidential memo and two
directives from Rumsfeld were ones that formed the policy. Can you
tell us which ones?
JUDGE GONZALES: The February 7th determination by the President
and the current policy -- the interrogation policy -- is the April 16th
directive from the Secretary of Defense.
Q Judge, I wanted to follow on what Suzanne and Ed are asking
you. I think people here are looking for more specifics about the
President's actual involvement, other than signing his name, to this
February document. Can you be more specific about how many meetings
did he engage in with you to discuss this? Did you put together a memo
yourself, because there isn't one here, that would have preceded his
signature on his own? Was there a meeting that involved the Vice
President? Can you just give us some more idea, because the President
has said we should feel comforted, but I'm not sure there's a lot of
specifics here about his interest, his personal interest.
JUDGE GONZALES: I'm not going to get into a discussion about the
internal deliberations of the White House. I can say that during this
period of time there was a great deal of debate, over a period of days,
maybe a period of a couple weeks, when the presidential determination
was made, all the agencies had actually weighed-in very strongly.
Q With the President, personally?
JUDGE GONZALES: I believe so. But the equities of all the
agencies were presented to the President, and they were before the
President as he made his decision.
Q And who did that, you?
JUDGE GONZALES: Again, I'm not going to talk about --
Q Well, wait, I'm not sure I understand, why is that a
difficult thing to discuss?
JUDGE GONZALES: It's not a difficult thing to discuss, it's just
one that I don't choose to discuss.
Q Why?
JUDGE GONZALES: I just don't.
Q Why wouldn't that be helpful?
JUDGE GONZALES: We normally don't talk about the internal
deliberations within the White House. I don't think that's
appropriate.
Q Judge Gonzales, maybe this is for you. When we're talking
about Afghanistan and the al Qaeda and Taliban detainees that Geneva
did not apply to, a variety of you have said that in Iraq it was all
Geneva all the time. It seems like that line was drawn pretty
quickly. Can you just give us a sense of why that line was drawn so
quickly, since the President, himself, talked about al Qaeda and Iraq
being allies?
MR. HAYNES: I can take a stab at answering that. The conflict in
Iraq is a conflict between two states that are parties to the Geneva
Conventions. It's a traditional war, and the conventions are clear
that they apply and that the treaties apply and that's the way the
Defense Department has operated.
Q Okay. And just a quick follow up. We hear a lot about Mr.
Zarqawi in the context of the conflict in Iraq. How, then, would he be
handled, in the context of a place where Geneva rules all the time?
JUDGE GONZALES: Very interesting question.
Q To which the answer is? (Laughter.)
MR. HAYNES: I don't want to get into providing legal opinions on
the fly. But the conflict that -- let me try to put it to approach it
this way. The Geneva Conventions govern conflicts between parties, or
internal conflicts. Our activity in Iraq, without question, was
governed by the Geneva Conventions, whether it's the 3rd (inaudible)
treatment of prisoners of war, or the 4th Geneva Convention (inaudible)
to the treatment of civilians.
Each of those -- so there's no question but that they apply in Iraq
to that conflict, period. How one deals with the conduct of the war,
given the fact that they govern, is a matter of treaty application.
And as specific circumstances arise, you have to look to the relevant
provisions of the treaty. In some cases that may be many relevant
provisions that must be considered. But as I've said, I don't want to
get into an extended --
Q When we started, Judge Gonzales said we've got to realize the
people we're dealing with here, and talked about the beheadings.
Zarqawi has been linked to the beheadings. And, Judge, you seemed then
to suggest that these -- that Geneva wouldn't apply to the people we're
talking about here, if that's in fact Zarqawi, since he's been linked
to the beheadings. So then that would seem to rule that Geneva doesn't
apply.
JUDGE GONZALES: The only thing I would add to Jim's comment is,
these are very difficult legal questions. I can say that irrespective
of whether or not we're dealing with al Qaeda in Iraq or Guantanamo or
Afghanistan, the President has said the Armed Forces are going to treat
people humanely and we're not going to engage in torture.
Q Mr. Haynes pointed out that, you know, in Iraq they had a
traditional war. But the President and the Secretary of Defense were
on television every day referring to these people as terrorists. Is it
possible that the soldiers in the field got the wrong idea about that,
and maybe were not treating them with all of the conventions that you
assumed in Washington were being applied?
JUDGE GONZALES: That may be more a question for DOD. I will say,
soldiers are trained from day one in their service to apply Geneva. I
mean, that's sort of the default position, I think, that Geneva is
going to apply.
MR. HAYNES: My first response would be not to speculate about
what's in any individual's mind.
Q Let me just finish with this. The President repeatedly
referred to these people as terrorists, which would suggest that the
principles of Geneva do not apply. In retrospect, wouldn't this be
confusing?
JUDGE GONZALES: I'm not sure why that would necessarily follow. I
disagree with that.
Q All of you talked about this -- I think, Judge, you refer to
this legal box in which the President made more (inaudible) decisions.
But you also said that those decisions and those legal analyses were
primarily or totally for Guantanamo, but not Iraq, that Iraq was not
part of that calculation. How do you reconcile that with General
Miller going from Guantanamo to Iraq and making recommendations, at
least in part based on what he was doing in Guantanamo? I'm not sure
-- I don't quite understand how that's totally separate.
MR. DELL'ORTO: Let me try to describe it. The whole notion of
Guantanamo is -- goes well beyond interrogation. And it also includes
how you structure a facility, how you merge databases, fuse databases
as you're gathering intelligence. I mean, there is much that is
technical and structural about what we have learned about Guantanamo.
And while Guantanamo has a relatively small number of people compared
to the number of detainees we're dealing with in Iraq, certainly there
are organizational concepts about Guantanamo that have relevance for
dealing with detainees in Iraq. And so there's a lot of technical
expertise that General Miller was able to bring, given a lot of success
he had at Guantanamo, acknowledged success in putting together standing
operating procedures for running a detention center and things like
that. So that's a lot of the value that he brought to Iraq.
Maybe General Alexander can add to that.
GENERAL ALEXANDER: Just let me give you the five categories that
he brought up, since he asked that question, which was, the
recommendations were on integration, how you establish a coordinating
authority for all of (inaudible) and work that together;
synchronization, how you synchronize the events that are going on; the
fusion -- and that was the one example I gave you about how you bring
an analyst in to work with the interrogations.
He did talk about interrogations, and one of the lessons that they
learned at Guantanamo, and the application of some of the techniques.
But those techniques that they used are the ones that were in the field
manual, and working those there. The fifth one was detention
operations, where the military police sergeant major from Guantanamo
talked to the military police there on how to run the facility and
train the people up to the standards, the techniques and procedures,
because that training was something that they saw as a shortfall.
Q Two things, real quick. One, some are saying, some lawmakers
are saying that in light of these prison scandals, there needs to be a
retraining of the Geneva Conventions to many of the U.S. military
police. Do you find that is something that needs to be done?
And two, why is it -- many human rights groups, international human
rights groups are very upset with the White House because they are not
-- well, with the Department of Defense, that they are not allowing
these prisoners at Guantanamo Bay to know why they're kept. What is
the reason why these prisoners are not told why they're being kept
there, as well? 5
MR. HAYNES: It surprises me that somebody would say they don't
know why they're being kept.
Q The ICRC is saying they have made that clear that you, that
this administration is not allowing them to know why they are being
kept at Guantanamo Bay.
MR. HAYNES: Without responding directly to your assertion about
what the Red Cross is saying -- not because I disagree necessarily, but
because there is an important principle about the Red Cross
relationship to countries that engage in combat that those
communications should be kept confidential -- let me answer this, or
try to address your question this way.
There are critics, without ascribing the criticism to anybody in
particular, who say that the United States is wrong in detaining people
at Guantanamo without providing them a lawyer, without arraigning them,
without guiding them -- pressing charges, and trying them for crimes.
Our view is that that is not required in warfare. For centuries,
it has been undisputed that countries at war may detain the enemy for
the duration of the hostilities. That's not incarceration for
committing crimes. That's protecting the country. And it is lawful,
and it is consistent with our tradition and consistent with the
tradition of every civilized country in the world. This is not
criminal punishment that's going on at Guantanamo. It is protecting
the American people and our allies from people who are trying to kill
us.
Now, some people think that we're wrong, we're wrongheaded in
that. They say you should either charge them with a crime; or you
should treat them as prisoners of war, as that term is detailed and I
described earlier under the conventions; or you should let them go.
Now, we think that there are other options. We're in a unique
conflict. We're in a global war on terror against people who are not
just committing crimes; they're killing Americans on a scale that
amounts to warfare. They've demonstrated that on September 11th.
They've demonstrated it in other countries with their attempts. And
they, we believe, want to continue to do that and demonstrate it even
more spectacularly.
So the President and the Secretary of Defense and those people in
the administration, and the soldiers -- the brave soldiers out there in
the world are trying to protect Americans, and they're doing it
lawfully. Some people disagree with how we're doing it.
Notwithstanding that, as I mentioned earlier, we have so much process
at Guantanamo, so much more than is required by the Geneva Conventions
-- which, by the way, to those who say that we are not complying with
the Geneva Conventions, what they point to is that we did not make a
determination under Article V of the Geneva Convention to convene a
so-called competent tribunal to resolve doubt about whether a person is
a prisoner of war. That's all the convention says. As implemented in
the United States military regulations, that means you have three
officers on a battlefield and they review the case one time, and once
they make a decision, the decision is over with.
As I pointed out to the gentleman earlier, we have required and in
place and working multiple layers of periodic review. And we have
started yet another one that it is far more generous in process given
to the detainees than anything required by the Geneva Conventions. So
I just disagree, and I think there are many others that disagree, as
well.
Q All right, wait a minute --
MR. McCLELLAN: All right, let's --
Q That didn't answer that question, though, about the Geneva
Conventions. Should the U.S. military personnel -- police, rather be
retrained on the Geneva Conventions, in light of all these prisoner
abuse scandals?
MR. HAYNES: Well, I'll say without drawing any connection between
what we've seen in training, regardless there is periodic retraining
embedded in the doctrine of the United States military. And it will be
done. Whether it's prompted by what we've seen or not, it will be
done. And that's a good thing.
MR. McCLELLAN: All right, make this the last one. Over here.
Q Is there any concern within the administration that now that
you've released these details and that al Qaeda knows the limits of
what they'll be subjected to, that it might embolden al Qaeda, given
the fact that you described them as -- they'll fight until the rest of
their lives against America?
MR. HAYNES: I think I heard your question. The Judge already
talked about the difficulty of this decision. And we're fighting a
war. And to disclose in such a public way exactly what we do, it is --
it hinders us in some way. The enemy now knows what some of the limits
are. There's some value in having some uncertainty. But the decision
is made, and sometimes you make tough decisions.
Q Would you rather it hadn't been done?
MR. HAYNES: No, actually, I don't. I think this is a good thing.
Under the circumstances, this was the right thing to do. And we'll
continue to face these kinds of things. I talked earlier about this
war. We have to look at how we fight this enemy with a fresh of set of
eyes on just about every issue. The Defense Department has dealt with
a number of things like this. It's interesting to look at the debate
associated with 9/11, and the findings of the 9/11 Commission, which is
looking at why was there a wall between those people involved in law
enforcement and those people involved in counterintelligence and
intelligence.
That wall was there for reasons that seemed very good at the time.
But it prevented information sharing. We have had to address questions
in our department on questions like data mining. In other words, how
does one look at existing databases in a way that might enable the
government to learn information about potential attacks, while at the
same time protecting many values that are extraordinarily important,
like privacy and liberty in the country.
The Secretary of Defense chartered and advisory committee over a
year ago chaired by Newt Minow, from Chicago. And had some other quite
notable scholars -- I'll leave somebody out -- but Bill Coleman and
Jack Marsh and Lloyd Cutler, and Gerhard Caspar, and Zoe Baird, and
Floyd Abrams and others -- to look at that question and advise the
Secretary. How do you look at -- how do you think about the national
security on the one hand, and privacy and liberty of American citizens
on the other hand when you're looking at information? There are lots
and lots of those kinds of questions that we have to evaluate,
oftentimes without much time to think because they come up quickly.
But there are important issues that the country has to face, and
this is one of them. I know there's some very good work going on in
academia, for example, about highly coercive interrogations is the
phrase I've heard up at Harvard. There have been people outside the
administration. Judge Gonzales mentioned a senator who spoke the other
day. These are national questions that need a lot of thought. Some of
that thought has to be done on a split-second basis by people in the
government with a lot of secrecy for very good reason. But over time,
we have to deal with those things. In my view, this one of those.
MR. McCLELLAN: And let me just add one thing. And this is a stark
contrast here because we are nation of laws, and we are a nation of
values. The terrorists follow no rules. They follow no laws. We will
wage and win this war on terrorism and defeat the terrorists. And we
will do so in a way that's consistent with our values and our laws, and
consistent with the direction the President laid out.
Thank you all very much.
END 4:55 P.M. EDT
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