Transcript of Conference Call With Senior Administration Officials on the Executive Order Interpreting Common Article Three

WASHINGTON, July 20 /PRNewswire-USNewswire/ -- The following is being issued by the U.S. Department of Justice:

WASHINGTON, DC

2:55 P.M. EDT

MR. ROEHRKASSE: Thank you very much. Thank you for joining us today. This is Brian Roehrkasse at the Department of Justice Office of Public Affairs.

This afternoon the President signed an executive order that interprets for the United States Common Article Three, the Geneva Convention as authorized by the Military Commissions Act. The purpose of this call is to provide additional background information related to this executive order.

With me are Senior Administration Official One and Senior Administration Official Two. Any information on this call can be attributed to a senior administration official since this call will be on background. With that I would like to turn it over to our first senior administration official.

SENIOR ADMINISTRATION OFFICIAL ONE: Thank you. I will just briefly describe the executive order and what it does and put a little context into what the President has done today to provide a little background to it. And I'll try to be brief and then we will turn it over for questions. And I'm sure you have some and we'd be happy to take your questions.

This is the executive order that culminates the process that started with the Military Commissions Act last fall and these are the provisions of the act that were enacted by Congress in response to the Supreme Court's decision in Hamdan, the Hamdan case, which decided that Common Article Three of the Geneva Convention applies to our armed conflict with al Qaeda.

That raised questions that needed, in the President's estimation, resolution, questions about what some of the terms in Common Article Three mean and how they will be applied in this novel context of an armed consulate with international terrorist organizations. And that has particular import for the ability of the Central Intelligence Agency to continue forward with a very important program of detention and interrogation that was described by the President last September.

Congress gave the President the ability to do that in the Military Commissions Act by defining a list of specified and serious offenses, which would be war crimes -- those are the greatest breaches in violation of Common Article Three. And then with respect to the remaining meaning of Common Article Three Congress made it clear that the Detainee Treatment Act standard preventing cruel, inhuman or degrading treatment as defined by reference to U.S. Constitutional standards would constitute a violation of Common Article Three. A breach of the Detainee Treatment Act standard would be a violation of Common Article Three.

And then in addition Congress gave the President -- expressly recognized that the President has authority on behalf of the United States to give authoritative interpretations of the meaning and applications of the Geneva Conventions including Common Article Three, and that he could do so through an executive order that would be published and that would be authoritative as a matter of law. And that's what this executive order does. It's an executive order that interprets the meaning and application of Common Article Three and specifically it determines how Common Article Three is going to be applied to a program of detention and interrogation operated by the Central Intelligence Agency.

It's important to point out that as the executive order makes clear, we are talking -- when we're talking about al Qaeda detainees and those who are fighting on behalf of al Qaeda, that we're talking about unlawful enemy combatants. The standards of Common Article Three and the standards that are set forth in the executive order are not ones that apply to traditional prisoners of war or POWs who are entitled to more protective status under the Geneva Convention.

Number two, this is an executive order that specifically addresses the program operated by the Central Intelligence Agency. It is not intended to supersede the procedures or standards that apply to the military under the Department of Defense's Army Field Manual, something that was also required by the Detainee Treatment Act. The military must operate in all respects according to the Army Field Manual and of course that is a standard and a set of safeguards and procedures which -- far above the baseline standard set by Common Article Three.

We like to refer to the Army Field Manual as the gold standard in terms of how prisoners and detainees will be treated, and that's what the military operates under. This particular executive order is addressing the CIA program. The core of the executive order is Section Three. That's the section that sets for the substantive and procedural requirements that must be met before a program of detention and interrogation run by the CIA will be determined by the President to be compliant with Common Article Three.

It makes it clear that the standards and requirements of the section must be applied with respect to detainees in the program without adverse distinction as to their race, color, religion or faith, sex, birth or wealth. That's a requirement of Common Article Three for humane treatment. Also it sets forth a list of prohibitions. These are acts or conduct that are absolutely prohibited for the CIA program, and they are clearly set forth in Section 3B1. And they include torture as defined under federal law. They include each of the war crimes offenses under the War Crimes Act that were defined by Congress in the Military Commissions Act to be those serious or grave breaches of Common Article Three.

They include other acts of violence serious enough to be considered comparable to those very serious offenses listed in Common Article Three. They include any violation of the Detainee Treatment Act standard, the cruel, inhuman or degrading treatment prohibition. They also include a general provision on willful and outrageous acts of personal abuse, which is a provision intended to fill out and emphasize the serious nature of the meaning of provisions in Common Article Three including the outrages upon personal dignity provision of Common Article Three. They also include a prohibition on acts intended to denigrate the religion, religious practices or religious objects of the individual.

Furthermore, Section B2 of Section Three makes it clear that the conditions of confinement and the interrogation practices are limited to use with alien detainees who are determined by the director of the CIA to be fighting on behalf of al Qaeda and likely to be in possession of the most vital intelligence needed for national security, including intelligence about potential attacks from the United States and intelligence about the location or possible location of the senior leadership of al Qaeda, the Taliban, et cetera.

And then it also determines -- it also requires that all the interrogation practices for use in the program must be determined by the director of the CIA based on professional advice to be safe for use with each detainee with whom they are used. And again, that is specific to each detainee with whom they are used.

Furthermore, it requires that all detainees in the program receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold and essential medical care. These are the basic components of humane treatment as referenced in various provisions of the Geneva Convention.

Then subsection 3C sets forth the administrative and procedural requirements that apply to the program, makes it clear that the director of the CIA must issue written policies to govern the program, including guidelines for personnel operating in the program. And these are guidelines and policies that ensure compliance with all applicable legal requirements and more over require safe and professional operation of the program, the development of an approved plan of interrogation that is tailored to each detainee in the program, appropriate training for interrogators and all personnel operating the program, and effective monitoring for oversight of the program including with respect to medical matters to ensure the safety of those in the program and then to ensure compliance with all applicable law and this executive order.

It assigns to the director of national intelligence the function of the President under Section 63 of the Military Commissions Act to ensure compliance with the detainee treatment act. So that's the outline of the order. This order in the President's estimation will do what he said what top priority in our approach to the Military Commissions Act, which is to make it certain and clear and lawful for the Central Intelligence Agency to go forward with its very important program of detention and interrogation.

So with that we'd be happy to answer any questions you may have.

QUESTION: Hi, I was wondering whether you can say whether waterboarding would be prohibited under this criteria or not?

SENIOR ADMINISTRATION OFFICIAL ONE: I'm not in a position to talk about any specific interrogation practices, and I think the President has made it clear from the beginning of the debate here that it's really impossible for us consistent with the objectives of such a program to publicize to the enemy what practices may be on the table, what practices may be off the table, and that that will only allow al Qaeda to train against those that they know are on or off.

What I will say however, and this goes for anything under this order as I think the order makes abundantly clear, anything that would be done in the program would have to satisfy all of the requirements that I just enumerated and would have to comply with all of those statutes. If any particular practice like the one you described would not meet any of those standards it would not be allowed in the program.

QUESTION: Yes, I have really two. One is did any specific interrogation or detention practices change either in immediate anticipation of the order or will any change now as a result of it? And the order refers to the CIA detention and interrogation program in the present tense. Could you say how many detainees this is going to apply to today?

SENIOR ADMINISTRATION OFFICIAL ONE: I really can't answer those questions. Again, I don't think we want to signal what changes if any may have happened to the program because that would involve talking about what the capabilities and content of the program may have been or what it may be in the future. I will say that this has taken a while, as you know, to come out. It has been the subject of extensive internal discussion and interagency consultation within the executive branch. And all aspects of it and all aspects of the matters it addresses have been subject of those. And so it has been very thoroughly vetted and considered.

QUESTION: And you -- what I really asked was did any change, not how did they change or what specifically changed. You're not in a position to even say that broadly speaking interrogation or retention practices changed as a result of this order?

SENIOR ADMINISTRATION OFFICIAL ONE: I think I'm probably not in a position to talk about that. Others may be, but I think I'm probably best in position to talk about the order itself and the legal framework that it addresses.

QUESTION: Hi. I have a couple quick questions. One is in the provision that talks about how the detainees ought to receive the basic necessities of life, there's food and water, shelter from elements, and so forth, is there a reason that sleep is not included in that category? Can you say, regarding protection from extremes of heat and cold how someone would define what constitutes an extreme?

SENIOR ADMINISTRATION OFFICIAL ONE: I think these are standards and terms that are traditionally used in the Geneva conventions and consistently applied. And each of them would -- the term like extremes of heat and cold I think would be given a reasonable interpretation based on circumstances. But I think it's intended to be clear that we're not talking about forcibly induced hypothermia or any use of extreme temperatures as a practice in a program like this. And so I think that is intended to be clear.

And as to sleep, that's not something that is traditionally enumerated in the Geneva Convention provisions. And beyond that I'm not in a position to comment about particular --

QUESTION: Could you also just though briefly talk about how and which offices were involved in the production of this document? Was this something that was mainly done by the Office of Legal Counsel at the Justice Department ? Was this done in conjunction with the input from the CIA, General Counsel's office?

SENIOR ADMINISTRATION OFFICIAL ONE: I'm really not in a position to elaborate in detail on the internal process that led to this order. I will say this is an executive order that was done under the leadership of the National Security Council and it was the product of an interagency process. So input was provided from various interested departments and agencies.

QUESTION: Yes, hi. I was -- the only thing that I'm not clear is -- can you tell us whether or not the past practices under the program, the CIA program -- would those past practices have in any way abided by these guidelines as well? I mean -- you know, I mean I guess this -- I don't know if this is those two questions that you guys can't answer right now. But what we're trying to figure out is was what the CIA was doing under the previous program falling under these guidelines already and this is just a formality? What changes here?

SENIOR ADMINISTRATION OFFICIAL ONE: Well, as I explained I can't talk about practices in the program, past, present -- I know you can't talk about specific programs, but --

QUESTION: I understand.

SENIOR ADMINISTRATION OFFICIAL ONE: But I can talk about evolution in the legal regime. And there have been various changes in the applicable legal regime over time including the enactment of this Detainee Treatment Act in December of 2005, which specified by statute that the cruel, inhumane and degrading treatment standard that the United States applies under Article 16 of the convention against torture -- and that's a standard that has content by reference to our Constitutional standards, that that requirement or that standard applies to detainees regardless of nationality or regardless of where they are held.

And that applied that standard then to -- gave it a broader scope than it previously had. So that creates in relevant respects a new legal standard. Then the Supreme Court's decision in the Hamdan case, which pronounced that Common Article Three applies and has relevance to the treatment of al Qaeda detainees in this armed conflict, introduced yet another standard. This time a standard of international law that has been given various interpretations by international tribunals and introduced a requirement to understand and give content to that standard and determine how it would be applied.

That's not a standard that had been previously addressed because the President had determined back in 2002 that this was an international conflict with al Qaeda and therefore that Common Article Three did not have application. So that entered into the new standard that required consideration of compliance with that new standard, and there had never been a requirement to consider that standard previously given the President's determination. And I would just finally say that the Hamdan decision introduced another issue, and that was the fact that under the state of the law as it was last year, any violation of Common Article Three was a war crime that under U.S. law -- a felony offense. And so any question about what the meaning is of the terms in Common Article Three and how it might govern in a particular set of circumstances would potentially subject those who are handling detainees to the prospects of potential criminal liability for any, any violation of Common Article Three of any kind.

And so that was the issue that -- I think as the President made clear, under that cloud of uncertainty there would be no program of detention interrogation operated by the CIA that could effectively or practically go forward.

We had proposed a solution to the question of Common Article Three, and the proposal that the administration had made was for Congress to declare by statute that compliance with the detainee treatment standards, the cruel, inhumane or degrading treatment standards, was satisfied with -- obligations under Common Article Three. Congress did not go that route and chose instead to give the President the authority that he has now exercised in this executive order.

So with this executive order we now have in place the basic general terms and standards under which such a program will need to operate to ensure that it is compliant with Common Article Three and to bring that certainty and definition so that such a program can go forward.

QUESTION: Hello. I wonder if you can tell me, you had mentioned several times the Army Field Manual. It says very specifically what you cannot do, and I wondered if you could talk a little bit even in general terms about how these guidelines are different from what it says in the Army Field Manual. Does this go beyond it? Does it specify what you can do or does it specify -- does it incorporate the things you can't do from the Army Field Manual?

And secondly the Senate Intelligence Committee last spring said that it wanted to see the actual legal opinion and the review that you folks had done and I wonder how you're going to respond to that.

SENIOR ADMINISTRATION OFFICIAL ONE: Well, I'll take the second question first. General Hayden at the CIA and the administration will be fully briefing and actually have been fully briefing the intelligence committee on the program that this executive order addresses, and so there will be full briefings of the intelligence committees. I'm not going to go into detail about exactly what that might include, but certainly they will be briefed on the legal basis as well as the particulars.

As to the first question, I think it's a very important question. This document and these standards are wholly separate from the Army Field Manual, and they really have a different approach and a different structure. It's appropriate in the Army field manual to list and specify precisely interrogation practices that are permitted. So all the interrogation practices that are permitted in the Department of Defense for use with detainees who are in the control or custody of the Department of Defense are specified in Army Field Manual. And it's by policy members of the military are not -- or anyone interrogating persons held in the custody or control of Department of Defense are not allowed to go beyond those clearly specified practices.

Moreover it also reinforces that by specifying by policy and directives clear prohibitions on what kinds of practices are not allowed, and in fact, in some respects as you note, with great specificity. For a program that remains a classified program of secret detention and interrogation for these, the most dangerous terrorists with vital intelligence, it's determined that it's not consistent with the intelligence value of the program to publicize for those terrorists what techniques are approved from the program and what specific techniques are prohibited for the program.

So the approach or the structure that this order takes is different from the Army Field Manual. It specifies a list of enumerated requirements, both substantive and procedural that need to be met and if all of them -- requires that all of them be satisfied. If all of them are satisfied then the President is determining that the program comply with the Geneva Common Article Three standard.

The other thing I'd say is that -- well, it does list in there some examples, some red lines which I think we can all agree are beyond the pale as some examples of that egregious conduct of personal abuse that's not allowed under the basic provisions of Common Article Three.

The last thing I say is just to underscore what I said earlier. The Army Field Manual is not intended to define that baseline standard of Common Article Three. It is intended to give very clear rules of the road for those tens of thousands of members of the military around the world who may come in contact with detainees. And those may be young members of the Armed Forces who do not have years of experience. They may not have extensive training. They may not have a lot of oversight, and therefore it's appropriate in that context to have very protective standards that are very clear and go over and above what Common Article Three would require.

Most of the standards that are addressed in the Army Field Manual, almost all, are actually intended to be appropriate for use with traditional prisoners of war under the Geneva Convention.

QUESTION: Can I just follow up? One thing that is not mentioned here is access -- ICRC access an ability to contact family members. Is that something that you feel is not part of Common Article Three?

SENIOR ADMINISTRATION OFFICIAL ONE: That's correct.

QUESTION: Hi. Real quick, I guess it's related to Olivier's question but is it accurate to say that this is something new that is -- in terms of the interrogation techniques or the CIA program or is this just more specific, laying out what the CIA program already essentially entails? What is the best way to describe this? Is there anything new that's being outlined here or is this just something that's being made public?

SENIOR ADMINISTRATION OFFICIAL ONE: It is absolutely new. It was a new development that the Supreme Court said Common Article Three applies, and this is the culmination of a process of trying to decide how it will apply and what it will mean for it to apply, precisely what the agency will need to do to ensure that it is in compliance. And that is all new. And so therefore this is a set of new standards, and I think it's very significant for the President in executive order to be ordering and directing that each of these requirements needs to be met including the general prohibitions that are set forth in here in this executive order. So to that extent I think it is a new development and a significant one.

I will say though that this is a program which I think has been described in the past, is one that has always been operated with careful oversight, with a lot of guidelines, a lot of training for interrogators and a lot of professionalism, and also a lot of selectivity in terms of who the detainees are that the agency has interest in.

So in that sense the carefulness of the program is changing, but these particular requirements and this new legal framework is new and in that sense very significant.

QUESTION: But just to clarify, beforehand, I mean obviously none of this was for public view or discussion but were those who were being interrogated before, were they already being treated by these standards, the ones that have been outlined today?

SENIOR ADMINISTRATION OFFICIAL ONE: Well, I guess I'm really not in a position to talk about actual practices in the program. I will say this is an effort to bring clarity to legal standards that we didn't know applied before the Supreme Court said they applied. So to that extent, I think that addresses that question.

QUESTION: Hello. My question, two of them -- first of all, who is going to believe this to make sure that the CIA is actually doing what the President's new rules call for?

SENIOR ADMINISTRATION OFFICIAL ONE: Well, the President expects that everybody who acts pursuant to an executive order like this will follow the requirements of the executive order. He has made it clear that the director of the Central Intelligence Agency must have written policies in place to ensure compliance, and that will include most definitely disciplinary action, removal, dismissal if anyone violates standards that are noncriminal or administrative here and certainly the potential for criminal prosecution for violations of any of the criminal provisions that are set forth here.

As well, the President has directed that the director of national intelligence, Admiral McConnell will ensure that adequate procedure is in place to achieve compliance with the Detainee Treatment Act standards. So this is a legal document. It is an authoritative document, and it does have the force of law in the sense that it will be administratively enforced. And to the extent criminal acts occur as specified in the order they would be subject to the potential for prosecution.

QUESTION: Also with this question if you were to have had the ICRC included in the new rules that would be somewhat of a backup to make sure that everything was followed, correct?

SENIOR ADMINISTRATION OFFICIAL ONE: Well, the ICRC has a particular function under the Geneva Convention, and I'm not in a position to comment on the interactions with the ICRC, but I will say that ICRC access is not required under Common Article Three. And the kind of ICRC access that is given to traditional POWs under the Geneva Convention is not the kind of access that's consistent with the intelligence objectives of a program like this.

QUESTION: If other countries are so concerned about our treatment of prisoners of war or enemy combatants wouldn't the ICRC be a party that could help quell any kind of concern that they would have?

They are -- in Common Article Three, they are part of Common Article Three, the Geneva Convention. Wouldn't that have been something to help substantially declaim -- new rules -- followed?

SENIOR ADMINISTRATION OFFICIAL ONE: The ICRC is a fundamental part of the third Geneva Convention but it's not a fundamental part of Common Article Three. Common Article Three is a baseline standard that applies for treatment of folks caught up in internal conflicts or other non-international conflicts. Obviously the ICRC is a wonderful institution and does great work and is an important part of conflict and achieving compliance with requirements under humanitarian standards. And the United States works very closely with the ICRC in all aspects of the current armed activities.

But this order and this regime are subject to very extensive internal oversight and also oversight by the intelligence committees in Congress. And we think that that is a thorough and effective set of oversights.

QUESTION: Hi. I was wondering if -- what the procedures are going to be for -- I guess on a classified basis, signing off on whether particular techniques meet these broad standards. Is the Office of Legal Counsel going to again produce a memo that says you can do x, y, z but not a, b and c? As a sort of component of this question, does OLC still take the position it took in 2002 that the Commander-and-Chief has the power to override the statutory limits in the DTA and the NCA?

SENIOR ADMINISTRATION OFFICIAL ONE: Well, as I think you know, the 2002 opinion you refer to has been withdrawn and superseded by a new opinion, and the new opinion made it clear that there is no need to address that issue. And I think this -- in that question -- and it also makes it clear that the office disagrees in fundamental respects with certain of the conclusions reached in that earlier opinion. You'll also note in this executive order, the President is commanding in clear black and white language that all of those statutory provisions be complied with in all respects, no exceptions allowed; these are absolute requirements. And that includes not just the torture statute but the war crimes provisions and also the Detainee Treatment Act standard that was enacted in December 2005 . So I don't think there's any room for doubt here.

And the CIA and the director of the CIA will take the steps necessary to put in place the guidelines and written policies to ensure compliance and will make the determinations about administrative procedures to ensure that compliance and will seek legal guidance as necessary to ensure that any practices where there's any question satisfy each of these -- each of these requirements. And that may include seeking the legal opinion of the Department of Justice.

QUESTION: Hi. Thanks very much. I just want to clarify something. I believe you said previously the program applied to detainees regardless of nationality or where they were held. That was part of the December 2005 document, I believe you said, and now it only applies to what or who?

SENIOR ADMINISTRATION OFFICIAL ONE: I'm sorry. I wasn't talking about the program. I was talking about the Detainee Treatment Act and Article 16 of the Convention against torture. Article 16 of the Convention against torture applies to individuals held in the territory of the signatory parties to the Convention. And so there's a question about whether the Article 16 standard would apply to activities conducted outside U.S. territory. There had also been questions raised in 2004 and 2005 about whether the standard in Article 16 of the Convention against torture would apply to aliens who are not U.S. persons.

The Detainee Treatment Act, enacted in December 2005 made it clear by statute that we are to provide the protections of that standard, the cruel, inhuman or degrading treatment standard, to all detainees in our custody regardless of where they are held and regardless of their nationality. That's what I was referring to is that statute and not this program and not this executive order.

QUESTION: Okay. Got you. Let me just ask one more quick one. There's been a lot inferred to make sure that these rules will make sure that CIA officers or interrogators will know the legal limits of the program. How much of a concern has this been in the past and how often were interrogators not considered to be within the limits?

SENIOR ADMINISTRATION OFFICIAL ONE: I'm really not in a position to answer that question, but as you might expect the need for certainty and clarity in an area like this, particularly a novel area in a novel armed conflict, is acute. So it's a very serious practical concern for the individuals involved in the program and the President was determined to give them that certainty and clarity. Thank you.

SOURCE U.S. Department of Justice



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