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...


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.