On-The-Record Briefing on the Committee Against Torture Report

(2:45 p.m. EST)

MR. CASEY: Okay. Good afternoon, everybody. Welcome to the bonus round of briefings for Friday. As you know -- we know there's been a lot of interest in the committee on Torture Report today and we have managed to get our resident expert, our legal advisor, John Bellinger to come down, talk to you for a few minutes about the report itself and take a few questions. We've prevailed upon him for the limited amount of time that he does have today, so let's try and -- he promises to keep his answers brief if you try to keep the questions brief as well.

John.

MR. BELLINGER: I think you know lawyers better than to think that lawyers can ever keep their answers brief. (Laughter.) I can see some nodding already. Okay, well thanks for coming down.

We just had a short time to look at the report. We've really only had it for a few hours and there's a lot of material in it. We, as you know, we took an extensive delegation to Geneva from all the different agencies ten days ago. We made an extremely extensive presentation. We had given them a year ago a very lengthy report on our compliance with the Convention Against Torture.

Just quickly by way of background, this is not something where we have been called before the committee to provide a report. Parties to the Convention Against Torture every four years have got to provide a periodic report and our time was up. As I said at the time, it was not a particularly auspicious time for the United States to have to be filing a periodic report before the Convention Against Torture in the aftermath of Abu Ghraib, but we take our obligations seriously and we did not shy away from going to Geneva. We filed extensive material. We had a good dialogue with the committee, answered their questions as fully as we could. And I think we got a good deal of credit from them at the time for engaging in an extensive and candid dialogue with them.

And in fact one of the things that the report that came out this morning does do is commend us for our exhaustive written responses, the dialogue that we had with them, our efforts to answer their questions. And, in fact, acknowledges that after September 11th, the United States is in a complex legal and political environment.

On the -- the downside of the ledger, we are disappointed that despite the fact that the committee acknowledges the extensive materials that we gave to them that they don't seem to have relied on the information that we gave to them in preparing their report. In many ways, it appears that the report was written without the benefit of the materials, the information that we gave them and, in fact, they seem to have ignored a good deal of the information that we did give to them. And so as a result there are numerous errors of fact, just simply things that they got wrong about what the U.S. law or practice is. We also think that there are a number of misstatements of the law as well in the report.

The committee also seems to have stretched in a number of areas to address issues that are well outside its mandate and outside the scope of the Convention Against Torture. We know these issues are out there. These are issues that you've all heard before, but we did not think that it's in the scope of this particular committee to go try to address every issue relating to detainees or Guantanomo and try to somehow squeeze it into the mandate of the Convention Against Torture. And so in a couple of areas where they have said that they think that there are issues or violations of the Convention, we think those are areas that are well outside their mandate.

So we are disappointed despite our extensive work to provide materials to them that they did not take advantage of that and that they ignored a number of the materials that we gave to them. So we'll continue to study the report. They've asked us to get back in a year to them with answers on some questions and I'm sure that we will be getting back to them in a year. We do take our obligations seriously under the Convention Against Torture. We think that we are in compliance with our obligations.

And I guess let me add one more thing that we said when we were in Geneva, which is that much has changed in the last few years. We acknowledge that there were very serious incidents of abuse. We've all seen Abu Ghraib. There have been numerous other allegations. There have been other incidents. We have investigated those. We've held people accountable. But as I said at the time, you know, clearly our record has improved over the last few years. We are endeavoring hard to address all of these issues of abuse. The Defense Department, our intelligence agencies have adopted new procedures, new training. We have the McCain amendment, so we have new laws, new procedures, more training in place and people are being held accountable for the abuses that did happen in the past.

So I'll stop there and take your questions.

Here.

QUESTION: I'm wondering if you could explain a little bit further what you feel was outside of their mandate, as you said?

MR. BELLINGER: Let me give you a couple. I think one of the most noticeable is the one that's getting a lot of the headlines, is the call to close Guantanamo. And so the committee's conclusion was that detaining persons indefinitely without charges, a, per se, violation of the Convention -- well, that's just simply legally inaccurate. There is nothing in the Convention that says anything about holding people indefinitely. I mean, this is an issue that we know is out there, but there is nothing in this Convention that says anything about holding people. So it's outside of the scope for them to be calling for the closure of Guantanamo.

This Convention has to do with torture and we have said that torture is clearly prohibited. Torture is prohibited in Guantanamo, it's prohibited anywhere in the world by any of our U.S. Government agencies holding people anywhere in the world. It's also simply wrong as a matter of law; to state that holding individuals indefinitely without charging them is wrong. In any kind of a war, you hold people indefinitely until the end of the conflict without charge. And so I think this committee is obviously stretching to address a concern that we know is out there, but really is not within the mandate of this committee.

QUESTION: Well, what about the idea that the United States is holding to a very, very narrow definition of the Convention of Torture, such as the idea that no government agency is permitted to use torture against a detainee? I mean, you're using a very narrow definition of the law. I mean, can you respond to the wider charges that the U.S. is trying to reinterpret the law or using contractors, for instance, to use cruel and inhumane methods against the detainees? I mean, can you say unequivocally that the United States or any of its contractors, agents, freelancers, what-have-you are not engaged in torture against detainees?

MR. BELLINGER: Well, we do not think that we are engaged in a crabbed reading of the law. We're aware of those allegations that are out there, but there are certain parts of the Convention that others have tried to read too expansively, but we do not think that we have taken a narrow reading of the law. These are some areas where we explained in great detail to the committee how we interpret our legal obligations and where they really have simply ignored the materials that we have given to them. But we have not tried to -- our agencies, all of them have not attempted to try to interpret their obligations narrowly so that they can get outside of the law.

And let me give you an example, because a lot of this gets to be pretty theoretical and one that we discussed in Geneva. Article 3 of the Convention is the one that applies to transfers of individuals to other countries. The Article 3, on its face, clearly applies to expulsions or returns from a country. Those are the words that are used to -- a country shall -- "A party shall not expel or return someone from its territory if there's substantial ground to believe that the individual will be tortured."

The United States has long taken the position that that applies to people expelled or returned from the United States and we're very careful about that obligation. It does not apply, though, to a transfer that takes place wholly outside of the United States, because that's not a return or an expulsion.

QUESTION: Yeah, but just to follow up, I mean, if you're talking about a transfer from a detainee in -- you know, in Afghanistan or somewhere where the U.S. has a base and has forces, or in the case of Iraq, an occupation, I mean, aren't you interpreting this as the letter of the -- you're interpreting this as the reading and the letter of the law and not the spirit of the law.

MR. BELLINGER: Well, what we do, though, is then we go beyond the letter of the law. We're not saying that we go ahead and transfer people to places where they will be tortured. There are a lot of these cases where people read the -- they don't bother to look at what the treaties say and they wish that they said certain things that they don't say. So in this case, it doesn't say that it applies to all transfers outside of a country. We scrupulously adhered to the legal obligation from transfers inside the United States, but then we go farther and applied the same standard, even though we're not required to do so, for any transfers that take place outside the United States. And you know, we recognize that there have been issues about these transfers that take place outside the United States, particularly in the aftermath of September 11th, and agencies have put in place even more strict procedures to ensure that transfers that take place solely outside the United States, even if not legally subject to Article 3, adhere to the same standard that we don't transfer someone to a country where there would be -- where they would be tortured or mistreated.

So, for example, when we have just transferred some people from Guantanamo to other countries, one reason that it has taken so long with respect to many of the transfers is not that, you know, we want to continue to have the individuals in Guantanamo, but because we need to negotiate careful assurances from the countries that we're returning them to.

MR. MCCORMACK: Saul.

QUESTION: I just want to try and understand a couple of -- get clarification on a couple of things you're saying. When you say it's prohibited, torture is prohibited by all government agencies, does that include contractors who have been contracted by government agencies? That's one thing.

And then the other thing is when you say it's prohibited, do you say it's prohibited by law or it's a legal prohibition, or is this just a policy position that you have that could change when it's convenient to change it?

MR. BELLINGER: No, it's clearly prohibited by law. We have a criminal statute that applies to torture of any individuals outside the United States, and inside the United States we have a whole array of different laws that would apply to any torture that would occur inside the United States. So the whole debate over the last nine months about torture really should never have been a debate about torture. It was a debate about lesser standards because torture has always been prohibited both by the treaty and by U.S. criminal laws.

With respect to whether it covers other people, I suppose it gets down into sort of fine, fine detail of who is acting under our control. But if someone is acting under our control, then they would be subject to the same obligations.

QUESTION: Just a follow-up on the first part, those different standards. You know, there's torture and then there's lesser degree cruel, inhumane treatment. Is that where we don't have a legal prohibition on cruel and inhumane treatment; that's just a policy position?

MR. BELLINGER: That's where we didn't have a legal obligation and, as you know, Secretary Rice said last December that we would have a policy against cruel, inhuman and degrading treatment, and then the McCain amendment also added it as a matter of law. So what we told the Convention Against Torture is that now it is prohibited for any U.S. Government agency anywhere in the world, either under the Convention or under the McCain Amendment, to subject a detainee to either torture or to cruel, inhuman and degrading treatment, so both of them, as a matter of law, applicable to all U.S. Government agencies.

QUESTION: Are contractors applicable to that?

MR. BELLINGER: It says to all U.S. Government agencies. So if a contractor were a contractor for a U.S. Government agency, then the same law would apply.

QUESTION: Is this a political finding? Are you questioning the neutrality of the -- I don't know what, the legal standing of these people?

MR. BELLINGER: Well, the --

QUESTION: Have you been jobbed? Is this a political -- is this a political report? Is it non -- is it extralegal and political?

MR. BELLINGER: Well, it doesn't have binding legal effect on us. It makes only recommendations to us. It is the recommendations of a small number of people. It is the report of a -- of this Committee who are charged with being the committee to observe implementation of the Convention Against Torture. So with that regard, we have respect for the Committee and that's why we showed up in force in Geneva to talk to them.

Now, we do think that the particular -- that the draft of this report, the language in this report, is skewed and reaches well beyond the scope and mandate of this Committee. And I don't know who the particular drafters are, but it may well involve individuals who have got particular concerns that they want to push.

QUESTION: Why would they do that? Why would they do that?

MR. BELLINGER: I couldn't comment on that.

QUESTION: Because it's an unpopular war?

MR. BELLINGER: I couldn't comment on that. I think they've clearly gone and picked a number of issues that are outside the scope of this Committee's mandate that are in the headlines and have tried to address them in this report.

In the back. In the back, and then I'll go here.

QUESTION: To follow on that. Given the fact that you say in your view they've overstretched their mandate and in your view they sort of ignored all the material that you brought and the delegation brought, is there any thought of reassessing U.S. compliance with the Convention Against Torture? I mean, the body and the treaty are pulling out of the Convention or --

MR. BELLINGER: No, none at all. Not at all. We take our obligations under the Convention Against Torture extremely seriously. We push other countries around the world to comply with their obligations and that's really one reason why when the committee overreaches and, in fact, disproportionately focuses on a small number of activities in the United States, that it really makes our job harder as a country to push the things that we want to push in the area of human rights. But we certainly would not consider pulling out of the Convention Against Torture. Certainly, it does raise questions about when we show up before the committee, prepare an enormous amount of material for them and they ignore it, whether that is, in fact, been a productive use of our time.

QUESTION: Can I ask you if you have considered any of the recommendations? For example, you enact a federal crime of torture -- I don't know if you think the McCain Amendment addresses that -- and broaden the definition of acts of psychological torture. And then they go on to the list of eradicating torture and ill treatment, clearly not believing essentially what you're telling them.

MR. BELLINGER: Right. Well, some of these things were things that we did talk about at the committee. I mean, there's been a debate not only with the United States, but with lots of countries as to whether one needs to have a specific crime of torture and this is something that they are, I think, ideologically they want countries to have a specific crime of torture.

Many of the countries in the world have lots of different criminal laws that prohibit all of the same acts and that's what the United States did. When we became party to the torture convention, we looked at all of the laws that we had on the books and we said, there's -- if anybody were tortured inside the United States, there are probably a dozen different criminal laws that they could be prosecuted under. So we didn't need to add an additional criminal law that just specific --

QUESTION: (Off-Mike.)

MR. BELLINGER: Well, that's what was added, so that was the one gap that in 1995 that was identified because most of our U.S. criminal statutes like murder or assault or other things didn't apply extraterritorially. So that was the one gap that had to be filled. So that's the one law that we have that does specifically criminalize torture as torture, as any acts outside the United States.

QUESTION: You always talk about stretching the scope of the investigation. Are you including in that the questions they had about secret prisons?

MR. BELLINGER: I think that does go beyond the scope of the -- obviously, if someone is being tortured somewhere that's within the scope. But to then get into questions and say that holding people without ICRC access is a per se violation of this Convention, there's nothing in this Convention that addresses those issues.

QUESTION: Could you give us the definition, a legal definition of the torture and the inhumane treatment and explain us what is the difference between U.S. and this committee on that?

MR. BELLINGER: We don't think that there is a difference. Torture is a term that is defined in the Convention. Much has been made by some who want to suggest that there is a difference between the definition of torture in the Convention and the definition in our U.S. criminal laws. There are some differences in wording that have to do with the intent that's required, but that really only has to do with the fact that when a country, and particularly the United States, enacts a criminal statute, in order for the criminal statute to hold up in court, it's important that there be a very specific intent requirement, that someone is not actually held guilty and accountable for violating a criminal statute unless they intended to do something.

So there were some fine word changes that were made in our U.S. criminal statute that some people have suggested we had nefarious intent, but these were changes that were made by our Senate 10 years ago and not anything -- we don't think there's a substantial difference between the Convention and the definition in our criminal laws here.

QUESTION: Just a point of clarification. In February or so, there were reports about the independent UN Rapporteurs. Is there any connection to what we're talking to now and how are they connected?

MR. BELLINGER: Good question, I gather that came up earlier today. No, they're not connected and I guess I would like to, though, say the difference in how we were treated by them. The UN Rapporteurs, which is a group of several experts -- individual experts in particular areas, one was on torture and there were several others -- we had invited them to come down to visit Guantanamo and they did not come because we would not give them individual access to the detainees because that's a job for the ICRC. They then issued a report -- and this was our real concern -- they then issued a report without -- not only not coming to Guantanamo, but without talking to any U.S. officials. So they issued an extremely one-sided report, having only talked to the ex-detainees or their lawyers, so a really very biased one-sided report.

In this case, we had a good conversation with the committee. The chairman acknowledged that we had come with a large delegation, prepared extensive materials. That's actually mentioned in the report. As I said, the committee commended us for that and we appreciate that and I think that that has been acknowledged that -- with some surprise by some that we took this exercise extremely seriously, even though it was a difficult time for the United States. We answered the questions as best we could and as candidly as we could. And I think this committee, in that regard, is different from the Rapporteurs, who never even listened to us. In this case, I am concerned that they did not take into account, despite the amount of time that we spent with them, the information that we provided to them. Let's see --

MR. CASEY: John, I think we've got time for just like, a couple more --

MR. BELLINGER: Okay, great. So I'll try to get to the people I haven't -- here and then in the back and then we'll wrap up.

QUESTION: This is a related question to a specific case. The report of the Saudis at Guantanamo who, it has been agreed, would go home, can you say, have they left yet physically and if so, can you tell us when or how or do you know?

MR. BELLINGER: Right. I don't have the information on that. The Defense Department would have to get you the information on it. The -- as you know, the Saudis have acknowledged that the negotiations were long and one of the reasons that the negotiations are long is that we do take our obligations very seriously not to transfer people even from outside the United States to another country unless we have adequate assurances that they won't be mistreated.

Sir, in the back?

QUESTION: In the case -- I guess in the events that happened yesterday where detainees were overdosing and there was a suicide attempt, what does that say about the general overall conditions in Guantanamo at this time?

MR. BELLINGER: Well, I don't have any information on that for you. I know that the Defense Department is going to be giving a briefing today, I think, at 3 o'clock. Certainly, overall, the conditions in Guantanamo have improved extensively, considerably over a four-year period of time and this is something that does tie in with this committee report overall, is that in general, we think that they have not acknowledged the substantial changes that have taken place both in our laws, in our procedures, in the conditions at Guantanamo, in training and oversight that have occurred over a four-year period of time. There has been substantial change in our operations.

QUESTION: Well, what would you say to critics, then, who say that -- you know, they have no other way of expressing themselves, that this is their way of expressing themselves?

MR. BELLINGER: Well, I don't have a comment on that, but you can ask -- because I just don't have information about that particular incident.

QUESTION: In the U.S. last year, as you said, both policy and in legal terms, things were tightened up. I guess we talk here and it sounds a little bit legalese, but in practical terms, do we now say those tightenings mean that water boarding has stopped? And when everyone debates all these different things, whether it's cruel or whether it's torture or not, do you think there should be an international law, a new definition for what's torture?

MR. BELLINGER: I don't think there needs to be a new definition -- international definition of what's torture. We have found that it's really not productive to try to get into saying -- making the legal distinctions of saying that this technique is torture, this technique is CID. We'll just not talk to specific techniques. What we have said, though, is that we comply with our obligations not to subject individuals to torture. We have a new law that we are ensuring that all agencies will comply with not to subject detainees anywhere in the world to cruel, inhuman or degrading treatment.

QUESTION: (Inaudible) water boarding?

MR. BELLINGER: Well, as you know, when we were in Geneva two weeks ago, we said that the new army field manual, when it comes out, which we expect will come out very shortly, will specifically prohibit a number of techniques. It will authorize a number of techniques and it will prohibit a number of techniques, and one of those would be water boarding.

Last one, and then we're going to go.

QUESTION: Can I follow up on that? When a lot of the accusations first started to surface, this Administration said you have to recognize that a lot of these conventions were written in a different time and there was a different enemy, this is a different kind of war and we weren't facing those kind of things in conventional wars. Is there a move underway in this Administration, if not necessarily to redefine torture but reinterpret U.S. obligations under these conditions according to the war on terrorism?

MR. BELLINGER: No, we're not trying to reinterpret our obligations under the war on terror. It is true, though, that many of these -- that the international legal framework that applies to detainees, in fact, was intended to apply to different sorts of people. The Geneva Conventions, for example, were largely intended to apply to the armies of nation-states and to people who actually followed the rules. That's why prisoner of war status under the Geneva Conventions is not just given to anybody who happens to be fighting. It specifically says that it is to the armies of a party who carry their arms openly, who follow the laws and customs of war.

So one of the dilemmas for all of our societies is when we have these legal frameworks that were intended for a different circumstance, how well do they fit the societies and the problems that we have now?

I'll just end on a last point, one of the ones that was in this Committee's report is this idea that you should not transfer an individual to a country that has a bad human rights record. This -- the Committee report here -- suggests that we need to close Guantanamo but we can't return anybody to a country with a bad human rights record. Well, most of the people in Guantanamo came from countries with bad human rights records.

So that's a very nice recommendation, but not terribly practical in an age where we've got individuals who come from countries with questionable human rights records and then come to the United States, to the United Kingdom or to train in terrorist training camps in Afghanistan. If they can't be sent back to their countries, subject to important assurances to make sure that they're not going to be mistreated, then our societies will end up being stuck with them.

So, thanks very much.

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