Department of Justice Seal Department of Justice
FOR IMMEDIATE RELEASE
MONDAY, SEPTEMBER 18, 2006
WWW.USDOJ.GOV
AG
(202) 514-2007
TDD (202) 514-1888

Transcript of Attorney General Alberto R. Gonzales Briefing
with Reporters Regarding Military Commissions

MR. GONZALES: Thank you for coming. It's good to see all of you again. I just got back, got back yesterday from a couple of days of travel to South Carolina, talked about our obscenity prosecutions, then down to New York to talk about the -- taskforce and then to Kansas City, Missouri to talk about -- and our efforts to deal with child pornography. During my travels, I did have the occasion to respond to questions related to terror.

The President has been out today, as I'm sure you know, to talk about this issue, and I suspect you have some additional questions which I'm happy to respond, so why don't we just get to it.

QUESTION: The most important question for him when the legislation reaches his desk will be will this enable the important CIA program to continue? Senators McCain, Warner and Graham seem pretty intent on not allowing any evidence that comes out of coerced interrogation tactics.

So my question is, if there is a middle ground between these two positions, where do you see it? Where is the room for compromise?

MR. GONZALES: I think the President in making his remarks was focusing on Common Article 3. I think we can continue having discussions about classified information and what the procedures should be for military commissions. So I think those are viewed separately, quite frankly. I think most of his comments this morning were focused on the high standards, the clarity that the President wants to impose on our obligation under Common Article 3.

There's been some discussion about perhaps this Administration wanting to redefine our obligations under Geneva, and nothing could be further from the truth. The truth of the matter is, there's been no definition about what our obligations are under Common Article 3.

There is no baseline standard for Common Article 3. You have opinions all across the board about what certain words mean in Common Article 3. There a certain practices, such as torture, murder, maiming, certain serious offenses that are clearly prohibited that we all agree with that should be outlawed. But certain other kinds of practices, there is some serous question as to whether or not they would be permitted under Common Article 3, given the language such as outrages upon personal dignity, particularly humiliating and degrading treatment, and if you look to see how those words have been interpreted by foreign tribunals, it does create uncertain for our men and women, as the President said, who are engaged in collecting information to protect America.

And so it really is true that we are seeking clarity. We are seeking to impose a high standard, which was overwhelmingly approved by the Senate, by the Congress, last year, which is the standards under the McCain Amendment, the standard being cruel, unusual and degrading treatment would be prohibited.

And it would be that level of treatment prohibited by the Fifth, Eighth and Fourteenth Amendment of our Constitution. We think it is good to tie it to a U.S. standard to provide certainty to the men and women on the front lines asking questions, collecting information to protect America. We don't believe it should be subject to decisions by foreign courts. We think we should tie it to a U.S. standard. I think that's very, very important to provide clarity and certainty, as much clarity and certainty as we can to our men and women protecting America.

QUESTION: Could you give me an example of what types of other tactics you feel are unclear?

MR. GONZALES: What types of other tactics? What I can tell you is the kind of decisions that have been found to be degrading by the European Court of Human Rights. For example, the size of a cell. If it doesn't meet a certain size, it would constitute -- it would be degrading. The amount of light that comes into a cell might constitute degrading treatment.

QUESTION: Are you saying you disagree with that, that those things are not important, the size of the cell, the amount of light?

MR. GONZALES: Well, I think they are important, but I think that when we're talking about detention facilities, it makes sense to look at the standards, the constitutional standards imposed by our courts in terms of what is required. And that we've got decisions all across the board regarding certain standards and certain levels of treatment, and there is no baseline standard.

That's the thing I think most people don't understand, is that there is no baseline standard under Common Article 3. We want to impose a certain high standard as to what would be required. And the standard that we are requesting is the standard, again, overwhelmingly adopted by the Congress last year, which is the standard under the Detainee Treatment Act.

The other thing I think is very important to understand is that the standard that we are asking for is the same standard that the United States is subject to under the Detainee Treatment Act and under the Convention against Torture.

We think it ought to be the same standard in the way we deal with detainees, people that we have in our custody and control, should be the same under our conventions and under our international agreements. And that's all that the President is asking for. The same high standard that's been in existence for a period of time.

QUESTION: If you do change this and impose the standard, are you worried at all that U.S. troops that are detained abroad could be treated differently?

MR. GONZALES: I think that, you know, if other countries were to apply the same high standard, I think in our discussions with the career folks at, say, for example, Central Intelligence Agency, they would be quite comfortable with that standard. If we could get that level of treatment for American agents, we would view that as, again, raising the standard of treatment for folks detained around the world.

The other thing I think we need, we always need to keep in mind is that we're talking about a definition, again, not a redefinition, but a definition of a small portion of the Geneva Convention obligations. Common Article 3. We're not talking about the other many protections and provisions that exist under the Geneva Conventions. The prisoner of war protections, which would be available generally to our soldiers, because our soldiers fight under the law -- pursuant to the laws of war. They fight wearing uniforms with insignias. And so they would be afforded the protection of the prisoner of war provisions under the Geneva Convention. Those we are not in any way talking about addressing.

What we're asking for is simply providing clarity to a portion of the Geneva Conventions, Common Article 3.

QUESTION: General, what is inadequate in the existing military field manual about the standards there for cruel and inhumane treatment?

MR. GONZALES: Well, the Army field manual is a -- represents doctrine for DOD. It is guidance. It is not law. It is guidance. It is doctrine. And I think it makes sense to try to have one standard applied to the entire government. The Congress has already held that the standard of the Detainee Treatment Act applies across the board already, to both the CIA, to DOD and any other agency involved in detention and questioning. And we simply want to extend that.

We want to make it clear that we have one standard that everyone understands. The standards in the Army field manual do not apply to anyone outside the military. We've already got a standard that applies to everyone. We simply want to -- we want to use that same standard with respect to our obligations under the Geneva Conventions.

QUESTION: Do you think that the Administration would have been better served if they had sought this kind of clarity and these kinds of standards three or four years ago before Abu Ghraib, before some of the controversy over torture? What your critics of course would say is that it's the policies and memos from the White House and Justice Department that have contributed to this kind of garble as to what's allowed and what's not allowed.

MR. GONZALES: I've had many opportunities to respond to similar questions. If in fact there had been numerous instances of abuses, I would say that perhaps you would have a point. But 99.9 percent of the men and women who have engaged -- who have fought for the United States in this war on terror have understood what the rules of the road are and have complied with all of our legal obligations.

The fact that you had one shift, I think the night shift, from one cellblock at Abu Ghraib, who engaged in this horrific conduct, should not in any way be viewed as an indication that there was confusion about the legal requirements. No one else in that prison had a misunderstanding about what was legally required. The day shift in that same cellblock, they didn't engage in that kind of conduct.

Unfortunately, you know, during war, sometimes unfortunate things happen, and what happened there was very regrettable. I think it was harmful to the interest of the United States. The difference between the United States and many other countries, however, is that when allegations of wrongdoing surface, we take them seriously, we investigate them, and those responsible are held accountable.

In this particular case, we're talking about a very important program to the United States. The President has advised the American people that this program -- that the professionals out at the Central Intelligence Agency will not move forward without additional clarification regarding what is in fact permitted under Common Article 3.

And so we've gone to the Congress, and we're asking Congress to publicly support this program to allow the CIA to continue this program to gather information to protect the American people. It's important for the agency to be able to have this public support from the Congress. We believe it's important to provide clarity to men and women on the front lines gathering information, and we think it's important for Congress to take action.

QUESTION: Up until this point, do you think there's been clarity or confusion among the CIA officers as to what's allowed in the secret prisons and the treatment that KSM --

MR. GONZALES: Only after Hamdan. You know, prior to Hamdan, Common Article did not apply.

QUESTION: So you think it was clear in their minds what was allowed before the Hamdan decision?

MR. GONZALES: I think that working with the lawyers at the CIA, the Department provided guidance as to what in fact was lawful. And they operated -- they conducted themselves in a way that was consistent with our both international and domestic obligations.

QUESTION: The President's legislation includes a requirement that lawyers be provided to people who are accused of wrongdoing under these circumstances, which is an expansion of the Detainee Treatment Act which originally made providing legal counsel optional. What's your thinking in expanding the legal coverage for people in these circumstances?

MR. GONZALES: I think that we looked at the concerns raised by the JAGs, concerns raised by members of Congress, and ultimately concluded that this was the appropriate -- one of many changes made to the procedures of military commissions.

And let me just emphasize the amount of time that we spent with the JAGs. I met with them twice personally to hear their concerns, to hear their views, to talk about specific procedures for military commissions. And so, what was presented to the Congress represented literally weeks and months of work by lawyers in the Department, lawyers throughout the Administration, talking to members of Congress, talking to the JAGs, about what would be appropriate in terms of providing a fair proceeding, but to do so in a way that would protect the security of our country.

QUESTION: Were you disappointed that yesterday's letter from the JAGs did not wholeheartedly endorse every aspect of the President's proposed legislation?

MR. GONZALES: You know, I think the primary focus of the most recent debate has been on Common Article 3, and I've been in discussions with the JAGs. I've heard their testimony before the Armed Services Committee. They have expressed concern about not having clarity with respect to our obligations under Common Article 3. And I think the letter was -- represents a nice piece of military writing, short and concise. But to me, it's fairly clear. They had no objections to what the President wants to do. They said it would be helpful. These are the same military legal advisors for the services. Their responsibility is to analyze the legal obligations of our men and women and try to provide as much legal protection for our men and women in uniform.

And so I think their views on this issue should carry a great deal of weight. They've been involved from the very beginning, following the Hamdan decision, in developing the procedures for military commissions. We’ve had numerous discussions about the importance of bringing clarity to Common Article 3. And I think that letter reflects their strong -- their views about it.

QUESTION: What specific benefit, though, would you be denied under the Senate bill as opposed to what the Administration has put forward?

MR. GONZALES: Well, the thing about it, you know, talking about with respect to Common Article 3, recall they provide no definition as to what Common Article 3 is. There's no definition at all.

QUESTION: But in terms of --

MR. GONZALES: So we would be left with uncertainty. Our men and women would have to make a decision as to whether or not they could go forward with the program. I'm not sure what advice the Department could give in the agency going forward, because of the fact that it would depend to some degree upon the decisions and judgments of foreign courts and tribunals. And so there would be such a level of uncertainty, that, as the President indicated, we could not move forward with the program.

QUESTION: You could not go forward with the program?

MR. GONZALES: That's what the President said this morning.

QUESTION: I know that the President has kept open the idea of resuming that program at some point, but the sense among intelligence people is that he'll never go back to that program anyway, that that's in the past. And is there a realistic chance that you would really resume secret prisons?

MR. GONZALES: You know, I'm not going to talk about --

QUESTION: Because they're not secret anymore.

MR. GONZALES: I'm not going to talk about, you know, potential classified operations. What I can -- I think the President did announce to the American people in the East Room speech is that we're going to capture additional high level, high value detainees going forward, people who will step up and replace the leaders in al-Qaeda. And when we capture them, we will need to get information from them.

So he did talk about that.

QUESTION: And if you capture Zawahiri tomorrow, where would he be sent, Guantanamo, or somewhere --

MR. GONZALES: Again, we would take the appropriate actions to ensure that we, to the extent we could legally, he would be detained legally and treated, you know, legally according to the legal requirements.

QUESTION: What is the real worth of these detainees? I mean, has there been actual evidence that they have produced credible intelligence? I mean, there was a report in the New York Times, for example, that one of these guys was considered mentally insane by the CIA.

MR. GONZALES: Well, you know, I would just refer you to the President's speech in the East Room where he talked about how information from these detainees has been helpful to the United States. I think General Hayden, Director Negroponte, these are the intelligence professionals that talked about the value of this program, the importance of this program to the security of our country. The President talked about it again this morning. I would defer to their statements.

QUESTION: I mean, just to follow up Eric's question, would it be accurate to say that the program is in suspension at this point? I mean, in terms of what the decisions you've made to transfer these folks to Guantanamo. And if you did indeed capture Zawahiri, bin Laden, others, does your earlier decision indicate that those people would be treated differently than they have been in the past?

MR. GONZALES: What I can say is, is as the President said, there is no one currently in CIA custody. The President confirmed that in the East Room. We've also said that following the Hamdan decision, there is confusion and concern about what our obligations are under Common Article 3, because there is no baseline standard for Common Article 3.

For that reason, I don't know if I would say the program is suspended, but the program is -- I mean, there is currently no -- there's currently no one in the CIA program. I can say that.

QUESTION: Mr. Attorney General, excuse me, for those of us who haven't been following every jot and tibble of this --

MR. GONZALES: God bless you.

QUESTION: You're saying that you want the language defining treatment under Common Article 3 to be the exact same language that was approved in the Detainee Treatment Act, the so-called McCain Amendment, and --

MR. GONZALES: It's the same language that was in the Detainee Treatment Act, the McCain Amendment, as you indicated. It is the same language that defines our obligations under the Convention against Torture. All we are asking for is the same standards, the same high standard, yes.

QUESTION: Excuse me. You would say that that same standard would thence forth apply to any detainee held by the CIA to any detainee held by the military in Guantanamo, to anyone picked up on that, that same exact standard would apply across the board?

MR. GONZALES: That would be the standard that would be binding upon the United States of America. It currently is the standard. People don't understand that. That is the current standard under the Detainee Treatment Act.

QUESTION: Okay.

MR. GONZALES: The question is whether or not, do we have any -- do we have a new standard now that the Supreme Court has said Common Article 3 applies? And I think that there is real uncertainty about what that standard is. There is not uniformity about provisions of Common Article 3, and we think it's very important to provide clarity. And we think it makes -- it is legitimate and appropriate.

Condi Rice talked about this in her letter yesterday, that in interpreting a treaty, you have an obligation to interpret the treaty's text in good faith, doing so in a way that's consistent with the purpose and objectives of the treaty. If the words of the treaty are ambiguous, it is appropriate for a country to look at its own law, look at its own legal precedents and the concept, legal concepts within that country. That is an appropriate process or procedure in interpretation of international legal obligations.

QUESTION: Rather than just to go back to, so to speak, and seek clarification from the international body that first promulgated the convention?

MR. GONZALES: To seek an amendment or clarification from Geneva? I don't think that that's practical. I don't think that that's possible.

QUESTION: But if you go back to the body that first put the treaty on the books?

MR. GONZALES: Let me just say this. There are many -- we can give you many examples where after the fact, our Congress has passed legislation implementing our obligations under a treaty. We can give you many examples where that's happened before. And, as you know, oftentimes when Congress ratifies a treaty, they take a reservation, or there is a declaration or understanding which sets forth our interpretation of the treaty, Congress's interpretation of the treaty.

So that happens all the time. And so our legal obligations may be quite different. They'd be consistent with, but they would be different from the legal obligations of other signatories to the same treaty.

QUESTION: Just so we're clear, before Hamdan, the Justice Department's official guidance to the CIA on the treatment of KSM and others in secret prisons was that they had to be in compliance with both the Detainee Treatment Act and CAT? Was that the Justice Department's formal position?

MR. GONZALES: Before? What I can say is, is that before Hamdan, we provided advice regarding what our obligations were under both the Convention Against Torture and with respect to the Detainee Treatment Act. I can say that.

QUESTION: But you're saying that what you want now is the language in the Detainee Treatment Act and CAT. And I thought you were suggesting that that was the standard even before. Was that what the CIA was told? You're saying that there was clarity before Hamdan. What was the clarity? What was the CIA told as to what they had to be in compliance with?

MR. GONZALES: Well, before Hamdan -- I mean, what they were told is that we have an international obligation under the Convention Against Torture, and we have an obligation under the Detainee Treatment Act.

QUESTION: To follow both?

MR. GONZALES: To follow both.

QUESTION: How would water boarding, for instance, fall within this?

MR. GONZALES: I'm not -- again, I'm not going to get into the specific methods of questioning. We provided basic legal advice to the Agency about what would be permitted under both our domestic and international legal obligations.

QUESTION: Could I sort of clarify the big picture here? I think a lot of us have been reporting on this sort of schism between some members of Congress and the White House over issues of the rules for military commissions, the issues of our obligations under the War Crimes Act and Common Article 3. Sort of the overarching message I got from what you've been saying here today is that the question of Common Article 3 and the War Crimes Act is really most important here, and that while the other aspects may not be unimportant, this is really what's central.

MR. GONZALES: Well, we cannot continue to defend this country without getting good information, intelligence information, about what the enemy may be planning to do. And we know from experience that this program has been vital in allowing us to get information to protect America. Currently because of the decision by the Supreme Court, we are unable to get that information.

So for that reason, resolving this issue with respect to Common Article 3 is extremely important in order to for the Agency to feel comfortable moving forward.

Now bringing terrorists to justice, as the President has said, is very, very important. And for that reason, we believe it's important for a commander in chief to have the tools of a military commission in order to bring terrorists to justice.

But if for some reason that couldn't -- we can't that from the Congress, we could continue to hold these enemy combatants for the duration of the hostilities. So it wouldn't be as critical to the national security of our country if we couldn't get that resolved, as you describe it, yes, it's important for us, and we intend to work as hard as we can with Congress to reach an agreement on the procedures for military commissions.

But in terms of the national security of our country, I'd have to say that resolving this issue on Common Article 3 is probably more important.

QUESTION: So you're suggesting that once that Hamdan ruling came down, all interrogations just stopped, everybody froze? Because what you just said was that --

MR. GONZALES: What I can say is that following the decision in Hamdan, there was a level of -- we all realized that the decision by the Supreme Court that Common Article 3, a new standard now applies. It did have an effect on the operations of the government, because we care very deeply about ensuring that our conduct is consistent with our international and legal obligations. And so when the Court says, you have a new standard you're going to have to worry about, obviously, we have to respond appropriately to that.

QUESTION: You mentioned some of the rulings of the European Court of Human Rights. Have there been prosecutions of U.S. service personnel or U.S. citizens under Common Article 3?

MR. GONZALES: You know, I'm not aware -- I don't believe so. You know, there's been very little in terms of -- certainly from the perspective of the U.S. about what Common Article 3 covers and what it means. We've looked internally. There is no definitive positions that have been established by the executive branch as to the limits of Common Article 3. Obviously, following Hamdan, we've looked at it. We've done some looking at it. But there's been no definitive interpretation that these are the limits of Common Article 3. And as far as we know, neither in the Congress.

And so, when people say we're seeing to redefine our obligations, it's just not true. We're seeking to define our obligations. We want clarity. We want a clear standard, and we think it's important for the people in the Agency to have that.

QUESTION: Well, some people might argue that, well, what are you worried about then? And maybe the fact that there haven't been prosecutions suggests that, you know, --

MR. GONZALES: Well --

QUESTION: -- tribunals will have to exercise discretion in bringing these kinds of cases.

MR. GONZALES: Because under the current war crimes statute, a breach of Common Article 3 is a felony. It's a war crime. It is now punishable. And so, yeah, that's why you have people at the CIA who are concerned about moving forward and doing any method of questioning without clarity, because they don't want to be prosecuted for committing a war crime.

MODERATOR: I think we've got time for maybe two more questions.

QUESTION: Could I ask just a related question on NSA and the surveillance program? What if Congress, this Congress doesn't enact legislation that you all are seeking or a version of that legislation? Any thought about the consequences about that?

MR. GONZALES: We remain committed to the program. We think it's important. We of course have appealed the decision in Michigan, but we think it -- you know, we think it's an important program. It's made a difference in protecting America. We're optimistic we can still get legislation done this year, and we're going to work as hard as we can to get it done this year.

QUESTION: -- is there any reason to think you couldn't move forward even without congressional approval or authorization, would it -- obviously, the courts could impact you, but would action or inaction by Congress affect the program in any way?

MR. GONZALES: Well, the program continues today, so, again, we support the legislation by Chairman Specter. There are changes in that legislation which we think would enhance FISA, for example. It provides an avenue for the President if he so choose to submit a program to the FISA court to test its constitutionality. We think there is some benefit in that. The President has said that he would do that if legislation were passed that he found acceptable.

So, you know, we continue to think it's important in fighting the war on terror to have this legislation, and continue to work with Congress to try to make that happen this year.

MODERATOR: Thanks everyone.

###

06-629