The Military Commission Act of 2006

MODERATOR: Good afternoon and welcome to the Foreign Press Center. This afternoon the State Department's Legal Advisor John Bellinger will be speaking on the Military Commissions Act of 2006. He'll start with a brief opening statement and then be happy to take your questions.

MR. BELLINGER: Good afternoon, everyone. Nice to see you all. I've just gotten back from Europe myself where I was in Berlin in The Hague talking to European colleagues to tell them about the Military Commissions Act that had not at that point been signed and have just got back. I attended the signing ceremony on Tuesday. And as you know, the President did sign the Military Commissions Act of 2006. So let me just go through a couple of its main features and then happy to take your questions.

Most significantly, the Military Commissions Act authorizes military commissions. The Supreme Court had concluded in the Hamdan decision that the President could hold military commissions, but that he had not set them up the right way, that he needed legislation to do it. And so he went and sought the legislation at the beginning of September and Congress has now passed a framework, a legislative framework that authorizes and creates the structure for military commissions to go forward. And in a minute I'll just go through a couple of the features with respect to the most common questions that come up.

In addition, the Military Commissions Act clarifies the law that is applicable to the treatment and detention of detainees after the Supreme Court's conclusion in the Hamdan case, that Common Article 3 of the Geneva Conventions applies. As you know, prior to the Hamdan decision, the President had concluded that Common Article 3 of the Geneva Conventions does not apply to the conflict with al-Qaida because Common Article 3 says it applies only in cases of armed conflict not of an international nature. And the longstanding view then that that applies to civil wars internal armed conflicts and since the conflict with al-Qaida is clearly taking place all over the world, in many different nations, it had been the President's conclusion that it was a conflict of an international character. The Supreme Court concluded nonetheless that this was a conflict not of an international character, because it wasn't between nations, but between one nation and a terrorist group and therefore that Common Article 3 did apply.

Because the terms in Common Article 3 are vague, the Military Commission legislation clarifies exactly what our requirements are. We were not reinterpreting the Geneva Conventions. We were providing clear guidance to those individuals in the U.S. Government, in our military, in our intelligence agencies as to what the terms in Common Article 3 require and it did that in three ways: One, it sets forth nine different criminal offenses so if anyone commits any of those nine actions which include torture, inhumane treatment, rape, medical experimentation, taking of hostages, kidnapping, any of those things commit a federal crime that can be prosecuted.

The second, it also prohibits as a violation of Common Article 3, but not criminal, cruel, inhuman or degrading treatment. That's essentially a repeat of the standard that had been passed in the Detainee Treatment Act in December of 2005 and it repeats that this is part of what is prohibited by Common Article 3. In addition to the extent that there's still not clarity as to what is prohibited by Common Article 3, but with respect to those things that are criminalized or is with respect to conduct that is cruel, inhuman or degrading treatment, the President is authorized to issue additional interpretations that would be published in the Federal Register and those would be the definitive interpretations of the United States.

Now back on the military commissions. The military commission legislation addresses all of the concerns that were raised by the Supreme Court and I would say incidentally I think it also fully addresses all of the concerns that the U.S. Government and the State Department have heard over the years with respect to the military commissions as they had originally been set up by the President by Executive Order.

They provide full and fair trials that are very similar to all of the protections that we have, both in our federal criminal trials and in our court martials. Just a couple of points here. There is a -- having just returned from Europe, I sense that around the world there is a generalized concern about trying people in military commissions at all. Part of that is that there is in many parts of the world, particularly in Europe, there just simply is not a military justice system.

The United States has had a very long and honorable and robust system of military justice that's parallel to our domestic criminal justice system. This is not something that's new or made up, it's gone on for decades and decades with independent judges, independent statutes, a whole functioning system of military justice that we dispense justice to our own soldiers every day and in wars to people who commit criminal offenses.

With respect to the two or three most common criticisms that I have heard in the past and that I continue to hear, let me address those. One, the accused under the new Military Commission legislation has the right to be present at all times during the trial. He may not be excluded from hearing any of the evidence against him.

In addition, if there is exculpatory evidence, that's evidence that might tend to show that he's innocent of the crime, whether that evidence is used in any way the government is required to turn it over to him. But let me be clear, the accused will be present at all times during the trial to hear the evidence against him.

You may have heard something about secret evidence. There is no secret evidence. The only thing that the government is not required to turn over is evidence that may -- or information that is in the government's files about the individual. But if it's not used against the accused, they don't have to turn it over. So the government is not required essentially to turn over its file drawers about every bit of information it knows about the accused.

Second, the accused has the right to counsel. He will be assigned a military counsel who -- you have seen the zealous advocacy of the counsel who have been assigned in the trials already. They also have the right to civilian counsel and they can retain their own civilian counsel.

With respect to an appeals mechanism and the independence of the trials, as you know originally as the military commissions were set up, the appellate mechanism was only inside the military system and the appeals were to a military commission court of appeals. Under the new legislation there is a appeal from the military -- first military commission to a military commission review panel and then to our DC Circuit Court and then ultimately to our Supreme Court. So there is an appeal mechanism into our independent federal judiciary.

To those who say we are concerned about the independence of these trials, one, the judges who will be doing the trials have been doing -- will have had years of experience doing trials. They are independent judges to begin with, but there is a right of appeal into our Article Three courts.

And then finally, the last concern that I hear most frequently is this allegation that coerced evidence can be used against the accused. So let me be clear about this -- one, evidence that is derived from torture may not be admitted period. No evidence derived from torture may be introduced against the accused. There's a treaty obligation under the Convention Against Torture that we may not do that and we won't do it and it's in the military commission statute.

In addition, if the accused alleges that a statement was derived from coercion than it may not be admitted. The presumption is it may not be admitted unless the judge having heard the totality of the factors determines that it was reliable, that it was -- it would be in the interest of justice and fairness to introduce that information. If it's a statement taken after the passage of the Detainee Treatment Act in December 2005, than there's an even higher standard, in addition the judge has to determine that the taking of the statement did not violate the prohibition on cruel, inhuman or degrading treatment. So that law could not have been violated.

Now, I'm always asked, well, but that must mean that before December of 2005 a statement derived from cruel, inhuman or degrading treatment could be admitted. Not necessarily at all. The judge will look at the totality of the circumstances and will determine if there was cruel, inhuman or degrading treatment. And if he determines that it's not in the interest of justice to introduce the information, it would not be admitted.

So last point, why is there not simply a prohibition on a statement based on coercion? This is exactly the same way it is done in our federal criminal courts. There is in U.S. criminal law no flat prohibition on a statement being introduced derived from coercion. In our federal criminal courts, if a defendant raises a concern about his treatment, the judge will listen to what happened and make a determination as to whether the coercion that allegedly occurred would be contrary to our Constitution. So with that, that's an outline of the Military Commissions Act. Actually, I'm sorry. Let me make one more point because I know you will ask me this. What about the CIA program?

The act itself does not specifically address the CIA program, which the President said on September 6th would continue as a way to question senior members of al-Qaida, who we may detain in the future. What the Military Commissions Act does is it now makes clear what the legal standard is for the treatment and detention of those individuals. No program will go forward, though, until it has been briefed to our Congress, to our Oversight Committees, who will then determine whether the proposed program, one, has to be consistent with the law that the Congress has just enacted and that Congress is comfortable as a matter of policy with that program.

So at this point we have a new law that clarifies the legal standard, but for a new CIA program to go forward, the Executive Branch will consult with Congress going forward. So with that, I will end.

Questions?

MODERATOR: We can go here in the front. Can you wait for the mike and identify yourself.

QUESTION: Anne Flaherty with the Associated Press. I'm interested in how this legislation would affect terrorist lists, watch lists and so forth? There was the incident of a Canadian citizen Arar who was subsequently deported to Syria. Canada has since cleared him, exonerated him. And I understand it last week he was turned away at the U.S. border because he remains on the watch list. Can you say why that is and how these lists are maintained?

MR. BELLINGER: I really don't have anything for you on that. Certainly this -- I'm not aware of his being turned away at the border. It's just the first I've heard of that. And under this legislation, there's nothing in this legislation that would have an impact on that. And I'm just not an expert on the way the watch lists are set up. So I can't help you on that.

QUESTION: Dimetri Sevastopulo, Financial Times. If you do have a future CIA secret prison system, will you give the ICRC access to detainees? If not, why not?

MR. BELLINGER: No determination has been made on that going forward. We do not think that we are required to give the ICRC access. Under the Geneva Conventions, the ICRC is required to have access to individuals who qualify as prisoners of war under the third Geneva Convention or as protected persons under the fourth Geneva Convention. So we're not required to provide the ICRC access.

In fact, in the fourth Geneva Convention, which applies to protected persons, civilians who are not normal soldiers, Article 5 of the fourth Geneva Convention specifically states, and this was in 1949, that certain categories of individuals who pose a threat to the security of the detaining power, specifically spies or saboteurs, shall be deemed to have forfeited their rights of communication. So it's interesting that even in 1949 the framers of the Geneva Convention, who probably could not conceive that there would be large armies of a group like al-Qaida who would be able to attack a country with the ferocity of a nation, nonetheless that there were categories of people like spies or saboteurs who the framers of the Geneva Convention said would not have outside access.

QUESTION: A quick follow-up. The ICRC has also been asking you to give them a list of the names of people who have been held in captivity before, not the 14 who have been transferred to Guantanamo. Do you intend to do that? And why would you not do that?

MR. BELLINGER: The ICRC has access now to all of the people who have been in Guantanamo -- I'm sorry, who were most recently in the classified locations and who were taken to Guantanamo. We've made clear that there were others who had been questioned and -- but who have now been returned to those -- to their countries or to other countries where they were wanted for prosecution. No decision has been made with respect to notice to the ICRC about those individuals.

QUESTION: And why would you not give them the names?

MR. BELLINGER: We think there's no requirement to do it and that the -- as I say, that the Geneva Conventions specifically contemplate that individuals like this would not have the protections of the Geneva Convention.

QUESTION: Giampiero Grammaglia, Italian News Agency, ANSA. You mentioned you are just back from Europe. What was the appreciation of your counterparts on the new legal framework you presented to them? And do you plan other visits to Europe to explain that to other countries?

MR. BELLINGER: Yes, I certainly will continue the visits that I've begun over the last 10 months now on the behalf of the Secretary of State and the U.S. Government. I've been engaged in a much more intensive dialogue with our European allies, with the EU as a group and with countries individually to try to answer their questions about all of our laws and policies with respect to detainees. I think that the dialogue has been quite helpful. I think the visit that I most recently concluded in The Hague and in Berlin, and several weeks before that I had been in Rome and in Athens, has been helpful to explain the details of our new laws and our new policies. It's clear that there have been very significant evolution of our laws and policies in this very difficult area over the last five years with the Detainee Treatment Act, the application of Common Article 3, the new Army Field Manual and detainee directive, the movement of all of the individuals from classified locations to give them ICRC access. So I think there is a -- certainly a welcoming of these -- all of these moves.

And with respect to the Military Commission Act, which is extremely complex, hard to understand, as wonderful a job as you all do in reporting this in the press, it is hard to understand the details of the law unless one gets down lawyer to lawyer to explain it. And that's what we've been doing.

QUESTION: Christian Wernicke for the German Daily Sueddeutsche Zeitung. I'd like to ask you how difficult is it nowadays for you, maybe a little personally here, after all the history that Guantanamo and other camps have, to convince the Europeans, for example? I mean you're burned, in a way. I mean you're the Ambassador for Guantanamo of the United States and you talk and you have to explain this very brilliantly again and again. But don't you feel any kind of resentment from -- that's what we get when we talk to European politicians or European diplomats. I mean do you really feel that you convince people or don't you -- when you look them in their eyes? They just say, "Oh, here he comes again," and they explain it as a system that's rotten in the basic, like not accepting habeas corpus.

MR. BELLINGER: Well, this is clearly an uphill battle to try to explain policies that people are uncomfortable with. On the other hand, we have not done a very good job in engaging in dialogue about these issues over the previous number of years. And as a result, a lot of inaccurate perceptions have grown up. So I think we actually have made some progress over the last 10 months.

And with respect to the individuals who I actually talked to, they do have a better understanding of things that they thought were maybe clearly we were violating, that we actually may have quite a good argument. Just to give you one example, people will regularly say, well, you should be treating these individuals as prisoners of war under the Geneva Conventions. And it simply takes a reading of the Geneva Conventions, and we walk people through, to be clear that there is no way that members of al-Qaida could be covered by -- as prisoners of war under the Geneva Conventions. That's why our Supreme Court instead of finding that they are prisoners of war, concluded instead that they're covered by the minimum standard of Common Article 3.

But I do think that while I don't see a greater support for U.S. policies, that there is a better understanding of the difficult legal framework and the difficulties in treating international terrorists and that we're beginning to see more and more statements coming out of European officials acknowledging that without a doubt the legal framework applicable to dealing with international terrorists who are outside of our borders, not people who are inside our own countries, but who attack our countries from outside our borders is quite a difficult one and a difficult public policy problem for all of us.

QUESTION: Thomas Nordegren, Swedish Broadcasting. First I would like to ask about the retroactivity of this. I mean, a couple hundreds of the detainees at Guantanamo have habeas corpus lawyers. Are these processes going on regardless of what's happened now? And there is also a discussion whether this is in practice an amnesty for everything that has happened in the CIA and in the army detention camps.

MR. BELLINGER: Right. Thank you for those questions. On the second one again, to be very clear there is no immunity, there is no amnesty for anyone who may have committed a crime. If a member of our military, a member of our intelligence agencies committed a violation of law or committed a crime then they can be prosecuted or if it's not a crime they can be disciplined.

The only thing the law says is that if an individual was acting pursuant to authorization, i.e., he was not freelancing but was acting pursuant to authorization and he believed that his actions were lawful and that he didn't have any reason to believe that he was being asked to do something that was unlawful -- that a reasonable individual would have thought was unlawful -- then he can present that in a defense in any prosecution against him. But it's not a "get out of jail free card." It's not statement that any member engaged in interrogations is immunized from any prosecution going forward. That's just incorrect.

And your first questions was --

QUESTION: About the ongoing habeas corpus cases.

MR. BELLINGER: Yes, the ongoing habeas corpus cases, yes. There are hundreds of habeas corpus cases that have already been filed already. They will have to be re-filed. Individuals will continue to have the right to bring their cases into our federal courts. It is incorrect to state that the detainees will not have recourse to our federal courts. The new Military Commission Act channels the times at which they can bring their petitions though to two times.

One, it's essentially a requirement of exhaustion of one's remedies so that they don't go immediately into federal court as in -- in any military conflict, there is no right of habeas corpus. So when you hear these people are being denied their basic right to habeas corpus, no individual in any military conflict in American history has ever had the right to habeas corpus before. So these individuals will have the right to go into federal court at two times. One, after they have had their combatant status review tribunal inside the military system. If they are still determined to be a combatant, then that can be appealed into our federal courts. So there will then be independent court review of whether they are being properly held.

In addition, if they are not -- if, in addition, they are prosecuted in a military commission at the end of their military commission trial, then that conviction can be appealed into our federal courts. But for the specific cases that have been filed right now, they will have to be re-filed in our federal courts.

MODERATOR: Christine -- sorry. We have a follow-up and then we'll get there. Sorry.

QUESTION: There is one important thing that I don't understand, and it is at Guantanamo Bay when the interrogation is actually made, you're taken out of the actual prison and -- for example by CIA or the other interrogation agencies -- then you're taken to another location. So I wonder, -- so would the CIA rules apply to that type of interrogations or the other rules?

MR. BELLINGER: I'm not sure what you mean by that. The -- all of the people in Guantanamo will have their CSRTs or their military commission trials in Guantanamo. So they're not being taken anywhere else.

QUESTION: I was in Guantanamo last week, and I actually saw -- Harry Harris said that when the CIA, for example, is coming to interrogate a prisoner, he is actually taken out of the prison to another camp where the CIA is conducting their work. And I just wonder which law will -- is it the sort of CIA rule or the Guantanamo rules?

MR. BELLINGER: Well, I'm not sure what he was saying. The same law -- they're not being moved -- they may be being moved out of one cell in Guantanamo to a questioning facility, but they're not being taken off of Guantanamo. And the whole set of rules applies to all of the people in Guantanamo. They all have the same legal rights for all of the individuals who are in Guantanamo.

QUESTION: Okay.

QUESTION: Just a follow-up to your previous answer to the German journalist's question. You mentioned when you were in Europe you explained to the European counterparts a point about why Geneva Convention is not enough. Could you give us a specific example about that?

MR. BELLINGER: There's obviously general discomfort about what laws we are applying and a feeling that we are not applying the appropriate legal framework. What I've made clear is if the rules were so clear about what law applies to the individuals we're holding in Guantanamo, then there would not be a huge disagreement amongst our critics as to what law applies. Half the people suggest that the Geneva Conventions ought to be applied because there is a war going on with al-Qaida. Others say no, the Geneva Conventions don't apply; you should apply criminal laws to these individuals because they are just common criminals.

What I have tried to explain is the difficulties of applying either of these two frameworks. We cannot try the vast majority of the individuals in Guantanamo under our criminal laws because as of September 11th, 2001, they had not broken laws that we had on our books that had extra territorial application.

So to all of those individuals -- all of the critics who say you should try these individuals under your criminal laws, in the vast majority of the cases the individuals in Guantanamo had not broken federal criminal laws. That doesn't mean that they were engaged in good works. It simply means that our criminal laws did not have extraterritorial application into their activities in Afghanistan nor frankly did most criminal laws of most countries in the world.

With respect to the Geneva Conventions at the same time, we have explained that as much as people would like for these people to be treated as prisoners of war, the Geneva Conventions say that prisoners of war are only those individuals who belong to a contracting party to the Geneva Conventions and al-Qaida is not a contracting part to the Geneva Conventions.

QUESTION: Christoph von Marschall Tagesspiegel. I also would like to follow up on which reaction you got in Germany. If I just read the media reactions reporting on your public appearances, well, I would say there was not much change to the way they reported before you try to explain what you say are misperceptions. It's the same language in the article. It's the same interpretation what is wrong and so on. What is different in your un-public -- not public talks, especially with the experts of the Auswaertiges Amt and Max Planck Institute where experts in international law and especially what do you agree on?

I can't understand what -- there are disagreements still but is there now an agreement that maybe even if the Germans wouldn't like it but that it's alright for this perception that these are illegal combatants. Would they agree? Is that not all the clausal laws of the Geneva Conventions apply to those prisoners, would they agree that there shouldn't be all this control by the International Red Cross and so on? Could you a little bit elaborate what after this visit you agree on not what they also disagree on?

MR. BELLINGER: I don't want to go into the specifics of our private discussions with the German Government, but what I can do is answer your question more generally as a result of having been through at least a dozen different European capitals over the last ten months on some issues where I think there -- where we thought there was vast disagreement. That there is actually is either more agreement or recognition that we have got a point in our arguments.

The first is the one that you mentioned -- unlawful combatants. Much of the public, certainly in Europe, thinks that we have made the term "unlawful combatant." This was a term created by the Bush Administration to deny people the legal rights and to put them into a black hole. And as a result, in every article that you will see -- I think in a European newspaper it's put in quotations "unlawful combatants." I have in all of my meetings pulled out European law treatises on international law from the most respected law of war international humanitarian law experts in Europe going back decades, and I've simply read the term unlawful combatant refers to those individuals who fight in a conflict but who do so in an unlawful way so that they are not benefiting from prisoner of war status. Most of these treatises go on to then say that these individuals have no protection under international law.

And so in my discussions generally with lawyers, they say well, you're right, that -- you're right. You didn't make up that term "unlawful combatant." That's existed for a very long period of time. And so you're right about that point.

Another point is the divide between the U.S. and Europe about whether we are really at war with al-Qaida and the general discomfort with the term global war on terrorism. I think I have generally heard most European officials start their concern by saying the United States thinks it's in a war with al-Qaida but we don't. In fact, if one gets into the details of the discussion and we say, well, what actually was going on in Afghanistan in 2001? What was -- weren't we authorized to use some force? And if we were not in a war, then why would anyone be applying the Geneva Conventions, because the Geneva Conventions only apply in a case of war. And then there's generally agreement, well, yes, you're right. Actually, there was at least a war going on in Afghanistan in 2001 to 2002.

And then we go on to say well, if al-Qaida and bin Laden is continuing to declare a war against us, is continuing to plot attacks against us from outside the United States, are we entitled to use force against him? Well, actually, you probably are entitled to use force against him outside the United States. Well, that also implies, therefore, that a mere criminal law framework is not enough to address the threat from a terrorist group launched from thousands of miles away outside the United States where our criminal laws have no application.

So there is, in fact, an acceptance that yes, the use of force, i.e. military force that one would use in war, was acceptable in 2001-2002 and continues to be acceptable in certain circumstances against a terrorist group.

So there actually I think is an acknowledgement that we are right in some of our arguments. I understand it does not necessarily make European Government's republics more comfortable with our policies overall but simply that we are right in a number of our arguments.

MODERATOR: Okay, Corine, we have time for one -- two quick ones.

QUESTION: Corine Lesnes from Le Monde. Is water boarding now definitely forbidden? And where do you read that in the new law?

And second, when do you expect President Bush to issue the regulations?

MR. BELLINGER: The new law does not address specific interrogation techniques. Now the Army Field Manual on interrogation techniques that was issued several weeks previously and that applies to the Defense Department everywhere in the world and addresses those concerns about military interrogation techniques is now out unclassified and does specifically prohibit water boarding for the Department of Defense.

With respect to intelligence procedures, the new law does not specifically list any procedures. By their very nature, intelligence activities are classified. But any procedures going forward would have to comply with the standards of Common Article 3, including the prohibition on cruel, inhuman and degrading treatment, would have to be briefed to Congress, and Congress would have to agree that they are permitted under the law. So that's a process that will go forward.

And what was your second question?

QUESTION: Is President Bush issuing the regulations?

MR. BELLINGER: Yes. I can't tell you when that will happen. That's something that the Administration is working on.

MODERATOR: Last one, sir, right here in the red.

QUESTION: I'm Brian Beary from Europolitics. Just following up on something you said about unlawful enemy combatants. You spoke about legal experts writing treaties and essays on this, but where does that term figure in any legal text?

And my second question is, you said you were in Rome, Athens, Berlin and The Hague, does that mean they're the countries you want helping you guys on your new CIA programs?

MR. BELLINGER: No, certainly not. I actually can give you a whole long list of countries that I have been in to simply try to engage in dialogue. As you know, there has been a suggestion that the United States has not been talking to our friends and allies about these very difficult issues. President Bush, in his September 6th address, and this I think was little covered in the press, but made very clear that not only were we changing our laws and policies at home but that we wanted to engage in dialogue with our friends and allies around the world so that we could have a common approach. And I have been engaging in that dialogue, explaining what difficult laws like the Military Commission Act mean, listening to people's concerns and answering their questions, and I've been in a whole lot of different places.

What was your first question?

QUESTION: (Inaudible.)

MR. BELLINGER: The term "unlawful enemy combatant" is not specifically used in treaties, but I can tell you that all of the preeminent international scholars will tell you and have written that this has long been an accepted term and they've been saying this for decades. Perhaps the preeminent scholar on the law of war in the world, who wrote the definitive textbook on all of the laws of war, Adam Roberts, who is at Oxford, has written several years ago that it is inconceivable that there is even a debate over the question of whether the term "unlawful combatant" exists because it has existed for decades.

QUESTION: Just a clarification on the water boarding --

MODERATOR: He has another question.

MR. BELLINGER: Can I go to the gentleman there because he did not get his question there.

QUESTION: Thank you. Could you explain why none of the 14 -- the most valuable suspects transferred to Guantanamo last month was captured -- none of them was captured in Iraq if Iraq is central front of global war on terror?

MR. BELLINGER: I can't -- I don't actually recall where all of them were captured. We have issued, and it's on the internet, the backgrounds of all of the individuals. I believe, but I might be wrong, that it also lists where they were captured. And the individuals who continue to be held and questioned by CIA and turned over to Guantanamo were the ones in our custody who we felt had -- were the highest level al-Qaida operatives, planners, had the most information. Certainly there are many members of al-Qaida in Iraq as well, and we have killed some of them, and we continue to go after other ones.