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.
     END
     3:30 P.M. EDT
 
 

SOURCE U.S. Department of Justice