Selected Events in 2006
Digital Video Press Conference with John B. Bellinger III, Legal Adviser to the Secretary of State
March 13, 2006.
Secretary of State Rice's Legal Advisor, John B. Bellinger III, took part in a digital video conference with German journalists in Berlin, Cologne and Hamburg to address misperceptions regarding the U.S. policy and treatment of detainees in the war on terror. In the discussion, Bellinger underlined that the U.S. is constantly working to improve detainee policies and procedures and that the U.S. has no interest in detaining enemy combatants longer than absolutely necessary. "My overall point simply is that after September 11, 2001, we found ourselves in an unprecedented legal position of detaining large numbers of terrorists. Unlike the domestic terrorists who we have found individually in our own countries and who societies have been able to deal with over the years, these were individuals found fighting us on the battlefield."
Opening Statement by Mr. Bellinger
Monday, March 13, 2006
Thank you, and welcome everybody in Germany. Good afternoon. It's a pleasure for me to be here with you to talk to you all; I wish I could be there in person.
We have found that it's important to try to get out and talk more frequently about the complex subject of detainees and Guantanamo. There are a number of misimpressions that have become prevalent over the last few years, particularly in Europe, and that have become conventional wisdom. I think it's unfortunate we have simply not had enough American officials out engaging in dialogue and answering people's questions and trying to correct some of those misperceptions. So, I'd like to just have a discussion with you this afternoon, and I'd like to take right up front just a couple of the things that we see are most frequently misunderstood and then I'll be happy to take your questions.
I thought I'd actually start in a sort of unorthodox manner with a quotation from a European official that I saw just last week -- I'm not going to name who it was, but it was a senior European politician – that simply reflects, I think, how the legal framework is misunderstood with respect to detainees and Guantanamo. This individual said: "With their flair for action, Americans sometimes overlook complexities. The way in which prisoners are treated at Guantanamo Bay illustrates this. In a state governed by the rule of law, everyone is innocent until proven guilty. But, at Guantanamo Bay, people are being detained indefinitely with no prospect of due process of law. They are said to be 'unlawful combatants.' But this is a rather vague accusation, which, in any case, has no basis in national or international law."
While I sympathize with the goals of the speaker, that statement is really wrong on virtually every legal point. And I think it's simply because the area of detainees in a war is something that is misunderstood. The report of the UN rapporteurs that was issued several weeks ago fell into the same trap; it was written largely by human rights lawyers who applied traditional domestic law concepts and therefore concluded that all of the detainees in Guantanamo are simply criminals who need to either be tried under domestic criminal law or allowed to go free.
Let me explain our position on a couple of these things.
I know that the phrase that we have used, the "war on terror," is one that is troubling and is controversial in Europe, and let me distinguish between the political sense of the term and legal sense of the term. Our policymakers use the "war on terror" in its political sense, to mean that all countries need to be against terror, the idea of killing civilians in order to terrorize populations. That's exactly what the leaders at the UN in the UN Outcome Document said last year: We condemn terrorism in all of its forms. When our policymakers say that there is a war on terror, it means that all of our countries need to be against terror everywhere in the world. It doesn't mean, as a legal matter, that we are in a legal state of war with every terrorist everywhere in the world and that we can therefore go shoot people or arrest people on the streets from every terrorist group everywhere. It depends on the circumstances.
As a legal matter, though, we think that it was quite clear that when U.S. and coalition forces went into Afghanistan pursuant to a UN resolution authorizing the use of force, and that the soldiers captured people in Al Qaida training camps or fleeing in the caves in Tora Bora, or that had been captured by other Afghan forces fleeing and were turned over to us, that that's not simply a police action, that is not the same as capturing Mossaoui) inside the United States or Motassadeq inside Germany, in which case the conventional criminal laws can be applied. This was clearly a state of international armed conflict in Afghanistan and the traditional rules of international armed conflict apply in those circumstances.
The problem, frankly, is that there is a desire amongst all people – and myself certainly included – that individuals be subject to a legal framework. Very few people understand, because very few people are trained in it, that in an international armed conflict, the appropriate rules to follow are those of international humanitarian law. So, in this case, the suggestion that people need to be, those detained in Guantanamo need to be tried for crimes or let go, simply misunderstands the applicable legal framework. So, the suggestion in the quotation that I read to you, that people are innocent until proven guilty, that's clearly the appropriate legal framework inside each of our own countries in a criminal context. But, in an international armed conflict, when people were captured during World War II or in any other war, you captured the people who were fighting you and, in fact, you presume, if they are fighting you, that they are combatants, and you do not presume them to be innocent. You presume that they are combatants. Simply the idea that they are being detained indefinitely with no prospect for due process of law -- again, in a international armed conflict, people who are picked up on the battlefield are detained until that conflict is over, and I'll talk in a few minutes about the procedures that we've put in place, because this is, obviously, a different kind of conflict.
And then finally the suggestion that we have made up the term "unlawful combatants," which "has no basis in national or international law." I wish we had frankly taken that on much earlier, because it has been, I think, accepted as conventional wisdom among critics that this is a term that we made up. I did not bring for you the stack of international law treatises in which I can read to you from numerous European scholars on the Geneva conventions, on international humanitarian law going back decades. But it's very clear, and an accepted in international law, that individuals who take up arms illegally and therefore are not entitled to prisoner of war status because they have engaged in illegal activities and have not comported themselves according to the laws of war. They are combatants because they are fighting, but they are “unlawful combatants” because they are doing it in an illegal way.
So this is not a term that the United States has made up; it has been long accepted in the military manuals of all of our countries, and I could read you a long list. I think unfortunately, by not taking on some of these criticisms head-on, there have been a number of misimpressions that have been left.
Let me end with just a couple of other notes here. I think no country could have been prepared on September 11 -- either militarily, obviously with respect to intelligence, or, frankly, legally -- to address the sorts of people who we found fighting us and training against, and having trained in terrorist training camps in Afghanistan. No country, including the United States, could have simply pulled a book out of the shelf and looked and found a page that clearly covered armies of terrorists like this. So, we have done our best to apply the appropriate rules. We think it's very clear that the traditional criminal law rules do not apply to individuals captured by our soldiers 3,000 miles away across the world. We have carefully analyzed the Geneva Conventions as well, and determined that the individuals captured in Afghanistan are not entitled to prisoner of war status under the Geneva Conventions; it's simply a matter of reading the terms of the treaty, and I'm happy to take questions on that.
And what we have therefore had to do is to adapt to an armed conflict with these kinds of individuals, and that has meant, as we have gone along, making many changes in Guantanamo that simply have not been noticed. Very few people wear orange jump suits anymore, and yet that is the image that is being left with people all around the world, that everybody in Guantanamo is wearing an orange jump suit, kept in solitary, and wheeled of on gurneys to be interrogated or tortured. People now believe this because they want to believe it, and the United States has had a very difficult trying to correct these misimpressions. A large number of the people in Guantanamo now are housed in open bays, have numerous hours of exercise per day, are in larger prison yards, wear tan jump suits. The President has invited the press to come and view these things, but it’s very hard to correct misimpressions once they have sunk in.
With respect to the concern about due process and about holding people indefinitely. Again, we have tried to adapt legally to what was simply an unclear legal framework. We have added a number of different procedures to address the concerns; we have instituted what are called Combatant Status Review Tribunals, which review the case for every single detainee in Guantanamo. These were the tribunals that were ordered by our Supreme Court and that allow every detainee to argue his case, to argue that he was not actually fighting when he was picked up. He has the assistance of a military official to help him make his case. And several dozen individuals, as a result of that process, have in fact been ordered released. So there is a process to determine that people who were picked up fighting are properly detained.
Secondarily, we have tried to address the concern that people are being held indefinitely, even though that is absolutely the norm in any kind of an international armed conflict. Of course we understand these concerns, that we are fighting here, as much as fighting terrorism and in a conflict with terrorists, we are also fighting, unfortunately, a public diplomacy battle, and it's important here to address these concerns about due process and human rights.
So we have added additional review mechanisms. Even if a detainee is determined to have been properly detained as a result of the Combatant Status Review Tribunal, every detainee's case is reviewed once a year through an additional process called an Administrative Review Board. He can make his case, he has assistance, his country can come in and make arguments on his behalf, to argue that even if he was properly detained there's no reason to continue to detain the individual because he no longer poses a threat. So, normally in an armed conflict you hold people until the end of the conflict because you expect, if you let them go, that they will go right back to fighting you. In fact, in this case, about ten percent of the individuals who we have released have gone right back to fighting us, and have in fact killed a number of individuals already after they have been released. So, in case there is any question that the individuals who are there perhaps do not pose a threat, I think, perhaps, tell that to the families of those who have been killed by them when they have been released. But the Administrative Review Boards are to determine, does the person continue to pose a threat, and has the war in fact ended with respect to that person? So we have added these additional procedures to address concerns that have been raised.
Let me stop there. But my overall point simply is that after September 11, 2001, we found ourselves in an unprecedented legal position of detaining large numbers of terrorists. Unlike the domestic terrorists who we have found individually in our own countries and who societies have been able to deal with over the years, these were individuals found fighting us on the battlefield; there was not a clear legal framework, contrary to what critics say, that covers these individuals. In fact, let me say, if it were also clear, I would question why is it that half of our critics say that the criminal laws apply, and the other half of the critics say, well, clearly, the Geneva Conventions have to apply. I think the answer to that question is simply that the laws that apply to armies of terrorists trained across the world, and who are picked up by our soldiers, are simply not clear. Our societies did not have frameworks that were ready-made to deal with these kinds of individuals. With that, let me stop, and happy to take your questions.
End of opening statement.