================================================================================ [B] Camp X-Ray activated, Naval Base Guantanamo Bay, 2002/01/10 - 2002/02/06 ================================================================================ January 10, 2002 SECRETARY RUMSFELD JOINT MEDIA AVAILABILITY WITH AUSTRALIAN DEFENSE MINISTER (...) Q: Mr. Secretary, might I ask, in conjunction with film, the TV pictures now coming out of Kandahar: Has the United States begun to transfer al Qaeda and Taliban detainees to Gitmo [Guantanamo Bay, Cuba]? And, as reported, are you considering or will you use such restraints as perhaps tranquilizers and even hoods to keep these people calm -- these, as you say, dangerous people calm as you transport them? Rumsfeld: The transportation from Kandahar very likely is being handled by TransCom [U.S. Transportation Command]. And the detention facilities in Guantanamo Bay, Cuba, are being handled by the acting combatant commander there for SouthCom [U.S. Southern Command]. And they have been authorized and instructed to use appropriate restraint, as you'll recall. I have no idea what specifically that means. What they have done is consult a variety of experts on prisons and prisoners. They have reviewed, at my insistence, the uprising at Mazar-e Sharif, where a great many people were killed because of the prison uprising. They have reviewed the difficulties that the Pakistani soldiers had, where some people were killed as the al Qaeda and Taliban forces that had been detained by the Pakistan army broke loose. And they're fully aware that these are dangerous individuals. As you undoubtedly know, one of them came out of a hospital recently in, I believe, Kandahar, and blew himself up and others -- at least himself. I don't know -- I suspect not others, because they were all aware that that is -- that there are among these prisoners people who are perfectly willing to kill themselves and kill other people. So I hope that they use the appropriate restraint, and that's what I suspect they will be doing. I would like to offer anyone from the Australian press here -- you -- Q: (off mike) -- Rumsfeld: Sure, let me finish with Charlie, and then I'm going to find you. Q: Has the transfer begun, sir? Rumsfeld: Oh, I'm sorry. Yes. I -- it may have. Q: (laughs) Rumsfeld: You never know until it starts. But I mean, there's an intention to begin taking some relatively small numbers of detainees from the detention area at the Kandahar -- in Kandahar to -- I think it would be from that detention area, although you know there are several areas that they could take them from -- and begin at some point bringing them to Guantanamo in the immediate future. It may have started, it may be soon to start, or it may - - they may decide to, for whatever reason -- weather or something -- to have not started. I just don't happen to know. Yes? Q: The Australian al Qaeda member David Hicks -- is he still on the USS Bataan? And when will he be released into Australian authority -- custody, given your statements earlier that people would only be released or repatriated if they were severely punished? And has he provided any useful intelligence? Rumsfeld: If I said what you said, I probably should have said "appropriately punished," as opposed to "severely," because we -- until one makes decisions about individuals, one can't judge how they ought to be treated by a justice system in whatever country. My recollection is, there is an individual who says he's Australian, and his name is Hicks, and that he may very well be among the group that at some point will be going to Guantanamo Bay. Whether he's in the first or second tranche, I just can't be certain, because I'm not there, and I'm not managing that piece of the puzzle. What we have said about all detainees and what I've advised the minister is, it's in our interest -- indeed, I think it's in the world's interest -- to take these people of various nationalities, including an American, as well as an Australian, and see that we engage in the kinds of interrogations and intelligence gathering that will enable us to do the best job possible to stop future terrorist attacks. And what you find is that there's an initial sort, where you take a look at these folks -- and there's hundreds of them, so it's not like it's an easy thing to do -- and you attempt to identify them and take a picture and get fingerprints and that type of thing. And then you attempt to figure out who they are, if they'll talk to you, and figure out what language they're talking, and begin to put them in baskets. Are they senior people that merit special attention? What nationalities are they? What kinds of likely intelligence might we get? And then they begin a process of interrogation to try to gather intelligence as rapidly as possible from them. The truth is that at some point you get what you think you can get from a given individual, but you know in the back of your mind that you may discover some intelligence material or a laptop or an address book in a house in Kabul or Kandahar or Herat, wherever, that would connect this person. So you know that after you've gone through that first interrogation, it's best to wait a bit and see what other kinds of information comes up from other people, from computers, from various other types of intelligence gathering, including law enforcement actions all across the globe. You might arrest somebody with pocket litter that connects that person to one of the people you're interrogating. So you don't hurry through this. When you're talking about defending against terrorist actions against this country and our friends and allies around the world, you take your time and you try to do it right. And that's what we're doing. (...) * * * January 11, 2002 DOD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. MYERS (excerpts) (...) Myers: The number of al Qaeda and Taliban detainees transferred to U.S. forces in Afghanistan has continued to grow and now stands at 445. As the secretary said, the first plane with 20 detainees arrived in Guantanamo Bay, Cuba. We got the -- we were notified here at approximately 13:50 our time. As the plane departed Kandahar yesterday, there were reports of some small arms fired. This occurred over the span of about an hour, around the time the aircraft was departing. The Marines at the airport launched a quick reaction force to investigate the shots. The approach of our forces apparently caused those who were responsible for the shooting to flee, and a sweep afterward did not uncover significant material nor the folks that were doing the shooting. (...) !!! Q: Mr. Secretary, now that the first planeload of detainees has landed in Cuba, how do you respond to charges from some non-governmental organizations that hooding, shaving, chaining, perhaps even -- Rumsfeld: What are the words? Q: Hooding, putting hoods on, shaving, chaining, perhaps even tranquilizing some of these people is violating their civil rights? Rumsfeld: That -- that's not correct. Q: That you've done it or that -- Q: That you've done it or that it violates -- Rumsfeld: That it's a violation of their rights. It simply isn't. And the -- I asked if anyone had had to be sedated and the answer was that there was one person who was sedated during the course of the trip from Kandahar to Guantanamo Bay, Cuba. But that's all. And the prisoners -- all one has to do is look at television any day of the week, and you can see that when prisoners are being moved between locations, they're frequently restrained in some way with handcuffs or some sort of restraints. That is not new, it is not in any way inappropriate, and I think one ought to go and ask about the source of those kinds of comments, rather than the substance of them. Q: Will these people be given -- will the International Red Cross and perhaps other nongovernmental organizations be given to these people? Rumsfeld: Be -- Q: Be given -- will they be given access to these detainees? Rumsfeld: I think that we're in the process of sorting through precisely the right way to handle them, and they will be handled in the right way. They will be handled not as prisoners of wars, because they're not, but as unlawful combatants. The -- as I understand it, technically unlawful combatants do not have any rights under the Geneva Convention. We have indicated that we do plan to, for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate, and that is exactly what we have been doing. Q: Mr. Secretary? Rumsfeld: Yes? Q: John Walker -- as we understand it, he's still being held aboard the Bataan in the Arabian Sea. What does the United States intend to do with him? Is he being held incommunicado? Can he talk to his family and his attorney? How long do you intend to hold him? What can you tell us about John Walker, please? Rumsfeld: That his case is being addressed by the Department of Defense and the Department of Justice, and at some point in the period ahead, we'll have a recommendation. Q: But not imminent? Rumsfeld: I don't set deadlines. Who knows? I know it's being addressed actively, and a decision will be made at some point in the period ahead. (...) Q: Mr. Secretary, you said, that for the most part, the detainees will be treated in a manner consistent with the Geneva Convention. Exactly which parts, which rights, privileges of the Geneva Convention will they have, and who will decide, and when will it be decided on an ad hoc basis? And just as a follow-up, can you say if there's been any -- Rumsfeld: Well, let me work on that one for a minute. That's a mouthful. What we've said from the beginning is that these are unlawful combatants in our view, and we're detaining them. We call them detainees, not prisoners of war. We call them detainees. We have said that, you know, being the kind of a country we are, it's our intention to recognize that there are certain standards that are generally appropriate for treating people who were -- are prisoners are war, which these people are not, and -- in our view -- but there -- and, you know, to the extent that it's reasonable, we will end up using roughly that standard. And that's what we're doing. I don't -- I wouldn't want to say that I know in any instance where we would deviate from that or where we might exceed it. But I'm sure we'll probably be on both sides of it modestly. Q: For instance, will we be allowed to see a list of exactly who the detainees are? Rumsfeld: I don't know. I've got -- there are a bunch of lawyers who are looking at all these treaties and conventions and everything, trying to figure out what's appropriate. The only thing, I did notice that you can't take pictures of them. That's considered embarrassing for them, and they can't be interviewed, according to the Geneva Convention. Myers: Let me add a couple -- Rumsfeld: Yeah, sure. Myers: Let me just add a couple of things to that. We've got to remember that these are very, very dangerous people. And, as I think Charlie, you asked the first question about, well, why were they shackled? I mean, these are -- Q: I'm just passing on the -- (off mike.) Myers: Well, I'm not. Rumsfeld: (Laughs.) Myers: Charlie, I'm coming right back to you. I said you asked the question; I didn't say anything else. (Laughter.) But if you remember the situation in Mazar -- Rumsfeld: A little sensitive! Did you notice how sensitive Charlie is? (Laughs; laughter.) Do you want to stand up and give your full name and your organization? (Laughs; laughter.) Myers: But if you remember the situation in Mazar, where the start of the rebellion was one of them that had explosives, a grenade or something, and killed himself, and it sort of started. I mean, these are people that would gnaw hydraulic lines in the back of a C-17 to bring it down. I mean, so this is -- these are very, very dangerous people, and that's how they're being treated. At the same time, let me give you a little context on how they're going to be handled when they hit the -- Guantanamo Bay. The meals they're going to be served are going to be culturally appropriate for them. And so, I mean, we're going to try to do our best to treat them humanely, at the same time realizing that they're very, very dangerous people. Q: Could you describe the incident that occurred aboard the plane? You mentioned that one -- Rumsfeld: I can't. Q: Oh, okay. Rumsfeld: I just asked the question, was anyone sedated before, during or in either leg of the trip. And the answer was no, expect one person was -- had to be sedated, and I don't know -- Myers: And we might find out after -- and that was -- and we might find out later on the last part of the trip. We haven't gotten a report yet. There might have been -- Q: They didn't try to gnaw through a hydraulic line? Rumsfeld: No, no. (Laughter.) Hyperbole. Myers: That was hyperbole. (More laughter.) (...) Q: Can you tell us a little bit more about the prisoners who arrived today? I mean, who they were, what -- Rumsfeld: They're just a group that they picked and decided to bring -- they're the first 20. I don't even know their names. Q: Are they people who were chosen because they're senior people, because -- Rumsfeld: No, I think it probably has more to do with getting the thing started, and people who probably had reached a certain phase of interrogation that -- they may very well have been early detainees and people who have reached a certain phase of the interrogation that it was appropriate to move them to the other location to free up openings there. Because as Afghan detainees -- correction -- people being detained by Afghans and people being detained in Pakistan get released to us, obviously we need space at Kandahar, and we need space at Bagram and different places. So we just have to keep the flow going, and that's what's taking place. Yes? Q: If these guys are so dangerous and they're so -- Rumsfeld: The implication being they're not? Q: No, no, no. Rumsfeld: Oh. Q: I'm just saying, since they are, how is it that we're able to get specific information on, you know, al Qaeda leaders? In other words, they're obviously not willing to give us that kind of information. Are some of them just deciding that it's best for them to give us the information? Is there a large number of them that are willing to do the interviews? Rumsfeld: There's several aspects to it, and one aspect is that there are Taliban who know things about al Qaeda. And they may not be as hard-core as the al Qaeda, but they may have worked in close proximity with them. They may have been functionaries for them. They may have been couriers for them. They may have been whatever. And so that's one location. Some other people just may decide that the better -- you know, that -- "that's enough of that, and maybe I'll just go ahead and cooperate and see if I can get myself in a better circumstance." Jim? Q: Can you tell us whether that's a large number or large proportion of these guys? Rumsfeld: I can't. (...) !!! Q: Mr. Secretary, can you explain why combatants who are on the enemy side and were captured -- in some cases, combat -- in wartime should not be considered prisoners of war? Rumsfeld: It is a technical matter for lawyers, and there are a series of things that common usage looks for -- uniforms -- I'm trying to think of what some -- how one carries their weapons -- visibly or invisibly. These kind -- there's a whole series of things that are used as a template for people to determine whether or not somebody was functioning in a visibly clear military manner or whether they were not. And to the extent they were not, I'm told by lawyers that they fit in another category. It may very well be one of the reasons that the United States is quite careful about that. Q: But why is it important that you not consider them -- in other words, why not just treat them as prisoners of war? If prisoners of war get additional rights and protections, why not just treat them that way? Rumsfeld: That's basically what we're doing. That's what I've said. We're generally conforming to the Geneva Convention as it applies to prisoners of war. That's what that -- Q: Why not let it officially apply? !!! Rumsfeld: Well, first of all, we don't have to. And second, I -- we're still in the very early stages of this, and we're in the process of trying to figure out the answers to all of this and how -- what's the best way to do it? What's the proper way to do it? How will we feel good about having done it a certain way? And what is appropriate? And those are the kinds of things that we're going through, because, as I say, there's hundreds of these people, and more coming from the ones that are being detained by our friends. And so we're trying to rapidly build detention areas that are appropriate, and we're trying to train people to -- military people to handle hard-case detainees, and -- when that isn't what they normally do when they get up in the morning. And we're just trying to do it right. Q: If U.S. troops which were not wearing uniforms were captured, would you expect them to be treated with -- in conjunction with the Geneva Convention? Rumsfeld: I would expect that other countries in -- if they were captured by Taliban? No, I'd expect they'd have been killed -- or the al Qaeda -- they'd have just been shot summarily, as happened with any number of people. I don't know if you were referring to that. You probably weren't. Q: Mr. Secretary, can we just quickly go -- (Cross talk.) Rumsfeld: I would expect that U.S. military people would be treated in a manner that was appropriate to their circumstance and -- as we are treating others in a manner that's appropriate to their circumstance. There's nothing unusual about it or unique. It's very -- (Cross talk.) We'll go -- no, no, no, no -- Q: Will tribunals be held at Guantanamo? Will tribunals be held at Guantanamo, sir? (Cross talk) (Laughter.) Rumsfeld: I'm plucky, but I'm not stupid. I'm going to -- (laughter). (Laughs.) Thank you. Q: Thank you. * * * !!! December 13, 2001 TESTIMONY BEFORE THE SENATE ARMED SERVICES COMMITTEE ON MILITARY COMMISSIONS Given by Deputy Secretary of Defense Paul Wolfowitz, and William J. Haynes II, DoD General Counsel, 325 Russell Senate Office Building, Washington, D.C., Wednesday, December 13, 2001. SEN. LEVIN: Good morning, everybody. The committee meets this morning to receive testimony from the Department of Defense on the department's plans to implement the president's military order of November 13th, 2001. The president's military order relates to the detention, treatment and trial by military commissions of certain non- citizens in the war against terrorism. Secretary Rumsfeld has been designated by the president to develop orders and regulations to carry out that military order. Last week the attorney general referred many questions from the Judiciary Committee about rules and procedures for the military commissions to the Department of Defense. The military order was issued by the president in the aftermath of and in response to the horrendous terrorist attacks on September 11th of this year. The Congress on September 14th authorized the use of all necessary and appropriate force against those nations, organizations or persons that planned, authorized, committed or aided those terrorist attacks or harbored such persons or organizations. The United Nations Security Council, at the urging of the United States, reacted to those terrorist attacks by calling on all states to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks, and stresses, in the words of the United Nations resolution, that those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable. On September 11th, the North Atlantic Council released a statement that, among other things, said: "Our message to the people of the United States is that we are with you. Our message to those who perpetrated these unspeakable crimes is equally clear: You will not get away with it." For the first time in its history, NATO invoked Article 5 of the Washington Treaty, which states that an armed attack on one or more of the allies in Europe or North America shall be considered an attack on them all. Today, NATO AWACS aircraft are flying patrols over the United States to assist our armed forces in protecting the United States. Heads of government and state have visited the White House to express support for the United States and to pledge their cooperation to bring to justice the perpetrators, organizers and sponsors of the terrorist attacks. In light of the extraordinary support from the international community, support which I believe reflects a recognition of and appreciation for the United States' core values of democracy, freedom, tolerance and respect for due process, I believe that we should work to ensure that the manner in which the military commissions are carried out will not undercut either those core values or that international support. We should also work to ensure that the way in which the military commissions operate does not jeopardize the standing of the United States to object to unfair conduct by military tribunals of other nations towards U.S. citizens; for example, the secret trials without access to state's evidence by Peruvian military courts. Finally, we should work to ensure the military commissions will operate in a manner that doesn't cause other nations, including our allies, to refuse to extradite suspected terrorists to the United States because of the alleged lack of due process provided by such commissions. I believe there is an appropriate role for military commissions. They have a long history going back, in one form or another, to George Washington. But they must be used wisely. They must provide for the basic rights for individuals tried before them so that we do not violate our fundamental values of fairness and due process, values that this nation has always stood for, and values for which American service men and women have risked their lives. A careful reading of the president's military order raises a number of issues. The scope of overage is broad. Since it includes both past and future acts, there's no apparent time limit, and it has no definition of "terrorism." The order says that it applies not just to, quote, "violations of the laws of war," close quote, but also to violations of, quote, "other applicable laws," close quote. The attorney general, in his testimony before the Judiciary Committee last week, said it would apply only to individuals who committed war crimes. White House Counsel Alberto Gonzales made a similar statement. But the president's military order reads otherwise. There are also many questions about the conduct of the trials before the military commissions. Before I get into some of those questions, I want to clarify one matter. A number of people, the White House counsel included, have equated military commissions with our system of military justice, including courts-martial. This committee has jurisdiction over the Uniformed Code of Military Justice, which is found in Title X of the United States Code. There is a difference between the high level of protections afforded our military personnel tried before courts- martial, where the evidentiary rules and burden of proof are virtually identical to those in our federal district courts, and the procedural protections for individuals tried before military commissions. Speaking of them in the same breath creates an enormous impression about both. The United States Code itself provides that the principles of law and the rules of evidence that are generally recognized in the federal trial of criminal cases should apply to military commissions only so far as the president considers practicable. President Bush has already made an affirmative finding in his order that such is not practicable. But what he does require is that the rules and regulations issued by the secretary of Defense shall, quote, "at a minimum, provide for a full and fair trial." Close quote. The secretary of Defense's task, then, is to establish the rules and procedures to ensure a full and fair trial. One of our objectives today is to explore what some of those rules and procedures should include. For instance, does it include the accused's right to present witnesses? Does a full and fair trial provide for the presumption of innocence? Does it provide for the accused's rights to select his own counsel or to have assigned counsel, for those who cannot afford one? Does a full and fair trial necessitate a unanimous vote for the imposition of the death penalty? Under President Bush's military order, conviction and sentencing can occur on a two-thirds vote of a majority being present. In a five-person commission with a majority of three members present, that could require a vote of only two of the members of the commission. Can that be tightened by the secretary of Defense, should he determine to do so? Does a full and fair trial provide for habeas corpus? The attorney general told the Judiciary Committee that habeas corpus would be available to persons tried by a military commission sitting in the United States. White House counsel Gonzales has written that the president's order, quote, "preserves judicial review in civilian courts," close quote. But the president's order itself states that, quote, "an individual shall not be privileged to seek any remedy or maintain any proceeding in any court of the United States or any state thereof," close quote. We need to hear how these seemingly conflicting positions are going to be resolved. Some have suggested that it is aiding terrorists or diminishing our resolve or eroding national unity to discuss the need for fundamental due process in military tribunals. Quite the contrary. What this country is about what the president's announced intent to bring terrorists to justice was about are values of due process and justice. I hope the secretary of Defense will welcome constructive discussion of the issues that he must grapple with in designing procedures for military commissions. Public discussion about how best to dispense justice can make the outcome stronger. It will help assure that military commissions will stand the test of time, so that we don't look back with regret at how we handled these critical issues in the crucible in which we find ourselves. The bottom line for me is this: Military commissions have a role when our nation is attacked and civilians are deliberately targeted, in violation of the laws of war. If the rules adopted by the secretary of Defense provide for a fundamental level of due process, it will be recognized as such by the civilized nations of the world. These military commissions will not only dispense prompt results, but just results, which, in turn, will enhance the status of the United States as the standard-bearer for democracy, respect for human rights and human liberty. Senator Warner. SEN. JOHN WARNER (R-VA): Thank you, Mr. Chairman. Your bottom line, I think, frames the issues before us. And I would only add that the president of the United States, who has brilliantly and courageously executed this military operation to date, will continue to see that his Cabinet officers, primarily the secretary of Defense, who is represented here today by a very distinguished deputy secretary of Defense and general counsel -- they will formulate those regulations in such as way as to preserve fundamental due process, to which you refer, and which is absolutely essential if we are to continue in this war against terrorism and have the vital support that is necessary of coalition nations joining in these efforts. This is a clear example of the constitutional authority of a president of the United States in the time of war. It goes way back into the history of our nation. Many other presidents, faced with comparable situations, have exercised their constitutional right to establish these tribunals. Now, the Department of Defense, thus far, is proceeding, in my judgment, very carefully, very thoroughly, to devise these regulations, consulting with other departments and agencies of the federal government, and reaching outside of government to receive the benefit of counsel from those who have had long careers in law and who have spent their lifetime ensuring the due process for others. I hope at some eventual time, the secretary of Defense can share with the public those many distinguished scholars and others who have worked with you in this challenge. The use of the military commissions and court-martials (sic) are most widely accepted venues for enforcing violations of the law of war -- a body of law virtually unknown to the average citizen here in our nation but, nevertheless, well established in international law and within our own jurisprudence. The events of September 11th, that have killed some thousands of our innocent -- and I repeat, innocent -- American civilians, and many others from over 80 nations, were acts of war against the United States and against the whole civilized world. United Nations has endorsed the United States' right to use military force in self-defense, NATO has, and Congress has authorized the use of force. We are in a war, and we will follow through and conclude these military operations at some time in the indefinite future. But in the meantime, it is incumbent upon our president to begin to lay the foundation for bringing to the courts of justice those that are identified as perpetrators of these crimes. Mr. Chairman, we are privileged to have on this committee several members of the Judiciary Committee of the United States Senate. That committee has done a good deal of work on this issue, four hearings. On our side we have Mr. Sessions, and I'm going to ask that my statement be incorporated in the record, and yield a few minutes to him; with my concluding remark that this nation is faced with perhaps the most serious challenge in contemporary America, to balance due process, freedom, civil liberties, all of those things we hold most dearly, against the need to bring to justice, in a sense of fairness, those who are identified as the perpetrators of this crime and series of crimes. We will achieve that, I'm confident. So Mr. Sessions, if you'd take the balance of my time. Thank you for your work on this subject. SEN. JEFF SESSIONS (R-AL): Thank you, Mr. Chairman -- Mr. Ranking Member. And I thank for your remarks and those of the chairman for his excellent remarks, because we're talking about some matters of real importance. I thought it would be valuable, Senator Warner, that we recapitulate some of the things that have occurred already. There have been four hearings in the Judiciary Committee, one before the full Judiciary Committee, in which Assistant Attorney General Chertoff of the Criminal Division answered questions concerning all matters dealing with the nation's response to these terrorism attacks, including military commissions. Then we had a subcommittee meeting with Senator Schumer, and I'm the ranking member, and it dealt solely with the military commission. I think we had a lot of extreme comments early on about what was right and legal and proper. I think after that hearing, all of us concluded that there was a firm constitutional and historical and legal basis for military commissions. And even liberal professors, such as Laurence Tribe and Cass Sunstein both affirmed their belief that a military commission is a legitimate way to deal with illegal combatants in a time of war. Senator Feingold also had a hearing -- on issues relating to the terrorist attacks -- that I participated in. And then we had a full committee hearing of about four hours with the attorney general, in which he answered all kinds of questions dealing with this entire matter. I felt like after that, that many of the concerns had been allayed. Many of the fears that some people initially expressed had been satisfied and that the procedures that were ongoing, when clearly studied, were the kind of procedures we can be proud of. So I think at this point, the military commission is legitimate. I think it's appropriate that the Department of Defense be working on the procedures to conduct those. The UCMJ that we authorized in this Congress specifically gives the president the power to set the procedures for a military commission, and ultimately, they will have to be fair. The Department of Defense will have to be sure these trials are conducted fairly. But I think we would do well to recognize that this Senate really isn't in a position to draft specific procedures for military trials under these circumstances. We should let the Defense Department do that and evaluate them as they go forward. Thank you, Mr. Chairman. SEN. LEVIN: Thank you, Senator Sessions. Senator Kennedy, of course, is also on Judiciary, and, chatting with Senator Warner here, we thought it would be appropriate also for Senator Kennedy, should he desire to have a brief opening statement, as well -- and then we're going to go to our witnesses and then come back to eight-minute round of questions. SEN. EDWARD KENNEDY (D-MA): Thank you. And first of all, I think any of us who are meeting today are once again mindful, as our two chairs have said, about thanking you, Mr. Secretary, and through you, the military forces of our country, that are doing such a superb job. And I think all Americans feel that way, and it's just one more indication of -- expression of that feeling. Secondly, thank you very much for being here on this topic. Just -- as a member of the Judiciary Committee, and now here on the Armed Services Committee, the two committees' interest in justice and also the pursuit of those that are violating our laws are best, I think, illustrated by this morning's announcement, where the decision by the Justice Department to go ahead with Zacarias Moussaoui and try him in a federal court -- that's in the Judiciary Committee -- military tribunals are here. We're talking about a person that is going to be charged with the kinds of crimes that threaten the lives of American citizens. That decision is a clear expression of the administration's about competency in the federal courts and where all the rights and protections will be accorded to the defendant in that. We are now considering the military tribunals, and we're going to be interested in what protections are going to be there in terms of the -- those that will be under the military tribunals, and defining how the law -- how the administration is going to make the judgments between one and the other. I think that this decision by the Justice Department is enormously significant, and at a time -- in your comments, I'd hope you would express your own views, whether you supported that decision and how you evaluated that decision, what the considerations were in your own mind about why that ought to have gone to the federal courts, as compared to going to the military courts. I think these illustrations of the military tribunal, which will be testifying today -- the decision to try one of the leading terrorists in the federal court illustrates, at least, the challenges that were going to be faced. And we're -- be enormously interested, as one who has prime interest and responsibility in both of these areas, to tell us your views about this. Thank you, Mr. Chairman. SEN. LEVIN: Thank you, Senator Kennedy. And now, Secretary Wolfowitz, we turn to you. Thank you for coming. And again, we all join in Senator Kennedy's sentiments about the extraordinarily brilliant manner in which this matter has been handled militarily. We thank you. We thank the secretary, your staff, for your total commitment and focus on prevailing, and, of course, the men and women of our military for their superb, superb operations. MR. WOLFOWITZ: Since thanks are due here, I think thanks are due to the committee and to the Congress for the great support they've given to the Defense Department over the years, and particularly in recent months in this war effort. And as everyone has indicated, I think most of all we as a nation are indebted to the brave men and women in uniform who have been conducting this operation brilliantly and bravely and, so far, quite successfully, although there's a lot more work to do. SEN. LEVIN: Could you pull your mike just a little bit closer to you? MR. WOLFOWITZ: Okay. Does that work? Mr. Chairman, I'm not sure I've ever delivered a statement that is the testimony of the secretary of Defense as well as myself, but that is what I'm doing this morning. Secretary Rumsfeld had very much hoped to be here this morning, but unfortunately, he had an NSC meeting and was prevented from attending. He and I prepared this statement, which he had intended to deliver this morning and which I would now like to present to the committee. But I would like to have the record reflect that it is a statement from both the secretary and myself. Also, I have with me the general counsel of the Department of Defense, Jim Haynes, who, unlike myself, is a lawyer and can answer some of your questions much better than I will be able to do. Mr. Chairman, on September 11th, Americans found their nation under attack. Terrorists hijacked civilian airliners, turned them into missiles and used them to kill thousands of innocent Americans -- men, women and children -- as well as people from dozens of nations. Today, three months after the attack, the ruins of the World Trade towers are still burning and bodies are still being pulled from the wreckage. Over the weekend, the remains of 20 more were recovered -- five firefighters, two policemen, and a group that had been trapped in a stairwell as they tried to escape the collapsing tower. Their families will now be able to bury them, but many hundreds of families who lost loved ones, mothers and fathers, husbands and wives, sisters and brothers, sons and daughters, still have not been able to bury their dead, and possibly never will. It is still difficult to fathom the enormity of what happened on September 11th. As time passes and the fires finally burn out, Americans will eventually recover from the shock and horror of what befell our nation that day. But those who are responsible for our national defense must not lose sight of the fact that these are not normal times. We have been attacked, we are at war, and we must take the steps necessary to defend our people and to protect them from further harm. The September 11th attacks were acts of war. The people who planned and carried out these attacks are not common criminals; they are foreign aggressors, vicious enemies whose goal was and remains to kill as many innocent Americans as possible. And let there be no doubt: They will strike again unless we are able to stop them. We have no greater responsibility as a nation than to stop these terrorists, to find them, to root them out and to prevent them from murdering more of our citizens. To accomplish that objective, the president is marshalling every tool at his disposal -- military, diplomatic, financial, economic. He is working to freeze the assets of terrorist leaders and organizations that sponsor and finance terror. He is working with foreign governments to shut down the terrorist networks that operate in dozens of countries across the world. And he has sent brave Americans to Afghanistan -- courageous soldiers, sailors, airmen and Marines who, at this moment, are risking their lives to stop the al Qaeda terrorist network and the Taliban that seek to kill our people. This is not a law enforcement action; it is war. We seek to destroy or defeat our terrorist enemies so they cannot harm Americans. When coalition forces storm a Taliban compound or an al Qaeda safe house, they cannot ask for a search warrant. When they confront Taliban or al Qaeda or fighters in the caves and shadows where they hide, they are in combat. Their objective is to stop the terrorists and prevent them from continuing to threaten our country. The U.S. military is doing this in Afghanistan, and they are doing it extremely well. But the terrorists who threaten us are not only in Afghanistan; they operate in dozens of countries, including the United States. They are and remain unlawful belligerents -- adversaries who attacked our nation in contravention of the rules of war. And the president has made it clear that we will hunt them down wherever they hide. When enemy forces are captured, wherever they are captured, they must then be dealt with. There are a number of tools at the country's disposal for doing so. One of those tools is the establishment of military war crimes commissions. The president, as commander in chief, has issued a military order that would permit individual non-U.S. citizens to be tried by military commissions. As yet, he has not designated anyone to be tried by such a commission. He may do so; he may not. To prepare for the possibility that he may do so, the Department of Defense is developing appropriate procedures for such commissions. We are in the process of developing those procedures. We are consulting a wide variety of individuals and experts inside and outside of government to discuss how such commissions should operate and how they have operated in the past. We are working to establish rules of procedure that will ensure, in the event the president decides to designate a non-U.S. citizen to be tried by a military commission -- and I would underscore that he has not yet designated anyone to be tried in this manner, and that it would only apply to non- U.S. citizens -- but should he decide to designate a non-U.S. citizen to be tried by a military commission, it will be handled in a measured, balanced, thoughtful way that reflects our country's values. Military commissions have been used in times of war since the founding of this nation. George Washington used them during the Revolutionary War. Abraham Lincoln used them during the Civil War. President Franklin Roosevelt used them during World War II. During and following World War II, we did not bring German and Japanese war criminals to the United States for trial in civilian courts; we tried them by military commissions. In Germany, we prosecuted 1,672 individuals for war crimes before U.S. military commissions. Convictions were obtained in 1,416 cases. In Japan, we tried 996 suspected war criminals before military commissions, of which 856 were convicted. These conviction rates, you will note, are not out of line with normal, non-military commission outcomes; indeed, they are lower than the felony conviction rate in the U.S. federal courts last year. When eight Nazi saboteurs landed on our coast in 1942, with the intention and purpose of destroying American industrial facilities, they were tried by military commission. Indeed, in that case, the Supreme Court upheld the constitutionality of military commissions. In the case of ex parte Quirin, the court ruled unanimously, in an 8 to zero decision, that the trial of the Nazi saboteurs by a military commission without a jury was indeed constitutional, declaring, in the court's words, "unlawful combatants are subject to punishment by military tribunals for acts which render their belligerency unlawful." Further, the U.S. Congress also recognized the use of military commissions after World War II when it passed the Uniformed Code of Military Justice in 1950, which included statutory language preserving the jurisdiction of military commission. So all three branches of the U.S. government have endorsed the use of military commissions. Mr. Chairman, our ability to bring justice to foreign terrorists is critical to our ability to defend the country against future terrorist threats. Moreover, it is well established that a foreign national who is engaged in armed conflict against the United States has no constitutional claim to the rights and procedures that would apply to a domestic criminal prosecution. Furthermore, there are a number of compelling reasons for using military commissions instead of civilian courts to try unlawful belligerents in times of war. First, by using military commissions, we can better protect civilian judges, jurors and courts from terrorist threats and assure the security of the trial itself. Because of the ongoing threat from terrorists, the risks to jurors are of a kind that military officers are trained and prepared to confront, but that are not normally imposed on jurors in civilian trials. Indeed, the judge who handled the trial for the first World Trade Center attack, the 1993 attack, is still under 24-hour protection by federal marshals, and probably will be for the rest of his life. It is also important to avoid the risk of terrorist incidents, reprisals or hostage-takings during an extended civilian trial. Moreover, appeals or petitions for habeas corpus could extend the process for years. Military commissions would permit speedy, secure, fair and flexible proceedings in a variety of locations that would make it possible to minimize these risks. Second, federal rules of evidence often prevent the introduction of valid factual evidence for public policy reasons that have no application in a trial of a foreign terrorist. By contrast, military tribunals can permit more inclusive rules of evidence, a flexibility which could be critical in wartime, when it may be difficult, for example, to establish chains of custody for documents or to locate witnesses. Military commissions allow those judging the case to hear all probative evidence, including evidence obtained under conditions of war, evidence that could be critical to obtaining a conviction. Third, military commissions can allow the use of classified information without endangering sources and methods. This point is critical. During the course of a civilian trial, prosecutors could be faced with a situation where, in order to secure a conviction, they would have to use classified information that would expose how the U.S. monitors terrorist activities and communications. They could be forced to allow terrorists to go free or to offer them lighter sentences in order to protect a source that is critical to our national security. Do we really want to be in the position of choosing between a successful prosecution of an al Qaeda terrorist or revealing intelligence information which, if exposed, could reduce our ability to stop the next terrorist attack, at a cost of thousands more American lives? A military commission can permit us to avoid this dilemma. We can protect national security, including ongoing military operations in Afghanistan, while at the same time ensuring a full and fair trial for any individuals that might be designated by the president. Again, Mr. Chairman, the president has not designated anyone so far to be tried by military commission. And we have not yet concluded or issued regulations or established rules of procedure. But we are at war with an enemy that has flagrantly violated the rules of war. They do not wear uniforms. They hide in caves abroad and among us here at home. They target civilians, innocent men, women and children of all races and religions. And they intend to attack us again, let there be no doubt. They are not common criminals, they are war criminals. We must, and we will, defend this country from them. Military tribunals are one of many instruments we may use to do so. We are confident that we will develop a process that Americans will have confidence in and which is fully consistent with the principles of justice and fairness our country is known for throughout the world. We have the reputation as a nation for dealing fairly in these kinds of matters, and we will do so in this case. We will bring justice to the terrorists and ensure that the American people can once again live their lives in freedom and without fear. And Mr. Chairman, I believe this hearing and the views of this committee can be an important contribution to making sure that we achieve those goals, and we appreciate the opportunity to testify before you. Thank you. SEN. LEVIN: Secretary Wolfowitz, thank you. Mr. Haynes, do you have any additional statement? MR. HAYNES: Just a brief one, Mr. Chairman. Chairman Levin, Senator Warner, it is a pleasure to be here again before your committee. The president's military order to the secretary of Defense is as serious as any the president gives as commander in chief. The secretary is determined to be deliberate and careful in implementing the order. He has asked me to assist him in framing the issues, surfacing the relative weights of the different considerations that would go into it. And he has asked me to work with others to help bring those very important issues, many of which you highlighted in your opening statement, to his attention for his decision. That is a principal reason for me to be here today, and I'm pleased to be back. SEN. LEVIN: Thank you both for your opening statements. They're very helpful indeed. SEN. WARNER: Mr. Chairman, I just want to congratulate the deputy secretary, speaking on behalf of the president and the secretary of Defense, for an excellent, fair and balanced presentation. The bottom line is, the American people trust our president. And the question now, is the Congress going to trust our president to go forward exercising his constitutional authority, with really the input coming from the Congress, not to write the regs, but you will receive the recommendations that we wish to make and take them into consideration. Thank you. SEN. LEVIN: We'll have eight-minute rounds, as I mentioned. We will proceed with the usual early-bird approach. We will proceed with the usual early-bird approach. Secretary Wolfowitz, when the attorney general testified last week before the Senate Judiciary Committee, while on the whole he referred most of the details to the Department of Defense, on some specific issues he made statements that I'd like to ask you about and see whether or not you're in agreement with. The attorney general was asked, since the order gives the president or the secretary of Defense the authority to make the final decision, whether or not that means that the secretary of Defense or the president could reverse an acquittal of somebody who is charged with a crime, because by the terms of the order, it could be read that way. The attorney general said that he's confident that that was not the intention of the order, and I'm wondering whether you agree with that. MR. WOLFOWITZ: It's my understanding that was not the intention of the order. Do you want to add anything, counsel? SEN. LEVIN: Thank you. The attorney general was asked whether he believed that there should be appellate procedures under the order other than the president and the secretary of Defense -- in other words, appellate procedures by an outside third party -- because the order of the president appears to preclude that. The attorney general said that he believes that the Department of Defense, quote, "has the authority to develop appellate procedures under the order," closed quote. And I'm wondering whether you agree that you have the authority to establish appellate procedures outside of the chain of command, in other words, outside of the secretary and the president. MR. WOLFOWITZ: Mr. Chairman, I'm going to ask the general counsel to address the issue of authority. But I believe that it's worth emphasizing very, very strongly here that we are proceeding very deliberately. It is nearly a month now since the president issued that order. And as I believe everyone has observed, we have not yet -- he has not yet chosen to designate anyone for trial by those commissions. We are still working on the procedures. We are listening very carefully to a very wide range of views, some very distinguished outsiders. And I won't try to mention everyone, but to give you a sense of -- SEN. LEVIN: I wonder, though, whether you could just address the question, because we're limited in time. MR. WOLFOWITZ: Okay. SEN. LEVIN: Do you agree with the attorney general that -- MR. WOLFOWITZ: I believe we have the authority. SEN. LEVIN: Pardon? I'm sorry, you do or do not. MR. WOLFOWITZ: I believe we do. MR. HAYNES: Mr. Chairman, the president's order specifically does provide for at least some review, because the president reserves the right to review the decision of the tribunal or designate the secretary of Defense to do so. The order also provides that the record will be reviewed, the record and the proceedings will be reviewed. So another form of that could be in the implementation of that aspect of the president's military order. If I may go back to the first question that you had about reversal of acquittals, the question, as stated, supposes a particular form of decision- making by the commission or by the military war crimes tribunal. So the actual procedure for reviewing decisions of the commission are not yet formed. SEN. LEVIN: I understand that, but I'm wondering whether you agree with the attorney general that the department does have authority to develop appellate procedures under the order, outside of the review by the secretary of Defense or the president. Have you resolved that issue yet? MR. HAYNES: We have not resolved the particular form, but the -- SEN. LEVIN: Okay. MR. HAYNES: That's the short answer. SEN. LEVIN: The attorney general told the Judiciary Committee that the tribunals would be subject to habeas corpus review to the same extent as in the Quirin case, that being for review of the constitutionality of the tribunal and whether the defendants were legally subject to the tribunal. But the president's order itself is very explicit. It says that "The individual charged shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or have any such remedy or proceeding sought on the individual's behalf in any court of the United States or any state thereof." There seems to be a direct inconsistency here as to whether or not there is habeas corpus review provided between what the attorney general said, and indeed what I believe the counsel for the president said, and between the order itself. So my question is, do you agree with the attorney general? Was the attorney general right, or does the order govern the question of habeas corpus review? MR. HAYNES: I agree with the attorney general. The actual order from the president is identical in that respect to President Roosevelt's order. The Supreme Court in that case determined that it had jurisdiction to review the case under those circumstances, and there's no intention to change that -- SEN. LEVIN: All right, thank you. MR. HAYNES: -- in this case. SEN. LEVIN: The attorney general was asked whether or not only war crimes would be tried by the tribunals, because the order states that the jurisdiction of the tribunals go beyond war crimes, in the words of the order, to "other applicable laws." And just to read a little bit more context, that "Individuals that are detained, when tried, will be tried for violations of the laws of war and other applicable laws." But the attorney general said that only war crimes would be tried by the tribunals, and I'm wondering whether you agree with the attorney general. MR. HAYNES: It's my understanding that the president intends to use this tool, if he does do it, consistent with the tradition of the use of military commissions, which traditionally has been for that purpose, to try war crimes under the common law of war. SEN. LEVIN: And only war crimes. MR. HAYNES: That's my understanding, yes, sir. SEN. LEVIN: Let me go over with you now some of the possible elements of a full and fair hearing. I'd like to just hear from you whether or not you think these elements are part of a full and fair hearing. First, the presumption of innocence. Will there be a presumption of innocence? MR. HAYNES: Senator Levin, the secretary has not made decisions about the individual aspects of the proceedings. There will be some basic procedures that will have to be balanced in context of all the other proceedings. Those elements of due process that are in accordance with the tradition of the use of military commissions will be considered and ultimately decided by the secretary of Defense. SEN. LEVIN: In other words, there is still a question as to whether or not, for instance, there's a right to counsel or there's a presumption of innocence or being informed of the charges against you. Are those still unresolved questions? MR. HAYNES: Well, no, sir. The president's order says that there shall be a full and fair trial. It clearly says that the accused will have counsel. What is a full and fair trial may involve a number of different issues, but clearly that is a direct order from the president, and I'm confident that there will be one. SEN. LEVIN: But I'm trying to just conclude by finding out whether or not there's some question as to whether or not there is the presumption of innocence or the right to cross-examine witnesses or being informed of the charges against you in a language that you understand, whether or not there's still a question as to whether or not those are guaranteed by the full-and-fair-trial requirement. Is there still a question about those kind of fundamental issues? MR. HAYNES: Until the secretary makes a decision about the entire bundle of procedures that will be applied, there will be -- I would like to reserve the form of that, as opposed to answering specific questions about specific aspects. SEN. LEVIN: Thank you. Senator Warner. SEN. WARNER: Mr. Chairman, I think we should make it clear that, on the announcement by the president of his intention to exercise his power under the Constitution to establish these tribunals, you and I discussed the advisability of this hearing and jointly decided that it was definitely a responsibility of this committee, and here we are today. But in the interim, we consulted with Secretary Rumsfeld, as well as the deputy secretary and others, and the Department of Defense made it eminently clear to the committee that they were in the formative stages of compiling the sets of regulations which -- (inaudible) -- promulgated and that, therefore, even though we're going ahead today, we're likely to receive responses much like the ones we've just received, where they're somewhat inconclusive in response to your very good questions. So I appreciate that, understand that. And we must accept the fact that you're, say, halfway, midway in the process, and that this committee will eventually have another hearing, at which time we'll get more specific details about what you intend to put into the regulations. So, therefore, I want to spend some time on procedure as to how you're going about this task given by the president to the secretary of Defense. Consultation. We're having our hearing of this committee. The Committee of Judiciary of the Senate has had its hearing. Are there other means by which you intend to consult Congress? And I presume, although it wasn't directly in your statement, that you will take into consideration the recommendations not only of the committee of jurisdiction in the Congress, this and the Judiciary Committee, but individual members. By what process do you hope to achieve that? Because I think it's important that all 100 members of the Senate feel they've had a voice, if they so desire to exercise it, in the formulation of these regulations. MR. WOLFOWITZ: The secretary has made it clear, from the time he was assigned this responsibility, that he wanted to proceed very deliberately and very carefully in thinking through all of these issues. He is not a lawyer, but he's determined to get all the best possible range of views that he can. As I indicated earlier, we're consulting with a wide range of individuals inside and outside the government. We're consulting in a more institutional way with the other branches of government that have views, including the Department of Justice, Department of State. We welcome the views of the Senate and the House, either institutionally or individually. And our principal mechanism for getting these views is our general counsel that Mr. Haynes (will speak about in ?) just a moment. But the procedure really is to try to identify all of the issues, including the ones that Senator Levin just raised, and to try to get a sense of what the range of recommendations would be, what the range of precedents would be, and ultimately to come to some conclusion. MR. HAYNES: I'd like to echo the deputy secretary's comments. I'd point out that the president issued his order almost a month ago, November 13th. And in that intervening period, the Judiciary Committee has had four meetings, as I understand it. We've had a number of conversations with individual members of Congress and senators, and I solicit your views on a continuing basis. You can be sure that the views expressed directly and in hearings are being absorbed, factored in, considered, and are deeply appreciated. SEN. WARNER: Well, I think it's important that that be placed in today's record, because I've had the opportunity to consult with both of you several times on this and I want other members of Congress to feel they, too, because this is a very, very important threshold in our contemporary history of this country, and we want to see that it's carried out with the proper exercise of the authority of the president under the Constitution as well as the Congress. Now, let's turn to the Department of Justice. It might well be that in the course of these procedures that the lawyers who are defending or otherwise interested in the tribunals will go to the Department of Justice and perhaps institute proceedings in the federal court system challenging certain aspects of the tribunal process. Therefore, it seems to me that we should have greater clarification, the degree to which the attorney general and his colleagues are being consulted on this, because they may well be the ones in the federal system to meet the challenges of the tribunal system in the federal courts. MR. HAYNES: Senator, we have had some informal discussions with the Department of Justice and intend to be consulting them on a -- on an ongoing basis. SEN. WARNER: Why do you rest on the "informal"? I mean, how do you distinguish between formal and informal? Is it a casual call? Or are you saying, "Now, Mr. Attorney General, this is what we have"? Are you going to submit to him before making public your regulations? It seems to me he's entrusted -- well -- under the Constitution and otherwise, he's the president's chief law enforcement officer. Now, I don't suggest in any way that there be any infringement on the right of the secretary of defense to conduct these on behalf -- tribunals on behalf of the president -- but I think it's important that it be more than just informal conversation, that we should have some formality to this process with the Justice Department. MR. HAYNES: Senator, I did not mean to preclude that. What I meant to -- what I -- elaborate on at this time is to tell you a little bit about the process that we are employing. This is a military order. The secretary is charged with implementing it. What we are doing within the department is, in short, I have convened a panel of the senior lawyers in the department, including those who are charged with administering the military justice system which, as Senator Levin points out, in its usual form is very different from a military commission. Nevertheless, they have very important views and experiences and institutional records and understandings to draw on. In order to surface and consider carefully the issues that Senator Levin raised as well as some other issues -- in order to ensure that we get an appropriate cast to this implementation, as opposed to recreating the Article 3 process, that is not the intention of the president to do. When I said informal consultations with the Department of Justice, there will be more. Certainly they -- the Department of Justice has a deep well of expertise on which to draw, and they will, of course, be those charged with defending these procedures if and when they are challenged by any -- SEN. WARNER: Well, all right. You're getting a little long- winded here. You're going to submit to the Department of Justice before finalization for their review, whether you call it formal or informal, this set of regulations -- MR. HAYNES: Yes sir, we will -- SEN. WARNER: Am I correct in that, because I, you know, I've been around here a little while in this man's government and woman's government. I have seen frictions between the departments of the government, and that works against the best interests of our president. We don't want that to arise in this instance. And lastly, I think it very wisely that you have gone to the outside for a series of experts, and you have shared with me some details on that. Let's make it clear that we just haven't gone to Republicans because this is a Republican administration. It's across- the-board. It hasn't got a thing to do with politics, in my judgment. And you have sought out and are receiving the advice and counsel of a wide range of very well recognized and respected former jurists, practicing lawyers, professors and the like. I would just like to have that on the record, Mr. Secretary. MR. WOLFOWITZ: Absolutely clear, Senator. We were consulting a wide range of people, and I don't want, by mentioning names, to suggest that these are the only people we're talking to, but just to give you some idea of the caliber of people that the secretary has met with or that he's had general counsel meet with -- people like former Secretary of Transportation Bill Coleman, former White House General Counsel Lloyd Cutler, a democrat, former Attorney General Griffin Bell, former FBI director and a judge, William Webster. It's people of that caliber, and it's, I think, representative of a very wide range of political opinions. SEN. WARNER: I thank you, Mr. Secretary. I'm hopeful that you would put that out to show politics is playing no role whatsoever as we formulate these regulations. (Inaudible) -- Mr. Chairman. SEN. LEVIN: Thank you very much, Senator Warner. I'm now going to call on Senator Kennedy. There's a vote on. Many of us are going to want to go and vote and come back. The list of the order of recognition is here. I won't read everybody, but Senator Inhofe, you would be next, but you -- SEN. JAMES INHOFE (R-OK): I'd rather wait -- SEN. LEVIN: -- have to vote. So I'm not sure whether you want to try to do that. But I'm going to turn this now to Senator Kennedy. He's next. If you're here when he's done with his eight-minute round, you would be next. If not, when you get back, you should then be recognized. SEN. INHOFE: Mr. Chairman, I'm going to stay. I'll be here. SEN. EDWARD KENNEDY (D-MA): Thank you, Mr. Chairman, and thank you, Mr. Secretary and Mr. Haynes for the indication that you're welcoming to getting some input as you're working forward and developing this process. You know, I think it's a -- something that we should try and engage with you on. Let me go first to the -- one of the areas that I'm concerned about, and that's about how other countries will see military tribunals, and whether they will look at this as a double standard by the United States. Over the years, our government has actively supported the rule of law internationally and we've consistently opposed the military tribunals in other nations because of their failure to provide the adequate due process. And the Department of State's most recent human rights report last February said the following about the use of military courts in Peru in the case of Laurie Berenson, an American who was tried for terrorism by a secret military tribunal. Proceedings in these military courts do not meet internationally accepted standards for openness, fairness, due process. It said that Ms. Berenson in particular did not receive sufficient guarantees of due process. So, given the -- and this is the criticism that the United States has made about tribunals. We have done that with regards, in recent years, Burma, China, Colombia, Egypt, Malaysia, Nigeria, Peru, Russia, the Sudan -- the list -- Turkey -- the list goes on and it goes on. Given the broad scope of the initial military order, even if it's narrowed now, isn't there a danger that it will allow countries to justify secret military tribunals that avoid even the basic due process safeguards? I mean, what is the administration doing to see that America's credibility in criticizing these secret military tribunals in other countries will not be undermined by the military order. MR. WOLFOWITZ: Senator, I think that's one of the reasons why we want to work out very carefully the kinds of procedures that will make the judgements of any military tribunal, any military commission that we establish meet a full standard of fairness. We have criticized, for example, the tribunals in Peru, for violations of fundamental principles of due process. And I think when, if we have to judge individuals before a U.S. military tribunal, I think we will be setting a standard by which other countries will have to be judged, and I think it will reinforce our case in objection to the kinds of abuses that you refer to. SEN. KENNEDY: Well, I think that's right. I think the concern is now with the full and fair hearing, whether we've already opened the door to other countries. Obviously, they will be influenced by the final recommendations, but has the State Department, were they involved in the initial declaration or statement about the tribunals themselves? Have they had any input? Has Secretary Powell expressed any views that you know? MR. WOLFOWITZ: We are consulting with them also, and we are clearly interested in their views. The point that Chairman Levin made that -- how these tribunals are viewed by other countries may affect their willingness to turn individuals over to us makes this, among other reasons, a matter of international significance. SEN. KENNEDY: The chairman mentioned some of these protections, but I want to just come back to them because I do think they are -- define whether these are going to be -- will meet the standards of adequate due process, about the presumption of innocence, beyond a reasonable doubt, the proof beyond a reasonable doubt, of representation by independent and effective counsel, the right to examine and challenge evidence offered by the prosecution, the right to present evidence of innocence, right to cross-examine adverse witnesses and to offer witnesses, reasonable rules of evidence, and the appellate review of convictions. Now, these protections are instituted because they, in our standard of justice, because they help identify the guilty and also to protect the innocent. They're not luxuries. They are essential aspects of our who process of justice. And, I'm just interested in what you might be able to say -- or if you can't say at this time and when you will be able to tell us -- which ones will be in and which ones will be out, in terms of the order. This is against a background, a statement where the, I think, Secretary Rumsfeld a few weeks ago had indicated that the procedures may very well be established on the basis of who the individual is and who might be actually being tried. I'm interested to come back to these items. They -- they -- and hearing from you which -- when we will know whether these kinds of protections will be included in the order, or when they will be -- or whether they will not be -- and when we might -- when we might know that. MR. HAYNES: Senator, neither the president nor the secretary has indicated a deadline for when he or they want these rules to be put into effect. But let me just make one observation about your list, which is an important list. As you might imagine, and I'm sure you know, the method by which any one of those principles might be implemented can vary. One of the reasons that the president chose to create this option for himself, this additional tool in the war on terrorism, is to recognize that this is an extraordinarily different risk than we normally take, and to recognize that in a war, law enforcement is not the principle aim, it's winning the war. Now, that doesn't mean that it comes at the expense of fairness or the American ideals or principles of justice. It doesn't come at that expense. But take the rules of evidence, for example. What the secretary of defense will do, and what the president has already done, is maximize the ability to find the truth. The standard of evidence spelled out in the president's military order is to admit that evidence which is probative to a reasonable person. That is different -- SEN. KENNEDY: Well, I don't want to, you know, interrupt you here, but I do -- there's another area that seems to be fairly subjective. I don't -- my own sense is these are not luxuries which we sort of tolerate when times are good. I mean, they are essential aspects of a due process system. And, you know, we want to try, and we will -- I hear your answer that you're not prepared to make these recommendations now but they will be forthcoming. Obviously, they'll have to before the military tribunals are established. I'd like to get to what I addressed the secretary just in my opening comment about the decision to try Zacarias Moussaoui in the federal district court about the considerations. Mr. Wolfowitz, if you would be good enough to tell us what were the considerations in making the decisions to proceed in the federal courts as opposed to a military tribunal. MR. WOLFOWITZ: To the best of my knowledge, that was a decision made by the Justice Department. SEN. KENNEDY: You weren't involved in this? MR. WOLFOWITZ: I was not personally. I don't believe we were as a department either, were we? MR. HAYNES: No, we were not involved. SEN. KENNEDY: Do you have a view, Mr. Secretary, on that? MR. WOLFOWITZ: No, I don't. I am -- they obviously have the evidence that they believe gives them a case for going to trial, and I'm not aware -- and I would have to know the details to have a view. SEN. KENNEDY: My time is up. SEN. INHOFE: Thank you, Mr. Chairman. I think some of the rest of them will be back, and I'm not going to take all of my time, because we do have a vote that's on. But let me just ask Mr. Haynes something that was alluded to briefly by Secretary Wolfowitz. During the judiciary hearing when Attorney General Ashcroft was asked some questions, he said that not only would the U.S. Supreme Court review whatever's been done, but he believes that the issue resolved in the courts in 1942 decision, referring to that decision where the eight suspected German saboteurs were brought to justice; six of them were executed. The question I would have would be a legal question. Legally speaking, between the court's decision during a declared state of war in 1942 and its application to our current law on terrorism -- or war on terrorism -- is there a legal distinction or difference? MR. HAYNES: I do not believe that there is a difference that matters here. We are clearly in a state of war, and we are very confident that the president's order -- SEN. INHOFE: All right. Let me ask another question to either one of you. I've been concerned about one thing, and that is that we know that many of the -- many people will be arrested in conjunction with September the 11th by governments of foreign countries. And when that happens, we are concerned about extradition. We're concerned about getting them over here. And I know that there is a concern that some of these countries, such as, I believe it is Spain, where they apprehended some individuals, they're reluctant to extradite to this country because of the system of justice that they might -- believe that we're going to be using. Is there some kind of a legislative fix, Secretary Wolfowitz, that could make them less reluctant to allow them to come back here for justice? MR. WOLFOWITZ: Senator, I think the principle issue that we're going to have with those countries, as we have with Spain, is over the issue of the death penalty. And I think in every one of these cases, we will have to, if there's an issue, we'll have to negotiate. The president is not required to submit anyone to a military tribunal. And if that were to become an obstacle to extraditing somebody that was important to us, I'm sure that would be something he would take into account. I think -- my feeling would be it's much better to leave him the flexibility than to try, in some way -- SEN. INHOFE: And that flexibility should, I believe, anyway, encourage them to allow us to have access to those witnesses. At least I hope that's the case. MR. WOLFOWITZ: I would hope so. And it seems to me, given the horror of what took place on September 11th -- let's forget about military tribunals -- that it seems to me all the -- if someone's going to be tried by an American civil court, it is for something that, it seems to me, we're fully entitled to have custody of him. SEN. INHOFE: Let me just share a personal experience with you. I almost didn't come today, Mr. Secretary, because I've already made up my mind; I did so a long time ago. But many years ago, when I was in the United States Army, I had that job. I was a lowly clerk in the military courts. And as this discussion has come forward and all these concerns about beyond reasonable doubt, presumption of innocence, the two- thirds versus unanimity in terms of the death penalty, and rights and protections of these terrorists, I'm having a very hard time with that, because I remember so vividly sitting in the courtrooms of military justice many years ago as an Army clerk, looking into these faces of these men and women, our military people who were brought to justice. I don't recall one time, not one time during that time that I spent in those military courts, hearing or remembering, recalling any of our soldiers who were being administered justice at that time complaining about the system of justice that they were receiving. And I have very strong feelings that if that system of justice was good enough for our own troops, as it's good enough for our own troops today, it's ludicrous to believe that that system is not good enough for a terrorist. And so I have no problem, and I come with that prejudice from my past experience in military courts, and I hope we'll be able to get on with it. I guess I'm the chairman, so I'll yield to Senator Allard. SEN. WAYNE ALLARD (R-CO): Thank you for yielding. Secretary Wolfowitz, I want to compliment you on your statement. I think it was a very good statement. You pointed out that a military commission, trial by military commission, is not anything new. George Washington used it, and right up to current times it's been in use, that it's been endorsed by all three branches of government. I think that's impressive. I also listened very carefully to your reasons as to why you felt like we needed to go to a military tribunal. I felt that two of them were very clear and easy to understand. The first one you mentioned was to better protect our civilian judges and jurors from threats from terrorists. I think that's easy to understand. The third one you mentioned was that they allow the use of classified information. I think we all understand how many times our sources get exposed perhaps in a public trial, put them at risk, and we lose them. They either get killed or they get disclosed so they're of no use to us anymore for an intelligence-gathering purpose. The second is you talked about the federal rules of evidence often prevent the introduction of valid factual evidence for public- policy reasons. I've tried to think in my own mind where that might apply, and I'd like to have some help. One area that I thought it could apply, for example, would be in a Miranda decision. Police officers or anybody that's making an arrest carry a little card and properly read the rights to whoever is being arrested. In this particular case, we frequently have arrests being done by somebody in the military. They're a military officer or somebody -- men or women serving in the military. Certainly they're not trained in the Miranda decision, and in a practical sense would never be applied on the field of battle, perhaps not even here in this country. We have somebody in the National Guard, for example. I could visualize an example on an airport where National Guard -- somebody may walk on with a strapped body bomb or something like that. They immediately put him under some kind of arrest or whatever. They're not going to read them their Miranda rights. And I could see where perhaps chain of evidence would be difficult to apply. And I assume these are the kind of situations, when you're talking about where you can actually -- technically they would get off in a civilian court or regular judicial courts, but certainly wouldn't apply in a military court. I'd like to have you comment on those examples. And then also are there other examples that could be referred to as to why it wouldn't be appropriate to try them in a regular court of law? MR. WOLFOWITZ: I think -- I mean, another sort of example might be we have exclusionary rules to basically make sure that our law enforcement people don't undertake unreasonable search-and-seizure procedures. And therefore, if evidence is collected in violation of one of those rules, it can't be introduced. But, I mean, imagine if a foreign terrorist were sneaking into the United States with a trunkload of anthrax in the back of the car and the policeman unreasonably opened the trunk and found it. I don't think we'd want that evidence excluded in a trial, and that might be a reason why you'd consider a different criminal procedure. But let me go to something even more fundamental. I mean, you're absolutely right that we don't train our special forces in Miranda rules. But it isn't only that they're not trained to do it -- and this comes to the fundamental point. They are trained to do the opposite. They are trained to take these people and to question them and to get as much information as quickly as possible because it is part of the defense of the United States. The information that the people they arrest know about may help us to catch other terrorists, may help us to prevent other terrorist incidents. And therefore, the last thing we would want is to be picking up al Qaeda terrorists in Afghanistan today and reading them their Miranda rights. We want them to tell us everything they know. Now, are we going to say, after they've told us all of that, it can't be introduced in a trial? What we're trying to accomplish here is two goals, and I think we can accomplish both of them. One is the defense of the United States and the second is full and fair trial. But the defense of the United States is fundamental in all of this. And I would add one other thing. I believe the existence of this procedure, the possibility of military commissions, even without anyone having been turned over, even without these procedures having been specified, is something of a deterrent to people, for example, sneaking into the United States thinking -- and there's some evidence that, among many things the terrorists have studied about how to operate in this country, our rules of civil procedure are one of the things they've studied -- to put them on notice that you may be in a completely different process. Don't count on Miranda rights if you're arrested if you're a foreign terrorist sneaking into the United States. SEN. ALLARD: And you know that they have studied our civil procedure because of -- at least publicly what I've seen is the disclosure of a lot of their procedure manuals, and they specifically talk about how they can avoid prosecution perhaps using our own civil courts. Is that correct? MR. WOLFOWITZ: That's my understanding. I haven't actually seen those manuals, but I've heard about them, yes, sir. SEN. ALLARD: Okay. If you go into a trial by military commission, who provides the defense counsel? MR. WOLFOWITZ: I'll turn to my lawyer, but I think that's one of the questions we're looking at. MR. HAYNES: That is one of the questions we're looking at. The president's order provides that they shall be afforded counsel. And one would expect that we would provide military counsel for them, as this is a military proceeding. But, as I said to Senator Kennedy earlier, there are many different possible permutations of that procedure and that remains to be determined. I might add, to your first question also, to the deputy secretary's comments, there are other types of evidence that might otherwise be excluded in a normal criminal proceeding in a U.S. federal court that nevertheless would be valuable in weighing the facts; in order to get at the truth, in other words; for example, remote testimony, affidavits, recorded testimony. There may be witnesses who, for very good reasons, can't be identified. Now, in a normal proceeding, those might not be allowed in at all, for good reasons, for reasons that ensure that we have a fair process that works for another 200-some-odd years that the country has been working. Those are prophylactic reasons, reasons that we have decided are good for the overall administration of justice on an ongoing basis that may not have any application in this context; a war that we hope is not a long one, although we fear that it is. But there may be evidence like that that should be considered and will have to be weighed based on the value of it as determined by the triers of fact. SEN. ALLARD: When you're making -- if we've made arrests or has -- I guess we'll just call it arrests, just to make it simple, but if you made arrests in a foreign country, what are your thoughts on the military tribunal? Now, this is non-citizens that you're talking about. These aren't American citizens. I think that ought to be clarified for the record. So if you have a non-citizen arrested in a foreign country, then the thought is that the military commission or tribunal would probably not be conducted in this country. Is that correct? MR. WOLFOWITZ: Sorry to keep giving you the same answer, but that is again one of the issues that clearly remains open and might be decided depending on the individual case as well. I think it depends on what foreign country we find them in and what the options are for trial. But they would certainly not necessarily have to be brought back here for trial. As I noted in my opening testimony, the very large number of German and Japanese that were tried before military commissions at the end of World War II were obviously not tried in this country. SEN. ALLARD: Mr. Chairman -- MR. WOLFOWITZ: I appreciate, by the way, your -- I mean, one can't say it often enough; we say it over and over again. These commissions are only for non- citizens who are accused of terrorist acts against the United States. SEN. ALLARD: I appreciate you clarifying that. That's been my understanding that it would apply only to non- citizens. Mr. Chairman -- I guess Senator Lieberman is acting as chair -- I see that my time has expired. SEN. LIEBERMAN: Thank you, Senator Allard. Senator Reed. SEN. JACK REED (D-RI): Thank you very much, Senator. Thank you, Mr. Secretary and Mr. Haynes, for your testimony this morning. At this juncture, it appears that there is the constitutional right to conduct these tribunals. Our issue is making sure we get that right correct, appropriate procedures in place, so that there's both procedural fairness and substantive fairness. Let me ask a few questions. I'm going to try to divide up the legal questions to Mr. Haynes, the policy questions for the secretary. Mr. Haynes, in response to Chairman Levin, you indicated, or at least implied that there would be a right of habeas corpus review under the Quirin case. But there was a subsequent case in which the Supreme Court decided that an alien outside the United States did not necessarily have the right to habeas corpus review, and that was Johnson verse Eisentrager. Are you aware of that case? And in what way will that inform your decision about the process of review? MR. HAYNES: Perhaps I wasn't as precise as I should have been. What I was -- what I was responding to, or thought I was responding to, was trial in the United States. And I stand corrected if I misspoke earlier. SEN. REED: Well, it's mostly likely that in the most controversial cases, the individuals will not be returned to the United States. And in that case, your view would be that there would be no right to a writ of habeas corpus. MR. HAYNES: That's my view. SEN. REED: That, I would assume, would put additional emphasis on other rights of appeal within the Department of Defense. Is that a fair deduction? Or, would you conclude at this point that if someone's tried overseas, there will be absolutely no right to appeal the verdict of a court? MR. HAYNES: Well, again, the secretary hasn't decided on what the procedures will say yet. The order itself does include within it a review above the tribunal itself. So, there will be automatically at least that appeal. What additional procedures the secretary decides to employ remain to be seen. SEN. REED: Again, I don't want to keep emphasizing this, but it's a fundamental right, habeas corpus. It's a right which the court recognizes is available to someone tried by a military tribunal within the United States, but simply a decision administratively not to try the person in the United States could render that right to habeas corpus moot. So, it seems to me that this is an issue that you have to devote yourself to very seriously in terms of some procedures to review cases. MR. HAYNES: We are being very serious. But I point out that we are talking about non-U.S. -- in your hypothetical - - non-U.S. citizens outside the United States. The Constitution does not give those individuals anywhere near the rights that U.S. citizens have. SEN. REED: I'm not arguing with you, but I'm -- you have within the authority under this law to bring individuals to the United States for trial, which would trigger habeas corpus review, or keep them outside the United States. I think you have to be very careful in your procedures so that it doesn't appear to be an arbitrary denial of a right which would be available to the alien if he was tried in the United States. Is that a fair point? MR. HAYNES: I think your point that we should be serious, and we are, and we would solicit more views from you as to this. SEN. REED: Let me ask another question, which, in the order, page five, it talks about the prosecution conducted by attorneys designated by the secretary of defense in conduct of defense by attorneys for the individual. Do you contemplate -- and you might have covered this in your previous questioning -- that the individual may select the attorney of his choice, or her choice? MR. HAYNES: It may be that the secretary decides to address the right to counsel in a number of different ways. And one option could be to provide military counsel or other counsel to them. The extent of choice remains to be seen. The secretary will have to consider what qualifications are going to be important in order to provide effective counsel. This is an important and fundamental tenet of our American system. And whatever counsel is provided, will be competent and a strong advocate, and qualified in all respects, including the need to protect information and -- SEN. REED: Well, there are -- there are simple ways to do that. The first to establish general criteria. They must be a member of a bar in a jurisdiction of the United States, et cetera, et cetera, et cetera. The other way is to specifically reject suggestions by the defendant of who would represent the defendant, even though they meet this criteria. Do you contemplate that the secretary of defense would deny individual choices by a defendant of defense counsel that is otherwise qualified? MR. HAYNES: I could imagine some circumstances where counsel chosen by the defendant might not be appropriate under the circumstances. So, yes, I can imagine that circumstance. SEN. REED: And that decision would be made by the secretary of defense? MR. HAYNES: In the implementation of the procedures implementing the order, the secretary will include rules about qualifications of counsel, both defense and prosecution. SEN. REED: Well, it's quite clear, the order says that the prosecution attorney will be designated by the secretary of defense. But what you're suggesting by your comment is that the order should be further read to imply that the defense counsel might also be selected by defense -- the secretary of defense. MR. HAYNES: There is another provision of the order that I can give you later if you like that says the secretary shall prescribe rules for the qualifications of counsel, both prosecution and defense. SEN. REED: What level of rank do you contemplate the military judges to be? MR. HAYNES: That's not been determined. This would be -- this would clearly be an important factor to consider. The qualifications of the commission members or judges, as you say, is certainly very important. In the past, it has ranged, depending on the level of the offense charged, the quantity of the cases, the individual accused. And I could imagine a whole range of possibilities. SEN. REED: In a technical sense, the convening authority would be the secretary of defense? The secretary of defense would choose the judges? MR. HAYNES: One of the issues is whether the secretary would make that determination himself, or whether he might identify a different, subordinate appointing authority. That has been done in different ways in different times over the years as well. There might be some utility to that. SEN. REED: Let me ask another more general question, is that it's my understanding that Bin Laden has been indicted in a federal court in New York for the bombings of our embassies. Yet as I read the other, the president's order would essentially disregard any existing indictments by federal courts, and vest exclusive jurisdiction in these military tribunals for those individuals that he has identified as being subject to this law. Is that a correct understanding? MR. HAYNES: I don't think so. I don't think that the order is intended to divest the Article 3 courts of jurisdiction. It is a separate and concurrent option for trial under these cases. And of course, it would require the secretary -- excuse me, the president -- to make a specific written determination in the case of Bin Laden, as you say -- SEN. REED: But that raises the question of competitive venues for jurisdictions for this trial, at least in the case of Bin Laden. An indictment which is pending in a federal court, an Article 3 court in the United States, verses the president's decisions, unilaterally under this order, to essentially ignore the indictment in the federal court. I think it's a real issue. I don't have an answer, but I think it's a real issue. MR. HAYNES: Well, it's not an unusual circumstance. For example, one could be indicted in state court and federal court at the same time. The fact that there are different potential forums for a trial or adjudication is not -- is not problematic. SEN. REED: I -- and again, my time's expired, but just one final point, and I'm a good enough lawyer to know I don't know the answer -- MR. HAYNES: Makes two of us. SEN. REED: As I understand it, if there's no agreement between the state court and the federal court, both have at least the authority to conduct the trials. I mean, perhaps I'm wrong. Thank you. SEN. LEVIN: Thank you very much. Senator Sessions. SEN. JEFFREY SESSIONS (R-AL): Thank you, Mr. Chairman. First, Mr. Chairman, I'd like to submit for the record a number of items from experts and constitutional and international law that have affirmed a military commission as President Bush has proposed it, including a letter from the former attorney general of Alabama, Bill Baxley, who is a Democratic attorney general, who was a JAG officer in the National Guard for many years, who has tried cases before military tribunals and said he's probably the only person in Alabama that's read the entire Nuremberg transcript. And he believes this is a proper and appropriate way to proceed, as does Dean Doug Kinnock of Catholic University, Professor Ruth Wedgewood of Yale, a widely acknowledged international law expert, and General Michael Nardotti, a former top JAG officer in the army. SEN. LEVIN: To be made part of the record. SEN. SESSIONS: I would just like to -- maybe, Mr. Haynes, run through a few of the questions that I think get down to the nitty gritty. And you may not be prepared to answer them, but maybe you can give us some of the difficulties and tensions in answering these questions. We've talked about habeas corpus. That is the right of a person who -- to bring himself before a court to find out if they've been charged with a crime and what it is, fundamentally, and that's the great writ. But, the Quirin case, as I understood it, said fundamentally that there would be a right to bring them forward to make sure that the trial was appropriately tried in the military commission. Is that basically what the court decided in Quirin? MR. HAYNES: Yes sir. That's why they -- that's why they heard it, and they made the determination that it was appropriate. SEN. SESSIONS: So, otherwise, if it was properly tried in the military tribunal, the Supreme Court approved the complete handling of that case in the executive branch, is that right? MR. HAYNES: Yes sir, that's right. SEN. SESSIONS: And I would just point out that Americans are so committed to civil liberties that we have some difficulties understanding there are other ways of doing justice. You do have an appellate process here. This order requires that a transcript of the case be made, the whole trial, is that correct? MR. HAYNES: That's correct. SEN. SESSIONS: And that an appeal be given to the secretary -- the president -- or, if he designates, the secretary of defense to review that record to make sure justice was done, is that correct? MR. HAYNES: That is correct. SEN. SESSIONS: And the secretary of defense could assign JAG officers and other officers as they choose to study and review every aspect of that if he so chose? MR. HAYNES: Yes sir. The form of that remains to be seen, but that's correct. SEN. SESSIONS: However he chose to do that. And it would just strike me that we're operating under the War Powers provision here, which is an executive branch function. And I would suggest that history should be the guide, and if it is the guide, Mr. Haynes, then any reviews and appeals would be within the executive branch, is that correct? MR. HAYNES: That's correct, although, as we said earlier, there's no intent to preclude an accused from seeking a habeas corpus writ. SEN. SESSIONS: Now, with regard to cross-examining of witnesses, you were rightly not too quick to say oh, of course, we're going to have cross- examination, full cross-examination of witnesses. I would just offer the point that the American justice system provides the greatest possible ability to cross-examine witnesses, far beyond that in most countries in the world. But, the point I would suggest to you is that if you have absolute right to do that, we'll have some serious problems -- such as, if the information that was critical to the conviction of a defendant came from a local citizens whose life might be at risk if it were known that he had provided information against the defendant, or if the information came from an electronic intercept, the normal procedure in federal courts is for the person who conducted the intercept to come in the court and explain how he did, how his equipment worked, and be subject to cross-examination. I don't think that's necessary. And to that extent, you could have some limitation on the traditional civil right of cross- examination, and rightly so, would you not? MR. HAYNES: Yes sir. And the president's -- the president's order says that the standard for admission of evidence is that it have probative value to a reasonable person. now, the fact that some aspects may or may not be subject to cross-examination would go to the weight of the evidence. And the triers of fact and the judges, if you will, would have to factor that in, and counsel would be able to comment on that. SEN. SESSIONS: And counsel would be able to comment on it, and argue the point, I agree. You know, military justice does provide our soldiers and sailors, and airmen and marines, more protections than it does the terrorist or people who are committing war crimes against the United States. But, isn't it true that history has proven, and that the military is quite proud of its justice system, and it does rely on all participants in it being part of the military chain of command. MR. HAYNES: Yes sir. SEN. SESSIONS: So, it strikes some that believe in juries can know nothing, or have no connection whatsoever to a case, but in the military, every military man and woman is tried by fellow officers and enlisted people, in general of a higher rank than they, isn't that correct? MR. HAYNES: That's correct. SEN. SESSIONS: And I'm just real proud of the military justice system, Mr. Chairman. In the Army Reserves, sir, the few years as a JAG officer, although I never did attend the wonderful JAG school at the University of Virginia, it's one of the finest legal schools in the world, I think, and it turns out people who are committed to justice -- military men and women, officers particularly, are used to following orders and directives. And if they're told to follow this evidence and exclude this evidence, or admit this evidence, they will do so, and they will do so with integrity. It's done every day, and people should not believe that just because this is a military matter that they have any desire whatsoever to convict an innocent person. Why would a military person want to do that? I just don't -- I think we need to -- we have some on the extreme left and the extreme right that are so hostile to government that they don't believe -- that they are paranoid about any kind of a final decision-making process. And I think you have a good system here of allowing for appeals and in creating a system that will be just. And if not, the Congress and the world will judge you for it, and that's a high burden, I believe. Do we still have some more time? SEN. LEVIN: I think you're out of time. Thank you. SEN. SESSIONS: Thank you. SEN. LEVIN: Let me read the order now of recognition, assuming that they're here. Senator -- on the Democratic side -- Senators Akaka, Ben Nelson, Bill Nelson, Dayton, Bingaman, Cleland, Lieberman, Landrieu. On the Republican side, Senators Collins, McCain and Smith, in order of appearance. So, the next who is here would be Senator Ben Nelson. SEN. BEN NELSON (D-NE): Thank you, Mr. Chairman. Thank you, Mr. Secretary, for coming back to appear before us. We're getting to know one another quite well from these exchanges. Mr. Secretary, I know I speak as other have for the American people in thanking you for what you and the men and women in the military are doing, and demonstrating significant courage and commitment, and we wish you and all of them well in this endeavor, particularly in the days ahead. I also realize that this is a question and answer period, but probably it's most enlightening for both of us to just simply -- for each of us to express our concerns rather than try to get specific answers back from you on these issues. It's premature, but at least it will give you an idea of what concerns we have as you move through this process, both you and Mr. Haynes, and I appreciate that opportunity, because you may be able to bundle together a process of appellate procedures, rules for proceeding, rules of evidence, certainly whether something ought to be public or private, what kind of appeal might be taken, and all of those elements of the tribunal system will be important. And I think you're hearing from each of us today our concerns about making sure that this system of justice isn't some weakened shadow of justice of the American system that for over 200 years has continued to evolve in a rule of law rather than rule of man. And I believe that that is very compelling, to be sure that what we do is appropriate under all the circumstances. One of the most compelling arguments for the tribunal system, I think in this particular case, is the security issue of the individuals who are involved in the system, in the process -- being able to provide that security against an invisible foe, one who has already demonstrated a willingness to disregard human and innocent life. I think that certainly is important. The civilian process of working through that, I think, only raises more security issues. And so I truly believe that is one of the most compelling reasons for doing it -- not to weaken the justice system, not to get a diluted justice system for other individuals, but for security purposes. I know that there will be another opportunity for you to come back, and at that point in time probably questions will be more in order rather than just simply giving you our thoughts, so I will withhold any questions, specific questions, rather than try to put you on the spot. One thought -- MR. WOLFOWITZ: Thoughts are helpful, believe me, and I think we've had some very useful ones given to us this morning. SEN. BEN NELSON: Well, I think it is -- it isn't fair to you to keep asking you questions when you're saying, look, we haven't put this together. So, what I'd like to suggest is that as you think about whether the evidence is retained in private or whether it's public, that there may be instances, as with the Bin Laden video, that it's less about a particular trial or a particular tribunal's situation than it more is about the public and the desire of the public to know on the one hand, but really the importance of having the public more aware of what's going on with respect to somebody's guilt or innocence. And so I hope that you will think about that, because once you start the process, unless you've made -- fit in some sort of an exception, a waiver, an exception, something like that, we may commit ourselves to a process that we could regret in the long term, or violate our own principles of justice, fairness, and due process that we're seeking to protect. I thank you very much for being here. I look forward to another opportunity. And perhaps if I have some questions along the way, I might submit them to Mr. Haynes. MR. WOLFOWITZ: We'd appreciate that very much, Senator. And I appreciate your comments. SEN. BEN NELSON: Thank you. Thank you, Mr. Chairman. SEN. LEVIN: All set? Thank you. Senator Smith. SEN. BOB SMITH (R-NH): Thank you very much, Mr. Chairman. Mr. Chairman, is it eight minutes, is that what -- SEN. LEVIN: Yes. SEN. BOB SMITH: Good morning, Mr. Secretary and Mr. Haynes. It's great to see you here. And we join the chorus of those who have commended you for the outstanding job that you're doing and will continue to do in this effort to fight against these terrorist networks around the world, and specifically Afghanistan. We appreciate you coming up. There's been a lot of controversy on the -- since you announced -- the president announced the tribunal issue, and I think it's great that you came here and clarified a lot of questions. I might just say, Mr. Haynes, I'm sure you've had a lot of reference -- documents referenced to you, but I would refer one to you in the Federal Lawyer, November-December, a senior judge of the Military Court of Appeals, the Honorable Robinson Everett, he has a very interesting article entitled "The Law of War: Military Tribunals and the War on Terrorism." It's a good overview which you may find helpful. I'll give you a copy of it. I ask unanimous consent that it be put in the record, Mr. Chairman. SEN. LEVIN: It will be made part of the record. SEN. SMITH: I wasn't here during the earlier part but I was watching it on television, and you did reference a number of tribunal precedents, Mr. Secretary. President Truman used one as well on the Bataan death march, as you know. I don't believe that one was mentioned, the Yamashita case. They used it again trying German soldiers spying in China against America after the surrender of Germany. His decision was upheld by the Supreme Court in Johnson versus Eisentrager. It's interesting, every time it's been used, it's been upheld by the courts. So those who join this chorus of unconstitutionality, there really is very little, if any, evidence to support that charge at all. Interestingly, one decision was written by Justice Jackson, who was the lead prosecutor in the war crimes tribunals in Nuremberg. So I think many have suggested the constitutional issue, although it sounds good about whether or not an alien terrorist should have constitutional rights, the truth is that's not what the Supreme Court had in mind. On the contrary, in the Eisentrager case, the most recent opinion regarding military tribunals, the court held that there were "no instance," quote, where a court in this or any other country, where a writ of habeas corpus is known, has issued it on behalf of an alien enemy who at no relevant time and at no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, period. I apologize for my voice this morning. Every time that I can find, the Supreme Court has upheld these tribunals. And I think that if -- I would not want to be in a position where bin Laden were to be let go because somebody didn't read him his Miranda rights. I don't think that would go over very well. And I certainly do not believe that his kind should be entitled to the benefit of civilian federal criminal procedure where good lawyers would have a lot of fun with that. I don't think we need that in America. I just want to ask a couple of -- I would make one other point and then ask a couple of very specific questions, if you could answer them. It's interesting, in the chorus of critics, I remember when President Clinton signed a treaty to create the International Criminal Court, which, if Americans were held before it, it would deny them their basic rights -- trial by jury, number one, of their peers, protection from double jeopardy and the chance to confront one's accusers. As a matter of fact, Secretary Rumsfeld, I think, warned, quote, that "American leadership could be the first casualty of the ICC." Did you have any input into that comment, Mr. Secretary, or could you clarify what he might have meant by that? If you didn't, that's fine. MR. WOLFOWITZ: I don't -- I mean, I think it speaks for itself. SEN. SMITH: It does speak for itself. Let me ask Mr. Haynes just a few -- in the -- the president, in this order, gives the secretary of Defense to promulgate the rules. And I'm not sure all of us know yet exactly how you're going to promulgate those rules specifically, and probably you don't either at this point, but let me just ask. If you could answer it, fine. If you can't, when you know, you could -- we'll hear it or you could provide it for the record. Do you intend to hold all trials of alien terrorists who are not here in the United States exclusively outside the U.S. borders? MR. HAYNES: Senator, there have been no decisions about that, either in the regulation, and indeed -- SEN. SMITH: No decision? MR. HAYNES: That's correct. SEN. SMITH: Okay. Do you support, in the civilian -- in 1995, I had a little language added to a piece of legislation that provided for a court, a judge to be set up to hear evidence on the deportation of those who may be involved in terrorist activities. The problem is the court's never been used because the intelligence community doesn't want to compromise sources and methods by providing the information to the terrorist or his attorney. Why can't we come back, in the case of those, where we might have good information that they may be involved in a network but haven't committed a crime yet? Is there any feeling in the administration that we could reinstitute those courts and provide deportation to some of these people? MR. HAYNES: I'm not familiar with that option, Senator. I'll look into it and get back to you. SEN. SMITH: All right. What about having only -- now back on to the promulgation of the rules. Have you given any thought to only using uniformed military officers to practice before the tribunal? MR. HAYNES: That's certainly one of the options, yes, sir. SEN. SMITH: Clarifying in advance the rules of procedure by making applicable the manual for court-martial? MR. HAYNES: Well, the president has made a finding in the order that it's not practicable to use the normal rules. Now, whether and to what extent the secretary of Defense may choose among those, we haven't decided, or create totally different ones. SEN. SMITH: What about using judges from the military court of appeals, active or retired? MR. HAYNES: That's an option. SEN. SMITH: Can their privacy be protected in these trials in a way that they would avoid some of the problems that's already happened in the case of the judge who heard the one -- the terrorist case earlier in New York? MR. HAYNES: I believe you're referring to the 1993 convictions. SEN. SMITH: Yes. MR. HAYNES: And that -- the security of the people who administer the process is certainly a concern and conceivably, along with other factors, might be a factor in deciding whether and to what extent proceedings might be held outside of the press. SEN. SMITH: Last question. I'm assuming you're going to draw pretty heavily on the Nuremberg trials, and that's probably the best historical example we have. Is that correct? MR. HAYNES: The Nuremberg trials were international trials, as opposed to United States tribunals. But the procedures there are certainly very helpful to build upon. SEN. SMITH: That's what I'm talking about, procedures. MR. HAYNES: Yes, sir. SEN. SMITH: Well, thank you. Thank you very much, Mr. Chairman. SEN. LEVIN: Thank you. Senator Bingaman. SEN. JEFF BINGAMAN (D-NM): Thank you very much, Mr. Chairman. Thank you, Secretary Wolfowitz. I appreciate both of you being here. Let me put this in a very broad context. As I see it, what we're talking about here are really three stages. There is the stage at which the president makes his determination that someone is a foreign terrorist or a war criminal. And I think, under the order here, he makes determination that someone is engaged in acts of international terrorism. So that's the first stage. The second stage is what you would be responsible for, and that would be conducting the full and fair trial of any such person who was previously determined by the president to have been engaged in acts of international terrorism. And then the third stage would be any appeal or any judicial review or any review by anybody of what occurred at the trial. So that's a very general way to think about it. I'm concerned about the first stage, where the president -- in this order it says, "This term, individual subject to the order, should mean any individual who I determine from time to time in writing has engaged in acts of international terrorism," or abetted or aided in that. Do we have a definition of international terrorism? Is there any limit on the president's ability to make a determination in that regard? MR. HAYNES: If I may, let me qualify a little bit about what you said at the outset. The president's order says that he doesn't necessarily make a determination at the outset that they are a terrorist. SEN. BINGAMAN: No, it does. It says, "whom I determine from time to time in writing that, first, there's a reason to believe the individual, at the relevant times, is not a citizen, and secondly, that they've committed an act of international terrorism." MR. HAYNES: That's correct. And the words I was beginning to focus on is that there is reason to believe. So, in other words, he is not making a determination at that point. SEN. BINGAMAN: Oh, I see. So he just has to make a determination that there's reason to believe that. MR. HAYNES: That's correct. And he also has to factor in not just the language that you quoted, but he also makes a separate determination that it is in the interest of the United States that such an individual will be subject to the order. So there are a couple of self-imposed standards that he -- SEN. BINGAMAN: But is there any definition of what we're looking at when we talk about an act of international terrorism? For example, when Timothy McVeigh blew up the courthouse there in Oklahoma, if he had been a foreign national, legally resident in this country, would he be someone who had engaged in an act of international terrorism, in your opinion? MR. HAYNES: Well, you make an important qualification. The president's order does not include U.S. citizens. So when you make that qualification -- SEN. BINGAMAN: Yeah, I understand. If he had been a foreign national, would that be a case that would be appropriate for a military tribunal? MR. HAYNES: It might be, depending on all the facts present at the time, if the president made the determination that there was reason to believe that -- again, in looking at the order, it's not just international terrorism. It's also that it is or was a member of the organization known as al Qaeda has engaged in, aided or abetted, and so forth, or has knowingly harbored. Now, those are in the alternative. SEN. BINGAMAN: Right. So the question would be, is blowing up the federal building in Oklahoma an act of international terrorism? And you're saying it may well be. MR. HAYNES: You have changed the facts so significantly already, let me play that out. One would think that the president would consider whether that had some link outside the country to make it international. SEN. BINGAMAN: So the fact that the person was foreign would not necessarily make it international. MR. HAYNES: That is the president's determination to make. SEN. BINGAMAN: But there's no limit on the ability of the president to make that. He is well within his rights, as you see it, to make that determination that McVeigh should be tried in a criminal -- in a military tribunal. MR. HAYNES: I'm very uncomfortable about talking about an individual who is a U.S. citizen, who is specifically not subject to the order. So using the name -- SEN. BINGAMAN: Well, let me ask about another one. What about Ted Kaczynski? MR. HAYNES: An American citizen. SEN. BINGAMAN: Yeah. If he were foreign, if he had been a foreign national, do you see any problem with the president making a determination that his activities in mailing these explosive devices to people was an act of international terrorism? MR. HAYNES: If you're positing a non-U.S. citizen engaged in international terrorism and whether those acts had some nexus to something outside the country, I think, would be an important factor for the president to consider. You haven't put that in your hypothetical, so if the acts were purely within the United States -- SEN. BINGAMAN: So you say there's got to be some nexus to something outside the country in order for this to apply. MR. HAYNES: Well, in order for it to be international terrorism, one would think that there would have to be something outside the United States, some means to make the determination that this is international in character. SEN. BINGAMAN: Usually military tribunals, as I understand it, have been invoked and used when you are, in fact, trying people who are engaged in some kind of military action against our country. Is that a fair statement? One of your statements here, Mr. Wolfowitz, is that it is well-established that a foreign national who is engaged in armed conflict against the United States has no constitutional claim to the rights and procedures that would apply. I guess the question is, is that what we're talking about here, people who are engaged in armed conflict with the United States? MR. HAYNES: It is the -- the purpose of this order is to try war crimes. SEN. BINGAMAN: War crimes meaning the person who is going to be subject to this needs to be engaged in some kind of a war effort against our country, not just a freelance terrorist who has a point of view that is inimical to our general point of view or our policies or our way of government or whatever. MR. HAYNES: I think that is a fair way to look at it. But I also want to reiterate that, as written, the president's order requires a specific written individual determination by him which recognizes the fact that these are -- these cases will depend on all the facts and circumstances. So it's a -- (I don't mean?) to generalize too much beyond what's in the order, but -- SEN. BINGAMAN: Is there going to be any kind of a threshold or set of procedures that the president would adhere to in making his determination? To what extent is his determination in any way reviewable? I guess there's no review of it under the order that has been issued. I mean, if, for example, someone were to be turned over or determined by the president to be subject to this order and he determines that there is evidence to indicate that you're involved in international terrorism, there's no way to dispute that. I mean, there's no way to say, "I deserve to be tried in a federal court." MR. HAYNES: Well, there will be a trial. SEN. BINGAMAN: Yeah, but, I mean, prior to actually having a trial in the criminal court or in the military court, there's no way to say, "I deserve to be tried in a regular Article III court under the Constitution because I do not meet the criteria that would justify the president putting me in a whole different system." MR. HAYNES: That's correct. SEN. BINGAMAN: So there's no review. MR. WOLFOWITZ: Senator, it does seem to me that, I mean, as the order makes clear, that the first criterion is that the president has reason to believe that the individual is or was a member of the organization known as al Qaeda. And that is, I think, clearly where the focus is. And if one takes the sort of -- one of your purely hypothetical cases of somebody who simply is a foreign national, if there's none of the reasons that would apply to preserving the security of the trial, no connections to foreign terrorist groups that would threaten the safety of judges and jurors, no reason to have classified evidence collected abroad by intelligence agencies, none of the reasons that we've explained for the reason of the order -- I mean, we're not here to prejudge or take away the president's discretion, but that kind of case, it seems to me, starts to define itself into the regular civilian court system. And we have a perfectly effective civilian court system for trying people guilty of acts of terrorism, including Mr. Moussaoui, who has even clear links to al Qaeda. So, I mean -- maybe I'm making a mistake in getting into legal issues -- there are a lot of hypotheticals, and we have to be very careful. And the president does have a lot of authority, but it seems to me the Quiren case was precisely a case of where the courts reviewed whether that authority was properly exercised, and it was judged that it was. I think someone with your -- I've forgotten the name of the Unabomber -- the Unabomber, but with foreign nationality, would have, I think, lots of ways to make sure that they were properly put into the military tribunal system if they were. SEN. BINGAMAN: Were properly put in the military tribunal system or properly put into the federal court system? MR. WOLFOWITZ: Either one. SEN. BINGAMAN: So you think they would have a right to be tried in the federal court system. MR. WOLFOWITZ: No, I didn't say that. I think they would have an opportunity, because they're here in the United States, to appeal for habeas corpus. SEN. BINGAMAN: My time is up, Mr. Chairman. SEN. LEVIN: Thank you very much. Senator Lieberman. SEN. LIEBERMAN: Thank you, Mr. Chairman. Thanks, Secretary Wolfowitz and Mr. Haynes. I appreciate the discussion. It's been very helpful. I have -- it strikes me that part of what we're all wrestling with here is that we're dealing with a matter of first impression for most of us. We've not been involved in the United States constituting military tribunals for war crimes, at least not in my direct involvement, for some period of time. We've witnessed in recent times international war crimes tribunals against -- which have tried people involved in the Rwanda genocide and the Balkans as well. So we are working our way through this. And I'm doing the same myself. The other problem here is that we are a country that prides itself on adhering to the rule of law, and yet we are, for all intents and purposes, at war. And one of the distinctions, I think, that we are trying to make is how appropriately as a country, where we value the rule of law, do we handle those who we capture as part of this war? In other words, for some time there's been criticism that we've been treating terrorism too much as a legal violation instead of what it was, and became clear it was, on September 11th as an act of war. In the reading and thinking that I've done about this, it certainly does seem clear to me that the president has the right to constitute military tribunals for violations of the laws of war. And perhaps because this is a matter of first impression, I think a lot of people have been imagining the worst as they consider how these military tribunals might be used. It is also true, probably, that they've been imagining the worst because the specific wording of the military order is in some senses vague and requires the kind of guidelines that you're now working on and the reassurances that people are looking for. It also the -- the order was also issued in the context of other actions that have alarmed people -- the several hundred people detained, the broad and mass questioning of Arab- Americans or Muslim-Americans. But it does seem to me that today you have offered what I was hoping for, and I hope the guidelines provide also, which is reassurance as to the way this administration is going to employ military tribunals as part of our war against terrorism -- rights of appeal, rights of habeas corpus, full and fair trial, and what that means. And so I appreciate that. I want to talk to you about the indictment yesterday Zacarias Moussaoui, of this being the first criminal charge filed by the United States government directly related to the attacks against us on September 11th. I'm going to share with you first impression, because I've just begun to think about it this morning, and maybe you here or others will alter my impression. But, my first impression is that the actions taken against Mr. Moussaoui go beyond reassurance, and they are actually quite troubling, and to me, surprising, because we have taken here a non- citizen of the United States -- not even a lawful permanent resident of the United States, a French citizen of Moroccan decent -- who according to the charges filed against him, and I'll quote very briefly, is accused of conspiring with Osama Bin Laden and al Qaeda to murder thousands of innocent people in New York, Virginia and Pennsylvania on September 11th. This is not some foot soldier in al Qaeda hiding in a cave over in Afghanistan. This is a guy who came to the United States, from what the indictment that I read in the papers this morning, who conspired with the other 19, and allegedly directly with Bin Laden at some point, to carry out these acts that killed thousands of our fellow Americans, and he is a non-citizen, not entitled to the protections of the federal district courts of the United States of America. So, I'm troubled by the precedent that this sets as to what the administration will do regarding those who have violated the laws of war. I mean, what greater violation of the laws of war could there be than to have been a co- conspirator in the attacks that resulted in the death of four thousand Americans here on our soil? His direct involvement in that being constrained only by the fact that he was apprehended because people at the flight simulation school he was training at, presumably to carry out one of the attacks, reported him. If we will not try Zacarias Moussaoui before a military tribunal -- a non-citizen alleged to be a co-conspirator in the attacks against -- that killed four thousand Americans -- who will we try in a military tribunal? And what standard does this set for what will be done? I mean, surely it can't be just the happenstance that he was apprehended in the United States of America as opposed to in Afghanistan or somewhere else in the world. And I must say, Secretary Wolfowitz, in the three points -- or is it four -- that you mentioned in your opening statement as to why military commissions should be used, we can better protect civilian judges, jurors and courts from terrorist threats and assure the security of the trials itself. Federal rules of evidence often prevent the introduction of valid factual evidence for public policy reasons that have no application in the trial of a foreign terrorist. Third, military commissions can allow the use of classified information without endangering sources and methods. Every one of those, I would argue, on first impression this morning, argues for Mr. Moussaoui to be brought before a military tribunal. So, I find it -- I find this a troubling decision, and I wonder if you could reassure me. And this guy -- to use the parlance of the regular criminal courts of the United States -- is a big fish. And I fear that the decision to try him in the federal district courts of the United States, with all the rights of evidence, and rules of evidence, and rights of due process -- may let this big fish get away. The other 19 criminals who carried out these acts are dead. We happen to have grabbed this guy. And, you know, I don't want the rules of hearsay to be applied to this case -- he doesn't deserve the rules of hearsay to be applied to him, or any of the other rights that citizens of the United States have when accused of a crime. So, I'm troubled. And I wonder -- I wonder -- I suppose I have to ask the direct question, whether the Department of Defense was consulted before the decision was made by the Justice Department to try Zacarias Moussaoui in the federal district courts? MR. WOLFOWITZ: We were not, Senator, and so I probably should be careful not to speculate about the considerations. But it does seem to me that presumably the decision by the Justice Department to indict Mr. Moussaoui in a civil court is an indication that they believe that they did not have, for example, the problem that I mentioned of evidence, important evidence that might not be admitted under normal rules of procedure, or the problem of relying on classified evidence, and that they couldn't properly convict this man in a civilian court. Remember, the goal here is -- the goal of these military tribunals is to be able to have full and fair trials and defend the United States. And I think there's more than one instrument for achieving that. But the president has made it clear there may be circumstances in which this one is necessary. I'm -- I wouldn't want to go further -- SEN. LIEBERMAN: I suppose I'm relieved to hear that the Department of Defense was not involved in this decision. As I said, I think it goes beyond reassuring us and it takes an enormous risk with the only person we have in our hands right now who, in my opinion, based on the evidence I've read, was directly involved in preparing to carry out the attacks of September 11th. And I think it takes a large risk to bring him before the district court, with all the rights that he would have there, that he doesn't deserve, frankly. Mr. Haynes, I'm sorry, did you -- MR. HAYNES: Well, Senator, we don't know everything the Department of Justice knows. I actually think that you might draw some comfort from the fact that this may be an illustration of how carefully the president intends to employ this tool that he is creating in this military order. The man that you are describing was apprehended before September 11th. He is in the criminal justice system, in the Article 3 criminal justice system. Unless the president makes a specific written determination that he should be subject to the order under those terms and that it is in the national interest or in the interest of the United States to provide him to the secretary of defense, then he should stay there. But we -- we are unable to comment on what evidence they may have. SEN. LIEBERMAN: My time is up. I thank you both. SEN. LEVIN: We have to conclude now under the Senate rules. There has been a motion filed, and we have no alternative but to adjourn this hearing. I want to just conclude though with a question -- a follow-up to Senator Lieberman's question. Was the secretary of defense, Defense Department, consulted on the drafting of the presidential order prior to its being issued? MR. WOLFOWITZ: Yes, we were. SEN. LEVIN: You were involved in the drafting? MR. WOLFOWITZ: We were consulted on it. I'm not -- were we involved in it? MR. HAYNES: We were consulted, but we -- I don't think we can comment on what advice we gave. SEN. LEVIN: I'm not asking for that. Did you give advice on the order? I'm not asking what it was, I'm just asking whether you gave advice? MR. HAYNES: Our views were -- our views were consulted. SEN. LEVIN: Thank you. I -- Senator Lieberman has raised an important point on Mr. Moussaoui. I must say I am not reassured that they weren't consulted. It's hard to imagine that in a matter that fits the military tribunal order the way the Moussaoui case appears to fit it, that you weren't consulted, because then you will be applying these criteria in other cases which are very similar or maybe the same as Moussaoui's case. So, I'm kind of amazed that you weren't consulted. SEN. LIEBERMAN: Senator Levin, if I may, I accept your amendment. I guess I was speaking more directly to Mr. Wolfowitz, who I have such high regard for. And I didn't want to believe that he was consulted before this decision was made, but you are absolutely right, it's wrong not to have consulted the Department of Defense because we're at war. And Moussaoui is a war criminal. He was a soldier who attacked American civilians. And therefore, I hope you will be -- the Department of Defense will be consulted in each and every future decision of this kind that's made. SEN. LEVIN: Mr. Wolfowitz, when I left here to go to vote, I was asked by many members of the press whether the decision has been made to withdraw from the ABM Treaty. That was the question I was asked most often by most members of the press. Has the decision been made to withdraw from the ABM Treaty? MR. WOLFOWITZ: Senator, I think the president and the secretary of state and secretary of defense have made it clear -- SEN. LEVIN: Has a decision been made to withdraw? MR. WOLFOWITZ: As far as I know, Senator, no final decision has been made yet. SEN. LEVIN: Has not been? MR. WOLFOWITZ: As far as I know, no final decision has been made yet. SEN. LEVIN: Under the rules of the Senate, we are required to adjourn. We will not -- we will come back again, because the hearing is not completed, but we have no alternative, under our rules now, but to stop exactly where we are. And so the hearing will stand in recess. END. * * * !!! December 12, 2001 PREPARED STATEMENT: SENATE ARMED SERVICES COMMITTEE "MILITARY COMMISSIONS" Secretary of Defense Donald H. Rumsfeld and Deputy Secretary of Defense Paul Wolfowitz, Wednesday, December 12, 2001. Mr. Chairman, Members of the Committee, good morning. On September 11th, Americans found their nation under attack. Terrorists hijacked civilian airliners, turned them into missiles, and used them to kill thousands of innocent Americans--men, women and children--as well as people from dozens of nations. Today, three months after the attack, the ruins of the World Trade Towers are still burning--and bodies are still being pulled from the wreckage. Over the weekend, the remains of twenty more were recovered--five firefighters, two policemen, and a group that had been trapped in a stairwell as they tried to escape the collapsing tower. Their families will now be able to bury them. But many hundreds of families who lost loved ones--mothers and fathers, husbands and wives, sisters and brothers, sons and daughters-- still have not been able to bury their dead... and possibly never will. It is still difficult to fathom the enormity of what happened on September 11th. As time passes, and the fires finally burn out, Americans will eventually recover from the shock and horror of what befell our nation that day. But those who are responsible for our national defense must not lose sight of the fact that these are not normal times. We have been attacked. We are at war. And we must take the steps necessary to defend our people, and protect them from further harm. The September 11th attacks were acts of war. The people who planned and carried out these attacks are not common criminals--they are foreign aggressors, vicious enemies whose goal was, and remains, to kill as many innocent Americans as possible. And let there be no doubt: they will strike again, unless we are able to stop them. We have no greater responsibility as a nation, than to stop these terrorists--to find them, root them out, and prevent them from murdering more of our citizens. To accomplish that objective, the President is marshalling every tool at his disposal--military, diplomatic, financial, economic. He is working to freeze the assets of terrorist leaders and organizations that sponsor and finance terror. He is working with foreign governments to shut down the terrorist networks that operate in dozens of countries across the world. And he has sent brave Americans to Afghanistan--courageous soldiers, sailors, airmen and marines, who at this moment are risking their lives to stop the al-Qaeda terrorist network and the Taliban that seek to kill our people. This is not a law enforcement action. It is war. We seek to defeat or destroy our terrorist enemies, so that they cannot harm Americans. When coalition forces storm a Taliban compound or an al-Qaeda safe house, they cannot first ask for a search warrant. When they confront Taliban or al-Qaeda fighters in the caves and shadows where they hide, they are in combat. Their objective is to stop the terrorists and prevent them from continuing to threaten our country. The U.S. military is doing this in Afghanistan--and they are doing it extremely well. But the terrorists who threaten us are not only in Afghanistan. They operate in dozens of countries--including the United States. They are, and remain, unlawful belligerents, adversaries who attacked our nation in contravention of the rules of war. And the President has made it clear that we will hunt them down wherever they hide. When enemy forces are captured, wherever they are captured, they must then be dealt with. There are a number of tools at the country’s disposal for doing so. One of those tools is the establishment of military war crimes commissions. The president, as commander-in-chief, has issued a military order that would permit individual non-U.S. citizens to be tried by military commission. As yet, he has not designated anyone to be tried by such a commission. He may do so; he may not. To prepare for the possibility that he may do so, the Department of Defense is developing appropriate procedures for such commissions. We are in the process of developing these procedures. We are consulting a variety of individuals and experts, in and out of government, to discuss how such commissions should operate, and how they have operated in the past. We are working to establish rules of procedure that will ensure, in the event the President decides to designate a non-U.S. citizen to be tried by a military commission, that it is handled in a measured, balanced, thoughtful way that reflects our country's values. Military commissions have been used in times of war since the Founding of this nation. George Washington used them during the Revolutionary War; They were used during the Civil War; President Franklin Roosevelt used them during World War II. During and following World War II, we didn’t bring German and Japanese war criminals to the U.S. for trial in civilian courts. We tried them by military commissions. In Germany, we prosecuted 1,672 individuals for war crimes before U.S. military commissions. Convictions were obtained in 1,416 cases. In Japan, we tried 996 suspected war criminals before military commissions--of which 856 were convicted. These conviction rates are not out of line with normal, non- military commission outcomes--indeed, they are lower than the felony conviction rate in the U.S. federal courts last year. When eight Nazi saboteurs landed on our coast in 1942, with the intention of destroying American industrial facilities, they were tried by military commissions. Indeed in that case, the Supreme Court upheld the constitutionality of military commissions. In Ex parte Quirin, the Court ruled unanimously--in an 8-0 decision--that the trial of the Nazi saboteurs by a military commission, without a jury, was indeed constitutional, declaring "unlawful combatants…are subject to punishment by military tribunals for acts which render their belligerency unlawful." Further, the U.S. Congress also recognized the use of military commissions, after World War II, when it passed the Uniform Code of Military Justice in 1950, which included statutory language preserving the jurisdiction of military commissions. So all three branches of the U.S. government have endorsed the use of military commissions. Our ability to bring justice to foreign terrorists is critical to our ability to defend the country against future terrorist threats. Moreover, it is well established that a foreign national who is engaged in armed conflict against the United States has no constitutional claim to the rights and procedures that would apply to a domestic criminal prosecution. Furthermore, there are a number of compelling reasons for using military commissions instead of civilian courts to try unlawful belligerents in times of war. First, by using military commissions, we can better protect civilian judges, jurors and courts from terrorist threats and assure the security of the trial itself. Because of the ongoing threat from terrorists, the risks to jurors are of a kind that military officers are trained and prepared to confront but that are not normally imposed on jurors in civilian trials. Indeed, the judge who handled the trial for the first World Trade Center attack is still under 24 hour protection by federal marshals--and probably will be for the rest of his life. It is also important to avoid the risk of terrorist incidents, reprisals or hostage takings during an extended civilian trial. Moreover, appeals or petitions for habeas corpus could extend the process for years. Military commissions would permit speedy, secure, fair and flexible proceedings, in a variety of locations, that would make it possible to minimize these risks. Second, federal rules of evidence often prevent the introduction of valid factual evidence for public policy reasons that have no application in a trial of a foreign terrorist. By contrast, military tribunals can permit more inclusive rules of evidence--a flexibility that could be critical in wartime, when it is often difficult, for example, to establish chains of custody for documents or to locate witnesses. Military commissions allow those judging the case to hear all probative evidence-- including evidence obtained under conditions of war--that could be critical to obtaining a conviction. Third, military commissions can allow the use of classified information without endangering sources and methods. This point is critical. During the course of a civilian trial, prosecutors could be faced with a situation where, in order to secure a conviction, they would have to use classified information that would expose how the U.S. monitors terrorist activities and communications. They could be forced to allow terrorists to go free, or offer them lighter sentences, in order to protect a source that is critical to our national security. Do we really want to be in the position of choosing between a successful prosecution of an al-Qaeda terrorist, and revealing intelligence information that, if exposed, could reduce our ability to stop the next terrorist attack--at a cost of thousands more American lives? A military commission can permit us to avoid this dilemma. We can protect national security, including ongoing military operations in Afghanistan, while at the same time ensuring a full and fair trial for any individuals designated by the President. Again, Mr. Chairman, the President has not designated anyone to be tried by military commission, and we have not yet issued regulations or established rules of procedure. But we are at war with an enemy that has flagrantly violated the laws of war. They do not wear uniforms. They hide in caves abroad, and among us here at home. They target civilians--innocent men, women and children of all races and religions. And they intend to attack us again. Let there be no doubt. They are not common criminals--they are war criminals. We must--and we will-- defend this country from them. Military tribunals are one of many instruments we may use to do so. We are confident that we will develop a process that Americans will have confidence in, and which is fully consistent with the principles of justice and fairness our country is known for throughout the world. We have the reputation as a nation for dealing fairly in these kinds of matters--and we will do so in this case. We will bring justice to the terrorists, and ensure that the American people can once again live their lives in freedom and without fear. Thank you. * * * January 14, 2002 DOD NEWS BRIEFING - ASD PA CLARKE AND REAR ADM. STUFFLEBEEM (excerpts) Clarke: Good afternoon. I just want to say a few things and then turn it over to Admiral Stufflebeem. Today marks the 100th day since military action started in Afghanistan. And as we said from the very beginning, there would be peaks and valleys to the kinds of action that you could actually see. This is a very unconventional war. It is not just about military; it's also economic and diplomatic and financial and legal. In terms of military action that you can see, there'll be peaks and valleys, as we said. And so, over the last several days, as some in the media have been commenting, although there hasn't been a lot you can actually see, there has been a lot of activity. And as the secretary talked about last week, right now we have got a lot of people pouring through the huge cache of information that has surfaced in Afghanistan as a result of the efforts there thus far. So going forward, we just want to say again, it is an unconventional war. There will be actions you can see; there will be actions you can't see. But our intent to prosecute this war very, very aggressively is ongoing. A couple of things on detainees. As of today, there are 414 detainees in Afghanistan; there are 20 in Guantanamo. When additional detainees arrive there, we will tell you. When the procedures for the questioning of the detainees has been worked through, we'll also talk to you about that. And there have been a lot of questions, obviously, about the treatment of the detainees. So I just wanted to give you -- share with you a few of the details of what is going on there. Each day the detainees are given three culturally appropriate meals. They have daily opportunities to shower, exercise and receive medical attention. So in keeping with -- in accordance with the Geneva Convention, they are receiving very humane treatment, and we expect representatives from the ICRC to visit with them later this week. (...) Clarke: Andrea? Q: Yeah. Okay. Going back to the detainees in Guantanamo, first of all, can you tell me, of the ones who are there, the 20 that are there, have they started interrogations of them in Cuba? And can you tell me -- there was a report that the ones that left yesterday tested positive for TB. Are they or will they be treated for TB? And third, there was a report that the detainees had been shaved. And is that true? And if so, why were they shaved? Clarke: On the first one, the questioning of the detainees at Guantanamo has not started -- working on the procedures by which that will take place. That has not yet started. And Andrea, I have seen reports on the TB, and I just don't have information for you on that. I just don't know the circumstances on that. Q: What about -- (off mike)? Clarke: I just don't know. Q: Torie, if you could -- if I could follow up on that, last week -- Q: Can you take that question? Can you take that question from Andrea? Q: (Off mike.) Clarke: We'll take that one. Q: And also, last week Secretary Rumsfeld said that one of the detainees needed to be sedated en route. He didn't know why at the time. Do you have any more information about that and whether there's been anything similar in this particular wave of detainees? Clarke: I don't have any further information, and we don't have any reports on the current round. (...) * * * January 20, 2002 SECRETARY RUMSFELD INTERVIEW WITH NBC MEET THE PRESS (excerpt) (...) Russert: Military tribunals -- very controversial when first proposed. Have you given some second thoughts to that? Rumsfeld: Well, I wouldn't put it that way. I've given a lot of thought, but I wouldn't say second thoughts. There's been a lot of discussion and debate and articles on this, and I think it's been kind of useful. It's kind of informed the public debate and consideration of it, and my impression is that the overwhelming majority of the people now who look at this concept agree that it's got a role. We have the Uniform Code of Military Justice, which produces a just decision, and we have the Criminal Code of the United States, which produces a just decision, and throughout history, we've had military commissions, and the president thought -- properly, in my view -- that we may very well need commissions in this situation. Now, he's not assigned anyone to be tried in a military commission yet, but there are distinctive things about this conflict that suggest that it may very well be a useful way of achieving--in a different way, achieving also a just decision, and I think it's a good thing. We've been fashioning exactly what the rules and procedures might be, and we're not quite ready to announce them. We will be well before anyone's assigned. Russert: John Walker, the American Taliban, his parents said that they have a lawyer for him, that they tried to communicate with him, the lawyer tried to communicate with him, all unsuccessfully because the United States government wouldn't allow it. Rumsfeld: I don't want to get into a particular case, but the situation is that it's my understanding he has not asked to have a lawyer. He has been receiving excellent medical care. He's been receiving good food, and he was wounded. He's being treated properly, humanely, as are the other detainees, and he is going to be transferred to the Department of Justice and the U.S. Department of-- Russert: When? Rumsfeld: Oh, very soon. Russert: The next day or two? Rumsfeld: I don't know. It depends on when airplanes can pick people up and transport them to the proper place here in the United States, but I would think in the immediate future, several days. And he'll wind up, probably, in the northern district of Virginia and will be part of the U.S.--we have a just criminal system in the United States, and people do get treated right, and I think any suggestion to the contrary is basically coming from people who are not well informed. (...) * * * January 20, 2002 SECRETARY RUMSFELD MEDIA STAKEOUT AT NBC (following NBC Meet the Press) (...) Q: Do we know, sir, when the military commissions in Guantanamo are going to start up? Rumsfeld: We don't know if there will be any military commissions in Guantanamo. What we do know is that the President has decided that he wants to have that option and he has not as yet suggested any individual be tried by a military commission. He very likely will, but he has not yet. Q: Mr. Secretary, where and when will John Walker be transferred to the United States? Rumsfeld: Soon, and we don't discuss transit on prisoners for obvious reasons, but the likelihood is -- Attorney General Ashcroft and I and the President have agreed that he will be transferred from military detention over to the Department of Justice for disposition in the criminal court system of the United States, very likely in the Northern District of Virginia, and that he'll arrive in that jurisdiction sometime in the days ahead. Q: Have you heard anything from the Red Cross teams in Guantanamo at this point? If you would just turn your face to the camera, sir, I'm sorry. Rumsfeld: Yes. They're there. They have been meeting with and reviewing the situation in Guantanamo. We have no report from them as to anything that they may have to say. My understanding is they're going to be meeting with the SOUTHCOM, with the U.S. Command for the South in Miami sometime in the next day or two and I believe they're going to be meeting with some people in Washington, D.C., after that, if I'm not mistaken. Q: Are you concerned about the European, especially, so many European countries that have expressed concerns about the treatment of the detainees down there? The U.S. public may not care all that much, but it seems as though the European nations have expressed a lot of alarm. Rumsfeld: Obviously anyone would be concerned if people were suggesting that treatment were not proper. The fact remains that treatment is proper and there's no doubt in my mind that it is humane and appropriate and consistent with the Geneva Convention for the most part. I don't know quite where those reports are coming from. We know they're not coming from people who are knowledgeable, that's clear, because the treatment has been certainly appropriate. These people are getting excellent medical care. They are receiving culturally appropriate meals three times a day. They're being allowed to practice their religion which is not something that they encouraged on the parts of others. They are clothed cleanly, and they are dry and safe. I think that the people who have been the most shrill on the subject very likely will once they have more knowledge of the situation stop being quite so shrill. The thing to keep in mind for all of us is that these people are being handled -- First of all, these people were involved in an effort to kill thousands of Americans. Second, they were captured and they are unlawful combatants. The highest purpose of the Geneva Convention was to distinguish between lawful and unlawful combatants so that our people and everyone who participated's people would be treated properly. To the extent they were wearing uniforms and were seen as combatants, they were carrying their weapons openly and seen as combatants, they merited treatment. There was a conscious decision to differentiate between people who behaved responsibly as lawful combatants and those that did not, who blurred the distinction between combatants and civilians. And I think that if we think of the fact that the people taking care of those prisoners in Guantanamo Bay, Cuba, are the young men and young women who live next door to you and are the children of our friends and neighbors, and they're fine young people, and they are doing a wonderful job, and it is not fair or appropriate to suggest that the conduct that they're engaged in in detaining those prisoners is anything other than humane and appropriate because it is humane and appropriate and I'm darn proud of those folks down there for the fine job they're doing. (...) * * * !!! January 22, 2002 DoD News Briefing - Secretary Rumsfeld and Gen. Pace (Also participating was Gen. Peter Pace, Vice Chairman, Joint Chiefs of Staff) Rumsfeld: Good morning. First I want to express my condolences to the families of the two Marines that were killed in the helicopter crash in Afghanistan over the weekend, and certainly to their five injured comrades. The sacrifices that these young men and women make defending freedom is deeply appreciated by me and by all the folks in the Department of Defense and the country. And certainly our hearts go out to their families and their friends. Next I'd like to take a few minutes, probably a little longer than normal, and talk a bit about the detainee situation at Guantanamo Bay and try to put some perspective on the subject -- the implication being that it needs some. First let me say that our troops are handling a tough assignment in a very professional and truly outstanding way. They're doing a first-rate job. The allegations, that have been made by many from comfortable distance, that the men and women in the U.S. armed forces are somehow not properly treating the detainees under their charge are just plain false. These are fine, well-trained young men and women who are serving our country well, and it is a disservice to them to suggest anything to the contrary. I think it bears reminding that these young men and women in uniform volunteered to serve in the military and to defend our country. They come from communities all across this nation. They're from all stratum of society. They're all races and religions. They went to high schools with your children and mine, and they're fine people. They're doing a job that is difficult and dangerous. They are very well led by their commanders. And let there be no doubt, the treatment of the detainees in Guantanamo Bay is proper, it's humane, it's appropriate, and it is fully consistent with international conventions. No detainee has been harmed, no detainee has been mistreated in any way. And the numerous articles, statements, questions, allegations, and breathless reports on television are undoubtedly by people who are either uninformed, misinformed or poorly informed. The detention center in Guantanamo Bay has gone from non-existent to a temporary facility. The current facilities are just that, they're temporary. They didn't exist a few weeks ago. They will be replaced in the months ahead with a more permanent facility, as it becomes possible to determine the size and the scope of the problem. Today, which is, I think, just something like two short weeks after the activity began, the more than 150 detainees have warm showers, toiletries, water, clean clothes, blankets; regular, culturally appropriate meals, prayer mats, and the right to practice their religion; modern medical attention far beyond anything they could have expected or received in Afghanistan; exercise; quarters that I believe are something like eight by eight and seven-and-a-half feet high; writing materials, and visits by the International Committee of the Red Cross. These men are extremely dangerous, particularly when being moved, such as loading or unloading an aircraft, buses, ferries, movements between facilities, movements to and from showers and the like. During such periods, the troops, properly, take extra precautions. Lest we forget, in Mazar-e Sharif, the al Qaeda prisoners broke loose in a bloody uprising. They killed one American and they killed a number of Afghan troops, and some prisoners were carrying grenades under their clothing. In Pakistan, some Pakistani soldiers were killed when prisoners revolted while they were being moved by bus some time after the Mazar-e Sharif uprising. At least one detainee now in Cuban -- has been threatening to kill Americans. Another has bitten a guard. This is not wonderful duty. It's difficult duty. To stop future terrorist attacks, we have detained these people, and we have and will be questioning them to gather additional intelligence information. A word on the legal situation, about which there also seems to be considerable interest. Whatever the detainees' legal status may ultimately be determined to be, the important fact, from the standpoint of the Department of Defense, is that the detainees are being treated humanely. They have been, they are being treated humanely today, and they will be in the future. I'm advised that under the Geneva Convention, an unlawful combatant is entitled to humane treatment. Therefore, whatever one may conclude as to how the Geneva Convention may or may not apply, the United States is treating them -- all detainees -- consistently with the principles of the Geneva Convention. They are being treated humanely. Lawyers must sort through the legal issues with respect to unlawful combatants and whether or not the Taliban should be considered what the documents apparently refer to as a, quote, "high contracting party," unquote, or, in plain English, I think, a government. The Department of Defense will leave those issues to them. General Pace? Pace: Thank you, sir. On behalf of General Myers and all of us in uniform, we'd just like to join with the secretary in expressing our condolences to the families of the two Marines who were killed in the CH-53 accident over the weekend, and to wish a speedy recovery to the five Marines who were injured in that accident. And with that, we'll answer your questions. Rumsfeld: Yes, Charlie? Q: Mr. Secretary, you intimated that people who criticize the condition of these detainees are charging that military people, that individual members of the U.S. military, are mistreating these people. Aren't these charges that U.S. policy is unfair and inhumane, in that these people are being kept in eight-by-eight outdoor cells for an indeterminate time? Do you plan any -- any -- immediate changes to address these charges? Rumsfeld: The -- there are so many charges that it's hard to categorize them, but I've seen in headlines and articles words like "torture" and one thing and another, which is just utter nonsense. The policies of the United States government are humane, and the way the prisoners -- the detainees are being treated is humane. So regardless of whether one wants to look at it from one perspective or another, in any case, there are no instances of where detainees have been treated in anything other than a humane way. Q: Other than the ongoing construction of the new facility, do you plan any immediate changes? Rumsfeld: We're always -- we're always available for improvements, and every day that that center has been -- since the order was given to establish that detention center, it has improved every single day over the past several weeks. And it will, I am sure, every day from now on, as they move towards a more permanent facility, which probably would take several months to construct. But there is nothing inhumane about the cells that are being used at the present time. They have a roof. They have the materials and items that I've mentioned, and they're being treated properly. Yes. Q: Mr. Secretary, two points. Why not call them prisoners of war? And you're indicating that that's just some legal debate, which is up there. Are you not concerned that this could come back and somehow haunt the United States in potential future treatment of American soldiers who are taken in whatever kind of conditions, so that some future entity could say to the U.S., "You didn't abide by the Geneva Convention on this. You didn't call them prisoners of war. Why should we?" Rumsfeld: Well, first of all, as I've said, we are giving them the treatment that is appropriate under the Geneva Convention. We are. I mean, we simply are doing that. Now I don't -- I think that the legal questions I'm going to leave to the lawyers, as to why they prefer one characterization as opposed to another. My understanding of the situation is that one of the higher purposes of the Geneva Convention was to distinguish between legitimate combatants and unlawful combatants -- lawful combatants, on the one hand, and unlawful on the other. And the reason for doing that was that they felt that a higher standard should be provided and given to people who, in fact, wore uniforms; who, in fact, were fighting on behalf of a legitimate government; who did carry their weapons openly and who did do those things that men and women in the United States armed forces do as a matter of course -- wear insignia indicating who they are. The importance of it, if you think about it, is to the extent you blur the distinction between people who are lawful combatants -- that is to say, men and women in uniform -- and innocents, who are civilians, and you try to behave and conduct yourself by not wearing uniforms, by not carrying your weapon openly, by not carrying insignia of that, you're trying to suggest that you want the advantages that accrue to an innocent, a civilian, a noncombatant. And it is -- that was a concept, I'm told, in the Geneva Convention, which is very important. So, in direct answer to your question, no, I don't think that anyone will confuse U.S. men and women in the armed forces and treat them any differently, because they merit standing. The second issue, I'm told, that's complicated -- and again, I'm not a lawyer and I don't really spend a lot of time engaging these issues. There are terrific people in the Department of Justice and in the White House and in the General Counsel's Office who worry through these things. But the issue of what is a country and what isn't a country is something that gets debated, and I think most people would agree that the al Qaeda is a terrorist organization; it's not a country. And to give standing under a Geneva Convention to a terrorist organization that's not a country is something that I think some of the lawyers who did not drop out of law school, as I did -- (laughter) - - worry about as a precedent. And I think that's a -- not an unreasonable concern on their part. So I think the simple, quick, knee-jerk reaction to these things is a dangerous one and one that we ought to be very careful about and think through. And that's what the process is that's going on. Q: Well, then there is, of course, the issue of when is the U.S. -- and you have said repeatedly that it's an open- ended question at this point -- when the U.S. is going to accuse them of something, charge them with something, specify something, which is the body of law that rules American citizens and in most other situations. Thus far, that has been kept a gray area and is part of the -- Rumsfeld: Well, not really. Q: -- (inaudible word) -- criticism. Rumsfeld: Well, I don't deny that the criticism runs the gamut across the entire spectrum. And the fact that people raise those things I think is fine, and it elevates the discussion and people can talk about them. But the reality is that they have been charged with something. They have been found to be engaging in battle on behalf of the al Qaeda or the Taliban, and have been captured. And we have decided, as a country, that we prefer not to be attacked and lose thousands of lives here in the United States, and that having those people back out on the street to engage in further terrorist attacks is not our first choice. They are being detained so they don't do that. That is what they were about. That is why they were captured, and that is why they're detained. Go back to any conflict, when there is a conflict and people are engaged in a battle, and some win and some lose, some are dead and some are captured. The ones that are captured are detained; they are kept away from the battle, they're kept away from killing more people. Now, that is not an unreasonable position. I think anyone in uniform would find it a perfectly reasonable conclusion. Q: Mr. Secretary? Q: Mr. Secretary? Rumsfeld: I'll tell you what I'm going to do. I am going to stay here and answer as many detainee questions as need to be answered, and -- so I'll try to work my way through the room. I don't know that I'll know all the answers to all the questions, but if I don't, we'll find them, because it seems to me it's time to tap down some of this hyperbole that we're finding. Q: Mr. Secretary? Q: Mr. Secretary? Q: Mr. Secretary? Rumsfeld: Yes? Q: Is John Walker being treated the same way as the other detainees -- Rumsfeld: Yes. Q: -- shackled, hooded in the transfer -- Rumsfeld: Oh my goodness! Now look, is he being treated like the other detainees, shackled, hooded, and what have you? Oh! Well, let me say this about that; I will repeat what I said in my opening comments. When people are moved, they are restrained. That is true in prisons across the globe. It is not anything new. It is because in transit, movement from one place to another, is the place where bad things happen. That's what happened in Pakistan when the Pakistani soldiers were killed when the -- the uprising in the bus. And will any single prisoner be treated humanely? You bet. When they are being moved from place to place, will they be restrained in a way so that they are less likely to be able to kill an American soldier? You bet. Is it inhumane to do that? No. Would it be stupid to do anything else? Yes. Q: Mr. Secretary, there was a debate yesterday in the British Parliament, I happened to notice -- Rumsfeld: Oh, I read some of that. Just amazing -- Q: -- and it -- well, it was interesting. And one of the comments made was that we -- handling of John Walker, a United States citizen, has been different from the handling of the others, and that this demonstrated that the United States would not treat one of its own people the way that it has treated these others. And I would ask your reaction to that. Rumsfeld: Well, it's amazing the insight that parliamentarians can gain from 5,000 miles away. I don't notice that he was handled any differently or has been in the past or is now. He was wounded, so he was treated. Other -- there are many other people who were wounded, and they've been treated, they are being treated, in Guantanamo Bay -- very well -- excellent medical care. And to -- you know, I just can't imagine why anyone would suggest that he's been treated any differently from anyone else. Q: Well, will he put in an eight-by-eight cell that has no walls but only a roof? Rumsfeld: The -- just for the sake of the listening world, Guantanamo Bay's climate is different than Afghanistan. To be in an eight-by-eight cell in beautiful, sunny Guantanamo Bay, Cuba, is not a -- inhumane treatment. And it has a roof. They have all of the things that I've described. And how each person is handled depends on where they go. And Mr. Walker has been turned over to the Department of Justice. He will go where they want him. He will not go to Guantanamo Bay, Cuba. What kind of a cell he is put into is up to the prison that he is held in during the period that he's being processed through the criminal justice system of the United States. And any suggestion that the United States is providing preferential treatment to people depending on which country they came from, I think, would be false and -- Q: On a related question, there are three British -- apparently three British citizens at Guantanamo Bay. Rumsfeld: Yeah. Q: Can you clarify -- did the United States tell the British government before moving these detainees from Afghanistan to Guantanamo Bay that we were taking this step? Rumsfeld: I don't know. My -- the United Kingdom is working very closely with us. They have liaison in Tampa, Florida. They are a part of the coalition. They're leading the international security assistance force. People talk at multiple levels with the U.K. every day of the week, every day of the -- just continuously. And do I know whether someone called them up on the phone and said: Gee, we're thinking of doing this, that, or the other thing? I just don't know the answer to that. You could ask them. Q: Well, their claim is they weren't told, and they seem pretty upset about it. And I'm just wondering -- Rumsfeld: "They" -- who's "they"? Q: Several members of the British parliament are claiming that the British -- Rumsfeld: They are not the government. The "they" is the U.K. government, and if I'm not mistaken, I read that Prime Minister Blair and other representatives of the government said things quite the contrary to what you're saying. Q: Mr. Secretary? Q: Mr. Secretary, I have a question, but since you're talking about the detainees, you may want to get to this in a minute or so. You said that the al Qaeda is a terrorist organization, not a government. And yet, even though it's not elected, the Taliban was a de facto government of Afghanistan. I know you understand that there are some Taliban prisoners. But my question, although it may sound parochial, has perhaps farther-reaching implications. There's a company called Evergreen International Aviation -- General Pace, you may want to check this, but if you know it, jump in, Mr. Secretary -- from McMinnville, Oregon, that wants to send a 747 loaded with 175,000 pounds of relief supplies to Afghanistan, and according to the company, it has been prevented from doing so by the Defense Department and the FAA. Any comments on that? Rumsfeld: Well, first, I know nothing about it. Second, the Defense Department is not in a position to prevent anybody from flying into Afghanistan. People are flying in there all the time. Q: Can I ask General Pace to maybe check it -- Rumsfeld: Country after country sends things in. Company after company sends things in. NGO after NGO send things into Afghanistan. How anyone can suggest that the Department of Defense is prohibiting them from doing it, I can't quite imagine, but I simply don't know enough about it. Do you? Pace: I do not know about it. Q: Mr. Secretary? Q: Mr. Secretary, last week, Friday, the U.S. military took into custody six Algerians in Bosnia not directly related to the combat underway in Afghanistan. In previous renditions, usually the civilian law enforcement agencies -- FBI and the like -- have done these renditions. Under what authority did the U.S. military have to take those six individuals into custody and then transport them to Guantanamo after they were released by the Bosnian government for lack of evidence against them? Rumsfeld: I think we'll have to get you an answer on that. The -- I don't know that it's correct that always they have been through civil side. I think that, in fact, there have been renditions that the military has been involved in previously, even during my time. Q: Usually, however, there is an element of civilian authority involved in those renditions, if I'm not mistaken. Rumsfeld: Yeah, I'd have to check on that, but my recollection is that it's been done both ways. Q: And a follow-up. If, in fact, as you say, these prisoners are being treated humanely, that's certainly not the perception in some quarters. Is there a concern that the U.S. will somehow lose the high moral authority in this war on terrorism by the treatment of the detainees and any subsequent rendition, such as the one with the Algerians? Rumsfeld: Well, I guess I think the truth ultimately wins out, and the truth of the matter is, they're being treated humanely. And the people down there are fine young men and women and the commanders are talented and responsible people. And the work that's being done to create facilities that are appropriate is moving forward with dispatch. And I think that the American people will see that, and indeed, I think the people of the world will. You know, it's perfectly possible for anyone to stand up and say, "Henny Penny, the sky's falling, isn't this terrible what's happening?" and say that; and have someone else say, "Gee, I view with alarm the possibility that the sky's falling!" And then it gets repeated. And then some breathless commentator repeats it again. And then it goes on for three days. Now, does that make it so? No. At some point does the air come out of that balloon? You bet. Q: Mr. Secretary? Rumsfeld: The fact of the matter -- the facts of the matter are there. They're clear. And I think that there's no question but that if someone looked down from Mars on the United States for the last three days, they would conclude that America is what's wrong with the world. America is not what's wrong with the world. And what's taking place down there is responsible, it's humane, it's legal, it's proper, it's consistent with the Geneva Conventions. And after a period, that will sink in, let there be no doubt. Q: Mr. Secretary? Q: Mr. Secretary, you've mentioned a couple of times -- matter of fact, it's been the first criteria you've mentioned in making the distinction between lawful and unlawful -- combatants wearing uniforms and insignia. Weren't there times when U.S. troops, Special Forces and others, wore native garb in Afghanistan and did not display insignias and uniforms? Rumsfeld: You'd have to -- you'd have to talk to everyone who was ever in there. People -- it's perfectly proper for someone in the military to wear something that is appropriate to a climate or a circumstance. That's why there are multiple criteria. It isn't just, do you happen to have a hat that's different than the hat you normally wear, or do you happen to have a scarf around you in a sand storm, or if you're riding on a horse, do you happen to have something over your military trousers -- the answer is sure you can. That's why there is a series of things one looks to, and it's -- how they carry their weapon, whether they've got insignia, whether they are reasonably clearly combatants as opposed to civilians and non-combatants. Is this roughly right? Pace: Yes, sir. Yes, sir. (laughter) Rumsfeld: Terrific. Q: Mr. Secretary? Q: Mr. Secretary, you mentioned -- Rumsfeld: Thelma. Q: You mentioned earlier that Cuba has a beautiful climate. But as you know, in a few months it's going to be very, very hot down there and there is going to be more complaints about them being held in open conditions like that. And also, again going back to some of the criticism, the criticism being the open-ended nature, that they are going to be there for an undetermined period, how would you, again, respond to that? Rumsfeld: I don't know how many times I've been to Guantanamo Bay, but it's a lot, and it frequently was in the summer when I was Navy pilot, and that was back in the days before air-conditioning. And it's just amazing, but people do fine. (laughter) I mean, there are a lot of people in Cuba with no air- conditioning. (laughter) I know that will come as a surprise! But I was in Washington before there was air-conditioning and the windows used to open! It's amazing. The worry for me is not that. I've been -- also been in Guantanamo Bay, Cuba in a hurricane and that is not a nice thing. But that's hard on anybody no matter where you're living, what you're in -- a cinder-block house or whatever. So that is a bigger worry for me, quite honestly, than the temperature. Q: Can I follow up -- Q: On the issue about being there for an undetermined period, I mean, this goes also to the question of prisoners of war. If they were prisoners of war and the operation ended in Afghanistan, you'd have to release them. Rumsfeld: Or charge them. Q: Right. Rumsfeld: Right. And I would think that one could reasonably assume that that will be the case here; that at some point, they will either be charged or released. At the moment, it's been two weeks since they've been there. The war on terrorism is not over -- the effort. These people are committed terrorists. We are keeping them off the street and out of the airlines and out of nuclear power plants and out of ports across this country and across other countries. And it seems to me a perfectly reasonable thing to do. Yes? Q: Mr. Secretary, I want to go back over a couple of points because you just said at some point these people will be charged, and previously you were quite adamant that they already have been charged. So the question is, you -- Rumsfeld: Well, not legally charged. They have been found to be people shooting in Afghanistan, who have been captured. Now that is something. That is why they're off the street. Q: But this has all -- what I don't understand is, this has all been going on, certainly, for much longer than two weeks. And you said several times that you were basically leaving this to the lawyers, that you weren't especially getting involved in this. But yet, with all due respect, you seem really quite annoyed here today and quite involved in the details. So how -- Rumsfeld: Just trying to answer the questions. Q: And we're just asking them. How do you move this forward? How -- what have you said to your lawyers or administration lawyers about getting this resolved, either getting these people charged into the criminal court system, into military tribunals? How do you avoid the prospect of the U.S. military in fact being jailers for an indeterminate period of time of people who have not been charged? What are you going to do about it? Rumsfeld: Mm-hmm. It is certainly the -- not the first choice of the Department of Defense to be in the business of detaining people for long periods of time. I think, as I've mentioned before, the -- and I'll just do it very briefly -- a number of people have been processed, identified, interrogated, and turned back to Afghanistan forces. A number had been turned back to Pakistan forces. A number have been received from Pakistan and given back. We now have people from, you know -- I don't know -- probably two or three handfuls of countries, different countries. And my first choice would be for many of those to end up back in their countries, to be processed through their systems, whatever they may be. We undoubtedly will end up processing some through the criminal justice system. I wouldn't be surprised if we did some through the Uniform Code of Military Justice, and I suspect there will be some military commissions. The -- as -- I mean, I'm sorry to have to say it again, but the -- those are questions for lawyers, those are questions for people to work through, and they are working through them. And it is not as though it has been a long period of time. The process of gathering intelligence information is still going on. The process of gathering law enforcement information is still going on. And during that period, it seems to me that the world -- and certainly the American people -- can fully understand that the task is to keep them from killing more people. And that is why they are being detained during this period that we're doing the interrogations. That seems to me to be quite reasonable. Q: What techniques are you using to encourage these people to talk to their interrogators? Why should they talk to the interrogators? Can you offer them anything? Rumsfeld: I have no idea what they do. I'm sure that what they do is what they do in the civil -- in the criminal justice system. They get good at it and they figure out ways they can ask them questions, and I would assume that it's possible that they can offer them things. I don't know what, but -- Q: Can you offer them deals? Can you offer them plea bargains? Can you offer them -- Rumsfeld: I'm not a lawyer and I'm not into that end of the business. The most important thing for us from our standpoint is gathering intelligence. Yes? Q: Mr. Secretary, to follow up on exactly that point, you say the most important thing is to gather intelligence, but how far can you take that? For example, Jim mentioned the Bosnia detainees. If you have people that you believe have intelligence relating to possible al Qaeda but have not been combatants, do you feel entitled to hold them at Guantanamo purely for intelligence gathering even with no intent to charge them? Rumsfeld: A lawyer will end up deciding what is appropriate and what's not appropriate by way of periods of time. But certainly we feel not just entitled but an obligation to try to gather intelligence about future terrorist attacks and how the network functions. And that is what we're doing. Q: Mr. Secretary? Rumsfeld: Yes? Q: One, if you have a list of countries that these people are being held from? And two, if you have comment from General Musharraf that he claims that Osama bin Laden and Omar Mullah -- or of bin Laden being -- he may have been killed from kidney disease? But what I'm asking, sir, why he is making claim now after one year that Pakistan sent kidney treatment machines to Osama bin Laden? And where do you think you stand today? And do you claim victory in Afghanistan, sir? Rumsfeld: I don't claim victory. There's still a lot to do in Afghanistan, as we all know. It's a dangerous place. And let there be no doubt about that. There are still a lot of Taliban and a lot of al Qaeda running around, and people are still getting killed. I do have a list of countries. It changes every day as to how many are from each country. And as people are given back and the process is completed with respect to people, the numbers change by country as well as in the aggregate. With respect to the issue of Osama bin Laden's health, I just am -- don't have any knowledge. I read what you read in the paper and I can't -- I'm sorry, I can't add any texture to those reports. (...) Q: Mr. Secretary? Rumsfeld: Yes, Brian? Q: Mr. Secretary, you've been reluctant to release the names of who -- as far as detainees, who we have in custody. Why is that? And in general terms, can you provide the highest-ranking al Qaeda member we have, the highest-ranking Taliban member we have? Rumsfeld: Well, the reason for the reluctance has been that we haven't had their names. We've had to start the process of interviewing each one. And, you know, many of them have three and four aliases, and they lie. And it is not an easy task, nor is it a task that the armed forces of the United States is organized and trained to do. So we're getting assistance from different agencies of the government with translators and interpreters and interrogators. The -- our focus has been -- and I think people will not find this unreasonable -- our first focus has been to try to deal with the immediate problems in Afghanistan, and that is to say, to go after the al Qaeda and capture as many as we could, to go after the Taliban and see that that government is thrown out of office, to implement a plan across the globe to try to have engaged law enforcement and financial instruments to find out how these networks work, so that we can stop other attacks on the country. Doing these administrative, ministerial-type functions that you're -- we're all talking about today have not been the first priority of the Department, and I think for good and fair reasons. Yes. Q: But out of the top 20, do we know how many we have? Rumsfeld: Sure. Q: Will you tell us? Rumsfeld: Not today. We're giving thought to that and trying to figure out what's the -- how to -- what's the right way to handle it. There is an issue of -- if people know who is in custody, then they know what kind of information conceivably might be available to us. And it simplifies their problem in trying to evade us from capturing them. And so, while it seems like a perfectly reasonable request that, "Gee, why don't you just give us all the names," it may not be. And we're trying to do it right, and that's taking some thought. Q: Can you read the names of countries, though? Rumsfeld: Go ahead. (...) Q: Pam? Q: I grew up in South Florida, and my mom never turned on the air conditioning, and I'm here to tell you it was torture. (laughter) Rumsfeld: Would you please refrain from using that word? (laughter) Look at you! You've survived admirably. Q: Yeah, I moved up north. So you said earlier that accepting the construct that these are, say, prisoners of war and therefore able to be detained for the length of the war -- my question is, length of which war? Is this the battle in Afghanistan? Is this the global war on terror? Because at the opening days, you said that could last for five or 10 years. And then also, could you tell us what benefit does the Defense Department get out of not formally charging now -- charging them now? Do they -- is there some kind of a constitutional protection that would apply, that would prevent you from being able to get the kind of intelligence that you need if you were to formally charge them and start putting them through a legal process? Rumsfeld: I don't know enough of the legal technicalities to answer your question. I know that the process of gathering the intelligence information has not been concluded. And it -- that seemed to us -- and quite reasonably, to me -- to be sufficiently important, from the standpoint of the American people and our forces deployed overseas, to stop further terrorist attacks, that is what we have been doing. I'm sure that the lawyers will figure out at what point it's appropriate to bring charges to people. For the moment, I'm just pleased that they're detained and off the streets and not killing people. (...) Q: Mr. Secretary, Mr. Secretary, is it a fair summary of what you're -- you've been saying today that prisoners are being treated well, but that swift administration of justice is not a priority for you; that your first priority is security and intelligence? And you keep saying, you know, "Leave it to the lawyers," as if it wasn't really very important -- the administration of justice -- Rumsfeld: No, I don't mean to suggest it's not important. It is important. I think that is -- let me summarize, but -- I think that's a useful thing to do. There is no question but that people that are being detained by the United States are being treated humanely. They are being treated in a manner that's consistent with the Geneva Convention, whether or not they merit that kind of a treatment. That is what the United States does. That's what -- the kind of people we have in the armed forces do, is treat people decently. And suggestions to the contrary are misinformed, at the minimum. The -- second, you're right. The concern that the Department of Defense has had, and from the outset, has been to do everything humanly possible to stop terrorists from killing people, and to gather as much intelligence information as we can so that we learn more and more about these terrorist networks and the people that are financing them and the people that are harboring them and the people that are actually committing terrorist acts. And that is pure, simple self-defense of the United States of America. And so those two things are correct, if that's roughly what you said, which is pretty roughly what you said. Probably not quite as well as I did, but -- (laughs) -- (laughter) -- but close enough for government work. (laughs) Q: A swift follow-up. Are the facilities that you're designing to be built at Guantanamo being designed with an eye to long-term incarceration, not only for these detainees, but potentially for future detainees in future chapters of the war on terrorism? I mean, is this going to be the place where they go? Rumsfeld: That kind of thought has not been given to it. What they are is -- well, the contract is being considered right now in the building, but what they would be is not something that would last a hundred years, if that's what you're wondering. These are facilities that would have walls and a back and a roof and open into a hall, with a mesh -- very much like a prison cell. And they would be semi-prefabricated that would be moved down there and then erected relatively quickly. Q: With air conditioning? (laughter) Rumsfeld: Mr. Secretary, are there detainees of Chinese origin? And do you plan to send them back to the Chinese government? Rumsfeld: I don't recall whether there are still any Chinese. There certainly have been reports of Chinese al Qaeda- related people both in Afghanistan and in Chechnya. Whether we have any in tow or not, I'm not -- I don't recall. Q: How about from Pakistan? Q: Northern Alliance people said you have Chinese detainees. Q: Can you provide us with a list of the countries that are included in the detainees? Rumsfeld: The -- I didn't bring it with me. We might be able to. The problem is, it may be inaccurate. This is what they're saying; it isn't what may be ground truth. And -- and there's an awful lot of what they say that is not ground truth. Yes? Q: Number one, is Walker being transferred today? Rumsfeld: Walker is at some point in the days ahead going to arrive in the Northern District of Virginia. And I don't really pay much attention to precisely when he leaves what location, and it depends on weather, and he goes from here to there, to here to there, and he ends up here. Q: Can you give us any progress report on the whole issue of where the tribunal structure is and when that might be a reality? Rumsfeld: Well, certainly I can. The president has assigned no one to be treated in a military commission. Therefore, its status is it's not operative at the moment. We will -- we have come very close to working through some preliminary judgments as to how they might operate. Those are now being discussed with a variety of different people. I've had several meetings on it. They'll come back to me with the views of those folks, and then we may announce something; we may wait until someone is assigned. I just don't know. It doesn't -- but at the moment, there's nobody. Yes? Q: Mr. Secretary, since you want to clear the air about the detainees, one of the things that seems to have aroused public opinion and the parliamentarians from Britain was this photograph that was released that showed the detainees kneeling with their hands bound behind their backs. Rumsfeld: That's right. Yeah. Q: Could you just explain what that photograph -- Rumsfeld: I will, to the best of my ability. It's probably unfortunate that it was released. It's the tension between wanting to meet the desires of the press to know more and the public to know more. And what that was, I am told, is not a detention area, that is a corridor or a walk-through area that came -- my understanding is -- goes something like this. When they're on the airplane, they wear earpieces because of the noise. You've ridden on these airplanes; they're combat aircraft, and we've all worn earpieces. That's no big deal. There were a number who had tested -- they were worried about tuberculosis, so in a number of instances they were given masks for the protection of other detainees and for the protection of the guards. They come out of an airplane and the back lowers and they walk out. And then they loaded them into, I believe, buses and they took them down to a ferry. And they were still restrained, their hands and their feet restrained because of the dangers that occur during a period of movement. They put them on a ferry, if I'm not mistaken, and the ferry takes them across to the other side of the Guantanamo Bay. They get off of the ferry and they get into some -- something that then transports them to the detention area. They get out of that vehicle, and in relatively small numbers are moved into this corridor that is a fenced area. And they are asked to get down on the ground. They get down on the ground. And they take off their ear pieces, they take off their masks, they do whatever they do with them before taking them in small numbers into the cells, where they then would be located, at which point the -- they are no longer in transit, and therefore, they are no longer restrained the way they were. What happened was, someone took a picture -- and we released it, apparently -- of them in that corridor, kneeling down while their head pieces are being taken off, and people made a whole -- drew a whole lot of conclusions about how terrible that was that they're being held in that corridor. Now, you know, if you want to think the worst about things, you can. If people want to ask questions and find out what is reasonably happening, it seems to me not a -- an unreasonable thing, when you're moving them from the vehicle they're in, in towards their cells, to have them stop in some area prior to that and do what you do to get them in a circumstance that's more appropriate for being in a cell than how they were arranged in the buses, the ferries and the airplanes. Q: Secretary Rumsfeld -- Q: Mr. Secretary -- Rumsfeld: And I think you're quite right; I think that a lot of people saw that and said, "My goodness. They're being forced to kneel," which is not true. Q: But just a point -- Q: Mr. Secretary, you said it was unfortunate that that photograph was released. I would just argue that it was unfortunate that it wasn't released with more information. Rumsfeld: Maybe. Yeah. That's fair. Q: The lesson here ought not to be -- Rumsfeld: I mean, I'm not blaming anyone for releasing it, but -- Q: -- less information or withholding photographs, but simply releasing more information -- Rumsfeld: Fair enough. Q: -- so we can make better judgments. Q: And Mr. Secretary, would it be more beneficial to provide more open access to the media to allow the media to see for itself how these prisoners are being treated, to convey that information? You've spent now nearly an hour trying to explain what's going on there, when over the past couple of weeks, if the media would've had more open access, the stories that you're telling today would have been, perhaps, better told over the past couple of weeks. Rumsfeld: You mean the facts that I'm presenting -- Q: Exactly. Rumsfeld: -- as opposed -- (laughter) -- Q: As facts that -- Rumsfeld: I thought that's what you meant. Q: Actually, they could say it to you, because you, yourself, have not been there yourself. Rumsfeld: That's right. Q: So, do you think it would be more beneficial if there were more open access? Rumsfeld: Aren't there a lot of people down there? Q: Well, but they're not allowed any access or any -- any access to the detention facilities themselves -- Q: Mr. Secretary -- Rumsfeld: Let me just try and do this, and then I'll come back, Andrea. My recollection is that there's something in the Geneva Conventions about press people being around prisoners; that -- and not taking pictures and not saying who they are and not exposing them to ridicule, which is the genesis, as I understand it, of the convention requirement. So I don't know what the rules are, but my impression is there are an awful lot of people who have been -- press people who have been to Guantanamo, who have seen the facilities, and I don't know that a single one who's been there has seen a single thing that was inhumane. Q: Mr. Secretary, can you - Q: If I can just -- Rumsfeld: All the reports about all of these problems are coming from people who have not been there, not from the press who were down there, that I've seen -- or at least the press that are inside the area. Q: Mr. Secretary? Rumsfeld: Yes, Andrea. Q: I just returned from there. Rumsfeld: Did you? Good. Q: Yes. But we couldn't get closer than about 150 yards away, and even with binoculars it was very hard to see from outside what was going on. And I understand the rules about photography, but -- Rumsfeld: Wasn't I roughly right? Not just photography -- Q: I mean, all we could see was -- if they weren't wearing orange, we would not have been able to see anything, pick out anything. And wouldn't it be -- I mean, if we could have gotten closer to them, we could actually see, not with pictures, but that the reporters could have actually seen close up what those -- what that compound looked like, because we were really too far away, and we only were there for a couple of hours, and the rest of the time, reporters are kept on the other side of the bay, you know, basically penned up ourselves, not able to see. So, I mean -- Rumsfeld: Oh, now that will be a news story! (Laughter.) Why don't you stand up, Andrea, and clean up what you just said! Let the record show she was loose with her language! (laughter) Q: It could raise your approval rating! Q: I mean, is it possible to get reporters closer, still being underneath, you know, the Geneva Conventions? Rumsfeld: I don't -- I don't know. I just don't know the answer. Q: Can you look into it? Rumsfeld: Yeah, we will look into it. (To staff) Dick. (returning) My recollection is that getting reporters, with or without cameras, in close proximity with prisoners is considered not fair or right with respect to the prisoners -- from the prisoners' standpoint -- not from my standpoint, but from prisoner's standpoint, under the conventions. (...) Q: Mr. Secretary, another follow-on about the detainee treatment. Over the last several days, the International Committee for the Red Cross has been holding individual interviews with the detainees for -- Rumsfeld: They still have people down there. Q: -- a period of time, and they're still continuing that. Are they so far, from what you're getting, in full agreement with your assessment of the treatment of the detainees, and/or, are they making recommendations or changes that they see are needed there? Rumsfeld: Well, this is an unusual situation. I'm told by the people in Guantanamo Bay that the arrangement they have with the International Committee of the Red Cross is that the International Committee of the Red Cross is happy to do what they're doing. They're given free access. They had a larger team there initially. Some have now left, and they are going to be reporting at some point -- I don't know, a week, week and a half, whatever it takes -- to somebody. And who it is, I don't know -- whether it's the Pentagon or whether it's the forces in Tampa -- probably unlikely -- more like Miami, the Southern Command (SOUTHCOM), that has the jurisdiction for it -- possibly the people in Guantanamo. They have not done so yet. I have not talked to them. And it -- I think it would not be wise for me to try to characterize these people; they're professionals. They -- this is what they do. They go out and look at prisoners and make judgments about their treatment, and I'm sure they're perfectly capable of characterizing what they've found in their own good time. I am telling you what I believe in every inch of my body to be the truth, and I have spent a lot of time on secure video with the people down there. I have talked to people who have been down there and come back, and I haven't found a single scrap of any kind of information that suggests that anyone has been treated anything other than humanely -- notwithstanding everything we have read and heard over the past three days. (...) Q: Mr. Secretary, can you release the name of the countries that are being held there? Q: No more detainee questions? Q: He said he would. Rumsfeld: I said I would what? Q: Release names of countries being held. Rumsfeld: Oh, I said I would look at it. My problem with it is, I don't know if they're telling the truth. And it's -- Q: Do you have any idea? Q: (inaudible) -- accuracy a criteria for releasing information -- (laughter). Q: We'll accept your good-faith representation. (cross talk and laughter) Q: Can you tell us more about this time with no air conditioning? * * * January 24, 2002 DOD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. MYERS (excerpts) (...) Q: Mr. Secretary? Rumsfeld: Yes? Q: The International Red Cross says the government agency that receives its report on the detainees or unlawful combatants in Guantanamo can release that report as long as it's released in entirety and not excerpted. Have you or anybody else at DOD received a report from the Red Cross, and do you plan to release it when you do receive it? Rumsfeld: Have we received a report? I assume by that you mean in writing, such that something would be releasable, and the answer is no, not to my knowledge. No one in the government has received a written report. It's my understanding that we may at some point in the next weeks ahead, after they conclude their process. And exactly who that's submitted to, it's not quite clear to me. I think -- I believe what happens is it's submitted to us, and then, if I'm not mistaken, they have a practice or a pattern at least of reporting back to the countries of the nationals that are being detained about those nationals, as opposed to about other people's nationals. We have received -- correction, there have been discussions taking place. Obviously, if you have a team of people from the International Committee of the Red Cross in Guantanamo, they do talk to people down there, our people. And they've been in fairly continuous discussion, and I'm sure they are today, because they left some of their people down there. Q: Mr. Secretary, a follow on to that. I mean, can you say that the suspension of detainee transfers to Guantanamo is purely the result of space concerns or some of the concerns that the ICRC raised? And what were some of those concerns? Rumsfeld: I had not heard of any concerns by the ICRC when I made the decision to discontinue the flights until more construction took place. Q: So it's simply space concerns, and that's it? Rumsfeld: That was what was in my head when I indicated that I wanted the flights discontinued until we completed some more space. Q: Mr. Secretary, can you -- can you or the general talk about -- Rumsfeld: Excuse me. I didn't answer one part of your question, I don't think. You asked would we release a report if and when we get a written one, and the answer is, I assume we would. Sure. I mean, this is the United States, and that's what we do. It'll get -- it'll be out there. Q: (Well, sometimes?). (laughter) Rumsfeld: Oh, come on! Come on! I can't imagine not. I haven't seen it. I don't know what their rules are. See, I don't know that you're correct when you say that their rules permit a release of the report if you release it all. I've not been told that. But let's pretend you're right. If you're right, my assumption is that the -- Q: I'm always right. Rumsfeld: Yeah, okay. (laughter) But let -- my assumption would be that if you are correct, that they have no problem with releasing reports, and assuming they do in fact submit a report, and assuming it does come into my possession, my assumption is that I would release it, yes. Q: (off mike) Rumsfeld: Well, it has to be. (...) Q: You mentioned that it's hard to consider terrorists military. That's a theme that you've mentioned several times. In view of -- Rumsfeld: It's also a fact. Q: Right. Right. I'm not questioning you. Rumsfeld: (laughs) Q: In view of that, what do you see as the applicability of the Geneva Conventions to this conflict? Are they still relevant? And if they -- if you see them as relevant, do you anticipate taking any steps in Guantanamo to bring the situation there more explicitly into line with international law -- for example, allowing the establishment of a tribunal to clarify the legal status of the combatants, for example? Rumsfeld: The issue you've raised is one that I have addressed at great length here the other day. It is something that the lawyers are addressing. I think it is important to remind all of ourselves that the Geneva Convention had a very good purpose, and it was in part to distinguish between people who behave like soldiers, dress like soldiers, carried their weapons like soldiers, were part of a military operation, as opposed to people who did not and looked like civilians, and therefore put in jeopardy other civilians. And they said, "Let's give a higher standing." Now that is the thing that is being considered, and there will be a decision, and everyone will know what it is. And it is at a level of legal complexity that has implications well beyond this. And it will not take much longer. And it is not critical -- it is interesting, from a legal standpoint, it is not critical or even relevant to their treatment, because they are being treated in a manner that's consistent with the Geneva Convention, and in a humane way. And that is a fact. So when this legal decision gets made, it will be made. It will be announced. It will be publicized. And it seems to me that that's all I can say in answer to the question. Q: What -- (off mike) -- are you talking about? Rumsfeld: The question as the -- the thing that will be ultimately answered, one would think, would be the issue as to -- that we've been discussing with respect to lawful combatants, as opposed to unlawful combatants; that is to say, people who clearly fit within the Geneva Convention because they behaved in a manner that the participants in the Geneva Convention felt ought to be rewarded with a certain level of treatment, as opposed to people who systematically did not behave in that way and therefore ought not to be rewarded with that same level of handling. That's the critical thing, I think, in the Geneva Convention. QGeneral Myers -- QEarlier today, John Walker's legal team said that in fact Walker asked for an attorney just a couple days after he went -- he was under U.S. control, December 2nd. To the best of your knowledge, do you know if that's true, if that's false? Are you in a position to discuss that? Rumsfeld: I'm not in a position to discuss it, and I could not knowledgeably even if I were in a position to discuss it. I just don't know. (...) * * * January 25, 2002 DOD NEWS BRIEFING - REAR ADM. STUFFLEBEEM (excerpts) Q: The detainees, the five extras. Stufflebeem: Yeah. I do know the answer. I'm not sure -- they were turned over to us by the Afghans. Let me put it to you that way. Q: Yesterday? Thursday? Stufflebeem: I can't tell you I know the exact day that that was done, but I think your math is accurate and for that reason. I think it's within the last 24 hours that they were turned over by Afghans to us. Q: Admiral, officials at Guantanamo say that another 60 cells are ready and that they're pretty much done with another 60 above and beyond that. What is holding up the transfer, then, of additional prisoners from Afghanistan? These officials at Guantanamo say since Wednesday they've had 60 ready to go. Stufflebeem: Well, you know that the secretary [of defense] stopped the flights. And of course I know that, and I guess all of us in the chain recognize that. I can't tell you that I know all of the rationale that he used to do that. I do know that the assets -- some of the assets, the airlift assets that have been used to move these detainees are currently being used to help move the 101st in Afghanistan. So we may be seeing a second order effect here of some time-sharing of the transportation assets. And I do not know when the secretary intends to restart, or if he even actually does intend to restart sending detainees down there. So I'd have to defer that to him to give you a better answer. (...) * * * January 27, 2002 SECRETARY RUMSFELD MEDIA AVAILABILITY EN ROUTE TO GUANTANAMO BAY, CUBA (Press briefing en route from Andrews AFB, Md. to Naval Station Guantanamo Bay, Cuba.) Q: Can you tell us if this is your first visit to Guantanamo Bay and why are we going there today? Rumsfeld: I first went to Guantanamo Bay, Cuba, in 1951 as a midshipman in the Naval ROTC (Reserve Officer Training Corps). I was in the ROTC and I had my summer cruise and we went to Guantanamo Bay, Cuba. That was my first time. I went back again in 1953, and then when I was a Navy pilot, I would go down there from time to time when I was flying in the reserves after I left active duty and we would do various types of training down at Guantanamo Bay. So I've been down there a number of times. The reason I'm going down is not because I had nothing else to do today. My daughters were in town, and I -- but I have absolutely full confidence in the way the detainees are being handled and treated. I have spent a lot of time talking with people there about it, and I am not down there for that purpose. I am going down there to talk with the troops and thank them for what they are doing. It is a tough job and there has been a lot of confusion and misinformation about what they're doing down there, and these are terrific young men and women doing an excellent job and I want to tell them that. I also want to meet with the camp's detention center officers about the next steps. We've got some issues about how the more permanent facilities will be built, what numbers of cells. I've been struck by this, that when some people want to talk about this they prefer the word, "cage" so it conjures up animals, whereas most people use the word "cell" which conjures up the image of a prisoner who has done something wrong. I just thought that I'd mention that I prefer the latter. The other thing I may do is to the extent that there are any people from the International Committee of the Red Cross there, I may find an opportunity to meet one-on-one with them. Q: We're getting reports that some of the detainees are trying to communicate with each other, passing notes back and forth with rocks and stuff. Do you have anything on that? Rumsfeld: It's much like what happened at Mazar-e Sharif. Anybody who has looked at the training manuals for the al Qaeda and what these people were trained to do, and how they were trained to kill civilians -- and anybody who saw what happened to the Afghani soldiers who were guarding the al Qaeda in Pakistan when a number were killed by al Qaeda using their bare hands -- has to recognize that these are among the most dangerous, best trained vicious killers on the face of the earth. And that means that the people taking care of these detainees and managing their transfer have to be just exceedingly careful for two reasons. One, for their own protection, but also so these people don't get loose back out on the street and kill more people. This is a very, very serious business and it ought to be treated in that manner. Q: Sir, before you go -- Q: (Inaudible) Rumsfeld: They are not POWs, they will not be determined to be POWs and when we have our discussion later today, I'll walk through that and several other issues. Q: Do you have any reaction to the comments of Jack Straw and Chris Patton regarding (inaudible). Rumsfeld: Oh, I know who he is. Staff: Time to go, sir. Q: But before you go, sir, one more question on another subject. There's a Washington Post story today about a four-star command for domestic security. What are your feelings on that? Do we need that? Rumsfeld: I'm going to be presenting the president with my proposals with respect to the Unified Command Plan in the immediate future. It will have a number of changes. It will also be a very good proposal. Q: Do you support the four-star command? Rumsfeld: I make my recommendations to the president. Q: What about taking a small pool of reporters into Camp X-Ray with you today so we could, without cameras, so we could eyeball it and report because there has been so much misinformation? Clarke: I talked to (Maj. Gen.) Gary Speer (acting commander in chief of U.S. Southern Command) yesterday. He wasn't too thrilled. But I will check with him again. Rumsfeld: I can talk with the camp commander, but there are a lot of reporters down there already, aren't there? Q: But they haven't been able go in. They have been kept away. No reporter has been inside the complex. So -- Rumsfeld: Don't forget that we're treating these people as if the Geneva Convention applies -- Q: But no cameras. Rumsfeld: -- and the Geneva Convention has, I'm told, some words on this subject and also some precedent. And the International Committee of the Red Cross has some views on these subjects and we are, have been, are now, and intend to be in the future to be attentive to those things. And the basis of them is respect for the individuals being detained and not having them "held up to ridicule," is I believe the phrase. It is not clear to me whether that means just photographs or it means just viewing of them -- that could equally be considered that. Q: Could you talk to them? Could you talk to the commander? Rumsfeld: (Nods yes). Q: Great. Staff: Thank you. * * * January 27, 2002 SECRETARY RUMSFELD MEDIA AVAILABILITY EN ROUTE TO CAMP X-RAY (Remarks on ferry from Air Terminal to Main Base, Guantanamo Bay, Cuba) Rumsfeld: Senator Kay Bailey Hutchison from Texas is with us and Senator (Diane) Feinstein of California is with us. (Senator) Ted Stevens is with us. Kay, you are the ranking member of the Military Construction Subcommittee and (Senator Feinstein) you are the chairman. Ted Stevens of Alaska is the ranking member of the Senate Appropriations Committee and is on the Senate Defense Appropriations Subcommittee. Senator Inouye of Hawaii is the Chairman of the Senate Appropriations Subcommittee on Defense. And General (Michael) Lehnert is... what is your official title? Gen. Lehnert: Commander of Joint Task Force 160, sir. Rumsfeld: And the Joint Task Force is a mixture of Army, Navy, Air Force, Marines, Coast Guard. And if I'm not mistaken, this activity has been here only 21 days. Gen. Lehnert: That's right, sir. Rumsfeld: I think it's important to appreciate what a wonderful "can do" group of folks we've got down here who have been doing an absolutely superb job for our country. As I told the folks coming down on the plane, I'm down here to say thank you to you and to your associates for the terrific job you've been doing. And General Myers, who you normally don't see him looking like that, is actually the same General Myers that we know and love, the Chairman of the Joint Chiefs. Who else is here? Gen. Speer: I guess I am, sir. Rumsfeld: (Maj. Gen. Gary) Speer is the Acting Combatant Commander for the Southern Command. When we brought (Gen.) Peter Pace up to become the Vice Chairman of the Joint Chiefs, you were already serving as his Deputy. Gen. Speer: That's correct, sir. Rumsfeld: And he has been serving in an acting capacity ever since then. Do you want to tell these folks a little bit, General, about what's going to happen? Gen. Lehnert: I'd be glad to. What you're seeing here today is that we are following the exact same routine that the detainees would follow. Once they get off the aircraft they're loaded into a bus and they're moved across this ferry and then through the actual main portion of the base at Guantanamo Bay, Cuba. As the Secretary said, we've been here for 21 days, but we would not have been able to get as much done as we have, and I think you're going to be very impressed with how much has taken place but frankly, that would not have happened without the help of the U.S. Navy and the really remarkable "can do" job of Team GTMO out here. Captain Bob Buehn, the CO (commanding officer) of this naval base and the entire community has banded together and they really believe in what they're doing. They have welcomed us with open arms, they have been part of every single solution and never part of any problem and we ought to be very very proud of them. The soldiers, sailors, airmen, marines, and coast guardsmen of this operation have been absolutely superb and I would be remiss if I didn't even mention the contractors. We have a large number of contractors here, about 700 or 800, that come from the Republic of the Philippines and from Jamaica. This is a transnational effort what we're doing here today and what you're going to see today so it's absolutely a remarkable event. Q: There is a patrol boat that flanks the ferry. You're saying this is the same ferry that the prisoners use. What kind of security is there when it is full of prisoners? A: I'm not going to go into any details of the entire security plan. All I'll say is it's multi-layered and it's extensive. The boat that you see out there obviously is a small part of that. That's a Coast Guard PSU. It has 50 caliber machine guns, 7.62 machine guns and all the small arms that normally would be associated with it. They are a superb addition to the normal complement of security that we get. Q: General, there are some reports that the prisoners are beginning to organize, pick leaders, collect rocks and stones. What can you tell us about that? Rumsfeld: All I'll say is they've been here for about 15 days and they've had an opportunity to get their bearings. These are individuals that were captured on a battlefield. They are professionals, as well, and they're doing the same thing that detainees, which is what we call them, or prisoners would do in any area. They're checking out their environment and determining what their options and their opportunities are. Our view is we're not going to give them any. Q: Aren't they allowed to organize or to pick a leader under the Geneva Convention? A: That's a different question, ma'am. Under the Geneva Conventions they are allowed to be represented, and we haven't got there yet. Remember, ma'am, that the detainees have been here for only 15 days. That's the longest any detainee has been here. Rumsfeld: If I'm not mistaken, that issue pertains to prisoners of war, which these people are not. A: That's correct. They are detainees. So when we talk about organizing what we're seeing, ma'am, is that we are just seeing individuals that probably filled leadership divisions in another venue and that's now showing up at this time. Q: Mr. Secretary, do you believe, as Secretary Powell has said, that these people should be reclassified as prisoners of war? Rumsfeld: I don't know anybody in the Administration, including Secretary Powell, who believes, what you have just said he believes. You are inaccurately characterizing his position. I'll leave it to him to characterize his position, but I don't know anybody that I've talked to who misunderstands the situation and believes they ought to be characterized as prisoners of war. These are... Q: Should that be certified by a competent tribunal as the (Geneva) Convention calls for? Rumsfeld: These are detainees. The Convention in certain situations raises the possibility if there are ambiguities that you can have a three-person panel or tribunal to sort out those ambiguities. There are not ambiguities in this case. The al Qaeda is not a country. They did not behave as an army. They did not wear uniforms. They did not have insignia. They did not carry their weapons openly. They are a terrorist network. It would be a total misunderstanding of the Geneva Convention if one considers al Qaeda, a terrorist network, to be an army and therefore ambiguous and requiring the kind of sort that you've suggested. With respect to the Taliban, the Taliban also did not wear uniforms, they did not have insignia, they did not carry their weapons openly, and they were tied tightly at the waist to al Qaeda. They behaved like them, they worked with them, they functioned with them, they cooperated with respect to communications, they cooperated with respect to supplies and ammunition, and there isn't any question in my mind -- I'm not a lawyer, but there isn't any question in my mind but that they are not, they would not rise to the standard of a prisoner of war. Q: How important is interrogation as a component of this for you? Rumsfeld: The interrogation aspect of all people that are captured is enormously important. It is important because of, for me, the intelligence-gathering aspect of it. There's no question but that we have and are and will in the future continue to gain additional information that will enable us to do a much better job of law enforcement, a much better job of anticipating terrorist attacks, a much better job of anticipating the kinds of techniques that are going to be used and have been used. So I rank that very, very high. The other aspect of interrogation, obviously, is to develop law enforcement information. We're not involved in that. A third aspect of interrogation is to decide how you want to handle people. Do you want to give them back to Pakistan? Do you want to give them back to Afghanistan? Were their actions not really egregious? Were they picked up inaccurately or improperly or -- not improperly or inaccurately -- unintentionally? Sometimes when you capture a big, large group there will be someone who just happened to be in there that didn't belong in there. Q: So intelligence gathered here will be used to determine just exactly where these folks will go, how they get sorted out? Rumsfeld: No, that's a law enforcement issue. No. The intelligence gathering is going to be used to defend our country. We have the inherent right of self- defense and we are going to exercise it. Q: For the senators, Senators Inouye and Stevens. You two might be described as, in a sense, the bill-payers of the U.S. government. You make the decisions on spending. Are you down here essentially getting a briefing on what may end up being a very major cost to the U.S. government, a very major commitment to handling this aspect of the war against terrorism? Senator Inouye: We're here to determine the needs of the Administration and the Department of Defense, and as far as I'm concerned what I've heard from the Secretary is convincing. We are prepared to do whatever we can to help the Secretary in this mission. Q: Sir, are you in favor of reviewing the status of each of these detainees? Senator Inouye: I think it's (inaudible) review one way or the other, but from what I know and although I'm not speaking as a lawyer, as the Secretary has indicated, I think the position that the Secretary has taken is the correct one. Senator Stevens: I'm a lawyer. I agree. The al Qaeda is not a nation. It's not a case where we had a nation go to war with the United States. I think this is absolutely correct. Beyond that, we are here because we expect a substantial request somewhere down the line from the Secretary of Defense and the Administration for funds. And Senators Feinstein's and Hutchison's subcommittee will be very much involved as well as many of the defense subcommittees regarding the funding of this operation. Rumsfeld: Let me say one thing. I would also say that these two gentlemen are two very distinguished veterans of World War II who served our country. Sir, you were in the Pacific Theater -- China as I recall. Senator Stevens: Flying Tigers. Rumsfeld: That's right. And you were in -- Senator Inouye: The other way, Europe. Rumsfeld: In Europe. And they both have sterling military records. The reason I raise it is, there's a lot of loose talk about prisoner of war versus detainee. One of the most important aspects of the Geneva Convention is the distinction between lawful combatants and unlawful combatants. It is a terribly dangerous thing from the standpoint of our military and the military of other countries if we blur the distinction between lawful combatants and unlawful combatants. An unlawful combatant is a person who tries to look like a civilian and puts in jeopardy civilians. And a lawful combatant is one that functions as I described, in a uniform, in an organized operation, showing their weapons. The reason they are provided a higher standard of care is because they are lawful combatants, and the idea that we should blur that distinction out of some unknown idea that that's a good thing to do is just fundamentally flawed. We want not to blur that distinction. Q: Does anybody know how much this operation is going to cost? Has the Pentagon figured that out? Rumsfeld: They can't know, because I don't know what our needs are going to be yet. We're in the process of trying to sort that out. Q: There's been mention that there's room for as many as a thousand prisoners here. Is that the number being bandied about? Rumsfeld: Not by me. Senator Inouye: We don't know the numbers yet. STAFF: Thank you. * * * January 27, 2002 SECRETARY RUMSFELD MEDIA AVAILABILITY AFTER VISITING CAMP X-RAY (Remarks with Senators Stevens, Inouye, Hutchison and Feinstein at Guantanamo Bay, Cuba) Rumsfeld: To the men and women in uniform here we want to say thank you so much for what you're doing. You're doing a great job. We know it, you know it, you ought to be proud of it. They tell me it's been just 21 days since this operation has been in business and that is a very short period of time to have accomplished all you've accomplished. We appreciate it. I suppose everyone here was introduced. Senator Hutchison? Hutchison: Yes. Rumsfeld: Good. You all spoke? Terrific. We've got people from California and Texas and Alaska and Hawaii here, I suspect. Did you check? Feinstein: We did. Hutchison: Yes. Rumsfeld: First of all, let me say a word about the war on terrorism. We have been at it just a matter of months, not a long time. And it is going to be a much longer time that we will have to be at it, let there be no doubt. The task that the President has set out for us is to deal with the terrorist networks. They exist. Thousands of people have been trained to kill innocent people -- not just Americans, but people across the globe -- and the President is determined to stick at it until the job is done. I was asked why I was coming down here today. Was I coming down to check and make sure that everything was being done properly? I said no. I wasn't. That I knew it was being done properly. It had been from the beginning. The men and women here doing this job are people who went to our high schools and our grammar schools who are responsible, they're properly trained, properly led, and have been doing a first-rate job. I came down to say thank you. Voices: Hooah! Rumsfeld: Now, are there questions from the troops first? I'll answer all of those I know how to answer and I'll leave the tough ones for the senators. (Laughter) Inouye: They want to know when they can go home. Rumsfeld: They just got here! I used to come to Guantanamo Bay back in 1951 and '52 and '53 and '60, and '64 and '65 and '70. That was back before they had air conditioning. It didn't even exist in those early days. I'd be happy to respond to some questions from the press and so would the members of the United States Senate here. Q: Can you describe, sir, what you saw? What impressed you about what you saw? Start with that. Rumsfeld: What we have seen here today is a lot of very talented people who came down here a few weeks ago and this entire center was, as I recall, in a state of considerable disrepair. It hadn't been used for some time, and it has been very quickly put in shape that they could receive and hold something in the neighborhood of 150 or 160 detainees and as you hear behind me, the SEABEEs working to see that that number of cells will increase so that we can hold additional people here. I've had a chance to visit with a chaplain. I've had a chance to visit with the medical people. We've had an opportunity -- And I might just say the detainees here are receiving medical care that is identical to the medical care that the men and women you see here in uniform receive every day. In fact I think I see the Chief Medical Officer. Raise your hand right there. There he is. They're doing a terrific job. We saw the security system, which is appropriate. We saw people who have just come out of surgery recently in various states of recovery from bullet wounds and various breaks and problems they've had. We were briefed on the security situation. Q: Did you got any kind of feeling, though, in your gut when you looked in on the people who are, who we allege have been part of the organization that were engaged in this war against us? Any sort of feeling or reaction looking at these people? Rumsfeld: We did see the detainees. We also talked to the people who are in the process of interrogating them for law enforcement purposes and for intelligence- gathering purposes. We have teams, multidisciplinary teams, of people who are engaged in that. What else? Q: Mr. Secretary, for Swedish Television. For how long time will these prisoners, detainees, be held here and do you envision a military tribunal being set up right here at Guantanamo? Rumsfeld: As you know the President has signed a military order permitting the establishment of a military commission, to use the phrase of the military order. He has not, as yet, assigned any individual to be subjected to that commission and as a result we don't have plans at the moment as to where any commission might be held. Q: Sir, can I ask on the, do you share at all the sentiments of Senator Stevens on the reaction of British parliamentarians? He said they had done a great disservice to young American men and women here. And do you believe that the British detainees here seek any kind special treatment? And in particular, what's your response to -- Rumsfeld: Wait, let's just do one at a time just for the heck of it. (Laughter) Do I think anyone ought to get special treatment? No, I don't. I think that we have a group of people who are al Qaeda and Taliban terrorists, who have been captured in various parts of Afghanistan. They have been brought here because they are considered individuals that ought not to be out on the street with the possibility that they could kill somebody else, and the interrogation process will go forward. But no, I don't think people at the moment - - I suppose after a period in most prison situations an assessment is made as to who are the most serious and dangerous of the prisoners and they tend to be handled in a manner that's appropriate to that, and those that are considered to be somewhat less dangerous tend to be handled in a manner that's appropriate to that. Q: Mr. Secretary, did you hear from any of those inside Camp X-Ray that there is a concern that some of the detainees are communicating with one another in a way that could possibly (inaudible)? Rumsfeld: The subject was discussed. Q: Mr. Secretary -- Q: Could I have a follow up? Q: Mr. Secretary, would it be terribly dangerous to blur the distinction between lawful combatants and unlawful combatants? Could you help us understand what legal entity, organism, international or otherwise, does make that distinction (inaudible) the Geneva Convention between unlawful and lawful combatants? Rumsfeld: There is a definition of what a lawful combatant is and there are four or five criteria that people look to historically. There's precedent to this, and there is a reasonable understanding of what an unlawful combatant is. The characteristics of the individuals that have been captured is that they are unlawful combatants, not lawful combatants. That is why they are characterized as detainees and not prisoners of war. The al Qaeda are so obviously a part of a terrorist network as opposed to being part of an army -- they didn't go around with uniforms with their weapons in public display, with insignia and behave in a manner that an army behaves in, they went around like terrorists, and that's a very different thing. It's important for people to recognize that this is a different circumstance, the war on terrorism. It requires a different template in our thinking. All of the normal ways that we think about things simply don't work. For example, there were no armies or navies or air forces for us to go after in Afghanistan. We're going after terrorists. That means you have to go and find them and root them out and stop them from killing people. And -- Q: What is your response to the British Foreign Secretary -- Sec. Rumsfeld: You've had a chance. Q: Is there evidence that the detainees have been communicating with each other and have developed some kind of a hierarchical organization with perhaps a troop leader? Rumsfeld: I'm not in a position to respond to that except that you can hear them communicating with each other. Q: But is there some kind of an organizing effort going on? Rumsfeld: Most detainees when they get together in a prison environment do talk to each other and do discuss things. It's a fairly common pattern. They've only been here a very short period of time. Whether it's happened thus far here, I don't know, but I suspect it will. Q: Mr. Secretary, are you satisfied with this facility? Do you think they should go forward with the next step -- what they're calling the modular facility -- and when would that be? Rumsfeld: I am very satisfied that these folks have done a terrific job of getting this facility up and operating in 21 days. They have been improving it every single day. They find ways to do it better and they're making it function better. It is extremely manpower intensive, and these fine folks, they're limited in number and what we've done is we've put a pause on bringing more people in. I do believe we're going to have to go forward with the so-called modular next phase. The big question before the house is how many cells would be appropriate? The numbers that are floating around are in the hundreds right now, not the thousands, although some people have suggested larger numbers but I doubt that. At some point we will process the paper in the ordinary way and present it to the Congress and ask for some support so that we can have a facility that is not a permanent detention center that would last 100 years, but something that is much more appropriate than the cells here that have been put together in the past few weeks. Q: The Australian government said that it would like the Australian citizen, David Hicks, home to face trial there. Is that going to happen? And under what conditions are foreign nationals going to be allowed home to face trial in their own countries? Rumsfeld: I am not a lawyer. Those are the questions that lawyers answer and I don't. I'm searching my memory to see if I -- I cannot at the moment recall any country that has contacted us and said they wanted the opportunity to try nationals from their country that are currently being held in Guantanamo Bay, Cuba. It may be that someone did through the State Department or through some other portion of the government that I'm not aware of, but I'm just simply not aware of that so it's really a hypothetical question at this stage. Q: Sir, did any of these detainees try to talk to you and did you exchange any words with them? Rumsfeld: No. Q: What kinds of specific things did these detainees do to get them selected to come here? And is it possible that some could be in custody, U.S. custody, for years to come? Rumsfeld: The problem with answering that question the way it's posed is that these are individuals. They're not a group completely, although they all were captured and they all were captured in Afghanistan, I believe. No, they were not. Some I believe were captured in Pakistan and turned over to us. The kinds of things they did was, in the case of the al Qaeda, they took over much of Afghanistan, they organized cells in 50 or 60 countries, raised millions and millions of dollars, and attacked a number of locations around the world including the Pentagon and the World Trade Center. The Taliban have been linked tightly to the al Qaeda and behaved as they do, worked closely with them, organized with them -- Q: But they were selected was a larger body of detainees in Afghanistan. Why were these detainees selected to come here? Rumsfeld: Ah. First of all, a journey begins with a single step. What we're doing is trying to sort through these people. What they do is we've sorted some and we've given them to Pakistan back. We've looked at some that Pakistan has captured and taken them because we felt they would be useful from an intelligence-gathering standpoint. We have given some back to Afghanistan. Then what they've done at Bagram and Kandahar is to sort through these people, do a quick sort, and make judgments as to who they believe to be ones that might prove to be particularly useful from an information standpoint and sent a group of them here. I'm sure in some cases we'll find that that first sort wasn't perfect. But it's that kind of a process. Q: You were in the building on September 11th. You felt it rock, and I know that you worked through the smoke and the stench and you went to the memorial service for those almost 200 Pentagon employees. What were your personal emotions when you walked through that gate seeing people that you believe are responsible for that? Rumsfeld: I guess the feeling I have is that we are darn fortunate that the United States went to Afghanistan, worked with the Afghan people to liberate that country from the al Qaeda and the Taliban, that we were able to capture and detain a large number of people who had been through terrorist training camps and had learned a whole host of skills as to how they can kill innocent people. Not how they can kill other soldiers, but how they can kill innocent people, and that we've got a good slug of those folks off the street where they can't kill more people. We'll take two more questions. Q: To what degree have the interrogations provided you any useful information? Rumsfeld: To a considerable degree. There have been terrorist activities that have been stopped and disrupted prior to their being successful in killing innocent people. Q: On the Red Cross recommendations, once they are made, will you release that report? Rumsfeld: I am glad you asked that question. Q: Could you tell us now what they told you? Rumsfeld: What they told me is that they have a longstanding practice of confidentiality. That they, if we want them to tell us things, we do it on the basis that we will not reveal that information to others. That is what their policy is. They believe very sincerely that to the extent they maintain that practice, they will have the ability to go into more countries, see more circumstances, do more of the things they do for the good of humanity than if they do it in a different way. Q: But will you release their report? Rumsfeld: That's what I'm responding to. Their arrangement when they go in is that what they tell us will be confidential by them and by us. And to the extent they know it will not be confidential, their policy is that they don't provide that information to us. Therefore, if we want that information we need to enter into an understanding with them that it will be confidential and that is to preserve their ability to move around the world and have the confidence of people. And also they -- I don't even know if I should be talking for the International Committee of the Red Cross. Are any of them here? Voice: No, sir. Rumsfeld: Except to say that they -- I don't know what kind of a report they will issue if any, but I do know that it would be markedly different if we told them that we would release it. Therefore if we want the benefit of having them here and having them offer their advice, which we do and I feel that, General, you feel it's been a useful thing from your standpoint. General Lehnert: Yes, sir. We've had a very professional and cooperative arrangement with them. Rumsfeld: And so at the moment the answer is it looks like there will be nothing released by us because if we were to release something and they knew we would do that we might not get a report anyway. Q: Sir, could you clarify what you said earlier? Are you saying sir, that based on the interrogation of some of these detainees that future terroristic operations have been stopped? Rumsfeld: No. What I said is that if you take the aggregation of all detainees we've taken and interrogated -- in Afghanistan, in Pakistan, here -- that information gained from detainees has been useful in disrupting other terrorist acts. Last question. Q: Sir, the British Foreign Minister has issued a statement saying that he would like the British detainees to be tried in the United Kingdom. What is your response to that? Rumsfeld: My response is that if in fact he's made a statement like that -- Is he the appropriate person to speak for the government in that regard? Q: He could be. It was endorsed (British Prime Minister) Tony Blair. Rumsfeld: It was. Then it would probably go to the Department of Justice or to the United States government. They would then look at it, process it, and respond in some way. Then issues as to the appropriateness of doing that would be addressed; issues as to when it might be done. Have we gotten the kind of intelligence information we need from them already? If so, that would fit one fact pattern. The question, we would work out arrangements with other countries as to whether or not they would be willing to share any intelligence they got prospectively, which would also be a factor to be considered. And I must add, there certainly are some countries that support terrorism that I doubt we would be willing to do that with simply because we want these people off the street. We don't want them out committing other terrorist acts. Thank you. (...) * * * January 28, 2002 DOD NEWS BRIEFING - ASD PA CLARKE AND REAR ADM. STUFFLEBEEM (excerpts) Q-- Just briefly, Torie, could I ask -- MS. CLARKE: Sure. Q-- the NSC met this morning -- MS. CLARKE: Right. Q-- to discuss the detainees issue at the White House. Do you know of any -- MS. CLARKE: We -- yeah. I -- I'm sorry. I do not have -- Q (Off mike.) MS. CLARKE: No, I don't have a readout of any kind from the meeting this morning. So I have nothing to give you on that. QIs the status under review? Is there some question as to whether they should be redesignated as prisoners of war? MS. CLARKE: I'll tell you everything I know, which is not a whole lot. I am not a lawyer. I am not an expert on the Geneva Convention. But two things are very certain. We are in very unconventional times. We're in a very unconventional war. So every aspect of it, including the Geneva Convention and how it might be applied, should be looked at with new eyes and new thoughts as to what we're experiencing right now. And the second thing is, one of the few things I do know about the Geneva Convention is a big part of its intent is to ensure the appropriate treatment of people and the humane treatment of people. And I could say with absolute certainly that the detainees who are under U.S. control are being treated very, very well. So I would just -- I would just -- I've got to leave it at that, because I can't add to what has been out there thus far. I'm sure I would just screw it up. So I think we'll just wait until we can give you a better readout from the meeting this morning. QBut is there an active review under way? Is the administration reconsidering the designation of the detainees -- MS. CLARKE: I don't know if there was a hard and fast definition of "designation." I think this has been under review and under consideration by the lawyers for some time. QTorie, can I ask a quick follow-up on this? I asked the secretary this the other day, and he didn't get around to answering it. But what he is saying about unlawful combatants and everything else that goes with it perhaps is applicable to the al Qaeda. But even though the Taliban was not an elected government, it was a de facto government, a government in place. And people fighting for that government, Taliban troops, often were not given uniforms, because somebody couldn't afford them or whatever. Anyway, how do you justify calling the Taliban unlawful combatants when they belong to a government in power and they were fighting, you know, a type of war? MS. CLARKE: Let me try to address it this way, and then I am going to stop, because I can only get myself in trouble. There are policies and procedures, considerations you want to take in in determining the application of the Geneva Convention. Then once you have the application of the Geneva Convention, the convention itself treats different people different kinds of ways -- lawful and unlawful combatants. Those are the kinds of things they're looking at, those are the kinds of things they're deciding. With that, I'm going to stop. Admiral? QA housekeeping question? MS. CLARKE: Sure. QThe numbers of detainees in Afghanistan -- perhaps you could enlighten us. They seem to have increased by about 20 over the weekend. If you can tell us how that occurred. And also, evidently reporters are being pulled out of Gitmo today or shortly, and won't be there for another week or so. Can you enlighten us as to why that's occurring? Is there some event taking place this week that they're not -- MS. CLARKE: That's not my understanding, but we'll look into it. I mean, we've been trying to rotate the media through there pretty regularly, and there have been some numbers of them. But -- QBut that's some extended time. Is there any consideration to getting them back any earlier? MS. CLARKE: I don't know what the time frame is, so I'll look into it. QBut you will have reporters back in before they resume the flights? I mean, you wouldn't resume the flights and not have reporters? MS. CLARKE: I don't know what the circumstances are. This is the first time I've heard it. So I'll look into what the circumstances are. It is our desire to facilitate as many media in there as possible and to facilitate as much access as possible. So we'll look into it. QAnd the numbers? MS. CLARKE: He's got it. ADM. STUFFLEBEEM: With that, I'll say good morning to everyone. Yesterday, Afghan forces, with assistance of U.S. Special Forces, conducted an operation to secure the Kandahar Hospital from the control of a group of al Qaeda members who had seized one of the wings of the hospital. Despite numerous attempts to negotiate their peaceful surrender, six al Qaeda forces had been holed up in the hospital for almost two months. Initial reports indicate that all six of those forces were killed in yesterday's attack. Several of the Afghan forces were wounded in the confrontation; only one would be considered serious. There were no U.S. injuries. To date, to bring you up on the detainee numbers, there are 324 detainees in Afghanistan and 158 detainees in Gitmo, Guantanamo Bay, Cuba. And that brings our total to 482. The additional detainees that were turned over in Afghanistan were from the Afghans to U.S. control. And you should expect that the numbers will continue to fluctuate as the interrogations continue of those that are being detained by the Afghans. And with that -- QCan you say where they came from, where the Afghans took possession of them, what part of the country? Anything on why they were taken in as detainees? ADM. STUFFLEBEEM: Well, this particular group -- I don't know where this group came from. There are detainees throughout the country -- every -- north, south, east and west. I mean, there are over 300 being detained in Herat. There still are hundreds that are still being detained up in Sherberghan in the North, and so there are initial interrogations that are going on while they're in custody of the Afghans. The Afghans are recommending those to the U.S. whom they think we would be interested in. And so when we have the opportunity to get our forces moved around, we'll go and do the interrogations of those, and then we continue the screening process until it becomes obvious that these are individuals whom we do want to continue to interrogate or to hold. And then there is enough -- I'm assuming some process where we and the Afghans agree to turn these over to our custody, and we've taken those to Kandahar. QAre all of them -- ADM. STUFFLEBEEM: Where they came from, I don't know. QAre all of the U.S. detainees in Kandahar? Are there still some in Mazar-e Sharif and Bagram? ADM. STUFFLEBEEM: U.S. detainees are in Kandahar and in Bagram right now. Q (Inaudible) -- Victoria? MS. CLARKE: Yes, sir. QAre you ready to release the list of names of the detainees? And also -- (inaudible) -- a country really basically fighting or supporting these what we call terrorists and worst of worst and very dangerous people, like the secretary and the president called them? And why we are supporting or -- want to change their status, because they have killed thousands of people, and they will kill more in the future? That's what they said. So they should be treated just like -- they should be hanged! (Soft laughter.) MS. CLARKE: Personal opinion being voiced. First, as to the names, I don't even know if we have rock-solid identifications of everyone. One of the things we're working on as we look at designation and disposition is how you identify these people and who belongs in which category, if you will. And two, as I said, not being an expert on the Geneva Convention, but what we are trying to do here is make sure we're applying the principles and the policies that we feel very, very good about, and I think, at the end of the day, after a lot of hard work in consideration and deliberation, the American people and the people around the world will see that we are A, treating these people very, very humanely, and B, adhering to the principles that we care very, very deeply about. QBut when you said "treating them very humanely," but what is their future? I mean, how are you going to after the interrogation -- how long [are] you going to keep them? And what is their future? What [are] you going to do with them? -- number one. Number two, is the countries where they belong to, have you heard from one of those countries that are supporting them or to release them? MS. CLARKE: A, what's going to happen to them are things that are being decided at much higher levels than mine. QAnd the countries -- MS. CLARKE: I don't -- I honestly don't know which countries we've heard from and who we haven't. (...) MS. CLARKE: (Alex ?). QYeah. To go to the issue of the identity of the detainees, particularly the ones in Cuba, if you're not sure who they are, how could they have been characterized as the worst of the worst? What did you know about them that allowed you to make that characterization? ADM. STUFFLEBEEM: Remember again, this is an extremely -- I'm using a strong adjective, I'm sorry, and it's a "e" word, too -- this is a fully vetted process. If this is an individual who previously was under Afghani control, then there is a level of interrogation and a level of confidence that is built by those that hold them. They are then offered to the Americans. If they were captured by the Americans outright, the same process works into it. It's going to be a series of interrogations. I think I read this morning that in terms of the numbers of interrogations, where we have more than 6,000 -- now, that's not individuals that you've interrogated, that's a relatively small number compared to the force you're looking for, but you're repeatedly rescreening and determining different levels whom this individual is or what this individual has done. So by the time it gets to a process where Afghanis have screened an individual, our folks at Bagram and at Kandahar would have screened them, the process continues till you get to a level of confidence that this individual was found or picked up in this location, he had previously been associated with involvement of these people, and these were the operations that they were known to be associated with. Since being under detention, some have lied, some have changed their stories, some have tried to attack our people. It would appear, as you had seen yesterday, that they are working to organize an organization down there, probably for no good. They've made death threats against all Americans, and those including their captors. So these are not unknowns in the sense that they are bad guys. These are the worst of the worst, and if let out on the street, they will go back to the proclivity of trying to kill Americans and others. So that is well established. The names of who they are -- if you were to go ask an individual what his name is, he might tell you one and he tells us something different. We're cataloguing all the names, you know, for this particular detainee, but -- QHas a date been set for the resumption of transfers? And do you tell the people, when you're moving them, that they're doing to Cuba? MS. CLARKE: The date has not been sent. ADM. STUFFLEBEEM: And we do not tell them they're going to Cuba. (...) QAdmiral and Torie, there are reports that approximately 100 of the 158 detainees at Guantanamo are Saudi nationals. First of all, can we confirm that? And secondly, there's also a report that Saudi Arabia wants to bring some of those detainees back there to receive justice. Can we confirm that that might be a possibility? And some of the countries that want to bring them back, have we determined which ones we feel would be able to administer the type of justice that we seek, and proper judicial justice, I guess I should say. MS. CLARKE: I'd say, one, we don't have a breakout by country that we can share with you. Two, one of the things we're working on in terms of the disposition of the detainees is, those countries that we feel would handle them appropriately, depending on the person and depending on the circumstances, that probably will happen. We have no desire to hold on to large numbers of detainees of any kind for any great length of time. But we want to make sure these people are not back out on the streets, back out on the roads doing what they have done. I mean, never forget who these people are. They are part of organizations that plotted and planned for a long time to kill thousands and thousands of innocent civilians on September 11th. They are people who were involved in the Mazar-e Sharif uprising, which resulted in a lot of deaths, including one of our guys. They are people who attacked their Pakistani handlers and killed people. And they're people who, since they have been in detention, have vowed to kill more. So, just understanding the kinds of people we're dealing with, appreciating that we're going through a very thoughtful, deliberative process to determine their disposition, then you can understand our concerns and our desires to make sure, as we work with other countries, what they may do with people from their country. And with that, I apologize; Admiral, it's all yours. QAdmiral? MS. CLARKE: Are you done, too? Can he go with me? QThank you. MS. CLARKE: Thank you. ADM. STUFFLEBEEM: Thank you. QAre you leaving, too? * * * January 30, 2002 DOD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. MYERS (excerpts) (...) Rumsfeld: Yes, sir? Q: Can you bring us up to date on your views on whether or not to treat captives from the Taliban as POWs? And as a backdrop to that, when the Pueblo crew was captured by North Korea in '68, the North Korean government declared them as detainees and spies, not POWs, and they tortured them. And therefore, one can argue, it's a two-edged sword. If we don't honor the Geneva Convention and treat them like POWs, if our guys get captured, the same thing could happen to them. Rumsfeld: Fair enough. Let me comment on it. Q: Can you bring us up to date on that? Rumsfeld: You bet. The Pueblo -- very clear situation. Men in uniform on a U.S. warship captured by Korea, taken in, unambiguous as to what they were. They were people from the United States who were in uniform, with their weapons visible, with their insignia, who had every right to prisoner of war status under the Geneva Convention. No question. Second -- Q: Well, excuse me just there. The Navy originally declared them as detainees. They didn't from the start declare them as prisoners of war. Rumsfeld: Who's the Navy? Our Navy or the Korean? Q: The U.S. Navy. They changed the status as the court of inquiry got going. Rumsfeld: Mmm hmm. Q: So I'm just trying to get -- Rumsfeld: Okay, let me answer the question though. Then you say, isn't it a two- edged sword, and it's a good question. The fact is, no it isn't. The Geneva Convention talks about lawful combatants and unlawful combatants. And what it does is it elevates lawful combatants, soldiers in a conflict between two countries so that they can be protected. Ours can be protected and other countries' can be protected and have the rights and privileges that accrue to you as a prisoner of war, which are distinctly different. You get a salary. You get accommodations that are roughly like the military that's holding you. You are allowed to have all kinds of special opportunities, musical instruments and things like this. There's a whole list of them that are the kinds of things that a prisoner of war is entitled to. An unlawful combatant is identified differently for a very good reason, because people who don't wear uniforms, people who don't carry their weapons out, people who don't have insignia are confusing and blurring the line between them and civilians. And terrorists do go around killing civilians. And therefore it's not surprising they did not want to be seen as soldiers. They wanted to be seen as unlawful combatants. And that is the way they dressed. That's the way they behaved. It would be a terrible thing if we said that the Geneva Convention is -- that notwithstanding the status and standing that a prisoner of war gets under the Geneva Convention, that we should blur that distinction and treat everyone the same, regardless of how they behave. The whole purpose of the Geneva Convention is to have a category for prisoners of war that get a special standing under that, if in fact they avoid blurring the distinction between innocent people, civilians and soldiers. So the two-edged sword that you mentioned is something that will not be a problem for us because our soldiers behave like soldiers, they look like soldiers, they dress like soldiers. And they don't go around killing innocent civilians. Q: Well, will they be treated under the Geneva Convention as of this moment? And is there any distance between you and Secretary of State Powell on this issue? Rumsfeld: No, there is none. The reports to the effect that Secretary Powell did not believe that they should be treated as -- correction -- the reports that Secretary Powell believes that they should be treated as prisoner of wars (sic) is just flat untrue. I've been in 10 meetings with him on the subject, and he's never said that. He's always said quite the contrary. He has said basically what I have said, that -- and what General Myers has said, is that they have been, since day one, treated in a manner consistent with the Geneva Convention; they are being today. And the Geneva Convention rights and privileges that accrue to people in their circumstance will, in fact, be applied in the future. We are adhering to the Geneva Convention. Q: So there's no change in your eyes? Rumsfeld: Look, the president of the United States can do what he wishes when he wishes. You know that. He has been considering a couple of legal technicalities, as I've mentioned here, and how he will end up resolving those, we'll know in the next -- in the period ahead. But I am confident enough, from being in all these meetings, to know that we will end up treating these people in a manner that's consistent with the Geneva Convention, and that they will not be characterized as prisoners of war because that is not what they are, they're terrorists. Q: Have you given the go-ahead to resume the transfer of prisoners from Afghanistan to Guantanamo? Rumsfeld: I haven't. Q: Are you -- is it on your desk as a decision now, or is it still -- Rumsfeld: Ah! My desk is a mess! (Chuckling) I've got so much stuff on my desk! (Laughter.) I couldn't say if it's on my desk. I know there have been people wrestling with that, and as I mentioned, I think, some days back, I said look, let's just stop the flow in there till we get ourselves arranged. Now they've been down there 21 or 22 days. They've got a number of cells made. The Seabees are working 24 hours a day. Every day that they've been there, they have made progress. We have not yet ordered the more permanent structures, which we will do. We're trying to get a better grip on the numbers, total numbers -- Q: Total numbers of -- ? Rumsfeld: Of potential detainees. And, you know, there's thousands of these people that are being held by the Afghans, they're being held by the Pakistanis, they're being held by us. And as we go through and look at them, we're giving a great -- large number back to the Afghans as people that were foot soldiers in the Taliban, and a lot back to the Pakistanis that were foot soldiers in the Taliban, and trying to sort out the al Qaeda and the more senior Taliban. So that process -- we can't -- and then we're also trying to find out which countries may or may not be appropriate to return their nationals to so that they can process them. We don't want to have any more people than we have to have. And therefore, getting a fix on the total number of people that ultimately would fit, would be appropriate to have at Guantanamo, is an open question. And I'll be honest; I mean, the number is somewhere between, say, 400 and 2,000. I don't know where it is. I suspect it's closer to the bottom, and therefore, I'm so conservative and respectful of taxpayers' dollars, I'm disinclined to start ordering 2,000 permanent cells for these people. Q. But you settle all those questions before you resume the transfer, is that what you're saying? Rumsfeld: No, but I'm trying to get my head wrapped around it so that I'm a little bit further down. I think what I'll do is probably authorize -- as the cells get completed, the temporary cells that they're currently using, as they get completed, we'll probably authorize another tranche of 30 and then another tranche of 30 as the cells are available. One of the problems is, there is an issue of tuberculosis, and there is the question that the cells' proximity to each other suggests that you may need two cells for a person that may have tuberculosis, in which case you can't just go by the number of cells and the number of people you bring in. So there's a lot of complicated pieces of this. And we're doing it well and we're doing it as rapidly as humanly possible. Q: Is it likely to be this weekend? Rumsfeld: That I'll allow some more to come in? I don't know. I'll allow -- we don't want them in Kandahar, we don't want them in Bagram. We're continuing to give people back to the Pakistanis and to the Afghans, and we're continuing to get more from them. As they have others, we're sorting through them. And so we may give back 30 and take 30. And it's very difficult, with that many moving parts, it's very difficult to know exactly how many -- Q: Mr. Secretary? Q: Mr. Secretary, how was your trip down there? Did you learn anything? (...) * * * February 3, 2002 SECRETARY RUMSFELD INTERVIEW WITH ABC THIS WEEK (excerpt) (...) Q: Let me get into this business of the prisoners of war. Have you settled the issue that's being debated at the White House, I understand, as to whether to actually have tribunals, to look at these prisoners -- and they're not prisoners of war, everybody in your administration agrees -- but somehow to settle their status? Rumsfeld: I think that everyone has agreed that under the Geneva Convention that the United States has been, is today, and will in the future treat them -- will apply the Geneva Convention and see that they have the appropriate rights under the Geneva Convention. Q: For humane treatment. But Secretary Powell argues that perhaps you should have the military tribunal under Article 5, settle their status, that's what Article 5 says, when in doubt, you're to have a military tribunal. Rumsfeld: Right. And we have -- a military tribunal, I think, under the Article, sounds very formal. But it is not necessarily very formal. It's a process, simply, to determine the question as to their status. Q: Are you saying you've done that? Rumsfeld: We have been doing that. That's the way we've been sorting through people. Now, it also says that it need not be done unless there's substantial doubt or a reasonable doubt. Q: Doubt. Rumsfeld: Yeah. And in this case, I don't think anyone doubts that al-Qaeda is a terrorist organization. The Geneva Convention was designed for nations in conflict. What we have here is not a nation, the al-Qaeda, it's a terrorist network. Q: Well, are you arguing your position, sir, or are you telling us that this is now a settled matter? Rumsfeld: I think the thing that's settled is the following: that everyone agrees they are not prisoners of war. Everyone agrees that we have been, are today, and will in the future apply the Geneva Convention and see that they have the rights under the Convention, and there is apparently a legal question that is still being considered in the White House and will probably be resolved some time in the days immediately ahead as to whether the Geneva Convention should be applied as a matter of law, or a matter of policy. We are treating them -- it really does not make a lot of difference. The only change -- difference would be, would be a precedent. And a lot of people are quite concerned that we don't do anything that would blur the distinction between non-combatants and combatants. If you think about it, the reason the Geneva Convention is there is because we wanted to protect lawful combatants, soldiers. Q: Including our own if they are captured by the other side. Rumsfeld: Exactly. And therefore, our soldiers don't go around killing innocent people. Nor do our soldiers go around pretending they are civilians and blurring that distinction between a combatant and a non-combatant. That's what puts civilians at risk. Q: Well, you're examining right now the case of Hasam Quedam in which it is said that our Special Forces went in and through a horrible mistake killed 15-21 people who were not Taliban, but in fact supporters of the new government. Rumsfeld: Is that a question? Q: Yes, because you just said we don't go around killing innocent people. I take your point -- Rumsfeld: Well, we don't. Q: -- except you've launched that investigation to see whether we, in fact, did. Rumsfeld: Of course, we do. We always launch an investigation. I don't -- the commander and the command does. If there are legitimate questions raised about some action, it's perfectly appropriate for them to do exactly what they did and say "stop for a minute, we're going to go take a look. We're going to see what actually happened." Now, is it possible that everyone's accurate? That is to say, that in that attack there might have been some people who were Taliban, there might have been some people who were al-Qaeda, and there might have also been some people that weren't? And in the same room. Because this is Afghanistan. Q: Well, sir, we're out of time, but will you pledge that whatever the investigation shows, you will release that information to the American people and the world? Rumsfeld: Why, of course. Q: All right. Thank you very much, Secretary Rumsfeld, for being with us. I hope you'll come back. Rumsfeld: Thank you. (...) * * * February 3, 2002 SECRETARY RUMSFELD STAKEOUT FOLLOWING ABC THIS WEEK (excerpt) Rumsfeld: Good morning. How are you? You look cold. Q: Yeah. I just have a few brief questions now related to anything you talked about on [This Week]. But the prisoner transfers in Guantanamo, (inaudible)? Rumsfeld: No. Q: I heard there were new barracks they were building in anticipation of that? Rumsfeld: Right. Rather soon, I think. I think we're going to be able to probably bring another plane or two in as they complete the cells that they've been working on. It should be in the immediate period ahead. (...) * * * * * * * * *