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[C] Revision of US Policies, 2002/02/07  - 2002/03/20
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February 7, 2002

JOINT STRIKE FIGHTER SIGNING CEREMONY

Secretary of Defense Donald H. Rumsfeld

(Joint Strike Fighter Signing Ceremony. Also participating: Under Secretary of
Defense for Acquisition, Technology, and Logistics Edward C. "Pete" Aldridge, Jr
and his Canadian counterpart Assistant Deputy Minister for Materiel, Canadian
Department of National Defense Alan Williams.)

(...)

Q: Maybe Mr. Secretary will want to comment on this.

The President just announced the status of the detainees of the Taliban would be
considered under Geneva Convention, al Qaeda would not. Does this obviate the
need for the three man tribunal talked about in the Geneva Convention for the
disposition of the prisoners? And how will this affect, if in any way, the
treatment or the interrogation of the prisoners?

Aldridge: I have not the slightest idea how to answer that question. (Laughter)

Rumsfeld: Maybe I'll respond.

The United States has from the outset, is today and will in the future be
treating the detainees in a manner that is humane and is consistent with the
Geneva Conventions. That has been the case, it is the case, it will be the case.
So it will make no difference at all in that.

The decision by the President that was announced today has taken some time
because the United States feels very strongly about the Geneva Conventions. We
think they're important. They clearly provide assurances for people who are
lawful combatants like our soldiers, sailor, Marines, and airmen are, and so we
have a lot of respect for the Convention.

But the reality is that the set of facts that exist today with respect to al
Qaeda and Taliban where not necessarily the kinds of facts that were considered
when the Geneva Convention was fashioned some half a century ago.

That being the case, while it makes no difference in how these individuals will
be treated, it could conceivably be considered a precedent for the future and
that is why the lawyers took their time and care in making the judgments that
the President finally, the recommendations to the President that the President
finally made.

Q: And no further need for the three-man tribunal that the ABA called for?

Rumsfeld: My understanding is that that is -- First of all, the short answer is
it's my understanding it would not make any difference with respect to them
because the President, as I understand the decision, decided that -- are lawyers
here? No. I won't use as a matter of law. I'll just say I believe the President
decided that the al Qaeda would not fit within the Geneva Convention because the
Geneva Convention is an instrument among states in conflict, and the al Qaeda is
not a state. It is a terrorist organization.

He made the decision that the Taliban would fit within the framework of the
convention. And that because, while a lot of people did not believe that the
Taliban was legitimately a government, and clearly had not been recognized by
the UN or most of the countries of the world, he made a conclusion that they
would be considered as having the convention apply.

Therefore, there is not doubt he has come to that conclusion. And the convention
is written in a way that we're, in those instances where there is doubt it
suggests that there be a screening process. The word tribunal is used, which is
a very different meaning for the word than the so-called military tribunals or
military commissions that have been discussed in another context.

The screening process that has taken place by the United States has been a
process where we have had multi-agency teams that have included the defense
establishment, the Department of Justice, the Central Intelligence Agency,
screen people to determine what they were, which is really what the Geneva
Convention envisioned when they talked about tribunals. And that sort or that
sifting, that process has taken place on an individual basis since the outset of
this process of detaining fighters who have been fighting against the Afghan
government.

* * *


GENEVA CONVENTION APPLIES TO TALIBAN, NOT AL QAEDA

By Jim Garamone
American Forces Press Service

WASHINGTON, Feb. 7, 2002 -- President Bush said the United States would regard
the Geneva Conventions as applying to Taliban detainees under U.S. control --
but not Al Qaeda detainees.

Defense Secretary Donald Rumsfeld said today the United States would continue to
treat all detainees humanely and in accordance with standards set by the Geneva
Conventions.

Bush's decision does not materially change the way all detainees will be treated
by the United States nor does it confer prisoner of war status on Taliban
members. U.S. officials will continue to call both Taliban and Al Qaeda members
"detainees."

Afghanistan signed the Geneva Convention of 1949. U.S. government lawyers
determined the convention applies to Taliban captured since the war on terrorism
began.

"The reality is the set of facts that exist today with the Al Qaeda and the
Taliban were not necessarily the set of facts that were considered when the
Geneva Convention was fashioned," Rumsfeld said in the Pentagon in an informal
talk during the signing of a U.S.-Canada agreement on the Joint Strike Fighter.

Rumsfeld said the president decided the Al Qaeda would not fit under the Geneva
Convention, because the Geneva Convention is an instrument among states in
conflict. "The Al Qaeda is not a state; it is a terrorist organization," he
said.

Bush decided that the Taliban would fit in the framework of the convention even
though neither the United Nations nor virtually any country in the world
recognized the Taliban as Afghanistan's legitimate government.

Rumsfeld said U.S. lawyers took their time in making their assessment because,
"while it makes no difference in how these individuals will be treated, it could
be considered a precedent for the future."

The decision means there is no need for tribunals under the Geneva Convention to
judge the status of the Taliban or Al Qaeda detainees. The convention is written
in a way that, in areas where there is doubt about the status of detainees, a
tribunal sets their status. The tribunal is really a screening process, Rumsfeld
said. However, a screening process has been in place since the detainees were
captured. The process includes the defense establishment, the Department of
Justice and the Central Intelligence Agency, he said.

The Geneva Convention tribunal process should not be confused with the proposed
military commissions the United States may use to try some detainees for crimes.

* * *


U.S. Following Up on Predator Strike; More Detainees Headed for GITMO

By Linda D. Kozaryn
American Forces Press Service

WASHINGTON, Feb. 8, 2002 -- Bad weather has prevented U.S. military officials
from reaching a site near Zawar Kili, Afghanistan, where a Feb. 4 strike by a
CIA Predator unmanned aerial vehicle reportedly killed several Al Qaeda leaders,
Pentagon spokeswoman Torie Clarke told reporters here today.

U.S. military officials don't know who might have been killed since they haven't
yet visited the attack site, she stressed. Along with bad weather, she said, the
site is in a difficult geographical area. Even though days have passed since the
air strike, she said, there is always a great deal of interest in knowing the
results.

There were 107 sorties in Afghanistan yesterday, she said, but no strikes were
reported.

In other developments, Clarke said another group of detainees arrived at
Guantanamo Bay, Cuba, from Afghanistan yesterday. That brings the total number
in U.S. control at the naval base to 186. A congressional delegation is visiting
the Camp X-Ray detention center there today, she noted.

"Over the coming days and weeks, there will continue to be a flow of detainees
into Guantanamo," she said.

Another 271 detainees are under U.S. control in Afghanistan, she said. No
estimate is available of how many detainees are yet to be turned over to the
United States by Afghan authorities, she added.

No decisions have yet been made regarding military tribunals, she said, but
Defense Secretary Donald Rumsfeld is deeply engaged on the issue.

"On important issues, the secretary wants to look at it with a 360-degree
perspective," she said. "He wants to hear the inputs and thoughts and
discussions from a lot of different people. He wants to be completely immersed
in the topic before he feels comfortable enough to make his recommendation to
the president."

Whether the issue is the designation of the detainees or military tribunals, she
said, these are "completely different, unusual, unconventional times and
circumstances. So you've got to look at these institutions and look at these
tools and say how do they work, how do they apply in these circumstances?"

* * *


Rumsfeld Explains Detainee Status

By Jim Garamone
American Forces press Service

WASHINGTON, Feb. 8, 2002 -- It is because the United States places such emphasis
on the Geneva Convention that American officials do not consider Al Qaeda
covered by the agreement nor are they willing to award the Taliban detainees POW
status.

Defense Secretary Donald Rumsfeld during a Pentagon press briefing today
discussed presidential decisions that White House spokesman Ari Fleischer
announced Feb. 7.

President Bush, Fleischer said, had decided that the Geneva Convention of 1949
applies to the conflict with the Taliban in Afghanistan, but not to the conflict
with Al Qaeda terrorists in Afghanistan or anywhere else. He also determined
that Taliban detainees do not meet the convention's criteria for prisoner of war
status.

White House lawyers thought long and hard about the situation before making
recommendations to Bush, Rumsfeld said. The lawyers were worried about the
precedent their decision could set about detainees in future conflicts, he
added.

"Prudence dictated that the U.S. government take care in determining the status
of Taliban and Al Qaeda detainees," he said. "When the Geneva Convention was
signed in 1949, it was crafted by sovereign states to deal with conflicts
between sovereign states." The current war on terrorism is not a conflict
envisioned by the framers of the Geneva Convention, he said.

Rumsfeld stressed that from the beginning, U.S. forces have treated all Taliban
and Al Qaeda detainees humanely. He issued an order in January mandating all
detainees be treated in a manner consistent with the Geneva Convention.

"Notwithstanding the isolated pockets of international hyperventilation, we do
not treat detainees in any other manner than a manner that is humane," Rumsfeld
said.

He said lawyers determined the Geneva Convention covers the conflict with the
Taliban because Afghanistan is a state and a signatory of the Geneva Convention.
The Al Qaeda -- as a nonstate, terrorist network -- is not.

"A central purpose of the Geneva Convention was to protect innocent civilians by
distinguishing very clearly between combatants and noncombatants," he said.
"This is why the convention requires soldiers to wear uniforms that distinguish
them from the civilian population."

He said the Taliban do not qualify for POW status because they fail to meet the
criteria. Taliban fighters did not wear distinctive signs, insignias, symbols or
uniforms, he said, but sought to blend into the population.

He said they also were not organized into military units with identifiable
chains of command. "Indeed, Al Qaeda forces made up portions of their forces,"
Rumsfeld said.

None of this legal maneuvering affects the detainees' treatment, he said. "They
will continue to receive humane treatment," he noted. "They will get three meals
a day, clothing, medical care, showers, visits from chaplains, and the
opportunity to worship freely."

The United States will also continue to allow the International Committee of the
Red Cross to meet with detainees privately, he said.

"We will continue to treat them under the principles of fairness, freedom and
justice that our nation was founded on -- the principles that they obviously
abhor and they sought to attack and destroy," Rumsfeld said.

* * *


February 8, 2002

DOD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. MYERS (excerpts)

!!! Rumsfeld: Good afternoon. The United States, as I have said, strongly
supports the Geneva Convention. Indeed, because of the importance of the safety
and security of our forces, and because our application of the convention in
this situation might very well set legal precedence that could affect future
conflicts, prudence dictated that the U.S. government take care in determining
the status of Taliban and Al Qaeda detainees in this conflict.

!!! The president has, as you know, now determined that the Geneva Convention
does apply to the conflict with the Taliban in Afghanistan. It does not apply to
the conflict with al Qaeda, whether in Afghanistan or elsewhere. He also
determined that under the Geneva Convention, Taliban detainees do not meet the
criteria for prisoner of war status.

!!! When the Geneva Convention was signed in the mid-20th century, it was
crafted by sovereign states to deal with conflicts between sovereign states.
Today the war on terrorism, in which our country was attacked by and is
defending itself against terrorist networks that operate in dozens of countries,
was not contemplated by the framers of the convention.

!!! From the beginning, the United States armed forces have treated all
detainees, both Taliban and al Qaeda, humanely. They are doing so today, and
they will do so in the future. Last month I issued an order to our military,
which has been reaffirmed by the president, that all detainees -- Taliban and al
Qaeda alike, will be treated humanely and in a manner that's consistent with the
principles of the Geneva Convention.

As the president decided, the conflict with Taliban is determined to fall under
the Geneva Convention because Afghanistan is a state party to the Geneva
Convention. Al Qaeda, as a non-state, terrorist network, is not. Indeed, through
its actions, al Qaeda has demonstrated contempt for the principles of the Geneva
Convention. The determination that Taliban detainees do not qualify as prisoners
of war under the convention was because they failed to meet the criteria for POW
status.

A central purpose of the Geneva Convention was to protect innocent civilians by
distinguishing very clearly between combatants and non-combatants. This is why
the convention requires soldiers to wear uniforms that distinguish them from the
civilian population. The Taliban did not wear distinctive signs, insignias,
symbols or uniforms. To the contrary, far from seeking to distinguish themselves
from the civilian population of Afghanistan, they sought to blend in with
civilian non-combatants, hiding in mosques and populated areas. They were not
organized in military units, as such, with identifiable chains of command;
indeed, al Qaeda forces made up portions of their forces.

What will be the impact of these decisions on the circumstances of the Taliban
and al Qaeda detainees? And the answer, in a word, is none. There will be no
impact from these decisions on their treatment. The United States government
will continue to treat them humanely, as we have in the past, as we are now, and
in keeping with the principles of the Geneva Convention. They will continue to
receive three appropriate meals a day, medical care, clothing, showers, visits
from chaplains, Muslim chaplains, as appropriate, and the opportunity to worship
freely. We will continue to allow the International Committee of the Red Cross
to visit each detainee privately, a right that's normally only accorded to
individuals who qualify as prisoners of war under the convention.

In short, we will continue to treat them consistent with the principles of
fairness, freedom and justice that our nation was founded on, the principles
that they obviously abhor and which they sought to attack and destroy.
Notwithstanding the isolated pockets of international hyperventilation, we do
not treat detainees in any manner other than a manner that is humane.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

General Myers.

Myers: Well, thank you, Mr. Secretary, and good afternoon.

I'd like to give you an update on current operations. As of just a few hours
ago, we do have military personnel on the ground in the Zhawar Kili area. You
may remember this was the area at the beginning of the week where we had a
strike. There are over 50 personnel involved in this operation, and of course,
their mission is to exploit any intelligence that can be gathered at the site.

To answer what might be the first question, no, we don't have any reports yet
from the ground. This is due to the fact that it's nighttime there. That's when
they were inserted. And they're going to wait 'til first light to begin their
sweep.

Yesterday we received 28 additional detainees in Guantanamo Bay, and we now have
a total of 186 detainees in Cuba. We hold an additional 271 detainees in
Afghanistan.

And with that, we're happy to take your questions.

Rumsfeld: Charlie?

Q: Mr. Secretary, how do you respond to criticism from people who say that the
reason you won't call these detainees prisoners of war is because, as prisoners
of war, they might be tried by military courts martial, where their rights would
be much more carefully spelled out, as opposed to possible tribunals, which the
president has authorized?

!!! Rumsfeld: Well, I'll respond factually, by saying that that's not correct.
Those issues have never been discussed, nor have they ever been any part of the
consideration in the determination. The considerations have been continuously,
as they've been discussed by the lawyers, issues as to precedent, what is the
right thing to do, what is consistent with the conventions, and what establishes
a precedent that is appropriate for the future. We could try them any number of
ways. And that has not been a factor at all.

!!! The convention created rules to make soldiers distinguish themselves from
civilians, and the reason for that was so that civilians would not be unduly
endangered by war. The convention created, in effect, an incentive system, and
it was an extremely important part of the conventions, that soldiers who play by
the rules get the privileges of prisoner-of-war status. To give a POW status to
people who did not respect the rules clearly would undermine the conventions'
incentive system and would have the non-intuitive effect of increasing the
danger to civilians in other conflicts.

Q: Mr. Secretary, can I ask you a question about Guantanamo Bay?

Rumsfeld: Sure.

Q: Are you considering any limitations, new limitations or an outright ban on TV
or photo coverage of Camp X- ray?

Rumsfeld: Am I currently considering anything like that? I don't know that we
are. I must say, I have found the misrepresentation of those photos to be
egregious, notwithstanding the fact that we had a caption under that, I'm told,
from the outset.

Q: You're talking about the original photo?

Rumsfeld: The original photo. And it has -- those people were there in the
circumstance when they came out of the airplane, off the bus, off the ferry, off
the bus, into that area. They were in there somewhere between 10 and 60 or 80
minutes at the maximum as they were taken individually and processed in a tent
right nearby, where they were met, data gathered, and then they were placed in
individual cells.

The newspaper headlines that yelled, "Torture! What's next? Electrodes?" and all
of this rubbish was so inexcusable that it does make one wonder, as I said to
Jamie, why we put out any photographs, if that's the way they're going to be
treated, so irresponsibly.

Jamie's contention was we should put out more photos with captions. I'm not sure
-- I almost always agree with Jamie, but in this case I'm not quite sure. One
thought that someone has suggested, I don't know if it's still under
consideration, is that we release photos but with a mandatory caption, that the
caption we supply be used if someone wants to use the picture. But I haven't
thought about that. I don't know if that's a good idea or a bad idea.

Q: It's a bad idea.

Rumsfeld: It's a bad idea? (Laughter.)

Q: Now you're talking about official photographs.

Rumsfeld: Yeah.

Q: I'm asking you about independent news organizations' coverage by photo or TV.
Is there any?

Rumsfeld: Well, as you know, there is a -- there are -- I'm not going to say
there are not rules, but there are certainly patterns and practices that have
evolved since the Geneva Convention where it is frowned upon to allow photos
that could be seen as being embarrassing or there's a couple other words they
use, invasive of their privacy, what?

Victoria Clarke, Assistant Secretary of Defense for Public Affairs: Curiosity --
holding them up for public --

Rumsfeld: Holding them up for public curiosity. So we have to be careful about
photographs that are taken.

Q: But the answer to my original question was no, you're not considering any new
kind of restriction or --

Rumsfeld: Am I personally?

Q: Well, the department, you --

Rumsfeld: I have no idea about the department. We'll check with Torie. She might
very well be.

(Cross talk.) Right here. Yes?

Q: Can you explain -- I know the administration has said that the Taliban do not
qualify for POW status because of these four criteria -- (inaudible) --
uniforms, special insignia --

Rumsfeld: Mm-hmm.

Q: -- and yet there's another part of that that says the armed forces of any
party in the conflict should qualify as a POW. Why would you not put the Taliban
under that category, which does not have those four criteria?

Rumsfeld: Well, the president has said the Taliban does apply -- the convention
does apply to the Taliban.

Q: It applies to the Taliban -- but not POW status.

Rumsfeld: Well, that's a different set of criteria for that.

Q: Exactly, and that's what I'm saying. The second criteria -- you have four
criteria, and it's outside --

Rumsfeld: For POW status.

Q: For POW status. But one also says you --

Rumsfeld: One what?

Q: One of the articles says that you qualify for POW status if you are a member
of the armed forces of a party in conflict. Why does the Taliban not qualify as
POW under that? Why have you put them in this separate category, where they
would be militia?

Rumsfeld: I think you're -- I may not be following the question, but I think
we're mixing apples and oranges.

Q: The four criteria for militias --

Q: The four criteria are for militias. So the administration --

Rumsfeld: They're -- no. Well, the four criteria are as to whether or not
they're POWs.

Q: Right.

Rumsfeld: Right.

Q: But there is another category that says they qualify for POW status if they
are a member of the armed forces of the party to a conflict. I don't want to get
in these big legal issues --

Rumsfeld: Yeah, because I'm not a lawyer, and --

Q: -- but that's written exactly above the militia, where the four --

!!! Rumsfeld: We'll ask the lawyers. This was a decision not made by me, not
made by the Department of the Defense. It was made by the lawyers and by the
president of the United States. And we'll --

Q: But would you say the Taliban is the armed forces of that country?

Rumsfeld: We will take your question and see if the lawyers that made the
decision would like to address it.

Q: Could you please provide some more detail for us about this attack on Monday
-- why it occurred, who were the suspected targets, how it occurred? And also,
among these 50-plus Army personnel who have arrived there today, does that
include any forensics teams?

Myers: First of all, the teams that are going in there are prepared to gather
whatever kind of intelligence they come across. So whether the forensics teams
are with them or whether they're trained to gather the evidence and take it back
to a team, I can't tell you. But I think they have -- they're aware that there
may not be a lot of evidence. They may have to gather small evidence and bring
it back and see if it could be evaluated.

On terms of the target itself, it was developed over a period of hours. I would
say several sources of intelligence fed into that. There were lots of
discussions among Central Command and other folks on the target, and it was
concluded that it was a valid target and it was struck.

Q: Could you -- what does a "valid target" mean? I mean, a valid target how?
Were they considered to be senior al Qaeda leaders, as has been reported?

Myers: I think all we better say right now, until we gather the evidence --
because again, this is -- we had nobody on the ground close by when this
occurred, I think we better wait for this team to do their work and tell us. But
-- well, let's just leave it at that.

Rumsfeld: Yes? Right here. Thelma?

Q: A Geneva question.

Rumsfeld: Right here.

Q: In Geneva --

Q: No, there were not SUVs?

Myers: There was one truck at the scene, as I understand it.

Q: One truck. Not an SUV?

Rumsfeld: Here we go.

Q: In Geneva -- back to Cuba for a second. In Geneva, a spokesman for the
International Red Cross is saying that the decision falls short because the
International Red Cross says that all al Qaeda or Taliban are POWs unless a
competent tribunal decides otherwise. What would be your reaction to that?

And also, you didn't mention how this decision would affect them legally, such
as their access to legal counsel, the way they're interrogated. Two angles to
that, first the International Red Cross.

Rumsfeld: With respect to the second part of the question, I'm told it doesn't
affect their legal status at all, nor does it affect how they'd be treated. And
-- that is to say, it does not affect their status from the way they have been
being handled prior to the decision by the White House or now. There's no change
either -- to my knowledge -- in their status or how they'll be treated.

Q: Or answer questions like -- they may not give any more than their name, rank,
serial number? Does it affect how they're interrogated?

Rumsfeld: That, I believe, applies to a prisoner of war, under the Geneva
Convention.

With respect to the International Committee of the Red Cross, my guess is that
if they have lawyers who encourage them to say what they say, that very likely
the lawyers that came to the opposite conclusion will have something to say
about what they said. And that's the way the world works. These kinds of things
-- if we begin with the truth, and that is that it's not affecting how they're
being treated, and then take this whole issue and say that it really revolves
around a discussion between lawyers as to precedents for the future, it seems to
me that it's appropriate to let the lawyers discuss those things. The
announcement was made by the White House -- Ari Fleischer -- and I suppose that
the answers to those kinds of legal questions should come from Ari Fleischer as
well.

Yes.

Q: Have you made any progress that you can share with us in deciding the next
step? In other words, will these people be sent to commissions, to tribunals, to
the civilian justice system, back to their countries? Have you made any progress
in any of that?

Rumsfeld: Sure. Sure. Sure. We are interviewing them. They've -- I forgot what
the number is, but it's something like, if there were 158 down there prior to
the latest [look], I think something like 105 of those have been interrogated
and met with, and the intelligence information is being gathered from them. The
question as to whether any of them will be subject to the presidential military
order for a military commission, some people call it tribunal, but commission I
think is in the order, the answer is that's up to the president. He decides whom
-- which among these people -- he would want to put into the category, and he
has not made any decision with respect to anyone being dealt with in that
manner.

Q: But I believe you were working on a plan here at the Defense Department on
what the standards were for how these people would be sorted out and treated.

Rumsfeld: We have been, you're right.

Q: Is there anything you could share with us about any progress you've made in
those decisions?

Rumsfeld: Except to say we've made a lot of progress, we've cleared away a lot
of underbrush, we have four or five things that I think we're reasonably well
settled on that we would use. And there, obviously, has to be then discretion --
a degree of discretion -- left to the individual commissions as to how they deal
with a variety of different issues.

Yes.

Q: Mr. Secretary, the Geneva Conventions of course cover many other things
besides prisoners of war. They govern, for example, what's a legitimate target,
what's not a legitimate target. As U.S. military operations go forward against
al Qaeda in the future, will those operations be governed by any or bounded by
any international legal constraints at all?

Rumsfeld: Well, I guess the phrase is, "In accordance with the laws and customs
of war, that's how the men and women in the armed services are trained. That's
how they conduct themselves" -- I think is the appropriate answer.

Q: Because it's your own will to conduct that way. But you don't see any laws
that actually would apply to U.S. military operations against al Qaeda, I mean
international laws of war that would apply to military operations against al
Qaeda?

Rumsfeld: We've not noted that the al Qaeda have adhered to any international
laws of war or customs. The United States does, has and will. That is how every
single man and woman in the United States armed forces is trained, and they
understand that.

Q: Whether it's obligated to or not?

Rumsfeld: I beg your pardon?

Q: Whether it's obligated to or not?

Rumsfeld: Yeah. I mean, we have said that as a matter of policy, that's the way
we behave, that's the way we will handle people, that's the way we will
function, and have been.

Q: Mr. Secretary, you mentioned one of the principles from the Geneva Convention
that soldiers should be distinguishable from civilian populations. But isn't it
true that you have Special Forces in Afghanistan have grown beards, they're not
wearing insignia uniform? And how would you feel if a member of the U.S. Special
Forces -- God forbid -- were captured in Afghanistan, but were treated humanely,
would you object if they were not given prisoner of war status?

Rumsfeld: The short answer is that U.S. Special Forces -- I don't know that
there's any law against growing a beard. I mean, that's kind of a strange
question.

Q: Yeah, what about not wearing insignia --

Rumsfeld: What's wrong with growing a beard?

Q: Well, not wearing insignia, not --

Rumsfeld: Wait! Wait! Wait! You asked it, I'll answer it. They do wear insignia,
they do wear uniforms. Those photographs you saw of U.S. Special Forces on
horseback, they were in the official uniform of the United States Army, and they
wear insignia and they do carry their weapons openly, and they do behave as
soldiers. That's the way they're taught, that's what they do. They may have a
beard, they may put a scarf over their head if there's a stand storm, but
there's no rule against that.

They certainly deserve all of the rights and privileges that would accrue to
somebody who is obeying the laws and customs of war. And they carry a card.
You've probably got one in your pocket right now, of their Geneva Convention
circumstance.

Myers: Yeah, the ID they carry are Geneva Convention cards. I mean, that's the
standard.

Rumsfeld: And they all have that.

Q: Mr. Secretary --

Q: Can I follow up on that?

Rumsfeld: Yes?

Q: Can you say how many of the detainees are al Qaeda, how many are Taliban?

Rumsfeld: I don't know. I've looked at several of the forms that are being used
to begin to accumulate the data. They have photographs, they have identifying
features. Then they have the information that the individual has given us, that
is to say their nationality, roughly when they were born, what languages they
speak so you can talk to them, and a whole series of things like that. Whether
they say they're al Qaeda, whether they say they were Taliban, what units --
activities they were doing, where they were trained -- those types of things.
There's a form that they fill out that's the preliminary information. Whether
it's true or not -- there's a lot of them who don't tell quite the truth.

Q: But haven't they been screened at this point?

Rumsfeld: Yes.

Let's -- you want to go through the screening process. Let's ... it might be
useful.

Someone who is detained -- and they may be detained by Afghan forces, Pakistani
forces, U.S. forces -- a sort is then taking place. The ones that we have, they
will be interviewed by a team of people, three or four or five people --
sometimes Department of Justice, sometimes Army, mixture of Army, sometimes CIA,
sometimes whatever. And they're met with, and they're talked to, and they're
interviewed. And a preliminary discussion takes place and a preliminary decision
is made.

In some cases, they just let them go. They're foot soldiers, and they -- they're
going to go back into their village, and they're not going to bother anybody. In
some cases, they're al Qaeda, senior al Qaeda, in which case they're treated in
a totally different way, in a very careful way. In some cases, it's unclear, and
they then are sent someplace, if we have custody of them, and they will go
either to Bagram or they'll go to Kandahar. In one or two cases, they've gone to
a ship for medical treatment. And then, in some cases, they end up at Guantanamo
Bay.

If the Afghans hold them, they'll tell us what they've got, what they think
they've got. And as we have time, we then send these teams in and do the same
kind of a screening and make a judgment. Same thing with the Pakistanis when
they have clusters of them.

There are, you know, 3(,000) or 4(,000), 5(,000), 6(,000), thousands of these
people. We have relatively few that we have taken and retained custody over.

Q: But have you determined the -- of the ones that you do have, have you
determined their status individually, on an individual?

Rumsfeld: Yes, indeed, individually.

Q: So you know which are al Qaeda and which are Taliban?

Rumsfeld: "Determined" is a tough word. We have determined as much as one can
determine when you're dealing with people who may or may not tell the truth.

Q: Right.

Rumsfeld: So yes, we've done the best we can.

Q: So there's no need for status tribunals to decide who's Taliban and who's al
Qaeda?

Rumsfeld: My understanding is that when there's -- when doubt is raised about it
-- a process then is a more elaborate one, where they then are brought back into
discussion and interrogation, and other people will ask about them. Well, we
will ask other people in the mix who these people are and try to determine what
the story is. But -- and now, once they've gone through one or two sorts like
that and they're determined to be people we very likely will want to have a
longer time to interrogate and want to get out of the imperfect circumstance
they're in -- they may be in -- that the Pakistanis would like to get rid of
them or the Afghans would like to get rid of them, or there's not enough room in
Kandahar -- we take them to Guantanamo Bay as soon as the cells are made fast
enough.

And there they will go through a longer process of interrogation.

Yes?

Q: General Myers, what were the assets involved in the strike on Zhawar Kili?
And were there casualties that were garnered -- or gathered from subsequent
intelligence? And also, are the U.S. troops accompanied by Afghan soldiers? And
if I may, to add one more on there, was this believed to have been a strike on
Osama bin Laden? I mean, I think that's what everybody seems to be wanting to
get to. Was he believed to be at this place at that time?

Myers: The strike was on some individuals. Who, has yet to be determined. And
that's what they're in there gathering the intelligence on. It was from a
Predator. And as far as I know, to answer, I think, the second part of your
question, there are -- I don't believe -- let me check. I do not know if there
are Afghan forces with them. I don't know the answer to that.

Q: Can you address the question of why there was not a U.S. -- I gather it's a
non-U.S. military Predator, and therefore -- and the question is, why would
there not have been a U.S. military asset in that area, I mean if this was
intelligence gathered over hours?

Myers: That gets into the tactics and the techniques, and I'm just not going to
go into it.

Q: Mr. Secretary, a couple of points, since you invoked my name.

Rumsfeld: It's complimentary, though.

Q: One, I would just point out that the -- while the caption to this picture
does indicate that these people are in a holding area, it doesn't provide the
context that you provided immediately after its release and again today. Two,
while some of the press coverage might have been, in your words, misinformed or
misleading, that wasn't universally the case.

Rumsfeld: No, of course not.

Q: And some of the most egregious ...

Rumsfeld: Isolated pockets, I said.

Q: Most of the most egregious coverage, like the headline you cited, was from a
foreign paper.

Rumsfeld: Exactly.

Q: Not a U.S. paper.

Rumsfeld: Exactly right.

Q: And, that said, I want to ask my question.

Rumsfeld: Yes. I agree with everything you've said again.

Q: I have a question for ...

Q: Is there any ...

(Laughter.)

Q: I know you don't know who was killed in the strike on Monday, but is there
any evidence that would suggest that Osama bin Laden might have been among those
killed?

Rumsfeld: We just simply have no idea.

Q: Have you ruled out that possibility?

Rumsfeld: We have not ruled in or out anything. If you lack knowledge, you don't
do either. You don't tell left or right or rule out, rule in. You just say you
do not know the answer.

Q: And on the question of POW status, are you confident that you're not setting
a precedent here that could rebound to the disadvantage of American troops
captured sometime in the future in another conflict?

Rumsfeld: Of that I -- again -- first of all, to know what kind of a precedent
you're setting you have to be very, very smart and see into the future. That's
hard to do. It's hard even for very smart lawyers -- which I'm not.

I am very confident that we are not doing anything to -- in any way disadvantage
the rights and circumstances of the U.S. military. I think that the decision was
made by the president with that very much in mind, and it was expressed by a
number of the people in the deliberative process, and it was expressed over a
period of time because it was very carefully dealt with. It was not a hasty
decision. This took us some days.

What I cannot say about the precedent is that that decision, or any other
decision, conceivably could end up having an effect, a precedental effect down
the road that is difficult to anticipate now. And it was because of that caution
and that concern that they wanted to apply it very carefully that so much time
was taken in attempting to make that judgment. But the one thing that I am
reasonably satisfied with is the question you asked, and that is that we have
taken every care to ensure that the decision would not in any way adversely
affect U.S. armed forces.

Q: One more point on this, if I might. I would just argue that when you believe
that there has been bad press reporting or misreporting, the solution to that is
more sunshine, not less. If you become more secretive, your friends will
suspect, and your enemies will believe, the worst.

Rumsfeld: Right. That's true. It's good -- fair enough. Ought to add that to
Rumsfeld's Rules! (Laughter.)

Way in the back.

Q: Are the Afghan forces that are participating with the U.S. troops wearing
clear uniforms, insignia and the other parts of that Geneva Convention?

Rumsfeld: You know, I can't speak to all of those units. But I certainly have
seen Afghan forces that had uniforms on, and insignia, and were carrying their
weapons openly, and were part of one of the various Northern Alliance elements.
Have I seen them all in Afghanistan? No, so I can't answer your question as to
whether there might be some. But I certainly have seen Afghan forces that do in
fact comport themselves in a manner that would be consistent with the Geneva
Convention.

Yes.

Q: Mr. Secretary, if I forgo my own statement, can I ask two brief ones?
(Laughter.)

First ...

Rumsfeld: It's a tough crowd today, eh?

Q: ... are there not CIA agents or intelligence agents of some kind on the
ground who are not wearing uniforms and insignia? And are they not in a
combatant role, in other words, helping to coordinate things such as airstrikes?

Rumsfeld: I don't know of people doing that who are coordinating airstrikes. Do
you?

Myers: No.

Rumsfeld: No?

Q: And secondly, on the photos, a number of lawyers who deal in international
law have suggested that this is kind of an unprecedented interpretation of the
restriction on photographs. In other words, that the idea was that you not
parade prisoners out to a jeering public.

Rumsfeld: Right.

Q: It wasn't intended to bar incidental news photos.

Rumsfeld: Yeah, so that's why you have to be somewhat careful. And that's why
we've tried to be somewhat careful. You know, should the pendulum be over here
or over here? It's hard to know. This is -- this is a new set of facts for us.
It's a new situation. They've been down there, these prisoners, detainees,
what?, I don't know, 20 days. Something like that, 25? Not long.

Myers: And just to remind you, we have the International Committee of the Red
Cross down there essentially continuously talking to the detainees.

Q: I was just asking about the news photographs.

Rumsfeld: Yeah. I mean, I don't know the answer to all these things. What we
have tried to do is to try to do it right, and we -- as we learn more and as
they get more comfortable with the situation, they end up improving how they're
handling things all the time. I went down there last Sunday, a week ago Sunday,
and I must say my impression is that those folks are doing a darned good job
under difficult circumstances. And I give them a lot of credit.

Myers: Can I say one other thing on detainees?

Rumsfeld: Mmm hmm.

Myers: You know, we get pretty far down on these arguments. We go down to the
third and fourth level of detail on these arguments about the Geneva Convention
and treatment and so forth, and I think we've answered those forthrightly and
we've taken lots of people down. In fact, I think there's a congressional
delegation down there today. But let's never forget why we have them in the
first place. We have them because probably there's a good chance that one or two
or all of them know of the next event. And that's -- it's our obligation,
consistent with humane treatment and the Geneva Convention, to try to find that
out. And I think as we have these, in some cases, more esoteric debates on this
business, we're trying to find out what's going to keep another incident from
happening, in this country or in our friends' and partners' countries.

Rumsfeld: Good point.

Yes.

(...)

Q: Sir, could you maybe send us one of these lawyers that has made the decision?
Because I think we still all have some questions about the finer points of this,
and you might stop -- (chuckles) -- further questioning of you-all on this if we
can get the firm answers.

Rumsfeld: Yeah. I do not have the power to deliver White House lawyers or the
president of the United States, who made the decision.

Q: How about general counsel of DOD -- general counsel of DOD to interpret it
for us?

Rumsfeld: I'm wondering if maybe getting an outside lawyer to come in and talk
about it -- I don't know that the general counsel of the department is --
whether it is fair to put him in a position of interpreting the White House
decision. It may be that could bring in an outstanding lawyer who could talk
about it in some depth.

Q: It would be ideal if someone could express the government's interpretation of
this, as opposed to a general interpretation.

Rumsfeld: Ari Fleischer's done that.

Q: But he's not a lawyer, and we have very specific.

Rumsfeld: But he has, to my knowledge, given the official position of the
president of the United States.

Q: Well, I hope you'll take it under consideration that we still have questions,
and they'll keep coming up unless we can get those final, very specific answers
from someone with a legal background.

Rumsfeld: Yeah. I watched Ruth Wedgewood on the Lehrer program, and she's, I
guess, a Yale lawyer. And she certainly knows an awful lot about it. There are
other people who do as well.

Q: We can interview those people on our own --

Rumsfeld: Yeah.

Q: -- but what we need is somebody from the government that can say, "This was
the balancing factor for us."

Rumsfeld: Then I think you ought to have your representatives at the White House
ask the White House because that's where the decision was made.

Q: Mr. Secretary, you said about 105 of these people -- I think you've used the
figure 105 -- have been met with, interrogated --

Rumsfeld: In Guantanamo Bay.

Q: At Guantanamo.

Rumsfeld: Right.

Q: And you said, of course, you're trying to get more information, trying to
learn -- are these people being in any way cooperative? Are they being?

Rumsfeld: They are. Some are. Some are, some aren't. Varying degrees. Some are
less so the first time, more so the second time. But there's no question we're
gathering information.

Q: And have you gotten important information from them that has warded off
attacks?

Rumsfeld: Yes. That has what?

Q: That might have warded off, might have allowed you to prevent a future
attack?

Rumsfeld: I don't know that I want to say that because the information is -- it
goes into a fusion cell and it's matched and mixed. And it may -- for example
you might get some information from a person from pocket litter about an address
some place, and you might go to that address and get some information there, or
you might get tipped off to another human being, or something else. And it's all
connected. And trying to track it back by threads as to exactly what enabled you
to prevent a future terrorist attack is very difficult to do. We do know that
there have been terrorist attacks that have been prevented.

Q: On the four criteria, and your description of why you believed the Taliban
forces did not meet the criteria for POW status -- you talked about lack of
differentiation from civilians, no proper unit, no real hierarchy -- but I wish
we all had a dollar here for every briefing we heard during Enduring Freedom
when we were told that we were attacking Taliban command and control, we were
attacking identifiable Taliban forces, and that these were clearly
differentiable by our Special Forces from civilians. Those seem to be rather
different from your entire statement.

Rumsfeld: Well of course it's because it's of a different order. The kinds of
things that the Geneva Convention talks about are the kinds of things you see
when you're standing right next to a person looking at how they're handling
themselves.

The kind of things that we were talking about on command and control would be
communication intercepts, it would be people firing at Northern Alliance forces
and attacking them, it would be concentrations of artillery or surface-to-air
missiles, and those types of things that would -- and knowledge that they are
not Northern Alliance. And yet you see them there and you can identify a series
of things that tell you they are combatant forces that are engaged in fighting
against the Northern Alliance forces, and it enabled the people on the ground
and the people in the air to make those kinds of judgments.

Is that pretty --

Q: But just to pursue, wasn't it clear that the Taliban forces were operating as
units? Whether they call themselves companies or platoons or ... is another
matter, but they were operating as coherent military, which our air strikes
could attack, and it's clear they were receiving orders down the chain of
command and control, which is why we're attacking command and control.

Rumsfeld: There's no question but that on any one of those things, you might be
exactly right, that you could make that case. No one, I think, could make the
case on all four of those criteria.

Q: But were they the armed forces of Afghanistan at the time that the United
States was attacking them? Were they considered?

Rumsfeld: That's a legal question. The president has said he is going to -- I
shouldn't repeat what he said, what the statement from the White House said. You
know what it said. And he applies the convention to the Taliban. And the answer
to your question is, either as a matter of policy or a matter of law, they are
being considered as being covered by the Geneva Convention. I don't know why you
would ask the question.

Q: I asked it before and you said you'd get me an answer from Legal.

Rumsfeld: Oh, no, it was a different question you asked before.

Q: We'll go back over that.

Rumsfeld: Yeah. I think ...

Q: I think I asked -- (inaudible) -- question.

Rumsfeld: Oh, really?

Q: Can I ask --

Rumsfeld: Well, wait a second. No. Stick with this.

Q: I'm happy to go over it again if you want to. There's a section in the Geneva
--

Rumsfeld: Oh, no, that's the question we'll get you the answer to.

Q: That's the question, but whether or not ...

Rumsfeld: That's a different question.

Q: The Taliban were the armed forces of Afghanistan, because if they were, they
could be considered.

Rumsfeld: Oh, for the POW standard.

Q: Yes.

Rumsfeld: I see what you're saying. I'm sorry. We'll get you the answer to that.

Q: Okay.

General Myers, as long as I've got your attention, can you tell us what damage
you know has been done near Zhawar Kili? I know you have people on the ground
looking to see who might have been killed, but do you have a sense how many were
killed? Was the truck destroyed? And you said that was the only vehicle?

Myers: It was, in a general sense, personnel and a few.

Q: (Off mike) -- and not the truck?

Myers: I don't think so.

(...)

* * *


February 17, 2002

DEPUTY SECRETARY WOLFOWITZ INTERVIEW WITH FOX NEWS SUNDAY

Hume: Let me ask you about the captives being held at Guantanamo Bay. What is
eventually going to happen to them? Are they going to be tried? Are they going
to be sent back? What's going to happen to them?

Wolfowitz: There're a lot of options for them. I think the most important thing
right now is to focus on the fact that, first of all, these are dangerous
people, and they're still trying to hurt people. They make threats all the time,
and we've got to keep them secure.

Our principal objective is to get whatever information we can get them to give
us about networks elsewhere. Then, ultimately, there are decisions about
whether, if they are guilty of a crime, is it something to be tried in the
United States, or is it something to be tried in another country? If it's in the
United States, there're various options for doing that. So we're a long way, I
think, from taking these people to trial.

Hume: Does their cooperation help their cause in terms of whether they'll be
tried and where?

Wolfowitz: Absolutely. Well, look, I mean the more people give us, the more it
might extenuate whatever they're guilty of.

Hume: Is it possible, then, that we're going to have a kind of prisoner of war
camp, not in the legal sense, at Guantanamo Bay for an indefinite period of
time?

Wolfowitz: I think that's probably a good way to think about it. I mean, at the
very least, where these are dangerous people, we don't want them just turned
loose on the streets. So either we detain them ourselves or we turn them over to
a court in the United States, or we turn them over to another country.

Hume: And how long could this go on down there?

Wolfowitz: It's a long struggle. The president has repeated, Secretary Rumsfeld
has repeated from the beginning, this war on terrorism is going to go on for a
long time. And I think people better get used to the fact that it's going to be
going on for a long time. We've had some wonderful early victories in
Afghanistan. I think that's almost made people's expectations too high and think
it's all over. We've been blessed that so far, at least, there hasn't been a
repetition of major terrorism since September 11th, although Richard Reid did
try to take down another airliner. I think the American people, the whole world
have got to understand that this struggle continues. It continues to be very
dangerous. The people we're holding in Guantanamo are very dangerous. And their
friends around the world are very dangerous.

(...)

* * *


February 24, 2002

Rumsfeld Stakeout Following CBS Face the Nation (excerpt)

(...)

Q: Mr. Secretary, there are reports in the British press today saying you are
willing to repatriate British citizens being held at Guantanamo Bay. Is that
true?

Secretary Rumsfeld: I've not seen a report therefore I do not know if you've
placed your question in proper context. I have become quite cautious about
responding to things I have not read.

What I can say it this. Setting aside the United Kingdom, on a generic basis,
the United States of America has a variety of interests. One is to keep people
off the streets who want to run around and kill innocent Americans and fly
airplanes into our buildings.

A second is to have as few prisoners as possible. We don't consider ourselves in
the business of doing that. So to the extent another country is interested in
receiving the nationals from their country and are willing to help keep them off
the street if they ought to be off the street, prosecute them if they ought to
be prosecuted, and treat them in a way that's appropriate and consistent with
the Geneva Convention, we are open to hearing about that. We have not heard much
from people thus far. We are interested also in having access to these
individuals if they were to leave our custody and go to the custody of a
coalition partner like the UK or any other country. We'd like to have access to
them in the future in the event that additional information comes up which
suggests that there are linkages between the people that we've turned custody
over to another country and people that are committing terrorist acts.

So we're quite open to a variety of different alternatives.

Q: Has the UK or any other country that has got prisoners at Guantanamo Bay,
have they actually (inaudible) of the Administration to repatriate them
(inaudible)?

Secretary Rumsfeld: I'd have to go back and find out that. The request comes
through the Department of State and it's not clear to me that I've reviewed it
recently so that I could respond.

(...)

* * *


February 24, 2002

Rumsfeld Stakeout Following NBC Meet the Press (excerpt)

Q: Can you tell us the status of the British prisoners in Guantanamo Bay? Would
you expedite them to Britain if they asked for it?

Secretary Rumsfeld: There are a very small number of people who either are, have
British passports or claim to be British in one way or another. They have been
visited by the authorities from Great Britain. To my knowledge they've not been
requested by Great Britain. We've been interviewing them and attempting to find
out what they know.

Without addressing the UK situation let me say broadly our interest is not in
holding people. If other countries are going to... once we've interviewed them
and figured out what kind of intelligence information they have, if other
countries of their nationality are interested in having them for the purpose of
prosecution for their behavior and will keep them off the street so that they
don't go right back and start flying airplanes into our buildings and killing
thousands of Americans, my first choice is not to have a lot of people in
Guantanamo Bay. My preference would be to have as many people go to their own
countries and be dealt with there -- assuming the countries have decided they
want to handle it in an appropriate way and prosecute.

(...)

* * *

#####################


February 26, 2002

DOD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. MYERS (excerpts)

(...)

Gen. Myers: Thank you, Mr. Secretary, and good afternoon. We continue our
efforts to gather intelligence inside Afghanistan on terrorist activities and
operations, as well as to search for any remaining Taliban and al Qaeda. In the
last 14 -- 48 hours, 14 detainees were turned over to us from Pakistani
authorities, and two others from Afghan forces. And that puts at 194 the number
of detainees inside Afghanistan and 300 in Guantanamo Bay.

(...)

Q: Mr. Secretary, can you update us on the status of the creation of military
tribunals or military commissions and how that stands today?

Rumsfeld: Sure. We've had some additional meetings on the subject, and it's
getting increasingly clear as to how we would probably structure the tribunals
-- that's not the right word; that's what they're called in the newspapers. The
"commissions" is the word that's in the military order, and I probably ought to
use that. We'll undoubtedly have a few more discussions about it. But I feel
that in the event the president does make a decision to assign someone to a
commission, one or more people, that we'd be ready to go within a very
relatively short period of time.

Q: Any estimate on time frame, or -- ?

Rumsfeld: I don't have any idea who he might assign or when he might assign or
how many he might assign. That - - as you recall from the order -- is all in his
hands. All my job was to do was to get ready and be prepared for that, which now
we are within a matter of, oh, a relatively short period of time of being ready.

Q: Have there been detainees currently identified as possible --

Rumsfeld: Not to my knowledge. We've been doing our sort, and that information
then, of course, goes to the intergovernmental group of the Department of
Justice, the FBI, the CIA, DOD. And at some point there'll be some process that
the president will review it and make some judgments about it.

(...)

Q: Back to detainees. A minute ago you said, I think, or you indicated that
apparently none of the detainees at this point appear to fit the bill for a
candidate for the tribunal. If that turns out to be the final --

Rumsfeld: I don't know that I said that. If I did, I probably shouldn't have.

Q: Could you say what your view is on that?

Rumsfeld: Yes. We've got several hundred detainees. The first sort has taken
place for intelligence. The next sort is law enforcement, and that is starting
and is proceeding. At some point, the people who understand all this in the law
enforcement business will make recommendations. And I wouldn't even begin to
suggest that the people who haven't even been sorted yet, from a law enforcement
standpoint, might or might not be appropriate for a commission. I think some may
very well be. But that, as I say, is a judgment not for the Department of
Defense.

Q: And those who are not, what would you do with them?

Rumsfeld: I suppose the other options are as follows: One is to put them in the
criminal justice system in the United States. Second would be to put them in the
military justice system in the United States. A third would be to send them back
to their countries of origin. A fourth would be to release them for reasons that
it appears that there isn't any law enforcement purpose left and there isn't any
further intelligence we think we could get. A fifth -- if I'm counting correctly
-- would be to just keep them, as you would a person you did not want to get
back out there and rejoin a Taliban or an al Qaeda outfit, and keep them during
the period of the conflict so that they can't go back and kill more people.
That's kind of the range, I think.

Q: Does the current group of about 500 seem to be the -- roughly the final --

Rumsfeld: I wouldn't say final. We still have a lot of people we've not looked
at completely that the Afghans and the Pakistanis have. And we keep getting
more. I mean, some people are turning themselves in. Other people are being
captured. We keep doing sweeps around the country. So the numbers, you know,
they keep moving around on us.

Yes?

Q: Can I follow up on some of that? When you go through these categories -- a
couple of questions. Have you made any decisions about, you know, what the make-
or-break points are, why someone would be sent to a tribunal versus some other
option? What are some of the reasonings behind that? And when said that you've
made some decisions you feel confident you would be ready to go within a short
period of time, can you describe for us in any more detail what these
commissions might look then? What is it that you've decided? How would this all
be done, if you're that, you know, close to finalizing --

Rumsfeld: Right, we're pretty close. My inclination -- we're trying to -- I'm
trying to think through the question as to whether it makes any sense at all to
go out and lay out the way that we think preliminarily we would conduct the
tribunals, or the commissions, I guess it the word we should be using, until we
see the people who have been assigned to them. It may very well be that after we
look at the people that get named for it, that we might want to tweak the
preliminary -- or correction, the near-final views that I have and that others
have.

I feel we've done a very good job of due diligence. We've brought together a
terrific panel of outside people who have helped us think this through and
offered their advice and counsel on it. And we've checked it with the Department
of State and others who -- Department of Justice -- who have an interest in
this, a legitimate interest. And we're close to finishing up.

Whether we should announce that before we actually have some warm names and
faces that we can look at and say okay, if that's what we're supposed to be
doing, trying these people in this commission, how do we feel about all of these
things that we've come to near final conclusion on.

Q: So are you saying -- if I'm understanding you right -- that this system of
justice that you're going to administer would be -- the cases might be unique to
the person you're prosecuting? In other words, you would -- if I am
understanding you right, you would tailor a commission specifically to the
person who would be standing before the commission, after the fact, after
they're brought before it, or as they're brought before it? It would be unique
to a person, that it wouldn't be a uniform system?

Rumsfeld: I don't know the answer to the question. It's not clear to me. But
because I don't know whether it might -- if you think about it, the criminal
justice system and the military justice systems do have a good deal of
discretion and people are handled differently in both systems, and they both
produce a just outcome. There would be really little difference in terms of the
fact that there would be a degree of discretion.

The judges, for example -- if you watch judges behave, they've got judgment they
can use -- discretion they can use as to how to handle various aspects of the
trial. Those are the kinds of things that would be left probably to a convening
authority or an appointing authority. Some things, I think, would be common
across the board for everybody and probably would not change.

Q: Can you describe at all why someone would be sent to a commission, versus not
how these initial cuts and decisions will be made?

Rumsfeld: Well, I know how the cuts are being made. What they're -- we're doing
first, as I've said, is we're looking very carefully at -- first is
intelligence. We're gathering that. And second is the law enforcement interest
in those people. And they are beginning that process now, and as they begin to
look at these people, we know the first cut is that no one who's an American
would come to a commission. That's part of the way the military order's written.
So that's an easy cut. If there's an American involved, he's not going to go to
the commission.

The other cuts are the ones I described. We send people -- we'd in most cases
prefer to have people go back to their own countries and be tried there. We want
as little of this as we can possibly do. What other judgments the Department of
Justice might make in their recommendations, if you recall, the military order
calls for the Department of Defense, I believe, and the Department of Justice to
make recommendations to the president with respect to who might or might not be
assigned.

But until you look at who's assigned, I think it might be helpful to see -- for
example, there might be a difference between one person being assigned a
commission to be tried and 300. It -- you might have to do it differently. You
might do it in a different location, depending on quantity and the nature of the
charges. So we'll just have to see.

(...)

Q: Going back to the military commissions, you were saying that there might be
some rules that would apply to all of them. One of the more controversial issues
several months ago was that if it were to be a death sentence, it would take the
unanimous opinion of all those on the commission. Can you at least say whether
that has been established, or are there any other things that you could outline
that --

Rumsfeld: Sure. That has been one of the issues that's been addressed by the
outside panel. It's been addressed by the inside people -- panel. We've all come
to what strikes me as a unanimous conclusion with respect to it, and it's not
for me to start dribbling out pieces of it, because -- and let me explain why.

!!! Justice is achieved as a result of a total process. The criminal justice
system has a whole series of elements. Let's say there's 12 elements. And let's
say there's 12 elements in the military justice system, and let's say there are
differences between them. The fact that there are differences does not mean
there's an absence of the possibility of a just outcome; it simply means that
when you look at the totality of each, they do in fact produce what is
considered by society, all of us, to be a fair outcome.

[ !!! Yet all the elements of the law are designed to work together in concert;
to pick and choose makes a mockery of the law, and is historically a chief means
by which tyrants subvert law to their aims.  Here Rumsfeld is arguing that the
aims of those whose actions a law specifically regulates are superior to the law
itself, which is an absurd perversion of justice. ]

If one starts taking out any one of those 10 or 15 elements and talking about it
in isolation, they miss that important point. And therefore it would be unuseful
to do anything other than set out the entire package, so that then responsible
people can look at it, judge and nod and say, "Yeah, I get it. That's different
from this, but nonetheless the totality of it is going to produce a just
outcome."

Therefore, I'm not going to get into the individual thing on capital punishment
or burden of proof or all of the various elements, review panels, the 10 or 12
things that we've addressed at great length.

(...)

* * *


March 1, 2002

DOD NEWS BRIEFING - ASD PA CLARKE AND BRIG. GEN. ROSA (excerpts)

Q: Back on Guantanamo Bay, understanding that the security procedures are always
very stringent there, nonetheless, with the hunger strike and some of the
problems there in the last couple of days, what are the concerns about the
health of the detainees, the policy about force-feeding them, when are you going
to medically intervene? And do you see a way to get past the current situation
there?

Clarke: Let me start, and you can finish.

Rosa: Okay.

Clarke: You know, it's always, I might push back on you slightly, Barbara, and
say problems. A lot of things that are happening at Guantanamo are things that
are, you know, absolutely expected. The detainees continue to get very, very
good treatment. They continue to get excellent medical care. They continue to
get exercise. They continue to have the right to worship, their own choosing.
They continue to get, when they want them, culturally appropriate meals. And we
have every confidence that the commander there is doing a very, very good job of
taking care of them.

The issue arose yesterday with the hunger strike. He's addressed it. That
problem seems to be alleviated somewhat.

So we're absolutely confident that he is going to continue to take very good
care of them, with all the backdrop, as you said, of the security concerns that
are involved with these people.

Q: Can you just --

Clarke: He might -- the general might want to add something on that one.

Q: Yes, and I'd like to just follow, perhaps.

Rosa: Yes, ma'am. These are bad folks, and let's don't forget that. Our two
primary goals are humane treatment for the detainees and the security of our own
folks. So we have to be careful and draw that balance.

I spoke to the folks down at SOUTHCOM this morning, and the commander and the
chaplain have been out and around with and speaking to the detainees. The
tensions have eased, in their opinion. Less than 70 of them refused meals this
morning. But we are cognizant of their religious needs. But again, humane
treatment and security of our folks are of utmost importance to us.

Q: However, I honestly feel I didn't get an answer to the question, if there is
an answer. What is the Pentagon policy now regarding the medical situation
there? You still do have people refusing meals. What is your policy on medical
intervention for those who are refusing to eat?

Clarke: I'll try and --

Q: (Off mike) --

Clarke: If she's still not satisfied, then the general can try. Our --

Q: I didn't hear an answer to the question.

Clarke: I know. Our policy is to make sure they get very, very appropriate and
adequate care, and we will make sure they get that kind of care. I think it is
going too far down the road right now, hypothetical, to talk about medical
intervention.

Q: Well --

Q: Well, two of them have been taken to the hospital and been given intravenous,
so my question is, is the policy now force-feeding?

Clarke: The policy is to make sure they get very good care.

Q: Torie, you said -- could you just elaborate on -- you said the situation had
been handled. The general said the tensions have eased somewhat, and you think
that the -- can you just tell us what happened and what's been done to alleviate
the problem, and why you think tensions are reducing?

Clarke: You actually have the information.

Rosa: Actually, there are several reports. And as you glean from these reports,
there was a detainee that was praying. He had some type of instrument, whether
it was a towel or a blanket, a sheet, wrapped around his head. Two of our
security forces came up and asked him to remove it. Now, we don't want them
wrapping up in towels and blankets for security reasons. So he wouldn't remove
it. They went in and removed it. The next day, the hunger strike, if you will,
started.

Since that time and the policy was under development as I spoke to them this
morning -- since that time, they're allowed to have garments on their heads
while they pray. And these -- it was explained to the detainees, and they talked
back and forth for the commanders and the chaplain several times, and we are
hoping that it will ease the tension.

But what I might add, this is the normal evolution. This doesn't surprise us.
It's the normal evolution in a detainee's life. Many of them, the first group,
got there seven weeks ago, so they are going through the shock and amazement of
being some place that they're not familiar with, and now they're starting to
settle in. I think the real issue is, what's their fate? What happens to him?

Q: So while you initially believed that -- the initial policy was that having
some sort of garment wrapped around your head during prayer time was a security
concern, you've now subsequently decided it's not really a security concern and
you've decided to allow that? Is that correct?

Clarke: I'd answer it this way: They will be allowed to wear something fashioned
as a turban, because that is being sensitive, my understanding, to their
religious beliefs. We will do periodic checks because of security concerns.

Rosa: They are still subject to security checks.

(...)

Q: A point of clarification?

Clarke: I'm sorry. What's the clarification?

Q: Well, up until a couple of days ago, anyway, the policy on the head covering
was they had the skull caps or they could put the towels loosely draped, not
wrapped, but -- I mean, we've seen pictures of that, and that's obviously been
okay for them to do. What is the policy now? Has it changed?

Clarke: The policy is to allow them to wear the material in some fashion as a
turban. But they will be checked periodically for security concerns.

Q: The turbans weren't okay before. Now turbans are okay now?

Clarke: With security checks.

Thank you.

Q: Thank you.

* * *


March 5, 2002

POSTURE STATEMENT OF MAJOR GENERAL GARY D. SPEER, UNITED STATES ARMY
ACTING COMMANDER IN CHIEF UNITED STATES SOUTHERN COMMAND
BEFORE THE 107TH CONGRESS SENATE ARMED SERVICES COMMITTEE


(...)

!!! Joint Task Forces 160 and 170 Operations

Although we are executing our campaign plan to combat terrorism throughout the
area of responsibility, our most visible efforts are the detainee operations
executed by Joint Task Force 160 (JTF-160) and Joint Task Force 170 (JTF-170) at
Guantanamo Bay, Cuba.  On January 4, 2002, we received the execute order to take
custody of designated detainees within the United States Central Command area of
responsibility, and to escort and hold the detainees at Guantanamo Bay for
further disposition.  The commander of JTF-160 and elements of his staff began
arriving on January 6 with the first detainees arriving on January 11.
Currently, 300 detainees are being held at Guantanamo Bay.

With the requirement to begin housing detainees within 96 hours of the execute
order, JTF-160 immediately began to upgrade existing facilities to a total of
320 short-term detention units at a temporary holding facility designated Camp
X-Ray.  Camp X-Ray also has facilities for interrogation, security forces,
administration, and medical care.  On February 13, the Secretary of Defense
notified Congress of our intent to expend $20.6 million for the design and
construction of an interim, modular, detention facility of 408 units.  We expect
the construction to begin in March and anticipate completion by mid-April.

JTF-160 is currently manned by a multi-service organization augmented by various
interagency representatives.  In addition to holding the detainees, the
Secretary of Defense directed Southern Command on January 21 to implement a
Department of Defense/Interagency interrogation effort.  As a result, Southern
Command established the Joint Interagency Interrogation Facility (JIIF) on
January 22 and immediately began interrogations focused on intelligence
collection, force protection, and planned terrorist activities.  This
interrogation effort also supports law enforcement agencies, and tribunal
efforts.  On February 16, Southern Command received an execute order and stood
up JTF-170 to coordinate U.S. military and government agency interrogation
efforts in support of Operation Enduring Freedom.

As a group, the detainees pose an unprecedented security risk to those
responsible for guarding them as well as to each other, evidenced by detainee
uprisings at Mazir-i-Sharif and at the Pakistani border.  As your colleagues
have seen first-hand, within necessary security measures, the detainees are
treated humanely, consistent with the provisions of the Geneva Convention.  All
detainees are provided three meals daily that meet Muslim dietary laws, medical
care, clothing, shelter, showers, soap and toilet articles, foam sleeping pads
and sheets, towels, prayer mats, and washcloths.  They have the opportunity to
worship, are provided correspondence materials and have the ability to send
mail.  The U.S. Navy deployed a fleet hospital with a capacity to care for 20
inpatient detainees.  The hospital has a pharmacy and laboratory and is capable
of providing intensive care, x-rays, surgery, and postoperative treatment.  To
date, the medical staff has performed thirty-four surgical procedures for the
detainees.

Staff members of the International Committee of the Red Cross (ICRC) have been
at Guantanamo Bay since January 18.  They will continue to visit the detainees
privately and submit comments and suggestions to the Commander of JTF-160.  We
view continuous ICRC access to the detainees as a necessary and helpful measure.
The ICRC is the only International Organization or Non-Governmental Organization
authorized to have direct contact with the detainees.

(...)

* * *


March 15, 2002

DOD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. PACE (excerpts)

(...)

Rumsfeld: Charlie.

Q: Mr. Secretary, as you pointed out, it's six months after the attacks on New
York and Washington. Have you made any decision yet on the military
commission/trials of the detainees you are holding?

Rumsfeld: We have. We have made no decisions with respect to who might or might
not be assigned to a commission. We have, however, pretty much completed the
work as to how the commissions generally will be conducted, in the event someone
is ultimately appointed to be tried by a commission. As I mentioned, I think, on
an earlier occasion, what we've done is, we've come to conclusions with respect
to 6, 8, 10, 12 of the critical issues, and then some of the decisions can be
left to the convening authorities, as is the case in most judicial systems. So
-- so we've not answered every single question, but we've answered the ones that
we need to, in the event someone is assigned.

Q: Could you briefly outline what those positions are?

Rumsfeld: I really can't. I could, but I won't. (Laughs; laughter.) The reason I
say that is, because it's not something that ought to be done briefly.

If you'll recall, we all agree that our criminal justice system can produce just
outcomes, and it is quite different from the Uniform Code of Military Justice,
which also can produce just outcomes. So -- the point being that you can have
different systems, each of which, in their own way, produce an outcome that is
acceptable to society. So, too, with the military commissions. The answer to the
questions are going to be different from both the criminal system and the
Uniform Code of Military Justice. And the reason they're different is because of
the -- the differences in the kinds of people that will be tried and the need
for both security and protection for the people involved, whether the panel
members or witnesses, counsel and so forth. As you may know, from the World
Trade Center trial some years ago, I understand that some of those people are
still being -- needing security today. And so we're going to be handling this in
a way that's different, although it too will produce a just outcome.

I give you that background because if I were to try to do a quick cursory
summary, it would be pieces. And it seems to me it's critically important for
people to look at the totality of it. Therefore, when we do release it, it will
be released in writing. There will be questions and answers, and we will see
that there is as little confusion as is humanly possible, because we and the
individuals we've discussed this with inside the government, the people we've
discussed it with who are experts from outside the government, a very
distinguished group of people -- we're comfortable that it will produce a just,
fair, balanced outcome; but I do not want it leaked out piecemeal in a way that
people start taking a single element of it and shaking it in their teeth like a
dog and concluding that there's something wrong with it because it's different
from the criminal justice system or the Uniform Code of Military Justice,
because they will be different.

Otherwise, there wouldn't be any reason to have had commissions.

So, with that long answer to your first question, we'll pray there's not a
follow-up. (Laughter.)

Q: Could we ask that you do that quickly, so that perhaps readers and listeners
will not worry about what you said?

Rumsfeld: You could ask that we do that quickly, and I would rather do it well
than quickly. And -- so what we're doing is we're in the process of preparing
papers and questions and answers and getting expert lawyers to read them over
and make sure that no one can say that something's wrong with it. So it takes a
little time to do things well.

(...)

!!! Q: Could you -- there was something that was released earlier this week from
a week ago. On March 6th, there was a vehicle that was bombed by tactical
aircraft in eastern Afghanistan. It was leaving the area, I guess, on the edge
of Operation Anaconda. Women and children were in there. The release said this.

We got the release a week later, and one of the things that the release said was
that a child was immediately taken to a military hospital.

Rumsfeld: When you say "a release," it was from --

Q: A press release from Central Command.

Rumsfeld: From Central Command.

Q: Right.

Rumsfeld: Good.

Q: A child was taken to a military hospital immediately and was, you know, in
stable condition. I'm wondering why it took a week for this information to get
out when it was obviously clear that a child had been at least wounded in this
attack, if that child was taken to a military hospital. It looks bad. It's a
week's delay between announcing that there were civilians -- women and children
killed by U.S. forces.

Rumsfeld: Well, I don't know that it looks bad at all. When we --

Q: (Off mike.)

Rumsfeld: When we discovered that this situation had occurred, the first thing
one wants to do is to determine what actually happened. There's a conflict going
on. There are people fighting. And people are busy both at CENTCOM and in the
Anaconda region. It has been a period -- today's the 15th -- it is -- the last
10 days have been rather busy days for everybody. And as the information was
developed, I was made aware of it, discussed it with Torie, and the decision was
made to make sure that that was put out.

It takes some time to tell people to do that. They put it out.

And no -- I mean, I think that -- I suppose where you stand depends on where you
sit, but I would say it would be -- it should look good, not bad. If one puts
out information immediately after something happens, you end up misinforming
people, as happened out of New York and did not happen out of here. If you take
a pause, try to figure out what took place, and do it properly, then you have
fewer things you have to correct later. And that process seems to me to be -- to
in fact look worse, if there is a worse.

Q: Has it been determined, Mr. Secretary --

Rumsfeld: Just a second. I'd like to have Pete go ahead and talk about the
details of it. (To General Pace) You're knowledgeable, if I recall.

Pace: Thank you, sir.

Q: And the breakdown of the folks that were killed in that?

Pace: Sure.

The target itself was developed, as we do with all of our targets, with the best
intelligence that we had at hand. It appeared to be then and in retrospect still
appears to have been a correct target to be struck. The number killed were eight
men, three women and three children, and one child who, as you mentioned, was
medevac'ed. And the belief at the time of the strike was that the men were al
Qaeda/Taliban, and that is still the current understanding.

Q: And they were medevac'ed by U.S. forces, Afghan forces, coalition?

Pace: I've got to check it. I'm pretty sure it was U.S. -- U.S. forces, yeah.

Q: General, did the intelligence at the time indicate there were women and
children in that vehicle, or did you only know that after the fact, when the
ISAF forces got there?

Pace: To the best of my knowledge, we only knew that after the fact.

(...)

Q: (Inaudible) -- Charlie's question earlier, on the military commission, you
seemed to indicate that there would be a need for a high level of security for
those involved in the commissions themselves. Has the decision been made to
conduct those commissions in total secret, the identities of those involved not
to be released -

Rumsfeld: No, as I indicated --

Q: -- and would they be held at Guantanamo Bay?

Rumsfeld: The location has not been announced or decided conclusively. I -- as I
indicated to Charlie --

Q: Give us a hint.

Rumsfeld: As I've indicated to Charlie, I do not think it would be useful at all
to answer individual questions on how those -- how the commissions would
function, because, as I indicated, it's terribly important for people to have
confidence that they'll produce a just outcome, which there was no doubt but
that they will. But if people look only at one element of it and start droning
them out, one after another, everyone will chew it up, shake it around and say
"Oh, that's not right; it's not the same as the criminal justice system. It's
not the same as the Uniform Code of Military Justice." When they look at the
totality of it, drop a plumb line through it, there's not a doubt in my mind
rational people will nod and say, "Pretty good. That's fair. That's balanced.
That -- it isn't the way this was done over here, and it's not the way that was
done, but, taken together, it -- it's a -- it's the right kind of a picture."

Q: And do you believe that a just outcome could be achieved if these commissions
are conducted in total secret?

Rumsfeld: If I wanted to discuss any single element, I would have brought it up.

(...)

* * *


March 20, 2002

DOD NEWS BRIEFING - ASD PA CLARKE AND BRIG. GEN. ROSA (excerpts)

Clarke: Good afternoon. Two things I'd like to address quickly before we turn
this over to General Rosa.

One is that at approximately 8:30 this morning, two artillery rounds hit near a
mess tent on a training range at Fort Drum, New York; very sadly, killing one
soldier and injuring 14 others. They were taken to a local hospital for
treatment. All of them are -- all the personnel are assigned to the 10th
Mountain Division Military Intelligence Battalion. We will keep you updated on
their progress.

And second, lots of questions, obviously, about the military commissions. And as
I discussed with some of you this morning, we have to put the entire package out
very soon, but let me just say a couple things about it. First, an extraordinary
amount of work has gone into developing to what in my non-legal-expert mind
appears to be a new legal system to deal with very unconventional circumstances.
A lot of people in this building, in the administration, the secretary himself,
have devoted an extraordinary number of hours to this effort, have been asking a
lot of questions. They've been meeting with a variety of people from many walks
of life, a lot of different individual legal experts, to put together what we
think is a very good package.

And I can't go into the details today and I won't go into the details today, but
I think when people see the whole thing in its appropriate context, that they
will determine it to be a very fair and balanced and just system.

(...)

Clarke: Charlie?

Q: Torie, you can't give us any basic information at all on these commissions? I
mean, NPR is out with a lot of details on them, including the fact there would
be six or seven members on the juries, or whatever you want to call them; that
anybody convicted would have the right of appeal; and the president would
appoint a three-member group to handle appeals; and that media will be allowed
to attend/cover these. Could you give us any details at all on this? Otherwise,
you're going to have piecemeal reports and perhaps incorrect reports in the
paper tomorrow morning, and what you'll be doing is out here defending incorrect
reports. Could you give us any details at all?

Clarke: Well, to steal one of the secretary's lines, I could, but I won't. And
to paraphrase what the secretary said last night, it is important to try to look
at this thing in its context, with all the parts and pieces put together. But I
do really believe, having seen how many people have been working on this and the
kind of effort they've put into it, I think at the end of the day, people are
going to feel pretty good about this system, designed for very unusual
circumstances, and I am confident they are going to say, "You know, this is
based upon the principles that we really care about." But --

Q: Why?

Clarke: And Charlie, I hear you. And it is unfortunate that bits and pieces are
probably and will be leaking. It doesn't do the process any good. But we're
going to try to hold this together and do it as a package.

Q: Why are people going to --

Q: Bits and pieces are going to be -- the whole thing has been presented to
members of Congress. Why does Congress get the entire thing, and the American
public, via the press, gets nothing today?

Clarke: You know, if we weren't briefing and consulting with Congress, then
somebody would say, "Why aren't you briefing and consulting with Congress?"
Consulting with --

Q: That doesn't answer the question.

Clarke: Well, but it's -- you raised an important issue. Consulting with
Congress is an important thing. So I don't know the exact schedule, but I do
believe Powell Moore and others have been making calls and making visits on it.
It is appropriate to consult with Congress on this, and as somebody who used to
work up there on the Hill, it is very nice to hear something from the relevant
agency, rather than hearing from it -- from the press for the first time.

Q: Well, if it's been given to Congress, why cannot it be given to the American
public?

Clarke: Well, because we'd like to have the secretary come down and talk about
it. We'd like to have the right people who've helped put this thing together,
like our general counsel and others, help answer the relevant questions.

Q: Would that be tomorrow, Torie? Would that be tomorrow?

Clarke: It'll be very soon.

Q: Why --

Q: Can you just say it's tomorrow?

Clarke: I can say it'll be soon.

Q: Why can't you say it's tomorrow?

Clarke: Because I'm saying it'll be very soon.

Q: Why will people feel good about this? Because it's to be close to the
civilian justice system, where you'll have the right of appeal and --

Clarke: It's based on some very important principles that people in this country
care about.

Q: What --

Clarke: We're going to stop there.

(...)

Q: Can I get one more on the legal issue? Whose product is this? Is this an
exclusive product of the secretary --

Clarke: I'm sorry; which issue are we talking about?

Q: The legal tribunals.

Clarke: Oh, the military commissions?

Q: The tribunals.

Clarke: Is it an exclusive product?

Q: -- of the Pentagon? Is this Pentagon? Is this Justice and Pentagon? Who is
presenting this?

Clarke: Who is presenting -- ?

Q: Who's responsible for this plan?

Clarke: Oh, the secretary of Defense is responsible for it. The president tasked
him with putting together the policies and practices, but it has been an
extraordinary -- I really mean it -- extraordinary level of participation and
involvement from a variety of people throughout the administration.

Q: (Off mike) -- that when people see it, they will approve of it and support
it. Have the senior Judge Advocate General's Corps endorsed this plan
unanimously?

Clarke: Let me say this: I'm not going to put words in other people's mouths,
and people, when we put this whole thing out, can judge for themselves. I think
-- Torie Clark's personal opinion -- I think, when people see the whole thing
and hear the questions get answered, I think they'll say, "You know what? That's
a pretty good product. And that is a fair and a balanced and a just system. And
that's one that the American people can be proud of."

In terms of involvement and endorsements and things like that, when we roll it
out, you can ask those questions.

But there has been extraordinary involvement in the interagency process, the
Services, the joint staff, a lot of different people from a lot of different
backgrounds.

Q: There is widespread indication that some of the traditional people on the
traditional side of the military justice system are not happy with this plan at
all. Could you address that?

Clarke: Well, I haven't seen evidence of that. What I have seen is hour after
hour after hour of very senior people throughout the system who have been
working on this. And I don't know about traditionalists, and I don't know to
whom you're referring, but I do know that people who understand what an
unconventional time we're in and what unconventional circumstances we're dealing
with believe they put together a pretty good package.

Q: Does the issue of timing on this -- not the plan itself, but you are now
holding several hundred people at Guantanamo -- when does the process begin?
When can any person who is being held there look forward to being in front of
some sort of court?

Clarke: I don't know what the time frame is, but when the president identifies a
person or persons that he wants to go through the system --

Q: And that could be many months?

Clarke: And to my knowledge, those persons have -- I have -- I've never heard an
estimate on a time frame.

Q: Torie, aside from details on how these commissions will be set up, have you
determined where they will be held?

Clarke: No.

Q: That has not been determined?

Clarke: Correct.

Q: Thank you.

Q: Will military lawyers be ordered to defend these people, to represent them?

Clarke: Stay tuned. Stay tuned. Stay tuned.

* * *


March 21, 2002

!!! DOD NEWS BRIEFING ON MILITARY COMMISSIONS

[Also participating were Marine Corps Gen. Peter Pace, vice chairman, Joint
Chiefs of Staff; Under Secretary of Defense Douglas Feith; and Department of
Defense General Counsel William J. Haynes. ]

Q: You're on the wrong side.

Rumsfeld: I don't feel right over here. (Laughter.) There's something wrong with
this picture. (At the podium.)

Q: (Off mike) -- on the left.

Rumsfeld: Good afternoon.

Q: Good afternoon.

Rumsfeld: We were reminded last week, as the coalition forces battled Taliban
and al Qaeda in the mountains, that we're still in the early stages of this
dangerous and what promises to be long war. But while much of the difficult work
remains, thanks to the courage and dedication of the soldiers and sailors and
airmen and Marines, we've had some good success thus far.

On September 11th, the terrorists attacked the United States, killing thousands
of innocent men, women and children. Less than a month later, the coalition
countries responded and the Taliban had been driven from power. Hundreds of
Taliban and al Qaeda terrorists have been killed, and hundreds more have been
rounded up and detained by coalition forces.

This success has given us a glimpse into the future we face. As the president
noted in his State of the Union address, we have found evidence, in caves and
tunnels and safe houses in Afghanistan, of further terrorist plots to kill
Americans and others, as well as terrorist efforts to acquire weapons of mass
destruction, capabilities that, if they are successful, could help them kill not
thousands more but tens of thousands more.

This is a dangerous and determined adversary for whom September 11th was an
opening salvo in a long war against our country, our people and our way of life.
Our task, our purpose must be to stop the terrorists; to find them, to root them
out and get them off the street so that they cannot murder more American
citizens.

One of the tools at our disposal to meet that challenge is the use of military
commissions to try some of those who are captured in the conflict. Today we are
announcing some of the procedures we plan to use to carry out the president's
military order. Before discussing them, I want to mention some of the thinking
that went into their development.

In the president's military order, he directed the Department of Defense to find
ways to conduct commissions in a manner that would be consistent both with our
national security interests and with the traditions of fairness and justice
under law, on which this nation was founded, the very principles that the
terrorists seek to attack and destroy.

In the months since the president issued his order, we have consulted with a
number of experts from around the country, in and out of government, in and out
of Washington, in an effort to come up with rules and procedures that will
ensure just outcomes while protecting the American people from the dangers that
are in fact posed by terrorists.

There's a powerful tension between getting a story fast and getting a story
right. That's a fact. You all know that. It's important, I believe, to try to
balance those competing pressures. Often the pressures of the moment for speed
tend to overpower the desirability of getting it right. On and after September
11th, in reporting the number of people who were killed here at the Pentagon,
DoD was criticized for being too slow, but we got it right. With respect to the
global position device recently found in Afghanistan, DoD got it fast, but we
now believe we got it wrong. On the development of the rules for the military
commissions, DoD has been characterized by some as being slow. The fact is, I
have been determined to try to get it right. It is an exceedingly important
subject, and it's important for our country that we do it right.

I've taken some time, first because I wanted to do it well, but second because
we had the time available. No individual has yet been assigned to be tried by a
military commission. So despite the appetite for speed, it was more important to
do it well than to do it fast.

Our approach has been based on two important principles. First, the president
decided to establish military commissions because he wanted the option of a
process that is different from those processes which we already have, namely,
the federal court system in the United States and the military court system
under the Uniform Code of Military Justice.

So when people take note of the fact that there are differences with respect to
the procedures for the military commissions, they should understand that there
is a reason for it. Those two systems have different rules and procedures, yet
each produces just outcomes. It follows, therefore, that military commissions,
which will have rules and procedures that are somewhat different from either of
those two systems, can also produce just outcomes, despite the differences. An
observer who may be more familiar with the federal court system or the military
code of justice may try to evaluate the new approach being fashioned for
military commissions against what they're familiar with and then raise questions
about the rules and procedures for the military commissions. That's
understandable.

But I want to be clear from the start. The commissions are intended to be
different, and the reason is -- is because the president recognized that there
had to be differences to deal with the unusual situation we face and that a
different approach was needed for that reason, just as was the case during
several previous conflicts in our country's history.

Our second guiding principle is related. Observers may be inclined to examine
each separate provision and compare it to what they know of the federal criminal
court system or the court-martial system, and feel that they might prefer a
system that they were more comfortable with. I suggest that no one provision
should be evaluated in isolation from the others. If one steps back from
examining the procedures provision by provision, and instead drops a plumb line
down through the center of them all, we believe that most people will find that
taken together, they are fair and balanced and that justice will be served in
their application.

The general counsel, Jim Haynes, who has spent an enormous amount of time on
this subject, and the undersecretary of Defense for Policy -- and needless to
say, there's a mixture here of legal and political policy questions -- are here.
They will come up to the podium and respond to technical questions after General
Pace and I depart. They'll review the procedures and answer questions. However,
I do want to highlight some of the main provisions.

The accused will enjoy a presumption of innocence; will not be required to
testify or incriminate themselves at the trial. They will have the ability to
discover information and to obtain witnesses and evidence needed for trial and
be present at public trial. Cannot be tried for the same offense twice. Will be
provided with military defense counsel at government expense, and will also be
able to hire defense counsel of their choosing at their expense.

Further, proceedings will be open, unless the presiding officer determines it's
necessary to close the proceedings to protect classified or sensitive
information, or for another reason; namely, the safety of the trial
participants.

The standard for conviction will be "beyond a reasonable doubt" and will require
a two-thirds vote of the commission. The imposition of a death penalty will
require a unanimous vote of the seven-member commission. After the trial, there
will be an automatic post-trial process of appeal and review.

Let there be no doubt, commissions will conduct trials that are fair and
impartial. At the same time while ensuring just outcomes, the procedures are
also designed to respond to the unique circumstances for which they were
established.

For example, military commissions will allow the use of classified information
without endangering sources and methods. In a civilian trial, prosecutors could
be faced with a situation where in order to avoid exposing classified
information, they would have to either allow defendants to go free, or accept a
lighter sentence, a situation that could be undesirable in the case of a
hardened Taliban or al Qaeda terrorist.

The procedures allow us to protect civilian judges, juries, counsel and
witnesses from ongoing terrorist threats. For example, the judge who handled the
trial for the first World Trade Center attack is still under 24-hour protection
by Federal Marshals, and may be for the rest of his life. That is unacceptable
in the cases likely to be assigned to the commissions.

And the procedures permit more inclusive rules of evidence. In wartime, it may
be difficult to locate witnesses or establish chains of custody for documents.
Critical evidence that could protect the American people from dangerous
terrorists should not be excluded simply because it was obtained under
conditions of war.

Let me conclude. We are a nation of laws. We have been attacked by lawless
terrorists. The manner in which we conduct trials under military commissions
will speak volumes about our character as a nation, just as the manner in which
we were attacked speaks volumes about the character of our adversaries. We have
made every reasonable effort to establish a process that is just; one that
protects both the rights of the defendant to a fair trial, but also protects the
rights of the American people to their security and to live as they were meant
to live, in freedom, and without free of terrorists.

I want to add a word of appreciation not just to Jim Haynes, who will be up here
in a moment, but to a number of non-Defense Department individuals, most of them
former government officials or judicial officials of various types, who have
given a great deal of time to provide advice as we worked through these many
important issues.

(To staff) I believe we have their names that are going to be passed out in the
materials?

Staff: Yes, sir.

Rumsfeld: Good.

After General Pace makes his remarks, we will be happy to take one or two
questions, and then we're going to bring up the experts.

General Pete Pace, United States Marine Corps.

Pace: Thank you, sir.

I am personally very comfortable with these procedures. They are in fact fair,
they are balanced, they are just. And I am also very proud of the process that
we went through to get to these procedures. I personally sat in on hours and
hours of deliberations with the secretary and his team, both from inside the
Pentagon and, as he mentioned, experts from outside, and certainly experts from
outside of government who were advising him, and the process itself was very
reassuring to me and it should be to all of you.

It is well-suited to protect not only the rights of the accused, but also, as
the secretary mentioned, the safety of the participants in the trials, and also
to protect our intelligence in the ongoing war on global terrorism.

And finally, and very importantly, I have absolute faith in the men and women of
our armed forces who, when called upon to participate in these commissions, will
do their utmost to ensure a very fair, forthright, honest trial.

Thank you, sir.

Rumsfeld: On reflection, I would like to mention the names of the individuals
who helped out. They did it without compensation because of their patriotism:
Judge Griffin Bell, former attorney general; the Honorable Bill Coleman, former
secretary of Transportation; the Honorable Lloyd Cutler, former counselor with
the president -- two presidents; the Honorable Mark Hoffman, who served as
general counsel of the Department of Defense and also secretary of the Army;
Professor Bernard Meltzer -- Dr. Meltzer is University of Chicago law school and
was involved in the Nuremburg trials; the Honorable Newt Minow, who was the --
President Kennedy's chairman of the Federal Communications Commission; the
Honorable Terry O'Donnell, who's a former Department of Defense general counsel;
Judge William Webster, former federal judge, former director of CIA and FBI; and
Professor Ruth Wedgwood of Yale University and Johns Hopkins University. As I
say, they didn't -- they don't -- none of them work for this department; they
just volunteered to help out and have been enormously helpful.

A couple of questions. Charlie.

Q: Mr. Secretary, there are still critics who say that no matter how you cut it
or couch it, that military trials are not as fair or as thorough as civilian
trials, trials in civilian courts. Are you looking -- will these military trials
guarantee simply more swift and sure justice than civilian courts? And are you
worried about security -- someone throwing a hand grenade into a courtroom? Is
that why you're going to military trials?

Rumsfeld: Charlie, there will always be critics. It's a free country! We learn
from our critics. They say it's your -- that all of that dialogue and discussion
that takes place informs the public, informs the people in government, and it's
helpful. Are we very, very pleased and satisfied that this will produce just
outcomes? You bet. We also have the ability to amend it if, for some reason, we
found that there was something that we hadn't thought of. We're plowing new
ground here, to a certain extent. So the critics can be critics, and we can be
government officials, and you can be members of the press. We'll all do our jobs
and try to do them well.

Q: And regarding security, will military trials allow you to hold it, say,
aboard ship or in more secluded places, where you will have more secure
protection?

Rumsfeld: There's nothing in the military order that I can recall that discusses
the location of the commission.

Q: You've made no decision on where these will be?

Rumsfeld: We have not decided it, because we do not have any candidates yet to
be tried before commissions.

Shall we make this the last question? (Groans from the press corps.)

Q: Under what --

Q: No pressure!

Rumsfeld: No, leave her alone. Come on!

Q: How about a couple of quickies?

Q: There's a provision that says that you and -- or the president must give
final approval to the findings and the sentencing. Under what conditions or
circumstances do you think you will be overruling what the commission has found,
or the sentence?

Rumsfeld: Oh, my goodness. You're asking -- first of all, we don't have any
candidates for the commissions.

Q: What is the practical purpose of that for --

Rumsfeld: That's what the order provided, and there it is. The president's
military order provided -- left it that way, and trying to speculate as to how
some accused might or might not be handled down the road, I think, is beyond my
ability. You can try Jim Haynes on that. Maybe he has a better answer.

And since I didn't answer that, I'll ask Pam to have the last question.

Q: (Sighs.) Again with the pressure!

Rumsfeld: Well, you can handle it. You can handle it.

Q: Yeah. Actually, I have sort of two big questions for you. One is something --

Rumsfeld: One question, not two.

Q: What if I do it in one long run-on sentence?

Rumsfeld: No. Won't work.

Q: You say that you have a commitment to having an open process, and in this
fact sheet that you've given us, it talks about that. But at the same time, you
say you need to be able to present national security information that cannot be
expressed openly. So how are you going to balance those two? How can the people
who will be following these proceedings be assured that they are impartial and
fair, and not sort of kangaroo courts with a predetermined outcome, if they
cannot have access to that?

Rumsfeld: There's that word. There's that word.

Q: I had to raise it.

Rumsfeld: You had to get that "kangaroo court" in there so that people would
have that in their minds --

Q: (Off mike) -- opportunities to address --

Rumsfeld: -- in their minds, when we've just presented something that is the
product of many months of effort. It is - -

Q: So the other option --

Rumsfeld: -- it is balanced. It is fair. It is designed to produce just
outcomes, which it will.

Q: How will you make it open?

Rumsfeld: And that characterization is so far from the mark that I am shocked --
sort of.

Q: Yes. So the other option is for us to just go get these quotes from people
and not give you a chance to address it.

Rumsfeld: I understand. I --

Q: But how will you balance that openness? How can it be open if at the same
time you're trying to protect national security?

Rumsfeld: Our country faces that already. We deal with classified material in
court. It's done on a regular basis, and there are ways that it can be handled
so that -- I happen to know the answer of this. To give it to you, it is -- it
would get me down to a level of detail that I'd prefer not. But there is one way
of knowing that -- is, I believe that the -- I'm going to let Jim do it. If the
military counsel would be present during any period when anyone else who should
not be present because of the sensitivity of classified material might be
excluded from the process, nonetheless, the defendant's military counsel would,
in fact, be present at all times.

Q (Inaudible) -- ask General Pace a question, sir?

Rumsfeld: Yeah. All right. (Laughs; soft laughter.)

Q: Thank you. I appreciate it.

General Pace, understanding we're not going to talk about any particular
instance or -- this is not really a hypothetical: Is the Department of Defense
-- the Pentagon and the U.S. military -- in fact, prepared to invoke the death
penalty against -- in this process, against an accused person?

Pace: I'm not exactly sure why you would come specifically to me with that
question, but as the rules of the court are laid out, it is well within the
authority of a tribunal, when a person's brought before them, if they are
charged with a capital crime, if they deem it appropriate to find that person
guilty and if all seven vote unanimously that that person should be put to
death, then that is well within their prerogative to do. And then, of course, it
would go the process that the secretary laid out, as far as who would make the
final decision.

Q: Can we do a follow-up on that?

Rumsfeld: Tell you what I'm going to do: I'm going to ask Jim Haynes and Doug
Feith to come up. Jim is the general counsel; Doug Feith is the undersecretary
for policy. They have been -- particularly Jim, but Doug to some extent -- have
been deeply involved in this process. They are able to answer a whole host of
questions at a level of detail, and I would think in a manner that would be very
helpful to the folks here. And I'd prefer to have them take over at this time.

Thank you.

Q: Do you think any of those prisoners you captured are innocent? (Laughter.)

A: Trick question.

Rumsfeld: I haven't had a chance to look them over. That process is --

Q: Just wondering if you thought you'd captured any innocent people.

Rumsfeld: We've captured some innocent people and turned 'em loose from time to
time, as you well know.

Q: Can I do a follow-up to the question just asked?

Haynes: May I say one thing first, just so you'll know? I am Haynes --
(laughter) -- and this is Feith.

(Cross talk.)

Haynes: I also would like to echo something the secretary said about the
process. We were very careful about it, very deliberate. We reached out not just
to those people identified, but also to the experts within the building -- the
Judge Advocates General and the general counsels of the military department were
very important in the development of these procedures. They will have
substantial roles in implementing them. And we also, of course, consulted with
other agencies. We considered everything that we heard on the Hill and in the
press. It was very helpful to read about all of the things that you wrote, and
we found that to be very helpful.

Furthermore, we don't intend this to be the end of that deliberate process. The
rules provide that we will have full and fair trials, and I am very confident
that those who are charged with executing that responsibility will do so.

Q: On the three-member review boards we're talking about, the president appoints
those -- does the president appoint those boards? And does it automatically go
--

Haynes: Let me say one thing. We gave some fact sheets at the outset. We will
have the actual rules for you when you leave. And at a very quick time
afterwards, if they're not already up, they'll be on the website.

Q: But the president can appoint civilian members to those review boards, can he
not?

Haynes: There is a review panel of three members. Those members may be appointed
by -- will be appointed by the Secretary of Defense. If any of the three is a
civilian, then the president will appoint that civilian as a temporary military
officer, under existing legislation.

Q: Do things go automatically to the review panel, or would a thing have to
appeal?

Q: What would you say to the suggestion that -- which is coming from many
quarters, as you know -- that the structure is designed simply to make it easier
for you to win convictions, that that's the purpose of this whole thing, to make
it easier to convict?

Feith: I would say that's wrong. This was a -- the process of putting together
these procedures was a balancing process. We have a number of important
objectives that we had to keep in mind as we developed the procedures. Clearly,
as has been emphasized, one of the key objectives is providing a fair trial for
the individuals. But we're in the middle of a war, and we had to design a
procedure that would allow us to pursue justice for these individuals while at
the same time prosecuting the war most effectively. And that means setting rules
that would allow us to preserve our intelligence secrets, develop more
information about terrorist activities that might be planned for the future so
that we can take action to prevent terrorist attacks against the United States.

I mean, there was a constant balancing of the requirements of our war policy and
the importance of providing justice for the individuals. And that's why the
secretary refers to this plumb line. I mean, there were lots of considerations
at play here, and each deviation from the standard kinds of rules that we have
in our criminal courts was motivated by the desire to strike this balance
between individual justice and the broader war policy.

QCan I ask a question about the openness of these proceedings? In the trial
format, it says the trial proceedings will be open unless otherwise determined
by the presiding officer; but in reading through this fact sheet, it seems to be
weighed much more heavily toward closing the proceedings than having them open;
number one. Number two, the presiding officer may also allow attendance by the
public and press. Well, if it's to be open, I mean, who besides the public and
press would it be open to; number one? Number two, why doesn't it say that the
proceedings will be open to the public and press?

Haynes: The procedures do say that the proceedings will be open to the maximum
extent practicable, but under certain circumstances that are identified in the
rules, such as the presentation of classified information or the safety of
witnesses or the timing of the trials for particular reasons to be determined at
the time, then they may be closed insofar that it's necessary to protect that
information.

Q: But even -- if I could follow up -- but even the sentence, "The presiding
officer may also allow," it's almost as if that's an afterthought --

Haynes: It's not an afterthought.

Q: -- as opposed to a ground rule that they will be open to the press and public
and closed under only extraordinary circumstances. The way this is written is
weighed far more in favor of closing the proceedings than having them open.

Haynes: I would suggest that you read the rules. And I know you don't have them
now, but you'll have them soon.

Q: Is there appeal authority for --

(Cross talk.)

Q: One thing you apparently have not addressed here, which I think is very
germane: Are any of the members of these commissions going to be legally
trained, coming from JAGs or what have you, or you don't consider that
necessary?

And a follow-up to that is, how similar will any of these tribunals be to the
Nuremberg trials at the end of World War II?

Haynes: To answer your first question, yes, people who will serve on the
commissions must be competent to perform the duties. The presiding officer of
the commission must be a judge advocate. The other members are not necessarily
judge advocates, but they may be. Traditionally, military commissions -- and
this is true of courts- martial -- are not necessarily legally trained, but they
are competent and educated people and will be chosen on that basis.

Q: (Inaudible) --

Q: Wait a minute! What about the Nuremberg thing?

Haynes: Well, there are some similarities to Nuremberg and there are some
dissimilarities to Nuremberg. These procedures are, frankly, much more detailed,
and in many respects are more generous than what was done at Nuremberg.

Q: Under the procedures that you have outlined --

Q: But as far as --

Q: Sorry. Please, go ahead.

Q: As far as trials and procedures are concerned, are you in touch with any
country, or if any country have asked any help or consultations in any way?

Haynes: We have received so much unsolicited and solicited help, and we've
considered it all.

Q: Can you answer the question the secretary didn't answer about under what
circumstances would he or the president be allowed to overrule the findings
reached by the commission and a review board, and why is that needed, that last
step of them approving it?

Haynes: Well, remember that the secretary's procedures are implementing the
president's military order. The president's military order specifically provided
that he would be the final approval authority, unless he specifies that the
secretary of Defense will be.

Nevertheless, we do have in these procedures some specific instructions,
including, for example, an acquittal or a finding of "not guilty," once it is
final, may not be changed, even though the case will proceed up for final
approval by the president or the secretary of the Defense.

Q: Do these procedures guarantee that if a defendant is acquitted, that the
defendant will be set free?

Haynes: The procedures don't address the outcome of a trial, except to say that
a sentence will be enforced quickly.

Q: Does that mean that if you are acquitted, there is a chance that you will not
be set free?

Haynes: Well, it's -- as the secretary said, we're talking about hypothetical
two or three times removed. If we had a trial right this minute, it is
conceivable that somebody could be tried and acquitted of that charge, but may
not necessarily automatically be released. The people that we are detaining, for
example, in Guantanamo Bay, Cuba, are enemy combatants that we captured on the
battlefield seeking to harm U.S. soldiers or allies, and they're dangerous
people. At the moment, we're not about to release any of them unless we find
that they don't meet those criteria. At some point in the future --

Q: But if you -- (off mike) -- convict them, if you can't find them guilty, you
would still paint them with the brush that we find you dangerous even though we
can't convict you, and continue to incarcerate them?

Feith: Part of the reason I don't think you can give an unqualified answer to
that question is you couldn't do it even under our domestic criminal legal
system. I mean, one could have circumstances where you're going to charge -- or
somebody is charged with a number of offenses, and they might be tried for one
and acquitted, but there still may be other reasons to hold the person. And so,
I mean, you can't even say in a domestic court that if somebody gets acquitted
of a particular charge he'll be let free. It depends on what else may be pending
against the person.

Q: (Off mike) -- of other cases, though.

Haynes: May I say a couple things?

Feith: Sure.

Haynes: One thing we can say, that if a person is found not guilty, they will
not be charged again for the same crime.

Q: Double jeopardy you have ruled out. But you haven't -- (laughs). But what is
curious to me is, if you are acquitted, if you are found not guilty doesn't
necessarily mean you're going to be released.

Haynes: Let me answer it in part this way. And I think the secretary's been very
clear about this in other contexts. He is not interested in holding people
gratuitously indefinitely. As I said at the outset, the people that we now hold
in Guantanamo are held for a specific reason that is not tied specifically to
any particular crime. They're not held -- they're not being held on the basis
that they are necessarily criminals. It might be that as we investigate -- and
that's what we're doing now -- that they will be appropriately charged with
crimes, in which case we can address that. But there are two separate bases --

Q: One of the other issues about the defendants is when there is classified
information being presented, is the defendant able to hear the evidence that is
being presented against him when that evidence is classified, or does the
defendant not get to hear what is being said about what he is accused of?

Haynes: Again, we need to remember that these will be individual trials
involving individual people. So to generalize is something that I'm reluctant to
do. But, you've asked the question, Is it possible? It is possible that there
will be some evidence that will be so highly classified that we will not find it
appropriate to have the accused present when the evidence is admitted. After
all, the defendant might be found not guilty at some point and eventually,
perhaps, released, and we would not want to provide classified information under
those circumstances.

But even in those circumstances -- in fact, under all circumstances -- the rules
are very, very clear that his defense counsel, his military defense counsel,
must be present, must have access to all information considered by the
commission, so he will be represented and protected under those circumstances.

Q: In attempting to ensure the security for those on the commission --

Haynes: Jim --

Q: May I ask a question, please?

Haynes: Just a second.

Q: Okay.

Q: Two questions, actually. Can you define what you mean by "competent"? For
example, could a commission member come from any military career area? And
number two, the list of people that can be tried by commission include those who
would harbor terrorists. So what -- under what circumstances might you prosecute
a foreign government official? And how would the process be affected by that
fact?

Haynes: The procedures that we're releasing today implement the president's
military order. The president's military order of November 13th specifically
says that he must personally determine that an individual will be subject to the
military order. The person may not be a United States citizen. But in this
determination, the president would have -- would state that he has reason to be
believe that the person is a member of al Qaeda or, as you said, potentially
harbored or assisted and aided and abetted such a person. Under those
circumstances, these rules would apply.

We do not anticipate that would be trying somebody that's not currently in --
under the control of the United States government. So your hypothetical about a
foreign government official, unless we have them or have that person, would not
be subject to it.

Yeah, sir? Sorry.

Q: In attempting to ensure the security or safety of the members of the
commission, even witnesses, does that simply mean that their identities will not
be released, or does that mean that the proceedings would be closed to protect
the security of those individuals?

Haynes: We don't write about every conceivable scenario in these rules you'll
see. They're more detailed than we gave to you just as you came in, but there
are some things that remain to be applied. We leave discretion to the presiding
officer or the appointing authority in a particular case to decide how best to
protect information or people under circumstances like what you've described.

But I'll point out, in our civil court system, it is widely accepted that judges
have the ability to protect witnesses through various measures, including
protecting their identity or masking their voices or otherwise. And I would
think that a presiding officer, or appointing authority in this case, would
consider the same range of things, consistent with the admonition that trials
shall be open to the maximum extent practical.

Q: Including protection -- or the protection of the identity of those involved
in the commission itself, if that were so deemed necessary?

Haynes: Conceivably. But we didn't specifically write about that.

Q: And could you describe the difference between a commission and tribunal?
Because I know it was called a tribunal originally, then the Pentagon made a
concerted effort to shift it to commission. And then yesterday we heard the
president call it a tribunal once more. So is there a legal, technical
difference between the two or are they just interchangeable?

Haynes: Sometimes they're interchangeable. But in the statutes that reference
them, tribunals seem to encompass commissions and courts-martial. But that's not
always the same.

Q: Mr. Haynes, could you -- let me ask, sir, a legal point. Is it correct that
you have a legal reason to try and keep these proceedings outside of the United
States in order -- we keep hearing this, and I just want to understand it -- in
order to keep any appellate process outside of U.S. federal court jurisdiction?
Is there a legal reason to physically, geographically keep them outside of the
United States to keep them out of the U.S. justice system? And is there any
appellate process in this that is fully independent of the U.S. military or, you
know, does the buck stop with the U.S. military in terms of an appellate
process?

Haynes: Answering your first question, I will agree that there are consequences
to holding trials in certain places. To say that we are acting in a particular
way to avoid certain things I think would be an overstatement. Certainly, a
number of things factor into decisions. But --

Q: Well what would be the consequences of holding them in the United States, the
legal consequences?

Haynes: Well, it would depend on each case, and it would depend on who the
defendants were, and it would depend on the method of trial, and so forth, and
so on.

For example, the 1942 case involving the Nazi saboteurs, which was the
employment of a military commissions, was held in the -- it was held in the
Justice Department building downtown. The defendants were both foreign nationals
and United States citizens. The court reviewed that all the way up to the
Supreme Court and found that the president's order in that case was
constitutional and properly applied. But it -- I would anticipate that there
would be a different set of -- a different analysis that the Supreme Court, in
this case, might use if the trial were held in, say Guantanamo or in Afghanistan
or somewhere else. And I wouldn't want to make any predictions about that.

Q: (Inaudible) -- try and understand as clear as possible: If a detainee held by
the United States -- and clearly, they all fall into the same fold -- a detainee
-- if they --

Haynes: -- held in the United States, yeah.

Q: -- being held by the United States right now in Guantanamo or Afghanistan
came before a U.S. military commission geographically inside the United States,
would that person then have jurisdiction...could you then be under the
jurisdiction of the federal court system? Are you opening yourself to that
possibility? And my question on the appellate process.

Haynes: The answer is that a -- yes a United States District Court would have
jurisdiction to consider a petition by a defendant in that case for certain
purposes. There has already been a habeas corpus petition considered in Los
Angeles. There's one pending now in the District Court of the District of
Columbia. I would imagine that we will have more of those as we go forward.

Q: (Inaudible.)

Q: And is there any independent appellate process?

Haynes: Well, I'll let you read the rules, but the --

Q: (Inaudible)

Haynes: The rules provide for the review panel that I described a few minutes
earlier that will be selected by the secretary of Defense and will be charged
with reviewing the record of the trial and any written submissions they seek
from counsel. And they may return the case to the commission, or they may advise
the secretary for disposition. But they are not outside of the structure, other
than what I've just described.

Q: Could you explain --

Q: Do the procedures allow for indefinite detentions without charges? And also,
are intended for use against a select group of prisoners? Or are they intended
for use against this whole body of prisoners who are in U.S. military custody?

Haynes: The procedures are strictly written for conduct of trials or conduct of
commission proceedings. They don't -- they do not address detention outside the
scope of a trial.

And secondly, as to the people to whom these procedures might apply, as I said,
these implement the president's military order so that people that may be tried
by these commissions are those who the president has determined in writing are
subject to the military order.

Q: But it's the intention to use them against only a select group of prisoners?
(Off mike.)

Haynes: Well, the president's -- the president's order spells out the types of
people that potentially can be subject to it. So, members of al Qaeda, persons
who are otherwise involved in international --

Q: I guess -- I guess what I'm driving at is whether we can expect that this
will be applied only to top al Qaeda leaders as opposed to, you know, people who
were fighters in Afghanistan but not -- were not necessarily leaders of the
organization. I know it could be applied to anybody that fit that definition,
but in terms of what the administration intends to do here.

Feith: The decision as to who might be prosecuted in a military commission is
the president's decision. And --

Q: But he needs advice from you, doesn't he?

Feith: But in answer to the question, the president has the authority to put
people that he selects into the military commission process. No recommendations
have been made with regard to anybody yet. And so it's too early to answer the
question that you've posed.

Q: So --

Haynes: Let -- let me just add to that. We're very early in the process. We're
still interrogating and talking to the people that we have detained. And they're
-- I would say it's fair to say they're singularly uncooperative. So we have --
we have a lot of facts to find beforehand. It's not just from them that we'll
necessarily find them. So to build a case takes time and takes evidence, and
we'll have to see.

Q: To follow up on Jim's question --

Q: Could you explain why -- could you --

Q: Excuse me. Just for a minute. I want to follow just very briefly on Jim's
question about how long you might hold people before you put them on trial.

Have you all made any attempt to address the question of due process, as there
is in civilian courts, you know: doing -- bringing people to trial or releasing
them in a timely fashion? Or -- or -- could you just hold these people for years
just to keep them off the street without charging them? Has there been any
attempt to address that question?

Haynes: Well, I tried to do it earlier in this press conference when I noted
that the people we're holding in Guantanamo we're holding because we found them
to be enemy combatants. That is totally different from a criminal justice
system. That is a widely accepted and a historical concept of great depth and
longevity that it's permissible to do that. When somebody's trying to kill you
or your people, and you capture them, you can hold them. That's why we're
holding the people in Guantanamo. The separate question about speedy trial and
so forth doesn't apply to those people. So these rules do not address anything
of that nature, except to charge the commission with conducting the proceedings
expeditiously once they begin.

Q: So you could in fact hold these people for years without charging them,
simply to keep them off the street, even if you don't charge them?

Haynes: Well, you're asking a separate question from what the rules provide. The
rules don't say anything about that. So --

Q: No, I know that. But you could, in effect, do this, based on what you've
said.

Haynes: We are within our rights, and I don't think anyone disputes it, that we
may hold enemy combatants for the duration of the conflict. And the conflict is
still going and we don't see an end in sight right now.

Q: Sir, could you explain with some specificity what the problems are with the
UCMJ and with civilian courts that make you -- besides the fact that the
president told you to do so -- that require setting up this new kind of legal
system? The secretary addressed the question of national security, but he also
said that there are already procedures in place to protect national security
when such evidence is introduced in trials. He addressed the question of the
physical security of the people involved, but already people are -- face that
every day, especially in New York with mafia trials, there are judges that have
round-the-clock protection. So those are two main reasons that have sort of
already been asked and answered in other courts.

The cynical interpretation out there is that the main difference between this
and the UCMJ is that the UCMJ allows people to appeal up to the Supreme Court,
so the interpretation is that the department's or the administration's attempt
is to keep this completely out of the Supreme Court's area of jurisdiction.

Haynes: That would be a cynical interpretation, and you --

Q: Can you explain how it's not that?

Haynes: Well, you shouldn't read this -- nor do we -- read this as an indictment
or any dissatisfaction with existing judicial systems in the United States. Our
federal judiciary is a fine institution to do what it does. The court-martial
system, under the Uniform Code of Military Justice, is the best in the world.

This is an additional option for the president.

Q: Why is it necessary?

Haynes: It's necessary -- well, and it is also not new. It is consistent with
American history; I mean the use of military commissions historically has been
an option for the president.

This is a unique conflict. It is unique in several respects -- and Doug may have
some comments about that as well. We've never been attacked quite like this
before. We've never had the intersection of criminality and warlike acts in
quite this way before. We've never had to face an organization whose principal
mode of operation is to hide behind civilians and to attack innocent people
indiscriminately on such a large scale. The president needed to have this extra
option for him to consider, to employ in appropriate circumstances.

Q: Can we go back to the question --

Haynes: I'm sorry. Did you have something?

Feith: No. I got -- well, I'll just add one point. The -- there has been for
many years a debate about the nature of terrorism, and is it more in the nature
of war or is it more in the nature of crime? And what was driven home on
September 11th was obviously that it's both. And we are -- we're dealing -- when
you ask, "Why do we need to have a new device or a new vehicle for these
purposes," it is precisely because we find ourselves in a very unusual type of
war. The enemy in this war, as opposed to past wars, is not, by and large, the
regular armed forces of a country, wearing uniforms and attacking enemy armed
forces. Here the enemy is a terrorist network with people who do not distinguish
themselves as -- in uniforms as soldiers, and their principal targets of attack
are not armed forces but civilians. And their principal method is by
infiltrating into our country or into other, you know, friendly countries.

So -- and we are furthermore fighting a war that's going to last for a long
time, and we want to try to bring justice to some of these individuals while the
war is still under way. In many past cases, military commissions were after the
war was over. One of the things that is on our minds here is this war is going
to go on for a long time, and we want to make sure that these proceedings, which
are going on in the middle of the war, do not interfere with our war effort and
may -- because of the way we would be able to handle interrogations and
intelligence information, may actually assist us in promoting our war aims.

So those, I think, are some of the motives that led the president to decide that
he needs to use this well- established institution and apply it in new ways to
this case.

Q: But why specifically exclude the Supreme Court from the process? That's just
not an option in this process. Why --

Feith: I don't think you'll find anything that excludes the Supreme -- it's not
within our power to exclude the Supreme Court from the process.

Q: It says that the -- under the UCMJ, you can appeal up to the Supreme Court.
Here you appeal only to the president or the secretary of Defense after the
review panel is done. They seem -- they are the highest.

Feith: That is the only appeal provided for in the rules that were prepared by
the Defense Department. And as far as whether the Supreme Court gets involved in
the process, that's beyond our authority to say.

Q: But is that still a possibility, that the Supreme Court could weigh in on
this?

Haynes: Far be it from me to tell the Supreme Court not to do something. We
anticipate that anybody that is tried will have vigorous, competent
representation, and we expect that they will seek every avenue they can to
protect the interests of their client. And we are confidant that the rules will
withstand any scrutiny and that we will produce a full and fair trial and a just
result.

Q: Back to the question of openness, to follow up on the point that was made
earlier, there does seem to be a presumption in this fact sheet that it would be
more closed than more open, the sense that the presiding judge gets to decide
whether to open it. And we've heard now several reasons that it could be closed.
Confidential or classified information that reveals security sources. The
secretary mentioned he doesn't want the panel presiding members to be under 24-
hour watch, so you've got security now as an issue.

Give us your sense, based on what you know about these rules and the cases that
are likely come before it: Do you expect to see most of these cases open, with
little pieces closed when there's classified information, or most of them
closed, with little pieces open when there's not classified information? What is
your sense of how open these really are going to be?

Haynes: Well, recognizing that we're in the realm of complete speculation now, I
will say that I would expect most of them would be mostly open. The rules
provide that they shall be open to the maximum extent practicable. And that's
what they'll do.

Sir?

QYou said that the secretary doesn't want to hold detainees gratuitously. Under
what circumstances would detainees be extradited to their countries of
citizenship?

Feith: We have had from the beginning a screening process to make sure that we
do not take into our custody people that should not be held. Most of the people
that we are holding were, I believe, captured not by American forces, in the
first instance, but by Afghan forces. And the Afghan forces made available a
number of these people to us. They were screened. We had specific criteria that
applied to decide whether -- to allow our people to decide whether we wanted to
take them into U.S. custody. And it had to do with whether they were higher-
level people, whether they posed a particular threat to us, whether we had
particular intelligence interests in them.

And there were thousands of people who were captured by Afghan forces, and yet
we are holding only a fraction of that number. And the people that we're holding
we are interrogating. And we're continually reviewing the information that we
have about these people that we're getting from interrogations, that we're
getting from other countries that are cooperating with us in the field of
intelligence or in the field of law enforcement. And if we find that we're
holding somebody who is not of intelligence interest to us, is not of law
enforcement interest to us, is not a threat, in our view, to Americans, to the
United States, to our interests, to our, you know, allies or friends as a
terrorist, if we don't have any interest in holding the person, we'll let them
go.

Your particular question was releasing people to -- I believe you were asking,
releasing people to other countries that may want to hold and prosecute them. We
are talking with various countries about the possibility of transferring people
that we are holding after we are no longer interested in holding them to other
countries that might be interested in prosecuting them. And we have a broad
coalition that's fighting this war, and it serves the interests of the whole
coalition if countries that have a desire and a basis for prosecuting the
detainees are given an opportunity to do so.

Q: Are you concerned that, given the non-cooperativeness of these people, given
the choppy nature of the paper trail and shadowy identities and so forth that
even with these rules you're going to have a hard time getting convictions?

Haynes: It's too early to say. We don't --

Q: You -- you just said a moment ago that, you know, it's still very early, we
haven't even -- you know, we're just beginning to build up a case, I mean, these
-- there are a lot of -- this is -- these detentions have been going on for
months. It's been a while. We've been hearing for weeks and weeks about U.S.
forces collecting intelligence. Is there a concern that you're going to have
great difficulty mounting a successful case against any of these people?

Feith: I wouldn't say there's a concern, but I would say that you're putting
your finger on an enormously important point, which is that it is very difficult
to collect information about many of these people. And they -- if you look at
the training manuals that have already been published, that al Qaeda and other
terrorist groups use for their own operatives, you will see that there are
deception and denial techniques that al Qaeda and other terrorist organizations
teach their people. And -- I mean, we've seen these put into effect. And it
takes a lot of digging, in many cases, just to find out basic information about
the identity of people, let alone all of their activities. It is a hard slog.
We're doing it very systematically. We're doing it very well. We're using all of
the resources of the U.S. government, and we're using the resources of numerous
other governments around the world that are cooperating with us. And we are
developing a lot of useful information, but we've got a very long way to go.

Q: Given that, do you think that it's going to be hard to even bring anybody
before a military commission? Do you have any -- I mean, sort of a feeling right
now on whether these things will be used rarely or occasionally?

Haynes: I think it's too early to tell. The impetus for this exercise was that
we wanted to give the president a tool. And it's a useful tool for him. It is
simply too early to say how often the tool's going to be used.

Q: (Inaudible) -- that these procedures would remain in place indefinitely, as
an ongoing additional judicial system created by the executive branch?

Haynes: Well, the rules the secretary issued today do not have a sunset
provision in them. So that's a partial answer to your question. I'd only observe
that the war, we think, will last for a while. We'll just have to wait and see.

Q: Historically, these tribunals -- commissions have not been open-ended, have
they?

Haynes: There are no currently open military commissions. That's a -- so that
yes, they've all shut down in the past.

Q: So far, how many of them are you holding and from how many countries? And
finally, when you said that when you are not interested or no longer interested
in many of them, they will be sent back to particular countries. If any
particular country has shown any interest, or are they in touch with you?
(Isolated chuckle.)

Haynes: We're in touch with various countries who have expressed interest in
people -- sometimes their own nationals, sometimes not their own nationals.

Q: Can you name some of them?

Feith: I'd prefer not to.

Staff: Let's take just two more.

Q: One of the absolute taboos in the military court system is command influence.
And yesterday, when the president referred to these detainees as "killers," is
that an improper command influence on the part of the commander in chief who,
after all, is the ultimate commander over any military officers who would
preside over these commissions? And will the president and secretary be advised
to refrain from such public characterizations in the future to avoid any
appearance of command influence?

Haynes: Let me just try to answer the question this way. You're right, military
command influence is an important concept that all our military justice experts
know very well and they know very well how to deal with it and how to avoid it.
I can assure you that is something that we will continue to be vigilant about.
And I'm not concerned at all that the commissions will do anything other than do
what the president has also instructed them to do, and that is a produce a full
and fair trial.

Feith: And they are ordered to conduct impartial proceedings. I mean, it is --

Q: But I guess it could be argued that it could appear that the commander in
chief has made up his mind.

Q: The president has publicly already declared them killers. (Laughter.) Would
it be advisable -- and I'm not asking you to advise the president from this
podium, and I understand you wouldn't do that. But as a lawyer, would you prefer
that your clients not make those kind of public pronouncements, given the
sensitivity of the procedures that are about to begin?

Haynes: I'm not concerned that we're not going to have full and fair trials.

Staff: All right, let's just do the last one.

Q: Two questions. One, a follow-up from before. Why not wait until the end of
the war to do this? What is the desire to do this during the war? As you said,
there are certain challenges that that poses.

And the other question is, you're saying that the administration reserves the
right to do this because of the war. But war has not been declared by the
Congress. And can I just get sort of legal analysis of that? I mean, how does he
get all these rights if we're not officially, legally, under the Constitution at
war?

Haynes: Well, first off, what we've done today is issue procedures. There's been
no announcement that there will be a trial at any particular time. So your
comment about why not wait until some later time, that remains to be seen when
they'll be employed.

As far as the authority to issue these rules, they're not limited to wartime.
That's one legal answer. It's an authority and responsibility under Article II
of the Constitution, which is there during peace and war. So I'm not concerned
about the fact that there's not been an official declaration of war by the
Congress. There's no doubt that we are in a war situation.

Q: On these countries that you're talking with, the secretary has said people
could be sent back to their countries of origin if those countries can be relied
upon to punish them. Are your talks involving extracting some sort of promise or
agreement from these countries? How will that be handled? A formal agreement
that they will be punished?

Feith: We will have understandings with countries if we're going to make
transfers of detainees to them. And we'll have understandings of various kind,
not the least being that the basic humane treatment that we are committed to
affording the detainees will be afforded by the country to whom we transfer
them. But there will be a number of understandings that we will want to reach
with any country to whom we transfer the detainees.

Q: So if you don't agree with the way they're going to punish them, that will be
a factor as well in sending them back to those countries?

Feith: I mean, the --

Q: The treatment of the --

Feith: As I said, we -- well, one of the considerations is we want to ensure
humane treatment. We are -- we feel committed to providing that, and we will
make sure that we have an understanding with countries that we transfer any
detainees to that they will provide humane treatment also.

Q: Would you want to ensure that they would prosecute them? Besides how they're
treated, do you want to ensure that any detainee transferred to, let's say, his
home country is prosecuted?

Haynes: Well, it would depend on the case.

Feith: It would depend on the case. If you -- one might transfer somebody that
you've decided shouldn't be prosecuted. I mean, it depends.

Staff: Thank you, ladies and gentlemen.

Q: Thank you.

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