[F] Draft Crimes and Elements Instruction, 2003/02/28 - 2003/10/21 ================================================================================ October 16, 2003 - 11:00 am EDT SECRETARY RUMSFELD BRIEFS ON DEFENSE DEPARTMENT OPERATIONAL UPDATE (...) Q: Mr. Secretary, Lieutenant General Boykin, the new deputy undersecretary of Defense for intelligence, has been quoted and seen giving speeches to various religious groups casting the war on terrorism in fairly religious terms; among other things, saying radical Islamists are attacking the United States "because we're a Christian nation, because our foundation and our roots are Judeo- Christian." The enemy is "Satan." I won't read all of these quotes, but he also says that the president is in the White House not because of the voters, but because God put him there. Your reaction to these comments, and what is the policy about people in your office, or in the military overall, about giving these speeches casting the war on terrorism this way? RUMSFELD: Well, that's a lot of questions. I've not seen the videos, which I understand are pieces of a speech or speeches that he made and, therefore, I not only have not seen that, but I have not seen the full context of what it was he said. We do know that he is an officer that has an outstanding record in the United States armed forces. The -- I'm trying to think what else you asked. Oh, the policy. The policy is, as President Bush has stated, that we believe in this administration that -- oh, it -- whatever he did was -- I'm told was in his private capacity as a person. But the president has said, and I think correctly, that the -- that this is not a -- the war on terrorism is not a war against a religion, it is not a war against a people or a country, it is a war against a group of people who have taken the subject of terrorism and tried to hijack a religion and make it look like that's part of their religion, which it is not. And I think the president set exactly the right tone and tempo on it. Q: He was seen in a military uniform when he was giving these speeches. And is it harmful to have these kind of statements out, especially in an effort to win the hearts and minds of the Muslim population? RUMSFELD: (To Gen. Myers) You going to comment? Well, let me comment first on the latter part, and then you can comment on the uniform, because -- I mean, General Myers tells me he wears his uniform to the National Prayer Breakfast. So -- so I don't know what -- what -- that he's violating any rule in that regard. How do you answer this? I'm trying to think. The -- there are a lot of things that are said by people in the military, or civilian life, or in the Congress, or in the executive branch that are their views. And that's the way we live. We're a free people. And that's the wonderful thing about our country. And I think that for anyone to run around and think that that can be managed and controlled is probably wrong. It just like -- just isn't like that in our country. Saddam Hussein could do it pretty well, because he'd go around killing people if they said things he didn't like. We -- and as I say, I just simply can't comment on what he said, because I haven't seen it. Dick, do you want to comment? GEN MYERS: Well, the only thing I would say, Brett, is that there is a very wide gray area of what the rules permit. I mean, a very wide gray area, and the secretary just mentioned one. Generally speaking, you know, you can't criticize the chain of command in public; there are other ways to do that. Generally, when you speak to groups, if you're in a private capacity, it's probably appropriate not to wear a uniform, but there are always exceptions to that. And I've spoken in church before at a prayer breakfast, but other occasions where they might honoring the military -- very appropriate to get up and speak in uniform. So, all different kinds of shades of gray here. I don't -- at first blush, it doesn't look like any rules were broken. That's just from what I've read and what we've discussed this morning. Q: Mr. Secretary? Q: Mr. Secretary? RUMSFELD: I'm going to make a comment. I'm going to make a comment. I'm going to make a comment. Q: All right. Q: You're briefing. RUMSFELD: (Laughs.) We were asked is that harmful or something, someone said. I'll tell you what's also harmful. The Los Angles Times, I read this morning in the Early Bird, it had, I guess yesterday, the day before, an article that we were going to close -- according to this -- "shuttering nearly 25 percent of its bases." And the headline says, "Big Risk in Cutting Troops." And so today the editorial commenting on an inaccurate article. Therefore, the inaccurate article precedes and followed by an inaccurate editorial. And a whole lot of people out there in the world look at that and say, "My goodness, they're going to shut 25 percent of the bases. They're going to -- it's a big reduction of troops." It's just not happening. We've got a BRAC. We've got a process. We've got a procedure. And someone sits down and writes this and a whole bunch people read it, and then they say, "Oh, my goodness, we're going to cut all these troops and we're going to cut all these bases." We don't know what we're going to do yet. The BRAC process is in law. It's there. It will be properly done. GEN MYERS: Hasn't started. RUMSFELD: And it hasn't started. (...) Q: Mr. Secretary? Q: Mr. Secretary, a follow-up -- RUMSFELD: Just a second. I'm going to try other people. Q: Well, I have a follow-up. RUMSFELD: You didn't hear me. We're going to try other people. Q: But you did a very -- (Cross talk.) RUMSFELD: We either -- we either -- we either adjourn the press conference, or we allow the people up here to decide how many questions everybody gets. Q: That's your call, Mr. Secretary. But a follow-up on -- RUMSFELD: We'll try and come back to you. Q: Understood. RUMSFELD: We'll try to come back to you. Q: Oh! Will you -- RUMSFELD: Do you really not want your colleagues to at least have a crack? Q: He needs to get a follow-up question -- Q: Sure. But based on what you said earlier -- RUMSFELD: Goodness gracious! Q: -- based on what you know about what General Boykin said, do you believe that it's either appropriate or advisable for such a high-ranking member of the Pentagon to make those kinds of remarks in public? RUMSFELD: How could you answer that if you haven't seen the text of what he said? I don't -- Q: But you see -- Q: Is that something you'd want to look at? RUMSFELD: Is -- sure, but is that something that -- does that sound unreasonable, that a person would want to have heard the context of something that somebody said before commenting on it? I think that's perfectly reasonable. Q: But it's something you'd want to look into, in other words. You said you'd want to read -- RUMSFELD: If I said that, then the headline would be "Pentagon looks into" -- Q: There you go. (Laughter.) RUMSFELD: I mean, really. She said it; I didn't. (Laughter.) She's not the Pentagon. (Laughs.) Q: What is -- and the term you used -- would it be helpful to characterize this as "them against us good Christians"? Would it be helpful to do that? Which is -- apparently what was he is doing. RUMSFELD: Well, see, "apparently" works for you. (Scattered laughter.) "Apparently" doesn't work for me. If I start saying, "Well, apparently" this or "apparently" that, then -- and if it's not so, what have I done? I've misserved people, and I don't like to do that. Others can do it, but I'm just uncomfortable doing it. The policy of this government we have stated, the president has stated. He has made a point of visiting mosques. He's made a point of meeting with leaders from that religion, as has -- have many others in the administration. We have said repeatedly that this is not a war against a religion. I don't know how else -- how better a president or an administration could have set a tone on that subject. Q: But what he's saying seems to be contrary to that policy, appears -- RUMSFELD: Okay, "appears." "Seems to be." You do "appears." You do "seems to be." I don't. (Cross talk.) Q: After you talk to Lieutenant General Boykin, can you -- RUMSFELD: Let me go back here. (Cross talk.) Let me go back here. You're next. You want to leave it up in the front row? Q: No. RUMSFELD: Okay. (Scattered laughter.) You want to take it back there? You've got it. Q: The question is the same question everyone was asking. RUMSFELD: Good. Q: What steps are you going to take to look into, investigate -- use whatever word you choose to use -- comments that appear to be in direct contradiction to what this administration's policy has been? Do you plan to look into it, investigate it, talk to General Boykin, all of the above? Q: View the tapes, read the transcripts? Q: (Off mike.) Q: Are you sufficiently intrigued? Q: Why don't you just fire him and then get someone -- RUMSFELD: This is the most bloodthirsty crowd I have ever seen. You're back with Charlie's summary execution. (Laughter.) Q: And the answer is? RUMSFELD: Listen, I have my job. The services have their jobs. They do that type of thing. I don't. And whether or not they will or not depends on what they end up thinking about it. But it's not for me to comment on it. Q: (Off mike) -- the undersecretary of Defense? I mean, that would be become an Army matter because he's an Army general, not an OSD matter? RUMSFELD: Well, I just haven't addressed it. I haven't seen what he said. Q: General Myers, when you wear your uniform -- RUMSFELD: Oh, wait a second! Wait a second! You've had one. Different subject. There he is. Q: In the wake of the bombing of the Baghdad Hotel in Iraq, U.S. officials both here and in Baghdad touted the effectiveness of the Iraqi facility's protection force trained by the United States. But subsequent to that our -- CNN's people in Baghdad tell me that, in fact, the people guarding the hotel were contractors from the DynCorp company. Is that the case? And are any of these Iraqi protection forces actually up and protecting anything at this point? RUMSFELD: Sure. GEN. MYERS: Yes. RUMSFELD: There are site protection Iraqi forces. There are border patrol Iraqi forces. There are some starting in the Army. There are any number of Iraqis in police forces. The total number keeps going up. About a week ago it was 56,000 with another 14 (thousand) in training, up to 70,000 -- 16 in training, 17 in training. And now it's something in excess of that. They have a variety of responsibilities. I would guess that in addition there are contractors hiring Iraqis with -- for the -- to work for the contractor, which would be a different -- still different category. Q: Do you know what the situation was at the hotel? Because it was (projected ?) it was -- RUMSFELD: I don't. Q: -- (one way ?), and then here maybe it was a different -- RUMSFELD: Somebody probably said "seems to be" or "apparently" -- (laughter) -- which I wouldn't do. Q: General Myers, do you know the answer to that? GEN. MYERS: We'll check on that. I understood it, as you first said it, that it was a mainly Iraqi force. We'll have to check on it. Q: Mr. Secretary? RUMSFELD: Pam. (Laughter.) You going to start there? Okay. Q: No, no, no, I'd like to go. RUMSFELD: Because we're running out of time. No, no, we're going to go over here first. It's your suggestion. Q: No. No. Q: General Myers -- RUMSFELD: (Laughs.) Who's in charge of this thing? Q: -- and Mr. Secretary, could you give us your assessment of the threat posed by Muqtada al-Sadr, the young Shi'ite cleric who's -- preaches in Kufa and is in Najaf, and what -- he has a militia; how large that militia is and what kind of threat it poses, and what happened a couple of days ago when there seemed to be a shoot-out in Karbala and his people were involved? And Mr. Secretary, do I take it to understand that you're not going to push through this Boykin thing and you'll leave it to the Army? RUMSFELD: I do not know. I literally have heard about it this morning. I have not read it. I have not seen it. And it seems to me that it is a perfectly fair thing for a person in a position of responsibility to confess that he doesn't know and has not seen it, or not read it and defer -- now, that -- that -- is that unreasonable, Pam? Q: It's not unreasonable, but there's a question of are you going to go back to your office, pick up the phone and call Boykin and say "What's this all about?", are you going to ask for the transcript, are you going to ask to see the videotapes, or are you just going to say "I'm going to leave this to the Army; if they want to do anything about it, they can"? RUMSFELD: I just don't know. I'm going to -- I -- Q: (Off mike.) RUMSFELD: I just haven't even addressed it. Q: Okay. Great. I'm satisfied. Muqtada al-Sadr, please. Threat, his militia. GEN. MYERS: The incident in -- that you referred to seems to be more -- it was -- one Shi'a faction and another Shi'a faction that were having some difficulties. Our problem with Sadr is when -- or with anybody -- and this has been stated early on by -- I think it started with General Franks and reinforced by Ambassador Bremer, is that anybody that incites violence against the coalition, that that's not proper behavior; in fact, that's illegal under the CPA's rules. And so anybody that does that would be subject to some sort of action. And -- Q: And has he been -- is he going to be subject to some sort of action? GEN. MYERS: That all remains to be determined. RUMSFELD: Barbara? Q: Thank you. My question actually is for General Myers, sir, and -- RUMSFELD: Good! (Laughter.) Q: To come back one last time, I guess, to the General Boykin matter, you, in fact, here have indicated -- you said you did have some familiarity with his remarks based on what you had read. GEN. MYERS: I just read the papers, but -- yeah. Q: Well, sir, you've also said here that, quote, "At first blush, it doesn't appear the rules have been broken." GEN. MYERS: Right. Q: So, are you -- based on those two remarks that you've made, do you have, one, any concerns, any concerns, about General Boykin's remarks? Do you now accept -- do you, as a senior military official, believe his remarks, if they're acceptable then for him to make, are they acceptable for all members of the military to make, since what's good for one is good for all? And you said that, you know, you had appeared at places like the National Prayer Breakfast. When you, as the chairman of the Joint Chiefs, appear at religious events, do you express your personal religious views? How do you handle these events? GEN. MYERS: I think that the secretary -- this is really good, Barbara. I think you've worked this very well. RUMSFELD: (Laughs.) GEN. MYERS: But, actually, the secretary covered all of this and -- Q: No, but you made the remarks, "At first blush, it appears" -- GEN. MYERS: You bet. RUMSFELD: I think Barbara's right. You wanted -- (laughter). GEN. MYERS: What part was right? Q: Apparently (she's learned ?) -- RUMSFELD: It seems like, you know. Q: So, sir, I mean, you honestly did make those remarks. GEN. MYERS: Yes. Well -- RUMSFELD: At a recent prayer breakfast, I saw a four-star official of this department give the talk. This year, I believe. GEN. MYERS: Year before. RUMSFELD: Year before. And it was a prayer, and it was his own views. And I think that -- how can one who is participating in what is a religious activity -- a prayer breakfast -- and is asked to speak, give someone else's views? Q: Well, let me ask you this, then. There is a great tradition -- RUMSFELD: It's self-evident. Q: There is a great tradition at these briefings that the briefer takes questions from the news media and provides answers. So, I would like to ask you to take the question, if you will, if you will look at these remarks, come back to us and tell us whether you approve of the remarks he made. RUMSFELD: Just so that Dick, when he takes this assignment from you, Barbara, really knows precisely what it is you said, are you asking -- Q: Does he -- RUMSFELD: I'm going to answer you. Are you asking him to go away and come back and respond directly to what you said; that is to say, does he agree with what he said -- Q: (Off mike) -- RUMSFELD: Just a minute. -- or do you really mean you'd like him to come back and say that he agrees that he had a right to say them? Q: Yes, sir, actually to clarify. RUMSFELD: Which is it? Q: I don't know what everybody else wants to know, but I'd like to know whether you support that General Boykin can -- exercised appropriate, good judgment as a military officer in making those remarks. RUMSFELD: That's a different question. That's a different question. GEN. MYERS: And in what capacity was he speaking. And that's a big issue because -- Q: (Off mike) -- he was in uniform. GEN. MYERS: -- if you're in a public capacity, uniform or not, if you're using -- you know, if you're speaking, if I'm speaking as the chairman of the Joint Chiefs of Staff, there are certain -- because of the Constitution, the way we're organized, and I'm a senior official of the government, I have certain things I can't say. Q: I'd like to know if you believe that he was exercising appropriate, good judgment. GEN. MYERS: And I already answered that. Q: You believe he was. GEN. MYERS: I think these rules get very hazy, and so it is a matter of judgment. And -- Q: (Inaudible.) GEN. MYERS: Well, I'm kind of like the secretary; we have not -- I haven't seen the tapes. I've read what I read in the Early Bird this morning. And I don't -- you know, if that's accurate, I don't know if that's accurate or not. Q: I absolutely don't mean to -- RUMSFELD: You don't want us to rush to judgment, Barbara, do you? Q: No. But that's why I'm asking you to look at the material. And I'm not understanding why both of you are reluctant to say, "I will look at it." Why are neither of you willing to say that? And I don't mean to be rude, sir. RUMSFELD: You're not rude. You're -- (laughs) -- just par for the course. I'll tell you. Barbara, I'll tell you why. Going back to the other question, that if we say we're going to look at it, we're going to review it, we're going to investigate it, we're going to do this, then the headline tomorrow is "General Myers said he's decided to go out and review what some person said." Now, he doesn't know if he wants to yet. He hasn't seen it. He said he hasn't seen it. He would prefer, I think -- and I know I would prefer, as I think I expressed -- that you let it sit. Running out and criticizing somebody from a pinnacle of near-perfect ignorance is not good form. It's harmful to the institution. Q: Sir, with all due respect, you're overthinking this problem. We're asking you a simple question. The general's remarks were either appropriate or they weren't. RUMSFELD: And he said he would look into it. Q: We would like to know what you think. Were they appropriate or not? RUMSFELD: And I do not want a headline tomorrow that says: Investigation of Somebody's Comments. Q: We're not saying -- we're not saying -- RUMSFELD: Shh! Shh! What if we started doing that to every soldier, sailor, Marine, lieutenant, colonel, general who says something? Q: Well, again, this is a senior official from your department. RUMSFELD: I said general. I said general. Yeah. Q: But he's a senior official who works for you. You're his boss. RUMSFELD: That's right. Q: We'd like to know, at your convenience, when you've had a chance to look at it, did he -- was it appropriate or wasn't it? RUMSFELD: We've heard that. Q: Could I give you a little -- RUMSFELD: How many times have we heard that? Q: Could I give you a little unsolicited, friendly advice, Mr. Secretary? (Laughter.) RUMSFELD: (Laughs.) GEN. MYERS: Zip up your pockets. Q: The headline you're going to see tomorrow is going to make you sound indecisive, because the headline you're going to see is -- "What are you going to do?" is the question, "I don't know." Quote, unquote. Now, you don't want that headline, do you, sir? Q: On a 24-hour news cycle. Q: We're not asking you to investigate, but you're asking for you to take a look at the material with -- RUMSFELD: I think if I went back and read the transcript of this, that I would not be uncomfortable with what I've said. GEN. MYERS: Can I -- Q: Can I follow up on al-Sadr? GEN. MYERS: Can I go back for -- Q: Can I follow up on al Sadr? GEN. MYERS: Can I go back for a second to the question you asked earlier about notifying those Reserve units? Q: Way back! GEN. MYERS: It's way back. But it's -- I want to make sure that -- RUMSFELD: It's important. GEN. MYERS: It's important. I think we have notified, for the Operation Iraqi Freedom, two rotation, which starts next spring, late winter, spring, we have notified the major combat units. There are combat support, combat service support units in the Reserve component that probably have not been notified yet because we're still trying to source those. But they will be notified in plenty of time to give them all the notification they need and all the training. Their time to get ready to go is a lot shorter. So we -- for the combat units, they've been notified because they need the long train-up. So we still have some of that to go. But -- RUMSFELD: Ah! So what we said earlier is not completely accurate? GEN. MYERS: That's -- not completely accurate. So that's the answer to that question. And -- Q: Thank you. Q: Just a quick follow-up on al-Sadr. You said it is illegal to incite violence, and sort of left it open there at the end. GEN. MYERS: Right. Q: Does that mean you're investigating him now? I don't know if you'll hate that headline. (Laughter.) But are you looking into what he has done in Iraq? RUMSFELD: It is a subject that's being handled in Iraq by the provisional authority, the Coalition Provisional Authority, and General Sanchez and General Abizaid. Q: Don't you worry about backlash? If you did go in and detain him, that it might create more problems? RUMSFELD: Why would we want to stand up here and speculate on all of that when it's a matter being handled in Iraq by the appropriate people? We'd rather not. Q: You should have gone to law school, you could be rich! (Laughter.) (...) * * * October 2, 2003 - 1:30 p.m. EDT DoD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. MYERS (Participating were Secretary of Defense Donald H. Rumsfeld and Air Force Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff.) (...) Myers: (...) And with that, we'll take your questions. Charlie? Q: Mr. Secretary, without going into details of the investigations into the three Gitmo workers who have been arrested, are you concerned that there's a broad and concerted effort by other countries and perhaps Muslim or terrorist groups to break security at Gitmo? And are any new efforts being made to recruit Arabic translators in the military as a result of this? Rumsfeld: As you suggested in your question, investigations are underway and it's not appropriate for me to discuss them. Historically we know that when you are in a war and you have enemies, that they are going to seek to find ways to advantage themselves and disadvantage you. It's been so throughout history. So it ought not to be any great surprise that from time to time there will be instances where this occurs. Dick, you may want to comment. Myers: And obviously, we had, I'll just say, things in place, counterintelligence capabilities in place to try to prevent this. We have a vetting process and so forth. And I think the fact that some people have been apprehended and alleged with these very serious crimes is an indication of some of the good news. We also, clearly, will look at all our procedures for vetting. SOUTHCOM has a team down there right now because of this to look at the various aspects of that. But it should not be a surprise that in a time of war, that people try to infiltrate this way, and it wasn't. Rumsfeld: Yes? Q: Can -- Q: Apparently there is an extreme shortage -- excuse me -- of Arabic speakers in the U.S. military. Are you moving to address that even more rapidly now? Myers: We were well before this happened. It is a language skill that has been in short supply, certainly probably not just the military, but throughout a lot of government agencies, and we've got to do everything we can do to find people to help. And I -- you know, as I've mentioned before, in my last trip to Iraq there were those two Iraqi-American women from Michigan who were over there to help fulfill that function, essentially as volunteers, who left their families, left their jobs and went to be with one of our battalions. So we're looking for all sorts of ways to fill that -- fill that gap. Rumsfeld: Yes? Q: Can both of you absolutely assure Arab and Muslim members of the U.S. military that they are now not being profiled in any way? And given the fact that you both say this is not a surprise, nonetheless, the first arrest occurred many months ago, in July; the most recent arrest, this month. So clearly the situation has been going on for some time. I'm wondering how it is, then, that you still have confidence in the task force commander down there and why you haven't relieved him or others of duty. Rumsfeld: When something like this occurs, two things happen. General Myers has mentioned both. One is that there are investigations taking place of individuals who are alleged to have been engaged in activities that are other than are proper. And the second is that you -- one reviews their procedures to determine how things are being done and is it possible to do them in ways that you can totally prevent any type of an individual achieving advantages that we don't want them to have, which is very difficult to do, historically. There always seems to be something that happens. But it is something that concerns us. It's something that is being reviewed -- the procedures. And that's the proper way to do it. Q: Sir -- Rumsfeld: I think raising the question you did about profiling is not a useful thing to do. I mean, the fact of the matter is that there are a variety of vetting procedures, and people who happen to be of one religion -- I don't think one has to assume that they have a monopoly on this type of activity. Plenty of people have done things that are from every conceivable religion in this country, and so too people in and out of the service. So I think that that would not be a useful way to approach it. Q: Mr. Secretary, David -- Q: Why is it that you still have confidence in the commander there? Why have you not relieved him of duty? Rumsfeld: I don't know how else I could -- how I could be clearer. What they are doing is reviewing the procedures to determine are there ways that we can do this in a better way. That's what we always do. We -- you learn from experience and you have lessons learned. The implication that every time something happens in the world, you should fire somebody is kind of a -- not a -- kind of a mindless approach, it seems to me -- the implication of it. (...) * * * September 24, 2003 SECRETARY RUMSFELD MEDIA STAKEOUT FOLLOWING SENATE APPROPRIATIONS COMMITTEE HEARING (Also participating was Air Force Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff.) Rumsfeld: We had a very short meeting with the Senate Appropriations Committee, General Meyers, Dr. Zakheim and I did and we’ve answered questions now for -- I don’t know six hours or something -- and it was a good hearing, it was thorough, it was very well attended by the Senators, it covered a great many subjects exhaustively and I’m very pleased that we were able to do it and that we were able to spend that much time and respond to that many questions. Q: Mr. Secretary can I ask you a few questions on another topic about Guantanamo Bay detainees. The first question is do you believe it’s possible al Qaeda may infiltrate the U.S. military and second how do you respond? Rumsfeld: Let’s do one at a time it’s late in the day. There are a lot of reports in the press and we do not have -- I do not have any conclusive information about the circumstance of the individuals that are being speculated about and given the fact that it’s a legal process and I dropped out of law school I think I’ll refrain from opining. Q: Can I ask then how do you respond to the charges that the screening process for people in contact with detainees is too relaxed? Rumsfeld: Clearly throughout the history of mankind, they’ve always been individuals who have gotten through screens and done bad things. They’ve also been people who go through a screen not intending to do bad things and arrive at some point later and decide they’re going to do bad things that are harmful to the intent of the activity. So I guess how do I respond? I respond to the fact that history can repeat itself, what will be the case in this instance we don’t know. Thank you. Oh you want another question? Q: (Inaudible.) Is there an espionage ring there? Rumsfeld: I’ve just answered that question -- I mean just what I said, I’ve just answered that question. Someone else had a question. Q: Can you answer what the vetting process was at the clergy at Guantanamo Bay? Rumsfeld: Do you want to describe the vetting process for clergy? Myers: I’m not sure I can describe it in great detail but I can say this, based on what we do know, and I think General Pace said this earlier this morning, anytime you have allegations like this you always look at your procedures and process that would be natural and normal so we’ll do that. Rumsfeld: Thank you folks. * * * September 16, 2003 1:29 p.m. EDT DOD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. PACE (...) Q: Mr. Secretary, the American general in Iraq who is in charge of the detention center said today that there are six people, prisoners, at the Abu Gharib prison who claim to be American citizens, and two who say they're British. I'm wondering if you can flesh that out any? And what -- would they be transferred to the American court system? Rumsfeld: She is the general that we visited when we were out there -- I don't know, some of you folks were there. Someone just waved the article at me as I was coming down here. The truth is that the folks that we've scooped up have, on a number of occasions, multiple identifications from different countries. They're quite skilled at confusing people as to what their real nationality is or where they came from or what they're doing, and it takes a little time to sort those things out. We don't have -- we do not have additional information, and we likely will not have additional information in the period immediately ahead. (...) Q: Mr. Secretary, the general in charge of prisons in Iraq also said today that some 4,400 prisoners have been classified as security detainees. I was wondering if you could explain, you know, what that is, what their rights are and, really, what the status is of the people who have been picked up in various raids around the country since the end of major combat operations. Rumsfeld: I'll try. And Pete, you can calibrate me. But I'm not quite familiar with that phrase that you quoted, apparently out of a newspaper article, which I should have read. If you think about it this way, our forces go out every day. There are incidents. They pick up some people, for a variety of reasons. It may be because they've stolen a car. It may be because they've shot at somebody. It may be because someone said, "Down the street there's somebody who was involved in thinking about doing something bad," and they get them. Then they sort them. And there are going to be a category that are criminals, that are just bad people, who would be like criminals in our jails, who have done something they shouldn't have done and you want them off the streets. And they eventually would get tried and dealt with in some orderly way by an Iraqi system that would do that. Then there are others that have a value in terms of interrogation, and they are people that you suspect or know to be involved with the Ba'athists or involved with the foreigners coming in as terrorists. And what you want from them is not to punish them for doing that, but rather to extract from them the information they have that can help you track down -- find out who's paying them, find out where their headquarters are, find out how they're operating, and learn so that you can prevent other attacks. It's those two categories. I don't know that that word would fit on. Q: Are they considered something other than prisoners of war? I mean, in the case of in Afghanistan, people were picked up, but they were judged to be people who were combatants detained in the course of the global war on terrorism. Rumsfeld: Right. Q: Iraq is a somewhat different situation. And I guess my question is, what's the legal status of these people? What rights do they have? Gen. Pace: There is a very specific definition. And rather than try to remember verbatim what they are, because they're very important that you get them correct, we'll get you a copy of what those definitions are. And then the definitions are there for the field commanders so they can triage their detainees: those are enemy prisoners of war, those who are detainees in other categories. And there are certain sets of rights and privileges and responsibilities that go with each one of those bins, and we can get that for you. Rumsfeld: I misspoke. There's a third category I should have added. I didn't misspeak, I just didn't finish my thought. There are a group of people in Iraq that were scooped up, who surrendered or for whatever reason who were, as Pete says, triaged. They looked at them and said, well, these people are basically just foot soldiers. And they're in the net, but we don't want them. They're not going to go steal cars, they're not going to go become a foreign terrorist or something, and they're not Ba'athists, they're just foot soldiers. And we let them all go. I mean, we must have let, I don't know, eight, 10, 12 thousand of these people go, as we did in Afghanistan with a lot of people as that triage process took place. So that's the third category. (Cross talk.) Q: (Off mike) -- six people who claim to be Americans and two who claim to be Brits, you weren't too clear -- Rumsfeld: I don't know. I just don't know. I mean, I saw the article. That's all I know. (...) * * * September 11, 2003 DEPUTY SECRETARY OF DEFENSE WOLFOWITZ INTERVIEW WITH BBC BBC: Mr. Wolfowitz, could you say perhaps what the difference is this time, the second anniversary of the September the 11th acts as compared to last year? Wolfowitz: Well, I suppose things are not quite as fresh, but I think it brings home the fact, and I hope it does bring home to the country that this is going to be a long struggle. The President said it almost from the first day that it will be a long struggle. These terrorists had ten years or even decades to build up the kind of threat they have, and September 11th was, I think, a wakeup call for us -- that we couldn't continue just treating terrorism as a manageable evil. Given the scale on which it can threaten us and threaten us directly, we have to deal with it in a much more fundamental way, and that's going to take time. BBC: Do you think perhaps though, there might be more uncertainty this time, on the second anniversary, because of the uncertainties in Iraq, particularly the problems you're having there, than there was last year? Wolfowitz: Well, I'd actually say, I just got a memo from the CIA, an unclassified memo the other day, assessing where we are after two years, or more properly where the al Qaeda network is. Their description was they're reeling from the blows that have been struck against them. The mastermind of September 11th was arrested earlier this year. Probably the mastermind of the Bali attack was arrested very recently. The number of captured al Qaeda people is enormous and they are really struggling. They're on the run. They're trying to show that they're there and that gives us an opportunity to keep them running. BBC: The President has actually now put Iraq central stage rather than al Qaeda in this global war on terrorism -- Wolfowitz: You can't separate them. In fact al Qaeda has put Iraq center stage. I think Zawahiri in his latest tape says that. They're al Qaeda people. They've been in Iraq before the war, they were there during the war, they're there now, and they see any opportunity to kill Americans, to defeat Americans, as part of their war. We need to understand something else, too, which is that there are two fronts in this battle. There's killing and capturing terrorists, but there is also what the President spoke about in the State of the Union message -- building a just and peaceful world beyond the war on terror. A free Iraq, an Iraq of the Iraqi people and by the Iraqi people, for the Iraqi people -- if I can butcher Lincoln's wonderful words -- is something that really will contribute on that second front. Just as an Arab-Israeli peace will contribute on that second front. That's why it's a big job. It's not going to be won with just a battle in Afghanistan or just a battle in Iraq. It's not going to be won just by arresting Khalid Sheik Mohammed, as wonderful as that was, or Hambali, as wonderful as that is. These are networks. These are countries that support those networks. These are wealthy people that finance those networks. We've got to go after them in a very broad way and we can't expect overnight success. BBC: Nevertheless, the Bush Administration and yourself in particular, to some extent, have come under a lot of flack recently because of the troubles, the problems you're facing in Iraq. Do you personally think that in Iraq, as one of the intellectuals I've reported, behind that conflict perhaps, do you think you underestimated the challenges that are being faced? Wolfowitz: No, I don't know what people expected, that suddenly this regime which is responsible for killing a million Muslims, that for 35 years abused and tortured and raped the Iraqi people, would disappear and suddenly everything would be fine overnight? We're what, four or five months into it? People who have been in Kosovo and Bosnia, which was a picnic compared to Iraq, who say that Iraq is already way ahead. BBC: Lots of the skeptics before the war were giving estimates of the kind of commitment, the length of commitment, the size of the commitment which people in the Administration seem to be disparaging. And -- Wolfowitz: Absolutely not. We have said -- excuse me. We said from the beginning this would be a difficult task. We didn't make any estimates of how long it would take or how difficult it would be. War is a difficult and uncertain thing. For a democracy to grow on the level of what that regime left behind is a difficult thing. We've had 200 years to build our democracy and if you go back to our early history it wasn't easy. I'm very close to Indonesia. I was Ambassador there. It's the largest Muslim population of any country in the world. I was ecstatic when they got rid of the old dictator four years ago. And by the way, he was nothing compared to Saddam Hussein. They've been struggling, but they've been making progress. Democracy is a progressive struggle. Look at the countries of Central Europe. They've made enormous progress in ten years, but it does not happen overnight. You could almost say some of the things that didn't happen are miraculous. The Shia have reacted so calmly to absolute horrible acts of butchery in one of their holiest Muslim sites. I could go on with a long list of things that have not happened, but this is going to take time and we need to be patient. BBC: Do you think right now as a result of the global war on terrorism the United States is a safer place than it was in the immediate aftermath of the attacks? Wolfowitz: The CIA came out with this assessment recently that said al Qaeda is reeling, and I think it's an accurate description. The capture of Khalid Sheik Mohammed, who was the mastermind of September 11th, certainly makes it safer. We've captured Hambali who is the mastermind of JI that's responsible for both the Bali bombing and we're pretty sure the Jakarta bombing. That's got to make us safer. Are we safe? Of course not. These folks have been burrowing in for ten years or longer and it's going to take time to root them out, but we have been succeeding in that. We've taken sanctuaries away from them in Afghanistan and now in Iraq. We have 90 countries, including very importantly the United Kingdom, working with us. And it is not just a military task, let's make it clear. There are heroic men and women in our military and your military risking their lives every day, but so are our diplomats, so are our intelligence people, so are law enforcement people. They're working together. BBC: You've talked about people you've captured. What about those 600 or so detainees in Guantanamo Bay who have been in detention for a long time. What is going to happen to them? How soon are they going to be facing tribunals of some description? Wolfowitz: The most important thing is that we're getting intelligence from them. Intelligence that's led us in a number of cases to breaking up other plots and that's our number one goal. Where they're not dangerous, we've been able to release some numbers of them. Where they are dangerous, at least they're not able to do any harm. The next step, of course, is to try to bring them to justice and we're doing that -- BBC: That will happen? Wolfowitz: It has to happen, but it has to happen very carefully and in a way that both ensures our counter-terrorism goals, but also ensures our commitment to justice and civil liberties. BBC: You've described this as a global war on terrorism. The President, as you said, has said it's a long struggle. Isn't there a danger precisely because of the nature of this conflict in calling it global war, that you're never going to be able to declare a final victory? Wolfowitz: You certainly aren't going to declare a final victory if it's -- You're not going to declare a very good victory if you set your goals so low that you're still in danger. We can certainly create conditions where criminals like the ones who did the World Trade Center, the criminals like the ones who flew into this building, the criminals like the ones who killed innocent Australians in Bali, and all these other criminal acts, don't find it so easy to get money, don't find it so easy to find people who show them how to make bombs, don't find it so easy to find sanctuary. If you get it down to a couple of isolated -- you always have the problem of isolated individuals. What makes the network so dangerous is that it is a network and it is a network that gets help from governments. That it is a network that has the prospect, and this is what's really terrible, of getting biological weapons or chemical weapons, or God forbid, even nuclear weapons. Those possibilities we can never eliminate, but we can certainly bring it way down below where it is today. BBC: Finally, in order to get the kind of help, the international help you say you'd like now in Iraq in particular, aren't you going to have to feed to the United Nations or other international bodies, countries, more say, more control over what will happen in Iraq? Wolfowitz: The important thing is to put control over what happens in Iraq as quickly as possible into the hands of the Iraqi people. I think that's something where we're in agreement with the UN. And I think it's going to be a central part of this new resolution. Let's not exaggerate, there are some 30 countries, including prominently the UK, who have troops there already, who understand already the stakes. We'd all be happier with a UN mandate, and I think particularly in the wake in that tragedy in Baghdad, I think we'll be able to get it. It's never been [an issue]. We want as much contribution from other countries as possible. I think our common goal, and I believe it's increasingly understood as a common goal -- and Sergio Viera De Mello gave his life in pursuit of this goal, he made a major contribution to creating that Iraqi Governing Council -- is to let Iraqis have their country back, and back isn't the right word. Have it for the first time in 35 years. BBC: With all the commitments that the United States now faces around the world, which obviously [inaudible], but [inaudible]. Isn't the military and the U.S. Army in particular overstretched? Wolfowitz: We're certainly not over-stretched in any sense that we're not about to make our commitments. It is stretched, there are strains on people. We're trying to reduce those strains. One way to reduce those strains is not just have people deployed because they were there 10 years ago or 20 years. We're examining our whole global footprint with a view to what the real priorities are today. We're in a different era, we're fighting a different war with a different enemy. In some respects our force posture is an inheritance of something that goes back before the fall of the Berlin Wall. So we're taking that kind of re-look but no one should be in any doubt about the ability of the U.S. armed forces to meet the commitments we have. BBC: Thank you. * * * September 10, 2003 -- 1:15 p.m. EDT SECRETARY RUMSFELD REMARKS AT NATIONAL PRESS CLUB LUNCHEON (Also participating was Tammy Lytle, National Press Club president.) Lytle: (Sounds gavel.) Good afternoon, and welcome to the National Press Club. My name is Tammy Lytle, and I'm the Washington bureau chief of the Orlando Sentinel, and president of the National Press Club. I would like to welcome Club members and their guests in the audience today, as well as those of you watching on C-SPAN, or listening to this program on National Public Radio. Please hold your applause during the speech, so we have time for as many questions as possible -- and we do have a lot of questions today. For our broadcast audience, I'd also like to explain that if you hear applause it may be from our guests and members of the general public attending the lunch. The video archive of today's luncheon is provided by ConnectLive, and is available through the National Press Club Web site at www.press.org. For more information about joining the Press Club, contact us at 202-662-7511. Press Club members also can access transcripts of our luncheons at our Web site. Non- members may purchase transcripts, audio and videotapes by calling 1-888-343-1940. (...) Lytle: Last year, at a meeting with representatives of several defense think tanks, you said you'd like to discontinue a number of weapon systems, including the V-22 Osprey and the Army Stryker system. These projects are in the new budget. Have you changed your views? Rumsfeld: That also is false. I didn't say that. I said it about the Stryker, and the Stryker has been ended. The V-22 is not something that I said should be ended, I said it was something that had had a troubled past; it was currently under a very rigorous testing program to see if it's safe. And a number of people have been killed in that aircraft. Since that time, the aircraft has done quite well in its tests. And to the extent it continues to pass through these various test hurdles, my guess is it would go forward, because it is something that the Marines and the Special Operation Forces are quite interested in having, and it's currently in the budget. Lytle: Given that you've just returned from Afghanistan, can you tell us, is the Taliban regrouping there? Rumsfeld: (Pause.) Oh, I'm sorry. I misspoke myself. I was thinking of the Crusader when I said that the Stryker is cancelled. It's the Crusader we cancelled. The Stryker is doing fine. The Stryker is in train. We're planning to have some six brigades of Strykers. And -- did this say Stryker? It did. I never -- never in my life have I said we wanted to cancel the V-22 or the Stryker. (Light laughter.) Where do you get these questions? (Laughter.) Lytle: (Laughs.) Rumsfeld: You're really reaching down in the duffel bag here, Tammy. (Laughter.) Whoever sent me this note, thank you. Lytle: And the Taliban -- Rumsfeld: Ah, the Taliban. Yes. The Taliban have been trying to re-form in various parts, the east and the south of Afghanistan. It's hard to get good, hard intelligence as to the numbers. But the numbers I have heard and seen have been in the neighborhood of somewhere between a hundred and 200, which is fairly large number for Taliban forces, given the current situation. As they formed, they were found and discovered. And as they were found and discovered, they were attacked. Interestingly, they were attacked by a combination of coalition forces and Afghan national army forces that we had trained and deployed. And they were working in close contact. The day I was in Afghanistan, two or three days ago, I went to Gardez and I met with a Special Forces group that had just come in from that battle. And they had been -- they were very pleased at the success that the U.S. forces had, but they were particularly pleased with the conduct of the Afghan national army forces, and felt that they counted, that they had been successful with respect to a relatively large number of Taliban that they had captured or killed. So to the extent they don't re-form, it's very hard to find them. To the extent they do re-form, we have the capability -- come back together, we have the capability in both Afghanistan and in Iraq to deal with them. And, in fact, it's an advantage for the forces, because they can locate them and they can address them in a way that discourages them. Lytle: Could you clarify the situation regarding military tribunals? Will they happen? Rumsfeld: I don't know. I think so. If you think about it, we have this problem: A number of these people were unlawful combatants. They were people that were picked up on the battlefield in Afghanistan, and they were brought to Guantanamo Bay. The purpose was not to punish them -- that is to say, take them before a court, try them, send them to jail because they had been bad and were trying to kill Americans and Afghans. The purpose was if they are terrorists, which they were -- they had been trained in other countries and in that country, and they were out there fighting against the coalition, and the purpose, as in most wars, was to get them off the battlefield; to keep them from going back and fighting again and killing people. It isn't like a car thief, where you arrest them and you do something to him to explain to him that it's not a good idea for him to steal cars, and we prefer he not do that, and therefore, you have to go to jail for a year or two and stop doing that, then we'll let you out and try you again. In this case, if you start letting terrorists out -- our interest is in not trying them and letting them out; our interest is in, during this global war on terror, keeping them off the streets. And so, that's what's taking place. It's the president's decision as to whether or not he wants to have a military commission actually take an individual and take them before a commission and address them in that process of trying them. He has not done that yet. We have a very distinguished group of lawyers, Republicans and Democrats from past administrations. They've been advising us and assisting us as we go forward on this process. We're prepared to do it in the event the president decides that there's somebody that for some reason he believes is an appropriate candidate for a commission. But thus far, we have the apparatus arranged, ready, and we have a very fine group of advisers as to how to do it in the event it has to be done. But for the moment, we don't have any candidates. (...) * * * X-Originating-IP: [204.34.240.181] From: "Hart, Pamela L. LTC (L)" To: cbgittings@pacbell.net Subject: FW: Juvenile Detainees at GTMO Date: Sat, 23 Aug 2003 11:23:42 -0400 X-Mailer: Internet Mail Service (5.5.2653.19) Mr. Gittings, Concerning the General's comments that appeared in the news recently: I will not publish an accompanying news release about the forthcoming recommendation to transfer the juvenile detainees. MG Miller will make the recommendation soon but it has not been sent forward to the Pentagon as yet. Once the recommendation reaches the Office of the Secretary of Defense, there is no prescribed timeframe that will confirm when the decision goes into action. Secretary Rumsfeld and Deputy Secretary Wolfowitz who is the official appointing authority regarding the detainee, will make the final decisions on any transfers. I can tell you there are three juvenile male detainees here between the ages of 13 to 16. As a matter of policy, however, we do not discuss their individual nationalities or any details about their identities. Regards, LTC Hart LTC Pamela Hart Spokesperson/Public Affairs Officer Joint Task Force Guantanamo PH: 011.53.99.5293 pamela.hart@us.army.mil hartpl@jtfgtmo.southcom.mil http://www.nsgtmo.navy.mil/JTFgtmo/ -----Original Message----- From: Charles Gittings [mailto:cbgittings@pacbell.net] Sent: Friday, August 22, 2003 9:59 PM To: Public Affairs Office JTF-GTMO Subject: Juvenile Detainees at GTMO Dear PAO Staff, JTF-GTMO, Reuters today issued a report which quotes Lt. Col. Hart to the effect that General Miller will soon make an official recommendation to release the juvenile detainees in the custody of JTF-GTMO. I have some questions about this matter, understanding in advance that you may not be able to answer some or all of them for reasons of policy or procedure. 1) Is there an official press release and/or transcript concerning Lt. Col. Hart's comments? If so, may I get copies and/or links? 2) How soon will Gen. Miller be filing his recommendation? 3) Who will decide on the recommendation once it is formally issued? Deputy Secretary Wolfowitz? 4) How long is the decision making process expected to take? 5) Are you able to release any information as to the number of juvenile detainees, their ages, nationality, or identities at present? Thank You, Charles Gittings Oakland, California cbgittings@pacbell.net +1-510-547-3408 * * * No. 541-03 IMMEDIATE RELEASE July 23, 2003 DoD STATEMENT ON BRITISH DETAINEE MEETINGS The General Counsel of the Department of Defense, Hon. William J. Haynes II, met Monday and Tuesday with the Attorney General of the United Kingdom, Lord Peter Goldsmith, to discuss and review potential options for the disposition of British detainee cases. The discussions were productive and led to a number of assurances from the U.S. about the military commission process. Among other things, the U.S. assured the U.K. that the prosecution had reviewed the evidence against Feroz Abbasi and Moazzem Begg, and that based on the evidence, if charged, the prosecution would not seek the death penalty in either case. Additionally, the circumstances of their cases are such that they would not warrant monitoring of conversations between them and their defense counsels. Yesterday’s visit follows a July 18 decision by President Bush to discuss and review potential options for the disposition of British detainee cases and not to commence any military commission proceedings against British nationals pending the outcome of those meetings. Individual enemy combatants held by the U.S. in the war on terrorism will continue to be assessed on a case-by-case basis based on their specific circumstances for an appropriate disposition of their case. To date, no enemy combatants have been charged for trial before a military commission. No military commission proceedings will begin against any British nationals until after further discussions planned for next week. Discussions with Australian legal representatives are ongoing and no military commission proceedings will begin against any Australian nationals until completion of those discussions. * * * No. 540-03 IMMEDIATE RELEASE July 23, 2003 DoD STATEMENT ON AUSTRALIAN DETAINEE MEETINGS The General Counsel of the Department of Defense, Hon. William J. Haynes II, met Monday through Wednesday with an Australian legal delegation, led by Minister of Justice Chris Ellison, to discuss and review potential options for the disposition of Australian detainee cases. The discussions were productive and led to a number of assurances from the U.S. about the military commission process based on the principles of fairness contained in President Bush's Military Order of November 13, 2001, and Military Commission Order No. 1. Those principles include the presumption of innocence, proof of guilt beyond a reasonable doubt, representation by defense counsel, no adverse inference for choosing to remain silent, and the overall requirement that any commission proceedings be full and fair. Among other things, the U.S. assured Australia that the prosecution had reviewed the evidence against David Hicks, and that based on the evidence, if that detainee is charged, the prosecution would not seek the death penalty. Additionally, the circumstances of his case are such that it would not warrant monitoring of conversations between him and his defense counsel. This week's visits follow a July 18 decision by President Bush to discuss and review potential options for the disposition of Australian detainee cases and not to commence any military commission proceedings against Australian nationals pending the outcome of those meetings. Individual enemy combatants held by the U.S. in the war on terrorism will continue to be assessed on a case-by-case basis based on their specific circumstances for an appropriate disposition of their case. To date, no enemy combatant has been charged for trial before a military commission. No military commission proceedings will begin against any Australian nationals until after further discussions planned for the near future. Discussions with British legal representatives are ongoing and no military commission proceedings will begin against any British nationals until completion of those discussions. * * * Thursday, June 12, 2003 SECRETARY OF DEFENSE RUMSFELD AT NATO HEADQUARTERS (...) Finally, I discussed the U.S. concern about the lawsuit that’s recently been filed in a Belgian court against General Tom Franks and against Colonel Brian McCoy alleging that they were responsible for war crimes in Iraq, as well as suits that have been filed here in Belgium against former President Bush-- George Herbert Walker Bush as opposed to George W. Bush-- General Norman Schwarzkopf, Vice President Cheney and Secretary Powell. The suits are absurd. Indeed, I would submit that there is no general in history who has gone to greater lengths than General Franks and his superb team to avoid civilian casualties. I am told that the suit against General Franks was effectively invited by a Belgian law that claims to gives Belgian courts powers to try the citizens of any nation for war crimes. The United States rejects the presumed authority of Belgian courts to try General Franks, Colonel McCoy, Vice President Cheney, Secretary Powell and General Schwarzkopf, as well as former President Bush. I will leave it to the lawyers to debate the legalities. I am not a lawyer. But the point is this. By passing this law, Belgium has turned its legal system into a platform for divisive, politicized lawsuits against her NATO Allies. Now, it’s obviously not for outsiders, non-Belgians, to tell the Belgian government what laws it should pass. And what it should not pass. With respect to Belgium’s sovereignty, we respect it. Even though Belgium appears not to respect the sovereignty of other countries. But Belgium needs to realize that there are consequences to its actions. This law calls into serious question whether NATO can continue to hold meetings in Belgium and whether senior U.S. officials, military and civilian, will be able to continue to visit international organizations in Belgium. I would submit that that could be the case for other NATO Allies, as well. If the civilian and military leaders of member states can not come to Belgium without fear of harassment by Belgian courts entertaining spurious charges by politicized prosecutors, then it calls into question Belgium’s attitude about its responsibilities as a host nation for NATO and Allied forces. For our part, we will have to consider whether we can allow senior uniformed and civilian officials to come to Baghdad . . . to Belgium, I mean. (laughter) Because of the charges flowing out of the activities in Baghdad, which of course would involve other coalition nations as well. Certainly until this matter is resolved we will have to oppose any further spending for construction for a new NATO headquarters here in Brussels until we know with certainty that Belgium intends to be a hospitable place for NATO to conduct its business, as it has been over so many years. And with that, I’ll be happy to respond to questions. (...) * * * No. 485-03 IMMEDIATE RELEASE July 3, 2003 PRESIDENT DETERMINES ENEMY COMBATANTS SUBJECT TO HIS MILITARY ORDER The President determined that six enemy combatants currently detained by the United States are subject to his Military Order of November 13, 2001. Today’s action is the next step in the process that may lead to military commissions. The President determined that there is reason to believe that each of these enemy combatants was a member of al Qaida or was otherwise involved in terrorism directed against the United States. Military Commissions have historically been used to try violations of the law of armed conflict and related offenses. Offenses that may be charged include those listed in the Crimes and Elements for Trials by Military Commission (Department of Defense Military Commission Instruction No. 2). Many considerations are used in selecting cases -- relevant factors include: 1) the quality of evidence, 2) the completeness of intelligence gathering and, 3) our desire to bring closure to individual cases. There is evidence that the individuals designated by the President may have attended terrorist training camps and may have been involved in such activities as: financing al-Qaida, providing protection for Usama bin Laden, and recruiting future terrorists. The Department of Defense is prepared to conduct full and fair trials if and when the Appointing Authority approves charges on an individual subject to the President’s military order. Since no charges against any of the detainees have been approved, their names will not be released. * * * No. 459-03 IMMEDIATE RELEASE June 27, 2003 REVISED: SECRETARY RUMSFELD DELEGATES APPOINTING AUTHORITY Secretary of Defense Donald H. Rumsfeld has issued Military Commission Order No. 2 delegating Appointing Authority responsibility to Deputy Secretary of Defense Paul Wolfowitz. To date, the President has not determined anyone to be subject to trial by military commission. The Appointing Authority makes the decision whether to refer charges to a military commission if and when the President determines an individual is subject to trial by military commission. The Appointing Authority would also appoint the commission and resolve issues arising during commission proceedings. * * * Wednesday, June 4, 2003 DoD BRIEFING ON POLICY AND INTELLIGENCE MATTERS ( Participating were Douglas J. Feith, under secretary of defense for policy, and William J. Luti, deputy under secretary of defense for special plans and Near East and South Asian affairs. ) Feith: Good morning. Bill, do you want to join me up here? The reason that we were interested in meeting with you this morning is to help lay to rest some stories that have been circulating about the Defense Department that are not true and are beginning to achieve the status of urban legends. So we thought we would try to help straighten the record out. There are four issues that I think I'd like to address. One is this so- called, or alleged intelligence cell and its relation to the Special Plans Office. Secondly is the issue of intelligence judgments regarding Iraqi weapons of mass destruction. Third is the department's alleged intent to topple the Iranian regime, about which there have been a number of inaccurate news stories. And finally, our policy and the Defense Department's views on the organization called the MEK, the Mujahedeen e Khalq, an Iranian terrorist group. And I'd like to start with a review of some of these items, and then my colleague, Bill Luti and I will be happy to take some of your questions. On this so-called intelligence cell, which has been hyped in various publications as a Department of Defense effort to create a unit that would somehow substitute for the CIA, I'd like to give you what actually is the story. After the September 11th attack, I identified a requirement to think through what it means for the Defense Department to be at war with a terrorist network. This was an unusual circumstance-- warfare has traditionally been against nation states-- and we understood that it presents a number of peculiar conceptual challenges to be at war with a network, or as I've described it as a network of networks of terrorist organizations. So, I asked for some people to think through-- first of all, to review the large amount of intelligence on terrorist networks, and to think through how the various terrorist organizations relate to each other and how they relate to different groups that support them; in particular, state sponsors. And we set up a small team to help digest the intelligence that already existed on this very broad subject. And the so-called cell comprised two full-time people. This is why you see that I think it's almost comical that people think that this was set up as somehow an alternative-- (Chuckles.)-- to the intelligence community or to the CIA. I mean, it was two full-time people. They drew from time to time on assistance from a few others. I mean, altogether, we're talking about four people, five people, you know, at one time or another, doing the work. The team began its work in October of 2001. It was not involved in intelligence collection. Rather, it relied on reporting from the CIA and other parts of the intelligence community. Its job was to review this intelligence to help digest it for me and other policymakers, to help us develop Defense Department strategy for the war on terrorism. And as I said, it looked at these interrelationships among terrorist organizations and their state sponsors. It did not confine its review to Iraq or al Qaeda. I mean, it was looking at global terrorist networks and the full range of state sponsors and other sources of support for terrorist groups. Its main conclusion was that groups and states were willing to cooperate across philosophical, ideological lines. So, it came up with the-- a number of interesting connections of where, for example, Sunni and Shi'a groups cooperated, or religious- based groups cooperated with secular groups or states. And so it showed that we cannot simply assume that the only cooperation that existed in the world among terrorist groups and their sponsors was on some kind of pure ideological or philosophical lines. I mean, this is not that shocking for anybody who remembers that, for example, the Nazis and the Soviets had a strategic alliance also. But it was a very important point, because there was a lot of debate in government circles and in academic circles about whether these different groups do in fact cooperate across these philosophical lines. I think what has become the focus of a lot of the press stories about this is the fact that in the course of its work, this team, in reviewing the intelligence that was provided to us by the CIA and the intelligence community, came up with some interesting observations about the linkages between Iraq and al Qaeda. And when they did, and they brought those to the attention of top- level officials here in the department, and we arranged for a briefing of these items to Secretary Rumsfeld, he looked at that and said, "That's interesting. Let's share it with George Tenet." And so some members of the team and I went over, I think it was in August of 2002, and shared some of these observations. And these were simply observations of this team based on the intelligence that the intelligence community had given to us, and it was just in the course of their reading it, this was incidental to the purpose of this group. But since they happened to come up with it and since it was an important subject, we went over, shared it with George and people at the CIA. My impression was it was pretty well received, and that was that. It was one meeting. There have been a number of misperceptions about this team. One of them is that, there have been several press articles that have identified this team with the Special Plans Office in Dr. Luti's organization. Dr. Luti is the deputy under secretary of defense for-- let me get it right-- Luti: Special Plans and Near Eastern/South Asian Affairs. Feith: Special Plans and Near Eastern/South Asian Affairs. Luti: Twenty-seven countries. Feith: And this intelligence cell-- alleged-- which is this team that did this particular project, which was not an intelligence project-- it was a matter of digesting other people's intelligence products-- this team is not-- was not part of that office; wasn't related to it. In fact, the team stopped doing its work-- basically, once we had that meeting with the CIA and the team had given us a report on these terrorist network interconnections, there was no team anymore. And they stopped doing their work before the Special Plans Office, if I have it straight, was actually created within Dr. Luti's organization. Q: (Off mike.) Luti: October of 2002. We had-- a decision was made in August of 2002 to reorganize, and Doug will explain to you why. But those are the dates. Q: And that team stopped in August 2002? Feith: Roughly. The-- (Chuckling.)-- and the Special Plans Office was called Special Plans, because at the time, calling it Iraq Planning Office might have undercut the-- our diplomatic efforts with regard to Iraq and the U.N. and elsewhere. We set up an office to address the whole range of issues regarding Iraq planning. Luti: And if I may, it's clear to make a distinction; it's a policy planning office, just like-- in my shop, I have essentially three directorates: A Middle East directorate with a handful of people working, a South Asia directorate with a handful of people working, and I used to have a Northern Gulf directorate, which we expanded to meet the incredibly stepped-up requirements in the summer and fall of last year to deal with Iraq. We needed help, we needed people. So, we expanded it. And that's what I do-- policy planning. Feith: So, I mean, there have been some people who have kind of concocted a goulash of snippets about this team that was working on the terrorist interconnections and the Special Plans Office, and they mixed them up when there's no basis for the mix. As I mentioned, this team that was doing the terrorist analysis was not focused on Iraq. I mean, they focused-- they did not have a narrow focus. It was a global-- it was a global exercise, even though this particular report that-- briefing, I should say, that was prepared and given to the CIA focused on Iraq and al Qaeda because, as I said, that kind of fell out incidentally from the work that they were doing on global terrorist networks. Third, there are some press accounts that have tied the team to what is called the intelligence collection program, which was a program for debriefing Iraqi defectors over recent years. And in fact the team had nothing to do with that program or the transfer of the management of that program from the State Department to the Defense HUMINT [Human Intelligence] Service. And the-- with regard to this intelligence collection program, the reports that were obtained from the debriefings of these Iraq defectors were disseminated in the same way that other intelligence reporting was disseminated, contrary to one particular journalist account who suggested that the Special Plans Office became a conduit for intelligence reports from the Iraqi National Congress to the White House. That's just flatly not true. And in any event, that was a Defense Intelligence Agency/Defense HUMINT Service function, and not-- it was not anything that was run out of the policy organization. So again, this is part of the goulash of inaccuracies. And then finally there were some accounts that asserted that the team dealt with the weapons of mass destruction issue, and there have been a number of stories in recent days that suggested that this was a team that somehow developed the case on Iraqi weapons of mass destruction, and it didn't-- I mean, it-- and that is also flatly not true. The team was focused on terrorist networks; it was not focused on weapons of mass destruction. Now on this issue of intelligence judgments-- now to get to my second topic, the intelligence judgments on Iraqi weapons of mass destruction, Secretary of State Powell talked about our intelligence sources when he gave his presentation on February 5th to the U.N. Security Council. He played tapes of Iraqis who were discussing-- these were intercepts of Iraqi communications in which there were discussions of the concealing of weapons of mass destruction from U.N. inspectors. Secretary Powell cited the reports of witnesses and informants. He discussed the U.S. government's knowledge of Iraq procurement efforts in the weapons of mass destruction field. And he cited the old U.N. inspectors’ organizations reporting on weapons of mass destruction, for which Iraq had never accounted adequately. And these judgments were based on intelligence that-- intelligence reports and intelligence analysis that not only went back years but predated this administration. In February 1998 President Clinton said, "Iraq continues to conceal chemical and biological weapons and the missiles that can deliver them, and Iraq has the capacity to quickly restart production of these weapons." Secretary of Defense Cohen, in-- also in 1998, said, "I believe that Iraq is developing them, because they've used them in the past. The acquisition of these types of weapons does make Saddam Hussein a major player in the region. He's concerned about the power, and the opportunity to have nuclear or biological or chemical weapons gives him the status and the ability to project that power to intimidate the neighbors in the region." And there are similar quotations from Vice President Gore and others. The-- it-- from our perspective, it's pretty clear that the intelligence community's judgments concerning Iraqi weapons of mass destruction did not undergo a major change between the Clinton and Bush administrations. And that's -- without regard to the issue of whether the officials from the previous administration agree or disagree with the policies of this administration about how to deal with the problem, the basic intelligence reports did not undergo any kind of change from the previous administration to this one. On the third point that I raised, on this issue of reports about the department's attitude toward toppling the Iranian regime, there was a recent Financial Times article that grossly misrepresented Secretary Rumsfeld's views on Iran. It is true that the United States government wants Iran to turn over all al Qaeda members currently in Iran and to comply with its obligations under the Nuclear Nonproliferation Treaty. But as for the future of the Iranian government, that's a matter to be decided by the Iranian people. And our policy is what President Bush has said: that we see Iranian citizens risking intimidation and death as they speak out for liberty and human rights and democracy. Iranians, like all people, have a right to choose their government and determine their own destiny, and the United States supports their aspirations to live in freedom. And everything that we have done and that we support in this department is consistent with and captured in that statement by the president. And it's not good to be reading inaccurate descriptions of what our policy is on Iran. A sub-point on that is the last point that I wanted to address in these opening remarks, and that is the issue of the policy toward the MEK, the Mujahedeen e Khalq. The United States has designated the MEK a foreign terrorist organization; it is on the State Department's list of such organizations. Accordingly, we demanded the surrender of MEK forces in Iraq. That demand is being complied with, and the MEK forces are being disarmed. Now, earlier in the war, a U.S. commander on the ground reached a temporary cease-fire with the MEK which he justified on the grounds that it enabled our forces to contain the MEK forces in cantonment areas, while not having to fight against them or to actively disarm them. And it was also a way of making sure that these MEK forces were not going to get into a clash with the pro-Iranian forces. There were a number of different groups floating around in Iraq that were not under our control, and we didn't want them clashing in a way that could interfere with our operations. Now, because of that local decision to work out this temporary arrangement, there were some people who believed that we were giving the MEK special treatment, and there were even news stories that said that the Defense Department planned to use the MEK as a Northern Alliance-type organization-- making the analogy to Afghanistan-- as a Northern Alliance-type organization against the government of Iran. There never was such a plan. We will not do that. We view the MEK as a terrorist organization and we are treating it as such. And with that, I will be happy to take your questions. Q: On Iran, you made the point that the administration supports the aspirations of the Iranian people. The question seems to be how far are you going-- that's important to what kind of support you're talking about, and people are speculating that you could go as far as supporting by either actively undermining the existing government or by taking military action. And can you define exactly how far you would go? Feith: Our policy is to urge the Iranians, as the president has done publicly and as other top administration people have done, to urge them to stop their support for terrorism-- Iran is one of the world's leading supporters of terrorist organizations-- to comply with their obligations under the Nuclear Nonproliferation Treaty and stop the development of nuclear weapons. And we know that there is widespread unhappiness in the country about the failures of the clerical regime. And the president has expressed his sympathy with the aspirations of the Iranians to have a free country. And that's our policy. And that's what we're willing to say and do. And there are a lot of countries in the world who are coming increasingly to understand the dangers that this state support for terrorism and the development of nuclear weapons by countries that are not supposed to be developing them-- that represents the international security. And so, we're getting increasing international support for this kind of an approach. And we hope that the Iranians will change their policies. Q: [And now] to the intelligence, one of the more puzzling aspects of all of this for a lot of people is the Niger letter, and why U.S. officials seem so willing to accept and promulgate what appears to people who were knowledgeable about it to have clearly been a forgery. Can you explain-- and there's been a couple of congressional requests for information about that. Can you shed some light on that? Feith: I mean, I'm aware of it in general. I don't know how much light I could shed on it. Luti: No, no, I can't either. No. I believe that that is an issue between the source of the document and the analysts in the government in the intelligence community, and they're sorting that out. We're not particularly as policy people involved in that process. Q: I want to challenge your assumption here that the intelligence has remained consistent throughout the '90s. This administration, starting in September, painted the picture of an imminent threat from weapons of mass destruction, yet the DIA-- this is-- and this is something that U.S. News and World broke [a past sentence of] of this week, said in September, there's no reliable information on whether Iraq is producing and stockpiling chemical weapons. Just square the circle. You say the intelligence has been consistent, but yet you painted a much more imminent threat than anybody in the Clinton administration did during the '90s. Feith: I think what we-- what we have been stressing is that September 11th highlighted the special dangers that come from the connection of weapons of mass destruction to state sponsors of terrorism. The September 11th attack forced a lot of people to rethink the dangers of both terrorism and weapons of mass destruction in light of the possible connection between the two. And the willingness of terrorist organizations to do as much damage as they possibly can was something that was driven home, you know, powerfully, by the September 11th attack. And the recognition that if a terrorist organization, perfectly willing to do as much damage as it possibly can, could get its hands on weapons of mass destruction from one of the state sponsors that is otherwise providing support to it, then the possibility exists, the danger exists that you could have an attack that would kill many times the number of people that were killed on September 11th. So that caused a reassessment of the nature of the threat and the risk. That's a different issue from the analysis of whether one believes that the Iraqis possessed the capability to use chemical weapons, biological weapons; whether they had a program that was aiming toward the development of nuclear weapons. On the basic question of whether the Iraqis had the capability, I don't think there was any kind of major discontinuity in the analysis over the years from the intelligence community. Q: Well let me push back then, because Rumsfeld, starting in September, and the president talked about that they had a capability. They had-- they produced-- they have weapons; they have this; they have that. That was a lot stronger than the Clinton people or the intelligence community publicly talked about in the '90s, and your DIA is even saying this now in September of '02, raising questions about we don't have reliable information. Feith: As I-- I mean, I quoted from-- President Clinton said, in 1998, Iraq continues to conceal chemical and biological weapons. And the U.N., in its report, I believe it was in January of '99, when UNSCOM [United Nations Special Commission] shut down its operations, said that there were large quantities of chemical and biological weapons materials that were unaccounted for. And this was precisely the point that President Bush stressed in-- and I don't remember whether it was in his U.N. speech or his State of the Union speech, but he made a major focus on what the UNSCOM report from 1999 said about chemical and biological weapons in Iraq. So, I mean, this is-- this was not news. I mean, a number of the recent stories have suggested that the basic question of whether the Iraqis-- whether there was intelligence to support the conclusion that the Iraqis had these weapons, there have been a number of stories that have suggested that this whole issue arose in recent months, and it didn't, it went back years. Q: I think the question is that the issue-- you put a finer point on it than in past years and you raised the bar in terms of what Iraq allegedly had, and now we're seeing that they might not have had what you allegedly said they did. Feith: Well, we'll see. We'll see what they had. But the main thing that I think was different in the way this administration talked about the issue from the past, were the conclusions, the strategic conclusions that we came to as a result of the September 11 attack, and the particular strategic problems that arise from a recognition that you can't rely to the extent that we did in the past, or that at least some people did in the past, you can't rely on deterrence to deal with the problem of weapons of mass destruction in the hands of state sponsors of terrorism because the possibility that those state sponsors might employ chemical weapons or biological weapons by means of a terrorist organization proxy means that they could use the weapons without leaving their fingerprints, as it were, on the attack. And that meant that the traditional deterrence approach was not adequate. Q: If I could just go back, Mr. Secretary, and look at the relationship-- I think three key relationships you have tried to-- (inaudible)-- I think; the one between the intelligence team and the special plans office, the intelligence team the Iraqi exile project, and the intelligence team and the assessment on weapons of mass destruction. Let me make sure I understand this now. The team is going to put out a report that's going to become a part of a larger body of material that policymakers, including those in the special plans office, would look at, right? So it's not to say while they may not have been resident in the same office, I would-- it certainly sounds like special plans would be aware of and would-- and have available those reports that they make, right? I mean, they would-- Feith: If the-- yeah, I mean, if the connection is that a team that is analyzing a policy problem by looking through a lot of intelligence is going to generate a briefing that is going to come to the attention of various offices-- I mean, that's true. That connection exists. There were various offices that were informed by, you know, that briefing. Q: And given the importance that this team had within your office, would it not also be logical that the special plans office would give its-- whatever reports came from the team special significance? And this is something you're looking at, you created especially to look at the intelligence in a different way-- Feith: No, no, you see, it was not created to look-- there is this idea-- again, there have been a number of press stories that have said that the reason this team was created was because we wanted the intelligence looked at in a different way. That's not true. It was-- what happened was, on September 11th we were attacked, and the president announced we are in a global war against terrorism. And the office that's responsible for strategy is my office. And we asked ourselves: What does it mean to be at war against terrorism? What-- and how is this different from previous wars conceptually? How does one develop a strategy for fighting an international network? So it just was kind of an obvious thing to do. I asked for some people to review the existing intelligence on what do we know about the nature of these terrorist networks. This was not because we were dissatisfied with, as some of the news stories have suggested-- it's not because we were dissatisfied with the intelligence or the intelligence analysis. It was because we needed people looking at that intelligence, good intelligence produced by the CIA and other agencies-- we needed people looking at it from the point of view of what do we need to understand from this intelligence about these connections to allow us to develop a Defense Department strategy for the war on terrorism. Q: That's looking at intelligence in a different way, with a different perspective. Feith: Well-- but I mean, not as-- Q: (Off mike.) Feith:-- but it's been portrayed as this was done-- Q: They did not find their own intelligence. They took existing intelligence, given this new perspective, given this new focus you've asked them to address, and said, "Here. Here's a new way of looking at it." Right? That's what you asked for. Feith: You could say that, except the way it-- Q: All right. Let me move on to my second point, then. Feith: Well, let me just say, the way it's been portrayed in a number of stories was that this was set up because there was dissatisfaction with what the intelligence community had done. That's not true. It was set up because we had a different function to be performed; we had a different mission to be performed. We had to develop a strategy to fight the global war on terrorism. And so, we needed to take this material and review it in that light. Q: Point two, on the Iraqi exile project. While these guys didn't run, obviously, the interrogations or anything, they obviously took the information that was provided for them from those interviews, right? And they looked at it and they put it in a larger context, as well. That's part of the existing intelligence, no? Part of their definition? Luti: No, Eric (sp), who took those reports and looked at them? Q: The team. Luti: No, no. Q: They were ignorant of that when they did their analysis? Luti: No, the information collection program was removed from the State Department and deposited into Defense HUMINT Service to ensure that proper tradecraft was used, accounting procedures. And it was a program to interview Iraqi defectors. Q: Right. Luti: The INC would remove them from Iraq to a different location. DHS [Defense HUMINT Service] teams would go to that location, debrief them according to the tradecraft-- all the professional tradecraft that's required-- and then they would write a report. Those reports would go into the intelligence system, writ large-- Q: Right. And that would be one of the many things that this team would look at, right, and draw upon for your-- for the tasks that they were assigned, correct? Feith: There were lots [of customers] throughout the building-- Luti: Many customers, not only-- Q: Were those reports given any extra weight or significance by this team that you're aware of? Luti: The information collection program was moved into the Defense HUMINT-- Q: That's a mechanical issue. I'm asking about the report that they produced, giving the fresh information that Iraqi exiles are providing. And that's now going into the system. Among all of the other things that they're going to look at, does the team hone in on these type of reports as a special source and give them that hint of added significance, that you're aware of? That's essentially what the accusation-- Luti: No more than-- in fact, I'm trying to remember when-- Q: (Inaudible.)-- you weigh it-- the intelligence that is coming from defectors was given unusual and disproportionate weight among all the other sources. Luti: I don't know. Q: Do you agree with that? Luti: No. I don't know what the basis of that charge-- no, no, there's been no basis for that. None whatsoever. Q: But the third point was you said there's no connection between this team and WMD. But you've just said that the relationship between terrorists and terrorist states and WMD has been-- is-- that was-- demonstrated how they-- Feith: No, I didn't mean no connection between the team and WMD. If I said that, I misstated it. What I said is it was not the purpose or the special focus of this team to look at WMD. Its focus was to look at terrorist networks and the connection. Q: (Inaudible.)-- terrorist networks, and you've just explained how what 9/11 demonstrates is that terrorist networks and WMD and their acquisition thereof are importantly intertwined. And so, how do you not look at WMD when you're looking at terrorist networks in the case of Iraq? Feith: No, I didn't mean to suggest that they didn't look at WMD at all. I'm saying that the mission that this team was given was not: Look at WMD. The mission that they were given was: Help us understand how these different organizations relate to each other and to their state sponsors. Q: That may not have been their stated mission, but certainly that's one of the things they found, right? Feith: I imagine-- yes, I imagine that they looked at WMD along with other stuff. All I'm saying is it was not as it is portrayed in a number of erroneous press stories that we've read. It was not the purpose of this group to focus on the WMD issue. Staff: Sir, I hate to bring this to a close, but I know you're at the end of your time here. Maybe you can take one or two more. Q: Critics have raised the issue of the slanting of intelligence findings, the alleged slanting, basically to conform with the views of top policymakers. Can you say what pressure, if any, was put on intelligence analysts in the CIA, DIA, anywhere else, to endorse the view of Iraq possessing chemical and biological weapon stockpiles and reconstituting the nuclear weapons program as an imminent threat to U.S. interests? And can you rule out that intelligence analysts may have perceived that this pressure existed, whether it did or not? Feith: I know of no pressure. I can't rule out what other people may have perceived. Who knows what people perceive? I know of nobody who pressured anybody. We have a-- we have a normal and, I think, useful interchange between the intelligence community and its customers, basically the policy community. It is not a one-way transmission. If people understand the way intelligence-- the intelligence agencies relate to their customers, they understand that it's-- there's a process of back and forth where we get reports, I get a briefing every morning. I know that Secretary Rumsfeld has talked about this too. I mean, we're all, I think, in the same boat, those of us who get daily briefings from the CIA. I get a briefing. As I'm being briefed, questions occur to me. I ask for clarification of items. I sometimes say, "Well, that's an interesting point. That suggests that it might be good to get a report on x, y, and z. And I'd like to learn more about that." And those questions go back and they produce additional work and reports. And the intelligence community prides itself on being responsive when its customers raise questions and make requests for additional information or clarification or tables or historical perspective on some topic. I mean, things go back and forth all the time. And, I mean, that is the way a good system works. And in this particular case, we, as customers, were analyzing this information about terrorist networks, and when we happened to come up with some interesting observations, we took them back and gave them to the intelligence community. And I must say, I was very pleased with the response that we got. I mean, people over there said that's-- you know, that's worthy of looking at and study. And I think that, you know, that George Tenet received it very well and found it useful. Q: Two questions. Are any of the people who were on the intelligence team, which you said is now no longer doing that work, are any of those people still paid by the department and perhaps in other parts of your organization basically doing that same work on other topics? That's my first question. Are any of those people still there doing that work, perhaps on Iraq or on WMD? And my second question, I am really puzzled why you two gentlemen are exactly doing this briefing today. Neither of you are well known to come down here and talk about what you read in the news media. Were you asked to do this briefing by Secretary Rumsfeld, by the White House, by Torie Clarke? Do you have any sense that there's some article coming out somewhere in the news media that you're trying to respond to ahead of time? Feith: On the latter question first, there have been enough articles that have come out already on these subjects that have been inaccurate that-- and it's quite clear that some of the articles that are inaccurate are getting reverberations in numerous other articles that clearly are derivative of the mother lode of inaccuracies here and there. And we just-- and since it directly relates to our office, we just thought it might be useful to straighten the record out. So-- Q: So this briefing was your idea? Feith: This briefing was my idea. And-- I mean, I hope it is in the nature of a public service. Now, the first question you asked was-- Q: Is anybody who was on that intelligence team doing that work still-- Feith: Well, as I mentioned before you arrived, the-- Q: No, I was here. Feith: Oh. Okay. The team that has gotten so much attention was two people, full-time. (Chuckling.) I mean, this is much less than one would infer from a lot of the press coverage of it. And altogether, as I said, there might have been a half a dozen people who were in and out, working either on the team full- time, part-time. Q: (Off mike.)-- Feith: And some of those people-- because some of them were Reserve officers, so I mean, I think they're-- they've moved on, but some of them are people who are still in the government. Q: May-- what I'm not understanding is, are any of those half dozen people-- bluntly, what I'm trying to ask-- doing the same work, perhaps not in an assembled team-- Feith: No, this was a project. Q: I understand that. Feith: So the answer's no. Q: But the question is, I want to make sure there's no bureaucratic misunderstanding. That team has been disbanded. That label is gone. But is that work, candidly, going on somewhere else? Feith: "Disbanded" is a peculiar term to apply. They had a project. They finished their project. Q: And the project-- fine. The project is done. Nonetheless, is that work of reviewing information still going on in your organization? Is that basic task-- Feith: I would say that there are hundreds and hundreds, perhaps thousands, of people in this building who review intelligence for policy purposes every day. So that work is ongoing by thousands of people in this department. Q: So why did you need these special people? Feith: As I explained, we had a particular requirement to review the existing intelligence, to help us develop the strategy for the Defense Department for the global war on terrorism. (Cross talk.) I'll take one last question here. This lady has had her hand up. Q: And couple of-- (Inaudible.)-- here. These two people you say you had managed to come up with a link, you say, between al Qaeda and Iraq-- using the same intelligence, because you didn't gather intelligence-- that the CIA hadn't really come up with, and then you present this to George Tenet. Is that just coincidental that these two-- was their analysis more intense? Feith: I don't think it's all that unusual or hard to understand. If a large amount of material is reviewed by fresh eyes-- I mean, this-- I think this would apply to-- you know, any intelligent people sitting down with this pile of intelligence, looking it over, reading it over, has a chance of finding certain things in it. I mean, ask yourself why new history books get written about old events. I mean, people look over very often the very same material. But in light of experience or just because they see something that nobody had seen before, certain connections become clear or appear, and, you know, new hypotheses get developed and new facts surface. I mean, it's not that mysterious. It's just-- there was an enormous amount of intelligence about terrorist networks that had been developed for many years before September 11th. And the idea that we would look at it again in light of September 11th and maybe see some new things in it shouldn't be that surprising. Q: But you act as if the other intelligence agencies weren't looking at it that way. Feith: No, they were. I-- no, I'm not acting that way. Q: Only in post-9/11. So why-- Feith: They were too, but, I mean, I don't know why it should surprise anybody that any given group of people looking at a mass of material might come up with a few interesting insights that other people didn't come up with. Q: And in-- Q: Why not just hire the CIA to do it then? I mean, that's what they do full time. Feith: Because, well-- Q: (Inaudible.)-- the DIA, and you have to get in your own people and say, "This is what we're looking for. Go find it." Feith: No. Nobody-- nobody helped-- see, this suggestion that we said to them -- "This is what we're looking for. Go find it."-- is precisely the inaccuracy that we are here to rebut. Q: Can I just do one final one. Can I just-- Q: Can you give us an example of information that they found that did not fit those scenarios; that did not say there was an imminent danger; that did not present the facts that there was a belief that they were-- had an active and ongoing weapons of mass destruction program? Was that a part of what they found -- Feith: No, as I told you, the main thing that the briefing of this team produced was not this Iraq-al Qaeda connection. That was incidental. The main thing that the team produced was it helped-- it helped educate a lot of people about the fact that there was more cooperation and interconnection among these terrorist organizations and state sponsors across ideological lines than many people had appreciated before. That was really-- I mean, to sum it up in a sentence, that's it. Q: Just one final point. What do think now of-- Feith: And this is her final point. Q: (Laughs.) What do you think of the intelligence now? You said we'll see about the weapons of mass destruction, and yet some of the intelligence thus far that the United States was told about has been wrong. The Iraqis didn't use chemical weapons when American troops advanced. The first 200 sites you've checked that were suspected sites for weapons of mass destruction had nothing. You're backing away from some of the other sites, unless you get further intelligence. Can you assess the intelligence thus far? Feith: The process of gathering information about the Iraqi programs is underway. I'm not going to come in and preempt the careful work that's being done. As you all know, there's a major new team going over to make systematic and comprehensive the work on studying what exists in Iraq and what became of this and that, about which we had information regarding the Iraqi weapons of mass destruction programs. They'll do their systematic and comprehensive work, and they'll come back and report. Q: Can we talk about the last couple of months, though? Feith: Thank you all. Q: What about the last couple of months? Feith: I'm not going to preempt what the team is-- (Off mike as he leaves the podium.) * * * May 22, 2003 - 2:00 p.m. EDT BRIEFING ON MILITARY COMMISSIONS Participating: Army Colonel Frederic BORCH, Acting Chief Prosecutor USMC Lieutenant Colonel William LIETZAU, outgoing Acting Chief Prosecutor USAF Colonel Will A. GUNN, Acting Chief Defense Counsel USAF Major John SMITH, Spokesman, Military Commissions Judge Advocate [ DoD Office of Military Commissions ] Staff: Let me just introduce you to our briefers today. Before I do that, let me remind everybody that the president has not yet assigned any individual to be tried by a military commission. But as part of proper, prudent, planning, should it become necessary to hold a military commission in the future, the Department of Defense today is announcing the names of the acting chief prosecutor and acting chief defense counsel for the Office of Military Commissions. You'll be talking to each of them separately today in back-to- back briefings. So this one will end at 2:30, and then the chief defense counsel will be here to talk to you for about 30 minutes. Also during this briefing, you've met before, for those of you who attended these, Lieutenant Colonel Lietzau, who is going to be departing later on this summer. And he is the outgoing acting chief prosecutor. Colonel Fred Borch, in the center, is the incoming acting chief prosecutor. And, of course, I think you all know Major Smith from our other briefings also here, the spokesman for the commission. So with that, we'll go ahead and get started. But I will end this first briefing right at 2:30 and then go into the next one. Sir, if you like, you can give them an indication of-- Borch: Yeah, why don't you start, Colonel Lietzau? Lietzau: This part we hadn't planned. By way of introduction, my role, besides being an outgoing acting chief prosecutor, if you will, was really the process portion of setting up military commissions. Part of that, obviously, being setting up a Prosecution Office, so that in fact, the commissions could start moving forward. In that regard, I've known that I would be leaving this summer and that someone would be coming in. And in this case, it's Colonel Borch. But I think we're here able to answer all your questions regarding the rules, the instructions that have come up before-- we've talked about some of those before; and the intentions with respect to setting up the office that Colonel Borch is taking charge of. Sir, do you want to take it from there? Borch: Yeah. And I think you know that the Office of Military Commissions, which includes the acting chief prosecutor, means that I'm in charge of organizing all the prosecutions that might occur, and, of course, also providing legal advice to the general counsel in the area of military commissions. So that's my principal function as the acting chief prosecutor. But again, any questions that you may have, I'd be more than welcome to take them. Q: Colonel, are all of the prosecutors that you plan to have in your office going to be from the military? Will you draw some people from outside the military as prosecutors, possibly? And do you have an idea of how many you might need? Borch: Well, we're putting together our prosecution teams right now. And at the moment, everybody that we have in our office wears a uniform. I have Army, Navy, Air Force, Coast Guard, Marine. But you probably remember that it's a requirement that the prosecutors be military members. So certainly, we want to draw on the great experience that all the services have in the area, but all the people, at least at this time, are going to be in uniforms; that's what's required to be a prosecutor. Lietzau: Just one caveat to add to that. If you remember also in Military Commission Order No. 1 that Secretary Rumsfeld signed about a year ago, it also does have a provision that would allow for trial attorneys who have been made available by the attorney general to also participate in prosecution. So, that's a possibility under the current regulations. Borch: Yes? Q: Can you tell me how you go about selecting who will be the defendants after the president says who is eligible of the population-- who might come to trial? And some critics have said that the rules that have been presented by the Pentagon greatly favor the prosecution and restrict the defense, not only the military defense attorney, but potential civilian defense attorneys. Do you think the rules are greatly favoring the prosecution? Borch: Well, let me answer your second question first, since you've given me two questions here. We have been very careful in this process to do everything to guarantee a fair trial-- full and fair trial. And I'm like every other American. Everyone who's at a prosecution ought to get a fair trial. And I'm convinced that's exactly what's going to happen at the military commission. So, I don't agree at all that the proceedings are not going to be fair and not going to be an opportunity for zealous defense representation. And I know that that's exactly what Colonel Will Gunn, who's the acting chief defense counsel, is planning, so I simply don't accept that statement at all. Now back to your first question, which is about how are we going to select cases. Look, the president makes the decision as to whether or not anyone is subject to the jurisdiction of the military commission. President Bush hasn't done that yet. And until such time, I really can't tell you how we're going to select cases. All I can tell you is we're getting ready, as prosecutors, for the appropriate time when the president makes the decision. Q: And a follow-up. Smith: And if I could just add on to that a little bit, some of the other things that you will see during commission process is you'll find a finding of guilt beyond a reasonable doubt; you'll see the presumption of innocence; you're going to see no adverse inference if an accused decides to remain silent at trial; you'll see a free defense counsel participating at an adversarial proceeding. So, many of the same types of safeguards and traditional American jurisprudence you see will also be available in military commissions. Q: Thank you. Let me just follow up. Have you guys drawn up a list of potential defendants in this? Borch: Well, I can tell you we're looking at a number of cases and we haven't yet made any decisions, but we are looking at particular cases. I can tell you that every single case that merits prosecution, that we're told to prosecute, we will prosecute. But to echo what Major Smith said, the presumption of innocence is absolutely absolute in the military commission process, and, of course, the right to a fair trial and defense representation. So I'd just echo what he said. Smith: Yes, sir? Q: You talked about the similarities between the military process and the traditional civil process. Can you tell us where the differences lie between this way and a civilian court? Borch: Well, the fundamental difference, of course, is that military commissions are about prosecuting violations of the law of war. That's the principal reason for military commissions, and historically this is what we've always done as Americans. You probably know that after World War II, we had hundreds of military commissions hearing cases involving war crimes committed during Word War II. But again, it's restricted only to violations, really, of the law of war, war crimes, and again, in the context here, has to be terrorist related. We're talking about terrorism here and not just any particular war crime or violation of the law of war. So that's the major difference. Of course, civilian courts are about civilian criminal offenses, and this is entirely different here. These are offenses that occur in the context of armed conflict, which I think also should explain to you why it's a military commission and not some other kind of commission. Q: What about procedurally? Smith: I think you could add to Colonel Borch's answer on the procedural side that these commissions are designed with a view toward offenses that happen during war. As well as the subject matter being war crimes, these are offenses that occur during an armed conflict, evidence is taken during an armed conflict, and in fact at this point in time, if we were to have commissions now, the commissions would be taking place during an armed conflict. Those are the kinds of things that create special national security concerns, and commissions and the process surrounding commissions was designed to be able to accommodate those special circumstances of an ongoing armed conflict. Q: Colonel, bearing in mind those special concerns, could you just explain some of the challenge you're going to be facing? What are some of the difficulties that you see ahead as you try to get a prosecution for some of these people? Outline some of the difficulties you might be facing. Borch: In a particular case, challenges we might see, or in general? Q: In general. Or anything that strikes you. Borch: Well, I've had a lot of experience doing criminal law. I've spent most of my career as a prosecutor. Of course, you may know, if you've seen my bio, I've come from being a professor of international law. I would say, based on my background and experience, I think the military commissions are going to be very similar to all the same challenges that any prosecutor faces in court. And that is, making sure, one, that the proceedings are fair, because that's a major goal for the prosecution, not winning cases, necessarily, but fair trials; and then, finding the right evidence and bringing the right case. So I don't think there's anything particular about the military commissions that's any different from any other prosecution. Q: But wouldn't it be more difficult to find the evidence if you are still involved in the war? And do you see any difficulties, since it is going to be the military is involved in that? Borch: I think it depends on the particular case, and I really can't answer your question without looking at a particular case. I'm just not able to do that at this time. Q: Have you looked at any particular cases? Borch: Yeah, do you know? Smith: Well, maybe just because I've had a little more time looking at the cases, there's no doubt that you're right, and there's going to be a lot of difficulties associated with getting evidence that, in many cases, comes from a different country, from people who are speaking a different language and from places where we're not in the habit with our law enforcement investigators to go in and get evidence. So, all of those difficulties will be there. I would echo what Colonel Borch said, though, in terms of the difficulty you'll have when you actually get to trial. Anyone who has prosecuted a case anywhere, and I would say especially in the military-- if you've been in front of a panel of commissioned officers proving a case beyond a reasonable doubt, that's always the biggest hurdle. And it will be here. Those panels of officers take that-- the presumption of innocence and the standard that they're instructed to apply -- very seriously, and they will do that in these commission cases, as well. Q: Have you looked at any particular cases? Borch: Have we looked at any particular cases? Well, again, to go back to my earlier statement, we don't have any cases yet, because the president has to decide someone is subject to the jurisdiction of the commission. So-- Q: Any prospective cases? Borch: Well, again, we're not at that point yet because-- look, we have to get ready, but the decision has to be made at the highest levels. It simply hasn't been made yet, so-- Q: You said earlier, "We're looking at a number of cases." Borch: We are looking at a number of cases, but not anything in particular. Q: Are you involved at all in the process of recommending which cases might be prosecuted by a tribunal-- by a commission? Borch: Well, that's safe to say that at some point, I would be making recommendations once, again, a decision is made that someone is subject to the jurisdiction. I think that's a fair-- absolutely a fair statement. That's one of my roles as the acting chief prosecutor, is to make recommendations once the decision is made that someone is subject to the jurisdiction of the commission. Yes? Q: I'm interested in what-- setting up this office on commissioning. What impact does that have on staffing of the JAG Corps in the different services? Have you had to move a lot of people into this office? And do you expect maybe to detail more in the future, or what? Lietzau: I think-- Borch: Yeah, do you want to-- Colonel Lietzau could probably address that. Lietzau: I don't know that we want to get into details with respect to numbers. I began the process of hiring some people, and hiring-- having them detailed over to the Military Commission Office. Colonel Borch has adopted that office, and I think has plans for the various people he'll need as cases develop and it becomes clearer what the needs will be. Borch: I mean, the services are contributing top-notch people to the defense and to the prosecution. How many we're going to end up with, I think the honest answer is I don't know. Lietzau: I think this is something the president issued his order that said if we try these people, it will be by military commission. And the Department of Defense issued a military order saying these are how we're going to do it. And I think all of the different JAG departments from the different branches of services see the importance of that and are certainly going to support that as one of their primary goals and missions. Q: Have all of the prosecutors you have so far been volunteers, or have you had to draft people? Borch: Well, I think everyone has wanted to make a contribution to the process, whether they're in the defense side or the prosecution side. I think everyone has stepped forward right away, when offered the opportunity. Q: Colonel, I know you don't want to talk about specific numbers, but can you give us an idea of the scope of what you're working with here? I mean, are you having-- are you moving equipment? Do you have facilities set up to deal with dozens of people on your teams? How many-- what's the size and scope of this team? And just sort of following along on that, are you planning for the potential, if the president were to send you names of, you know, from 10 to 50 people, that you would have one tribunal going at a time, or you'd have three or four going at a time? How would this work if you have potentially-- Borch: That's an awful lot of questions. Look, the honest answer is we just don't know at this point because the critical first decisions as to who's subject to the jurisdiction haven't been made. But we have to look at all these particular issues and consider all of them, and we are. And everything you mentioned in your more than 20 questions there, I think, are things that we're having to wrestle with and think about. Q: But it's really one question, though, about the scope and size that you're preparing for, and how big is the team that you have put together right now-- the scope of it. Is it a small team of just a handful of people, that could grow exponentially, or is this a-- can you give us any idea of the size and scope of the team and facilities? Lietzau: Right now, I think a good number to use for the Office of Military Commissions, which includes the appointing authority, the prosecution and defense, is about a dozen people. And depending on where we see things going, how many people the president may determine are subject to his order, I think you may see that expand. But at this point, I think it's premature to say "we're going to need this many people," until we really see where it goes from here. Smith: There's a point, if I could add too, that I think is important to make. It's related to how-- the office, obviously, could grow as it would need to, if it needed to. And similarly, the rules and the instructions were all drafted to be able to have the kind of flexibility to do all the things you described as possibilities. It's an important thing to realize is that we're talking about conducting military commissions during an armed conflict. Sometimes I think that, based on some of the questions I've heard coming from the media, there's this perception that people in Guantanamo Bay are in some sort of pre-trial confinement, and that's not the case. What we're doing by starting trials is actually the exception, historically, not the delay in getting to trials. So, you have to recognize that it is still an ongoing armed conflict, and it's going to be difficult to be able to figure out exactly all the things that we'll need to do during that armed conflict. Remember, after World War II, Nuremberg took place after the war had been won. All the commissions were after the war had been won. Here we're talking-- we're still in the midst of hostilities. Q: The president says we'll never win this war; it's going to be a perpetual war. At some point we have to start the-- Lietzau: Well, it depends which war you're talking about. But clearly, right now there are ongoing hostilities. And in terms of trying to get a picture of what all the trials will look like, that would be unprecedented. Borch: To amplify what Colonel Lietzau is saying-- and I think this is a really good point-- the law is very clear. International law, the law of armed conflict makes clear that enemy combatants captured during that conflict may be detained for the duration of hostilities. So again, I would echo with what he says; this is rather unprecedented to go ahead and look at this prior to the end of hostilities. And again, a lot of things to be worked out. The honest answer to you is, we're considering all these things, and we hope to have the answers when we need them. Q: If you're talking about hostility, the end of hostilities in the war on terrorism, we could be 30 years, 40 years. Lietzau: I think the-- when the end of hostilities is going to be is probably beyond the purview of what we're here to talk about. Nevertheless, we can at least say at this point in time, we have ongoing hostilities, and that does complicate matters when you start taking people to trial who are being detained as enemy combatants. Q: I know you-- the president hasn't decided who will be prosecuted. Smith: That's right. Q: But the cases you've mentioned you're looking at, how many? Six, 20, 50? Smith: And again, to get back to the answer, I think it's really premature to say, we're looking at them. You know, we're just-- Q: You were the one who said you're looking at the cases. How many-- Smith: (Inaudible)--, but we can't really say, well, we're looking at 20, we're looking at six. The president hasn't-- Q: Well, again, you raised it. I mean, how many are you looking at? Six, 12, 100? Can you say, Colonel? Lietzau: I've looked at several. Q: Several? Smith: He's the one that's looking at them, so I'll leave that to Colonel Lietzau. Q: You've only looked at several? Three? Borch: I'll tell you this, that I'm looking at a number of cases-- a number of cases. Q: Big number? Little number? (Laughter.) Double-digit number? Borch: I think it's safe to say we're in-- we're out of the single digits. But I can't give you anything more precise than that. And I really hesitate to do that, because none of these cases exist until the president makes the decision that there's jurisdiction. I mean, to a very real extent, my role as the acting chief prosecutor is to be ready if the commander in chief makes the decision. Smith: Lady in the back has had her hand up. Borch: Yeah? Q: (Off mike)-- if most of those cases are limited to al Qaeda? Or have they expanded to people from the Iraq war? Borch: Well, remember that the order here, and I know Colonel Lietzau will jump in to amplify-- the order creating the military commissions requires terrorism as a basis. So if we're talking about al Qaeda or other terrorist activities, those people involved in that are subject to the military commissions. What I'm doing as the acting chief prosecutor is looking at terrorism and detainees being held at Guantanamo Bay. So, everything that's going on in Iraq is really outside the focus of my activities. Q: Can I ask a question about the basic premise of what you're doing here? The laws of armed conflict are a very codified group of the laws of war-- different things that play into that. The president and the secretary of Defense have said repeatedly that this is a totally different war-- whole new paradigm. Do the laws that now exist, are they sufficient to fit what you're going to be dealing with? I mean, the whole question of hostilities and when they cease is a perfect example of that. It's a different type of war. Are you going to have to-- or will this result in some new and different types of-- Borch: That is an excellent question. It's a very hard question, and it's way beyond the scope of what I'm doing as the acting prosecutor. So-- Q: Well, as an academic, do you think that this is something, you know, that is going to result in a body of law-- Borch: I'm not here as an academic, and honestly, that question-- we could discuss that for hours. I would say good question, tough answers. But it's really way outside what I'm doing here as the acting chief prosecutor. So, I really can't address that, unless-- Lietzau: Well, maybe I didn't understand it the same way you did, but if you're asking about the substantive law that we would apply-- Q: Right. Lietzau:-- to these situations, that is addressed in Military Commission Instruction No. 2. Now, I might disagree with your statement that it's been so clearly codified in recent years. I'm not sure that the law of war has been subject to a lot of codification. It is something that's customary, has been around for a long time, and I believe is, yes, very applicable here. Just because it's a new war doesn't mean that the legal principles that have been the antecedents of many of our treaties in recent years aren't applicable. Q: I would guess that a prosecutor would-- or, somebody who's a defender would turn that around and use that as his or her principal point of defense, and say, look, this is different. We've got this body back here-- Borch: I think you should ask the acting chief defense counsel that question when he comes here in a couple minutes. Q: Are you anticipating that that might be something that's going to come up quite frequently? Lietzau: Well, when you prosecute someone, you have to prove all of the elements of an offense. And the offenses that are found within the law of armed conflict -- international law of armed conflict-- are adequate to cover the activities that we would want to prosecute in this-- in the war against terrorism. I think that while there is something new happening in this war, that doesn't mean that everything we do has to be new. We turned back to the principles that have animated the law of armed conflict for hundreds of years. I reflect back on a regimental commander who once told me, "If you want a new idea, read an old book." And maybe in some ways, that's what we've done with military commissions. It's something that's been used historically, years ago, but it's quite applicable today. Borch: Yeah, I-- to amplify what Colonel Lietzau is saying, there isn't anything new here in this military commission process. These are all things that we have done in the past historically, in World War II, during World War II. There's nothing new or strange or out of the ordinary here. And I agree with you. Everything in international law and the law of armed conflict is satisfactory to let us run and do these militaries. Smith: I think we have time for maybe two more questions. Q: I have a question. Usually, at a military courts-martial, if a defendant is charged with a particularly egregious offense, he gets two lawyers, and then there will be two prosecutors. Would that be the case with a trial by commission, giving the individual more than one person to represent them? Lietzau: Again, I would just answer that the rules were drafted to accommodate that kind of flexibility that would be needed. It doesn't mandate anything like that, but it provides the flexibility so that, on an ad hoc situation, we can have the right number of people doing the right job. Borch: Every detainee gets a detailed military counsel. And you know that every accused also gets a civilian counsel if that's what he wants to have, wants to hire. Smith: And your premise first on court martials, it's not necessarily true that every defendant gets two defense counsel and the prosecution always has two. That is the case in many court martials, but I've been involved in plenty of court martials where there's one defense counsel and one prosecutor as well. Q: Well, if it's a real serious crime, normally they have two. Also, the commission; commissioners instead of judges? And how many? Borch: There's a presiding official, who will be a judge advocate, and then there are panel members, and I think the panel size is Col./Maj. : Three to seven. Borch: Three to seven. Three to seven. But there will probably-- we're certainly talking about alternates, as well. Smith: And one final question, from the lady in the back. Q: Discussion by the president-- that the president might expand the definition of who can be tried to include U.S. citizens like Padilla-- (off mike)? Borch: Well, that's, of course, a really good question. But again, you have to ask somebody else that question, not the acting chief prosecutor. I can't speak for what the president might or might not do or what advice he might be getting. Would you agree with that? (Cross talk.) Q: Just a procedural question. Is there a higher court of appeals, or is this it? Lietzau: There's a review panel that's detailed in Military Commission Order No. 1 that will review every case after it goes through the appointing authorities, forward it to the review panel, then to the secretary of Defense, then to the president. So there's a fairly extensive review process that takes place for every case. Staff: You actually went through that in some detail in the last briefing that we had, that we can get the transcript for you. Thank you, gentlemen. We're going to switch them out. The acting chief defense counsel is here and is going to join us now. (Pause.) Smith: Colonel Gunn is also a career military lawyer and, should it be required to proceed with military commissions, he'll be directing the entire defense team and also advising the general counsel on all matters related to the defense. He'll also manage a pool of civilian attorneys that are being solicited by the Department of Defense for possible involvement in commissions. And he's here to talk to you about that process and take your questions. Gunn: Thank you. As previously mentioned, I am Colonel Will Gunn. I'm an Air Force lawyer. This week I celebrate 23 years of active military service. I'm an Air Force Academy graduate and a graduate of Harvard Law School. In my current capacity I've been appointed as acting chief defense counsel for the military commissions. In that capacity it is my responsibility to ensure that all detainees who are brought to trial before military commissions receive a zealous defense, receive zealous representation by defense counsel. That representation can be by military defense counsel, and also by civilian defense counsel. In all instances, detainees brought to trial will receive representation by military defense counsel. However, if they're not satisfied with that particular military counsel, they can request other military counsel, and such counsel will be made available to them if that person is determined to be reasonably available. They're also entitled to be represented by civilian defense counsel, provided that it is at no expense to the United States. I'll now take your questions. Yes. Q: Colonel Gunn, I'm wondering approximately how many applications you've received from civilian lawyers interested in becoming part of a pool of available attorneys. And also, I understand that you'll be responsible for ensuring that the civilian attorneys comply with certain rules and regulations, and I'd like to know how you'll go about doing that. Gunn: First of all, to date I have not received any applications from civilian defense counsel. I do anticipate that that will change. Within the last couple of days we received inquiries from the first two individuals. But I anticipate as a result of today that is going to change a great deal. And could you repeat the second part of your question, please? Q: I understand that part of your role is to ensure that the civilian defense counsel abide by certain rules and restrictions on their activities. And I'd like to know how you can enforce those rules and be sure that even individuals that aren't associated with the military abide by those restrictions. Gunn: Well, going into the military commissions, any civilian defense counsel that desires to get involved and become a member of the pool has to sign a document stating that they are aware of the rules and they agree to abide by certain parameters. So, they will-- they are going to agree to that first of all. Secondly, though, if they fail to abide by those parameters, the only real sanction that I see presently is that they would be forbidden from taking part in commissions after that point. Smith: And I think if you want to look at a good copy of what they'll be signing or agreeing to, if you take a look at Military Instruction No. 5, that goes over the agreement they'll be signing. Q: Colonel, there's a concern among some legal experts that the rules for the military commissions are much more restrictive for the defense counsel. For example, that you don't get evidence until a week before trial; you don't-- you're not as-- you're gagged, almost-- there seems to be some provisions for that. And that there are also limits on your ability to conduct your own investigation in the case. Does that concern you at all? Gunn: If those were in fact the rules, that-- I would certainly be concerned by that. But I am not under the belief that those are going to be the conditions under which defense counsel will operate in the system. Right now, no one has been brought up on charges. As a result, none of the detainees are represented at this point in time. But after a detainee is charged, then I anticipate a negotiation process whereby the defense counsel will negotiate with the prosecutors to determine when the defense counsel is in a position to provide an adequate defense. And that's going to be dependent upon the defense counsel conducting an independent evaluation of the evidence and an independent investigation of some sort. Q: And you don't see any problems right now, the way the rules are written, where you could have an issue with that? Does it appear at all restrictive to you at this point? Gunn: This is certainly a foreign environment in the sense that this is quite a bit different than the environment that I am accustomed to practicing in, and that's the Military Justice System of Courts Martial. However, with the rules as they're presently drafted, I am firmly convinced that we are going to be able to operate in such a manner that we're going to be able to provide a zealous defense for all detainees brought before trial. Yes? Q: So you don't think that the rules, as some critics have said, strongly favor the prosecution? For example, the admissibility of hearsay evidence; the potential monitoring of conversations between defense counsel and his defendant; some people have said a lack of sentencing guidelines, you know, in terms of this conviction could lead to the death penalty or one year in prison. You don't think that any of those rules are more beneficial to the prosecution and detrimental to the defense? Gunn: I believe what I'm concentrating on, more than anything else right now, is the fact that in order for the government to convict anyone, they're going to have to maintain their burden of proof, and that burden is that they're going to have to prove that an individual is in fact guilty beyond a reasonable doubt. I can guarantee you that the defense counsel that are being brought onto the team, that will be assigned to represent individual accused, individual detainees that are accused of crimes, that they're going to do everything in their power, within those rules, to challenge the government's case. We don't have a group of people that are just going to roll over and accept whatever is presented. Smith: And if I could point out one thing, too, you brought up the rules of evidence. One thing to remember on that-- that same rule of evidence applies to defense, as well as to the government. So there may be pieces of evidence that the defense will be able to admit to these cases that otherwise may not be admissible without the relaxed rules. So it's a pendulum that goes both ways. Q: On the rules, let me just follow up. Is there any provision in the instructions for a defendant to challenge the commissions, to challenge his eligibility to be tried before a commission? For example, he argues, "I am a prisoner of war. I don't belong here." Is there anything that allows such a challenge to take place? Smith: I'm not in a good position to answer that right now, in terms of how that will actually play out. From a jurisdictional standpoint, I'd see that as a fundamental jurisdictional question. And exactly how that will work procedurally, I'm not sure at this point. Q: I mean, that seems like it would be a-- the first argument that someone would make is that "I don't belong here." Q: Colonel, how do you-- Smith: And one thing you have to remember too, though-- there were prisoners of war who were tried during World War II under military commissions. So it's not really clear that-- just the fact you're a prisoner of war doesn't mean a military commission could not be the appropriate forum. Q: Right. I'm just talking about someone making that argument. Q: Colonel, how do you envision this relationship with the civilian lawyers might work? I mean, how would one of your military defense lawyers be interacting with a civilian lawyer? What would that civilian lawyer be doing inside one of these trials? How would any of that work? Gunn: Usually, in a military context, when a civilian lawyer comes aboard and becomes part of the defense team, that lawyer becomes the senior lawyer, and he is the head of the team. This situation is a little bit different, in the sense that while that individual may become part of the team, there may be certain segments of a commission that that person may not be able to sit in on, because they may not have a security clearance that allows them access to that particular portion. So that's going to be a bit unusual. In terms of how it's going to work, I can assure you that both the military counsel and the civilian counsel are going to consult with one another in terms of determining what the trial strategy will be. I should also point out that in order for civilian counsel to become part of the defense team, the particular detainee who is accused of a crime will have to make that decision that they want to be represented by civilian counsel. Q: And the civilian has to be a U.S. citizen, is that correct? Gunn: That is correct. Q: May I just follow up to that security clearance issue? It seems to me that there is a problem right now in the Alexandria courts where this is becoming an issue with that particular individual. How can a member of a defendant's team possibly provide a proper defense without having a full knowledge of an entire scope of information that's available about that person? How is it possible that that person could be effective in defense without-- with having a major chunk of the prosecutor's case unavailable to them? Gunn: It is-- it's entirely possible that for each individual case, there will be a volume of information that the government may have developed from an intelligence standpoint on that particular individual and activities that that individual has been involved in. However, in order for-- in order for that to be of value inside the commission, the government is going to have to present that in some manner. There could certainly be challenges when members of the defense team don't have access to the same amount of information. What I can tell you is that we're going to-- members of the defense team are going to do everything in their power to bridge that while at the same time being conscious of our limitations from a national security standpoint. Smith: And one thing you have to remember on that too, one of the requirements is that a civilian attorney must be eligible for a "secret" clearance at the minimum. There may be civilian defense attorneys who are eligible and actually obtain a "top secret" clearance. And if that's the case, they would have access to more information. So it's really going to depend on that individual's eligibility. Q: Are you going to accelerate the clearance the process associated with that, because it can take six to nine months to get "secret" clearance? Smith: And I think those issues are being worked out right now. Q: But the-- I know it's difficult to say because you don't have a defendant in front of you, but generally speaking, what is your position on how much of these military commissions, once one gets underway, do you think is in the best interest of the defendants to have open, in open session, where the public can see what's going on? The concern, as you know, I'm sure, is that people think that these military commissions are going to be completely secret, and the Defense Department keeps assuring everybody that that's not the case. But what's your position, sir, on how open it should be to help the defendant? Gunn: Recently, I was reading an excerpt of an article by Lloyd Cutler, who was the youngest defense counsel-- or youngest prosecutor in the in re Quirin case, where we had the German saboteurs during World War II; they came ashore, and eventually met a military commission. And he was talking about the military commission process that was being developed at the time that he wrote the article. And he was also talking about that process, and he commented on the fact that a great deal of it was-- well, all of it was conducted in secret, and the press was merely briefed on it. And he looked at it as a mistake. I agree with that; that to the extent that this process is as open as possible, within the constraints of national security, that's going to be in the best interests of not only the detainees, but more-- from a broader standpoint, I see that as in the best interests of the nation as a whole, because this process is going to be judged not so much by virtue of whether or not a particular detainee was convicted by military commission, it will be judged from the world community by virtue of whether or not the process was fair and just. And as a result of that, you in the press play a vital role in helping to accomplish that. Q: May I ask a question? Earlier, the incoming acting chief prosecutor said you had a real zeal to make certain that there will be a fair trial. I wondered your thoughts about that? And what happens if in fact you don't get the information that they have, the reams of information that the have? Will you argue that that won't be a fair trial? What are your thoughts along those lines? Gunn: First of all, in terms of my personal zeal, my-- let me just say that this is a not a position that I sought out. When I was contacted about taking on this position, I immediately recognized that the glamour position here was that of chief prosecutor, the opportunity to be America's hero. But as I reflected on it, it occurred to me that there is a valuable role to be played by defense counsel, a critical role to be played by defense counsel, again, not just for the individual, but also for the nation as a whole. And I looked at my background, I looked at the experiences that I've had and opportunities that I've been presented with, and I said if offered the opportunity, then I would go for that, I would accept it because of the opportunity to serve. In terms of not receiving all the information that's out there, I can assure you that defense counsel that are part of this process, one of the things that we're doing in order to screen for those people is, we're looking for fighters. We're looking for people of sound judgment, of high integrity who are going to do their jobs to the utmost of their ability. And their job in this context is to represent individuals. And I can assure you, they are going to do that. Q: You mentioned a couple of civilian lawyers have expressed interest? Gunn: Yes. Q: Can you say who they are? Anybody of note there, or-- a Harvard professor, or a celebrity lawyer? Smith: I don't-- I don't think it would be appropriate to talk of any names at this time. After applications are put in and when the time is appropriate to announce who counsel may be for individual cases-- and again, it's going to be the accused's choice whether or not he wants someone to represent him who's a civilian. So I think it's a little premature to be talking on those issues right now. Q: So far only a couple have expressed interest? Gunn: Exactly. Q: Are they offering to go pro bono on these, then, since most of these people, I would imagine, can't afford to-- ? Gunn: Part of the application process will require them to identify whether or not they're willing to represent individuals on a pro bono basis. Q: Can you just classify them in general, like, there might be some big names, or they're-- or they have a long history? (Light laughter.) Just in general? Smith: I think we'll just leave that where we did. So, now, this gentleman over here with the tie has had his hand up for a while. Q: The-- there's obviously a finite pool of potential cases. Are you looking at them at all? Is there any kind of preparation in case some of them actually-- the president does make a decision that the process will go underway? Gunn: The individuals who are part of the acting chief defense counsel's office right now have been working to look at the instructions as they are drafted so they can firmly understand that system. They've been doing other types of basic research, both from a historical standpoint as well as from an international law standpoint. So they can understand the context in which they're working. But again, since there are no cases actually before us right now, we don't have the ability to concentrate on a particular individual and a particular body of facts. Q: Colonel, as a uniform member of the U.S. military and knowing what these folks have been accused of, in this building, in New York City, and around the world, how can you and the folks on your team really generate the passion to feel that these people deserve to be defended, let alone to actually go in to work every day for as long as it takes to defend them in that zealous way that you talk about? I mean, as a human being, how do you personally work your mind around that issue? Gunn: We do that, first of all, because we believe in this country, and we believe in what this country espouses as its key values. And among those key values is the concept that every individual accused of a crime is presumed to be innocent. And so from that standpoint, defense counsel play a critical role with respect to that. We've all represented individuals that others may have despised, others may have been leery of, but we had a job to do in a particular situation. And sometimes, you discover that despite how things may look on the surface, as you get into them, and as you explore the facts and as the light of the judicial process focuses in on an individual, you find that things aren't always as they seem. And so, that's the value. We have a job to do. We believe in this nation. And we believe in what this nation espouses. Smith: Ma'am? Q: (Off mike)-- Colonel, you mentioned early on that you thought that after today-- I guess after some publicity about this, that there would be more applications from civilian lawyers. These are people who may have the same feelings toward the country you have, but you said that one of your reasons for doing this was to serve the country, and these are civilian lawyers. So, what would the attraction be, especially since you concede that probably the glamour job is on the other side-- what would draw the defense attorney to want to be part of this? Smith: I think that's really something you would have to pose to them. I think different people are-- Q: Well, the colonel did say that he thought after today that would change. What about that? Why is knowing about this process likely to draw more people in? Gunn: Well, already, in-- as a result of information about the commissions being in the press, we've seen articles by people in the academic community and in other sectors that have commented on the rules; that have commented on the wisdom of utilizing military commissions. There are some people that are interested in the process from an intellectual standpoint. There may be some people that are interested in the process largely because they also share the belief that if this is done, it has to be done right. And in order for it to be done right, it requires people of integrity operating within this system. Smith: The lady in the black. Q: Since both the chief defense counsel and the chief prosecutor report to individuals in the general counsel's office at the Pentagon, I'm wondering how that's different than the structure of the Judge Advocate General Corps of the various services, and what mechanisms have been set up to insulate defense attorneys from any of the political pressures that might exist in the general counsel's office? Gunn: That is a matter that we've spent a great deal of time talking about. First of all, from the military justice standpoint, a military defense counsel at the lowest level works for a chief defense counsel, who generally works for a chief of defense services within the service, who ultimately works for that service's judge advocate general. And within this system, an individual defense counsel will work for me or whoever is occupying the position of the chief defense counsel. I will report to a deputy general counsel, who reports to the general counsel. So, ultimately all roads lead back here to the Pentagon, whether you're talking about the military justice system or whether you're talking about this system. However, that road is a lot shorter under this system. So here, what it is really going to take is going to take people of high integrity, for one thing. My commitment is to fight to make sure that the defense counsel that are part of this system are free from improper influence or interference in doing their jobs correctly. And we understand perfectly that the reason for-- one basic reason for a military commission is to protect national security; but I believe that we can operate within the system, the interest of national security can be protected and we can have a zealous defense function in which defense counsel are free to do the job that they need to do. Smith: I think we have time for two more questions. Ma'am? Q: Do the civilian defense counsels have to pay for their own security clearances? And if so, do you know how much that would be? Gunn: They do have to pay for their own security clearances, but I don't have the information on the amount. Smith: And some may already have their security clearances from either being in the service or some other branch of the government as well. And we'll take a final question from the gentleman with the white shirt. Q: Pardon me if you've answered this before. I missed the top of your briefing. How are you preparing for these upcoming trials since you've been assigned this? How are you preparing? Are you looking at past cases from past wars, past conflicts, or are you taking theoretical situations that might be coming up and essentially war gaming, or what? How are you preparing for what's coming up? Gunn: In a general sense, you could say that we're doing a little bit of all of that. We're making sure that the defense counsel-- first of all, we have defense counsel that are very experienced who we anticipate will be part of this team and who will represent individuals that actually are accused of crimes. And to the extent that there are aspects of the process that they're not familiar with, then we're going to do all that we can to ensure that they receive training in those areas. They're reading the law review articles that have already been published that deal with military commissions. They're reading the press reports. And they're looking at such things as the sentencing guidelines, which is a foreign concept under the military system, but which is very familiar to people within the federal defense system. So they're receiving training in all of those areas. Smith: And just to clarify one point we talked about earlier on access to classified information, access to classified information is determined by civilian defense counsel's security clearance and also the presiding officer. So just because he may have a "top secret" clearance doesn't mean he may have access to all "top secret" information that's available at the trial. However, stuff that is presented at the trial, the military defense counsel will be included in all closed sessions. And we have time for one more question, if there's a-- Q: This goes back to the larger question that I was asking the prosecution team about whether military law, as it now exists, is actually adequate to cover the types of crimes that you would be defending your clients for, considering the fact that the president and others have said that this is a different type of war that we have experienced before? Is that something-- is this going to create a whole new body of international law as you go through the process, do you think? Gunn: I don't know if I'm the best person to address that particular question. I do know that there's a great deal that's being written right now among law professors and others who are writing in various law reviews and law journals. And they are addressing issues along those lines. My job right now is learning as much as I can about a process that's only on paper and doing all that I can from a defense perspective to execute that system so that that system does in fact present fair and just results. That's what I'm focusing in on. Q: But it seems like having to take or adapt something that isn't necessarily applicable to the particular situation would be a disadvantage for you, to try to apply a law that might have been written to apply to conventional warfare to an asymmetric or terrorist environment could be very difficult for you. Does that make sense? Gunn: I believe I follow your question. I don't have any control over that. Q: Are there procedures in place for the press to cover these tribunals? Smith: The going-in position is there will-- the military commissions will be open to the press to the maximum extent possible. How that's going to be worked exactly-- details are still being talked about and decided, and we will let you guys know as soon as we have those in place. Thank you very much. # # # Thursday, May 8, 2003 - 9:00 a.m. EDT ENEMY PRISONER OF WAR BRIEFING FROM UMM QASR, IRAQ (Briefing on enemy prisoner of war status categories, releases and paroles via telephone from Umm Qasr, Iraq. Participating were Army Col. John Della Jacono, chief of staff for the Coalition Forces Land Component Commander, and Army Col. Karl M. Goetzke, staff judge advocate for the Coalition Forces Land Component Commander.) Staff: Welcome to the next in our series of briefings on issues related to the handling of enemy prisoners of war. I'd like to again introduce you to Colonel John Della Jacono and Colonel Karl Goetzke, who are joining us from Kuwait. Colonel Della Jacono is the deputy chief of staff and Colonel Goetzke is the staff judge advocate for the Coalition Forces Land Component Commander. They both have had a great deal of experience working with enemy prisoner of war issues. They'll be educating us about a number of different topics: the process of assigning status to a prisoner, the different categories allowed by the Geneva Convention, the treatment of the different categories, as well as issues related to paroles and releases. I'll facilitate the questions and answers, but first, Colonel Della Jacono, turn it over to you. Della Jacono: Okay. Thank you very much. Just for everybody's benefit, coalition forces continue to focus military operations on conducting security patrols, humanitarian assistance missions, facility reconstruction, and securing various sensitive sites in key Iraqi cities. Despite the sporadic danger in and around Iraq, coalition forces continue to remain dedicated to setting the conditions throughout Iraq, so that the delivery of humanitarian aid and infrastructure repair can continue. We continue to assist in developing a more safe and secure environment in Iraq, and that's probably the foundation for allowing the other lines of operations to flourish. Among the accomplishments in the last 48 hours: In Iraq right now, we have about 10,000 police, Iraqi police, that have reported for duty, which is a good news story. So they're coming out. They're being vetted by U.S. and coalition forces, and we're putting them to work in their cities. Electrical power in An Nasiriyah, As Samawah and Ar Rumaylah has been restored. In the Dhi Qar province, Marine Civil Affairs personnel conducted payments of fire, irrigation, electrical power plant employees. Civil Affairs personnel are working to make a TV station in al-Amarah fully operational through the purchasing of a generator, satellite dish and an air conditioning unit. Also in al-Amarah, grain is now being milled, following the receipt of the first deliveries of wheat from the store. Power is slowly being restored in the area, and support for repairs is being provided by U.K. forces. Today we have released approximately 7,000-- over 7,000 either civilians, noncombatants or enemy prisoners of war from our theater internment facility in Umm Qasr. Our current number as of this date is approximately 2,000 that are currently being held by military police in our theater internment facility. I understand the focus today is on EPW operations and the ongoing efforts to release those that we are vetting. I'm free for your questions at this time. (Pause.) Hello? Were we cut off? Q: Sorry. It takes a while to get the mike to us. Thelma LeBrecht with Associated Press Broadcast. I wondered if you could just elaborate on those that you've released, if you know how many of those were noncombatants. And are you surprised that you've gotten this many released so far? And what's the status for the next 2,000? Della Jacono: Well, right now we're going through a vetting process. As you know, (fog of?) war, you know, usually you might pick up those noncombatants that might be in the wrong place-- at the wrong place at the wrong time. We have gone through a deliberate screening of the over 7,000 that we held at one time. We have both CID agents-- Criminal Investigation Division agents, staff judge advocates and criminal intelligence agents that are vetting or screening each of the EPWs. And to date we have paroled approximately 3,700. Out of the 3,700, some are civilians, noncombatants that were just at the wrong place at the wrong time. Some are minor or lower-level enlisted folks that have agreed to a parole agreement that we have drafted, and we have released those. And let's see, who else. Well, that's about it. We have found a mix, but most of the EPWs that we have released have been those lower-ranking Iraqi soldiers from the Republican Guards and the regular Army divisions that were initially captured during combat operations in Iraq. Q: Colonel, Hi. It's Jeannie Ohm with NBC. You said about 3,700 were paroled lower level. Can you give us a sense how many went through the vetting process that were deemed high-ranking officials or other such that you cannot release them at this time? Della Jacono: Right now, we are not releasing members of the black and gray lists. Those are some of the senior level officials on specific lists that we have. We are not releasing unlawful combatants. We are also holding any of those that we deem need further interrogation by MI screening teams and our criminal investigation division. And also, you know, we do have a small population of criminals; we have thwarted a couple-- I won't say a couple-- we've thwarted some bank robberies in progress. Once they are apprehended, they are categorized as criminals and they are segregated from the EPW population, but we're holding those also. So, we have a mix of people that we are holding. And, you know, these civilian internees, as you will, will ultimately, hopefully, once we stand up the judicial system in Iraq, will be tried by Iraqis and either released or sent to jail. Q: Just to follow up, so is that the 2,000 that you're still holding? Or my understanding-- I thought the 2,000 had yet to be processed. Della Jacono: Well, the 2,000 we're holding right now, we'll go through a vetting process. But we have screened some of those, and they will not be released. And those are the members of the, you know, the categories that I just mentioned. Q: Can you give us a ballpark figure on that group that you listed above? Della Jacono: As far as-- (Inaudible.)? Q: How many are-- exactly. Della Jacono: I think it's going to be-- we're going to probably-- now, we're taking EPWs and criminals every day, so the numbers fluctuate. But if there's a constant, I don't know what that constant is. But right now, we're holding about 2,000. And out of those 2,000, I think about 500 can be categorized as high ranking individuals, guys on black and gray lists, unlawful combatants and criminals. Q: Sir, this is Kathy Rhem from the American Forces Press Service. Can you give us an idea of what your release process is like? I mean, do you just let them out the door? Do you provide them transportation back to their homes? What exactly do they go through when you release prisoners? Della Jacono: Basically, it's a fully deliberate process. We have stations set up where they're initially interrogated or, you know, they're vetted. Once a determination is made by those three agencies that I just talked about-- a determination is made either to parole them or, if they are truly noncombatants, to release them. They are given sundry items, they are transported in the best way possible to five different locations in Iraq. So-- and we try to get them to their place of capture or their hometown. We do give them-- if they can't make it on their own, we give them $5 to get some transportation, either rail or bus from Umm Qasr to points throughout Iraq. We do give them clothing, food items, and then they're released. Q: Colonel, hi, Jim Dao from the New York Times. Are you authorized to offer some sort of plea bargain to the higher level people you're holding? And if so, could you describe any of those? Della Jacono: I'll let my lawyer answer that. Goetzke: This is Colonel Goetzke. We're currently not entering into any types of negotiations or plea bargains with the individuals who are at Umm Qasr. They're being held as EPWs or those individuals who have been deemed to be criminals or suspected of criminality are being held in that manner. We haven't entered into any stages such as a plea bargain or the pressing of charges at this point in time. Q: Can you say will-- do you expect that process to begin at some point, to-- in your efforts to try to get more information on perhaps higher level, higher ranking people? Goetzke: I can't speculate on those types of agreements and things that might occur at a later point in time. Q: This is Nick Childs from the BBC. A couple of points. You've mentioned unlawful combatants a couple of times. Could you say precisely who these people are, what numbers and on what basis they're being held? And also, there's been much speculation back here that the reason why there's been no formal declaration of victory or formal declaration of an end of hostilities is to give you more options on the ground on a number of fronts, including not having to release enemy prisoners of war straightaway. Could you say if that is, to your knowledge, part of the calculation. Goetzke: One second. Very quickly, I'm not going to go into the issue of why or why not a declaration has (been) made or not been made at this point in time. I'd like to address, though, your earlier question about unlawful combatants. The numbers of the unlawful combatants are fairly small as a total percentage of what we think we will be holding at the end of the process. But these are individuals who raised up, took arms, not carrying them in an open manner, not wearing uniforms; in other words, engaging in tactics and techniques that were not in accordance with the law of armed combat. We're segregating these individuals apart from the individuals who are EPWs, and that is a basic screening type of a technique. And then we move into classic Article 5 tribunal under the Geneva Convention, to make a clear distinction from those individuals who should be accorded EPW status. Q: Could you say if any of these are foreign fighters? And the main reference I've heard in the past about unlawful combatants is those connected with fighting in Afghanistan and ending up in Guantanamo Bay. So it is possible that any of those will end up there? Goetzke: I can't speculate on anything of that nature. I don't think that it is appropriate to draw some of those parallels. Foreign fighters could fall into the category of unlawful combatants. Della Jacono: Now we currently about 200-- over 200 foreign nationals at the theater internment facility in Umm Qasr at this point. Q: Hello. This is Will Dunham with Reuters. Could you tell me, of those 200, what nationalities are represented? Are some of the unlawful combatants members of the Fedayeen paramilitary organization that had gained notice early in the war? And could you be any more specific about the number of unlawful combatants you have and whether they potentially could face trial in U.S. military commissions? Della Jacono: You're correct; a number of those are Fedayeen. We do have members from other Gulf state nations that were also categorized as Fedayeen fighters, that are under our custody and control. As far as numbers, right now I can't give you a ballpark figure, a hard and fast number of the number of unlawful combatants. We're still going through the screenings at this point. But right now I think the last set of numbers that I have seen-- right now the number is about 500. But that could either, you know, through a vetting process, decrease or increase. Q: Can I just follow up? I had asked about whether any of these unlawful combatants could face potential trial on U.S. military commissions. And let me go back to the issue of the foreign nationals. Could you be any more specific about what countries they're from? Della Jacono: I can't be specific at this time. I know there were some captured that were of Jordanian descent. Of course, there were some Iranians in the bunch. Basically, those countries that kind of are around, you know, the state of Iraq, there was some participation there. So, haven't seen any other nations, just like-- you know, like Afghanistan, they came from all over the place, all over the world. It's a lot more localized here. So if you look at the Gulf states, we do have a small population, probably, from each of the Gulf states surrounding Iraq. Goetzke: As to your second question, no determinations have been made whatsoever in terms of the disposition or the manner in which we intend to review their cases after we have ascertained their status. That's an issue that we will look at. Q: This is Karen Branch with the St. Louis Post-Dispatch. How many of the folks that you have there have been put through the Article 5 tribunals because their status was unclear? Della Jacono: Right now, I think the total number has been three. (Inaudible.) Goetzke: I would say that the vast majority of the individuals were sent through a preliminary screening process, and that preliminary screening process determined who were clearly civilians. The Article 5s, I would say it is probably in the numbers of 50 to 100, probably. I can't give you an exact number on that. We'll try to get back to you. But the Article 5 tribunal, per se, is designed to-- the Article 5 tribunal is to determine the-- whether an individual be recorded EPW status, and that is a specific status under the convention. Many of those individuals who were determined to be EPWs through the Article 5 tribunal were subsequently then released, because they were low-ranking soldiers. Others were clearly individuals who deserved EPW status, and they were not put through an Article 5 or a screening process. But I can get those numbers for you, if that's necessary. Della Jacono: Now one thing-- if you do want numbers, we do have 178 criminals that are currently being detained under our custody and control. Q: Sir, this is Kathy Rhem for American Forces Press Service again. Can you give us an idea of the staff that you have manning this facility? Are these military police officers, corrections specialists, regular soldiers? And can you give us a general idea of what units they're from? Della Jacono: They're-- the main unit that's responsible for the theater internment facility, which is our main facility down in Umm Qasr, is run by the 800th MP Brigade out of New York. Currently, there's about 1,700 folks, both support staff and military police that are trained in the handling of EPWs, that are performing those functions down there. Up north in Baghdad, we do have a prison, as you will, another internment facility, that's also manned by military police. And there's a small cadre of civilian-- they're military police, but in their civilian life they are correctional officers. And so they are performing that function up there, plus we have an MP battalion up north that's currently performing that function in Baghdad. But this is primarily in a military police mission. Initially, you know, every soldier is trained on the handling of EPW. But as EPWs flow through each echelon of command, as you will, they ultimately get to a facility that is primarily run by MPs. Q: And is that 800th MP Brigade a Reserve unit? Della Jacono: Yes, it is. But in our corps and divisions, active-duty MPs are also trained in the handling of EPWs. And internment operations is one of the five battlefield functions for the military police. So every MP is trained in performing this mission and duty. Goetzke: The judge advocates who are conducting the screenings and the tribunals are a combination of active component and Reserve component judge advocates. And just as with the military police, the screening, the conduct of Article 5 tribunals, is one of our basic skills that is taught and for which they're prepared to perform. Q: This is Will Dunham with Reuters. I want to make sure that I fully understand your answer about the potential trial by military commissions. You say that no decisions have been made on the disposition of what happens to these unlawful combatants, but you are not ruling out the possibility for potential U.S. military commission trials for them, are you? Goetzke: As I said, no determination has been made as towards the disposition of these individuals. Q: Colonel, this is Thelma LeBrecht with AP Broadcast again. I wondered if you could just go over one more time the figures on those that were released. You said 7,000 were released, but then 3,700 paroled. I wondered if you could just explain the difference in those figures and go over that one more time. Della Jacono: I think what is-- Goetzke(?): I have the numbers. Della Jacono: Okay. The number of paroles is 3,781. Goetzke: And those were all EPWs out of that total. Q: And so the other-- subtracting that from the 7,000, the remaining people who were released were civilians? Della Jacono: They were either civilians or-- primarily civilians. Yes. Q: It's Jeannie Ohm again. Can you talk about the Iraqi officials in the deck of cards, or is that not in your area, what's happening to them? Della Jacono: Well, right now they're being held up in Baghdad in a secure facility. We currently have, as you know-- last count is 16 individuals, 17, excuse me. And they're being well cared for. Of course, we have military police providing security. And they're being treated in accordance with the Geneva Convention, you know, with dignity and respect. And they're undergoing questioning at this time. Q: (Off mike.)-- location and their status has not been determined yet at this point? Della Jacono: You are correct. Q: Hi, Jim Dao again. Of the-- you mentioned that 3,781 had been paroled, and that they had signed some sort of parole agreement. Could you describe that agreement for us? Della Jacono: Right. Basically, the agreement-- and they're required to carry this with them once they're paroled-- I could read it to you real quick-- only take a second. It's: "I," the full name, "knowingly, willingly and voluntarily enter into this parole agreement with U.S. coalition forces. On my personal honor, I promise not to engage in any hostile actions or take up arms against U.S. coalition forces for the duration of hostilities and during the coalition presence in Iraq. I understand that I am free to leave and I may return home. I may return to my unit, but I may only perform administrative and/or medical duties, and I will not participate in any combat activities. I will keep a copy of this parole agreement on my person at all times. If I violate any terms of this parole agreement, I may be prosecuted for committing a war crime. I promise to scrupulously comply with my parole agreement." And they're required to sign this, it's signed by the camp commander and then they're released. Staff: Okay, any other questions? Q: Hi, this is Kathy Rhem once again. I just want to make sure I understand the way you said you were segregating prisoners. Illegal combatants are segregated from regular EPWs, and then criminals are further segregated. Is that correct? Della Jacono: Yes, they are. And that's one of the tenets that, you know, that we're trained to. We do segregate by rank, by gender and, you know, between lawful and unlawful combatants. Criminals are segregated-- we call them civilian internees-- from the rest of the EPW population. So, we do have everybody in their different sections of the theater internment facility. So-- and that's very important to us. Q: You mentioned you segregate by gender. Do you have any women at this facility in Umm Qasr? Della Jacono: I think we have one. Q: What category is she? Della Jacono: She right now is an unlawful combatant. Q: Can you say anything about the process for establishing Iraqi courts to try any of these people that you're holding? Goetzke: I won't speak towards the Iraqi courts trying any of these people, but there are broad-based efforts right now to get the Iraqi judicial system functioning. We've conducted extensive assessments throughout the country to find out the state of the court system, both in terms of their procedures as well as the facilities they have. And we're actively working to try to get these courts up and running again using Iraqi judges who have been properly vetted as well as other personnel from both the prosecution and the defense function so that the Iraqi people will have the opportunity to once again function within a system of laws. Della Jacono: I know in the Baghdad area we are trying to stand up two courts as we speak to allow them to start trying their own criminals. Q: It's Jeannie Ohm again. Regarding the former regime leaders, of the 17 or so that you said are being held separately in Baghdad, can you describe a little bit more in depth? Are they allowed any contact with each other? Are they all in separate rooms? Della Jacono: Right now they are segregated. So they are in their own separate rooms. Q: Karen Branch again. I just want to make sure I understand the numbers. I believe you said 500 of the 2,000 that are being held have been vetted, and those 500 include high-ranking EPWs, unlawful combatants and, I believe you said, 178 criminals. Do you have more specifics on the number of high-ranking officials and the number of unlawful combatants? Della Jacono: That's the problem with drawing on numbers. (Laughter.) Let me try to answer that one again. Right now we have approximately 178 criminals, as you will. The rest are considered EPWs, and they could be high-ranking, you know, EPWs. And then we do have the special 17, as you will, the special category under control up in Baghdad. I know it's somewhat confusing, but there are different categories that we're holding right now-- EPWs, criminals, unlawful combatants. We have the special category detainees, the 17, up in Baghdad. And you got to understand we're still going through the vetting process, you know, to ensure that we understand the true status of these individuals. And that's one of the goals, once we start standing up the Article 5 tribunal process is to determine, you know, status. And that's a little bit more deliberate than the screenings that we've been conducting. The screenings are basically, you know, I mean, they are being vetted by the CI folks, the CID folks, the military police, so-- I mean, so that we could determine an initial status. Initially, when I talked to you, I think, about a month ago, you know, because of the nature of combat, we did detain a bunch of people that were on the battlefield, and once we evacuated them back to Umm Qasr, you know, it took a process to determine their basic status. And some, you know, unfortunate individuals just got caught up in the war and, you know, they were scarffed up and sent down to Umm Qasr. So, you know, we're going through this process right now, and I won't say it's a shoddy process, it's a deliberate process to ensure that we're, you know, letting the right people go. And, you know, we are letting some of the lower- ranking Iraqi military folks return to their homes. You got to understand, part of our IO campaign was to have them surrender to us, so a bunch of them did. And at a future-- just about a few weeks ago, we were given the green light by our higher headquarters to start releasing them. So, now, further on down the pike, there will be a repatriation process for these other folks that we currently have. Q: This is Karen Branch again. I'm sorry, of the 500-- my understanding was 500 of the 2,000 had been vetted already. And I guess, is there nothing more specific, then, of those 500 under how many belong to which category? Della Jacono: Yeah, I threw that out, you know, I think the 500 are people that we still want to retain either for further interrogation purposes, because, you know, of their role during the war; some of these are high-ranking individuals that we need to talk to some more. Some we're trying to determine their status. So, I mean, we do have a bunch; some are criminals, some might be these unlawful combatants, the Fedayeen, as you will. So I mean, it's-- there's a bunch here that we're going to have to, you know, really drill down and figure out who these people are. And just knowing the process we went through in Afghanistan, a lot of times, you know, these individuals don't have ID cards. They didn't wear uniforms. So you know-- and these are smart individuals, too. I mean, they know what we're trying do. So a lot of times they might cover up their identity, especially if they have something to hide. So just figuring out their identity is a process in and of itself. So I mean, we got to do this right, and we want to do this right. And you know, I think, through this process, we've done a pretty decent job. We're releasing those that we feel will be of a benefit to the Iraqi nation, because some of these guys could be the future soldiers in the Iraqi army that we plan to stand up in the near future. Q: Megan Scully with Inside the Army. Have you paroled any members of the Fedayeen party? Della Jacono: No. (Pause.) No we haven’t. Staff: Colonel Goetzke, thank you for being with us. And for those of you who need the spelling of those names, Colonel Della Jacono is D-E-L-L-A J-A-C-O-N-O, capital D, capital J. Q: Is that one word? Q: Two. Staff: Two. Q: Two. Staff: And then Colonel Goetzke is G-O-E-T-Z-K-E. And his first name is Karl with a K. Okay. Thank you. Q: Thank you. # # # Sunday, May 4, 2003 SECRETARY RUMSFELD MEDIA STAKEOUT FOLLOWING FOX NEWS SUNDAY (...) Q: Mr. Secretary One final question about the State the Department, apparently Secretary of State Colin Powell sent you a letter (Inaudible.) to reach a final determination as soon as possible about the prisoners in Guantanamo Bay, also apparently the State Department and the Defense Department have been meeting on this issue. Can you tell us what the results are? Rumsfeld: I can’t. I talked to Colin Powell about it this morning because there were apparently some articles while I was away on the subject. What we have is this situation. We have the Department of Defense has been asked to be the custodian of these detainees, so we are doing that in Guantanamo Bay. They for the most part come from other countries, so they have a country of passport or origin or national origin. We have no desire to hold a lot of these people we would much prefer that other countries hold them so we have been... there is an interagency process with the FBI and the Department of Justice and the Department of Defense, CIA, State, INS and different agencies that have been reviewing all of these people, and it’s a very slow process. One of the reasons it’s slow is because it is interagency and it just takes more time than if someone can just decide. Second the Department of State has the responsibility for dealing with the foreign countries that are interested in those detainees, so Colin’s job is to represent those countries into this interagency process and see if there isn’t someway we can speed that up. I would like to see it move faster, but one of the reasons that it is complicated is because some of the agencies are focusing on law enforcement. What have these people done wrong that might lead to a law enforcement action in our country or another country? Other people like the Department of Defense, The Defense Intelligence Agency, CIA are much more interested in intelligence gathering. What do these people know that we can get from them by way of or through interrogations so that we can in fact stop future terrorist attacks? So it’s a complicated process, it is very slow, it is not anywhere near as fast as either Secretary Powell or I would like. (...) # # # May 4, 2003 - 12:00 p.m. EDT SECRETARY RUMSFELD INTERVIEW WITH WOLF BLITZER, CNN (...) BLITZER:  Welcome back to Late Edition.  We return now to my interview earlier today with the United States Defense Secretary Donald Rumsfeld. I know during the war, before the war, you were very concerned about the position of the Syrian government cooperating with Iraqis, having an open border, if you will.  Has the situation improved, especially in the aftermath now of the Secretary of State's meeting with Bashar Al-Assad? RUMSFELD:  Well, I guess time will tell.  I talked to Secretary Powell this morning on the phone a bit, and it's not -- I think you need to let the dust settle on that.  He, in my judgment, had a visit that was worth doing, and the president asked him to do it, and it was the right thing to do.  We'll see what progress comes.  You know, words are one thing, actions are another. BLITZER:  But right now you're open-minded as far as Syria, whether they will crack down on terrorism, and take some of the other steps that you want them to take? RUMSFELD:  I know what they've been doing, and it's been unhelpful.  I know that Secretary Powell was just there, and advised them that it was unhelpful, and gave them some pointers, and some suggestions for the future.  In my view, they were making some unwise decisions previously.  What they'll do after this visit remains to be seen. BLITZER:  The Secretary of State has written you a letter expressing apparently some concern about the length that the prisoners can be spending, those detained at the U.S. Naval Base at Guantanamo Bay in Cuba, about 600 or so of them.  Is there any movement in trying to determine the fate of those individuals? RUMSFELD:  I don't think that's quite accurate as to what he wrote me about. BLITZER:  Tell me what's right. RUMSFELD:  I think what he wrote me about was the fact that he interagency process where we have all these FBI and Department of Justice and CIA and DIA, and what-have-you, involved in interrogating these detainees, it takes time to find out what intelligence they have.  It also takes time to figure out what law enforcement process might be appropriate.  And what Colin and I have been concerned about, both of us, is that it's taking so long.  There are a number of countries, and the Department of State has the responsibility of dealing with those countries, who have foreign nationals in Gitmo, in Guantanamo Bay, Cuba, being detained.  And those countries, understandably, would like to know when they could have those people. So the interagency process takes a great deal of time.  Colin and I are trying to speed up that process, and that's what that's all about. (...) # # # May 2, 2003 http://www.defenselink.mil/news/May2003/b05022003_bt297-03.html NEWS RELEASE No. 297-03 IMMEDIATE RELEASE DoD ISSUES MILITARY COMMISSION INSTRUCTIONS The General Counsel of the Department of Defense today issued eight military commission instructions that would facilitate the conduct of possible future military commissions. "The issuing of these instructions is another step DOD has taken towards being prepared to conduct full and fair military commissions," said Deputy General Counsel Whit Cobb. The instructions issued today include crimes and elements of offenses as well as other administrative guidance and procedures for Military Commission participants to facilitate the conduct of full and fair trials. Issued instructions include: Guidance on Military Commission Instructions themselves http://www.defenselink.mil/news/May2003/d20030430milcominstno1.pdf Crimes and Elements for Trials by Military Commission http://www.defenselink.mil/news/May2003/d20030430milcominstno2.pdf Responsibilities of the Chief Prosecutor, Prosecutors, and Assistant Prosecutors http://www.defenselink.mil/news/May2003/d20030430milcominstno3.pdf Responsibilities of the Chief Defense Counsel, Detailed Defense Counsel, and Civilian Defense Counsel http://www.defenselink.mil/news/May2003/d20030430milcominstno4.pdf Qualification of Civilian Defense Counsel http://www.defenselink.mil/news/May2003/d20030430milcominstno5.pdf Reporting Relationships for Military Commission Personnel http://www.defenselink.mil/news/May2003/d20030430milcominstno6.pdf Sentencing http://www.defenselink.mil/news/May2003/d20030430milcominstno7.pdf Administrative Procedures http://www.defenselink.mil/news/May2003/d20030430milcominstno8.pdf # # # May 2, 2003 - 1:00 p.m. EDT BACKGROUND BRIEFING ON THE RELEASE OF MILITARY COMMISSION INSTRUCTIONS http://www.defenselink.mil/transcripts/2003/tr20030502-0144.html Presenter: Senior Defense Official Military Commission Instructions Texts (PDFs): http://www.defenselink.mil/news/May2003/b05022003_bt297-03.html Staff:  Good afternoon, and thank you for joining us this afternoon.  The general counsel of the Department of Defense has issued eight military commission instructions that would be necessary to conduct possible future military commissions.  I believe all of you have been provided with a copy of those.  The issuing of these instructions is another step DoD has taken towards being prepared to conduct full and fair military commissions, should the president make a determination that commissions are necessary. Today, we have with us three senior defense officials and military officials. And we are on background, and they can be referred to as a senior defense official and two military officials. And here are their bona fides. (Pause.) I'll put this over on the table.  If anyone needs table-- or, titles and stuff later on, it will be sitting over there for you. So, let's go ahead and get started. Defense Official:  Good afternoon.  My two colleagues and I are from the Office of General Counsel, Department of Defense.  And we're here to tell you about the eight military commission instructions that the general counsel of the Department of the Defense has issued.  These instructions were prepared as part of the process to be ready in case the president decides that it's appropriate to try any captured enemy combatants by military commission. We previously issued a draft instruction on Crimes and Elements that we had circulated for public comment, and one of the eight instructions, the Crimes and Elements instructions, is now final. Just to give you some background, the president issued a military order on military commissions back in November of 2001.  Then in March of 2002, the secretary of Defense issued Military Commission Order No. 1, which laid out the basic procedures for holding military commissions. Today, pursuant to Military Commission Order No. 1, the general counsel of the Department of Defense is issuing these eight instructions that further facilitate the conduct of military commissions by, for example, defining the substantive crimes that military commissions can try.  The eight instructions that we're handing out today are the complete set of instructions issued to date. In developing these implementing instructions, we sought and received input from various experts in and outside the government, and we feel that a great deal of advice, thought and hard work has gone into the drafting and issuing of these instructions, and we're confident that they will provide for full and fair trials before military commissions. I'd like to turn the discussion over to my colleague from the General Counsel's Office, who's really our subject matter expert on these military commission instructions, and ask him to discuss a little bit more about the substance of the instructions. Defense Official:  Thank you.  And I too would like to thank you all for coming and reiterate that a lot of hard work and effort went into these instructions, both by people here in the building that were involved in drafting but also, as was just mentioned, a number of experts inside and outside the government.  They deserve a lot of thanks for many hours spent considering some issues associated with these instructions, and we very much appreciate the assistance we received. I was going to say I hope you've had a chance to read through the instructions, but I was in the room just a minute ago when they were being brought out here, and I know, if someone has read through them all completely, then I don't think I want your questions anyway. But that said, if you have had a chance to peruse them, you're at least familiar with the instructions.  And one of them has already, at an earlier stage, in draft form, been briefed. At that-- with that, I would just state that we believe these instructions will indeed facilitate full and fair trials by military commission, and with that, open it up to your questions. Q:  Could you-- I have two questions.  At a general level, could you explain to us the differences that you incorporated between the draft that you issued to us a little while ago and this one, and point out where those changes are? And then I'm also looking at 5-3 [Military Commission Intructions No. 5, page 3], where it talks about how civilian defense counsel can get secret clearances or use secret clearances.  And I'm wondering if you could explain if that's different from what's been going on within Padilla case.  Is this a different kind of power-- that civilian lawyers will now have access to secret government documents-- and able to form the defenses? Defense Official:  Okay.  Sure.  With respect to the first question, I think you were referring then to Commission Instruction No. 2, which is the lengthiest of the instructions in this packet.  But realize there are seven others-- I won't say unrelated, but of completely different sort.  They were not previously released in a draft form. Q:  Are these in still drafts, these seven others? Defense Official:  No, the seven others are, in fact, finalized instructions. In terms of the changes made mostly, you'll-- we received-- I should comment, I suppose, that we received quite a number of comments, very useful comments, from various officials, from other governments, nongovernmental organizations, and private groups and individuals in and outside of government.  It ended up being a very useful process, and allowed us to refine a lot of the language in Military Commission Instruction No. 2. When I look at substantive changes, it's tough to identify a large number that are-- it depends what you call substantive, I suppose.  And that's probably good news in that they are designed to reflect accurately the current state of customary international law, and that oughtn't be changing too rapidly. Fortunately, it didn't. What we'll find, though, is a number of wording changes throughout.  It would be impossible to go through all the language clarification.  There was some clarity in the "Wrongfulness and Defenses" section, where it caused a little bit of confusion in the earlier draft and appeared as if there was a burden shifting, and we clarified that the burden is always on the prosecution to prove guilty beyond a reasonable doubt.  A few of the other definitions had some wording changes with extra clarification. We did add two offenses that were not in the earlier draft, and I'm trying to turn to them now to be able to identify them for you. One is the crime of torture, that you'll find on your Page 2-8 [Military Commission Instructions No. 2, page 8], Number 11.  And there's also a crime of causing serious injury, on Page 2-9 [Military Commission Instructions No. 2, page 9]. We also restructured the document slightly so as to make clearer the two different sections under Paragraph 6, that begins on Page 2-4 [Military Commission Instructions No. 2, page 4].: A, "Substantive Offenses," being war crimes, and then the subsequent section being "Other crimes triable by military commission"-- "Other offenses triable by military commission," starting on 2-12 [Military Commission Instructions No. 2, page 12]. That's really, I think, in a nutshell the majority of the substantive changes. Your other question, I believe, was on Instruction No. 5. Q:  Yeah, it was-- it's on, I think, page-- it's 5-3 [Military Commission Instructions No. 5 , page 3]., and it talks about how they can have civilian defense counsel, and the civilian defense counsels will either have-- can have a secret clearance or can get one if they pass the background check.  And I'm wondering-- I don't know enough about the other situation to know; is this a different kind of power that they'll be able to have, or is this the same thing that civilian defense counsel can do right now in the Padilla case? Defense Official:  I would say we have a new judge advocate spokesman, too, that we've brought on board, and I don't know if you can look into the details of that and compare it to the Padilla case. I don't know of any differences. Defense Official:  Well, the primary difference is that the Padilla case involves what's called a habeas corpus petition that has been filed in Padilla's behalf.  That's not a criminal proceeding against Padilla; it's a legal claim that Padilla is making that he shouldn't be detained.  So in habeas corpus proceedings, in general you would not have a right to have counsel for the petitioner have access to classified information. Q:  But if that were to go to the courts, however, then his counsel would have access to all of that?  I'm just trying to find out if there's a difference here in this structure than there is the standard. Defense Official:  I took your question to be the technical means, how they would get the clearance. Q:  No, no, no.  I'm trying to figure out if there's some difference.  I'm trying to understand this situation as it differs or is the same as the stuff that we're already familiar with. Defense Official:  Well, for instance-- Q:  So it was a "compare and contrast" question. Defense Official:  I think that the point of your question, what you're getting at is will a defense counsel-- a civilian defense counsel in this case, if they have the "secret" clearance, have access to secret information. Q:  And it says here yes, they do.  And my question is, is that different from the other sorts of legal situations that we're dealing with in the global war on terrorism, and I offered for you, say, the Padilla case, one I know that there is some question.  Obviously, my legal background is minimal.  (Laughs.)  I'm hoping that you can explain if that's different to us now.  And I'll stop talking. Defense Official:  In criminal cases in federal court involving classified information, ordinarily the defense counsel would seek to have a clearance so that he or she could have access to classified information.  The difference in the military commission proceeding is that, first of all, as a prerequisite to be a defense counsel, you'd have to be eligible to have a "secret" clearance. And then secondly, the defendant in a military commission will always have a military defense counsel, a JAG, who will have access to all classified information.  The civilian defense counsel may or may not have access to all classified information, depending on the level and sensitivity of the information. Q:  Is that pretty much how the World Trade Center trial worked? Defense Official:  In that they had to get clearances on the defense counsel side.  Similarly here.  I guess the main difference, as was just stated, it's kind of a prerequisite from the outset, before the trial even starts, that we assume there will be some need for a classification capability.  So it's earlier on in the process so that we don't have to stop a trial, slow it down in the middle, and then get the appropriate clearances. Q:  But I noticed here in 4-5 [Military Commission Instructions No. 4, page 5] , you do say the fact that you as a civilian defense counsel have been granted membership in the pool of available counsel and you've entered a case, does not guarantee your presence at closed commission proceedings or access to information. Does that mean whether or not you qualify for this security clearance, you can still-- there still can be circumstances you foresee in which there's a closed session, in which the civilian attorney might not be allowed to participate? Defense Official:  I believe there could be.  I think they'd be few and far between.  This is based-- if you look at Military Commission Order No. 1, that Secretary Rumsfeld issued in March of last year, a secret clearance level is what's required for a civilian defense counsel.  To raise that level would preclude a much greater swath of the defense counsel, the potential defense counsel, out there. And so what this is a recognition of is the fact that there may be something more highly classified than could be seen by someone with a secret clearance level.  And in those instances, perhaps civilian counsel may have a high enough clearance to be able to get access, perhaps not.  We're not going to prohibit them from being civilian defense counsel, though, just because they can't get the higher clearance.  But based on that, there's an assumption that-- this indicates that there is that possibility that there might be some session they can't attend.  There will never, however, be a session that won't be attended by the accused military defense counsel.  So the accused will always have a lawyer in every session. Q:  And one other thing.  Another qualification to be a civilian defense attorney, despite the fact that all those people that will be tried by the commissions, if any, will be foreign nationals, the defense counsel have to be American citizens.  Is that correct?  (Pause.)  And there's no exception to that? Defense Official:  No, not in-- in fact, that again flows from Military Commission Order No. 1.  So these instructions are guidance-- it's subordinate to that military commission order. Sir? Q:  Is this procedure open, public, from beginning to end, with, as in any court, occasional excerptions?  But is the idea that everything from the charges and who's charged to the imposition of the sentence would all be public? Defense Official:  That is the assumption.  But as you just heard, when we're quoting closed proceedings, that suggests that that's not an open one, and in fact that's when they would not be open.  The Military Commission Order No. 1, again, addresses that and says that they will be open-- "to the maximum extent practicable," I believe, is the term. Q:  Would that be the case with the-- if there are detainees in Guantanamo who are charged, or would they just automatically be closed because you won't disclose any information at that point? Defense Official:  I don't think anything would automatically be closed.  I think it will take very seriously that they'll be open to the maximum extent practicable.  So it would only be if there was a need associated with protected information, which is defined in the order, that they would be closed. Sir? Q:  Yeah.  For the benefit of my slow mind, can you remind us what the difference between court martial and military commission is, basically, and what are the main differences? Defense Official:  Well, courts martial have historically been used primarily for good order and discipline of our armed forces. Military commissions have been used for perhaps a wider variety of things.  But in every case of a war crimes trial, violation of the laws of war, historically the United States has used military commissions. Military commissions-- the manual for courts martial gives detailed procedures and rules for courts martial, which occur every  day-- maybe "every day" is too much of a stretch-- but frequently in the armed forces of the United States. And that's an up-and-running system that works during peacetime.  Military commissions are usually associated with times of armed conflict. Q:  And what are the main differences, in terms of structures and rules, between the two of them? Defense Official:  Well, there's an awful lot of details.  It would be tough to lay them all out right now.  I think that the military commission order and the president's military order are drafted in such a way as to capitalize on the flexibility needed because of the increased need to protect intelligence information that occurs during an armed conflict, and a recognition that the kinds of evidence that one might find on a battlefield is very different than the normal situation our law enforcement officers have when they're getting evidence in peacetime.  It's tough to get a warrant for a case.  So in that respect, it allows the panel members more flexibility in determining what evidence has probative value and may be admitted.  Similar evidentiary rules to our other international tribunals, like the Yugoslav tribunal at The Hague, or the Rwanda tribunal.  That's one difference. The other primary difference, I think, would be that there's three to seven commission panel members, the presiding officer acting as one of the panel members but being a military judge in terms of experience; whereas a court martial has, in the case of a general court martial, five or more members and then a military judge who is separate from the fact-finding panel of members. Q:  Have any of these positions on, appointing authority, the legal advisor, the prosecutor, been determined yet?  And if not, how close is the secretary to naming some of these individuals? Defense Official:  None of those positions have been formally filled as of right now.  There are people under consideration, in some cases people serving in acting capacities, but no one has been formally designated yet. Q:  Can you tell us who the individuals are in acting capacities? Defense Official:  We'll get back to you on that. [Names of individuals serving in acting capacities are clear for public release at this time.] Q:  Beyond that, is there anything more that needs to be done, whether judicial, administrative point of view, in terms of being prepared to carry out these military commissions, or is this it?  Is this essentially the apparatus in place now to go ahead with such things if the decision is made? Defense Official:  Well, I would say that there are a number of smaller, logistical-type steps that need to take place, as well as   just, you know, getting military commission members selected, and arranging the travel, and ensuring that all the security procedures are in place, you know; but pretty much, you know, we are ready to go when the time is right. Q:  I have a question.  Do these instructions constitute the legal code for the commission?  Is this the law-- when somebody's being tried before a commission, is this the law that decides the commission, like the legal code? Defense Official:  I'd say that this, coupled with the president's military order and Military Commission Order No. 1, signed by Secretary Rumsfeld, provide regulations for how to conduct commissions, yes. Q:  But the law that a defendants' charged with and such, that's what this is, right? Defense Official:  Well, that would be Military Commission Instruction No. 1, which is not a codification of the law.  It's simply a(n) articulation-- or, excuse me-- Military Commission Instruction No. 2, which is not a codification of the law, but it's simply an articulation, a distillation, if you will, of customary international law of armed conflict, which is the basis of the substantive law that military commissions would use in this instance. Q:  Also, where are the commissions going to be held?  And about how many personnel do you think you're going to have to give up to serve on the commission? Defense Official:  I think those are both decisions that are yet to be made. That's one of the benefits of the flexibility of commissions and the ability to constitute them quickly, if needed; that those decisions can be made in different directions or changed, and we could still move forward. Q:  Do you expect any reservists to have to be called up to fulfill these-- the need for being a commissioner?  Is that what they're called, a commissioner? Defense Official:  A military commission member. Q:  Do you expect the Reserves will be needed? Defense Official:  Reservists-- National Guards member, as well as active duty members, are eligible to serve on military commissions.  And, you know, we'll look to the services to determine who they want to nominate to serve on military commissions.  You know, I doubt that, at least in the short term, that there would be such a   great number of commissions that you would have to call up reservists to serve on commissions, but that would be an option. Staff:  This lady in the blue is next. Q:  How far has the president progressed in determining likely candidates for military commissions on Guantanamo Bay?  And what's your understanding as to how soon the military commissions will start? Defense Official:  Well, we have been reviewing the different cases for some time, and we obviously have some thoughts about who would be appropriate to bring before a military commission, but no final decisions have been made yet. Q:  Any numbers as to how many at this stage? Defense Official:  I really couldn't-- really wouldn't want to speculate about that just because of the many factors that would be involved in selecting someone to go before a military commission. As I said, we are pretty much ready to begin them when the time is right.  I don't want to-- I can't really give you a more specific time frame because I, personally, just don't know, you know, when they will begin.  But we are ready to start them, once all the pieces fall into place. Defense Official:  Just to follow up on that real quick, so that you understand what is being said, and that is that when we talk about the time being right, realize under the president's military order, we don't have jurisdiction over anyone to try them by military commission until the president designates them as being-- (aside)-- what's the term? Defense Official:  Subject to the order. Defense Official:  Subject-- thank you-- subject to his order.  So until that happens, as a technical matter, we don't have jurisdiction.  So that's what we would be waiting for. Q:  Does it mean then, though, that you've already had your thoughts about-- as to who might be likely candidates?  Have you actually narrowed down who you believe should go before a military commission, and now you're just-- and you've got the commission process in place, and now you're just waiting for the president's order to make them subject toward it?  Is that the way it is? Defense Official:  I think that might assume a little too much. Q:  Just because-- because why?  You haven't actually narrowed down who should go before the commission? Defense Official:  Well, because that's-- when you say "you," it's a question of whose choice that it is. Q:  Has it been narrowed down as to who should go before the commissions, has it been narrowed down as to who is going to go before a military commission? Defense Official:  I think those things are still being considered and looked at.  And just to step on that, to give you a little bit of an overall idea of the entire process, first, the president does have to determine someone is subject to his order, which just means there's jurisdiction.  Once he does that, it doesn't necessarily mean that person is going to go before the commission. There's an appointing authority who will then refer charges to the commission. So it is a two-step process.  And we really don't want to mix those up.  So there's a few decisions, and there's still some more consideration, I think, that has to go on before we get to that point. Q:  Can you elaborate on the appointing authority?  Who's that and what does he -- Defense Official:  Well, right now, under Military Commission Order No. 1 that came out in March of last year, there's an appointing authority who is responsible for coordinating and overseeing the entire military commission process.  The appointing authority, as of now, is the secretary of Defense, and he may delegate that responsibility, if he decides to do that. Q:  If I could follow up-- Defense Official:  Sure. Q: -- just on page 2 - 3 it said-- in the definition, it says  enemy-- I presume it's talking about people who may go before a commission, and it says "enemy" is blah, blah, blah, someone who's going to engage in conflict or is preparing to attack the U.S.  So who would decide-- I mean, if the person hasn't been tried before, so they're not convicted, I mean, who decides that they've-- and under what burden of proof that they've been preparing to attack the U.S.? Defense Official:  I think that your-- the predicate to your question is wrong, in that you're assuming that that's who would be tried.  And in fact this definition of "enemy" is only one that refers to elements for other crimes that you find subsequently in that instruction.  That-- there would be definitions -- there would be the elements that are used to determine whether someone's guilty of another offense.  This is not a definition of who would be tried by military commission. Defense Official:  And the lady in the white's been patiently waiting-- Q:  And how far is this going to apply to people being detained now in Iraq? And you said you had other nations consulting you.  Do you have somebody from the United Nations consulting you on this? Defense Official:  We haven't really been, unless we've specifically spoken to them about it and asked if they minded.  We have got in consultations from-- some privately, some publicly.  Most who have wanted to make their consultations known have done so by putting their own comments on the Web or something like that.  So we've really avoided saying exactly who consulted, necessarily, in various areas. I forgot the first part of the question. Q:  How much of it applies to Iraq? Defense Official:  Well, by the order itself and by the president's military order, this does not apply necessarily to Iraq. Now when the question was asked earlier about the code, the substantive law that might be applied, you should realize, of course, that the law of war is the law of war; it's not necessarily-- it doesn't change.  It's the international law of armed conflict.  So, one could expect that some of the same crimes that would appear in Military Commission Instruction No. 2 would be the same kind of crimes that you'd find in the-- used by the Yugoslav tribunal or some of the accusations you've been hearing on the news regarding Iraq. Defense Official:  And just to be further specific on Iraq, if there were people who met the criteria of the president's military order-- that is, basically, international terrorists who were captured in Iraq-- it is possible that they could also be subject to this process. Q:  Will you be holding any of these commissions in Iraq? Defense Official:  I think we're starting to mix apples and oranges a little bit.  This order right now is the president is looking at the enemy combatants as he determines met the three criteria he listed in his original order.  And I think it would be premature to start saying, well, it could be to fly to Iraq, or would there be commissions held in Iraq?  I think there's a lot of things being thought of, but I don't think there is anything we could say on that right now. Q:  I didn't see anything in here regarding appellate procedures.  Does this mean that the decision of one of these commissions would not be subject to review? Defense Official:  The appellate review procedures are dealt with in Military Commission Order No. 1.  These instructions-- if you look at Military Commission Order No. 1, that document delegates to the general counsel the authority to issue supplementary instructions that would facilitate trial by military commission.  It would be tough to-- I mean, it's a little tougher to see how the general counsel for the Department of Defense would necessarily have instructions that would apply to the review authority, which is designated by the secretary himself under the Military Commission Order No. 1.  So that's why you don't see specific-- (Light laughter.)-- (Cross talk.) Q:  Say that again! Q:  Yes, two questions about the defense counsel.  There's a very-- there's a blanket rule that the defense attorneys cannot speak to the media about anything regarding the commissions, not just   classified evidence.  What's the rationale for a complete gag order regarding the commissions? Defense Official:  Let me, before I forget, restate the thing that confused everyone, and that's simply that these are instructions subordinate to Military Commission Order No. 1.  And that order itself authorizes the general counsel to issue such instructions consistent with the order that he deems necessary to facilitate the conduct of proceedings by commissions.  That doesn't on its face include the appellate procedures, and that's why-- Q:  Is that the major difference between military commissions to court martials and the federal district court, which are the other two options; that the other two options give right of appeal to the defendant, whereas a military commission doesn't? Defense Official:  Well, the military commission order also clarifies that there is, in fact, a review panel and every case will go to that review panel designated by the secretary, and then it's reviewed yet again by the secretary, and then finally by the president unless he delegates it. Q:  (Off mike.)-- it doesn't go to a separate appeal person. Q:  Defense Official:  They're all the people who decided the person should be there in the first place; the secretary, the president, I mean, who are reviewing the case are the people deemed the individual to be worthy of trial. Defense Official:  That's not quite accurate. And I feel bad because I realize there is that question back there. Q:  (Off mike.) Defense Official:  But just to clarify this one:  No, when the president designates someone as being subject to his order, that is not a decision to try them at all.  In fact, the way his order reads is "if" tried, tried by military commission, it's simply that DOD has cognizance over that person in this war on terrorism.  That is not a decision to try the person.  It's the appointing authority, potentially the secretary or someone delegated by the secretary, who would approve charges and refer the case, and then that appointing authority, if delegated, has no real adjustment authority.  It then goes to the secretary, the review panel and the president. Q:  But here's a person who was involved in the decision to try the person, as opposed to an independent review person. Q:  Like the federal court-- (Off mike.)-- appeal process. Defense Official:  I don't know if that's really a fair statement or not, because wouldn't it be the same thing if the president's order from the outset designated everyone?  Then has he been involved in the decision to try them?  I don't know.  It's an issue of how much of a nexus you draw between the designation and trial. Q:  But they're not judges and they're not lawyers, these people that would be reviewing it.  And Rumsfeld makes a frequent public point of the fact that he's not a lawyer.  So how he is supposed to be able to review this legal proceeding to see if it was fair or rightful? Defense Official:  Well, at least one of the review panel members has to have experience as a judge. Q:  We're talking about on the appeal or on the review of whatever the decision that comes out. You're talking about referring it up to people who don't have legal background. Defense Official:  Well, no, the way it works is that you have a military commission proceeding, and if you have a conviction, then it's automatically appealed to something called a review panel, which is a body that would have legal experience.  And the review panel makes a recommendation to the secretary of Defense. Q:  So the ultimate decision is to the Secretary of Defense, based on the review panel?  The review panel can't make a decision to overturn a decision by the military commission; it's got to go through the secretary of Defense? Defense Official:  Well, actually, it can send it back down for further proceedings or for new proceedings. Q:  And to the same commission? Defense Official:  Well, based on its instructions.  So it would be a remand, the same as an appellate court would have authority. And I feel bad that we've left this question hanging, successfully begged it for -- Q:  Yeah, just to restate the question.  On page 4-6, it says that the defense team is not permitted to speak to the news media about anything related to the commissions, not just classified evidence or, you know, specific things.  What's the rationale for that blanket rule? Defense Official:  Well, I think one answer is we, in fact, have a spokesman that's planned to be the spokesman for all parts of the military commission process.  But I think more importantly, though it's a bit presumptuous to presume what the intent was, necessarily, in each and every one of these, as a practical matter, the same effect is true of the prosecution and the defense in this case.  You'll see an identical provision in the instruction regarding the prosecution. And I think the intent there would be that the goal is a full and fair trial by commission.  The goal is not to win public support for either side, necessarily, but to keep the focus of all the litigants on this full and fair trial process, because that's what-- Q:  What about after-- Q:  But what about public confidence in the process itself?  I mean, how can you -- how can the international community have confidence in the work that-- you've worked so hard on putting this together.  How can you be sure that the international community isn't just thinking that you're setting up a kangaroo court?  Because the information will all be filtered through one individual, that it will be easy for people to say that this is just a mouthpiece for a process that you know and you believe is something that's legitimate, but how are-- how's the rest of the world supposed to believe that if they don't feel like, you know, the media isn't getting some sort of independent access to it? Defense Official:  That's actually where you come in.  As mentioned earlier, it is going to try to be an open and public trial, as long as we can, protecting classified and protected information.  So we're going to rely on you folks to make sure that that word gets out and report on what you see-- Q:  Does the gag rule extend to after the proceedings are over? So if the guy is convicted, is his defense attorney still restricted from saying anything? Defense Official:  I think that's the way I would read the instruction. Defense Official:  Right.  But now-- but to further look at what the instruction says, it says that defense personnel may communicate with the news media representatives, blah, blah, blah, only when approved by the appointing authority or the General Counsel, Defense of Defense.  So it is certainly possible and perhaps probable that those kind of contacts would be authorized. Q:  The second question I had was, the president's military order-- it precludes any review by the federal judiciary.  That is something that-- or at least claims that this system is not reviewable by the federal judiciary.  To be appointed defense counsel, do you have to agree not to appeal?  Because you can imagine a zealous defense counsel saying, "Well, the president said that, but I'm going to, you know, challenge that claim."  Do they have to agree not to even attempt that sort of review? Defense Official:  That-- if you look at Military Commission Instruction 5, dealing with civilian defense counsel, and then 5-B is an affidavit that is an annex to that instruction, and I don't believe anything that you've just described, any of-- prohibition with respect to subsequent proceedings is included in either of those instructions.  So that's a long way of saying no. Q:  Okay. Q:  What's-- Staff:  We need to wrap it up.  About two more. Q:  What-- Staff:  Maybe somebody that hasn't had a question. Defense Official:  I think the lady in the pink hasn't asked a question. Q:  Yeah.  This might be sort of along the same lines as asking exactly who could be tried, in terms of Iraqis.  But is there any-- is there-- it seems like pretty much an enemy is someone who's engaged in armed conflict with the U.S., and "armed conflict" is to be fairly broadly defined.  I'm wondering if there's any way that a U.S. citizen could be tried before a military-- (Off mike.) Defense Official:  Well, the answer to that is no, with respect to these commissions that were established by the president's military order of November and Military Commission Order No. 1, because it specifically excludes American citizens from those subject to the president's military order. Again, though, we're mixing a bit of apples and oranges.  I just want to clarify that-- perhaps this is the problem of getting something that you can only read through the beginning of.  The "enemy" here is really simply a short way of referencing a definition for "enemy" everywhere it appears in the elements. That's not who would be tried.  That's how to identify different parties when in fact you are defining one of the war crimes.  Some-- a war crime that might have to take place, you know-- and I unfortunately can't quickly find the spot where "enemy" appears, but it's simply identifying either the object of an attack or the perpetrator of an attack.  That's one of the requirements under the law of war for the crime, that's all. Staff:  Okay, and we'll take the last question from this young man. Q:  Can I just clarify-- were these instructions written with the detainees from the Afghanistan war and related operations in mind, and not the Iraq war in mind?  For example, the Guantanamo prisoners but not people who have been taken during the Iraqi war-- the Iraq war. And can you tell me also, is there a possibility that we're going to be seeing these commissions operating in places outside of the United States?  For example, at Guantanamo or in Iraq. Defense Official:  Well, I think the answer to your first question is that these specific instructions are directly subordinate to Military Commission Order No. 1, which in turn, is subordinate to the president's military order that's specifically related to the war on terrorism.  And in that regard, it was not specifically oriented toward Iraq. Q:  Or the Iraq prisoners? Defense Official:  Well, again, if you-- Q:  (Off mike.)-- so it must be-- I mean, isn't that the connection you have? Defense Official:  Well, certainly, al Qaeda appears prominently in the president's military order, and to the extent that there was someone who was a member of al Qaeda, for instance, then the president's military order would apply.  The president's military order wasn't drafted with Iraq in mind, and neither were these. In terms of where the commissions could take place, I think that is one of the aspects of military commissions, and that's the flexibility they have.  Yes, they could take place in any number of places, as could courts martial.  And in fact, courts martial do take place all the time all over the world.  Commissions could, as well. Q:  So you're not saying specifically it's going to take place at Guantanamo, but it could take place there? Defense Official:  I think there's nothing legally that would preclude that. Q:  Just to follow up on that, on the last thing concerning Iraq, is there anything in these-- in the president's order, Rumsfeld's guidelines or these documents-- that would preclude the holding of commissions, trying people in Iraq who had either violated the laws of war, such as by waving a red flag and attack-- a white flag and then attacking U.S. forces or, say, torturing Iraqi people and launching chemical weapons against them?  Is there anything that precludes that?  Or are we-- are we reporters simply barking up the wrong tree by trying-- asking about Iraq? Defense Official:  Well, I would cite you to the president's order, Section 2, and Section 2(a) defines individuals subject to this order.  And essentially, there-- it's probably worth just looking at it yourself.  But there are three -- well, that definition there does not include a simple enemy prisoner of war in a conflict with Iraq. It's related to al Qaeda membership and terrorist activities that the subject matter-- that our personal jurisdiction would flow from. Defense Official:  But that doesn't mean that you couldn't have a new order that would cover other areas. Staff:  Okay, thank you very much. # # # April 25, 2003 - 11:59 a.m. EDT DOD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. MYERS (...) Q: Mr. Secretary, with regard to the growing list of high- profile former Iraqi government officials that you have in custody, I guess they are determined to be prisoners of war. Where they are being held and sort of how you are handling them and determining what their future is going to be remains an open question. Have you done thinking on those things? What is likely to happen to them? What, if anything, are you getting from them, at this point, by way of guidance or insight into the things that you are most interested in? Rumsfeld: We have acquired, scooped up, have custody of a large number of people, Iraqi people, even some non-Iraqis. We've got a number of Syrians and other nationals that were in there doing things they shouldn't have been doing. The number is somewhere between 7,000, 7,500, I'm going to guess. They're in various locations. I think we're probably down to one or two enemy prisoner of war camps. Myers: That's probably right. Yeah, we had some locations where we had collection points, and then kind of probably consolidated. Maybe three at this point. Rumsfeld: We still have some others in custody in other parts of the country. We're not inclined to tell you where, but we have them. We're keeping the hard cases separate, for the most part. We are systematically going through the less- hard cases and releasing people. I believe we've released over a thousand people already, probably ordinary foot soldiers who were part of an element that surrendered, and when we had a chance to vet them and take a look, why, we said, gee, let's send them home and get them out of here. And as others have been brought in, we've been moving others out. So we've been, I think almost every day, moving out something in excess of 100, which is a good thing. We, obviously, don't want to hold any more people than we have to. You can be certain that the people who we have reason to believe have information are being interrogated by interagency teams, and they are in fact providing information that's useful. (...) Q: Mr. Secretary, when it comes to the senior regime leaders that have been captured, such as Tariq Aziz, are they considered prisoners of war? Are they subject to the protections of the Geneva Convention? Will they be visited by the Red Cross? Will they be possibly moved to Guantanamo? What's going to happen to them? Rumsfeld: Lots of questions. With respect to Guantanamo, the answer is no. We intend to not take people, regardless of what they're characterized as, from Iraq or from any other country to Guantanamo Bay at the moment. Could it change? Possibly. But my preference is not to. And I would guess I'd have a voice in it, and I would discourage doing that. I think that it's hard to characterize all of them in the same way. I mean, some of them may very well be people who were military. Let me-- Q: Well, say, take Tariq Aziz, for example. Rumsfeld: Well, let me-- some of them are military, and they would be considered enemy prisoners of war. We were in a war. Some others might have been in civilian garb, like the Fedayeen Saddam, and the question is, what are they? And the lawyers will sort all that out. What we do know is that there are people who in large measure have information that we need, and we need that information so that we can track down the weapons of mass destruction in that country. We need that information so that we can track down the terrorist links between Saddam Hussein's regime and various terrorist networks. And we need it to track down other people. We need it to find records so that we can go through this process of "de-Ba'athification," if there's such a word, trying to eliminate the influence of the Ba'ath Party in that country. There's lots of very important projects we've got. And the first order of business is, in my view, to stop holding the ones we don't need. And that's why we're working through 200 or 300 a day, trying to sort them and get rid of them, let them go back home and live their lives if we don't need them. Conversely, we-- the ones-- we sort out the high-value ones, and get interrogation teams working together that information. And clearly, Tariq Aziz falls in the latter category. Q: Is he a POW, subject to the protections of the Geneva Conventions? Rumsfeld: These are lawyers are going to sort through that. Was he in the military? He always-- every time I was ever with him, he always wore a camouflage uniform and a pistol on his hip. Does that make him military? I don't know. He was deputy prime minister; he was, I believe, foreign minister. But the lawyers will figure that out. I don't have to worry about that stuff. (Laughter.) Q: Mr. Secretary, is the U.S. considering possible criminal charges against any of these Iraqi leaders? And if not, at the conclusion of any conflict, wouldn't they be subject to release? Rumsfeld: There are rules that apply to people depending on which basket they're in. It's true that when a war is over, there is a responsibility to release people who fit in certain categories but not in others. The lawyers are currently sorting through the question as to how they want to deal with this. Do they want to have some sort of a tribunal, should the Iraqi people do it, should some international organization do it, should the United States do it? I think probably the latter is not our first choice, but that's going to be decided at a higher level than this. Yes? Q: But at this point, is the U.S. considering possible criminal charges of some kind against Iraqi leadership who are in custody, as opposed to a foot soldier? Rumsfeld: I think I just answered that as well as I can. The lawyers are going to sort through that and decide. And they'll decide whether we ought to consider criminal charges, and in what particular venue. Yes? Q: Aren't you a player in that? Q: Mr. Secretary, are you concerned-- regarding Guantanamo Bay, do you care how it looks to the rest of the world that you're holding juveniles at Guantanamo Bay without legal representation? And what assurances can you give the families of those juveniles, who don't have access to them, that you're looking after their welfare? Rumsfeld: Well, your question suggests that you know what the rest of the world thinks and you characterized it. I'm not sure you do know that. I don't know. I do know that we care what the rest of the world thinks. We live in a free system here, and we try to conduct ourselves according to our values and generally accepted values in the world, which are quite different from those of the Iraqi regime under Saddam Hussein and, indeed, quite different from a number of countries in that part of the world. So we do care, and that's why we invite in the International Committee of the Red Cross to meet with and interview and be with all of the people in Guantanamo Bay. They have reported on that. I'm not going to characterize their reports. Someone would say, "Well, you didn't characterize it perfectly." But you can go read it and see what they have to say. And I think you'll find that the care they are getting and the treatment they are getting reflects the fact that we believe that treating people properly is important, and that the rest of the world ought to know that. We have a long history in this country. And we are treating those people properly. Myers: Can I follow on-- Rumsfeld: You bet. Myers: I would say, despite their age, these are very, very dangerous people. They are people that have been vetted mainly in Afghanistan and gone through a thorough process to determine what their involvement was. Some have killed. Some have stated they're going to kill again. So they may be juveniles, but they're not on a little-league team anywhere, they're on a major league team, and it's a terrorist team. And they're in Guantanamo for a very good reason-- for our safety, for your safety. Q: Mr. Secretary, please go back to Afghanistan for a minute. General Myers said that there were 20 people that attacked that American patrol. Does that number surprise you? Does it concern you? Is that suggestive of the security situation in that region? Myers: Yes, the security situation is still dangerous in Iraq, and we've said that consistently. And there are groups. And I think as far as our forces are concerned, the more the better, because we can deal with them quicker that way. So, no, it's not a concern from a military point of view; it's a concern, overall security situation. We need to keep dealing with this, of course. Q: Mr. Secretary, General Garner said yesterday in Iraq that the interim Iraqi civilian authority may be up and running as early as next week. That seems to be a little faster than some people anticipated. Rumsfeld: Yeah. Q: How will that happen? Who will make up that-- Rumsfeld: It won't. Q: It won't. (Laughter.) Rumsfeld: I talked to Jay on the phone, on the Secure Videoteleconferencing System (SVTC), Dick and I did this morning. As a matter of fact, General Garner had a good briefing of the president and the National Security Council this morning on a secure video. And I had asked him about that. And what he was talking about was the fact that there was a meeting next week, the second of the series of meetings that very likely will proceed as a buildup to the establishment of an Iraqi interim authority. And I think, in shorthand, he was talking of a process as opposed to the way it came out in the paper as though there would be an authority set up next week. What he meant was they're in the second meeting that is pointing towards the establishment of that and is part of the process of the IIA. And he used the phrase "IIA" to encompass the process, as opposed to the final event, semi-final event of an interim authority, the final event being the real authority. Q: Do you-all have any better sense when that interim authority may be set up? Weeks? Months? Rumsfeld: I don't. I don't. I just don't feel like guessing. It really has got to proceed at a pace that the Iraqi people are comfortable with. The whole thing to remember about it is whatever is set up will be interim. And it will not be permanent, it will be temporary. It will serve for a period. And it will be as representative as is possible in a situation like we find in Iraq. These are not people who have enjoyed democracy. They don't have political parties. They're not organized for this. And what we're going to have to do is see that interim authority has enough people representing enough elements in that country that when it is set up, people look at it and say, "If that's the group that's going to figure out a way to draft a constitution, that's the way-- group that's going to figure out how you set this country on the path to the permanent authority"-- just-- if you go back to Afghanistan, the loya jirga process produced the interim authority, the interim authority produced a process that led to a-- will eventually lead to a more permanent government-- a permanent government. But they've not gotten there in Afghanistan yet. That's still en route. So it will be time-- it takes time. And it's going well. (To General Myers.) I don't know how many days you said it was. Thirty-seven? Myers: Thirty-seven. Rumsfeld: (Chuckling) Thirty-seven days. We're all so impatient about everything being perfect, but-- and life isn't perfect, life is somewhat untidy. Q: Sir, there is-- as you can imagine-- some cynicism about the plans for Iraq. The Geneva Convention, as we've talked about in here before, carries with it some requirements of the occupation power. But in order to be an occupation power, you have to declare that the war is going to end. And once you become an occupation power, you have responsibilities and you have some restrictions with contracts and things like that. Is there-- I've been hearing lately from some critics of the war that they're afraid that the Pentagon will never declare-- or General Franks will never declare a formal end to this; that when they're ready to leave, they'll just take off and that will be the end and, therefore, the occupation power, rights and responsibilities and restrictions will never kick in. Can you tell us for sure that there's going to be a time when this war is declared over? Rumsfeld: I mean, I would guess so. Can I tell you for sure? No. But I would guess there will be an end. And what we are seeing is we're seeing a-- this isn't World War I or World War II that starts and then ends. Take Afghanistan. We moved from major military activities to a point where, at the present time, the vast majority of the country is in a stabilization security mode, it's not in a major military activity mode, except along the Pakistan border. How it will shake out in Iraq remains to be seen. I mean, we've said we're still having people killed. We'll get there. Q: So there's no attempt to avoid the invocation of those requirements of the Geneva Conventions? Rumsfeld: There's no attempt to avoid anything except getting more people killed, and an attempt to try to get that country and those people in a process that will produce a free Iraqi government for those people. (...) Q: Mr. Secretary, in that-- going back to the case of the juveniles in Guantanamo, why isn't there a formal legal process for adjudicating those cases, as well as the other-- the cases of the other people who are contained there? General Myers said that these juveniles have killed people, but there hasn't been a trial, there hasn't been a tribunal, there hasn't been a hearing. (Pause.) Rumsfeld: I mean, I'll answer. The president announced a policy. It has been tested and looked at legally, and we are proceeding on that basis-- that the people gathered in Guantanamo we would prefer not to hold. We would like to have arrangements with other countries that they would take their nationals on a basis where we could get future access to them, in the event additional intelligence comes up, and where we have reason to have confidence that they would not simply release people that are a danger to the lives of American men, women and children. Now we're keeping them down there to keep them off the street. These-- this is a worldwide network that-- the al Qaeda is, and these folks and the Taliban were part of that and were fighting in Afghanistan and killing people. We have them in Guantanamo, they're being examined and interrogated by an interagency process. The president has several ways he can proceed. He can put them into an Article 3, United States Article 3, our Constitution, court; he can establish a military commission and try them that way; or he can keep them for the duration of the war and keep them off the street so they don't kill other people. Now, everything that is being done is being done legally and properly. And this constant refrain of "the juveniles," as though there's a hundred of children in there-- these are not children. Dick Myers responded to that. There are plenty of people who have been killed by people who were still in their teens. Q: But there's no-- they're being held indefinitely. There's no process for handling-- Rumsfeld: I just explained the process. Q: Well-- I mean-- Q: Mr. Secretary, you said a few minutes ago that you're disinclined to bring Iraqis to Guantanamo. Can you tell us why is it that Guantanamo was a good place to have brought Taliban and al Qaeda, but not to bring Iraqis? Rumsfeld: The people we brought were people who were part of a worldwide-- for the most part, a worldwide terrorist organization, or were participating with the al Qaeda. The people we've got in Iraq are, in large measure, Iraqi people who belong in Iraq. And to the extent they have to be held for some period of time, it's a lot more convenient to hold them in Iraqi prisons than it is to build prisons in Guantanamo and transport them down there. So it just seems to me, first of all, it's respectful of the taxpayers' dollars. Why should we build a whole lot more prisons in Guantanamo and then pay to transport these folks down there? (...) # # # April 7, 2003 - 10:00 a.m. EDT Mr. Bryan Whitman, DASD (PA) BRIEFING ON GENEVA CONVENTION, EPW'S AND WAR CRIMES (Also participating in this briefing was W. Hays Parks, Special Assistant to the Army JAG and Pierre-Richard Prosper, U.S. Ambassador-at-Large for War Crimes Issues) WHITMAN: Good morning and thank you for joining us this morning, both not only here but also in Kuwait as well as Qatar. This is the first in a series of our briefings on issues that are related to the U.S. military's treatment of enemy prisoners of war. Today, we have two individuals with us, Mr. W. Hays Parks and Ambassador Pierre-Richard Prosper. Mr. Parks is the special assistant to the Judge Advocate General of the U.S. Army for law of war matters. Ambassador Prosper, who joins us from the State Department, is the U.S. Ambassador for War Crimes Issues. Both gentlemen are experts on the law of war and the Geneva Conventions, and they'll be discussing the legal concepts behind them. We have-- are going to try to take questions once they have a brief presentation, not only from here but also from Kuwait and from Qatar, and we'll see how that works. Sir? PARKS: Well, thank you and good morning. I'll just start with just a very brief statement, part of which I want to talk about the foundation of this topic, the law of war, we're talking about. The modern law of war as we know it today actually began when President Lincoln commissioned Professor-- Dr. Francis Lieber to write a code for Union forces during the American Civil War. The Lieber Code, as its known-- it was also U.S. Army General Order No. 100, and it was published in 1863-- that really formed the foundation for everything we have in our modern law of war today. Professor Lieber didn't make it up. He actually went through history to find the practice of nations, and I think that's a very important point here, to understand that this is the way nations feel that they should conduct military operations. Since the Lieber Code, there have been a number of other conferences: In The Hague in 1899 and 1907; one of the most important treaties to come out of the latter conference was the 1907 Hague Convention number IV for the Conduct of Military Operations on Land. There have been any number of Geneva Conventions for the protection of war victims over the year-- over the years. Today there are four 1949 Geneva Conventions. The first deals with military wounded and sick on the battlefield. The second deals with military wounded, sick and shipwrecked. The third refers to prisoners of war and their protection, and the fourth deals with enemy civilians or civilians in enemy hands. They are still in effect, and I'll mention them just a bit more. I'll focus on the 1949 Geneva Convention relative to the prisoners-- to the protection of prisoners of war. I'll also focus on Department of Defense policies with respect to the law of war and the current conflict with Iraq and Iraqi violations of the law of war. With respect to the 1949 Geneva Conventions, they were negotiated after World War II. Out of 194 nations in the world today, 190 are states parties to those 1949 Geneva Conventions. That includes the United States and Iraq. There are more governments states parties to this-- to these conventions than are member nations of the United Nations, giving you an idea of how widely accepted and received they are. The protections apply when the members of the armed forces of one belligerent nation or their civilians fall into the hands of an enemy belligerent. In the case of prisoners of war, this can happen through capture or surrender to enemy military forces. The Geneva Convention relative to the protection of prisoners of war, which I-- we normally refer to as the GPW, contains some fundamental protections for prisoners of war. First, prisoners of war must at all times be humanely treated. Humane treatment is the baseline, but POW protections are much more extensive. Any act or omission that causes the death or endangers a prisoner of war is prohibited and is a serious breach of the convention. Next, prisoners of war must be removed from the battlefield as soon as circumstances permit and at all times protected from physical and mental harm. Prisoners of war must be provided adequate food, shelter and medical aid. Prisoners of war must be protected, particularly against acts of violence or intimidation, and against insults and public curiosity. If questioned, prisoners of war are required to provide their name, rank, serial number and date of birth. They may not be forced to provide any other information. Prisoners of war may not be subjected to physical or mental torture. Those who refuse to answer questions may not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind. Subject to valid security reasons, prisoners of war are entitled to retain their personal property and protective equipment. These items may not be taken from a prisoner of war unless properly accounted for and receipted. Representatives from the International Committee of the Red Cross must be permitted access to prisoners of war as soon as practical. All prisoners of war must be protected against assault, including sexual assault. Female prisoners of war shall be treated with regard due to their gender, and like all prisoners of war, are entitled to respect for their person and their honor. The United States and Iraq also are parties to the 1949 Geneva Convention on the Wounded and Sick that I mentioned earlier. The title of the convention is also a bit misleading, because it also deals with the protection and respect for enemy and dead on the battlefield. In particular, this convention requires parties to the conflict to protect the dead against pillage and ill treatment, and requires parties to ensure that the dead are honorably interred, their graves respected, and information as to their identity, et cetera, provided to the International Committee of the Red Cross. Let me talk a little bit about DOD policies and the conflict in Iraq. The United States and coalition forces conduct all operations in compliance with the law of war. No nation devotes more resources to training and compliance with the laws of war than the United States. U.S. and coalition forces have planned for the protection and proper treatment of Iraqi prisoners of war under each of the Geneva conventions I have identified. These plans are integrated into current operations. Before describing our policies, I should note that in Operation Desert Storm in 1991, the United States and coalition partners detained 86,743 Iraqi prisoners of war. These Iraqi prisoners of war were given all the protections required by the Geneva conventions. Our aims and acts are precisely the same in the current conflict. We are providing and will continue to provide captured Iraqi combatants with the protections of the Geneva conventions and other pertinent international laws. In addition, arrangements are in place to allow for representatives from the International Committee of the Red Cross to met with Iraqi prisoners of war. With respect to Iraqi violations of the Geneva conventions and other laws of war, the Iraqi regime is not complying with the Geneva conventions. Before turning to a summary of the Iraqi violations, I should note that in Operation Desert Storm, in 1991, the Iraqis mistreated U.S. and coalition prisoners and forces in numerous respects, including physical abuse and torture, forced propaganda statements, food deprivation, denial of International Committee of the Red Cross access until the day of repatriation, and much more. The Iraqis similarly mistreated Iranian prisoners of war during the eight-year Iran-Iraq war in the 1980s. The Iraqi regime has thus displayed a pattern of systematic disregard for the law of war. Based upon initial reports, including those in the media, it appears Iraq has once again committed violations of the Geneva Conventions and related laws of war. I will mention just three. First, Iraqi television and Al-Jazeera have aired a lengthy tape of deceased U.S. or coalition service members. I will not describe the tape in detail. Suffice it to say that the tape, made at the direction of the Iraqi regime, shows fundamental violations of the Geneva Convention obligations, to include prohibitions on pillage and ill treatment of the dead, the duty to respect the personal dignity of all captured combatants, and possibly prohibitions against willful killing, torture, inhumane treatment, or the willful causing of great suffering or serious injury to body or health of the POW. Second, Iraqi television and Al Jazeera have aired a tape of U.S. soldiers answering questions in humiliating and insulting circumstances designed to make them objects of public curiosity, in violation of the prisoner-of-war convention. Third, there are reports that the Iraqi regime has sent forces carrying white flags as if to indicate an intention to surrender, repeating an illegal act used by the Iraqi military in the 1991 coalition war to liberate Kuwait, or dressed forces as liberated civilians to draw coalition forces into ambushes. These acts of perfidy-- the term that we use-- are among the most fundamental violations of the law of war, endangering coalition forces and innocent Iraqi civilians. These are the three obvious Iraqi law-of-war violations. Behind the tapes and initial reports from the field, there are likely to be additional violations. The position of the United States government is to do everything in its power to bring to justice anyone who, by action or inaction, is responsible for violations of the law of war. A war crimes investigation by the secretary of the Army to record Iraqi war crimes during the 1990-1991 Persian Gulf conflict resulted in a detailed report. Steps have been taken to begin a similar investigation and information collection effort. Ultimate disposition will depend upon evidence collected, identified violations, and individuals who come under U.S. control. Thank you very much. At this time I'll turn the mike over to Ambassador Prosper. PROSPER: Good morning. I'd like to focus on some of the broader war crimes issues and the violations we have been seeing committed by the Iraqi regime, as well as what our policy is relating to these abuses. I think it's safe to say during the course of hostilities we have seen a systematic pattern of abuses committed by the Iraqi forces, to the extent that we can call them textbook. There has been a complete disregard for the law by the regime, as well as a complete disregard for human life. The Iraqi regime, by blurring the distinction between combatants and civilians, has caused numerous civilian casualties and has put thousands or countless of Iraqi civilians in harm's way. The list of violations that we have seen is long. The Iraqi people are suffering as a result of these abuses. We know that the Iraqi regime-- the forces have fired mortars and machine gun fire upon civilians as they've tried to flee harm's way and go into coalition forces' control. We have heard countless of-- reports of the use of human shields, where civilians have involuntarily been put in a way-- in harm's way and at times killed. We know that the Iraqi regime, by fighting in civilian clothes, has blurred the distinction, causing additional harm. The Iraqi forces have also placed military weaponry in civilian structures, schools, hospitals, mosques and historical landmarks. We've heard reports that ambulances have been used to transport death squads and irregular fighters. We also know that Iraqi civilians have been forced into combat at gunpoint or also by the threat of death to their family and loved ones. We have received reports of summary executions of military deserters. And as the battle for Baghdad unfolds, we must brace ourselves for additional abuses, because we know that this pattern of atrocities and war crimes is not new. The regime has a long history for the past two decades of inflicting violence and death upon its civilian population. As a result, we have begun to catalogue the numerous abuses, both past and present that have been committed by the Iraqi regime. Our troops have been given the additional mission of securing and preserving evidence of war crimes and atrocities that they uncover. As President Bush has stated, war criminals will be prosecuted. The day of Iraq's liberation will also be a day of justice. For any war crimes committed against U.S. personnel, our policy is that we will investigate and we will prosecute. We will also seek to prosecute, where feasible, those who committed or ordered war crimes against U.S. personnel during the Gulf War. For any war crimes committed against Iraqi people during the course of this conflict, we'll explore the range of options available, work to ensure that justice is achieved for the Iraqi people. For past abuses, past atrocities, it is our view that there should be accountability. We will work with Iraqi people to create an Iraqi-led process that will bring justice for the years of abuses that have occurred. In short, it is our view that we must reinstate the rule of law within Iraq. We must not tolerate the abuses of the Iraqi regime and deem them as "business as usual." There will be accountability for these abuses. Thank you. WHITMAN: Let's go ahead and start with a couple of questions from here, and then we'll go and see if we can't get Qatar and then Kuwait. Q: Ambassador: Can you explain a little bit more about how the judicial or legal process might work in a post- conflict Iraq? You said it would be an Iraqi-led process. Could you give us a little more information on who might lead that, who the judges might be, and what sort of form that court might take? PROSPER: All right. Well, when we're discussing an Iraqi- led process, our primary focus now is for the past abuses. There, what we have been doing is working with Iraqi jurists, some members of the exile community, to create a mechanism that will be able to address these abuses. We will also, at the appropriate time, will have to engage the internal personalities to determine what their views are regarding a tribunal of sorts to address these past abuses. We recognize that there will be a question as to whether or not the system within Iraq has the capacity to address these abuses, therefore, we are prepared to assist in any way we can by providing technical, logistical, human and financial assistance. We also believe that the members of the international community should also step forward and be prepared to assist. Q: Are there any plans for U.S. military tribunals or commissions to address any of these matters or the possibility of international war crime tribunals? And also, are there plans for trials for the very top leadership-- for Saddam Hussein, for his sons and other members of the top leadership? PROSPER: I think what's important to understand here, to note, is that there is a timeline between-- of abuses, if you will: The current abuses and the past abuses. The past abuses, again, will be through an Iraqi-led process. We believe that it must have some indigenous roots in order to reinstate the rule of law. For the current abuses, the crimes particularly against U.S. personnel, we believe that we have the sovereign ability and right to prosecute these cases. There is a range of options, ranging from military proceedings to our civilian courts. We are of a view that an international tribunal for the current abuses is not necessary. PARKS: If I might add to that, there are three traditional statutory bases for trials by the United States: courts martial, military commissions, and federal district court. Obviously, there may be other governments that have an interest as well. The government of Kuwait suffered severely at the hands of the Iraqis in 1990, 1991, and it's entirely possible that the government of Kuwait may have some interest and having some of those persons turned over to them who were involved in the occupation of Kuwait and Kuwait City during that time. So right now-- our focus right now is on winning the war. And these are the kinds of decisions we're-- basically in what I would call step one; trying to put together-- collect the information, and then have the national leadership make those types of decisions, no doubt with some coordination with some of our coalition partners. Q: Can I just follow up the issue of the-- are there plans for the trial of the very top leadership? PROSPER: Yeah, I think when we're, particularly discussing the abuses of the past as well as the current abuses, we need to look at the leadership. We have put, over the years, a sharp focus on the actions of Saddam Hussein, his sons, individuals such as "Chemical Ali" and others, because by the nature of the regime, we do understand that a lot of the orders for the atrocities came from the top. MODERATOR: You have a question, sir? Q: Yeah, can you help us, we've been struggling with this one over the last several days, and that is the issue of in uniform and out of uniform. Just as a specific issue, American forces do operate out of uniform in some settings. In Afghanistan, virtually all of the special operators operated out of uniform. Why is that considered a war crime, or is it only operating out of uniform in combination with other kinds of behavior? PARKS: Let me first make a slight correction. Most of the Special Forces in Afghanistan operated in uniform, full uniform. There were some who worked in what we referred to as a non-standard uniform that was at least a partial uniform so they could be identified. They also carried their arms openly. The basic distinction between those types of operations where there was no attempt to conceal their combatant status, and what we're saying with the Fedayeen Saddam in Iraqi is that they are purposely concealing their combatant status, concealing their weapons, wearing no part of a uniform, wearing no distinctive device, in order to engage in acts of treachery or perfidy, as I referred to earlier. They are purposely using the soldiers'-- the U.S. soldiers' respect for civilians as a way to conceal their intent and engage in treacherous killing of coalition forces. So there is a big difference between the two. STAFF: We'd like to take a question from Qatar, if you can hear us. (Pause.) From Kuwait? Q: My name is Kabir (ph). I'm a correspondent reporting from-- (inaudible). I have a question concerning those unlawful combatants, Iraqi--- (inaudible). STAFF: Could you repeat your question, please? We got cut off until just the last two words. Q: Repeat it? Okay, I'll repeat my question. It is concerning the unlawful combatants from the Iraqi side. I would like to know how we treat those unlawful combatants once they are taken into coalition custody ? Do you grant them the status of POWs? PARKS: When someone is captured, they go through a process of being taken from the capturing unit back to a collection unit and ultimately to the higher-level theater prisoner-of-war camps. And Article V of the Prisoner of War Convention, it specifies that if there is any doubt as to the status of a person, that person is entitled to prisoner-of-war protection until his or her status has been determined. That determination can be done by an Article 5 tribunal, which is a tribunal, set up by the military to look at the facts and circumstances of the capture and any other information. They then make a determination or recommendation. Our past practice, in Vietnam as well as in the first Gulf War, was that if at any time there remains any doubt, that person will be entitled to prisoner-of- war status. In the meantime, we use the Prisoner of War Convention as a basic template for anyone that we hold. We provide them the basic cares and protections that I laid out before, the best housing that we can give them under the circumstances, adequate food, medical care, anything else that they need, and visitations by the International Committee of the Red Cross. At this point in time, that decision as to whether or not persons are members of the Fedayeen Saddam or whether they are members of the Iraqi regular military has not been fully exploited, because of the ongoing conflict. The British, I understand, have run some Article V tribunals and in some cases have found that some of the people they detained were civilians, and they have been released. So there is a process for doing this. Q: Would unlawful combatants have a different judicial channel? Do you envision it different than what a soldier would have? PARKS: That's a very good distinction, I think, that needs to be made. The fundamental difference between an unlawful combatant and the prisoner of war is that a regular soldier, if he kills an enemy soldier, has committed a lawful act. An unlawful combatant, by its term, suggests that this person did not have authority to go onto the battlefield and engage in the killing of enemy soldiers or the attack of military property. So if a person is determined to be an unlawful combatant, he or she can be prosecuted for killing an ordinary soldier. So there would be a judicial process for that person. What that process would be is something that we've not determined as yet. Follow on with the question, Kuwait. Q: Do you have a number of how many prisoners we've taken in the current conflict? And how would that compare with-- (audio break)-- PARKS: If I understood the question to be the number, I do not have that number in front of me, but I believe it's available from Central Command. Q: Is it your judgment or is it the military's judgment that the United States is now an occupying authority in those portions of Iraq where U.S. forces have moved through? And does that make the United States responsible for the welfare of the civilian population in those areas? PARKS: The term "military occupation" is one of those that's very, very misunderstood. When you are an infantry company commander, and you're told to take the hill, you physically occupy it. That's military occupation with a smaller-- lower-case "m" and lower-case "o". It certainly does not mean that you have taken over it with the intent to run the government in that area. That's the very clear-cut distinction, that until the-- usually, until the fighting has concluded and is very conclusive, do you reach the point where technically there might be Military Occupation-- capital "M", capital "O"-- and a declaration of occupation is issued. That's a factual determination; it's a determination by the combatant commander in coordination with others, as well. Obviously, we occupy a great deal of Iraq at this time. But we are not, in the technical sense of the law of war, a military occupier or occupation force. Q: Until hostilities cease? PARKS: That's going to be a factual determination by the combatant commander in consultation with others. Q: Two things, really. What sort of penalties might apply to people in senior positions-- senior military commanders, senior government ministers, even Saddam Hussein or his family members, insofar as they're involved in decision- making? And secondly, if you're not going to go to any of the established international tribunals, are you worried of creating the impression or creating an opinion worldwide about victor's justice or even creating martyrs in some form to be used as rallying points in the future? PROSPER: Well, the range of penalties exists, from-- obviously from incarceration to the death penalty. It's really dependent on the forum that is ultimately chosen to deal with these issues. Regarding the international tribunal, the only one that obviously is in existence is now the permanent international criminal court, and that court does not have jurisdiction over this conflict, because we are not a party to the treaty and Iraq is not a party to the treaty. But I think what we must recognize is that any state, when they fall victim to war crimes, has the authority to prosecute these cases. So it's not a victor's justice, it's a fact that by being victimized, if you will, we can prosecute. For the crimes committed against the Iraqi people, we are prepared to work with the Iraqi people, who will have the sovereign right to address these cases as they occur. So it will be, obviously, a collaborative effort, where we can prosecute the crimes committed against us, our coalition partners have that same right and authority, and for the Iraqi people, we are prepared to work with them to achieve justice. PARKS: Let me offer a couple of other points. I mentioned that we have a statutory basis, three different ones, for prosecution of war crimes. One of the reasons we have that is because we, in a long-term practice, have prosecuted U.S. military personnel when they have engaged in violations of law of war. I can speak personally from this, having done this in Vietnam myself 35 years ago. Now, if you go back to the history of the post-World War II trials, you'll see that there were, in fact, several different levels. There were the statutory courts at that time, or commissions, depending on whether it was United Kingdom, United States, who was running those. And they tried particular offenses that occurred at a specific level against nationals from their country. For instance, there was an Italian general tried in Italy by a U.S. military commission after World War II for the murder of American prisoners of war. There were international tribunals based upon the November 1st, 1943, Moscow Declaration that ultimately established the Nuremberg tribunals for the trial of the major criminals for which there was no geographic specificity, and then there were some lower levels. I would point out at the very lowest levels, the one that I identified initially, any number of nations carried those out after World War II-- Australia, New Zealand, China, just about every single one of the Nazi-occupied territories in Europe. So there are a number of levels there, but you go back to that lowest level because we all have courts-- we have an obligation under the conventions to ensure respect for the conventions and for the law of war. Part of our implementation of that is to have tribunals available for prosecution of American service persons should they commit a crime or for those who commit crimes against U.S. military personnel. STAFF: Can we go back to Kuwait, please? Q: (Inaudible.) Q: Is it customary to assemble a war-crimes body of law like this, or do you have to wait until after victory, I think is what he said. PARKS: Well, certainly there's a standing body of law. We can identify, just as we have, U.S. statutes for civil/criminal violations as well. Then you take the facts and look at them and compare them to what you have as prohibitions under the laws of war. It's going to be done on a case-by-case basis. We don't create a new a body of law here. Now, if the question is are we now assembling something specific for this conflict, I think it's too early to say. Again, our focus at this time is to win, and begin the collection effort, and then make determinations as to disposition as we move along. PROSPER: I think another point is, it's not necessary to wait till the end of hostilities to begin to look into war crimes violations and prosecutions. I think one of our most recent examples is in the international arena, if you look at the former Yugoslavia, there have been prosecutions that have been occurring while a conflict has been raging. So the law is there on the books and it can be used when the parties are ready to use it. PARKS: Question in the back. Q: Yeah, I want to be clear on something you said earlier. Of all the people in custody already, is there anyone who has been designated something other than POW? PARKS: To the best of my knowledge, the United States has not yet run any Article 5 tribunals. I understand that process is under development, and it will be. At this time, everyone is being treated as a POW. Q: And one follow-up to that. Was anyone-- anyone who was in custody after the first Gulf War, was anyone prosecuted among the people in custody after the first Gulf War? PARKS: They were not. We found that of the individuals we had in custody, we had 99.9 percent enlisted personnel. Most of those came off the battlefield rather than from the occupation of Kuwait. The Iraqi officer corps had somehow vanished and was not there, and that's where the primary accountability probably would have been made, particularly for those of the occupation force. So as a result, they were given the opportunity to repatriate-- be repatriated, which is a process we haven't discussed. It's something we work very closely with the International Committee of the Red Cross to do. We'll take-- MODERATOR: From Kuwait. Q: We have no further questions, ma'am. MODERATOR: Thank you. PARKS: Yes? Q: Getting back to Iraqi armed forces have engaged in widespread and systematic violation of the laws of war, does that mean that as a military they are not entitled to the protections that the law of war provides? PARKS: No, it's-- one of the essential factors in the 1949 Prisoner of War Convention is that regular military forces are entitled to prisoner of war status, even if they violate the law of war. They can be prosecuted for their violations, but they still remain entitled to prisoner of war status. Q: On the subject of Iraqi Television, two questions. First, is the mere act of photographing a prisoner considered to be humiliating, or is there something about the way that they were photographed? And also, why did you-- several television networks around the world aired that footage. Why did you feel the need to mention Al-Jazeera also? PARKS: I think it was just a statement of fact, on the last part of that; not singling them out, it just happened to be that they were the ones who I think were-- probably transmitted it most directly. It's not so much the photography of a prisoner of war, particularly, as you know, with our embedded media; every day, prisoners are being taken on the battlefield. That is a statement of fact. When they are photographed under those circumstances as they're surrendering, as they're receiving medical care, that's a statement of fact. The contrast is-- and in fact, our embedded media and others, I think, have been superb in understanding our ground rules that you will not take photographs in such a way, either hopefully to avoid any positive -- specific identification of the individuals or in the way that would be considered to be humiliating or degrading. The contrast here is that you have the state-owned Iraqi television forcing prisoners of war in their hands to appear before it for forced interviews, where it's very clear this is an act of intimidation and humiliation. So, there's a very delicate balancing, no question about it. And as I said, I've been very pleased with the way the embedded media have recognized this. I was watching one of the channels, I guess about a week ago, when an Iraqi soldier came over the horizon with his hands up. He was probably a good 150 meters away from the camera. The embedded journalist and his photographer said, "Look! There's one coming now." And the other one said, "Hey, can we take that picture?" And he said, "Yeah, I think we can, because we can't identify the person." So they understand the ground rules, they've been reinforced to them, they-- and it's been quite good. But that is very distinctive from: I have this prisoner of war in my hands, I'm going to put them on the camera for one reason; that is, to coerce him into making-- going through questions and to be used for propaganda purposes. Q: Now, once these-- if I can just follow on on that-- once these people are in custody, if you decide to bring people here, put them in Guantanamo Bay, is there anything in the law of war that would prevent the U.S. from allowing somebody to go in and just photograph them in their conditions? Or is that just a matter of U.S. policy to not let people take pictures of prisoners down in Guantanamo? PARKS: Well, let me back up to the first part of that. We have no plans to send anyone to Guantanamo Bay. But second, as a matter of policy and our interpretation of the prohibition in Article 13 on humiliating and degrading treatment, we do not allow persons to go into prisoner of war camps to take photographs of them. Yes, ma'am? Q: Me? PARKS: Yes, ma'am. Q: If I can follow on that. What is the difference? Can you explain the difference, then, between the prisoners of war you're taking in Afghanistan and sending to Guantanamo Bay and these prisoners? PARKS: Well, there's a substantial difference in the types of conflicts. What we -- we are in the true, pure, traditional international armed conflict, for which the conventions were written. Many of the persons that we captured in Afghanistan were members of al Qaeda. This goes back to one of the previous questions. They were unprivileged belligerents, and they're not entitled to the complete protection of the law of war. They have-- they're unprivileged belligerents. At the same time, we are providing that template that I mentioned earlier and providing basic protections for them: meals, lodging, all the items they need-- soap, towels, toothpaste-- medical treatment and visits by the International Committee of the Red Cross. The basic distinction is the one I mentioned before, and that is, as unprivileged belligerents, they do not have the legal right to attack military personnel, whereas now we're engaged-- except for the Fedayeen Saddam, we're now engaged with a regular military force. Q: Could I follow up on a question from earlier? PARKS: Yes. Q: I want to make sure I'm totally clear on this. When it comes to U.S. military uniforms, what is the bare minimum that is required to be considered "in uniform"? Is just wearing one's weapons openly enough? PARKS: All right. Let me sort of break that in two places. Ninety-nine-point-999 percent of the time, our forces are going to be in full uniform. In those rare circumstances where you might have someone in the military operating with indigenous personnel, which we saw in World War II in Nazi- occupied Europe and places like that, the basic requirements are that they be under the command of someone responsible for the subordinates; wear some sort of distinctive device, which can be a hat, a scarf, an armband, something like that, an American flag on their body armor; and carry their arms openly; and finally, most importantly-- this is where the contrast comes with the Fedayeen Saddam-- carry out their operations in accordance with the law of war. Does that help? Q: So a hat, a scarf, an armband-- PARKS: Are considered the types of things-- if it's something that's distinctive to the forces with whom you're operating. Obviously, you've got a group-- let's say an element of indigenous personnel-- they tend to wear some sort of distinctive device, for their own identification of one another. And that's distinctive from what you see on a traditional international armed conflict conventional battlefield, where you have uniformed forces meeting uniformed forces. The other factor there is one I mentioned earlier, though, and that is, you are not intending to pose as a civilian. Q: Going back to the list of countries, you said there is about 190 that are signed up to the conventions. Is Iraq one of those? PARKS: Yes, it is. Q: A different topic. Are there plans on any of the Iraqi leadership, if the thought is that they haven't been killed but they're missing, they may have escaped or they're still in hiding, are there plans to hold trials without their presence? PARKS: The United States, as a matter of policy, generally has not carried out trials in absentia. Yes, in the back. Q: There are reports of some foreign fighters being involved in the conflict in Iraq, some actually in uniform, although they may not be Iraqi uniforms. Does that pose any particular legal issue here? PARKS: It's going to be-- that's something we'd have to answer on a case-by- case basis. If they're fighting in Iraqi uniforms, that's going to be one of the key elements; if they have some sort of association with the Iraqi military. As you may know, in a number of conflicts in the past, for instance, in World War II, we had U.S. forces who joined the Royal Air Force before the United States was in the conflict. If they had been captured, they would have been treated-- entitled to prisoner of war status. So it's going to be factually dependent on what they're doing at the time of the capture, how they're dressed and what they're doing. Yes, sir? Q: And just to clear up a couple of points. If you are an Iraqi civilian and American forces break their way into your home and you open fire on them or they -- I mean, they regard American forces as invading. So if you open fire on American forces and you've been out in your garden, or something, is that-- are they non-combatants, are they unprivileged belligerents for opening fire on forces that are breaking their way into their homes? PARKS: It's, again, going to be factually determined. If this person has been totally oblivious to the fact that there's been a war going on around his house for the last two weeks, and he happens to be in there and jumps up with his weapon and opens fire, he or she is at risk, obviously. But second, we would go through the factual determination of the Article V Tribunal as to why this happened and the way it happened. I did hear in the Central Command press briefing this morning that leaflets are being dropped to the Iraqi population saying, "If you have a weapon, put it down, stay away from it so we do not mistake you for an Iraqi Fedayeen Saddam." So, we're doing the best we can to convey to them, do not involve yourself in the hostilities. Q: And just so I understand, there is not a new body of law or procedures that you are trying to develop to deal with this particular conflict; you will fall back on historical precedent as much as you can? PARKS: It's not only historical precedent; it is existing law. Q: And then finally, in your prisoner-of-war holding camps now, are you sorting individuals either by rank or by unprivileged belligerents or people in uniform? Is there any kind of sorting and identification that you are doing? PARKS: I don't have information as to what's being done at this time. I can tell you that generally when you go through this movement back, collection, sorting process-- and let me say that a part of that is getting as full an accounting of the person that you have as possible so that we can take that information and forward it to the International Committee of the Red Cross, because we want a full accounting of our prisoners of war as well. In that process, the Geneva Convention requires a separation of officers from enlisted. Now, whether there will be later on, as I indicated, this Article V screening when there's doubt as to someone's status, then there may be some additional separation. At this point in time though, I think right now the idea is to provide the protections required by the conventions, the medical treatment required, and then move into this Article V Tribunal phase in the next week or so. Q: To your knowledge, has Iraq yet allowed the ICRC to meet with any of the coalition POWs? PARKS: It has not. And I think as I mentioned in my statement, in the course of the 1991 Gulf War, the Iraqis did not permit the ICRC to see U.S. and coalition prisoners of war in their hands until the war had ended and 24 hours out from the time of repatriation. The ICRC then handled the repatriation of coalition prisoners of war back to their forces and did a superb job. Q: Could the fact that the United Sates launched this invasion without U.N. approval-- could that undercut your legal standing for conducting a war crimes tribunal? PARKS: No. And the law of war, all of it, has taken the traditional view that it doesn't make any difference who started the war. What we do is gauge you upon the conduct of your operations on the battlefield itself. You could be totally justified in what you're doing; if your forces violate the law of war, it's still a violation of the law of war. The four 1949 Geneva Conventions specifically state in there that it doesn't make any difference who started the war, who is the party who was first off or what have you; that in any case, the conventions will apply. That's to sort of keep people from saying, "Well, he started it, and therefore, I don't have to follow the law of war." Regardless of who started the conflict, each side has an obligation to follow the law of war. Yes, sir? Q: Do you happen to know what kind of capability U.S. forces in Iraq have for holding POWs? Does each combat unit have a POW capability? Are we anywhere near capacity on that? PARKS: Well, let me go back to what we did in the first Gulf War, as it is the best example. We have a particular unit, the 800th MP Brigade, that went in and built two camps, nicknamed Bronx and Brooklyn, that were to hold 50,000 prisoners of war each in record time. And as I said, our capacity went up to 86,000 some-odd. The same capabilities are being used today. As I mentioned, when a soldier captures an Iraqi soldier, he is trained to turn him over to his superiors-- disarm him, turn him over to his superiors, move him back to the initial collection point, which may be at the battalion level. From the battalion level, they could be moved back to the division or corps level, ultimately-- and at the corps level, they will then go through the initial processing. In the old days, this was soldiers with little tags and stubby pencils. Today, it's laptop, which is what we used in the first Gulf War. After that initial processing, they are then moved back to the theater collection point, and that's where the detailed processing goes on. We have that initial processing at corps level, too, because we have a split in the route they will take. Those who are wounded or requiring medical care go one route. Those who are otherwise able- bodied go-- continue on back to the straight prisoner of war camp. Once the theater processing is accomplished, those reports are sent back here to the National Prisoner of War Information Center, which is run under the Army Operations Center. Those lists are all collated, put together and we ensure that we have proper identification, the best information we can get from that. And thereafter, that information is forwarded by the United States government to the International Committee of the Red Cross. Q: Is it safe to assume that whatever judicial process the Iraqis develop here in a post-war situation, that it will have fairly heavy American input? Would you try to use the body of Iraqi law in order to conduct any sort of criminal proceedings? PROSPER: Well, the degree of input has yet to be determined, because what we have been doing is working with the opposition group, the exiled community of jurists, and we have been able to reach a basic understanding of what the requirements are and what a specialized approach or chamber could look like. But what has yet to occur is discussions with some of the internal personalities, who may have additional ideas or opinions on the framework. But I think it's safe to say that the-- any process that is created can rely upon the body of international law as well as the body of Iraqi law that exists. So I expect that once we move into the post-conflict setting, a lot of these issues will become clearer, we'll see the degree of U.S. participation or international participation that is necessary. PARKS: I understand that Central Command is up now. They have a question, but it's audio only. Q: Gentleman, Paul Martin here, from World News and Features and the Washington Times. I'm interested to know two things. One is the role of the gentleman they now call-- well, Uday-- well, let's go to Uday. Uday Hussein, obviously, was in charge of the occupation of Kuwait last time around, and has been responsible for the irregular forces whose behavior in Basra and others has given rise to suggestions that his troops are behaving in an illegal way. And are you targeting him for war crimes tribunals? And will you be looking back at his record in Kuwait, or just looking at this current war? That's the first question. Secondly, looking at the images we've seen of prisoners being taken there, hoods have been put over their heads when they've been arrested, and they seem to have been disoriented or pushed about a bit in the process of taken away. Is that legal or illegal? PARKS: Let me take two parts of that. The first part, we do have a very detailed record of our investigation that was conducted in 1990, '91, of the Iraqi occupation of Kuwait, and that certainly is available, should this individual be in our custody or the custody of others at the end of the conflict. Second, on the hooding, it is a standard procedure in most militaries to either blindfold or hood prisoners at the time of capture because every soldier is trained that the best time to attempt escape is at the time of capture. So the idea is, first, not to give them the opportunity to escape, and second, not to have them-- give them the opportunity to collect military intelligence in the event they should escape. Obviously, the hooding is one method for doing that; the other I mentioned is blind-folding. They obviously can still breathe. It's not a matter of trying to abuse them in any way, it's a standard security procedure for most militaries, if not all, upon capture. Ambassador? PROSPER: And also, since '91, we have been looking at the actions of the various members of the regime, including Uday. For the past few years, we have done additional work of documenting his role in the abuses that occurred throughout the Gulf War and throughout the term of the regime. We will obviously be looking at any actions that he had during the course of this current conflict. But I think it's safe to say that he is among those, the top tier people that we're most interested in, and seeing accountability for his actions. MODERATOR: Okay, this will have to be your last question. Q: Are either of you able to speak to this talk about whether or not tear gas, the use of tear gas by U.S. forces would be a violation of any of the laws of war or chemical weapons conventions? Is that-- PARKS: I can speak to that. The 1993 Chemical Weapons Convention prohibits the use of riot-control agents as a method of warfare. It's not a precisely defined term. The United States has an executive order that suggests that riot-control agents can be used for defensive purposes to save lives. That's a very long- standing executive order. It gives a few examples in there. One is combat search and rescue. The others are rioting prisoners of war. A third example is, if in fact an enemy placed civilians in front of it, to advance on your lines. There is a very careful process for the decision as to whether or not riot control agents may be used on the battlefield, requiring presidential authorization, which may be delegated to the combatant commander. But it's not something that we do lightly. MODERATOR: Thank you very much. We appreciate your coming. # # # United States Department of Defense News Release On the web: http://www.defenselink.mil/news/Feb2003/b02282003_bt092-03.html Media contact: media@defenselink.mil or +1 (703) 697-5131 Public contact: public@defenselink.mil or +1 (703) 428-0711 No. 092-03 IMMEDIATE RELEASE February 28, 2003 DOD RELEASES DRAFT MILITARY COMMISSION INSTRUCTION The General Counsel of the Department of Defense (DoD) today released a draft military commission instruction entitled "Crimes and Elements for Trials by Military Commission." This instruction lists and defines certain violations of the laws of war and other offenses triable by military commission. DoD will be prepared to conduct full and fair legal proceedings should a military commission be convened. Although no charges have been referred against any individual potentially subject to the jurisdiction of a military commission, this instruction will help to ensure that DoD will be ready to fulfill its responsibilities if called upon. The international law of armed conflict, from which the Crimes and Elements instruction is derived, is a broad and complex area of the law. There is no single legal document that comprehensively codifies this body of law. Rather, definitions of crimes are dispersed throughout dozens of sources including treaties and conventions, domestic and international statutes, judicial decisions, and the body of custom and practice recognized by the international community. "Over the past few months, DoD and other government lawyers have analyzed these sources of law and consolidated in a single resource a list of certain crimes that potentially may be charged and tried before a military commission as well as the definitions of those crimes," said DoD Deputy General Counsel Whit Cobb. "In the event that a military commission is warranted, this instruction will assist all participants - including prosecutors, defense counsel, and military commission members - to understand what constitutes an offense that is triable under the law of armed conflict." The draft Crimes and Elements Instruction is available at: http://www.defenselink.mil/news/Feb2003/d20030228dmci.pdf Those wishing to submit comments regarding the draft Crimes and Elements Instructions should fax comments to the Office of the General Counsel of the Department of Defense at 703-614-4432. The General Counsel of the Department of Defense intends to finalize and publish the final instruction early in March. # # # Friday, February 28, 2003 Presenter: Defense Official RELEASE OF THE MILITARY COMMISSION DRAFT CRIMES AND ELEMENTS INSTRUCTION Draft Crimes and Elements Instruction: http://www.defenselink.mil/news/Feb2003/d20030228dmci.pdf Staff: Today we're going to do a background briefing on the Crimes and Elements document that could be used for our military commissions. Our two speakers on background, speaker number one and speaker number two, and I think you can tell who is whom from this, are going to talk to you today. So with that, I'll turn it over to them. Defense Official: Thanks, Colonel Frank. We're from the DOD General Counsel's Office, and we have been working over the past year to lay the groundwork for military commissions. In November of 2001, the president issued a military order authorizing the use of military commissions to try non-U.S. citizens detained by DOD in the war on terrorism. Almost one year ago, in March of 2002, the secretary of Defense published Military Commission Order No. 1, which lays out procedures for military commission trials. Today we are publishing a draft document that spells out some of the crimes that military commissions may try. I want to emphasize that this is a draft document and that it's not exhaustive; it doesn't spell out every single crime that a military commission could try. The general counsel in the Department of Defense, Mr. Jim Haynes, plans to finalize the document early in March. We are providing a fax number for the receipt of comments. We haven't established a date certain for finalizing the document, but the earlier any comments are received, the better chance there is that we will be able to consider them. I also want to emphasize that this is not a formal public notice and comment process. Those procedures don't apply to military commissions. We felt, though, that publishing the document in draft form would, however, provide a useful opportunity for interested organizations and individuals to provide input. My has done significant work on the draft Crimes and Elements document, and he's going to describe the document in more detail. Defense Official: Thanks. The document we're talking about that you should have in front of you is produced by the Office of the General Counsel of the Department of Defense. And while not exhaustive, it does list and define violations of the law of war and other offensives, triable by military commission. What it does is it reflects principles of law that are derived from numerous international treaties, domestic and international statutes, and judicial precedents, as well as the writings of international legal scholars and accepted customs and norms of international practice-- into one document. Now, I'll give you a little background on how this document was produced, to make sure it was as accurate as possible, we started with a working group from all the services-- of lawyers from each of the armed services-- and worked from those documents I just listed to produce a draft. We then circulated that draft to other U.S. government agencies and consulted with congressional committee staffs. Additionally, we sought to benefit from the opinions and legal -- and advice of experts in a variety of disciplines outside U.S. government. In facilitating the benefit of those opinions, that's what is the purpose of the posting that we have today. Now, in drafting the document, some of the guidelines that the group was working from were to choose offenses and definitions-- crimes and definitions-- that were both internationally and domestically recognized, substantively and internationally and domestically recognized as appropriately within the jurisdiction of military commissions. We also looked at familiarity with military practitioners who would be involved in military commissions and we looked at relevance to some of the conduct we expected might be subject to military commissions. I'd like to just, before taking any questions, walk you through the document that you have in front of you. I think the first three paragraphs are self- explanatory, general paragraphs. Paragraphs 4 and 5, applicable principles-- or maybe Sections 4 and 5-- applicable principles of law and the definitional section in number 5, these are principles that allow other portions of the document to be addressed more efficiently. Definitions are definitions that might be common to several of the crimes-- principles of law that might be applicable to the way several of the crimes would be viewed and address some of the questions that might arise in a particular case, in a way that's useful to a number of different crimes. Then we move into Section 6, which is the crimes and elements itself. Q: What-- did that mention affected persons? I don't see that in the definitions list. I see protected properties, but not-- (off mike). Defense Official: Well, the phrase used in the element is actually "protected under the law of war," and that is the defined in the definitions section. The definitions section refers to specific verbiage that are actually in the elements, which are the legally operative words that the appropriate parties would be using any commission. Looking at the list of crimes and elements itself, you find first a listing of the elements that would have to be proved before a commission was able to assess guilt in any case. And then you've got sometimes a small commentary section, which are comments that might be helpful in interpreting some of the elements. Usually those are specific to that crime. If it's a comment that would apply across the board for several crimes, you'll find that-- one of the earlier sections that I mention, 4 or 5. We have Part A, which is substantive offenses, which, again, is fairly self- explanatory. We have, you know, offenses like attacking civilians, taking hostages, using treachery or perfidy, terrorism. And then we have Part B, which is other forms of liability, sometimes referred to as inchoate offenses or-- things like aiding and abetting, conspiracy, ways of assessing liability that are usually associated with one of the substantive offenses. That pretty much takes you through the document in front of you. I wish you'd had it a little bit more in advance-- I apologize for it-- to give you some chance to be able to come up with maybe some specific questions. We're happy to address any questions you might have. Yes? Q: What are some of the things that aren't in here that perhaps had been originally considered? I notice that, for example, genocide is not in here, and there's some other crimes against humanity that have been previously defined that aren't part of this. What are some of those, and what's the rationale behind that? Defense Official: Well, you've already identified two big categories. Genocide and crimes against humanity are not in this-- the current draft of this document. I'm trying to think. Another crime that I've at least seen in the press written about are membership offenses, which were used in some of the commissions in the post-World War II in Nuremberg. We have not included membership offenses. Q: Meaning that if you're a member of a group that has been determined to be a terrorism-- terrorist group, you wouldn't-- that's not necessarily a crime under this document? Defense Official: More or less. I don't know that-- in previous articulations, it hasn't involved a terrorist group. In World War II it didn't-- Q: Whatever. But in that case, it was Nazis. Defense Official: If there were to be a membership offense, presumably it would involve some sort of definition like that; that is not in this document. The reasons-- it's tough to really identify, I can't really identify specific reasons for why any particular crime is in or out. As you can imagine, with all the vetting that I described that took place with this document, there were all kinds of concerns brought to the table. But basically, the criteria that I laid out for you of international and domestic acceptability, both in substance and in commission jurisdiction, were the driving factors that-- in the balance that played out-- put one crime in or one crime out. And remember, this is not an exhaustive list. It could be supplemented or amended at any time. It's an illustrative list of what can be tried by military commission, in a way that is designed to practically help those who would be involved in the military commission process. Sir? Q: What process are you going to go through from this draft forward to come up with the final list, so to speak? Defense Official: I'll address that. Essentially, we're putting it out for public comment now, and in a very short period of time, sometime in March, we will go final with a document after receiving-- or reviewing whatever comments we receive by that time. Q: Who does this list apply to? Is it only combatants-- (off mike)-- people who are arrested on the battlefield or captured on the battlefield? To detainees? Could it apply to U.S. citizens? Who does it apply to? Defense Official: This document is subordinate to the Military Commission Order No. 1 that was released by the secretary of Defense in March of last year, which is, in turn, subordinate to the president's military order of November 13th, 2001. Those-- so, going back to the jurisdiction granted by the president's military order, trials could only take place with respect to people that the president has specifically designated as being subject to his military order. That, according to the president's order, could not include United States citizens. But at this point in time, no one has been designated by the president, so it would be impossible to identify exactly who it might be applicable to. Q: Okay, for instance, the detainees who are now being held in Guantanamo; in theory, could some of them-- if it's determined that they violated some of these crimes or offenses, could they be potential people that would be up for military commissions? Defense Official: I would always hesitate to answer a hypothetical, as a lawyer, I think that would be a fair assessment of someone who might be-- might fall under the president's military order. If you look at Section 2 of that order, it lists a definition for individuals subject to the order and describes the president's finding that there's a reason to believe that there are a number of criteria that might fit enemy combatants who were captured in the war against terrorism. Q: Once the document is finalized, and it goes out, as you said, to sort of help people determine-- who would actually be using this? Who would be reviewing cases and comparing it to the document to see if something applies? Defense Official: I think it would be used in the same way crimes and elements are used in most jurisdictions in the United States. A prosecutor's office would use-- investigators would, first of all, use the crimes and elements to try to identify where, in fact, criminal activity may have occurred. Prosecutors would use them to determine what kind of case there was, what should be charged, what shouldn't be charged. Defense counsel would use them to determine what the weaknesses of our case are; where, in fact, the government's proof would fail. The commission might use the Elements to determine whether or not the facts presented by both parties measure up beyond a reasonable doubt to each of the elements. Q: Who are those prosecutors? Because in the civilian system, we know who the prosecutors are; from the local level all the way up to the federal, we can identify them. But I'm having a hard time-- are these military prosecutors? Who -- where are these people? Who are they? Defense Official: That question is answered in the-- in Military Commission Order No. 1; it was released by the secretary in March. And it describes-- I have it here in front of me-- "judge advocate of any United States armed force" -- let's see-- "or special trial counsel of the Department of Justice who may be made available by the attorney general." That's the description for the prosecutors. And commission panel members similarly are listed in that document. Q: Could you help me understand? I'm no legal expert here. Say five, 10 years ago, for example, Saddam Hussein used a human shield. The U.S. wanted him prosecuted for a war crime. What would have happened? What sort of process would you have gone through? Would you have had at that point set something like this up, or is there somewhere else you could have gone with it? Defense Official: It's a difficult question and there's a lot of steps involved in setting up the process. Someone could be tried in any number of jurisdictions, depending on the offense and what the jurisdiction would be. With respect to a trial by military commission, had there been one some years ago, at some point in time they would have had to determine what charges to bring; a defense counsel would have had to determine how to defend against it; and the judicial authority, whoever it was, would have to determine how the facts measured up to those elements. Whether or not it would be articulated in a document like this such that it could be more practically used by practitioners, it depends. They could have simply referred to the customary international law of armed conflict. That would have made for a much lengthier proceeding. Or they could have articulated the elements in advance. And certainly it's ripe for whatever legal discussions that would take place in litigating that issue. Q: So this is designed to be sort of a living document, a new legal code, essentially, that will be with us ad infinitum now. You'll just keep adding to it. This is a new, almost a separate legal system. Defense Official: I wouldn't refer to it as a new legal code, in that it's certainly not intended to be exhaustive in any way codifying what's a fairly broad body of law, the law of armed conflict. It's select pieces of it that are likely to be applicable and relevant in the commission trials that may take place. It probably would be pushing it a bit too far to call it a code at this point in time. Sir? Q: Forgive me if I missed it, but in the drafting process up to now, has there been-- is this an entirely U.S. operation up to now? Has there been any input from coalition partners or international bodies? And now you're publishing the draft, do you expect there's going to be input, comment from outside? Defense Official: Yes and yes. We have had input, when I mentioned earlier that we've gone outside the government for some input and in fact have done that in a few specific cases. Q: Could you elaborate a bit on that? Defense Official: I hesitate to describe who exactly has provided the input because we certainly never-- in soliciting input, never told them that we were in fact going to publicize any particular role. We were looking for expert advice. Also, with respect to later-- post-today, I suppose-- I would expect that-- just like we have received input, both solicited and unsolicited, from international sources, I would expect we might continue to receive input from those sources. Sir? Q: Just getting back to Jamie's question here for a little bit, I'm still a little confused, too. So a prosecutor or that special guy from the Justice Department decides, "Hey, there's something chargeable here." Can they charge them, or who makes that decision? Is the president the one who makes that decision to actually charge and put this person in front of a military tribunal -- commission? Defense Official: For the commission to have-- it's-- "prosecutor" is the right term. That special judicial person you mentioned is just one possible prosecutor. The president first would have to make the person subject to his military order. That gives DOD jurisdiction, if you will, over that person. The president's order says, "Once so designated, if tried"-- the person wouldn't necessarily have to be tried at all; they might not even have an alleged crime-- but if tried, they would be tried by military commission. Then Military Commission Order Number 1 directs that the appointing authority would refer charges-- would appoint a commission and refer those charges to be tried by military commission. So it wouldn't just be up to a prosecutor to draft the charges and start a trial. An appointing authority would have to refer those trials (sic). And anticipating your next question, the appointing authority right now is the secretary of Defense. But his order does allow that another appointing authority be-- that that authority be delegated to someone who might do it in a more regularized basis. Q: Do all of these-- as I'm reading it, it seems that all of the tests on each one of the things has to be met, except where it says-- (inaudible). But like I'm looking at terrorism. So one, two, three, four and five all have to be met to equal terrorism, with the "one or" being in the number two? Defense Official: Yes. I think, other than the fact that I wasn't looking at one, two, three or five when you said that-- Q: So pretty much all of these are like it has to meet these five tests, and then we can charge them with terrorism? Defense Official: Right. All of-- Q: Or with anything? Defense Official: Or you have to prove each of those elements beyond a reasonable doubt, in order for someone to be convicted of that offense. Q: There's something in that that I think is interesting, where it seems-- the general feeling seems to be that, you know, military targets are legitimate attacks, but then in the comments section, it says military objectives are not legitimate attacks if the person isn't the sort of standard combatant working for the opposing government. So that says that-- am I reading that correctly? It would be like you can't attack a military target if you're not-- and expect not to be charged with terrorism if you're not a-- this is a stupid question. (Laughs.) Defense Official: I'm not sure if I understand-- Q: I'm just-- I guess I'm just trying to say-- it's interesting-- it's interesting to me that a military objective is not a legal target for everyone -- or anyone. Defense Official: In some cases we use-- there's terminology used in the law of war that I have to say is not always used with the precision that criminal lawyers use when they are adjudicating guilt in a way-- when you can take away someone's liberty and put them in jail, we tend to use words more precisely. So you get some of these terms in the law of war that can be used-- definitions that can adjust slightly, and it's very important exactly what you meant. This perhaps could be one of those cases. If there is no armed conflict going on-- if you're in an armed-- let me back up. If you're in an armed conflict, there are certain things that we could all recognize as a military objective. A tank is a military objective. A milk truck might not be. It would be a crime, in some circumstances, to attack the milk truck where it wouldn't be to attack the tank. That doesn't mean you can always, at any time, go attack any tank anywhere in the world. The crime might also be based on your lack-- you, the accused, lack of status as a lawful belligerent or a lawful combatant. Q: For instance, you would not be able to attack a tank when it's sitting on a base? I mean, what-- Defense Official: Remember the attack, for instance, on Khobar Towers in Saudi Arabia. I don't think there's anyone who-- well, I shouldn't say there's not anyone. But there aren't-- well, I don't think that was a lawful attack on a military objective. Q: Or, say, the attack on the Pentagon on 9/11. Defense Official: Or the attack on the Pentagon on 9/11. Q: Or the USS Cole. Defense Official: The USS Cole. Thank you. All good examples of what might be called a military objective in certain circumstances, but would not always be a military objective. Q: Just a couple of points of clarification. Is this document the entirety of this? I mean, this is not a summary of-- there's bigger, more explanation of each of these points somewhere else? This is the whole thing? Defense Official: Well, the bigger explanation somewhere else would be-- you'd find them in the antecedent treaties, judicial opinions from international courts and other courts that have tried things by military commission, tried law of war violations. Some of them, for instance, you'll find Title IX addresses a couple of the offenses listed in there. And international practice; it's been customarily agreed to by nations. Q: And you had to draw this up because there was no single-- essentially criminal code for military commissions? You needed to draw this up to clarify what was subject to-- Defense Official: There's no-- there's no single comprehensive document that addresses all the crimes and elements for violation of the laws of war. If you look at the-- I described the president's order that, among other things, tells the secretary of Defense to establish rules of procedure. The secretary of Defense established those rules in Military Commission Order No. 1. In that order, he authorizes the general counsel to issue supplementary instructions that will facilitate trial by military commission. Based on, as you've described accurately in many ways, the nature of this document, obviously this is something that would facilitate full and fair trials by military commission. Q: Why did you not put in genocide and crimes against humanity? Defense Official: Again, it's difficult to-- Q: Is that covered somewhere else, or something? Defense Official: Well, it's necessarily true that it would be prevented from being tried here. There was-- there's give and take on all sides on all kinds of questions like that, as to whether we should or should not include it. It doesn't mean that it's not triable simply because it's not in here. But looking at all those factors, you know, what is appropriately within the jurisdiction of a military commission, what is substantively the definitions that are acceptable internationally and domestically, and what is familiar to military practitioners, and what is relevant to the alleged offenses that took place-- all of those-- or have taken place or might take place-- all of those things were factored together in choosing which crimes and elements to put in here. Because it's not a comprehensive document, it was understood that things would be left out that might be triable. Defense Official: And it could be that we would receive comments during this comment period that would cause us to add or subtract crimes from the document before we finalize it. Q: Are there things in here that you anticipate are going to be controversial to human rights advocates or civil libertarians? Are there things they're going to focus on right away and say wait a minute-- are you anticipating a sort of lightning rod in here, or do you think it's fairly innocuous? Defense Official: I think we'll find out, perhaps. That's one of the benefits of publishing it on the Web. Q: Can I ask you-- Defense Official: It shouldn't be very controversial, though in some ways things have been articulated in this document in a way that make them cognizable with respect to terrorism. So not always would you see language that duplicates language of 150 years ago, when the norms that, you know, formed the core of these offenses were first articulated. Realize, too, when law of war treaties were articulated-- some 50, some over a hundred years ago-- for some of these offenses, they were articulated with language that applied to states, not to individuals and the criminal culpability that would attach to individuals. It's been a development since then-- Nuremberg, the International Criminal Tribunal for the Former Yugoslavia, and other events-- that have brought some of those norms into today, where they can be articulated with respect to individual criminal culpability. Q: Could you speak to the issue that we've been sort of grappling with during this week, of whether or not people who volunteer to be human shields, as there are some in Iraq-- are they-- do they give up their protected status and become enemy combatants with that volunteering? And how does it apply in this situation, when you're looking at, you know, potential for someone using human shields that are volunteers? Defense Official: That's a little bit out of the scope of what we have been working on, so-- Q: Right. (Off mike)-- ask the General Counsel's Office, and here you are! Defense Official: Well, I think it's safe to say that as the human shield-- I'm trying to quickly find it in this document-- using protected persons as shields -- it's the-- Q: Do they give up their status as protected persons? Defense Official: It doesn't address that issue. Q: (Off mike.) Defense Official: They certainly put themselves at risk. Q: Mm-hmm, but can you guys address that issue for us rather-- Defense Official: You're asking whether they can be prosecuted or-- Q: No, I'm asking whether people who volunteer to be human shields give up their protected status as civilians. Do they become enemy combatants? (Cross talk.) Defense Official: Yeah, there's other folks in General Counsel's Office that have been looking at that issue, so I don't think we should really get into that. Q: (Off mike.) Okay. Thank you. Defense Official: It's-- well, it's-- I mean, just to briefly address it, it's generally no. But this document doesn't-- this document talks about criminal culpability, not necessarily what-- you know, what status someone might get or not get. It doesn't create a crime of making oneself a human shield. And the crime with respect to losing or not having belligerent privilege, which you'll find a couple of in here, involves a murder or destruction of property. So they would have to have some sort of an intent to cause that damage or harm or killing before they would be culpable. Q: But the person who orders the use of a human shield would be culpable under this definition here. Defense Official: I would think so. Q: Another question. I don't see any kind of statute of limitations or any treatment of when the offense was committed to fall under this list. In other words, if for our hypothetical we capture Saddam Hussein sometime in the next couple of months, could he be put in front of a military commission for acts that he committed, say, during the 1991 Gulf War? Defense Official: Remember the key is going to be the jurisdiction over the individual based on the president's military order. And that's based on their membership in al Qaeda or the fact that they've engaged in, aided or abetted or conspired to commit some act of international terrorism or acts that aided and abetted or in preparation thereof or harboring of those things. So that would be the first jurisdictional trigger. As a technical matter, I suppose, once that jurisdictional trigger had been met and the president had designated that person, then they could be tried for any violations of the law of war or other offenses triable by military commission. Q: Forgive me, I came in late, but the context of this is that it was drawn up in the context of the al Qaeda attacks, not a war with Iraq. Isn't there an existing body of law under which people would be tried under-- in what would be a more conventional war between the United States and Iraq? Defense Official: My answer to the last question was really a technical one I am a lawyer. Q: Okay. Defense Official: I tend to give those kinds of answers. Whether or not the president would make them subject to his military order really goes to your point. I wouldn't say there's a different-- also, again, being technical, I wouldn't say there's necessarily a different body of law. This is the international law of armed conflict. Q: You're applying it to the terrorism attacks. Defense Official: Right. Q: But you're clearly thinking about Iraq when you were drawing this. I mean, there's a whole page in there about human shields. I mean, al Qaeda didn't have anything to do with human shields. I don't recall human shields on September 11th. I mean, clearly you were thinking about-- you were thinking ahead to what might happen as-- the whole Iraq conflict-- (inaudible)-- to fall under Operation Enduring Freedom, the global war on terrorism. You were thinking about Iraq and other potential aspects of the war on terrorism, not just 9/11. Defense Official: Well, that's what a lawyer would call a leading question that -- (laughter). I don't know if I'm quite as clear about what we were thinking about at that time. And, sir, I know you've had your time up for a while. Q: Thank you. Realizing that the first step for someone becoming subject to a trial by one of this military commissions is the president designating that person as somebody who-- and then you go and see whether you have a case, and so on. What is the mechanism for that to happen? Do you have anything to do with that or is that a completely different thing? In other words, the mechanism for that name to come up to the president, and the president says yes, this person. Defense Official: Well, the-- you know, the way it would happen would be that one of the president's advisers, perhaps the secretary of Defense, would make a recommendation to the president with respect to a particular person, and provide facts to the president that would support a designation under the November 13th, 2001 military order. Q: A couple of other questions. Does the presidential order and the subsequent secretary of Defense's order, does that-- at the end of his administration, does that go to his successor and successive presidents and secretaries of Defense until somebody decides no, that they don't like that, this is no longer operative? Defense Official: That's correct. It's similar to an executive order. It continues on until it's changed. Q: Till somebody says no. Okay. And third-- and this might have been in Military Commission Order No. 1-- it probably was. But is there a provision for outside observers of these proceedings? Defense Official: You're right, it is in Military Commission Order No. 1. I don't have the exact language at the tip of my tongue. But it's something to the effect that the commissions will be as open as practical. Q: What does that mean? Defense Official: Well, meaning certainly we would-- we want as many observers as have interest in the commissions to be able to see as much of it as possible. Q: Does that Military Commission Order No. 1-- I'm sorry, I just left my copy at home. (Laughter.) Does it also outline the things like the burden of proof, access to attorneys, the rights of-- you know, does it lay all that-- is that all spelled out, if I go find it? Defense Official: All of those things are spelled out back at your house. (Laughter.) Yes, access to attorneys, proof beyond a reasonable doubt, those kinds of issues are laid out. What it doesn't lay out quite as clearly is the subject matter jurisdiction, which it describes as-- and I have it here somewhere-- "commissions established hereunder shall have jurisdiction over violations of the laws of war and all other offenses triable by military commission." Q: And that's what this answers? Defense Official: This assists. And, I mean, you can imagine, if you were trying a case using this order, that's one of those questions you'd like to answer with a little bit more clarity, and that's what this instruction does. Q: I'd like to go back to the issue of applicability and what people were thinking about. Originally when this came up-- I mean, one would think that this was designed for people like the detainees in Guantanamo, if so chosen by the president. But there is this question now: Was it written with a view also to possible prosecutions of people who might be detained in the wake of a war with Iraq? And if that's, you know-- I mean, for example, then, why specifically was the notion of human shields used in this as a law? Defense Official: You know, again-- and I feel like I'm begging the questions, because it's very difficult to answer specifics as to each judgment call that was made in this document, other than to reflect back on the general principles we were trying to apply in choosing offenses. The-- whether or not a human shield would or would not be used-- remember, there's an ongoing armed conflict. We don't know everything that's going to take place in that armed conflict that's happening right now. An assessment of relevance, likely relevance, had to be made sometimes without full knowledge, because that's, in fact, what courts are for; to really find out what the facts were in a specific case. And until you've got a judicial determination, you don't always know exactly everything that happened. All of that said, it was made to implement the president's military order; it was not made with a view toward implementing some potential future-- (Cross talk.) Q: (Inaudible)-- documents together mean that these will only be used in the pursuit of justice against folks that were involved in September 11th, or the Afghan war or global war on terrorism, which remains sort of undefined what the battlefields are and may or may not include Iraq? Defense Official: Those first three paragraphs that I said were general and relatively self-explanatory; I think those addressed that and clearly make-- they make clear that the document is applicable to the president's military order with its jurisdiction. Q: Can you remind us what that jurisdiction was? Defense Official: A person that the president declares is subject to his military order, who meets the criteria as they're found in Section 2 of that order; that being that there is-- he finds there is reason to believe the individual was a member of the organization known as al Qaeda or has engaged in, aided or abetted or conspired to commit acts of international terrorism or action, preparation thereof that have caused or threatened to cause injury or adverse effects to the United States-- and I'm summarizing there-- or basically, persons who have harbored those kind of people. Q: Aha. Defense Official: That's where the jurisdiction-- Q: Gotcha. (Laughter.) Okay. Staff: We have time for about one more. Defense Official: That's where the jurisdiction of this ends. Staff: We're going to have to clear the room for a SECDEF press briefing, so one more, then we'll take your questions afterwards if you still have them. (Off mike.) Q: So I'm clear, if general counsel next couple weeks wraps this thing up, decides to put his name on it, put it out, is that it, it's now law? Or does the president, the Congress, the secretary of Defense-- who has to sign off on this? Defense Official: This would be a supplemental instruction issued by the general counsel of the Department of Defense in accordance with Military Commission Order No. 1, which give him authority to issue such instructions. But remember, it can be amended or supplemented at an any time. Q: So as soon as the general counsel puts it out, that's it. We know that the minute we receive the final draft from the general counsel, it's now the law. Defense Official: It's effective that date that it's signed. Q: But it could be updated and things happen to it in the future. Defense Official: That's correct. Q: Thank you. Defense Official: Thank you all. "THIS TRANSCRIPT WAS PREPARED BY THE FEDERAL NEWS SERVICE INC., WASHINGTON, D.C. FEDERAL NEWS SERVICE IS A PRIVATE COMPANY. FOR OTHER DEFENSE RELATED TRANSCRIPTS NOT AVAILABLE THROUGH THIS SITE, CONTACT FEDERAL NEWS SERVICE AT (202) 347-1400." # # # February 28, 2003 DOD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. MYERS (...) Q: Mr. Secretary, I have a question from our news after it was announced file as opposed to before-- Rumsfeld: Good. Q: Today you released the draft military commission instructions. Rumsfeld: True. Is it no longer newsworthy? Q: I would just like to know, does this mean the U.S. is any closer to bringing anyone before a military commission? Rumsfeld: That, as you know, is a decision for the president. What this means is that we have moved another step with respect to military commissions by drafting the types of crimes and the-- what's the word-- elements ? that would be a part of this-- and I haven't seen the release, but I authorized that it go out-- so that it can be out for comment, as you suggest. You have at do that. It had been widely coordinated within the government, and now it's at a point where we're looking for external comments, and at some point it then would be finalized. That would have to be done before a person was brought-- sent by the president to be put before a military commission. So it does mean you're a step closer. It does not necessarily mean that there's a person who's ready to be put into that process. Q: Mr. Secretary, a member of your General Counsel staff said that one of the ways that the president-- someone might come before the president to be designated that way would be that you would make a recommendation. Are you prepared to recommend anyone-- Rumsfeld: I suppose anyone could recommend. You know, the attorney general could, the agency could, I could, the White House could, the president could get it from his own counsel. If you're asking do I have someone in mind that I'm going to tee up, the answer is no. Q: Could I-- Q: Can I ask my question now? Are the U.S. forces ready to strike in Iraq at any minute, once they're given the order? Myers: I think the secretary said it exactly right. What we're trying to do is provide maximum flexibility to the president of the United States, so if he decides a certain course of action is required, we'll be ready to do that. And we're ready. Rumsfeld: We'll make this the absolute last question. Q: Could the-- Rumsfeld: No, I didn't like the earlier one you had. Maybe I'll try someone-- (laughter)-- Q: I never get a-- Rumsfeld: (Laughing) Sorry! I'm kidding! I'm kidding! Q: The rules for the military commissions, could that be applied to Iraqi soldiers or Iraqi military personnel in a prospective war? Rumsfeld: I forget what it was called, but the president issued an-- I think an executive order-- or a military order, is what it was called. It seems like years ago now. And whatever it provides-- my recollection is that it specified no U.S. citizen. That could be amended; he could change that. But under the current military order, no U.S. citizen could be. But I think any other national could be. Rumsfeld: Hm. You say certainly you have in your mind. You know, the truth is, no, I didn't have that in my mind. I haven't thought much about it, to be perfectly honest. I would not anticipate that in a-- in the event force is needed with respect to Iraq, and the president makes that decision, I would not personally anticipate large numbers of Iraqi soldiers being sent to Guantanamo Bay or being put through-- necessarily put through a military commission. It just happens to be something that I'm not focused on. Q: Well, what about leadership, though? You've specifically said and warned very publicly Iraqi generals or other officials not to take-- carry out certain activities, or they could be prosecuted for war crimes. Rumsfeld: That's true. Q: Would this not possibly come into play there? Rumsfeld: It could. This would be one vehicle that would be available among several others that would be available. There are all kinds of ways that Iraqis could be brought to justice. They could be brought to justice in Iraq. They could be brought to justice in other countries. They could be brought to justice through a military commission, one would think. They could be brought to justice-- Q: What would you do with POWs in the event of a war? Rumsfeld: Well, we sure don't want to take lots of them down to Guantanamo. Q: You had that-- this same position during Desert Storm. Rumsfeld: Yeah. Q: Is there an agreement with another country to handle that or-- Rumsfeld: There will be provision made for prisoners, and I assume it will be in Iraq, in the event something like that were to occur. (...) # # # (...) (...) (...) # # # (...) (...) (...) # # # (...) (...) (...) # # # (...) (...) (...) # # # March 23, 2003 DEPUTY SECRETARY WOLFOWITZ INTERVIEW WITH KIRO-TV (Interview with Brigette Langmade, KIRO-TV (CBS), Seattle, Wash.) Q: I'm going to, as I said, ask you probably many of the same questions from this morning so bear with us with the repetition. The first thing I want to ask you, of course, is about the American POWs. What's being done to verify the validity of the tape and the identity of those on the tape? Wolfowitz: What we know is some of our people are missing and we don't know exactly where they are. Our first responsibility is to make sure that we notify the next of kin. We are going to do everything we can to find out where they are. I think it's very important for the Iraqis who are holding our people to understand clearly the obligations they're under, under the Geneva Convention, to treat these people humanely, not to humiliate them. And they ought to understand that we are going to be in a position when that regime goes-- and it's on its way out-- to enforce the provisions of the Geneva Convention. We observe them ourselves. We have hundreds of Iraqi prisoners that are being treated well. They're being fed. I would imagine they're actually relieved no longer to be under command of the brutal army that they used to work for. (...) # # # Monday, March 24, 2003 - 3:31 p.m. EST DOD NEWS BRIEFING - ASD PA CLARKE AND MAJ. GEN. MCCHRYSTAL Clarke: Good afternoon, everybody. Coalition forces are continuing the fighting and are performing with enormous skill, courage and determination and are making good progress towards their objective to end the regime of Saddam Hussein. Our thoughts and prayers of those killed and missing coalition forces. Their exceptional service and sacrifice are helping to make the world a safer place. Let me talk for just a minute about the Iraqi treatment of the coalition prisoners of war. As we said yesterday, it is a blatant violation of the Geneva Convention to humiliate and abuse prisoners of war or to harm them in any way. As President Bush said yesterday, those who harm POWs will be found and punished as war criminals. The Iraqi regime must allow the International Red Cross to see the prisoners. In contrast, this abuse of the coalition prisoners, to how well we are treating the Iraqi soldiers, who are our prisoners of war. Right now, more than 50 Iraqis, soldiers and civilians alike, are aboard U.S. Naval vessels receiving medical care and treatment. We are treating all of the POWs in accordance with the Geneva Conventions, with dignity and respect, and they will soon have access to the Red Cross. (...) # # # March 24, 2003 DEPUTY SECRETARY WOLFOWITZ INTERVIEW WITH BBC WORLD SERVICE (Interview with BBC World Service. Also participating was Emad Dhia, Iraqi Forum for Democracy.) (...) Mr. Wolfowitz, first, could I ask you, there are apparently new pictures on Iraqi television allegedly of the missing pilots from the downed Apache helicopter. I know you haven't been able to see these pictures, but do you have any response to these new pictures? Wolfowitz: The Geneva Convention is very clear on the rules for treating prisoners. They're not supposed to be tortured or abused, they're not supposed to be intimidated, they're not supposed to be made public displays of humiliation or insult, and we're going to be in a position to hold those Iraqi officials who are mistreating our prisoners accountable, and they've got to stop. (...) # # # March 28, 2003 - 1:15 p.m. EST DOD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. MYERS (...) Rumsfeld: Finally, before I turn to General Myers, a few words of caution. First, to the officials of the Iraqi regime: The defeat-- your defeat is inevitable and you will be held accountable for your conduct in this war. The coalition POWs that you are holding must be treated according to the Geneva Conventions. And any Iraqi officials involved in their mistreatment, humiliation or execution will pay a severe price. (...) # # # April 3, 2003 - 12:45 p.m. EST DOD NEWS BRIEFING - SECRETARY RUMSFELD AND GEN. MYERS (...) Q: Mr. Secretary, you said a couple of months ago that Iraq is running out of real soldiers and that all that will be left are war criminals. Is that a warning that if these military leaders don't give up now that they'll be considered war criminals or is that an appeal to surrender? Rumsfeld: I guess it's a reflection of what's taking place there. There are any number of soldiers that are behaving as soldiers, and they have been either surrendering, been captured or been killed or they're still there fighting. There are others who have left and gone into a different mode where they are in civilian clothes and they are operating out of cities and they are putting themselves in close proximity to schools, hospitals, mosques and the like, and conducting themselves less as soldiers and more as war criminals. I don't want to get into any legal definitions, but there's no question but that the things -- the execution of Iraqi people, the execution of others is certainly not something that soldiers do. (...) # # # April 4, 2003 - 1:30 P.M. EST DOD NEWS BRIEFING - ASD PA CLARKE AND MAJ. GEN. MCCHRYSTAL (...) Q: Can you help us to understand one of the points-- one of the arguments made by the administration on the "war criminals" tag? Obviously, the administration has seen a number of irregular practices on the part of the Iraqis. One of them in particular puzzles me. When they take off their uniforms and fight in civilian clothes, why is that a war crime? Because U.S. Special Forces do it and did it in Afghanistan-- they didn't behave in the same way, but why is the act of fighting without a uniform considered a war crime? McChrystal: I'm not a lawyer, so I might get part of this wrong, but having grown up in that business, part of it is the action-- what you do when you're not in uniform. If a force is going to engage in combat, is going to fight, it must wear a uniform or some kind of uniform. The law of land warfare says armbands or some distinctive marking that allows combatants to be identified from civilians. In these cases, the use of civilian clothing was expressly for the purpose of acting in a combatant way while hiding the fact that they were combatants, similar to the false surrenders, using the law of war and the sure knowledge that we would follow that against coalition forces. Q: That goes to the behavior, but U.S. forces in Afghanistan and U.S. forces now in Iraq are not in uniform and do not-- some of them are not in uniform-- and do not have specific designations that they are, in fact, American soldiers. Clarke: I'd actually like to take that question, because I don't think you're right about that. (Pause.) We'll take the question and we'll get back to you, but I don't think you're right about that. [The law of armed conflict requires lawful combatants to distinguish themselves from the civilian population during international armed conflict. The Geneva Convention Relative to the Protection of Prisoners of War of 1949 provides that combatants should distinguish themselves by wearing a fixed distinctive sign visible at a distance. U.S. forces wear standard military uniforms (e.g., battle dress uniform (BDU), desert camouflage uniforms (DCU), or official flight suits) to distinguish themselves as combatants during military operations in international armed conflict. These uniforms satisfy the requirements of the Geneva Convention. A visible part of a standard military uniform, or other fixed distinctive sign will also satisfy the requirements of the Geneva Convention provided that the forces are recognizable as combatants and carry their arms openly. During the conflict in Afghanistan, some U.S. special forces wore non-standard uniforms in limited circumstances. These U.S. forces, however, were recognizable as combatants at a distance, carried their arms openly and conducted their operations in accordance with the law of armed conflict. This is in stark contrast to the Iraqi forces that are treacherously disguising themselves as civilians and concealing their weapons to enable them to approach and attack Coalition Forces, knowing that Coalition Forces will not engage them as they approach because they appear to be innocent civilians. Such actions are war crimes.] Q: That they are somehow designated as U.S. soldiers? Clarke: We'll take the question, but my understanding is that they are designated as such. Q: Torie, General, are U.S. forces-- coalition forces under any special instructions-- Clarke: You don't need to answer his question. Q:-- are coalition forces under any special instructions if they come across Saddam Hussein or any of the other senior leaders who are considered most wanted? And secondly, outside of the Kurdish territory, are we currently working with any armed groups in Iraq, or have we armed any Iraqis to work with us? McChrystal: I'm not sure whether we've armed any elements outside of the Turkish -- or-- the Kurdish area. We are working with elements in many of the areas-- Shi'a elements in southern cities to try to help them identify and help us identify some of the irregular forces that have been operating there. So clearly, we are working with populations to try to give them the ability to remove the regime figures in the area. Q: And as far as any special instructions to our forces vis-a-vis Saddam Hussein or any of the other senior most wanted? Clarke: Nothing he would discuss from here. Eric? Q: General McChrystal, every day we see on the briefing-- at the CentCom briefing, they talk a little bit about the Special Operations force-- Special Forces activity. But given your own background, can your characterize for us how extensive these operations are in Iraq and how they compare historically to other campaigns, particularly ones you've been involved with? McChrystal: Sure. They are more extensive in this campaign than any I have seen. Probably, as a percentage of effort, they are unprecedented for a war that also has a conventional part to it. In fact, in the North, significant Special Operations presence, working with the Kurdish groups, helping achieve stability, helping to bring in the 173rd Airborne when it came; in the West, a large area denial mission, very, very effective at this point, to include the point attack of a number of specific targets: airfields, potential weapons of mass destruction sites, some command and control headquarters. And then, in the South, some aid to the conventional forces-- some reconnaissance and whatnot. And then, additionally, some of the work in some of the cities to help the Shi'a element. So it's probably the most effective and the widest use of Special Operations forces in recent history, clearly. Q: And let me just follow on that. Early on, Ms. Clarke, I think you said there were hundreds of Special Operations forces in. Obviously, that number has gone up. Can you give us a ballpark figure of the amount of Special Operations people in the country? Clarke: Probably not. McChrystal: It's a lot. Q: A lot. Clarke: Enough. (...) # # # Wednesday, April 9, 2003 - 9:00 a.m. EDT Presenter: Army Col. John Della Jacono, Deputy Chief of Staff, CFLCC Teleconference Briefing From Umm Qasr, Iraq on Enemy Prisoner of War Issues Staff: I want to welcome you to our second in a series of briefings related to U.S. military treatment of enemy prisoners of war today. And we have with us Colonel John Della Jacono, who has joined us from Umm Qasr. Colonel Della Jacono is the deputy chief of staff for Coalition Land Component Commander, and he has a great deal of experience in working with enemy prisoners of war. Colonel Jacono comes to us from the newly built Theater Internment Facility at Umm Qasr, which is the main facility for this conflict. Today he'll have a number of staff members from the facility, and they'll tell you about their responsibilities. We are being joined from Kuwait at the press center there, as well as the press center in Qatar, and we'll be taking questions from both here and from Qatar. The last-- the spelling of the last name is J-A-C-A-N-O (sic). And with that-- Q: (Off mike)-- in the press release spelled J-A-C-O-N-O. Staff: We'll get you the spellings afterwards. Okay? Let's go ahead and get started. Colonel Jacono? Jacono: Yes. My name's Colonel Della Jacono. My first name's John. My last name's Della Jacono. Currently the deputy chief of staff of CFLCC. I'm an MP officer. I have approximately 28 years in the service. I've had some experience with EPWs during the last war, when I was assigned to the 82nd Airborne Division. And also I was responsible for the detainee operations in Afghanistan during Operation Enduring Freedom during the first nine months, before we did a transfer of authority to 18th Airborne Corps. We've been up here now-- we've been in combat for about 21 days. And what I could categorically say to all of you-- we've been taking EPWs since day one, and as you have seen in the print media, you have seen the care and humane treatment that our forces, from the combat infantryman or Marine on the ground to the MP back here in the Theater Internment Facility, has been giving to the Iraqi enemy prisoners of war. We have planned this operation to handle EPWs for a significant amount of time. Planning has been occurring or has occurred, I would say, over the last eight or nine months. Where I'm standing right now is the final internment area for all the enemy captured-- enemy prisoners of war in theater. So all those being captured today in Baghdad will be evacuated from Baghdad to this facility here. This is the end state. The EPWs will remain here until the end of hostilities, at which point a decision will be made on the procedures for repatriation to either an interim authority or a legitimate government in Iraq. The men and women responsible for EPW handling are trained pretty much as a common soldier task. The infantryman is taught how to deal with EPWs on the battlefield, but this is primarily a Military Police operation. And so, here at this facility, you have the 800th MP Brigade, which is our theater internment resettlement brigade responsible for the theater internment of EPWs on the battlefield. Now as you go further up north, every echelon of command from the brigade on up, division, corps level, they all have certain EPW responsibilities and they all have MPs embedded in those organizations. So, this is an MP battlefield function; we train to this. And I think we're doing a great job in evacuating EPWs off the battlefield for their own care. And that's one of the tenets, to get them off the battlefield as quickly as possible. So, we do have a mechanism in place that all captured EPWs are expeditiously moved back to this location. So that kind of concludes my initial statement. Do you have any questions? Staff: Colonel Della Jacono, do you have any other individuals there that you want to introduce us to and kind of let us know briefly what their responsibilities are, so as we direct questions, if they have questions for-- that fall in those particular areas, they can ask those individuals also? Jacono: Right now, I'm kind of standing by myself. The 800th MP Brigade representatives right now are building the theater internment facility, so hopefully, they'll be available as we go through this interview. If not, I'll try to handle most of the questions that come from you. Staff: Very good, Colonel. We'll start from here, then, and we'll try to let you know who's asking you the question and from what news organization. Q: (Off mike)-- that you are holding, how they're being treated, what they're being fed, how they're being medically taken care of? And also, can you provide any sense of what they're talking about, whether they're relieved that this may be coming to an end? Jacono: Can you please repeat that question? Q: Colonel, could you provide us with a sense of how the prisoners are being treated, being cared for, given food, medical treatment? And also, can you give us a sense of what they are saying about their sense of this war perhaps coming to an end? Jacono: Well, first of all, we do medically treat all injured EPWs. We have quite a few in existing medical facilities at this time. The last count that I saw this morning, we had approximately 236 EPWs under medical treatment. They are in field hospitals on the battlefield. We have some on the Naval hospital ship, the Comfort. So immediately, if we encounter a wounded EPW, he's getting the immediate care to treat him accordingly. Q: Could you give us a sense of-- Jacono: And I didn't get the second part of your question. Q: Yes, Colonel, could you give us a sense, first of all, of how many you have there, and how they're being treated in terms of regular food and what reaction they might be giving you? Jacono: Well, as of this morning, we have about 7,300 enemy prisoners of war under our control. That stretches from Baghdad all the way down to this location here. They are being fed-- as you go up north, you know, they are being fed the same meals as soldiers eat or Marines eat. They're given water, MREs. But at this location right now, there is an existing mess hall, as you will. And they were getting two hot meals a day, primarily rice and stew. They're also receiving some sundry items, bread, water. So, from what I've seen down here, most of these EPWs are not hungry. They are being well taken care of all the way from Baghdad down to this location. Initially, what I saw a couple of days ago was that when we do receive enemy prisoners of war down here, they are also given a box, an initial box of food, juice, bread-- a pretty hefty little lunch kit, as you will, to initially feed him as he gets to this facility. Q: Colonel, good afternoon. My name is Meredith Buel. I'm a correspondent with the Voice of America. Have you had a chance to talk with any of the prisoners of war with regards to their feelings about fighting for the Saddam Hussein regime, and about their feelings, at least lately, that it appears that the regime has fallen in Baghdad? Jacono: I have not personally, so I cannot give you an answer to that question. I know all the way up from the division level back here, they have been initially talked to, interrogated, as you will. But I can't give you an answer on their sentiment on, you know, how they feel about the regime and Saddam Hussein at this point. Q: Colonel, let me follow that up. Can you tell us, have they given you any valuable strategic or technical information with regards to the Iraqi military, that has been passed along to coalition forces as they continue to fight? Jacono: There's a few that have given us some insights on the state of readiness, the cohesion of some of the units. So there has been some talk about how well the units are, how they were able to accomplish their mission, as you will. So there has been some of that discussion with some of the EPWs down here. Staff: Colonel, we're going to try to take a question from Qatar. There's a long delay, so it might be a few seconds before we can actually hear the question. Qatar, would you try to go ahead and ask the question. Q: Sir, this is Audie Raval (ph) with ABC News. I wanted to know if you had a breakdown in terms of the foreign forces that you have captured that are now EPWs, how many of the 7,300. I understand that you haven't done an analysis of all of them yet, but just how many, you know, Egyptians do you have of EPWs and other foreign forces? Thank you, sir. Jacono: I don't have exact numbers per se. I know there is some mix of nationalities within the EPW population. Staff: Qatar, while we have you there and you have a good connection, do you have another question? Q: Sir, it's a brief follow-up, from Audie (ph) again. I wanted to know, in terms of a decision as to when the POWs will be accorded-- you know, if any of them will be made battlefield detainees, enemy combatants and possibly transferred to Guantanamo. Can you shed any light on that? Jacono: Can you please repeat that question, please? Q: Sure. Are there any plans under way to transfer any of the EPWs to Guantanamo to subject them to interrogation there, any plans for some of the EPWs to be stripped of their POW status and be accorded enemy combatant battlefield detainee status? Jacono: There are no plans at this point to transfer any of these EPWs to Guantanamo Bay. That's not even in the plans. The theater internment facility here is the final home, as you will, for these EPWs. They will undergo Article 5 tribunal hearing at a certain point in time. I think the lawyers are gearing up. And through that process, they will vet all of the EPWs to put them into distinct categories, as you will. They will be either categorized as pure EPWs, enemy prisoners of war, they will be categorized as a civilian internee, and that is someone that has committed an act against us, either criminal or he's a security risk and he's kind of under our custody and care. So, those individuals, everybody here will be vetted at one point in time to determine their exact status. Once they are vetted, they are either fully accorded EPW status at that point in time, or they might, at a future point in time, be turned over for criminal prosecution for a crime committed against the coalition or against the Iraqi people. So, there is a deliberate vetting process that we do. It's called a tribunal, it's an Article 5 Tribunal, and that will commence shortly. Staff: Let's go back here to the Pentagon. Q: Yes, hello. This is Vince Crawley (sp) with the Army Times newspapers. How many enemy prisoners are you able to house at your maximum capacity? And are they in tents or some kind of fixed structure? And in addition, how long do you anticipate keeping some of these individuals? Jacono: Well, I don't know if you've seen pictures of our two facilities 12 years ago. They were called Bronx and Brooklyn. They were the theater internment facility during Desert Storm. They pretty much housed about 50,000 people plus. We're not going to build to that capability here. We're going to probably build to an initial capability about 24,000. And we will expand as necessary, if need be. Q: Colonel, this is Sandra Johns (ph) with Stars and Stripes. If you could provide a little more detail about how many EPWs per space; are they each going to have an individual cell? And what are you doing to accommodate some of the religious needs-- hours for prayers, some of the meals, the halal meals, or anything to that effect? Jacono: Okay, right now we accord them, you know, their religious rights and practices. Once we get all of our stocks here, they will be given a prayer rug, a Koran-- and that's part of the plan. They are allowed to pray in their compounds. So, I mean, they're able to practice their religious beliefs here at the theater internment facility. What was the second part of your question, please? Staff: (Off mike)-- what type of meals-- Jacono: Let me give you a little idea-- Staff: (Off mike)-- what type of meals-- Jacono: Let me give you an idea on the compound here. The compound is basically set up in the desert. We have bermed the area-- and it's quite extensive area -- because, you've got to understand, you're building a mini-town, as you will. So the area is bermed. There is concertina wire around the berms, plus guard towers. The inmates will be-- live in it. I mean-- excuse me-- the enemy prisoners of war will be living in tents. And we will house, you know, the normal occupancy of what you normally house in a TEMPER tent. So, you know, they would-- they probably live 15 to a tent-- 15 to 20. And we will build compounds. The first initial compound will hold 4,000. That's a planning factor, which can be expanded and doubled in size to 8,000. We will build a series of those. Three of those camps equal an internment facility. So initially, doctrinally, three camps equals an internment facility. That's 12,000 folks. But also doctrinally, you could double that capacity to 24,000. Now what are they fed? Right now they are using some of the Iraqi EPWs to assist in the preparation of their meals. So in the morning they were given fruit, tea, some sundry items, bread. At night they get their rice. They get meat, vegetables and a pretty decent broth, and your sundry items with that-- water, juice, as you will, some tinned food items. So they are being fed well here. Staff: Let's go ahead and go back to Qatar. Q: Yes. This is Nat Harrison with the AFP, the French news agency. I would like to know if they've been visited by the Red Cross. Or do you have plans to have them visited by the Red Cross in the future? Thank you. Jacono: Yes, the Red Cross was here. I think I was here last week also, and the ICRC was here. They were given access. They've been through the facility. And that was when the British owned the holding area here at this location. So-- and they spent about three to five days here on site. So they're going to make daily trips to this location. And they came here pretty early on, so they saw the conditions, the treatment of the EPWs, and they were satisfied, even though at that particular point in time this was a very austere camp. You've got to understand, one of the challenges we had here was that, unlike Desert Shield, Desert Storm, we were allowed to build facilities inside Saudi Arabia. For this operation here, the war plan called for us building facilities here in Iraq. So, it was a challenge. The British did an outstanding job; they put up some capability, because we immediately had EPWs on the battlefield. And I'll tell you what, they really did a bang-up job. They had a mess kitchen set up in record time; they had tentage up, they had security in. And so they were able to accept their own EPWs, but at a certain point in time, they also started accepting the Marine EPWs and the V Corps EPWs. So that has transitioned now from a holding area to a theater internment facility. And the United States Army, the 800th MP Brigade, two days ago has assumed that mission here right outside of Umm Qasr. Staff: Another question from Qatar, if we have someone. Q: Japanese news agency, Jiji Press. My name is-- (inaudible). How long are you going to hold these POWs? And could you tell me something about the procedure by which you are going to release these people? Jacono: Sir, all I got was how long were you going to hold the EPWs. Like I said before, they will go though a tribunal process, and at a certain point in time -- and this is a decision that will have to be made at the Department of State level, and the like, repatriation procedures will come into effect once, you know, hostilities are over and we have a legitimate interim government, as you will, so that we could turn over these Iraqi EPWs to a legitimate form of government. Staff: Let's go back here to the Pentagon. Q: Sir, Brian Hartman with ABC News. I wonder if you could go a little bit more into the vetting process, how you're weeding these people out, how they're separated, the officers and any regime leadership figures might be separated from the enlisted soldiers, and go into some detail about who is interrogating them, how they're being interrogated, and who's gathering that evidence and how it's being organized? Jacono: Okay, one of the first things we do on the battlefield, the capturing unit has a responsibility to segregate captured individuals on the battlefield. And normally, we segregate them by rank; officers are separated from enlisted men. There's been an additional challenge here because, as you know, a lot of the EPWs that we have under our care right now are not in uniform; they don't have military ID cards. So they have to go through a deliberate processing so we get to, you know, the ground truth on who they are, where they live and the like. So once an EPW gets to this location, he will go through a deliberate processing procedure, where, you know, everything's recorded: Next of kin information, where are they from in Iraq and the like. Because, you know, one thing we do, we have a responsibility at a certain point in time to notify the ICRC that we do have these individuals here and that they will notify their next of kin that we do have these individuals under our care. So there are different, you know, deliberate-- I won't say (deliberate ?) vetting occurs here. On the battlefields, it's a lot quicker; but they will segregate by rank. But it's been a challenge, because walking through the facility the other day, I saw very few in a full military uniform. I saw some with uniform tops, I saw some with uniform bottoms. And it's the same challenge we had in Afghanistan. And I think to this day, we're still trying to figure it out at Guantanamo Bay who some of these individuals are. But they will go through that process. At a certain point in time here also, they will put in a joint interrogation facility, where they will be interrogated by our folks and asked questions, as you will. So that facility will be co-located at this location. Q: Sir, if I could just ask a follow-up. Do you have a sense yet of whether you have colonels, generals? How many high-ranking officers from the Republican Guard or even just the Iraqi general army do you have? Jacono: There's been reports of some high-ranking officers here. But once we peeled back the onion, we found out that they were not lieutenant generals but they were lieutenant colonels. So I guess they understand a little bit about rank and the treatment accorded to high-ranking commanders or individuals. Not that we treat them any differently-- we treat everybody the same-- but they-- military officers are segregated from the general population. At this point, I can't give you a hard and fast number of how many general officers we have. Last count, but now several days ago, I think we have about three or four under our care. Q: Yes, Colonel, it's Meredith Buel again, from the Voice of America. I'd like you, if you could, to compare numbers between the first Gulf War and the current conflict. And can you give us an idea of why you think there are so many fewer prisoners of war this conflict than there were after the first? Jacono: That's a great question. I've wondered that myself. As you know, in the first Gulf War, we took in about 83,000. But it was a different campaign. You got to understand that a lot of the formations during Desert Storm, they were out there weathering an aerial bombardment for a significant number of weeks. When I was in Desert Storm, a lot of the guys in their foxholes were not fed, they were hungry, they were starving. They'd just had enough at that particular point in time. So I think that's why you saw the influx of EPWs during Operation Desert Storm. I think the information campaign has taken an effect here. I think a lot of soldiers are just leaving. There's been reports of just revetted tanks and positions just abandoned. So I think that has a lot to do with the low number. I won't say it's low, we still have over 7,000, but the number of EPWs that we currently have. But we learned from Desert Storm. So, you know, initially we planned high. (Short audio break)-- we kind of tried to, you know, "worst case" it and try to get in a capability to handle the numbers that we kind of saw during Desert Storm. And frankly, I think it's to our benefit that we do have these low numbers. Q: Colonel, thank you for that detained answer. We lost you just for a very brief portion of your answer, at the time when you were saying how many POWs you had planned for. Can you repeat that part of your answer, please, and tell us how many you had planned for versus how many you actually have? Thank you. Jacono: Well, you know, that's kind of a rough slag any time you try to put a capture estimate to a plan. There is a doctrinal kind of template that we use, and initially we were planning about 50,000 at that point, or higher. If you look at the Iraqi forces on the battlefield, with the number of divisions, we saw that, you know, maybe at a certain point in time we would have saw a lot of surrendering units, as you will. Taking that, the lessons learned from the last war, that's why we kind of developed a capitulation strategy, too, to allow these Republican Guard divisions or regular army divisions to capitulate on the battlefield. And however, at this point in time we have seen very few capitulate. Staff: Let's go ahead and ago back to Qatar and see if we have any other questions from there. Q: No more questions from Qatar. STAFF; Any more from the Pentagon? We have at least one more from the Pentagon here. Q: Sir, it's Mike Mount with CNN. Have the prisoners thus far been relatively calm, or has there been any uprisings at all since taking them in? Jacono: They have been relatively calm. Any time you get a bunch of people in a wire together and you're in each other's space, you do have those challenges. But for the most part, you know, they're being fed, they're being well cared for, and they're following the rules, per se. And so they understand the process and it's been pretty decent. We have had no significant challenges down here with the number of EPWs that we currently have. Staff: We've got one more here from the Pentagon, and we'll make this the last one. Q: Yes, this is Vince Crawley again from Army Times. Are the individuals in internment getting any news from the outside? Do they know what the progress of the war is at this point? Jacono: I don't know if they're getting any news or current news. I think as new enemy prisoners of war are being processed and they enter the general population, I'm sure they're sharing information to each other on what's going on further north. But as far as them receiving daily updates of what's going on, right now they don't have that ability. It's pretty much news by word of mouth. Staff: Colonel, we know that you're very busy, and we appreciate you taking the time this morning here, this afternoon there, to be with us and to give us an update on this very important mission that you have. So thank you very much. Jacono: Thank you. # # # July 3, 2003 Presenter: Senior Defense Official [SDO] BACKGROUND BRIEFING ON MILITARY COMMISSIONS SDO: I just really wanted to put out some information very quickly and then we'll go right to questions and answers. Today the President has determined that six enemy combatants currently detained by the United States are subject to his military order of November 13, 2001. The President determined that there is reason to believe that each of these enemy combatants was a member of al Qaeda or was otherwise involved in terrorism directed against the United States. I think with that setup, there are obviously a lot of questions, I assume, on your mind and we'll be happy to take those. Charlie? Q: We assume that Dr. Wolfowitz will determine whether or not they will be subject to commissions. In other words, the President has determined that they are eligible to go before commissions, and the Pentagon now determines whether or not they will in fact be charged, what they will be charged with-- SDO: Why don't I talk just a little bit about the process. SDO: I think you're in effect correct. In effect, it is a grant of jurisdiction over the person. Then after that the prosecution would look at the cases, determine if there were appropriate charges, would then present the charges to the appointing authority, and at that time it would be up to the appointing authority, Dr. Wolfowitz in this case, who would determine whether or not to approve the charges and perhaps to appoint a commission and refer those charges to the commission. Q: These six, we assume, are among those held at GTMO, and why these six? Are the things that they have done especially egregious to single them out? SDO: It's really not so much-- These are people among others who have been evaluated. There are a lot of factors. The quality of the evidence we have against them, how far along we are in intelligence gathering, and it's really mostly that these are people who are available, and according to the process we've established for gathering this information we've determined that we have sufficient action-- The President has indeed determined that he's got reason to believe that they are as I described them. Q: And they are at GTMO. They're among those being held at GTMO? SDO: We're not talking about the individual cases and I don't think we need to discuss exactly where they're being held because that's a little bit more specificity than I think we're prepared to discuss. Q: Will they be moved from wherever they are now, assuming GTMO, to a regular military prison? SDO: I think that also would be premature to discuss that since in fact there have been no charges approved in any of these cases, nor has there been a commission appointed or any specific directions given by the appointing authority. So at this juncture we just don't have-- Q: How fast do you expect that to happen? SDO: Again, I think it would be best-- We'll discuss process and the kinds of things that can happen because there will be so many factors involved in-- Q: Should we see something before the end of the year, or is this going to be-- SDO: --kinds of steps that are involved. Again, repeating what we told Charlie. Q: I wrote it down. So what about timeline? Will it take six months to do this or is it going to be on a fast track? We have the what, where, when, why thing, and this is the when part. So when? SDO: It's like a what part, too. We gave you a lot of what-- SDO: As you can tell in the past we've been proceeding very methodically and deliberately and carefully and I think that that will continue to guide the military commission process. In that regard it probably wouldn't be prudent to set any kind of a timeline because the criminal justice system should not be driven by timelines, they should be driven by the facts of the case. That's what's the next step is for the chief prosecutor to look at the facts of the case and see if there are appropriate charges for those facts. So I think that's the reason we wouldn't want to set ourselves to a timeline. We want to look at each individual case on a case-by-case basis and do the right thing. Q: Can you take us a little further on the who's and what's of these? Are they Afghan, are they al Qaeda, are they terrorists that you found in this country? SDO: Again, we're not going to discuss particular aspects of any of the individual cases because it's just premature to do that. Q: How about a ballpark? Are the majority of them one or the other? SDO: All I think we're really prepared to say is there's evidence that they may have attended terrorist training camps. Q: In Afghanistan? And-- SDO: I'm not going to discuss those kinds of details. They may have attended training camps, they may have been involved in the kinds of activities that are consistent with terrorist activities-- financing, recruiting. Those are the kinds of things that would lead us to the kind of determination that the President made today. Do you have any more to add? SDO: I'd just say that is a summary of the kind of evidence involved in the six cases that we've seen come back from the President today. But we wouldn't want to discuss any specific case or a specific kind of evidence associated with those activities. Q: Will you hold the trials in the same place if they are held? Will they be in GTMO, will they be in this country? SDO: Again, that's a decision that gets made at a later point in this process. That would be at the point when the appointing authority in fact refers charges to a commission. Q: But not-- I mean are the options in this country or another country or-- SDO: The military commission order that the Secretary of Defense signed March 21, 2002 and the Military Commission Instructions were written, designed to give us the flexibility to do what was appropriate in every case so we have a large range of options. That's why the rules were written the way they were written. Q: Will we find out the identities of these people and the specificity of the charges when they are actually referred to a commission, when a commission is appointed? Or when? SDO: We may indeed at the time of charging provide that information. At the time of charging or perhaps at the time when a defense counsel would be assigned to an individual. It would be inappropriate at this time since in fact no charges have been brought against any of these detainees. SDO: And let me just emphasize one point the Colonel made is that we may identify those things, and we may not. We will at the point of a commission should any of these get to a commission, the objective is as much transparency as practicable, and those are the kinds of things we consider at the time. Q: So it's possible you won't ever identify them to us? SDO: I suppose that is possible. Yeah, I suppose that is possible. SDO: But the intent is, as directed by the Secretary of Defense, that these proceedings will be as open as practicable. SDO: Remembering again that one of the principal objectives of this third way, the President sought a third way, we have an Article 3 system of justice, we have courts-martial, a third way to be able to set up a body of rules that will allow us to protect information to achieve additional intelligence gathering purposes that may lead to the capture of more terrorists. So it's important to remember. Q: Can you describe the makeup of a commission? SDO: In general, you mean? Q: How these commissions will be made up. SDO: There may not be commissions in this case. It's important to keep that in mind. We may have commissions, we may not. But in general, commissions. SDO: Under the Military Commission Order No. 1 you see that the commissions are constituted by a three to seven member panel of commissioned officers from the armed forces, one of whom is a presiding officer who must be a judge advocate. Q: And for a guilty verdict, what's the percentage of commission members that have to vote-- SDO: A two-thirds vote of the three to seven member panel. Q: Do the six know that they've been chosen? [Laughter] SDO: Again, I don't think we want to answer specific questions that might involve those individuals. Q: Can you say a little bit more about what this means in terms of status now or change of status? Are they still to be described as enemy combatants? How should they be described then? SDO: Legally there is no change to the status. They are being held as enemy combatants right now. They are being held simply as a function of the war on terrorism and detained because they are a threat to the United States. A criminal process has not begun in any of these cases. Again, it's a decision the President has made that's akin to a granting of jurisdiction but there's been no exercise of that jurisdiction so therefore no criminal process or rights and procedures that normally attend a criminal process are in place yet. Q: So their right to representation doesn't start until they're charged? SDO: The way the order reads, they will be given a defense counsel sufficiently in advance of any trial to make sure that they can prepare an adequate defense. Certainly there's no trial that has been directed at this point in time. Q: Are these six the first ones who've been put in this jurisdiction? And is it a rolling process where we might expect to see more down the line? Have you looked at the entire universe of enemy combatants and decided these are the only six that will-- SDO: Yes, to both your questions. It is the first time that the President has made a "reason to believe" determination; and there may well be more. Q: Secretary Wolfowitz, as I understand, sent a report over to the White House and gave reasons why the six should be eligible for possible commissions or possible trials. Were these six the only ones that were pulled initially? Or was there a large list and the President just picked six from it initially? Or are these six-- Are these the only six suggested initially? SDO: First of all, there are a number of factors beyond what may have been recommended from this building that have led to the President's determination that he has reason to believe that these are people engaged in terrorism against the United States. So it's more than just the recommendations or suggestions that may have come from here. With regard to whether there are others that the President has considered, I don't think we have anything to say on that, do we? SDO: The only legally relevant thing that has happened today is the President's decision to provide these "reason to believe" determinations. It wasn't an action by the Pentagon. Q: A couple of procedural questions. The appointing authority is responsible both for deciding which if any of these half dozen are to be charged; and the appointing authority also is responsible for forming the commissions. Should any of these be charged and decide to plead guilty, some sort of plea bargain, is it necessary for them to go before a commission to execute that bargain? Need there be a commission for a plea bargain to be finalized? SDO: Yes. The way the rules are written there needs to be a commission in any event. And in fact the commission does have responsibilities even for a plea agreement in that they have to determine whether or not a plea is voluntary and informed. Q: And in the sequence of those two chores of the appointing authority, does either one necessarily come first? Deciding to charge somebody and then creating a commission? Must the commission be created first? They're both chores in separate sections of the order. SDO: I think you've read the order correctly and the order does not specify a particular chronology as to how those events would have to occur. Q: Lastly, if you had a couple of questions from here and there about where it could be and you're declining to say where, but someone said could they be brought to a military base, surely you can say you don't wish to bring them into U.S. territory after winning a case that says they have no habeas corpus rights outside of U.S. territory. You're not suggesting that's an open question to bring them to the United States-- SDO: We're not suggesting anything with respect to locale. I think that's the way to take it. That's speculation on your part. SDO: In view of the day and the hour I think we probably have time for maybe two more. Q: This might be putting the cart before the horse, but if no charges are preferred against one of these six or if they come through and the tribunal finds them not guilty, are they automatically set free? Or would they go back into detention for intelligence purposes? SDO: We can't really answer that right now. I can say this, that as this process develops we certainly will be getting more information about those people. If one of them were to go through a commission process, at the end of that process we would know much more than we know now. So any decision like that would have to be made at that time. It would also be a bit misleading to say that we wouldn't consider sending one of these people before a commission. Certainly the acting chief prosecutor will be looking at potential charges on these cases that have had determinations made on them. SDO: Let me talk about one thing in terms of your question about after a potential commission what might happen. Remember the purpose of the commission, and that was to have a third way, something different, and the rules were structured in a very deliberate fashion but deliberately flexible. So there are a lot of things. As the colonel said, there's going to be further intelligence gathering. And that, by the way, is the second point. A principal purpose of this third way is to be able to protect intelligence and what intelligence may be gathered during the process would help determine sort of the ultimate outcome of any of these individuals. Q: So is it possible then that somebody could go through a commission, be found not guilty, and then have them say well, congratulations, you're not guilty but you're still an enemy combatant so back into wherever we're holding you? SDO: As a legal matter, they're two completely different questions. They're not being held because of any criminal activity or any charges. They're being held because they're enemy combatants in an ongoing armed conflict. What we're talking about with military commissions is a criminal process so in that regard they're two distinct issues. With respect to factually whether or not the Department of Defense would want to continue holding someone, that's an issue -- My only point there is if a military commission process starts up certainly the facts available to decision makers will be greater. So that's a decision they'll make at that point in time. SDO: Anything else? Thank you very much. Have a great 4th of July. Q: Is there any [inaudible], like does this set any kind of process going that says at the end of five years they have to be done or is it still open ended? SDO: The war on terrorism is open ended. Q: All right. # # # [ DoD News Release ] No. 485-03 IMMEDIATE RELEASE July 3, 2003 PRESIDENT DETERMINES ENEMY COMBATANTS SUBJECT TO HIS MILITARY ORDER The President determined that six enemy combatants currently detained by the United States are subject to his Military Order of November 13, 2001. Today’s action is the next step in the process that may lead to military commissions. The President determined that there is reason to believe that each of these enemy combatants was a member of al Qaida or was otherwise involved in terrorism directed against the United States. Military Commissions have historically been used to try violations of the law of armed conflict and related offenses. Offenses that may be charged include those listed in the Crimes and Elements for Trials by Military Commission (Department of Defense Military Commission Instruction No. 2). Many considerations are used in selecting cases – relevant factors include: 1) the quality of evidence, 2) the completeness of intelligence gathering and, 3) our desire to bring closure to individual cases. There is evidence that the individuals designated by the President may have attended terrorist training camps and may have been involved in such activities as: financing al-Qaida, providing protection for Usama bin Laden, and recruiting future terrorists. The Department of Defense is prepared to conduct full and fair trials if and when the Appointing Authority approves charges on an individual subject to the President’s military order. Since no charges against any of the detainees have been approved, their names will not be released. # # # # # # # # #