-------------------------------------------------------------------------------- ---------------------------- WHITE HOUSE STATEMENTS ---------------------------- -------------------------------------------------------------------------------- [A] MILITARY DETENTION ORDER, 2001/11/13 TO 2001/01/09 [B] REVISED GENEVA POLICY, 2002/02/07 TO 2002/07/30 [C] HABEAS CASES / AFGHAN TRANSITION / IRAQ, 2002/08/01 TO DATE -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- ================================================================================ [A] MILITARY DETENTION ORDER, 2001/11/13 TO 2001/01/09 ================================================================================ November 13, 2001 For Immediate Release Office of the Press Secretary PRESIDENT ISSUES MILITARY ORDER DETENTION, TREATMENT, AND TRIAL OF CERTAIN NON-CITIZENS IN THE WAR AGAINST TERRORISM By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows: Section 1. Findings. (a) International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces. (b) In light of grave acts of terrorism and threats of terrorism, including the terrorist attacks on September 11, 2001, on the headquarters of the United States Department of Defense in the national capital region, on the World Trade Center in New York, and on civilian aircraft such as in Pennsylvania, I proclaimed a national emergency on September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks). (c) Individuals acting alone and in concert involved in international terrorism possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government. (d) The ability of the United States to protect the United States and its citizens, and to help its allies and other cooperating nations protect their nations and their citizens, from such further terrorist attacks depends in significant part upon using the United States Armed Forces to identify terrorists and those who support them, to disrupt their activities, and to eliminate their ability to conduct or support such attacks. (e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals. (f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts. (g) Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling govern-ment interest, and that issuance of this order is necessary to meet the emergency. Sec. 2. Definition and Policy. (a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that: (1) there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as al Qaida; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and (2) it is in the interest of the United States that such individual be subject to this order. (b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4. (c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense. Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this order shall be -- (a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States; (b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria; (c) afforded adequate food, drinking water, shelter, clothing, and medical treatment; (d) allowed the free exercise of religion consistent with the requirements of such detention; and (e) detained in accordance with such other conditions as the Secretary of Defense may prescribe. Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order. (a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death. (b) As a military function and in light of the findings in section 1, including subsection (f) thereof, the Secretary of Defense shall issue such orders and regulations, including orders for the appointment of one or more military commissions, as may be necessary to carry out subsection (a) of this section. (c) Orders and regulations issued under subsection (b) of this section shall include, but not be limited to, rules for the conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys, which shall at a minimum provide for -- (1) military commissions to sit at any time and any place, consistent with such guidance regarding time and place as the Secretary of Defense may provide; (2) a full and fair trial, with the military commission sitting as the triers of both fact and law; (3) admission of such evidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the presiding officer renders that opinion, the opinion of the commission rendered at that time by a majority of the commission), have probative value to a reasonable person; (4) in a manner consistent with the protection of information classified or classifiable under Executive Order 12958 of April 17, 1995, as amended, or any successor Executive Order, protected by statute or rule from unauthorized disclosure, or otherwise protected by law, (A) the handling of, admission into evidence of, and access to materials and information, and (B) the conduct, closure of, and access to proceedings; (5) conduct of the prosecution by one or more attorneys designated by the Secretary of Defense and conduct of the defense by attorneys for the individual subject to this order; (6) conviction only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present; (7) sentencing only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present; and (8) submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense if so designated by me for that purpose. Sec. 5. Obligation of Other Agencies to Assist the Secretary of Defense. Departments, agencies, entities, and officers of the United States shall, to the maximum extent permitted by law, provide to the Secretary of Defense such assistance as he may request to implement this order. Sec. 6. Additional Authorities of the Secretary of Defense. (a) As a military function and in light of the findings in section 1, the Secretary of Defense shall issue such orders and regulations as may be necessary to carry out any of the provisions of this order. (b) The Secretary of Defense may perform any of his functions or duties, and may exercise any of the powers provided to him under this order (other than under section 4(c)(8) hereof) in accordance with section 113(d) of title 10, United States Code. Sec. 7. Relationship to Other Law and Forums. (a) Nothing in this order shall be construed to -- (1) authorize the disclosure of state secrets to any person not otherwise authorized to have access to them; (2) limit the authority of the President as Commander in Chief of the Armed Forces or the power of the President to grant reprieves and pardons; or (3) limit the lawful authority of the Secretary of Defense, any military commander, or any other officer or agent of the United States or of any State to detain or try any person who is not an individual subject to this order. (b) With respect to any individual subject to this order -- (1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and (2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal. (c) This order is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable at law or equity by any party, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person. (d) For purposes of this order, the term "State" includes any State, district, territory, or possession of the United States. (e) I reserve the authority to direct the Secretary of Defense, at any time hereafter, to transfer to a governmental authority control of any individual subject to this order. Nothing in this order shall be construed to limit the authority of any such governmental authority to prosecute any individual for whom control is transferred. Sec. 8. Publication. This order shall be published in the Federal Register. GEORGE W. BUSH THE WHITE HOUSE, November 13, 2001. # # # November 19, 2001 PRESS BRIEFING BY ARI FLEISCHER (...) Q: Ari, to preface a question, the President might hear about this at the dinner tonight. I'm wondering if he has any reaction to the negative reaction from what seems to be both ends of the political spectrum regarding his order a week ago about the military trials. Fleischer: The President actually -- I mean, he's aware that there has been some criticism of it, of course. But the President believes that this is something that the American people see the wisdom of, because this is one option for the President. This is not necessarily the way events will go, but it does help win the war by giving the President one more option that he can exercise if he sees fit. And the President thinks the American people recognize the precedent that was created in World War II, for example, when German saboteurs who entered America's shores were dropped off in submarines dressed in civilian attire, came onto our shores for the purpose of doing harm and damage to our country. These are not American citizens. This is a time of war. And this is a time when we need to protect the national security in extreme cases. And therefore, the President thinks it is something, frankly, most Americans would support. Q: Well, most Americans do have faith in our courts. You don't think that our courts can handle these situations? Fleischer: Again, there was a precedent in World War II. Most Americans at that time had faith in our courts; they also had faith in the military. Q: -- on a lot of things we did in World War II, including the internment of the Japanese and so forth. Fleischer: That's not what the question is. (...) # # # November 19, 2001 Remarks by the President In Photo Opportunity with the Cabinet (...) THE PRESIDENT: Go ahead, Terry. Q: On the subject of justice, what do you say to the members of Congress and people in law schools and civil liberties -- THE PRESIDENT: On what subject? Q: On justice, that your order establishing military -- THE PRESIDENT: Yes. Q: -- to try terrorists, they argue represents a retreat or an abandonment of traditional American principles. THE PRESIDENT: I say it's the absolute right thing to do. And it is -- to set up the option to use a military tribunal in the time of war makes a lot of sense. We're fighting a war, Terry, against the most evil kinds of people. And I need to have that extraordinary option at my fingertips. I ought to be able to have that option available should we ever bring one of these al Qaeda members in alive. It's our national interests, it's our national security interests we have a military tribunal available. It is in the interests of the safety of potential jurors that we have a military tribunal. These are extraordinary times. And I would remind those who don't understand the decision I made that Franklin Roosevelt made the same decision in World War II. Those were extraordinary times, as well. This government will do everything we can to defend the American people within the confines of our Constitution. And that's exactly how we're proceeding. And so, to the critics, I say, I made the absolute right decision. MR. DICKENS: Thank you all. THE PRESIDENT: (Turning toward Secretary Rumsfeld) -- Do you know where al Qaeda is? (Laughter.) # # # November 28, 2001 PRESS BRIEFING BY ARI FLEISCHER (...) Q: The Prime Minister indicated towards the end of his remarks that he was sort of consulting with the European Union. It sounded like there may be some type of compromise in the works because of the European Union's feelings about the death penalty and military tribunals. Is the administration seeking any kind of compromise with the European Union to pave the way for extradition of any suspects -- Fleischer: I think that was a statement that President Aznar made about Spain working with the European Union. And I think you have do any follow-ups with President Aznar, in terms of what he meant and what he said. Q: So the administration is not seeking any type of compromise, paving the way for the future, to have any European Union countries extradite any suspects to the United States? Fleischer: No, there's nothing that I'm aware of, Kelly. But you may want to ask Justice about that, as well. Q: Ari, during the hearings on Capitol Hill this morning, one of the questions that came up was, why, during the negotiations -- during the anti- terrorism legislation, why wasn't Congress informed at that point that it was at least under consideration, implementing military tribunals? Fleischer: Well, the President in his authority as Commander in Chief has wide powers to act as he thinks is appropriate for the nation at a time where national security is paramount interest. And he made decision based on that authority and based on his responsibilities. It is not always the role of the administration to consult with all parties. The President has powers granted him under the Constitution to take actions, as an executive, that he thinks are appropriate. And that's what he did in this case. Q: Ari, I'm not quite clear on this, the eight al Qaeda members and why we're not asking for their extradition. Because in the states, anybody who has even been suspected of being near al Qaeda or having anything to do with anything is being questioned or detained. Under the President's formulation, if you're a member of al Qaeda, almost, de facto, you've been trying to attack the United States, or you've threatened the United States. So why wouldn't we want to -- Fleischer: Well, I think you've gone a little broader there. You began your question with the answer; you said, "in the States." And these are matters that are determined by the facts and the circumstances of each individual case of justice. And somebody who was in the States, of course, is under the American system of justice. Somebody who is arrested in another nation would come under America's system of justice only if other facts are present. And that's why it's always considered on a fact by fact case. Q: You said one of the facts that needed to be present was that they were seeking to attack the United States or threaten the United States. And under the President's formulation -- Fleischer: It is a direct, chargeable offense against the United States. Q: But being a member of al Qaeda, doesn't that put you in the direct -- Fleischer: Again, you need to talk to the Department of Justice about the individual facts, not any broad statement about al Qaeda. The individual facts that govern justice, jurisprudence and extradition. And the Department of Justice has jurisdiction. Q: Do you have any comment that the Taliban -- were surrendering in Afghanistan, what will happen to them? Because Secretary Rumsfeld said that they should not be let free. And also they might come back in the future again, in a year or so, against the United States or against Afghanistan. Fleischer: Well, the Secretary of Defense said that surrenders are being made to the Northern Alliance, and this is a matter internal with Afghanistan. And the United States is urging the Northern Alliance to make certain that people are treated humanely, as is their right, and that's where that matter stands. Q: If I can just follow up on the eight al Qaeda members. The President just shook his head when he was asked this morning, did you discuss the extradition? I just wanted to follow up on that; he didn't answer. Was there no discussion whatsoever of extradition? Fleischer: No, President Aznar was asked the question by a Spanish reporter, and he answered it. And that was what he said in the meeting with President Bush. Q: He said he would study it. Fleischer: The two of them -- what he said publicly is what he also said privately. Q: And the President had nothing to say in the meeting, as well? He expressed no opinion or views? Fleischer: Well, since the United States has not requested their extradition, it was mostly for President Aznar to discuss his thoughts and Spain's. And Spain is the one who has arrested them. And the President appreciated what President Aznar said. Q: But wouldn't the President use it as an opportunity to explain why he might want to use a military tribunal, as he has explained to the American people? Didn't he want to sort of explain that to the Prime Minister? Fleischer: Because you're speculating that this would be a case that would fit that, and the President has not engaged in that speculation. The President has said that he wants it as an option. But in the event that there is an extradition request, then I think that becomes a relevant moment and a relevant issue. But again, given the facts of each individual case, only if officials at the Justice Department think it is a matter for extradition would that become relevant. Since nobody has asked for them to be extradited, it wasn't relevant. Q: Are you not asking because you don't want to be turned down? I mean, is that what's going on here? Fleischer: No. It's -- again, each case is an individual case, and you would have to talk to the Department of Justice to find out the facts on any one individual's arrest. The United States is not asking for every person arrested all around the world to be brought to America. Q: If it wasn't a relevant part of the discussion, why did the Prime Minister raise it himself? Fleischer: Because he knew that the press would ask it. It made it relevant in the sense that the press is going to talk about this. Q: The President made a decision not to say anything about it, so that it wouldn't come up in questions? Fleischer: Well, again, the President has always thanked people for their cooperation in the war on terrorism. The President has always made it a point that other nations are helping in the war by arresting people. And arrests have been made. Arrests aren't only made in Spain. Arrests have been made in many other nations. And the President, in those cases, has not talked about extradition, unless the United States were to make a request. There are arrests going on in the war on terrorism around the world. The President is very pleased by that. He was very pleased, and he thanked President Aznar for the arrests in Spain as very helpful in the fight against terrorism. You shouldn't look at the arrests in Spain any differently than you would look at the arrests in any other nation. If there is something that suggests the United States would need to extradite, we will inform you of it. We have not made such a request to Spain, nor have we made a request to any of the other nations involved. With the exception of the Algerian. Q: The Spanish magistrate handling the case has said that these individuals are directly linked to the September 11th attacks on the United States. So the Spanish justice system is satisfied that they are linked to a crime against America. Fleischer: And that is why I have said that you need to talk to the Department of Justice to get the Department of Justice, who is charged with responsibility in this matter for reviewing facts and circumstances of any arrest, to determine whether or not there will be anything involving extradition. If there is, then I submit to you, this becomes relevant. Until then, it's speculation. Q: Why didn't the President use this face-to-face meeting, though? Because if it does become relevant, and the U.S. does want to extradite these individuals, then there is the issue about the potential use of military tribunals. Wouldn't the President want to use his -- Fleischer: The President did use the face-to-face meeting to thank President Aznar for their arrests, because it was very helpful in the war on terrorism, just as he has thanked many nations around the world who have arrested people. But I remind you that the President is not seeking the return to America, or the bringing to America of everybody arrested everywhere in the world. If that does happen, it will happen because of the facts and the circumstances of the individual case, and you will know all about it. (...) Q: In The New York Times, William Safire charges that the President has seized dictatorial power by replacing the rule of law with military kangaroo courts that can conceal evidence, make its own rules, and execute the accused with no review by a civilian court. He says these are similar to courts in the Soviet Union and current communist China. In your view, how are they different from those kangaroo courts? Fleischer: Well, the President, obviously, completely disagrees, and so, too, do many people who have taken a look at this issue. And I dare say, based on something I heard on National Public Radio this morning, so, too, do the overwhelming number of Americans disagree with that assessment. So the President, as I've told you before and you've heard from the President himself, believes it's a helpful option to preserve this right to have a military tribunal, just as Franklin Delano Roosevelt did in World War II, for those cases where the President thinks it will help, again, to protect lives, to protect jurors, and to maintain the need of the government to have secrets as the campaign against terrorism is carried out, from any information that would be brought to light in a trial for those cases of people who are deemed to be terrorists. (...) # # # November 29, 2001 Remarks by the President to U.S. Attorneys Conference (...) But there is no doubt about our intentions, and there shouldn't be. Those who plot terror, and those who help them, will be held accountable in America. That's what we're going to do. Protecting the innocent against violence is a solemn duty of this country. It is our most important responsibility now. And all of us in this room accept that responsibility. And we will tell the American people plainly, we will fulfill that responsibility. To meet that obligation, a wartime reorganization is underway at the Justice Department. More investigators will go to front lines. The federal government will work more closely with state and local authorities -- and so will you. Agents will receive better training and new technology, to help track and capture terrorists or those who support them. And these changes are essential, and I want to thank the Attorney General and Director Mueller for beginning this transformation. I have also reserved the option of trial by military commission for foreign terrorists who wage war against our country. Non-citizens, non-U.S. citizens who plan and/or commit mass murder are more than criminal suspects. They are unlawful combatants who seek to destroy our country and our way of life. And if I determine that it is in the national security interest of our great land to try by military commission those who make war on America, then we will do so. (Applause.) We will act with fairness, and we will deliver justice, which is far more than the terrorists ever grant to their innocent victims. Ours is a great land, and we'll always value freedom. We're an open society. But we're at war. The enemy has declared war on us. And we must not let foreign enemies use the forums of liberty to destroy liberty, itself. Foreign terrorists and agents must never again be allowed to use our freedoms against us. Many of you will play a crucial part in our victory against terrorism, and make no mistake, we're going to win the war. Decisions important to millions of Americans will be made in your offices. Your work in the cause of justice will help ensure the security of this nation. And as you join this fight, you will honor the Constitution. You will not only protect our people, but you will uphold our values. Every federal prosecutor has the unique privilege of standing up in a court and telling the judge that you are there on behalf of the United States. In a time of war, these words are even more deeply felt, are even more significant. Yours is a great trust, and one of the great professions. Today, you carry not only the confidence and respect of the American people, but you carry our deep gratitude, as well. God bless. (...) # # # November 29, 2001 PRESS BRIEFING BY ARI FLEISCHER (...) Q: Are there any preparations underway in Guam for the establishment of the holding of military tribunals, the prospective military tribunals? Fleischer: No, there are not. Q: And finally, what criteria will the President use in his identification and selection of individuals for trial by military commission? Fleischer: Under the military order that the President signed, which would allow in circumstances where the President thinks are necessary for national security purposes, the trial of non-Americans who are believed to be involved in terrorism or in the war in Afghanistan, under a military tribunal, the President will make the designation about who will be subject to a military tribunal. He will make that determination on the basis of what he believes is in the national security interest. Q: That's very broad. Fleischer: It is very broad. Q: Just whatever he thinks the national security requires? Fleischer: Under the law and under the Supreme Court precedence, the President has that authority. And the President has said that -- Q: How can he take that authority? Fleischer: He has reserved to himself, as opposed to designating it - - delegating it to the Secretary of Defense or to any other officials, that responsibility. Q: Case by case? Fleischer: That's correct, case by case. (...) Q: People continue, at least civil rights groups continue to criticize John Ashcroft for many of the measures he has taken, claiming he is violating a lot of the justice -- in this country. Is the President in full agreement with whatever Attorney General Ashcroft has done in this regard since September 11th? And will the President use his speech today to attorney generals to defend John Ashcroft's policies? Fleischer: Well, I don't even think it's a question of defend anybody. There's no need to defend someone who is doing such an excellent job. And the President thinks that the Attorney General is doing an excellent job. The President believes that as a result of the actions of the Attorney General, that terrorist activity is being disrupted and that the Attorney General is protecting America and American citizens, as well as all the visitors who come to our country to enjoy our freedoms. So the President is very pleased with the activities of the Attorney General. And you talked about people are raising objections, as their right. It is absolutely their right, and the actions the Attorney General is taking are designed to protect their right. Even as they represent a minority of Americans who are questioning the Attorney General's activities, it is their right and their duty to express their objections. And the majority agrees with what the President and the Attorney General are doing, and they are doing it so the rights of the minority -- can be protected. Q: Is it okay to deny them their civil rights, though -- violate people's civil rights to protect other people? Fleischer: No, and that is not the case. That has not been done. Q: But Ashcroft, this morning, said that no one has filed a lawsuit against the violation of civil rights, basically saying that he knows civil rights are being violated for those being detained in reference to 9/11. Fleischer: April, I went back and looked at the Attorney General's remarks on the TV show you mentioned this morning after you raised that question earlier. And the Attorney General did not say what you said he said. The Attorney General made note of the fact that no suits have been filed, but he did not say, as you indicated, that rights have been violated. He said just the opposite. He said, this is all in accord -- Q: Read between the lines. Fleischer: No, I don't think that's a fair characterization of what he said. Q: I've got a follow-up. Fleischer: Jacobo gets a follow-up. Q: You know, a lot of the people criticizing General Ashcroft belong to the Democratic Party. Do you think there's any politics involved, or do you think they really have a legitimate complaint? Fleischer: I think these are people's principled views and their heartfelt views. I also submit to you that they represent a minority. And that is their right, and the actions the Attorney General has taken are designed to protect all Americans, regardless of their views. And on the question of the military tribunals, as the Department of Defense appropriations bill was debated yesterday, there was a Democratic congressman from Ohio, Congressman Kucinich, who is prepared to offer an amendment which prevented the use of any money for the creation of military tribunals. He actually filed his amendment with the House Rules Committee to put it to a vote. The Democrats asked him not to put it to a vote because they knew that if it was put to a vote, it would lose in an overwhelming bipartisan display. So I submit to you that if there was such widespread opposition to what the President was doing, you might see a test vote in the Congress. And there is a reason that no test votes have been taken; it is because the bipartisan majority of the Congress supports what the President has done. So, too, the American people. (...) Q: Sorry, okay, this is considerably more serious. You mentioned Representative Kucinich's amendment, to put to a vote budgetary authorization for military tribunals. Does the President acknowledge that Congress has the authority to cut off funding for these tribunals? Fleischer: Well, Congress has the authority to cut off funding for anything it so deems. Congress, under the Constitution, has power of the purse strings. Which is why what's interesting is the opposite -- the amendment that was filed at the Rules Committee that prohibited the use of money under the Department of Defense appropriations bill for military trials. And that was what he withdrew, for a reason. Q: So can the President then foresee, and would he cooperate in, congressional oversight of the funding, and of the use of that funding, congressional oversight of these military tribunals? Fleischer: Well, as I indicated this morning, the President viewed the hearings that are being held on Capitol Hill absolutely, perfectly appropriate and fitting for Congress to engage in. It is their responsibility under our Constitution to have oversight over the actions of the administration, of the executive branch. It is also the purview of the executive, under our Constitution, to have the sole authority to issue executive orders and military orders, at his discretion and in accordance with the national security as he defines it. And he has done so. Q: But would he -- one more. So would he accept oversight not of the general principle, but of the actual operations of any military tribunal? Fleischer: The President has set forth the terms under which the military tribunals are being put together, and that is in the form of the military order that the President signed. That is now being implemented by the Department of Defense in conjunction with the Attorney General's office. Q: Ari, I have a question in connection with that. Just to get you on the public record, are you saying that the President of the United States has the right to decide what a national security crime is under the military tribunal, and what the punishment should be? Fleischer: Under the -- Q: Are you saying that he has that sole authority? Fleischer: Under the military order that the President signed, in accordance with the laws of the country as upheld by a Supreme Court case, the President has the sole authority to enact a military order that creates military tribunals as an option. Under the military order the President signed, the punishment would be decided by the military tribunal, not by the President of the United States. Q: Ari, but on that, he sets out some minimum standards for conviction, which I believe is a two-thirds vote by the panel. And I understand that's the minimum, and now the details will be filled in by DOD. But does the President think that is a sufficient threshold in a death penalty case? Fleischer: The President's actions speak for themselves in the military order that he signed. What the military order says is what the President believes. Q: So a two-thirds vote for the death penalty? Fleischer: I would have to take a careful look at exactly the details of it. That is what you say it said; I have to go back and take a look at it. But what the President signed is what he believes. (...) # # # 30 November 2001 MARTIAL JUSTICE, FULL AND FAIR By Alberto R. Gonzales [ Note: This column, "Martial Justice, Full and Fair," appeared in The New York Times on Friday, November 30, 2001. The author is Alberto R. Gonzales, counsel to the president. Column is in the public domain; no republication or translation restrictions. ] Washington -- Like presidents before him, President Bush has invoked his power to establish military commissions to try enemy belligerents who commit war crimes. In appropriate circumstances, these commissions provide important advantages over civilian trials. They spare American jurors, judges and courts the grave risks associated with terrorist trials. They allow the government to use classified information as evidence without compromising intelligence or military efforts. They can dispense justice swiftly, close to where our forces may be fighting, without years of pretrial proceedings or post-trial appeals. And they can consider the broadest range of relevant evidence to reach their verdicts. For example, circumstances in a war zone often make it impossible to meet the authentication requirements for documents in a civilian court, yet documents from Al Qaeda safe houses in Kabul might be essential to accurately determine the guilt of Qaeda cell members hiding in the West. Some in Congress and some civil libertarians remain skeptical of the military commissions. Their criticism, while well-intentioned, is wrong and is based on misconceptions about what the president's order does and how it will function. The order covers only foreign enemy war criminals; it does not cover United States citizens or even enemy soldiers abiding by the laws of war. Under the order, the president will refer to military commissions only noncitizens who are members or active supporters of Al Qaeda or other international terrorist organizations targeting the United States. The president must determine that it would be in the interests of the United States that these people be tried by military commission, and they must be chargeable with offenses against the international laws of war, like targeting civilians or hiding in civilian populations and refusing to bear arms openly. Enemy war criminals are not entitled to the same procedural protections as people who violate our domestic laws. Military commission trials are not secret. The president's order authorizes the secretary of defense to close proceedings to protect classified information. It does not require that any trial, or even portions of a trial, be conducted in secret. Trials before military commissions will be as open as possible, consistent with the urgent needs of national security. The specter of mass secret trials, as depicted by critics, is not an accurate reflection of the order or the president's intent. The order specifically directs that all trials before military commissions will be "full and fair." Everyone tried before a military commission will know the charges against him, be represented by qualified counsel and be allowed to present a defense. The American military justice system is the finest in the world, with longstanding traditions of forbidding command influence on proceedings, of providing zealous advocacy by competent defense counsel, and of procedural fairness. Military commissions employed during World War II even acquitted some German and Japanese defendants. The suggestion that these commissions will afford only sham justice like that dispensed in dictatorial nations is an insult to our military justice system. The order preserves judicial review in civilian courts. Under the order, anyone arrested, detained or tried in the United States by a military commission will be able to challenge the lawfulness of the commission's jurisdiction through a habeas corpus proceeding in a federal court. The language of the order is similar to the language of a military tribunal order issued by President Franklin Roosevelt that was construed by the Supreme Court to permit habeas corpus review. Military commissions are consistent with American historical and constitutional traditions. Confederate agents disguised as civilians traveling to New York to set it afire were tried by military commission. Nazi saboteurs who came ashore on Long Island during World War II disguised as civilians and intending to attack American war industries were tried before military commissions. The use of such commissions has been consistently upheld by the Supreme Court. Military commissions do not undermine the constitutional values of civil liberties or separation of powers; they protect them by ensuring that the United States may wage war against external enemies and defeat them. To defend the nation, President Bush has rightly sought to employ every lawful means at his disposal. Military commissions are one such means, and their judicious use will help keep Americans safe and free. [Alberto R. Gonzales is counsel to President Bush.] # # # December 12, 2001 PRESS BRIEFING BY ARI FLEISCHER (...) Q: Why did the President consider but then reject the idea of having Moussaoui go before a military tribunal? Fleischer: The President, two days ago, discussed with Attorney General Ashcroft during an Oval Office meeting what the best venue would be to bring Mr. Moussaoui to justice. And as the President said when he created the military tribunals, he wanted to have the option of a military tribunal for those limited number of cases where the national security of the United States or our ability to continue to obtain intelligence information without compromising sources or methods would be achieved as a result of going to a military court as opposed to a civilian court. So during his meeting with the Attorney General, the President asked a series of questions about civilian versus military trial, and asked if this were to be decided in a civilian court, a civilian criminal court, would national security be in danger, would sources or methods be compromised. The President was satisfied that the answers to those questions were no. The Attorney General recommended that this go to a civilian court; the President concurred. And so, that's what took place. Q: And is that final? Is that a final decision? Fleischer: Well, I should add one caveat, and is it's based on all the information that has been received at this time. If subsequent information were to be received in the course of developing facts and information, the President's options remain open. But you clearly have heard an announcement by the Attorney General, you've received the indictment from the Department of Justice. This case is proceeding in criminal court on the civilian side. Q: Let me follow up, though. The President also asked whether there's any concerns about security at the courthouse, which is another reason for -- Fleischer: Clearly, I don't have every question the President asked, Ron. But I think it's fair to say that if there had been sufficient concerns raised about security, another decision could have been made. No such decision was made. (...) # # # December 17, 2001 PRESS BRIEFING BY ARI FLEISCHER (...) Q: And there's one other thing that has happened in the past couple of days. The Pentagon is now confirming that members of the al Qaeda are in the custody of the United States military. Under the executive order that the President signed, he, alone, will make the decision as to who would stand trial before a military tribunal. What's the process? What's the public record that would or would not be laid down for the President, himself, making that decision? Fleischer: Well, I think the case of Mr. Moussaoui is indicative of the process, in a matter where there is somebody who may be a likely candidate for a military tribunal. The President will listen to the advice of his advisors. The President will meet as necessary with the Attorney General or others who are involved. And the criteria the President laid down are that he would consider the option of a military tribunal if such a trial would help protect the national security interests of the country, with a particular eye on protecting sources are methods that are used to gather intelligence in the conduct of the war. That was not the case with Mr. Moussaoui and the trial will proceed through the normal civilian courts. Q: And will there be any finding, any kind of public record of how he reaches such a decision? Fleischer: Just like I did there, just as I did immediately on the day that General Ashcroft announced that the trial of Mr. Moussaoui would proceed and you received the indictment of Mr. Moussaoui, we'll answer all the questions we can. Q: Is that the process he's going to follow in considering John Walker Lindh. And do you have any more information -- Fleischer: Well, Mr. Walker, there's no consideration of a military tribunal. The military tribunals are exclusively for non-citizens of this country; Mr. Walker is a citizen. Q: But will the President make the ultimate decision on his legal process? Fleischer: I don't believe -- it's really not the same. In the case of a military tribunal, that is reserved for the President, alone, to make the judgment about whether somebody should be tried in a military court or not. There is a series of procedures that are different from that in civilian matters. With Mr. Walker, the government is still ascertaining what the facts are involved; the Department of Defense and others are still inquiring to determine exactly what happened to Mr. Walker, how he came to be a Taliban; what activities he factually engaged in as a member of the Taliban. All that are the relevant facts that need to be gathered, and those facts are still being assessed. Q: And are you getting information that he may have been more actively involved in the Taliban, or al Qaeda, than previously thought? And will he be allowed to see a lawyer any time soon? Fleischer: You need to ask those questions to the Department of Defense or the Attorney General. And the facts are still being gathered. (...) # # # December 18, 2001 PRESS BRIEFING BY ARI FLEISCHER (...) Q: Ari, John Walker has now been in custody -- U.S. custody for more than a week, and interrogated pretty regularly. As an American citizen, he has a constitutional right, in that he's facing very serious criminal charges, to talk to a lawyer. He hasn't. Why not? Fleischer: Terry, on questions like this, the facts are still being gathered to ascertain what, if any, charges will be brought, and that needs to be addressed to the Department of Defense or the Department of Justice. As they gather those facts, they will take the appropriate action. Q: Is this an indication of the kind of due process that people caught up in these terrorist investigations are going to face? Because as an American citizen facing, as the Attorney General and others have said, very serious criminal charges, he has a constitutional right to see a lawyer, and he hasn't. Fleischer: I don't think this is the typical case. Q: He's an American citizen -- Fleischer: This is a case where an American citizen is found in a country abroad which was doing battle with the United States. It's not as if there's a lawyer on the street corner who was available at that moment. So, of course, constitutional rights will be obeyed. But I think you need to talk to the specific agencies involved with this, and that's the Department of Defense or the Department of Justice. Q: But is he being denied legal help? Fleischer: Helen, again, this is all up -- Q: Lawyers aren't that few around. You could get one to him. Fleischer: -- to the Department of Defense and the Department of Justice to make determinations about how to hold people and when people should be accessible. Q: One more. Is the administration then thinking of stripping him of his American citizenship and he wouldn't have those rights because of his allegiance to the Taliban? Fleischer: No. No. I just indicated that there aren't exactly -- there are different arrangements that have to be made in order to provide somebody who was a battlefield detainee access to the same, immediate availability of an attorney, as is the case here with somebody arrested on our shores. Q: And in that interim, should the authorities refrain from interrogating him and placing him in jeopardy of incriminating himself? Fleischer: Terry, these questions all need to be addressed to the proper agency which is responsible and is knowledgeable of the legalities involved. Q: But you speak for the government, Ari, and the President's involved in a lot of these deliberations. Obviously you know these questions are coming. I mean, are you aware of his status? Has he waived his right to counsel? Fleischer: John, speaking for the President, the President is more than satisfied that all rights are being fulfilled and that the Department of Defense and the Attorney General are doing the appropriate thing in accordance with the Constitution and given the on-the-ground practicalities and realities of the situation with Mr. Walker. (...) # # # December 19, 2001 PRESS BRIEFING BY ARI FLEISCHER (...) Q: Ari, can you explain where the President is in his thinking about charges against John Walker? There was a report today that he was nearing some decision. FLEISCHER: The President is continuing to receive information from the Department of Justice and from the Department of Defense in regard to Mr. Walker. The appropriate agencies are still reviewing the facts, and as soon as that is completed at the agency level, information will be shared with the President, with his security team. And then I think you can anticipate some type of announcement from the appropriate agency. Q: This week or -- FLEISCHER: The timing -- it could be this week. I'm not going to commit to any firm time, but I don't rule that out. Q: Will he make the ultimate decision on this, or will the agencies make it? FLEISCHER: The President's style on something like this is to listen to the recommendations of his staff and to see if there's a unified recommendation, if there are different recommendations, and then to work it out in a collegial matter with all. Q: Is Walker considered a prisoner of war? Is he considered a prisoner of war? FLEISCHER: He is considered, under the Geneva Convention regarding the treatment of prisoners of war, a battlefield detainee. Q: And how is that different? FLEISCHER: That affords him the protections of the Geneva Convention. Q: My question falls in line with that. Are we so primitive that we would ship this man in a box, deny him legal rights, deny him the right to see a lawyer, deny him the right to see his parents? I mean, is that America? FLEISCHER: Helen, under the Geneva Convention regarding treatment of prisoners of war, the military and intelligence agencies may question prisoners for information -- that's a military value -- in the conduct of war without the presence of a lawyer. That is what the Geneva Convention calls for -- Q: You ship him in a box? FLEISCHER: -- and the Geneva Convention is being followed in this case. Q: So it trumps his constitutional right to -- FLEISCHER: No, this is done consistent with the Constitution. Q: How so? FLEISCHER: Because what you're referring to, Terry, deals with custodial interrogation -- Q: Right. FLEISCHER: -- and that only comes into play -- Q: -- he's being interrogated -- FLEISCHER: That only comes in as a matter of statute when he is in the custody of law enforcement personnel. He is covered under the Geneva Convention by military personnel, which triggers a different set of statutory requirements. Q: He can't see his parents? He's not allowed to see his parents? FLEISCHER: Again, Helen, I think that they are moving forward with a review of the facts in this matter. But he is being treated under the Geneva Convention. He is being protected. He has been given medical care -- which he was not receiving under the Taliban. And he has received the protection of the United States Armed Forces in a very dangerous battlefield was not receiving under the Taliban. And he has received the protection of the United States Armed Forces in a very dangerous battlefield condition. Q: And he's being interrogated without a lawyer. Is that fair? FLEISCHER: He is being given all his rights, which are far more than the rights the Taliban or the al Qaeda extended to anybody living there. Q: Well, we're not comparing ourselves, are we? FLEISCHER: He has been given all his rights under the Geneva Convention. But as a matter of law, under the Geneva Convention, when the questioning deals with military matters or matters of intelligence, the Geneva Convention does not require the presence of a lawyer. He is being treated as someone who fought against the United States in an armed conflict. And that's why he is classified, properly, as a battlefield detainee. And he is being treated well. Q: Can I just explore that classification again? So under the Geneva Convention, he's called a battlefield detainee. Would he qualify as a prisoner of war under the Uniform Code of Military Justice? FLEISCHER: I think you need to talk to the Department of Defense lawyers if you're interested in any more precise definitions. I am not a lawyer. I can share with you the information that's provided to me by our lawyers. Q: And just one more question on that same topic. You just said that he is being treated as a person who is fighting against the United States. Does that then give you grounds for a charge of treason? FLEISCHER: Again, any charges will be reviewed and will be discussed by the appropriate authorities. Q: -- you said the President is receiving information from the Departments of Justice and Defense. Is that fair to say he has not yet received a formal recommendation from either department? FLEISCHER: That's correct. Q: No recommendation yet? FLEISCHER: That's correct. (...) # # # December 20, 2001 PRESS BRIEFING BY ARI FLEISCHER (...) Q: Does the President see any particular urgency to make a disposition in the Walker case to accommodate the holiday schedule? Fleischer: John, I talked to the President shortly before the briefing about this matter, and the President is continuing to receive recommendations about the best course of action in regard to Mr. Walker. The agencies have not made any final determinations; neither have the President. And so I do not anticipate anything this week on this matter. I don't even know if anything will happen next week. The President thinks it's important to be thorough, to be deliberative, to be judicious. More information needs to be gathered. So there's nothing imminent. Q: There's no recommendations, nothing has been ruled out or in? Fleischer: Helen, he hears from his advisors. He hasn't heard from all his advisors. He'll continue to hear from his advisors, but no determination has been made. Q: Do you know of reports that he has ruled out treason? Fleischer: The President hasn't ruled anything in or out because no determinations have been made. And he hasn't received all the word yet from the investigators, from the advisors. So this has moved a little bit beyond what we talked about this morning. I don't anticipate anything being imminent. Q: Is that based on the recommendation of the Secretary of Defense, who said, whoa, what are we moving so fast for? Fleischer: It's based on the entire information-gathering process. Q: And given that this is an individual American who is in an extraordinary situation, really, what's the scale of involvement of the government in determining what the charges should be against him? Who is involved? Fleischer: Well, this is an extraordinary set of circumstances, to have an American who apparently was engaged in armed combat against the United States of America. And it's in Afghanistan, and as you can imagine in anything that involves matters that are of the law, there's an information-gathering process. This information-gathering process is in Afghanistan. There are people who have to be talked to to determine what took place; there could be witnesses. So that's -- Q: Is he still being deprived of a lawyer? Fleischer: -- why it requires a lot of information-gathering. And it will take the amount of time that is wise and necessary to take. Q: And can you give us a sense of the scale of the consultations that the President is engaged in? In other words, what agencies are contributing to this decision? Fleischer: This is primarily at the level of the Attorney General, the Department of Justice, the Department of Defense. As you can imagine, those are the two entities that are involved in this. Mr. Walker is being treated within his rights under the Geneva Convention and he's a battlefield detainee, and that's why Defense and the Attorney General Office are the principal advisors involved. But as the President typically does, he has a broad leadership style, he likes to listen to the ideas of his national security team. And that's what he'll do. Q: One more. Do you know if he's been Mirandized? Fleischer: I do not. Q: At what point can he have a lawyer? Fleischer: Under both the law and under the Constitution, in accordance with the Geneva Convention regarding the treatment of prisoners of war, military intelligence agencies may question prisoners for information -- that's a military value -- in the conduct of the war without the presence of a lawyer. He would have a right to a lawyer if he requests one when he's held on what's called custodial interrogation by law enforcement personnel. And that's a different circumstance than where he is now, under his rights under the Geneva Convention. Q: Ari, one thing -- I know you can't talk about if there's any determination, and you said it has not been made, but is there some concern about treason in the sense that the legal requirement is burdensome and the difficulty to prove such a charge against Walker? Fleischer: Okay, I'm just not going to comment about recommendations that the President is still in the process of receiving. The process -- in the President's opinion, the best way to handle this process is carefully, thoroughly, and methodically. And that's why he will allow the investigators to complete their work in the time frame that they think is wisest. And the President will let them do their jobs, he will listen to their advice, and at the appropriate time when -- you will hear from either the agencies or the people involved. Q: Can I just follow up on that? I know the President's father I believe was on ABC yesterday, and I think he spoke about a unique penalty for Walker, something to the effect -- I don't have the transcript in front of me -- but having him sort of walk around the United States and he could sort of see how people in this country feel. Did the President see what his father said, and any reaction to that? Fleischer: Well, since you don't have the transcript in front of me, I wouldn't want to comment on anything involving what the President's father had said. Q: Did the President see what his father said about Walker? Fleischer: I have not heard -- Kelly, I have not heard the President on that topic. Elizabeth, you seem to have a question. Q: I don't have a transcript, but I do remember what the President said. He said he should be forced to parade around the United States so people could see him, and treat him badly, apparently. Does the President have any reaction to that, again? Fleischer: Again, I have not heard the President weigh in on what the President said. Q: Can I ask another question? You said that the President has received many recommendations, but nothing is final yet. Fleischer: Well, I said the President is receiving recommendations. I don't believe I used the word, "many." Q: So if we're talking about the Justice Department and Defense we're talking about two recommendations here. Fleischer: And I indicated that as the President does, his leadership style, he'll listen to other voices on the security team, as appropriate. Q: Ari, under the Geneva Convention, a battlefield detainee apparently can receive mail. Do you have any knowledge as to whether or not he's able to receive mail? Fleischer: I do not know. Q: His parents have put out a statement saying, asking America to be patient, wait for all the facts to come out. Do you have any comment on their saying that? Fleischer: No, I don't. And I think what you have to understand at a time like this, too, is anything that is involving the legal course of action is not something that I'm going to be in a position to give you a minute- by-minute, play-by-play. You have to allow a process to be thorough, to be deliberative, and to be judicious. So I'm not going to comment on every wiggle of every report, or every nook and cranny in these developments. (...) Q: Can I go back to Walker? I just want to clarify. You were talking about his status as a battlefield detainee, and so, therefore, you don't have to provide him access to a lawyer right now. But as the recommendations are made and you figure out how he's going to be tried, is it possible that his status would change? And how would that work? Fleischer: It is. Sure. If it were decided that he move from his status as a battlefield detainee to a time where he would be held in what's called custodial interrogation, then he would, of course, have different legal rights. He has legal rights under the Geneva Convention which are being fully complied with. He has legal rights as an American if he were to be put in a position of custodial interrogation. Q: Did you say that there will be no decision on Walker this week and next, or just this week? Fleischer: I said nothing is imminent. I do not expect anything this week. I can't tell you there will be anything next week. It's possible it will be after that, even. Q: What I really wanted to ask, though, was has there been any decisions made on the al Qaeda members who have been captured, how they'll be handled? And is it possible we could have a decision on them this week? Fleischer: I'd refer you to DOD on that. (...) # # # December 21, 2001 PRESS BRIEFING BY ARI FLEISCHER (...) Q: Ari, the President said he's asked the NSC to come up with a system to categorize captives, battlefield captives, al Qaeda captives, for legal disposition -- whether they would go to a military tribunal, civilian court, third country. Will that be made public? Fleischer: The decisions that they make will obviously, once determinations will be made, will be shared by the relevant agencies about what the process would be. They're still working it through, they're still thinking about the best course of action to take, and when they have a determination, that information will be shared. Q: But with the criteria that he's asked them to come up with, for the disposition of each individual, including John Walker, will that be made public? Fleischer: Terry, I can't promise you that every piece of information they have will be shared. I don't know exactly what type of information they're working with. Some of it could be of a nature that cannot be shared. But it's fair to say that when a determination is made about how people will be brought to justice, whether it's to al Qaeda, Taliban, Mr. Walker, you will see as a result of the decision made the thinking that was involved, why the procedure has been put in place, if there are differences in the procedures for the al Qaeda or for the Taliban, it will be evident in the information that's released. I think you're going to get a lot of the answers to your questions once it's clear. Q: One more on this. Now that the President's asked the NSC to do this, what happens to Attorney General Ashcroft's recommendation that John Walker be charged with providing material support to terrorists? !!! Fleischer: Well, number one, I'm not discussing any recommendations that the President may have received up to this point. But suffice it to say that all the President's security team will be working together on the ultimate outcome. (...) # # # January 9, 2002 PRESS BRIEFING BY ARI FLEISCHER (...) Q: Ari, what's the legal status of the prisoners who are being transferred from the Afghanistan theater to Guantanamo Naval Base? Fleischer: Their status is being reviewed by the lawyers to determine exactly what treatment they will receive. In all cases, the treatment they will receive will be humane and fair. They will be provided with food and appropriate medical care. And I think it's safe to say that no matter where they are, Guantanamo or anywhere else, their conditions will be much better than the conditions under which they existed when they lived in Afghanistan. But these people are people who are being detained for waging a war against our country. Q: Are they prisoners of war? Fleischer: That's a legal term, prisoner of war, and under the Geneva Convention, a prisoner of war is somebody who actually wears a military uniform, for example, carries a weapon outside. That's a legal definition, and each individual has a different case to determine whether they meet that criteria. Q: One more. By what authority, then, by what international authority is the United States shipping these people from their home country to Guantanamo Naval Base in Cuba? Just the fact that we have them in our control and consider them dangerous and want to move them across the world? Fleischer: Many of them are being treated as either detainees that are unlawful combatants, and they are in custody of the United States military -- and, appropriately, properly so. Q: How close are you to deciding the fate of John Walker? And will he be among those sent to Guantanamo? Fleischer: I don't have information specifically about him going to Guantanamo, so I suspect not. But no indication yet on the timing about either Mr. Walker or any of the legal proceedings that may or not take place for any other detainees. Q: What is the status of the review? Fleischer: It is currently under review by the National Security Council. They are talking with, of course, as NSC always does to coordinate, the Department of Defense, Department of Justice and anybody else about what the exact status should be. Q: Under the Geneva Convention and other conventions we've signed, there's no such thing as a detainee -- either they're prisoners of war -- and even though they may not, some of them may not have had the insignia, I mean, by all legal understandings, they are prisoners of war. Fleischer: Terry asked a very specific and legal question. And prisoner of war, under the Geneva Convention has a strict legal definition attached as to who is and who is not a prisoner of war. And that is going to be a case-by-case determination of each and every one of these individuals to see if they qualify under the Geneva Convention as prisoners of war. Q: But you do feel that you can keep them in custody, whether you determine the -- Fleischer: If the alternative is to let them roam Afghanistan free again to commit more crimes and to engage in war, that's clearly not an option that anybody is going to pursue. Q: So it is, then, based on that answer, it is a function of their dangerousness and the American interest in its own self-defense? Fleischer: The reason they were being detained is because they were engaged in a war against America's Armed Forces. The question separately is, are they prisoner of war, under the Geneva Convention, which is a strict legal definition, and it's safe to say that strict legal definitions will be honored. But it's a case-by-case decision, as you know, to determine each individual's status. Q: But it sounds like their detention is based on our fundamental national interest and protecting ourselves. Fleischer: Their detention is because they need to be detained so they do not carry out acts of aggression in a war against the United States. Q: There's no international convention or there's no law on which we're detaining them, it's basically, they're dangerous, they want to kill Americans, and we're going to keep them in detention. Fleischer: Keith, put it this way: There's a war in Afghanistan. These people did not stop fighting; it was either be killed or be captured. These people were captured. (...) Q: Ari, I want to ask you, in the first place, is Zacharias Moussaoui is soon to hear whether he will get his wish in having his trial televised, as he is requesting? And, second, why in this particular case, when he's met all the ground rules for being tried by military tribunal, why did the President go for a civilian trial? Fleischer: Well, on the question of whether Mr. Moussaoui should have been tried in civil court or in military court, that's a matter that the President discussed at great length more than a month ago, I believe. It was more than a month ago, and the President indicated that he met with the Attorney General, the Attorney General laid out the reasons why he thought it should proceed in civil court. The President listened, the President asked several questions to determine whether any information that could be shared in this trial would in any way endanger the security of the United States, the ability of the United States to wage and win a war. and the President was satisfied that there would be no such inappropriate release of information. And, therefore, the President saw no reason to change the current system and put this case into a military tribunal and so it proceeds. Q: And how about the fact that he's asking for this trial to be televised? Fleischer: Yes, that's a matter that the White House does not -- that's a Justice Department issue, and you need to talk to Justice. They have their own rules about federal cases and televising trials. It's not a new issue, the Department of Justice has a consistent policy and standard they put in place that they've used for a number of years dealing with that. Q: But does the President have an opinion? Fleischer: I've not talked to him about it, but I think the President would tell you that that's a matter for the Department of Justice to bring their impartial analysis to, to determine whether or not that serves justice. (...) # # # January 16, 2002 PRESS BRIEFING BY ARI FLEISCHER (...) Q: I have two questions, Ari. The first one has to do with the criticism that is out there by some civil rights and human rights groups on the way the Taliban prisoners of al Qaeda are being treated in Cuba, as far as lodging. Some are complaining that the fact that their beards were shaved off. What do you say to that? FLEISCHER: The President is very satisfied with the treatment that the detainees are being given, that it is humane, it is respectful, and the President is satisfied at all levels with the actions that the Department of Defense has taken in the treatment of these people. These are very dangerous people. These people have been known to engage in -- in a prison uprising that have cost a lot of lives. These are, as Secretary Rumsfeld said, among some of the worst of the worst of the al Qaeda with whom we have fought. But the President is satisfied that they are being treated as Americans would want people to be treated. (...) # # # January 23, 2002 PRESS BRIEFING BY ARI FLEISCHER (...) Q: Ari, despite the explanations given by Secretary of Defense Rumsfeld, this morning Speaker Hastert, when asked about it, said that the treatment of the detainees in Guantanamo -- Taliban and al Qaeda -- is humane and severe. He used the word "severe." The critics, in Europe, especially -- FLEISCHER: You said the Speaker said it was humane? Q: And severe, right. The critics, especially Europe, continue to not accept the explanations given by American authorities. What do you think the U.S. should do to prove its point, that they have given them humane treatment in accordance with the Geneva Convention? FLEISCHER: Again, I would refer you to the briefing that Secretary Rumsfeld had on this topic yesterday. There's not a new question here. Secretary Rumsfeld took all these questions. Secretary Rumsfeld has been in touch with the people who are in charge of Guantanamo and he understands this. So, too, does the President. And the President is perfectly satisfied that the traditions of the United States, which are to treat people well, to treat people with dignity and to treat people humanely are being kept at our base in Guantanamo. The President also understands that the people who are detained there are detained because, for the most part they're all al Qaeda, and if they were free they would engage in murder once again. These are not mere innocents. These are among the worst of the worst who are being detained because of what they have done, because of the suicidal nature of the actions that they have taken -- their willingness, their training to go out and kill and destroy and engage in suicide if they can take others with them. And the President is also concerned that as they are treated humanely and fairly and consistent with the Geneva Convention, that the young men and women of the United States military who are guarding them are not subject to harm and subject to danger, as was done in the prison uprising in Mazar-e-Sharif. Those are also the brothers and sisters and the sons and daughters of Americans, who are in harm's way by guarding those prisoners. And it's not easy duty. And the President is very well satisfied that they're doing it in the traditions of the American military, which sets a standard around the world for people treating well, treating people humanely while doing a tough job. Q: Most of the international organizations say they are not being treated properly under the Geneva Convention and they are not being treated humanely. Why do you have this world outcry if they're being treated humanely? FLEISCHER: I think, Helen, there's been a reaction to a photo that is not befitting the facts. Q: Photos put out by the Pentagon. FLEISCHER: That's correct. (...) # # # January 24, 2002 PRESS BRIEFING BY ARI FLEISCHER (...) Q: Thank you. We saw what the President said last night -- that was a good feature, by the way -- about John Walker. In the wake of what Walker and his parents and attorney said today, does the President have any fresh thoughts, especially about the charges that he had asked for legal representation, or the father's claims that the son had done nothing anti-American? FLEISCHER: The President has faith in our impartial system of justice. And the system of justice does not respond to news conferences of the day. The system of justice responds to evidence that is presented in a court of law and to strict adherence of the laws that protect all citizens, including John Walker. And that's where the President's faith lies. And the President looks forward to justice being done in a court. (...) # # # January 28, 2002 PRESS BRIEFING BY ARI FLEISCHER (...) !!! Q: Ari, in the NSC meeting today, did this issue of treatment of the prisoners down in Guantanamo Bay come up? And can you describe a little bit how the President is wading through the disagreement among other officials about how to treat them and whether they are subject to the Geneva accords? FLEISCHER: Okay. Let me answer that to the best degree I can, David; I want to proceed care. As you know, it is the longstanding policy that we don't talk about what's discussed in NSC meetings. Having said that, to be helpful, as you know, it's been publicly indicated by others, as for the people who are the detainees who are being held in Cuba, the determination has been made that they are not and will not be considered POWs. That, in the tradition of this country, and it should go without saying, that anybody in the custody of our military will, at all times, be treated humanely. That is the American way. As for some of the legal issues involving the applicability of the Geneva Convention, the President received the advice of his counsel and the President has made no determinations, having received that advice. Q: Can you explain what the advice was? FLEISCHER: No, I cannot get into any individual's advice to the President in an NSC meeting. Q: Can I follow on another point? In the context of disclosures regarding energy policy to the GAO, you have talked about the principle involved and how this would be viewed going forward. What about the concern about the principles involved in the treatment of detainees and how, rightly or wrongly, that may be seen by others around the world that could ultimately affect service personnel of the United States, or other Americans and their treatment? FLEISCHER: Aside from the fact that everything the government does should involve principles, I don't see the connection between the two. But the United States military, for hundreds of years, has always honored the traditions and the high calling of this nation to treat people well. And that's exactly what's happening in Cuba. In Cuba, as a result of terrorists who moved to Afghanistan from other countries to be taught and trained in the art of how to kill innocents, how to blow themselves up and commit suicide in a way that takes the lives of others, these people were captured in terrorist camps and terrorist bases, at which they located themselves in Afghanistan. They fought in a war against the United States in which we had our men and women on the ground fighting. And for these people who are now detainees, the choice was either, be captured or be killed. And they've been captured. And in being captured, they're lucky to be in the custody of our military, because they're receiving three square meals a day, they're receiving health care that they never received before. Their sleeping conditions are probably better than anything they've had in Afghanistan. And they're being treated well because they're in the hands of the men and women of our military. And they're being treated well, because that's what Americans do. Within that, there are legal issues that involve the Geneva Convention that are being looked at. And as I mentioned, they are going to always be treated humanely. They are not going to be considered POWs. They will be allowed, for example, to receive and to send correspondence. They will be allowed to receive and send -- receive food and clothing, subject to proper security clearance screenings. But one of the things, for example, if they were POWs, that they'd be entitled to, which they are not going to get, is going to be a stipend for tobacco. Those are things they would be entitled to. They'd be entitled to advances on their pay, if they were declared POWs. And the United States is not going to pay them stipends. I think that's widely supported. !!! Q: It's not just the question of whether or not they are POWs. The Geneva Conventions provide for a review of each individual case, to determine whether that captive is POW or not. And it seems that the United States position is that the Geneva Conventions don't even apply as far as that. Why not? What is the administration's position why the Geneva Convention shouldn't apply at all? FLEISCHER: They will be treated in accordance with the principals of the Geneva Convention. There's no question about that. And the core of the Geneva Convention is focusing on humane treatment, which is something the Americans have always done, and other nations around the world have not always done. We will do it because it's the right thing to do and it's the way our military treats people. But as for the determination of whether they're POWs or not, what you have to recognize that is so different -- and the President has always said this is a different kind of war, a new kind of war -- is the situation surrounding the detainees in Cuba is unlike any conditions before, in previous wars, where there were simple, black and white cases of troops, typically who were drafted, who had been captured in accord with fighting for a recognized country. That's not at all the case here. What you have here are typically non- uniformed, people who moved to Afghanistan -- from more than 30 nations in the case of the detainees in Cuba -- for the purpose of engaging in terror, not for the purpose of engaging in military combat, which is typically what you think of when you think of the Geneva Convention. So as this nation, the United States, deals with a new type of war, we're also dealing with a new type of detention system -- people in Cuba. And that means it's much more complicated than a simple reading of the Geneva Convention would imply. And that's why, frankly, I think it's a healthy process that's underway, where the lawyers are having a discussion about exactly how do you apply -- the Geneva Convention was written in a very different era, following world war -- to apply to the war on terrorism, where people don't wear uniforms, they are unlawful combatants and they come from 30 different nations, not any one recognized nation with whom the United States is fighting a war. Q: So out of that, just to nail it down, the United States is not going to provide an individual, case-by-case determination of whether or not these captives count as prisoners of war or not? We're just saying, blanket -- they aren't even covered by the Geneva Convention. !!! FLEISCHER: That issue is resolved. The issue is resolved. They are not POWs. Q: Ari, what about the Taliban fighters who were clearly fighting for their country's government? How can you not consider those as prisoners of war? And, secondly -- FLEISCHER: That determination has been made. I am not an attorney and you can consult with attorneys -- I know you all have and will -- more specifically on the Geneva Convention. But, of course, United States never recognized the Taliban. Q: Well, what do you mean, they never -- it was a government, whether you recognized it or not. FLEISCHER: Well, maybe three countries in the world recognized it and, two, I'm -- Q: Don't you think the United States should abide by a treaty that it signed? !!! FLEISCHER: The United States is abiding by the core principles of that treaty. (...) Q: Ari, there were a lot of reports over the weekend that there was a different point of view coming out of Secretary Powell and the rest of the Cabinet. At the meeting today -- I don't know if you can discuss this -- but you said in the morning there was total unanimity on the issue. FLEISCHER: There is unanimity on the issue that they are not POWs. It just should go without saying that they will be treated humanely. But there are legal issues that have been brought to the President's attention, and those are being discussed. Q: What -- FLEISCHER: I am not going to describe anybody's individual conversations. This is a meeting of the NSC where the President wants to receive the counsel of all concerned, and allow them to do so privately and forthrightly. Q: POWs is now -- that's it, no argument? FLEISCHER: It has not changed since David asked it to me, or Terry asked it to me or since you asked it to me. No change. (...) Q: If I can return you for a moment to the NSC meeting this morning. Set aside the POW issues, because that's not the issue under debate. The only issue under debate, as we understand it, is whether or not the Geneva Convention applies to all of these prisoners, and then you make other determinations about how you categorize. You suggested that this was a legal issue and seemed to imply that it was an issue, therefore, that was going to be decided by lawyers. Obviously, you don't gather the President, the Vice President, the Secretary of State and others to decide an issue lawyers can decide. Who's making this decision -- FLEISCHER: No, because I think it's obvious that the ramifications of legal issues can rise up to a higher level, especially when you deal with, as Helen put it, the applicability of the Geneva Convention. That's why. It's just, on it's face, it rises up to the President's level. Q: So the President will make this, and he will make it with legal advice, but it's fundamentally a political decision he's going to make? FLEISCHER: No, it's a combination of legal issues that have a broader application in terms of the applicability of the Geneva Convention. Q: And did this meeting result in a resolution of that issue, not the POW issue, but that issue of the Geneva Convention? FLEISCHER: No, as I indicated, no determination has been made this morning. Q: Ari, can we come back to the Afghan peacekeeping. If every nation said that our forces are for winning wars only, not for peacekeeping, there'd be no peacekeeping forces. What exempts us? FLEISCHER: If every nation used their military forces the way the United States did, there'd be no wars. Q: Is that going to happen anytime soon? FLEISCHER: That's the point. The United States uses its military for the purpose of fighting and winning wars, which has historically resulted in more peace around the world; it has historically resulted in nations that used to be enemies becoming friends -- France and Germany, for example. And that is as a result of the fact that when our nation commits its military to war, it does so for high moral purposes, backed up by military might. And the world has always been a better place for it. Having said that, that is the contribution that this President believes should be made, by our military, to fight and win a war. And he is pleased to work with the international community on a peacekeeping mission that would focus on other nations' activities around peacekeeping. That should not be a surprise to anybody. That's exactly what the President committed to during the campaign, and that's what he intends to do. Q: I guess that's the nature of my question, is he has really spoken on this in blanket terms -- that this is what we use our military for, this is what we don't use our military for. And you're saying that our willingness to use our military to fight wars exempts us from peacekeeping. Is that right? FLEISCHER: Well, we're not exempt from peacekeeping. The United States has a series of commitments around the world to peacekeeping that the President is honoring. The President would like, over time, to be able to draw those down, so that the core mission of our military can remain focused on a combat ready force. But the President made clear -- and it shouldn't surprise anybody that he does what he said he'd do in the campaign -- that he does not intend to pursue new peacekeeping efforts with our military all around the world. We're pursuing combat in Afghanistan, and as a result, Afghanistan now has an environment in which security may be able to take hold. Q: So it's not blanket. It could be different elsewhere, depending upon how we choose to use our forces? FLEISCHER: I think you understand the President's philosophy very clearly. (...) Q: I want to go back to the detainees, with a couple questions. The first is on timing. I know you'll announce it when it's ready to announce, but is this an issue that the President hopes to resolve quickly, or is the kind of thing -- FLEISCHER: When I talked to him about it, he didn't give me any indication of timetable. Q: The other thing is the factors in the balance here. I mean, if these guys were non-uniform terrorists, who clearly are not POWs, why the hand-wringing about the Geneva Convention? Is this a case where the President knows what he wants to do, but he's worried about world opinion? FLEISCHER: Well, Ron, your word, hand-wringing. I think what you're also seeing is a good process within the government that when there are issues that are brought to the National Security Council, they consider them. I think that's what the National Security Council is set up to do. Q: What's the argument for not -- for expanding the Geneva Convention coverage for these folks? Because I understand there's a distinction between the POWs -- FLEISCHER: It's not a question of expanding, it's a question of whether or not legally it applies. And that's why lawyers are involved. (...) Q: Legally, the POW decision was made within the confines of the Geneva Convention, or outside it? FLEISCHER: Any decision that would be made that would be concurred with by the attorneys is, of course, made in accordance with all appropriate laws. Q: I mean, I believe we're clear that the President has decided they're not POWs, we're not going to revisit that, but there are still legal issues open. I'm trying to determine, was the decision that they are not POWs made -- as I understand it, you can decide within the Geneva Convention that someone is not a POW. Was this -- FLEISCHER: Jim, that very well may be the case. I'm not an attorney, and that's why I've given you a rather nebulous, roundabout answer. But the lawyers have taken a careful look at that and they would not have done it if they were not on sound legal ground, whether that comes from the Geneva Convention, itself, or from other international laws or domestic. Q: But the decision was not part of the Geneva Convention, it was outside that? FLEISCHER: No, I didn't say that. I said I'm not an attorney, so I couldn't give you that specific legal definition. I think that's obtainable and we can try to do that for you. We'll post it. (...) Q: Just to sum up, is it accurate to say that the President and Colin Powell agree on the prisoner status but may have some difference of opinion on the finer legal points? That this was hashed over in today's NSC meeting and that now the President is considering altering his view of these legal issues in response to Mr. Powell? FLEISCHER: I would simply say that the President has made no determination yet. And I did not indicate to you who was representing any point of view. As I explained earlier, that's not my position to explain to you what any individuals say at a National Security Council meeting. I want to find that line to be helpful to you, to let you know something that took place at the NSC this morning, even though we typically do not talk about it. But I am not going to get into who said what at NSC. Q: Well, aside from the NSC meeting, is it accurate to say that Powell and the President have some difference of opinion on these finer legal points? FLEISCHER: The President always wants to encourage people in his Cabinet to come to him with their opinions and thoughts and do so in a manner that will respect their privacy, so he can get more of it. (...) # # # January 28, 2002 The White House Office of the Press Secretary REMARKS BY THE PRESIDENT AND CHAIRMAN OF THE AFGHAN INTERIM AUTHORITY HAMID KARZAI (...) Q: On the issue of the detainees at Guantanamo Bay, what's wrong with formally applying the Geneva Convention to them? THE PRESIDENT: I have -- the question is about the detainees in Guantanamo Bay. I had a very interesting meeting this morning with my national security team. We're discussing all the legal ramifications of how we -- what we -- how we characterize the actions at Guantanamo Bay. A couple of things we agree on. One, they will not be treated as prisoners of war. They're illegal combatants. Secondly, they will be treated humanely. And then, I'll figure out -- I'll listen to all the legalisms and announce my decision when I make it. But we're in total agreement on how to -- on whether or not -- on how these prisoners -- or detainees, excuse me, ought to be treated. And they'll be treated well. And yesterday, the Secretary of Defense went down to Guantanamo Bay with United States senators from both political parties. The senators got to see the circumstances in which these detainees were being held. They -- I don't want to put words in their mouth, but according to the Secretary of Defense -- I'll let him puts words in their mouth -- they felt like, one, that our troops were really valiant in their efforts to make sure that these killers -- these are killers -- were held in such a way that they were safe. I noticed one of our troops last night was commenting that they are receiving very good medical care. But I'll make my decision about -- on how to legally interpret the situation here pretty soon. (...) Q: Mr. President, in holding the detainees in Cuba in the manner in which the United States is, is one of the signals you're sending that, in this new kind of war, as you've described it, the Geneva Conventions are outdated and don't apply in the conflict with al Qaeda? THE PRESIDENT: No, the Geneva Conventions are not outdated, and it's a very important principle. First of all, Terry, we are adhering to the spirit of the Geneva Convention. When you say you're holding the prisoners in the manner you are -- we're giving them medical care, they're being well-treated. There is no allegation -- well, there may be an allegation -- there's no evidence that we're treating them outside the spirit of the Geneva Convention. And for those who say we are, they just don't know what they're talking about. And so -- Q: Mr. President -- THE PRESIDENT: Let me finish. And so I am looking at the legalities involved with the Geneva Convention. In either case, however I make my decision, these detainees will be well-treated. We are not going to call them prisoners of war, in either case. And the reason why is al Qaeda is not a known military. These are killers. These are terrorists. They know no countries. And the only thing they know about countries is when they find a country that's been weak and they want to occupy it like a parasite. And that's why we're so pleased to join with Chairman Karzai to rout them out. And so the prisoners, detainees, will be well-treated. They just won't be afforded prisoner of war status. I'll decide beyond that whether or not they can be noncombatants under the Geneva Convention, or not. I'll make that legal decision soon. But this administration has made the decision they'll be well- treated. Long before they arrived at Guantanamo Bay did we make that decision. Plante. Q: Mr. President, the Saudi Interior Minister today said that a majority of those being held at Guantanamo, more than 100, are Saudi citizens, and asked that they be returned to Saudi Arabia for questioning. THE PRESIDENT: Well, I appreciate his request. And we will, of course -- we'll take it under consideration. There are a lot of detainees around the world as a result of this first phase in the war against terror. There's a lot in Pakistan, there's a lot in Afghanistan, and there are 179, I believe, or whatever the number is, in Guantanamo Bay. So there's a lot Saudi citizens that chose to fight for al Qaeda, and/or the Taliban, that we want to know more about. And so we'll make a decision on a case-by-case basis as to whether they go back to Saudi Arabia, or not. I appreciate his suggestion. (...) # # # # # # # # #