US Senate hearing on detainees; an accused person has no rights
Regional-USA, Politics, 6/16/2005

The White House yesterday replied to the increasing criticism about the status of detainees held by the US government. White House Spokesman Scott McClellan answered questions related to some of the issues involved:

Question:Ê The Attorney General said in Brussels that the detention center at Guantanamo Bay would eventually be closed.Ê Is that the feeling here, that it would eventually be closed?

McClellan:Ê I haven't seen exactly what he said on those comments, but I would think that it's probably along the lines of what we have previously said.Ê First of all, I think we have to step back from this and keep in mind that we are in a different kind of war when it comes to the war on terrorism.Ê These are individuals who we have picked up on the battlefield in the war on terrorism and these are dangerous individuals who seek to do harm to the American people.Ê They are being detained for a reason.Ê They're enemy combatants for a reason.

And the President is going to always look at ways of how best to protect the American people and keep America safe.Ê And that means looking at how we deal with these detainees.Ê There are no plans at this time for shutting down Guantanamo Bay.Ê No one has come forward with a better alternative for where we keep these enemy combatants.Ê These are dangerous individuals.Ê Some of these individuals who we have previously released have actually returned to the battlefield and we've captured them again or otherwise dealt with them on that battlefield in the war on terrorism.

I think the point the Attorney General was probably making -- I haven't seen his remarks -- was that no one wants to hold these detainees longer than is necessary, but we are a nation at war and these are dangerous individuals.Ê We're always looking at the disposition of these detainees and how we deal with them.Ê And that's a point that Secretary Rumsfeld was emphasizing yesterday.Ê There is a legal process that has been put in place for dealing with these detainees.Ê A number of these detainees have been returned to the country of origin when we have assurances that those countries will look after them.Ê But these enemy combatants are providing us valuable intelligence in the war on terrorism and helping us to disrupt plots and prevent attacks.Ê Secretary Rumsfeld talked about that at length yesterday.

Question:Ê A couple questions.Ê What are the criteria here, then?Ê Is it the plan of the President that at least some of these detainees would be held through the duration of the war on terrorism?Ê And how would that be defined?

McClellan:Ê Well, we don't want to release any individuals that are going to come back and later seek to do harm to the American people.Ê That's why we look at these issues very carefully.Ê And Secretary Rumsfeld walked people through that yesterday at his briefing.Ê But there is a process that has been put in place, a legal process, for addressing these detainees, and Secretary Rumsfeld walked through that, as well, yesterday.

Question:Ê Right, but the President has said this is a long, long struggle.Ê Adding two and two here, it's conceivable, and, in fact, likely, that some of these people will be held by the United States somewhere for decades.

McClellan:Ê Actually, Secretary -- actually, Secretary Rumsfeld said many of these we would like to see returned to their country of origin and have them look after those individuals.Ê And we have worked with other countries and returned some to their country of origin.Ê In terms of others, they're being dealt with through a legal process that has been set up.Ê And we're always looking at the disposition of these detainees, as I said.

Question:Ê I'm just trying to get a fix here on how long Guantanamo Bay, or whatever comes after Guantanamo Bay, would --

McClellan:Ê I don't think you can speculate -- I don't think you can speculate about that.Ê We remain a nation at war.Ê And we are going to go after --

Question:Ê Can you define for me the end of the war?

McClellan:Ê Terry, the President has talked about this.Ê There are those who espouse an ideology of hatred and oppression.Ê What we are working to do is defeat the ideology of hatred and oppression by spreading freedom and by taking the fight to the enemy.Ê That's why we're staying on the offensive and going after those who seek to do us harm.Ê We're fighting them abroad so we don't have to fight them here at home.Ê So there's a comprehensive strategy that we have for winning the war on terrorism, which I think is what you are getting at.Ê But it is a war that continues.

Question:Ê Right, so just as a matter of policy now, the United States is, then, claiming the power and the right in its national self-interest, at least until the ideology of hatred is defeated and freedom and democracy are spread --

McClellan:Ê I think eventually, you would hope --

Question:Ê -- to nab people around the world and hold them indefinitely.

McClellan:Ê Terry, I think eventually, you would hope that Guantanamo Bay would not be necessary, because you've either returned people to their countries of origin, or you've otherwise moved forward on the legal process and dealt with their situation.Ê But you're asking a very hypothetical question at this point.

Question:Ê I'm trying to get the parameters of the policy --

McClellan:Ê I don't think you can speculate about that at this point.Ê We are going to stay on the offensive, after the enemy, and bring them to justice before they can do us harm.Ê And we are going to work to promote freedom and democracy around the world, particularly in the Middle East, which is a dangerous region, so that we defeat that ideology that leads to people hijacking airplanes and flying them into buildings and killing innocent civilians.Ê I think the American people understand why it is important that we are detaining these enemy combatants.

The President's highest priority is protecting the American people, and he's going to do what it takes to stop attacks from happening in the first place, or do all we can to stop attacks from happening in the first place.Ê This is about keeping America safe.Ê And those detainees are dangerous individuals; they're there for a reason.Ê Some have -- all of them have gone through a review process.Ê Some of them were determined through that review process that they no longer posed a threat or had any information to provide us and they were released.Ê And others, we've worked with countries around the world to return them to their country of origin when we have assurances that they're going to look after them.

Question:Ê Scott, on Guantanamo Bay, understanding that you're saying -- well, but the Geneva Convention does not apply to the prisoners there, looking at part three, section one, article 17, it talks about prisoners of war, but there's also, in the third paragraph, the first five words, "each party to a conflict."Ê So I'm trying to figure out -- to understand where you are.Ê "Conflict" with people, meaning not soldiers or soldiers, that's still something -- that still covers those people that you have in Guantanamo Bay, correct?Ê Even if you try to say it's not war.

McClellan:Ê I don't know how many times we've walked through how we came to the decision we did and why the President made the determination he did.Ê Secretary Rumsfeld went back through it yesterday.Ê You can go back and look at the information we put out back in 2002 that addressed this.Ê These are individuals that do not represent a nation, they do not wear a uniform.Ê There are reasons why we came to the conclusion they are not a party to the Geneva Convention.Ê And the President made the determination that they were enemy combatants.

That doesn't change the way we treat detainees.Ê Our military upholds high standards and the values and laws that we hold dear.Ê And the detainees at Guantanamo Bay are being treated humanely and they are being treated in a way that is consistent with the Geneva conventions, as we have pointed out.Ê They are being provided meals, clothing, medical care; they are being treated very humanely.Ê That's the way the United States military operates.Ê If there are individuals that act contrary to the military's standards and our own laws and values, then they are held accountable, and they have been held accountable.

Question:Ê Okay, but the line has been obscured between the Geneva Convention and your law.Ê But you're saying they've been treated humanely.Ê The Geneva Convention, even in this article, article 17, it talks about each party to a conflict, okay.Ê And then going down a couple paragraphs, it says, no physical or mental torture.Ê Is dropping water on the head, keeping them up all night, making them stand, is that consistent with your laws?Ê It is consistent with the Geneva Convention, saying no physical or mental torture, but --

McClellan:Ê I talked about this the other day, about all interrogation techniques that have been approved are lawful and consistent with our obligations.Ê

Meantime, the US Senate began yesterday hearings to look into the problems that surround the status of detainees and how they are being treated in terms of their legal rights.

The Senate Judiciary committee was lead by its chairman Senator Arlen Specter, and ranking member Patrick Leahy. Senator Leahy said in an opening statement that "TodayÕs hearing is a welcome, if long overdue, opportunity to discuss what we should do with the Guantanamo detainees and what role Congress should take in developing long-term policies for detaining and trying terrorism suspects. I commend the Chairman for taking the initiative to confront these important and difficult issues."

Leahy added "The AdministrationÕs policies on detainees are clearly not working, and the Administration does not have a coherent theory for how to proceed. Late in 2001, military commissions were defended by our current Attorney General as tribunals that Òcan dispense justice swiftly, close to where our forces may be fighting, without years of pretrial proceedings or post-trial appeals.Ó That was more than three years ago. But far from assuring swift justice, there has been no justice at all. We have yet to see a single military commission complete a hearing or convict a suspected terrorist, and the whole process is now hopelessly tied up in litigation."

Leahy said "Until a year ago, the Administration seemed to hold tight to the notion that by detaining prisoners at Guantanamo Bay -- a location where it asserted prisoners had no right of access to the courts -- it could shield itself from judicial challenge. But the Supreme Court decision in Rasul v. Bush rejected this flawed legal theory. Now it seems that all the Administration has left to cling to is the amorphous notion of a Òwar on terrorÓ that has no end.

"If the Administration had applied the Geneva Conventions from the start, as former Secretary of State Powell strongly urged it to do, we would not be in the mess we are in today. Combatants who merited POW status could have been held for the duration of active hostilities. Those who did not meet the POW standards could be prosecuted under our existing criminal laws, or for violating the laws of war. These standards and procedures were used for decades by our military, including in the first Gulf War. Unfortunately, the Administration made its determination on the basis of flawed understandings of the Geneva Conventions and against the advice of military and State Department attorneys. We now see the repercussions of those poorly conceived policies.

"Alternatively, if the Administration had made better use of the Federal courts, we would not be in this mess. The handful of suspected terrorists who were indicted for their crimes have been severely punished. Shoe bomber Richard Reid was sentenced to life in prison. John Walker Lindh, the so-called ÒAmerican Taliban,Ó was sentenced to 20 years, as was the Ohio truck driver who plotted to destroy the Brooklyn Bridge. Even Zacharias Moussoui, whose case has been complex and challenging for all involved, has now pleaded guilty; the only question remaining is whether he faces life in prison or death.

"What has become clear over the past three years is that the AdministrationÕs policies were poorly reasoned and extremely shortsighted. The AdministrationÕs insistence on unilateralism Ð a tendency and a problem that has colored and undermined so many of the AdministrationÕs policies Ð has led to poor decisions and poor practices in detention policies, as well. From the start, the AdministrationÕs answer to every question about our detention policies has been, ÒTrust us.Ó Trust us that we know the law, and that we will comply with it. Trust us to treat detainees humanely and in accordance with our laws and treaties. Trust us that Guantanamo will make Americans safer. More than three years later, the one thing we know for certain is that any trust we may have had was misplaced.

"First, the Administration did not know or follow the law. The list of Federal court reversals of this AdministrationÕs policies and practices is long. From the Supreme CourtÕs rejection of the claim that Guantanamo Bay is a land of legal limbo Ð or, as one Administration official has said, Òthe legal equivalent of outer spaceÓ Ð to a recent district court holding that the current military commission regulations are unlawful, there is much that needs attention and correction. The Administration has also flagrantly violated our international treaty obligations. International law, not to mention the Defense DepartmentÕs own policies, requires the registration and accounting of all detainees. Yet we know that senior Administration officials approved a policy of keeping detainees off of the official roles in order to hide them from the International Committee of the Red Cross. The Administration also continues to defend its use of extraordinary rendition to transfer terrorism suspects in U.S. custody to the custody of countries where they are likely to be tortured, a patent violation of the Convention Against Torture.

"Third, and this brings us to the bottom line: The net effect of all of these problems is that Guantanamo has not made our country safer. It is increasingly clear that the AdministrationÕs policies have seriously damaged our reputation in the world and that they are making us less safe. The stain of Guantanamo has become the primary recruiting tool for our enemies. President Bush often speaks of spreading democratic values across the Middle East, but Guantanamo is not a reflection of the values that he encourages other nations to adopt. The United States has often criticized other nations for operating secret prisons, where detainees are hidden away and denied any meaningful opportunity to contest their detention. Now we have our own such prisons. Even if the Administration fails to see the hypocrisy in this situation, the rest of the world does not.

"Guantanamo Bay Ð along with Abu Ghraib Ð is an international embarrassment to our nation and to our ideals, and it remains a festering threat to our security. America was once viewed as a leader in human rights and the rule of law, but Guantanamo has undermined our leadership, damaged our credibility and drained the worldÕs goodwill for America at alarming rates. Even our closest allies cannot condone the policies embraced by this government, not to mention the significant damage that has been caused by allegations and proven incidents of detainee abuse in Iraq, Afghanistan, and Guantanamo. These are not the policies of a great and just nation like ours, and this is not the American system of justice.

"The 9/11 Commission understood that military strength alone is not sufficient to defend our nation against terrorism; there must also be a role for working cooperatively with the rest of the world. In its report, the Commission stated that Òthe U.S. government must define what the message is, what it stands for. We should offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors.Ó Our current detention policies fall woefully short of this ideal.

"The Administration consistently insists that these detainees pose a threat to the safety of Americans. Vice President Cheney said that just the other day. If that is true, there must be evidence to support it. If there is evidence, then they should prosecute these people.

"But we also know that some of the detainees have been wrongly detained. And I suspect there are others who have not yet been released, against whom the evidence is weak at best. It is one thing if they are being detained in accordance with the Geneva Conventions. But if not, they do not belong there.

"This week the Administration and its defenders have been trying to change the subject from the legal morass that Guantanamo has become, by producing props of chicken dinners and such, seeming to argue that it is more Club Med than prison. LetÕs get real. People have been kept in cages for three years, with no end in sight and no workable process to lead us there.

"Guantanamo Bay is causing immeasurable damage to our reputation as a defender of democracy and a beacon of human rights around the world. The Administration has yet to articulate a coherent plan to repair the damage. The Congress has abdicated its oversight responsibilities for far too long. The Administration has placed this nation in an untenable situation, and it is time for Congress to demand a way out."

While many questions related to the rights of detainees have been previously framed under the pretext of "war on terror" environment, as an all encompassing term that politicians have used, such as the term "war on drugs." The term "war on terror" is not a legal term, and as such, poses practical problems for the US authorities, that the hearing exposed, in that the US does not define exactly who this war is against, its territorial dimensions, the rules that should be abided by, etc. so that when a person in a particular country is detained by a particluar party, that detainee can be given a status, such as "enemy combatant", under well defined rules and rights afforded to such an accused person while a determination is being made about his guilt or innocence.

Under current rules, the military and justice department, can pick up, or be handed, any military or civilian person it chooses on the battlefield, or even outside it, for any reason, and detain that person indefinitely if he is not a US citizen. The hearing showed that an accused person, under current detention rules, is presumed guilty, can be accused under secret evidence, the evidence is not provided to the accused or even his lawyer, the person is not entitled to a lawyer, and the rules that govern this whole process can be further changed at will. And, a person can be held under these conditions indefinitely, as there is no set end-time for this so-called "war on terror."

While there are thousands of detainees worldwide, the hearing showed that out of the hundreds of detainees held at Guantanamo Bay for some three years, only a handful have had a hearing. In one example provided in the hearing, a person was held for three years incommunicado, before being released without a charge, and only after his case received public attention.

Previous Stories:
  Rumsfeld address criticism on US detention centers   (6/15/2005)
  Washington Post: US government is exaggerating terrorism cases   (6/14/2005)
  White House comments on Guantanamo detention center   (6/14/2005)

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