US: We are not allowing the Red Cross full access to accused detainees
Regional-USA, Politics, 12/10/2005

US State Department deputy spokesman Adam Ereli was asked by the press yesterday about the acknowledgement by a State Department legal advisor in Geneva who admited that the United States is yet to grant the International Red Cross access to all its detainees accused of terrorism, also asserted by the chief of the Red Cross.

ERELI said: Well, I think this is a -- should be a fairly well-known aspect of US policy. It's been obviously an issue of discussion between us and the ICRC for some time. I'd say we have a -- we value that dialogue with the ICRC. We are committed to continue to working with them closely. And as -- again, as the Secretary has said and as others have said, our approach in dealing with the issue of prisoners and detainees is to act -- not our approach -- our firm policy is to act consistent with US laws and international obligations. And pursuant to those laws, pursuant to those obligations, we provide access to -- we do not consider under the Geneva Convention, those members -- members of al-Qaida as covered by the Geneva Convention. But at the same time, even though we're not legally required to do so, we do provide access to the vast majority of detainees under our control. There are some, however, that we do not.

QUESTION: Is there a distinction there of their nationality?

ERELI: No.

QUESTION: No. All right. I mean, even the Nazis provided Red Cross access to -- what am I trying to say?

ERELI: Well, I'd hope you'd rephrase the question because I reject the comparison wholeheartedly.

QUESTION: No, I'm not comparing. I'm not comparing. I'm saying, even in that situation the Red Cross -- of course, they were mock visits -- people were given blankets and then they were taken away.

ERELI: Let's be clear. Let's be clear.

QUESTION: So why can't the Red Cross get to see what's going on in these detention centers?

ERELI: The Red Cross does see what's going on in detention centers and as do others. And in fact, I would take this opportunity today to remind you of something that was announced in Brussels earlier today, that the Organization for Security and -- a representative of the Organization for Security and Cooperation in the parliamentary assembly, Ms. Lizin, herself is going to Guantanamo to get a briefing and a tour and a visit to those facilities.

So I think our record of providing access and openness to our facilities is good and second to none in these unprecedented kind of circumstances. But let's also be clear, the Geneva Conventions, and this is something that was realized by the drafters of the Geneva Convention over 50 years ago, said that there are a category of individuals that do not fall under their provisions. And al-Qaida and those who are not prisoners of war or do not qualify as prisoners of war are not subject to the Geneva Conventions.

Now, we, as a -- and we believe that as a matter of law and policy, there are certain categories of detainees that are not covered by the Geneva Conventions. Most of them, the vast majority of them, we have -- even though we're not legally required to do so -- we have treated them and considered them subject to the Geneva Conventions to the point where the ICRC can visit them. But we're not -- there are others that, as a matter of law and policy, those provisions don't apply.

QUESTION: Can you say what the distinction is?

ERELI: I cannot.

QUESTION: Does it go to prisoners of war -- the prisoner of war issue?

ERELI: I think it goes to the -- it really goes to the category of those who pose such a security threat that exceptional circumstances are required.

QUESTION: The ICRC says it's in intense dialogue with you to try and get access to these detainees in secret prisoners or wherever they are. What are you telling them in this intensive dialogue? Are you telling them what you're telling us here now? And if you have nothing to hide, then why do you not just let them have access to these people? It looks bad. It looks as if you're speaking with, you know, a forked tongue. It looks as if you're not following through on the promises that the Secretary made this week.

ERELI: I guess I'd make two points. One, as I said earlier, we have an ongoing dialogue with the ICRC on a whole range of issues. We value that dialogue. We respect the mandate and role of the ICRC. We also don't discuss the details of our dialogue because the ICRC operates on the principle of confidentiality and we respect that.

On the question of, "If you have nothing to hide, why don't you just show them," again, I would refer back to our discussions of earlier this week where we tried to explain the tough choices that are posed to us in this war on terror, the tough choices between protecting the American people, adhering to our legal obligations and principles as a nation. And I think that we have -- in fact, I would state unreservedly that we have been able to balance those two alternatives or those two elements in the policy and in our practice.

Part of that consideration deals with to what extent does full openness and transparency compromise security. And in any war, as I've said earlier, there are things that need to remain classified, that need to remain in intelligence or other channels that aren't open to public scrutiny. And I would say that those are considerations which inform our decisions on these things.

I would also say that, again, as I referred to in my remarks earlier, that everything we do is based on a firm commitment and adherence to the law and is consistent with a policy of being legal and being accountable.

QUESTION: Just one more thing on the European parliamentarian who you say can go to Guantanamo Bay. Will she be allowed to speak directly to detainees because this was an issue with the -- UN's torture investigator previously?

ERELI: Right. She is going to Guantanamo and being provided the same degree of access that have been provided to hundreds of members of our Congress, as well as members of the -- thousands of members of the press, and the same degree of access that was offered to the UN Special Rapporteurs.

QUESTION: Mr. Kellenberger is --

QUESTION: Limited access in other words?

ERELI: Access appropriate to her authority and her mandate.

QUESTION: Mr. Kellenberger - there are two interpretations at least to what he's saying, but he says the Red Cross wants access without geographical -- without any geographical limitation... from your view, from the US view, are you limiting access in certain areas, like Guantanamo?

ERELI: I don't have details for you, Barry.

QUESTION: Sorry, just to clarify. You said that some prisoners aren't subject to the Geneva Convention.

ERELI: No. I said that -- be clear about this.

QUESTION: You did say --

ERELI: Let me clarify then. Under the Geneva Conventions, we are required to provide access to prisoners of war or others protected by the convention. Members of al-Qaida detained by the United States are neither prisoners of war, nor protected persons, therefore there's no legal requirement to provide ICRC access to them. Nevertheless, and even though we're not required to do so, we do provide access to the vast majority of detainees under our control, and we do accord Geneva protections to them.

QUESTION: That's your interpretation of the Geneva --

ERELI: That's our -- no, our interpretation is we're not required to; our policy is we do.

QUESTION: Okay. But then the Secretary has gone around Europe saying that we abide by international laws.

ERELI: Yes, and so.

QUESTION: But countries --

ERELI: There's no inconsistency between those two statements.

QUESTION: (Inaudible) saying prisoners aren't subject to the Geneva Convention, which brings on the other question (inaudible) all prisoners then subject to (inaudible.)

ERELI: Let's take a step back. Let's take a step back. The Geneva Convention covers prisoners of war. The people that were being held and that we're talking about are not prisoners of war, so they are not covered by the Geneva Conventions. Nevertheless, they're al-Qaida, they're terrorists, they -- for a variety of legal reasons and by a variety of legal definitions, they do not qualify as prisoners of war. Nevertheless, we're treating them consistent with the Geneva Conventions, so we're going the extra mile here.

QUESTION: Except for that access issue.

ERELI: Well, there are some -- there are some that we choose or that we -- that as a matter of law and policy, we do not apply those provisions to. And those are, as I was telling Barry, exceptional cases that pose unique threats to our security.

QUESTION: Isn't the United States engaged in the war on terrorism, but is that rhetoric, meaning it isn't a declared, congressionally authorized, God knows, war? Is that the hang up? We are, according to the President, every day, several times a day, the US is involved in a war to counter terrorism.

ERELI: Yeah.

QUESTION: Now, that's not the kind of war that is covered by the Geneva Convention, I take it?

ERELI: Well --

QUESTION: It's certainly an informal war --

ERELI: -- what you're asking, frankly, is to get into a legal explanation of what a prisoner of war is and what a prisoner of war isn't. That is, frankly, something that our experts and our officials have spoken to, on the public record, extensively. And I think we've made the case quite convincingly -- it's convincing to me but -- that the detainees we're talking about are outside the scope or do not qualify as prisoners of war under the Geneva Convention.

In the vast majority of cases, however, as I said before, we are treating them consistent with the Geneva Convention, including access.

QUESTION: Well, let's -- sorry, under international law, if they're out of the scope of the Geneva Convention, are they out of the scope of any other international laws?

ERELI: Good legal question. Can't answer that.

QUESTION: Well, it's an important question because the Secretary of State is going around Europe saying that, you know, CAT applies to all prisoners held in US custody.

ERELI: You're asking me to give you a legal opinion. Not being a legal expert, I can't do that. What I can tell you is that the answer to your question, broadly speaking is, when we have people under our authority, we treat them consistent with any person -- any person -- we treat consistent with our law and our international obligations. And I'll leave it to the -- and that's as expansive as I can be on that.

QUESTION: A US Senator has written a letter to the Attorney General, seeking clarification over remarks made by Secretary Rice, which seemed to contradict with the Attorney General. He quoted Secretary Rice as saying, that as a matter of US policy, the US obligations under the UN Convention Against Torture, which prohibits cruel, inhuman and degrading treatment, those obligations extend to US personnel wherever they are?

ERELI: Yes.

QUESTION: And the Attorney General had said, in a congressional testimony earlier, that the Department of Justice had concluded that under Article 16, there's no legal prohibition under the Convention Against Torture on cruel, inhuman or degrading treatment with respect to aliens overseas?

ERELI: Right.

QUESTION: Do you confirm this?

ERELI: Well, I'll leave it to others to speak to the Congressional letter and the response. There is no -- there is no daylight between the Department of State and the Department of Justice on this issue. And I think if you look at the record carefully, you will see that statements by the Secretary of State are fully consistent and consonant with statements by the Attorney General on the applicability of the Convention Against Torture, including provisions on CID.

QUESTION: You said that only a very small percentage of these enemy combatants -- or however we're describing these people are -- are not provided with access to the ICRC. How many are you talking about when you say a very small percentage? Are you saying, like, five percent, ten percent? Can you give us --

ERELI: I'd say a very small --

QUESTION: I mean, (inaudible) what does that mean?

ERELI: I can't, honestly, because as I said, you know, there are certain -- I can't give you a numerical figure. I can say that it's exceptional circumstances.

QUESTION: There's -- on that point, can you give us a hypothetical -- I wouldn't dare ask you for any real example -- but a hypothetical of what would be an exceptional circumstance that wouldn't allow you to acknowledge to the ICRC, in which you don't acknowledge publicly, but to allow them to see prisoners? What circumstance, hypothetically, might that come up?

ERELI: No, I would say, frankly, that's a matter of, I think, part of the dialogue with the ICRC that I'd just wouldn't like to go in publicly.

QUESTION: Are you discussing the nature of the visit because there's a difference between a Red Cross person coming in and eyeballing the prisoners and dealing with the confines and questioning him. Is the issue how much the Red Cross representative can do if he gains access? Is that --

ERELI: No, the issue is access.

QUESTION: The issue is access. Okay.. It's not an issue of wanting the ICRC to know that you have X person?

ERELI: I'm not sure on that one. I'm not sure.

QUESTION: Well, it's the same question --

QUESTION: Just one more on this subject. I mean, can you just explain again why you cannot give the ICRC access to these people when their reports are confidential? That information won't come out, where they're being held, who they are. There's -- in other words, there's nothing on your side that you're compromising.

ERELI: Well, that's not -- that -- I wouldn't agree with that at all. I would say that, number one, there's no legal requirement to do so. Number two, as a matter of policy, most -- the vast majority are treated under the -- treated consistent with the Geneva Conventions. There's a very small, limited number that are not because of the extraordinary threat that they pose.

Previous Stories:
  UN rights chief: 'war on terror' is violating ban on torture   (12/8/2005)
  Rice says rendition of suspects accused of terrorism within the law   (12/7/2005)
  Rice: US does not torture detained terrorists   (12/6/2005)
  Rice: forces will reduce in Iraq; discuss Palestine issue   (11/24/2005)

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