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Ärende: Press Release (060921a) for Thu, 2006 Sep 21
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Press Briefing by Teleconference with National Security Advisor Steve
Hadley
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For Immediate Release
September 21, 2006

Press Briefing by Teleconference with National Security Advisor Steve
Hadley

5:50 P.M. EDT

MR. HADLEY: This is Steve Hadley. I'll try and describe what we
accomplished today. The work involved both the issue of Common Article III,
which needed to be resolved so that the CIA program of questioning
terrorists could go forward. That was addressed. We also needed to address
some issues involved in the military commissions so that we would have that
instrument for bringing terrorists to justice.

We addressed both of those issues. We reached an agreement that will do
really two things. First, the President said that his sole standard with
respect to Common Article III, so-called Common Article III, was going to
be whether the CIA would be able to go forward with a program for
questioning terrorists. This is a program that has been probably one of the
most useful tools we've had in the war on terror, and has gotten
information that has saved lives, both here at home, and saved lives on the
battlefield. And it was critical for the President. As he said, the sole
test will be whether this legislation will allow that program to go
forward. And the good news is that the program will go forward.

I think it is clear from the legislation that there is now -- the program
will go forward and that the men and women who are asked to carry out that
program will have clarity as to the legal standard, will have clear
congressional support, and will have legal protections as we ask them to do
this difficult work.

And I think you heard in the comments that were made when various senators
came out to speak after we concluded our work for the day, you have both
Senator Graham and Senator McCain talking about that this legislation would
allow the CIA program to go forward. Senator Graham characterized this as
an aggressive questioning program that would go forward in order to save
American lives. So what you saw today was all Republicans coming together
to enable this program to go forward in order to enhance the security of
the country.

In terms of military commissions, we were able to address outstanding
issues that allows the military commissions to go forward and to be
available as a device for bringing -- as a proceeding for bringing
terrorists to justice. If you take these things together, what we now have
is a legislative framework that allows us to capture, detain, question, and
prosecute and bring to justice terrorists. It's a good news day.

Let me mention a couple things about the substance of what was done. In
terms of clarity to the legal standard in connection with Common Article 3
-- there's been a lot of discussion about that -- it's really achieved in
three ways in the proposed legislation. One will be to enumerate those
actions that will constitute violations of Common Article 3, that are grave
breaches of Common Article 3, and those are defined in statute. So it will
be clear from the statute of the kinds of activities which, if engaged in
by men and women who are involved in interrogation of -- in questioning of
detainees, what kinds of activities would subject them to criminal
penalties as grave breaches.

The second is that the Detainee Treatment Act, or the so-called McCain
Amendment, which was adopted in December of last year, is reaffirmed in the
statute, and the statute also provides that the President shall take action
to ensure compliance with this section. As you know, the section prohibits
cruel, inhuman, or degrading treatment or punishment within the meaning of
cruel, unusual and inhumane treatment or punishment as prohibited in the
5th, 8th and 14th amendments -- so-called McCain amendment standard. And
finally, there is a provision that makes clear that the President has
authority as provided by the Constitution and by this legislation, given to
him by the Congress, he has the authority for the United States to
interpret the meaning and application of the Geneva Conventions, including
Common Article III, and to establish standards and administrative
regulations for violations that are less than grave breaches of Geneva
Conventions.

So the standard comes from three places -- a list of actions which would
expose people to criminal liability; a reaffirmation of the standard in the
Detainee Treatment Act and the charge to the President to adopt measures
for enforcing those provisions; and then finally, the option for the
President to provide greater clarity through an executive order process.
And we think that will both give the clarity to the legal standard, and
also make clear congressional support for this program.

In terms of the military commissions issues, I'll just give you a quick
summary. A provision dealing with classified evidence makes sure that no
sensitive intelligence will have to be shared with terrorists or their
lawyers. The bar is very high. There will not be -- the terrorists will not
have access to classified information.

In addition, if classified information is required for the prosecution of a
terrorist, there are a variety of ways in which the substance of the
information can be provided and used at trial without transferring
classified information. And of course, finally, under all circumstances,
information about sources and methods, which is the most important, is
protected.

So that was the disposition of classified evidence. In terms of coerced
statements, so-called coerced statements, or statements that are taken
under circumstances when counsel for the defendant may allege coercion, the
test is whether it is reliable, the statements are reliable and probative,
and if they are, then they will come in. In addition to that standard,
after the date of enactment of the Detainee Treatment Act, there is
additional test to ensure that the methods by which any information was
obtained are consistent with the standards of the Detainee Treatment Act.

So that was the resolution of that issue. And finally, on the issue of
hearsay evidence, prosecutors will have wide latitude to use hearsay
evidence, and the burden will be on the accused to show that the statement
is unreliable or lacking in probative value.

Let me just say that, as you heard from the meeting we had after our
discussions, there are still some differences of view on classified
evidence between Chairman Hunter in the House, and Senator Graham on the
Senate side. There's been the start of a very good discussion of them
between them on that issue, and I think -- the point is I am very confident
that they will come up with a resolution that will protect classified
information from falling into the hands of terrorists, and still allow our
prosecutors be able to go forward and bring terrorists to justice.

So that was done. And again, I think what you saw today was everybody
involved in these discussions coming together behind the proposition that
this country needs a CIA program to question terrorists; it now has the
legal framework to have such a program. And that, in addition, we need a
military commission instrument for bringing terrorists to justice, and we
now have a statutory framework that will allow prosecutors to go forward
with those proceedings. So, bottom line, good progress.

More to do. As the President said, he is hopeful that all the work can be
done so a bill can be on his desk next week. And that's what everybody is
shooting for.

Thank you very much. And I'd be glad to take some questions.

Q Can you tell us a little bit more about the executive order? Will he
outline acceptable interrogation techniques for the CIA in that, or is it
more what kind of techniques can be banned? Can you fill that out a little
bit more?

MR. HADLEY: Yes. I think what he will do is give some standards and
regulations. As you know, specific techniques are classified. The reason is
if there's public discussions of techniques, then the terrorists are able
to train against them. So you will not see specific discussion of
techniques. But what you will find is additional guidance as to standards
and regulations for what Common Article 3 requires short of the issue of
grave breaches. It's part of this effort through these three devices I
described to give clarity to those who carry forward the program.

And again, this whole effort is to get a legal framework supported by the
Congress. The President, of course, had authority to do this under his
powers of Commander-in-Chief, but what we wanted to do was to have an
additional legal framework supported by the Congress as part of this effort
to give clear guidance and to make clear that the Congress supports what
we've asked of these men and women at the CIA.

Q About the regulations that are going to be drawn up, as I understand it,
and I want to make sure I understand it correctly, these are regulations to
govern offenses that are, in essence, lesser offenses, not covered by the
5th, the 8th, and the 14th Amendments under the DTA?

MR. HADLEY: They are lesser than the grave breaches, the criminal
provisions that are set out. These would be additional standards that would
apply. Of course, you're right, there is the Detainees Treatment Act; that
continues to be a standard, and the President will adopt some regulations
to enforce that.

Q But what I'm getting at is, the Detainee Treatment Act speaks
specifically of the American constitutional bar to cruel and unusual
punishment --

MR. HADLEY: Correct.

Q -- in case law. And is that the standard beyond which anything else is a
lesser offense, like two men sharing a cell and using the same latrine? Or
does American case law govern what is a serious offense, and the President
writes regulations for everything else?

MR. HADLEY: Clearly, in terms of U.S. law, we're going to look to the
criminal provisions and also the Detainee Treatment Act. There, of course,
is the fact that the treaty provides, and the Geneva Convention involves
obligations of the United States not under domestic law, but also under
international law. And this provision recognizes that it is the President
that interprets treaties. And what it allows him to do is to provide
guidance to our men and women as to what is required of them in order to
comply with the international law obligations of the United States.

Q But the problem I'm having is nobody gets prosecuted under the Geneva
Conventions. They get prosecuted under the War Crimes Act, and the War
Crimes Act speaks of grave offenses.

MR. HADLEY: Correct.

Q And are those grave offenses the same as what is defined under the
Detainee Treatment Act as unconstitutional behavior in violation of the 8th
Amendment?

MR. HADLEY: No, the grave breaches are violations of criminal law. The
Detainee Treatment Act is not a provision of criminal law, as adopted in
December of last year, and as re-codified in this statute. It is a
statutory provision that puts prohibitions on people, makes clear what
activity and what conduct is expected and not expected of the men and women
in this program. It does not create criminal liability.

Q Does not create criminal liability for what?

MR. HADLEY: Correct.

Q For what?

MR. HADLEY: For violations of its terms. If you want to know what you're
going to be held to criminal liability for, you look at the provisions that
deal with grave breaches. They're violations of Title 18. If you want to
look at the guidance and the standards that we're going to hold our people
to, and that give them clear guidance about what is required and not
required beyond the issue of grave breaches, you look at the Detainee
Treatment Act. And finally, again, those define obligations under U.S. law.

And if you want to know what additional obligations there may be under
international law, that is what the President will provide guidance to in
his constitutional authority, and backed up now by the congressional
delegation, to define U.S. obligations under treaties.

Q Got it.

Q In enumerating actions that constitute violations, or actually that
constitute grave breaches of Common Article 3, could you give us an example
of what two or three of those grave breaches would be?

MR. HADLEY: I'll give you a couple in terms of prohibited conduct --
torture, cruel or inhuman treatment, performing biological experiments,
obviously murder, mutilation or maiming, intentionally causing serious
bodily injury, rape, sexual assault or abuse, taking hostages. These are
the kinds of things we're talking about.

Q I see. So water boarding would fall short of that then, right?

MR. HADLEY: As I said, we are not going to get into discussions of
particular techniques. This is to give clear guidance to our men and women
in uniform in terms of what are the things that put them at risk for
criminal prosecution; what is the standard that otherwise governs their
conduct, which is the Detainee Treatment Act. And again, for purposes of
complying with our international obligations under international law,
that's something that the President will clarify by executive order.

So if you take those three things together, we think we've met the
President's requirement that our men and women who run this program have a
clear guidance and clarity on the legal standard that applies to their
activity. And you do that by defining the legal standard, but we would not
be getting into specific legislating techniques. That would be a bad
course, and no one in this process has argued for that.

Q Got you. Thank you very much.

MR. HADLEY: Yes.

Q I'm with the editorial page, so we're not double-teaming you. Mr. Hadley,
are you confident that -- both in the President's statement, he said his
test is whether the program could go forward. And you said you're satisfied
with that. Does that mean that every single technique used in interrogation
up until now is, as you see it, permissible under this agreement?

MR. HADLEY: Again, I don't want to go in specific --

Q I'm not asking for --

MR. HADLEY: I know -- I know --

Q -- specific procedures.

MR. HADLEY: Let me -- I'm going to answer your question. This isn't a
dodge. If you look at the President's speech of two weeks ago Wednesday, he
said very clearly, we're going to first get clarity as to what the legal
standard is so people know what they can do and not do -- what is the legal
standard under which they're going to be judged. And then in light of that,
Mike Hayden was going to go up and consult with appropriate members of the
House and the Senate about the kind of program he would propose to run
under that legal standard. And that, in turn, is the program that he would
ultimately recommend to the President of the United States for approval.

That's the process we're in. We've now got step one. We've got clarity on
the legal standard. Mike will now have his consultations about the kind of
programs he thinks he wants to run under that legal standard. And having
consulted with the members of the Congress, he will then make his
recommendation to the President.

Q Just to follow up, is it conceivable that a technique that was used in
the past would not be permissible henceforth after this process is
finished?

MR. HADLEY: Obviously, what we want to do is come up with, and what he
wants to do, is come up with a program that is supported by the executive
branch, supported by the Congress, and is one that his people will feel
comfortable running and will be -- have clear legal protections in the
operation of it. And the bottom line, of course, of all of this effort is
to get an effective means of getting information from terrorists who have
information that we need to get in order to disrupt plots and protect
Americans. And so the bottom line is we've got now a legal framework. He
will now consult about the kind of program he wants to run under that legal
framework with the Congress, make recommendation to the President. And what
he will be recommending to the President is what he judges to be an
effective program to help defend the country.

Q Okay, thanks.

Q Could I get clarification on the classified evidence? You have said that
the detainees and their attorneys will not have access to sensitive
evidence. And there are a variety of ways you said in which the evidence
can be used a trial without transferring the classified data. They will not
have any -- about sources and methods. The argument from Warner, McCain and
Graham was that they don't want to see anybody convicted who doesn't have
access to all of the information. So how was that reconciled?

MR. HADLEY: There are really two different things here. One is the ability
in a discovery process for a defendant and his attorney to get classified
information. And we have a very high bar that is going to present that --
is going to prevent that. So in terms of the ability of the defendant and
his counsel to, as of right, get classified information, they do not have
it. And the legislation is very clear on that.

And to the extent there is exculpatory evidence that is involved, that will
be provided to them, but in an unclassified form. So the first key piece of
this is there is a very high bar to protect classified information from
getting in the hands of terrorists. So that's on the defense piece. There's
a shield to protect classified information from terrorists.

On the flip side, on the so-called sword piece of it, the question is, will
prosecutors be able to use classified information in their proceedings. And
the answer there is that the statute provides for a variety of means by
which the substance of statements they want to get in could be used with
respect to the jury, and provided to the defendant and his or her lawyer,
but not in classified form. So that they would be deleted of information --
classified information would be deleted from the document, or a summary of
the information in the classified documents would be prepared -- basically
a way to get the substance before the defendant and into the trial, but
without sharing classified information either with the defendant or his
attorney.

Q But if the defendant or the attorney do not have access to redacted
information in the classified data which may be pertinent to the
conviction, how does that pass muster?

MR. HADLEY: That is the business of the person who runs the tribunal --
will make those kinds of judgments. And they will have access to the
redacted -- they will have access to the redacted version, and it is going
to be for the trial judge, if you will, to -- basically, the military judge
on motion of the trial counsel shall authorize these procedures. So it's
under the supervision of the military judge.

The issue that was joined between Senator Graham and Chairman Hunter was
the following narrow issue, which is one we think effectively is unlikely
ever to come up, which is, in the end of the day, if a prosecutor wants to
use classified information and feels that those various devises or means of
getting the information available to the prosecutor, but taking out or
eliminating the classified piece -- if at the end of the day, those don't
work for the prosecutor and the prosecutor wants to actually use classified
evidence at trial, does he have to give it to the defendant, or not?

Senator Graham says, absolutely not. If the prosecutor wants to use the
classified information at trial, it's got to be given to the defendant and,
of course, the defendant's lawyer. Chairman Hunter takes a different view.
Chairman Hunter says that in the extreme case, he would like to keep the
door open to the possibility that classified evidence and classified
statements could be used with the jury without being shown to the
defendant.

Our own view and our approach is that we think the likelihood of that
situation occurring is remote, to say the least. And so, in our approach
we've tended to side with Senator Graham. But it is an issue that is --
that they have not resolved. It is an issue between the Senate and the
House. They are engaged in that issue now. But the rest of what I've
described is agreed. So we're really talking about what we in the executive
branch think is a fairly remote case. That's the issue between the two of
them. And I'm pretty confident, in the end, they'll come up with a
mechanism that both protects classified information and, at the same time,
allows prosecutors to go forward in a way that's fair to the defendant.

Q Just to make this clear, so are there cases in which a defendant and his
or her attorney would have access to the classified date if the prosecutor
wanted to present it in court?

MR. HADLEY: In the approach that Senator Graham has urged, if a prosecutor
wants to use classified information in court, he would have to give it to
the defendant and the defendant's counsel.

Q And did you agree to that?

MR. HADLEY: We think, at this point in terms of what we've agreed with the
Senate, our view is to -- we think that's a good approach because we think
the likelihood of that situation actually occurring is very remote.
Chairman Hunter said he's got a different view; he wanted an opportunity to
look at what we came up with the Senate, to be able to make a case that
there might be circumstances under which classified information should be
used at trial and shared with the counsel, but not with the defendant. And
we all basically said, okay, we will all keep an open mind to hearing
Chairman Hunter on that issue. And that's what Senator Graham agreed to do,
and that's what we in the administration agreed to do.

Q Just to put a coda on this, so when you say this will keep classified
information out of the hands of terrorists and their attorneys, that's not
a hundred percent accurate?

MR. HADLEY: It depends on how this last five percent issue gets resolved.
But I would say this: that if a prosecutor -- the big point I would want to
make is that if that situation occurs and classified information is
provided, it will only be because the prosecutor has chosen to do so. There
will be no situation where, as of right, a defendant can, through
discovery, get access to classified information. Everybody agrees that
needs to be precluded.

Q Got you. Thanks for clearing that up.

Q Thank you, Mr. Hadley. Mr. Hadley, you said, on coerced testimony, it
could come in if it was reliable and probative, but then it would be
examined to see if the methods by which it was obtained were consistent
with the Detainee Treatment Act. At what point would that examination
occur, and who would make the judgment?

MR. HADLEY: That second standard applies, of course, only for statements
that had been obtained after enactment of the Detainee Treatment Act, and
it is the military judge, of course, that would make that determination.

Q Based on evidence presented by the defendant and his or her attorney?

MR. HADLEY: And additional information in front of the judge that allows
the judge to meet the standard. And obviously, the judge could ask for
showings from the prosecutor, and obviously, the defendant would have an
opportunity to express their view.

Q Thank you, sir. And if the judge determined that it was coerced beyond
the terms of the DTA, then it would not be allowed, and vice versa?

MR. HADLEY: The judge can rule it out. Exactly right.

Q What did the administration give up in this negotiation? Because it seems
like you got everything that you asked for.

MR. HADLEY: This was a situation where both the Congress and the
administration shared a common objective. And what we did in a fairly
creative way was come up with ways that we could all support to achieve
that objective. And that's really what I think is the most important thing.
And it really came out of the commentary subsequent to the President's
speech of two weeks ago, that everybody came together on the proposition
that we need this very important program to go forward. It's one of the
best tools we have in the war on terror. We need to do it in a way that
gives clear guidance to our men and women in -- our men and women who run
this program, clear congressional support, and legal protections. And
everybody agreed we ought to try and do it in a way that did not involve
modifying or amending our international obligations.

That was the objective that we all came to here in the last week. And the
goal was whether we could find language mutually agreed between the Senate
and the White House that would achieve those objectives. And the good news
is, we could and did.

Q Was there anything that you didn't get that you would have wanted to see
on this?

MR. HADLEY: I've said all I said -- I can say on that issue. I just want to
thank everybody for their time, and thanks very much for your time and
attention.

Q Thank you.

END 6:22 P.M. EDT

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