WHITE HOUSE BACKGROUND PRESS BRIEFING WITH SENIOR ADMINISTRATION OFFICIALS SUBJECT: EXECUTIVE ORDERS LOCATION: THE WHITE HOUSE, WASHINGTON, D.C. TIME: 12:04 P.M. EST DATE: THURSDAY, JANUARY 22, 2009
SR. ADMINISTRATION OFFICIAL: I thought what I might do first is describe the process that we went through, as we worked on these executive orders, and then maybe to walk you through the executive orders and then answer any questions.
Soon after the election, the president-elect asked me to put together some task forces associated with the transition that would take the promises that he made to the American public, in the campaigns, and consult with experts in and out of government, people that had experience in these areas, to come up with executive orders that would take his campaign promises and make them reality.
His first instruction, he said, job one, we have to make sure that the American public is protected. And we don't want to compromise the security and the safety of the American public. At the same time, we want to respect the rule of law, our constitutional values and achieve those objectives that he'd outlined in the campaign.
The first executive order that he signed this morning involves Guantanamo. And in this executive order, he makes a commitment to close the detention facilities at Guantanamo Bay as soon as possible and no later than one year from the date of this order. He outlined the process by which this is to be achieved.
He establishes a reviewing group composed of the attorney general, the secretary of Defense, the secretary of State, the secretary of Homeland Security, the director of national intelligence and the chairmen of the Joint Chiefs of Staff or their designees, along with other officers or full-time permanent employees of the United States, to conduct a review of the facts and the circumstances, the intelligence information and the evidence associated with each and every one of the detainees currently being held in the detention facilities in Guantanamo. Part one of that is to consolidate all the information in the executive branch relating to each and every detainee in one location so that the reviewing board can look at the relevant information.
The first order of business is to determine, based on this evidence, which of these detainees can be transferred, as rapidly as possible, to countries that would receive them, to other governments that would be willing to accept them. This will happen on a rolling basis. In other words, we're not going to wait until we've identified x number of detainees to be transferred. Every time someone becomes eligible for transfer, we will be working hard to arrange for that transfer, that repatriation to occur.
As part of this executive order, there is a directive to the secretary of State to expeditiously pursue and direct any negotiations and diplomatic efforts with foreign governments as are necessary to achieve this objective.
The second decision that this panel will make is to identify a population that is not transferable but that can be tried in American courts, courts-martial, or maybe with improved military commissions.
And I'll talk about the military commission situation a little later.
There is a third category of detainees, which are not transferable and because of the state of the evidence are not triable in American courts. He has asked this panel to give him recommendations as to how this third category of detainees should be treated.
In addition to -- and that's -- that breaks down the population in Guantanamo.
In addition to that particular mission, he has asked the secretary of Defense to scrutinize the current standards of confinement in Guantanamo to make sure that they are consistent with our Geneva Convention obligations and to report back on the current conditions in Guantanamo within 30 days.
Now, as to the military commissions, as you know, soon after he was sworn into office as president of the United States, he asked the secretary of Defense to request continuances -- that's lawyer-speak for a stay in the proceedings -- in the military commissions until such time as we have had an opportunity to look at the facts and circumstances about each detainee and make our decision as to how we're going to treat these detainees -- whether they're going to be transferred, whether they're going to be tried, whether they're going to be in the third -- the third category.
It may well be, for example, that this panel makes a recommendation that the military commissions should be modified or changed. This order does not eliminate or extinguish the military commissions, it just stays all proceedings in connection with the ongoing proceedings in Guantanamo.
The second executive order ensures lawful interrogation. And the -- the headline and the gist of this executive order says the following: "The Geneva Conventions apply to each and every detainee in the custody of the United States of America." This has been a subject of debate in past administrations; that's clarified now. Anybody in the custody and control of the United States of America as a detainee is covered by the Geneva Conventions, and all executive branches -- branch agencies and bureaus are required to respect Common Article III of the Geneva Conventions as a minimum baseline.
In addition, this executive order states that the CIA shall close, as expeditiously as possible, any detention facilities that it currently operates, and shall not operate any such detention facility in the future.
The executive order goes on to say that the International Committee of the Red Cross will receive notification and registration of all detainees in the custody of the United States of America and will be given access to those detainees as required by the Geneva Convention and consistent with the Department of Defense regulations and policy.
It also, this executive order, instructs all executive-branch agencies and bureaus to comply in interrogating individuals in our custody and control, consistent with the Army Field Manual. So there will be no interrogations conducted in the executive branch in the future that are inconsistent with the standards, guidelines and interrogation techniques laid out in the Army Field Manual.
Finally, this interrogation executive order creates a task force that will recommend to the president, if need be, new policies on interrogation and transfer policy. This order -- deals with the CIA detention facilities, and it deals with interrogation techniques. It asks this task force to report back to the president on the question of transfer of detainees, on the issue of rendition, and make recommendations on that; and, in addition, to consider whether the Army Field Manual, which was designed for use in the military, in combat situations, on the field of battle, whether there should be a separate protocol that deals with intelligence interrogation standards and guidance, which are more appropriate to the intelligence situation, as opposed to the battlefield.
And so this is not an invitation to bring back different techniques than those that are approved inside the Army Field Manual, but an invitation to this task force to make recommendations as to whether or not there should be a separate protocol that's more appropriate to the intelligence community.
The third executive order asks a panel composed of the attorney general, the secretary of Defense, the secretary of State, the secretary of Homeland Security, the director of national intelligence, the director of the Central Intelligence Agency and the chairman of the Joint Chiefs of Staff, and other officers as appropriate, to conduct a review and, consistent with the laws and the Constitution of the United States, to make recommendations as to policies, going forward, for the detention, trial, transfer, release or other disposition of individuals captured or apprehended in connection with the war on terror.
This is to set forth a policy for the future handling of detainees in order to avoid the problems associated with the past policies. That interagency task force will report back to the president -- what is the time frame?
SR. ADMINISTRATION OFFICIAL: One hundred and eighty days.
SR. ADMINISTRATION OFFICIAL: Within 180 days.
Finally, he signed a memorandum to the attorney general, the secretary of Defense, the secretary of State and the secretary of Homeland Security and the director of National Intelligence asking them to conduct a review, a factual analysis of the basis and the circumstances surrounding the detention of Ali Saleh Kahlah al-Marri, who was the subject of a Supreme Court case. And that review and that examination will be conducted of al-Marri, just as it is being done of the detainees in Guantanamo.
The separate memorandum was required because, as you know, al- Marri is not in Guantanamo, he's in another facility, and so -- but he is going to get the same kind of factual and status review as the other detainees.
Have I left anything out?
SR. ADMINISTRATION OFFICIAL: I think the only thing that I'm not sure you mentioned is, in the interrogation order it also prohibits reliance on opinions by the Office of Legal Counsel or by the Justice Department that related to interrogation during the period September 11, 2001, and January 20th, 2009. So that there's not -- there has not been an opportunity to review all those opinions, but reliance on them is prohibited.
SR. ADMINISTRATION OFFICIAL: Let me just say that these four executive orders, with the request for reviews, set forth the policy of the United States government going forward with respect to all these areas.
Anybody have any questions? Sure. Why don't you call on these people, because I -- (off mike).
STAFF: All right, Jake -- (off mike).
Q Thanks. I might have missed it, but do you guys have any sort of policy when it comes to rendition?
SR. ADMINISTRATION OFFICIAL: We've asked the panel to review all the public policy concerns and interests in rendition and report back to the president. The reason for this, Jake, is because there are some renditions that are, in fact, justifiable, defensible, and there are others that have been mistakes and are not justifiable. There's not sort of a statement -- a broad, all-encompassing statement that can deal with renditions requires careful study to do it correctly.
And so we're asking this panel to report back to the president with recommendations on policy to deal with renditions in the future.
Q That's part of Executive Order 3?
SR. ADMINISTRATION OFFICIAL: The interrogation.
SR. ADMINISTRATION OFFICIAL: The interrogation -- that's 2.
Q Okay.
SR. ADMINISTRATION OFFICIAL: That's 2.
STAFF: Jeff -- (off mike)?
Q Yeah, thank you. Jeff Mason with Reuters.
SR. ADMINISTRATION OFFICIAL: Hi, Jeff.
Q Two questions. One, what makes a prisoner not try-able? That was one of the things that you listed. And two, could you give a few more details on an improved military commission? What -- how would one imagine that being?
SR. ADMINISTRATION OFFICIAL: I just want to interject, before you answer that. On the last one, on the rendition question: Just to be clear, rendition continues during the (pendency ?) of a review. That's -- that policy has not stopped during (the review ?).
SR. ADMINISTRATION OFFICIAL: Do it again -- what makes a person not try-able?
Q What makes a person not try-able, and how do you define or how can one imagine an improved military commission?
SR. ADMINISTRATION OFFICIAL: Well, first of all, at that point, you're asking me to second-guess exactly what the panel is going to be doing in each case, because there's a panel looking at the population.
And hypothetically, I would say that if there is evidence to suggest that an individual -- that is, a detainee -- is very dangerous, and there's reason to be concerned that he would be a danger to the United States of America, to American citizens, if he is released or transferred to other authorities, but there is not evidence -- this is a -- sort of a prosecutorial-discretion question -- but there is not evidence that would be admissible in a court of law that could be used to prosecute, convict and sentence him, that is a difficult third category of detainees that the panel will come back and make recommendations on how we deal with that category.
But that's the way I understand that category to be. There's one category that we can transfer. There's one category that we can try. The third category can't be transferred, can't be tried, but we've got to figure out a way consistent with our values and the rule of law, but our -- also our national safety, to deal with these people.
And what was your second one?
Q Military commission. (Off mike) -- improved military commission.
SR. ADMINISTRATION OFFICIAL: The panel that is being asked to make recommendations about this third category of detainees can also look at the variety of ways in which these people could be handled. And it may well be that they've got -- they may make some recommendations on how the military commissions could be improved going forward.
(Cross talk.)
Q (Off mike) -- the military commissions, after they're halted, may continue -- (off mike) -- be thrown out?
SR. ADMINISTRATION OFFICIAL: That's true. That option is still on the table.
Q Thank you.
Q Let me try to reconcile a couple things, please. Jennifer Loven with the Associated Press. You said that interrogators will not use techniques outside of the Army Field Manual --
SR. ADMINISTRATION OFFICIAL: That's correct.
Q -- and that CIA detention centers will not exist either now or in the future.
SR. ADMINISTRATION OFFICIAL: That's correct.
Q But then you talked about at least two task forces or inter-agency panels that will look at policies that could reintroduce these ideas. Can you talk about --
SR. ADMINISTRATION OFFICIAL: No, I didn't say that.
Q You said they would look at detention centers; they would look at an interrogation protocol that might be separate from the intelligence --
SR. ADMINISTRATION OFFICIAL: That's correct. That doesn't mean reintroducing techniques that are inconsistent with the Army Field Manual. It talks --
Q I'm just not sure I understand what that means; how they -- how to reconcile those.
SR. ADMINISTRATION OFFICIAL: Well, the guidance for the military was established to guide officers, noncommissioned officers on the battlefield in circumstances that are military. And so, as the intelligence community says to us, "You know, that's fine for the military. We have different circumstances and different conditions. We have, in fact, much more professional, experienced interrogators. We need a protocol that may be more appropriate for the intelligence scenario rather than for the battlefield scenario."
That doesn't mean -- you shouldn't jump to the conclusion that that is going to authorize enhanced interrogation techniques that are inconsistent with the Army Field Manual. That will not happen. The Army Field Manual will be what governs in terms of interrogation techniques.
Q Then what would be a separate protocol?
SR. ADMINISTRATION OFFICIAL: The task force would make that recommendation and find out.
Q (Off mike) -- said the Army Field Manual is about that thick and it has a lot of good details, step by step guidance. So, you know, the argument is maybe that experienced interrogators don't need all that supplement --
(Cross talk.)
SR. ADMINISTRATION OFFICIAL: Let me just say, this is not an exception to the --
Q That's what I'm trying to understand.
SR. ADMINISTRATION OFFICIAL: No, there's no exception. And in fact, the panel may well conclude that the way the Army Field Manual functions now is perfectly okay, but there may be merit in the argument that some of the standards and the guidance associated with the Army Field Manual are not applicable to intelligence scenario. And we're not talking about different techniques. We're talking about guidance and, you know, how you go about doing something as opposed to how you question somebody.
And so this is not a secret annex that allows us to bring the enhanced interrogation techniques back. It's not.
(Cross talk.)
Q I have two questions. One, as you know, Senator Feinstein has introduced legislation that would require adherence to the Army Field Manual.
Is the administration going to support that, or are you worried that that will tie your hands in the future?
And second, you say the task force in 180 days will report back on the practical applications on the ground in Afghanistan. Does that mean that for the next six months suspects -- terror suspects who are apprehended by American authorities will continue to go to Bagram, or are we going to send them to Afghan prisons like NATO does?
SR. ADMINISTRATION OFFICIAL: Well, they're not going to be going to Guantanamo, I can tell you that.
We are not changing current detainee policies in the military right now, but we're looking at them. And they will come back and make -- this panel will come back and make recommendations to the president going forward as to how to handle it. So those detainee practices that are current will continue until the report comes back.
Q What about the Feinstein legislation?
SR. ADMINISTRATION OFFICIAL: We are in close consultation with Senator Feinstein. We're working together on this. And you'll have to ask her about what her plans are consistent with what we've done. But we are working together.
Q Is there any reason why you would oppose that?
SR. ADMINISTRATION OFFICIAL: We are not opposing it at all.
Major?
Q You offered three categories of the population.
SR. ADMINISTRATION OFFICIAL: Yes.
Q Can you give us a rough number, based on the experience you've had reviewing the evidence so far, how that breaks down?
And secondly, no country has stepped up yet to offer, in a diplomatically recognizable way, a willingness to take some of these detainees. Can you communicate with us what you've heard so far that leads you to believe some of these nations will step up?
SR. ADMINISTRATION OFFICIAL: Major, one of the problems is that we have not had the review of the detainees in Guantanamo that is required to answer your first question. That has not been available to us. It's -- as I said, the information is scattered throughout the executive branch. That's why we need the review, to answer precisely the question that you're asking.
On the second, we have not been, until beginning yesterday, in direct communication with other countries or other governments, because we were not in the executive branch yet. That's beginning as of yesterday, and we soon will be able to answer that question.
I have a feeling that there's going to be -- we're hopeful that many governments and many countries that have not been forthcoming to date will be forthcoming in the future to assist us in solving this problem.
Q Jonathan Landay with McClatchy. In his testimony last week at his confirmation hearing, Jeh Johnson told the Armed Services Committee that he and the president-elect had predispositions to trying detainees in civilian courts, not in military commissions, and not in courts-martial. Can you talk about why that decision was not made today in the executive order, if the president does have a predisposition to going to the civilian courts?
SR. ADMINISTRATION OFFICIAL: Well, it doesn't comment on whether there's a predisposition or not a predisposition. It asks the panel to make a judgment as to which individuals can be tried and which cannot be tried. And so it's asking the panel essentially to exercise a prosecutorial discretion as to what the evidence is. I think the president, when he was running for office, also expressed a predisposition to resolving these in the existing systems of criminal justice that we've got. But he understands that that third category of detainee is a problematic category, and he's looking for guidance from the panel.
Q Is this panel --
(Cross talk.)
Q Is this panel going to decide where in the United States these folks would get transferred to? Are they going to be making those recommendations, or is that a separate -- (off mike)?
SR. ADMINISTRATION OFFICIAL: This panel will also make recommendations as to where --
Q -- where they get housed?
SR. ADMINISTRATION OFFICIAL: -- they get housed --
Q Are they going to consult on local -- you know, obviously there have been a ton of senators who are, like, not in my backyard. I think Sam Brownback, the senator from Kansas --
SR. ADMINISTRATION OFFICIAL: Every senator, I promise, I say we're not going to send anybody. (Laughter.)
Q And also, quickly, on the countries, is there going to be a -- if a country --
SR. ADMINISTRATION OFFICIAL: You'll see it all, Chuck. When you read these, you'll -- every answer.
Q If a country has a detainee policy that is, say, not up to the same status that this administration wants to have, are you not going to transfer detainees to that country, or will that be on a case-by-case basis?
SR. ADMINISTRATION OFFICIAL: It's a case-by-case basis. But let me be absolutely certain about one thing. We are not going to transfer detainees to countries that are going to mistreat them, that will torture them or that will subject them to procedures that are inconsistent with the rule of law.
Q Even if it's their home country?
SR. ADMINISTRATION OFFICIAL: Even if it's their home country, yes. (Absolutely ?). Let me just give you an example. The Uighurs, for example, their home country is China. I can't imagine that we would support transferring the Uighurs back to China. That wouldn't happen.
Q Is the president worried that the quality and level of intelligence obtained from interrogations by the Army Field Manual and not by enhanced interrogation techniques, which the prior administration said produced intelligence that saved lives, that he won't be getting that level of intelligence?
SR. ADMINISTRATION OFFICIAL: Well, he asked us to look very carefully at precisely that issue. And he assembled a collection of senior and experienced people from the intelligence community as well as from former members of the Congress that presided over the intelligence community, and military people. So we talked to people inside of government, we got input from people outside of government, on precisely that issue.
And I think he is satisfied that across-the-board administration of the Army Field Manual will not compromise our national security; and that in fact, by issuing these executive orders, we are strengthening our country; and we are stronger going forward in the battle against the terrorists with these executive orders, making quite clear Guantanamo is closing down and our interrogation techniques are being codified across the board.
(Cross talk.)
Q Are you going to honor or appeal the court orders that the government release the Uyghurs and other Gitmo detainees, who were released by federal judges, and the habeas. And also how are you going to handle these habeas decisions, litigation while this review goes forward?
SR. ADMINISTRATION OFFICIAL: First of all, that's a case-by-case analysis that the Justice Department will be conducting, whether it's the Uyghurs or whether it's the habeas cases. But we are hopeful that the courts will give us more time, to conduct our process, in the hope that we may in fact be able to resolve many of the cases that are currently in front of habeas courts. So we will be seeking, on a case-by-case basis, more time to do that, to allow this process to go forward.
(Cross talk.)
Q (Off mike) -- possibility in this third category that these folks might still be in U.S. detention, for years to come, without any sort of court proceeding?
SR. ADMINISTRATION OFFICIAL: Well, they may be in U.S. detention for years to come. But there will be process. Without any court proceedings, I don't agree with that. There will be some --
Q (Off mike.)
SR. ADMINISTRATION OFFICIAL: I don't know, because the panel has not yet come back and made recommendations on how to deal with these people. And by the way, let's just get this straight.
This is by far the most controversial element of this entire package of how you deal with this third category. And some people feel that it should be -- have national security courts, that we should have new legislation and create a new system to deal with this third category. Other people feel, if you can't try them, you ought to release them.
So there -- I think those are the parameters that we're looking at, somewhere in that range. But I'm not going to tell you what it's going to be right now. Everything is on the table.
(Cross talk.)
Q Is the president open to legislation for indefinite detention, of any of these people, or using his executive powers, to assert that he can indefinitely detain detainees who are deemed to be not triable and dangerous to the country?
And just secondly one other point: So much of this has been cloaked in secrecy; so many questions about what actually took place. Is there any intention, as part of this process, to sort of lift the veil of secrecy about who was detained, how they were detained, how they were interrogated, so the American public can learn exactly what took place?
SR. ADMINISTRATION OFFICIAL: The first question, is the president open to national security courts or --
Q Indefinite detention.
SR. ADMINISTRATION OFFICIAL: -- indefinite detention, either through legislation or through the exercise of his powers: The president is open to, and has invited the recommendations of his panel. So the panel has no restrictions on their ability to make recommendations to the president. So specifically to answer your question, if the panel comes up with those recommendations, the president will consider them.
Now, on the second issue, lift the cloak of secrecy: We're in the process of trying to do that yesterday, today, tomorrow, as much as possible, to get more transparency. We recognize that one of the issues and one of the concerns that many people have is to find out some level of accountability of what happened, a lessons-learned process or something like that. We are trying to figure out exactly how to go forward on that. And we are not announcing anything of that nature, but we're aware of that interest and that concern.
Q Couldn't the Red Cross -- if you're reporting all these folks to the Red Cross, like you say you're going to -- if they chose to?
SR. ADMINISTRATION OFFICIAL: You know, Chuck, the Red Cross has very strict guidelines as to how they conduct their business. And I don't think they do historical reports. I have enormous respect for the ICRC. I've worked with them in the past and gone into battlefield situations with the ICRC. And what they do is try to take the appropriate steps to guarantee the welfare of detainees that are taken in combat. And I think that's -- they don't make public reports, generally. They don't conduct after-action 9/11 commission kinds of things.
Q Do you want them to do that?
SR. ADMINISTRATION OFFICIAL: You know, we haven't made a decision yet how to deal with this.
Q Are legal protections or legal considerations for interrogators in the last six, seven years, or those who made interrogation policies or rendition policies in the last six or seven years, is that an issue that will be considered by this task force? And just to be clear, do all -- are all of the recommendations going to be due in the next 30 days?
SR. ADMINISTRATION OFFICIAL: Well, there's a number of missions that the task force has with respect to policy recommendation and reports, and they're not all going to be required in the next 30 days.
The -- you know, that's simply the fact, that they're going to have -- they're going to take the time required.
STAFF: One more -- (cross talk).
Q How often will they meet?
SR. ADMINISTRATION OFFICIAL: I'm sorry?
Q How often will they meet? The --
SR. ADMINISTRATION OFFICIAL: They have got to develop their own rules. We got to put the commission together. I mean, that's the first. The next thing, now that we've got the order out there, is to start actually implementing the order. And the president himself is personally engaged in making sure that the White House counsel's office and all the members of the panel are working immediately on this task.
STAFF: One last question. Right here.
Q You said that the defense secretary would be given 30 days to review conditions at Guantanamo.
SR. ADMINISTRATION OFFICIAL: And report back.
Q Since it's the same defense secretary, and he presumably knows the conditions at Guantanamo, is there something that you believe is likely to change there, in terms of conditions?
And secondly, in terms of renditions: You said rendition would continue, but the United States would not send anyone to a country that tortures, since we've been led to believe that one of the reasons for renditions was to send people to countries where people could be tortured by third governments. How are you going to avoid that happening?
SR. ADMINISTRATION OFFICIAL: Well, I'm not going to comment on the past policies with respect to rendition. All I'm going to tell you, Karen, is that there's not going to be rendition to any country that engages in torture. And we will only render individuals to governments that we are satisfied -- and we will take every step to gain, I think, solid assurances that the -- these individuals will not be mistreated or tortured.
Q And the first question?
SR. ADMINISTRATION OFFICIAL: The first question was --
Q About the secretary's review of conditions at Guantanamo.
SR. ADMINISTRATION OFFICIAL: Yeah. He may not take 30 days to be able to come back to us. We've expressed our concerns to him about the circumstances that presently are there and asked him to report back to the president either within or before 30 days. He doesn't have to wait 30 days if he has the ability to tell us what he thinks about them.
Q Well, is -- (off mike) --
SR. ADMINISTRATION OFFICIAL: But we've asked him to do that.
Q -- concerned about, like, force-feeding, isolation, things like that?
SR. ADMINISTRATION OFFICIAL: I'm not going to get into the details, Karen. The order, when you read it, is very specific that we're concerned about whether the conditions in Guantanamo Bay Detention Facility are satisfactory in connection with the Geneva Conventions. We've asked him to report back to us on that.
Q One more?
SR. ADMINISTRATION OFFICIAL: Right there. Thank you.
Q What about Abu Ghraib, where all the horrors occurred? Why only Guantanamo?
SR. ADMINISTRATION OFFICIAL: Well, the president didn't ask us to look at Abu Ghraib. The president asked us to look at Guantanamo. That's the answer.
Q (Off mike.)
SR. ADMINISTRATION OFFICIAL: Thanks, everybody.
Robert Gibbs will be back at 1:30, and we'll do our first on- camera briefing at that point. So thank you, everybody.
