Stephen Grey: You're holding hundreds of people under war powers, held without any normal trial. What's your end goal here?
With respect to the people detained at Guantanamo, we are holding them because we have detained them in an armed conflict with al Qaeda; we have a right to detain them. They were not people detained in the U.S., not people subject to our criminal laws, or who could even be tried in our criminal courts. They were people who were captured or detained or turned over to our soldiers in Afghanistan or elsewhere in the world. We are holding them because they are part of a conflict.
John Bellinger joined the State Department in 2005 as the senior legal advisor to Secretary of State Condoleezza Rice. Before that, he was legal advisor to the president and the National Security Council. In this interview with FRONTLINE/World reporter Stephen Grey, Bellinger responds to criticisms that the Bush administration is holding detainees indefinitely at Guantanamo and elsewhere without access to a fair trial and continues to send prisoners to third-party countries where there is probability they will be tortured. "We obviously haven't got it perfectly right," Bellinger tells Grey. "But what we are trying to say is it's not as easy as critics think. What do you do when you clear out al Qaeda training camps in Afghanistan, when every single person is going to tell you, ‘I have traveled from Yemen or Egypt simply to engage in charitable good works and look for a wife?’ Should we simply have let every single one of them go right there on the spot?" The interview took place on May 4th 2007.
We would like to be able to try the ones who have committed specific war crimes -- although we are no required to do so -- and we hope to be able to get going with those trials this year. Many others we are trying to return to their countries to get their countries to take responsibility for them. We have already returned more than 300 individuals from Guantanamo -- not because they are innocent of doing anything wrong but because we've got their countries to take responsibility for them, and we will continue work on doing that.
Do you assert the right to hold these prisoners indefinitely?
Certainly the conflict with al Qaeda can go on for a very long time, and as long as we are fighting al Qaeda, we have a legal right under international law to hold those people. Someone like KSM [Khalid Sheikh Mohammed], who has admitted responsibility for numerous terrorist acts, including planning 9/11, cutting off the head of the journalist Danny Pearl. Does anyone suggest that we shouldn't simply be able to hold that individual, who clearly would go back to acts of terrorism? Now clearly we want to try him with our military commissions for crimes he has committed. But, at the same time, I don't think anybody would dispute that we should simply hold that person. He himself has said that he is fighting us in a conflict.
You picked the most extreme example there. The wider point is you are asserting a right to hold people simply because of the war on terror. What kind of an example are you setting for other countries?
We have not said that these are not easy legal matters. It is a fair point that the war with al Qaeda will go on for a considerable length of time. Now, of course, in any normal war, it looks to those who have been captured that the war is going to go on indefinitely. And you don't simply say that all wars will last for 4 years and 4 months and at that point we will release everybody. They look indefinite from the beginning. But does that mean that after a certain length of time everybody just needs to be released? They are not tried, and yet the war is not over. One of the goals of our policy is to get our allies to realize that this is a legally complex area. People make absolutely fair criticisms that the war will go on for a long time. But the answer can't be simply that because the war with al Qaeda will go on for along time, therefore people shouldn't be detained and should be released to wreak havoc on the rest of society.
Thousands of people have been arrested since 9/11; 10,000 in Afghanistan; 700 in Guantanamo. But you are determined to hold these programs in secret, with no openness about what you are doing with these people.
The tens of thousands that we processed were people who were captured in one way or another on or around the battlefield in Afghanistan. People lose sight of the fact that in Afghanistan this was not a criminal situation. Our soldiers were not there as policemen; we had no law enforcement powers in Afghanistan. So to those who assert that you have to try them or release them, they are applying a criminal law framework, which is understandable. But the only legal authority [by which] our soldiers could detain people in Afghanistan was under the laws of war in a conflict. Now we captured many people; we screened them as best we could. In a normal conflict, you capture people who are wearing uniforms, have dog tags, and you can figure out pretty quickly whether they are a soldier -- unless maybe they are a spy. In this case, everybody who was captured didn't have uniforms, didn't have identifying information.
We've tried to get this right. We obviously haven't got it perfectly right. But what we are trying to say is it's not as easy as critics think. What do you do when you clear out al Qaeda training camps in Afghanistan, when every single person is going to tell you, "I have traveled from Yemen or Egypt simply to engage in charitable good works and look for a wife?" Should we simply have let every single one of them go right there on the spot? We've done the best we can to hold the right people. The ones we have let go, it's not that they are being held in secret somewhere, they were simply released and we probably made mistakes there as well.
The majority of those in Guantanamo were picked up outside Afghanistan in Pakistan. So have you widened your net?
Now remember, many people were captured in Afghanistan; and there were others escaping over the mountains into Pakistan. We thought at one point that bin Laden was in Tora Bora. People now suspect that he is holed up somewhere in Pakistan. I know the concern is that innocent people have been picked up at the wrong place at the wrong time; bounty hunters have turned them in. It simply shows the complexity of this area. It's difficult to tell who is exactly the enemy. I don't think anybody seriously believes despite the criticism that everybody in Guantanamo is innocent and ought to be released.
People in CIA have told us that there was a big sweep and that lots of people in Guantanamo don't deserve to be there. But they can't challenge their detention in a court of law.
On your second point, there is an opportunity for them to challenge their detention in a court of law. There's first of all an administrative review. I think everyone would agree that before you go into court -- these are not criminals who have been captured in the U.S. or Britain -- the initial review is in a military review. Then each of those individuals has a right to appeal his case directly and to have a federal judge hear his case.
You say they have a right to challenge their detention. But you [the administration] are fighting a legal battle to stop lawyers going into Guantanamo to be their counsel in habeas corpus claims. How is this giving them an opportunity to challenge their detention?
I think that criticism is a little bit overblown. All of the individuals in Guantanamo have a right to a lawyer. The question is whether there can be some reasonable restriction... Remember all of these people are down in Cuba. It is difficult to have lawyers for all of the nearly 400 detainees down there every day of every week, or there would be more lawyer visits than detainees. What our Defense Department and Justice Department are doing is what any maximum-security prison would do, which is to strike a reasonable balance between allowing people the absolute need they have for their counsel -- under some reasonable balance. We are not denying them their right to counsel.
Since these detainees have been held in Cuba, there has been no civilian case that has come to trial where anyone has had the chance to challenge their detention.
Actually there are hundreds of cases. Hundreds of the detainees have challenged their detention in the federal courts. Our courts are clogged with litigation brought by the detainees complaining about everything form being detained to the size of the type of Korans that we have given them. Our courts are filled with litigation that has been brought by the detainees in Guantanamo.
But these are military commissions and the criticism is that this allows hearsay evidence. Someone could be sent to their death without being able to face the people who have actually accused them. Is that a just system?
Let's look at the problems of doing a terrorism prosecution. The reason we have a hearsay rule in traditional American courts is that one can usually get the witness; and it is better to get the witness who has actually said something than to get someone who says what that witness has said. But in a case of international terrorism, when the witnesses we are talking about are 3,000 miles away in Pakistan -- one terror suspect said to another terror suspect -- it's very difficult to try to get that individual. In international tribunals, let me be clear about this, we face exactly the same situations. Much has been overblown about using hearsay in military commissions. Hearsay has been admitted in international tribunals for quite a long time. And our judges will evaluate whether it's actually fair to admit the information.
High-value detainees, Khalid Sheikh Mohammed and [al-Rahim al-] Nashiri have alleged they have been tortured in U.S. captivity. But the details of their treatment have remained classified and blocked from the public record. What are you trying to conceal?
In this case, these are simply the initial proceedings -- a Combatant Status Review Tribunal. [This is] to determine whether a person is properly being held -- [is] actually a combatant and not a BBC reporter who was perhaps taken up on the battlefield. So this is not supposed to be a full hearing of every single issue relating to the individual's case. Therefore, some details in the review tribunals do remain classified, including where the person was detained and captured. But when they are ultimately tried in military commissions, all of these details will be able to come out. We, of course, recognize that the individuals will raise concerns about their treatment. If they allege that they have been tortured. Certainly we have seen these allegations. If the judge determines that they have been tortured, the judge will not admit it. No information based on torture will be admitted.
I don't want to prejudge how the military judges will use this information. But the individuals will have the right to hear and address all of the evidence against them. They can't be tried outside of their presence. If they assert that they have been tortured, [if] there have been coercive techniques used against them, then the information may not be admitted unless the judge determines it would be fair, reliable, in the interests of justice to admit the information.
So coercive evidence may be admitted?
Well in British or U.S. courts, coercive evidence can be admitted depending on the level of coercion. There's not a flat statutory bar in a British court or an American court, because if a defendant comes along and says, "Look, they interrogated me for six hours every day,” the judge will probably determine, "Well, you know, a lot of people get questioned for six hours a day. I'm going to admit that." On the other hand, if someone says, "They beat me up every day, beat me into a pulp," the judge probably will determine that that is inherently coercive. What is required, at least in the United States, is that the judge determines; they listen to what they have to say as to whether or not the treatment was acceptable; and that's exactly what will happen in the military commissions.
There has been a lot of reporting about the methods used at Guantanamo, such as sleep deprivation, detainees being subjected to extreme hot and cold temperatures; the use of muzzled dogs. Are you suggesting that statements obtained using those kinds of methods would be acceptable?
I'm not suggesting that at all. I am not prejudging at all what a judge may or may not accept. He may well determine that any particular method is in fact coercive. All I'm saying is that there is not a flat prohibition on the use of coerced evidence -- but nor should there be. It would be impossible to police. If one had a flat bar on coerced evidence, every detainee would say that his statement has been coerced. The judge is not then going say, "OK, fine, out you go." The judge is going to say, "OK, so what happened to you? What was so coercive about it?" The judge is still going to have to go through essentially a fact-finding decision to determine whether this was real coercion or alleged coercion. In the end it is all going to come down to whether the military judge determines whether the treatment of the individual was fair or reliable to allow it to be admitted.
In the rendition program, when you send someone to another country, what kind of assurances do you ask of that country?
I think there is an assumption that we have simply locked people up and are not doing anything about it. It's a bit like the duck's feet underwater -- there's a lot of paddling going on. We are in negotiations with dozens of countries around the world trying to get back their nationals. Since most of the prisoners in Guantanamo came from countries in the near east or Middle East, there are questions about returns to those countries. We have been negotiating for months, sometimes years, hard and fast assurances as to how they will be treated so they will not be mistreated when they go back. We try to get them in writing; we try to get them from a high level of government; and try to get them to be very specific; and we try to get them not just from the Foreign Ministry but from the ministry that will actually take responsibility for them.
Is this just that they won't be tortured? What level of commitment is this?
The legal requirement under the Convention Against Torture [Act] is that they not be returned to a country where it is more likely than not that they will be tortured. And we require countries that we return individuals from Guantanamo to that they assure us that they will comply with that obligation. Sometimes countries don't want to be specific about that. They will simply say, "Don't worry, we will appropriately treat that individual under our laws." One reason that there are so many people left in Guantanamo is that we are reluctant to turn people over to those countries unless we can get very specific human rights assurances. So we are really caught between a rock and a hard place -- we get bashed by our critics for keeping them in Guantanamo; and we get bashed by our critics for returning these people to the countries they came from.
Michael Scheuer [former CIA head of the Bin Laden task force] who set up those renditions has said, “The only good assumption was that they would be tortured."
I can't vouch for what was in Scheuer's mind. Certainly in recent years, the lawyers and officials at the CIA have taken their responsibilities extremely seriously, so that for any transfer of an individual to another country, they get the appropriate assurances. It would be a violation of the law. It is not appropriate and lawful to transfer an individual to a country with the expectation that they will be tortured. That has not been the purpose of the United States in transfers of any individual to any other country, and that's why we've been getting assurances.
You've been doing this since 1995. Do you follow what's happened? Do you have any assurance that places like Egypt, Morocco, etc., have been doing what they assure you they will do?
I can't personally vouch for follow-up in every single case. I can tell you that in recent years there have been changes in U.S. law, policies and practices, to insure that any individual transferred to a country that sufficient assurances are obtained. If sufficient assurances are not obtained, that individual cannot be transferred, if there cannot be appropriate follow-up.
Abu Omar was transferred to Egypt by the United States. He told me, "They fondled my genitals; I was hit on every single part of my body; I was raped; I had a nervous breakdown; I was crucified in all positions." And this torture went on for 14 months. Can you accept this?
I can't vouch for the particulars of that case. When we transfer an individual the purpose is never to have the individual mistreated and we get the assurances necessary to allow that individual to be transferred. What I want to say, particularly after September 11th, is that the United States was taking robust actions to defend itself after 3,000 people were killed. Over recent years, our policies and practices have evolved on a whole score of different fronts; we have new laws where our courts have gotten involved, our intelligence agencies have got much stricter practices.
Would you condemn his treatment?
I simply don't have any information on how he was treated, I can't comment on this particular case.
Is there any country you would say you can't send people to?
There have been a number of people we have said we can't send back. A case in point is the Uighurs [ethnic Muslim minority in China]. They had been training in al Qaeda training camps, and it was not improper to be holding them. But we didn't want to hold them, and only China would take them. Albania agreed to take 5 of them.
What about Uzbekistan?
I'm not aware anyone has been sent out of Guantanamo to Uzbekistan. I have no details about people going to Uzbekistan.
The official reasons given for rendition is not to outsource interrogation but just to get people out of the picture. But people like George Tenet have talked about continuing interrogation -- by outsourcing your hard work of interrogations. Whose human rights record is suspect?
Let me put the question around the other way. Suppose the U.S. finds somewhere in the world a very high-level member of al Qaeda, who has very significant information, tied right in with [Ayman al-] Zawahiri, a key al Qadea figure], but we can't at a particular time tie them into a particular crime in our countries. What do you do with these people? Let them go? Let them disappear? This is the conundrum that we have. In general, what we have done is that if we can't take them to the United States and hold them, and the country that they have come from is willing to take them back, then we will turn them back over to a co-operating country that wants that individual back. Concerns have been raised about assurances about transfers. We have had many reviews about U.S. policy. Most of the cases that you and critics have raised are case from four years ago. But we have moved forward since then. While criticisms may be fair, I would question what is the answer if you find a high-level member of al Qaeda who can't be tried back at home in one of our own countries?
Europeans have been accused of hypocrisy [for hosting secret detention facilities], but you won't allow secret prisons in the United States. Why isn't it acceptable to build such a facility in Virginia?
If we capture a high-level member of al Qaeda, it is important to question that person, and not always appropriate to publicly acknowledge this so that the rest of al Qaeda knows he has been captured. So we think that is appropriate and admissible. We've recently clarified that we don't think that questioning like this should go on for along period of time -- only enough time to get the intelligence information that is needed. And then they will be taken back to the U.S., to Guantanamo, for trial.
But some have been held secretly for 4 or 5 years.
You are talking about the ones who were recently transferred to Guantanamo. I don't think we expect in the future there would be a need for a lengthy detention like that.
The U.S. government has accepted common Article 3 of the Geneva Conventions, which bans cruel and inhuman treatment. What is allowed and what isn't?
The question as to what common Article 3 permits or prohibits is a good one. There is no international definition of what is cruel, humane, or inhumane. That's the problem with these terms -- common Article 3 goes on to talk about not committing outrages on the personal dignity of the person. Is it an outrage on the personal dignity for a Muslim man to be questioned by an American woman? Is it an outrage to simply question his manhood? Maybe.
The U.S. Army Field Manual has banned some extreme things. Are the techniques we've all heard about waterboarding, stress positions, etc? Is that now legal?
The Army Field Manual sets out all of the interrogation techniques, which lay out in a clear unclassified way all of the techniques that can be used by our Defense Department. It specifically bans waterboarding. It specifically bans physical abuse. You can see it all as to what is prohibited and what's permitted. What about the intelligence agencies? By their very nature they do not publicly disclose their interrogation techniques. I don't think European agencies publish their techniques. But these are reviewed by our Justice Department and briefed to our Congress.
But it's not going to surprise an al Qaeda terrorist that these techniques are used.
Again, we simply don't talk about intelligence activities. I haven't seen any European agencies disclosing this; and I don't think the average man on the street in Europe would say this is what his government should do -- disclose everything. They [the interrogation techniques] are reviewed by our Justice Department; they are briefed to Congress; [to] committees who have to be comfortable with them.
Everyone who has complained about the rendition program, those captured in it, have had their cases struck out on the grounds of state secrets.
With respect to intelligence activities, again, no country in the world is going to open up its intelligence activities to admitting, denying specific things. That's simply the reality of intelligence activities. But when there have been allegations of abuse, that our soldiers and intelligence agencies, there have been investigations. Some have even been prosecuted and convicted, both military and intelligence officials. I said this to the U.N. committee on torture -- we are not a perfect country; we make mistakes; and even in a war on terrorism like other countries have gone through in Europe, it takes a while to get things right. But we do hold people accountable.
There have been cases in Iraq where the U.S. Army has paid compensation for abuse. But there is no redress with intelligence agencies.
Mistakes do happen. Governments are made up of human beings; human beings are inherently flawed. With respect to intelligence activities though, one cannot admit or deny specific cases. There have been numerous cases of allegations against U.S. intelligence activities that have just simply been wrong. People seem to think that 1,200 flights through Europe carrying detainees. But no one has ever been able even to suggest there have been more than one or two. The allegation keeps being made that every flight that has been counted has somehow been up to no good.
I'm not saying that. You've suggested that the intelligence agency has a right to keep its secrets. But it’s your choice to use the CIA to interrogate and jail prisoners. But it's their job to collect intelligence.
Yes, the job of an intelligence agency is to collect intelligence. When we are fighting terrorism, perhaps the most important intelligence that we can collect is from the high-level members of a terrorist group that we capture. The people that know the most about al Qaeda are our analysts at the CIA. They are the ones who can tell if someone is telling the truth or telling lies. It's not by choice that the CIA is detaining people -- but they have been asked by the president because they are the experts in knowing about al Qaeda. General [Michael] Hayden [Director of the CIA] has made clear that they [the CIA] do not want to be in the long-term detention business. They accept the responsibility for questioning al Qaeda.
But the evidence collected cannot be used in a normal court of law, because you've undermined any trial.
You are assuming that the purpose of the collection of the information is to try someone in a criminal case. If someone has committed a crime it is useful to be able to try them. But I think everybody would agree that the most important thing is to use the intelligence to prevent the next attacks. We all know al Qaeda is planning more attacks -- against Britain, against the United States, against other countries. The best way to prevent that is not to prosecute the last people, but to collect the intelligence about the next attacks.
Would the U.S. engage in an operation on European soil without that country knowing?
We have been trying very much to engage with our allies. [Condoleezza] Rice and I personally have been engaged in discussions with counterparts. I have visited numerous European countries in order to answer specific questions about the law, and to describe in detail how we see the law; how the law has changed; how our practices have changed. Also to get them to acknowledge that while we understand there has been discomfort with these policies, the legal framework applicable to international terrorism, which some thought perhaps was very clear and the United States had decided to violate the rules, was perhaps not quite so clear. You can't prosecute people in your country when they were never in your country and your laws don't have application over them. And yet the Geneva Conventions don't apply to them [al Qaeda] -- they are not part of a national army. We understand the discomfort people have that people are being held. We have to acknowledge that facing a threat like al Qaeda that it is not homegrown terror but terrorists who are attacking us from abroad with the ferocity of a nation state. We are not suggesting that the law be ignored or changed, but simply that the rules which developed in the last half of the 20th century don't deal with this threat very well. We are engaged in dialogue with our partners and we are working so that we can move forward together through this difficult time. Our Supreme Court has dictated new legal statutes. Our intelligence agencies are subject to new rules. Every country in Europe went through difficult times and had to evolve. The United States has had to do so too. I'm sure we've not seen the last law. We are trying hard to get these things right. We are working hard.