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U.N. Panel Urges Closure of Guantanamo Detention Center

May 19, 2006 at 6:30 PM EDT

MARGARET WARNER: Renewed pressure to shut down the U.S. prison camp at Guantanamo Bay, Cuba, came today from the United Nations Committee against Torture.

It’s a panel of independent human rights experts that monitors compliance with the 1984 Convention against Torture, which the U.S. signed. Committee Chairman Fernando Marino outlined the key findings of the 11-page report at a press conference in Geneva.

FERNANDO MARINO MENENDEZ, Chair, U.N. Committee against Torture: We expressed our conviction that Guantanamo be closed definitively. We indicated that some interrogation techniques used were prohibited by the convention, and we gave concrete examples.

We also indicated that the prohibition of cruel, degrading and inhuman punishment applied to any such activity on foreign territory, and not only within the United States, and this prohibition was mandatory according to the convention.

MARGARET WARNER: The panel said Guantanamo should be closed because, quote, “detaining persons indefinitely without charge constitutes, per se, a violation of the convention.”

“The U.S. should give Guantanamo detainees access to a judicial process or release them,” the panel said, “but not to a country where they might be tortured.” The committee also said that no U.S. prisoners anywhere in the world should not be subject to interrogation techniques like sexual humiliation, waterboarding, or intimidation by dogs.

White House spokesman Tony Snow said today that the questioning of detainees is done “fully within the boundaries of American law.” State Department spokesman Sean McCormack also responded.

SEAN MCCORMACK, State Department Spokesman: Very often we hear these arguments, “Well, you need to close down Guantanamo Bay,” which, you know, eventually, certainly, the United States would like to do, but you have to deal with the people that are in there.

MARGARET WARNER: The Guantanamo Bay facility currently holds about 460 prisoners, most of them captured during the war in Afghanistan. Some 300 others have been released or transferred.

Recent events

Harold Koh
Yale Law School
They start by saying no exceptions, and then they say no exceptions "but," and they cite what are essentially a series of exceptions they'd like to create, that they have to follow only U.S. law, not international laws.

Many prisoners have launched hunger strikes to protest their indefinite detention. Today, the Pentagon reported that at least two prisoners tried to kill themselves yesterday.

Today's U.N. committee call to close Guantanamo follows similar calls from some of America's closest allies. Last week, Britain's attorney general, Lord Goldsmith, spoke on the subject.

LORD GOLDSMITH, Attorney General, United Kingdom: Not only would it, in my personal opinion, be right to close Guantanamo as a matter of principle, I believe it would also help to remove what has become a symbol to many -- right or wrong -- of injustice. The historic tradition of the United States as a beacon of freedom, liberty and of justice deserves the removal of this symbol.

MARGARET WARNER: Fifteen detainees were returned this week to Saudi Arabia, the home country of a majority of Guantanamo's prisoners.

And now two points of view on the U.N. panel's report on Guantanamo. First, Harold Koh, dean of the Yale Law School and former assistant secretary of state for human rights in the Clinton administration.

Dean Koh, welcome. Does the Guantanamo Bay facility as it currently operates, in your view, violate the U.N. Convention against Torture?

HAROLD KOH, Former Assistant Secretary of State for Human Rights: Well, the torture convention says that any act which causes severe physical or mental harm can constitute torture. What the report said today was that, because Guantanamo is such an obvious place for abuse, there's no point in keeping it open. It should be closed or people given access to legal process.

MARGARET WARNER: The report also said and stated as a matter of fact -- and this is something actually the State Department today disputed -- that simply having indefinite detention, per se, on its face constitutes a violation of this Convention against Torture. Is that your reading of the convention?

HAROLD KOH: Well, I think we have to go to the big picture. The report of the Geneva U.N. committee says: Never means never. Torture is absolutely forbidden under international law. It also happens to be a crime under U.S. law.

And the U.S. government said: We say no exceptions, but -- and then in the course of their testimony, they said the convention doesn't apply outside the United States, it doesn't apply I armed conflict.

And I read the report as essentially saying, "What part of never don't you understand?" The fact of the matter is this is an absolute, universal, unqualified prohibition, and the United States should not be taking actions which are trying to get outside the scope of that prohibition. There's no ambiguity here as a matter of law; it's forbidden.

MARGARET WARNER: But if you're looking at Guantanamo in particular, as you know, the administration says we do not, as a matter of policy, engage in torture. We don't condone torture. Did you find anything in this report in the way of sort of evidence or findings that contradicted that, at least as it applies to Guantanamo?

HAROLD KOH: The report spoke about various practices that the U.S. government is doing in the shadows, secret centers outside the United States where extraordinary rendition is going on; the use of water boarding; the use of dogs; the use of sexual humiliation; all of these are violations.

Now, I have represented the United States in 2000 the last time we presented a report. Our policy then was the United States is unalterably committed to a world without torture. Never means never.

But what's happened since, in the six years since, is that the policy seems to have been turned on its head. We have a rhetorical commitment to a zero-tolerance policy, but in fact we've moved to a policy where there's very little accountability.

There have been no prosecutions of any high-level officials. There have been at least 12 deaths from torture in detention. The Red Cross is not being permitted to get to people who are being detained. And the question is: What part of never don't you understand?

MARGARET WARNER: And you're saying that, in the presentation that the State Department and other U.S. officials made earlier in the month to this group, to this committee in Geneva, that your reading of the U.S. position was that this torture convention, that there are exceptions dealing with, for instance, where the facility might be?

HAROLD KOH: They start by saying no exceptions, and then they say no exceptions "but," and they cite what are essentially a series of exceptions they'd like to create, that they have to follow only U.S. law, not international laws, that they don't have to follow the convention outside the United States or in places like Guantanamo, which are outside our borders. They say it doesn't apply in situations of armed conflict.

If the torture convention doesn't apply in situation of armed conflict, you can imagine situations in which U.S. soldiers could be tortured outside the scope of these protections.

These treaties were designed to be absolute, unqualified and universal. Never means never. And that you cannot, on the one hand, assert that you accept the notion of no exceptions and then, on the other hand, try to muddy the waters.

What to do with detainees?

Harold Koh
Yale Law School
Obviously, Guantanamo should be closed, but we should not simply be dumping these people into places where they're going to be tortured, except outside the scope of any kind of external review.

MARGARET WARNER: Now, what would be your alternative to the very -- to do with the people who are in Guantanamo right now, and to future detainees in this sort of ongoing campaign, war, whatever you want to call it, against terrorism?

HAROLD KOH: Well, I think we're in the last days of a dying policy here. The administration has admitted it pretty much. The president himself said in Germany we should end Guantanamo. The State Department spokesman said he'd like to close it. Lord Goldsmith said that Guantanamo is unacceptable, so even our closest ally has turned their back on this policy.

So the question is how to exit from a policy which never should have been adopted in the first place. Adopting it was obviously a disaster. It's been a disaster from day one.

What's really happening now is the United States government would like to wait until the Supreme Court decides the military commissions case, which involves Guantanamo. And so they're trying to basically buy some time.

The other problem which has been discussed in the media is that you don't want to throw people out of Guantanamo into situations where they'll be tortured even more seriously because they're not in a country in which they will be protected.

And various parts of the State Department, as I understand it, are trying to negotiate for diplomatic assurances so that, if people are sent to places like Saudi Arabia or Afghanistan, they won't be tortured there. So that's what's contributing to the delay.

Obviously, Guantanamo should be closed, but we should not simply be dumping these people into places where they're going to be tortured, except outside the scope of any kind of external review.

MARGARET WARNER: Finally, I know you said you worked with this committee back in 2000, the last time the U.S. came before it. Does it have any enforcement power? Does the U.S. have to abide by any of these recommendations or findings?

HAROLD KOH: Well, we appeared in 2000 because the United States keeps its promises. When we say we never commit torture and we're out to punish torture, we appeared with -- I appeared with someone from the Justice Department. And we pointed out the many ways in which the United States it prosecuting acts of torture that occur within the United States.

Here the legal adviser of the State Department appeared with a large defense team, and they made a bunch of arguments about why we were, in fact, in compliance, while, in fact, trying to muddy the waters at the end.

I think, again, I'd like to underscore, Margaret, that torture is a violation not just of international law, it's a crime under U.S. federal law.

And the McCain amendment to the defense authorization act says no individual in the custody or effective control of the United States shall be subjected to cruel, unusual treatment anywhere, regardless of their nationality and regardless of their location.

In other words, never means never. And that's simply the point that's being underscored again today by the U.N. committee.

MARGARET WARNER: All right. Dean Harold Koh, thank you so much.

And now we turn to the administration's response, and that comes from the State Department's point man on legal issues, the State Department's legal adviser, John Bellinger.

Conflict length

John Bellinger
State Department Legal Adviser
President Bush says he does not want to keep Guantanamo open, but this is a real dilemma for us, as to what to do with these individuals who have trained in acts of terrorism, and who others around the world are not willing to take.

MARGARET WARNER: Mr. Bellinger, welcome.

JOHN BELLINGER, Legal Adviser to Secretary of State: Thank you.

MARGARET WARNER: What is your response to this committee's finding that -- essentially they're saying Guantanamo Bay, just the way it operates on its face, is illegal under the Convention against Torture and should be shut down?

JOHN BELLINGER: Well, we disagree with that assessment that the holding of detainees in Guantanamo is a per se violation of the Convention against Torture.

The Convention against Torture speaks to torturing people, and we take our obligations under the convention very seriously. But it's not a per se violation of the Convention against Torture to hold people without charge; that's just simply not accurate.

And, in fact, in any kind of an armed conflict, a detaining power does hold the enemy combatants of the other side until the end of the conflict without charge and that it's not torture. So we disagree with the committee's assessment in that regard.

MARGARET WARNER: But, as we all know -- and this is an old argument -- this conflict is really seemingly limitless, if you define it as a war against terrorism. Is the U.S. view that simply however long this long engagement goes on that these people could be held indefinitely?

JOHN BELLINGER: Well, it's certainly true that the conflict with al-Qaida could go on for a very long time, but the answer to that conundrum does not mean that, because the conflict might go on for a long time, that therefore people who pose a real danger to our societies, people who were trained in al-Qaida training camps and captured in Afghanistan, ought to be released.

And so to the voices, including this committee, who suggest that Guantanamo ought to be closed, we say: Well, what ought to be done with these people who pose a real threat?

And, as Dean Koh mentioned earlier, and as we've heard from others, not only do people suggest that Guantanamo ought to be closed, that people ought to be released, but, by the way, they can't be sent back to the countries that they came from because those countries have poor human rights records.

So President Bush says he does not want to keep Guantanamo open, but this is a real dilemma for us, as to what to do with these individuals who have trained in acts of terrorism, and who others around the world are not willing to take, and who this committee and others suggest can't be sent back to the countries that they came from.

MARGARET WARNER: So what is the administration's, say, medium-term plan here? I mean, is it, as Dean Koh said, that you're basically trying to buy time until the Supreme Court rules, and then you'll reassess after that?

JOHN BELLINGER: Well, we've been working very hard to address the difficult dilemmas that we face in dealing, really, with a group of detainees who have not followed any rules.

So we have reduced the population in Guantanamo by well over 200 people by releasing individuals, by transferring them back to other countries, by transferring them to countries where they will be detained. We do not want to be holding these individuals, but nor do we want to release them where they will pose a threat to all of our society.

So it's been suggested that we should not have picked them up in the first place. But, remember, the United States and a coalition of allies went into Afghanistan to root out members of al-Qaida in al-Qaida training camps. If the suggestion was that, when we rooted them out that we should just simply have let them go, that doesn't seem to be a very good solution.

MARGARET WARNER: But you've had most of these people there, as you said, for all of this time. To date, not one of the military commissions, which is the kind of procedure that you all set up to try them, has even completed a trial or a proceeding for one detainee. I mean, what does that say?

JOHN BELLINGER: Well, Margaret, we are disappointed by that. I mean, frankly, we had hoped as early as 2002 to be able to put people on trial so that the world could see the acts that people had committed, the stories would be told of the people who had committed acts of terrorism.

And it's taken us a long time, both to collect evidence and then, unfortunately, we have gotten wound up in a variety of legal hurdles. And so that has also been, we recognize, a problem for us.

We want to be able to try people, as many as we can, who are in Guantanamo. You've heard the people say that last week. We are now waiting for the Supreme Court's decision in Hamdan and are anxious to get forward with the military commission trials.

Interrogation techniques

John Bellinger
State Department Legal Adviser
I would note that even the chairman of the committee today said: Look, this report has to be taken in perspective. It shouldn't be blown out of proportion. The United States has an excellent record on human rights.

MARGARET WARNER: All right. Let me ask you about another thing that the panel said that, basically, that wherever detainees are being held by the U.S. in the world, that practices such as sexual humiliation, waterboarding, or the use of dogs to instill fear simply should not be used as part of interrogation.

Can you tell us tonight that such procedures and techniques are not being used anywhere by U.S. personnel, or U.S. contractors, or agents acting on their behalf, or foreign governments acting on their behalf?

JOHN BELLINGER: Well, we have steadfastly taken the position that we do not want to address individual interrogation techniques or we're really going to be constantly asked, "What about this technique? Or what about that technique?" You've come up with a long list of things that certainly sound very unpleasant.

MARGARET WARNER: Well, three things.

JOHN BELLINGER: And what we did make clear -- and I headed the U.S. delegation in Geneva last week -- was we made clear that, when the Army field manual comes out, the new Army field manual that was mandated under the McCain amendment, that it will have a list of permitted techniques, but it will also have a list of prohibited techniques, and that will include prohibiting things like waterboarding or sexual humiliation.

MARGARET WARNER: And finally, briefly, in your view, what standing does this committee's recommendations have? Does the U.S. government feel itself under any obligation to comply?

JOHN BELLINGER: Well, they do not have legally binding effect upon us. We take this committee seriously. We've fielded a large delegation and presented extensive materials to them, even though it was obviously a difficult time for us to go and prepare our periodic report.

We disagreed with a number of the committee's legal and factual determinations, but we will look at the committee's report.

I would note that even the chairman of the committee today said: Look, this report has to be taken in perspective. It shouldn't be blown out of proportion. The United States has an excellent record on human rights.

So these are suggestions that the committee has raised concerns about, and we will take those very, very seriously.

MARGARET WARNER: All right. John Bellinger, legal adviser to the State Department, thank you.

JOHN BELLINGER: Thank you, Margaret.