The Detainees

MARGARET WARNER:

Secretary Rumsfeld's speech came after months of criticism by human rights groups over America's indefinite detention of hundreds of foreign fighters. Rumsfeld vigorously defended it today and made clear it would continue.

DONALD RUMSFELD:

Very simply, the reason for their detention is that they're dangerous. Were they not detained, they would return to the fight and continue to kill innocent men, women and children. It is a security necessity, and I might add, it is also just plain common sense. Detaining enemy combatants also serves another purpose. It provides us with intelligence that can help us prevent future acts of terrorism.

MARGARET WARNER:

Roughly two years after their capture in Afghanistan, some 650 foreign men are still being held at a U.S. Military base at Guantanamo Bay, Cuba, without formal charges or access to lawyers. Eighty seven have been released to their home governments. In July, the president said six would be eligible for trial by military tribunal, but none have been held. In October, the International Red Cross, the only group allowed to visit the detainees, publicly criticized the legal limbo in which they're held. Today Rumsfeld did announce a new process of review.

DONALD RUMSFELD:

For those detainees who pose a continued threat and who do need to be detained, the U.S. Government is instituting a process for an annual review that would ensure that the detainee has an opportunity to provide information to a panel and that the judgments about continued detention will be made on the basis of the most current information possible.

MARGARET WARNER:

But, he maintained, these prisoners are not entitled to the normal legal protections of the U.S. Constitution.

DONALD RUMSFELD:

We need to keep in mind that the people in U.S. custody are not there because they stole a car or robbed a bank. That's not why they're there. They're not common criminals. They're enemy combatants and terrorists who are being detained for acts of war against our country. And that is why different rules have to apply.

MARGARET WARNER:

The Supreme Court will hear arguments in April on whether the Guantanamo detainees may challenge their treatment in U.S. courts.

MARGARET WARNER:

Now two perspectives on what Secretary Rumsfeld had to say on the detainees' status. Paul Butler is the Pentagon's point man on the Guantanamo detainee issue. David Cole, a Georgetown University law professor, is an attorney with the Center for Constitutional Rights, which co- filed the suit on the detainees' behalf. Welcome, gentlemen.

David Cole, as we just heard, the secretary made clear that as far as he's concerned, under what he called the law of armed conflict, the Pentagon has every right to hold these detainees without interference from the civilian courts until the war on terror is over. I know you disagree. Why?

DAVID COLE:

Well, this is an extraordinary and unprecedented assertion of authority. The government claims that the president can pick up any person anywhere in the world, U.S. citizen or foreign national and lock them up indefinitely without trial, without charges because we are in a war on terror. And when they are asked to define that war — they say it's a war against terrorist organizations of global region. It won't be over until there are no terrorists of global reach. Today everybody has global reach and there has always been terrorism as long as people have organized themselves into political societies.

So they're asserting the authority to lock up any person anywhere around the world and to keep that person indefinitely forever without any process whatsoever. And that is simply unprecedented. They're using the laws of war, but they've used it to apply to something which is not a temporary extraordinary emergency, but is rather a permanent condition as they've defined it.

So they've given themselves a kind of power to lock people up without any process whatsoever. It's one thing if these people are, in fact, enemies and Donald Rumsfeld repeatedly calls them enemy combatants but calling them so doesn't make them so. The problem is that there has been no process — no process by which an innocent person could have his claim heard and be released despite evidence that people who were not, in fact enemies were in fact detained, 87 have been released.

MARGARET WARNER:

Mr. Butler.

PAUL BUTLER:

It is not unprecedented. Some of the facts, I think, are just not correct. Holding enemy combatants in an act of war is not an unprecedented thing to do, and this is an act of war. We have an enemy that has declared war on us repeatedly. Osama bin Laden issued a public fatwa in 1998 and said it was the duty of his followers to kill Americans – civilian and military — wherever they can be found.

The group has attacked our embassies, our military installations, our troops, our civilian populations, our financial centers and the centers of our government. So we are holding enemy combatants in an act of war. And to release them would create a severe security threat.

Now, if I might just address the issue of procedures, there are elaborate procedures already in place that do address some of Mr. Cole's concerns. Over 10,000 people were taken off the battlefield in Afghanistan. Less than 800 have come to Guantanamo pursuant to very rigorous screening procedures. Once they arrive in Guantanamo they are interrogated, assessed. Those assessments are made by professionals including behavioral psychologists, intelligence officers, law enforcement officers. Those assessments are sent up to interagency groups, which include State Department, FBI, CIA. There's enormous amounts of time scrutinizing these detainees. That's how we've gotten the 87 releases and the transfers thus far.

MARGARET WARNER:

Let me just ask you one follow-up tough on the basic assertion. You talk about al-Qaida declaring war on the U.S. Are all — have you been able to determine that all of the Guantanamo detainees are, in fact, al-Qaida members, members of that war?

PAUL BUTLER:

It is a very difficult process. And we are at war with al-Qaida, its affiliated terrorist organizations and the Taliban. We have people, quite frankly, in the chaos of war, who we don't have a tremendous amount of information about. So we are trying to learn about them.

We applied very strict criteria to bring them there. There's a document called the Manchester Manual that was picked up in a search in Manchester and has surfaced in Afghanistan and elsewhere. It's the al-Qaida manual, basically. There is a very lengthy chapter on counter-interrogation techniques. These are sophisticated terrorists who know how to avoid interrogation. We are learning about them every day; we're learning more about from other intelligence sources and we work extremely hard to find out who these people are. We do not want to hold one person in Guantanamo one day longer than they need to be held.

MARGARET WARNER:

Why is that not satisfactory?

DAVID COLE:

The message is trust us. We have got behavioral psychologists and we won't make a mistake. When they brought these people there initially, they said these are the worst of the worst; these are people who are chewing the cables on their transport plane to bring it down.

Now we find out there are kids in the thirteen to fifteen year old age range, there are people there as old as 80 and 90 — 87 people have been sent back. If these were the worst of the worst, why were they sent back? They were sent back because the military made a mistake. And yes the military can make mistakes, but that's why you have to have a process. And the Geneva Conventions, which permit this kind of authority, say you have got to have a process, you've got to have a tribunal to determine what their status is.

MARGARET WARNER:

Okay. So let's get to the new process that Secretary Rumsfeld announced today. This annual review. How is it going to work? Who are going to be the judges? Can these detainees have lawyers, can they have their home governments come in and present evidence on their behalf? How will it work?

PAUL BUTLER:

There's a lot left to be decided and who will be the panel members, who they will report to, you will be hearing about in the very near future. It will be a panel independent of the current procedures that I described to you that will report to the secretary on threat. The detainee will be able to be able to be heard in person. And the foreign government, that detainee's foreign government will be permitted to submit information on the detainee.

MARGARET WARNER:

But will it be up to the detainee to prove he is no longer a threat?

PAUL BUTLER:

The standards of evidence that will be used is yet to be worked out. The panel will be able to consider all of the intelligence information available, any information presented on behalf of the detainee or the foreign government and make a determination about whether this person remains a security threat to U.S. forces. If I could just address the Geneva Article five provision Professor Cole referenced, there are no specific procedures set out in Article Five of Geneva. We don't think Geneva in its entirety applies because this group targets civilian populations deliberately by their very actions, by their very words, they violate the Geneva Convention. However what we have in these procedures goes far beyond any Article Five.

MARGARET WARNER:

All right. But let's go back to this new review process. Does that at least go halfway or all the way to satisfying what you think is necessary?

DAVID COLE:

Well, I think it is an improvement over some processes and improvement over no process. But how do you think we would feel if we were in a war and the other side took American citizens, asserted that they could lock them up indefinitely forever, held no process whatsoever for two years, and then said well, now we've decided we are going to give you some sort of a process that's not specified what it is going to be. I don't think we'd say that's okay they've satisfied the Geneva Conventions. I think what we'd say is you should not be locking up an American citizen unless he is in fact an enemy fighting against you. And that's the whole question here. Are these people in fact enemies?

MARGARET WARNER:

All right. But are you saying that the U.S. Military and the U.S. Government should not be the party that decides that — that they must go to civilian courts?

DAVID COLE:

No, no. I think under the Geneva Conventions, it can be a competent military tribunal, but the tribunal is deciding is this person in fact fighting for the enemy or not. In the Iraq War, in the first Iraq War, we held 1200 of these hearings on the battlefield, 800 people were determined not to be fighting for the enemy and were released. Why here are we having refused adamantly from day one to provide that hearing? Now we are not giving them that hearing. We are saying every year we'll check up on you and decide whether we want to keep you detained. That's not the hearing that the Geneva Convention is talking about.

MARGARET WARNER:

Why not give all of these men who there now a full military hearing, the kind that Professor Cole is talking about?

PAUL BUTLER:

The kind Professor Cole is talking about is not the sort of hearing that I think that the people envision. First of all, again, what incentives are we creating in the system — The Geneva Convention was meant to impose order on the chaos of war and protect soldiers from being killed by people who blend in with civilian populations and to protect civilians from being killed by enemy combatants. The Geneva Convention has a framework. People who deliberately violate the Geneva Convention should not be entitled to all of its protections. That seems to me common sense. Second of all, to say that people will be held indefinitely without process is just flat out wrong. People will be held until the end of hostilities or when we determine that they're no longer a threat. We are also trying to work with foreign governments to help us have them take responsibility for a number, a fair number of these detainees to enter into transfer agreements that help address the risk that they pose.

MARGARET WARNER:

Do you agree with Professor Cole — we only have a second left. Do you agree though with Professor Cole that the war is pretty indefinite duration if it is against worldwide terror?

PAUL BUTLER:

This is a new war, no question about it. But also two years into World War II, we weren't so certain when that war was going to end. What the new procedures or additional procedures are designed to do is to help us with that. The war could end in stages. If the Taliban surrenders clearly and no longer presents a threat, then perhaps Taliban could be let out. But there are rigorous procedures already in place — to say that these are now procedures that didn't exist before is just not factually correct.

MARGARET WARNER:

Literally five seconds, what would be the one most important thing they have to have in this procedure that you think would be equitable?

DAVID COLE:

A fair hearing in which the person has a right to present evidence and confront the evidence against him and establish that in fact he is not an enemy of the United States.

MARGARET WARNER:

We have to leave it there. Thank you both very much.