Emails between Thomas A. Johnson, Edward R. Cummings, Christopher N. Camponovo re: White House press briefing by Judge Alberto Gonzales

Email discusses and includes a press release of a press briefing with Judge Alberto Gonzales. Judge Gonzales discusses, generally, the war on terror.

Tuesday, June 22, 2004
Wednesday, December 29, 2004

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Office of the Press Secretary

For Immediate Release June 22, 2004


Room 350
Eisenhower Executive Office Building

3:12 P.M. EDT

JUDGE GONZALES:II've got a fairly lengthy opening statement,
but there are some important points I need to make in order to frame
our discussion this afternoon. And I want to begin by reminding
everyone who we're fighting and what our enemy is trying to do to us,
from using airplanes to kill thousands of citizens, to using daggers
to behead our citizens. And so we must -- (inaudible) -- American
citizens and manage our solemn obligation under the law.

America today does face a different kind of enemy in al Qaeda
and its affiliates. And we face an enemy that targets innocent
civilians, and we have seen certainly graphic evidence of that in
recent days. We face an enemy that lies in the shadows, an enemy
that doesn't sign treaties, they don't wear uniforms, an enemy-that
owes no allegiance to any country, they do not cherish life. An
enemy that doesn't fight, attack or plan according to accepted laws
of war, in particular Geneva Conventions.

President Bush knows his most important job is to protect'this
nation. At the same time, he's made it clear, in the war against al
Qaeda and its supporters, the United States will follow its treaty
obligations and U.S. law, both of which prohibit the use of torture.
And this has been firm U.S. policy since the outset of this
administration and it remains our policy today.

We're releasing a series of documents thiS afternoon that
highlight the thorough deliberative process the administration used
to make policy decisions on how we wage a global war against a
teacher organization.

Now, we have been attacked by terrorists prior to September 11th
-- the Khobar Towers bombing, the attack on the USS Cole, and the
bombings of our embassies in East Africa, among others -- the
government had previously dealt with these attacks as primarily a law
enforcement matter. But after September 11th, President Bush shifted
our nation from the law enforcement apprOach to dealing with
terrorism to a strategy that marshals all elements of national power
to help fight terrorism.

After President Bush declared that the U.S. was at war with al
Qaeda and its supporters, he made clear that our military would
respond in al Qaeda attacks. Our government had fundamental
decisions to make concerning how to apply treaties and U.S. law to an
enemy that did not wear uniform, owed no allegiance to any country,
and was committed to no treaty, and did not fight -- most importantly
-- according to the laws of war. 1 must tell you that these
differences really imposed legal and practical questions for
policymakers trying to defend the United States against the deadly
and shadowy adversary, unlike any enemy we've ever seen before.

Now, some questions we faced were, for example: What is the
legal status of individuals caught in this battle? . How will they be
treated? To what extent can those detained be questioned to attain
information concerning possible future terrorist attacks? What are
the rules? What will our policies be?

As we debated these questions, the President made clear that he
was prepared to protect and defend the United States and its
citizens, and he would do so vigorously, but as the documents we are

releasing today show, that he would do so in a manner consistent
with our nations values and applicable law, including our treaty

You have two distinct set of documents, those that were
generated by government lawyers to explore the limits of the legal
landscape as to what the Executive Branch can do within the law and
the Constitution as an abstract matter; you also have documents that
reflect the actual decisions issued by the President and senior
administration officials directing the policies that our military
would actually be obliged to follow. So you have before you the
legal theory and you have before you the actual policy guidance that
the President: and his team directed. And as these documents show,
the policies ultimately adopted by the President are more narrowly
tailored than advised by his lawyers, and are consistent with our
treaty obligations, our Constitution and our laws.

As you look through the first set, you can see lawyerd trying to
think through the potential legal implications of the war on al Qaeda
and it supporters. Just as military theorists thought about new
strategies and tactics to fight terrorists, so, too, did lawyers in
looking at how this war fit into the current legal landscape.

These are tough issues, and some of the conclusions by the
lawyers you may find controversial. These opinions set forth a broad
legal framework in which the President and his team considered and
ultimately adopted more narrowly tailored policies.

Now, to the extent that some of these documents, in the context
of interrogations, explored broad legal theories, including legal
theories about the scope of the President's power as Commander-in-
Chief, some of their discussion, quite frankly, is'irrelevant and
unnecessary to support any action taken by the President. The
administration has made clear before, and I will reemphasize today
that the President has not authorized, ordered or directed in any way
any activity that would transgress the standards of the torture
conventions or the torture statute, or other applicable laws.

Unnecessary, over-broad discussions in some of these memos that
address abstract legal theories, or discussions subject to
misinterpretation, but not relied upon by decision-makers are under
review, and may be replaced, if appropriate, with more concrete
guidance addressing only those issues necessary for the legal
analysis of actual practices. But I must emphasize that the analysis
underpinning the President's decisions stands and are not being

It's also important to note that these opinions were circulated
among lawyers and some Washington policymakers only. To my
knowledge, they never made it to the hands of soldiers in the field,

nor to the President. Now, they're interesting for lawyers to
debate, and for the public to debate what the rules should be as we
try to deal with this new threat. But, in reality, they do not
reflect the policies that the administration ultimately adopted.

The other set of documents you have consists of the-President's
February 2002 directive and the memorandum issued by Secretary
Rumsfeld in the fall of 2002 and the winter of 2003. And these
demonstrate clearly the limits that the administration actually
placed on treatment and questioning of detainees in this war. These
are our policies, and they guide those in the field who are
responsible for implementing policies regarding treatment and
questioning of detainees in this conflict.

Now, there's been much confusion because of the leaks of legal
opinions concerning whether the administration in any way encouraged
or authorized torture, and what policies were actually authorized.
We are releasing these documents to highlight the policies that were,
in fact, authorized to give you insight into the great degree of care
taken in the policy-making process, and to inform the public that the
policy decisions made by the President are in keeping with the values
of our nation, our Constitution, our laws, and our treaty
obligations. And we believe the American people, when they
understand the policies that have actually been adopted to help us
prevent future terrorist attacks and save innocent lives, will
understand and support what has been done.

But if there still remains any question, let me say that the

U.S. will treat people in our custody in accordance with all U.S.
obligations including federal statutes, the U.S. Constitution and our
treaty obligations. The President has said we do not condone or
commit torture. Anyone engaged in conduct that constitutes torture
will be held accountable. The President has not directed the use of
specific interrogation techniques. There has been no presidential
determination necessity or self-defense that would allow conduct that
constitutes torture. There has been no presidential determination
that circumstances warrant the use of torture to protect the mass
security of the United States.

The President has given no order or directive that would
immunize from prosecution anyone engaged in conduct that constitutes
torture. All interrogation techniques actually authorized have been
carefully vetted, are lawful, and do not constitute torture.

Now, a few of the misinformed have asked whether the President's
February 7th determination contributed to the abuses at Abu Ghraib.
We categorically reject any connection. There are two separate legal
regimes that govern action in those arenas. In Iraq, it has always
been U.S. position that Geneva applies. From the early days of the

conflict, both the White House and the Department of Defense
have been very public and clear about that.

The President made no formal determination with respect to our
conflict in Iraq because it was automatic that Geneva would apply.
Our soldiers are trained from the first day in our service to follow
the Geneva Conventions.

Now, interrogation and detention policies in Iraq were issued by
General Sanchez in the field. They do not involve input from
Washington and are not related to legal opinions I have discussed
concerning the. war against al Qaeda. The war in Iraq is covered by
the Geneva COnventions, so our policies there must meet those
standards, in addition to the torture convention. And military
lawyers in the-field determine that the policies embodied in those
memos comply with Geneva Conventions.

As for the incidents at Abu Ghraib, they were not authorized and
have nothing to do with the policies contained in any of these
memos. The President has made clear that he condemns this conduct.
He has made clear that these activities are inconsistent with the
specific policy guidance. As you know, full investigations into the
abuses at Abu Ghraib are ongoing, and those engaged in this conduct
will be held accountable.

Two final points before quickly summarizing documents. First,
this briefing does not include CIA activities. I will say that all
interrogation techniques authorized for use by the Agency against the
Taliban and al Qaeda and in Iraq are lawful and do not constitute
torture. But to disclose anything more would be irresponsible during
this period of ongoing conflict.

And finally, the government is releasing an extraordinary set of
documents today; and this should not be viewed as setting any kind of
precedent. But we felt it important to set the record straight.
Additional documents may be withheld in the future for national
security and other reasons.

Now, let me very quickly just walk you through the documents.
The most important document is under Tab A, the President's February
7th determination regarding humane treatment of al Qaeda and Taliban

This is the only formal, written directive from the President
regarding treatment of detainees. The President determined that
Geneva does not apply with respect to our conflict with al Qaeda.
Geneva applies with respect to our conflict with the Taliban.
Neither the Taliban or al Qaeda are entitled to POW protections.

But the President also determined -- and this is quoting from

the actual document, paragraph 3; this is very important -- he
said, "Of course, our values as a nation, values that we share with
many nations in the world, call for us to treat detainees humanely,
including those who are not legally entitled to such treatment. Our
nation has been, and will continue to be, a strong supporter of
Geneva and its principles. As a matter of policy, the Armed Forces
are to treat detainees humanely, and to the extent appropriate and
consistent with military necessity, in a manner consistent with the
principles of Geneva.

Now, of course, the logic of Geneva applies to reciprocal
behavior. I agree to treat your captured soldiers in accordance with
certain standards in exchange for similar treatment. But to protect
terrorists when they ignore the law is to give incentive (to continued
ignoring that law.

The President's determination is not controversial within the
Executive Branch. It is supported by various opinions from the
Department of Justice, and the legal advisor at the State Department
agrees that the President's decisions are consistent with our treaty
obligations and customary with international law.

Tab B is a memo to me from Jay Bybee, Assistant Attorney
General, regarding the application of treaties and laws to al Qaeda
and Taliban detainees. And basically, this memorandum provides the
advise concerning the application of Geneva Conventions and formed
sort of the basis for the President's February 7th determination.

Tab C•is a letter to the President from the Attorney General
confirming that under either two legal theories, the Taliban fighter
is not eligible for POW status under the Geneva Convention, and
explains that both theories are available for the President to act

Tab D has an information paper from the Department of Defense
confirming facts relating to the legal status of Taliban forces.

Tab E is a memo to me from Jay Bybee at the Department of
Justice, entitled, "Status of Taliban Forces under Article 4 of the
Third Geneva Convention," and this memo, again, provides a more
detailed analysis of the status of the Taliban forces, assuming that
Geneva Convention really applies to the conflict with them.

Now, the next set of documents are Department of Defense
determination.s and related documents under Tabs F through I. I
believe all these documents had previously been provided to
Congress. They've now been declassified and are now available to the
American people.

Tab F is a December 2nd action memo prepared by Secretary

Rumsfeld relating to interrogation techniques at Guantanamo
during the period of late 2002, early 2003. There is, at the end of
the information under Tab F, a summary of techniques actually
authorized, and a summary of techniques actually used.

Tab G is a January 15, 2000 decision document suspending they
December 2nd techniques.

Under Tab H is a January 2003 memo from Secretary Rumsfeld
establishing a working group to assess interrogation techniques at

Tab I is a, working group report on interrogation dated April
4th, a draft copy of which has been in the press.

Tab J, April 16 DOD memorandum regarding revised interrogation
techniques -- at Guantanamo.

Tab K is a memo to Jim Haynes from Jay Bybee, Office of Legal
Counsel for the Department of Justice, regarding potential legal
constraints applicable to interrogation of persons captured by U.S.
Armed Forces in Afghanistan. This memo addresses a narrow set of
questions raised by DOD related to the application of Miranda
warnings, and the 6th Amendment right to counsel for interrogations.
So we were concerned about whether or not we need to respect the
Miranda rights and the 6th Amendment right to counsel in
Guantanamo. And we sought legal guidance with respect to that.

Tab L is a letter to me from John Yoo addressing two issues,
whether or not comment that violates the standard of torture
convention might, nevertheless, violate -- that does not violate the
standard of torture convention might, nevertheless, violate the
torture prohibition and the prevention against torture, and also
addressed whether the International Criminal Court could assert
jurisdiction over U.S. personnel that were accused of wrongdoing in

And finally, Tab M is an August 1 memo to me from Jay Bybee.
This was leaked sometime ago and has been the subject of substantial
discussion. And let me just make a few points about this. The
questions were posed about the torture convention and the anti­torture statute because our values call for humane treatment. And
our soldiers need to know, the limits of permissible conduct. We're
going to be aggressive in our interrogations, there's no question
about that. But always, within the requirements of applicable law.

Now, the memo was written in response to questions only about
the scope of the torture convention and the anti-torture act. There
was no request for a discussion of the pr's authority as Commander­in-Chief to ignore existing statutes or treaties. And the questions


were posed, quite frankly, in August 2002, six months after the
President's determination about the application of Geneva to our
conflict with al Qaeda and the Taliban.

Thus that decision, the President's earlier decision, was not
affected or motivated in any way by the opinion in the August 1st
memo. The Commander-in-Chief override power discussed in the opinion
is, on its face -- on its face -- limited to our conflict with al
Qaeda. There is no indication that it applies to our conflict in
Iraq. Since the analysis is in the context of the current war
against the al Qaeda terrorist network, application with reason to
Iraq would, in my judgment, require additional analysis.

I don't want to get further into a discussion about the merits
of the opinion. I understand the Department of Justice is holding a
briefing later this afternoon to go into much greater detail about
these memos. But .1 want to reaffirm yet again that the United States
has very high values. We do not engage in torture. We are bound by
the convention against torture, as ratified by the United States.
Whatever broad language might be included in this legal memo, the
United States government has never authorized torture in reliance on
the argument that the convention against torture, or the torture
statute are somehow inapplicable to the current conflict. To the
contrary. All interrogation techniques authorized for use against
the Taliban and al Qaeda and in Iraq have been carefully vetted and
determined to not constitute torture under the definition provided by
Congress and the convention against torture, as ratified by the
United States.

We are a nation of rules and values. It's as simple as that.
And we are fighting this war accordingly.

And with that, I'll turn it over to Jim Haynes.

Q That's the definition on torture that you used?. That's the
standard --

Q When you say, no torture, you mean --

MR. McCLELLAN: We'll come back to questions at the'end. Let's
let everybody go through.

MR. HAYNES: I promise I won't spend as much time. I want to
introduce Mr. Dell'Orto in just a minute. But let me say a couple of
things echoing Judge Gonzales. One of them this is an
extraordinary session in a number of ways. We're providing
extraordinary amount of legal advice provided to senior decision­makers --

Q Can you just introduce yourself?

Q Give your name, and spell your name.

MR. HAYNES: I'm sorry, I'm my name is William Haynes. I'm
the General Counsel of the Department of Defgnse.

Q Can you spell your last name?

MR. HAYNES: H-a-y-n-e-s. As I said, this is extraordinary in a
number of ways. It's extraordinary in what we're disclosing -- legal
opinions, advice to senior decision-makers, a whole lot of the
deliberative process of some of the most sensitive decision-making in
the course of conduct of a war -- two wars, as you'll see later. But
we're going to focus, for the most part, on global war .on terror, in
particular, when Mr. Dell'Orto speaks, about the process by which we,
in the Defense Department decided how one should interrogate unlawful
combatants outside the United States in a conflict not governed by
the Geneva Conventions, strictly speaking, in a unique circumstance.

It's also a reflection of the extraordinary war we are in.
Judge Gonzales talked about the type of enemy we face, the type of
enemy that doesn't have armies, that doesn't have major combat
vehicles and equipment, that don't limit their targets to military
targets, but rather, do exactly the opposite. They seek to exploit
the values that we hold most dear, the values that are sacrosanct in
centuries of the kind of war, that is one should distinguish between
lawful military targets and civilian targets to protect innocent
people from harm when the terrible powers'of war are unleashed.

Indeed, al Qaeda trains to that. Their manual spends -- their
training manual spends an extraordinary amount of time talking about
how to resist interrogation.

It's also a war in which one of the principal tools, for both
sides, is information, both on the side of the al Qaeda to seek to
exploit what we hold most dear, and in our case, to know what's
coming to protect the American people. So care with which the
President instructed us to treat people and in which the Secretary of
Defense employed in deciding what interrogation methods ought to be
employed, had to look at that unique circumstance. It had to
consider both values that we hold dear, standards that we wanted to
uphold, as well as the type of information that we were seeking to
derive and try to get that.

Now, as you listen to this next briefing, I'd like you to
remember a couple of things. When one talks about interrogation
techniques, one must remember that they always come in a context.
They come in the context' of a governing legal regime, first off.
They come in the context of an individual who interrogates with
particular characteristics. They come in the context of the

circumstances under which somebody is questioned. They come in
the context of how techniques may be combined under certain
circumstances and, of course, the context of how they're all applied
with all those in place.

But the bottoin line, from the Defense Department's perspective,
is that they must be lawful. As the President has told us, they also
must be humane. The President told the Secretary of Defense that the
detainees held by the Department of Defense must be treated humanely
and consistent with military necessity, consistent with the
principles of Geneva Convention.
The values that America holds dear must also be in mind as we do
that. And, of course, an important value is to continue to protect
the American people.

Now, what I'd like you to take away, you will form your own _judgment, but from Mr. Dell'Orto's briefing, who is intimately
familiar with the process that we employed in coming up with our

techniques and who has briefed a number of people on Capitol Hill, is

the attention and care with which we went about this process.

MR. DELL'ORTO: Hi, I'm Daniel J. Dell'Orto. The last name is
spelled D-e-1-1-1 -0-r-t-o. I'm the Principle Deputy General Counsel
of the Department of Defense, and I report directly to Mr. Haynes.

What I want to do is talk to you about the development and
maturation of Guantanamo as a strategic intelligence center, and how
that came about. We go back to September 11th, 2001. On that day,
the existing doctrine dealing with interrogation of enemy combatants
is the Army field manual, 34-52 -- which it had several iterations,
one in 1987, and the most recent one in 1992. It is designed for a
Geneva conflict, and specifically designed for the interrogation of
enemy prisoners of war, among the highest of protected parties in a
Geneva-governed conflict. And as both the Judge and Mr. Haynes have
indicated, we were dealing with an enemy on'September 11th, and
hence, that did anything but act in a way that lawful combatants and
armies -- professional armies had in the past.

Professional armies, whether they're constricted or volunteer,
at the end are disciplined. They fight in a disciplined way. They
answer to a chain of command, and, when they surrender and put down
their arms and are taken into custody, await the termination of
hostilities so they can go back to their farms and their shops and to
their factories, and their families.

The detainees at Guantanamo, many of them, have vowed to fight
us to their death or ours. And they vow to fight without following
rules of law, rules according to -- (inaudible) -- conflict.

And so in October of 2001, we commence active combat hostilities

in Afghanistan, and shortly thereafter, particularly as the war
turns quickly in our favor, we start to pick up combatants on the
battlefield. These are not people in uniform. They don't come with
unit rosters, manning documents, ID tags, or anything to indicate
what their ranks are, where they fit in the organization, where they
stand in the hierarchy. And so from that, you're not able to glean
immediately who they might be or who they might have -- or what they
might have in the way of information.

And so you have to sort them out. And, indeed, we sorted out
more than 10,000 in Afghanistan and reduced their number to a select
few who would make their way to Guantanamo, all enemy combatants,
unlawful combatants, and skinny down, if you will, to a number that
we could assess on the battlefield as having either significant
intelligence value or posing a continuing and significant threat to
our nation. And those select few make their way to Guantanamo for
development of their intelligence value.

We have not engaged in this type of activity -- that is
strategic intelligence-gathering -- coming from the battlefield
environment in quite some time. And so when we bring them to
Guantanamo to a secure base and begin the intelligence-gathering, we
are, in essence, in uncharted waters. So we're starting from ground
zero. We have our doctrine, and our doctrine is what we followed in
the past. We followed it in Desert Storm and in conflicts before.

And we put that doctrine to use. Now, significantly, you've got
copies of that report -- there's 52 extracts that talk about
interrogation techniques. There's nothing sacrosanct about those
techniques in terms of their exclusiveness. The commanders always
have their doctrine. And so commanders may supplement, as necessary,
as long as they've got the requisite legal review and other review
that goes along with them, and that they're implemented

And so at Guantanamo, over time, the first detainees arriving on
11th of January, 2002, and from there on, going through the effort of
sorting them and trying to gain intelligence from them, we start a
process that matures at Guantanamo, from relatively little.

. organization to much greater organization through the spring and
Summer of 2002. By that time, we're starting to sort who we have and
get a feel for who these guys are and where they may fit in the al
Qaeda structure, the Taliban structure.

As we come through the summer of 2002, a couple of things become
apparent: One, some of these people have been trained in counter­interrogation techniques, resistance techniques. We have found, by
that time, on the battlefield, the al Qaeda training manual to which
Mr. Haynes alluded. In that manual is a chapter devoted to resisting
our techniques. Those techniques are published. They're

unclassified. The field manual is out on the street for anyone
to look at. And if you look at the document, the training manual,
you'll see how they go and prepare their fighters to resist our

The other thing we determined is that we've got some key people
there. Among them is a guy named al Khatani; a Saudi Arabian
national born in 1975 who was picked up on the battlefield at the
Pakistan-Afghani border in December of 2001. And we discovered and
learned during the course of this period of time that al Khatani had
taken a flight from the Toronto airport to the Orlando, Florida on
the 4th of August, 2001. Waiting for him at the airport is Muhammad
Atta, one of the 9/11 hijackers. It's previously been reported that
there was a Customs agent on the ground at the airport in Orlando who
found something quite suspicious about al Khatani and, properly,
turned him away.

So al Khatani leaves the Orlando airport and makes his way back
to Afghanistan, where he's picked up in December of 2001. We have
him in Guantanamo during the summer, fall of 2002, and he is
demonstrating that he has been trained to resist our interrogation

As you may recall, in the fall of 2002, we have a spike in the
intelligence. We're coming across -- we're coming on to the first
anniversary of 9/11, and the intelligence is indicating we may very'
well be threatened with another attack. Al Khatani is a person in
which -- whom we have considerable interest. He has resisted our
techniques. And so it is concluded at Guantanamo that it may be time
to inquire as to whether there may be more flexibility in the type of
techniques we use on him.

And so on the 11th of October of 2002, Guantanamo generates a
request to the Commander of Southern Command that additional
techniques beyond those in the field manual be approved for use
against high-value detainees, but most specifically, al Khatani. You
have the request in your documents.

That request makes its way up to the Commander of South Com.
Part of that request includes a multi-page, single-spaced legal
review supporting those techniques they requested -- they were in
three categories. The Commander of Southern Command, General Hill,
forwards those to the Joint Staff for review at the Pentagon on the
25th of October of 2002. That request arrives at the Pentagon and it
is reviewed during November. And on the 2nd of December, 2002, the
Secretary of Defense approves, I think, all but three of the
requested techniques. And you'll see in your packet of information
those techniques that are requested and those that were ultimately
approved. The most severe of those approved is mild, non-injurious

physical contact -- poking, grabbing, lightly shoving.

Included in the request -- and you don't have it here because
it's classified -- is a detailed interrogation plan, as alluded to by
Mr. Haynes. It outlines the military necessity for doing this. It
outlines, in detail, the way the techniques are to be employed,
safeguards that would be employed. And, as I said, it had an
accompanying legal review.

Those techniques are put in place in early December, and not all
are approved or used. You'll also see in the chart that you have
that a subset of those approved are actually used. And so they're
used in December. During the latter stages of December, it comes to
our attention in our office, the Office of General Counsel, that
there is concern being expressed at Guantanamo about the techniques.
Not clear whether it is the techniques that are being used, the
techniques that have been requested, or somebody's speculation about
a change in techniques at Guantanamo. We're not clear on that. We
do some checking. We still can't get to ground truth on it. But in
any event, in early January, the General Counsel, determines that it
may be time to go to the Secretary and inform him of these concerns
and to suggest that perhaps we step back for a moment and conduct a
more broad review of interrogation techniques in the war on terror.

And so on the 12th of January, 2003, Mr. Haynes goes to the
Secretary of Defense and discusses this with him, who picks up the
phone and calls General Hill and suspends the use of the category two
and the single category three technique that the Secretary had
previously approved in December of 2002. And on January 15th of
2003, the Secretary follows that up with a written directive to
General Hill to rescind his December 2nd, 2002 memo, except where
those category one techniques, which are part of existing army

The Secretary also directs the General Counsel to form a working
group to study the issue of interrogation techniques in the war on
terror. It's to be a multi-disciplinary group that would be
comprised of lawyers, intelligence experts who can inform the group
of effective techniques, representatives of the Joint Staff,
representatives from the office of Secretary of Defense Office of
Policy. That group forms and begins its work, pursuant to the
General Counsel's directive, on January 17th of 2003, and the
Chairperson of that group is Mary Walker, the General Counsel of the
Department of the -Air Force.

That group initially undertakes to complete its work in two
weeks, because, again, al Khatani is essentially on hold at that
point for gathering intelligence, and we want to get back to him. It
becomes a hotly debated issue among the group, because we are dealing
with the law, we're dealing with history, we're dealing with
tradition, we're dealing with many things that factor into the survey

on what to do in a new kind-of war involving unlawful enemy
combatants, one we had not dealt with certainly in the history -- the
nation's recent history.

And so the time to complete this extends beyond the end of
January, and goes through March and, ultimately -- through
February/March, and ultimately concludes on April 4th with a report
to the Secretary.

The legal analysis is broad. It is informed by the DOJ Office
of Legal Counsel views .on this. And again, because the Office of
Legal Counsel speaks with authority for the Executive Branch, we take
pains to ensure that that legal analysis comports with the Department
of Justice view on this issue.

It is also supplemented on the legal piece by the considerations
of the Uniform Code of Military Justice, which certainly had
applicability to the uniform services worldwide. And so that is a
significant portion of the legal analysis. It has a historical piece
and considerable policy analysis that is also part of the ultimate

There are conclusions in the report, and you'll see those in the
packet which you have, recommendations in the report, and a list of
35 techniques that are the result of the working group's work. They
are those techniques that the working group recommends for
consideration for approval.. In the recommendations and the
conclusions, you see the sort of things that Mr. Haynes has already
spoken about -- detailed interrogation files, safeguards, legal
reviews, medical care available, things like that, to ensure that
they have an orderly, organized, structured process for dealing with

I will say this about interrogation plans: An interrogator
going to talk to a detainee for the first time may simply go in with
a very informal plan, because all he will do is employ the direct
approach. He will sit down with him and discuss things with him.
And so you may not have a very detailed plan. As your interrogation
becomes more sophisticated, as it relies on more sophisticated
techniques, that interrogation plan becomes much more sophisticated,
both in terms of the detail and in terms of the safeguards that go
along with it.

In late March, as the working group is finalizing it's report -­and there is a final draft available at that particular point in time
-- the matter of which techniques will ultimately be approved by the


Secretary is undertaken for decision. And the working'grOup bubble
chart, if you will, that outlines the 35 techniques is presented to
the operational deputies for each of the military departments, each
of the military services, and ultimately to the chiefs for review.

Also during that time period, the Secretary, the General
Counsel, the Undersecretary for Policy, Deputy Secretary of Defense,
Chairman of the Joint Chiefs gather and they discuss their views on
this. And ultimately, from those processes come 24 techniques that
the Chairman of the Joint Chiefs of Staff recommends to the Secretary
of Defense for approval for use at Guantanamo against unlawful enemy
combatants in the war on terror -- specific to that group of people,
specific to that location, a strategic intelligent center, that by
that time has matured under General Miller's leadership to a very
well-organized and structured operation.

Several things about the Secretary's guidance. It outlines

techniques, it outlines requirements of safeguards, it outlines

requirements for .notification to the Secretary for four of the 24

techniques. Interestingly, 17 of the 24 are from the existing

doctrine, and, arguably, 18 because the existing doctrine in FM34-52 .

actually combines two of those that are broken out in the working

group report. So either seven or six techniques are new, if you

will, and one of those had actually been in the manual -- so in some

respects, that's not 'even new.

The Secretary sent us his memo, which you have a copy of, to
General Hill on the 24th -- excuse me, the 16th of April, and also
directs the General he'll be briefed and that General Miller will be
briefed on the working group's efforts. Both are briefed
subsequently, and they are provided not the full 35 techniques; they
are provided, by way of the briefing, only the 24 that the Secretary

The report, itself, is not distributed. It is not distributed
because, ag'ain, we have a fairly expansive legal analysis and we have
a range of techniques that:go beyond what the Secretary has approved
for Guantanamo. We are not expecting, nor do we desire, nor do we
intend that that working group report its legal analysis for the full
range of techniques be exposed to the field at Guantanamo or anywhere
else. The guidance to Guantanamo is explicit, it's direct, and it
circumscribed with 24 techniques that are listed in detail. And
that's where those techniques go.

The commanders at both CENTCOM and Guantanamo are told, if you
want more than what's here, you have to come up, outline the military
necessity for those additional techniques, tell us what the
techniques are, give us the interrogation plan, give us the
safeguards that are going to be employed and the legal review that
would go along with it.

And the Secretary, as I told you earlier, has told General Hill
and General Miller, for four of the techniques that I've approved,
you need to tell me before you use them, just to be on the safe


side. Interestingly, two of those four are under the existing,
guidance in the manual.

And so that is the doctrine that is promulgated and then sent
down to Guantanamo. And that's as far as it goes.

What about Khatani? Did these techniques have any effect?
Well, let's see. Al-Khatani had told us when he was first captured
that he was in Afghanistan innocently, he was there to procure
falcons because he was selling ,— he was an expert in falconry and he
was going to sell these falcons. He ultimately tells us that that
cover story is false when he's challenged on his inability to explain
any details about falconry. He admits that he met Osama bin Laden on
several occasions. He provides detailed information on the following
people: Jose Padilla, the dirty bomber; Richard Reid, the shoe
bomber; and an individual by the name of Adnan El Shukrijumah,
otherwise known Tayar Jafar, who,•by the way, in the fall of 2002 was
an individual we were seeking based upon the threat information, and
who, by the way, was one of the six or seven people the Attorney
General identified several weeks ago when he listed the number of
people in whom the Department of Justice is interested, who may be
wandering about the United States.

Al-Khatani also admitted that he knew one of the 9/11 pilots and
admitted that he had been sent to the United States by Khalid Shaykh
Muhammad. The joint task farce at Guantanamo assesses that al-
Khatani was sent to the United States on August 4, 2001, to be a
member of the 9/11 hijacking plot.

One last point. We talk about the structure at Guantanamo_ And
while I want to make sure that I keep Guantanamo distinct from Iraq
and Abu Ghraib, two things of note. One, we were working on the
working group as we're building up to the war in Iraq. There was
never any misunderstanding or any thought that what we were doing
there was going to be used in Iraq. Everybody understood Iraq was
going to be all Geneva, all the time; what we were doing at
Guantanamo was predicated on the President's February 7, 2002

Here is a listing of what has happened by way of discipline at
Guantanamo. On September 17, 2002, a detainee threw toilet water at
a guard, who responded by attempting to spray the detainee with a
water hose. The guard was offered and accepted non-judicial
punishment. He was reduced a grade, he had a one-grade, one-rank
reduction and was restricted for several days.

On March 26, 2003, another detainee threw what was believed to
be toilet water, perhaps urine, on another guard. That guard
attempted to spray him -- actually, he did spray him with pepper

spray. That guard was offered non-judicial punishment. He
declined and ultimately was court-martialed. He was found not guilty
at his court martial.

On April 10, 2003, a detainee was unruly, he was subdued. In
the course of that behavior, he bit a guard. After he was subdued,
the guard hit him with his hand-held radio. That guard was punished
under Article 15 of the Uniform Code of Military Justice, reduced in
grade and punished with extra duty for 45 days.

And those were guards. The only incident of misbehavior by an
interrogator was a female interrogator who went into the room to
interrogate a detainee, took off her uniform blouse, had her T-shirt
on, sat on the detainees lap as part of her interrogation technique,
and began to run her hands through his hair. The non-commissioned
officer who was observing the interrogation from the adjacent room
immediately went into the room, stopped the interrogation, pulled the
interrogator out and admonished her, counseled her -- she was
suspended from duties for 30 days.

Those are the incidents of misbehavior by the guards and
interrogators at Guantanamo that have been reported and that have
been dealt with. You should note that the al Qaeda training manual
with respect to resistance of interrogation techniques teaches its
trainees to report -- to claim alleged torture at virtually every
turn, and mistreatment at virtually every turn.

That completes my remarks on Guantanamo and the development of
that process. I'll introduce Lieutenant General Keith Alexander, who
is the G2, Deputy Chief of Staff for Intelligence in the United
States Army, who will talk about Iraq.

GENERAL ALEXANDER: What I'm going to do is describe how the
policy in Iraq was developed. What I want to do is take you back to
the summer of 2003, to the June-July time frame and bring you back to
what was going on in Iraq at that time.

As many of you will recall, we had just finished up operations,
we were replacing the combined force land component commander with
5th Corps. General Sanchez was taking over. And our forces were
starting to take increased casualties. It was determined that we
would set up an operation called "Victory Bounty," which would go out
and help sweep up some of the Saddam fedayeen that we thought was
causing the attacks on our soldiers -- that we would also set up a
place to interrogate the Saddam fedayeen, and that place that was
picked was Abu Ghraib.

Now, Abu Ghraib had been almost completely destroyed by the
Iraqi people after the completion of the hostilities in May. So we
had at Abu Ghraib was about 100 criminals going into this operation,

and a company of MPs. What we set there was the 519th MI
Battalion, one company of them with interrogators were sent to Abu
Ghraib. They had come out of Afghanistan at the end of December 2002
and spent most of the war working with 5th Corps elements going up to
Baghdad, and were now set up to set up an interrogation center there
at Abu Ghraib.

The officer in charge at Abu Ghraib, of interrogations,
understood the requirement to set up what she called the rules of

•engagement. Those rules of engagement were a set of techniques that
she would use for her soldiers, because her soldiers had come from
Europe, from Afghanistan, from Guantanamo and from the United States,
all those various backgrounds, and she wanted to make sure that they
had the rules of engagement in their minds correct.

She got the sets of techniques that she and her deputy -- a
warrant officer interrogator -- felt were the correct sets of
techniques to use. They set that up in a memorandum with help from
their battalion commander. That memorandum went up to the 205th
Middle East.Brigade and up to the combined joint task force seven.
And it went between 4 and 25 August, it was looked at, at various
levels. And on the 25th, or thereabouts, two lawyers from the joint
task force seven in Baghdad came down -- one Australian, one U.S.
They looked at those techniques and said, these techniques look
appropriate; what we're going to do is take this back, have the staff
judge advocate, Colonel Warren, look at these and then send them up
through the chain for approval.

On the 31st of August, General Miller comes from Guantanamo to
Baghdad, at the request of the joint staff. His mission was to help
get the most that we could out of human intelligence operations in
Iraq as a whole. We had learned a great deal in Guantanamo and we
wanted to ensure that the lessons that we had in Guantanamo were also
in Iraq.

Let me give you an example of some of those lessons, something
that I think you will all understand quickly. As a reporter, as you
go out and talk to people you ask them questions. The best thing
that you can do in asking those questions is know information about
those people. How do you do that? The way that we were doing it was
the interrogator was left to come up with his analysis. The best way
is to get an analyst to go out and get the information on the people
that you're going to interrogate and help set up a plan -- something
that we would call, as an example, a tiger team, where an analyst and
an interrogator would work together and have the full power of all of
our intelligence community behind you.

It is those sorts of recommendations that General Miller would
make to the combined joint task force, to General Sanchez and
others. He went to Abu Ghraib with his team on 2 September. He had

been in the combined joint task force from 31 August and the 1st
of September; they had gotten briefings from the staff judge advocate
and others, and he had a copy of the techniques that the OIC at Abu
Ghraib had recommended.

When they went down and looked at operations at Abu Ghraib, one
of their recommendations was to better codify the techniques, make
them more transparent, make sure everybody understands them, walk
through and train your people on these techniques. That, as all have
just said, Colonel Warren understood that Iraq was under the Geneva
Convention. -He taught that at the JAG school. That was clear in his
mind and is clear in the documents that will come up.

From the 4th of September on, they worked on setting up what
will become the first set of techniques that will be used in Iraq.
They come up with .a draft set of documents on the 10th of September
and the first one on the 14th of September, General Sanchez signs,
reflecting that this is in lines with the Geneva Convention and sends
it to his boss, General Abizaid, asked for his concurrence, and
implements that guidance pending concurrence.

General Abizaid's folks looks at that and says, okay, we do have
some concerns on some of these, we want to start to discuss those,
what techniques you're going to approve and what ones you're going to
require approval from. They will, on the 28th, come up with a third
-- the third draft, the 5th of October, a fourth draft, and on the
12th of October, a signed copy that is the practice in effect.

I want to now just cover a couple of key points, because these
dates, I think, are important. So we have a signed set of techniques
on the 12th of October that has gone through a set of reviews with
the lawyers, the intel analysts there and others within both the
combined joint task force in Iraq and at Central Command. Those two
go back and forth and we get an approved copy.

First, the actions that took place at Abu Ghraib was not in any
of those documents that I talked about. It was reprehensible, it was
immoral, it was wrong. And that is the subject of ongoing
investigations today. I will tell you the second thing is, the dates
of the 12th of October, when we looked at the military police units
that go through there and the units that are coming in, the joint
interrogation and debriefing center will be stood up around the 20th
of September. We will transition the MP units and we will start to
stand up what's called the hard site around the 20th of September,
and we'll transition the MP units on the 1st of October from what was
the 72nd to the 372nd. The 372nd will go through a right seat ride
from 1 October to when we take over on 15 October.

That's a real quick overview of the evolution of the rules of
engagement in Iraq. Thank you.

MR. McCLELLAN: All right, we'll take questions now, and let me
just try to do this in an organized format. If whoever is asking the
question will direct it to a specific person that they want to answer
that question, that would be appreciated. Also you might let these
individuals know who you are with and what organizations and
introduce yourself, as well.

Jim, do you want to start, off?

Q Yes, if I could. I think this is for you, Judge Gonzales,
I'm not sure. One, I gather what you were saying was that the
definition of torture that you referred to is the one in the torture
convention? If you could clarify that. And, two, what is the
distinction between terrorists, between the Khalid Shaykh Muhammads
and al Qaeda people we're arresting and the rest of the group? Is
there a difference in the interrogation techniques that are allowed
for those two different groups?

JUDGE GONZALES: Okay, I'll defer on second one to DOD. The •
definition of torture that the administration uses is the definition
that Congress has given us in the torture statute and the reservation
of the torture convention. And that is -- that definition is a very
-- I mean, Congress looked at conduct of the various leaders. The
definition that Congress used was a specific intent to inflict severe
physical or mental harm or suffering. That's the definition that
Congress has given us and that's the definition that we use.

Q If you would, as we're talking about the difference between al Qaeda, for instance, and other people, would prolonged isolation, for instance, be considered torture or no? And what is the difference between al Qaeda and other sorts of people that are detained, other detainees?
MR. HAYNES: The best answer to your question will be reflected
in the document dated April 16th from the Secretary of Defense to the
Commander of the Southern Command about how individuals detained at
Guantanamo would be interrogated. In each case, starting at the
interrogator level, there will be an evaluation of an individual
involved -- and I may even be supplementing in just a minute -- but
the individual involved, the information the interrogators believe he
may have. His particular physical circumstances, the circumstances
of what we know about him from other sources of information of prior
interrogations and the like, and there will be a specific plan
developed with input from lawyers and medical people about how best
to question, starting with the least intrusive means available. But
a plan that is very elaborate, the documents are often very
(inaudible). And depending on what techniques may be applied, will

need to be approved at various levels in the chain of command.

JUDGE GONZALES: But, Jim, let me -- didn't understand your
question. One thing that's clear, whether you're talking about in
Guantanamo and Afghanistan, the President said, we don't torture
people. And so it doesn't matter where you're at, we don't torture

Q So it doesn't matter whether you're talking about Khalid
Shaykh Muhammad and or --

JUDGE GONZALES: The President said we don't commit torture, we
don't condone torture.

MR. HAYNES: But the reason I -- and the Judge is correct to say
that, and there is no question -- no question in the chain of command
that torture is not allowed. Indeed, the President has said all
detainees held by the Department of Defense shall be treated
humanely. There is a floor below which we cannot go.

And the reason I was referring to the April 16th document is
because you will see that -- and Mr. Dell'Orto described -- the vast
majority of the techniques employed are'an existing Army doctrine,
decades old, which were developed in the context of Geneva governing

. conflicts for prisoners of war, which are so much more protected than
unlawful combatants in it's conflict. So there the standard --

Q Just one clarification --

MR. HAYNES: -- well below torture.

Q Just one clarification, and then I'll defer to my
colleagues. The question that I think there's a lot of confusion
about whether or not things like stress techniques and prolonged
isolation, those kinds of things are considered torture under U.S.
laws and treaties, or whether those are just more aggressive
interrogation techniques?

MR. HAYNES: Well, one of the points I tried to make earlier is
that techniques cannot be considered an isolation. Certainly, any
one technique improperly applied could, you know, produce all sorts
of undesirable consequences, including perhaps torture. But we -­the United States is not permitted to go near that.

Q I have two questions based on the documents for Judge
Gonzales. First, in the presidential determination that (inaudible)
read us about,, the President -- it's the United States Armed Forces

• to treat detainees in a manner consistent with the principles of
Geneva -- there's an "except" clause -- to the extent appropriate and
consistent with military necessity.

Well, why is that in there? It seems like some people could

argue that those would be appropriate exceptions -- it's a
pretty broad word -- and the "consistent with military necessity"
exception could swallow the rule.

And then the -- I didn't understand, is it the opinion of this
administration that "just as statutes that order a President to
conduct warfare in a certain manner would be unconstitutional, so,
too, are laws that seek to prevent the President from gaining the
intelligence he believes necessary to prevent attacks." Is that good
law in this administration?

JUDGE GONZALES: Terry, it's a scenario we've never even come close to confronting. And so, you know, whether the lawyers have drawn this box in terms of what is permitted, this President has • drawn this box -- hasn't even come close. And so whether or not it's good law or not, that's not what the President has done.
. What he has done is ordered a standard of conduct that is
clearly lawful. He has'not had to -- as I indicated, in terms of
what he has done or has not done, he has not exercised his Commander­in-Chief override, he has not determined that torture is, in fact,
necessary to protect the national security of this country.

Q But, Your Honor, If I may, as his lawyer, (inaudible) -- or
the next President, whoever that might be -- might have to face that
moment. And is it incumbent on you to come up with a legal opinion
on whether or not he can? •

JUDGE GONZALES: Perhaps if that hypothetical became a reality, that would be something that I would be giving advice to the President. But that is a hypothetical. And I know at least one senator has said that we should never ever say that torture should never, ever be used if it meant saving the lives of thousands of Americans. But that is a hypothetical that we may not deal with. This President has said we're not going to torture people.
Q Okay. How about the appropriate "military necessity"?

JUDGE GONZALES: I am not aware of -- that language was intended
to reflect the fact that as a legal matter, Geneva doesn't apply.
And there may be circumstances that conduct may be necessary, for
military necessity, to protect the troops, force protection, for
example, that might be necessary or appropriate. But I think you're
focusing on the exception and the President is very clear about the
need to treat -- by the Armed Forces, to treat detainees humanely and
consistent with the Geneva Convention and that has been their

MR. HAYNES: If I may, just one follow up. The Geneva
Conventions include a number of requirements or provisions,

including, for example, that prisoners of war -- and prisoners
of war are the ones that are governed by that particular convention ­
-shall have access to a canteen, musical instruments, periodic pay
in Swiss francs, things of that nature.

So that language is part of what's reflected in that. And the
"military necessity" component of it builds in the fact that 7 which


is also within the Geneva Conventions -- that military necessity can

sometimes allow deviations from some of the principles, allow warfare

to be conducted in ways that might infringe on the otherwise

applicable articles of the convention that would be applicable.

Q Mr. Dell'Orto, a question for you. There seems to be in
the presentation you gave an assumption chain, if you will, having to
do with those who end up in Guantanamo, that. they were selected from
a group captured in Afghanistan, therefore, there seems to be an
assumption that they're terrorists; there's an assumption that
they've been trained in techniques to avoid interrogation pressures,
therefore, if they're giving no information there's an assumption
that they have information to give and the pressure must be ramped­up.

As we've seen, there have been, I think, some very credible
accounts that there have been all kinds of mix up in people who got
brought into Guantanamo. And so how do you make the determination
that the person you've got whose not giving you information is
somebody who's trained in denying you information, versus just some
guy who was just rounded up with the usual suspects and has no
busines6 being there?

MR. DELL.'ORTO: Well, I don't accept the various premises of
your question. First, the determinations made on the battlefield are
that we have an unlawful enemy combatant. It's based upon all manner
of things that are considered -- is he carrying a weapon, who was .he
with at the time he's captured. I mean, it's the traditional
analysis you go through -- that a commander in the field goes through
when he picks up a person. Is it hard in this instance because the
guy may not be wearing a uniform? It probably is.

But, still, given the fact that we go from 10,000 down to
something considerably less in number shows that there's quite a bit
of care taken to cull out, in this instance, not who is an enemy
combatant versus who isn't, but among the enemy combatants who are
found on the battlefield, who have significant intelligence value or
pose a very significant threat. So I would say, in the first
instance, it's not a presumption, it's a finding on the battlefield
that you have an unlawful enemy combatant.

Once you get him to Guantanamo, simply because he doesn't give
you a lot of information, doesn't necessarily lead you to conclude

that he has a lot more. It may be that he is a relatively -- a
lower level al Qaeda fighter, who may not have more information. But
you piece all of that together, the more people you talk to, the more
linkage you develop among these folks.

And so it may be that you never go to any additional techniques,
because you determine there's not much more information that he has.
He may, in fact, be a person, as we have had in over a hundred cases,
where we determined -- contrary to what we've done in previous
conflicts -- that we're going to release people prior to the end of
hostilities, even though we could have held him, because he is
determined to be of relatively low threat at this particular point in
time, and he has relatively low intelligence value to cause us to
retain him any longer.

And so we transfer him back to his country of origin, his home
country, either for an outright release, subject to a parole
agreement to which he agrees, so that he doesn't rejoin the fight, we
hope, and/or that he is returned to his home country for continued
detention by that country, if it has a basis to for detaining him, or
for close observation, to make sure that he doesn't leave the borders
and return to.the fight somewhere.

So we don't necessarily -- we do pick up unlawful combatants,
and we screen them and get to those that we think are of particular
value for the purposes of Guantanamo,.but once we get them there, if
he turns out not to have the intelligence that we thought he might,
it doesn't mean that we necessarily go to the next step in the
interrogation techniques. We may conclude that's as much as there is
with him. Arid so he becomes -- assuming he doesn't say, "I'm going
to kill every American I can get my hands on any time I see one" -­he doesn't pose a particular threat, he becomes a candidate for
release, as have over a hundred of his compatriots, if you will.

Q And a quick follow. The particular al Qaeda member you
talked about, I believe there have been some published reports that
he was put through a process where he was being, you know, dunked in
water and made to believe he was going to drown. Are those reports
accurate? And is that a technique that's part of this approval?

MR. DELL'ORTO: It is not a technique that's part of this
approval, and based on everything I know, that is an absolute false

Q I'd like to push Judge Gonzales, if I could, just a little
bit on why you convened this today? You said it was to clear up, in
your words, much confusion. Mr. Haynes used the word "extraordinary"
to describe this session and this release several times in your
presentation. And, certainly, I've covered this White House since
day one and never seen anything like this. It is extraordinary.

(Laughter.) So, thank you, but also, is it fair to assume you
think you have an extraordinary public relations problem on your
hands, is that why you're doing this?

JUDGE GONZALES: I think -- what's your name, I'm sorry?

Q Scott Lindlaw, AP.

JUDGE GONZALES: Scott, we thought a lot about this, because we
know that all the information that we convey to you and to the world
also goes to our enemies. And that's something we had to consider
very, very carefully. On the other hand, we also felt that it was
harmful to this country, in terms of the notion that perhaps we may
be engaging in torture. That's contrary to the values of this
President and this administration. And we felt that was harmful,

And so weighing those considerations and the fact that,
regrettably, some of these techniques have already been leaked, and .
probably are already known by the enemy, we made the decision that
this was probably the right thing to do at this particular time.

Q And apart from public perception, Secretary Rumsfeld cited
three very concrete reasons, in terms of national security. He said
the perception of torture raised questions among American troops,
raised doubts, reduced the willingness of Iraqis and Afghans to
cooperate, and could possibly encourage torture by other countries
against American civilians, against American soldiers. Did that go
in to your calculation to do this today?

MR. McCLELLAN: Let me come back to what I said earlier in the
briefing. I think what went into our consideration was that there is
a lot of interest in the policies and the techniques that were put in
place. And so we wanted to make sure that you all have an accurate
account of the great lengths we went to, to come up with these
policies and make sure that the techniques were consistent with our
policies and with our values and with our laws. And so I think
that's the context you have to look at it in.

We also wanted to make sure that we set the record straight.
There's been a lot of reporting of bits and pieces, and this gives
you a comprehensive look at the great lengths we went to, to come up
with these techniques that are consistent with the policy the
President developed.

Q Judge Gonzales, and Mr. Haynes, if you would comment on
this, as well. Judge, I just wanted to clarify what you said in your
opening statement, that a lot of the discussion that you described is
theory and in the abstract. Did I hear you correctly to say that
that was considered to be unnecessary at a particular point? I just

wanted -- I may have that wrong. I just want to make sure I
understand what it is.

And then separate from that, I'm wondering if it's the view -­you took great pains to say this was a very thoughtful and
deliberative process, which apparently it was. Mr. Haynes, if you
would comment -- I mean, does this reflect the fact that the
President may be taking an overly narrow view of the legal options
available to him, given the fact that based on Mr. Dell'Orto's
presentation, the more aggressive interrogation techniques appear to
work rather well with Mr. al-Khatani, that maybe more aggressiveness
is needed, and not less.

JUDGE GONZALES: Well, we obviously want to be as effective as
we can in our interrogations and getting information that will help
this country win the war against terrorism. But the President is
very clear that we're not going to do it in a way that jeopardizes
our values, is contrary to our values, and we're not going to engage
in torture. That's just his position.

In terms of my comment about the legal analysis, I'll give you
an example. The August 1 memo -- even though the questions presented
to the Department of Justice related to the torture convention, and
related to the torture statute and its application in this current
conflict, there was an analysis on a question that was not presented,
which was the President's constitutional authority as Commander-in-
Chief. He hasn't exercised that authority. It's unnecessary. And
so that would be one example of something that is being looked at,

-and may -- the Department of Justice will make a decision as to
whether or not that's something that should continue to remain, in
their opinion.


I just want to follow up on Mr. Haynes' comment, as well.
Are you suggesting, Judge, that therefore it was counterproductive,
that analysis was counterproductive?

JUDGE GONZALES: -No, I'm not suggesting that it was
counterproductive. As a lawyer, part of your job is to present
options to decision makers, you know? And I think that's what the
Department of Justice was doing here, was presenting options to the
decision maker. But they weren't necessary to the decision the
President ultimately made. They don't serve as the underpinnings for
those decisions.


If Mr. Haynes could comment on, doesn't this process of
these various meetings reflect a good deal of disagreement within
this administration about the best way to balance the values we have
as a country and this need to gather intelligence?

MR. HAYNES: I won't speak for the entire administration. I can

speak for the Defense Department, and confirm that there was a
very, very lively debate. It's what the Secretary wanted, in asking
me to convene this group, to get all the stakeholders, not just the
lawyers, because there are very important concerns that are not legal
concerns. And maybe I can use that and jump back to your first
question, and if I may, do a follow up to an earlier question.

I don't want to get too deep,here, but the role of a lawyer must
not be understated or overstated. There can be a tendency to clothe
policy decisions in legal terms. And that's an overstep,
overstepping by a lawyer if he or she doesn't make that point clear.
I don't mean to say that a lawyer should step back and be very
austere and discuss only the law, but he must -- he or she must make
the distinction between what the law is and what the policy is, and
in certain cases, make recommendations -- make clear what is what.

This working group that got together included very, very good
lawyers and very, very good professionals in other fields. And they
disagreed. And you won't be surprised to hear the fact that when you
get more than one lawyer together, you sometimes get more than one
opinion. That certainly was and remains the case, particularly about
some of the aspects of the legal analysis. But I think that's
healthy, and the Secretary thinks that's healthy. And there were -­at the end of the day, there were and remain differences of opinion
on both ends of the spectrum about what ought to be employed. So I
think that answers your question.

I'd like to briefly follow up on a question this gentleman asked
earlier, about how do you know whether you've got somebody that
really has more information or not. I'd invite you to look at some
of the other procedures that our department, the Defense Department
has made available to the public about how we look at detainees in
Guantanamo. There is so much process at Guantanamo. Judge Gonzales
and Mr. Dell'Orto talked about determinations on the battlefield
about whether somebody is an enemy combatant. There was an on the
ground determination, there was a screening that led to people coming
to Guantanamo.

There is in place, and published at DOD, additional process that
must be done. Within 90 days of arrival at Guantanamo there must be
an additional determination that somebody is an enemy combatant, and
then annually thereafter an additional determination. Everybody down
there has been through all that.

Now on top of that there are the interrogations that go on.
There are the threat assessments that go on. There are the law
enforcement evaluations that go on. There are other countries who
come and question people that go on. Just a month ago the Secretary
issued some new procedures that are to be begun as soon as this week,

where a separate official -- and it is the Secretary of the Navy who

has been designated as the deciding official -- will employ, at
least annually, for people at Guantanamo under our control, a review
process in which the detainee may present his own story to a panel of
three military officers who will review that information. That
person will be assisted by another military officer. Other
departments and agencies will be able to provide that information to
those boards, and those boards will make recommendations to the
senior official, in this case the Secretary of the Navy, who will
make those determinations about whether somebody should be released'
or transferred or various purposes.

So wholly 'apart from the interrogators' evaluation of an
individual, there are lots of other eyes that look at these people.

Q Judge Gonzales, the presidential memorandum of February 7,
'02, was that the last time the President personally weighed-in on
this issue of treatment? And, given the atrocities we now know
about, has he expressed any interest in getting more involved going
forward? And for Mr. Dell'Orto, could you please give us a sense on
the techniques -- the new techniques that were approved -- the number
or percentage of enemy combatants who were recipients of these

JUDGE GONZALES: Ed, he weighed in as recently as this afternoon
on the issue of the treatment of detainees. On numerous occasions
he's talked publicly, and certainly privately, with his advisors
about what he expects, in terms of treatment of detainees. I mean,
what he has said -- I want people to follow the law, and that we
don't torture people, that's what he has 'said. That's something that
he's been very, very consistent, again as I said in my remarks, from
the early days of this administration.

MR. DELL'ORTO: I can't deal in precise numbers. I did point
out that the Secretary requires notification on four of the 24.
Again, I won't give you a precise number, but I would describe the
notifications that have come forward to date as being less than a

,handful; a very, very minuscule percentage.

Q Of individuals?

MR. DELL'ORTO: Of individuals.

Q I was wondering -- I think Judge Gonzales might be the best
person to answer this question. As I recall, reading the memo that
was leaked in the Washington Post that caused all the controversy --

JUDGE GONZALES: Which memo that was leaked are you referring
to? (Laughter.)

Q One of the elements that has caused a lot of controversy
10/7/2004 UNCLASSIFIED DOS-000954

was not just the Commander-in-Chief's authority to allegedly
waive it, but the actual definition of the torture. It was
criticized as a very narrow definition. I read the memo, like, over
a week ago, but there were all sorts of things in there, like, if you
didn't -- if you weren't doing it just to make someone suffer, but
for the purposes of gathering information, maybe it wasn't torture
then. It was just a very narrow construction. And so far I've heard
you say that, well, we haven't tortured.

What's your interpretation of the congressional statute? Is it
the same one that was in the memo leaked in The Washington Post, or
have you adapted a different interpretation of that statute and

JUDGE GONZALES: I haven't looked at that memo closely
recently. So in terms of what that memo actually says, I'm not going
to comment specifically on it. I can say, as I said earlier, that
the Department of Justice is going to be giving a briefing, and so
they can certainly talk about their definition of torture. It is
their analysis of Congress' definition of torture.

And as I said earlier, and I said repeatedly, we are going to be
very aggressive in the interrogation of these detainees, because they
have information that may save American lives and the lives of our
allies. But the President has also been very, very clear about the
need to do this in a way that is consistent with our domestic and
international obligations. So I'm just going to leave it there.

Just to follow up, in any place -- in these other holding
facilities are you going beyond the 24 methods that the Secretary has
approved for Guantanamo, either through a special access program or­through another government agency, besides the Defense Department, or
just through ordinary Defense Department
programs and other --


JUDGE GONZALES: We're not going to comment on anything beyond
what is -- accepted Department of Defense. Let me just say that
throughout the entire government, the directive is clear: no agency
is to engage in torture; every agency is expected to follow the law.
As far as I'm told, every interrogation technique that has been
authorized or approved throughout the government is lawful and does
not constitute torture.


On just what the Judge was saying, are we .wrong to assume
then, that the CIA is not subject to these categories of
interrogation technique? For instance, if DOD -- if the military was

JUDGE GONZALES: I'm not going to get into questions related to
the CIA.

Q But we know in certain instances that you had Agency people
along with military people, and isn't that just a convenient loophole
to allow one person to use certain techniques that are prohibited by
the other?

JUDGE GONZALES: I'm not going to get into discussions about the
CIA, except to repeat what I just said, and that is that the
techniques that they used that have been approved -- they've been
approved and vetted by the Department of Justice, are lawful and do
not constitute torture.

Judge, can you tell us which memos the President actually
had access to, or any one of you? I understand that he didn't have
access to all the directives -- Pentagon directives.


JUDGE GONZALES: I don't -- I can't say with certainty. I don't
believe -- with respect to Pentagon documents, I'm not -- I'd be
surprised if he had access to those. But it's possible that the
Secretary may have brought them to the President. I don't think so.
With respect to the opinions, I don't believe the President had
access to any legal opinions from the Department of Justice.

Q You just mentioned that the presidential memo and two
directives from Rumsfeld were ones that formed the policy. Can you
tell us which ones?

JUDGE GONZALES: The February 7th determination by the President
and the current policy -- the interrogation policy -- is the April
16th directive from the Secretary of Defense.

Q Judge, I wanted to follow on what Suzanne and Ed are asking
you. I think people here are looking for more specifics about the
President's actual involvement, other than signing his name, to this
February document. Can you be more specific about how many meetings
did he engage in with you to discuss this? Did you put together a
memo yourself, because there isn't one here, that would have preceded
his signature on his own? Was there a meeting that involved the Vice
President? Can you just give us some more idea, because the
President has said we should feel comforted, but I'm not sure there's
a lot of specifics here about his interest, his personal interest.

JUDGE GONZALES: I'm not going to get into a discussion about
the internal deliberations of the White House. I can say that during
this period of time there was a great deal of debate, over a period
of days, maybe a period of a couple weeks, when the presidential
determination was made, all the agencies had actually weighed-in very


With the President, personally?

JUDGE GONZALES: I believe so. But the equities of all the
agencies were presented to the President, and they were before the
President as he made his decision.

Q And who did that, you?

JUDGE GONZALES: Again, I'm not going to talk about --

Q Well, wait, I'm not sure I understand, why is that a
difficult thing to discuss?

JUDGE GONZALES: It's not a difficult thing to discuss, it's
just one that I don't choose to discuss.

Q Why?

JUDGE GONZALES: I just don't.

Q Why wouldn't that be helpful?

JUDGE GONZALES: We normally don't talk about the internal
deliberations within the White House. I don't think that's •

Q Judge Gonzales, maybe this is for you. When we're talking about Afghanistan and the al Qaeda and Taliban detainees that Geneva did not apply to, a variety of you have said that in Iraq it was all Geneva all the time. It seems like that line was drawn pretty quickly. Can you just give us a sense of why that line was drawn'so quickly, since the President, himself, talked about al Qaeda and Iraq being allies?
MR. HAYNES: I can take a stab at answering that. The conflict
in Iraq is a conflict between two states that are parties to the
Geneva Conventions. It's a traditional war, and the conventions are
clear that they apply and that the treaties apply and that's the way
the Defense Department has operated.


Okay. And just a quick follow up. We hear a lot about Mr.
Zarqawi in the context of the conflict in Iraq. How, then, would he
be handled, in the context of a place where Geneva rules all the

JUDGE GONZALES: Very interesting question.


To which the answer is? (Laughter.)

MR. HAYNES: I don't want to get into providing legal opinions
on the fly. But the conflict that -- let me try to put it to

approach it this way. The Geneva Conventions govern conflicts
between parties, or internal conflicts. Our activity in Iraq,
without question, was governed by the Geneva Conventions, whether
it's the 3rd (inaudible) treatment of prisoners of war, or the 4th
Geneva Convention (inaudible) to the treatment of civilians.

Each of those -- so there's no question but that they apply in
Iraq to that conflict, period. How one deals with the conduct of the
war, given the fact that they govern, is a matter of treaty
application. And as specific circumstances arise, you have to look
to the relevant provisions of the treaty. In some cases that may be
many relevant provisions that must be considered. But as I've said,
I don't want to get into an extended --

Q When we started, Judge Gonzales said we've got to realize
the people we're dealing with here, and talked about the beheadings.
Zarqawi has been linked to the beheadings. And, Judge, you seemed
then to suggest that these -- that Geneva wouldn't apply to the
people we're talking about here, if that's in fact Zarqawi, since
he's been linked to the beheadings. So then that would seem to rule
that Geneva doesn't apply.

JUDGE GONZALES: The only thing I would add to Jim's comment is,
these are very difficult legal questions. I can say that
irrespective of whether or not we're dealing with al Qaeda in Iraq or
Guantanamo or Afghanistan, the President has said the Armed Forces
are going to treat people humanely and we're not going to engage in

Q Mr. Haynes pointed out that, you know, in Iraq they had a
traditional war. But the President and the Secretary of Defense were
on television every day referring to these people as terrorists. Is
it possible that the soldiers in the field got the wrong idea about
that, and maybe were not treating them with all of the conventions
that you assumed in Washington were being applied?

JUDGE GONZALES: That may be more a question for DOD. I will
say, soldiers are trained from day one in their service to apply
Geneva. I mean, that's sort of the default position, I think, that
Geneva is going to apply.

MR. HAYNES: My first response would be not to speculate about
what's in any individual's mind.

Q Let me just finish with this. The President repeatedly
referred to these people as terrorists, which would suggest that the
principles of Geneva do not apply. In retrospect, wouldn't this be

JUDGE GONZALES: I'm not sure why that would necessarily

follow. I disagree with that.

All of you talked about this -- I think, Judge, you refer
to this legal box in which the President made more (inaudible)
decisions. But you also said that those decisions and those legal
analyses were primarily or totally for Guantanamo, but not Iraq, that
Iraq was not part of that calculation. How do you reconcile that
with General Miller going from Guantanamo to Iraq and making
recommendations, at least in part based on what he was doing in
Guantanamo? I'm not sure -- I don't quite understand how that's
totally separate.


MR. DELL'ORTO: Let me try to describe it. The whole notion of
Guantanamo is -- goes well beyond interrogation. And it also
includes how you structure a facility, how you merge databases, fuse
databases as you're gathering intelligence. I mean, there is much
that is technical and structural about what we have learned about
Guantanamo. And while Guantanamo has a relatively small number of
people compared to the number of detainees we're dealing with in
Iraq, certainly there are organizational concepts about Guantanamo
that have relevance for dealing with detainees in Iraq. And so
there's a lot of technical expertise that General Miller was able to
bring, given a lot of success he had at Guantanamo, acknowledged
success in putting together standing operating procedures for running
a detention center and things like that. So that's a lot of the
value that he brought to Iraq.

Maybe General Alexander can add to that.

GENERAL ALEXANDER: Just let me give you the five categories
that he brought up, since .he asked that question, which was, the
recommendations were on integration, how you establish a coordinating
authority for all of (inaudible) and work that together;
synchronization, how you synchronize the events that are going on;
the fusion -- and that was the one example I gave you about how you
bring an analyst in to work with the interrogations.

He did talk about interrogations, and one of the lessons that
they learned at Guantanamo, and the application of some of the
techniques. But those techniques that they used are the ones that
were in the field manual, and working those there. The fifth one was
detention operations, where the military police sergeant major from
Guantanamo talked to the military police there on how to run the
facility and train the people up to the standards, the techniques and
procedures, because that training was something that they saw as a


Two things, real quick. One, some are saying, some
lawmakers are saying that in light of these prison scandals, there
needs to be a retraining of the Geneva Conventions to many of the

U.S. military police. Do you find that is something that needs
to be done?

And two, why is it -- many human rights groups, international
human rights groups are very upset with the White House because they
are not -- well, with the Department of Defense, that they are not
allowing these prisoners at Guantanamo Bay to know why they're kept.
What is the reason why these prisoners are not told why they're being
kept there, as well?

MR. HAYNES: It surprises me that somebody would say they don't
know why they're being kept.


The ICRC is saying they have made that clear that you, that
this administration is not allowing them to know why they are being
kept at Guantanamo Bay.

MR. HAYNES: Without responding directly to your assertion about
what the Red Cross is saying -- not because I disagree necessarily,
but because there is an important principle about the Red Cross
relationship to countries that engage in combat that those
communications should be kept confidential -- let me answer this, or
try to address your question this way.

There are critics, without ascribing the criticism to anybody in
particular, who say that the United States is.wrong in detaining
people at Guantanamo without providing them a lawyer, without
arraigning them, without guiding them -- pressing charges, and trying
them for crimes.

Our view is that that is not required in warfare. For
centuries, it has been undisputed that countries at war may detain
the enemy for the duration of the hostilities. That's not
incarceration for committing crimes. That's protecting the country.
And it is lawful, and it is consistent with our tradition and
consistent with the tradition of every civilized country in the
world. This is not criminal punishment that's going on at
Guantanamo. It is protecting the American people and our allies from
people who are trying to kill us.

Now, some people think that we're wrong, we're wrongheaded in
that. They say you should either charge them with a crime; or you
should treat them as prisoners of war, as that term is detailed and I
described earlier under the conventions; or you should let them go.
Now, we think that there are other options. We're in a unique
conflict. We're in a global war on terror against people who are not
just committing crimes; they're killing Americans on a scale that
amounts to warfare. They've demonstrated that on September 11th.
They've demonstrated it in other countries with their attempts. And

they, we believe, want to continue to do that and demonstrate it
even more spectacularly.

So the President and the Secretary of Defense and those people
in the administration, and the soldiers -- the brave soldiers out
there in the world are trying to protect Americans, and they're doing
it lawfully. Some people disagree with how we're doing it.
Notwithstanding that, as I mentioned earlier, we have so much process
at Guantanamo, so much more than is required by the Geneva
Conventions -- which, by the way, to those who say that we are not
complying with the Geneva Conventions, what they point to is that we
did not make a determination under Article V of the Geneva Convention
to convene a so-called competent tribunal to resolve doubt about
whether a person is a prisoner of war. That'S all the convention
says. As implemented in the United States military regulations, that
means you have three officers on a battlefield and they review the
case one time, and once they make a decision, the decision is over

As I pointed out to the gentleman earlier, we have required and
in place and working multiple layers of periodic review. And we have
started yet another one that it is far more generous in process given
to the detainees than anything required by the Geneva Conventions.
So I just disagree, and I think there are many others that disagree,
as well.


All right, wait a minute --

MR. McCLELLAN: All right, let's --

That didn't answer that question, though, about the Geneva
Conventions. Should the U.S. military personnel -- police, rather be
retrained on the Geneva Conventions, in light of all these prisoner
abuse scandals?


MR. HAYNES: Well, I'll say without drawing any connection
between what we've seen in training, regardless there is periodic
retraining embedded in the doctrine of the United States military.
And it will be done. Whether it's prompted by what we've seen or
not, it will be done. And that's a good thing.

MR. McCLELLAN: All right, make this the last one. Over here.


Is there.any concern within the administration that now
that you've released these details and that al Qaeda knows the limits
of what they'll be subjected to, that it might embolden al Qaeda,
given the fact that you described them as -- they'll fight until the
rest of their lives against America?

MR. HAYNES: I think I heard your question. The Judge already

talked about the difficulty of this decision. And we're
fighting a war. And to disclose in such a public way exactly what we
do, it is -- it hinders us in some way. The enemy now knows what
some of the limits are. There's some value in having some
uncertainty. But the decision is made, and sometimes you make tough


Would you rather it hadn't been done?

MR. HAYNES: No, actually, I don't. I think this is a good
thing. Under the circumstances, this was the right thing to do.. And
we'll continue to face these kinds of things. I talked earlier about
this war. We have to look at how we fight this enemy with a fresh of
set of eyes on just about every issue. The Defense Department has
dealt with a number of things like this. It's interesting to look at
the debate associated with 9/11, and the findings of the 9/11
Commission, which is looking at why was there a wall between those
people involved in law enforcement and those people involved in
counterintelligence and intelligence.

That wall was there for reasons that seemed very good at the
time. But it prevented information sharing. We have had to address
questions in our department on questions like data mining. In other
words, how does one look at existing databases. in a way that might
enable the government to learn information about potential attacks,
while at the same time protecting many values that are
extraordinarily important, like privacy and liberty in the country.

The Secretary of Defense chartered and advisory committee over a
year ago chaired by Newt Minow, from Chicago. And had some other
quite notable scholars -- I'll leave somebody out -- but Bill Coleman
and Jack Marsh and Lloyd Cutler, and Gerhard Caspar, and Zoe Baird,
and Floyd Abrams and others -- to look at that question and advise
the Secretary. How do you look at -- how do you think about the
national security on the one hand, and privacy and liberty of
American citizens on the other hand when you're looking at
information? There are lots and lots of those kinds of questions
that we have to evaluate, oftentimes without much time to think
because they come up quickly.

But there are important_ issues that the country has to face, and
this is one of them. I know there's some very good work going on in
academia, for example, about highly coercive interrogations is the
phrase I've heard up at Harvard. There have been people outside the
administration.. Judge Gonzales mentioned a senator who spoke the
other day. These are national questions that need a lot of thought.
Some of that thought has to be done on a split-second basis by people
in the government with a lot of secrecy for very good reason. But
over time, we have to deal with those things. In my view, this one

of those.

MR. McCLELLAN: And let me just add one thing. And this is a
stark contrast here because we are nation of laws, and we are a
nation of values. The terrorists follow no rules. They follow no
laws. We will wage and win this war on terrorism and defeat the
terrorists. And we will do so in a way that's consistent with our
values and our laws, and consistent with the direction the President
laid out.

Thank you all very much.

END.4:55 P.M. EDT