Transcript: Press briefing Q&A on the Constitution Project’s Task Force report on detainee treatment – April 16, 2013

Partial transcript of the press briefing Q&A on the Constitution Project’s Task Force report on the torture of detainees. The press briefing was held at the National Press Club in Washington, D.C. on April 16, 2013:

…You mentioned a little bit about the forced-feeding of some hunger striking detainees at Guantanamo. I wonder if you could talk a little more about what the long-term impact of that is and…how can this situation be resolved?

…About the political will to do what the administration has said is its intended goal of closing the facility and due process for as many of the detainees as they can put on trial. It seems there’s no will on either side…Congress is blaming the White House; the White House is blaming Congress. What could be done to move both of these issues forward?

Dr. Gerald Thomson:
The long-term impact can be seen, I think, in two ways. One, the potential impact on the detainees in terms of success, in terms of personal risk and injury. And second, what’s going to be the impact politically on the situation at Guantanamo.

You know that the task force came out very strongly condemning forced feeding and this is in keeping and in line with international ethical standards both of professional treatment of hunger strikers and the ethics of treating hunger strikers. We do not believe forced feeding should be an approach to the hunger strike.

If you could imagine being a detainee and using refusal to eat as a form of protest and then you are forced to eat, forced physically to eat by being strapped into a specially-made chair and having restraints put on your limbs – your arms, your legs, your body, your head – so you cannot move, having a tube inserted into your throat that extends into your stomach and you’re trying to resist that with the only muscles that are free in your throat – pain, discomfort obviously. But in addition to that, food is then forced in liquid form into your stomach. You’re kept in the chair for at least 2 hours – usually more than 2 hours – to prevent you from vomiting and undermining the forced feeding. You can’t go to the bathroom during that time. Your dignity is taken away.

The World Medical Association and international officials have clearly identified that process as cruel, inhumane, and degrading treatment, and what I believe, given the level of brutality, could extend to torture.

Now, since you’re refusing food, that’s going to happen to you twice a day. Day after day. Month and week after week. And for some detainees, it’s gone on for years – as much as 4 years and longer.

Now, no question that that has great risk to the detainee and if the detainee is not treated properly, some damage can occur and obviously, there’s always the risk of death.

We worry about this hunger strike. It’s not the first as you all know at Guantanamo Bay. Perhaps the most dramatic, most focused and extensive were in 2005 and they were 2 – dealing with the conditions of the detention camp and beginning to come to grips on the part of the detainees with the extended detention the hope of getting out of Guantanamo Bay.

The first part of that 2005 [hunger strike] ended because the detainees thought there was going to be application of the Geneva Conventions when they had the discussions. When that didn’t happen, they had the second hunger strike and it was during that hunger strike that the restraint chairs and the forced feeding were introduced.

This now is a hunger strike occurring with very different circumstances. The last hunger strike seemed to have been broken by the use of forced feeding because the numbers dropped off dramatically during the forced feeding. In addition, you’d have to believe that there was some hope in association with that – that the detainees saw in addition to the forced feeding.

This time, we’re dealing with forced feeding and hunger strikers who may have much, much less hope. In fact, the reason for the hunger strike is an absence of hope.

So we’re concerned first of all that forced feeding is being used; second, we don’t have a lot of transparency about how that’s being done; and third, it’s very hard to see how we’re going to have a reasonable outcome here without some sort of intervention.

Ambassador James Jones:
…The second part of the question on when will the political will come about with Congress blaming the administration, the administration blaming Congress. Before you got to Guantanamo Bay, I thought of budget, gun control, immigration that seem to be prevalent in Washington these days.

I pointed out that we had unanimous agreement on all parts of our report with one exception…and that was on what to do with the Guantanamo prisoners, which are the minority of those who are there now, who have not been tried and who, for various reasons of evidence being tainted or whatever, probably will not be tried. And that’s where we had some disagreement and had a marked minority of opinion.

I might ask Ambassador Tom Pickering, however, who is very outspoken on this particular issue to comment on this – on her question of the political will.

Ambassador Thomas Pickering:
…If I knew the answer on political will, I suppose there would be more prophetic qualities to my history. One hopes that we will see it. One hopes that we will see immigration and gun control and other efforts.

I spent my life as a diplomat. I spent a good part of that life trying to importune other governments to live up to the rule of law. I was chagrined, embarrassed, and indeed in many ways felt undermined by the notion that our country, which instructed me on numerous occasions to uphold the rule of law particularly indefinite detention without trial was something that we now practice and continue to practice despite all of the questions that people attend to try to raise about a war and prisoners of war and all of the rest.

My sense is that we need a specific way forward. The report contains recommendations on a specific way forward – simply trial or military commission with rights and privileges equal to our Article III court system. If that won’t work, then various ways of deportation. And in the end if that won’t work, at least moving the prisoners to the United States and retaining them in the system which the immigration statute provides for ultimate deportation with regular reviews. This is not a perfect answer but it does in many ways address the question of the symbolism of Guantanamo, which I think is now an unfortunate blot on the record of the Untied States with respect to the use of the rule of law and indeed to the question of indefinite detention without trial.

We also recommend that in parallel with the position that occurred when our forces left Iraq, when the major effort is terminated in 2014, there be, in fact, a public statement declaration of the termination of any application of the thought that there is a wartime situation continuing with respect in particular to these detainees. And I think from my earlier remarks you will understand the importance of that.

Professor Richard Epstein:
…There were two dissenters to some of this – Asa [Hutchinson] and myself – and let me see if I can sort of identify what the sources of differences are.

First of all, none of them relate to the question of what had happened and how it should be avoided. I think all of us believe that one of the most dangerous findings is that people in good faith could do terrible things because authority tend to erode and to slip. As you go further and further down the chain what happens is a greater and greater departure from the things that were contemplated above.

But as a kind of a professional lawyer, remedial side is always extremely difficult to deal with even though there’s very strong agreement with respect to what is wrong under these cases. So on Guantanamo the terrible question is compared to what? And if the what turns out to be sending people to Bagram Air Force Base, where we’re now able to do it, that would be in my mind an even worse outcome. The way the Supreme Court in its Boumediene case interpreted some of our authorities, it says that the kinds of treatments that all of us are in favor only apply when you’re in the territory of the United States and shipping people to remote areas may give them fewer rights and also much less assistance that they could otherwise get.

On the question of the indefinite detention, I think we all agree that it’s a completely nightmarish situation because we do not know when a conflict ends and so therefore we do not know what to do in the end.

My own view is I would prefer to try some of these people, I would prefer to release some of them, but in many cases it seems that the evidence leaves you in limbo – strong enough to detain but not strong enough to try. And my view about that is I think what was said earlier about the need for a constant system of oversight and review is important. One of the things that’s wrong with the system of habeas corpus is it’s a once-and-for-all determination made at the outset of a hearing and that’s a mistake you have to constantly upgrade based on new information – you must have constant oversight by other individuals. And the situation here is very similar to that in general – surveillance where a kind of a requirement under the Fourth Amendment doesn’t deal with this situation. But the thought that you should allow this stuff to go on indefinitely without periodic review by some independent authority is, in effect, I think indefensible.

So you should understand that the differences that exist on this task force with respect to remedies are our means to a common end…And we hope that even if there’s some disagreements on the remedial side that we all agree that the report will place very powerful limits on what counts as a credible response to the difficult situations that we faced in the past and that we must do everything in the future to avoid.

Ambassador James Jones:
…A brief mention on the political part of your question. There’s a lot like “Not in my backyard” for a project in this regard. There’s a strong feeling among many on both sides of the political aisle that these people, if brought to the United States and put in a prison, would be a danger to the United States, a security problem for the United States. That has not proven to be true in other terrorist actions. The civil courts, the federal courts have been able to try these cases, get convictions, and I think there’s something like 300 prisoners fall under that rubric of terrorism that are in federal prisons on United States soil today and there have been no escapes and no danger to the society. But it’s the political feel that it could and that’s the problem.

…You gentlemen were not able to reach unanimous recommendation after 2 years of your own, I’m sure, very reasoned struggle. So what, if any, chances are there that Congress and the administration in a reasonable period of time can overcome the political, legal, legislative obstacles that have been set up to closing Guantanamo by the end of 2014 as you’ve suggested?

The other question relates to the Boston tragedy and I think what you’ve painted is a picture of an over-reaction in 9/11 and the treatment of detainees in counter-terrorism operations…What, if any, danger might you see on an over-reaction coming out of what’s happened in Boston in terms of the safety and security of public places, the kind of surveillance that’s conducted domestically?

Ambassador James Jones:
On the first question, one of the reasons for giving a comprehensive report and putting in context that you can relate to and particularly the recommendation that as much classified material that supports or rejects what we found be released is that will give Congress and the political forces a clearer picture of what really did exist and what exists today. And based on that, we think there might be some changes of attitude with regard to Guantanamo.

As far as the Boston over-reaction, to me one of the big problems of the post-9/11 was the lack of clarity in what people down the line were asked to do. And I don’t think that is likely to be repeated. I think that one of the things we clearly feel is necessary is a clear line of responsibilities and what you do with those responsibilities. Hopefully that won’t happen again.

Ambassador Thomas Pickering:
…The fact that we’re holding this press conference this morning in the aftermath of a tragedy of great proportions to the country and talking about correcting the errors of over-reaction should in itself, I hope, speak something to the public and to the press and indeed to those who have to make decisions – we have put in our report a kind of roadmap [on] how to avoid future error. And we hope that the fact that we decided to go ahead this morning despite what would be the normal tendency to postpone speaks to the question of could we and shouldn’t we get on the record what in fact is a record of the need for corrective action and do it even in the aftermath of a national tragedy of the proportions we saw yesterday.

Professor Richard Epstein:
One of the things that I think what we’ve learned from this report is that the single most dangerous notion in dealing with these things is to assume that necessity allows you to excuse yourself from the observance of standard procedures. It turns out that trying to make ad hoc judgements on the spur of the moment leads to more mistakes than it avoids.

And if one takes the analogy, for example, to sound medical treatment, the ability follow protocol or standard procedures when it looks as though there are independent reasons to avoiding it is one of the things you have to constantly stress. There’s much too much evidence or willingness to sort of stress the emergency of the moment and not enough to get really clear with respect to the background procedure.

So as a general matter, I think one of the things that we’ve said is you don’t use extraordinary procedures when regular procedures are available. You don’t spend your time arguing whether or not certain kinds of combatants are or are not covered by the Geneva Conventions. You follow the good military advice, which is you give everybody the same trial, you get more legitimacy than not out of the situation.

And on the other point, what I would stress in all of these cases is that when we had the Al Qaeda situation in 2001, we know it was done institutionally and we knew that we were fighting some kind of a systemic enemy. In this particular case, the early return suggests that it’s an isolated act of a given individual and that may well change the way in which one starts to think about how one treats this thing going forward in terms of national security and similar issues. And a lot will be found out in the next 72 hours or a week as to how this thing did end up. If it turns out to be a one-off situation, I think the long-term implications are obviously less than if it is not.

Former Rep. Asa Hutchinson (R-Arkansas):
I concur in terms of Boston we’re still learning obviously and I think the first responders, the homeland security officials, the FBI will follow protocols. They have no reason to think that there would be any over-reaction or breach of normal protocols and policies that have been put into place.

Brig. Gen. David Irvine:
First of all, as we approach the question of what brutal interrogation can or cannot produce, it became very quickly evident that there have been many claims made that harsh interrogation, torture – whatever you wish to call it, we have run into the euphemism frequently “enhanced interrogation techniques” – that this somehow works and therefore is a justifiable means of obtaining information.

In fact, it’s curious that today, probably more people in the United States believe that harsh interrogation A) works and B) ought to be used at least in some cases where there is a particular significant threat that’s involved. And one of the reasons this probably has evolved as it has is that the claims that it is effective, that it has save tens of thousands, if not hundreds of thousands of lives, have largely been made in a vacuum.

And as has been mentioned previously, we did not have access to classified information – particularly to the classified interrogation logs that were developed by CIA interrogators [and], in some instances, military interrogators. Those reports are of critical importance in determining whether the claims that have been made for the effectiveness for these means of interrogation have any validity.

At this point, from what we have been able to determine from the public record, the public record strongly suggests that there was no useful information gained from going to the dark side that saved the hundreds of thousands or tens of thousands of lives that have been claimed.

There are many instances in that public record to support the notion that we have been badly misled by false confessions that have been derived from brutal interrogations. And unfortunately, it is a fact that people will just say whatever they think needs to be said if the pain becomes more than they can bear. Other people are so immune to pain that they will die before they will reveal what an interrogator may wish to know.

So the issue of whether cruelty, whether torment, whether torture is effective is a question that we can’t say in every instance is not effective, nor can we say that it is more effective than conventional means of interrogation.

And this is an issue that will be resolved hopefully when the Senate Select Committee on Intelligence can release the details of the report that it has prepared where those Senators and staffers have actually gone into the classified record and have made an analysis based on that information. So far, the reports are that there is not much there that would suggest that this approach to interrogation has been useful.

I’ll just say in conclusion that in 2001, the United States have had a great deal of experience with tactical and strategic interrogations. We have been very successful over a long period of time in learning how to do this and do it very, very well. Unfortunately, when the policies were developed that led us to the dark side, many of those who were involved in formulating those policies have no experience with interrogation, have no experience with law enforcement, have no experience with the military in how these matters are approached.

One of the most successful FBI interrogators prior to 2001 was a guy name Joe Navarro and Joe is noted for having said – and he was probably one of the handful of strategic interrogators qualified to interrogate and debrief a high-value Al Qaeda prisoner. But Joe said, “I only need 3 things. If you give me 3 things, I will get whatever someone has to say and I will do it without breaking the law. First of all, I need a quiet room. Second, I want to know what the rules are because I don’t want to get in trouble. And third, I need enough time to become that person’s best and only friend. And if you give me those three conditions, I will get whatever that person has to say and I will get it effectively and quickly and safely and within the terms of the law.”

So we can do it well when we want to; we need to do more looking at our history to remind us what worked and why it worked and not resort what may seem at the time to be expedient, clever, or necessary.

…Number one, are you planning to have a briefing or hearing on the Hill on this issue or to have a member of Congress – Republican or Democrat – to sponsor a hearing? Are you planning to meet with the administration to speak about this issue to them?

And question for Azizah al-Hibri. How much of this issue impact the relationship of United States with the Muslim world?

Ambassador James Jones:
We have let it be known that we would be willing to testify and to brief anybody in the administration or Congress but it’s up to them to invite us.

Dr. Azizah al-Hibri:
I’d like to first say that I have been very honored to be on this panel and throughout those 2 years find out a lot of information that I did not know in such a great detail. It is important to me because one reason I’m in this country is because I believe in the ideals of the Constitution and of this country.

And let’s not mislead ourselves into thinking that everyone who comes here comes for economic reasons. There are a lot of people who come here for our values. And it is our values that we need to keep up because that’s who we are. The problem with these issues is that I’m now finding out a lot about them as you are.

But in Muslim and Arab countries, they’ve heard about these in some details for quite a while now because many of the detainees went back and talked. Many of these people – some were children under 18 – and were found not guilty and released. And they went back. And not only did they talk to their families and to their communities but some of them appeared on television.

That is a very uncomfortable position for me – someone who’s been working on human rights issues around the world for the last 30 years – to find out that we have a problem with human rights. I’m also – I work very closely on issues of religious freedom – there are also some of these issues that appeared in Guantanamo and other places as you might have heard.

This bother me a great deal as an American but you can imagine the situation abroad. And I’m very concerned that Al Qaeda has seen an expansion; it has been able to expand its forces from being initially in Afghanistan and now going all the way to Syria and parts of Egypt and so on. And I think that the more we stand up for who we are, the more we defend our values, the more we are going to gain and give influence and force to the moderate voice in the Muslim world that believes in us.

Dr. David Gushee:
The task force says in our report, “All societies behave differently under stress. At those times, they may even take actions that conflict with their essential character and values.” And that’s what we did here. We were under stress and we took actions that conflict with who we are, who we are called to be, and who we are committed to be. And then we spend about 10 years not being willing to face the truth about that, often by covering what happened with euphemisms and an awful lot of state secrets.

So I believe that our detainee task force has functioned as a kind of truth commission, revealing where we’ve strayed from our values by shining the light of investigation and analysis onto the problem in the hope that the next time we’re under that kind of stress we do not go down the same road. And it’s been an honor to serve on this panel.


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2 Comments on “Transcript: Press briefing Q&A on the Constitution Project’s Task Force report on detainee treatment – April 16, 2013

  1. Pingback: Post-9/11 Detainee Treatment | What The Folly?!

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