[Congressional Record Volume 150, Number 31 (Thursday, March 11, 2004)]
[Senate]
[Pages S2701-S2705]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DETENTION OF ENEMY COMBATANTS IN THE WAR ON TERROR
Mr. WARNER. Mr. President, as elected representatives of the American
people, Senators seek to ensure that the U.S. Government protects the
American people from international terrorism. We seek also to ensure
that the cherished liberties of the American people are preserved, and
to keep the people as fully informed as possible, as we fight the war
on terror.
On February 24, 2004, the Counsel to the President of the United
States, former Texas Supreme Court Judge Alberto R. Gonzales, addressed
the Standing Committee on Law and National Security of the American Bar
Association. Judge Gonzales discussed the legal basis for detention of
enemy combatants in the war on terror, including U.S. citizens Yaser
Hamdi and Jose Padilla. His address set forth details of the
decisionmaking steps that
[[Page S2702]]
resulted in the detention of Messrs. Hamdi and Padilla as enemy
combatants. The U.S. Supreme Court has accepted the cases of Messrs.
Hamdi and Padilla for review during its current term.
So that all my colleagues and the American public may be informed on
this important matter, I ask unanimous consent that the address by
Judge Gonzales be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Remarks by Alberto R. Gonzales, Counsel to the President
AMERICAN BAR ASSOCIATION, STANDING COMMITTEE ON LAW AND NATIONAL
SECURITY
In 1862, President Abraham Lincoln composed a letter to
Eliza P. Gurney in which the President considered how God
could allow the horrors of the Civil War to occur. In his
correspondence, our 16th President wrote:
``We must believe He permits it [this war] for some purpose
of his own, mysterious and unknown to us; and though with our
limited understanding we may not be able to comprehend it,
yet we cannot but believe, that he who made the world still
governs it.''
Lincoln's faith would not permit him to doubt that the
specter of American sons killing American sons was
providential. Many Americans surely had similar thoughts
about God's plan as we watched American Airlines Flight 11,
and then United Airlines Flight 175, slam into the Twin
Towers of the World Trade Center on the morning of September
11th. On that day, America was subjected to a brutal and
treacherous attack by an enemy that had declared war on our
society.
Whether consciously or not, we all realized on September
11th that some things would never be the same. We all
realized that the country now faced an unprecedented threat
that, in ways yet to be known, would alter the way we live
our lives and would alter the way the government goes about
protecting American lives. Over time, some of the ways
September 11th has changed our lives have become routine--
such as the longer security screenings we all now build into
plans when we are going to the airport. In part because these
changes have become routine, and particularly because there
have been, thankfully, no subsequent attacks on American
soil, some may be tempted to become complacent, and may no
longer be concerned about future acts of terrorism.
But we should make no mistake about it: Despite our
successes in capturing many al Qaeda leaders, in destroying
their base of operations in Afghanistan, and in preventing
domestic attacks, the threat posed by al Qaeda is still very
real. Al Qaeda is a fluid, adaptable, and resourceful enemy
that continues actively to plan attacks both against American
interests and our allies abroad and against targets within
the United States. As you all know from the period of the
heightened threat level that we all experienced around the
holidays, we continue to get specific intelligence about
planned al Qaeda attacks. We know from their previous
practices that members of al Qaeda are very patient, willing
to spend years to plan, train for, and then execute an
attack. It would be foolish for anyone now to declare that,
given two-plus years free from attacks within the U.S., the
domestic phase of the conflict with al Qaeda is somehow
``over.'' I can assure you that no one in the Government is
complacent about the threat posed by al Qaeda.
In response to this ongoing threat, President Bush, like
other Presidents during times of war, has taken strong,
sometimes difficult, action to protect American lives and
preserve the long-term survival of this country.
A few people--probably some in this audience--are
uncomfortable with the balance struck by this Administration
between protecting our country and preserving our freedoms.
They are uneasy with the idea of applying the law of war to
the enemy combatants waging war against this country,
including enemy combatants who are American citizens. Citing
the necessity of protecting our reputation in the
international community, our critics insist that these
combatants should receive the benefit of the rules and
procedures of our criminal justice system, those tried and
true methods that we use to deal with criminals such as car
thieves and drug dealers. They demand that our judges--even
though untrained in executing war plans--have a
substantive role in the war decisions of the Commander-in-
Chief.
In spite of the massive and horrific loss of life on
September 11th, the skeptics assert it is obvious that
America is not at war, much less engaged in warfare on
American soil. In their view, it is obvious that every
American citizen--even a citizen who, as a member of a
terrorist group, wages war against our sons and daughters--is
entitled to be] dealt with solely according to the rules and
presumptions of the criminal justice system, including the
right to counsel, the right to remain silent, and the general
right to judicial supervision of their detention. It is
obvious, they say, that foreign fighters, captured overseas
and detained by our military outside the United States, have
a right to challenge, in our civilian courts, the scope and
terms of their detention.
Respectively, these propositions are not at all obvious as
a matter of law; to the contrary, they lack any valid
foundation in domestic or international law. The
Administration's detractors fundamentally misunderstand the
nature of the threat this country is facing. America
confronts a lethal but unfamiliar enemy, sometimes hidden
here in our neighborhoods, waiting to hurt innocent people.
Our enemies are not constrained by civilian authority or by
any government. Nor are they inhibited by ordinary human
concerns for their own safety or lives. Some are fanatics who
believe their greatest power can lie precisely in their
disregard for human life and their willingness to resort to
indiscriminate violence, as we witness nearly every day in
bombings and shootings around the world. They do not love
liberty, they do not respect law, they do not cherish life.
Certain propositions are, in my view, clear. First, the
brutal attacks of September 11th--which killed nearly three
thousand people from more than ninety countries--were not
only crimes but acts of war. Since at least that day, the
United States has been at war with al Qaeda. While al Qaeda
may not be the traditional armed force of a single nation
state, al Qaeda is clearly a foreign enemy force. It has
central direction, training, and financing and has members in
dozens of countries around the world who are committed to
taking up arms against us. It has political goals in mind. Al
Qaeda has attacked not only one of our largest cities,
killing thousands of civilians, but also has attacked our
embassies, our warships, and our government buildings. While
different in some respects from traditional conflicts with
nation states, our conflict with al Qaeda is clearly a war.
As a practical matter, this state of war is not in
dispute--not by the United Nations Security Council, which
passed a resolution in response to the September 11th attacks
recognizing the right of states to act in self-defense; not
by members of NATO, or the Rio or ANZUS treaties, all of
which unanimously invoked their treaty clauses regarding
collective defense from armed attack; and not by the United
States Congress, which acted to support the President's use
of all necessary and appropriate military force against al
Qaeda.
Second, the President is determined to win this war and has
directed that all instruments of national power be directed
to this new type of enemy. Because the threat is not only
against our military abroad, but also against civilians here,
the Department of Justice and the Department of Homeland
Security share responsibility with the Department of Defense
for the successful prosecution of this war. To suggest that
an al Qaeda member must be tried in a civilian court because
he happens to be an American citizen--or to suggest that
hundreds of individuals captured in battle in Afghanistan
should be extradited, given lawyers, and tried in civilian
courts--is to apply the wrong legal paradigm. The law
applicable in this context is the law of war--those
conventions and customs that govern armed conflicts.
Under these rules, captured enemy combatants, whether
soldiers or saboteurs, may be detained for the duration of
hostilities. They need not be ``guilty'' of anything; they
are detained simply by virtue of their status as enemy
combatants in war. This detention is not an act of punishment
but one of security and military necessity. It serves the
important purpose of preventing enemy combatants from
continuing their attacks. Thus, the terminology that many in
the press use to describe the situation of these combatants
is routinely filled with misplaced concepts. To state
repeatedly that detainees are being ``held without charge''
mistakenly assumes that charges are somehow necessary or
appropriate. But nothing in the law of war has ever required
a country to charge enemy combatants with crimes, provide
them access to counsel, or allow them to challenge their
detention in court--and states in prior wars have generally
not done so.
It is understandable, perhaps, that some people, especially
lawyers, should want to afford the many due process
protections that we have grown accustomed to in our criminal
justice system to the individuals captured in our conflict
with al Qaeda. It has been many years, fortunately, since the
United States has been in a conflict that spans the globe,
where enemy combatants have been captured attempting to
attack our homeland. But the fact that we have not had
occasion to apply the well-established laws of war does not
mean that they should be discarded. The United States must
use every tool and weapon--including the advantages presented
by the laws of war--to win the war against al Qaeda.
Within this framework, today I would like to discuss what
some may consider the most controversial of the President's
actions, namely the detention of American citizens as enemy
combatants, wherever those persons may have been seized, and
more specifically the determination that a person--
particularly an American citizen--captured in the United
State is an enemy combatant. As you know, we have detained
two American citizens as enemy combatants.
The first, Yaser Hamdi, is a Saudi national who was a part
of Taliban military unit that surrended to Northern Alliance
forces in a battle near Konduz, Afghanistan in late 2001. He
was armed with an AK-47 assault rifle when he surrendered. He
has admitted that he went to Afghanistan to train with and
fight for the Taliban. Following his capture, a U.S. military
screening team confirmed
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that Hamdi indeed met the criteria for enemy combatants over
whom the U.S. forces were taking control. Afterwards,
military authorities learned of records indicating that
Hamdi, although a Saudi national, had been born in Louisiana.
He was transferred to a naval brig in the United States where
he remains detained.
The second, Jose Padilla, also an American citizen, was
among those who sought to bring terror to our soil. Padilla
has served time in the U.S. for murder and for a handgun
charge. In 1998, following his release from prison, he moved
to Egypt, where he took the name Abdullah Al Muhajir. In 2001
and 2002, Al Muhajir, or Padilla, met with al Qaeda officials
and senior operatives, and proposed to conduct terrorist
operations within the United States--includinga plan to
detonate a dirty bomb--as well as the detonation of explosive
devices in hotel rooms and gas stations. Padilla received
training from al Qaeda operatives, and was directed by al
Qaeda members to return to the United States to explore and
advance plans for further attacks against the United States.
Multiple intelligence source separately confirmed Padilla's
involvement in planning terrorist attacks by al Qaeda against
United States citizens and interests. Like Hamdi, Padilla
has been detained in a naval brig in the United States.
The President's legal authority to detain American citizens
as enemy combatants is, in my view, clear. The practice of
capturing and detaining those engaged in hostilities is as
old as war itself, and is ingrained in this Nation's military
history. The detention of enemy combatants serves two vital
objectives in the global war on terror: preventing killers
from rejoining the enemy and continuing to fight, and
enabling the collection of intelligence about the enemy. The
Supreme Court's 1942 decision in Ex parte Quirin acknowledged
that the President's war powers include the authority to
capture and detain enemy combatants at least for the duration
of a conflict, and authority that was well-settled by the
time of that decision. More to the point with respect to
Hamdi and Padilla, the Supreme Court has made clear that this
power extends to enemy combatants who are United States
citizens. As the Court observed in Quirin, in which one of
the detained Nazi saboteurs was a United States citizen:
``citizenship in the United States of an enemy belligerent
does not relieve him from the consequences of a belligerency
which is unlawful.''
The course of action that we have taken with respect to Mr.
Hamdi and Mr. Padilla--and the arguments that we have made in
defending those actions in the courts--draw upon these well-
established precedents. The Executive's determination that an
individual is an enemy combatant is a quintessentially
military judgment--indeed, deciding who is the enemy is in
many senses the fundamental, threshold decision that the
Commander-in-Chief makes, the decision from which all other
military decisions flow. Accordingly, the traditional
deference owed by courts to military judgments is at its
broadest with respect to the President's determination that
an individual is an enemy combatant. While courts may review
(by habeas corpus) the Executive's determination that an
American citizen (whether captured abroad or on U.S. soil) is
an enemy combatant, that review must be deferential.
Specifically, in view of the great deference owed to the
President's enemy combatant determinations and the serious
separation-of-powers concerns that would attend any searching
judicial inquiry into the factual underpinnings of the
President's judgment, a factual review of the President's
determination can extend no further than ensuring that it has
evidentiary support. That framework focuses exclusively on
the factual support presented by the Executive and entails
confirming the existence of some evidence supporting its
determination that the individual is an enemy combatant.
The Government's record in the courts on the scope of the
President's authority, as you probably know, has been mixed.
The Fourth Circuit in Hamdi agreed that the President may
detain enemy combatants, including American citizens, and
further agreed that judicial review should be highly
deferential. The Court reasoned that the designation of Hamdi
as an enemy combatant bears the closest imaginable connection
to the President's constitutional responsibility during the
actual conduct of hostilities, and that while judicial review
does not disappear during wartime, the review of battlefield
capture in overseas conflicts is a highly deferential one.
Applying this deference to the facts of the case, the
Fourth Circuit concluded that--despite his status as an
American citizen currently detained on American soil--Hamdi
is not entitled to challenge the facts presented by the
United States. The Court held that where as here, a
petitioner has been designated as an enemy combatant and it
is undisputed that he was captured in a zone of activity
combat operations abroad, further judicial inquiry is
unwarranted when the government has responded to the petition
by setting forth factual assertions which would establish
a legally valid basis for the petitioner's detention.
The Second Circuit reached a different conclusion with
respect to Jose Padilla. There, a divided panel held that the
President does not have inherent authority under the
Constitution to detain as an enemy combatant an American
citizen seized within this country away from a zone of
combat. The Court also held that the President could detain
an American citizen only with the express authorization of
Congress, and that the Congressional resolution to use force
against members of al Qaeda did not give such authorization.
You will not be surprised to learn that we found the Fourth
Circuit decision to be brilliant, and the panel's reasoning
incisive and unimpeachable. We found the decision by the
Second Circuit panel on the other hand, to be less brilliant,
less supportable by the facts, and contrary to legal
precedent.
I am constrained by my time this morning from elaborating
further on our legal arguments in both cases. In any event,
they are a matter of public record and have been fully set
out in our briefs. The Supreme Court will hear arguments in
both the Padilla and Hamdi cases this spring. We are hopeful
that the Court will agree with the government's position in
each case.
What I would like to turn to is something that has not been
made a matter of public record. Until today, the Government
has been reticent about discussing in any detail the
decision-making steps that may result in an American citizen
being designated as an enemy combatant or how an American
detainee held in the United States may be provided access to
counsel.
As a result, while we have set forth our legal authorities
clearly in legal briefs, in the debate over the fairness and
prudence of the Government's actions in the war on terror,
the voice of the Government has remained essentially unheard.
Our silence has been largely for reasons of national
security. The deliberations that underpin any decision that a
person already within the United States is, in reality, an
enemy combatant, invariably include extraordinarily sensitive
intelligence information that we are loathe to reveal for
fear that it may jeopardize the future capture of enemy
combatants and future prevention of terrorist attacks. We
realize that our relative silence on this issue has come at a
cost. Many people have characterized--mischaracterized, in
our view--our actions in the war on terrorism as inconsistent
with the rule of law. Indeed, because of our silence, many
critics have assumed the worst. They have assumed that there
is little or no analysis--legal or otherwise--behind the
decision to detain a particular person as an enemy combatant.
To them, the decision making process is a black box that
raises the specter of arbitrary action.
While some of these criticisms are understandable, they are
wrong. With two years of experience, we now believe that our
concerns for national security can be accommodated with a
greater public disclosure of the steps we have taken behind
the public actions you already know about. And so today, we
will begin to take a more active role in the debate about the
fairness of our acts of detention of U.S. citizen enemy
combatants. This discussion builds on Secretary Rumsfeld's
speech eleven days ago in Miami, where he revealed the review
mechanisms that had long been in place with respect to
detentions of non-U.S. citizen enemy combatants being held at
Guantanamo Bay, Cuba. Today I am going to explain the
decision-making that led to our enemy combatant
determinations with respect to U.S. citizens.
Yaser Hamdi, in my view, presents a relatively easy case.
Hamdi was seized in a combat zone in Afghanistan. He was
armed with an AK-47 when his Taliban unit surrendered to
Northern Alliance forces. The Northern Alliance subsequently
made him available for an interview by U.S. military
personnel. A U.S. military screening team confirmed that
Hamdi met the criteria for enemy combatants over whom the
United States was taking control, and Hamdi was transferred
to U.S. control. In such a situation in a foreign zone of
combat, that determination was quite properly made by
military personnel on the ground. These facts and other
details relating to the circumstances of Hamdi's case were
memorialized in a declaration, the so-called Mobbs
declaration, which was made available for review by the
courts in connection with Hamdi's habeas petition.
As for enemy combatants who are American citizens and are
captured here in the U.S., as a matter of prudence and policy
the decision-making steps we have employed have been far more
elaborate. They have included a thoughtful, deliberate and
thorough analysis of the relevant facts and law at many
levels of the Executive branch. In the one case in which the
President has exercised his authority as Commander-in-Chief
to detain a U.S. citizen in the United States as an enemy
combatant, we have employed a thorough--indeed, painstaking--
mechanism to ensure multiple layers of scrutiny before even
proposing any action to the President.
What follows is a general description of the mechanism that
was employed before the President exercised this presidential
power. I should caution, however, that there is no rigid
process for making such determinations--and certainly no
particular mechanism required by law. Rather, these are the
steps that we have taken in our discretion to ensure a
thoroughly vetted and reasoned exercise of presidential
power.
In any case where it appears that a U.S. citizen captured
within the United States may be an al Qaeda operative and
thus may qualify as an enemy combatant, information on the
individual is developed and numerous options are considered
by the various relevant agencies (the Department of Defense,
CIA and DOJ), including the potential for a
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criminal prosecution, detention as a material witness, and
detention as an enemy combatant. Options often are narrowed
by the type of information available, and the best course of
action in a given case may be influenced by numerous factors
including the assessment of the individual's threat potential
and value as a possible intelligence source. This explains
why persons captured in the U.S. may be processed differently
depending on the totality of the circumstances the particular
case presents.
For example, we could have abundant information indicating
that the individual has committed a crime--such as material
support for terrorism--but the information may come solely
from an extremely sensitive and valuable intelligence source.
To use that information in a criminal prosecution would mean
compromising that intelligence source and potentially putting
more American lives at risk. Those are the sort of
considerations that have to be weighed in deciding how we
proceed against a particular individual in any given case.
When it appears that criminal prosecution and detention as
a material witness are, on balance, less-than-ideal options
as long-term solutions to the situation, we may initiate some
type of informal process to present to the appropriate
decision makers the question whether an individual might
qualify for designation as an enemy combatant. But even this
work is not actually commenced unless the Office of Legal
Counsel at the Department of Justice has tentatively advised,
based on oral briefings, that the individual meets the legal
standard for enemy combatant status. That standard was
articulated by the Supreme Court in Quirin, where the Court
made clear that, at a minimum, ``citizens who associate
themselves with the military arm of the enemy government,
and with its aid, guidance, and direction enter this
country bent on hostile acts are enemy belligerents within
the meaning of . . . the law of war,'' and thus may be
detained. The important factor, therefore, is that the
person has become a member or associated himself with
hostile enemy forces, thereby attaining the status of
enemy combatant.
It is worth noting, I think, that on more than one occasion
OLC has advised that the facts relating to a certain
individual did not support an enemy combatant determination,
or were so close to the line as to present a very doubtful
case. In those cases the United States did not proceed
further in the process of determining whether to designate
the persons as enemy combatants, but rather pursued
different, legally available options for addressing the
threat. In a very real sense, the Executive branch in these
cases declined to take a particular action against suspected
terrorists because it concluded that the action was not
clearly legally supportable.
Once initial assessments indicate that an enemy combatant
designation may be the best legally available way to deal
with a particular U.S. citizen, we have proceeded to take the
following steps to assist the President in making a final
decision.
First, the Director of Central Intelligence makes a written
assessment of all available CIA intelligence information
concerning the individual and transmits a recommendation and
request to DoD recommending that the person be taken into
custody as an enemy combatant.
The Secretary of Defense then makes his own independent
evaluation, based upon the information provided by the CIA
and other intelligence information developed within DoD. That
evaluation is embodied in a written assessment concerning
enemy combatant status.
The Secretary's assessment is provided to the Attorney
General with a request for the Attorney General's opinion
concerning: (1) whether the assessment comports with
applicable law; (2) whether the individual may lawfully be
taken into custody by the Department of Defense; and (3)
whether the Attorney General recommends as a matter of policy
that that course be pursued. This ensures that DOJ can
formally provide input on the law-enforcement equities
related to the individual. DoD's request to the Attorney
General includes the intelligence information from both the
CIA and DoD.
In addition to the materials forwarded by the DoD, the
Attorney General relies on two documents in responding to
DoD's request: the first is a memorandum from the Criminal
Division setting out all the information available to it from
the FBI and other sources concerning the individual; and the
second is a formal legal opinion from OLC analyzing whether
the individual meets the legal standard to be held as an
enemy combatant--the Quirin standard I just discussed.
Following his review, the Attorney General forwards a
letter with his legal advice and recommendations back to DoD,
along with the Criminal Division fact memo and the OLC
opinion.
The Secretary of Defense then transmits a package of
information to the President, recommending that the President
designate the individual as an enemy combatant. The package
of information recommending the enemy combatant designation
includes six items: (i) the written assessment and
recommendations of the CIA; (ii) the recommendation and
preliminary assessment by the Secretary of Defense; (iii) the
DoD intelligence information; (iv) the Attorney General's
letter to DoD, including his legal opinion and
recommendation; (v) the Criminal Division's fact memo; and
(vi) the OLC opinion.
Lawyers at the White House review the DoD package and
recommendations, and the Counsel to the President forwards it
to the President along with his written recommendations to
the President.
Finally, the President reviews the DoD package and is
briefed by his Counsel. If the President concludes that the
person is an enemy combatant, the President signs an order to
that effect directing the Secretary of Defense to take him
into his control. In the case of Padilla, the President
concluded that Padilla ``is, and at the time he entered the
United States in May 2002 was, an enemy combatant.'' The
President also determined that he ``possesses intelligence,
including intelligence about personnel and activities of al
Qaeda that, if communicated to the U.S., would aid U.S.
efforts to prevent attacks by al Qaeda.''
As you can see executive branch decision making is not
haphazard, but elaborate and careful. And although these
specific steps are not required by law, we have followed them
in our discretion, in order to make sure that--in this
context as in all others--the President's Commander-in-Chief
authority is exercised in a reasoned and deliberate manner.
In part because of the reluctance that I spoke about
earlier to articulate our position and procedures, there
appears to be some confusion about whether the Government is
willing to permit American enemy combatants access to our
courts to challenge their detention. The reality, of course,
is that they do have such access: the detentions of Hamdi and
Padilla have been challenged in the courts and indeed are
slated for review by the Supreme Court this Spring. And, of
course, from the outset, those challenges on Hamdi's and
Padilla's behalf have been pursued by qualified counsel.
But can there be meaningful access to our courts and a
meaningful right to file a habeas challenge without direct
access to counsel? To the average American, this may appear
to be a legitimate question. But those who question the
government's position on access to counsel operate under a
fundamental misunderstanding of the legal nature of the
detention of virtually all of these terrorists.
It is the position of this Administration that, in the case
of citizens who take up arms against America, any interest
those individuals might have in obtaining the assistance of
counsel for the purpose of preparing a habeas petition must
give way to the national security needs of this country to
gather intelligence from captured enemy combatants. Although
the right to counsel is a fundamental part of our criminal
justice system, it is undeniably foreign to the law of war.
Imagine the burden on our ability to wage war if those trying
to kill our soldiers and civilians were given the opportunity
to ``lawyer up'' when they are captured. Respectfully, those
who urge the extension of the right to counsel to these
combatants, for the purpose of filing a habeas petition,
confuse the context of war with that of the criminal justice
system.
When we are at war, debriefing of enemy combatants is a
vital source of intelligence. But the stream of intelligence
would quickly dry up if the enemy combatant were allowed
contact with outsiders during the course of an ongoing
debriefing. The result would be the failure to uncover
information that could prevent attacks on our military and on
American citizens. This is an intolerable cost, and we do not
believe it is one required by the Constitution. For these
reasons, we have urged that interrogations of captured enemy
combatants should be allowed to proceed, as they historically
have, uninterrupted by access to counsel.
We have also recognized, however, that in every case we
need not maintain the most restrictive conditions on
detention that the law of war permits. Constraints imposed on
a particular U.S. citizen held as an enemy combatant should
be and are constantly re-evaluated as a matter of policy, to
make sure that the terms and conditions of confinement are
necessary to meet the needs of national security.
The Department of Defense employs a deliberate and thorough
procedure, as a matter of policy, when making this decision
about access to counsel. The stated policy of the
Department--which it detailed publicly last December--is to
permit any enemy combatant who is a United States citizen and
who is being detained by DoD in the United States access to
counsel: (1) after DoD has determined that such access will
not compromise the national security of the United States;
and (2) after DoD has completed intelligence collection from
that enemy combatant or after DoD has determined that such
access will not interfere with intelligence collection from
that enemy combatant.
The policy is initiated when DoD officials in charge of
interrogations make an initial determination that
intelligence collection is completed or that access to
counsel would not interfere with intelligence collection.
This determination is made after coordination with the
Department of Justice, including the FBI, and the CIA. DoD
officials prepare a memo for the Deputy Secretary of Defense
seeking authorization for access to counsel. That draft is
coordinated within DoD and with officials at the White House,
DOJ, and CIA.
Once this coordination is complete, and a consensus
reached, the memo is forwarded to the Deputy Secretary of
Defense for his consideration. The Deputy Secretary then
makes a final decision whether the two prongs of the DoD
access to counsel policy are satisfied.
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As you can see, the decision to provide counsel is made
after careful consideration of national security
implications. These decisions are guided by thorough legal
analysis at various levels of our government.
That is precisely the course we have followed both with
Yaser Hamdi and Jose Padilla. When officials at DoD
determined that intelligence collection from Hamdi was
complete, they announced last December that he would be
allowed access to a lawyer, subject to appropriate security
restrictions. Hamdi has now met with his lawyer. Earlier this
month DoD officials concluded that national security would
not be harmed by permitting Padilla to have access to
counsel, and he too will be given access to a lawyer. As
these decisions show, we have an interest in restricting
access to counsel to the extent necessary to advance an
important intelligence-gathering interest. When that interest
no longer exists, we have no further need to restrict access
to counsel and will allow U.S. citizens that access to assist
in their challenge to their detention in the courts by means
of habeas corpus. We believe strongly that access to counsel
needs to occur at an appropriate time. What we will not do is
put American lives at risk and jeopardize intelligence-
gathering by recognizing a non-existent right for enemy
combatants to consult with lawyers.
I am pleased to have had the opportunity this morning to
provide you with some more details about the decisionmaking
process that we have followed in dealing with enemy
combatants who are U.S. citizens. The way in which this
Administration has made its decisions, in my judgment,
vividly illustrates the President's commitment to wage war
on terror aggressively and relentlessly while fully
respecting the bounds of the law.
Recent press accounts and editorials have suggested that
the Bush Administration--fearing losses in the courts--has
revised its approach to dealing with terrorists. As I hope my
remarks this morning have made clear, that is not the case.
The extensive procedures and safeguards that I have described
today are ones that we have followed from the outset in
determining whether certain individuals qualify as enemy
combatants. All along, the Administration's actions have been
uniformly grounded in historical practice and legal precedent
and have been based on careful and continuous consideration
of the facts and circumstances of each case. What is new is
our willingness to share more information about our
procedures, as Secretary Rumsfeld did two weeks ago in Miami
and as I am doing today. Our flexibility in this regard has
been constrained by the demands of national security. At this
point in time, however, we have decided that there are ways
that we can share some of this information, and that doing
so--as I have today--is both consistent with the demands of
national security and in furtherance of our interest in
showing the American people that their government is one that
respects the law even as it fights aggressively an enemy
dedicated to our destruction.
Because ours is a free society, the actions taken by the
Administration have been (and will continue to be) challenged
in the courts. These are important issues, and courts exist
to resolve such disputes. Our independent judiciary will help
determine how longstanding practice applies to the first
conflict of the 21st Century. It is possible that the courts
may disagree with a particular decision or policy; indeed,
the Second Circuit has already done so in Padilla (although
the Supreme Court will now be reviewing that case and
providing the final word on the issues presented). I am
confident in the legality of the measures the Administration
has employed in seeking to defend Americans from our enemies
in the war on terror--but in our system the courts will have
their say. What cannot be denied, however, is that in
protecting the American people from our terrorist enemies,
the Administration has carefully examined the Constitution
and laws of the United States, as applied in historically
analogous situations.
In closing, when I walk into the Oval Office to brief the
President, I am always reminded of the awesome responsibility
that the President has--and the corresponding duty on all of
us who serve him. But the burden of protecting this country
and of securing the rights embodied in our Constitution is
not ours alone.
Yes, those of us in government have a direct hand in
executing power under our Constitution. But American
citizens--including members of the bar--also play an
important role in protecting and defending the Constitution's
precious precepts. The vigilance and work of American
citizens in this endeavor arguably is no less patriotic than
the actions of our soldiers on the battlefield--both are in
defense of our freedoms . . . and both should be respected.
Thank you very much.
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