JEFFREY SMITH: Well, we're just a little bit past 9:15 and we are supposed to start. And as I said a minute ago, I wish to remain in the council's good graces, so I want to start and end on time.
Let me welcome everybody here. This is certainly a special occasion for me personally, and I suspect for many of the rest of you, to hear from Ashley on her really quite remarkable report. Let me not waste any time and get right to it, but I will begin on the council reminder that we are asked to turn off our cell phones, Blackberries. A hotel in London one time had a sign about annoying devices, so please turn off all the annoying devices or put them on silent -- although I found mine doesn't work in this room so that may solve the problem.
Secondly, this is little unusual in that this is on the record this morning, which is not the usual council rules. What I would like to do is -- Ashley is on leave from the Office of the Legal Advisor, a great institution, led, I think, currently by -- (inaudible) -- who joins us this morning. And what we will do is proceed to ask Ashley to talk for a few minutes about her report and then we will open it to questions. And I reserve the right to maintain order and decorum, although that's not going to be a problem, I'm sure, this morning. And I encourage you to continue to nibble away and get coffee, and, Ashley, if you need me to get some more water for you, I'm happy to do that.
ASHLEY S. DEEKS: Thank you.
SMITH: And with that, let me turn it over to Ashley. And I must say, I was very impressed with the thoughtfulness and thoroughness of your report, and you touched on a lot of very difficult issues and dealt with them very well. So if you'll proceed and then we will have a question and answer period and we will end promptly at 10:30.
DEEKS: Jeff, thanks very much. Thanks to you for agreeing to chair my working group, and thanks to others who were in my advisory group who provided useful comment on the report, and to CFR for producing the report. I'm very grateful for that.
The comments I'm making today are purely in my personal capacity. They don't reflect the views of the U.S. government. I have to put that caveat out there.
At the broadest level, what the report does is it tries to look at how the USG handles situations in which it has a foreign national in its custody who is interested in transferring, like who it fears may be mistreated if transferred, either home or to a third country. And then the report tries to explore a little bit how the U.S. government and other governments that are grappling with these issues and using some of the same techniques the government is -- our government is -- to improve that existing process.
Just to say a little bit quickly about why I choose this issue as opposed to any of another on the long list of war on terror issues, some of which, for example, I know Dan's group is grappling with.
I think some war on terror issues are relatively straightforward to change if you wanted to change them. So, for example, on interrogation, both of the candidates have suggested that they think certain techniques that are currently in use are not consistent with U.S. law, so you might imagine the next president coming in and saying, you know, here is what our government will and won't do vis-a-vis interrogation. And that's pretty much just the stroke of a pen.
On the issue of these transfers, however, I think it's an issue that is much harder to just sign away with a stroke of a pen, and yet is something that is going to continue to remain relevant in the next one to five years, as, for example, the next government decides what to do with Guantanamo, as it decides what to do with the thousands and thousands of detainees we have in Iraq and Afghanistan.
And this issue was actually proven to be a sticking point -- one of the sticking points for closing Guantanamo because there are a number of people who have been designated for release or transfer who the government isn't comfortable transferring at this point because of torture concerns.
It was also an interesting issue for me because it's one, as I noted, that our allies are struggling with as well. There have obviously been a lot of decisions that this government has made in the war on terror that our allies are very uncomfortable with, including some detainee treatment issues, including renditions, including the use of Guantanamo and so on, but this is one where they are -- they're sort of right there with us, including in situations where the U.K., for example, is trying to deport what it sees are dangerous people from its territory, and including in Afghanistan where ISAF forces are grappling with what to do with individuals they detain on the battlefield when they can and can't transfer them back to the Afghan government.
So the bottom line for me is that it's an issue that's going to continue, and one of the techniques or strategies that I'll talk about is the use of assurances from foreign governments to get some more comfort about the treatment that people will receive once they're sent back. And I think that is a valuable tool, but I think that under the status quo it is incurring reputational costs for the U.S. and its allies, and so one of the things I'm trying to think about is how to minimize some of those reputational costs.
And the world, frankly, is changing. In the past seven years the events that have happened and the widespread access of the Internet and a real focus on human rights issues means that even if the U.S. government's policies have been relatively consistent over decades on this issue, the world is moving on, and I think it's useful to think through how to keep up with that changing world.
So I wanted to run through, very summarily, some of the stages in the report for those of you who haven't had the chance to dig through all 43 pages of them. Some of you may know this as well if not better than I do, so my apologies if this is too simplistic for you. But I think it's useful to start out with a hypothetical. Let's say that there is an individual on U.S. territory who the U.S. thinks is a -- has engaged in terrorist activities in a foreign country and so the government is concerned about the security risks that he poses and doesn't necessarily want to keep him around in the country. So what are really the options?
Well, the first most obvious option is can you prosecute him? And that will sometimes be an option, but let's say in this case that the individual has never undertaken anything that would actually violate U.S. criminal law, so the prosecution isn't an option in that case. Is there somebody that the U.S. government can detain indefinitely? Let's say they put them in deportation proceedings. Courts have been -- the Supreme Court has been reluctant to authorize indefinite detention of people who are in that status. It left open some question about people who pose national security threats. But I think there's an open question about indefinite detention. It's a legal matter. And of course as a policy matter, that has not proven to be a particularly positive and popular approach in Guantanamo, for instance.
So another option would be simply to just release him in U.S. territory, and in some cases, if the government is not really sure about what he's thought to have done. Maybe that's right. But if it really is concerned about the security risk he poses, that's also not a very popular security or political option, and in fact the Senate passed Sense of the Senate I think about a year and a half ago saying, 94 to 3, we don't think that -- we don't want to see any of these Guantanamo detainees released in our neighborhoods or even detained in the United States in our neighborhoods. So there are obviously some concerns about just releasing them into the territory.
So then the last obvious option is to try to transfer the person back where he came from. And so on paper that seems like a pretty good option, but what happens when he says, okay, well, if you send me back to country X, I will be tortured; I've been tortured there before and I'll be tortured again, and the government, doing its own analysis, agrees that it's more likely than not that he would be tortured if he were sent home.
Well, that poses a problem because of the obligations -- the legal obligations the U.S. and lots of other countries around the world have taken on. In a couple of treaties -- you know, in general states have a pretty free reign to control who comes into and out of its territory, but there are some limitations, including from the Convention Against Torture, which says that where a state has substantial grounds to believe that somebody will be tortured if he's expelled, extradited, or returned, that state can't actually undertake the transfer.
And there are some nuances about where the U.S. government thinks this obligation attaches. It thinks primarily it attaches to activities from U.S. soil, transferring out from U.S. territory -- not necessarily as a legal matter -- activities that occur entirely outside U.S. territory. But it has said, as a matter of policy, that it takes that approach regardless of where it's transferring somebody to and from.
Okay, so then in our hypothetical you then face a situation in which the state says, yep, I think it's more likely than not that this person will be mistreated if returned. So one of the things states have done -- and they've done it for actually a fair amount of time now -- is say, okay, well, let's see if we can get a commitment from the host government who might be receiving him that it will treat him appropriately. And that's what we refer to as diplomatic assurances, assurances against torture, humane treatment assurances. They have a bunch of different names. And in short, they can come in all sorts of different forms. They can be in the form of memoranda of understanding, diplomatic notes. They can be oral. They, at the very least, will describe a basic treatment commitment that may simply say, if we take custody of this person we will not torture them.
In a number of cases -- our European allies actually have higher legal obligations than we do by virtue of being a party to the European Convention on Human Rights, which means not only can they not transfer when somebody might be tortured; they also can't transfer when somebody might face inhuman or degrading treatment. So the U.K., for example, has been very active in obtaining these assurances, often in the form of memoranda of understanding, and they're very extensive and they'll explain where the person will be held if he's taken back. They set up monitoring mechanisms, often for neutral third bodies to come in and visit the person, sometimes to travel with them from the U.K. to the country to which he's being sent, and often provides access commitments for the sending country as well.
One difference to note between the European and Canadian approach and the U.S. approach here is that the Canadians and Europeans are public about the assurances they receive. The people being transferred see the assurances. The courts see the assurances. In the United States that's not the case, and I'll say a little bit in a second about why that's not the case. But in some ways there was a little -- it made writing this report a little bit harder because it's not clear in each case what the assurances do and don't contain. But the idea is of course that if you can obtain an assurance that you're comfortable with, then you've actually brought the risk of mistreatment down below the standard that precludes you from transferring and you can go ahead and transfer.
So what are the basic scenarios in which this comes up? There are five. The first and sort of most historic is in extradition, and that I think is where this process has gone from. And in extradition, a court will review whether a person sought by another country is likely to have committed the offense for which he's sought, and he will deem somebody extraditable, but at the end of the day it's the secretary of State who decides if the person will actually be extradited. And there's a principle that floats around in the extradition world called the rule of non-inquiry where the courts have said, we are not going to get into the kind of treatment that somebody will receive if he's extradited. And so whether that's a lack of due process concern, whether it's a humane treatment concern, that's long been left to the secretary in consultation with the Department of Justice and others in our law.
So that I think is the source of this reluctance to make the assurances public. And there's also -- the U.S. government has filed a couple of affidavits explaining further why they're concerned about making these things public, and they revolve around a sense that the government is able to get better assurances from its counterparts if the counterparts don't think that the assurances will be made public.
So extradition in the other pretty traditional situation in which assurances are used is in deportation. And it doesn't happen very often, but there are times in which the government wishes to remove somebody, even where a preventive Board of Immigration appeal has concluded that somebody is likely to be tortured. And, again, they will resort to assurances to achieve that and the U.S. regulations actually contemplate that assurances are something that the Department of State and Homeland Security can obtain and evaluate.
And here, for example, there is one controversial case floating around right now. It's an individual the U.S. wanted to deport to Egypt. It's a guy named Sameh Khouzam, where the U.S. obtained assurances and the District Court reviewing the case said, I'd like to see those assurances, please, and if you don't show them to me I'm going to order him released. So that case is on appeal but that's indicative of some of the problems I'll talk about a little bit later on, on how courts are trying to grapple with their role in these issues.
So a third situation is Guantanamo. I've talked a little bit about that. The government has said, putting aside what we view as our legal obligations as a policy matter, we are going to obtain humane treatment assurances in every case where we feel that it's likely that the person we send back will be detained. And so that has meant that releases and transfers have been solved where the government has not been able to obtain those kinds of commitments that make it comfortable.
Afghanistan is an interesting case because it is a -- it's a hot battlefield. You have ISAF forces picking up Afghan nationals in Afghanistan and grappling with whether it can transfer them back to the Afghan government. And so we have concluded an arrangement with the Afghans, the Canadians, the Dutch, the Danes, the Brits; they've all concluded these arrangements as well, some of which are quite extensive and allow a lot of access by the ISAF forces and their diplomats.
And the Canadians are in a bit of a bind here because Amnesty International has brought a case against them, claiming that the transfers violate the Canadian constitution, and a lower court disagreed but it's up on appeal. And the Canadians have said that in fact if they lose that case, that they will not any longer be in a position to be out on the battlefield fighting because detention is an important incident of that fighting and they don't have their own detention facilities in which they can hold people.
And so, finally, the fifth category in which this issue has appeared -- and it's the most controversial one -- is the issue of rendition. And there's, frankly, the least information available here about these, for classification reasons and so on, but I think the use of assurances in renditions has caused a lot of people to question more strongly than they had before the use of assurances. And there have been a couple of cases why the reporters have raised concerns from human rights groups and others about whether the assurances that the U.S. government received were in fact complied with -- Mr. Arar being one of the cases. The government does not actually think it is a rendition, thought it was a deportation, but that's one example and there are a couple of other ones as well.
So what, then, are the -- what are the problems with the status quo? I mean, you might think that in a perfect world this could all be fine; the government gets assurances; they're 100-percent reliable; the people go back and there's never an issue. But that's not how it necessarily is played out, and it's certainly not how a lot of human rights groups view the issue.
Their first and primary concern tends to be if you're in a situation in which you have an inkling of a concern that somebody is going to be tortured when they're sent back, it suggests that you think that the government receiving the person is already not in compliance with certain of its legal obligations, whether it's its own convention against torture obligations, its own customary international law obligations and so on. So if you already think that they violated some of their obligations, why would you think that they would comply with a specific bilateral arrangement with a particular person?
The second concern is that torture often occurs in secret and is hard to detect by skilled interrogators who are engaging in torture. If a monitor comes in and says to the person, so, how are things going and he has no visible bruises and he's scared to death to say anything, you know query how effective monitoring can be. That's one of the -- another concern the human rights groups raise.
The third concern is that these assurances aren't binding, so, you know, why would you give any credence to them? To that I actually think there's a pretty easy answer to that one, which is there are a lot of things that governments do in the form of non-binding arrangements that are very important and are complied with, including things like security arrangements, which are -- you know, one state says, we will come to the defense of you if you are attacked. Those are often done not in the form of treaties but in terms of more political arrangements. So the lack of bindingness is, I think, one issue that the government could articulate some responses to, and it's hasn't necessarily done that yet.
The fourth concern is just alleged failures of diplomatic assurances. There have been reports by Human Rights Watch, Human Rights First, Amnesty and so on about individuals transferred back from Guantanamo to Tunisia and Russia, for example, where there are allegations that they have been mistreated by those governments.
And finally, there is a symbolic concern. The issue is that the government -- the U.S. government-issued human rights reports that say we're worried about, you know, the prison conditions in country X and country Y, and then you have the U.S. government sending people into those systems, so there's some tension there, and also a sense that, well, by giving an assurance, the government is really just concerned about its particular people. It doesn't really care about whether everyone in Morocco is being tortured in prison; it only cares about one or two people, and that's not a good message to send to the rest of the world.
So those are sort of the generic human rights questions, and there also have been some criticisms woven in that flow from kind of the generic criticisms of war on terror activities, including a lack of transparency, which as I've noted has been something the government has done since the early '90s. They have not disclosed these things, but all of a sudden now it takes on a totally different appearance, given some of the larger war on terror issues.
Another big problem -- and I think this is probably the biggest problem that the report has to grapple with -- is the notion of hypocrisy, that the government stands accused of having engaged in mistreatment of detainees and engaging in interrogation techniques that some think are not consistent with its torture obligations, and so what business does the government have of asking foreign governments for commitments not to mistreat people when it, you know, is under fire at this point for some mistreatment?
And, finally, the notion of keeping courts out. The -- (inaudible) -- has been, you know, accused of trying to preclude Guantanamo issues from going into court, from rendition issues going into court, other intel issues, and so I think people see the assurances issue through that lens as well, despite the fact that there is a longer history to that.
Two other things I think make the status quo problematic. One is, as I've mentioned in talking litigation issues, almost every of the five categories that I described earlier, situations in which this happens, detainees, before transfer, have tried to stop their transfers in court. So it's happened in extradition. The government has almost lost a few cases and has sort of been -- things have been overcome by events, but in the deportation case, in the Khouzam case, the government did not win at the lower level. We'll see what happens at the next level. Whenever Guantanamo detainees have filed cases seeking stays on their transfer, 30-day stays -- unclear what will happen in the wake of Boumediene and some of the other recent Supreme Court decisions as to whether those cases will continue to go away. I think at this point it's not quite clear. There have been a couple of cases where Afghan detainees have tried to bring cases in U.S. courts, again, never having set foot in the United States and so on, have filed for habeas -- also in Iraq.
And, finally, there has been some draft legislation on the Hill from -- on both sides -- Senate and House -- that would preclude the U.S. government from using assurances. And I should note there was an earlier effort by Dennis Hastert to enact a law that would have said the government can just deport anybody who poses a national security threat, even if they're going to face arrest and torture, and so that didn't get anywhere. The other ones that go the other direction haven't necessarily moved. And I guess while they're -- I think it's useful to get Congress involved in this issue. There was not an attempt to grapple with what happens when the U.S. government can't transfer people. It raised a very high bar to transfer, and then didn't really grapple with the "what then" issue.
And just two final points before I run through a few recommendations. This issue is interesting to me because it's also a microcosm of the way in which human rights issues are infiltrating armed conflict. I think Afghanistan is sort of Exhibit A for that. But you have what to many people looks like a traditional conflict, and you have human rights issues intruding on what you do with the detainees after you detain them, surely in a foreign government's territory, and it raises really hard questions because if you really think that a thousand of your Afghan detainees are going to be tortured if transferred, what do you do? Well, what if you can't get another Security Council resolution that continues your presence there? What if you bring the people back to the United States -- I mean, there are some very complicated questions, much harder than in the extradition case where you have someone fully within your control and your custody and you can say, okay, we just can't send them; we're going to assume the risk of releasing them into our territory.
I think that the new sort of armed conflict/human rights paradigm is a specially complicated one here. And it's also -- it was interesting to me the way in which war on terror decisions have raised the profile of previously relatively uncontroversial tools such as, for example, rendition and the use of assurances.
So just to skim very briefly through the recommendations, my goals were to try to increase the transparency of the U.S. government process. I think it's important to ensure that decision-makers have as much information as possible from whatever relevant sources, whether it's the history of assurances that the U.S. government has obtained, to the extent it can find out more about how other countries transfers have played out and so on. I think it's important to be as systematic as possible about what information is fed in to that decision-making process.
I think it's useful to try to address some of the human rights concerns. I think some are subject to being addressed; others are harder to address. I think it's an area where we could bolster our cooperation with allies in a national security-related area, unlike renditions where they say, we don't do them, or Guantanamo where they say, that's your problem. This is one where we're grappling with the same fundamental issues. And I think it's important to try to urge creative thinking about options that remove the need for the use of assurances. And these are longer-term, not easy fixes, but to the extent that you can improve conditions in the receiving state, you then obviate the whole decision chain that I've just described.
So the report offers recommendations for the executive branch, for Congress, for European states and Canada, and for the United Nations. Do I have time to run through them or --
DEEKS: So --
SMITH: Can you do it in about five minutes?
DEEKS: Yes. I think the executive could be clearer about when, how, and why it decides to use assurances, how it grapples with these transfer questions. I think what may have happened is that the tools have all been sort of used by different entities in different areas, but it sort of sprung happenstance and I think it's now time to see if there's a way to sort of regularize it and make very clear to the public what the process is and what the equities are and what the hard decisions are. I think it's important to ensure that the internal process, as I said, feeds as much information as possible into what I propose is basically a secretariat within the State Department that gathers all of this information and each decision reflects the information that has been brought together from past experiences.
I think it would also be useful to have one state office negotiating all of these things. As it stands now I think there are three -- maybe two or three or four different offices that are engaged in these, and it seems like it would be useful to replicate that experience within one office. I think, to the extent -- there are a number of people who just reject assurances outright, and this report is not going to persuade them not to reject that. And I recognize that. But to the extent there are people who are uncomfortable with the process but not incredibly opposed to it, I think monitoring is one of the most important ways to try to get people more comfortable with what's going on.
Because the U.S. government's assurances aren't public, I don't have a perfect view on what the monitoring arrangements currently are. There are some references in some of these affidavits to the fact that they do occasionally get monitoring arrangements -- sometimes the U.S. Embassy people, sometimes third-party monitors -- human rights groups and so on. But I think emphasizing it on the front end during negotiations and then emphasizing it on the tail end after the transfer happens are both really important. And I think there are important lessons that could be learned from the U.K., which has really tried to be incredibly thorough about this. In its MOUs it has identified third-party monitors agreed by both states. It's very clear; it identified what those monitors are expected to do and when.
I think it would be useful to think through whether there are ways to provide incentives for the receiving states to comply with the assurances after they've been made. Are there economic or trade or other kinds of carrots you can put out there that you actually can just take back when you find that there have been real problems to try to give a little bit of added leverage to comply with the arrangements that they've said they would comply with.
Rendition policy. I think there are at least two things that the government could do that would provide some level of added comfort to the use of rendition as a tool. One would be to establish a list of states that are sort of off-limits for rendition. And Dan Byman has proposed this in some of his testimony. The other thing would be to say that we are only going to render people to states where they are wanted for investigation or criminal prosecutions rather than questioning. And, you know, there are national security losses to making that decision, and I try to recognize that in this report, but I think the benefits would outweigh the costs at this point, of making that kind of decision. And making people more comfortable with rendition will, I think, have a positive effect on making people more comfortable about this whole process, and vice-versa, actually.
I'd say it also would be useful to work with the Europeans to help the foreign governments strengthen their detention capacity and the training of their officials. There are summits that are already going on, a little bit underway, not by governments but by sort of nonprofits, and I think the governments should consider trying to engage in that more actively.
And finally, really sort of prioritizing improving detention facilities in Iraq and Afghanistan. Those are two cases in which we and our allies are in there and are able to really get our hands around the problem in a way that it's harder to do when you're outside and you just have an arms-length relationship with some country in Africa or what have you, that we should really -- if we can help them, the Iraqis and Afghans, get that right, it means fewer problems for us down the line when we continue to deal with these issues.
With Congress, Jeff, maybe we can talk a little bit about my proposal for giving the courts a role in reviewing transfers in the face of torture. To Europeans and Canada, I think they could undertake a full press to try to get a bunch of states' parties to the Convention Against Torture to sign on to an optional protocol, which requires states to create their own domestic monitoring mechanisms for detention and also permit outside bodies to come in and monitor. We can't -- the U.S. government can't find that -- or has said it can't sign that, for constitutional reasons, but the Europeans are all parties. They're parties actually to another one through the European Convention on Torture. So they're well-suited to urge states including Jordan and Yemen and Tunisia and Algeria and the like to sign on to those.
I think it would be useful to see if we can establish some sort of information sharing as long as we're able to do it in a way that keeps the information sort of non-public, to find out, well, how have things worked out for the Swedes when they transferred so and so to so and so, and the Norwegians when they transferred so and so to so and so.
And, finally, on that front, I think ISAF should consider establishing a detention facility of its own. I think it's not going to be -- it won't be an easy sell in Europe; it won't be a popular political move, but to the extent we are fighting a war and we need to detain people, transferring them to the Afghans is proving to be a real problem and so I think we should give some thought to an ISAF detention facility.
And just to say about the U.N., I think they are currently doing thinking on detention by their civil police forces. These are basically people secunded (ph) to the U.N. to act as civil police, but I don't know that they've actually grappled with this as an issue and it seems like it's an issue that will almost certainly come up because they're operating in countries that often have very weak governments. So I would urge, as they produce that report, they consider this issue and figure out what the right policy is for their civil police.
SMITH: Very impressive, Ashley. I think you can see why I'm very impressed with your work, and it's very thorough, good work.
With that, let me open it to questions. And the council rules are, even in a small group like this, if I could ask you to identify yourself and your affiliation. Many of us know one another, but for those who don't -- with that, let me open it to questions.
QUESTIONER: Dan Prieto with IBM, as well as the CFR Task Force on Civil Liberties and National Security. Can you clarify what the legal obligation is and the culpability is for a country, in particular these military situations -- you said it's really interesting how human rights are bleeding into clearly military situations. What is the legal obligation -- where does it end in terms of what happens to them once you send them back to some other country? And in particular, you used the example of maybe only send them back where the person -- and you used this for rendition -- is wanted for crimes and not just send them over for questioning. What if he is wanted for a crime and you get the double benefit of -- you can, you know, get interrogations over there as well. I mean, this is a tough question. I'm wondering if there are clear lines or it really is simply prudential, which is driving this.
DEEKS: Let's see, so on the length of time issue, I think it's an important question and it's a question not just for transfers in Afghanistan or transfers in Iraq; it's also a question for transfers from Guantanamo, and even an extradition -- how long does the obligation attach? I think looking at it from a strictly what do the treaties say, the treaties are silent on it, really. It just sort of says at the time you decide to transfer, you must not think that there are substantial grounds that the person will be tortured. But I think, as I'm trying to get at in the report more largely, the world has moved on a little bit from that, right? I mean, there are pressures, and appropriate pressures, to not be quite so cavalier.
One of the things I've recommended that the governments actually say, here's what we think our obligations or our policy is in terms of length of time for which we have to follow up. And I think anytime that they pick would be somewhat arbitrary. The U.K. has picked three years as a time for which their third-party monitors will go and visit people. I think you could pick two years; you could pick one year. There are also questions about what happens when somebody then is returned, commits an offense and is subsequently picked up? You know, let's say they're returned in Belize and then they engaged in a terrorist act and the government picks them up and then mistreats them. There's been a sort of causal severance such that that's no longer sort of the U.S.'s problem.
They're very hard questions and I think they're hard mostly because there isn't guidance in the law -- either the Law of War or the Human Rights Treaty that tells you how you should be thinking about that.
There was another part to your question.
QUESTIONER: I guess it was -- you used the example of the rendition --
DEEKS: Oh, okay.
QUESTIONER: -- don't send them back unless -- you know, certainly not just for interrogation. Don't send them back unless, you know, there's also some charge against them domestically. I mean, you can sort of double-dip if you want. I'm wondering what the statistics say on that?
DEEKS: As far as I know, I don't have any statistics on that. I know the CIA program has not been disclosed very far to the public, so I don't have information on that. The thinking behind that proposal is one of the concerns about rendition is you transfer them to a government and then they just disappear. You don't know what happens to them. The CIA has said that at a certain point they would follow up with the people, but Porter Goss made some statement about once they're transferred you lose a fair amount of control over what happens to them. And my thinking was to the extent that you transfer somebody into a process that is more public and quite clearly sort of on the books, you are less likely to have people sort of get lost.
And so I'm not suggesting you would necessarily say you can't interrogate anybody you transfer, but it would be more that there is a system in place to which the person will be sent and in which the person will be placed, and that provides a level of transparency and comfort that you might not have if you're just sending somebody to be sort of questioned by some unknown security service. That was the thinking behind that.
SMITH: Thank you. Anya and then Eric.
QUESTIONER: Thank you. Anya Schmemann of the Council on Foreign Relations. Ashley, first of all, congratulations on this paper. Richard Haass has been praising it, and he does have critics so that, I think, speaks very highly.
DEEKS: Thank you.
QUESTIONER: And I appreciate how you've approached this very emotional and -- (inaudible) -- issue in a very careful and methodical way. I also applaud you for being very straightforward with your language. And it's right there on the cover, calling torture torture instead of, you know, enhanced interrogation techniques or whatever you would like to use. So my question is what is torture? I figure it's -- (cross talk, laughter).
DEEKS: The U.S. law defines torture, and that's sort of the starting point, I think, for -- let's put aside sort of interrogation and raise a question: If you were an individual who is tasked with deciding whether somebody should be transferred; let's say you're an advisor to the secretary of State and you're thinking of sending somebody to country Y, which has a pretty questionable human rights record and has not been treating the group that this person's a part of very well. You will basically -- your test, you legal test is the test that's in U.S. law: Will this person be subject to, what, as defined in -- torture is defined in 2340A.
That is an analysis that happens regardless of anything else that's going on in the world or in the United States. I mean, that is the test. But the question -- what you may be getting at is, okay, well, that's fine; that's the legal definition, but how do you match acts with the definition, right? I mean, that's really what the whole debate going on in the United States is now is, fine, we understand what the definition is, but is waterboarding torture? Is forced temperature -- extremes of temperature, forced standing, are those all torture? Those are the questions that -- you know, the answer may be yes; it may be no. Reasonable people have sort of disagreed on all that, and that I think is why it's hard for the people advising the secretaries too, I mean, because the information that they have presumably as well -- you know, country X is thought to engage in the following techniques with people in interrogations. So in some ways you have to do the same thing. You have to match the act with the definition and see, where does that lead to?
So do you see what I mean? I think that it's the same question. The larger question is made harder by the fact that this is going on, but the specific question is one that the government's been grappling with since the '80s when it started dealing with extraditions and using these issues.
QUESTIONER: It was an excellent presentation.
SMITH: Affiliation -- sorry.
QUESTIONER: Sorry. Eric Lewis, Baach Robinson & Lewis. And I should disclose that I represent Afghans, Ouigers, and other Guantanamo detainees. So I've been litigating these issues for a while, coming -- we start from a different place, and maybe less dispassionately. And I think one of the things that we've seen about, you know, do reasonable people disagree about whether waterboarding is torture, I think the debate has shown that, you know, essentially lawyers can use the language of lawyers to reach positions on issues or create controversies on issues where there really shouldn't be a particular controversy, because I think the laws are fairly clear. And, you know, what we've seen by redefinition of what torture is to -- is the purpose to cause death or organ failure? And even if it's collateral death or organ failure, if it wasn't just gratuitous, maybe that's not torture.
And I think if there's an overarching theme that we've seen from seven years of experience is that leaving this, in fact, within sole executive discretion without transparency leads to the position where we find ourselves, where extraordinary rendition -- you talked about hypocrisy -- well, it's not just the hypocrisy that we abuse prisoners; it's also what appears to be the case, that there are certain transfers which are made for the purpose of people undertaking techniques in countries where we wouldn't, couldn't, wouldn't want to do them. So Syria, which, you know, has honorary mention in the "axis of evil," starts to get some of our people for interrogation -- you know, countries that we nominally don't have relationships with.
So if you look across the board -- let's take, for example, the tension in Afghanistan. You have the new paradigm; you have a war without time or space limitations, so the laws of war are not adequate because you detain people until the war is over. Well, when is the war over? We don't know. Guantanamo, same idea. But it seems, if there's an overarching theme, it's that when the government is left to do it itself without a check of a neutral decision-maker being an international decision-maker or even a court, a neutral supervisor of the process, you at least create the risk of the kind of abuses that we've seen. And in fact, not only do we create the risk for the abuses, they seem to have occurred.
And so I guess my question for you, Ashley, is what do you see as a role both for domestic courts and also for international judicial bodies, both to prevent transfer for the purpose of torture, to prevent transfers where the assurances are either risky -- and I think there's some evidence of there being a kind of hypocrisy in the process of seeking assurances, precisely because you have some doubt at to whether those assurances are good assurances -- now, maybe not within your office, but obviously it's a big government, and the State Department, as we've seen -- and I think we can't look at it in the abstract -- the State Department, as we've seen, has been sidelined or at least somewhat marginalized in some of these decisions that we hear.
So how do you see a way of assuring that these difficult problems -- because they are national security problems, it's not let's just everybody else and we can kumbayah -- but how do you see those structures or institutions working to prevent unfettered executive decision-making from leading to the kinds of abuses which have certainly damaged our stature in the world to, I think, a very significant degree?
DEEKS: Let me just say first, I'm not representing the State Department. I need to be clear that this is -- they don't agree with some, much, all of what's in here. So I -- this really is my personal capacity. But I'm glad you raised the question of a role for courts. It's something Jeff and I had been talking about a couple of different times.
I think -- one of the things that I think could be useful is to have Congress and the executive get together and figure out or determine that there should be a role for U.S. courts, some role for U.S. courts, in situations in which somebody is facing a transfer and claims that he'll be tortured.
And as it stands now, the government has been very clear that it doesn't see a role for courts, and there are decisions that are -- that are very sort of -- they're hard to make but they really -- it's an atmospheric test as well as a sort of factual analysis. And courts are not particularly well suited for that.
And as I mentioned in passing, in the Munaf case, the Supreme Court actually seems to agree with that to a certain extent. It says, you know, yes -- Mr. Munaf and Mr. Omar, these are detainees in Iraq of joint U.S. nationality -- says these guys claim they'll be tortured if they're transferred to the Iraqis. But you know, the fact that they're in Iraq, they're picked up for committing offenses in Iraq and so on means we don't want to get involved. And furthermore, courts are really not the right entity to be -- to weighing these careful, diplomatic-balancing things.
But that said, I think it would be useful to have a neutral body having some role in this process. And so what I'm envisioning is a statute that would give courts the ability to basically conduct a procedural review of the government's sort of decision-making checklist when it is grappling with these issues. And there are some examples that currently exist, as when the secretary -- secretary of State decides to designate someone a foreign terrorist organization, there is a sort of EPA-like review of that decision.
And so I guess what I would envision is having the -- the individual gets to submit information to the executive branch, as he currently can in extradition -- and I'm not sure how that works in some of the other contexts. And then the executive takes into account his or her submission, the human rights reports that the State Department and others already look at, assurances that they may or may not have received; let's say they do receive assurances and some of the information surrounding those negotiations, who they got them from, what that person's role is in that foreign government and so on. And then maybe a sort of two-paragraph explication of how the government reconciled those competing tensions.
And -- so that would be a package that I would envision the executive giving to a court where the person says, look, I really don't want to go, I'm really concerned about torture. And the government just says, I think I'm over that hurdle. And then -- because I think it's important to leave -- I do think the executive is better placed to make that decision than courts are. And I think you can find a number of court decisions where the courts concede that.
But that said, you know, the political branches could decide that there are significant advantages to having the presence of a neutral body, even if it's not making the final, substantive decision. So I do think that it will be hard to craft, I think not impossible to craft. And you'll have to do a fair amount of persuading Congress and the executive that that's worthwhile. But I do think there would be some real advantages to having that perception even of just having a neutral body.
QUESTIONER: It obviously becomes much tougher when you're talking about Iraqis or Afghans. There's, what, about 25,000 Iraqis.
DEEKS: Well, yeah, I should note that I would actually create a carve-out for that sort of half-battlefield situation. I think the government has the right policy of not transferring where it's more likely than not to be tortured, even as a policy matter if not a legal matter. I don't think it's viable to have those people get a chance to adjudicate their transfers in U.S. courts. So I would create a carve-out.
QUESTIONER: What about Geneva Convention?
SMITH: We need to -- I'm sorry. There are other people with other questions, but -- (inaudible) -- presider's prerogative.
One issue that -- I don't know, Bob, whether this came up, and I can't recall whether you were the legal advisor at the time, but when we got involved in a hijacking case in Berlin and wound up sending a federal judge over to deal with the hijacking case, the first thing -- because the Germans wouldn't prosecute it -- the first thing that happened was others started realizing that there was a sitting federal judge in Berlin. And this was when Berlin was still an occupied city. And the first thing we had was people running into this judge filing environmental impact statements for U.S. military operations in West Berlin all of a sudden. And then we had to fire the federal judge. And we had a Foreign Service officer knock on his door at the Hotel Kempinski and slide a letter under the door saying, Dear judge, Warren Christopher is now sending you home. (Laughter.) So when you get judges involved, you know, it gets very difficult when you have judges, understandably, trying to deal with these issues.
I'm sorry. I have Julia and then Rebecca and then I think Adam.
QUESTIONER: I'm Julia Fromholz with Human Rights First. And perhaps I should note that I had early access to the speaker. (Chuckles.)
I had a question about the recommendation having to do with coming up with a list of countries to which the U.S. wouldn't render it -- would not send people, even with assurances. And my question is whether such a list could realistically ever be trustworthy, particularly in the absence of court oversight or some other of your recommendations being implemented.
In my experience, human rights type of promises from -- are far too often given secondary play -- or second place to other concerns. For example, last year, the Congress conditioned, again, $200 million in foreign military financing to Egypt on progress on human rights concerns. And about a week before the Department of State's human rights reports came out, Secretary of State Rice invoked her waiver, the national security waiver, of those conditions, even though the reports that came out five or seven days later really condemned the Egyptian government for their human rights record.
Similarly, China has a truly appalling human rights record which I think many people in the government would agree with that statement. But there are all sorts of other pieces of our bilateral relationship that are given precedence over human rights concerns when push comes to shove.
So I'm not hopeful that making such a list would actually happen -- or would actually be put into place if there were some other reason why we couldn't keep these people in indefinite detention or release them on our soil or find another country to which to deport them.
DEEKS: I mean, it is a fair point that human rights do not always take pride of place in decision-making where national security and terrorism issues are involved and the like. I mean, I guess my thinking on that is it certainly would be harder for the government to render somebody to a country on a list if there were a list. It wouldn't mean that they would never do it or never find a way to sort of create exceptions. But as opposed to now where there isn't a list, if there were a list that said countries a, b and c are countries to which no government official may transfer an individual during a rendition process or what have you, it sort of raises the bar to trying to get around that if you were so inclined to get around it.
So I guess the second point I'd make is if you have a president come in who is committed to trying to improve the U.S. reputation around the world and decides that this area sort of writ large or this area in specific is one where it is useful to try to get a foothold up that improvement ladder, then you have a commitment at the top that would -- from which many things would flow, and presumably a higher prioritization of human rights in the face of difficult national security questions. You know, human rights might take a greater pride of place.
But that said, I mean, it is obviously a big if. If I were president, I can't say for sure that I would always choose human rights over a security issue. But my sense is having the conversation and then creating a list would at least raise the bar.
QUESTIONER: Julia, in part, read mine, but I guess I still want to make sure that I myself am clear on something.
Pre-2001, I did a lot of the plain-vanilla political asylum cases. And my understanding or at least remembrance from those -- and maybe I'm not -- is that when we're trying to figure out whether or not it's okay to send someone back, given the principle of non-return to -- (off mike) -- it seems like the relevant test was as much what the person felt about that and what was in their mind in terms of fears of persecution in their country of origin that they had fled coming to the United States and landing in the middle of JFK and then getting put into the system as anything.
So my understanding is the convention of torture says, you can't send them back into places where they're more likely than not to face torture. And that more-likely-than-not standard had, as part of it, an important element that said, well, what does the person think? Do they have a fear of death or the rest of it?
And then my understanding is, on top of that, if you are also party to it, if your country was a party to it, the convention on human rights said it doesn't have to be torture, it just has to be cruel and -- whatever that may mean. But that is a subjective standard, and you wouldn't necessarily look only to the home -- well, to the residing, present country's body of torture law -- in other words, what does the United States think that means -- so you would actually take into account what that person in the situation means, which then -- well, thinks it means, right? Like, if I go back, what will happen to me, and then in my mind, what does that mean? Does that mean I have a risk more likely than not of torture or the rest of it?
And then elsewhere in your paper, it looks like as you're describing the limbo that you can quickly get into with having somebody that you don't want to keep here, you can't or don't want to send back to the country of origin, and there may or may not be a third-party country that you can send it to.
You mentioned there's kind of just stakes for a Guantanamo holding bin that is kind of a limboesque type of place, but I'm wondering if that issue would go away if folks who would be placed in a place like Guantanamo post providing them with a decision of whether or not they want to be returned from whence they came. And if they proactively then felt, say, I don't want to go back to Afghanistan because of what I believe may happen there to me, and it's better for me to actually stay here, and that's my choice, would that diffuse -- without putting any sort of value judgments on the outcome, would that diffuse some of the political issues that you're saying would render that as sort of a non-starter, splitting the baby, threading the needle eye.
DEEKS: So I guess your first question goes to the relevance of the person's own sense of the treatment.
DEEKS: My understanding is that the test is not a sort of subjective test of does the person think it's more likely than not. I mean, the language in the CAT is the state has substantial grounds to believe that a person is likely to be tortured on return. And in ratifying that treaty, the Senate said, well, we think that means more likely than not.
And my understanding is that that is a test that the government says, do we think it's more likely than not? And it may be that if the person -- there may be cases in which the person hasn't himself asserted that he'll be tortured, but the government still thinks that it's more likely than not. And so then the government's still on the hook because the government, as a sort of objective test, thinks that's been met.
And yet I do think that there is relevance to the voluntariness of the person, you know, if in that case the government thinks more likely than not and the person says, I really want to go, I want to home, I think that's relevant. I try to get at that in some of my recommendations on Guantanamo where I don't actually know quite how the voluntariness element is taken into account. But I think it should be, especially where there are -- they can sort of serve as test cases.
And I think your second question, if I understand it, is, well, let's say there are a bunch of people who really don't want to go home, would they -- and they actually say, I'd rather be stuck in a sort of permanent, indefinite detention than be sent home, I think the Supreme Court might view that -- I don't know how they'd view it, but they might be skeptical because that is sort of the scenario in which the plaintiffs found themselves in Zadvydas where they said, look, I've been in detention in six months. There's no obvious sort of continued effort by the government to find a home for me, I want to be released. And the court said, yeah, okay.
So I think you wouldn't even get to your point because I think you would probably, in that case -- you might run into the court saying, just release him. You can't continue to detain them in a place that looks either like Guantanamo or just sort of generic immigration detention. You've got to release them unless there's a national security angle, and that's the untested part of that case.
SMITH: Adam and affiliation -- (inaudible).
QUESTIONER: Adam Smith. I'm at Covington & Burling.
Actually, it's -- this looks like a fascinating report. I'm looking forward to getting more into it.
The question I have is sort of, I guess, the other side of the coin. And so, even though, from my understanding, people at Gitmo or even people who are detained in Iraq or Afghanistan, the vast majority of them, the concern really is this transfer to torture, I was wondering, in certain circumstances, surely the concern is as much transfer to then be able to engage in more bad acts against the U.S. as opposed to torture. And I was wondering if you could talk a little bit about that, even if it's just sort of a minority associate -- (inaudible) -- for those individuals or vice versa.
And also whether or not you believe that your recommendations, in some respects, could serve double duty and protect both those individuals from torture and perhaps us and our allies from releasing people who could go out and engage in more wrong acts or bad acts.
DEEKS: I think currently the government with Guantanamo detainees, for example -- let's start there because it may illustrate your point -- seeks two types of assurances. The first is a humane treatment assurance and the second is a security assurance, and that means that the government can make one of sort of three decisions about somebody. It can say, we don't think this person is any longer an enemy combatant as, for example, I think with the Ouigers. It could say, you know, regardless of whether this person was or wasn't a combatant, we're prepared to transfer him, meaning transfer him with the government receiving them, sort of keeping an eye on them, whether it's actually in detention or whether it's just sort of being aware of his goings on and not giving him a passport and the like. And then the third is, we're not comfortable releasing at all at this point, we're going continue to hold him.
So you have release, transfer or hold. And so the government -- I don't know that much about the kind of security assurances that it obtains, but it definitely is concerned about the activities of people after it releases them from Guantanamo. And there have been reported cases in which people have returned to the battlefield, whether you think they were on it originally or not.
For example, the case of al-Ajmi, who was a Kuwaiti detainee. They're not necessarily known for engaging in suicide bombings. This guy was released to Kuwait. Kuwait tried to try him. He was acquitted. They gave him a passport, and he went to Syria and then he went to Iraq. And he is alleged to have been involved in a sort of three-part suicide bombing. So you're getting at a point. I mean, the government would say, some of these people are really dangerous. There may be people who are less dangerous, there are some people who really are dangerous, and we should be careful about releasing them.
Again, I don't know as much about security assurances as I would like to. But I think it would be useful to have the government sort of explore whether they've proven effective. Are they necessary, and are they sufficient? So in the al-Ajmi case, I don't know what assurances did and didn't give, but it may be that they are incredibly important. It may be that they're sort of useless. And so I think more could be done to try to figure out their value.
And correspondingly, if you don't seek security assurances, if you just say, I'm prepared to release, you may then well find yourself in a case in which you wouldn't need the same level of humane treatment assurances because the person will basically be set free on foreign soil as opposed to set free into the custody of a foreign government where the likelihood of mistreatment might be higher. So I don't spend a lot of time on that in this.
And you know, those are counter arguments to closing Guantanamo, for example, the things you're getting at. How do you strike that balance? I mean, the government, I think, is trying to strike the balance. And it obviously hasn't gotten it right in all cases. It's probably held people it doesn't need to continue to be holding and, conversely, has released people who have gone back to do bad things to our allies, to our own forces and to our civilians.
SMITH: Just, again, a presider's comment here. Adam asked a question that I was going to ask if nobody else asked, and that is taking the other side, which I think has to be addressed in part because this will be addressed in the political climate. And there are a substantial number of important people around this town, regardless of who becomes president, that will say, well, wait a minute, these are still people who may want to kill Americans.
You have a footnote that says, DOD says that 6 percent of detainees released may have gotten back to the battlefield. Well, then we'll hear President -- is 6 percent is an acceptable figure? I mean, I don't know the answer to that, but these are -- some of them are potentially very dangerous. Many of them are not. Many of them are wrongly there in the first place, the evidence doesn't support the decision. But these are not easy decisions.
And I think it's incumbent upon all of us who worry about it to understand that we're going to be dealing with very real cases, very hard cases in a political climate where people are genuinely worried about not only doing the right thing as a matter of American reputation and in law but also protecting Americans. And that -- it's -- which is why I think Jack Goldsmith's book is so very good because it's one thing to be -- for us to sit around here in this setting, but it's another thing if you actually have the responsibility. And I think we shouldn't -- (inaudible) -- with that.
I'm sorry. We've another question. Yeah Shaarik.
QUESTIONER: Shaarik Zafar from the Office of Civil Rights and Civil Liberties, Department of Homeland Security.
Ashley, you've probably forgotten more than I know about this, but getting back to the binding of -- the nature assurances. And you said rightly, you know, they're not treaties. There's no real -- I don't think there's a real status for them -- (inaudible) -- we agree to do something as sort of a deterrent -- (inaudible) -- international law. But there are times when Congress gives the president the executive authority -- you know, fast track for trade agreements and things like that, where they say that, look, you know, it gives the executive at least some degree of authority about, you know, making an agreement more -- (inaudible). I was wondering if you had thought about that.
In other words, -- (inaudible) -- is that a -- (inaudible) -- binding this of an assurance -- (inaudible)?
DEEKS: I hadn't thought about sort of having the executive seek a sort of congressional blessing to proceed with these kind of assurances. As I noted, there actually are regulations that do contemplate that the government will seek assurances. So it's not like they're sort of totally made up. And in fact, foreign courts have approved the use of assurances on a case-by-case basis, said, yes, we recognize these are actually -- can be valuable tools. The U.K. courts have done it, the Canadian courts have done it and so on.
I'm not persuaded that there would be a huge amount of value to having us as a government or the U.S. as a government sort of saying, we think of these as more binding. MOUs are widely recognized in international law as a way for two governments to sort of put their intent on paper. And a lot of binding treaties don't have dispute resolution mechanisms. A lot of them are binding but, at the end of the day, that doesn't necessarily mean anything. And in the WTO context, it might mean something.
In an extradition treat, if one state fails to extradite somebody who clearly fits within the terms of the treaty, you know, there are sort of political ramifications to that, but there aren't really legal ramifications that sort of hit home.
So I think rather than focus on kind of making them more binding, I would focus on some other stuff, including actual sort of political leverage. How are there ways for us to increase the carrots to make the violations more costly in other areas? And concomitantly, are there longer-term things we should be thinking about now to try to make the need for these assurances in the face of possible torture concerns? In other words, to improve the conditions of the countries receiving them.
SMITH: We have, by my measure, about two or three minutes left of. Final question, Garrett.
QUESTIONER: Garrett Mitchell from the Mitchell Report.
I'm struggling with how to put this in the form of a question, and it has sort of two component parts to it. The first is The New Yorker magazine has us all thinking a lot about irony and satire this week. And I'm struck by the irony of us sitting around a table today talking about how we can strengthen the procedures by which we are sure we don't send people to countries that will torture them when we're in the torture business and, I think, unequivocally demonstrated. And I just, as I say, I can't find a way to turn that into a question.
But I'm struck by the fact that, you know, Jane Mayer, in her new book "The Dark Side" which is a compilation of the work she's been doing, and other sources tell us that, you know, this is a game we've been in for the last seven years, both, you know, at home and abroad.
The question part of it I suppose is that Ben Wittes has just written a new book called "The Law and the Long War" which, in essence, says that not just in detention but in surveillance, in all elements of this, that we simply lack legal framework and legal architecture to deal with the new issues of this so-called long war, a. B, that we need to create them. And c, that the place to do that is to get the Congress directly involved in having that conversation. Because as a nation, we need to have it, we need to understand we're in new territory. And I think as Jeffrey may have said earlier, you know, we're, you know, bad cases make bad law.
And so I'm curious, not having read the paper yet, I don't think I have heard, and maybe I'm in error, that legislative remedies -- am I correct in saying that legislative remedies are not a principal component of your thinking in regard to this specific set of questions? Or have I missed something?
DEEKS: There is a category of recommendations that addresses Congress and recommends that Congress work with the executive branch to try to determine an appropriate role for the court. So I agree with Ben's principle, and Goldsmith also is making the same point that it is particularly useful to have both the executive and Congress making these balancing tests, the sort of human-rights-versus-national-security balance that a lot of these require the government to strike.
And while Congress has dabbled a little bit in some efforts to deal with assurances, their efforts to date have primarily been to prohibit their use. Obviously, the laws haven't passed, but the proposals been that.
And while I'm not persuaded that's the right answer, I do think that assurances can be a useful tool. I also think it is useful for Congress to be engaged in this debate as well. And I think that inserting a neutral decision-maker somewhere in the process via legislation, having our courts play that neutral role, could actually be a useful way to help put all of this on a regularized footing.
As I noted, I think, in some ways, this has all been cobbled together as a result of practices from renditions, deportations and extradition, and we've used similar tools in all these cases. But I think it's time to think of it more holistically moving ahead because I think these are issues that are going to be before us in five and 10 years. These are not ones that are going to disappear in January 2009.
SMITH: Well, I think that's a good way to end it, hopefully with some optimism that Congress will take this up. It's not likely to occur in this calendar year.
But I am -- I share your hope, Garrett, that in the next Congress with a new president, regardless of party, that they would take this up seriously.
I think the other thing we should do is think about looking again at the Geneva Conventions. They ought to be -- (inaudible) -- with our allies.
With that, thank you again, Ashley. (Applause.) And thanks to all of you for coming. Very good discussion.
DEEKS: Yeah. Thank you so much.
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