Media Roundtable with Senior Government Officials

Monday, July 17, 2006

U.S. Mission to the United Nations in Geneva

Matthew Waxman:  Good morning.  Thank you very much for coming.  My name is Matthew Waxman and I’m honored to lead this expert United States delegation before the Human Rights Committee.

The United States takes its obligations under the International Covenant on Civil and Political Rights very seriously and has gone to great length to provide the committee with a thorough report.  I’d like to just make a few quick points before turning it over to some of my colleagues.

One thing that sets the ICCPR apart from other treaties is its enormous substantive scope covering virtually everything modern democratic societies think of as essential civil and political rights.  In many senses a truly democratic society and government could not long exist without the vigilant protection of these rights.

In this regard, upon becoming a party, the states’ work in fulfilling those ideals is never done. We are proud of our nation’s efforts to promote civil, political and human rights at home and abroad.  We are proud of our system of checks and balances including a strong and independent judiciary and Congress, and an entire system of constitutional law that vigorously protects civil and political rights.

Indeed, few countries in the world could claim greater protections of, for example, speech, press, association or religion than the United States.  The United States also historically promotes these same values around the world and continues to do so as part of the President’s Freedom Agenda.

At the same time we must remain ever vigilant in protecting these rights, and no matter how far we have come in fulfilling the ideals of the covenant, we will always strive to do better.  That’s one reason why this session before the Human Rights Committee is so important.  It gives us an opportunity not only to explain publicly our commitment to these ideals and the many tangible steps we have taken to safeguard them, but it also gives us an opportunity to engage the committee as well as NGOs and other key players in civil society as part of the ceaseless process of fulfilling our commitment to freedom and our obligations under the covenant.

With that, let me turn things over to my colleague, Assistant Attorney General Wan Kim.

Wan Kim:  Thank you.

Good morning. It’s a pleasure to be here and it’s a pleasure to meet all of you.  My name is Wan Kim, and I head the Civil Rights Division at the US Department of Justice.  It’s a privilege for me to be here on behalf of the United States of America which I view quite frankly as the freest country in the world.

Consistent with that view, we have some of the most robust systems of civil rights laws and protections known to man.  In many respects those laws and protections represent some of our nation’s highest collective ideals.

We also have a robust system of enforcement, both at the governmental level – my division is proud to enforce many of these laws on a daily basis with a staff of 700 people; but we also have private causes of action brought by individuals who vindicate their own rights on their own behalf before, again, the world’s most independent judiciary.

I’m happy to be here to partake in a discussion, in a dialogue of these important principles and of the important work the United States has done historically to vindicate these principles before the committee, and I look forward to talking with you as well.

Thank you.

Matthew Waxman:  Deputy Assistant Secretary of State, Mark Lagon.

Mark Lagon:  I work at the State Department on UN affairs and particularly human rights machinery, and I just want to stress that all nations should be subject to scrutiny before the UN’s human rights mechanisms, whether they have freer governments or less free governments.  The United States is extremely committed to being as transparent as feasible about its own policies.  That’s why we’re here.

All nations should seek to improve and evolve in the way they ground political and civil liberties.  The United States has clearly improved over time.  It’s been an evolutionary process.  Secretary of State Rice notes herself how originally in the US Constitution African Americans were only treated as three-fifths of people and given the legacy of slavery one might even ask whether they were three-fifths of people.  It took a civil war and then, importantly, a civil rights movement in the United States for them to fully enjoy civil and political rights.  Women too only gained the franchise in the 1920s, although that’s a lot earlier than women came to franchise in some places and they still don’t enjoy that in some countries.  That wasn’t true from the beginning of our republic, so these are evolutionary processes.

There are 156 parties to this Convention and all of them should review their record and see how they’re meeting the standard of this Convention which is in a sense the principle of the central UN treaty on human rights.

That said, to reiterate what my colleagues here have said, we have a pretty strong record of civil and political liberties in the United States, and in looking at our record, want to recognize that as a general premise.

There are some issues that will come up in this defense that have to do with the war on terrorism and the United States conduct of it.  It is our firm belief that those issues in large part lie beyond the scope of the treaty, those things that have to do with conduct outside of the territory of the United States or those that belong to the questions of law of war rather than human rights law.  Nonetheless, the United States will answer those controversial questions as a courtesy to the committee, and importantly, as a matter of openness in the international community.

When it comes to the heart of this convention on matters of the robust record of the United States, we do want to insist that people look at ways in which we have this strong system of checks and balances and a highly routinized history of developing civil and political liberties.

The United States recognizes that it will be held to the highest standard.  It is an exemplar and it welcomes playing a role as an exemplar because the United States mission for developing freedom is not just for developing freedom at home but a need to enlarge freedom as something that everyone aspires to.  That’s part of the President’s agenda for promoting what he has called the non-negotiable demands of human dignity, and we don’t in the United States just pursue a vision of a world without tyrannies but actually have programmatically tried to work to promote democracy from the Millennium Challenge Corporation to the development of the new UN Democracy Fund, we’re trying to serve the extension of human rights and freedom abroad.  We accept that that can only work if the United States is a successful model in the world.

Magda Siekert:  We’re going to open it up to questions.

Question:   First I’d like to ask you why the report is seven years overdue, then to get to some other substantive issues.  You say that the Treaty, the Covenant does not deal with the United States’ behavior abroad.  Human rights organizations who are here disagree with that and say that in fact the treaty does deal with that and they are specifically concerned with the issue of rendition and the fact that the United States accepts diplomatic assurances from countries that have been proven to in fact torture, that there is evidence that they have tortured people.

Then on a domestic issue, what is your position regarding juvenile offenders who are given life sentences without any possibility of parole, this by human rights organizations is considered to be a huge violation of the Covenant.

Matthew Waxman:  A number of questions embedded in there.  Because we have this expert delegation arrayed before you I want to actually let some of the other experts speak to some of those specific issues.  Bob, perhaps you could address the issues concerning the report as well as what is actually our longstanding view with regard to the extraterritorial application of the ICCPR.  As I said, the United States welcomes this opportunity to appear before the Human Rights Committee.  We’ve taken our reporting obligations very seriously, and as my colleague Mark said, we recognize our role as an exemplar to the world.

But Bob, perhaps if you want to speak to both the legal issue as well as the process issue, at least initially.

Robert Harris:  Certainly, I’ll be happy to.  I’m Robert Harris, the Assistant Legal Advisor for Human Rights and Refugees at the Department of State.  I’m happy to talk about a number of these questions.  I actually note that you’ve hit four very interesting issues that I think will be topics we’ll be talking about today and tomorrow. 

To some extent we will have longer answers to these questions when we do our presentation before the Committee, but to give a basic nutshell answer, with regard to the fact that the report is late, there’s nothing much to say about that.  I don’t think anybody in the US government would ask for an excuse other than an explanation which is the United States is in the same situation that many countries find themselves in, being parties to many human rights treaties.  Each one of these human rights treaties has a requirement that states file an initial report and then file periodic updates.

I think the experience of the United States is mirrored by many countries, which is being parties to many of these treaties with serious reporting obligations, it’s easy to get behind in making them.  Currently more than 70 countries are behind in filing their reports for the Covenant.  That is not an excuse and the United States isn’t looking for an excuse in this matter.  I think what it is, though, is growing pains.  This is now our first supplemental report after our initial report and I think the United States like many countries is realizing that if we want to do this properly and thoroughly we’re going to have to put more resources into it.  Not just in one agency but in all the agencies because the writing of the report is extremely complex and comprehensive as so many agencies within the United States implement a treaty like the Covenant.

So again, I think it’s not an excuse, it’s simply a fact that we’re not alone in being late.  There is in fact within the UN an entire dialogue right now trying to figure out how countries and states, parties, can have reporting requirements that are more mutually reinforcing and more efficient and we’re hoping that we will no longer be late.  We are now technically in compliance with our requirement for filing our report and we intend to stay that way.

Matthew Waxman:  Thanks, Bob.  Do you want to say a quick word, Wan, about juvenile offenders?

Wan Kim:  Absolutely.  I would note at the onset that the category of juvenile offenders is a small category with respect to the criminal system in the United States.  The category of juvenile offenders who are sentenced to life without parole is a micro-category within that small category.  We’re talking about on the extreme margins of the criminal justice system in the US with respect to its affect on that category of persons.

Trials at the end of the day, criminal liability at the end of the day in the United States has assessed after a highly fact-specific and individualized set of considerations.  Any offender, regardless of the age of the offender, is judged upon the crime that they are alleged to have committed and facts are called upon to educe proof of that beyond a reasonable doubt.  Then that verdict, which is assessed by a jury, is then tempered by a sentence handed down by a judge which is then subject to multiple levels of appeal.  So the process by which criminal laws are imposed in the United States is a very very exacting process with the risk of error on the side of allowing a guilty person to go free rather than convicting an innocent person.

There is a small category of extreme crimes, crimes that shock the conscience such as murder, rape, that have the highest levels of penalties associated with them in the United States of America and when some juveniles are accused of committing those crimes, and when some juveniles have been committing those types of heinous crimes, the United States believes that under appropriate circumstances, with a highly individualized consideration of the offender, the sentence of life without parole is a just and fit sentence for some of those offenders.

Matthew Waxman:  Sandy, did you want to –

Let me address briefly your question concerning renditions and then maybe I’ll set Sandy Hodgkinson, my colleague from the State Department, address quickly the issue of diplomatic assurances which is an important issue and one that came up as you mentioned in our discussion with NGOs yesterday.  Some of these issues, because of our legal position, we believe fall outside the mandate of this Committee, but these are important issues and we expect them to be addressed tomorrow.

Rather than go into detail on what I do plan to say before the Committee, and I would note that issues like renditions of Guantanamo, were also addressed repeatedly recently by Secretary of State Condoleezza Rice and at great length by legal adviser John Bellinger before a committee here in Geneva in May regarding the Convention Against Torture.

Let me try to address this entire grouping of issues with some general comments about the way we think about the war on terrorism. 

I think it’s important first to remember that the attacks of al-Qaida confronted not only the United States but the entire world with a very new kind of threat and a threat that, frankly, did not fit neatly into existing legal categories.  This is a continuing threat that poses difficult dilemmas for all of us.

At the same time, we’re a nation that stands for the rule of law, and although the threat from al-Qaida presents tough legal challenges, our guiding principle is that our actions must be consistent with our Constitution, our laws, and our international obligations.

We must not view these priorities combating terrorism and upholding the rule of law as competing, rather in many ways we should think about them as mutually reinforcing.

That said, especially within a democracy, decisions about how to balance security and liberty are never easy.  Anybody who thinks they are easy one direction or the other is probably not charged with the responsibility of governance.

At the same time I’d also say that rule of law is not sort of a one-time event.  It’s a continuing process so we’re constantly reviewing our policies and practices to ensure their compliance with the law.  Sometimes course corrections are needed and sometimes these course corrections result from experience, sometimes from our own system of checks and balances, and sometimes as a result of international dialogues like these.

Sandy, do you want to add to that?

Sandra Hodgkinson:  I’m happy within that context to more specifically get into the issue of diplomatic assurances, particularly with respect to transfers of individuals from Guantanamo Bay.

As you know, it’s United States policy to transfer or release as many people as we can from Guantanamo Bay.  We do not want to detain anyone any longer than is necessary there.  Diplomatic assurances in that context have become one tool of many that is used to determine whether or not an individual can be transferred or released back to their home country.

It’s important in this context to recognize that we do have to reach an agreement with the third country, the host nation of the country, that is satisfactory that they will first not pose a future threat to Americans or our allies; and second, most importantly, that it will not run afoul of our fundamental policy that we do not transfer people to a location where it’s more likely than not that they will be tortured.

So within that diplomatic assurances can be one tool in finding that out, but when we examine it it is a totally of the circumstances, type of standard that we use, which means it would take a look at the statements they’ve made in the past.  We would hear anything that the individual had to say prior to their transfer.  We can assess the past human rights record of the particular country.  No one factor necessarily being dispositive, but the bottom line being we will not transfer someone to a country where it is more likely than not that they will be tortured.  And diplomatic assurances can be helpful in assuring that they will not be tortured there, but they’re not dispositive in and of themselves.

Matthew Waxman:  We’re covering a lot of territory here.  Bob, do you want to give just sort of a 30 second answer on the issue of the application of the ICCPR beyond our territory?

Robert Harris:  Certainly.  And in fact you’ll hear, those of you who are covering the hearing will probably hear an ongoing discussion and dialogue with the Committee on this issue.

Our position on the territorial scope of the Covenant is longstanding and well known.  In fact if you were to go to our report you will see there is about a seven single-spaced page legal description of the basis for it.

But the short answer is the Covenant itself provides that it applies to all individuals “within its territory and subject to its jurisdiction.”  That language was intentionally chosen by the parties that negotiated the treaty to require that two things happen.  It must be within the territory and it must be subject to its jurisdiction.  That’s the plain language which is what one looks to when interpreting a treaty.

At the same time the reason that language exists is because Eleanor Roosevelt, who was the delegate for the United States at the time this was being negotiated, made a proposal.  The original language actually applied, would have applied to anything under its jurisdiction, but Delegate Roosevelt representing the United States said well, that’s not acceptable to us because it would apply outside the territory, it would seem, if that’s what it meant, and she gave two examples.  Occupied Europe and leased territories.  Therefore the United States made a proposal which was contested and adopted by the group eight to two in a vote, that those were to be inserted and that the Covenant would only apply within the territory of a state party.

So that is the basis for our position.  It has been our position since 1950.  When we came to defend our report, the United States, in 1995 that is the position that we articulated then.

So this is nothing that has been recently invented by the United States.  It’s a longstanding position.  It’s a position grounded in international law.  We are quite comfortable with people knowing that position and we would refer you to our report which describes it at length.

Question:   I have two questions.  First, I don’t know which one of you were here in May for the Torture Committee, but I’d like to know what exactly the US is doing to fulfill those obligations that the committee requested.

Secondly, not a legal question, but why do you think at this moment there is such surging of questions on these regards to you, to the United States?  Why do you think they all came up during the last two to three years? These were not questions ten years ago probably.  You said the war on terrorism is a different kind of war, et cetera.  But why do you think the whole international community is asking these questions to you at this moment?

Matthew Waxman:  Let me just take those briefly in order.

With regard to the issue of torture as we detailed at great length in May, the United States does not permit, condone, tolerate torture.  We do so through numerous layers of law.  Including not only the Convention against torture itself, but also through our criminal statute which prohibits torture by any US government personnel anywhere in the world, the recently enacted Detainee Treatment Act, sometimes known as the McCain Amendment which prohibits cruel, inhuman and degrading treatment by any US government personnel anywhere in the world.  I think this sort of speaks for itself in terms of the multiple layers of legal obligations, legal mechanisms that we have to prevent and combat torture.

With regard to the issues of why these – Could you repeat your second question?

Question:   Why do you think the whole international community, or at least a big part of it, is questioning these values, or these protections you claim you are champions?  And just on the first question still, but from those, I don’t remember, 20 or 25 points that the Committee did point out, which ones have you started fulfilling?

Matthew Waxman:  I’m sorry, let me turn that question over to Bob.  Do you want to address that?

Robert Harris:  Certainly. 

As a participant in that hearing we found that a very useful exchange and we were very happy to meet with the Committee Against Torture and to have a dialogue with it.

It issued its conclusions and recommendations, all states parties are asked to look at them, study them, think about them, and report back a year later about what their reactions are.  Obviously these are conclusions and recommendations, they’re not binding.  But they are guidance from the Committee and certainly the United States is going to carefully study it.

Matthew Waxman:  With regard to why these issues are of some controversy, and this is not new to us, the United States is not combating al-Qaida alone.  This is not a war on terrorism conducted just by the United States but one that’s conducted by a very broad international coalition.  We recognize that some of these legal and policy issues represent tough challenges, tough dilemmas, and that we are subject to scrutiny.  As Mark said, we serve as an exemplar to the world and we’re here to explain how it is that our policies and practices do conform to the rule of law.

Question:   Since the delegation was here for the last meeting with the CAT, there’s been the Supreme Court ruling on Guantanamo.  How will that, if at all, affect what you say today?

Matthew Waxman:  I think it’s certainly something that will be of interest.  To review, the Supreme Court ruled among other things that Common Article 3 of the Geneva Conventions applies to the armed conflict with al-Qaida.  The President has said that we will respect and abide by that judgment.  Indeed, the Department of Defense has already begun this process by issuing guidance to ensure compliance with Common Article 3 by all components of the Department of Defense.  I think, frankly, this is an important illustration of our system of checks and balances at work.

Sandra Hodgkinson:  I would simply also add in there that while there is a new ruling of the Supreme Court our policy has always been to provide humane treatment to detainees held at Guantanamo Bay and the standard of humane treatment as defined in many DoD resources is very similar to what you’ll find in Common Article 3.  In fact if you look back to the Army Field Manual of 1992 and/or the Army Regulation of 1997 which has been governing our conduct throughout the war on terror including at Guantanamo Bay, you will find language which is remarkably similar if not identical in places to Common Article 3.  So whereas it has always been part of our policy, the Supreme Court has ruled specifically now that as a matter of law it will also be applicable, and for that very reason the DoD is ensuring that all orders, regulations and directives are legally complicit with it as well.

Question:   If you say detainees are treated humanely, how do you explain the suicides among detainees in Guantanamo?

Sandra Hodgkinson:  As I indicated, humane treatment is afforded at Guantanamo Bay.  Detainees are provided with adequate food, water, health care, treatment across the board as well as opportunities for recreation, many other of the exact same things that you will find in any part of the Geneva Conventions.

The fact that detainees have decided to take their lives is tragic when it occurs and we regret that, but that has nothing to do with the treatment they have received there at Guantanamo Bay.  They’re treated humanely.

Question:   You mentioned that you are concerned that the US not be held to a higher standard than other countries by this Committee.  I wonder if you can express to what extent you feel that that’s happening.  And especially with the CAT hearings so recently and lots of attention.  Is there a risk of a politicization of these issues for you?

Mark Lagon:  To be clear, our point was that we accept we should be held to a high standard.  The United States needs to be ready to accept a role as a model for others.  We aren’t going to refuse to address tough questions about civil liberties at home or the conduct of US policy on counter-terrorism just by using the excuse ah, there are governments that are less free than ours.  That’s not fair.  But we do hope that there isn’t unfair accusations or a standard which is different for us than for others.

The UN is at times a political body but one hopes that in particular an experts body devoted to the implementation of the treaties.  There will be a serious discussion.  We’re there in this session to have a dialogue, to express ourselves fully about pointed and subtle questions from the Committee’s members.  We’re ready to do that.  We’ll end up doing that in probably writing as well after the final session Tuesday.

Question:   My question is related somehow to the high standard of the human rights.  It’s on capital punishment.

Could anyone let me know the standard of capital punishment in the United States today?  For example, how many people were executed last year.  If you could tell me about the trend, is the number increasing or decrease?  What about the number of states which average capital punishment?  And if you guys for the government are dealing with human rights issues have any common position on this issue?  Thank you.

Wan Kim:  I don’t have all the statistics at my fingertips.  I can get them to you.  We do have compilations of data regarding the number of death sentences handed down by juries or judges each year and the number of persons who are executed each year, and those numbers are widely different, by the way.  Once a death sentence is handed down after a jury trial there are many layers of appeal such that many sentences are not executed until many years after the imposition of the penalty.

In virtually all of the states, and I don’t have the exact number, but certainly a strong majority of states as well as the federal government does provide for the possibility of a death sentence in certain heinous crimes.  I would emphasize that the category of conduct to which a death penalty may attach is an extraordinarily narrow category given the full range of crimes that occur in any country, and certainly the full range of crimes that are prohibited in the United States of America.

I think it’s very very important to understand that the United States has always stood firm by the principles of its foundation that a penalty for certain crimes may include the possibility of death.  But that that penalty is never imposed absent a highly meticulous standard of proof in a fair forum with adequate counsel, impartial juries, and many layers of review by appellate judges.

Question:   My question is for representatives of the Justice Department.  I was wondering if intercept of private commercial transactions within the United States by federal government agencies, if they would be in breach of the Covenant if they’re not accompanied by judicial oversight?

Wan Kim:  I appreciate the question.  It is timely in some regards.  Without knowing the particular specifics involved it’s impossible to answer that question.  And that’s not a duck.  It’s because the standard enunciatum [ph] of the 4th Amendment is one of reasonableness.  Reasonableness depends on the facts and circumstances of each case.

Certainly the Department of Justice is not aware of any program conducted by the United States government that it believes to be in violation of the Constitution and of the laws.

Question:   I was referring to the review by the New York Times on the intercept of the Swift banking clearance system.

Wan Kim:  With respect to the Swift program, the United States position has been very clear.  That position has been authorized by Congress.  It is not a violation of any law or the Constitution because it is a reasonable program designed to obtain information through a process that has been stamped to be proper.

Question:   Just for very practical question, can you explain a bit what’s going to be the procedure in the coming few days?  When are you going to submit a report, questions, and –

Matthew Waxman:  Let me turn that over to Bob Harris.  He can run through that with you.

Question:  Also, could you also remind us when was the last time the report was presented?

Robert Harris:  I’d be happy to.  Let me answer the second one first because it’s a little bit quicker.  The United States submitted its first what’s called the initial report of its implementation of the Covenant in 1994.  We appeared before the Committee in 1995.  So when you hear us talking about the initial report or our previous meeting, those are the events that we’re referring to.

The process for the next two days will be one, this afternoon we will go at 3:00 o’clock to meet with the Committee.  We will speak for a bit.  We will give our opening statements.  We will answer – Before we came they asked us written questions.  For today after we do some opening statements we will answer those questions that they gave to us.  We will then stop about halfway through the session and then the members of the Committee will give their reactions to our report and ask additional questions.  As time permits, we will answer them today.  Tomorrow we will begin the same thing over again.  We will come, if there are any questions we haven’t answered yet we will try to answer them, and then we will answer the second half of the questions that they gave us in advance.  That will take about half of the session.  We’ll stop, and then they will continue to give their reactions and additional questions to us.

To that’s the two-day process.  It’s this afternoon and tomorrow morning.  Does that help?

Question:    They will submit conclusions at the end?

Robert Harris:  Yes, at the end of the session they will issue, for all the countries they have examined in this period, what are called Conclusions and Recommendations.  They’re not legally binding, but they’re views, observations and recommendations of the Committee to the state party . And again, like the CAT, the Committee Against Torture, a state party will look at those carefully and think on them over the course of the next year.

Question:   Just thinking in terms of coverage, how much access will we have for the report you’re going to present and –

Wendy Lubetkin:  The report is already available on the US Mission website, and at 3:00 p.m. today as our delegation begins its presentation we will release the written responses to the pre-submitted questions.  That means you’ll all get it in your mailboxes and it will also be on our web page at that point.  And we hope also to have the opening statements shortly thereafter to send directly to you.

Question:   Are the meetings open to the press?

Wendy Lubetkin:  Yes.

Question:   [Inaudible]?

Robert Harris:  The question was how many questions were submitted.  There were 25.

Question:   Only?

Robert Harris:  Well, each one is about this long.  [Laughter].  There’s more to it than simply the numbers.

Question:   I have a technical question.  With reference to US bases overseas, what’s the status in terms of the Covenant?  Something that might take place in a US base in Country X. Does that constitute US territory or not?

Robert Harris:  Can you repeat the question?  I’m sorry.

Question:   US bases overseas, if something takes place on a US base in Country X, is that subject to, does it fall under the Covenants of national territory or what?

Robert Harris:  Oh, I see.  The concept of what is the territory of a state is very well settled in international law, and something that happens in another country or on the high seas or anywhere that isn’t in what we think of as the physical territory of the state is not in the territory of the state.  So bases that we have overseas are in foreign countries, so those are not in the territory of the United States.

Question:   So if something was taking place, that would be outside of the Covenant?

Robert Harris:  Correct.  Not that there wouldn’t be a body of law that might govern those activities, but that the Covenant wouldn’t be that body of law.

Question:   But a base, isn’t it under American law?  Or under the country’s law?

Robert Harris:  We could have a good discussion.  Maybe we’ll talk after this.  It’s this question of what is the jurisdiction of a state and what is the territory of a state.  But everybody knows what a territory of a country is.  Say we have a base in Country X, that is not the United States.  That is Country X.  The United States may have certain rights there, we may have certain things we can do there, but that is clearly the territory of the foreign country and not the territory of the United States.

Question:   Under the law of the foreign country or under the law of the United States?

Robert Harris:  That’s a question of jurisdiction and it gets very complicated, but the simple question of territory is very straightforward, that that base is not in the territory of the United States.

Question:   Which law is carried out in that base?

Robert Harris:  I think you’d have to look in each case to what the activity is that you’re talking about and what the agreement may be between the two countries.  So it’s complicated.  The jurisdiction question is complicated.  The territory question is simple.

Question:   [In French].  Is there any overlap between CAT and this [inaudible]?

Robert Harris:  When you say overlap, do you mean in the people who are here or in the subject matter?

Question:   Subject matter.

Robert Harris:  There is some overlap in the subject matter.  Article 7 of the Covenant has provisions, a very short provision on torture and cruel, inhuman and degrading treatment or punishment.  After the negotiation of the Covenant countries in the world thought that we needed to do more, to have more specific provisions about torture and cruel, inhuman or degrading treatment or punishment so they negotiated the Convention Against Torture to provide those additional rules because there’s only two lines in this instrument about torture and cruel, inhuman or degrading treatment. 

So there is an overlap.  The CAT has many more specific provisions on the subject, particularly on the subject of torture than this instrument does.   Whether this is easier or more difficult I might leave to the other members of the delegation.  I think they’re similar. I think we’re here engaged in a dialogue with the relevant Committee that is charged with helping countries look at their performance under the treaties.  I think the nature of the dialogue is the same.  I think the issues we talk about may be a little bit different, but I think that give and take we’re hoping will be as productive and informative to the public as the one we had with the Committee Against Torture.

Question:   In all these committees at least we hear and the press releases that come out from the High Commission of Human Rights or from raporteurs, they all basically at the end ask for the same thing which is the closing of these prisons outside the United States.  When you say that you are considering all the recommendations of the Committee Against Torture, this was their – I’m sure it will come out again during this session.  Is this a question that you’re not even dealing with, the closing of these prisons, that you simply can forget including all these press statements that we get here in Geneva asking you to close these things?

Matthew Waxman:  Let me turn it over to Sandy Hodgkinson to address it in more detail.  Let me begin by saying that Guantanamo represents exactly one of the types of difficult dilemmas, tough challenges that I mentioned earlier that we’re presented with in this war on terrorism and as a result of the armed attacks by al-Qaida. 

Sandy, do you want to –

Sandra Hodgkinson:  I would simply add, obviously we are considering, as Bob indicated, all recommendations that were made by the Committee.  In the particular context of the closing of Guantanamo Bay, the President has said that he would like to close Guantanamo Bay but that there needs to be a recognition that there are some really dangerous people there who are bomb-makers, who have trained in terrorist camps, who have taught children how to be suicide bombers.  There are dangerous people.  We need to figure out what to do with those dangerous people.

Obviously we have taken steps, as many as we can, to downsize the population that we have at Guantanamo Bay through transfers and releases, but at this time there is no date for the closure of Guantanamo Bay.

Question:   Nor for the transfer of these for example to the US territory?

Sandra Hodgkinson:  At this time there’s no plan to do that.  As I indicated, there are more than 100 people, approximately 140 people right now who are prepared for transfer or release to their countries, and we will continue to negotiate with their home countries for these humane treatment assurances and other assurances that they will not pose a continued threat to the United States.  But this will take effort of countries other than just the United States to both agree to their return and to agree to the humane treatment standards.  So while it is easy to say you need to close Guantanamo Bay, there are several decisions that need to be made.  In particular, there are criticisms, for example, of the use of diplomatic assurances. We need to explore all the possible opportunities for transferring these individuals back to their home countries, and if that’s not possible, somewhere else. 

So obviously we consider all of the recommendations made by the Committee and by our key allies around the world and we’ll continue to do so.

Matthew Waxman:  Thank you very much.

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