[070711law1200]{.underline}

Rubens Medina:

Good afternoon, and welcome to the first and inaugural scholarly program
panel discussion. I see a lot of familiar faces that know me, but for
those that I haven\'t had the privilege of knowing, I am Rubens Medina,
the law librarian of Congress. And it is indeed a privilege, and I thank
you for showing the interest to come and share with us what I believe to
be a very interesting learning moment here in the Law Library of
Congress. We may consider this a historical moment since we are in this
new facility of the Law Library \[of Congress\] for the first time. And
also we are launching these panel discussions as a serious and scholarly
program. So you may expect to be invited again to another session or
sessions of the same format, and on topics in the public interest. We
are offering to you today a discussion on torture, detainees, and the
U.S. military. We believe that is, indeed, a topic in the public
interest.

As the moderator of this event, it\'s one of our scholars-in-residence,
in fact, our only scholar-in-residence at this time \[laughs\]. He\'s
going to be the one promoting the program, hopefully, for the days to
come. And he is Professor Gary Solis. He is in the Law Library \[of
Congress\], as I mentioned before, as a scholar in residence, and he\'s
a retired Marine with 26 years of service after tours of duty in Vietnam
as an armor officer. He attended law school at the University of
California, Davis, and was a judge advocate for 18 years. His master's
law in criminal law is from George Washington University Law School. His
Ph.D. in the law of war is from the London School of Economics and
Political Science, where he taught for several years. He is a recently
retired United States Military Academy professor of law, where he headed
the \[United States\] Military Academy's law of war program. He is also
an adjunct professor of law at the Georgetown University Law Center,
where he teaches the law of war. I am not going to stay here, as I said,
very long. Gary is in charge, so therefore, Gary, please take over and
introduce our distinguished guests.

Gary Solis:

Thank you, sir.

Rubens Medina:

Thank you so much.

Gary Solis:

My pleasure. Gents, ladies, thank you very much for coming. I would like
to introduce our panelists. To my left, Brig. Gen. Patrick Finnegan,
United States Army. He\'s the academic dean of the United States
Military Academy at West Point, New York. Before becoming dean, he was
professor and head of West Point\'s Department of Law. In 1971, after
graduating from West Point, Gen. Finnegan earned a master's of public
administration from the Kennedy School of Government at Harvard
University. He served in various infantry and intelligence billets
before he received his law degree from the University of Virginia Law
School, where he was an editor of "Law Review" and "Order of the Coif."
He was an instructor at the Army\'s Judge Advocate General \[JAG\]
School, and five times he was the senior legal advisor, the staff judge
advocate of major Army commands. In 1991 he served in the Persian Gulf
in operations Desert Shield and Desert Storm, and he was the staff judge
advocate of the U.S. Special Operations Command \-- where he was the
staff judge advocate. And later, he was the staff judge advocate of the
European command during the Bosnian conflict, before he returned to West
Point in 1998.

Mr. Lee Casey is a prominent partner in the prominent Washington law
firm of Baker & Hostetler. Concentrating on federal, constitutional and
international issues, he\'s a frequent contributor to the editorial
pages of the "Washington Post," the "New York Times" the "Wall Street
Journal," and other publications. Along with political commentary, he
has authored numerous law review articles. He\'s a former law clerk to
Judge Alex Kozinski, and in the 1990s, during the Reagan era, Mr. Casey
served in the Department of Justice (DOJ) in its Office of Legal
Counsel, advising the attorney general and the White House on issues of
constitutional and statutory interpretation. In DOJ\'s Office of Legal
Policy, he concentrated on U.S. strategic legal issues. Additionally,
for several years he was the Department of Energy\'s associate general
counsel. Mr. Casey, we appreciate your willingness to join us on short
notice, and it\'s a pleasure to have you here.

To Mr. Casey\'s left is Ms. Jackie Northam, a Canadian born news
reporter and analyst, currently National Public Radio\'s national
security correspondent covering foreign affairs, defense and
intelligence policies and terrorism, among other topics. She\'s
regularly heard on NPR\'s "Morning Edition" and \"All Things
Considered.\" Since 2003 she\'s regularly traveled to Guantanamo Bay,
Cuba, reporting on the military detention center and on military
commissions. She was NPR\'s lead reporter on the Abu Ghraib abuse
scandal, and the administration\'s policies on torture and the Geneva
Conventions. While based in Kenya, she covered the Rwanda genocide and
uprisings in Burundi and Tanzania. When stationed in Budapest, she
covered the fall of the Berlin Wall and events in the former Soviet
Union. In Phnom Pen she reported the disarming of the Khmer Rouge and
uprisings in Thailand. In London she reported on the European Union.
She\'s the recipient of three Edward R. Murrow awards and several
Associated Press awards.

And on your far right, Brig. Gen. James C. Walker. He is the Marine
Corps senior military lawyer. He\'s the staff judge advocate to the
commandant of the Marine Corps and director of the Marine Corps Judge
Advocate Division. Gen. Walker graduated from Clemson with honors, was
commissioned a lieutenant of Marines in 1979, when he gained his law
degree at the University of South Carolina, with honors. First in his
class at Naval Justice School, he then served in Buford, S. C., as a
prosecutor and then a defense counsel. He was transferred to Marine
Corps headquarters in Washington. He later earned his master of laws
degree with honors from Georgetown University Law Center, and a second
master of laws degree at the Army\'s Judge Advocate Gen. School. He
served on Okinawa, at El Toro, Calif., and is a Naval War College
distinguished graduate. He was a legal advisor to the U.S. European
command during the Bosnian conflict. He\'s twice been a battalion
commander, rare for a lawyer.

Our procedure is to have each of the panelists speak for 10 minutes
uninterrupted, and then there will be some cross-talk for about 20
minutes, and then there will be questions from the audience for as long
as it takes.

Rubens Medina:

I would also like to remind everybody, especially the speakers, this is
being recorded. So please be mindful of that, and that the mics and the
cameras are rolling.

Gary Solis:

I should say that all of the speakers speak for themselves, not
necessarily for their organizations, their arm branch, or their law
firms. Gen. Walker.

James Walker:

Okay, thank you. It\'s a pleasure to be here. I appreciate the
hospitality, especially one of the first groups in the new building
here. Always interesting to hear your introductions. What Professor
Solis forgot to say is if you want to know where my problems really
began, it was almost 25 years ago today, when I reported to work for
then Lt. Col. Solis.

\[laughter\]

Besides my formal education, I\'ve had some informal education that may
have contributed to my warped views.

\[laughter\]

But this is a stimulating topic, how we treat detainees. I think many of
the discussion that we hear always focuses on the pure legal aspects.
Certainly there is legal doctrine here that we can talk about for hours,
but I think the one aspect of the discussion that isn\'t focused on as
much is how we treat detainees, and what that means to the military.
I\'d like to talk about that a little bit in my time, as well as the
pure legal. And that\'s really speaking just as a Marine. It\'s a
discussion that could be the same for any military member. So, what does
the way we as U.S. forces treat detainees \-- how does that impact the
military servicemen?

The first is really just the basic concept of reciprocity. How we treat
others does impact how our forces are treated today and will be treated
in the future. It sets the example. Now, we\'re not saying that in
reciprocity \-- in international law, there is always going to be
perfect reciprocity, but we do know from past practice that you set the
example and you set the standard. So how would I want to be treated as a
Marine, if I were detained? Or if you bring it to a more personal level,
if you\'re not in the service, how would you want your son or daughter
to be treated if they were detained? And so that\'s more than a
theoretical discussion. Sometimes I\'m afraid we get caught up on the
theoretical end of the discussions, talking about legal nuances between
Common Article Three, the Geneva Convention, the convention against
torture and various other doctrines, and we forget that there is that
real practical effect. Because what we do or what we authorize others to
do sets that standard for the future.

Again, how would we want to be treated if we were in the military, or
your sons and daughters were? And you can bring that to just some simple
examples. What would the United States think, how would we react, if
U.S. service persons were treated in certain ways? And we can take one
of the most controversial "enhanced interrogation techniques " \-- I
think is the term now, the one that\'s certainly been covered the most
\--the water boarding, the simulated drowning. Now, that\'s kind of a
legal discussion we hear about in the press. We read about it. But what
would be the reaction of you or perhaps the rest of the American public
if we saw a U.S. military member who had been detained by a foreign
country or individuals, and was subject to that technique? Would we be
having any discussion, even, about whether that technique was legal,
lawful, or in compliance with the law of war in some fashion?

Now, that\'s the legal part of the discussion. The practical, again, for
the military is, we know that how we treat others will impact in the
future how we\'re treated. It hasn\'t been perfect in reciprocity, but
when you look at past conflict, certainly there has been, to a large
degree, compliance with the law of war, and certainly some adherence to
it, if not total compliance.

The second area for the military, where how we treat detainees is
important, is how it impacts our operations overseas; the domestic and
international support for U.S. forces. How can we accomplish our mission
in the future, and how this affects that? A lot depends on respect and
support. In U.S. operations overseas, particularly, we\'re going to
generally operate in coalition operations. If you look in the history,
probably for the last 20 years, there have been virtually no unilateral,
U.S.-only operations. It\'s always been a coalition operation of some
form. So our ability to attract coalition partners depends, at least to
some degree, on the degree of respect and cooperation that we have from
our allies. So I think how we treat detainees can impact on our ability
to have coalition partners in the future.

The second aspect of military operations that can be impacted is how we
get there. We like to think, as the, as America, with the large military
we have, that we can go and do what we want, but largely we depend on
international cooperation. We still need over flight rights. We still
need port rights. We still need access to facilities. And our ability as
a military to operate overseas depends on those. And I think our respect
and how we\'re held and viewed in the international community impacts on
how we\'re able to get things just as simple as port visits. Already,
for example, there are certain places where we are unable to have port
visits because, for example, a nuclear policy. We can\'t take the ships
into port. So that could impact on how we treat detainees and the way
that we work there.

The third area that really impacts military operations is the
cooperation and support from the local population around the world. I
think the history has shown that we\'re certainly trending more toward
low intensity conflict, counterinsurgency operations, things like that
in the future. A big aspect of success in those is the respect and the
cooperation of the local population. I think, a we treat detainees, the
way we treat detainees can ultimately also have some impact on the type
of cooperation that we will get in future conflicts around the world.

The final perspective I would offer really as a Marine, and probably
more just as any service person is, I think how we treat detainees \--
and as we fight the global War on Terrorism, we still have to uphold the
foundations and values of our nation. For over 230 years we\'ve had
certain values. We\'ve upheld those values, and generally, in times of
different opinions, we\'ve held what I would call the high moral road.
We\'ve done what\'s right. Sometimes that wasn\'t what was the easiest
course of action. Often it wasn\'t what was the most expedient course of
action, but we\'ve held that moral high road and set a standard for the
world. And I think that\'s very important. That\'s something our nation
stands for, that\'s something our military \-- and certainly in my
perspective as a Marine, that\'s something the Marine Corps stands for.

So the discussion on how we treat detainees carries over into a lot of
these other areas besides the pure legal discussions. The pure legal
discussion is stimulating in an academic sense. There are numerous
treaty nuances, and how did we get where we are today? Many of the
discussions began \-- I participated in some in a formal capacity back
in 2002, when we were trying to determine what would be the appropriate
interrogation techniques. I think the two key points of those
discussions really come down to this. One, what\'s the standard going to
be? Do your interrogation techniques or standards, how you treat
detainees, do they differ because of the importance of the issue? Do the
standards differ because these individuals might have information that
could prevent future loss of life? Or is there a constant standard for
the interrogation of detainees?

Lots of discussion has gone on since 2002 in this area, and in the end
we really \-- the policy in DOD \[Department of Defense\] today, which
is probably a good point to end with, is that in the Department of
Defense, on torture, it\'s clear. We don\'t condone, we don\'t
participate in torture. The position of the Department of Defense is
that we comply with international law. We comply with Common Article
Three in all our dealings with detainees. It\'s important we do that.
Again, I say that international law has not always worked perfectly in
the past, and perhaps it needs some modification to deal with changes in
world situations, but the position of the Department of Defense is that
we comply with all the detainee operations, we comply with Common
Article Three. That\'s the way we\'re trained. It worked in Korea, it
worked in Vietnam, it worked in Gulf War one, and I think it also can
work in the future in the global War on Terrorism. And then the final
point again is that we have to, as we fight the global War on Terrorism,
still defend our nation, but uphold those values that really have set
our nation apart. Thank you.

Gary Solis:

Jackie Northam.

Jackie Northam:

alright. My introduction to Gary Solis and our whole relationship has
been torture right from the get go.

\[laughter\]

Not sure what that means or says. I just wanted to back up a little bit.
When I went into Iraq the first time it was two days after Baghdad fell,
and at that point you could travel throughout the whole country, and I
did. It was good. Basra, Najaf, Tikrit, Mosul; everywhere we wanted to
go. And one of the areas I went to was Sadr City, and at that point,
again, it was very fresh after, you know, the city had fallen. And the
people in the mosque where I went had gathered a lot of stuff. They had
gone out to the sports arenas \-- where it had been used as torture
chambers, that type of thing \-- and they were bringing, hauling stuff
into the mosque. And that\'s where I saw \-- I guess you call it an iron
maiden. It\'s the first time I\'d ever seen sort of an instrument of
torture. And not long after that we went to another building, it was a
couple days later, and it was where they had kept all the documents of
people who had simply disappeared, and it ranged from little children up
to old folks.

And on the bottom floor of that building, I guess it\'s called a
stretching rack. It was the table where somebody would lie, and they
would actually pull people apart. Again, these are things I'd never seen
before in my life, and to me, this also instituted \-- in my mind, what
was torture. Pulling out fingernails, as they do now in Iraq \-- they
drill into people's heads, everything. I mean it\'s hideous. It was only
after Abu Ghraib happened that I realized there are many other types of
forms of torture that never leave a mark. And things that I never
thought would actually constitute torture; for example, very loud music
for extended periods of time, bright lights for extended periods of
time. I was a teenager. I liked loud rock music, what was the problem
here? You know? But only in my reporting did I finally find out that it
creates a sensory overload. It absolutely \-- you can melt down all your
senses. It\'s a form of torture. And it was one that apparently that the
U.S. was buying into.

And it\'s all a sense of degree, too. If it was a little bit, fine. If
it was eight hours, 16 hours, forcing people to keep awake and that,
people would become compliant. There was no question about it. When Abu
Ghraib broke, there was a question of a couple things that happened. And
one of them was it just sort of split open this whole nut, and very, one
of the first things that became apparent is that a very small group of
people had taken our standards, U.S. standards, international standards
for what torture was \-- inhumane, what\'s cruel treatment \-- and
reinterpreted it, rewrote a lot of these laws. And they did it quietly,
to the point where even if senior administration figures, they felt,
would not buy into this, what they were trying to do here; they were
kept out of the loop. And the only reason that became apparent is
because of Abu Ghraib. We did not know about this at the beginning.

There are many other things. People started talking about, okay, "How do
we treat people that we\'ve detained?" It became an open conversation
here. What staggered me was that there wasn\'t this massive outcry
amongst the public, that these rules and regulations, international
standards, longstanding formulations were being challenged, and being
done so quietly. The population of people really didn\'t cry out. They
were upset, and I often wondered if we had not seen the pictures of Abu
Ghraib, whether a lot of people would have cared what was happening,
because as always, it\'s the pictures that make all the difference.

Think of the Ethiopia famine years ago. People had gone in there and
written about that, radio people had gone in there, and broadcast. It
was only when you got the first pictures out of Ethiopia that the world
reacted. And I often wonder if that\'s the same thing that we saw at Abu
Ghraib. The other thing that Abu Ghraib did, is it shone the spotlight
from Iraq all the way across the world and landed at Guantanamo Bay. And
obvious questions became clear. If we\'re doing this to them over there,
what the heck are we doing to these people who are behind, you know \--
well, they\'re actually not behind closed doors. They\'re actually very
open doors. They\'re behind cages, essentially there. And that we don\'t
have \-- there isn\'t any transparency there whatsoever. All these
things became relevant.

I remember the first time that I went to Guantanamo Bay and I
interviewed Maj. Gen. Jeffrey Miller, who \-- unfortunately, in my
reporting, I busted him down to Maj. Jeffrey Miller. I guess that\'s
really not a good thing \[laughter\]. But anyway \-- and I remember just
doing an interview with him, and him saying, "No coercive
interrogations, no stress techniques." And I thought, "That\'s
interesting," because I didn\'t ask about that. These were new terms to
me. And as things became clear, what was happening in Guantanamo Bay, it
is that there were coercive techniques being used, and there were stress
positions. But I didn\'t understand what these terms were. I hadn\'t
asked about them. So it always rather struck me as odd. We know now that
Gen, Miller went over to Iraq, just before the Abu Ghraib detention
problem became clear, and he was brought in to help clarify, help get
better information out of people.

It was shortly after that \-- he said, "Look. The Geneva Conventions
don\'t apply to us at Guantanamo Bay, but this is how we do it there,
okay. I\'ll just leave that with you," and he left. It was shortly after
that that the abuse started there. Sorry, I\'ve lost my \-- anyway, so
you always had this problem with Guantanamo as well. And the only way we
ever got information out of what was happening in Guantanamo really was
first of all, detainees coming out, saying that they had been tortured.
And we had problems believing them because the first set that came out
said that they actually sold their stories. So we all just backed off,
saying, "If you\'re going to sell your stories, you\'re making things up
as you go along."

Freedom of information requests \-- the Associated Press started issuing
all these freedom of information requests, it took two lawsuits. We
finally started getting information about who was in there, what was
happening. What was interesting is we saw the FBI \[Federal Bureau of
Investigation\]\-- all this stuff came back redacted, just all blacked
out. And then all of a sudden we started seeing the FBI wasn\'t blacking
out their stuff, and they were saying things like, "Well, we asked
them," that we did not want to do these harsh interrogation techniques.
They were asking the CIA \[Central Intelligence Agency\], this type of
thing. So we started piece by piece, getting a sense of what was
happening there. And it wasn\'t good. What\'s interesting, though, is
under the next commander of Guantanamo, Maj. Gen. Jay Hood, it\'s now
evident that a lot of that was cleaned up to the point now where the
International Committee of the Red Cross and Human Rights Watch both say
it is a clean shop down at Guantanamo.

Now, it depends on how you define torture. There are a lot of people who
will say that open-ended detentions without any sense of, you know, what
a detainee\'s future holds, or what happens day-to-day, that is, in its
own sense, a form of torture. Just a couple things, because I\'m getting
the sign here; a couple things that are going to happen, that are still
pending out there. And one of them is with the CIA. There have been two
federal court orders that the CIA hand over any documents about their
role at Guantanamo Bay; how they interrogate, whether it\'s robust,
whether it\'s aggressive, whether it\'s downright illegal. The CIA has
not handed any of that over.

When the military commissions acts were written in November, they were
supposed to come up with a list of what their procedures are. We
understand that the CIA is now holding back on its interrogation
techniques, because they don\'t know what is legal and what is not legal
at this point. And I understand, from a friend of mine in JAG, that
we\'re just waiting now for President Bush to sign off on an executive
order really outlining what is legal, what is not legal. The other thing
that we have to take a wait-and-see attitude is when and if these
commissions fully get up and running, how the issue of torture will be
handled during those court trials; whether there will be classified
material, whether it will be kept out, we don\'t know. We have to see
that.

The only thing I want to bring up before I finish here is that I think
we have to be very, very careful with this whole term, torture. Because
I have been covering this now for about four years, and what\'s happened
is the terms abuse or mistreatment, while very, very serious, are also
sort of intermingled now with the word torture. It\'s a very fine line
sometimes, but there is a definite line between mistreatment and abuse
and torture. There are distinct differences, and I think we, as
journalists \-- somehow we don\'t challenge defense lawyers who tell us
their client has been tortured, and everything else like that. I think
we have to be very, very careful. It\'s like genocide. If we use it too
much, we dilute its impact. We cheapen it somehow. And I think we do
have to be careful.

Gary Solis:

Thanks, Jackie. Mr. Casey.

Lee Casey:

Well, let me begin by pointing out that how this issue is addressed
depends very much on where you sit in the government, and what your
responsibilities are. And as Gary said, I\'m not purporting to talk on
behalf of anybody other than myself. But it seems to me that the debate
has to take place in the context of understanding that we are in the
midst of what may be a unique conflict, a conflict, certainly, of the
type that we have not seen in many centuries, where the principle target
of our enemy is not our armed forces. God knows our armed forces are a
target, were among the first targets that this, that they went at in the
1990s.

But their principle target is in fact the civilian population, both here
in the United States, and elsewhere in the West. Now, the civilian
population has a right to be protected. I think that it tends, in these
discussions \-- which tend to focus very much on the rights of the
detainees and such \-- tend to forget that the civilian population has a
right to be protected. Indeed, one might well say that with respect to
the military, they do take some risks. I mean, it is understood that
when you enter the military, you take some risks. The civilian
population is required to take no risk; they\'re entitled to be
protected. Now, in a conflict like this the only way they can be
protected is through the gathering of intelligence. You have to know
what the enemy is planning to do so you can be there first, or you can
somehow otherwise interrupt it. There are a lot of different ways of
getting this intelligence; virtually all of them are controversial.
Virtually all of them have been objected to by one or more segments of
the population. They\'re intrusive, they\'re unfair.

But let me tell you, as someone who has been on the inside \-- not
during an armed conflict, but has been involved in discussions with
respect to law enforcement \-- there is no magic wand. The
administration is not holding out. There is no means that they can
guarantee the safety of the civilian population that doesn\'t involve
intrusive and often very nasty methods. And I think, you know, it is a
perfectly reasonable position to come and say, "Look, we believe in
these values so much, and we will not compromise them. And if that means
that more civilians have to die, we accept that, and we hope that you
will agree with us that that is okay." Unfortunately, that\'s not
usually how it is, how it is phrased. And when we look at the question
of is, you know, torture permissible, I think it has to be looked at in
that context. I think it also, we have to be very careful with the
definition of torture. I mean, obviously everyone always talks about
torture. Almost no one wants to actually sit down and start discussing
what is torture.

There is a legal definition of torture. It is, you know, the imposition
of severe pain and suffering. There is a slightly more definitive
definition for mental torture. But that\'s about it. And, you know, this
frankly \-- the idea that there was a secret group of people in the
Justice Department, partially in my old office, in the Office of Legal
Counsel, that were reinterpreting the law \-- the law had never been
interpreted. I mean, there was a large amount of materials out there,
conferences \-- years, of course, of the development of human rights law
and international humanitarian law, lots of claims made about what it
meant, and lots of people had a lot of understandings about what it
meant. But certainly, the War on Terror brought the first requests for
serious legal opinions about what does this mean? So I don\'t know that
it was a question of people, you know, rewriting the rules. It\'s a
question of people working their way through and actually formulating
the rules in a way that could actually be used in an ongoing conflict.

In terms of, you know, how we move beyond simply the generalized, well,
what is \-- you know, torture is severe pain and suffering. Well, I
would agree that torture is illegal, and that it is almost never
justified. I can certainly think of situations where I would think it
were justified. Fortunately, they\'re all mostly movie scripts. You are
almost never going to get to a situation where you have an individual
who you know knows what you need to know. Where in order to protect
innocent people, you might well feel justified in using genuine torture;
Iraq, for instance. As you introduce doubt into the situation, of course
your justification, both under the doctrine of necessity under the law,
as well as your moral justification, it seems to me, does indeed
diminish. And there is a whole lot of doubt in virtually all of these
situations.

And so the question becomes, "Okay. What can we do to force these people
to cooperate with us, to tell us what they know?" Keeping in mind that
unlike the honorable soldiers of sovereign states, they have no right to
keep their military secrets. They have no allegiance that we must
respect. We are entitled to try to force them to cooperate with us.
They\'re not entitled to prisoner of war status under the Geneva
Conventions. Prisoners of war, frankly, cannot be coerced in any way.
Indeed, if you actually read the language of the treaty, the military
manuals that we have been using I think are not in compliance. The
language is actually \-- they cannot be subjected to unpleasant or
disadvantageous treatment. Basically, you can ask them pleasantly, or
politely whether they will cooperate. And that\'s about it. These guys
don\'t get that right. They do have some rights, though. They have to be
treated humanely. They can\'t be subjected to cruel, inhumane and
degrading treatment.

Again, the question is, what is that? What does that mean? There is no
particularly good definition of that treatment out there. Does that mean
that you cannot force someone to stand for four hours? Is that torture?
I mean, if you think that is torture, you\'ve never worked retail. You
know, I mentioned that to someone once, "Yeah, but you weren\'t standing
there naked." And the answer is, "Yeah, that\'s fair, I wasn\'t standing
there naked, but on the other hand \-- they may be naked, but they
don\'t have, you know, 60 screaming shoppers pulling at them." Obviously
it is always a matter of degree. To make someone stand there for four
hours is not torture, nor is it cruel, inhuman or degrading treatment.
To make them stand there for 24 hours? That\'s different. And so it
becomes, if you are going to define as anything that is coercive as
torture, then basically there can be no interrogations.

Interrogations are inherently coercive. That is why in the criminal law,
you have a right to have a lawyer present at questioning, because it is
coercive. That\'s why on the civil side of the law, people like me spend
a lot of time and money defending depositions, because, you know, in
part we want to do what we call protect the record, make objections and
such, but in fact we\'re there to protect our clients, so that if the
other lawyer gets aggressive, we get aggressive \-- turn into, you know,
like a couple of bull moose going at each other. Interrogations are
coercive. So if you\'re going to define coercion as the standard, then
no interrogations, and except that that means innocent people are going
to die. I mean, that\'s the cost here. This is not a cost-free equation.
And let me actually \-- a couple points I did want to respond to.

With respect to the reciprocity, we have signed on, complied with the
Geneva Conventions for 60 years, three generations. In that time, not a
single one of our opponents, none of our enemies have complied with the
convention. We have never gotten the benefit of the bargain. You know,
perhaps someday we will find an opponent who will. I suspect that since
our enemies ordinarily understand that we will not treat them as they
treat us, they get a free ticket. There really isn\'t reciprocity. And
that I think that is actually an important point, because by making it
clear that we will adhere to these rules regardless of what anybody else
does, in fact, we do endanger our people, because they cannot expect
better treatment from people who frankly don\'t share our values. And
I\'ll stop there.

Gary Solis:

Thank you. Gen. Finnegan?

Patrick Finnegan:

Thank you, Gary. When Gary asked me to come, he told me that he had been
designated as the best scholar in residence here at the Library of
Congress. I didn\'t realize he was the only scholar-in-residence at the
Library \[of Congress\].

\[laughter\]

And as Jim Walker said, there is a connection here, too. Jim and I
actually worked together in Europe, and Gary and I worked together at
West Point. And I wanted to tell you, Doctor, I know you gave a little
bit of an introduction. I just want to tell you one or two more things
about Gary Solis. Although he got his Ph.D. from the London School of
Economics in law of war, and did a great job over there. He actually
gained more fame in London because he was a commentator on the O.J.
Simpson trial.

\[laughter\]

Gary Solis:

I\'ll get you for this.

\[laughter\]

Patrick Finnegan:

For the record; that\'s right, I\'m on television, too. And to say that
Gary was involved with the law of war program at West Point is accurate,
but not nearly enough. In fact, Gary invented the law of war course that
we teach, and really oversaw the entire law of war program that all
cadets take. He has been a keynote speaker at the Law and Terrorism
conference that we\'ve run for five years, since 9/11. He was a visiting
professor at West Point for two years after he had been a professor
there. We brought him back to be a visiting professor. And he has also
been named an honorary member of the Association of Graduates at West
Point. He\'s not a West Point graduate, but he\'s an honorary member of
that association because of the great things he\'s done for cadets in
West Point. I just wanted to tell you that about Gary. Now, you\'re not
counting that out of my time, are you, Gary?

\[laughter\]

Patrick Finnegan:

I\'m thankful that you did ask me to come, Gary. I\'m interested in this
topic and have been for a number of years. Let me just tell you that my
bottom line up front is that torture is neither legal nor practical nor
effective, and we shouldn\'t be doing it. Reciprocity concerns aside or
anything else, first of all, it\'s not legal. It\'s not legal for us to
do it if it\'s torture. Under the scheme of international law, we seem
to forget that, that we have signed up for this scheme of international
law. In the Geneva Conventions, which is the most ratified treaty in the
history of the world, we are one of the 194 nations who signed up to
this. So when we talk about this administration, or Congress and this
administration redefining what torture is, or redefining what our
obligations are \-- they may define it for the United States, but they
don\'t define it for the rest of the world. And we have signed up to
this treaty.

We are members of the Geneva Conventions, and 193 other countries can
prosecute our people for engaging in torture, even if we have hamstrung
ourselves by saying we\'re not going to prosecute us, because those
conventions say that any country who signs up to those treaties can \--
and in fact has \-- an obligation to prosecute those who violate the
treaties. So if we are engaging in acts of torture, then we are putting
ourselves at risk in the international community, just from a legal
point of view.

Where do you stop? If you think torture is okay, in some circumstances,
who draws that line? We talked about that a little bit, Mr. Casey, and
I\'m not sure how you draw that line. When some soldier on the other
side has information that may help your troops? I mean you\'ve captured
somebody, are you going to torture him because it may save some
individuals there? I don\'t think so. I hope not.

Jim talked a little bit about reciprocity. And if you think reciprocity
doesn\'t work, all you have to do is compare the treatment of U.S.
prisoners of war in Germany and Japan during World War II. The Japanese
didn\'t really follow any of the rules very much, and they tortured our
prisoners and mistreated them very much, and many atrocities occurred
over there by U.S. forces as well, because of the way the sides were
treating each other. Not nearly the same thing in Germany. The death
rate among prisoners of war in the Pacific theater is much higher than
in the European theater because of the way the sides treated each other.

I think there is another part of international law that you\'ve got to
think about \-- not international law, but it\'s the good will of the
international community. Because we are part of this scheme of
international law and scheme of human rights. Think about where our
country was on September 12, 2001. Headlines in the newspapers in France
were "We are all Americans." And where are we today in the standing with
the international community? And much of that results from incidents
like Abu Ghraib, and what we\'ve done. And it goes back to what Jim said
about, what kind of a nation are we going to be? What kind of rules are
we going to follow? What kind of beliefs do we have? We say, when we
went to Iraq, we went to Afghanistan, we say, "We\'re the good guys." We
say we\'re going over there to export the rule of law, to bring the
values of democracy over there. You can\'t do that if you\'re abusing
people. You can\'t do it if you\'re torturing people.

In fact, it works against you, because you look like hypocrites. You say
one thing and you do another. And it\'s certainly been our experience in
the Middle East that that\'s what\'s going on. We have probably created
more terrorists and more enemies by the way that we have behaved at
Guantanamo Bay, and other places as well. I want to say one other point.
Torture is not effective. It doesn\'t work. You can talk to any
experienced military interrogator or FBI interrogator, and they will
tell you it doesn\'t work. And it probably doesn\'t work even more with
these enemies we\'re facing now who are fanatical, who believe in
things, and you hear about this ticking bomb scenario. We\'re just going
to do this in this ticking bomb scenario, because the nuclear bomb is
going to go off, and we\'ve got to get this information in the next two
hours or Los Angeles is going to explode.

Do you think that person doesn\'t know that all he has to do is hold out
for two hours? And that he\'s probably just going to give you
misinformation as well? It doesn\'t work. And there have been
experiences in history that show it doesn\'t work. The French tortured
Algerian terrorists. What\'s the result of that war in the long run? The
Israelis changed their law and their approach to say we would allow
moderate physical pressure to be used, again staying away from torture;
we're going to do moderate physical pressure. It didn\'t work, because
they said they would only do it in a ticking bomb scenario, and they
kept sliding down that slope, because what happened was they were only
going to do it to the terrorists they caught in the ticking bomb
scenario.

And then the moderate physical pressure became a little bit more severe
physical pressure. And then they said, "Well, we don\'t just -- maybe
it\'s not going to work if we just do it with this terrorist, because we
can\'t find him right now. But we\'ve got his family members here. So
maybe we\'ll use a little moderate physical pressure against them." Has
it worked against the terrorists, against the Israelis? I don\'t think
even Israel would tell you that it has. And in fact, the Israeli supreme
court has said, "That\'s it. No more moderate physical pressure. This is
not effective." It simply doesn\'t work. And to use one of the things
Jackie said, at Guantanamo, whatever you call it, enhanced interrogation
techniques or moderate physical pressure, it\'s clear that we broke, we
broke the rules in the beginning. We were doing enhanced interrogation
techniques, and however it\'s defined \-- and I\'ll tell you, it\'s been
defined for more than 50 or 60 years by people who have written about
the Geneva Conventions, not just in the Office of Legal Counsel and the
Department of Justice \-- we broke the rules.

Did we get any actionable intelligence? No. Now if you go down to
Guantanamo, they\'ll show you the interrogation rooms they use, and
they\'ll talk about the interrogation techniques that they use. And what
works is getting on their side, getting them to talk to you over time.
It takes time, but they have gotten actionable intelligence at
Guantanamo over the last several months, not by torture, but by a system
of rewards when they give information, and by getting to befriend them
in a way; they\'re never going to be friends. That\'s the kind of thing
that works. To me \-- Condoleezza Rice said, "This is not America\'s War
on Terror. This is the world\'s War on Terror." I think she\'s right.
But we can\'t go it alone. That\'s what we have tried to do, both in
fighting the wars and in trying to reinterpret some of these standards.
We are not going to be effective in this battle if we do that. It may be
that this is a new kind of enemy, someone whom we haven\'t confronted
before, someone who needs new rules and new ways to do that.

But it\'s not up to us, as one nation of 194 who have signed up to this
international scheme, to decide that on our own. Do you want Libya,
North Korea, Iran \-- name your country \-- to come up with their own
interpretations of these laws? If we think there are new laws that need
to be written or new approaches that need to be taken, then we should be
the leader in bringing the international community together to figure
this out. I\'ll close with one thought, and that is, we have the most
powerful, the most effective, the strongest military in the history of
the world. But it\'s also clear that force alone is not enough. And the
use of torture is simply another means of saying, "Hey, here is the way
we\'re going to use force. Force is a good thing to do, because we\'ll
force this intelligence out of them. We\'ll force them to tell us about
things." It doesn\'t work. And it degrades us as a nation.

Gary Solis:

Thank you, gents, ladies.

\[applause\]

I have a brief question for Gen. Walker and Gen. Finnegan, and I\'ll ask
Gen. Walker to respond first, and then Gen. Finnegan, and then Ms.
Northam and Mr. Casey, if you have anything to add. Gen. Finnegan, you
spoke of hypocrisy. No Abu Ghraib officer has been tried. Col. Pappas,
the OIC, the officer in charge, received a letter of reprimand and a
fine, and was given immunity. Lt. Col. Jordan, who was in charge of the
interrogation process, has been charged, but years later remains
untried. That sounds like hypocrisy on the part of the U.S. Army and the
American government, in my book. Gen. Walker, the repeated war crimes
against Iraqis committed by Marines, Iraqi detainees and civilians
suggest problems with the moral high road of which you spoke. Is there
pious pronouncements on one hand, and a Marine Corps reality on the
ground on the other? Jim?

James Walker:

Well, the counterinsurgency fight that we\'re engaged in Iraq is a very
difficult fight. It\'s an up close and personal fight. And in any fight,
whether it\'s on television with a pugilist or in a war, you first set
the rules. Not every blow struck in the fight will be totally lawful,
but there are sanctions when you violate the rules. But you have to have
those rules to begin the fight, to judge the basic conduct. And I think
that really works in a situation like this.

There have been cases that are currently at litigation \-- literally
today, as we speak \-- in the Marine Corps, for Marines who violated
these standards that we set. When we find one, we've investigated, and
we\'re holding them accountable in the courts. We\'ll never have every
degree of accountability, but the rules still need to be there, Gary,
because you have to set those rules. But in a war \-- and it is a war,
one that\'s covered very widely \-- it is a close up counterinsurgency
fight. There have been some violations, and we\'ll investigate those.

Gary Solis:

Gen. Finnegan?

Patrick Finnegan:

A wise man once said to me, it\'s not a surprise that there are
violations of the law of war; it\'s a wonder that it\'s followed at all.
And there are going to be violations. It is young people with weapons,
with adrenaline up, with their friends being killed, and sometimes there
are violations. But we do prosecute violations of the law of war. One of
the things that Mr. Casey said is that sometimes our opponents have not
followed these rules, and he\'s right, but we follow them. We follow our
obligations to prosecute people under the Geneva Conventions. We
prosecute our own soldiers and our Marines. Do we do it perfectly? No,
not at all. I would say on the question of Abu Ghraib, the people who
were prosecuted deserved to be prosecuted. There is no doubt about it.
Whatever guidance they got or interpreted beyond what the normal rules
are, they clearly exceeded it and took delight in what they were doing.

They were simply \-- I don\'t think that the pictures we saw were any
sort of scheme to gather intelligence. They were simply means to
embarrass and humiliate the prisoners that they had, many of whom had
nothing to do with terrorist activities whatsoever. Should there be more
accountability for senior officers? Probably so. It\'s a, it's a dilemma
that the military justice system faces a lot of the time. Lt. Col.
Jordan is scheduled to be prosecuted and will be court-martialed. There
have been some administrative sanctions and loss of rank, loss of
opportunities for some of the senior officers involved. That\'s not the
same thing as going to jail. I don\'t think that they did the same kinds
of things as the soldiers who did, but if you want to talk
accountability, I think it might even go higher than military officers.

Jackie Northam:

I travel to the Middle East quite a lot and keep in touch with it, and
I\'m afraid with Abu Ghraib, because it was such a high profile case \--
and again, you had the pictures. You can\'t get away from those pictures
at all, you know, beamed around the world. And anybody can tell you in
the Middle East that justice has not been done here. I think there is a
real call, in many parts of the world, that people have gotten off
scot-free, and I think, I understand that there are some cases where
it\'s just going to be that way, you know. You can\'t get around it,
that some people have been pulled in on that. But I think with Abu
Ghraib, because it was such a stain on the military \-- and I covered
Charles Graner\'s trial, his court martial, and frankly, personally
he\'s a thug, you know. And he was put into a situation where he could
get away with what he wanted to do. But it has created such a mark on
the U.S. military, which it should. And I think in this one case,
because of U.S. reputation, it would make a big difference if higher
people were pulled in.

Gary Solis:

Nothing further, Mr. Casey?

Lee Casey:

No.

Gary Solis:

alright. Mr. Casey, you said that adhering to the rules harms U.S.
interest? Is that correct? You said that we\'re entitled to force
civilians to reveal information? Are you, in effect, condoning torture?

Lee Casey:

Well, no, I don\'t think I am. First of all, I don\'t recall saying that
we had a right to force civilians to do anything. We\'re talking here
about enemy combatants, people who are fighters engaged in a legally
recognizable armed conflict against us. I don\'t condone torture. I
don\'t think we should use it. I\'m not sure why the effectiveness issue
matters that much, frankly. But it is legal or it isn\'t legal. Whether
it\'s effective is not relevant to that issue, even though effectiveness
seems to take up a large amount of the discussion in these things.

Whether it\'s effective, I don\'t know. I\'ve never done it. I\'ve never
had it done to me. But I will say that I doubt whether torture was a
regular part of the judicial processes, as well as the political
processes, of virtually every state for about 4,000 years, because it
didn\'t work. I think in many ways saying it doesn\'t work helps to
justify not facing the hard question of, you know, should we actually
consider it, in certain circumstances. You know, in terms of whether we
should use torture, fine. Let\'s not use torture. Let\'s say torture is
off the board.

But what\'s torture? Does that mean we can\'t yell at them? Does that
mean we can\'t hold them without a criminal trial? I mean, is it torture
to keep someone in jail for the rest of their life? Now, if it is in
fact torture to hold someone in hopelessness, I\'m not sure why a life
sentence isn\'t judged as tortuous. I mean, you\'ve had due process in a
criminal court, but does that make a difference? I mean, you\'re still
looking at the rest of your life in prison. I mean if that\'s torture,
then it\'s torture.

And so, as to whether there are, you know, instances, whether torture
has, can be justified, frankly I am more worried about what we can do on
a day-to-day basis. And yeah, I know. I\'ve heard people say different
things. I\'ve heard people say we\'ve gotten actionable intelligence
from using stressful methods, and I\'ve heard some say that we haven\'t.
But, you know, in addition this sort of yeah, if you do it through the
methods we\'re now using, it takes time, but we get there. Well, that\'s
great. But what if you need it now? I mean, you know, what if you\'re
the president and, you know, the joint chiefs come in and say, "Well,
we\'re working on it." What good is that?

I mean \-- you know, and of course we have the best military in the
world, the most expensive, I\'ll grant you that. Where were they on
September 11? Why weren\'t there a dozen aircraft carriers in New York
Harbor? I mean, the answer, of course, is they had no idea there was
going to be an attack. They didn\'t have the intelligence. That is why,
you know, this debate is important. It\'s because the need to obtain the
intelligence is so critical, because otherwise, frankly, it\'s not clear
what we have the military for.

Patrick Finnegan:

Well, Ms. Northam \-- can I respond to that for a moment? First of all,
I hope you\'re not blaming the military for intelligence failures before
September 11th. The military acts on the intelligence that is gathered
by intelligence agencies, and provided to them through the national
security apparatus.

Lee Casey:

I do indeed blame the CIA, but go ahead.

\[laughter\]

Patrick Finnegan:

And you know, there \-- all you have to do is look at the September 11th
report to realize that there were warnings that attacks were coming,
that the president was told an attack by al Qaeda is imminent in the
United States. And for whatever reasons, they didn\'t take the action
that those levels of govern \-- it isn\'t the military that had anything
to do with that. If they had taken some action and said, "An attack is
imminent, put 12 carriers in New York Harbor," there would have been 12
carriers in New York Harbor. So I\'m not sure how we connect
intelligence failures of the CIA and others to both gather the right
intelligence and then to implement it correctly at the feet of the
military. I\'m just not going to accept that.

Gary Solis:

Ms. Northam.

Jackie Northam:

Jackie.

Gary Solis:

If I understood things correctly, Mr. Casey said that there is little
difference between holding someone under a life sentence adjudicated by
courts and holding someone, period. Ali al-Murri has been held in the
Charleston South Carolina Brig, a military facility, since December of
2001, five and a half years, without charges. The first 16 months he
didn\'t have a lawyer, he didn\'t have a visitor. Now, do you see a
difference between al-Murri and someone who's -- an obvious question,
and someone who has been adjudicated through a court? And do you report
on those things?

Jackie Northam:

Well, Al-Murri \-- look at \-- they\'ve arrived. Al-Murri is not \--
it\'s a national issue, so I do the foreign, which would \-- and that\'s
a little dispute, if Guantanamo is foreign or not, as we all know. But
nonetheless, whether they\'re adjudicated or not, I think, yes. I\'m not
100 percent sure that being held indefinitely is a form of torture. I
think it\'s a complete injustice. There is no question about that. But
there are defense lawyers that will certainly say that is a form of
torture. Should I wait a few minutes?

Gary Solis:

Why don\'t we take a minute here? Another question for you, Ms. Northam.

Jackie Northam:

Jackie.

Gary Solis:

Jackie it is. There is a poll that was taken a year ago that indicated
it was an AP/Ipsos survey that indicated that 61 percent of Americans
support the use of torture in the War on Terror. Sixty-one percent
refused to rule it out. About one in 10 \-- 11 percent said it could be
justified often. Have you had experience in dealing with the public in
which torture is an accepted technique?

Jackie Northam:

This we\'ve seen in the preamble earlier. I was always really surprised
when Abu Ghraib happened, how there wasn\'t this huge outcry about the
sort of stuff that was happening, and also, Guantanamo. The bigger
outrage seems to be beyond America\'s borders than within America\'s
borders, and I think it comes down to 9/11, once again. I think because
we got hit here in America that I think we are probably more apt to say
do whatever you need to do to make sure it does not happen again. And, I
think, I\'m not surprised by those figures whatsoever.

Just on an earlier question, though, we were talking about Guantanamo
and holding people indefinitely and everything else like that. I think
in many ways it creates as big a tarnish against America\'s image as
does the use of torture. I covered \-- the second last trial that I was
down there in Guantanamo, it was for David Hicks, and he was Australian.
He was the only person that\'s actually been fully tried at Guantanamo
and released. At the end of the day he\'s been considered the \-- what?

Audience Members:

We\'re having trouble hearing you.

Jackie Northam:

Oh. You know, these have been considered the worst of the worst, and yet
he got a nine month sentence, which is akin to sort of a drunk driving
conviction, something like that. And it was very interesting, because
the people in Australia \-- I went to Australia just after that, and the
people in Australia weren\'t sympathetic towards David Hicks at all.
There was this huge groundswell to get him out of Guantanamo. It\'s not
because they liked him or they cared about him, it\'s because it
suddenly dawned on people that their baby \-- when David, their child
who was a baby when David Hicks went into Guantanamo \-- is now going
into kindergarten, and he\'s still held there?

So it\'s a sense of due process that was withheld. And I think that\'s
the problem with Guantanamo, is it\'s created a huge stain. It\'s not
because we want to let go of terrorists. Just get rid of the people who
are there that shouldn\'t be there, and that type of thing.

So that was just the answer to the earlier question. I just wanted to
get that across. I think holding them isn\'t necessarily a sense of
torture. That\'s my personal thinking. But I think it is an injustice,
because we\'ve let 400 go who all of a sudden aren\'t a threat, you
know?

Gary Solis:

Gen. Walker, recently the Marine Corps has charged Lt. Col. Chessani,
the commanding officer, the battalion commander of the troops who
allegedly committed 24 murders in Haditha you have charged, the Marine
Corps has charged Lt. Col. Chessani, the battalion commander, with
failure to adequately investigate and report that offense. How high did
these war crimes go? If Col. Chessani is guilty, are not officers more
senior to him? How do you determine where this line is going to be
drawn?

James Walker:

Well, that\'s a difficult line. First, it has not been drawn at this
point. The case still is under investigation. But the two things you
have to differentiate in a war crime scenario, as you discuss, are those
who committed certain acts, certain crimes, the war crime \-- as you use
the example, murder \-- and those who were not involved with that act,
but may have had something to do in covering it up or failing to report
it in a later case; two different standards. And the Marine Corps, we
are investigating one with Lt. Col. Chessani. He\'s had an Article 32,
the equivalent of a grand jury hearing.

And then the question becomes, what senior officers, the amount of
information you have obviously reduces as you go further up the chain,
and what information each of those had, and what they did or did not do
with that information. But certainly, just because an officer, you know,
picked a particular billet or position in the chain of command at some
level, he may not have had that same degree of knowledge or information
that someone on the scene might have had.

Gary Solis:

Along the same lines, Mr. Casey, a question for you. This is from last
week\'s "New Yorker" magazine, the general\'s report by Seymour Hirsch,
in which he reports on Gen. Taguba\'s report, Gen.Taguba being one of
the 12 reports that issued as a result of Abu Ghraib. Taguba came to
believe, and I quote from the article, that "Lt. Gen. Sanchez, the Army
commander in Iraq, a three-star general, and some of the generals
assigned to the military headquarters in Baghdad, had extensive
knowledge of the abuse of prisoners in Abu Ghraib, even before
\[Sgt.\]Joseph Darby came forward with his CD. Taguba was aware that in
the fall of 2003, when much of the abuse took place, Sanchez routinely
visited the prison, and witnessed at least one interrogation. According
to Sanchez, excuse me. According to Taguba, who investigated, Sanchez
knew exactly what was going on." In your view, should higher senior
officers be charged with events like Abu Ghraib? Should Sanchez be
charged? Should Secretary of Defense Rumsfeld? How far would you go?

Lee Casey:

Well, good question. And it is one of the questions that bedevils the
laws of war, the question of command responsibility. Who is actually
responsible for the actions of the people on the ground, other than,
than themselves? The rules, frankly, I think are pretty clear. Those who
are immediately involved are responsible. Those who knew about it and
failed to take action, either to stop or punish it, may also be
prosecuted. However, once you start moving up the chain of command to
people who did not know, and further, to people who may not have had a
reason to know \-- I mean, yes, it is also true that if the individuals
are somewhat negligent, they haven\'t been looking. In other words, they
have been deliberately not trying to know what is going on, on the
ground.

There also may be liability imputed. But there it ends. I mean, it is
not permissible, I think, not fair either. I don\'t think the law
supports moving up the chain of command simply so you can say you
punished all the way up the chain of command. That\'s arbitrary. And so,
you know, whether \-- you know, did Gen. Sanchez know? Well who knows?
Just because Sey Hirsch says it doesn\'t mean it\'s true. But what did
he witness? Did he witness people stacking naked Iraqis? I doubt it. Did
he witness an aggressive interrogation session? Perhaps. Was it obvious
that that aggressive interrogation session was illegal? I don\'t think
so.

Gary Solis:

Changing course slightly \-- did you have something, Gen. Finnegan?

Patrick Finnegan:

I just wanted to talk about what Jackie said, and a little bit about
what Mr. Casey said. You\'re right, I think, Jackie, that there wasn\'t
the sense of outrage in the nation that I would have expected at Abu
Ghraib, but I will tell you that my experiences within the military \--I
wouldn\'t call it a sense of outrage, I would certainly call it a sense
of dismay and a sense of betrayal by other members of the military, that
something like this was going on. That it is not something that we
aspire to as a military, that we want to happen. We see ourselves as
protectors of freedom and protectors of the rights of people, and to
think that other soldiers were involved in either of those acts or in
condoning those acts is something that is just abhorrent.

Jackie Northam:

Well, that\'s the unfortunate part, because it stained the whole
military for these few people.

Patrick Finnegan:

Exactly.

Jackie Northam:

Yeah, absolutely.

Patrick Finnegan:

And you talked \-- also, I think you\'re right that the reason there
wasn\'t a sense of outrage is because of the horrific acts of 9/11. And
there is no doubt about it that this enemy, they are horrible people.
They are, they have done terrible things, and they don\'t care about
innocent victims. And we have reacted to that sometimes, and I think
sometimes to our detriment we\'ve reacted to that. And some of the
things that have come about since 9/11, are because of our reaction to
that, and I\'ll just give you two other examples. In the reaction, the
immediate reaction to 9/11 and the thought that these are bad people,
and we\'re going to do whatever we have to do to these bad people. One
is that two months afterwards, the president signed the military order
establishing military commissions. Without, apparently, the regular
staffing that such a thing would occur, and I certainly will guarantee
you, without the input of the people who would know most about that, and
that\'s the senior military lawyers in the government, who would have
objected to it in a number of ways.

And we\'ve seen the terrible effect that that military commission's
orders have had. We have not really had, with the exception of David
Hicks, any trials by military commissions. Again, we\'ve lost all kinds
of international goodwill because of that. We have hurt ourselves as a
nation by doing that.

Another thing that happened immediately after 9/11, or about that same
time, which has had an affect, certainly on Guantanamo as well, was a
decision made at the highest levels of government; certainly just a
decree that these detainees were not prisoners of war and had no status
to be a prisoner of war. To me, it\'s a mistake to do it that way,
because what you really wanted from these people was intelligence. You
wanted to know what they wanted to know.

There is a thing in the Geneva Conventions called an Article Five
hearing. When you don\'t know if someone is a prisoner of war, you
don\'t know if they\'re entitled to that status, you have an Article
Five hearing. It\'s a very simple hearing. We conducted 90,000 of them
in the Gulf War. You bring the person in, you say, "We don\'t know if
you are eligible to be a prisoner of war. Better status to be a prisoner
of war. We don\'t know if you are. But tell us some things about
yourself and we can determine if you\'re a prisoner of war." There is
almost no cost to those Article Five hearings. You probably would have
gotten some intelligence from those people. And at the end of the day,
when they\'re not eligible for prisoner of war status, you say "Well,
thanks for the information. You\'re not eligible, and we\'re going to
detain you."

And I think it\'s not torture. To go back to one of the central
questions here, it\'s not torture to detain them indefinitely, if we\'ve
established that they\'re a member of some kind of quasi military force
which has fought against us. If they\'re not under the status of a
prisoner of war, they\'re akin to one, and we hold them until the end of
the conflict. And if the end of the conflict is 50 years from now,
that\'s what we do.

Gary Solis:

Well, we have a couple minutes before we ask for questions from the
audience. One last question briefly. I\'d like to ask Gen. Finnegan and
Gen. Walker \-- you both had billets outside the legal community. How
realistic is it to interpret the Geneva Convention, the third Geneva
Convention requirement in regard to prisoners of war saying "no physical
or mental torture, nor any other form of coercion may be inflicted on
prisoners of war to secure from them information of any kind? Prisoners
of war who refuse to answer may not be threatened, insulted, or exposed
to any unpleasant or disadvantageous treatment," which Mr. Casey
referred to.

Or if you\'re a civilian, protected persons in the fourth Geneva
Convention are entitled to "respect for their person\'s honor, family
rights, religious convictions and practices, and their manners and
customs shall at all times be humanely treated and protected, especially
against all acts of violence or threats thereof." Is it realistic for
soldiers on the ground in Iraq, Marines on the ground in Iraq who have
been patrolling for days in 120 degree heat, hauling an 80 pound pack,
being shot at every day to not provide any disadvantageous questioning
to prisoners?

James Walker:

Well, now that you say it, no, of course.

\[laughter\].

However, the Geneva Convention was not addressing those aspects, the
immediate battlefield apprehension in a time of war on the field under
fire. It was addressing the conduct in treating prisoners of wars in a
detainment setting, in a facility somewhere back from the front. So no,
it\'s not realistic in that setting, but what you have to, again, look
at in some of this is \-- we\'ve talked in almost every topic today,
some famous person said, you know, how do you define \"is\"?

\[laughter\]

And that\'s kind of what we\'re trying to do here today. In the language
of the Geneva Convention, how do you define torture? We can all agree,
probably more so on the definition of torture. Now you get to the other
terms used, coercion and some of the other words, you know. It\'s
coercion in a lot of settings. What is that \-- and how we would define
it, we don\'t have that exact answer. But I think it is realistic, for
all our military members, to set a standard in the rules. You\'ll never
have 100 percent compliance, but you will have large adherence to that
standard and that rule, and that\'s a good thing.

Gary Solis:

Gen. Finnegan, do you have anything to add, sir?

. Patrick Finnegan:

Just to echo what Jim said at the end there, is one of the advantages
that we\'ve had over the years is that when we train and educate our
soldiers about this, is we have guideline rules to say, "Here is what
you can do, and here\'s what you can\'t do." And we have fuzzed them up
a little bit over the last couple years, and that\'s led to some
problems at Abu Ghraib and other places like that. But I think it would
be pretty unrealistic to tell soldiers that you can\'t insult a
prisoner.

\[laughter\]

Jackie Northam:

Who is insulting you.

Patrick Finnegan:

That\'s right.

Gary Solis:

Before we turn to questions from the audience, Mr. Casey, do you have
anything you\'d like to add, sir?

Lee Casey:

Well, only \-- I agree with that. The problem is, that is what the
treaty says. I mean, the attorney general \-- now the attorney general,
then White House Counsel, took a lot of grief for saying that the Geneva
Conventions were \-- oh, I\'m sorry. I\'m used to having the mic
\[microphones\]. Took a lot of grief for terming the Geneva Conventions
as quaint. But I think \-- and while they are extremely important,
because we may someday find ourselves at war where our enemy complies
with them, and they may benefit our people. They are quaint. These
treaties were drafted on the assumption that the conflict to which they
apply would be the type of conflict characteristic of the period
approximately 1870 to 1970; mass conscript armies full of, you know,
young men who once they were captured, would be just so grateful that
they would survive, that they would not be a serious security threat.

And so as a result they were, in fact, to be treated pretty much like
they\'re at camp. They are to be given entertainment, sports equipment,
musical equipment. They were to govern themselves. There are \-- all
this is very much applicable to military ranks who are respected. It\'s
very much applicable to the kind of threat, the kind of situation that
we\'re dealing with in 1949 when these treaties were adopted. They
really don\'t work, it seems to me, very well, when you\'re dealing with
a force of individuals who are motivated not by devotion to country, and
grateful that they\'re not going to end up dead in a trench somewhere,
but who are religiously motivated and, in fact, believe that if they \--
you know, some of them at least \-- that if they are killed in the
conflict, they will be rewarded for what they have done. I mean, we are
putting a square peg into a round hole here. And so to the extent there
has been reinterpretation, and I would contest how much there really has
been, but I think we really do need to look at these rules to see how
well they apply to the threat that we now face.

Jackie Northam:

The only problem I have with that is there is some validity, I think, in
what you say, but the problem \-- if you look at something like
Guantanamo \-- is that we have let hundreds go who have been considered
not to be a threat. We never say "not a threat," we always say "no
longer," because to say not a threat would imply that we made a mistake.
But so we put all these people through aggressive interrogations. To
what end? I mean, if they were not. Shouldn\'t that be that you get the
Article Five hearing, which is \--

Lee Casey:

Oh, I \-- well, as to Article Five, I would actually agree with you on
Article Five. I'm not sure. I mean, there seems \-- why the
administration decided against going through the Article Five process,
I\'m not sure of, because, in fact, it\'s a pretty minimal \-- as I
understand it, pretty minimal process, and could have been done, even if
done under a statement that, well, really we\'re not required to do
this. We\'re going to do it anyway.

But as to, you know, the people who have been let go, you\'re between a
rock and a hard place, obviously. You either hold people who you
concluded no longer need to be held, or you let them go and you have
people say, well, why did you ever hold them in the first place? Maybe
there were mistakes. I\'m sure there were mistakes.

Jackie Northam:

Holding is one thing though, but aggressive interrogation is quite
another.

Lee Casey:

Are we sure they were all subject to aggressive interrogation?

Jackie Northam:

No, we\'re not. That\'s the problem

Lee Casey:

Well, yes, and of course obviously from a journalistic perspective and
even from an editorialist perspective, it\'s always good to know what\'s
going on. But in the middle of a war, you can\'t really have that kind
of accessibility, since everything we know, the enemy knows. I mean \--
so it puts us at a grave disadvantage, and I think, you know, yes, these
are real problems. But I think you have to strike the balance, keeping
in mind what we\'re up against.

Gary Solis:

Excuse me. So we\'ll have time left for questions, Gen. Finnegan, the
final word?

Patrick Finnegan:

Let me just say one thing about the quaintness of the Geneva
Conventions, the famous quote from the opinion. There are provisions in
there that are quaint. Certainly so, and they were designed to fit some
of the abuses that happened in World War II prisoner of war camps. But
there are also ways \-- I\'d say two things. One, the main provisions of
the Geneva Conventions are not quaint, and that is, humane treatment,
humane treatment for those who are \[unintelligible\] of combat, whether
they are prisoners, whether they are civilians, detainees, humane
treatment. And there are ways to work around those quaint provisions, if
you will, and I\'ll give you one example from the Gulf War.

One of the things that the Geneva Conventions say is that there must be
a canteen in the prisoner of war camp. Prisoners get paid so that they
can go buy sundries and buy soap and things like that. That\'s part of
the Geneva Conventions. We captured 90,000 Iraqis in the Gulf War, and
we didn\'t have time or the way to do that. So what we did, as a nation,
as an Army, was provided, rather than money and canteens, we provided
sundry packs with those things to those prisoners. And we talked to the
international committee of the Red Cross and said, "We know this isn\'t
exactly what the conventions say, but aren\'t we doing what the intent
is?" and they said, "Yes, that\'s fine, you\'re complying in a sense
with those conventions." So do we have to send them musical instruments?
No, I don\'t think so. I think that that\'s a quaint provision, but
there are ways that you \-- and you bring the international committee of
the Red Cross, who oversees this scheme in, and they tell you, "Yes, you
are complying with the spirit of those conventions."

Gary Solis:

Gentlemen, ladies, if you have any questions \-- and if it takes more
than 60 seconds to state your question, then it isn\'t a question.
Please use the microphone.

Female Speaker:

I really enjoyed that, and I couldn\'t agree with you brigadier general,
more, that Article Five should be followed, and that even if the Geneva
Conventions do not apply regarding most even, or all of the detainees,
then the spirit of the Geneva Conventions should be followed. As you
mentioned, the Israeli supreme court held that torture is illegal. This
is not because of the utility or lack of utility of torture. It is not
even because of the lack reciprocity that is not expected. The supreme
court in that decision held that it is because of the slippery slope of
behavior such as that, that is illegal.

In that case, that also involved four testimonies on the side of secret
agents of the Israeli authorities. So for these reasons, I think it
would only make sense to follow them. Now, you also mentioned, Jackie,
finally, that the issue of whether incarceration or detainment without
any limit is a torture in itself. Under the Geneva Convention, holding a
POW \[prisoner of war\] is until the cessation of hostilities. Maybe
that, as you suggested, should also apply in some way to cessation of
hostilities for those who are not recognized as POWs, but still are
involved in a war that is not defined yet by the current international
law.

James Walker:

I think that\'s the exact difficulty we face here. When is the, in the
global War on Terror, when is the cessation of hostilities? We certainly
don\'t expect a treaty to be signed on an aircraft carrier. We don\'t
expect a ceremony like that. So when would it be, and that\'s the
difficulty with your point, is we don\'t know yet how we would define
cessation of hostilities.

Gary Solis:

Do we have another question? Sir?

Male Speaker:

My question is regarding the value of intelligence obtained under
aggressive interrogation. If someone is being water boarded or something
like that, aren\'t they going to tell you pretty much anything you want?
Where is the value? And can anyone tell me where we\'ve had a lot of
value from these interrogations?

Gary Solis:

I think that that\'s an issue we were discussing, unfortunately, before
you arrived here, about the quality of intelligence, the fact that it\'s
undependable, at best, and as Gen. Finnegan pointed out, it simply
doesn\'t work.

Lee Casey:

Can I respond to that?

Gary Solis:

Certainly.

Lee Casey:

I think we don\'t really know. Word on the street at least suggests that
Khalid Sheikh Mohammed, the number two, number three in al Qaeda was
water boarded, and that they got a lot of intelligence from him. Now, I
don\'t know. I wasn\'t there. But it does seem to me that, you know,
someone is obviously going to tell you \-- and by the way, I think water
boarding is torture. I mean, I understand the argument \--

Gary Solis:

Absolutely.

Lee Casey:

\-- but it\'s just a little too close to one of the oldies but goodies,
which is just stick the guy\'s head in a bucket until he talks. But, you
know, whether it was justified, based on his position, is an arguable
point. But at least there is some suggestion that we did get actionable
intelligence. Now, you know, people deny that. We\'ll never really know,
because we\'re not there.

Jackie Northam:

I remember, he actually admitted just about everything, didn\'t he? When
he came up \--

Lee Casey:

He may have been guilty of just about everything.

Gary Solis:

He seemed to take pride in admitting everything: "Yes, I am your enemy,
and yes, I do want to kill you." He said it all in his sworn statement.
Any other questions from the audience? Sir?

Male Speaker:

I\'m a little bit late, but it seems to me the executive branch, are
they talking about when Guantanamo emptied out, that they would send
some of the detainees either to their home country or near there,
provided these countries kept them incarcerated, but in humane
condition?

Jackie Northam:

Well, that\'s been a big problem right now. At the moment there are 80
detainees in Guantanamo who are cleared, not for release, but for
transfer. The transfer meaning that they continue to be monitored or
held. They can\'t get rid of those detainees. Their countries don\'t
want them back.

Male Speaker:

My other question was, then, have they had any due process to say how
long they should be detained, even in these other countries?

Jackie Northam:

No.

Patrick Finnegan:

No, because these other countries don\'t \--

Jackie Northam:

Don\'t want them.

Patrick Finnegan:

We\'ve given them some due process to say "You can be released from our
custody," but the country doesn\'t want them back, in part because they
may be terrorists, they may be \-- they put them in their prison, there
may be a terrorist attack in their country, in an attempt to free them
from the prison. They don\'t want them back.

Gary Solis:

Mr. Fisher?

Louis Fisher:

Yeah. Question for Gen. Walker. You, in your introductory remarks, said
we don\'t torture. The president has said that, attorney general and
others. To give that meaning \-- I mean, it doesn\'t have any meaning to
me. To give that meaning, has the administration said, "We don\'t
torture, and by that we mean..." and then you list, 20, 30 things, that
these are things we don\'t do, because that would be torture? Has a list
been put together like that?

James Walker:

Not exactly in that form. While they have said we don\'t torture, the
closest thing to a list would be the Army field interrogation manual,
which has been revised and lists certain techniques, which I\'m now
handed \--

\[laughter\]

\-- which lists certain techniques which are approved.

Gary Solis:

Or disapproved? And they include those things which you might expect.
Water boarding is specifically mentioned. Hooding, oddly enough, or
surprisingly enough, is mentioned, and obviously the usual typical
torture: severe pain, and so forth.

Jackie Northam:

Actually, when I was doing a lot of stuff at Abu Ghraib, I remember Gary
\-- I went through this thing, what is torture and what is not, and Gary
suggested \-- I remember the actuality from him. He said you can\'t run
down a list. You can\'t make up a list of what is torture, specifically
what is torture, because then people could just do something else that
does not appear on the list. I mean, there are a million things you can
do to people to hurt them and to torture them. But I remember you
actually saying that you don\'t want a precise list of what is torture.
You want to be a little bit vague. I think it\'s like pornography. You
know it when you see it, right?

\[laughter\]

Yeah.

Gary Solis:

Question?

Male Speaker:

This is a question for Gen. Finnegan and Gen. Walker, I guess, but
anybody can answer it. Gen. Finnegan, you said that it\'s good to have a
bright light, a standard, what you can do, what you can\'t do, what you
should do, what you shouldn\'t do. In 2005, the president, in a signing
statement, in the enactment which says we don\'t torture, said he will
interpret that in a way consistent with his position as the chief
executive. Now, both of you are, or have been, operational legal
advisors. If the military policeman who\'s charged with carrying out the
orders to investigate and then to question would question, perhaps,
whether or not the technique might or might not constitute torture \--
unfortunately, it\'s not the commander in chief who is going to
determine his guilt or innocence, but rather a trailer of fact. As
operational legal advisors, what do you tell these investigators, and
what do you tell operational field commanders?

Patrick Finnegan:

Well, I think that the signing statement \-- which I disagree with,
anyway, because I think he doesn\'t have the authority under
international law to define torture separately. But I think he really
means, and I trust that the administration means, that they want to
reserve some of those techniques, principally to CIA interrogators.
Because it\'s not the military interrogators who want to do these kinds
of things. And as an operational legal advisor, I follow the Army manual
here, and I would not allow any military policeman or police officer to
do beyond what\'s permitted there.

James Walker:

I think the other thing we always consider, as operational advisors, is
this is the Uniform Code of Military Justice (UCMJ) which makes it a
crime to mistreat prisoners, makes it a crime to commit assaults, and so
some of these other techniques the military member was carrying out
could be in violation of the UCMJ, and that was something that we
immediately raised as well.

Gary Solis:

Gentlemen, ladies, I\'m sorry. One more question. alright? Aye, aye,
sir.

Male Speaker:

Thank you. Question for Gen. Finnegan. Given, sort of, that you\'re the
closest to the future military leaders, and the cadets at West Point
increasingly will be from a post-2001 world where they don\'t know what
was before that, how do you teach what would be considered correct
behavior, given that today they come from a world with all the events
we\'ve talked about, plus the television show 24? How do you reestablish
that goal? Thank you.

Patrick Finnegan:

We use his program. That\'s what Gary Solis helped set up, the law of
war program at West Point. And we have an extensive law of war program
that\'s both classroom education and practical exercises in the field,
so that when young cadets go out in field training, we have teenagers
who throw rocks at them. They\'re really tennis balls, but they look
like rocks, and we have them do that, and we have them react to
different scenarios out in the field, and then talk to them again
afterwards about what can be done. And then we also talk about Abu
Ghraib. We talk about Guantanamo.

We have a -- there's no one law of war course, other than electives that
some cadets can take. But all cadets get instructions in the law of war,
during military field training, and then again, actually, in a
philosophy course that talks about just war theory. They have a couple
sessions on the law of war that Professor Solis still graciously comes
up and helps us teach, and then we talk about it again when they\'re
juniors and seniors, as they\'re about to go back, about to go out into
the Army. We have instruction for them in their military science classes
about this, using scenario driven exercises. We show them scenes from
"Black Hawk Down." We show them other things. We talk about the
application, the use of force and the treatment of prisoners.

Gary Solis:

Gentlemen, ladies, thank you very much. Gen. Patrick Finnegan, Mr. Lee
Casey, Ms. Jackie Northam, Gen. Jim Walker, thanks very much for your
help.

\[applause\]

Harry Yee:

I\'d like to thank the panel on behalf of Dr. Medina, the law librarian
of Congress. I could think of no better way to inaugurate our new media
center. I think we\'ve captured lightning in a bottle today. If it were
up to me and your schedules, we could do this for the rest of the
afternoon. And I know I share everybody\'s opinion about the value of
today\'s discussion and as citizens I think it\'s important that we
carefully consider all aspects of this, and similar issues. We didn\'t
pay you, of course, but we do thank you for coming.

Jackie Northam:

We were going to talk to you about that.

\[laughter\].

Harry Yee:

And please accept this as a token of our esteem, an illustrated guide to
the collections of the Law Library of Congress, and we hope we can do
something equally as good, although it\'s going to be difficult. And Lou
\[Louis Fisher\], as the chairman of the committee to put together
these, you have your work cut out for you. So again, please help me
thank the panel again for their \--

\[applause\]

\[end of transcript\]