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Harold Koh, Esther Brimmer, Michael Posner, Eileen Donahoe: Press Conference by the U.S. Delegation to the UPR (Transcript)



A/S Brimmer: Thank you, and thank you for joining us this afternoon.

We have just completed a serious interactive discussion with delegations from around the world on the human rights in the United States. We have just witnessed a useful demonstration of freedom of speech. The overall tone was respectful, with many delegations noting our country’s many contributions to the promotion of human rights and values worldwide. There were critical comments and sharp questions as well, but we took opportunities all morning to explain our system, our laws and our policies, and to reflect on ongoing challenges. We have a lot to be proud of, not least President Obama’s commitment to strengthen and deepen human rights protections and expand the role of the American people and civil society in that effort.

We hope our pride, our effort, and our candor will come across today as part of a constructive session, and we hope this adds to the international debate on these issues.

Indeed, the Universal Periodic Review is just that. It is universal. The Human Rights Council provides the venue but every country, every member state of the United Nations has or will participate in this process.

We also note the importance of engaging with civil society. In a sense, here in Geneva we are expanding the space for that conversation with civil society. And indeed, we’ll continue that conversation this afternoon with a Town Hall session.

Again, we were honored to participate and to present the Universal Periodic Review for the United States of America. We welcome your questions.

Press: Good afternoon. Almost all countries with whom you have friendly relations and your allies have asked you to abolish the death penalty or at least to come up with a moratorium. What is your response to it? How realistic is it that the U.S. might impose a moratorium on the death penalty in the foreseeable future? Thank you.

Mr. Koh: I think what you heard was a policy difference, not a difference about what the law requires. The International Covenant on Civil and Political Rights very explicitly says that the death penalty can be administered in accordance with exacting procedures. Now it turns out there is a group of nations that have moved to a different policy, particularly in Europe, but that has not changed the international standard.

Many in America, and myself included, are opposed to the death penalty as a personal matter and we have urged in our advocacy roles that the death penalty be limited in a number of respects. And in the United States, the Supreme Court has struck down the death penalty against persons with intellectual disabilities, against children, it’s limited the means for carrying out executions, it’s demanded higher procedures. But I think what you’re talking about at the moment is a cultural difference of policy opinion that is continuing after some period of time.

Press: Good afternoon. In the review, some of the U.S. civil society groups were highly critical of the track record of the United States on the right to health in the U.S. Especially with ethnic minorities, life expectancy they stressed of African Americans of about 15 percent less than Whites. And the gender issue, reproductive health, higher disease rates for minorities in Alaska, Indian Americans. How are you confronting these challenges? And how are you going about to reduce the discrimination and the under-insurance of the poorest in the U.S.? Thank you.

A/S Brimmer: First off I will note that the health care of Americans is one of the highest priorities of this administration, and indeed, that the President led the effort to advance and spread the coverage of health care in the United States. It’s one of the hallmarks of his work to date.

Press: I’m sorry, I didn’t get an answer to my other question. How are you going about to reduce these discriminatory trends in health throughout the United States? What is being done constructively to reduce these problems?

A/S Brimmer: Indeed, as I would say further, indeed improving the access for a wide number of groups is an important part of health care, and indeed addressing, as we did this morning, precisely the disparities of health care for minorities, for women and so forth, is actually a very important aspect of our domestic policy and hence part of our work as an administration. That will be a continued effort both for our national authorities, the Department of Health and Human Services, and others, as we try to eliminate the disparities which we actually highlighted this morning. It’s one of the areas where we will need to do continuing work.

Press: This administration’s engagement of the Council is quite a turn-about from the way that the previous administration dealt with it. How do you sell this change in policy vis-à-vis the Council back home and explain to Americans why it’s important that you appear here and take all this criticism, particularly from countries like Iran and Cuba?

And you spoke about civil society groups and wanting to engage them as well. There’s one that’s going to be speaking around the same time as your session, this WikiLeaks group. Are you going to be speaking to them here?

A/S Posner: Let me answer the broader question first.

President Obama has said, and Secretary Clinton, that we are going to engage in the world, principled engagement. This is an example. This is what principled engagement looks like. We’re here to present our record as every government is doing. We’re presenting it with pride in what we’ve been able to accomplish, but also with openness in responding to and discussing areas where we still have progress to be made. We are also committed, as Secretary Clinton has said over and over again, to a universal set of standards that apply to every country, including ourselves. We are, she said, and we are trying to lead by example. So there are critics in the United States who didn’t want us to join the Human Rights Council. There is still a lot of work to be done in our judgment to make the Council stronger. But I think it benefits by our participation and by our leadership.

So we’re proud to be here. We think this is a positive experience, and we will go back and tell our people in our country that we’ve come here and presented America’s dynamic and strong record on human rights in a way that we can hold our heads up high.

On the WikiLeaks, as Esther said, it’s open to the public. We will have a discussion with whoever shows up.

Mr. Koh: I think it’s worth adding that we’d be here at the Universal Periodic Review whether we were members of the Human Rights Council or not. Every UN member comes before the Council. It’s very much in everyone’s interest for the U.S. to take that very seriously and to set a very high standard for the state under review because then others will have to do the same.

Ambassador Donahoe: I’m just going to add that I think there is evidence already that just by virtue of being here and engaging with others we’ve had some positive effect on the dynamics in the Council, and I think we will be evaluated back home by our results. I think each session we’re going to be working away at putting our priorities on the table and working cross-regionally with other countries. We’ve found that our priorities tend to be the priorities of others in many cases. There’s a lot to be accomplished with partners from around the world.

A/S Brimmer: I’ll just add that human rights are one of the main pillars of the United Nations system and we think that part of making the entire UN system effective is to try to make the human rights body particularly effective as well. And as my colleague, Harold Koh, has noted, all members of the UN system participate in the Universal Periodic Review, which in a sense is one of the most useful tools we have in the human rights tool kit to talk about the human rights of every country that’s a member of the United Nations.

Press: Does the American Constitution protect WikiLeaks in terms of freedom of opinion and expression from the Pentagon, the CIA and the FBI assaults on it? Or it does not? Thank you.

Mr. Koh: Some of the material, in fact a large portion of the material is classified information and I think virtually every country in the world has laws against the release of classified information without authorization. But I think the more important point is that the claim that’s being made from the documents is that there were detainee abuses that have not been investigated or punished. And as I said today, that assertion is simply false. There have been hundreds of cases that have been investigated and hundreds which have been punished, and well over a hundred have led to court martials that led to federal convictions or federal imprisonment.

Press: I have a question for clarification. Does the death penalty against people mentally disabled and against minors still exist in the U.S. or not? Or is it abolished? Thank you.

Mr. Koh: The Supreme Court struck down the death penalty against juveniles in a case called Roper v. Simmons a number of years ago and it struck down the death penalty against persons with intellectual disabilities in a case called Atkins v. Virginia in 2003.

Press: I just want to ask if you are going to accept Mexico’s recommendations in issues such as forbid the racial profiling, to forbid and punish the use of lethal force in migration control, and if the government will accept the recommendation on the Avena case.

Mr. Koh: I actually spoke to those issues in my remarks this morning. The United States policy is opposed to racial profiling in our law enforcement investigative activities. We’re obviously opposed to the use of illegal force. And with regard to the Avena judgment, two successive administrations have made intensive efforts to enforce that judgment. The Bush administration tried to do it by executive action which was declared ineffective by the United States Supreme Court; and there is now pending federal legislation that would solve the problem for those foreign nationals who are subject to the Avena judgment.

Press: I have a question about a report in the Washington Post yesterday which said that former President George W. Bush in his memoirs acknowledged that he had accepted explicitly the practice of waterboarding. He had approved it. I was wondering how you would explain to countries abroad that the President of the United States, a country which you rightly expose as a country with a fine tradition on human rights, the Bill of Rights, and progress over the 20th Century, how a President of the United States could approve such a practice which some regard as torture?

Mr. Koh: As an academic I was highly critical of that policy, and as we announced, President Obama changed that policy on the second day of his administration. Waterboarding is forbidden. It’s not one of the permitted tactics under the Army Field Manual. And this President of the United States said that torture and cruel and inhuman or degrading treatment will not be used going forward with regard to interrogation practices. So there has been a clear turning of the page.

A/S Posner: If I can just add, I came into government about 14 months ago and I came from a human rights organization, Human Rights First, which devoted a lot of attention to these issues. We recruited 50 retired military officers — admirals and generals — who were equally concerned about practices of coercive interrogations. The reason I’m in this administration, a key reason, is because of President Obama’s clear commitment from literally day two in office when he brought some of those retired military leaders into the White House and announced the three Executive Orders.

There is a clear policy going forward. There will be no torture, no cruel treatment. We’re not mincing words. We’re not winking and nodding. There is a clear policy that there is to be no mistreatment of detainees.

Press: A very brief follow-up. Does that mean that the United States would consider, are you still considering the possibility of legal investigations and federal prosecution of those who might have ordered such a practice in the past?

Mr. Koh: As I think is well known, the Attorney General has referred this very issue to a Special Prosecutor, John Durham of Connecticut. Those investigations are ongoing. The question is not whether they would consider it, those discusions are going on right now.

Press: Two questions, if I may. First, do you think you have been fairly treated by the Human Rights Council? Or do you continue to feel that you’re discriminated against by people who just have it in for the United States?

Secondly, in your report you say that the administration remains committed to closure of the Guantanamo detention facility. Is it possible to put any timeframe to that? Thank you.

A/S Brimmer: Let me take the first question, and Harold you should take the second.

We had a good session today. It was largely constructive, respectful in tone, substantive. There are certainly some countries there who didn’t fit all those attributes, but I would say overwhelmingly the mood in the room was very affirmative and constructive and professional. So we feel we got a fair hearing and I think we’re pleased that we were able to bring a strong delegation here, representing ten or eleven federal agencies. This is part of an ongoing process to engage with the Council and with the UN.

Mr. Koh: As the President made clear in his speech at the National Archives last May, closing Guantanamo is a process. There are three groups of people on Guantanamo. There are those who have been designated for prosecution. As I said this morning, prosecutions are happening both in civilian courts and military commissions.

There is a second group of people who are scheduled for transfer, and those transfers are being negotiated case by case with various countries. And many countries in Europe have taken them. But there is a group of individuals, 57 in all, from Yemen, who pose a particularly difficult problem. Only last week packages from Yemen were part of a well-known plan which happily was thwarted.

Then there is a third group of persons who are in a situation of what is known as Law of War Detention. What I think the President made clear was that he would proceed with that process of bringing the numbers down by pursuing each of these three exit strategies, but he cannot finish it alone. He needs the help of our allies, he needs the help of Congress, and Congress has actually passed legislation that points in the other direction. And a lot of these cases are being litigated at the courts.

So the process continues, and it’s a challenging one.

A/S Posner: If I can just add on that. A few months ago I came to Brussels with Dan Fried who is a senior U.S. diplomat whose job it is to figure out how to close Guantanamo. We met with the European Commission and EU Ministers and so forth. Our objective was to try to get a number of the first category Harold talked about, people who were ready to transfer. They can’t go home. We went to a number of EU countries and said help us out. Some have helped, but there are a number still to be resettled, so we continue our efforts to try to encourage particularly our European allies to help us in that process.

Press: I think the question would be for Harold Koh. You gave a rather robust defense in some of your remarks today about the CIA program of drone strikes on perceived enemies. Could you tell us exactly where the U.S. is carrying these drone strikes out in addition to Afghanistan and Pakistan and I believe Yemen? Since you are saying this is compliant with international law and you’re confident of that, can you tell us where exactly, in what countries in addition to the ones I named these are being carried out?

Mr. Koh: Obviously I’m not going to talk about operations, but our legal position stands on its own, which is that the United States is in an armed conflict with al-Qaida and its associated forces, and that there are high leaders in that conflict who are engaged in activities against which the United States can respond both under the laws of war and in self defense. It has long been lawful to target individuals who are belligerent leaders. It has been lawful to use modern technologies to do so, and indeed these are done in a rigorous way to minimize casualties. This does not constitute extrajudicial killing and it does not constitute political assassination.

Press: I just wanted to come back to the drone attacks. Yesterday the former U.S. Attorney General Ramsey Clark said that these ”push button assassinations” are a complete violation of human rights. President Barack Obama is now going to New Delhi. In India itself there is these counterterrorism operations which are ongoing.

By your answer just now, you are suggesting that countries like India can use this kind of strategy to target its enemies wherever they are.

Mr. Koh: I’m sorry. Who made the statement about –

Press: Mr. Ramsey Clark.

Mr. Koh: I don’t know if that’s a political statement or –

Press: This was — [off mike] — where he came down heavily on these ongoing drone attacks and how they are breaching human rights jurisprudence and that these amount to “push button assassinations.” He called it “push button assassinations” which should not be continued in the normal course.

Mr. Koh: I think it’s a label and not a legal tool. I’ve been a Professor of International Law for 30 years. My legal opinion, which I have stated, is that if a nation is engaged in an armed conflict with a non-state actor and leaders on the opposing side, and if those leaders are launching armed attacks against a country, the country is entitled to respond both in the course of the armed conflict and in self defense. And that an attack which targets such an individual in the course of the conflict is lawful.

For example, the Japanese military officer responsible for Pearl Harbor was in fact targeted in the course of that armed conflict, and that the strike on him was widely accepted as a lawful killing.

So I think the term that was used by the former Attorney General may be a label, but I don’t think it’s legal analysis.

Press: I have a technical question. I was wondering, what is the follow-up to today’s process? There were a lot of criticisms, lots of recommendations — some too fast for the translator. You probably have some issues that you think are most important with which to deal with. So what happens when you go home after the atmospherics wear off and you have to report back here and show that in fact you’ve been obedient and done good work?

A/S Posner: There are a couple of phases here. I guess over the weekend and on Monday there’s a three-government delegation which will do an interim report which will be presented on Tuesday morning. We’ll have an opportunity to talk with them I think on Monday to kind of have our input on that.

Then we go back and there’s a second phase which is between now and March. We’ll receive their recommendations and interim suggestions. We’ll come back and report back on how we’re doing.

A couple of things have to be said about this. One, it’s a healthy process. It’s very much in keeping with what we do anyway as a government. There’s a lot of self analysis and effort to continue to strive to be a more perfect union. We are constantly pushing ourselves to do better. We’re proud of what we’ve accomplished, we’re proud of our record, but we can always improve.

This is a tool for helping us do that. It’s not the only tool. We’re not going to do things because some other government tells us we’re going to do them. We’re going to do them because they’re the right thing to do.

Yesterday we had a meeting of the 10 or 11 U.S. departments and bureaus that are part of our delegation here, and one of the things I said to them is that we ought to be thinking between now and March about what are the things that we can and should be doing, things that we’ve learned, either by our own discussions among ourselves, by our discussions with our NGOs, civil society, and what we hear from governments.

So we view this as part of an ongoing process. We’ll be back again in March and we’ll be back again in four years for the second round of this exercise.

Press: I have a question about the ratification of international conventions about human rights. You gave us your methodology before the Human Rights Council this morning saying that you have a totally different methodology. Saying that you have to comply first with, you have to do some compliance work domestically and then maybe ratify international conventions. I don’t quite understand this. Human Rights Watch was saying that actually you’ve shown no signs of moving towards more compliance domestically. Thank you.

Mr.Posner: I guess I’d say two things about that. One is different countries have different approaches to these treaties. Our approach is and has always been that we will endeavor first to get ourselves into compliance. I don’t agree with the characterization that we’re not taking steps to be in compliance. We’re doing that all the time.

The second thing for us is that we have a tripartite government. And the President and Secretary Clinton have expressed strong support for ratification of CEDAW and the Convention on Disabilities, rights of disabled people. We have to go to the Congress. The Senate has to provide its assent to ratification. It’s in the Constitution. It requires 67 votes. We will endeavor to get those 67 votes but we can’t do it all by ourselves.

Press: One question. There is one NGO saying that Cuba successfully stuck the speaker’s list with some regimes and some very vehement critics against the United States. Do you agree with that?

If it is yes, do you think that America has nothing to say about all this? Yes, everything is fine in America.

Ambassador Donahoe: If your question was about the speaker’s list here for our process, yes.

There has been an informal practice in many cases of countries’ UPRs where various countries will start an informal list before the actual sign-up. That did happen in our case. It happened unusually early. It happened that the list was exceedingly long. However, on the actual day of the sign-up the process went forward, countries lined up, and the list that Cuba started in fact was not accepted as the starting place for the line. So we feel like we were treated fairly.

And I have to say, there is broad consensus to change the informal practice very soon as part of our 2011 review process, and perhaps even sooner, because there’s a lot of frustration brewing with these various informal practices and we intend to change them.

Press: My question is to Mr. Koh. I was wondering, sir, in your elaboration on the legitimacy of using drones to take out, to use the DoD terminology, “enemies of the United States,” is that legal under international law if you don’t have the permission of the country where that person or the enemy of the U.S. is a resident or at the place?

And I have a follow-up. With reference to what you said earlier about the no torture of any prisoners, does that guarantee apply to any prisoners that might have been transferred to friendly countries where there have been documentations of torture in the presence of medical practitioners? Thank you.

Mr. Koh: Taking the second part first, we do not transfer people to places where it’s more likely than not that they will be tortured, so yes, the guarantee does apply.

With regard to the first, you asked me two different things. You asked me about my defense, and then you talked about a situation where there was no consent. I never mentioned such a situation and I know of no such situation.

Press: Well there is the case where the Pakistani government in the first week of the Obama administration strongly protested to Dick Holbrooke not to go ahead with the drone attacks and the administration went ahead.

Mr. Koh: You’re talking about a situation whose facts I don’t know about. I’d be interested to learn more.

Press: I’d like to go back to the issue of waterboarding. You spoke of President Obama’s policy against waterboarding. By using the word policy, does this mean that torture is in the realm of political choice as opposed to human rights? And does this mean that future administrations should they so want to once again allow waterboarding?

Mr. Koh: I think the Obama administration defines waterboarding as torture as a matter of law under the Convention against Torture. It’s part of our legal obligation. So no, it’s not a policy choice.

A/S Brimmer: We used the phrase this morning in my opening statement that there are no law-free zones. What we mean by that is that the prohibition against torture and cruel treatment applies to every U.S. official, every agency, everywhere in the world. There is an absolute prohibition as a matter of law and policy.

Press: [Inaudible]?

Mr. Koh: As you well know, the definition of torture that permitted certain activities was drawn from a 2002 opinion of the Office of Legal Counsel at the Justice Department that has now been withdrawn. That was the interpretation that was relied on. That has been withdrawn and also declared to be legally incorrect.

So I’m not saying there’s not a future administration that might try to come forward and reassert this legally incorrect view in the face of this history, but I think it would be very very difficult to do so, and I would certainly be among those challenging it at that time.

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