DOS Cable re: Military Commission Determinations

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Document Number: 2003STATE196182 Channel: n/a

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196182
SOURCE: DISKETTE.028797
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C O N F I D E N T I A L STATE 196182

NODIS

E.O. 12958: DECL: 07/07/13
TAGS: PTER, KAWC, PHUM, PINR,I
SUBJECT: MILITARY COMMISSION DETERMINATIONS

CLASSIFIED BY S/WCI, AMBASSADOR PIERRE-RICHARD PROSPER FOR
REASONS 1.5(B) AND (D)

1.
(U) THIS IS AN ACTION MESSAGE, SEE PARAGRAPHS -3 - 4.

2.
(C) BACKGROUND. UNDER THE MILITARY ORDER OF NOVEMBER 13,
2001, DETENTION, TREATMENT AND TRIAL OF CERTAIN NON-CITIZENS
IN THE WAR AGAINST TERRORISM, THE PRESIDENT HAS RESERVED THE
AUTHORITY TO DETERMINE WHO IS SUBJECT TO TRIAL BEFORE A
MILITARY COMMISSION. THE PRESIDENT HAS DETERMINED THAT SIX
ENEMY COMBATANTS CURRENTLY DETAINED BY THE UNITED STATES ARE
SUBJECT TO THIS MILITARY ORDER. THE PRESIDENT MADE THIS
DETERMINATION BECAUSE HE HAD REASON TO BELIEVE THAT THESE
ENEMY COMBATANTS: 1) ARE OR WERE MEMBERS OF AL QAIDA; 2)
ENGAGED IN, AIDED OR ABETTED, OR CONSPIRED TO COMMIT, ACTS
OF INTERNATIONAL TERRORISM, OR ACTS IN PREPARATION THEREFOR,
THAT HAVE CAUSED, THREATEN TO CAUSE, OR HAVE AS THEIR AIM TO
CAUSE, INJURY TO OR ADVERSE EFFECTS ON THE UNITED STATES,
ITS CITIZENS, NATIONAL SECURITY, FOREIGN POLICY, OR ECONOMY;

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UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY: SHARON E AHMAD
UNCLASSIFIED
DATE/CASE ID: 15 MAR 2005 200303827
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OR 3) KNOWINGLY HARBORED ONE OR MORE INDIVIDUALS DESCRIBED

ABOVE; AND THE PRESIDENT DETERMINED THAT IT IS IN THE

INTEREST OF THE UNITED STATES THAT SUCH INDIVIDUAL BE

SUBJECT TO THE PRESIDENT'S ORDER. THE ACTUAL DECISION AS TO

WHETHER ALL OR SOME OF THE INDIVIDUALS WILL HAVE CHARGES

REFERRED TO A MILITARY COMMISSION WILL BE MADE BY THE

APPOINTING AUTHORITY, DEPSEC WOLFOWITZ. END BACKGROUND.

3. (C) POST IS AUTHORIZED TO INFORM THE GOVERNMENTS OF
THAT ONE OR MORE OF THEIR

I
NATIONALS, CURRENTLY IN U.S. CONTROL AT THE U.S. NAVAL BASE,

GUANTANAMO BAY, CUBA HAS BEEN DESIGNATED FOR TRIAL BY

MILITARY COMMISSION.

/ POST MAY DRAW UPON THE

FOLLOWING POINTS.

4. (SBU) TALKING POINTS:

-- THE PRESIDENT DETERMINED THAT SIX INDIVIDUALS,

CURRENTLY DETAINED BY THE UNITED STATES AT GUANTANAMO BAY,

CUBA, ARE SUBJECT TO HIS MILITARY ORDER OF NOVEMBER 13,

2001, DETENTION, TREATMENT AND TRIAL OF CERTAIN NON-CITIZENS

IN THE WAR AGAINST TERRORISM. THE PRESIDENT MADE THIS

DETERMINATION BECAUSE HE HAD REASON TO BELIEVE THESE
DETAINEES WERE A MEMBER OF AL QAIDA OR WAS OTHERWISE

INVOLVED IN TERRORISM DIRECTED AGAINST THE UNITED STATES.

-- THIS DETERMINATION IS SIMILAR TO THE CONCEPT OF
JURISDICTION. IT IS NOT A DECISION THAT ONE OF THESE

DETAINEES WILL NECESSARILY BE CHARGED OR STAND TRIAL BEFORE
A MILITARY COMMISSION. THE PRESIDENT'S DECISION MEANS THAT

IF TRIED, THEY WILL BE TRIED BEFORE A MILITARY COMMISSION.

-- THE ACTUAL DECISION WHETHER ONE OF THESE DETAINEES
WILL HAVE CHARGES REFERRED TO A MILITARY COMMISSION WILL BE
MADE BY THE APPOINTING AUTHORITY AT A LATER DATE. THE

DEPUTY SECRETARY OF DEFENSE IS SERVING AS THE APPOINTING
AUTHORITY.

-- SINCE NO CHARGES HAVE BEEN APPROVED AGAINST THESE
DETAINEES AT THIS TIME, THEIR NAMES WILL NOT BE CONFIRMED OR
RELEASED BY THE UNITED STATES GOVERNMENT IN ASSOCIATION WITH
THE PRESIDENT'S DETERMINATION.

-- OFFENSES THAT MAY BE CHARGED INCLUDE THOSE LISTED IN

THE CRIMES AND ELEMENTS FOR TRIALS BY MILITARY COMMISSION,
DEPARTMENT OF DEFENSE MILITARY COMMISSION INSTRUCTION NO. 2.
THE OFFENSES MAY INCLUDE: ATTACKING CIVILIANS, TAKING
HOSTAGES, TORTURE, TERRORISM AND MURDER BY AN UNPRIVILEGED

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BELLIGERENT.

-- MILITARY COMMISSIONS HAVE HISTORICALLY BEEN USED TO

TRY VIOLATIONS OF THE LAW OF ARMED CONFLICT AND RELATED

OFFENSES.

-- THE DEPARTMENT OF DEFENSE IS PREPARED TO CONDUCT FULL

AND FAIR TRIALS IF AND WHEN THE APPOINTING AUTHORITY

APPROVES CHARGES ON AN INDIVIDUAL SUBJECT TO THE PRESIDENT'S

MILITARY ORDER.

-- THE PRESIDENT'S DETERMINATION IS AKIN TO PROVIDING

JURISDICTION OVER THE PERSON. MORE SIMPLY PUT, IT IS A

DETERMINATION THAT IF A DESIGNATED ENEMY COMBATANT IS TRIED,

HE WILL BE TRIED BY MILITARY COMMISSION; IT IS NOT A

DECISION TO TRY HIM.

-- WE WILL NORMALLY RELEASE THE NAMES AND NATIONALITIES

OF ENEMY COMBATANTS WHEN CHARGES ARE APPROVED OR WHEN A

DETAINEE HAS BEEN ASSIGNED COUNSEL.

-- UNDER THE PRESIDENT'S MILITARY ORDER OF NOV. 13, 2001
AND DOD MILITARY COMMISSION ORDER NO. 1 FROM MARCH 21, 2002,

THE PRESIDENT DETERMINES AN ENEMY COMBATANT IS SUBJECT TO
HIS MILITARY ORDER AND THE APPOINTING AUTHORITY DECIDES
WHICH CASE(S) TO REFER TO TRIAL.

-- THE PRESIDENT'S MILITARY ORDER LAID THE GROUNDWORK AND
PROVIDED THE FLEXIBILITY FOR DOD MILITARY COMMISSION ORDER
NO. 1, AND SUBSEQUENT MILITARY COMMISSION INSTRUCTIONS, TO
PROVIDE FOR A FULL AND FAIR TRIAL WHILE PROTECTING NATIONAL
SECURITY.

-- THE DETERMINATION THAT A DETAINEE IS SUBJECT TO THE

PRESIDENT'S ORDER DOES NOT CHANGE HIS STATUS AS AN ENEMY
COMBATANT. UNDER MILITARY COMMISSION ORDER NO. 1, AN
ACCUSED IS GUARANTEED A DEFENSE COUNSEL SUFFICIENTLY IN
ADVANCE OF TRIAL TO PREPARE A DEFENSE. THERE WOULD BE NO
REASON TO PROVIDE COUNSEL UNLESS A CRIMINAL PROCESS WERE

INITIATED.

-- THIS IS A MULTI-STEP PROCESS. THE PRESIDENT'S
DESIGNATION THAT A DETAINEE IS SUBJECT TO HIS ORDER DOES NOT
MEAN THAT ANY OF THEM WILL FACE A COMMISSION. THE
APPOINTING AUTHORITY MAKES THE DECISION TO REFER ALL, SOME,
OR NONE OF THE CASES TO A MILITARY COMMISSION. IT WOULD BE
INAPPROPRIATE TO SPECULATE ON A TIMETABLE FOR MILITARY
COMMISSIONS GIVEN THE MANY VARIABLES THAT FACTOR INTO THIS.

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-- ITS POSSIBLE THAT MORE ENEMY COMBATANTS WILL BE MADE

SUBJECT TO THE PRESIDENT'S ORDER, BUT IT IS NOT APPROPRIATE

TO SPECULATE ON ANY FUTURE DETERMINATIONS AT THIS TIME.

-- THERE IS NO SPECIFIC NUMBER OF COMMISSIONS THAT MUST

BE HELD. THE APPOINTING AUTHORITY WILL DETERMINE IF A CASE

SHOULD BE REFERRED TO A MILITARY COMMISSION FOR TRIAL AND

INDIVIDUALS WILL BE CHARGED (IF APPROPRIATE) ON A CASE-BY-

CASE BASIS.

-- THE APPOINTING AUTHORITY WILL CONSIDER ALL RELEVANT,
APPROPRIATE INFORMATION AVAILABLE INCLUDING THE CHARGE SHEET
AND THE ADVICE OF THE LEGAL ADVISOR TO THE APPOINTING
AUTHORITY.

-- THE PRESIDENT'S DETERMINATION ONLY INDICATES THAT A
DETAINEE MAY BE TRIED BY MILITARY COMMISSION. THE
PRESIDENT'S DETERMINATION AND THE APPOINTING AUTHORITY'S
REFERRAL MERELY DIRECT THAT AN INDIVIDUAL RECEIVE A FULL AND
FAIR HEARING AND DO NOT IMPLY THE GUILT OF THE ACCUSED. THE
COMMISSION MEMBERS WILL PRESUME AN ACCUSED IS INNOCENT AND
WILL ONLY FIND AN ACCUSED GUILTY IF THE PROSECUTION PROVES
GUILT BEYOND A REASONABLE DOUBT. COMMISSION MEMBERS TAKE
THEIR OATHS SERIOUSLY, AND THEY WILL PERFORM THEIR ASSIGNED
TASKS IN MILITARY COMMISSIONS WITH THE DISCIPLINE AND SOBER
SENSE OF DUTY THAT HAS BECOME THE HALLMARK OF UNITED STATES
MILITARY OFFICERS.
POWELL

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