DOS Cable re: Organization for Security and Co-operation in Europe Guidance on Military Commission

State Department cable with talking points in response to statements and/or on the rules relating to military judicial commissions and the rule of law in the U.S. at the Organization for Security and Co-operation in Europe. It is pointed out that Military Commissions are well rooted in American Jurisprudence. Military Commissions were used in the Revolutionary War, the Mexican-American War, the U.S. Civil War and World War II. The talking points further point out that the Geneva Convention specifically contemplates Military Commissions when it states that "Prisoners of War shall be tried only by a military court". And the final points to make are: i) The Military Commissions will be impartial; ii) there is a presumption of innocence of the accused iii) a death penalty decision can only be imposed by a unanimous decision of the panel members; iv) the accused are not required to testify, and no adverse inference may be drawn from a refusal to testify; v) the proceedings will be open to the public to the maximum extent possible; vi) the accused my present witnesses and evidence, and cross-examine witnesses and challenge evidence presented against him; vii) the accused will be represented by counsel; and viii) the prosecutor will provide the accused of evidence intended to be presented at trial and exculpatory evidence.

Doc_type: 
Cable
Doc_date: 
Thursday, July 17, 2003
Doc_rel_date: 
Wednesday, December 22, 2004
Doc_text: 

UNCLASSIFIED
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Current Handling: n/a
Document Number: 2003STATE207094 Channel: n/a

RELEASED IN FULL
ORIGIN EUR-00

AID-00DDODE-00
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INFO LOG-00 NP-00D
AMAD-00 CIAE-00 INL-00D

FAAE-00 FBIE-00 UTED-00 VC-00
TEDE-00 INR-00DJUSE-00 LAB-01DVCE-00

10-00DL-00D
AC-01DNSAE-00 NSCE-00 OIC-02DOPIC-01

DCP-01DDHS-00D
PA-00DTFBI-00 YRS-00DACE-00DSP-00D

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TEST-00 TRSE-00 USIE-00 R-00DDRL-00D

PRM-00DG-00
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SWCI-00D

207094
SOURCE:D

KODAKA.017013
DRAFTED BY: EUR/RPM:GFREDERICK --05/16/03 67291
APPROVED BY: EUR/RPM:JYOUNG
L/HRR:FGAFFNEY

85A365 170154Z /38
O 170150Z JUL 03
FM SECSTATE WASHDC
TO USMISSION USOSCE IMMEDIATE

UNCLAS STATE 207094
E.O. 12958: N/A
TAGS: OSCE, PHUM, UN,
SUBJECT: OSCE GUIDANCE ON MILITARY COMMISSION

REF: EMAIL FREDERICK-SOBOTKA JULY 14

1.
IN RESPONDING TO STATEMENTS AND/OR ON THE RULES
RELATING TO MILITARY JUDICIAL COMMISSIONS AND THE RULE OF
LAW IN THE U.S. AT THE OSCE PC, POST MAY DRAW FROM THE

FOLLOWING TEXT.

2.
BEGIN POINTS:

MILITARY COMMISSIONS

WE HAVE RECEIVED ODIHR'S INQUIRY AND WILL PROVIDE A WRITTEN
RESPONSE IN DUE COURSE.

TRIAL BY MILITARY COMMISSION IS A COMMON AND WELL-
ESTABLISHED PRACTICE RECOGNIZED BY INTERNATIONAL LAW.

THE U.S. HAS USED MILITARY COMMISSIONS SINCE THE
REVOLUTIONARY WAR, INCLUDING IN THE MEXICAN-AMERICAN WAR,
THE U.S. CIVIL WAR, AND WWII. THE EUROPEANS ALSO USED
MILITARY COMMISSIONS EXTENSIVELY IN THE 19TH AND 20TH

Current Class: UNCLASSIFIEDD Page: 1
UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY: ARCHIE M BOLSTER

DATE/CASE ID: 04 NOV 2004 200303827
DOS-002696

UNCLASSIFIED
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CENTURIES, INCLUDING IN WWI AND WWII.
AS A MATTER OF HISTORIC PRECEDENT, THE U.S. AND ITS
EUROPEAN ALLIES HAVE CONVENED MILITARY COURTS OR
COMMISSIONS PRIMARILY IN CONNECTION WITH WAR-RELATED
OFFENSES.
THE-THIRD GENEVA CONVENTION OF 1949 EXPRESSLY CREATES A

PRESUMPTION THAT PRISONERS OF WAR "SHALL BE TRIED ONLY BY A
MILITARY COURT" UNLESS THE EXISTING LAW OF THE DETAINING

COUNTRY EXPRESSLY PERMITS ITS CIVIL COURTS TO TRY A MEMBER

OF ITS OWN ARMED FORCES.

U.S. MILITARY COMMISSIONS, IF CONVENED, WOULD BE

STATUTORILY AND CONSTITUTIONALLY AUTHORIZED. THE UNIFORM
CODE OF MILITARY JUSTICE EXPRESSLY RECOGNIZES THE
JURISDICTION OF MILITARY COMMISSIONS.

THE MILITARY COMMISSIONS WILL BE IMPARTIAL. THEY•WILL

PROVIDE FULL AND FAIR TRIALS. WE BELIEVE THAT THE

PROCEDURES FOR THE COMMISSIONS PROVIDE APPROPRIATE DUE

PROCESS SAFEGUARDS. THEY ARE CONSISTENT WITH FUNDAMENTAL

INTERNATIONAL STANDARDS GOVERNING CRIMINAL TRIALS.

THEY ARE CONSISTENT WITH THE PROCEDURAL SAFEGUARDS FOUND IN

THE GENEVA CONVENTIONS OF 1949 AND ARTICLE 75 OF PROTOCOL 1

OF 1977 TO THE GENEVA CONVENTIONS. (THE UNITED. STATES IS

NOT A PARTY TO THE PROTOCOL.)

ALTHOUGH THE RULES ADDRESS A DIFFERENT BODY OF LAW, THEY

ARE ALSO CONSISTENT WITH THE INTERNATIONAL COVENANT ON

CIVIL AND POLITICAL RIGHTS.

(NOTE: BELOW ARE MORE DETAILED POINTS ON THE PROCEDURES,

FROM 02 STATE 20095. IT WOULD BE PREFERABLE FOR THE USG TO
ADDRESS THESE, AS APPROPRIATE, IN THE WRITTEN RESPONSE
RATHER THAN IN TOMORROW'S INTERVENTION):

IN PARTICULAR, THE PROCEDURES INCLUDE THE FOLLOWING:

-- THE PRESUMPTION OF INNOCENCE

-- CHOICE OF MILITARY AND CIVILIAN COUNSEL

-- THE HIGH STANDARD OF PROOF OF GUILT BEYOND A REASONABLE
DOUBT

-- THE DEATH PENALTY CAN ONLY BE IMPOSED BY A UNANIMOUS
DECISION OF A 7-MEMBER PANEL
-- REVIEW BY AN IMPARTIAL, 3-MEMBER PANEL (POSSIBLY
INCLUDING CIVILIANS WHO ARE TEMPORARILY COMMISSIONED)

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THE ACCUSED IS NOT REQUIRED TO TESTIFY, AND NO ADVERSE
INFERENCE MAY BE DRAWN FROM A REFUSAL TO TESTIFY.
THE ACCUSED MAY PRESENT EVIDENCE IN HIS DEFENSE AND MAY
CROSS-EXAMINE WITNESSES PRESENTED BY THE PROSECUTION.
PROCEEDINGS WILL BE OPEN TO THE PUBLIC "TO THE MAXIMUM
EXTENT PRACTICABLE" (BUT THEY CAN BE CLOSED TO PROTECT
NATIONAL SECURITY AND OTHER INTERESTS). AT ALL TIMES,

INCLUDING IN ANY CLOSED PROCEEDINGS, THE ACCUSED WILL BE
REPRESENTED BY COUNSEL.

THE PROSECUTION WILL PROVIDE THE ACCUSED WITH ACCESS TO
EVIDENCE THE PROSECUTION INTENDS TO INTRODUCE AT TRIAL AND
WITH ACCESS TO EVIDENCE KNOWN TO THE PROSECUTION THAT IS
INCONSISTENT WITH THE ALLEGED GUILT OF THE ACCUSED.

THE REVIEW PANEL HAS THE AUTHORITY TO RETURN THE CASE FOR

FURTHER PROCEEDINGS IF A MAJORITY OF ITS MEMBERS HAVE A
DEFINITE AND FIRM CONVICTION THAT A MATERIAL ERROR OF LAW
OCCURRED.

END POINTS.
POWELL

NNNN

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Doc_nid: 
6688
Doc_type_num: 
68