DOS Cable re: Organization for Security and Co-operation in Europe (OSCE) Human Rights and Terrorism Intervention

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266214
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KODAKB.016022
DRAFTED BY: EUR/RPM:SARCHER -- 09/16/03 72128
APPROVED BY: EUR/RPM:DWAKE
L/HRR:FGAFFNEY S/CT:BHARTLEY DRL:PMULREAN S/WCI:RMILLER

A30229 161606Z /38
0 R 161554Z SEP 03
FM SECSTATE WASHDC
TO USMISSION USOSCE IMMEDIATE
INFO OSCE POST COLLECTIVE

UNCLAS STATE 266214

E.O. 12958: N/A
TAGS: PREL, PHUM, KTER, OSCE
SUBJECT: OSCE HUMAN RIGHTS AND TERRORISM INTERVENTION

REF: EMAIL USOSCE-EUR/RPM SEP 12 2003

1. POST IS AUTHORIZED TO PRESENT THE FOLLOWING STATEMENT

AT THE SEMINAR ON HUMAN RIGHTS AND COMBATTING TERRORISM IN
THE HAGUE. BEGIN TEXT:

THANK YOU, MR. MODERATOR.

THE UNITED STATES WISHES TO THANK THE NETHERLANDS MINISTRY
OF FOREIGN AFFAIRS AND THE NETHERLANDS HELSINKI COMMITTEE
FOR ORGANIZING THIS SEMINAR. IT IS A TIMELY CONFERENCE
INDEED, OCCURRING ONLY ONE WEEK AFTER THE ANNIVERSARY OF
THE SEPTEMBER 11 TERRORIST ATTACKS ON THE UNITED STATES.

THOSE EVENTS CONSTITUTED NOT ONLY AN ATTACK ON AMERICANS'
FREEDOM, BUT ALSO A BLOW TO THE WORLD'S HOPES FOR PEACE.
TO QUOTE THE BACKGROUND MATERIAL FOR THIS CONFERENCE, "A

POLICY OF ACTIVELY FIGHTING TERRORISM ALSO SERVES TO
PROMOTE AND PROTECT HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS." AS PRESIDENT BUSH SAID EARLIER THIS MONTH,

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UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY: ARCHIE M BOLSTER
DATE/CASE ID: 04 NOV 2004 200303827

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"EVERYWHERE THAT FREEDOM TAKES HOLD, TERROR WILL RETREAT.",

THROUGHOUT THESE MOST DIFFICULT TIMES, THE UNITED STATES

HAS UPHELD ITS TRADITIONAL RESPECT FOR HUMAN RIGHTS. WE

STRONGLY BELIEVE THAT A NATION'S COMMITMENT TO THE

PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IS THE

BEST DEFENSE AGAINST THE RISE OF EXTREMISM AND TERRORISM.

BALANCING SECURITY AND HUMAN RIGHTS IS A DELICATE MATTER,

AND WE LOOK FORWARD TO THIS SEMINAR TO EXAMINE THESE

QUESTIONS IN DETAIL.

WE WOULD LIKE FIRST TO ADDRESS SOME OF THE SPECIFIC
QUESTIONS PUT TO US BY THE CONFERENCE ORGANIZERS.

FIRST, WHILE WE RECOGNIZE THAT THERE ARE VARIOUS SOCIAL,

ECONOMIC, POLITICAL AND OTHER FACTORS THAT CREATE

CONDITIONS IN WHICH TERRORIST ORGANIZATIONS ARE BETTER

ABLE TO RECRUIT AND WIN SUPPORT, WE MUST STRESS THAT THERE

ARE NO "ROOT CAUSES OF TERRORISM."

SECOND, REGARDING THE QUESTION OF WHETHER OR NOT

TERRORISTS CAN BE DETAINED INDEFINITELY, THE SIMPLE ANSWER

IS: WE ARE AT WAR. THE CAPTURE AND DETENTION OF ENEMY

COMBATANTS, TO REMOVE THEM FROM THE FIGHTING AND ENSURE

THE SECURITY OF OUR OWN MILITARY FORCES, IS ENTIRELY

CONSISTENT WITH THE LAW OF ARMED CONFLICT. THE U.S.

COMPLIES WITH THE LAW OF ARMED CONFLICT, INCLUDING THE

TENET OF HUMANE TREATMENT -- A PRINCIPLE THAT TERRORISTS

VIOLATE FLAGRANTLY. IT IS A UNIVERSALLY RECOGNIZED

PRINCIPLE UNDER THE LAW OF ARMED CONFLICT THAT ENEMY

COMBATANTS ENGAGED IN WAR MAY BE CAPTURED AND DETAINED FOR

THE DURATION OF THE CONFLICT. THIS HAS BEEN THE PRACTICE

OF THE U.S. AND ITS ALLIES IN EVERY WAR THEY HAVE FOUGHT.
THE DETAINEES AT GUANTANAMO ARE, IN FACT, ENEMY

COMBATANTS. AT THE TIME OF CAPTURE, THEY WERE BEARING
ARMS AGAINST US OR OTHERWISE ACTING IN SUPPORT OF HOSTILE
ARMED FORCES ENGAGED IN AN ON-GOING ARMED CONFLICT.

DETENTION UNDER THE LAW OF ARMED CONFLICT DOES NOT SUBJECT
TERRORISTS TO TORTURE OR TO CRUEL, INHUMAN OR DEGRADING

TREATMENT OR PUNISHMENT. AS PRESIDENT BUSH HAS REAFFIRMED
TO THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS,

UNITED STATES POLICY CONDEMNS AND PROHIBITS TORTURE. U.S.
PERSONNEL ARE REQUIRED TO FOLLOW THIS POLICY AND
APPLICABLE LAWS PROHIBITING TORTURE. THE UNITED STATES
HAS TREATED AND WILL CONTINUE TO TREAT ENEMY COMBATANTS AT
GUANTANAMO HUMANELY AND, TO THE EXTENT APPROPRIATE AND
CONSISTENT WITH MILITARY NECESSITY, IN A MANNER CONSISTENT

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WITH THE PRINCIPLES OF THE THIRD GENEVA CONVENTION OF
1949.

THIRD, IN RESPONSE TO THE QUESTION OF WHEN THE ARRESTED OR

DETAINED PERSONS SHOULD BE BROUGHT BEFORE A JUDGE: UNDER

THE LAW OF ARMED CONFLICT, CAPTURED ENEMY COMBATANTS HAVE

NO RIGHT TO COUNSEL, OR OF ACCESS TO A COURT, TO CHALLENGE

THEIR DETENTION DURING HOSTILITIES. IN THIS WAR, AS IN

EVERY WAR, ENEMY COMBATANTS HAVE NO LEGAL RIGHT TO COUNSEL

OR RIGHT OF ACCESS TO COURTS FOR THE PURPOSE OF

CHALLENGING THEIR DETENTION WHILE HOSTILITIES ARE ONGOING.

IF A DETAINEE SHOULD BE SUBSEQUENTLY CHARGED WITH A CRIME,
HE WOULD HAVE ACCESS TO COUNSEL AND WOULD RECEIVE A FAIR
TRIAL.

FOURTH, THE CONFERENCE ORGANIZERS HAVE QUESTIONED IF IT IS

POSSIBLE TO DEAL WITH TERRORISTS OUTSIDE THE NORMAL

CRIMINAL LAW SYSTEM. THE UNITED STATES . HAS SET UP

PROCEDURES FOR MILITARY COMMISSIONS TO DEAL WITH THESE

CASES. 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 THE SECOND WORLD WAR. EUROPEANS ALSO USED
MILITARY COMMISSIONS EXTENSIVELY IN THE L9TH AND 20TH

CENTURIES, INCLUDING IN THE FIRST AND SECOND WORLD WARS.
AS A MATTER OF HISTORICAL 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 MEMBERS
OF ITS OWN ARMED FORCES. U.S. MILITARY COMMISSIONS, IF

CONVENED, WOULD BE STATUTORILY AND CONSTITUTIONALLY
AUTHORIZED. IN ADDITION, THE UNIFORM CODE OF MILITARY

JUSTICE EXPRESSLY RECOGNIZES THE JURISDICTION OF MILITARY

COMMISSIONS. MILITARY COMMISSIONS ARE APPROPRIATE FOR

VIOLATIONS OF THE LAW OF ARMED CONFLICT AND DEALING WITH
THE UNIQUE CHALLENGES POSED BY THE WAR ON TERRORISM.

SOME HAVE QUESTIONED WHETHER THESE MILITARY COMMISSIONS
WILL UPHOLD THE RIGHT TO A FAIR TRIAL. THE UNEQUIVOCAL
ANSWER IS YES. AS IT SEEMS THAT THE EXTENSIVE SAFEGUARDS
WE HAVE TAKEN TO PROTECT THE RIGHT TO A FAIR TRIAL IN THE
CASE OF MILITARY COMMISSIONS ARE NOT WELL KNOWN, LET ME
OUTLINE THEM FOR YOU.

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THE MILITARY COMMISSIONS WILL BE IMPARTIAL. THEY WILL
PROVIDE FULL AND FAIR TRIALS. ANY GUILTY FINDING IN A

MILITARY COMMISSION WILL FOLLOW THE ESTABLISHED STANDARD

OF ALL UNITED STATES COURTS -- GUILTY BEYOND A REASONABLE

DOUBT.

ADDITIONALLY THERE ARE OTHER LEGAL PROTECTIONS FOR THE
ACCUSED, INCLUDING:

-- THE PRESUMPTION OF INNOCENCE;

-- REPRESENTATION BY DEFENSE COUNSEL, AT NO COST TO THE
ACCUSED;

-- THE DEATH PENALTY CAN ONLY BE IMPOSED BY UNANIMOUS
DECISION OF A 7-MEMBER PANEL;

-- REVIEW BY AN IMPARTIAL, 3-MEMBER PANEL (POSSIBLY

INCLUDING CIVILIANS WHO ARE TEMPORARILY COMMISSIONED);

-- 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; AND,

-- 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.

THE USE OF MILITARY COMMISSIONS TO TRY THE DETAINEES AT
GUANTANAMO WOULD BE CONSISTENT WITH THE PROCEDURAL

SAFEGUARDS FOUND IN THE GENEVA CONVENTIONS OF 1949.

FINALLY, THE UNITED STATES IS PLEASED THAT THIS SEMINAR
INCLUDES A DISCUSSION OF THE TEMPTATION TO SINGLE OUT, AS

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AN IMMEDIATE REACTION IN THE CONTEXT OF FIGHTING
TERRORISM, MEMBERS OF A GROUP BELONGING TO THE
NATIONALITIES ADHERING TO A CERTAIN RELIGION OR BELIEF.

THIS IS AN ISSUE ON WHICH U.S. OFFICIALS HAVE REPEATEDLY

SPOKEN OUT.

PRESIDENT BUSH HAS REPEATEDLY SAID THAT THIS WAR ON
TERRORISM IS NOT A WAR AGAINST THE ISLAMIC FAITH OR ITS

PRACTITIONERS. "OUR WAR ON TERRORISM HAS NOTHING TO DO

WITH DIFFERENCES IN FAITH. IT HAS EVERYTHING TO DO WITH

PEOPLE OF ALL FAITHS COMING TOGETHER TO CONDEMN HATE AND

EVIL AND MURDER AND PREJUDICE."

THE ROAD TO COMBAT TERRORISM IS A LONG ONE. BUT AS

SECRETARY OF STATE POWELL SAID LAST YEAR, "IF WE ARE TO

DEFEAT THE TERRORISTS, THEN WE HAVE TO ATTACK THEM FROM

THE HIGHEST PLANE--THAT HUMAN RIGHTS MUST BE PROTECTED,

THE UNIVERSAL HUMAN RIGHTS THAT WE ALL BELIEVE IN, OR

SHOULD BELIEVE IN, HAVE TO BE OBSERVED."

IN ORDER TO DO THIS, WE MUST NOT CONSIDER WHAT NEW OSCE

COMMITMENTS ARE NEEDED, BUT RATHER TAKE THE STEPS TO FULLY

IMPLEMENT THE OSCE HUMAN DIMENSION AND COUNTER-TERRORISM
COMMITMENTS THAT WE CURRENTLY HAVE. THE ANSWER IS IN
ACTION, RATHER THAN INACTION. LET US BEGIN THIS IMPORTANT
WORK. THANK YOU.

END TEXT.

2. USE ONLY IF ISSUE IS RAISED, UNDER RIGHT OF REPLY:

-- MEMBERS OF THE TALIBAN AND AL QAIDA ARE NOT ENTITLED TO
PRISONER OF WAR STATUS UNDER THE GENEVA CONVENTION ON
PRISONERS OF WAR. ALTHOUGH THE U.S. NEVER RECOGNIZED THE
TALIBAN AS THE LEGITIMATE GOVERNMENT OF AFGHANISTAN,

PRESIDENT BUSH DETERMINED THAT, AS AFGHANISTAN IS A PARTY
TO THE GENEVA CONVENTIONS, THE CONVENTIONS APPLY TO THE
ARMED CONFLICT WITH THE TALIBAN.

-- UNDER THE TERMS OF THE THIRD GENEVA CONVENTION OF 1949,
HOWEVER, THE TALIBAN ARE NOT ENTITLED TO POW STATUS.
SPECIFICALLY, THE TALIBAN DID NOT QUALIFY AS LAWFUL
COMBATANTS (OR POWS) UNDER ARTICLE 4 OF THE THIRD GENEVA
CONVENTION OF 1949 BECAUSE THEY FAILED TO SATISFY THE
CONDITIONS OF THAT ARTICLE. THE TALIBAN HAVE NOT
EFFECTIVELY DISTINGUISHED THEMSELVES FROM THE CIVILIAN
POPULATION OF AFGHANISTAN. MOREOVER, THEY HAVE NOT
CONDUCTED THEIR MILITARY OPERATIONS IN ACCORDANCE WITH THE
LAW AND CUSTOMS OF WAR.

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POWELL
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