This State Department cable provides talking points for a presentation to the Netherlands-Helsinki Committee meeting in the Hague in September 2003. The statement is about the military commissions and the Taliban and Al-Qaeda fighters who will be tried in Guantanamo. The points being made 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 at trial and will be afforded the opportunity to cross-examine witnesses and challenge evidence presented against him at trial; 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.
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SOURCE:O
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
O 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 «VWTTED» «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 «MUTED» «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: SHARON E AHMAD
DATE/CASE ID: 19 OCT 2004 200303827 UNCLASSIFIED DOS-002393
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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 «IMMUUMMES» 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
«MMUMMWT» OR PUNISHMENT. AS PRESIDENT BUSH HAS REAFFIRMED
TO THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS,
«UNITIM» «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 1949. THIRD GENEVA CONVENTION OF
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 «mmiNmss» 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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