DOS Cable re: Procedures for U.S. Military Commission Conduct Pursuant to the President's Military Order

State Department cable concerning the procedures for U.S. Military commissions that may be established to try suspected Taliban and Al-Qaeda terrrorists. This State Department cable provides talking points for US mission & Embassy officials to inform foreign governments about the military commissions to try Taliban and Al-Qaeda fighters. The points to make are i) The Military Commissions will be impartial; ii) they are consistent with the procedural safeguards found in the Geneva Conventions of 1949 and Art. 75 of Protocol 1 of 1977 to the Geneva Conventions; iii) a 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; and v) the proceedings will be open to the public to the maximum extent possible.

Doc_type: 
Cable
Doc_date: 
Thursday, March 21, 2002
Doc_rel_date: 
Thursday, December 16, 2004
Doc_text: 

UNCLASSIFIED
Current Class: UNCLASSIFIEDOPage: 1
Current Handling: SBUO

Z-0
Document Number: 2002STATE054623OChannel: n/a

«.

PT09 534 RELEASED IN FULL
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ORIGIN SWCI-00

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PMA-0OO

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SOURCE:O

KODAKA.021075
DRAFTED BY: S/WCI:MNEWTON:MN -- 03/21/02 (202) 647-5093
APPROVED BY: P:MGROSSMAN
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78C46A 212207Z /38

O P 212159Z MAR 02
FM SECSTATE WASHDC
TO AMEMBASSY KABUL IMMEDIATE

UNCLASSIFIED

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AMEMBASSY ALGIERS IMMEDIATE
AMEMBASSY CANBERRA IMMEDIATE
AMEMBASSY BAKU IMMEDIATE
AMEMBASSY MANAMA IMMEDIATE
AMEMBASSY BRUSSELS IMMEDIATE
AMEMBASSY DHAKA IMMEDIATE
AMEMBASSY NDJAMENA IMMEDIATE
AMEMBASSY PARIS IMMEDIATE
AMEMBASSY CAIRO IMMEDIATE
AMEMBASSY AMMAN IMMEDIATE

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UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY: SHARON E AHMAD
UNCLASSIFIED0DOS-002287
DATE/CASE ID: 19 OCT 2004 200303827
Current Class: UNCLASSIFIEVNCLASSIFIED Current Handling: SBU Document Number: 2002STATE054623 Page: 2 Channel: n/a.
AMEMBASSY KUWAIT IMMEDIATE AMEMBASSY RABAT IMMEDIATE AMEMBASSY ISLAMABAD IMMEDIATE AMEMBASSY DOHA IMMEDIATE' AMEMBASSY MOSCOW IMMEDIATE AMEMBASSY RIYADH IMMEDIATE AMEMBASSY MADRID IMMEDIATE AMEMBASSY DAMASCUS IMMEDIATE AMEMBASSY DUSHANBE IMMEDIATE AMEMBASSY TUNIS IMMEDIATE AMCONSUL ISTANBUL IMMEDIATE AMEMBASSY ASHGABAT IMMEDIATE AMEMBASSY ABU DHABI IMMEDIATE .AMEMBASSY LONDON IMMEDIATE AMEMBASSY TASHKENT IMMEDIATE AMEMBASSY SANAA IMMEDIATE INFO ALL DIPLOMATIC AND CONSULAR POSTS PRIORITY
UNCLAS STATE 054623
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PAGE 03 SENSITIVE STATEO054623 212205Z
E.O. 12958: N/A-TAGS: PTER, PREL, KAWC, KJUS, KLIG SUBJECT: PROCEDURES FOR U.S. MILITARY COMMISSIONS CONDUCTED PURSUANT TO THE PRESIDENT'S MILITARY ORDER
SENSITIVE BUT UNCLASSIFIED
REF: STATE 020095
1. (U) THIS IS AN ACTION MESSAGE. SEE PARA 4. INFO

ADDRESSEES SHOULD USE THESE POINTS ON AN "IF ASKED" BASIS.

2. (SBU) REFTEL ADVISES POSTS OF U.S. POLICY POSITIONS REGARDING TRANSFER OF «DETAINEES» FROM 4e.AAMEANISTAN» TO THE
U.S. NAVAL STATION, GUANTANAMO BAY, CUBA. AS STATED IN
REFTEL, THE U.S. GOVERNMENT HAS NOT YET MADE A DECISION
ON IF AND WHAT CRIMINAL CHARGES MAY BE BROUGHT AGAINST
«MCNUWEES» IN GUANTANAMO OR IN WHICH LEGAL FORUM THEY MIGHT
BE BROUGHT. THE U.S. IS VERY INTERESTED IN KNOWING MORE
DETAIL ABOUT THE LEGAL STEPS THAT GOVERNMENTS MIGHT BE
PREPARED TO TAKE AGAINST THEIR CITIZENS UNDER U.S. CONTROL
IN GUANTANAMO BAY.

3. (U) ON NOVEMBER 13, 2001, PRESIDENT BUSH ISSUED A

Current Class: UNCLASSIFIEDO Page: 2

Current Class: UNCLASSIFIEVNCLASSIFIED Current Handling: SBU Document Number: 2002STATE054623 Page: 3 Channel: n/a
MILITARY ORDER AUTHORIZING THE SECRETARY OF DEFENSE TO DETAIN CERTAIN NON-U.S. CITIZENS SUSPECTED OF ACTS OF

INTERNATIONAL TERRORISM, AND AUTHORIZING TRIAL BY MILITARY
COMMISSION OF THOSE INDIVIDUALS UNDER SELECTED
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CIRCUMSTANCES. THE PRESIDENT FOUND THAT THE «MUTED» «STATES»
IS IN AN ARMED CONFLICT, AND THAT THE PROTECTION OF «MUTED»
«STATES» CITIZENS AND PROPERTY PERMITS SELECTED INDIVIDUALS
IN U.S. «CUSTODY» TO BE TRIED FOR VIOLATIONS OF THE LAWS OF

PAGE 04OSTATEO

.

WAR. THE MILITARY ORDER FURTHER REQUIRED THE SECRETARY OF
DEFENSE TO ISSUE SUCH ORDERS AND REGULATIONS AS MAY BE
NECESSARY TO PROSECUTE,«DIMMaNWES» IN MILITARY COMMISSIONS
INCLUDING RULES FOR THE CONDUCT OF PROCEEDINGS. THE
SECRETARY OF DEFENSE WILL ISSUE THE PROCEDURES GOVERNING
MILITARY COMMISSIONS ON MARCH 21, 2002. THE REGULATIONS
ISSUED BY THE SECRETARY OF DEFENSE WILL NOT PRESCRIBE ANY
PARTICULAR OUTCOME OR ANY SPECIFIC JUDICIAL FORUM FOR ANY
PARTICULAR «DETAINEE».

4. (SBU/REL) ALL POSTS WHOSE HOST GOVERNMENT HAS
NATIONALS DETAINED AT GUANTANAMO BAY ARE REQUESTED TO
IMMEDIATELY DELIVER THE FOLLOWING TALKING POINTS TO THE
MOST SENIOR OFFICIALS POSSIBLE. ALL OTHER POSTS MAY USE
THESE POINTS FOR INFORMATIONAL PURPOSES OR IF ASKED BY
LOCAL GOVERNMENTAL OFFICIALS OR MEDIA.

TALKING POINTS: MILITARY COMMISSION PROCEDURES

-THE SECRETARY OF DEFENSE IS FINALIZING THE PROCEDURES
GOVERNING U.S. MILITARY COMMISSIONS THAT MAY BE
ESTABLISHED TO TRY SUSPECTED INTERNATIONAL TERRORISTS
AND THEIR SUPPORTERS FOR VIOLATIONS OF THE LAW OF WAR.

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054623 212205Z
THE PRESIDENT HAD DIRECTED HIM TO PREPARE SUCH RULES IN
THE MILITARY ORDER OF NOVEMBER 13. THE RULES WERE
MADE PUBLIC ON THURSDAY, MARCH 21.

PAGE 05OSTATEO

-WE BELIEVE THAT YOUR GOVERNMENT SHOULD BE PLEASED WITH
THE OUTCOME.

-THE PROCEDURES TAKE INTO ACCOUNT THE MANY COMMENTS THAT
WE HAVE RECEIVED FROM OUR ALLIES, AS WELL AS HUMAN

Current Class: UNCLASSIFIEDO Page: 3

UNCLASSIFIED0DOS-002289

Current Class: UNCLASSIFINNCLASSIFIED Page: 4 Current Handling: SBU Document Number: 2002STATE054623 Channel: n/a
RIGHTS GROUPS AND OTHER NONGOVERNMENTAL ORGANIZATIONS.

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 PROCEDURES ADDRESS A DIFFERENT BODY OF LAW,
THEY ARE ALSO CONSISTENT WITH THE INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL RIGHTS.

-IN PARTICULAR, THE PROCEDURES INCLUDE THE FOLLOWING:

-- THE PRESUMPTION OF INNOCENCE

UNCLASSIFIED

054623 212205Z
-- CHOICE OF MILITARY AND CIVILIAN COUNSEL

PAGE 06OSTATEO

-- 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)

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, AND DEFENSE COUNSEL WILL HAVE
ACCESS TO ANY CLASSIFIED EVIDENCE ADMITTED AT TRIAL.

Current Class: UNCLASSIFIEDO Page: 4

Current Class: UNCLASSIFIEUNCLASSIFIED0 Page: 5 Current Handling: SBU
O

Document Number: 2002STATE054623 Channel: n/a

-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.

UNCLASSIFIED

054623 212205Z

-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.

PAGE 07OSTATEO

-NO INDIVIDUALS HAVE YET BEEN DESIGNATED FOR TRIAL BY
MILITARY COMMISSION AND NO MILITARY COMMISSIONS HAVE YET
BEEN ESTABLISHED.

-THE USG REMAINS INTERESTED IN KNOWING AS MUCH DETAIL AS
HOST GOVERNMENT CAN PROVIDE ON THE LEGAL STEPS THE HOST
GOVERNMENT MAY BE PREPARED TO TAKE AGAINST YOUR CITIZENS

IN U.S. CONTROL AT GUANTANAMO BAY.

END POINTS.

5. (U) THE FOLLOWING FACT SHEET WILL BE ISSUED BY THE
DEPARTMENT OF DEFENSE ON MARCH 20, 2002.

FACT SHEET
DEPARTMENT OF DEFENSE ORDER ON MILITARY COMMISSIONS

A MILITARY COMMISSION IS A WAR-TIME, MILITARY TRIBUNAL
TRADITIONALLY USED TO TRY VIOLATIONS OF THE LAWS OF WAR.
UNDER THE PRESIDENT'S MILITARY ORDER OF NOVEMBER 13, 2001,
THOSE TRIED BY MILITARY COMMISSION MAY INCLUDE:

-MEMBERS OF AL QAEDA
UNCLASSIFIED

054623

PAGE 08OSTATEO212205Z

-PEOPLE INVOLVED IN ACTS OF INTERNATIONAL TERRORISM
AGAINST THE «EMITTED» «STATES»

-PEOPLE WHO KNOWINGLY HARBORED SUCH TERRORISTS

-COMMISSION MEMBERSHIP AND SELECTION

Current Class: UNCLASSIFIED Page: 5

-
Current Class: UNCLASSIFINNCLASSIFIED Page: 6
Current Handling: SBU
Document Number: 2002STATE054623 Channel: n/a

-COMMISSIONS WILL CONSIST OF AT LEAST 3 BUT NO MORE THAN
7 MEMBERS, WITH ONE OR TWO ALTERNATES.

-THE SECRETARY OF DEFENSE MAY APPOINT MEMBERS AND OTHER
COMMISSION PERSONNEL, OR SELECT AN APPOINTING AUTHORITY
TO CHOOSE COMMISSION PERSONNEL.

-COMMISSION MEMBERS ARE OFFICERS IN THE «UNITED» «STATES»
ARMED FORCES, INCLUDING RESERVE PERSONNEL, NATIONAL
GUARD MEMBERS, AND RETIRED PERSONNEL RECALLED TO ACTIVE
DUTY.

-A PRESIDING OFFICER WILL BE CHOSEN FROM AMONG THE
COMMISSION MEMBERS TO PRESIDE OVER COMMISSION
PROCEEDINGS. THE PRESIDING OFFICER WILL BE A JUDGE
ADVOCATE OF ANY BRANCH OF THE ARMED FORCES.

-THE PRESIDING OFFICER HAS THE AUTHORITY TO ADMIT OR
EXCLUDE EVIDENCE.

-THE PRESIDING OFFICER ALSO HAS THE AUTHORITY TO CLOSE
PROCEEDINGS TO PROTECT CLASSIFIED INFORMATION OR-TO
PROTECT THE SAFETY OF DEFENDANTS, WITNESSES, AND

UNCLASSIFIED

054623 212205Z
COMMISSION MEMBERS.

PAGE, 09OSTATEO

-A FULL AND FAIR TRIAL

-MILITARY DEFENSE COUNSEL WILL BE PROVIDED FOR THE
ACCUSED. IN ADDITION, THE ACCUSED MAY CHOOSE THEIR OWN

COUNSEL: ANOTHER MILITARY OFFICER WHO IS A JUDGE
ADVOCATE OF THE U.S. ARMED FORCES OR A CIVILIAN
ATTORNEY. CIVILIAN ATTORNEYS MAY BE PRE-QUALIFIED AS
MEMBERS OF A POOL OF AVAILABLE ATTORNEYS FOR THE
DEFENSE.

-THE DEFENDANT AND COUNSEL WILL BE ABLE TO SEE COPIES OF
THE CHARGES IN THEIR NATIVE LANGUAGE IN ADVANCE OF THE
TRIAL.

-THE ACCUSED IS PRESUMED INNOCENT UNTIL PROVEN GUILTY.

-THE ACCUSED MAY BE FOUND GUILTY ONLY WHEN COMMISSION
MEMBERS ARE CONVINCED OF GUILT BEYOND A REASONABLE
DOUBT.

Current Class: UNCLASSIFIEDO Page: 6

Current Class: UNCLASSIFINNCLASSIFIED Page: 7 Current Handling: SBU Document Number: 2002STATE054623 Channel: n/a
-THE ACCUSED MAY REFUSE TO TESTIFY DURING TRIAL.

-THE ACCUSED WILL BE ABLE TO OBTAIN WITNESSES AND
DOCUMENTS TO USE IN HIS DEFENSE.

-THE ACCUSED MAY NOT BE TRIED TWICE BEFORE A MILITARY
COMMISSION FOR THE SAME OFFENSE.
UNCLASSIFIED

054623 212205Z

PAGE 10OSTATEO

-THE ACCUSED MAY ENTER INTO A PLEA AGREEMENT.

-TRIAL FORMAT

-TRIAL PROCEEDINGS WILL BE OPEN UNLESS OTHERWISE
DETERMINED BY THE PRESIDING OFFICER. THE PRESIDING
OFFICER MAY ALSO ALLOW ATTENDANCE BY THE PUBLIC AND
PRESS. PHOTOGRAPHY, VIDEO AND AUDIO RECORDING AND
BROADCASTING WILL BE PROHIBITED.

-A TRIAL MAY BE CLOSED TO PROTECT:

-CLASSIFIED OR SENSITIVE INFORMATION
-THE PHYSICAL SAFETY OF PARTICIPANTS

-INTELLIGENCE OR LAW ENFORCEMENT SOURCES, METHODS AND
ACTIVITIES
-NATIONAL SECURITY INTERESTS

-COMMISSIONS WILL BE IMPARTIAL.

-EVIDENCE, INCLUDING PREVIOUS TRIAL TESTIMONY AND WRITTEN
STATEMENTS, WILL BE ADMISSIBLE IF IT WOULD HAVE
PROBATIVE VALUE TO A REASONABLE PERSON.

-WITNESSES WILL TESTIFY UNDER OATH, AND WILL BE SUBJECT
TO DIRECT AND CROSS-EXAMINATION.

-FOR WITNESS SAFETY, SOME TESTIMONY MAY BE ACCEPTED BY
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PAGE 11 .O054623 212205Z

STATEO
PHONE, THROUGH THE USE OF PSEUDONYMS, OR DURING CLOSED
PROCEEDINGS.

-COMMISSION MEMBERS WILL DELIBERATE AND VOTE ON FINDINGS
OF GUILT, INNOCENCE, AND SENTENCING IN CLOSED
CONFERENCE.

O

Current Class: UNCLASSIFIED Page: '7

DOS-002293
Current Class: UNCLASSIFIEUNCLASSIFIED Current Handling: SBU Document Number: 2002STATE054623 Page: 8 Channel: n/a
-A CONVICTION REQUIRES A VOTE OF TWO-THIRDS OF THE COMMISSION.
-A «DEATH» SENTENCE REQUIRES A UNANIMOUS VOTE.

-SENTENCES MAY ALSO INCLUDE LIFE IMPRISONMENT OR A LESSER
TERM, FINES AND RESTITUTION, OR ANY OTHER PUNISHMENT
DEEMED APPROPRIATE.

-A THREE-MEMBER REVIEW PANEL, APPOINTED BY THE. SECRETARY .
OF DEFENSE, WILL REVIEW TRIAL FINDINGS WITHIN 30 DAYS
AND EITHER PROVIDE A RECOMMENDATION TO THE SECRETARY OF
DEFENSE OR RETURN THE CASE FOR FURTHER PROCEEDINGS. THE
PANEL WILL INCLUDE THREE MILITARY OFFICERS BUT MAY ALSO
INCLUDE CIVILIANS TEMPORARILY COMMISSIONED AS MILITARY
OFFICERS.

-FINDINGS AND SENTENCES ARE NOT FINAL UNTIL APPROVED BY
THE PRESIDENT OR SECRETARY OF DEFENSE, BUT FINDINGS OF
"NOT GUILTY" CANNOT BE CHANGED.

-THE PROCEDURES MAY BE AMENDED BY THE SECRETARY OF
DEFENSE TO ACCOMMODATE CHANGED CIRCUMSTANCES.
POWELL .
UNCLASSIFIED

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PAGE 12 STATEO

UNCLASSIFIED

« END OF DOCUMENT »
Current Class: UNCLASSIFIEDO Page: 8

Doc_nid: 
6610
Doc_type_num: 
68