DOS Cable re: U.S. Government Response to Opinion No. 5/2003 of the Working Group on Arbitrary Detention

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225919
SOURCE: CBLEXCLS.001241
DRAFTED BY: GBRANCATO:GBRANCATO --08/05/2003 202-647-2773
APPROVED BY: IO/FO:JWSANDERS
L:SWITTEN
L/PM: JOANN DOLAN
L/ACV: ED CUMMINGS SUBS
L/HRR: KATE GOROVE
IO/SHA: TOM JOHNSON
DRL: MIKE SOUTHWICK/CHRIS CAMPONOVO
S/WCI: RON MILLER

S/CT: STEPHANIE MOLNAR
INR: MARK STEINIZ - INFO
US MISSION GENEVA: MIKE PEAY

NSC/LEGAL: BRAD WEIGMANN

NSC/DHR: MARIA PICA

DOD/GC: ELIANA DAVIDSON/KAREN HECKER

DOJ/DEP AGS OFFICE - PATRICK PHILBIN/ DAN COLLINS
-8EA318 0516142 /38

P R 051603Z AUG 03

FM SECSTATE WASIDC

TO-

USMISSION GENEVA PRIORITY
INFO USMISSION USUN NEW YORK

UNCLAS STATE 225919

E.O. 12958: N/A
TAGS: PHUM
SUBJECT: USG RESPONSE TO OPINION NO. 5/2003 OF THE WORKING
GROUP ON ARBITRARY DETENTION

1. RESPONSE OF THE GOVERNMENT OF THE «UNITED» «STATES» OF
AMERICA TO THE OPINION NO. 5/2003 DATED MAY 8, 2003, AND THE
COMMUNICATION DATED JANUARY 8, 2003 OF THE WORKING GROUP ON
ARBITRARY DETENTION

THE GOVERNMENT OF THE «UNITED» «STATES» WELCOMES THE OPPORTUNITY

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UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY: SHARON E AHMAD

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TO RESPOND TO THE ABOVE-MENTIONED OPINION NO. 5/2003 DATED

MAY 8, 2003, AND THE COMMUNICATION DATED JANUARY 8, 2003,

RELATING TO DETENTION AT GUANTANAMO NAVAL BASE (GUANTANAMO).

THE OPINION TOOK EXCEPTION TO THE PERCEIVED LACK OF RESPONSE

OF THE «UNITED» «STATES» GOVERNMENT TO ITS JANUARY 8

COMMUNICATION AND ALSO CONCLUDED THAT, IN THE VIEW OF THE

WORKING GROUP ON ARBITRARY DETENTION, THE DETENTION OF FOUR

NAMED INDIVIDUALS AT GUANTANAMO IS "ARBITRARY, BEING IN

CONTRAVENTION OF ARTICLE 9 OF THE UNIVERSAL DECLARATION OF

HUMAN RIGHTS AND ARTICLE 9 OF THE INTERNATIONAL COVENANT ON

CIVIL AND POLITICAL RIGHTS."

THE «UNITED» «STATES» GOVERNMENT RESPECTFULLY DISAGREES WITH THE

OPINION OF THE WORKING GROUP AND REFERS TO ITS LETTERS TO THE

WORKING GROUP OF DECEMBER 17, 2002, AND APRIL 3, 2003,
RESPECTING DETENTION AT GUANTANAMO. THESE TWO EARLIER
COMMUNICATIONS TO THIS WORKING GROUP DISCUSSED.AT LENGTH THE
FACTUAL AND LEGAL ISSUES SURROUNDING DETENTION AT GUANTANAMO.

IN VIEW OF THESE COMMUNICATIONS, THE «UNITED» «STATES» BELIEVES
THAT, CONTRARY TO THE POSITION EXPRESSED IN THE MAY 8
OPINION, WE HAVE CONSTRUCTIVELY AND RESPECTFULLY ENGAGED IN A
DIALOGUE WITH THE WORKING GROUP ON THIS IMPORTANT ISSUE,
BEARING IN MIND THE MANDATE OF THE WORKING GROUP.

FURTHER, AS WE OBSERVED IN THE FOREGOING CORRESPONDENCE, THE

MANDATE OF THE WORKING GROUP DOES NOT INCLUDE COMPETENCE TO

ADDRESS THE GENEVA CONVENTIONS OF 1949 OR MATTERS ARISING

UNDER THE LAW OF ARMED CONFLICT. WITHOUT IN ANY WAY WAIVING

OR WITHDRAWING ITS CONTINUING OBJECTION THAT THESE MATTERS

ARE BEYOND THE COMPETENCE OF THE WORKING GROUP, THE «UNTTED»

«STATES» GOVERNMENT, CONTINUING THE SPIRIT OF DIALOGUE AND

READINESS TO COOPERATE EXHIBITED IN ITS TWO EARLIER

COMMUNICATIONS, OFFERS THIS DETAILED RESPONSE TO THE WORKING

GROUP'S COMMUNICATION AND OPINION.

FOR REASONS OF NATIONAL SECURITY, THE «UNITED» «STATES»

GOVERNMENT IS NOT IN A POSITION TO ANSWER SPECIFIC QUESTIONS

REGARDING FOUR NAMED INDIVIDUALS, KHALED BEN MUSTAFA, NIZAR

SASSI, MOURAD BENCHELLALI, AND HAMED ABDERRAHAMAN AHMED.

NEVERTHELESS WE ARE PLEASED TO OFFER THE FOLLOWED DETAILED

INFORMATION ABOUT THE DETENTION AND «TREATMENT» OF INDIVIDUALS
HELD AT GUANTANAMO.

AS THE UNCHR IS AWARE, ON SEPTEMBER 11, 2001, TERRORISTS USED

UNLAWFUL AND PERFIDIOUS MEANS TO ATTACK INNOCENT CIVILIANS IN

THE «UNITED» «STATES». IMMEDIATELY FOLLOWING THE ATTACKS OF
SEPTEMBER 11, MOST OF THE WORLD, INCLUDING THE UNITED NATIONS
SECURITY COUNCIL IN RESOLUTION 1368 AND NATO, CONDEMNED THESE
ATTACKS AS A "THREAT TO INTERNATIONAL PEACE AND SECURITY,"

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RECOGNIZED THE INHERENT RIGHT OF INDIVIDUAL AND COLLECTIVE

SELF-DEFENSE, AND EXPRESSED DETERMINATION TO COMBAT BY ALL

MEANS THREATS TO INTERNATIONAL PEACE AND SECURITY CAUSED BY

TERRORIST ACTS.

NATO'S NORTH ATLANTIC COUNCIL DETERMINED ON OCTOBER 2, 2001, •

THAT THE SEPTEMBER 11TH ATTACK WAS DIRECTED FROM ABROAD BY

THE WORLD-WIDE TERRORIST NETWORK OF AL QAIDA AND "SHALL

THEREFORE BE REGARDED AS AN ACTION COVERED BY ARTICLE 5 OF

THE WASHINGTON TREATY, WHICH STATES THAT AN ARMED ATTACK ON

ONE OR MORE OF THE ALLIES OF EUROPE OR NORTH AMERICA SHALL BE

CONSIDERED AN ATTACK AGAINST THEM ALL." FOREIGN MINISTERS OF

THE STATES PARTIES TO THE 1947 INTER-AMERICAN TREATY OF

RECIPROCAL ASSISTANCE (THE RIO TREATY) LIKEWISE RESOLVED ON

SEPTEMBER 21, 2001, THAT "THESE ATTACKS AGAINST THE «UNITED»

«STATES» ARE ATTACKS AGAINST ALL AMERICAN STATES AND THAT IN

ACCORDANCE WITH ALL THE RELEVANT PROVISIONS OF THE . . .(RIO •

TREATY) . . .AND THE PRINCIPLE OF CONTINENTAL SOLIDARITY, ALL

STATES PARTIES' TO THE RIO TREATY SHALL PROVIDE EFFECTIVE -

RECIPROCAL ASSISTANCE TO ADDRESS SUCH ATTACKS AND THE THREAT

OF ANY SIMILAR ATTACKS AGAINST ANY AMERICAN STATE, AND TO

MAINTAIN THE PEACE AND SECURITY OF THE CONTINENT."

CONSISTENT WITH THIS WIDELY HELD INTERNATIONAL VIEW,

PRESIDENT BUSH STATED IN THE MILITARY ORDER OF NOVEMBER 13,

2001, THAT "INTERNATIONAL TERRORISTS, INCLUDING MEMBERS OF AL

QAIDA, HAVE CARRIED OUT ATTACKS ON «MUTED» «STATES» DIPLOMATIC

AND MILITARY PERSONNEL AND FACILITIES ABROAD AND ON CITIZENS
AND PROPERTY WITHIN THE «UNITED» «STATES» ON A SCALE THAT HAS
CREATED A STATE OF ARMED CONFLICT THAT REQUIRES THE USE OF
THE «MUTED» «STATES» ARMED FORCES." SINCE SEPTEMBER 11, THE
«UNITED» _«STATES» HAS EXERCISED ITS INHERENT RIGHT OF
SELF-DEFENSE AS RECOGNIZED IN ARTICLE 51 OF THE CHARTER OF
THE UNITED NATIONS AND UN SECURITY RESOLUTIONS 1368 (12
SEPTEMBER 2001) AND 1373 (28 SEPTEMBER 2001) AND HAS USED
OTHER LAWFUL AND REASONABLE MEANS TO THWART FURTHER ATTACKS
BY ENEMY COMBATANTS ON AMERICAN PERSONS AND PROPERTY.

AS THE FOREGOING MAKES CLEAR, THE «UNITED» «STATES» GOVERNMENT,
AND INDEED THE INTERNATIONAL COMMUNITY, HAVE CONCLUDED THAT
AL QAIDA AND RELATED TERRORIST NETWORKS ARE IN A STATE OF
ARMED CONFLICT WITH THE «UNITED» «STATES». THEY HAVE TRAINED,

EQUIPPED, AND SUPPORTED ARMED.FORCES AND HAVE PLANNED AND

EXECUTED ATTACKS AROUND THE WORLD AGAINST THE «UNITED» «STATES»
ON A SCALE THAT FAR EXCEEDS CRIMINAL ACTIVITY. AL QAIDA
ATTACKS HAVE DELIBERATELY TARGETED CIVILIANS AND PROTECTED
SITES AND OBJECTS. FOR EXAMPLE, IN 2002, AL QAIDA OPERATIVES

IN NORTHERN «IRAQ» CONCOCTED SUSPECT CHEMICALS UNDER THE
DIRECTION OF SENIOR AL QAIDA ASSOCIATE ABU MU'SAB AL-ZARQAWI

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AND TRIED TO SMUGGLE THEM INTO RUSSIA, WESTERN EUROPE, AND

THE «MUTED» «STATES» FOR TERRORIST OPERATIONS. U.S. DEPARTMENT

OF STATE PATTERNS OF GLOBAL TERRORISM 2002 (PUBLICATION 11038

APRIL 2003) AT P. 79. OTHER ATTACKS PERPETRATED BY AL QAIDA

AND AL QAIDA-LINKED GROUPS INCLUDE THE ATTEMPTED BOMBING ON

DECEMBER 22, 2001, OF A COMMERCIAL TRANSATLANTIC FLIGHT FROM

PARIS TO MIAMI BY CONVICTED SHOE BOMBER RICHARD REID; ON

OCTOBER 12, 2002, A CAR BOMB OUTSIDE A NIGHTCLUB IN BALI,

INDONESIA, KILLING ABOUT 180 INTERNATIONAL TOURISTS AND

INJURING ABOUT 300; A SUICIDE CAR BOMBING AT A HOTEL IN
MOMBASSA, KENYA, KILLING 15 AND INJURING 40; THE SIMULTANEOUS
NEAR-MISS SA-7 MISSILE ATTACK ON A CIVILIAN JET DEPARTING
MOMBASSA FOR ISRAEL; AN ATTACK ON US MILITARY PERSONNEL IN
KUWAIT ON OCTOBER 8 THAT KILLED ONE US SOLDIER AND INJURED
ANOTHER; DIRECTING A SUICIDE ATTACK ON THE MV LIMBURG OFF THE
COAST OF YEMEN ON OCTOBER 6, 2002, THAT KILLED ONE AND
INJURED FOUR; AND A FIREBOMBING OF A SYNAGOGUE IN TUNISIA ON
APRIL 11, 2002 THAT KILLED 19 AND INJURED 22. ID. AT 118-19.

MOREOVER, AL QAIDA DIRECTED THE OCTOBER 12, 2000 ATTACK ON

THE USS COLE IN THE PORT OF ADEN, YEMEN, KILLING 17 US NAVY

MEMBERS AND INJURING AN ADDITIONAL 39. AL QAIDA ALSO

CONDUCTED THE BOMBINGS IN AUGUST 1998 OF THE US EMBASSIES IN

KENYA AND TANZANIA THAT KILLED AT LEAST 300 INDIVIDUALS AND

INJURED MORE THAN 5,000. ID. AT 119. AL QAIDA ADDITIONALLY

CLAIMS TO HAVE SHOT DOWN UN HELICOPTERS AND KILLED US

SERVICEMEN IN SOMALIA IN 1993 AND TO HAVE CONDUCTED THREE

BOMBINGS THAT TARGETED US TROOPS IN ADEN, YEMEN IN DECEMBER

1992. ID.

AL QAIDA IS ALSO LINKED TO THE FOLLOWING PLANS THAT WERE

DISRUPTED OR NOT CARRIED OUT: TO ASSASSINATE POPE JOHN PAUL

II DURING HIS VISIT TO MANILA IN LATE 1994; TO KILL PRESIDENT

CLINTON DURING A VISIT TO THE PHILIPPINES IN EARLY 1995; TO

BOMB IN MIDAIR A DOZEN US TRANS-PACIFIC FLIGHTS IN 1995; TO

SET OFF A BOMB AT LOS ANGELES INTERNATIONAL AIRPORT IN 1999;
AND TO CARRY OUT TERRORIST OPERATIONS AGAINST US AND ISRAELI
TOURISTS VISITING JORDAN FOR MILLENNIAL CELEBRATIONS IN LATE

1999. ID. (JORDANIAN AUTHORITIES THWARTED THE PLANNED

ATTACKS AND PUT 28 SUSPECTS ON TRIAL. ID .)

DESPITE COALITION SUCCESSES IN «ARMANTSTAN» AND AROUND THE
WORLD, THE WAR IS FAR FROM OVER. THE AL QAIDA NETWORK TODAY

IS A MULTINATIONAL ENTERPRISE THAT HAS A GLOBAL REACH THAT

EXCEEDS THAT OF ANY PREVIOUS TRANSNATIONAL GROUP. SOME AL
QAIDA OPERATIVES HAVE ESCAPED TO PLAN AND MOUNT FURTHER
TERRORIST ATTACKS AGAINST THE «ITNITZD» «STATES» AND COALITION

PARTNERS. THE CONTINUING MILITARY OPERATIONS UNDERTAKEN AGAINST THE «UNITED» «STATES» AND ITS NATIONALS BY THE AL QAIDA
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ORGANIZATION BOTH BEFORE AND AFTER SEPTEMBER 11 NECESSITATE A
MILITARY RESPONSE BY THE ARMED FORCES OF THE «ONTTED» «STATES»
TO CONCLUDE OTHERWISE IS TO PERMIT AN ARMED GROUP TO WAGE WAR

UNLAWFULLY AGAINST A SOVEREIGN STATE WHILE PRECLUDING THAT

STATE FROM DEFENDING ITSELF.

DURING THE COURSE OF HOSTILITIES IN «AFGHANISTAN», THE «UNITED»
«STATES» MILITARY AND ITS ALLIES HAVE CAPTURED OR SECURED THE
SURRENDER OF THOUSANDS OF INDIVIDUALS FIGHTING AS PART OF THE
AL QAIDA TERRORIST NETWORK OR WHO SUPPORTED, PROTECTED OR
DEFENDED THE AL QAIDA TERRORISTS. THESE WERE INDIVIDUALS
CAPTURED IN CONNECTION WITH THE ONGOING ARMED CONFLICT.
THEIR CAPTURE AND DETENTION WAS LAWFUL AND NECESSARY TO

PREVENT THEM FROM RETURNING TO THE BATTLEFIELD OR REENGAGING

IN ARMED CONFLICT.
IN «AFGHANISTAN», THE «UNITED» «STATES» HAS SCREENED OVER 6,000
ENEMY COMBATANTS TO DETERMINE WHETHER CONTINUED DETENTION BY

THE «ONTTED» «STATES» WAS WARRANTED. MANY INDIVIDUALS RELEASED
BY THE «UNITED» «STATES» AND COALITION FORCES WERE RELEASED FOR
MANY APPROPRIATE REASONS. THOSE ENEMY COMBATANTS WHO WERE

ASSESSED AS BEING OF SPECIAL CONCERN TO THE «UNITED» «STATES», INCLUDING BECAUSE OF THEIR POTENTIAL TO REMAIN A THREAT TO COALITION FORCES, THEIR INVOLVEMENT IN WAR CRIMES, AND THEIR INTELLIGENCE VALUE, WERE TAKEN TO GUANTANAMO BAY FOR FURTHER DETENTION. THE FIRST «DETAINEES» ARRIVED AT GUANTANAMO ON JANUARY 11, 2002, AND OTHERS HAVE ARRIVED • (AND SOME HAVE BEEN TRANSFERRED OUT) SINCE THEN.
INTERNATIONAL HUMANITARIAN LAW. AS NOTED EARLIER, THE
WORKING GROUP LACKS JURISDICTION TO ENTERTAIN COMMUNICATIONS
RAISING ISSUES UNDER THE LAWS AND CUSTOMS OF WAR. THE LAWS
AND CUSTOMS OF WAR ARE THE APPLICABLE LAW IN ARMED CONFLICT.
THE OPINION AND COMMUNICATION IGNORE THIS CRUCIAL JURIDICAL
CONTEXT, SUGGESTING THAT THE «Lumminms» ARE ENTITLED TO
JUDICIAL REVIEW OR ENJOY THE RIGHT TO RESORT TO THE COURTS.
THE OPINION, HOWEVER, PRESENTS NO LEGAL SUPPORT FOR THE NOVEL
PROPOSITION THAT DETAINED ENEMY COMBATANTS HAVE ANY RIGHTS
UNDER THE LAW OF ARMED CONFLICT TO HAVE THEIR DETENTION
REVIEWED IN A HUMAN RIGHTS FORUM OR TO HAVE ACCESS TO THE
COURTS OF THE DETAINING POWER TO CHALLENGE THEIR DETENTION
DURING THE COURSE OF ONGOING CONFLICT.

THE LAW OF ARMED CONFLICT IS THE LEX SPECIALIS GOVERNING THE STATUS AND «TREATMENT» OF PERSONS DETAINED DURING ARMED CONFLICT. TO BE SURE, MANY OF THE PRINCIPLES OF HUMANE «TREATMENT» FOUND IN THE LAW OF ARMED CONFLICT FIND SIMILAR EXPRESSION IN HUMAN RIGHTS LAW. FURTHER, SOME OF THE
PRINCIPLES OF THE LAW OF ARMED CONFLICT MAY BE EXPLICATED BY

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ANALOGY OR BY REFERENCE TO HUMAN RIGHTS PRINCIPLES. HOWEVER,

SIMILARITY OF PRINCIPLES IN CERTAIN RESPECTS DOES NOT MEAN AN

IDENTITY OF PRINCIPLES, DOCTRINE, OR JURISPRUDENCE.

PROFESSOR THEODOR MERON, CURRENTLY THE PRESIDENT OF THE

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA IN

THE HAGUE, HAS WRITTEN:

NOT SURPRISINGLY, IT HAS BECOME COMMON IN SOME QUARTERS TO

CONFLATE HUMAN RIGHTS AND THE LAW OF WAR/INTERNATIONAL

HUMANITARIAN LAW. NEVERTHELESS, DESPITE THE GROWING

CONVERGENCE OF VARIOUS PROTECTIVE TRENDS, SIGNIFICANT

DIFFERENCES REMAIN. UNLIKE HUMAN RIGHTS LAW, THE LAW OF WAR

ALLOWS, OR AT LEAST TOLERATES, THE KILLING AND WOUNDING OF

INNOCENT HUMAN BEINGS NOT DIRECTLY PARTICIPATING IN AN ARMED

CONFLICT, SUCH AS CIVILIAN VICTIMS OF LAWFUL COLLATERAL •

DAMAGE. IT ALSO PERMITS CERTAIN DEPRIVATIONS OF PERSONAL

FREEDOM WITHOUT CONVICTIONS IN A COURT OF LAW. THEODOR

MERON, THE HUMANIZATION OF HUMANITARIAN LAW, 94 A.J.I.L. 239,

240 (2000) (EMPHASIS ADDED).

THE CONSEQUENCES OF CONFLATING THE TWO BODIES OF LAW WOULD BE

DRAMATIC AND UNPRECEDENTED. FOR INSTANCE, APPLICATION OF

PRINCIPLES DEVELOPED IN THE CONTEXT OF HUMAN RIGHTS LAW WOULD

ALLOW ALL ENEMY COMBATANTS DETAINED IN ARMED CONFLICT TO HAVE

ACCESS TO COURTS TO CHALLENGE THEIR DETENTION, A RESULT

DIRECTLY AT ODDS WITH WELL-SETTLED LAW OF WAR THAT WOULD

THROW THE CENTURIES-OLD, UNCHALLENGED PRACTICE OF DETAINING

ENEMY COMBATANTS INTO COMPLETE DISARRAY. AS PROFESSOR MERON

CONCLUDES HIS INTRODUCTION TO THE TRENDS AT THE HEART OF

INTERNATIONAL HUMANITARIAN LAW, "(T)HE TWO SYSTEMS, HUMAN

RIGHTS AND HUMANITARIAN NORMS, ARE THUS DISTINCT...."

ID.

THE ENEMY COMBATANTS ARE NOT ENTITLED TO POW STATUS. SHORTLY

AFTER THE «D.10MaNEES»' ARRIVAL AT GUANTANAMO, THE PRESIDENT OF

THE «UNITED» «STATES» DETERMINED THAT THE CONFLICT WITH AL QAIDA
IS NOT COVERED BY THE GENEVA CONVENTION. AL QAIDA IS A

TERRORIST ORGANIZATION, NOT A STATE, AND IT IS NOT AND CANNOT

BE A PARTY TO THE GENEVA CONVENTIONS. THE PRESIDENT FURTHER

DETERMINED THAT, ALTHOUGH THE CONFLICT WITH THE TALIBAN IS

COVERED BY THE GENEVA CONVENTION, THE TALIBAN «DETMAMES» DO

NOT QUALIFY FOR POW STATUS. SEE WHITE HOUSE FACT SHEET,

STATUS OF «JmnmarmEs» AT GUANTANAMO, OFFICE OF THE PRESS

SECRETARY, FEB. 7, 2002, P. 1, AT HTTP://WWW. WHITEHOUSE.GOV

/NEWS/RELEASES/2002/02/20020207-13.HTML (VISITED APRIL 5,
2002). THE PRESIDENT REACHED THIS DECISION AFTER CAREFUL
PREVIEW AND IN CONSULTATION WITH HIS MOST SENIOR ADVISERS.

THE «UNITED» «STATES» STATED PUBLICLY THAT:

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UNDER ARTICLE 4 OF THE GENEVA CONVENTION, . . . TALIBAN

«DEMINEES» ARE NOT ENTITLED TO POW STATUS. . . . THE TALIBAN
HAVE NOT EFFECTIVELY DISTINGUISHED THEMSELVES FROM THE
CIVILIAN POPULATION OF «AINWANTSTAN». MOREOVER, THEY HAVE NOT

. CONDUCTED THEIR OPERATIONS IN ACCORDANCE WITH THE LAWS AND
CUSTOMS OF WAR. . . . AL QAEDA IS AN INTERNATIONAL TERRORIST
GROUP AND CANNOT BE CONSIDERED A STATE PARTY TO THE GENEVA
CONVENTION. ITS MEMBERS, THEREFORE, ARE NOT COVERED BY THE
GENEVA CONVENTION, AND ARE NOT ENTITLED TO POW STATUS UNDER
THE TREATY.

STATEMENT BY THE U.S. PRESS SECRETARY, THE JAMES S. BRADY
BRIEFING ROOM, IN WASHINGTON, D.C. (FEB. 7, 2002).

THUS, THE «DETAINEES» DO NOT ENJOY POW STATUS BECAUSE THEY DO
NOT MEET THE CRITERIA APPLICABLE TO LAWFUL COMBATANTS. THE
«UNITED» «STATES» HAS MADE IT CLEAR THAT THE «DETAINEES» ARE
UNLAWFUL COMBATANTS -- A LEGAL STATUS THAT HAS LONG BEEN
RECOGNIZED UNDER INTERNATIONAL LAW -- WHO MAY BE DETAINED AT
LEAST FOR THE DURATION OF HOSTILITIES. THE U.S. SUPREME
COURT, CITING NUMEROUS AUTHORITATIVE INTERNATIONAL SOURCES,
HAS HELD THAT UNLAWFUL COMBATANTS "ARE SUBJECT TO CAPTURE AND
DETENTION, (AS WELL AS) TRIAL AND PUNISHMENT BY MILITARY
TRIBUNALS FOR ACTS WHICH RENDER THEIR BELLIGERENCY UNLAWFUL."

SEE EX PARTE QUIRIN, 317 U.S. 1, 31 (1942) (CITING GREAT
BRITAIN, WAR OFFICE, MANUAL OF MILITARY, CH. XIV, SS 445-451;
REGOLAMENTO DI SERVIZIO IN GUERRA, S 133, 3 LEGGI E DECRETI
DEL REGNO D'ITALIA (1896) 3184; 7 MOORE, DIGEST OF
INTERNATIONAL LAW, S 1109; 2 HYDE, INTERNATIONAL LAW, SS 654,
652; 2 HALLECK, INTERNATIONAL LAW (4TH ED. 1908) S 4; 2
OPPENHEIM, INTERNATIONAL LAW, S 254; HALL, INTERNATIONAL LAW,
SS 127, 135; BATY & MORGAN, WAR, ITS CONDUCT AND LEGAL
RESULTS (1915) 172; BLUNTSCHI, DROIT INTERNATIONAL, SS 570
BIS.). SEE, E.G., INGRID DETTER, THE LAW OF WAR 148 (2000)

("UNLAWFUL COMBATANTS . . . THOUGH THEY ARE A LEGITIMATE
TARGET FOR ANY BELLIGERENT ACTION, ARE NOT, IF CAPTURED,
ENTITLED TO ANY PRISONER OF WAR STATUS.").

FURTHER, AL QAIDA MEMBERS UNLAWFULLY ENGAGE IN AN ARMED
CONFLICT TARGETING CIVILIANS AND MILITARY PERSONNEL AND
OBJECTS AROUND THE WORLD. AL QAIDA'S CONDUCT FLAGRANTLY
VIOLATES EVEN THE MOST FUNDAMENTAL LAWS AND CUSTOMS AND WAR.
IN ADDITION TO UNLAWFULLY TARGETING CIVILIANS, AL QAIDA'S
METHODS AND MEANS OF WAGING WAR ARE AT ODDS WITH EVERY
REQUIREMENT APPLICABLE TO LAWFUL ARMED FORCES. IT IS

IMPORTANT TO THE RULE OF LAW THAT WE NOT RECOGNIZE AL QAIDA
AND THE TALIBAN AS HAVING POW STATUS. DOING SO WOULD
DISSERVE THE WORLD'S INTERESTS BY DIMINISHING THE PRINCIPLES
EMBODIED IN THE GENEVA CONVENTIONS.

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IT IS THE VIEW OF THE «UNITED» «STATES» GOVERNMENT THAT WE CANNOT
HAVE AN INTERNATIONAL LEGAL SYSTEM IN WHICH HONORABLE
SOLDIERS WHO ABIDE BY THE LAW OF ARMED CONFLICT AND ARE

CAPTURED ON THE BATTLEFIELD MAY BE DETAINED AND HELD UNTIL
THE END OF A WAR WITHOUT ACCESS TO COURTS OR OTHER BENEFITS
CLAIMED IN THE OPINION, BUT TERRORIST COMBATANTS WHO VIOLATE
THE LAW OF ARMED CONFLICT MUST BE GIVEN SPECIAL PRIVILEGES OR
RELEASED AND ALLOWED TO CONTINUE THEIR BELLIGERENT, UNLAWFUL
OR TERRORIST ACTIVITIES. SUCH A LEGAL REGIME WOULD SIGNAL TO
THE INTERNATIONAL COMMUNITY THAT IT IS ACCEPTABLE FOR ARMIES
TO BEHAVE LIKE TERRORISTS.

ARTICLE FIVE TRIBUNALS. MEMBERS OF THE TALIBAN AND AL QAIDA
DETAINED AT GUANTANAMO ARE NOT ENTITLED TO PRISONER OF WAR
STATUS UNDER THE THIRD GENEVA CONVENTION, AND THERE IS NO
NEED TO CONVENE AN ARTICLE 5 TRIBUNAL TO MAKE INDIVIDUALIZED
STATUS DETERMINATIONS FOR EACH «DETAINEE». ARTICLE 5 STATES
THAT "(S)HOULD ANY DOUBT ARISE," «IMMAINEES» "SHALL ENJOY THE
PROTECTION OF THE (GENEVA CONVENTION) UNTIL SUCH TIME AS
THEIR STATUS HAS BEEN DETERMINED BY A COMPETENT TRIBUNAL."
ARTICLE 5 DOES NOT REQUIRE A PARTY TO THE GENEVA CONVENTION
TO CONVENE TRIBUNALS TO CONSIDER STATUS DETERMINATIONS UNLESS
THERE IS DOUBT. FOR MEMBERS OF AL QAIDA AND THE TALIBAN,
CAPTURED IN THE COURSE OF ONGOING HOSTILITIES OR DIRECTLY
ACTING IN SUPPORT OF A HOSTILE ARMED FORCE ENGAGED IN AN

ONGOING ARMED CONFLICT, THERE IS NO DOUBT ABOUT THEIR STATUS, .

-THE PRESIDENT HAS DETERMINED FOR THE «UNITED» «STATES» AS A CATEGORICAL MATTER THAT AL QAIDA FIGHTERS CANNOT ENJOY POW STATUS BECAUSE AL QAIDA IS NOT A STATE PARTY TO-THE CONVENTION, AND TALIBAN FIGHTERS CANNOT ENJOY POW STATUS BECAUSE THE TALIBAN MILITIA AS A GROUP FAILED TO COMPLY WITH THE REQUIREMENTS OF ARTICLE 4.
ENEMY COMBATANTS ARE NOT ENTITLED TO BE RELEASED PRIOR TO THE
END OF HOSTILITIES OR TO HAVE ACCESS TO COURT OR COUNSEL.
SOME HAVE ERRONEOUSLY CLAIMED THAT THE «UNITED» «STATES» IS

VIOLATING DOMESTIC AND INTERNATIONAL LAWS THAT PROHIBIT THE
INDEFINITE DETENTION OF INDIVIDUALS WITHOUT TRIAL. THIS
CLAIM IS CONTRARY TO THE WELL-ESTABLISHED AND BROAD AUTHORITY

OF A COUNTRY TO DETAIN ENEMY COMBATANTS UNDER THE LAWS AND
CUSTOMS OF WAR FOR THE DURATION OF HOSTILITIES.

INDIVIDUALS DETAINED AT GUANTANAMO ARE ENEMY COMBATANTS

CAPTURED IN THE COURSE OF ONGOING HOSTILITIES OR DIRECTLY

ACTING IN SUPPORT OF A HOSTILE ARMED FORCE ENGAGED IN AN

ONGOING ARMED CONFLICT. AS SUCH, THEY ARE BEING HELD IN

ACCORDANCE WITH THE LAWS AND CUSTOMS OF WAR, WHICH PERMIT THE

«OWTTED» «STATES» TO CAPTURE AND DETAIN ENEMY COMBATANTS TO

PREVENT THEIR RE-ENGAGING IN THE ONGOING ARMED CONFLICT.

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THE «UNITED» «STATES» HAS MADE IT CLEAR THAT THE «DIMMINEES» ARE
UNLAWFUL COMBATANTS SEE, E.G., SECRETARY RUMSFELD'S STATEMENT
THAT THE 4mmanms» "ARE NOT POWS" AND INSTEAD ARE "UNLAWFUL
COMBATANTS". GERRY J. GILMORE, RUMSFELD VISITS, THANKS U.S.
TROOPS AT CAMP X-RAY IN CUBA, AMERICAN FORCES PRESS SERVICE,
JAN. 27, 2002, AT WWW.DEFENSELINK.MIL /

NEWS/JAN2002/N01272002-200201271 (VISITED APRIL 11, 2002).
-- A LEGAL STATUS THAT HAS LONG BEEN RECOGNIZED UNDER
INTERNATIONAL LAW -- WHO MAY BE DETAINED AT LEAST FOR THE
DURATION OF HOSTILITIES. SEE, E.G., INGRID DETTER, THE LAW OF
WAR 148 (2000) ("UNLAWFUL COMBATANTS . . . THOUGH THEY ARE A
LEGITIMATE TARGET FOR ANY BELLIGERENT ACTION, ARE NOT, IF
CAPTURED, ENTITLED TO ANY PRISONER OF WAR STATUS.").
INDIVIDUALS DETAINED AT GUANTANAMO INCLUDE A NUMBER OF SENIOR
AL QAIDA OPERATIVES OR OTHERS COMMITTED TO KILLING AMERICANS
AND OTHERS. THE «EMITTED» «STATES» CONTINUES TO FIGHT AGAINST
ENEMY COMBATANTS WHO ARE PLANNING AND CONDUCTING ATTACKS
AGAINST IT.

THE DETENTION OF AN ENEMY COMBATANT IS NOT AN ACT OF
PUNISHMENT BUT ONE OF SECURITY AND MILITARY NECESSITY. IT
SERVES THE IMPORTANT PURPOSE OF PREVENTING AN ENEMY COMBATANT
FROM CONTINUING TO FIGHT AGAINST US. THERE IS NO LAW
REQUIRING A DETAINING POWER TO PROSECUTE ENEMY COMBATANTS ON
SOME FORM OF CHARGE OR RELEASE THEM PRIOR TO THE END OF
HOSTILITIES. LIKEWISE, UNDER THE LAWS AND CUSTOMS OF WAR,
DETAINED ENEMY COMBATANTS HAVE NO RIGHT OF ACCESS TO COUNSEL
OR THE COURTS TO CHALLENGE THEIR DETENTION. SHOULD A
4DETAMME» BE CHARGED WITH A CRIMINAL OFFENSE, HE WOULD HAVE
THE RIGHT TO COUNSEL AND APPLICABLE FUNDAMENTAL PROCEDURAL
SAFEGUARDS.

IT IS ALSO IMPORTANT TO NOTE THAT THE «UNITED» «STATES» HAS NO
INTEREST IN DETAINING ENEMY COMBATANTS LONGER THAN NECESSARY.

ON AN ONGOING BASIS, WE ARE CONSTANTLY REVIEWING THE
CONTINUED DETENTION OF EACH ENEMY COMBATANT, BASED ON
SECURITY, WAR CRIME INVOLVEMENT, AND INTELLIGENCE CONCERNS.

THIS PROCESS HAS RESULTED IN THE RELEASE OF, TO DATE, 64
INDIVIDUALS. THESE INDIVIDUALS ARE REQUIRED TO SIGN AN
AGREEMENT THAT THEY WILL NOT TAKE UP ARMS AGAINST THE «UNITED»
«STATES» OR ITS ALLIES. ADDITIONALLY, SOME ENEMY COMBATANTS

. HAVE BEEN TRANSFERRED TO THEIR COUNTRIES OF NATIONALITY FOR
CONTINUED DETENTION.

INTELLIGENCE GLEANED FROM THESE ENEMY COMBATANTS HAS BEEN
INVALUABLE IN OUR ONGOING WAR ON TERRORISM. THIS INFORMATION
HAS DIRECTLY ASSISTED THE «UNITED» «STATES» IN ITS EFFORTS TO WIN
THE WAR ON TERRORISM AND IN FORESTALLING FUTURE TERRORIST
ATTACKS ON THE CITIZENS OF THE «UNTTED» «STATES» AND OTHER

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COUNTRIES.

«TREATMENT» OF «DETAINEES». NOTWITHSTANDING THE FACT THAT THE
«DIMMERS» AT GUANTANAMO ARE UNLAWFUL ENEMY COMBATANTS, THE
ARMED FORCES OF THE «UNITED» «STATES» ARE "TREATING AND WILL
CONTINUE TO TREAT (THE «DETAINEES») HUMANELY AND, TO THE EXTENT
APPROPRIATE AND CONSISTENT WITH MILITARY NECESSITY, IN A
MANNER CONSISTENT WITH THE PRINCIPLES OF THE (GENEVA
CONVENTION). . . . THE «DETAINEES» WILL NOT BE SUBJECTED TO
PHYSICAL OR MENTAL ABUSE OR CRUEL «TREATMENT». 4 SEE WHITE
HOUSE FACT SHEET, FEB. 7, 2002, AT 1-2.

THE ‹immmamEs» ARE BEING PROVIDED SHELTER, NEW CLOTHING AND
SHOES, SLEEPING PADS AND BLANKETS AND THREE
CULTURALLY-SENSITIVE MEALS A DAY. ID. INDEED, THE .0cminualams»
HAVE GAINED AN AVERAGE OF THIRTEEN POUNDS (OVER FIVE KILOS)

'EACH SINCE THEIR ARRIVAL IN GUANTANAMO BAY. SEE "INTEL OF
'ENORMOUS VALUE' GLEANED FROM GUANTANAMO ‹.‹Dimmansss›," AMERICAN
FORCES INFORMATION SERVICE, JAN. 10, 2003, AT WWW.DOD.MIL/
.NEWS/JAN2003/N01102003 - 200301107 (VISITED JULY 7, 2003)..

THE «UNITED» «STATES» IS ALSO PROVIDING THE «DETAINEES» EXCELLENT
MEDICAL CARE. SEE, E.G., PORTABLE HOSPITAL PROVIDES MEDICAL
CARE FOR «DETAINEES», U.S. JOINT TASK FORCE NEWS SERVICE, JAN.
31, 2002, AT WWW.NSGTMO.NAVY. MIL/ JTF-160/NEWS/31JANO2G

(VISITED APRIL 11, 2002). THE MEDICAL «TREATMENT» PROVIDED TO
«DETAINEES» AT GUANTANAMO IS ON A PAR WITH «TREATMENT» AFFORDED
TO MEMBERS OF THE U.S. ARMED FORCES. FOR EXAMPLE, «DETAINEES»
HAVE RECEIVED ROUTINE MEDICAL CARE, PRESCRIPTION MEDICATION,
EYE EXAMINATIONS AND CORRECTIVE EYEWEAR, AND WHEN SERIOUS
MEDICAL CONCERNS REQUIRE, EVEN HOSPITALIZATION AND SURGERY.
ID.

IN MARCH 2003, A SPECIAL MENTAL HEALTH UNIT WAS OPENED WHERE
«urumass» SUFFERING FROM DEPRESSION OR OTHER PSYCHOLOGICAL

-DIFFICULTIES OR DISEASES RECEIVE INDIVIDUALIZED CARE AND SUPERVISION. ALTHOUGH THERE HAVE BEEN SOME SUICIDE ATTEMPTS BY «DETAMEES», DISCOVERY AND RAPID INTERVENTION BY MILITARY GUARDS HAVE PREVENTED «DETAINEE» DEATHS. THESE INDIVIDUALS WERE ALSO SEEN BY MEDICAL PERSONNEL. THESE ATTEMPTS ARE TAKEN SERIOUSLY AND THE «UNITED» «STATES» MAKES EVERY EFFORT TO PREVENT THEM.
THE «Jommalms» HAVE BEEN GIVEN PERSONAL TOILETRIES, NEW TOWELS
AND WASHCLOTHS, AND AN OPPORTUNITY TO TAKE SHOWERS. SEE WHITE
HOUSE FACT SHEET, FEB. 7, 2002, AT 1-2. THEY HAVE BEEN GIVEN
THE OPPORTUNITY TO WORSHIP FREELY AND MANY HAVE BEEN GIVEN
COPIES OF THE KORAN IN THEIR NATIVE LANGUAGE.
NEWLY-CONSTRUCTED DETENTION FACILITIES INCLUDE INDOOR

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PLUMBING, MORE SECURE EXERCISE AREAS, AND IMPROVED SHELTER

•FROM THE SUN, WHICH IMPROVES UPON THE ORIGINAL, TEMPORARY DETENTION FACILITIES WHICH ARE NO LONGER IN USE. SEE "GITMO GENERAL RATES FORCE PROTECTION HIGH WITH «DETAINEE» CARE," AMERICAN FORCES INFORMATION SERVICE, JUNE 21, 2002, WWW.DOD.MIL/NEWS/JUN2002/N06212002 - 200206212.HTML
(VISITED JULY 7, 2003).

THE «JMOWNEES» ARE NOT BEING HELD INCOMMUNICADO.
REPRESENTATIVES OF THE INTERNATIONAL COMMITTEE OF THE RED

CROSS ("ICRC") HAVE VISITED «JADETAIWEES» INDIVIDUALLY AND

PRIVATELY. SEE WHITE HOUSE FACT SHEET, FEB. 7, 2002, AT 2;

SEE ALSO STATEMENT BY SECRETARY RUMSFELD IN JIM GARAMONE,

"RUMSFELD EXPLAINS «DETAINEE» STATUS, AMERICAN FORCES PRESS
SERVICE," FEB. 8, 2002, AT WWW.DEFENSELINK.MIL/
NEWS/JAN2002/N01272002-200201271 (VISITED APRIL 11, 2002);

INTERNATIONAL COMMITTEE OF THE RED CROSS, "GUANTANAMO BAY:
THE WORK CONTINUES," 5.29.03 WWW.ICRC.ORG/WEB/ENG/

SITEENGONSF/IWPLIST199/ 5C867C1DB5AA2BE 541256C94006000EE.

(VISITED JULY 7, 2003).

«JMOUMMIES ARE ALSO PERMITTED TO COMMUNICATE WITH FAMILY AND

FRIENDS AT HOME VIA LETTERS AND POSTCARDS. THEY USE EITHER

THE'U.S. MILITARY POSTAL SERVICE, OR THE ICRC, WHICH DELIVERS

MAIL VIA ITS OFFICES IN EACH COUNTRY. THE VOLUME OF

COMMUNICATIONS IS NOT INSUBSTANTIAL; FROM JANUARY 2002 (WHEN

«DIZTAINEES» FIRST BEGAN TO ARRIVE) TO JULY 2002, THE «UNITED»
«STATES» MILITARY DELIVERED OVER 1,600 PIECES OF MAIL SENT OUT

BY 4mnmansEs» AND DELIVERED OVER.300 PIECES OF MAIL SENT TO

«DETJUMMES», SEE "«DETAINEES» SEND, RECEIVE MAIL VIA JOINT TASK

FORCE, RED CROSS," AMERICAN FORCES INFORMATION SERVICE, JUNE

21, 2002, AT WWW.DOD.MIL/ NEWS/JUN2002/ N07232002-200207231

(VISITED JULY 7, 2003), WHILE THE ICRC, BY APRIL 2003, HAD
DELIVERED NEARLY 4,200 SUCH PIECES OF MAIL. SEE ICRC,
"GUANTANAMO BAY: THE WORK CONTINUES," SUPRA.

SUBJECT TO CERTAIN RESTRICTIONS, THE «DEMINMES» CAN ENGAGE IN

EXERCISE AND RECREATION PERIODS AND CAN COMMUNICATE WITH ONE
ANOTHER. SOME HAVE MET AND CONSULTED PRIVATELY WITH A U.S.
NAVY CHAPLAIN OF MUSLIM FAITH. SEE, E.G., STATEMENT BY U.S.
NAVY LT. SAIFUL ISLAM (MUSLIM CHAPLAIN) (SAYING THAT HE CALLS

• THE «DETTAMMES» TO AFTERNOON PRAYER AND HAS SPOKEN WITH SOME OF THE «mmunms»). SOME HAVE MET WITH GOVERNMENT OFFICIALS FROM THEIR COUNTRY OF NATIONALITY. SEE, E.G., "RUMSFELD INVITES KUWAITIS TO VISIT THEIR CITIZENS AT GUANTANAMO," AMERICAN FORCES INFORMATION SERVICE, JUNE 10, 2002, AT WWW.DOD.MIL/NEWS/JUN2002/ N06102002-200206104. (VISITED JULY 7, 2003); "WOLFOWITZ INTERVIEW WITH JIM LEHRER, NEWS HOUR," DOD NEWS TRANSCRIPT, MAR. 21, 2002, AT
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WWW.DOD.MIL/NEWS/MAR2002/ T03222002-T0321WOL. (VISITED JULY
7, 2003) (EXPLAINING THAT NUMEROUS COUNTRIES HAD ALREADY SENT
REPRESENTATIVES TO VISIT THEIR NATIONALS HELD AT GUANTANAMO).

FOR THE REASONS DISCUSSED ABOVE, THE «UNITED»
«STATES» GOVERNMENT RESPECTFULLY DISAGREES WITH THE OPINION NO.
5/2003 DATED MAY 8, 2003, AND THE COMMUNICATION DATED JANUARY
8, 2003, OF THE WORKING GROUP ON ARBITRARY DETENTION RELATING
TO DETENTION AT GUANTANAMO. ADDITIONALLY, THE «UNITED» «STATES»
GOVERNMENT UNDERSCORES THAT THE COMPETENCE OF THE WORKING
GROUP DOES NOT EXTEND TO THE LAWS AND CUSTOMS OF WAR AND THUS
THE COMMUNICATION OF JANUARY 8, 2003, AND THE OPINION OF MAY
8, 2003, ARE OUTSIDE THE COMPETENCE OF THE WORKING GROUP.

POWELL

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