State Department cable with letter from Sec. Powell to the Chairman of Working Group on Detention addressing concerns over the conditions of detainees confinement and the legal theory on which confinement based in.
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ORIGIN SWCI-00
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SRPP-00 MEDE-00 EB-00 E-00 UTED-00 VC-00 H-01
TEDE-00 INR-00 10-00 JUSE-00 L-00 VCE-00 DCP-01
NSAE-00 NSCE-00 OIC-02 OPIC-01 PRS-00 P-00 SP-00
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254275
SOURCE: CBLEXCLS.003581
DRAFTED BY: L/HRR:GBRANCATO -- 12/11/2002 202-647-2773
APPROVED BY: IO/FO:JSANDERS
L/HRR: ASURENA OK
L/PM: JDOLAN/W BROOKS - OK
IO/SHA: JC PERRY - OK
. IO/SHA:TAJOHNSON - OK
S/WCI:RMILLER - OK
DRL: LYNN SICADE - OK
NSC/LEGAL:JSCHARFEN - OK
DOD/GC: EDAVIDSON/JKASLER - OK
DOJ: MINCONTRO - OK
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US MISSION GENEVA: SSOLOMON - INFO
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O 111612Z DEC 02
FM SECSTATE WASHDC
TO USMISSION GENEVA IMMEDIATE
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UNCLAS STATE 254275
E.O. 12958: N/A
TAGS: PHUM, UN
SUBJECT: USG RESPONSE TO CHR WORKING GROUP ON DETENTION -
GUANTANAMO CASES
1. BEGIN TEXT:
THIS LETTER RESPONDS TO YOUR LETTERS OF JANUARY 22, 2002, AND
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UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY: SHARON E AHMAD DOS-001955
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DATE/CASE ID: 04 NOV 2004 200303827
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OCTOBER 25, 2002 REGARDING INDIVIDUALS DETAINED UNDER THE
CONTROL OF UNITED STATES MILITARY AUTHORITIES AT GUANTANAMO
NAVAL BASE (GUANTANAMO). WHILE THE WORKING GROUP MANDATE
DOES NOT INCLUDE COMPETENCE TO ADDRESS THE GENEVA CONVENTIONS
OF 1949 OR MATTERS ARISING UNDER THE -LAW OF ARMED CONFLICT,
THE UNITED STATES MISSION, IN THE SPIRIT OF COOPERATION,
OFFERS THE FOLLOWING INFORMATION IN RESPONSE TO YOUR LETTERS
REGARDING THE DETAINEES.
AS YOU ARE WELL AWARE, ON SEPTEMBER 11, 2001, TERRORISTS USED
UNLAWFUL AND PERFIDIOUS MEANS TO ATTACK INNOCENT CIVILIANS IN
THE UNITED STATES. THESE ACTS, AS THE UNITED NATIONS
SECURITY COUNCIL RECOGNIZED, CONSTITUTED A THREAT TO
INTERNATIONAL PEACE AND SECURITY. SINCE SEPTEMBER 11, 2001,
THE UNITED STATES HAS EXERCISED ITS INHERENT RIGHT OF
SELF-DEFENSE AS RECOGNIZED IN ARTICLE 51 OF THE CHARTER OF
THE UNITED NATIONS, AND HAS USED OTHER REASONABLE AND LAWFUL
MEANS TO THWART FUTURE ATTACKS ON AMERICAN PERSONS AND
PROPERTY.
INDIVIDUALS DETAINED AT GUANTANAMO ARE ENEMY COMBATANTS
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CAPTURED IN THE COURSE OF ONGOING HOSTILITIES OR DIRECTLY
SUPPORTING HOSTILE FORCES. THESE ENEMY COMBATANTS POSE A
SERIOUS THREAT TO THE UNITED STATES AND ITS COALITION
PARTNERS. AS SUCH, THEY ARE BEING HELD IN ACCORDANCE WITH
THE LAWS AND CUSTOMS OF WAR, WHICH PERMIT THE UNITED STATES
TO CAPTURE AND DETAIN ENEMY COMBATANTS TO PREVENT THEIR
RE-ENGAGING IN THE ON-GOING ARMED CONFLICT.
THE UNITED STATES TREATS ALL ENEMY COMBATANTS HUMANELY AND IN
A MATTER CONSISTENT WITH APPLICABLE NORMS UNDER THE LAW OF
ARMED CONFLICT AND, TO THE EXTENT APPROPRIATE AND CONSISTENT
WITH MILITARY NECESSITY, IN A MANNER CONSISTENT WITH THE
PRINCIPLES OF THE THIRD GENEVA CONVENTION OF 1949. THE
UNITED STATES IS PROVIDING THE DETAINEES WITH APPROPRIATE
SHELTER, CLOTHING AND THREE CULTURALLY APPROPRIATE MEALS A
DAY. THE UNITED STATES IS ALSO PROVIDING DETAINEES EXCELLENT
MEDICAL AND DENTAL CARE. DETAINEES ARE GIVEN THE OPPORTUNITY
TO WORSHIP FREELY, AND THOSE WHO SO DESIRE HAVE BEEN GIVEN
COPIES OF THE KORAN.
THERE IS NO LAW REQUIRING A DETAINING POWER TO PROSECUTE
ENEMY COMBATANTS 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
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DETAINEE BE CHARGED WITH A CRIMINAL OFFENSE, HE WOULD HAVE
THE RIGHT TO COUNSEL AND APPLICABLE FUNDAMENTAL PROCEDURAL
SAFEGUARDS. THE UNITED STATES CONTINUOUSLY EVALUATES
INDIVIDUAL CASES AND, IN APPROPRIATE CASES, WILL RETURN
DETAINEES TO THEIR COUNTRY OF ORIGIN OR NATIONALITY. AS 'YOU
MAY BE AWARE, WE RECENTLY RELEASED 'FOUR DETAINEES.
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IN VIEW OF THESE PRINCIPLES, AND AS A COURTESY, THE US
GOVERNMENT PROVIDES THE FOLLOWING ANSWERS TO THE QUESTIONS
CONTAINED IN YOUR OCTOBER 25TH LETTER.
(A) THERE ARE APPROXIMATELY 625 PERSONS DETAINED AT
GUANTANAMO.
(B)
THE DETAINEES BEGAN ARRIVING AT GUANTANAMO IN JANUARY
2002.
(C)
(C),(D),(E),(F), AND (G) THE DETAINEES ARE ENEMY
COMBATANTS DETAINED IN THE COURSE OF AN ARMED CONFLICT UNDER
THE LAWS AND CUSTOMS OF WAR. NO DETAINEE HAS BEEN CHARGED
WITH A CRIMINAL OFFENSE. SHOULD A DETAINEE BE CHARGED WITH A
CRIMINAL OFFENSE, THAT DETAINEE WOULD BE PROVIDED FUNDAMENTAL
PROCEDURAL SAFEGUARDS, INCLUDING COUNSEL. UNDER THE LAWS AND
CUSTOMS OF WAR, THE DETAINING POWER IS NOT OBLIGED TO
PROSECUTE DETAINED ENEMY COMBATANTS OR RELEASE THEM PRIOR TO
THE END OF THE CONFLICT. CAPTURED ENEMY COMBATANTS HAVE NO
RIGHT OF ACCESS TO COUNSEL TO CHALLENGE THEIR DETENTION.
YOUR LETTER OF JANUARY 22, 2002 REQUESTED "A VISIT TO YOUR
COUNTRY IN ORDER TO EXAMINE IN SITU THE LEGAL ASPECTS OF THE
PERSONS CONCERNED." REPRESENTATIVES OF THE INTERNATIONAL
COMMITTEE FOR THE RED CROSS, WHICH IS THE ORGANIZATION VESTED
WITH COMPETENCE TO CONDUCT SUCH VISITS, HAVE ACCESS TO THE
DETAINEES ON A REGULAR BASIS.
IN LIGHT OF OUR VIEW THAT THE WORKING GROUP LACKS COMPETENCE
TO ADDRESS LAW OF ARMED CONFLICT ISSUES, THE UNITED STATES
RESPECTFULLY DECLINES YOUR REQUEST FOR A VISIT.
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THE UNITED STATES REITERATES ITS APPRECIATION FOR THE
INDISPENSABLE WORK OF THE COMMISSION ON HUMAN RIGHTS AND ITS
MANY IMPORTANT COMPONENTS.
THANK YOU FOR YOUR INQUIRY AND PLEASE ACCEPT THE ASSURANCES
OF MY HIGHEST CONSIDERATION.
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POWELL
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