DOS Cable re: U.S. Response to United Nations Report on Guantanamo Detentions

State department cable with a response to the United Nations High Commissioner on Human Rights issuing of a report critical of the U.S. in its handling of terror suspects, specifically keeping detainees at Guantanamo. The response is in the name of Sec, of State Powell.

Doc_type: 
Cable
Doc_date: 
Tuesday, April 1, 2003
Doc_rel_date: 
Wednesday, December 22, 2004
Doc_text: 

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083409
SOURCE: CBLEXCLS.006149
DRAFTED BY: L/HRR:GBRANCATO -- 04/01/2003 202-647-2773
APPROVED BY: IO/SHA:JCPERRY
L/HRR:ASURENA

'L/PM:JDOLAN
IO/SHA:TAJOHNSON
DRL/MLA:MPICA
S/WCI:RMILLER
DOD/GC:EDAVIDSON/JKASLER (SUBS)

4E6C9D 011551Z /38
O R 011543Z APR 03
FM SECSTATE WASHDC
TO USMISSION GENEVA IMMEDIATE
INFO NSC WASHDC 0000
SECDEF WASHDC 0000
USMISSION USUN NEW YORK

UNCLAS STATE 083409

E.O. 12958: N/A

TAGS: PHUM
SUBJECT: US RESPONSE TO UNHCHR WGAD REPORT ON GTMO
DETENTIONS

1.
RESPONSE OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA
TO THE DECEMBER 16, 2002 REPORT OF THE WORKING GROUP ON
ARBITRARY DETENTION.

2.
THE GOVERNMENT OF THE UNITED STATES WELCOMES THE
OPPORTUNITY TO RESPOND TO THE ABOVE-MENTIONED REPORT RELATING
TO DETENTION AT GUANTANAMO NAVAL BASE (GUANTANAMO). THE
REPORT CONCLUDED THAT UNTIL A TRIBUNAL CONVENED UNDER ARTICLE
FIVE OF THE THIRD GENEVA CONVENTION OF 1949 HAS DETERMINED
WHETHER INDIVIDUALS DETAINED AT GUANTANAMO ENJOY
PRISONER-OF-WAR (POW) STATUS, DETAINEES PROVISIONALLY ENJOY
THE PROTECTION OF THE GENEVA CONVENTION, INCLUDING THE RIGHT
TO REVIEW OF THE LAWFULNESS OF THEIR DETENTION AND THE RIGHT

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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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TO A FAIR TRIAL UNDER ARTICLES 105 AND 106. THE REPORT FURTHER CONCLUDED THAT WHERE THE BENEFIT OF POW STATUS IS NOT RECOGNIZED BY A COMPETENT TRIBUNAL, THE RIGHT OF DETAINEES WOULD BE GOVERNED BY THE INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS, WHICH GUARANTEES REVIEW OF THE LAWFULNESS
OF DETENTION AND THE RIGHT TO A FAIR TRIAL UNDER ARTICLES 9
AND 14.

3. THE UNITED STATES GOVERNMENT REFERS TO ITS LETTER TO THE
WORKING GROUP OF DECEMBER 17, 2002, RESPECTING DETENTION AT
GUANTANAMO, WHICH IS INCORPORATED IN THIS RESPONSE. AS NOTED
IN THAT LETTER, 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.

NEVERTHELESS, THE UNITED STATES GOVERNMENT, IN A SPIRIT OF
COOPERATION, OFFERS THIS RESPONSE TO THE WORKING GROUP REPORT.

4.
THE UNITED STATES GOVERNMENT RESPECTFULLY DISAGREES WITH
THE CONCLUSIONS REACHED BY THE WORKING GROUP THAT THE
INDIVIDUALS DETAINED AT GUANTANAMO ARE ENTITLED TO A REVIEW
OF THE LAWFULNESS OF THEIR DETENTION. AS THE WORKING GROUP
IS AWARE, ON SEPTEMBER 11, 2002, 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, 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.

5.
ENEMY COMBATANTS. INDIVIDUALS DETAINED AT GUANTANAMO ARE
ENEMY COMBATANTS CAPTURED IN THE COURSE OF ONGOING
HOSTILITIES OR DIRECTLY SUPPORTING HOSTILE FORCES. 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. AT THE TIME OF CAPTURE, THEY WERE BEARING
ARMS AGAINST THE UNITED STATES OR OTHERWISE ACTING IN SUPPORT
OF HOSTILE ARMED FORCED ENGAGED IN AN ON-GOING ARMED
CONFLICT. INDIVIDUALS DETAINED AT GUANTANAMO INCLUDE A NUMBER
OF SENIOR AL QAIDA OPERATIVES OR OTHERS COMMITTED TO KILLING
AMERICANS AND OTHERS. THE UNITED STATES CONTINUES TO FIGHT

AGAINST ENEMY COMBATANTS WHO ARE PLANNING AND CONDUCTING
ATTACKS AGAINST IT.

6. ARTICLE FIVE TRIBUNALS. MEMBERS OF THE TALIBAN AND AL

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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. 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 WHILE ENGAGED IN ONGOING
HOSTILITIES OR DIRECTLY SUPPORTING HOSTILE OPERATIONS, THERE

IS NO DOUBT ABOUT THEIR STATUS. ARTICLE 5 STATES THAT

"(S)HOULD ANY DOUBT ARISE," DETAINEES "SHALL ENJOY THE
PROTECTION OF THE (GENEVA CONVENTION) UNTIL SUCH TIME AS
THEIR STATUS HAS BEEN DETERMINED BY A COMPETENT TRIBUNAL."

7. REQUIREMENTS FOR POW STATUS. MEMBERS OF THE TALIBAN AND
AL QAIDA ARE NOT ENTITLED TO PRISONER OF WAR STATUS UNDER THE
THIRD GENEVA CONVENTION BECAUSE MEMBERS OF NEITHER MEET THE
CONDITIONS FOR BEING CONSIDERED LAWFUL COMBATANTS (OR POWS)
UNDER ARTICLE FOUR OF THE THIRD GENEVA CONVENTION OF 1949.
AL QAIDA IS A TERRORIST ORGANIZATION AND CANNOT BE CONSIDERED
A STATE PARTY TO THE GENEVA CONVENTIONS. MOREOVER, ITS
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.

8. ENEMY COMBATANTS ARE NOT ENTITLED TO BE RELEASED 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. THERE IS BROAD AUTHORITY UNDER
THE LAWS AND CUSTOMS OF WAR TO DETAIN ENEMY COMBATANTS,
WITHOUT ANY REQUIREMENT TO BRING CRIMINAL CHARGES WHILE
HOSTILITIES LAST. 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 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 DETAINEE BE CHARGED
WITH A CRIMINAL OFFENSE, HE WOULD HAVE THE RIGHT TO COUNSEL
AND APPLICABLE FUNDAMENTAL PROCEDURAL SAFEGUARDS. NO

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DETAINEE HAS BEEN CHARGED WITH A CRIMINAL OFFENSE.

9. 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, BUT TERRORISTS WHO VIOLATE THE LAW OF
ARMED CONFLICT MUST BE 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.

10.
HUMANE TREATMENT OF DETAINEES. THE UNITED STATES TREATS
ENEMY COMBATANTS AT GUANTANAMO HUMANELY AND, TO THE EXTENT
APPROPRIATE AND CONSISTENT WITH MILITARY NECESSITY, IN A
MANNER CONSISTENT WITH THE PRINCIPLES OF THE THIRD GENEVA
CONVENTION. DETAINEES GET EXCELLENT MEDICAL AND DENTAL CARE
ON A PAR WITH THAT PROVIDED TO U.S. ARMED FORCES. SINCE
DETENTION OPERATIONS BEGAN WE HAVE TREATED WOUNDS SUSTAINED
IN BATTLE AND RELIEVED PAIN AND SUFFERING THAT PRE-DATES
DETENTION. THE UNITED STATES IS -PROVIDING DETAINEES WITH
APPROPRIATE SHELTER; CLOTHING AND SHOES; SHOWERS, SOAP, AND
TOILET ARTICLES; AND THREE CULTURALLY APPROPRIATE MEALS A
DAY. DETAINEES ARE PROVIDED THE MEANS TO SEND AND RECEIVE
MAIL, SUBJECT TO SECURITY SCREENING. THEY ARE GIVEN THE
OPPORTUNITY TO WORSHIP FREELY.

11.
THE INTERNATIONAL COMMITTEE OF THE RED CROSS HAS VISITED
AND WILL CONTINUE TO BE ABLE TO VISIT THE DETAINEES.

12.
THE UNITED STATES SECRETARY OF DEFENSE HAS STATED HIS
INTENTION NOT TO HOLD ANYONE LONGER THAN NECESSARY. TO THAT
END, THE DEPARTMENT OF DEFENSE HAS PROCEDURES IN PLACE TO
ASSESS, SYSTEMATICALLY AND PERIODICALLY, THE GUANTANAMO
DETAINEE POPULATION AND DETERMINE, AMONG OTHER THINGS, IF
CONTINUED DETENTION IS NECESSARY FOR EACH INDIVIDUAL. THE
DEPARTMENT OF DEFENSE HAS ALREADY APPROVED THE RELEASE OF A
NUMBER OF DETAINEES AT GUANTANAMO AND ANTICIPATES THAT THERE
WILL BE ADDITIONAL DETAINEE RELEASES IN THE FUTURE. PRIOR TO
ANY RELEASE, CONSISTENT WITH MILITARY REQUIREMENTS, THE

DEPARTMENT OF DEFENSE GENERALLY NOTIFIES THE RECEIVING STATE
AND THE ICRC IN ORDER TO ENABLE THEM TO MAKE NECESSARY
ARRANGEMENTS PRIOR TO THE DETAINEES, DEPARTURE FROM
GUANTANAMO.

13. FOR THE REASONS DISCUSSED ABOVE, THE UNITED STATES
GOVERNMENT RESPECTFULLY DISAGREES WITH THE CONCLUSIONS OF THE
WORKING GROUP AND REQUESTS THAT THIS RESPONSE, TOGETHER WITH
ITS LETTER OF DECEMBER 17, 2002, BE PUBLISHED BY THE
COMMISSION.

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68