DOS Fax from Nichole Sobotha to Frank Geoffrey, JoAnn Dolan and Joshua L. Dorosin re: Letter from Office for Democratic Institutions and Human Rights

UNCLASSIFIED

07/14%03 19:07 FAX 31339 74 3255P

POL SECTION

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Mission of the United States of America to the OSCE
Obersteinergasse 11/1
. 1190 Vienna, Austria
Tel (43-1) 31-339-324 Fax (43-1) 31339-3255

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UNITED STATES DEPARTMENT OF STATE
DOS-001337
-REVIEW AUTHORITY: CHARLES E LAIIIGUERA UNCLASSIFIED . DATE/CASE ID: 03 DEC 2004 200303827

UNCLASSIFIED

. 07/14/.03 19:07 FAX 31339 74 3255
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9. JUL. 2003 17:11 OSCE ODIHR NO. 842 P. 1,
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Office for Democratic Institutions and Human Rights
The Director

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Ha Ambassador
Stephan M. Minikes
Head of the US Mission to the OSCE
Vienna

Warsaw, 08 July 2003 Dear
I write to you with a view to clarifying a number of open questions, which have arisen following an apparent decision by US authorities to try several oases in front of the Military Commission. In particular these questions relate to the Military Commission Instruction on Crimes and Elements for trio/ by Military Commission issued on 30 April 2003. In this respect, I would also like to reiterate OD]HR's earlier observations, raised by my predecessor in a letter 22 November 2001, concerning the compliance of the Military Order dated 13 November 2001 with international fair trial standards and principles of non-discrimination, which I hereby enclose.
At the outset I would like to express the continuing sympathy of the ODI P.. with the United States in respect of the tragic events of 11 September 2001. We recognize the need for extraordinary measures to ensure that effective action can be taken to protect national security and the interests of citizens. At the same time it must be emphasized that the OSCE has consistently maintained that it is crucial that the legitimate right of participating States to combat terrorism be exercised in full accordance with international law including international human rights law and OSCE commitments.
These commitments (elaborated e.g. in the 1990 Copenhagen Document) guarantee the right to a fair trial and due process to all individuals as does the International Covenant on Civil and Political Rights (ICCPR), to which the U.S. is party.
In particular, we would be interested in receiving further information about constraints on the right of the defendant to choose his/her legal counsel and the constraints on the preparation of his/her defense, as well as restrictions on the availability of potentially exculpatory evidence to defense counsel and the right of the defendant and his/her counsel to be present at trial. These issues have been brought to our attention recently by a number of non-governmental organizations and have been commented on also by the UN Special Rapporteur on the Independence of Judges and Lawyers recently.
I would also be grateful to receive more information on the definition of "armed conflict' under Military Commission Instruction No.2 to include attempted crimes, in
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UNITED STATES DEPARTMENT OF STATE 'REVIEW AUTHORITY; CHARLES :E LA El IGUERA UNCLASSIFIED DOS-001338 .DA'T'E/CASE ID: 03 DEC:2004 • 200303827 ' • .

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. 9. JUL. 2003 17:11 OSCE 001HR NO. 842 P. 2
particular with regard to the definition contained' in Article 2 of the Geneva Conventions in relation to imeroal armed conflicts.
Allow me also to underline that all OSCE participating States have committed themselves to ensuring the utmost transparency of their judicial proceedings including the explicit commitment to allow the presence of observers at proceedings before courts. The Copenhagen Document 1990, paragraph 12, states:
The participating States, wishing to ensure greater transparency in the
implementation of commitments undertaken in the Vienna Concluding
Document under the heading of the human dimension of the CSCE,
decide to accept as a confidence building measure the presence of
obserVers sent by participating States and representatives of non­
governmental organizations and other interested persons at proceedings
before courts as provided for in national legislation and international law; it is understood that proceedings may only be held in camera in the circumstances prescribed by law and consistent with obligations under international law and international commitments.
In the view of the above commitments, I would be grateful if you could provide the . °DERR. with further information on the trials to be held before the Military Commission as well as on the' more specific questions I have raised concerning the legal framework in which they are to be held.
I look forward to your response and remairi,
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