Statement by Todd Huizinga, First Secretary at the U.S. Mission to the EU, to European Parliament re: Public Hearing on Guantanamo Bay Detainees

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Statement by Political Officer Todd Huizinga

Public Hearing on Guantanamo Bay Detainees

September 30, 2003

European Parliament

I would like to thank the European Parliament, and
specifically Baroness Ludford, for inviting me here today.
I appreciate the opportunity to explain U.S. policy on
Guantanamo. My hope would be that, at the very least,
misunderstandings about Guantanamo could be cleared up and
the way opened for those in Europe who do not agree with
our policy to better understand the U.S. perspective on the
situation.

The first thing that one must understand about the U.S.
perspective on Guantanamo is that the U.S. is at war on
terrorism. The attacks of September 11, 2001 have been the
most murderous of a long series of terrorist attacks
organized and carried out by the al Qaida organization.
Today, terrorists continue to fight coalition forces in
Afghanistan and Iraq, to conduct assaults such as those in
Bali and elsewhere, and to plan attacks to inflict civilian
casualties on an unprecedented scale.

In this war the United States is confronted by the question
of what should be done with enemy combatants captured
during hostilities. The United States undertook a careful,
extensive review of the complex body of law governing armed
conflict to ascertain an answer.

Let me begin my review of the answers to some of the most

frequent questions about the Guantanamo detainees with a
reminder of the fundamental reason why we are holding them

in Guantanamo: we are at war. The capture and detention •
of enemy combatants, to remove them from the fighting and
ensure the security of our own military forces, is entirely

consistent with the law of armed conflict. It is a
universally recognized principle under the law of armed
conflict that enemy combatants engaged in war may be
captured and detained for the duration of the conflict.
This has been 'the practice of the U.S. and its allies in
every war they have fought. The detainees at Guantanamo
are, in fact, enemy combatants. At the time of capture,
they were bearing arms against us or otherwise acting in
support of hostile armed forces engaged in an on-going
armed conflict.

UNITED STATES DEPARTMENT OF STATE
REVIEW AUTHORITY: FRANK E SCHM ELZER
DATE/CASE ID: 16 DEC 2004 200303827 DOS-001200

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Under the terms of the Third Geneva Convention of 1949, the
Taliban and al Qaida are not entitled to Prisoner-of-War
status. Specifically, they do not qualify as lawful
combatants (or POWs) under Article 4 of the Third Geneva
Convention of 1949 because they fail to satisfy the
conditions of that Article. They did not effectively
distinguish themselves from the civilian population, for
example, nor did they conduct their military operations in
accordance with the law and customs of war. Nevertheless,
the United States has treated and will continue to treat
the enemy combatants at Guantanamo humanely and in a manner
consistent with the principles of the Third Geneva
Convention of 1949.

On the r±ght to a fair trial, the title of this hearing: In
this war as in any war, captured enemy combatants have no
legal right to counsel or right of access to courts
for the purpose of challenging their detention while
hostilities are ongoing. The capture and continued
detention of enemy combatants, in order to remove them from
hostilities and save an untold number of innocent lives, is
consistent with the law of armed conflict and critical to
winning this war. If a detainee should be subsequently
charged with a crime, he would have access to counsel and
would receive a fair trial.

The conference participants here today have discussed the
possibility that the Guantanamo detainees will be brought
to trial outside the normal criminal law system. The United
States has set up procedures for military commissions to
deal with these cases. Trial by military commission is a
common and well-established practice recognited by
international law. The U.S. has used military commissions
since the Revolutionary War, including in the Mexican-
American War, the U.S. Civil War, and the Second World War.
Europeans also used military commissions extensively in the
19th and :20th centuries, including in the First and Second
World Wars. The Third Geneva Convention of 1949 expressly
creates a presumption that prisoners of war "shall be tried
only by a military court." U.S. military commissions, if
convened, would be statutorily and constitutionally
authorized.

Some have questioned whether these military commissions
will uphold the right to a fair trial. The unequivocal
answer is yes. As it seems that the extensive safeguards we

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have taken to protect the right to a fair trial in the case
of military commissions are not well known, let me outline
them for you.

The military commissions will be impartial. They will
provide full and fair trials. Any guilty findings in a
military commission will follow the established standard of
all United States courts - guilty beyond a reasonable
doubt.

Additionally there are other legal protections for the
accused, including:

-- The presumption of innocence;

-- Representation by defense counsel, at no cost to the

accused;

-- The death penalty can only be imposed by 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 interests);

-- At all times, including in any closed proceedings, the
accused will be represented by counsel;

-- 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; and,

-- 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.

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The use of military commissions to try the detainees at
Guantanamo would be consistent with the procedural

safeguards found in the Geneva Conventions of 1949 and
Article 75 of Protocol 1 of 1977 to the Geneva Conventions,

to which, incidentally, the United States is not a party.

The United States does not intend to hold the detainees
indefinitely. Ultimately, they will be prosecuted by the
United States, returned to their own country for
prosecution or detention, or released if they no longer
pose a threat, as we have done in the past. The process of
identifying which category each detainee belongs to take
careful scrutiny and time. Our foremost objective is and
will remain to ensure that the enemy combatants who pose
ongoing threat are not released only to strike again.

Thank you.

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