DOS Cable re: Response to Opinion 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

D8EA318 0516142 /38
P R 051603Z AUG 03
FM SECSTATE WASHDC
TOD

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: ARCHIE M BOLSTER DATE/CASE ID: 04 NOV 2004 200303827

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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 UNITED

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 THED

. .(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 UNITED 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 UNITED 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 UNITED 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.D

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 AFGHANISTAN 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 UNITED 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 UNITED 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 UNITED 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 DETAINEES 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 DETAINEES' 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 DETAINEES DO
NOT QUALIFY FOR POW STATUS: SEE WHITE HOUSE FACT SHEET,
STATUS OF DETAINEES 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
REVIEW AND IN CONSULTATION WITH HIS MOST SENIOR ADVISERS.

THE UNITED STATES STATED PUBLICLY THAT:

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TALIBAN
DETAINEES ARE NOT ENTITLED TO POW STATUS. . .D

UNDER ARTICLE 4 OF THE GENEVA CONVENTION, .D

THE TALIBAN
HAVE NOT EFFECTIVELY DISTINGUISHED THEMSELVES FROM THE
CIVILIAN POPULATION OF AFGHANISTAN. 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.).D

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," DETAINEES "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

UNITED 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 DETAINEES ARE

UNLAWFUL COMBATANTS SEE, E.G., SECRETARY RUMSFELD'S STATEMENT

THAT THE DETAINEES "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 UNITED 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

DETAINEE 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 UNITED STATES AND OTHER

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COUNTRIES.

TREATMENT OF DETAINEES. NOTWITHSTANDING THE FACT THAT THE
DETAINEES 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." SEE WHITE
HOUSE FACT SHEET, FEB. 7, 2002, AT 1-2.

THE DETAINEES ARE BEING PROVIDED SHELTER, NEW CLOTHING AND
SHOES, SLEEPING PADS AND BLANKETS AND THREE
CULTURALLY-SENSITIVE MEALS A DAY. ID . INDEED, THE DETAINEES
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 DETAINEES," 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
DETAINEES SUFFERING FROM DEPRESSION OR OTHER PSYCHOLOGICAL
DIFFICULTIES OR DISEASES RECEIVE INDIVIDUALIZED CARE AND .
SUPERVISION. ALTHOUGH THERE HAVE BEEN SOME SUICIDE ATTEMPTS
BY DETAINEES, 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 DETAINEES 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 DETAINEES ARE NOT BEING HELD INCOMMUNICADO.

REPRESENTATIVES OF THE INTERNATIONAL COMMITTEE OF THE RED

CROSS ("ICRC") HAVE VISITED DETAINEES 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/ 5C867C1D85AA2BE 541256C94006000EE.

(VISITED JULY 7, 2003).

DETAINEES 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

DETAINEES FIRST BEGAN TO ARRIVE) TO JULY 2002, THE UNITED

STATES MILITARY DELIVERED OVER 1,600 PIECES OF MAIL SENT OUT

BY DETAINEES AND DELIVERED OVER 300 PIECES OF MAIL SENT TO

DETAINEES, 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 DETAINEES 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 DETAINEES TO AFTERNOON PRAYER AND HAS SPOKEN WITH SOME OF
THE DETAINEES). 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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