LEGAL ADVISER BELLINGER'S VISIT TO GERMANY TO

C O N F I D E N T I A L SECTION 01 OF 04 BERLIN 003098

SIPDIS

SIPDIS

E.O. 12958: DECL: 10/23/2016
TAGS: GM KJUS PREL PTER
SUBJECT: LEGAL ADVISER BELLINGER'S VISIT TO GERMANY TO
DISCUSS LEGAL ASPECTS OF THE WAR ON TERROR

Classified By: MINISTER-COUNSELOR FOR ECONOMIC AFFAIRS ROBERT F. CEKUTA
FOR REASONS 1.4 (b) AND (d)

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Summary
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1. (C) Legal Adviser Bellinger used the opportunity of a
U.S.-German conference on international legal issues relating
to the Global War on Terror to address widespread
German/European misperceptions about U.S. policies and
practices. Bellinger and other senior USG participants
underscored the U.S. commitment to comply with our laws and
international obligations in the conduct of counterterrorism
operations and treatment of detainees. Bellinger pointed out
that the U.S. is in a state of armed conflict with Al Qaeda,
even though Al Qaeda is a non-state actor. The use of
military force against Al Qaeda worldwide as well as the
detention of Al Qaeda fighters seized on foreign battlefields
is therefore justified. U.S. participants also elaborated on
the provisions of the
Military Commissions Act of 2006, noting that the military
commissions established by the act contain safeguards to
ensure fairness and due process. In a side-bar meeting, a
leading member of the German parliamentary committee
investigating issues relating to U.S.-German counterterrorism
cooperation agreed with the Legal Adviser that Germany and
the U.S. cannot afford to disagree on the responses to
terrorism. The German parliamentarian nonetheless cited
"unresolved cases from the past" (Kurnaz and El Masri) as
impediments to cooperation. Bellinger also spoke at the
American Academy in Berlin on the legal framework for the war
on terror.


2. (SBU) German conference participants accepted the USG
position that a state of armed conflict had existed between
the U.S. and Al Qaeda in the immediate aftermath of the 9/11
terrorist attacks. Most German participants, however, did
not agree that a state of armed conflict still exists.
German participants also expressed a clear preference for
treating all terrorist detainees according to traditional
criminal law procedures. End Summary.


3. (U) On October 12-13, 2006 a senior USG interagency
delegation led by State Department Legal Adviser John
Bellinger participated in a colloquium in Berlin entitled
"Legal Issues in the Fight against Terrorism." The
conference, which was jointly hosted by the German MFA and
the Max Planck Institute for Comparative and International
Law, focused on the legal framework for international
cooperation in counterterrorism efforts and the
interpretations of the application of international legal
principles and the Geneva Conventions to terrorist fighters.
Bellinger was joined by a senior interagency team, including
DNI General Counsel Benjamin Powell, DoD Principal Deputy
General Counsel Daniel Dell'Orto, DOJ Assistant Attorney
General Kenneth Wainstein, DOJ Deputy Assistant Attorney
General Bruce Swartz, EUR PDAS Kurt Volker and S/P Deputy
Director Matthew Waxman. German participants included
Foreign Minister Frank-Walter Steinmeier, MFA Legal Adviser
Georg Witschel, and Interior Ministry State Secretary August
Hanning. A number of U.S. and German academics and other
government officials also participated. Bellinger also met
separately with Thomas Oppermann, the Social Democratic
spokesman on the German Parliamentary Investigative Committee
currently examining
issues related to U.S.-German cooperation on counterterrorism
(see para 16).

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Misperceptions about U.S. Counterterrorism Policies
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4. (SBU) The Legal Adviser welcomed the opportunity to
engage in a dialogue on the international legal aspects of
the global war on terror, noting that there are
misconceptions about the USG's policies and their compliance
with international legal norms. These misunderstandings have
led to mutual suspicions that undermine our common efforts to
combat international terrorism. Bellinger cited the upcoming
assumption by Germany of the EU and G-8 presidencies as an
opportunity for the German Government to demonstrate
leadership on counterterrorism issues.


5. (SBU) Mr. Bellinger outlined the USG's views of the

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international legal framework for our counterterrorism
policies, in particular the detention of unlawful enemy
combatants. He began by noting that the pre-9/11
international legal framework was not well-adapted to deal
with external terrorist threats, such as that posed by Al
Qaeda internationally. Likewise, the U.S. view is that the
Geneva Conventions (with the exception of the minimum
standards set forth in Common Article Three) do not apply to
our conflict with Al Qaeda.


6. (SBU) Bellinger also noted the USG view that it is in a
legal state of armed conflict with Al Qaeda, even though Al
Qaeda is a non-state actor. In the U.S. view, this justifies
the use of military force against Al Qaeda where necessary,
and the detention of Al Qaeda fighters seized on foreign
battlefields, such as in Afghanistan.


7. (SBU) Deputy Assistant Attorney General Swartz pointed to
the noteworthy developments in international legal mechanisms
to combat terrorism, including the progress made toward
concluding mutual legal assistance agreements between the
U.S. and Germany, as well as with the EU multilaterally. At
the same time he lamented misunderstandings about U.S.
policies and procedures -- such as the extent to which U.S.
law contains effective data-privacy provisions -- that hamper
our effective
cooperation.

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Detainee Procedures and Treatment
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8. (SBU) One of the misperceptions Bellinger and the other
USG participants sought to rectify was the widespread
European view that Guantanamo detainees are not afforded
basic legal rights. The Legal Adviser emphasized that our
treatment of detainees is fully consistent with applicable
U.S. law as well as with our international obligations. He
outlined the mechanisms that allow detainees to appeal their
continued detention, including Combatant Status Review
Tribunals -- whose decisions are reviewable by U.S. courts --
and Administrative Review Boards.


9. (SBU) Bellinger, Dell'Orto, and Powell also elaborated on
the provisions of the Military Commissions Act of 2006 (the
"MCA"),noting that the military commissions enabled by the
legislation contain numerous safeguards to ensure fairness
and due process. Secret evidence, for example, will not be
allowed -- defendants will have access to all evidence
presented against them. Moreover, the Act mandates an
absolute ban on evidence obtained through unlawful coercive
means. Moreover, the MCA ensures the independence of judges
and provides for an ample appellate review process.

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Unlawful Enemy Combatants
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10. (SBU) The majority of the German participants took issue
with the concept of "unlawful enemy combatant." Some, such
as Judge Wolfgang Schomburg of the International Criminal
Tribunal for the Former Yugoslavia, argued that international
law recognizes only two possible classes of detainees:
prisoners of war and those prosecuted through traditional
criminal justice mechanisms. The prevailing view among the
German participants was that terrorist fighters seized on a
foreign battlefield in the context of an international armed
conflict must either be treated as prisoners of war or as
civilians, to Fourth Geneva Convention protections apply.


11. (SBU) Legal Adviser Bellinger reminded the conference
participants that the USG did not create the concept of
"unlawful enemy combatants." The suggestion that the USG was
"making up the rules as it went along" is simply not accurate.

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State of War against Al Qaeda
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12. (SBU) Many German participants also questioned whether
it is appropriate to maintain that a state of armed conflict
continues to exist between the U.S. and Al Qaeda. While most
conceded that the initial military response to the 9/11
attacks -- including military operations in Afghanistan --
had been justified, there was less agreement about whether a

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state of armed conflict exists today. Professor Ruediger
Wolfrum of the Max Planck Institute posited that, according
to customary international legal principles, detention of
prisoners must end when hostilities end. The question, he
added, is when -- in the case of the global war on terror --
hostilities have ended. MFA Legal Adviser Witschel also
argued that the state of armed conflict cannot remain
open-ended.

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German Preference for Criminal Prosecution of Terrorists
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13. (SBU) In light of the prevailing view among German
participants that a state of armed conflict no longer exists,
most German speakers argued that terrorist detainees should
be prosecuted using traditional criminal law principles and
procedures. There was nonetheless agreement among the German
participants that the adoption of the MCA, with its extensive
procedural safeguards, is a considerable improvement compared
to the pre-existing legal situation.

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American Academy in Berlin
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14. Before the bilateral conference, Bellinger delivered a
speech in a forum sponsored by the American Academy in
Berlin. Since its opening in 1998, the American Academy has
provided a forum for numerous high-level sympsia on a broad
range of transatlantic issues. Bellinger spoke about issues
related to the legal framework for the war on terror, and
took a number of questions related to the new Military
Commissions Act. A number of international journalists
attended.

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Holocaust Foundation Case
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15. In a separate conversation with Bellinger, Steinmeier
and Witschel asked the United States to consider supporting
an appeal by the Germans to the Supreme Court in the German
Holocaust Foundation case. Steinmeier indicated that he
intended to call the Secretary on this issue. Bellinger
informed Steinmeier that it appeared unlikely that the
Supreme Court would grant certiorari in cases like this, but
that the United States would look at whether there are ways
to be helpful.

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Meeting with Bundestag Member Thomas Oppermann
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16. (C) Social Democrat (SPD) Bundestag Member Thomas
Oppermann told the Legal Adviser there are two goals: keeping
terrorists at bay but also obtaining information from them.
In the future, Germany and the U.S. cannot afford to disagree
on the responses to terrorism, but meanwhile there remain
unresolved cases from the past. Oppermann, who sits on the
Bundestag's BND (Intelligence Service) Investigation
Committee, referred to the cases of Khaled Al Masri, who
claims he was taken by U.S. officials from Macedonia to
Afghanistan, and Murmat Kurnaz, recently released from
Guantanamo. Oppermann said the Investigation Committee does
not know what to do but that opposition political parties and
the press will put pressure on the CDU/CSU-SPD government
coalition to reach some resolution. Oppermann said Al Masri
was in the wrong place at the wrong time and both Kurnaz and
Al Masri are "innocent in a way"
and were "captured by mistake" although both probably
sympathize with extremists. Oppermann told Bellinger that
former Ambassador Coats had told former Interior Minister
Schily that "it was a mistake to take Al Masri." Oppermann
said Ambassador Coats had told Schily that Al Masri had
received money upon his release; but Al Masri had claimed he
had only received back money that had been confiscated.
Oppermann said it would be helpful if the USG could confirm
that Al Masri had been paid; this could support a German
government resolution that compensation had taken place.
Oppermann suggested that Germany might send the USG a
diplomatic note on the matter. Oppermann's staff member
Christian Heyer said Germany might in the future seek
assurances before granting flight clearances that US aircraft
are not engaged in rendition or contain any detainees.

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17. (U) This message was cleared by Legal Adviser Bellinger
subsequent to his departure from Berlin.
TIMKEN JR