SECSTATE LEGAL ADVISER ON WAR ON TERROR

C O N F I D E N T I A L SECTION 01 OF 05 BRUSSELS 000524

SIPDIS

DOD FOR HAYNES
NSC FOR WIEGMANN

E.O. 12958: DECL: 02/10/2016
TAGS: PGOV PTER PHUM EUN USEU BRUSSELS
SUBJECT: SECSTATE LEGAL ADVISER ON WAR ON TERROR

Classified By: USEU POLOFF TODD HUIZINGA, FOR REASONS 1.4 (B) AND (D)


1. (C) SUMMARY: Secstate Legal Adviser John Bellinger met
with a comprehensive array of EU interlocutors in Brussels on
February 7-8 to discuss U.S. views on the legal framework for
the war on terrorism. He stressed that U.S. decisions on how
to deal with an unprecedented global terrorist threat had
been made after serious consideration of all legal and
political options, and that European officials must publicly
underline U.S.-EU solidarity in the fight against terror. On
Guantanamo detainees and Al Qaeda, Bellinger argued that the
U.S. was and is acting in the context of a new form of
international armed conflict, and that therefore, while the
Geneva Conventions do not fit this new situation well, the
rules of war provide a more appropriate framework than
domestic criminal law. He discussed European concerns about
the treatment of detainees. Bellinger also argued that
rendition is a vital tool against terror. Finally, he urged
the EU not to support a Cuban resolution at the UN Human
Rights Commission on Guantanamo. The EU response to the
visit was for the most part extremely positive, with the
Legal Adviser of the Austrian EU presidency underlining that
"the fight against terror is our (shared) struggle."
Europeans, however, remain concerned about protection issues.
END SUMMARY.

--------------
COMPREHENSIVE SET OF MEETINGS
--------------


2. (SBU) On February 7-8, Secretary of State Legal Adviser
John Bellinger met with a wide range of EU and member-state
officials, including Robert Cooper, Director-General for
Common Foreign and Security Policy at the EU Council
Secretariat; Jean-Claude Piris, the Director-General of the

SIPDIS
Legal Services of the EU Council Secretariat; Michel Petite,
Director-General of the Legal Services of the European
Commission; Jim Cloos, EU Council Secretariat Director for
Transatlantic Relations, Human Rights and UN; and Gijs de
Vries, EU Coordinator for the Fight Against Terrorism. The
visit was capped by a two-and-a-half-hour discussion with the
EU Legal Services Working Group (COJUR),comprising the MFA
Legal Advisers of the 25 EU member states, plus Commission
and Council Legal Services and Romanian and Bulgarian
observers.

--------------
BASIC CONTEXT: UNPRECEDENTED GLOBAL CONFLICT
--------------


3. (SBU) Bellinger stressed that the situation in which the
U.S. and its allies find themselves is unprecedented -- faced
with thousands of Al Qaeda and associated terrorists around
the globe whose goal is to inflict mass casualties on
innocent civilians by any means possible. The legal
frameworks that are readily available, the Geneva Conventions
or domestic criminal law, do not fit this unprecedented
situation well. In this context, the USG has thought long
and hard about how best to prosecute the conflict thrust upon
it in a way that is politically and legally legitimate, and
the answer to the question of what the rules should be that
govern the war on terror is not an easy one.

--------------
INTERNATIONAL ARMED CONFLICT WITH AL QAEDA
--------------


4. (SBU) It is clear, Bellinger said, that the military
response against the Taliban and Al Qaeda in Afghanistan
following the September 11 attacks, an action covered by UNSC
Resolution 1373, is properly categorized as an international
armed conflict. The U.S. believes that the continuing
struggle against Al Qaeda remains a legal state of
international armed conflict. Al Qaeda has attacked, and
continues to attack, our ships, embassies, people, and
territory. Its leaders have explicitly declared war on us.
Therefore, the proper legal framework cannot be that of
domestic criminal law. Al Qaeda is not the same as domestic
European terrorist groups like the IRA or RAF because it is
global and operates outside the U.S. and across borders. It
is in effect a new manifestation on the battlefield, that of
"armies of terrorists." Conceptually, this is a military
conflict, not a police action to round up criminals. Most
detainees have been picked up by our armed forces on foreign
battlefields. Practically, these cases would be virtually
impossible for domestic courts to handle, since there are
rarely witnesses, statements, or forensic or documentary
evidence that would meet domestic standards. Accordingly,
the most appropriate framework would be the rules of
international armed conflict.

5. (SBU) It is important to note, Bellinger emphasized, the
distinction between the President's political statement that
we are part of a "war on terror" and the legal status of the
international armed conflict with Al Qaeda. When the
President speaks of the War on Terror after 9/11, he is
taking the position that we must all declare our opposition
to terrorism of any kind. The U.S. also believes, however,
that it has been and continues to be in a legal state of
armed conflict specifically with Al Qaeda.

--------------
DETAINEES COVERED BY GENEVA CONVENTIONS?
--------------


6. (SBU) Bellinger stressed that the current rules of
international armed conflict do not fit this unprecedented
situation very well. After 9/11, the U.S. carefully
considered whether and to what extent the Geneva Conventions
would apply. Article 2 of the Third Geneva Convention
declares that these conventions apply only between High
Contracting Parties. While Afghanistan was a High
Contracting Party, Al Qaeda is certainly not. In addition,
Article 4 dictates that a POW must be a soldier in a national
army, wear a uniform with marked insignia, carry arms openly,
and follow the laws and customs of war. Because the Taliban
did not meet any of these conditions, they are not covered as
POWs under the Geneva Conventions. Furthermore, Al Qaeda
members could not be considered "protected persons" under the
Fourth Geneva Convention. The Fourth Convention defines
"protected persons" as civilians caught up in a conflict. Al
Qaeda was not caught up in, but rather initiated, the
conflict. Bellinger noted that privileges are given to POWs
under the Geneva Conventions for following the laws of war,
which are intended to protect civilians from harm. Al Qaeda
and the Taliban completely disregard the rules of war and
intentionally target civilians.


7. (SBU) If not covered as POWs or protected persons, what,
then, is the status of Al Qaeda and Taliban combatants?
Bellinger asserted that there is a clear gap between these
terms, and that the gap is intentional. Article 5 of the
Fourth Geneva Convention, he notes, specifies that "spies and
saboteurs" are not granted rights and privileges under the
Geneva Conventions. This designation, "spies and saboteurs,"
is the designation in the Geneva Conventions that most
closely describes Al Qaeda terrorists. Thus, though they are
combatants, they are best defined as unlawful combatants who
do not have a right to any protections under the Geneva
Conventions. Bellinger also explained that the term
&unlawful combatant8 is not a new term but rather has been
used for many years in treatises and military manuals to
describe those who engage in combat, but in an unlawful
manner.


8. (SBU) Bellinger added that the U.S. response to Al Qaeda
attacks does not make members of Al Qaeda legitimate
combatants under the Geneva Conventions. Al Qaeda does not
follow the laws of war, and the fact that the U.S. is
fighting back in no way renders unlawful combatants
legitimate under the very laws they do not respect.

--------------
STANDARDS FOR TREATMENT OF DETAINEES
--------------


9. (SBU) If the protections of the Geneva Conventions do not
apply, Bellinger said, there is the question of what rules
the U.S. is applying to detainees. Accordingly, to clarify
U.S. policy towards detainees President Bush issued a public
directive on February 7, 2002, titled "Humane Treatment of Al
Qaeda and Taliban Detainees." This directive orders that all
detainees under the control of the Armed Forces be treated
humanely and, to the extent appropriate and consistent with
military necessity, consistent with the Geneva Conventions.
In addition, the U.S. remains bound by, and committed to, the
United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment. This includes
Article 4, which prohibits torture, and Article 3, which
prohibits transfers of persons to countries where there is
substantial likelihood that they will be tortured. Article 3
is applied on a case-by-case basis. A country's poor record
on human rights will raise a red flag, but not necessarily
entail a prohibition against transferring a detainee to that
country. Instead, in each individual case the U.S. seeks
assurances that the person involved will not be tortured, and
a transfer is only allowed if those assurances are deemed
credible. Regarding Article 16 of the Convention Against
Torture, which prohibits cruel, inhuman, and degrading
treatment, the U.S. Senate expressed reservations during
ratification in 1995 because there was no definition of
"cruel, inhuman, and degrading treatment" in the Convention.
The Senate's reservation dictated that the U.S. would tie
this provision to the prohibitions of cruel and unusual
treatment in the Fifth, Eighth and Fourteenth Amendments to
the U.S. Constitution. Because these constitutional
amendments apply only to U.S. citizens in territories under
U.S. jurisdiction, the Department of Justice interpreted the
Senate reservation to mean that Article 16 applies only
inside the United States. Nonetheless, as Secretary Rice
said in December, as a matter of policy the U.S will treat
detainees in a manner consistent with these standards.


10. (SBU) Bellinger described recent U.S. legislation further
codifying the standards applied towards detainees. The
Detainee Treatment Act of 2005, he explained, allows the
Armed Forces to use interrogation techniques listed in the
U.S. Army Field Manual. In addition, the McCain Amendment
codifies the prohibition of cruel, unusual and inhuman
treatment, as interpreted by the Senate in its reservation
concerning Article 16 of the Convention Against Torture, of
any detainee regardless of nationality or of where he is
being held. Also, the Graham-Levin Amendment allows
detainees to appeal the results of military commissions or
Combatant Status Review Tribunals (see para 12) to federal
courts, while limiting detainees' ability to file frivolous
habeas corpus suits in U.S. courts. Bellinger also explained
the President's signing statement, issued with his signature
of the McCain Amendment. Bellinger said the statement is in
keeping with customary presidential practice and does not
indicate any intention to ignore the law. Rather, the
statement explains how the President intends to interpret the
law consistent with the powers conferred upon him by the
Constitution. Bellinger pointed further to the public
statement released by the White House at the same time, which
demonstrates the President's commitment to upholding the
McCain Amendment.

--------------
REGULAR REVIEW OF DETAINEE CASES
--------------


11. (SBU) Bellinger then raised some of the more troubling
questions. For example, according to the rules of
international armed conflict, a nation may hold detainees
until the end of the conflict, when they no longer pose a
threat. How long, however, will the war against Al Qaeda
last? Can detainees be held indefinitely? What if some are
innocent? The U.S. recognizes that these are troubling
questions, but does not believe such questions could justify
a decision not to detain people who represent a danger to
American citizens. To deal with this problem at Guantanamo,
the U.S. has created an annual Administrative Review Board
process to determine, for each individual detainee, whether
that detainee should still be considered as in a state of war
with the U.S. This process has resulted in the release of
180 detainees and the transfer to other countries of 76,
leaving approximately 500 detainees left in Guantanamo. Of
those released, at least a dozen people are known to have
gone back to fighting against the United States.


12. (SBU) The question has also been raised as to the
possible innocence of Guantanamo detainees. As the Geneva
Conventions dictate, if there is any doubt about whether or
not an individual is a POW, there must be an Article 5
tribunal. Since Taliban and Al Qaeda fighters clearly did
not meet the conditions necessary to be granted POW status,
the President decided that Article 5 tribunals were not
necessary. In 2004, however, Combatant Status Review
Tribunals (CSRTs) were mandated by the Supreme Court. The
CSRT process goes beyond the brief tribunals required by
Article 5, providing each individual detainee with a full
review. These CSRTs have resulted in the determination that
there was not enough information upon which to hold a further
38 detainees.

--------------
RENDITIONS
--------------


13. (SBU) Bellinger pointed out that renditions have been
used for decades to detain terrorists and criminals who
cannot be extradited or otherwise detained or brought to
justice. He stressed that the United States does not conduct
"extraordinary" renditions for the purpose of torturing
suspects or transferring them to countries in which they will
be tortured. There are many circumstances in which a
rendition might be the best option. In all cases, renditions
are conducted in a manner consistent with international
obligations and the sovereignty of other states. The U.S.
would expect that states cooperating in rendition activities
would also do so in a manner consistent with their domestic
law.


14. (SBU) Bellinger sought to dispel allegations that
hundreds of people had been kidnapped from European streets.
He pointed out that there is no evidence for such
allegations, and that the United States respects the
sovereignty of European governments. On renditions, CIA
flights, and other intelligence operations, the U.S. will not
confirm or deny specific allegations, in order not to
compromise the confidentiality of intelligence operations as
such. Bellinger noted that denying five out of six such
allegations would in effect confirm the sixth. The U.S.
trusts that European governments will continue to follow the
same policy.

--------------
GUANTANAMO AT UN HUMAN RIGHTS COMMISSION
--------------


15. (C) Some EU interlocutors expressed concern that some EU
member states would support a Cuban resolution against U.S.
actions in Guantanamo at the upcoming UN Human Rights
Commission, that might be modeled after a European Parliament
resolution on the subject. Bellinger warned that European
support for a Guanatanamo resolution would be a serious
setback to U.S.-EU cooperation against terrorism, and give
the unacceptable impression that the EU was aligned with Cuba
against the U.S. EU Council Director-General for Common
Foreign and Security Policy, Robert Cooper, said some EU
member states might feel obliged to support the resolution
because they had agreed last year not to in return for U.S.
commitment to allow the UN Special Rapporteur on Torture,
Manfred Novak, to visit Guantanamo; now, the U.S. had gone
back on that agreement. Bellinger explained that the U.S.
had invited Novak to visit, but that Novak had chosen
publicly to reject the U.S. offer (to visit under normal
conditions, but not to able to interview individual
detainees, as only the ICRC may do that). Cooper said the
EU, having cooperated with the U.S. in resisting Chinese
attempts to impose conditions on visits of Special
Rapporteurs, was having difficulty justifying the U.S.
attempts to impose conditions on Novak's Guantanamo visit.
Both sides agreed that the U.S. and EU needed to consult
further in order to avoid a train wreck at the Human Rights
Commission on this.

--------------
EUROPEAN REACTIONS POSITIVE FOR U.S.
--------------


16. (C) COMMENT: By and large, Bellinger's European
interlocutors responded very positively to his visit. Their
questions were many and varied, and all of the meetings were
marked by vigorous but constructive discussion. It is clear
that many Europeans continue to believe that Article 3 of the
Geneva Conventions can be applied to enemy combatants, and
still afford the United States the flexibility it seeks. It
is also apparent that lingering concerns (fed by negative
public perceptions) remain about the treatment of detainees,
and protection against wrongful detentions. Some governments
remain focused on renditions, and the possibility that there
will be negative revelations that impact on them directly.


17. That said, the visit was very helpful in beginning to
dispel European misunderstandings and misgivings about our
pursuit of the war on terror. Continued engagement on these
issues is critical in the coming months to persuade EU
governments to stand more firmly and publicly in the face of
their public's concerns and suspicion regarding Guantanamo,
renditions, and the legality of U.S. actions against Al
Qaeda. The Austrian Chair of the COJUR meeting, Ferdinand
Trauttmansdorf, concluded the meeting with the following
message: "We leave this discussion with the notion that
America is carefully considering these difficult questions in
good faith." He said also that the fight against terror was
a burden shared by the EU, and that the U.S. has as much of a
right to ask questions of the EU, as the EU does of the U.S.
On the upcoming Human Rights Commission, urgent consultations
with the EU will be necessary to avert the possibility of EU
support for a Cuban Guantanamo resolution.


18. (U) This message has been cleared by Legal Adviser John
Bellinger.

Gray