SUDAN: MFA AMENDMENTS TO DETAINEE TRANSFER

C O N F I D E N T I A L STATE 152279

SIPDIS

SIPDIS

E.O. 12958: DECL: 10/31/2017
TAGS: PHUM PINS PREL PTER SU
SUBJECT: SUDAN: MFA AMENDMENTS TO DETAINEE TRANSFER
FRAMEWORK

REF: A. A) FERNANDEZ-WILLIAMSON 10/30/07 TELECON

B. B) KHARTOUM 1583 AND 1601

C. C) KHARTOUM 1465

D. D) STATE 129835

E. E) KHARTOUM 73

Classified By: Assistant Secretary Jendayi Frazer for reasons
1.4 (b) and (d).

Summary



1. (C) In its ref B note verbale, the GOS proposes three
amendments to the detainee transfer
framework that the USG proposed in the Embassy,s ref D note.
The USG seeks clarification
of the reasons for the amendments and, more importantly,
seeks to persuade the GOS to
accept the language proposed in the Embassy,s note.
Consistent with discussions between
Charge d,Affaires Fernandez and S/WCI Ambassador-at-Large
Williamson in ref A telcon,
however, Department has crafted the instructions that follow
with a view to providing Post
some flexibility in negotiating the final language of the
framework, within the parameters
of the USG,s &red lines8 on the form and substance of the
assurances we seek, as
discussed below. See action requests in paragraphs 2 and 3.
End summary.

Objectives


2. (C) Department requests that Post:

-- Seek clarification of the reasons for the amendments the
GOS proposes;

-- Attempt to persuade the GOS to accept the language
proposed in the Embassy,s note
or, alternatively, language that satisfies the USG,s &red
lines8 on the form and substance
of the assurances we seek, as discussed below;

-- Renew the USG,s request that the GOS confirm, in writing,
that it concurs in the
understandings set forth in the Embassy,s note or,
alternatively, understandings that satisfy
the USG,s &red lines8 on the form and substance of the
assurances we seek, as discussed
below; and

-- Inquire whether the ICRC would be an agreeable third party
for purposes of verifying the
GOS,s compliance with its humane treatment assurances.

Reporting Deadline


3. (C) Department requests that Post report the results of
its efforts, and any new information
that Post learns about the likely treatment of the detainees
upon their return, by November 8.

Background


4. (C/REL SUDAN) The detainee transfer framework that the USG
proposed in ref D contained
the standard assurance that the USG seeks with respect to
restrictions on travel by individuals
returned from detention at Guantanamo from all countries to
which the USG intends to transfer
such individuals (hereinafter referred to as "transferred
persons"). The GOS,s proposed amendment
to the language regarding this assurance adds the phrase
"based on evidence obtained by the
relevant authorities."


5. (C) It is unclear what the GOS seeks to accomplish with
this change or whether it would constitute
a significant deviation from the original text. If the
GOS,s intent is only to emphasize that the laws
of Sudan include an evidentiary threshold for imposing
restrictions on travel, then the proposed
language may be redundant but not objectionable. However, if
the proposed amendment is designed
to reflect the GOS,s intent to make a decision on travel
restrictions contingent on information USG
authorities provide, it would cross a "red line." The USG
previously has provided information about
the Sudanese detainees to help the GOS build their own
files, but the GOS should not expect that such
information would form the sole basis upon which the GOS
would seek, in accordance with their laws,
to restrict the travel of transferred persons. Without
further clarification of the GOS,s intentions, the
USG cannot accept the proposed amendment.


6. (C/REL SUDAN) Similarly, the detainee transfer framework
that the USG proposed in ref D contained
the standard assurance that the USG seeks with respect to USG
access to transferred persons in
furtherance of the objectives of preventing, countering,
investigating, or prosecuting acts of terrorism.
The GOS,s proposed amendments to the language regarding
this assurance change "is to grant ...
access " to " may grant ... access" and reposition the phrase
"as appropriate" within the sentence.


7. (C) The first of these two proposed amendments -- changing
"is to grant ... access" to "may grant ...
access" -- would constitute a significant deviation from the
original text and would cross a "red line" for
the USG. The language contained in the Embassy,s note is
the standard language the USG uses for transfer
agreements with all receiving countries and, therefore, the
USG must ask for language consistent with this
from the GOS. Additionally, the access the USG seeks is
consistent with the USG,s desire to continue
cooperation with the GOS on counter-terrorism matters more
broadly.


8. (C) It is unclear what the GOS seeks to accomplish with
the second of these two changes -- repositioning
the phrase "as appropriate" within the sentence -- and
whether the change would result in a significant
deviation from the original text. If the proposed amendment
merely reflects the GOS,s grammatical
preference and/or a subtle shift of emphasis without changing
the meaning or effect of the assurance,
then the proposed language may not be objectionable. Without
further clarification, however, the USG
cannot accept the proposed amendment.


9. (C/REL SUDAN) In its ref E note requesting the return of
Sudanese nationals from Guantanamo, the GOS
made the following statement with respect to access to
transferred persons for purposes of verifying their
humane treatment after their return: "The Sudanese
authorities have no objection to arranging meetings for
the representatives of foreign authorities with the released
detainees to observe their treatment whenever
needed." The USG interpreted this statement as an offer by
the GOS to provide the USG or a mutually agreed
third party access to transferred persons in the custody of
the GOS to verify the GOS,s compliance with
assurances that it is to treat transferred persons humanely
and in accordance with the laws and international
obligations of Sudan, including the Convention Against
Torture.


10. (C/REL SUDAN) The detainee transfer framework that the
USG proposed in ref D recast this statement into
the standard access assurance that the USG seeks from all
countries to which the USG intends to transfer
detainees. The GOS,s proposed amendments to the language
regarding this assurance change &is to
grant ... access8 to "may grant ... access" and limit the
access that the GOS &may grant8 to a mutually agreed
third party, which appears to exclude the USG.


11. (C) The first of these two proposed amendments --
changing &is to grant ... access8 to &may grant ...
access8
-- would constitute a significant deviation from the original
text and would cross a &red line8 for the USG. The
language contained in the Embassy,s note is the standard
language the USG uses for transfer agreements with
all receiving countries. The language that the GOS proposes
would weaken the standard commitment and
implies that the GOS might refuse access under some
circumstances. Finally, the access the USG seeks is
consistent with representations the GOS previously made
regarding access in its ref E note. For all of these
reasons, the USG is unwilling to dilute the access assurance
by changing &is to8 to &may.8 (Note: The proposed
change is particularly puzzling given the GOS,s previous
indications that the transferred individuals are not likely
to be detained. End Note.)


12. (C) The second of these two proposed amendments -)
limiting the access that the
GOS is to grant to a mutually agreed third party and
excluding the USG -- is less problematic, considering
the "either-or" nature of the assurance the USG seeks. An
assurance that the GOS "is to" grant access
to a mutually agreed third party would suffice. However, in
its efforts to persuade the GOS to accept the
language proposed in the Embassy,s note, Post might stress
the following: that the "either-or" language in
the original text already enables the GOS to limit access to
a mutually agreed third party; that the "mutually
agreed" qualifying language in the original text ensures that
the GOS will have an equal voice in selecting
a third party; and that the USG,s general preference, in
practice, is to seek third-party access rather than USG
access. Post also should note that the third party most
commonly selected by mutual agreement with
receiving countries is the ICRC and inquire whether the ICRC
would be an agreeable third party in this case.
If not, then Post should ask the GOS to indicate what third
party would be acceptable and seek Department,s
clearance before finalizing the arrangement. (Note: While
it is not necessary to include the name of the third
party in the exchange of notes, it is important to have a
firm and reliable understanding with the GOS on the
identity of an acceptable party before finalizing the
exchange of notes, and the final resolution of this issue
should be reported back via front channel cable. End note.)


13. (C) In discussions with the GOS, Post should highlight
the fact that resolution of these issues will result
in a detainee transfer framework that will facilitate the
return not only of the two Sudanese detainees currently
approved for transfer, but also the return of Sudanese
detainees approved for transfer in the future. Post also
should highlight the USG,s desire to continue cooperation
with the GOS on counter-terrorism matters more
broadly.

Point of Contact


14. (SBU) Department point of contact for this request is
S/WCI ) Mark Stamilio at (202) 647-5234
or StamilioMA2@state.sgov.gov.
RICE