RESPONSE TO SPECIAL RAPPORTEURS SCHEININ, NOWAK,

UNCLAS STATE 121856

SIPDIS

E.O. 12958: N/A
TAGS: PHUM UNCHR
SUBJECT: RESPONSE TO SPECIAL RAPPORTEURS SCHEININ, NOWAK,
CASTRILLO AND CABEZUT ON THE STUDY INTO THE PRACTICE OF
SECRET DETENTIONS - GENEVA LOG 26-2009


1. This is an action request: Mission Geneva is
requested to transmit the response of the United States
Government in paragraph 3 to the Special Rapporteur on the
promotion and protection of human rights and fundamental
freedoms while countering terrorism Scheinin, the Special
Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment Nowak, the Chairperson
of the Working Group on Arbitrary Detention Castrillo and
the Chairperson of the Working Group on Enforced and
Involuntary Disappearances Cabezut. This is Geneva log
number 26-2009.


2. At the 10th Session of the Human Rights Council on
March 10, 2009, the Special Rapporteur on human rights and
counter terrorism and the Special Rapporteur on torture
announced that a global joint study into the practice of
secret detentions in the context of contemporary
counter-terrorism efforts would be undertaken and
forwarded a questionaire to the Department. The Working
Group on arbitrary detention and the Working Group on
enforced and involuntary disappearances supported this
initiative and are part of this study. The study examines
the practice or permission of secret detentions to operate
on the territories of States from various geographical
regions. The Special Rapporteurs anticipate submiting a
joint report to a future session of the Human Rights
Council. Following is the response from the United States
Government.


3. Begin text of letter.

Dear Mr. Scheinin, Mr. Nowak, Ms. Castrillo, and Mr.
Cabezut:

Thank you for your letter of April 16, 2009, by which you
forwarded the questionnaire for your joint study. The
United States is committed to the promotion and the
protection of human rights and fundamental freedoms at
home and abroad and welcomes this opportunity to
respond.

As you know, on September 6, 2006, President Bush
announced that "(i)n addition to the terrorists held at
Guantanamo, a small number of suspected terrorist leaders
and operatives captured during the war have been held and
questioned outside the United States, in a separate
program operated by the Central Intelligence Agency."

Upon taking office, and in response to past detention
practices such as the one described by President Bush,
President Obama affirmed the importance of defending U.S.
national security "with an abiding confidence in the rule
of law and due process; in checks and balances and
accountability." He emphasized that "the decisions that
were made over the last eight years established an ad hoc
legal approach for fighting terrorism that was neither
effective nor sustainable - a framework that failed to
rely on our legal traditions and time-tested institutions,
and that failed to use our values as a compass."

During his second full day in office, President Obama
acted to implement this vision by issuing three Executive
Orders providing for comprehensive review and reform of
U.S. detention, interrogation, and transfer policies.
President Obama since has taken numerous additional steps
to implement the United States' commitment to upholding
the rule of law in areas generally pertinent to your
study, including efforts to promote transparency and
governmental accountability.

The Obama Administration has adopted the following
specific measures:

-Instructed the CIA to close as expeditiously as possible
any detention facilities that it currently operated as of
January 22, 2009 and ordered that the CIA shall not
operate any such detention facility in the future.

-Ordered that the Guantanamo Bay detention facility be
closed as soon as practicable.

-Required the International Committee of the Red Cross
(ICRC) to be given notice and timely access to any
individual detained in any armed conflict in the custody
or under the effective control of the United States
Government, consistent with Department of Defense
regulations and policies.

-Ordered a comprehensive review of the lawful options
available to the Federal Government with respect to
detention of individuals captured or apprehended in
connection with armed conflicts and counterterrorism
operations.

-Reaffirmed that all persons in U.S. custody must be
treated humanely as a matter of law.

-Mandated that detention at Guantanamo conform to all
applicable laws governing conditions of confinement,
including Common Article 3 of the Geneva Conventions, and
directed a review of detention conditions at Guantanamo to
ensure such compliance.

-Ordered a review of U.S. transfer policies to ensure that
they do not result in the transfer of individuals to other
nations to face torture or otherwise for the purpose, or
with the effect, of undermining or circumventing the
commitments or obligations of the United States to ensure
the humane treatment of individuals in its custody or
control. The resulting Task Force on transfer practices
recommended to the President in August that (1) the State
Department be involved in evaluating all diplomatic
assurances; (2) the Inspectors General of the Departments
of State, Defense, and Homeland Security prepare an annual
report on all transfers relying on assurances; and (3)
mechanisms for monitoring treatment in the receiving
country be incorporated into assurances.

-Announced the transfer of at least 7 detainees from
military custody to U.S. criminal law enforcement
proceedings, and transferred 25 detainees to date to
third-countries for repatriation or resettlement.

-Worked with Congress to revise U.S. laws governing
military commissions to enhance their procedural
protections, including prohibiting introduction of
evidence obtained as a result of cruel, inhuman, or
degrading treatment.

-Expanded the review procedures for detainees held by the
Department of Defense in Afghanistan in order to enhance
the transparency and fairness of U.S. detention
practices. Detainees are permitted an opportunity to
challenge the evidence that is the basis for their
detention, to call reasonably available witnesses, and to
have the assistance of personal representatives who have
access to all reasonably available relevant information
(including classified information). Proceedings generally
shall be open, including to representatives of the ICRC,
and possibly to non-governmental organizations.

-Established more tailored standards and rigorous
procedures for evaluating assertions of the state secrets
privilege, including establishing an internal
accountability mechanism, ensuring that the privilege is
never asserted to avoid embarrassment or conceal
violations of law, and creating a referral mechanism to
the Office of Inspector General where the privilege is
asserted but there is credible evidence of a violation of
law. These standards and procedures were established in
order to strike a better balance between open government
and the need to protect vital national security
information.

-The Department of Justice initiated a preliminary
criminal investigation into the interrogation of certain
detainees.

These measures cumulatively seek to reaffirm the
importance of compliance with the rule of law in U.S.
detention practices, to ensure U.S. adherence to its
international legal obligations, and to promote
accountability and transparency in this important area of
national security policy.

One illustration of the approach the Obama Administration
has taken to counterterrorism efforts is the case of Ali
Saleh Kahlah Al-Marri. Mr. Al-Marri entered the United
States on September 10, 2001. He was detained as a
material witness in the investigation of the September 11,
2001 attacks and subsequently was indicted on criminal
charges. However, on June 23, 2003, al-Marri was
designated by President Bush as an enemy combatant and
transported to the Naval Consolidated Brig in Charleston,
South Carolina, where he was detained until 2009. After
taking office, President Obama ordered a review of
al-Marri's case, and the Department of Justice brought
charges against Mr. al-Marri in federal court on two
counts of providing and conspiring to provide material
support to al-Qaeda. Mr. al-Marri pled guilty in April
and was later sentenced.

We note that some of the specific information you have
requested in your questionnaire implicates national
security issues. Although we have declassified
considerable amounts of information that may be responsive
to your questions, there are certain matters that remain
classified. However, President Obama has affirmed that
U.S. decisions not to release certain information for
valid national security reasons will be subject to
extensive oversight to ensure compliance with the law.

Through the steps above and others, the United States has
reiterated its commitment to the rule of law,
transparency, and the international law related to both
human rights and armed conflict. As President Obama
reiterated to the General Assembly in September, "living
our values doesn't make us weaker, it makes us safer and
it makes us stronger." We look forward to continuing to
work closely with U.N. Member States and to remaining in
an open dialogue with the Special Procedures mandate
holders to advance this collective goal.


4. End text. Appreciate Mission's assistance.
CLINTON