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