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DE RUEHC #1856 3292344
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P 252338Z NOV 09
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TO RUEHGV/USMISSION GENEVA PRIORITY 0000
INFO RUCNDT/USMISSION USUN NEW YORK PRIORITY 0000

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