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Viewing cable 06BRUSSELS524, SECSTATE LEGAL ADVISER ON WAR ON TERROR

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Reference ID Created Released Classification Origin
06BRUSSELS524 2006-02-15 17:05 2010-11-30 16:04 CONFIDENTIAL Embassy Brussels
This record is a partial extract of the original cable. The full text of the original cable is not available.
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