Status and Treatment of Taliban and al-Qaida Detainees

I know that many of you are keenly interested in preserving and promoting respect for the rule of law, particularly at a time when the world is experiencing new challenges. In a very real sense, our mutual allegiance to the rule of law is the cornerstone of stability that binds our nations and helps us navigate through difficult and unprecedented times.

A little over a year ago, when President George W. Bush entered office, we could not imagine that we would see a world where terror would reign for a 90-minute period. A little over a year ago a global challenge to peace and stability by a private network was unimaginable. The horror that we all witnessed last fall now represents a loss of innocence.

On September 11, terrorists opened a new front in an unconventional war designed to destroy a way of life. Their goal is to shatter our fundamental beliefs and test values we take for granted -- freedom, peace, and the rule of law. These unprovoked attacks were more than isolated and sporadic acts of violence or other acts of a similar nature.

Bin Laden and his al-Qaida organization declared war against the United States as evidenced in a decade's worth of hostile statements. His network organized, trained, and carried out cowardly attacks dating back to the bombing of the World Trade Center in 1993, the attacks on U.S. military service personnel in Somalia, the bombing of U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania and the bombing of the U.S.S. Cole. With the horrifying air assaults on the Twin Towers in New York, the Pentagon, and the tragedy in Pennsylvania, the al-Qaida network reached deeper into the depths of evil, shocking all of our consciences.

The events of September 11 were acts in furtherance of an armed conflict started by this organization. The existence of an armed attack was recognized by the NATO North Atlantic Council in its use of Article V of the Washington Treaty. It was recognized by the Organization of American States, Australia and New Zealand in activating provisions in their mutual defense treaties. It was noted in the UN Security Council resolutions which recognized our inherent right to exercise self-defense, as well as in a joint resolution of the U.S. Congress authorizing "the use of all necessary and appropriate force." Additionally, President Bush in his military order concluded that "international terrorists, including members of al Qaida, have carried out attacks on the United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States, on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces."

These aggressors initiated a war that under international law they have no legal right to wage. The right to conduct armed conflict, lawful belligerency, is reserved only to states and recognized armed forces or groups under responsible command. Private persons lacking the basic indicia of organization or the ability or willingness to conduct operations in accordance with the laws of armed conflict have no legal right to wage warfare against a state.

The members of al Qaida fail to meet the criteria to be lawful combatants under the law of war. In choosing to violate these laws and customs of war and engage in hostilities, they become unlawful combatants. And their conduct, in intentionally targeting and killing civilians in a time of international armed conflict, constitute war crimes. As we have repeatedly stated, these were not ordinary domestic crimes, and the perpetrators cannot and should not be deemed to be ordinary "common criminals."

Since September 11th the world has come together to combat this evil. We recognize the commitments you have made and we are truly grateful to the United Kingdom for standing by our side in this common fight. Our two countries and systems are united in seeking justice for those who perpetrated these monstrous atrocities with savage intent.

In bringing these abusers to justice the United States will continue to honor and uphold the rule of law and work within the norms of the global community in answering the challenge that faces us all. In doing so will continue to uphold relevant legal standards of treatment with respect to the detainees in our custody.

Concern for the proper treatment of the detainees and of all persons captured in the course of an armed conflict has been a key U.S. legal objective since the very early days of our republic. This tradition dates back to when John Adams negotiated the Treaty of Amity and Commerce between the United States and Prussia in 1785. This treaty contained a solemn pledge that the United States would not send prisoners [of war] to "distant and inclement countries" and would refrain from "crouding [sic] them into close and noxious places."

This tradition continues today with our unwavering respect for the law. The United States will continue to treat the detainees in a manner consistent with the Geneva Conventions.

We believe that the Geneva Convention Relative to the Treatment of Prisoners of War, along with the other Geneva conventions, remains as important today as the day it was signed. The United States is proud of its leadership over the past half-century of respecting and championing these obligations.

As we navigate these uncharted waters in relation to the treatment of terrorist detainees, it is the spirit of the Geneva Conventions that should guide us. The Conventions were written to protect not only civilian populations. But also soldiers who are acting in their lawful capacity and are captured during a lawful engagement.

The core provisions of the convention and the status of Prisoner of War are designed to preserve the honor and dignity of lawful soldiers. The soldiers receive this special treatment because they continue to represent their country in lawful activity and in a lawful capacity. That is why under the provisions of the convention they are allowed to wear their uniform, hold rank, organize and have representation, receive pay, have access to a canteen, live in quarters as favorable as the detaining power, and have the right to not be punished after a successful escape.

Today, we find ourselves facing new questions and issues of first impression. The war on terror is a new type of war not envisioned when the Geneva Conventions were negotiated and signed. A careful reading of the Prisoners of War Conventions clearly leads one to the conclusion that its provisions do not apply to terrorists who are engaged in an activity that is fundamentally at odds with the Conventions. We are pleased to see that the European Parliament "agrees that the prisoners currently held in the U.S. base in Guantanamo do not fall precisely within the definitions of the Geneva Convention."

This conference asks the important question of whether terrorists have rights. They do -- to be treated humanely. However, they do not deserve nor should they be given heightened status or benefits that are reserved for lawful belligerents. We should not seek to legitimize their conduct or organization by conferring upon them unearned status.

Bestowing Prisoner of War status on detainees who do not meet the clear requirements of the law would undermine the rule of law by diminishing norms found in the plain language of the Geneva Convention itself. It would confer the status and privileges of a law-abiding soldier on those who purposefully target women and children.

Unlawful combatants by their nature forfeit special benefits and privileges accorded by the Geneva Convention on the Treatment of Prisoners of War. If captured, they are apprehended for their criminal activity and not as prisoners of war as envisioned by the Geneva Convention.

In reviewing this new challenge, we have concluded that the Geneva Conventions do apply, however, to the Taliban leaders who sponsored terrorism. But, a careful analysis through the lens of the Geneva Convention leads us to the conclusion that the Taliban detainees do not meet the legal criteria under Article 4 of the convention which would have entitled them to POW status. They are not under a responsible command. They do not conduct their operations in accordance with the laws and customs of war. They do not have a fixed distinctive sign recognizable from a distance. And they do not carry their arms openly. Their conduct and history of attacking civilian populations, disregarding human life and conventional norms, and promoting barbaric philosophies represents firm proof of their denied status. But regardless of their inhumanity, they too have the right to be treated humanely.

As we speak, the United States is holding 300 detainees from approximately 31 different countries at the United States Naval Base in Guantanamo Bay, Cuba. Last week, I personally visited and viewed the facilities at Guantanamo Bay. I can report to you that the detainees are being treated very well, and they have in fact been extended some of the rights of the Geneva Conventions.

The detainees are not subjected to physical or mental abuse or cruel treatment of any sort. The U.S. personnel who come in contact with the detainees and who are within the detention area are not armed as called for by the convention. The detainees are provided three meals a day that total 2,600 calories and meet cultural and religious dietary requirements. They have daily showers and an exercise period.

Doctors patrol through the detention facilities to provide easy access to additional comforts, such as aspirin. The detainees have full medical service, including examinations, rehabilitative surgery, care by internal medicine, pulmonary and other specialists, dental checkups and work, eye examinations and eyeglasses, and proper medications, including antibiotics. During my visit I learned that on average four to six consensual surgical procedures are preformed on detainees each week, and I was informed that 102 detainees received outpatient care on the day before my visit. In the short period of custody many of the detainees have seen their health dramatically improve, and they have gained weight.

The detainees are being housed in temporary, individual open-air shelters that protect them from the elements that are appropriate to the mild climate until more long-term structures can be completed. They are provided sleeping pads and appropriate clothing and shoes. They have correspondence materials and can send four postcards and two letters per month. They have the freedom to worship and are called to prayer with the assistance of a Muslim chaplain. They also have the opportunity to raise concerns about their conditions.

The International Committee of the Red Cross (ICRC) is present at Guantanamo, has daily access to the detainees, and is able monitor the treatment. In my conversation with the ICRC representative, I received absolutely no complaints about the their ability to do their work.

Future for the Detainees

While special privileges are not afforded to terrorists, the right to humane treatment remains. The United States will continue to champion this right and will continue to provide humane care and treatment for all those who fall into our custody. We look to the foreign governments whose nationals we have detained to play an active role in taking corrective action in order to prevent such atrocities from occurring in the future, in the event their nationals are repatriated to them.

We will continue, with the help of the international community, to seek and neutralize terrorist cells around the world while maintaining a respect for fundamental human rights for all. Looking into the future, the fate of the detainees will be determined through careful deliberation and thought. We will investigate, we will determine which cases are the most important to prosecute and we will bring those who bear responsibility to justice.