11. Address by William H. Taft, IV, Legal Adviser of the Department of State, before the International Bar Association regarding U.S. and global response to international terrorism (September 18, 2003)
TO THE INTERNATIONAL BAR ASSOCIATION
REGARDING THE U.S. AND GLOBAL RESPONSE TO
THE THREAT OF INTERNATIONAL TERRORISM
(September 18, 2003)
Members of the IBA, distinguished colleagues, and guests:
I am very pleased to have this opportunity to discuss the pressing issue of international terrorism and the continuing U.S. and global response thereto. The United States is engaged in a long-term war against terrorists and terrorist organizations with global reach. In the wake of the September 11, 2001 attacks on this nation, President Bush immediately recognized that the scale of these particular attacks on the United States and its citizens created a state of armed conflict, which required a military response in self defense. Statements and actions by NATO, Rio Treaty Partners and the United Nations Security Council supported that view. The Congress supported the President's use of force "against those nations, organizations, or persons" responsible for the September 11 attacks and those who harbor them "in order to prevent any future acts of international terrorism" by them against the United States. It was in this context that the President dispatched armed forces to Afghanistan in the fall of 2001 to rout out the al-Qa'ida terrorist network and remove the threat of the supportive Taliban regime. The Taliban regime may be gone and we may have al-Qa'ida on the run, but the war is regrettably not over. .
The President did not limit his response to the military option, however. He also declared a national emergency and deployed the economic tools of the International Emergency Economic Powers Act to combat the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States posed by grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the September 11 terrorist attacks, and the continuing and immediate threat of further attacks on U.S. nationals or the United States. Two years later, we have made great advances - but the terrorist threat continues and, since the terrorists have global reach, a global strategy is necessary to combat them.
The United States has been a leader in the effort to develop and carry out such a global strategy. We have not worked alone, however. Consistently, we have sought - and received - support and cooperation from other States. The State Department has played a major part in this effort. Today I will highlight some of the key legal and policy initiatives we have worked on, and give you my own perspective on them.
As Legal Adviser of the Department of State, I have been involved with much of the U.S. response to the events of September 11, 2001, and the threat of terrorism generally. Of course, many other agencies and parts of the U.S. government are also involved - such as the Defense and Justice Departments, the Treasury, the Customs Service and the Coast Guard, and the Congress and the courts.
I won't try to cover everything we are doing in my remarks today. Because there is limited time and you will want to hear from others. But to put it in the most basic terms: in order to eliminate the terrorist threat, the United States and our allies are working together to identify the terrorists; cut off their money and inhibit their movements; find them, apprehend them, and bring them to justice. We're also working to press for reforms in States that harbor terrorists, and to limit access to weapons of mass destruction, because these steps are important elements of the effort to cut off terrorists' support and reduce, if not eliminate, the amount of harm they can do us. And we are working, both bilaterally and through multilateral institutions like the UN, the IMF, and the multilateral development banks, to build capacity in countries to deal with the terrorist threat. This last effort involves working with governments that have not had legal authority to implement UN sanctions on terrorists, or the institutions and skills to monitor and regulate domestic financial flows funding terrorists and terrorism.
Key legal initiatives to advance these overall goals include our efforts (1) to establish international norms for dealing with terrorism, through United Nations Security Council resolutions, international conventions, and other means; (2) to identify and publicly designate terrorist groups and individuals involved with them; (3) to define and implement legal mechanisms for effectively cutting off financing to individuals or organizations determined to be involved in acts of terrorism, (4) to exclude and remove from the United States individuals associated with terrorist organizations, and (5) to work on seizing terrorists and bringing them to justice. Our lawyers are also busy working to implement sanctions and nonproliferation measures, but because these are more longstanding measures, and have not altered as significantly in the last two years, I will not dwell on them here.
The initiatives I have listed are major efforts, but there will be no quick fix. We have made considerable progress, and there is still much to do. As we go forward, one guiding principle for our efforts is the desire to work with other States to create a comprehensive worldwide approach, in order to leave no refuge anywhere for the terrorists and those who sponsor them. Another key guiding principle is the need to respect and protect universal human rights, including those of the terrorists themselves. And of course, a central principle is that we must act pursuant to the rule of law. From the initial closing of the airports to the military actions and continuing reconstruction in Afghanistan and Iraq, our actions have been carefully undertaken, and surrounded with procedural safeguards, to ensure that U.S. actions are consistent with all applicable laws, allow the greatest flexibility to military forces, provide the highest possible level of protection of civilians, and give the maximum respect for the civil and political rights of individual citizens. Naturally these objectives often intersect.
- Efforts to establish and strengthen international norms
We have been pleased to participate in several important developments in the area of international norms in the last two years.
UNSCR adoption and implementation
To begin with, as I'm sure you know, the U.S. supported the UN Security Council's adoption of two resolutions requiring Member States to take various actions to counter worldwide terrorism in general. Security Council Resolution 1373, adopted September 28, 2001, requires States to refrain from providing support for terrorism, and to freeze "without delay" the funds, other financial assets or economic resources of those who commit or attempt terrorist acts, or those who help such persons. The resolution also requires States to prevent the movement of terrorists through border controls and the issuance of identity papers and travel documents to them, and also to adopt measures to prevent counterfeiting, forgery or fraudulent use of such papers and documents.
The second Security Council resolution, Resolution 1390, requires States to freeze the assets of Usama bin Laden, members of the al Qa'ida organization, and the Taliban, and their associates, prohibit the sale or supply of arms and related materiel to them, an to prevent their entry into or transit through their territories. This resolution is a follow-on from two previous resolutions targeted at Usama bin Laden and the Taliban and the use of the area of Afghanistan under its control for sheltering and training terrorists (resolutions 1267 and 1333). Two subsequent resolutions also deal with Usama bin Laden, members of al Qa'ida and the Taliban, and persons associated with them: Resolution 1455, which continues and expands 1390, and Resolution 1452, which provides certain limited exceptions to the asset freeze requirements of resolutions 1390 and 1267.
These resolutions are binding on all UN Member States under Chapter VII of the UN Charter, so in theory they should be very powerful tools. In practice they may not always be quite as powerful as we'd like, but they are a very important foundation for coordinating and legitimizing individual States' efforts in this regard.
Conventions are binding only upon those parties who agree to be bound, so they are in one sense more limited than Security Council Resolutions, which are enacted under Chapter VII. But they can be considerably more detailed, and they generally have been actively negotiated by the very parties who will then be bound by them, which can make them a more effective and practical blueprint for action. The United States has become a party to all 12 UN conventions and protocols relating to terrorism, and has successfully encouraged other States to do the same. Before September 11, only two countries had become parties to all 12 UN terrorism conventions and protocols. Today no less than 37 countries, including the United States, have responded by becoming parties to all 12 conventions and protocols.
The two newest, and potentially most useful, of these instruments are the International Convention for the Suppression of the Financing of Terrorism and the International Convention for the Suppression of Terrorist Bombings, both of which have entered into force in the last two years, and are already widely supported. The United States became a party to both on June 26, 2002. Ninety-one states are parties to the Terrorism Financing Convention, which obligates parties to criminalize conduct relating to the raising of financial assets to support terrorist activities. One hundred and one states are parties to the Terrorist Bombings Convention, which requires parties to criminalize terrorist attacks that use explosives or other lethal devices on targets such as public facilities and government buildings. It also requires parties to cooperate on investigations, extraditions, and prosecutions of offenders. The United States has already enacted legislation to give domestic effect to these two conventions, including criminal liability under title 18.
Regional Efforts: OAS, Asia, Europe, Near East
The United States has also participated in regional and multilateral counter-terrorism efforts. Along with 29 other countries, we signed the Inter-American Convention Against Terrorism on the same day it was adopted, last year, by the General Assembly of the Organization of American States. (Two others have signed since.) This convention requires signatories to establish a legal and regulatory regime to combat terrorist financing, including financial intelligence units and more stringent controls at banks. It also seeks to improve regional cooperation against terrorism through exchanges of information, experience and training, technical cooperation, and mutual legal assistance.
We are working with the Asia-Pacific Economic Cooperation group and other entities in that region to establish regulatory regimes consistent with the obligations of Asian and Pacific countries to implement the Security Council's resolutions in this area. We are working with the OSCE (Organization for Security and Cooperation in Europe), with the EU and with countries in the Near East to coordinate in putting these resolutions, and other agreements, into effect.
We have also broadened the mandate of the Financial Action Task Force, the world's leading organization aimed at combating money laundering, so that it now is also aimed against terrorism and is exercising leadership in setting standards in this area.
II. Designation of Terrorist Individuals and Organizations
Resolutions and conventions and norms are good, but actions and implementation are vital. This is why we are working closely in the Counter-Terrorism Committee established by UN Security Council Resolution 1373. The CTC experts are reviewing the measures taken by States under this resolution, identifying areas in which states could benefit from technical assistance and assisting in the coordination of such assistance to help States meet their obligations under the resolution. We're also working in the UN 1267 Sanctions Committee, which maintains a consolidated list of individuals and entities associated with Usama bin Laden, the al-Qa'ida organization or the Taliban, which entities and individuals thus becomes subject to assets freezing requirements and other mandatory sanctions. The 1267 Committee is a very useful mechanism for ensuring the effective internationalization of asset freezes, because all UN member states are required to freeze the assets of any individual or entity included on this Committee's consolidated list.
In addition to determining and publicizing who the terrorists are, these international efforts are acting to cut off the ability of terrorists and their supporters to operate, particularly by disrupting the financial support networks for terrorists and terrorist organizations. Foreign terrorists often depend upon widespread financial support networks. Asset freezes are an important tool in targeting these networks. By disrupting them we make it much more difficult for terrorists to pursue their activities.
We are also working regionally and domestically on these issues. One major portion of our domestic effort is the designation of individuals or organizations that are involved in acts of terrorism. There are now powerful domestic authorities to designate and freeze the assets of terrorists and their supporters and to impose other measures against them.
A. AEDPA/Patriot Act/Section 219
A major authority is section 219 of the Immigration and Nationality Act, which was added by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and later amended by the USA PATRIOT Act, and other provisions. This provision gives the Secretary of State the authority to designate a foreign group as a foreign terrorist organization (FTO) if he determines that the group engages in terrorist activity or terrorism that threatens the security of U.S. nationals or the national security, foreign relations, or economic interests of the United States. There are currently 36 designated FTOs.
Designation as an FTO has several consequences within the United States. First, it allows our government to require U.S. financial institutions, should they become aware of having possession of or control over assets of an FTO, to block transactions in the assets and to report them to the Treasury. In addition, once a group has been designated, it becomes a federal criminal offense for anyone to knowingly provide material support or resources to the FTO. This consequence brings in the resources of our law enforcement personnel to help in the effort to control and apprehend terrorists and their benefactors. There are also certain immigration consequences that I'll get to later.
Since designation has serious consequences, there are procedures in place to minimize the risk of mistaken designations - and correct them, if necessary. No designation can be made until an administrative record has been prepared setting forth the basis for the proposed designation. Although classified information may be included in the record, courts have the ability to review the record, including any classified materials, ex parte and in camera. Designations expire after two years, unless there is a specific redesignation upon a finding that the relevant circumstances "still exist".
Although the United States can and will act alone under domestic authority in designating (and taking other actions) against terrorists, we know we are more effective when other States act in coordination with us. We are pleased that the European Union, for example, has worked with us to ensure that nearly every terrorist individual and entity we have designated has also been designated by the E.U. We have also worked closely with other States including Italy, China, Russia, Germany, Algeria and Saudi Arabia to submit names to the U.N. for designation, so that the assets of these designees will be frozen worldwide. The international designation process also has certain safeguards. For example, the UN 1267 Sanctions Committee has incorporated into its guidelines a non-exclusive process for seeking review of its designations.
B. U.S. Authorities: Executive Order 13224 and Executive Order 12947
The broadest and most flexible authority is the most recent: Executive Order 13224 - signed by President Bush on September 23, 2001 - which blocks the assets of terrorists and their supporters designated by the President in the Annex to the Order. It also provides authority for the Secretary of State or the Secretary of the Treasury, in consultation with each other and the Attorney General and the Secretary of Homeland Security, to make additional designations of individuals and entities meeting the Order's criteria. The Order is targeted on foreign individuals and entities that commit, or pose a significant risk of committing, acts of terrorism; those who give them material support or provide them with financial or other services; and their subsidiaries, front organizations, and agents. We have avoided use of the mere "associated with" basis for designation. This Order allows us to target a broader spectrum than simply those who have been specifically designated as FTOs, and indeed, more than 250 individuals and organizations are currently designated under the Order. There is an additional, more targeted authority: a previous Executive Order, that allows the Secretary to designate organizations that pose a significant risk of disrupting the Middle East peace process.
There are several legal consequences of designation pursuant to Executive Order 13224. For example, with limited exceptions set forth in the Order, or as authorized by the Treasury Department's Office of Foreign Assets Control (OFAC), designations result in the blocking of the designated individual's or entity's assets within the U.S. or in the possession or control of U.S. persons worldwide. The Order also prohibits U.S. persons from engaging in any transaction or dealings in such blocked assets.
As with FTO designations, there are regulations that provide specific procedures for seeking administrative reconsideration of a designation. In addition, OFAC will consider, on a case-by-case basis, exceptions to a freeze so that a designee can pay for certain living expenses or legal services in a manner consistent with Resolution 1452 (which allows for such exceptions).
C. International Cooperation on Terrorist Finance
We are pleased that, working with us, all member countries of the Gulf Cooperation Council have increased oversight of their banking systems, and several countries - including Bahrain, Egypt, Qatar and the UAE - have passed domestic legislation specifically designed to counter money laundering. The United States plays a leading role within the Financial Action Task Force, and worked with the other members to adopt the Eight Special Recommendations on Terrorist Financing and the guidance for their implementation. Following the adoption of these recommendations, a number of jurisdictions, including key Middle Eastern countries have acted to strengthen their legal and regulatory regimes to avert the abuse of charitable and other nongovernmental organizations.
Terrorists are still taking advantage of vulnerabilities in other countries. Often these countries have the will to assist but lack either the expertise or the means, including the legal authority, to do so. For this reason, U.S.-financed training and technical assistance programs include training and assistance in developing and implementing laws as well as in other areas.
Efforts for the future will focus on certain areas of vulnerability. For example, as the international banking system becomes a system that the terrorists can no longer safely use, we are helping develop new norms to limit abuse of alternative, informal value transfer systems, such as the traditional "hawalas" and wage remittance systems, which are still being used to transfer resources among terrorists. Yet it is important that these norms do not cut off legitimate commerce, such as the wage remittance systems that enable immigrant or temporary workers to send funds to their families back home.
We are also targeting the misuse of charities, especially where there is willing complicity on the part of the charities' leaders. However, we are very sensitive to the plight of those people that legitimate charities, including Islamic charities, assist. And we are proud that Americans provide the most generous support of charities in the world. Our aim is thus to put in place effective oversight on how such funds are used, while still enabling organizations to raise funds effectively for charitable purposes both here and abroad.
IV. Exclusion of Terrorists from U.S.
The Patriot Act also gives the Secretary of State new authority to designate terrorist organizations for immigration purposes, in consultation with or upon the request of the Attorney General. The list of organizations designated under this authority is commonly known as the Terrorist Exclusion List (TEL). Specifically, an organization can be placed on the TEL if the Secretary of State finds that the organization commits or incites to commit a terrorist activity, prepares or plans a terrorist activity, gathers information on potential targets for terrorist activity, or provides material support to further terrorist activity. We have already designed 48 such organizations, and we continually monitor the activities of organizations in order to determine whether designation may be appropriate. Individual aliens who solicit funds, recruit members, or provide material support for a TEL organization are inadmissible to the U.S. and may be prevented from entering. If they are already in U.S. territory, they may (in certain circumstances) be deported.
The USA PATRIOT Act also expanded the Secretary of State's authority to exclude from the U.S. aliens who engage in terrorist activities or are linked to terrorism. For example, an alien who has used his position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization are inadmissible if the Secretary determines that these acts were done in a way that "undermines" U.S. efforts to reduce or eliminate terrorist activities.
The Act also gave the State Department access to the National Crime Information Center, and in the time since the Act's passage we have incorporated nearly 8 million criminal records into our visa lookout database so that these records can also be considered by consular officials as they determine whether to grant a visa.
V. Other measures: Capture and Interdictions; detainees and military tribunals
We are, of course, proceeding concurrently on all fronts - designation, blocking money and movement, and capture and trial.
Capture of terrorists and interdictions
In terms of capture and detention of the terrorists, we have been able to obtain control over a number of them through our military operations in Afghanistan and Iraq. In the United States, as I mentioned, our police have authority to apprehend not only terrorists but also those who assist them, since such assistance is now a criminal offense in the United States. Elsewhere, we are working with other law enforcement authorities to perform joint operations and take terrorists into custody. To help strengthen this effort, we are negotiating with EUROPOL (the European Police Association) on a way to enable the exchange of information on individuals between EUROPOL and U.S. law enforcement. We are also successfully obtaining and sharing custody of terrorists through such means as extradition treaties.
We, along with our allies and cooperating flag states, continue to conduct maritime interception operations in international waters in several regions of the world as part of our effort to deny the high seas as a haven for moving, arming, or financing international terrorists. Earlier this month, the United States and a group of eleven cooperating countries agreed in Paris on a Statement of Interdiction Principles, as part of the Proliferation Security Initiative (PSI). These eleven countries have identified practical steps to interdict shipments of weapons of mass destruction, their delivery systems and related materials to or from states and non-state actors of proliferation concern at sea, in the air or on land. Actions taken under the PSI will be fully consistent with national legal authorities and relevant international law and frameworks.
Detainees and military tribunals
The detainees held at Guantanamo were, for the most part, seized in the course of the ongoing conflict in Afghanistan. As enemy combatants, their capture and detention while hostilities are ongoing are entirely consistent with the laws and customs of war. Although detainees who have violated the laws of war and targeted civilians are not entitled to be treated as "prisoners of war", let me assure you that they are being treated in a manner consistent with international principles pertaining to the treatment of POWs to the extent appropriate and consistent with military necessity. They are treated humanely and with sensitivity to their cultural and religious backgrounds. Many of them have improved their health thanks to our medical care and proper nutrition. Many are providing information that is highly useful in our effort to guard against future threats. Some have been released, and more will be released in the future if they are determined not to pose a continuing terrorist threat.
When the time comes for those who are found to have committed crimes to be brought to justice, the President has given authority for the use of military tribunals. This will make possible a more secure environment for the protection and safety of all those participating in the process, including the accused, and will also enable the protection of classified evidence and testimony so as not to compromise military operations during the ongoing war against terrorism. Appropriately cleared civilian defense counsel will also have access to classified information, as well as the assistance of specifically detailed military defense counsel. In any proceeding before a military tribunal, the rules of procedure ensure that fundamental rules of fairness will be followed, including presumption of innocence, proof beyond a reasonable doubt, access to prosecution evidence, cross-examination of witnesses, and freedom from double jeopardy. Defendants will not be required to testify and no adverse inference is to be drawn from silence. Trials will be public whenever possible consistent with security considerations, and in any case a full verbatim transcript will be made of all trials.
The United States has long been committed to the promotion of human rights and fundamental freedoms. Ensuring the full enjoyment of all human rights and fundamental freedoms is a central part of our pursuit of global peace and prosperity. The efforts we now engage in, as part of the fight against terrorism, should not be seen as a replacement of or threat to our preexisting efforts. Rather, the fight against terrorism has cast these more traditional efforts - public diplomacy, promotion of respect of human rights, provision of foreign assistance, promotion of the rule of law and an international system that fosters trade and economic cooperation - in a new light that reveals how urgent and vital they are.
The terrorist threat is also urgent, and very serious. This makes it all the more important that the U.S. respond to the best of our ability, and we have sought and obtained domestic legal authority to take strong domestic actions. Yet where authority exists or has been given, the Administration has also "committed to exercising [these powers] responsibly ... and in consultation with other countries."
For the future, we continue to seek international treaties and agreements whereby nations can cooperate internationally in the fight against terrorism. We are looking both to faithful friends, and to former foes. President Bush has made clear that every nation has the opportunity - and the duty - to join us in the fight against terrorism. He has made clear that we welcome those who are willing to join us, but we will act alone if necessary. This strategy has been effective, in many respects. Although some terrorist attacks continue, the global coalition has been able to identify, block, and capture many terrorists. There is much yet to do, however. We must implement the treaties to which we are party. We must develop new ways to cooperate in operations. We must share important information more quickly among countries, as well as ensure that the specific people who need to know it get it in time. There are many other areas where progress is possible. Lawyers and international law will continue to play a key role, and I look forward to working with you as we proceed.