by Patrick T. Campbell, Esq.
On March 7, 2011, President Obama signed an Executive Order creating a formal system of continued detention for many Guantánamo Bay detainees. The Executive Order was accompanied by a Presidential Statement and a Fact Sheet on Guantánamo and detainee policy. Attorney General Eric Holder, Jr. also issued a statement discussing the Administration's new approach to handing the detention of certain segments of the Guantánamo inmate population.
The Executive Order establishes Periodic Review Boards ("PRB"), reviving the process of detainee periodic reviews previously performed from roughly 2004-08 by Administrative Review Boards ("ARB") under the George W. Bush Administration, but with substantial innovations and improvements as discussed below. This new continued detention system only applies to the 47 detainees designated for indefinite detention under the AUMF because they cannot currently be prosecuted but have been deemed too dangerous to be released and the 32 detainees slated for criminal prosecution but have not yet been charged (the other 93 detainees remaining at Guantánamo consist of detainees criminally charged or convicted and those cleared for transfer but have not yet been transferred). The PRB system also does not apply to detention facilities beyond Guantánamo (though the system will follow designated Guantánamo detainees if such detainees are moved to different detention facilities) nor does it interfere with the jurisdiction of the federal courts to determine the legality of a detainee's detention on habeas corpus review.
To determine that a detainee must remained confined at Guantánamo, the PRBs must find that such continued detention "is necessary to protect against a significant threat to the security of the United States." In one break from the prior ARB system, potential intelligence value is not a ground for continued detention. All detainees subject to the new detention system must have a full, live hearing before a PRB within a year from March 7. Under the Executive Order, detainees must receive advance notice of the hearing and an unclassified summary of the factors and information that the Government will offer to the PRB in support of continued detention. The unclassified summary must be sufficiently comprehensive to provide adequate notice to the detainee of the Government's reasons for continued detention. Detainees have the right to appear before the PRBs, introduce their own evidence, and call witnesses who are "reasonably available." Detainees will be assigned personal representatives (not necessarily lawyers) with the necessary security clearance to review the Government's evidentiary support for continued detention to advocate on the detainees' behalf before the PRBs. In a major break from the ARB system, detainees may also retain private legal counsel at their own expense. If cleared, detainees' private legal counsel can also access the Government's evidentiary support for continued detention, though counsel cannot share such information with the detainee. In special circumstances warranted by national security concerns, the Government will instead supply a detainee's personal representative and/or legal counsel with a substitute/summary of highly classified evidentiary support for continued detention. These processes and procedures appear to render the PRB system more adversarial than the prior ARB regime.
In another break from ARBs, which were manned solely by military officers, PRBs are staffed with designated officials from the Departments of State, Defense, Justice, and Homeland Security, and from the Offices of the Director of National Intelligence and Chairman of the Joint Chiefs of Staff. Further, should a PRB decide after the initial hearing that a detainee must remain in confinement, such detainee is entitled to a "file review" every six months on the written record and any additional evidence the detainee or personal representative/legal counsel wish to add to it. Should a significant question be raised during one of these reconsiderations, then another full, live PRB must be convened. In contrast, ARBs convened only once a year. In any event, detainees are afforded subsequent full, live PRB hearings every three years after their initial hearings.
The Executive Order also establishes a Review Committee consisting of the Secretaries of State, Defense, and Homeland Security, the U.S. Attorney General, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff. The Review Committee will review a PRB decision if a member of the Committee seeks such review within 30 days of the PRB's determination. The Review Committee will also decide a detainee's status if the PRB cannot reach a unanimous decision. The Review Committee is further charged with conducting an annual review of the sufficiency and efficacy of transfer efforts, including: (i) when a PRB directed the transfer of a detainee and more than six months have passed without such transfer; (ii) the status of transfer efforts for a detainee ordered released on habeas review with no pending appeal and who has not yet been transferred; (iii) the status of transfer efforts for any detainee who has been designated for transfer or conditional detention by Executive Order 13492 and who has not been transferred; and (4) the security and other conditions in the countries to which detainees might be transferred, including a review of any suspension of transfers to a particular country, in order to determine whether further steps to facilitate transfers are appropriate or to provide a recommendation to the President regarding whether continuation of any such suspension is warranted. In addition, the Review Committee, at the conclusion of the initial round of PRBs and then again every four years thereafter, will "review whether a continued law of war detention policy remains consistent with the interests of the United States."
The Executive Order finally requires the Departments of Justice and Defense to continue assessing the feasibility of trying the detainees subject to the Order and refer detainees for prosecution, as appropriate.
While President Obama's new Executive Order generally provides detainees subject to continuous detention more process than the previous ARB system, current and former detainee attorneys remain skeptical. David Remes, an attorney who represents 20 detainees, including 16 Yemenis, cautioned that there is no substantive difference between the PRBs and ARBs, just a new "set of characters" sitting on review boards. Remes also criticized the new system for not providing relief for the 58 detainees approved for transfer but cannot be repatriated to Yemen. Jonathan Hafetz, a law professor at Seton Hall who has represented several detainees, said the review process "on paper at least, is a significant improvement" over the ARBs, but the Executive Order is a mixed blessing for those (like Hafetz) who oppose prolonged, indefinite detention at Guantánamo.
Commentators have also raised concerns about the manner in which the new detention policy was promulgated. Benjamin Wittes, of the Brookings Institution, welcomed the added review, but would have preferred to see this policy as a statute, so as not to marginalize Congress and spur them to impede policy that is essentially sound.
Another concern is the status of closing Guantánamo in light of the new Executive Order. While the Fact Sheet released by the White House states that the Administration remains committed to closing Guantánamo, commentators disagree. Juan Zarate, who served as a counterterrorism adviser to President Bush, noted that the Order does not bring President Obama any closer to closing Guantánamo, rather "it creates a new bureaucratic process that will be challenged, and doesn't help legitimate indefinite detention." Anthony Romero, Executive Director of the American Civil Liberties Union, stated, with respecting to closing Guantánamo, "In a little over two years, the Obama Administration has done a complete about-face."
Finally, perhaps the most significant question the Executive Order leaves unresolved is actually effectuating the transfer of detainees whose detention the PRBs determine is no longer "necessary to protect against a significant threat to the security of the United States." Absent a habeas order compelling release, current legislation makes it nearly impossible to effectuate a transfer from Guantánamo in most circumstances.
On a related note, the Fact Sheet stated that military commissions (the subject of a subsequent blog) will resume. The Administration, however, remains intent on proceeding with civilian trials for some detainees, and blamed Congress for preventing the Executive from deciding which detainees should be tried in civilian court as opposed to military commission. The Administration also announced its support for two components of the international legal framework that covers armed conflicts: Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions. Additional Protocol II contains detailed humane treatment standards and fair trial guarantees that apply in the context of non-international armed conflicts, and Article 75 of Additional Protocol I sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict.
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