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Key Points from Today’s Executive Order on GTMO Detention Review

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Monday, March 7, 2011 at 4:02 PM

Today’s executive order on GTMO detention review (“Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force”; see also the fact sheet Larkin posted below) marks a substantial improvement over the status quo, and contains a few surprises along with that which was expected.  Here are the highlights as I see them:

1. Periodic Review  Boards (PRBs)

As expected, the EO revives the process of conducting periodic reviews of detention decisions (this process ran from roughly 2004 to 2008 under the label “Administrative Review Board” (ARBs)), but with some substantial innovations and improvements.

Who will receive PRB review? Those GTMO detainees who have been designated for continued military custody under the AUMF as well as those who have bee slotted for criminal prosecution but who do not yet have charges pending against them.  The EO, to be clear, does not apply beyond GTMO.  Nor does it in any interfere with the ongoing process of habeas review.  The proper way to think about this is as an additional layer of review for those who remain in military custody at GTMO because the courts have affirmed the legality of their detention, because their habeas petitions remain pending, or because they have elected for whatever reason not to pursue habeas relief.  The PRB review process is not focused on relitigating the legality of the detention, however.

Note that this appears not to encompass those detainees as to whom the government has determined should be released rather than held, yet who have not been released because, well, Congress now refuses to let anyone be released absent a court order from the habeas process.  Of course, that draws attention to the next question:

Does it matter, so long as Congress wields the power of the purse to make transfers/releases impossible with a court order? Absent a habeas order compelling a release, current legislation makes it *nearly* impossible to effectuate a release from GTMO.  The long and short of it is that the Secretary of Defense must make a series of rather difficulty certifications, arguably impossible to meet in most circumstances.  The hope, presumably, is that Congress will come to its senses sooner or later, and restore the approach it took during the Bush Administration whereby the executive branch was given the flexibility to make these critical judgments.

What is the purpose of the PRB review, if not to relitigate the legality of the detention decision? The substantive standard in the PRB process is whether continued detention “is necessary to protect against a significant threat to the security of the United States.”  That is to say, even if the person is lawfully subject to detention, the PRB should refuse to continue the detention if the person does not pose a significant security threat.

What if the person is not a security threat, but happens to have potential intelligence value? This is not a proper ground for continued detention under the PRB system (I believe this is different from ARBs, and hence a substantial difference between the two systems).  [Note: The language here is a bit tricky, and I might be wrong about this point.  Since the test is that continued detention must be "necessary to protect against a significant threat to the security of the United States," I suppose it remains possible to argue in a particular case that the test is satisfied where a person is not likely to be dangerous if released yet could be the source of important information if held in continued detention subject to interrogation....] [I added this line in after my original post.]

Can the government avoid PRB review by moving a detainee to the DFIP or elsewhere? No – PRB jurisdiction follows the detainee once it attaches.

So how does it work, procedurally? No later than one year from today, everyone in the category described above must have their first hearing before a PRB.  The detainee will receive an unclassified summary of the “factors and information” that will be offered to the PRB.  The detainee will always get a “personal representative” (not necessarily a lawyer) to assist, and even more notably will have assistance of private counsel if he wishes (not at government expense).  To the extent that the private counsel has appropriate clearances, the private counsel can have access to the classified portions of the record, though he or she cannot then share that information with the detainee.  In that sense, the PRB is not fully adversarial but is far more adversarial than was the ARB process.  In special circumstances, the government can supply the personal rep/private attorney with a substitute/summary of highly-sensitive classified information.  Note, for what it is worth, that the option of having counsel in this proceeding is above and beyond what would be required by IHL with respect to the internment of civilians posing an imperative threat to security in the context of an international armed conflict, and of course IHL imposes no obligation to have any such procedure in the first place in the IAC setting insofar as POWs are concerned.

Who serves on the PRB? Another major break with the ARB system, which involved only military officers.  The PRB consists of “senior officials” designated for this task from State, Defense, Justice, Homeland Security, ODNI, and CJCS.  This is a major change from the ARB process, as it converts an entirely military review system into an interagency process (shades of the Guantanamo review task force process).  Equally significant, the PRB must make unanimous decisions.  Should any one member disagree, the matter goes to a “review committee” consisting of SecState, SecDef, the AG, the Secretary of Homeland Security, the DNI, and the CJCS–i.e., the Principals Committee.

How often? Whereas ARBs met once a year, PRBs have a more complex structure.  The first time through, the hearing will be live.  Should the detention be sustained, the detainee then becomes entitled to reconsideration every six months (shades of the GCIV security interment regime), based on the written record (i.e., “File Review”) (including any information the detainee or counsel wish to add to it).  Should the “file review” raise a “significant question,” then a full (live) session must be convened.  In any event, after three years, the review must once again be a live session. The cycle then continues.

What does this mean for the alternative of criminal prosecution? The EO explicitly states that there is a continuing obligation to review each detainee’s sitution to determine whether and when a prosecution would be viable.

A Requirement of Overarching Review from the Principals Committee– Interestingly, the EO directs the aforementioned Review/Principals Committee to conduct an annual review of transfer efforts for any circumstance in which a PRB directed transfer and more than six months have gone by without effectuating that transfer.  The Committee is also supposed to do this with respect to any detainee who has prevailed in their habeas case and has not been transferred (so long as the appellate process is over), and for any person who did not get a PRB to begin with because the executive branch itself determined that it did not wish to continue to hold them in military custody or to prosecute them (think Yemenis).  In addition, the Committee is supposed to review any internally-imposed bans on transfers to particular countries.  On top of all that, the EO directs the Principals Committee to “review whether a continued law of war detention policy remains consistent with the interests of the United States,” both at the end of one year from today and then again every four years thereafter.

2. Other points drawn from the “Fact Sheet”

Military Commissions Are Back On – Point one in the fact sheet is that the option of swearing and referring new charges for the military commission system is back on, after a suspension dating back to early 2009.  We should be seeing some new cases announced shortly, as a result.  Note that this does not mean, necessarily, that anyone (like KSM) previously slotted for civilian prosecution will instead now get a military commission proceeding.  That remains to be seen.

GTMO closure – The Administration has restated its committment to closing GTMO, at least in theory.

A more full-throated defense of civilian prosecution as an option – This stood out to me.  The fact sheet shows some life in the Administration with respect to the legitimacy of the civilian prosecution option.  It refers explicitly to some in Congress having “sought to undermine this process”.  “Some” indeed.  The passage makes arguments about why the legislation prohibiting the Administration from taking steps to prosecute in civilian courts is “dangerous and unprecedented,” but doesn’t actually argue that it is unconstitutional (though it does not exactly endorse the constitutionality of such measures either).

Ratification of Additional Protocol II and Acceptance of Article 75 of API as Customary Law - Now this is very interesting!  The Fact Sheet announces that the Administration will urge the Senate to consent, at last, to APII, the 1977 convention that adds considerable clarity to the IHL rules applicable in certain non-international armed conflicts.  President Reagan submitted this treaty to the Senate in 1987, and 165 states are party to it.  The Administration conducted an interagency process to ensure that DOD and other entities were comfortable with accepting AP II in light of current operations, and the Fact Sheet states that we are in fact in compliance already.    Separately, the Fact Sheet indicates that going forward the US will “choose out of a sense of legal obligation to treat the principles set forth in Article 75 [of Additional Protocol I, governing international armed conflicts] as applicable to any individual it detaines in an international armed conflict….”  That is to say, John Bellinger’s recommendation that we accept Article 75 as customary law appears to be accepted here.

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