Guantanamo: Legislation

Relaunch of the GTMO Periodic Review Boards

By Robert Chesney
Wednesday, October 9, 2013, 3:11 PM

Just as the great post-2008 wave of GTMO habeas litigation winds down, it appears to be time, at last, to revive the Periodic Review Board system at GTMO.

DOD breaks the news here (text reprinted below the fold).  Of course, I wrote something similar back in June, which tells you something about how slow this is developing.  That said, today's announcement has a lot more detail than the news from this summer.  We are told, among other things, that there will be an in-person review once every 3 years and a file-based review every 6 months; that detainees will have the option of representation by private counsel; that there will be a website (eventually); that the PRB will have one rep each from DOD, State, DHS, DOJ, DOJ, Joint Staff, and ODNI; that in the absence of consensus PRB recs will be kicked up to a review panel that consists of SecDef, AG, SecDHS, the DNI, SecState, and CJCS; that the PRB will not consider information that is derived from torture or CID treatment; that there will be a procedure for providing evidentiary summaries/substitutes in the event information is withheld from the detainee's personal rep or lawyer on security or privilege grounds (ala CIPA); and that detainees will be allowed to submit witnesses who are "reasonably available".  Note that there is no word on whether the administration plans to begin issuing certifications as needed under the NDAA in order to implement any transfer recommendations that may emerge from this process.  Other details are here in DOD "Directive-Type Memorandum (DTM) 12-005, 'Implementing Guidelines for Periodic Review of Detainees Held at Guantanamo Bay per Executive Order 13567." from May 9, 2012 (as amended October 31, 2012) -- here.

Anyway, here is the full statement from DOD today:

Periodic Review Board Process Underway

The Department of Defense announced today that the Periodic Review Board (PRB) process is underway. The PRB process was established to review whether continued detention of certain detainees held at Guantanamo Bay remains necessary to protect against a continuing significant threat to U.S. national security.

By Executive Order in March 2011, the President directed the Department of Defense to establish a PRB process. After working through numerous, complex issues associated with building a comprehensive process for this purpose, the PRBs were initiated.

The PRB process makes an important contribution toward the Administration’s goal of closing Guantanamo Bay by ensuring a principled and sustainable process for reviewing and revisiting prior detention determinations in light of the current circumstances and intelligence, and identifying whether additional detainees may be designated for transfer.

By necessity, detainee reviews will involve considering highly classified intelligence in addition to information that can be made public. To enhance the transparency of these reviews, the Department will operate a website to share unclassified information with the public. Postings will include milestones in each detainee’s case, unclassified information associated with the PRB hearings, and the results of the detainee reviews. This website is currently under development and is projected to become operational later.

The Department remains committed to responsibly reducing the detainee population and ultimately closing the detention facility at Guantanamo Bay.


President Obama has repeatedly called for the closure of the Guantanamo Bay detention facility. At his direction, the Department of Defense is administering a discretionary, administrative interagency process to review whether continued detention of particular individuals held at Guantanamo remains necessary to protect against a continuing significant threat to the security of the United States. This Periodic Review Board (PRB) process was established by the President’s March 7, 2011 Executive Order (EO) 13567 and will be conducted consistent with section 1023 of the National Defense Authorization Act (NDAA) for Fiscal Year 2012. This process makes an important contribution toward the goal of closing Guantanamo by ensuring that the government has a principled and sustainable process for reviewing and revisiting prior detention determinations in light of the current circumstances and intelligence.

Unlike previous processes administered by the Department of Defense, the PRB includes a cross-section of the national security community. The PRB decision-making panel consists of one senior official from the Departments of Defense, Homeland Security, Justice, and State; the Joint Staff; and the Office of the Director of National Intelligence.

The PRB process does not address the legality of any individual’s detention under the authority of the Authorization for Use of Military Force, as informed by the laws of war. Detainees have the constitutional privilege of the writ of habeas corpus to challenge the legality of their detention, and nothing in EO 13567 or its implementing guidelines is intended to affect the jurisdiction of federal courts to determine the legality of their detention. If, at any time during the PRB process, material information calls into question the legality of detention, the matter will be referred immediately to the Secretary of Defense and the Attorney General for appropriate action.

The PRB will consider the threat posed by each detainee under review. In particular, the PRB will be tasked with determining whether law of war detention remains necessary to protect against a “continuing significant threat to the security of the United States.” In making this assessment, the Board will be given access to all relevant information in detainee disposition recommendations that have been produced by the Guantanamo Review Task Force (established by EO 13492), the work product of any prior PRB, and any additional relevant information that has become available. The PRB may also consider diplomatic considerations or security assurances related to the detainee’s potential transfer, the detainee’s mental and physical health, and other relevant information. The PRB will also receive and take into account all mitigating information relevant to whether the detainee poses a continuing significant threat. The PRB will not rely on information that has been obtained as a result of torture or cruel, inhuman, or degrading treatment to support a determination that continued law of war detention is warranted for a detainee.

The PRB process is intended to assist the executive branch in making informed decisions as to whether detainees held at Guantanamo Bay should remain in law of war detention. Informed decision-making will be aided by providing detainees an opportunity to participate in the process as appropriate. To this end, detainees will be provided an unclassified written summary of the information considered by the PRB and will be permitted to respond with statements written by themselves and witnesses. Detainees will also be afforded the opportunity to appear before the PRB via video or telephone conference. Detainees may request the presentation of testimony at the hearing by witnesses who are reasonably available and willing to offer relevant and material information regarding whether continued law of war detention is warranted.

In every PRB proceeding, the detainee will be provided with a uniformed military officer (referred to as a personal representative) to assist the detainee during the PRB process. The detainee’s personal representative will have the security clearance necessary to review the information provided to the Board and will be responsible for advocating on behalf of the detainee, challenging the government’s information, and introducing information on behalf of the detainee. The detainee will also have the ability to obtain private counsel, at no expense to the government, to assist the detainee in the review process.

The detainee’s personal representative will receive full access to the information considered by the PRB, except in the rare instances where doing so would put the national security at risk. Any private counsel for the detainee possessing an appropriate security clearance will also receive access to the information the PRB considers, except in the exceptional circumstances above, or where necessary to protect law enforcement or privilege concerns. In cases where information considered by the PRB is withheld from a detainee’s personal representative and/or private counsel, substitutes or summaries of the withheld information will be provided. The PRB will ensure that any such substitutes or summaries of information are sufficient to provide the personal representative or private counsel with a meaningful opportunity to assist the detainee during the review process.

Process timelines have been developed to ensure that detainees and their representatives receive ample time to prepare meaningful submissions, with hearings generally occurring approximately 90 days after a detainee receives notification that his PRB review process will commence. A general sequencing timeline is below.

Full reviews of each detainee, to include the hearings described above, will be conducted every three years. File reviews will be conducted for any detainee whom the PRB has determined that continued detention is necessary every six months in between full reviews, and will focus on any new information or changed circumstances that the PRB should consider.

The PRB can recommend continued law of war detention or recommend a detainee’s transfer, including establishing the conditions for transfer. A Review Committee will conduct a review of the PRB’s determination if: (1) a member of the Review Committee seeks review within 30 days of the PRB’s determination, or (2) the PRB cannot reach consensus. The Review Committee is composed of the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff. Once a PRB determination becomes final, the detainee may not appeal. However, with semi-annual file reviews and periodic full reviews, the detainee will have a continuing opportunity to regularly present to the PRB any new and relevant mitigating information.

Additional information regarding the structure of the PRB process can be found in DoD Directive-Type Memorandum (DTM) 12-005, “Implementing Guidelines for Periodic Review of Detainees Held at Guantanamo Bay per Executive Order 13567.”