Review Process Unprecedented
Recently, the Department of Defense achieved a major milestone in the detainee review board process – the completion of the first round of Administrative Review Boards (ARB).
Review process unprecedented
By Spc. Timothy Book
JTF-GTMO Public Affairs Office
The purpose of the ARB process is to assess annually whether each enemy combatant at Guantanamo continues to pose a threat to the United States or its allies, or whether there are other factors that would support the need for continued detention. Just last month, Deputy Secretary of Defense Gordon England, the Designated Civilian Official (DCO), made final decisions on 463 board recommendations; these decisions consist of 14 releases, 119 transfers and 330 continue to detain. To put this in perspective, roughly 33 percent of the current detainee population will eventually leave the island once the U.S. government has received the necessary assurance from the country of transfer and after our government receives necessary assurances regarding security measures and ensuring the detainee will not be mistreated upon their transfer.
Prior to beginning an ARB, the Office of the Adminstrative Review of the Detention of Enemy Combatants (OARDEC) notifies U. S. government agencies, including the National Security Council (NSC), Department of State (DoS), Department of Justice (DoJ), Federal Bureau of Investigation (FBI), and the Central Intelligence Agency (CIA), that it will hold an ARB on a specified detainee. OARDEC also solicits inputs from a variety of DoD commands.
Those agencies will have an opportunity to provide both classifi ed and unclassified information to OARDEC in order to assist the ARB panel in making a recommendation to the DCO. This information is summarized at OARDEC Headquarters (OARDEC HQ), located in Washington, D. C., and, after coordination with the agencies providing data, forwarded to the OARDEC detachment at Guantanamo Bay for use by the ARB panels.
Each ARB panel consists of three commissioned military officers sworn to execute their duties faithfully and impartially. The Presiding Officer must be an O-6, and one member of the board must have an intelligence background. Other participants in the ARB process include the Designated Military Officer (DMO) and Assisting Military Officer (AMO). The DMO verifies for accuracy and submits to the ARB panel classified and unclassified summaries of factors to be considered in determining the recommendation for release, transfer with conditions, or continued detention. The AMO meets with the enemy combatant (EC), explains the opportunities available to the enemy combatant in the ARB process, offers to assist the EC in making a presentation to the ARB panel or, if desired by the EC, makes the presentation on his behalf.
The enemy combatant may choose whether or not to participate in this process. The EC has the opportunity to attend all open (unclassified) sessions; to testify on his own behalf if he desires; to receive assistance from an interpreter; and to receive assistance from the AMO in understanding the process and preparing for his board hearing. The AMO is not an advocate for the detainee, but serves to assist the detainee in understanding the process and presenting information.
For each EC, an ARB panel considers all information in the government’s possession; information (if any) provided by the EC; and any input received from the detainee’s home country and family. Some of the main factors considered by the ARB in assessing each EC and developing its recommendation are: the extent of the threat a detainee may continue to pose to the US and its coalition partners if released or transferred; the detainee’s level of intelligence value; whether the detainee is under investigation for potential charges of war crimes; the detainee’s willingness and ability to accept responsibility for his actions if released or transferred; and the detainee’s home country’s willingness and ability to accept responsibility for the detainee if released or transferred.
An ARB panel’s recommendation is based on the totality of these factors with no one item outweighing the others. The panel’s recommendation is made by a strict majority vote with any dissenting opinions being included in the final report.
The ARB presiding officer is responsible for ensuring that a record of the proceeding is kept; that the ARB panel considers all factors in recommending whether an EC should be released, transferred or continue to be detained; and that a record of the proceedings is forwarded to the DCO for final decision. After a legal sufficiency review at OARDEC HQ, Secretary England reviews all material submitted by OARDEC before making the final decision whether to release, transfer with conditions, or continue to detain. If the final decision is to either release or transfer with conditions, the DCO coordinates with DoD and DoS for the implementation of that decision. If the decision is to continue to detain, the detainee is scheduled for another ARB within the following year.
“The ARB is discretionary and is not required by the Geneva Convention, U.S. law, or international law,” said Rear Adm. Jim McGarrah, Director of OARDEC. “Because of the highly unusual nature of the Global War on Terrorism and because we do not want to detain enemy fighters any longer than is necessary, DoD has taken this unprecedented and historic action to establish a process to permit enemy fighters to be heard while hostilities are ongoing.
”“In order to accomplish this assessment, OARDEC coordinates within the Department of Defense, and with the Department of State, Department of Justice, the Central Intelligence Agency, Department of Homeland Security, and the National Security Council staff to acquire information relevant to each detainee’s situation,” said McGarrah. “Additionally, unless national security concerns dictate otherwise, we coordinated through the Department of State to provide each detainee’s home nation the opportunity to provide information, including the opportunity to submit information from the detainee’s family.
” The ARB does not determine guilt or innocence. “We consider all the information that is reasonable and relevant and we make a recommendation whether the detainee fighter can be released, transferred, or continued to be detained,” said Navy Lt. Cmdr. Chito Peppler, OARDEC PAO.
“We seek to balance the safety and security of the American people, and our coalition partners, with the rights of each individual,” said McGarrah. “The American people who we represent deserve it; they expect nothing less.” .