On June 24, 2006, the Department of Defense (DOD) announced that it was transferring 14 Saudi detainees from the Guantanamo Bay (GTMO) prison and interrogation camp operated by  Joint Task Force Guantanamo (JTF-GTMO) at the U.S. Naval Station, Guantanamo Bay, Cuba, to the custody of the government of Saudi Arabia. 

The transfer is based upon decisions by a Combatant Status Review Tribunal (CSRT) and an Administrative Review Board (ARB).  One detainee is being transferred as the result of review by a CSRT and 13 were approved for transfer by an ARB. 

Approximately 450 alleged terrorist detainees remain at GTMO, of which 120 have been approved for transfer and release pending ongoing discussions between the United States and their home countries.  Since the establishment of the GTMO prison camp, approximately 310 detainees have left GTMO for Albania, Afghanistan, Australia, Bahrain, Belgium, Denmark, France, Great Britain, Kuwait, Morocco, Pakistan, Russia, Saudi Arabia, Spain, Sweden and Uganda. 

For a list of all 759 publicly acknowledged GTMO detainees and their home countries, spanning from January 2002 to May 15, 2006, click here. 

Of the detainees, there are approximately 100 each of Saudi, Yemeni, and Afghan detainees, and the remainder are from three dozen countries.  Reuters recently reported that State Department Legal Advisor John Bellinger has cautioned that the home countries of some detainees deny that detainees are their nationals or do not want them back.[1]  Conversely, if a country is willing to take a detainee back, concerns can be raised over how the detainees will be treated upon their return.  There is speculation over whether criticism of GTMO by some detainee home countries is muted because of prison conditions in the home countries.[2]

On GTMO itself, controversy has centered on past and current detainee treatment, interrogation methods, mental health issues and recent suicides, and the legal framework surrounding GTMO.  Some of the legal questions include the legal status of detainees, what future resolution of their status might take place, and the procedural methods at work, such as whether secret evidence, or evidence obtained through coercive means either on GTMO or elsewhere, could be admitted into evidence to determine a detainee’s fate.  In addition to earlier stages of review attendant to taking detainees into custody, three types of tribunals are at work on GTMO: CSRTs, ARBs, and military commissions.  As mentioned above, a CSRT and ARB were involved in the recent release of the Saudis, apparently none of whom were facing military commissions.  In the coming days, the U.S. Supreme Court is expected to release a decision in Hamdan v. Rumsfeld involving military commissions, but none of the 14 Saudis recently released will be affected by this decision since they were not facing military commissions.

Combatant Status Review Tribunal (CSRT)

Confusion seems to continue over the role of the CSRTs in determining the fate of detainees.  A June 24, 2006, Pentagon news release about the transfer of the Saudi detainees noted “one detainee [was] found to no longer be an enemy combatant by the Combatant Status Review Tribunals” (emphasis added).  But the intended purpose of a CSRT is not to review whether a detainee was an enemy combatant and has stopped being a threat; that is the role of the ARB.  The concept of the CSRT was to revisit, and ratify or overrule, earlier threshold determinations about whether a detainee was an enemy combatant to begin with. 

If, at this late date, a CSRT has decided to release a GTMO detainee, that raises the prospect that the detainee was never an enemy combatant from the start.  At the same time, not all GTMO detainees were seized in Afghanistan early in the Afghan conflict.  Some detainees were taken at a later point, and from other places.

The CSRTs were created following the Supreme Court Rasul v. Bush decision of June 28, 2004, that GTMO detainees could bring habeas corpus actions in civilian U.S. federal courts challenging the executive branch to acknowledge and justify their detention before a court of law.  DOD indicated it looked to the plurality opinion in Hamdi v. Rumsfeld, also released June 28, 2004, albeit relating to the detention of a U.S. national on U.S. territory, for guidance as to steps to follow to provide procedural fairness in the determination of whether a particular individual is an enemy combatant.

The establishment of CSRTs, ARBs and military commissions were condoned after-the-fact by the 2005 Graham-Levin amendment to the Fiscal Year (FY) 2006 Defense Authorization bill (detainee provisions are in Title XIV, with the Graham-Levin amendment in section 1405), which also provides for civilian appellate review by the U.S. Court of Appeals for the D.C. Circuit, congressional oversight over procedures, and the barring of evidence gained through coercion.  Note that a somewhat cryptic presidential signing statement by President George W. Bush raised questions about how he might try to implement this provision and the McCain amendment on detainee maltreatment. (Click here for the signing statement for the FY 06 Defense Authorization bill, and click here for another signing statement containing provisions incorporated by reference into the other signing statement.)

Administrative Review Board (ARB)

It is the ARB, not the CSRT, which was intended to review on a periodic, ostensibly annual, basis whether, having been determined to be an enemy combatant, a particular detainee would be held until the conclusion of hostilities, as traditionally would be the case with enemy prisoners of war (EPW).

This tribunal existed prior to the Supreme Court’s involvement and was declared an effort to mitigate the problem that, on the one hand, EPWs traditionally can be held for the duration of hostilities, but in the context of the global war on terror (GWOT), it is unclear when or if hostilities will ever cease.  In addition, GWOT enemy detainees often are from friendly countries and it is the individual and his organization, not his home country, which wants to attack the United States and other strategic targets.  The idea of the ARB is that even if hostilities are ongoing, and even if a detainee actually is a terrorist, an ARB might determine that at some point in time he no longer is a threat, and release him.  In some instances, former GTMO detainees have “returned to the fight.”

However, one important additional criterion for ARB review is intelligence value, raising questions about the willingness to hold a detainee in the hope of gleaning additional information from interrogating them, independent of the question of how much of a threat he poses.

Military Commissions

Unrelated to the transfer of the Saudi detainees, an additional type of tribunal, the GTMO military commission, is intended to prosecute detainees for war crimes.  If convicted, a detainee’s status would be converted from something akin to EPW to something quite different, a convicted criminal, subject to incarceration or execution as a punitive measure, i.e., as punishment for a crime, as opposed to the concept of removing a combatant from hostilities and attempting to interrogate him. 

During the week of June 26, 2006, the Supreme Court is expected to release its decision in Hamdan v. Rumsfeld addressing at least some aspects of the military commissions. 

Certiorari had been granted Nov. 7, 2005, to determine whether a congressional Authorization for the Use of Military Force (AUMF) after the attacks of Sept. 11, 2001, in which a Supreme Court plurality held in Hamdi implied the authority to take enemy prisoners, also implied an authorization for military commissions, and whether detainees could use civilian federal courts to enforce certain elements of the Geneva Conventions. 

Since certiorari was granted on Nov. 7, 2005, Congress acted with the Graham-Levin amendment, adopted in the Senate Nov. 15, 2005, with the entire Senate FY 06 Defense Authorization bill also passing the Senate Nov. 15, 2005. (The conference report on the related House version passed the House Dec. 19, 2005, and the Senate on Dec. 21, 2005.  The president signed the final package into law Jan. 6, 2006.) 

It is not clear precisely what territory the Court will tread into with its opinion, although the Court clearly still considers the matter before it.  Oral argument on March 28, 2006, was wide-ranging, touching on such questions as how to apply the Graham-Levin amendment (referenced as the Detainee Treatment Act [DTA]) with respect to its effective date provisions and provisions impacting habeas corpus jurisdiction, whether Congress has suspended the right to a writ of habeas corpus (a right which essentially bars being imprisoned without a lawful basis, established before a court of law), whether international law permits war crimes charges for conspiracy, how the Uniform Code of Military Justice (UCMJ) should apply to military commissions, the general nature of the commissions and their legal framework, the applicability of provisions from the Geneva Conventions and the timing and scope of the appeal presently before the Court itself.  (Click here to listen to the oral argument, or click here to read the transcript. Click here for links to the briefs.)

Only eight justices are reviewing Hamdan.  Chief Justice John Roberts has recused himself, already having participated in a panel of the D.C. Circuit hearing the case prior to his appointment to the Supreme Court.

Legal frameworks unfolding

The GTMO situation has evolved, both with respect to the conditions and practices of the prison and interrogation camp itself, and with the manner in which American democracy has addressed it.  At one time neither the Supreme Court nor Congress had spoken to the legal and other frameworks involved, which rested largely upon a congressional Authorization for the Use of Military Force (AUMF) (which, it was argued, implied the authority to take enemy prisoners, an argument accepted by the Supreme Court in Hamdi), a presidential military order on the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” authorizing detentions and prosecutions before military commissions, and narrowly or broadly related preexisting or new DOD rules and directives.  Later the Supreme Court and, as mentioned above, Congress would weigh in, a process still unfolding, and note that Army Field Manual provisions have been under revision both for detainee policies generally and for intelligence interrogation.  In addition, the applicability and interpretation of various instruments of international law, such as the Geneva Conventions, has at times been the subject of bitter debate.

Recently Bush pointed to the Supreme Court’s forthcoming decision in Hamdan v. Rumsfeld as a key to determining how to process alleged terrorists and potentially close the GTMO prison.  At the same time, only 10 GTMO detainees have had charges brought against them before military commissions, although the government reportedly is considering an initial wave of at least another 75 military commission prosecutions.  But even the GTMO controversy itself, while symbolic, does not encompass the whole of GWOT detainee questions as it is.  For example, there still is the question of rendition and secret detentions elsewhere.

How to categorize terrorism

Ultimately, of course, there is the question of whether terrorism is a crime, an act of war, a war crime, or all of the above.  Generally speaking, a violent act without lawful excuse is a crime.  But soldiers shooting other soldiers in battle generally are given combat immunity, such that they cannot be prosecuted as criminals but can be removed from hostilities and held as prisoners of war (POWs) for the duration of hostilities.  However, even if a soldier commits a war crime he loses combat immunity.

Terrorists can be prosecuted as civilian criminals, and in fact the one person prosecuted in connection with the attacks of Sept. 11, 2001, themselves, Zacarias Moussaoui, was prosecuted in the civilian U.S. District Court for the Eastern District of Virginia.  In that prosecution, procedures were modified to submit evidence in unusual ways to cater to national security concerns.  For example, secret intelligence interrogation of reputed Sept. 11 “mastermind” Khalid Sheik Mohammed was used as a source of evidence, with a transcript read of interrogation summaries prepared by a U.S. intelligence agency, accompanied by a short written statement from the interrogation subject.

If terrorists are to be treated as EPWs, technically their incarceration is not for punitive purposes, but to simply to remove them from combat.  But the focus on interrogation, and any willingness to coerce interrogation, arguably makes the detainee operations in GWOT different, in degree or in kind, than those envisioned by the Geneva Conventions.

One threshold question about any government detention of any individual, of course, is not just that of fairness, but accuracy.  If a person is declared to fall into a given status, the question is, what is the basis for that belief, is that basis sound, is the process by which that basis was arrived at appropriate and reliable, and are there checks and balances in place?  For in a democracy, however expert or efficient a government actor is, to be democratic and to be effective one does not check one’s own work.

At the same time, to the extent it can be established under law that a suspect is in fact a terrorist, it must be remembered that terrorism is, at its heart, lawlessness.  The deliberate killing of noncombatants in war, for example, is an international crime.