When many people think of Guantanamo Bay proceedings, they think of the U.S. Military Commissions that are set to try some detainees for war crimes. Not many think about a special type of administrative hearing through which detainees can plead for their release.
These hearings are called Periodic Review Boards (PRBs), and are rooted in an Executive Order issued by President Obama in 2011. In PRBs, detainees are permitted to argue that they do not threaten U.S. national security, and should be released from Guantanamo Bay, with either repatriation to their home countries or resettlement in a 3rd country. More about PRBs can be found here.
Detainee PRB rights
Certain detainees (not all) have rights to up to 3 “types” of PRBs, including an “initial review” (within a year of the Executive Order), a file review (every 6 months after a final determination of an initial review), and a triennial full review (every 3 years). Either the detainee will remain at GTMO following reviews, be transferred to a 3rd country, or be repatriated to his home country. Following are a list of rights to be afforded to detainees at different phases (initial review, file review, triennial review, transfer or repatriation, or remaining at GTMO:
- The right to a PRB (“initial review”) within one year of the Executive Order (though the first initial review was conducted 2 years after the 2011 act, with one of the last initial reviews scheduled for July 2016)
- The right to advance notice of the PRB, in writing and in a language the detainee understands, of the PRB
- The right to attend his PRBs
- The right to be assisted in PRB proceedings by a U.S. Government-provided personal representative who possesses the security clearances necessary for access to the information [It appears as though this representative is a “uniformed military officer” – see http://www.prs.mil.] [I have not yet attended a PRB, so I do not know whether the representative in fact wears a U.S. military uniform.]
- The right to have the Government-provided personal representative advocate on the detainee’s behalf before the PRB
- The right to have the Government-provided personal representative challenge the Government’s information and introduce information on behalf of the detainee.
- The right to retain private counsel to assist him (though at no expense to the United States)
- The right to have the U.S. provide him an unclassified summary of the factors and information the PRB will consider in evaluating whether the detainee meets the Executive Order standard, and this must include a summary of or substitute for classified information that is sufficient to assure a meaningful opportunity for the detainee to participate in PRB. The written summary shall be sufficiently comprehensive to provide adequate notice to the detainee of the reasons for continued detention. If a sufficient unclassified summary of classified information cannot be created, that information may not be considered by the PRB in its determination.
- The right to call witnesses who are reasonably available and willing to provide information that is relevant and material.
- The right to answer questions posed by the PRB (and presumably the right to refrain from answering questions)
- The right to present a written or oral statement for the PRB to consider
- The right to an interpreter (and presumably the right to have documents translated into a language he understands)
- The right to introduce relevant information, including written declarations
- The right to have the government provide mitigating information
- The right to have a PRB consisting of representatives of each of the Departments of Defense, State, Justice and Homeland Security; the Chairman of the Joint Chiefs of Staff; and the Office of the Director of National Intelligence.
- The right to the PRB’s prompt determination, by consensus and in writing, as to whether the detainee’s continued detention is warranted under the Executive Order’s standard, in a language the detainee understands, within 30 days of the determination when practicable.
- The right to a full review every three years if the initial review is negative
- The right to a file review every 6 months if the initial review is negative.
- In “lieu of” a right to appeal a determination of the any PRB, the right to 6 month file review and 3 year full review (see above)
- If the detainee is determined to be no longer a threat per the Executive Order, the right to have the Secretaries of State and Defense to ensure that vigorous efforts are undertaken to identify a suitable transfer location for any such detainee, outside of the U.S.
- The right to have the Secretary of State, in consultation with the Secretary of Defense, obtain security and humane treatment assurances regarding any detainee to be transferred to another country, and for determining, after consultation with members of the Committee, that it is appropriate to proceed with the transfer.
- The right to have the Secretary of State evaluate humane treatment assurances.
For more on PRBs, please click this link.