Guantanamo Bay Periodic Review Board (PRB) Project:  Administrative Detention Rights & Interests of Detainees Without Being Charged

Introduction

My first non-media exposure to Guantanamo Bay occurred in July 2003 when I was lecturing at the University of Kuwait Law Faculty. I asked the students to identify international human rights law issues they knew about, anywhere in the world. One young man raised his hand and said that his brother was 25-year old Fawzi al Odah, one of a dozen Kuwaitis then being held at Guantanamo Bay (Gitmo). I talked briefly with the student then, and later that evening with his father, who told me that al Odah had been at GTMO since February 2002. Theory turned real. (For a discussion of this encounter in Kuwait, see Fran Quigley, Turning the Abstract Into Reality, http://www.bloomingtonalternative.com/articles/2003/08/31/7366) (July 2003)

In 2014, over a decade after my chance, brief encounters with his family, Fawzi al Odah — known as Guantanamo number ISN 232 — was repatriated from Guantanamo Bay to be with his family in Kuwait. Al Odah had been cleared for release following a determination by a Guantanamo Periodic Review Board (PRB), which is an administrative hearing ordered for detainees by the Obama Administration in 2011 to ascertain whether a detainee’s detention is necessary to protect U.S. national security interests. It is these PRBs that are the subject of the Guantanamo Bay Periodic Review Board (PRB) Project of The Gitmo Observer.

Before delving too deeply into the GTMO PRB Project, let me share more about my Guantanamo Bay exposure. The PRB Project relates to much of what I have done and am doing regarding Guantanamo Bay for 13 years, in that the PRB Project brings to the forefront another group of individuals (and entities) that are part of a wider body of Guantanamo Bay stakeholders whose rights and interests I have been examining. It is informative to share more about my (and my Indiana University School of Law’s programs’) exposure to Guantanamo Bay.

Post-Kuwait Guantanamo Bay exposure

Following my encounters with family members of al Odah in Kuwait, my next Guantanamo Bay exposure was also unexpected.

A month after I was in Kuwait in July 2013, the then newly appointed Guantanamo Bay Chief Defense Counsel asked if I and my Indiana University McKinney law students would do a project related to rights of GTMO detainees, who at that point numbered in the high hundreds. For the next several months, we explored rights afforded to defendants at the Nuremberg and Tokyo trials post-World War II, believing that at the very least, any Guantanamo Bay defendants should be afforded rights at the same level as provided in the post-War war crimes tribunals.

After that project, which produced over a dozen thick binders of material, my students and I worked on the Guantanamo Bay case of Australian David Hicks, for which I was an expert witness, and the case of Canadian Omar Khadr, again looking at the rights of defendants before the earlier iterations of the U.S. Military Commissions, which were superseded by the iteration in place today.

Guantanamo Bay Fair Trial Manual – rights & interests of all GTMO stakeholders, including uncharged detainees undergoing PRBs

More recently, after a hiatus from Guantanamo Bay work, my Indiana students and I began to research and write the Guantanamo Bay Fair Trial Manual, that explores the rights and interests of all Guantanamo Bay stakeholders, in particular as related to the U.S. Military Commissions.

Military Commission defendants are stakeholders, and we have been examining their rights and interests.

But, stakeholders in the U.S. Military Commissions at Guantanamo Bay include a range of individuals and groups, in addition to defendants. These stakeholders include (a) the prosecution; (b) the defendant and defense counsel (as mentioned); (c) judges and judicial staff; (d) victims; (e) victims’ families; (f) witnesses; (g) the press; (h) NGO Observers; (i) the court itself; (j) JTF-GTMO personnel; (k) the U.S. public”; (l) the international community (including government treaty partners, governments bound by customary international law that also binds the U.S., governments of detained citizens, and governments whose citizens are victims); and (m) other entities and individuals, including GTMO detainees who are not and who may not be charged but are subject to Periodic Review Boards (PRBs) to ascertain whether their continued detention is “necessary to protect against a continuing significant threat to the security of the United States”.

It is those in this last category of persons – uncharged detainees who are subject to Periodic Review Boards – who are the subject of this Guantanamo Bay Periodic Review Board (PRB) Project of The Gitmo Observer. These PRBs are considered administrative proceedings, and not criminal proceedings. Thus, the rights and interests typically associated with criminal proceedings do not apply. However, “wartime detention” rules, coupled with international human rights law and related law, do indeed provide various protections, as described below.

Before discussing the rules related to the  PRBs, it should be mentioned that PRBs are not the first type of administrative process available to Guantanamo Bay detainees. Since I have been involved with Guantanamo Bay, other formal administrative proceedings, now defunct, included:

• Combat Status Review Tribunals (CSRTs) (to determine if a detainee was an enemy combatant – process rendered inadequate and abolished) (for the CSRT standards, see http://archive.defense.gov/news/Oct2006/d20061017CSRT.pdf) ; and
• Administrative Review Boards (ARBs) (examples of ARBs can be found in this July 2005 DoD web release — http://archive.defense.gov/news/newsarticle.aspx?id=16694) .

More about those defunct administrative review processes is discussed in the Guantanamo Bay Fair Trial Manual, and in at least 3 chapters of The Guantanamo Bay Reader (which is under contract to be published by Indiana University Press). (Indeed, one chapter of The Guantanamo Bay Reader is devoted exclusively to PRBs, and that chapter touches on the CSRTs and the ARBs.)

The PRBs were provided for in a 2011 Executive Order (see below), and became operational in 2013 (behind schedule), and are at the heart of U.S. compliance with international and domestic law (including human rights law) and at the heart of efforts to close Guantanamo Bay while at the same time helping to ensure that national security interests are not compromised.

Whereas the Guantanamo Bay Fair Trial Manual deals primarily with rights of stakeholders before, during and after a U.S. Military Commission (trial), the Periodic Review Board Project focuses on rights and interests when a detainee is not going to be charged (or was charged with the charges dropped), and is being held under “wartime detention”, in this case, in the eyes of the U.S., under the AUMF (and of course under the law of war). Note that the earlier administrative detention mechanisms are not the subject of this PRB Project, and neither are U.S. federal court / Constitutional habeas considerations, which continue to operate in tandem with the PRBs. 

President Obama’s Executive Order on PRBs (7 March 2011)

On 7 March 2011 President Obama issued Executive Order 13567 to create a Periodic Review Board (PRB) process to help ensure that military administrative detention of any individual at Guantanamo Bay “continues to be carefully evaluated and justified, consistent with the national security and foreign policy interests of the United States and the interests of justice”. (Executive Order 13567–Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force  — https://www.whitehouse.gov/the-press-office/2011/03/07/executive-order-13567-periodic-review-individuals-detained-guant-namo-ba) (operating consistent with section 1023 of the Fiscal Year 2012 National Defense Authorization Act (NDAA).  The PRB process is 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.” see  http://www.prs.mil/About-the-PRB; http://www.prs.mil/AboutthePRB.aspx).  Per the Executive Order, PRBs are not intended to ascertain the legality of a prisoner’s detention. To the contrary, it has been stated, it decides whether continued detention is warranted given “important” interests.

[For a fuller-sized Chart of these PRBs, please scroll down to the very bottom of this page. Here is a smaller verstion of the Chart. Text of page continues after this Chart.]

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Per Section 1(b) of the Executive Order, PRBs do not create any additional or separate source of detention authority (other than “law of war detention”), and do not affect the scope of detention authority under existing law. The Executive Order notes that it does not affect constitutional habeas corpus, and does not affect federal court jurisdiction to ascertain whether a detainee is legally detained.

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:

1. 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)
2. The right to advance notice of the PRB, in writing and in a language the detainee understands, of the PRB
3. The right to attend his PRBs
4. 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.]
5. The right to have the Government-provided personal representative advocate on the detainee’s behalf before the PRB
6. The right to have the Government-provided personal representative challenge the Government’s information and introduce information on behalf of the detainee.
7. The right to retain private counsel to assist him (though at no expense to the United States)
8. 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.
9. The right to call witnesses who are reasonably available and willing to provide information that is relevant and material.
10. The right to answer questions posed by the PRB (and presumably the right to refrain from answering questions)
11. The right to present a written or oral statement for the PRB to consider
12. The right to an interpreter (and presumably the right to have documents translated into a language he understands)
13. The right to introduce relevant information, including written declarations
14. The right to have the government provide mitigating information
15. 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.
16. 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.
17. The right to a full review every three years if the initial review is negative
18. The right to a file review every 6 months if the initial review is negative.
19. 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)
20. 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.
21. 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.
22. The right to have the Secretary of State evaluate humane treatment assurances.

 

Are the PRBs effective? Have they been successful? What results from the 2011 Executive Order?

First, it should be noted that though the PRBs were meant to be commenced within one year after the March 2011 Executive Order, the first PRB did not commence until almost 2 years later. In that sense, the PRBs have not successfully fulfilled their promise.

Second, thus far, most of the PRBs for which decisions have been issued have resulted in findings that the detainees in question do not pose significant security threats to the U.S. Indeed, for every 2 detainees cleared, 1 detainee has not been cleared – That’s 2:1 in favor of cleared. Some of those cleared detainees have been repatriated to their home countries, while some have been released to 3rd countries. In addition, many of those cleared for release / repatriation remain at GTMO, unable to return home and with no country currently prepared to accept them.

Human Rights First reports as follows:

“Of the 36 detainees who have received decisions, 24 have been cleared for transfer by the PRBs, and 12 detainees have been recommended for continued indefinite detention. Ten of the 24 detainees cleared for transfer by the PRBs have been released from Guantanamo to their home countries or third countries.”

http://www.humanrightsfirst.org/resource/guantanamo-periodic-review-boards (as of July 2016)

Third, clearing of detainees (which some may argue has become frequent and routine) can be argued by some to suggest that the initial capturing and detaining of the prisoners were mistakes. Of the almost 800 detainees who have been held at GTMO since 2002, the overwhelming majority of them have been released without charges. Thus, it could be argued, the PRBs are helping on the back side to do what wasn’t done on the front side – careful, informed assessments before people were taken to Guantanamo Bay, rather than deliberative PRBs a decade or more after incarceration resulting in consistent clearing of detainees, who might have been “cleared” a decade ago had assessments been made then.

Fourth, presumably based on significant classified information, numerous detainees have not been cleared for release or repatriation, as it has been deemed that these individuals pose significant threats to the national security of the United States. Just as the PRBs are said to be intended to ascertain whether detainees are suitable for release, they are also intended to ascertain whether detainees should continue to be detained. The U.S. Government maintains that decisions to detain / release / repatriate, that are influenced by PRB determinations, are critically important to the national security of the U.S. So, it can be argued that the PRBs do in fact work when determinations are made that certain detainees do continue to pose threats to the national security of the U.S. (That is, the goal of the PRB does not appear to be to try to close Guantanamo or to try to clear detainees. The goal of the PRB is to make informed decisions, with the chips falling where they may – significant threat or no significant threat.)

Fifth, in the eyes of most if not all, the PRBs have been slow coming, and are slow going (though the pace picked up recently). Here are the Human Rights First statistics on past & remaining PRBs (as of 2 July 2016):

“The PRBs have held 55 hearings, for 51 detainees (four detainees have had two hearings). Decisions have been handed down for 36 detainees, with four detainees having received two decisions. Fifteen detainees are awaiting a decision and two detainees have been given hearing dates.

… .

Two detainees have been given hearing dates. Twenty-three additional detainees are slated for indefinite detention and are not waiting for PRB decisions (therefore eligible for PRBs), totaling 25 detainees. Of those, 11 have not yet had an initial hearing and have not been given hearing dates.”

http://www.humanrightsfirst.org/resource/guantanamo-periodic-review-boards

But then again, some PRBs have resulted in relatively quick clearances, and resettlement. For example, Obaidullah’s PRB was in the 2016 Spring, and he was resettled to the UAE 4 months later, on 13 August 2016.

Contours of the Guantanamo Bay Periodic Review Board (PRB) Project of The Gitmo Observer

1. To Monitor PRBs. The PRB Project monitors PRBs at all stages.
   1. Attend, observe, analyze, critique and report on PRBs.
   2. The Project has already reviewed many of the initial PRBs.
   3. The final initial PRBs appear to be ending in July 2016. After the initial PRBs are fully chronicled and analyzed, the PRB Project will focus on file PRBs and triennial interviews.
   4. We find that reviewing PRBs proceedings on paper does not provide as full and insightful of a view as possible. We are currently seek observer access to be able to witness the public portion of the remaining initial PRBs, and subsequent PRBs that have a public component.
   5. We seek to offer direct analysis based on personal observations of the PRBs. Viewing a detainee’s body language, facial expressions, demeanor, clothing, diction, and other visual and aural cues may offer insights into the case that cannot be discerned from transcripts. Observation via live video-feed trumps reading transcripts.
2. File PRBs. Attend, observe, analyze, critique and report on triennial PRBs. For each file PRB, to the extent materials are available online, publish a report.
3. Triennial PRBs. Attend, observe, analyze, critique and report on triennial PRBs. For each triennial PRB, publish a report.
4. Fair Trial Manual. Complete the PRB Chapter of The Guantanamo Bay Fair Trial Manual
5. The Reader. Complete PRB Chapter of The Guantanamo Bay Reader. Also, we have been in contact with lawyers for a detainee who has had a PRB for possible inclusion of his story in The Reader. The PRB is a critically important part of any detainee’s story.
6. Interview PRB participants. Continue interviewing participants in the PRB. Already, communications have been had with counsel for detainees who have had PRBs, including one counsel who has patiently waited almost 5 years for his PRB, with the result being that the detainee was cleared to be released. This raises questions of the rights and interests of PRB stakeholders, in this case rights including those of the detainee and the detainee’s family – what does the law of “wartime detention” or international human rights law say about delayed administrative detention proceedings that result in determinations favorable to the detainee. Though a detainee might be relieved or happy to be cleared for release / repatriation after being held at Guantanamo Bay for 14 or 15 years, the detainee might feel that his rights have been violated due to the delay of the administrative proceedings that triggered his clearance for release / repatriation.
7. Imagine trying to make an assessment of the situation, based on reading a transcript? What happens when you add these observations to the analysis:

 

Some PRB coverage / analysis — based on personal observations

Nasir PRB

 “Appearing before the board on the second day of Ramadan, a month of fasting for Muslims, Abdul Latif Nasir sported a medium-length beard, a small, white hat and a short-sleeved, white shirt. He sat with his arms mostly folded, intently reading along during the hearing in Cuba, streamed live to the Pentagon.”

http://www.courthousenews.com/2016/06/07/gitmo-review-board-told-of-detainees-family-ties.htm

 

Mingazov PRB

“After two years with Russia’s military ballet troupe, Mingazov spent his years of service doing passport control along the Mongolian border and managing food and cooking operations for a base of 1,500, his male representative said, reading from a public statement.

Mingazov appeared before the board in a short-sleeved, white shirt.

His dark beard long but neatly groomed, Mingazov fiddled with his glasses during the hearing, sliding them off and on his face as he read his hearing documents.”

http://www.courthousenews.com/2016/06/21/guantanamo-debates-releasing-ballet-dancer.htm

 

Zahir PRB

“An anonymous female voice described the revelation at today’s hearing of the Periodic Review Board while reading aloud Zahir’s unclassified profile.

Calling Zahir by his internment serial number, the female voice said he has offered “no actionable information relative to al-Qaida’s weapons network, and we assess that AF-753 was probably misidentified as the individual who had ties to al-Qaida weapons facilitation activities.”

The closed-circuit television broadcasting this morning’s hearing to the Pentagon showed Zahir dressed in a white shirt, with a long, dark and bushy beard. He slipped his glasses on and off as he read his hearing documents during the proceedings.”

http://www.courthousenews.com/2016/06/09/14-years-in-guantanamo-for-the-wrong-guy.htm

 

Rahabi PRB

 “For 19 minutes over a streaming video feed on Tuesday morning, the American public got its first glimpse into President Obama’s new review process for Guantánamo detainees, touted as a key step toward closing the notorious detention center.

The few members of the public who witnessed the session – a handful of journalists and representatives of human rights groups, more than 1,000 miles away in Virginia and watching on a 40-second delay – never heard from Abdel Malik Ahmed Abdel Wahab al-Rahabi, a Yemeni who has been held without charge at Guantánamo Bay for 12 years.

Rahabi, a slim 34-year-old in a white shirt whom the Defense Department believes was “almost certainly” a member of al-Qaida, bobbed in his swivel chair, occasionally scratching his nose as his representatives read statements arguing for his release. He was not invited to speak, unlike during the panel’s Bush-era antecedent.

Then, at about 9.40 am ET, the feed stopped, as the participants adjourned to begin a classified hearing – away from cameras, far from public view and expected to last for hours.

Tuesday’s session, streamed on to a flatscreen TV in a Defense Department-operated office building outside Washington, provided the first public peek into a process the Obama administration ordered begun in 2011 to help clear out the detention facility’s remaining population.”

(https://www.theguardian.com/world/2014/jan/28/public-look-guantanamo-detainee-review-board-obama)

 

8. Regarding the success / failure of the PRBs, the following excerpt is from Fox News Latino on 19 March 2016 titled “ Review board concludes Guantanamo detainees not ‘too dangerous’”

“… .

In the last comprehensive review of prisoners held at Guantanamo Bay, the U.S. government decided nearly 50 were “too dangerous to transfer but not feasible for prosecution,” leaving them in an open-ended legal limbo.

Now it seems many may not be so dangerous after all.

A review board that includes military and intelligence officials has been taking a hard look at these men and helping to steadily chip away at the list of indefinite detainees, who are a significant obstacle to President Barack Obama’s push to shut down the detention center at the U.S. military base in Cuba.

The first 23 decisions announced by the Periodic Review Board as of this month have skewed heavily in favor of the prisoners. It has unanimously cleared 19 for release, and said five will continue to be held but will be re-evaluated again later. Some of the approved have already left Guantanamo while the rest are expected to depart over the summer.

Lawyers for detainees welcomed the initial results, although they say the men shouldn’t have been held without charge for so long in the first place.

“These people have not been reviewed in over six years. They have changed, circumstances have changed, and they have needed a fresh look,” said Pardiss Kebriaei, a lawyer for the New York-based Center for Constitutional Rights who represented a prisoner cleared by the Periodic Review Board.

The deliberations of the board are private. But David Glazier, a professor at Loyola Law School who has analyzed records of the proceedings released by the Pentagon, said the members appear to be treating past assessments of prisoners “with a healthier degree of skepticism” than officials did in the past.

“If you just care about justice for human beings it’s a little odd that it’s taken 14 years to ask the questions in a hard enough way to discover that,” said Glazier, a former Navy officer and expert in military law.

Detainees approved for release by the board over the past two years have included a Saudi accused of being a bodyguard for Osama bin Laden who waged one of the longest hunger strikes while at Guantanamo and a Kuwaiti who was alleged to be a “spiritual adviser” to the al-Qaida leader, though he would only have been about 20 at the time.

A Yemeni prisoner was cleared in January after authorities determined he was just a low-level jihadist fighter but had been mistaken for an al-Qaida facilitator or courier with a similar alias.”

http://latino.foxnews.com/latino/news/2016/03/19/review-board-concludes-guantanamo-detainees-not-too-dangerous/

 

My attending / viewing / participating in Guantanamo Bay proceedings

I have viewed U.S. Military Commissions:

1. From inside the courtroom (after being tendered as an expert witness, sitting behind the bar in Courtroom I)
2. From the Courtroom Gallery (behind the window, as an Observer, multiple times in the new courtroom in the ELC)
3. Via the live feed for NGOs at Ft. Meade
4. In the media observation room at Ft. Meade

There is no substitute for being able to witness proceedings as they are happening.

We look forward to the opportunity to view PRBs live via secure video we continue with our PRB Project.

A full-size version of the Status of PRBs — as of 3 July 2016.

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For more information about PRBs, please check the websites of Human Rights First, The New York Times, the Periodic Review Secretariat, and The Miami Herald.

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