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The Legal Basis of U.S. Detention Policies

Prior to 9/11, the rules regarding detention during wartime were much easier to understand because the enemy was usually easier to recognize. When U.S. forces could easily determine who was a combatant and who was not, the Geneva Conventions were sufficiently clear to guide nations on what they should do when they captured someone during wartime.

That clarity dissolved after 9/11.

The Geneva Conventions do not provide answers about who may be held in a conflict with a non-state actor like al-Qaeda or how long that person may be detained. As John Bellinger, top legal advisor to the U.S. State Department recently said, the Geneva Conventions "were designed in 1949 for different sorts of circumstances, and they don't provide easy answers in all cases to how to deal with international terrorists."

Recognizing its commitment to the actual text and spirit of the Geneva Conventions and its position as the world's lone superpower, the United States has developed a comprehensive legal framework governing the detention and treatment of detainees during this new type of war. That framework, specifically as it relates to the detainees at Guantanamo Bay, consists of six major components, each discussed below:

  1. The Geneva Conventions
  2. The Detainee Treatment Act (McCain Amendment)
  3. Department of Defense Directive 2310.01E
  4. Army Regulation 190-8 (AR 190-8)
  5. Combatant Status Review Tribunals
  6. Administrative Review Boards

The Geneva Conventions

To understand how the Department of Defense treats detainees during war, it is necessary to first consider the scope and requirements of Article 5 of the Third Geneva Convention.

When combatant status is unclear, the Third Geneva Convention states that such captives must be accorded the protections of prisoner of war status until a competent tribunal convenes and determines the captive does not qualify as a "lawful combatant." These tribunals are called "Article 5 Tribunials." The tribunals are typically held on the battlefield within a short time of capture, and an officer makes a quick determination, based on all the relevant evidence available at the time, whether the captive is properly classified as a combatant or non-combatant.

The Detainee Treatment Act (McCain Amendment)

Signed by President George W. Bush on December 30, 2005, the Detainee Treatment Act of 2005 (DTA, also known as the McCain Amendment), was included in the larger Department of Defense Appropriations Act of 2006.

The DTA requires that no person in the custody or effective control of the Department of Defense, or in a Department of Defense facility, be subjected to any treatment or interrogation technique not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

Additionally, it provides that no detainee in the custody or under the physical control of the United States government may be subjected to cruel, inhuman, or degrading treatment or punishment.Section 1003(d) of the law defines this as "cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States."

It provides civil and criminal legal liability protection to interrogators of detainees.

The DTA makes the D.C. Circuit the exclusive venue for handling any legal challenges by detainees and limits that court's jurisdiction to the following:

  1. Whether the status determination of the CSRT was consistent with the standards and procedures as set forth by the Secretary of Defense for CSRTs;
  2. Whether the standards and procedures as set forth in the >CSRTs are consistent with the Constitution and laws of the United States -- to the extent they are applicable, and;
  3. Review of any final decision of a military commission.

The DTA also contains several reporting requirements related to the Act.

DOD Directive 2310.01E

Contrary to some reports, the Department of Defense had a comprehensive policy regarding detention operations in place before 9/11. It was contained in Department of Defense Directive 2310.01, entitled "DOD Program for Enemy Prisoners of War and Other Detainees."

That 1994 directive set forth broad policy guidance and responsibilities within the Department of Defense for traditional prisoners of war but did not deal explicitly with non-state terrorists who commit acts of war.

On September 6, 2006, the department re-issued a revised directive in the form of Department of Defense Directive 2310.01E.

The revised directive is the cornerstone of today's U.S. detention policy. It sets forth the guidance for all DOD detention operations that is necessary and appropriate to ensure the safe, secure, and humane detention of enemy combatants, both lawful and unlawful, regardless of the nature of the conflict.

There are five key components to 2310.01E:

  1. Compliance with Article Three of the Geneva Conventions. The directive incorporates the prohibitions against cruel, inhuman, or degrading treatment or punishment of the Detainee Treatment Act of 2005. It articulates the minimum standard of care and treatment required for all detainees, regardless of their legal status.
  2. Timely Detainee Registration. The directive reaffirms department policy that the International Committee of the Red Cross plays an important role in detention operations.
  3. Abuse Reporting. The directive requires personnel to report possible, suspected or alleged violations of the Law of War and reaffirms the U.S. commitment to hold those who violate the rules accountable.
  4. Clear Accountability. The directive assigns responsibilities to department components related to various aspects of detention operations.
  5. Broad Principles. Finally, the directive provides key policy guidance to the military services and joint operations.

The new directive was issued at the same time the United States Army announced the new Army field manual on interrogations, entitled "FM 2-22.3: Human Intelligence Collector Operations." The Army Field Manual lists, in an unclassified annex, the only authorized interrogation techniques that can be used on detainees in DOD custody or effective control.

Army Regulation 190-8 (AR 190-8)

is used by the Department of Defense when a captive's legal status is in doubt, and therefore a tribunal under Article 5 of the Geneva Conventions is required. The regulation spells out the procedures the U.S. military must follow to determine a captive's legal status as a combatant or non-combatant.

Hearings under AR 190-8 are neither criminal trials nor writs of habeas corpus. Rather, an AR 190-8 proceeding is a simple one-time administrative hearing, usually held on the battlefield, to determine whether or not a captive should be held for the duration of the conflict.

The AR 190-8 tribunal is authorized to reach one of three determinations:

  1. The captive is a lawful combatant;
  2. The captive is a non-combatant (civilian); or
  3. The captive is a combatant but should be stripped of protections of POW status because of his actions and therefore may face war crimes charges.

AR 190-8 hearings proceed under the following procedure:

  1. Three officers (including one field-grade officer) hear the evidence;
  2. The standard of proof is "preponderance of the evidence," meaning "more likely than not"; and
  3. A fourth officer (preferably a lawyer) supports the panel by collating the information upon which the tribunal bases its decision.

Once the decision is made that the captive is a combatant, there is no right to appeal.

Under AR 190-8 and the Geneva Conventions, a captive has no right to:

  1. Have an attorney;
  2. Conduct discovery;
  3. Call witnesses;
  4. See all the evidence against him;
  5. Have a personal representative to assist him in the process;
  6. Appeal a ruling; or
  7. Request a new tribunal to consider on newly discovered evidence.

Combatant Status Review Tribunals (CSRTs)

In Hamdi v. Rumsfeld, a plurality of the Supreme Court affirmed the right of the United States government to detain the enemy for the duration of the conflict and suggested that the Department of Defense create fact-finding tribunals similar to those under Army Regulation190-8 to determine whether a detainee merits continued detention as an enemy combatant.

Justice Sandra Day O'Connor's opinion recognized that the Authorization for Use of Military Force (AUMF) triggered the laws of war with respect to combat operations against the Taliban government and members of al-Qaeda who fought against the U.S. in Afghanistan. She wrote that the AUMF authorized the detention of U.S. citizens as "enemy combatants" when captured in a zone of active combat operations. "[D]etention to prevent a combatant's return to the battlefield," she wrote, "is a fundamental incident of waging war..."

Following the Court's direction, Deputy Secretary of Defense issued an order to establish the Combatant Status Review Tribunals.

CSRTs are based in part on AR 190-8, the Army regulation discussed above that incorporates and implements Article 5 of the Geneva Conventions. CSRTs are not criminal trials, nor were they created to be anything like criminal trials. CSRTs were also not created to be a substitute for the writ of habeas corpus, and there is no requirement in the Geneva Conventions that a detainee be able to seek habeas corpus relief.

A CSRT is a one-time administrative process designed to determine whether each detainee under the control of the Department of Defense at Guantanamo Bay meets the criteria to be designated as an "enemy combatant."

Between July 2004 and March 2005, and then in June 2007, the Department of Defense conducted a total of 572 CSRTs at Guantanamo Bay. Of the 572 detainees who went through a CSRT, 38 were found not to be enemy combatants. Those 38 detainees were released from captivity and are no longer at Guantanamo.

Conducting a CSRT

CSRTs offer many of the procedures and protections found in AR 190-8, cited by the Supreme Court as sufficient for the detention of United States citizen. CSRT's also offer more protections and process to detainees than required by the Geneva Conventions or AR 190-8.

CSRT's offer and Article 5 tribunals do not allow:

  • a personal representative
  • the right to receive an unclassified summary of the evidence against him
  • requirement that government search all its files for exculpatory evidence
  • right to a new proceeding based on newly discovered evidence
  • guaranteed right of appeal to civilian appellate Court
  • possibility of appeal to the Supreme Court

A CSRT is a tribunal, composed of three neutral military officers, who listen to the evidence presented by the government and the detainee and then decide whether or not the detainee is an enemy combatant. The standard of proof is "preponderance of the evidence," or whether it is "more likely than not," that the detainee is an enemy combatant.

Each detainee is given a personal representative to assist him in presenting his case. The personal representative is a military officer who has the appropriate security clearance to review classified material to assist the detainee. The personal representative is not an attorney. The personal representative can share unclassified information with the detainee and participate in the proceedings as the detainee's representative. Under AR 190-8 and the Geneva Conventions, a detainee is not given a personal representative.

Detainees are allowed to attend their CSRTs and have the right to receive an unclassified summary of the evidence to be presented by the government in advance of the hearing. Those are the same rights detainees receive under AR 190-8 and in the Geneva Conventions.

The CSRT rules require the government to search all of its files for evidence to suggest that the detainee should not be designated an enemy combatant. This requirement to search for "exculpatory" evidence is similar to the obligation all prosecutors in the United States have to the court, that is, that they must turn over "potentially exculpatory" evidence to the defense.

Additionally, if new information is learned relating to the enemy combatant status of a detainee, a new CSRT may be convened to consider the new evidence. There is no such provision in AR 1990-8 or the Geneva Conventions.

Finally, detainees have an absolute right to appeal their case to the United States Court of Appeals for the District of Columbia Circuit and potentially the United States Supreme Court. Detainees under AR 190-8 and the Geneva Conventions have no appellate rights.

Administrative Review Boards (ARBs)

Under the law of armed conflict, a country at war has the legal authority to detain persons who have engaged in combatant actions, including acts of belligerence, until hostilities end. Nonetheless, the United States has decided as a matter of policy to transfer or release detainees from Guantanamo Bay during the conflict.

Administrative Review Boards (ARBs), established in 2004, assess annually whether each enemy combatant in Guantanamo should be released or transferred.

Those transfers and releases began mere weeks after detainees were first brought to Guantanamo Bay, Cuba, before ARBs or even CSRTs were even established.

Approximately 780 detainees were brought to Guantanamo Bay in January 2002. By May 2002, the U.S. was transferring detainees back to their home countries. A "release" of a detainee means that the detainee is simply sent back to his home country or a third country, with no security assurances attached to his freedom. A detainee is "transferred" after the United States receives diplomatic assurances from a country willing to accept the detainee that it will mitigate the threat that particular detainee may pose. Pursuant to its international legal obligations, the United States will not transfer or release any detainee to a country where it is "more likely than not" that the detainee will be tortured.

Since January 2002, there has been a steady decline in the detainee population at Guantanamo Bay, Cuba. As of January 2008, there are only 280 detainees at Guantanamo, meaning that the U.S. has released or transferred approximately 500 detainees since 2002.

ARBs were authorized by Deputy Secretary of Defense Order 06942-04 on May 11, 2004, and implemented by a directive on September 14, 2004. After the Detainee Treatment Act of 2005 was passed, the Pentagon issued a slightly revised implementing directive.

ARBs are a discretionary process not required by the Geneva Conventions, U.S. law, or international law. Unlike any other country at war in the history of the world, the United States decided as a matter of policy to release or transfer combatants from Guantanamo during an ongoing conflict.

This policy decision has risks, as evidenced by the fact that the Pentagon has confirmed that at least 30 former Guantanamo detainees have returned to the fight and taken up arms against the United States and its allies. Many experts believe that number is much higher.

ARB Process and Procedures

ARBs are held every year for each detainee at Guantanamo. At least 30 days before each ARB, the Officer for the Administrative Review of the Detention of Enemy Combatants (OARDEC) notifies all relevant government agencies that it will hold an ARB on a particular combatant. That notification requests the agencies to provide all information on that combatant, classified and unclassified, to OARDEC to assist the ARB panel in making a recommendation.

Through the Department of State, OARDEC invites written information from each enemy combatant's family and home government.

Before the panel meets to hear all the evidence, the enemy combatant receives the assistance of a military officer. That officer, the Assisting Military Officer (AMO), meets with the enemy combatant, explains the ARB process, and provides the combatant with an unclassified written summary of the primary factors the ARB panel will consider.

Each ARB panel consists of three commissioned military officers led by senior officer (an Army Colonel or Navy Captain or the like) called the "Presiding Officer." At least one member of each panel must have an intelligence background. The ARB panel is presented all of the evidence, from the government and the enemy combatant. The enemy combatant has the right to attend his own ARB.

At the conclusion of the hearing, the panel submits a written assessment on the extent to which the enemy combatant continues to pose a threat to the United States and/or whether there are other factors bearing on the need for continued detention, such as intelligence value or law enforcement interest.

The panel may make one of three recommendations:

  • Release the combatant without limitations;
  • Transfer the combatant; or
  • Continue to detain the combatant.

After the recommendations and paperwork are checked by military attorneys for accuracy, the entire case is submitted to the Deputy Secretary of Defense for a final decision on whether to release, transfer, or continue to detain the combatant.

To see an official summary chart of the ARBs and outcomes from December 2005 through December 2005 held at Guantanamo, click here.

Explaining The Legal Framework to Our Allies

The State Department's legal advisor has traveled to Europe many times to explain the United States' position on detention during wartime, the law of armed conflict, Guantanamo, and other related topics.

On October 31, 2006, he delivered a comprehensive speech outlining legal issues in the war on terrorism. The speech can be summarized as follows:

  • The law of war is an appropriate paradigm for the conflict
  • A law enforcement approach to terrorism is insufficient, and
  • The U.S. has a comprehensive legal framework that complies with the Geneva Conventions.

Camp 5 standard detainee cell

Camp 5 standard detainee cell.

Camp 4 detainee speaking with unidentified person

Camp 4 detainee speaking with unidentified person.

Camp 4 detainee helping himself to lunch

Camp 4 detainee helping himself to lunch.

Camp 5 standard interrogation room. Detainee sits on Lazy Boy chair on left. Room includes TV microwave and refrigerator

Camp 5 standard interrogation room. Detainee sits on Lazy Boy chair on left. Room includes TV microwave and refrigerator.

Military medical corpsman assisting detainee during x-ray procedure

Military medical corpsman assisting detainee during x-ray procedure.

Operating Room at detainee hospital inside Camp Delta

Operating Room at detainee hospital inside Camp Delta.