Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanamo Bay Naval Base, Cuba
May 11, 2004
ORDER
SUBJECT: |
Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanamo Bay Naval Base, Cuba |
INTRODUCTION AND BACKGROUND
[edit]This Order establishes an administrative review process to assess annually the need to continue to detain each enemy combatant during the course of the current and ongoing hostilities. This process will permit each enemy combatant in the control of the Department of Defense (“DoD”) at the Guantanamo Bay Naval Base, Cuba (“GTMO”) to explain why he is no longer a threat to the United States and its allies in the ongoing armed conflict against al Qaida and its affiliates and supporters or to explain why his release would otherwise be appropriate.[1]
The law of war permits the detention of enemy combatants until the end of an armed conflict. It permits that detention for the practical purpose of preventing the enemy from rejoining the conflict. It does not require the use of a review process to support continued detention. Nevertheless, to address some unique and unprecedented characteristics of the current conflict, DoD has determined, as a matter of policy, to implement these procedures. These procedures may be amended from time to time, also as a matter of policy, as circumstances in the conflict warrant.
A. | Existing Procedures. |
The procedures established by this Order offer a layer of review in addition to the other layers of review already in place for enemy combatants detained at GTMO. Under pre- existing guidance, captured individuals are assessed at the time of their capture by military officers in the field. Those officers determine whether those captured individuals were part of or supporting forces hostile to the United States or coalition partners, or otherwise engaged in an armed conflict against the United States. If the individuals detained meet those criteria, they are enemy combatants. If they do not, they are released. | |
Those persons determined to be enemy combatants are subsequently sent to a centralized holding facility where a military screening team reviews all available information regarding each detainee to again review whether the individual is an enemy combatant. With the assistance of other U.S. government officials (including military lawyers, intelligence officers, and federal law enforcement officials) and considering all relevant information (including the facts from capture and detention, the threat the individual poses, his intelligence value, and any law enforcement interest) the military screening team assesses whether the detainee is an enemy combatant and should continue to be detained and whether transfer to GTMO is warranted. | |
After the screening team makes this assessment, a general officer designated by the combatant commander reviews the central holding area screening team’s recommendation. When determining whether a detainee should be transferred to GTMO, the combatant commander considers the threat posed by the detainee, his seniority within hostile forces, possible intelligence that may be gained from the detainee, possible law of war violations committed by the detainee, and any other relevant factors. DoD officials in Washington review those proposed for transfer to GTMO prior to their transfer. An internal DoD review panel, including legal advisors, reviews the recommendations of the combatant commander and advises the Secretary of Defense on proposed detainee transfers to GTMO. All available information is considered in those reviews, including information submitted by other governments or obtained from the detainees themselves. In the event that enemy combatants are transferred to GTMO, immediately upon their arrival at GTMO, they are interviewed and further assessments are made based on relevant information, including detainee interviews, U.S. intelligence and law enforcement sources, and information supplied by foreign governments. | |
Each enemy combatant detained at GTMO also undergoes an extensive assessment of the threat he poses. This threat assessment process is used to determine whether, notwithstanding his status as an enemy combatant, he can be transferred to the custody of another government, can be released, or should remain detained in the control of DoD. Threat assessments of each detainee are made by an integrated team of interrogators, analysts, behavioral scientists, and regional experts. Those threat assessments are provided to the Commander, U.S. Southern Command for review and recommendation. The Southern Command then forwards its recommendations to an interagency committee in Washington that includes law enforcement, intelligence, and defense representatives. That interagency committee makes an assessment and recommendation. The Secretary of Defense or his designee then decides whether transfer of the detainee to the custody of another government, release of that individual, or his continued detention in DoD control is appropriate. | |
B. | Relationship of this Order to Existing Procedures. |
Once an enemy combatant has been reviewed by the interagency process described above and the Secretary of Defense or his designee has determined that his continued detention in the control of DoD is appropriate, he will be eligible for review of the need for his continued detention under the procedures this Order establishes. This Order provides the authority to empanel as many review board panels as are deemed necessary to accomplish the review of the enemy combatants in the control of DoD at GTMO. |
ESTABLISHMENT OF ADMINISTRATIVE REVIEW PROCESS
[edit]A. |
Administrative Review Process. | |||||||||||||||||||
There is established the Administrative Review Board (“Review Board”). The Review Board will assess whether each enemy combatant remains a threat to the United States and its allies in the ongoing armed conflict against al Qaida and its affiliates and supporters or if there is any other reason that it is in the interest of the United States and its allies for the enemy combatant to remain in the control of DoD. Based on that assessment, the Review Board will recommend whether the enemy combatant should continue to be detained in the control of DoD. | ||||||||||||||||||||
B. |
Administrative Review Board. The Review Board shall be composed of three or more military officers. | |||||||||||||||||||
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C. |
Presiding Officer. | |||||||||||||||||||
For the purpose of its deliberations and any hearing held pursuant to this Order, the senior member of the Review Board, or any Review Board panel, shall be the presiding officer. The sole role of the presiding officer as presiding officer shall be to ensure the orderliness of board proceedings. The presiding officer’s vote in board determinations will be accorded the same weight as the votes of the other members of the Review Board. | ||||||||||||||||||||
D. |
Legal Counsel. The General Counsel of DoD shall ensure that the Review Board has the assistance of legal counsel. | |||||||||||||||||||
E. |
Enemy Combatants Eligible for the Procedures in this Order. Enemy combatants who are in the control of DoD at GTMO are eligible for the review procedures established in this Order. | |||||||||||||||||||
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ADMINISTRATIVE REVIEW BOARD PROCEEDINGS
[edit]A. |
Review Board Proceedings. The proceedings before the Review Board shall be non-adversarial. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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B. |
Assistance to the Enemy Combatant. The Review Board shall assign a military officer (“Assisting Military Officer”) to assist the enemy combatant in preparing his presentation to the Review Board. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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C. |
Information from Other Relevant U.S. Government Agencies. The Review Board shall provide to the Department of State, the Department of Justice, the Department of Homeland Security, and the Central Intelligence Agency notice of the proceedings for the enemy combatant. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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D. |
Additional Fact-Gathering. If, after the initial presentation of information, the Review Board believes additional information is necessary before it can make a recommendation, the Review Board may seek additional facts. It may, among other things: | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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E. |
Review Board Recommendations. The Review Board shall make a written assessment of whether there is reason to believe that the enemy combatant poses a threat to the United States or its allies in the ongoing armed conflict against al Qaida and its affiliates and supporters and any other factors bearing upon the need for continued detention. Based on that assessment, the Review Board shall provide to the DCO a written recommendation on whether detention should be continued. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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F. |
Frequency of Review. The Review Board shall examine the need for the continued detention of each combatant at least annually insofar as is practicable. |
ROLE OF THE DCO
[edit]A. |
The DCO shall oversee and operate the administrative review process established by this Order. |
B. |
The DCO may establish as many review board panels as he deems necessary. |
C. |
The DCO shall, as he deems necessary and appropriate, coordinate his actions and determinations with other U.S. government departments and agencies. |
D. |
The DCO may seek the assistance of the General Counsel of DoD as appropriate. |
E. |
The DCO shall have the authority to request support, including but not limited to military and civilian personnel, administrative assistance, and logistical assistance, from the head of any DoD component or office to oversee and operate the administrative review process and to accomplish the transfer or release of an enemy combatant. DoD component heads shall promptly provide such assistance. In addition, the DCO may seek the establishment of an executive agency or agencies under DoD Directive 5101.1 to assist him in implementing this Order. |
F. |
The authority granted to the DCO in this Order may not be delegated except with the approval of the Secretary of Defense. |
CLASSIFIED INFORMATION
[edit]Classified information shall be handled in accordance with all applicable laws and regulations. The DCO should issue implementing guidance to ensure the proper handling and protection of classified information.
OTHER
[edit]This Order is neither intended to nor does it create any right, benefit, or privilege, substantive or procedural, enforceable by any party, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person. These procedures involve military authority exercised in the field in time of war. No provision in this Order shall be construed to be a requirement of the United States Constitution or a requirement of any other body of law nor shall this Order be construed to alter the requirements that the law of war imposes. The procedures established by this Order, along with the other procedures described above, have been implemented as a matter of discretion. Because the procedures described in this Order have been instituted as a matter of discretion, the Secretary of Defense may suspend or amend the procedures set forth in this Order at any time.
IMPLEMENTING GUIDANCE
[edit]The DCO may, as he deems appropriate, issue guidance to implement this Order.
EFFECTIVE DATE
This Order is effective immediately.
Paul Wolfowitz
Deputy Secretary of Defense
- ↑ Similar administrative review procedures will be issued for enemy combatants in the control of DoD in the United States.