Volume 43 | Number 1 Fall 2007
Standards and Procedures for Classifying “Enemy Combatants”: Congress, What Have You Done?
Response: Standards and Procedures for Classifying “Enemy Combatants”: Judiciary, What Have You Done? by Elizabeth A. Hardy
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IV. The “ARBs”
The Administrative Review Boards (“ARBs”) were established by the DoD on May 11, 2004 and implemented a few months later.54 An ARB is an annual proceeding provided to a Guantánamo detainee to determine whether he should continue to be detained, be transferred to the custody of another country, or be released despite his “enemy combatant” status.55 The board assesses whether the detainee continues to “pose a threat” to the U.S. or its allies and whether there are “other factors bearing upon the need for continued detention.”56 “Pose a threat” is not defined in the implementing order and “other factors” may include, but are not limited to, the likelihood that the enemy combatant may be subject to trial by military commission and whether the enemy combatant is of continuing intelligence value.57 Thus, even if the detainee is no longer dangerous, his detention can continue in the harshest of conditions merely because he may know something. This is a fairly expansive reach of executive power and one likely not seen since the internment of Japanese-Americans during World War II. Moreover, this reach is contrary to the Supreme Court’s holding in Hamdi v. Rumsfeld, in which Justice O’Connor stated unequivocally, “[w]e agree that indefinite detention for the purpose of interrogation is not authorized.”58
To some degree, the ARBs suffered a similar fate as the CSRTs. That is, by passing the DTA and the MCA, Congress essentially approved of procedures that had already been applied to the Guantánamo detainees who had undergone one, if not two, ARBs prior to the passage of the DTA. There is, however, a significant distinction between the CSRTs and the ARBs. The CSRT hearing is a singular event, and the resulting status determination is essentially irreversible.59 Once an enemy combatant, always an enemy combatant. The ARBs, on the other hand, occur on an annual basis. If Guantánamo continues to function as it currently does, the detainees will be subject to more such ARB reviews. Yet, despite the likelihood of future ARBs and the glaring contradiction between the ARB order and the Hamdi holding, Congress did not see fit to change the ARB procedures or purpose in the DTA to reflect this ruling. Thus, men can continue to be detained on account of their potential intelligence value. In a positive move, however, Congress included a provision in the DTA requiring future ARBs to assess whether any statement derived from or relating to the detainee was obtained as a result of coercion.60 Yet, it does not preclude such a statement from being considered by the board in determining whether the detainee should be released.
Notwithstanding these features that seemingly make the ARBs more reasonable than the CSRTs, the results of the past ARBs are disturbing and worth reviewing. These results do not demonstrate that the DoD took the ARBs seriously, that the procedures were applied fairly, or that they will be applied fairly in the future. For example, the ARB regulations require that a detainee be provided notice and a written unclassified summary in advance of the board proceeding.61 Given the legal concept of “notice,” one might expect that “reasonable” notice is required under ARB regulations. Yet some of my former Kuwaiti clients relayed to me that they received notice only one or two days prior to their impending ARB. Further, they all relayed to me that they never received official notice of the outcome of their ARBs though they were told by their interrogators or guards that they would “continue to be detained.” Despite these facts, eight of my original twelve Kuwaiti clients have been released.62 Of the twelve, eleven were determined to be enemy combatants, as one was released before the CSRTs and ARBs were even created. Seven were released many months after their first and second ARBs, and four who are supposed to return home soon had their last ARB over a year ago. None of my former clients were ever told that their ARB had resulted in a determination that they were no longer dangerous or that they had no intelligence value.
More significantly, the ARBs have no authority to actually make the determination whether the individual before them should continue to be detained, transferred, or released. The following exchange illustrates the insignificance of the ARBs:
Detainee: There is question [sic], when will you give me the answer?
Presiding Officer: What we do is, we will make a recommendation to the Designated Civilian Official in Washington, D.C. At this point I cannot tell you how long it will take. It is an administrative process, it could take a week, a month, a year, I don’t know. I hope it wouldn’t be a year but the time it would take is uncertain.63
Thus, a civilian official, far from and perhaps long after the actual process, reads the record and the ARB’s recommendation. Despite a recommendation for continued detention or release, the official has the authority, without ever having met the detainee, to determine whether the detainee was telling the truth or lying during the proceeding and can ignore the ARB recommendation. Other factors which might be irrelevant to whether the detainee poses a threat to the U.S.—such as an ongoing political negotiation between the U.S. and the detainee’s home country—might motivate the official to ignore the recommendation. Thus, this “administrative” determination may subject the individual to continued detention in conditions the DoD has likened to U.S. maximum security prisons, for convicted felons, despite the fact that the individual has never been charged with any crime and was subject to an inadequate process that landed him there in the first place.
More significantly, the ARBs exemplify the Brzezinski phenomena—that is, the vagueness of the “war on terror” has created a fear allowing us to view an extremely broad scope of individuals as “the enemy.” These individuals are believed by default to be dangerous and, therefore, necessary to be detained in the “war on terror.” For example, in the case of Mesut Sen, ISN #296, the ARB found the following factors favored his continued detention:
(1) The detainee is a Belgium [sic] citizen that admitted to traveling from Germany, through Holland, the United Arab Emirate, Pakistan, to Jalalabad, Afghanistan in September 2000;
(2) The detainee traveled to Afghanistan with approximately 2000 to 2500 US dollars along with his Belgian passport;
(3) The detainee’s passport was taken for storage while at a Kandahar, Afghanistan guesthouse and he was given a new name;
(4) The detainee was captured in a village near Peshar, Pakistan while trying to cross the border into Pakistan;
(5) The detainee lived for nearly one year at a Taliban transit house in Jalalabad, Afghanistan;
(6) The detainee had connections to Millis [sic] Gorous, as did his father;
(7) The Belgium Government considers Milli Gorous to be an extremist group and it is therefore banned from having representatives on the official representative board for Muslims in Belgium;
(8) The detainee was in possession of a Casio watch. The same model number of Casio watch found in the possession of the detainee has been frequently used in bombings that have been linked to al Qaida and other radical Islamic terrorist groups; and
(9) Emerging as a leader, the detainee has been leading the detainees around him in prayer. The detainees listen to him speak and follow his actions during prayer.64
There is not a single allegation of a hostile act against the U.S. Yet factors such as traveling, having money, leading prayer, and having “connections” are considered to support the determination that this individual is dangerous and should continue to be detained. This is not an uncommon occurrence in ARB proceedings. For example, the following are factors taken from several different detainees’ ARBs that support continued detention:
The detainee traveled to Kabul, Afghanistan from Kazakhstan in September 2000.65
The detainee’s travel route took him through Karachi, Islamabad, and Peshawar, Pakistan and through Kandahar, Afghanistan.66
The detainee was in Afghanistan during the US bombing campaign.67
The detainee stated he financed his own trip to Afghanistan.68
The detainee seems to know another detainee well.69
The detainee traveled to Afghanistan, via Iran, after September 11, 2001, with approximately 15,000 U.S. dollars.70
While some ARB hearings do contain allegations of hostile acts and direct support of terrorism, a substantial number of the factors that allegedly support continued detention are merely activities thought to be suspicious, likely only so because the “perpetrator” is Muslim. Were we not so immersed in the “culture of fear,” it would be outrageous to consider the indefinite detention of an individual because he traveled abroad and was wearing a certain type of watch. Or, as in the case of one of my former clients, because “[t]he detainee often complains about President Bush and the U.S. Government and stated that his ‘interrogator and her government are criminals.’”71 This man is still detained at Guantánamo. It would be laughable were it not so tragic.