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Special Defense Department Briefing on Status of Military Tribunals

Presenters: Gordon England, Secretary of The Navy
December 20, 2004 11:30 AM EDT

Monday, December 20, 2004 11:28 a.m. EST

Special Defense Department Briefing on Status of Military Tribunals

            SEC. ENGLAND:  Good morning.

 

            Q     Good morning, Gordon.

 

            SEC. ENGLAND:  Good to see you all today.  Thanks for being here and happy holidays to everybody.  This is all the determined folks who are here today.

 

            This is, I believe, the eighth time -- not keeping score, but I believe this is the eighth time I've been with you.  And again, for introduction, Gordon England, secretary of the Navy, but in this capacity the designee for the detainee administrative review processes at Guantanamo.

 

            I thought it would be appropriate, getting near the end of the year, to give you a wrap up because we have gotten together seven previous times in terms of status.  I thought it would be interesting if you had a wrap up in terms of where we are at the end of the year both with the Combatant Status Review Tribunals -- CSRTs -- and also with the administrative review boards, the ARBs.

 

            Again, for explanation/clarification, CSRTs, Combatant Status Review Tribunals, that is the determination if someone is or is not an enemy combatant.  So it strictly is or is not an enemy combatant; that's the only determination made by those boards.  And if an EC -- that is, if an enemy combatant -- then detained, and then they're scheduled for an administrative review board.  So administrative review boards' annual review, they determine if someone should continue to be detained after a determination of an enemy combatant status.  So they're the two boards and I'll give you a status of where we are, this time at the end of this year.

 

            So as of this morning, we have conducted 507 CSRT tribunals.  So we've had hearings for 507 tribunals or for 507 detainees as of this morning.  There's always interest how many detainees appear at these tribunals.  Two hundred and ninety-two of the 507 detainees have participated in the hearings.  Now we still have about 50 hearings to be conducted and we hope to have them wrapped up next month.  You will recall earlier this year my objective was to have all of them completed by the end of the year.  We're obviously not going to make that.  We will be working from now until the end of the year, so we'll have more than 507.  We won't make it to 550, about, so we'll finish up next month.  But as I indicated earlier, the objective is to be thorough, not be quick, so we are being thorough and it is taking longer than we expected.  But we still, I believe, have made significant progress this year in terms of our hearings.

 

            Now as you'll recall also, after the tribunal the results from the CSRTs to go the convening authority for review.  And we have an administrative review to make sure that they have been conducted properly, all data considered, and they go to Admiral McGarrah, and he has concurred with 228 that these detainees should continue to be classified as enemy combatants.  Now you'll recall earlier we had one detainee that the tribunal determined not to be an enemy combatant or no longer considered to be an enemy combatant, and that detainee was released last September.  So there's now a second detainee that a CSRT has determined should no longer be classified as an enemy combatant, and Admiral McGarrah has concurred with that finding.

 

            So we now have two detainees at Guantanamo out of 230 that we have determined no longer to be an enemy combatant and 228 determined have been enemy combatants.  And so there's still, out of the 507, there's still a number in process; that is, in process from the time of the tribunal through the determination by Admiral McGarrah.

 

            As we did the last time, Department of State has been notified about this one non-enemy combatant, and Department of State will be notifying the home country of that individual and arranging his release.  And I know there's always an interest in who is it and what's the country, but as before, the nationality of the individual will not be released until after arrival at the destination or if released in advance by the home country. So it will be up to the home country or after that person arrives in his -- at home.

 

            Now again, as we've mentioned, as in previous conflicts, we do not want to release someone who will return to the battlefield to fight Americans and our allies.  And this is the dilemma we have trying to strike a right balance.  And as you are aware, there's been at least 12 of the more than 200 detainees that have been previously released or transferred from Guantanamo that have indeed returned to terrorism.  So this is a very difficult process we're in.  We don't want to let people out who will come back, fight and kill Americans or anyone else in the world; at the same time, we are trying to strike the right balance in terms of their rights and their freedoms.  So it is not without risk.

 

            Now to shift for a moment to our second detainee review process at Guantanamo.  Last week to conducted our first Administrative Review Board. In fact, this last week we had four Administrative Review Boards.  Again, as you will recall, our plan has always been proceed through the Combatant Review Status Tribunals, the CSRTs, and then once that determination is made, move into the Administrative Review Boards.  So now you will see we will have these running concurrently for a while until we finish up the CSRTs next month, then it will be strictly ARBs.  But for a while, you will have these running concurrently.

 

            So we completed four Administrative Review Boards last week. They will pick up more and more now as we finish the CSRTs.  So as more people become available to move from CSRTs to ARB process, you'll see more and more in the ARB process.

 

            Recognize and remember, the Administrative Review Board's purely voluntary.  That is, there's no Geneva requirement, there's no precedent for this type of process.  This is a process we instituted to assess whether an enemy combatant continues to pose a threat to our country or to our allies or whether there's other factors that might be reasons for continued detention.

 

            Now, there's three outcomes.  It will go through these four cases, as will all -- will go through a formal review process of the next several weeks.  Eventually they come to me for final decisions. So unlike CSRTs, which is a decision authority, and the ARBs, the Annual [sic: administrative] Review Board, they come to me for a decision as the final decision authority.

 

            There can be three outcomes:  We release the detainee; we transfer the detainee to his home country with negotiated conditions with that home country; or we detain that detainee at Guantanamo.  So there's three possible outcomes to this decision.

 

            So again, we'll have -- we'll be finishing up CSRTs hopefully in the next month -- about 50 still to go; the increase in the number of ARBS; and again, our intent, as always, balance the rights of the detainees while protecting our citizens and people around the world from terrorism.

 

            It's important work.  It's important we do it right.  It's very difficult.  And I can tell you, everyone in this process takes this very, very seriously.

 

            So with that, I will open this up.  And Will?

 

            Q     Secretary England, you mentioned that you can't give us the nationality.  Can you tell us -- we presume this is a male detainee, the one who was determined not to be an enemy combatant.  Can you tell us the circumstances under which he was caught, the location where he was caught, and the date of capture, and what convinced the authorities that he is not an enemy combatant?

 

            SEC. ENGLAND:  No, I don't have all that data.  The determination was literally made just a day or two ago by the admiral.  We will -- whatever day that we can release at this point we will.  I'm not sure what the precedent is in terms of releasing all that data, in terms of do we wait until the person's back in home country or not.

 

            But let us look at it, Will, and whatever's appropriate, we'll follow up with you yet this morning.

 

            Q     Did this person appear before a hearing?

 

            SEC. ENGLAND:  (To staff.)  Do we know?

 

            STAFF:  Sorry, I don't remember.  I'll -- we can find out for you.

 

            SEC. ENGLAND:  We'll find that answer for you also.

 

            Q     Mr. Secretary?

 

            SEC. ENGLAND:  Yes?

 

            Q     The ones that you have through administrative review boards --

 

            SEC. ENGLAND:  I'm sorry?

 

            Q     The ones that have gone through the administrative review boards, have any of them come to you yet or spoken to you on it?

 

            SEC. ENGLAND:  No, sir, they have -- no, they have not.

 

            Q     You don't know how any of them have come out?

 

            SEC. ENGLAND:  No.  These were just held last week, so now they go through a review.  After the boards, goes through a review process in terms of a sufficiency, make sure we conduct it right, all data was available.  So it goes through a whole process, then it will come to me for a final -- with a recommendation it comes to me for a final decision.  I have not seen those recommendations yet, and I would expect it'll be after the first of the year.

 

            Q     And will you review every case that is still there ultimately?

 

            SEC. ENGLAND:  Yes, sir.  Yes, sir.  Every case, every one still there, goes through an annual review board, will come to me for a final determination, and I'll review each one.

 

            Q     Clarify one more thing for me, please.  When you talked about the ones that had been released who had gone back to combatant status, they're not part of this administrative review -- or part of the process that you're working through now, right, where you're trying to determine whether enemy combatants?  You said that you have only released two, but then you later said that there were 12 who have been released as of --

 

            SEC. ENGLAND:  Well, there's been over 200 detainees released from Guantanamo, so to date there's been over 200.  One has been released as part of this process, one more will be released that we know of, and there could be more.  I mean, we still have -- again, only 230 cases have been reviewed of the 507 hearings, so there could indeed be more that will be released.  But this will be the second through this process, but in total about -- over 200 have been released from Guantanamo.

 

            Q     And that was a process that was started before this process was put in place?

 

            SEC. ENGLAND:  That's correct.  There has been another process also under way where we reviewed all of the detainees.  As you will recall, CSRTs were largely put together in direct response to the Supreme Court ruling; that is, to put a process equivalent to Article 5 of the Geneva Convention for a prisoner of war, except we've actually gone beyond Article 5, as you'll recall.  So we actually provide an expanded hearing for all the detainees beyond what you would do for a prisoner of war.

 

            Cathy?

 

            Q     Sir, can you talk about the annual review boards a little bit?  Do they work kind of the same way as the Combatant Status Review Tribunals; I mean, as far as does the person appear, do they have a personal representative, is it still a panel of three officers?

 

            SEC. ENGLAND:  Yes.  Yes, they're very, very similar.  You may recall we actually put the process together first for the annual review boards and we were about to start that process.  After the Supreme Court ruling, we took the annual [sic: administrative] review board process and we converted that to the CSRTs.  So yes, they are very similar.  The fact is the ARBs was really written before the CSRTs.

 

            Q     Secretary, can we say that the released detainees are not guilty?

 

            SEC. ENGLAND:  I guess we can say that the supporting data, with the standards we have set, does not support continued detention of those detainees.  So the process we've put together, with the data that we have available -- that board, that particular hearing, has determined that they should not be considered as an enemy combatant any longer.

 

            Q     And what would be your reaction if one of the released detainees asked in the future for a compensation, let's say?

 

            SEC. ENGLAND:  That's really not my determination.  I mean, there's no -- I merely have the hearing, and that's a totally different discussion.  So I'm not the person to have that conversation with.

 

            Q     Do you think he has the right to ask for a compensation?

 

            SEC. ENGLAND:  No, I personally do not.

 

            Q     Of those at least 12 that have returned to the battlefield, what can you tell us about them?  Is there any common threads between those people and any problems in the process that led to their release that have been identified, a point where perhaps the person didn't -- wasn't -- I'm just making things up, but where he didn't have the -- you know, where he gave a false name or where he lied about his history or something like that?

 

            SEC. ENGLAND:  John, we keep looking at this, because we like to see trends, to better understand this, because obviously we don't want to release people.

 

            But look, these are hard decisions.  Every case is a different case, different set of data, different detainee, different countries. I mean, it's very, very hard to correlate this with someone's intent to return.  So again, it's a dilemma.  This is very, very difficult for the people making these determinations.  Again, this is a very tough balance.  You don't want to release people who could harm Americans or other people.  On the other hand, people do have rights. And so we try to make a right decision here.  But they're hard decisions.

 

            Let me try one here.  Sir?

 

            Q     Secretary, this hasn't happened, but is there a rule or a blueprint process whereby if the home country doesn't want to accept the released detainee, for whatever reason -- perhaps that person's had a record of causing problems within that home country -- is there a process to follow in that eventuality?

 

            SEC. ENGLAND:  Well, that's really a Department of State process. And I know some of those cases have come up in the past, and so State tries to find a country that will take, you know, the detainees.  But that's really a Department of State process.  We get them to that point.  Then it's up to the Department of State to carry forward from that point.

 

            Will?

 

            Q     Yeah.  In determining that a detainee is not an enemy combatant, is the Department of Defense admitting that it was wrong ever to have classified a person as such?

 

            SEC. ENGLAND:  Will, let me say this.  There had been various reviews before this process, not as formalized as this process, but there's been various reviews.  And those determinations were enemy combatant.

 

            Now we've set a pretty high standard, and we have an independent board.  So we have a board with -- we've given broad instructions in terms of what to consider.  And I will tell you these are judgmental calls.  I mean, a different board could come out with a different answer, just like a jury or a judge can come -- different judges or different juries can come out with different answers.

 

            So again, judgment calls -- I mean, all these people were either located on a battlefield or some place -- you know, what were they doing?  What can they support?  I mean, that's the best determination. I don't think there's a right or wrong answer to this.  I think this is a gray area.  You know, as in a lot of cases, there's a white and black and a big gray area in the middle, and now that's the area we deal with in a lot of these cases.

 

            Q     Have you had any dialogues with the civilian prison administration community?  Just because it seems to me that if you have some individuals you've released, it's conceivable that a number of them would be so upset by the circumstances of their incarceration that they could seek to do harm to the United States at a future time, that that could be an explanation for some of the 12 individuals.

 

            SEC. ENGLAND:  Well, they could, but on the other hand, we're keeping them because, you know, a lot of these are very, very bad people.  On the other hand, people have learned to read and have learned to write, and so it's not just being incarcerated.  We do try to get people prepared for a better life.

 

            But look, I guess you're right; this is an issue we deal with all the time in the criminal justice system.  And you know, these --

 

            Q     And you're not -- (off mike)?

 

            SEC. ENGLAND:  But you do have to keep them incarcerated.  And so at the end of the day, they are incarcerated, and no matter what you do for rehabilitation, I'm sure that irritates some people.

 

            Q     So there actually are some rehabilitation programs going on, involved --

 

            SEC. ENGLAND:  Yes.  Our people learn to read and write, and so there are programs to help them along at Guantanamo.  Absolutely.

 

            Maybe the last one.  Okay.

 

            Q     Sir, a couple in opposite ends of the spectrum that we're talking about here.  One, on the CSRTs, the individual that's being released, is he being released to his home country with any caveats that they hold him for any reason, or is he just going to be set free?

 

            SEC. ENGLAND:  No, he was released -- well, we notify State. State notifies that country that they're no longer considered an enemy combatant, and arrangements were made to send him back to his home country.  That's unlike the annual [sic: administrative] review process.  So again, if you have -- first, the -- first, we have a determination:  Are you an enemy combatant?  If you are an enemy combatant, you are retained at Guantanamo.  If you're not an enemy combatant, notify State, go home.

 

            If you are an enemy combatant, now the question arises:  Are you held indefinitely?  We don't want to hold people indefinitely.  And when does the war end?  Prisoners typically you hold until the end of the war.  This could go on for a long time.  What's the end of the war?  So we have an annual [sic: administrative] review process, yearly.  We then examine that individual.  Are they still a threat, or do they have value, intel value that could save lives in the future around the United States and around the world?

 

            So we make that determination.  And we can decide to release an individual, just release them to their home country, if we decide that they're not a threat and have no intel value to America; or we can release them to their home country with conditions, right, that they -- the home country will monitor, take whatever appropriate action is; or we retain them at Guantanamo.  So each year we will go through this annual [sic: administrative] review board and make those determinations.

 

            Q     So for this individual who went through the Combatant Status Review Tribunal, they think that since he didn't even get to the Annual Review Board, that the United States is not even asking for caveats on the release?

 

            SEC. ENGLAND:  No.  Again, again, CSRTs, you make up or down decision.  You are or are not an enemy combatant.  If you are an enemy combatant, then you go to the Annual [sic: administrative] Review Board.  If you're not an enemy combatant, you go home.

 

            Q     So this guy will be released, then.

 

            SEC. ENGLAND:  He'll be released.  They notify State and they'll arrange that release.

 

            Q     For the Annual Review Board, how long do you think it will take for those results to get to you, and through you, when will those results be released?  Do you know?

 

            SEC. ENGLAND:  I would say it's probably going to be a month.  It will be sometime in January.

 

            And by the way, I would expect the Annual [sic: administrative] Review Board process will take most of next year because it's a long, complicated process gathering data.  So we will get together again next year after we, hopefully, complete the CSRTs.  We'll give you a wrap-up at that time of everything and also we'll give you status of ARBs.  So next year we'll see you sometime probably late in January, I would expect will be the plan.

 

            So we'll see you then.  In the meantime, Happy Holidays, Happy New Year.  See you late in January.

 

            Thank you.

 

            Q     Thank you.

 

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