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Defense Department Special Briefing on Combatant Status Review Tribunals

Presenter: Secretary of The Navy Gordon England
March 29, 2005 3:30 PM EDT
SEC. ENGLAND:  Good afternoon.  I believe this is the ninth time we've gotten together.  And again, if we haven't all met, I'm Gordon England, the secretary of the Navy.  But as you know, in this capacity I'm Secretary Rumsfeld's designated civilian official for the Detainee Administrative Review Processes at Guantanamo.

 

     I'm here today to talk to you about our Combatant Status Review Tribunals, what we call the CSRTs.  And again, to review, the CSRT is a one-time review to determine if a person, a detainee, is or is not an enemy combatant. 

 

     Now, today I'm not going to discuss our Administrative Review Boards, or our ARBs.  As you'll recall, the Administrative Review Boards meet -- it's an annual review of detainees.  So if you indeed are an enemy combatant, you remain at Guantanamo; annually we have a review of your status, and that review can result in either a release decision, transfer to the home country with conditions, or continue to detain at Guantanamo. 

 

     Now, there's a number of legal cases pending regarding the Administrative Review Board, and therefore, I'm not going to discuss specifics at this day because -- today because I can't discuss those specifics with all the legal issues going on.  I can, however, report that we have now conducted more than 60 of our Administrative Review Boards, and those cases are now starting to come to my desk for a decision. 

 

     Again, for the CSRT, the decision is made by the tribunal of military officers, while the Administrative Review Board's recommendations come to me for final decision. 

 

     Also, regarding the ARBs, you previously received copies of these administrative review detailed procedures so you have that; you know how they operate.  And also, the unclassified portions of those hearings are now open to the media.  And I know that some of your organizations have already been sitting in and observing those hearings.  Again, the ARBs are annual, so we will complete an ARB for every enemy combatant detained at Guantanamo, and we'll complete those by the end of this year.

 

     Okay, now let me address the topic today that I think you're most interested in, which are the CSRTs.  I am pleased to report that we have completed a major milestone.  The Combatant Status Review Tribunals for all of the DOD detainees at Guantanamo are completed. 

 

     Now, you'll recall in our last discussion I mentioned that our last hearing was in January.  And last week, Rear Admiral McGarrah signed-off on his final review of the last package. 

 

     Now, before I provide you the final CSRT statistics, let me reflect on what's been accomplished and what this means during this past year.

 

     First, the basis of detaining captured enemy combatants is not to punish but, rather, to prevent them from continuing to fight against the United States and its coalition partners in the ongoing global war on terrorism.  Detention of captured enemy combatants is both allowed and accepted under international law of armed conflict. 

 

     Second, the Combatant Status Review Tribunals have provided a venue for detainees to personally challenge their status as enemy combatants.  As you will recall, in last June's Supreme Court decision in "Hamdi," Justice O'Connor explicitly suggested that a process based on existing military regulations -- and she specifically cited Army regulation 190-8 -- might be sufficient to meet due process standards. You'll also perhaps know that that Army regulation is what the U.S. uses to implement Article 5 of the Geneva Convention that deals with prisoners of war.

 

     So our CSRT process incorporates that guidance from Article 5, Army regulation 190-8 and, as I mentioned in the past, it adds features for further benefit of the detainee.  For example, a personal representative is made available to each detainee to assist in preparing his case before the CSRT.

 

     Third, we have notified all enemy combatants of the opportunity to challenge their detention in federal district court.  During this process, several detainees have completed documents for submission directly to the federal court here in Washington, D.C.

 

     Lastly, our national security interests would be harmed if classified information about terrorist organizations and activities were released, so in many cases much of the information about a detainee is classified.  In fairness to the detainee, we have the intelligence community clear unclassified summaries of this information about each detainee, which is then shared with each detainee as the unclassified basis for his detention.

 

     Now to the numbers; the summary, the results of all this work for the past 10 or so months.

 

     We have completed a total of 558 of the Combatant Status Review Tribunals, CSRTs.  The last hearing was held on January 22nd.

 

     Now you recall that once the hearing is completed, the record of the tribunal is compiled and forwarded to the convening authority, Admiral McGarrah, for sufficient review and for final action.  Of the 558 CSRT hearings conducted, the enemy combatant status of 520 detainees was confirmed.  The tribunals also concluded that 38 detainees were found to no longer meet the criteria to be designated as enemy combatants.  So 520 enemy combatants, 38 non-enemy- combatants.

 

     The Department of State has been notified of all of these determinations, and State is coordinating the return of the 38 non- enemy-combatants to their home countries.  As of today, five of those 38 persons have returned to their home countries, and the Department of State is working to coordinate the return of the remaining 33 as expeditiously as possible.

 

    As you know, we do not discuss individual cases, but I can share with you some of the common features of those cases to give you a sense of their complexity.  Each case is different, and each case is difficult.  Even for the detainees who have been determined by our CSRTs to be no longer to be designated as enemy combatants, the files on those detainees often contain information that suggests that they could be classified as enemy combatants.  There is often conflicting information that has to be sorted through very carefully by the CSRT members.

 

     It should be emphasized that a CSRT determination that a detainee no longer meets the criteria for classification as an enemy combatant does not necessarily mean that the prior classification as EC was wrong.

 

     For example, information obtained subsequent to the detainee's original capture can shed light not only on the circumstances of capture but also the detainee's activities before capture.

 

     For the last 10 months, we have focused on being open, fair and rigorous.  Our responsibility is to protect the United States and our allies from terrorist threats while providing an administrative process for detainees to contest their status.  This is very important work.  It is important that we do it right and that we balance the risk.

 

     I'm happy to take your questions about the CSRTs.  As I said at the beginning, I will not be addressing the ARB process today, but hopefully I will be able to get back with you in the near future, depending on the legal situation of those cases, and report the specifics to you.

 

     Q     Mr. Secretary?

 

     SEC. ENGLAND:  Bob?

 

     Q     Bob Burns from AP.  In the written procedures that laid out the way these review boards were to be conducted, it said that regarding the government evidence that's presented during the procedure, that the evidence is to be considered, quote, "genuine and accurate," unquote.  Is that the same as saying that these are facts presented about these individuals?

 

     SEC. ENGLAND:  Well, they're the facts as certainly as we know them, as people report them, as they're compiled.  So -- I mean, it's as factual as we know they're factual.  I mean, people report. There's data to support it.  So again, it's like facts presented, I think, in the legal context to a jury, same type of data that would be presented.  So I would say yes.

 

     Q     Does it include hearsay information?

 

     SEC. ENGLAND:  Pardon?

 

     Q     Does it include hearsay information?

 

     SEC. ENGLAND:  I would say it includes information that we consider reliable, and the board looks at the totality of the information.  So we look at the preponderance of the evidence, and if there isn't a preponderant amount of evidence to support the conclusion that a person is an enemy combatant, then we would conclude they're not an enemy combatant.  And that's why there's 38 that are not enemy combatants -- designated as such.

 

     Q     Okay.

 

     Q     How do you reconcile that description of the process with what we now know about the Murat Kurnaz case, where there was one unsupported memo from some unspecified military officer that said this guy may be associated with someone who's a suicide bomber, but SOUTHCOM's intelligence and Germany's intelligence both said they had no evidence of it at all, and yet he was designated an enemy combatant by this process?

 

     SEC. ENGLAND:  I read the article.  The article is partially correct, but the article does -- the reporter did not have access to all the information.  All the information has not been declassified and, in fact, a lot of the information that was inadvertently

declassified, all of it wasn't.  So again, the tribunal bases their decision on the preponderance of the evidence, classified, unclassified, from all sources, and they make the very best decision they can.

 

     Keep in mind, I mean, this is a tribunal.  We have three military officers sworn to do the very best job they can for the United States of America.  So you look at this data.  I mean, my analogy is, the same way a judge or a jury looks at data.  They make the best evaluation based on the data that they have available.  And they make those decisions.  I mean, just like in a legal sense, just like sometimes judges are overruled or juries are overruled, I mean, the systems aren't perfect.  These are human beings looking at data, but they are as right as we can make them based on the data.  And we have very, very high quality people that do this. 

 

     So, it is fair, it's equitable.  And as I said before, we actually bend over to the benefit of the detainee -- I think we go as far as we possibly can for the detainee to provide any data they also wish to provide.  So it's as fair and balanced as we can possibly make it.

 

     Q     Does Judge Green have access to all that data, at least they offered a conclusion, right?

 

     SEC. ENGLAND:  I don't know if Judge Green had access to all the data or not.  I mean, that's a question you have to ask the Department of Justice.  But I know that the data that was reported in the Washington Post was not all the data that was available to the tribunal.

 

     Q     Secretary Rumsfeld said today that he made a recommendation for a nominee for a deputy secretary of defense.  Would you be that recommendation?

 

     SEC. ENGLAND:  Look, that's up to the secretary to whoever he -- you have to ask the secretary who he decides to nominate.  I'm not the person -- I'm not -- I don't -- I don't get --

 

     Q     I'm assuming if he recommended you, you'd know about it. Are you the -- his recommended choice?

 

     SEC. ENGLAND:  I don't -- I don't get to make those recommendations, and that's a Secretary Rumsfeld question.

 

     Q     Well, have you been interviewed for the job?

 

     SEC. ENGLAND:  But I -- but I'd be pleased to serve if I was nominated.

 

     Q     Have you been interviewed for the job, sir?  (Light laughter.)

 

     SEC. ENGLAND:  I have discussed the job with Secretary Rumsfeld, yes.

 

     Q     Mr. Secretary, can you tell us is there a temporary restraining order still in place preventing the military from transferring any detainees outside of Guantanamo, and does that only affect the 38 non-enemy combatants?

 

     SEC. ENGLAND:  Well, I know that -- I'm not sure there's a restraining order, but, of course, I think it has been reported we have Uighurs from China that we have not returned to China, even though, you know, some of those have been deemed, even before these hearings, to be non-enemy combatants because of concerns and issues about returning them to their country.  And I understand the State Department has been working with other countries to see if we can have them go to another country, and my understanding is that's still -- they're still in Guantanamo, so that issue is unresolved.  So I – at a minimum I know the Uighurs are there and have not been returned to China.

 

     Q     Mr. Secretary, could you give --

 

     SEC. ENGLAND:  William?

 

      Q     I understand that you're not going to give the identities of the 38, but could you give a breakdown of the nationalities for those 38?  And also, are you saying, are you saying -- you're not conceding that any mistakes were made anywhere in the process on any of the 38?

 

     SEC. ENGLAND:  Well, let me tell you what we do.  I mean, again, you have to understand the process.  We take all the data available, every bit of the data we can.  We allow the detainee to also provide any data they wish to provide, any statements they want to make.  They can provide data from the home country.  We provide an opportunity for them to do that.  And we examine all the data.  And on the preponderance of all the data, we make the very best decision we can make.  Is it perfect in every case? 

 

     I mean, again, take our legal system.  I mean, there's a – at the end of the day there is a judgment.  In this case, we have three people.  Think of it like an appeals, when you go up to an appeals court there's three judges so that you get a better balance than one. So we have three members of the tribunal, and they make the very best decision they can based on the data available.

 

            Is the system perfect?  It's human beings, so obviously it's not perfect, but it is as perfect as we can make the system and as fair as we can make the system for the detainee while protecting America. Keep in mind we do have an obligation to protect America from terrorists.  So we make this as fair as we can, but we look at the totality of the data.  So I mean, that's the question, is this as fair and as right as you can make it.  In my judgment, we're doing that. And we've opened this.  I mean, people can sit in for the unclassified, obviously not for the classified, portion.  So we've made it open, transparent and available, and I believe we're doing this the very best way we can.

 

     Q     How about the nationality breakdown?

 

     SEC. ENGLAND:  I don't have the nationality breakdown.  I'll get back with you on that subject.  We'll see if we can make it available. I don't know if we -- if we have it, I'll have to see if we can --

 

     Q     Well, you would know what countries you're trying to send them back to, right?

 

     SEC. ENGLAND:  Yes. 

 

     Q     Okay.

 

     SEC. ENGLAND:  That's what I say.  So let us get back to you on that question.

 

     Q     Sir?

 

     Q     Sir, just on the 558 now, is that all the people at Guantanamo?

 

     SEC. ENGLAND:  Yes.

 

     Q     So they're all essentially -- everyone was there up till arriving at what point has been --

 

     SEC. ENGLAND:  On the island today we have about 540 people, because obviously, some have left since we started this process last spring.  So we have about 540 there, and there are still people waiting to leave. 

 

     Q      And now if someone arrives tomorrow, such as me, let's say -- no, that might not be a good example, because they probably wouldn't delay my hearing, but how long would it take for someone -- do you have to wait a year or six -- now that everyone's been completed, how --

 

     SEC. ENGLAND:  Well, everyone's been completed, so all enemy combatants have been through the process.  That process is completed. If new people are coming to Guantanamo, we'd have a hearing just as quickly as we could get all the data available and have a fair hearing.

 

     Q     And that would depend on data collection, essentially.

 

     SEC. ENGLAND:  Data collection, making sure we had the right interpreters,  interviewing, providing rights to the prisoner, et cetera, et cetera.

 

     Q     Okay.

 

     SEC. ENGLAND:  Ann (sp)?

 

     Q     When they get released, are they free, or are they released to the government for further prosecution or whatever?

 

     SEC. ENGLAND:  No, they're free.  I mean, they're released. They're free.   We just move them to a different area on Guantanamo. Arrangements are made to send them home.

 

     Q     Do they get any special privileges once they have been designated not an enemy combatant?  Better quarters or better food?

 

     SEC. ENGLAND:  It's a better environment, I believe, it is a different area than they've been in, while waiting to be transferred. And we do that as quickly as we can.  State has to do it.  They have to make arrangements, transportation.  So there's some finite time involved to do all that.

 

     Q     And how much time have they been there?  A month?  Weeks?

 

     SEC ENGLAND:  Different times.  I think some maybe have been there as much as two months.  You know, again, it's up to State along with the country.  Sometimes it's just difficult to arrange transportation.  But we try to move them out as quickly as we can. The delay is not necessarily on us, it's really on the country they're being returned to.

 

     Yes, ma'am?

 

     Q     Mr. Secretary, when you look at the 38 cases that we're talking about, are there any commonalities, any tipping point that brought these cases about in the detainees' favor?

 

     SEC. ENGLAND:  I would say what I'll call thin files.  That is, the files may say that they were in al Qaeda training camp, they may say they trained with al Qaeda, but the files are thin and not enough data that you would classify them as an enemy combatant.  So I would say thin data files.  Typically the tribunals look for supporting data, verification of the data.  So I would say there is commonality in that regard.  I'm not sure there was other commonality, because every single case is different.

 

     Yes, sir?

 

     Q     Has the process of holding ghost detainees under CIA control ended there?  When you said 140 (sic), you said that was all the people there.

 

     SEC. ENGLAND:  Pardon me; 540.

 

     Q     Five forty.  Yes, sorry.  There had been a number of reports that there were others that were not included in the previous numbers we've been given. 

 

     SEC. ENGLAND  As far as I know, that's all the people in Guantanamo.  I mean,  I have no other data.  As far as I know, that's the total number, and we've been consistently reporting these numbers.

 

     Q     And can you tell us anything about any changes that are under consideration in the Military Commission system?

 

     SEC. ENGLAND:  No, I don't.  Military Commissions are outside my purview, so I can't help you.

 

     Q     Given what you were saying earlier about how at the end of the day these are three human beings that do the best they can, there's nothing that's perfect when human beings are involved; what is the U.S. government's justification for not offering compensation to the 38 individuals, at least, who were evidently there because of

prior imperfections by human beings, number one? 

 

     And number two, do we now -- is it your belief, then, that we have done everything -- the government has done everything it needs to do to comply with the Supreme Court decision in Hamdi?

 

     SEC. ENGLAND:  We have an administrative process.  The Supreme Court -- first of all, there's still a legal parallel process that's taking place, and this is an administrative process.  Justice O'Connor, the last time the Supreme Court, I believe in July or so of last year, said that one of the remedies she felt was to have a process like Army Regulation 190-8.  So we have implemented that for all of the detainees.  And as I said before, we've actually gone beyond that.  So we'll have to see what happens in the court system. But from our point of view, we are doing what we believe the Supreme Court expects us to do in terms of having these tribunals. 

 

     Q     And what about compensation?

 

     SEC. ENGLAND:  Not my decision on compensation.  But again, decisions made based on not only data that was available at the time, but subsequent data; so indeed, there can be -- there could have been easily a determination at that time that they were enemy combatants. Later data or data, or the tribunal itself, you know, could have determined otherwise.  But I'm not the person for determination of compensation.

 

     STAFF:  That's it. 

 

     Q     Thank you.

 

     SEC. ENGLAND:  Okay, good.  Thanks, everybody.

 

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