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Defense Department Background Briefing on the Combatant Status Review Tribunal

Presenters: A Senior Defense Official and A Senior Justice Department Official
July 07, 2004 4:45 PM EDT

Wednesday, July 7, 2004 4:45 p.m. EDT

Defense Department Background Briefing on the Combatant Status Review Tribunal

            STAFF:  Well, thank you for your patience -- (off mike).  I know that you've been waiting for this background briefing, and it is an important step, and that's why we wanted to get to -- out and explain it to you today.

 

            The department has approved a new process that we're going to talk about today with respect to detainee operations at GTMO.  It is a process briefing, so we are going to do it on background this afternoon.  And you can see up here who we have.  And for attribution purposes, it's a senior Defense official and a senior Justice Department official.

 

            With that, our senior Defense official will put some context to this, and then we'll get right into your questions, I think.  With that --

 

            SR. DEFENSE OFFICIAL:  Thank you.

 

            In response to last week's decisions by the Supreme Court, the deputy secretary of Defense today issued an order creating procedures establishing a Combatant Status Review Tribunal, which will provide detainees at the Guantanamo Bay Naval Base with notice of the basis for their detention and an opportunity for them to contest their detention as enemy combatants.

 

            Each of the detainees at GTMO has been determined to be an enemy combatant through multiple layers of review by the department, as we have explained on a number of occasions.

 

            The procedures that are being -- that have been adopted today, in an order signed by the deputy secretary, are intended to reflect the guidance that the Supreme Court provide (sic) in its decisions last week.  The court held that federal courts have jurisdiction to hear challenges to the legality of the detention of enemy combatants held at GTMO.  In a separate decision -- that's the Rasul case.  In a separate decision involving an American citizen held in the United States, Hamdi, the court held that due process would be satisfied by notice and an opportunity to be heard, and indicated that such process could be provided in the context of a hearing before a military tribunal.

 

            Justice O'Connor's plurality opinion in Hamdi specifically cited existing military regulations, an Army regulation, 190-8, which the court suggested might be sufficient to meet the standards, the due process standards, it articulated for the American citizen, Hamdi, who's detained in South Carolina.

 

            The tribunals, the military tribunals established under the Army regulation that Justice O'Connor cited are relatively informal and occur without counsel or any assistance being provided to the detainee.  And those regulations -- the proceedings are designed to assess, if there's doubt in the mind of the officers who have captured a person, whether that person is a POW or not, this regulation has procedures to resolve that doubt and determine that person's status as a POW or not.

 

            The Combatant Status Review Tribunals, which are established today, are a variant on that order and are established to review the case -- review each detainee at Guantanamo, and to provide an opportunity for the detainee to contest the determination that's been made that he is an enemy combatant.  It's a streamlined process.  The court recognized -- the Supreme Court recognized the military's need for flexibility, and indicated that that streamlined process might provide all the procedures that were sufficient even for a U.S. citizen.  The procedures that are being implemented today are only being applied to alien enemy combatants in control of DOD at Guantanamo Bay, Cuba.

 

            The process is going to be expedited.  Within the next 10 days, and perhaps as early as this week, each detainee will be notified of the opportunity to contest his status as an enemy combatant; to consult with a personal representative, a military officer who will be able to assist the detainee in the tribunal proceedings.

 

            And finally, each enemy combatant will be advised of the right that the Supreme Court held that he has to seek review in U.S. courts.

 

            An important feature of these review tribunals, which distinguish them from the Army regulation that Justice O'Connor cited, is the provision of a personal representative to assist the detainee.  The personal representative will be a military officer, not a lawyer, but will provide assistance to the detainee and provide an ability for the detainee, through the personal representative and only through the personal representative, to have access to the information in DOD files on the detainee's background.

 

            So the personal representative will have the requisite security clearance, will be a military officer, will have access to those materials.  He will be able to share information, only unclassified information, with the detainee but will be able to consult with the detainee about the detainee's status and the ways in which the detainee might seek to contest his status.

 

            The personal representative will also participate in the tribunals as the detainee's representative.  The detainees themselves will be afforded the opportunity to appear before the tribunal.

 

            The tribunal itself will consist of three neutral military officers.  And by neutral, I mean military officers who have not previously been involved with the detainee either in his capture or in any either battlefield determination or subsequent review of his status as a detainee, or any interrogation, for example.  These will be officers who have had nothing to do with the detainees.

 

            The detainee will be allowed to attend all the hearings except for those involving deliberations and -- just as with a court, and those involving deliberations and voting by the tribunal, or those portions of the proceedings in which classified information or national security information would be discussed.

 

            The detainee will get an interpreter to assist the personal representative in communicating with him.  The detainee will be allowed to present evidence, to call witnesses if reasonably available.  And he can present documentary evidence, testimonial evidence, but he can't be compelled to testify.

 

            The tribunal will decide whether there is -- will decide whether a preponderance of the evidence supports the detention of the individual as an enemy combatant.  And as provided for -- as suggested in Justice O'Connor's opinion in the Hamdi case, there will be a rebuttable presumption in favor of the government's evidence, but the detainee will be able to have an opportunity to rebut that presumption.

 

            If the tribunal determines that the enemy -- the detainee is not properly held as an enemy combatant, the secretary of Defense will advise the secretary of State, who will coordinate the transfer of the detainee for release to the detainee's country of citizenship as appropriate, if that's the next appropriate step consistent with U.S. domestic and international obligations.

 

            I'll turn it over to my colleague from the Justice Department for anything further.

 

            SR. JUSTICE DEPT. OFFICIAL:  Well, I think that covers all of the basics of the process.  I think one thing to emphasize is that the government here is reacting very quickly to the Supreme Court's decisions.  The Supreme Court made important decisions affecting the war on terrorism.  And over the past week we've tried to put together -- the Department of Defense has tried to put together a process that will respond to the court's concerns, take into account the fact that the detainees at Guantanamo are able to file petitions for habeas corpus in U.S. courts, and to establish a process similar to the process Justice O'Connor referred to in the Hamdi decision as a military process that likely would satisfy even the due process rights of an American citizen, to take that existing Army regulation for a form of tribunal and provide actually a little additional process in the form of a personal representative, something that is not a traditional part of the Army regulation, to add on something more to put together a process that will provide the detainees at Guantanamo with any form of process that they have a right to so that when and if there are habeas petitions filed challenging their detention, the government will be in a position to say that we fully satisfied our legal obligations.

 

            SR. DEFENSE OFFICIAL:  If I could just add before we get to questions, just to put this in context, there are -- there were already -- I should add that this -- these -- the deputy secretary has signed an order establishing these tribunals.  The order will be implemented by Secretary of the Navy Gordon England.  He was already implementing at the direction of the deputy secretary separate administrative review procedures which are also applicable to the GTMO detainees.  The focus of that administrative review is different from this.  The Combatant Status Review Tribunals, which we're announcing today, establish a one-time process for a detainee to contest his status as an enemy combatant.  And it's in reaction to the Supreme Court's decisions last week.

 

            The administrative review proceedings, which have been discussed previously, both at a briefing here and in multiple briefings by Secretary England, have a different focus.  The focus of those review procedures which are still being implemented and are not being superseded by this process, there -- this is supplemented, a layer on top of that administrative review -- that administrative review is going to be -- continue to be an annual process to assess each   detainee on an annual basis on whether that detainee is -- continues to be a threat to the United States, or if not, if not a threat, no longer a threat to the United States and our allies, if that detainee can safely be released, I should say that if that enemy combatant could -- should still be -- can be released, there's no longer a threat to the United States or its allies.

 

            So the Combatant Status Review Tribunals are going to establish -- are going to provide a forum for a determination of the enemy -- the detainee's status as an enemy combatant.  Anyone we hold, we detain as an enemy combatant at GTMO will still get the administrative review that has been discussed previously by Secretary England, that's going to focus on threat posed by each detainee and not on his status as an enemy combatant.  Those procedures assume that these detainees are properly held as enemy combatants.  And the question in that review is whether the detainee continues to pose a threat to the United States or can be safely released.

 

            Yes.

 

            Q     It sounds like, as you described it, there's almost -- and I don't mean to be sarcastic -- there's almost a race going on, because you need to have this tribunal in order to avoid having a habeas challenge that would be upheld, is that right, in court, that this is the process --

 

            SR. DEFENSE OFFICIAL:  This habeas -- I'll turn it over to my colleague from the Justice Department.  This isn't --

 

            Q     (Off mike) -- if a habeas challenge, the government would be in a position to say they fully satisfied it.

 

            SR. DEFENSE OFFICIAL:  It's not a substitute for the habeas.

 

            Q     No, I'm not suggesting that.  I'm saying that if you don't have these and somebody did a habeas challenge, then it's possible that a court could -- the federal court could say you can't hold them because -- is that right?  Am I understanding what you said correctly?

 

            SR. JUSTICE DEPT. OFFICIAL:  Well, I don't think quite right.  It is possible that someone could bring a challenge and say I'm being held and I haven't been given sufficient process, there hasn't been the proper process to determine.  The likely result of that would not be a release, but more likely a(n) order for there to be some form of process, or the court itself undertaking that process.  That's what Justice O'Connor described, and the plurality opinion in the Hamdi case was that if there has not been a previous process, the district court will have to, in a habeas case, try to do a fact-finding and give process itself.  This procedure is intended to establish a process so that there is a military procedure like that described by Justice O'Connor, like what the Supreme Court suggested, implementing   -- using that as guidance, implementing a process that will provide a fact-finding and the basics of due process, notice and an opportunity to be heard for all the detainees at Guantanamo.

 

            And I guess it's important to emphasize, Justice O'Connor was talking about those basics of due process in the context of an American citizen held in the United States and due process rights under the Constitution.  Here we're using that decision as guidance to try to construct this process, but it is admittedly somewhat uncharted territory to figure out what sort of process would be sufficient or is required at all for alien enemy combatant detainees held outside the United States.  We're using the Hamdi decision as guidance to try to provide a process that we think is fair and sufficient to provide notice and opportunity to be heard, so that upon any challenge to the detention it will be clear that sufficient process has been provided.

 

            But nothing like this has been provided in any previous armed conflict, you know.  Even the regulation that we are modeling this on is not a regulation that requires a hearing like this for all persons detained as POWs or enemy combatants in a traditional war.  You know, in World War II, subsequent wars, we have hundreds of thousands of enemy prisoners of war.  Not every one of them gets any process like this.  So this is entirely new to provide a complete process like this to every single detainee.

 

            SR. DEFENSE OFFICIAL:  And it's to address a unique circumstance, which is these detainees at Guantanamo Bay, Cuba, which is -- they're the only people to whom this order applies -- the court held -- in the Rasul case, Justice Stevens' opinion held that the lease that the United States government has for the Navy base at Guantanamo established sufficient jurisdiction over that territory to allow the detainees there to file habeas petitions.  It was a very important part of his opinion, and it was something that Justice Kennedy mentioned in his concurrence in the judgment.  So we have a unique circumstance with detainees, alien enemy combatants held outside the United States but in a jurisdiction -- in a territory that the Supreme Court says is unique and unusual, and in the Rasul case gives them certain rights to file a habeas petition.

 

            Q     Can you tell us, will this be an open procedure?  Will these people's names be disclosed?  And if I can pile on here, is there any right that a detainee at Guantanamo does not have that he would have if held here in the United States?

 

            SR. DEFENSE OFFICIAL:  I'll take the first half of that -- the question.

 

            On the -- it's really a question on implementing the procedures. The tribunals -- the order establishing the tribunals is going to be implemented by Secretary England.  And it's really a question for Secretary England, who I believe will be making some sort of public statement in the not-too-distant future -- in the next few days -- about the implementation of this order.

 

            I can say from my own personal experience with him in implementing the other administrative review process that I discussed previously, it's been very important for him to provide as much transparency as possible for that process and to reassure -- in making his public statements and describing what's being done, to reassure the American public and the world community and nongovernmental organizations exactly what he's doing, to provide as much transparency as possible, consistent with the national security interests, given the classified information that's going to be the grist of much of what's going on in these tribunals.

 

            So the short answer to the first half of your question is it's really up to Secretary England in implementing this tribunal.  But I think his direction has been in the past to be as open as possible, consistent with the national security implications of the classified information that would need to be discussed, which couldn't be done in a public forum.

 

            SR. JUSTICE DEPT. OFFICIAL:  And as to the second part of your question -- I think I have this right; the question was:  Are there any rights that the detainees would have if in the United States that they don't have at Guantanamo?

 

            And I think the basic answer is that is likely to be a subject of litigation.  That it is not entirely clear -- the Supreme Court has not clearly rejected a rule, a long-standing rule that the 5th Amendment to the Constitution does not apply to aliens who have no connection to the United States outside the United States.  On the other hand, it has said that Guantanamo, for purposes of habeas jurisdiction, is sort of a unique territory and that there is jurisdiction there.  Exactly what substantive laws, what substantive rights apply there as opposed to the United States I think is probably going to be grist for further litigation.

 

            Q     Will the lawyers -- will the detainees at Guantanamo be given access to lawyers to be -- for the purposes of challenging their detention?  Not necessarily for these status tribunals, but for the purposes of, you know, challenging the legality of their detentions?

 

            SR. JUSTICE DEPT. OFFICIAL:  I'm sorry, I was thinking at the first part of your question.

 

            Q      Will they be given access to lawyers?

 

            Q     Will they be given lawyers for habeas --

 

            SR. JUSTICE DEPT. OFFICIAL:  The government has already indicated that for the lawyers who are already handling habeas petitions for certain detainees who have sought access, that arrangements will be made for them to have access for the detainees involved in those cases.

 

            Q     But what about the others?

 

            SR. JUSTICE DEPT. OFFICIAL:  Well, the same principle will apply.

 

            Q     So yes, lawyers will have access to people down at GTMO for purpose of habeas challenges?

 

            SR. JUSTICE DEPT. OFFICIAL:  Yes.  I'm not sure of all of the --

 

            SR. DEFENSE OFFICIAL:  Subject to security arrangements and other arrangements that need to be worked out.  The Justice Department has said in a case that is currently pending in district court in D.C. that certain counsel in that case will have access, undefined, to certain detainees at Guantanamo, and that's subject to negotiation between the government and some of those lawyers.

 

SR. JUSTICE DEPT. OFFICIAL:  I mean, all the precise details of that would have to be worked out in the future.

 

            SR. DEFENSE OFFICIAL:  There are counsel who have had -- some of the detainees down at Guantanamo have been charged and will be prosecuted by military commissions and have assigned counsel already. All of the detainees down there, including those who have been charged with military commissions, will be allowed to participate in this administrative -- this combatant status review tribunal.

 

            Q     Is the combatant status review tribunal required, or is every single detainee just going to go through it automatically?  Or is that a choice for the detainees?

 

            SR. DEFENSE OFFICIAL:  The only choice for the detainee is whether to participate.  The tribunal is going to review the -- review each detainee in the control of the Department of Defense.

 

            Q     All 595 or however many --

 

            SR. DEFENSE OFFICIAL:  Whoever is in the control of the Department of Defense at Guantanamo, is detained as an enemy combatant, is going to be reviewed.  The detainees will be given the opportunity to participate.  They won't be forced to testify or to participate, but they will be given the opportunity to participate, to testify, to call witnesses that are reasonably available, to have a personal representative to assist them in participating in the tribunal.  But they're not going to be forced to participate.  But they will be reviewed.

 

            Q     How quickly is this going to happen?

 

            SR. DEFENSE OFFICIAL:  The notice is going to be given -- when you see the text of the order, the order itself provides for pretty tight time deadlines for certain things to be done.  The first one is within 10 days. Each detainee is going to get notice of the opportunity to contest his status as an enemy combatant, the opportunity to have a personal -- meet -- have a personal representative assist the detainee in contesting his status as an enemy combatant, and he's also going to be told of the opportunity that he has to file a habeas petition in U.S. courts.

 

            Q     Within 10 days of today?

 

            SR. DEFENSE OFFICIAL:  Within 10 days of today that notice will be given to each of the detainees at GTMO.

 

            Q     That's notification.  When is a realistic expectation for the first of these review tribunals to --

 

            SR. DEFENSE OFFICIAL:  Again, it's something that the secretary of the Navy is already working on.  Our expectation is that these will be implemented immediately.  And after the detainee -- after the detainee's personal representative has had an opportunity to review the information in DOD files on the detainee and had an opportunity to consult with the detainee about his status and whether the detainee wants to participate and what sort of -- what the basis is for the detainee to contest his status as an enemy combatant, within 30 days of that, a tribunal must be established and hear -- and implement the hearing process.

 

            Q     (Off mike.)

 

            SR. DEFENSE OFFICIAL:  Within 30 days of the personal representative having access to the materials in the government files -- in the DOD files on the detainee and having had an opportunity to talk to the detainee about his status and whether the detainee wants to participate and challenge his status, within 30 days of that a tribunal has to be established.

 

            Q      And are there going to be any new interpreters?  The lawyers for the ones that have been charged say they never get to talk to their clients because there's never --

 

            SR. DEFENSE OFFICIAL:  An interpreter is going to be provided for -- in each case before the tribunal for the personal representative to communicate with the detainee.

 

            Q     Why --

 

            STAFF (?):  I'm sorry.  Can everybody wait till we call on somebody?  Because some people are being very patient, just raising their hands, and other people are talking out.  So why don't you just call on people?

 

            Q     Thank you.

 

            Q     Why are lawyers not being provided for the detainees in this new mechanism you're talking about?  I mean, you're talking about a detainee from Afghanistan or somewhere trying to understand what a habeas corpus petition in a U.S. federal court is all about.

 

            SR. DEFENSE OFFICIAL:  Right.

 

            Q     I mean, this person isn't going to have any idea what that's all about.  I mean, wouldn't you think that a critic is saying that you're trying to, you know, rush something past them and they're going to surrender their rights from mere ignorance?

 

            SR. DEFENSE OFFICIAL:  It's important to distinguish between two things.  We're establishing an administrative process here, a Combatant Status Review Tribunal.  We're going to -- we're not going to provide a lawyer in to represent the detainee in this administrative process before this tribunal.  Lawyers aren't provided for in the Army regulation, for example, that Justice O'Connor cited, that provides for review of detainees in determining whether they're POWs.  Our administrative process doesn't provide for participation by counsel.  We've gone an extra step, however, and provided a personal representative to assist the detainee.

 

            You were talking about habeas litigation, and that's an entirely separate question as to whether, you know, the access that counsel in the United States may get to detainees to talk to them about their -- any habeas litigation that might purport to be brought in their behalf.

 

            What we are providing notice of is -- we're providing, in addition to notice of the administrative proceeding and the right to meet with a personal representative, we're providing notice of the Supreme Court's decision that they have a right to file a habeas petition.  And the secretary of the Navy is going to draft notices that will be translated into the appropriate languages to be provided and have explained to the detainee what that means.

 

            Q    I mean, are you going to allow the lawyers from, for example, the Center for Constitutional Rights up in New York, which has already filed a series of petitions, are you going to allow them to go down to Guantanamo Bay and meet with their client, in a setting that allows for attorney-client confidentiality and unmonitored conversation, and do what else is necessary to allow for that detainee to challenge his confinement in U.S. courts?

 

            SR. DEFENSE OFFICIAL:  That's a different question from these administrative proceedings.  We have said -- the position that we have taken with respect to the litigation that is going on in District Court here in D.C. is that counsel in that case, we are talking to them about providing them access to certain detainees at Guantanamo, the circumstances of which are subject to negotiation.  You mentioned whether their visits would be monitored or not.  That's a security issue that we have got to work out.  The visits have been monitored under special procedures that have been adopted in other circumstances with respect to both these detainees here and with respect to the detainees that are held in South Carolina.

 

            Q     Can I just clarify?  This tribunal process you're talking about, none of those involved, whether it's the personal representative or the military officers who are forming part of the tribunal, they're not legally trained?  They're not lawyers in any way, shape or form?

 

            SR. DEFENSE OFFICIAL:  No, that's not right.  The personal representative is not a lawyer, is not legal counsel and not a lawyer. The tribunal will have on it -- one of the members of the tribunal, as you see when you read the order, one of the members of the tribunal must be a judge advocate, so must be a lawyer.  There's a non-voting officer of the tribunal who's called the reporter, who basically assembles the record. That person also, to the extent it's possible given the limitations on the number of lawyers we have got, but for all practical purposes we're going to try to have that reporter also be a judge advocate.  So there will really be two lawyers involved with the tribunal, but the personal representative is not a lawyer or counsel for the detainee.

 

            SR. JUSTICE DEPARTMENT OFFICIAL:  I think it's important to emphasize that that is the standard procedure under the existing regulation.  There's an existing regulation that talks about tribunals similar to these that would be instituted specifically usually for the purpose of determining whether or not someone in a conventional conflict is entitled to prisoner of war status under the Geneva Conventions.  And it's a tribunal of three officers, similar to this. And this procedure is modeled on that.  And in that case, similarly, it's a tribunal of three officers, because officers in the military are expected to -- they are the ones who are expected to be able to know and make decisions like is this an enemy combatant, is this someone entitled to POW status?  It's not lawyers, it's not all centered on lawyers.  And so this is using that same procedure.

 

            Q     The question I had is, the personal representative, can this person enter into a confidential agreement with the detainee, for example, so the detainee tells this personal representative something about his culpability, is that personal representative going to reveal that to the military?  I mean, is there a confidential relationship established between the detainee and the personal representative?

 

            SR. DEFENSE OFFICIAL:  That aspect of the relationship between the personal representative and the detainee hasn't been established yet.  It's going to need to be addressed in the implementing instructions that would be issued by Secretary England.

 

            Q     He's going to do all of this in 10 days?

 

            SR. DEFENSE OFFICIAL:  The notice is going to be provided in 10 days; the notice to the detainees is going to provide notice of -- that these tribunals are being established, that they'll have a right to contest their status as enemy combatants, that they'll get access to a personal representative to assist them, and that they have a right to file a habeas petition.  The notice has to be given in 10 days.

 

            Q     But we don't know yet what kind of relationship -- what the parameters of the relationship between the detainee and the personal representative is going to be?

 

            SR. DEFENSE OFFICIAL:  As with respect to, for example, the public access to the tribunal proceedings, whether outside parties would be admitted, there are a whole host of issues that will need to be addressed by the secretary of the Navy in implementing the order that's been issued today.

 

            Q     Will the personal representative be someone from -- currently at Guantanamo, or where are they going to be coming from? And can one person have dozens of cases?

 

            SR. DEFENSE OFFICIAL:  It won't necessarily be someone from Guantanamo.  Obviously, the presumption is that the proceedings themselves will be held at Guantanamo.  But the military officers, there's no -- it will be up to Secretary England in staffing this where the officers are going to be drawn from.

 

            Q     Earlier today, the Pentagon announced the president's designated nine more detainees as being eligible for military commissions.  Was that also in response to the Supreme Court ruling? And why now?  And why these nine?

 

            SR. DEFENSE OFFICIAL:  Well, the -- that's the military commission process, which is yet another procedure that's being -- set of procedures that's being applied to the detainees at Guantanamo. This has been an ongoing process.  There are a whole series of detainees who are at various stages of the military commission process.  Some have already been charged, been assigned defense counsel, been referred to a panel, I believe.  This is just another set of the RTBs, the reasons to believe; it's just a determination that these are individuals who could be charged.  There will be further review by the prosecutors.  Determination will be made whether they should in fact be charged and prosecuted.  If the decision is made to charge them, they'd be assigned defense counsel and then assigned to a commission for prosecution.

 

            Q     Can we expect more of these?

 

            SR. DEFENSE OFFICIAL:  The process is ongoing, so there will be further reviews.  I would expect that there would be --

 

            Q     Because it seemed to me that early on it was said by officials in this department that that was -- this military commission was going to be something that would be used only for really a small number of cases.  And I'm just wondering if this is -- if there's been a rethinking of that and the decision to use that in -- you know, in dealing with a lot of the cases that are in Guantanamo.

 

            SR. DEFENSE OFFICIAL:  It's an entirely separate process, entirely separate personnel, completely unrelated to what the Supreme Court's doing.  The process to get the RTBs issued is quite lengthy and requires extensive review, and it's something that's been ongoing for a long period of time.  And it just happened to be that these RTB determinations were ready to be announced today.  But there have been RTBs announced in the past, people charged.  It's just part of an ongoing process.

 

            Yes, ma'am?

 

            SR. JUSTICE DEPT. OFFICIAL:  A couple more and we're going to have to wrap it up here.

 

            Q     Oh, please don't wrap it up.  We have a lot of stuff.  I do.

 

            Besides the outcome of this being enemy combatant versus a prisoner of war, is there any difference between the process that you've set up today and the one that you've discussed in the Army regulation?  And can you also discuss the time that you expect that this will take?  Will we see one of these a day, and therefore do you think stretching into two years before everyone gets through it?

 

            SR. DEFENSE OFFICIAL:  There are distinctions from the Army regulations.  A principal one from my perspective is providing the personal representative for the detainee.  There are others that you could -- if you sit down with Army reg and the order that's been signed by the deputy, you'll see there are some variances to address some of the unique circumstances of these detainees at GTMO.

 

            My understanding is -- and again this is a question for Secretary England, but the expectation is that these procedures are going to be implemented quite promptly and that there will be multiple reviews going on simultaneously so that all of these -- all of the detainees at GTMO in the control of the department are going to be reviewed as promptly as possible.  I'll have to defer to Secretary England, who's got to actually work on the logistics of how it's going to be done. But this isn't going to be a process that lasts for years.

 

            Q      Can I just follow up?  There's sort of an elephant in the room here, I think, which is that you guys are being forced to follow along with essentially Geneva Convention procedures, it seems like. And does anybody sitting back there thinking, "Geez, I just wish we" -- (chuckles) -- "would have gone with the Geneva Convention in the first place.  It would be a lot easier than creating these things out of whole cloth that are pretty indistinguishable?"

 

            SR. JUSTICE DEPT. OFFICIAL:  Well, they're not really Geneva Convention procedures.  I mean, it's very -- it's a different issue that the Supreme Court was addressing.  In terms of talking about, in the Hamdi case, due process protections, we're trying to extrapolate from that to provide a form of process that happens to mirror the regulation that Justice O'Connor pointed to.  But it's not really -- we're not implementing requirements the Geneva Convention --

 

            Q     I think my point is that you guys are in sort of a legal crazy situation, that you're having to come up with things out of whole cloth.  What benefit have you gotten out of not having these people be covered by the Geneva Convention that's outweighed by this trouble?

 

            SR. DEFENSE OFFICIAL:  Really, the difference from my perspective in what happened with the Rasul decision, as Justice Scalia pointed out in his dissent, we were operating under the assumption, as we advocated before the Supreme Court, that Guantanamo was not U.S. jurisdiction that was going to give these detainees the right to file a habeas petition.  Justice Stevens and the majority of the court disagreed, found that Guantanamo, because of this unusual lease which we've had for over a hundred years there, created an unusual circumstance.  So it's really not a question of whether we provided Article 5 proceedings, tribunals or not, because that's really, as (the other briefer) pointed out, a question of whether a person's a POW or not, it's not really the issue here.  The question is if they provide -- having brought these detainees to Guantanamo, the Supreme Court's now decided that there is habeas jurisdiction in Guantanamo, and they get to file a habeas petition in federal court, we're turning to the Hamdi decision for some advice from the Supreme Court.  It wasn't given is Rasul, but there's some indication in Hamdi what process can be provided to satisfy the Supreme Court.

 

            SR. JUSTICE DEPT. OFFICIAL:  Let me just -- let me just also add to that that if a decision, a blanket decision had been made, just to say, everyone's a POW, given POW status and apply the Geneva conventions, this issue wouldn't have been avoided, because no one would have been given any individual process.  They still would be detained.  And potentially we'd still be facing some issue about has any individual determination been made as to each person, which the Geneva Conventions do not require.  So simply saying that they have POW status under Geneva would not have addressed that issue.

 

            In addition, giving them POW status under Geneva would have required a number of things, technically speaking: if you want to follow the letter of the law under Geneva, like providing them with sports equipment and scientific instruments and tobacco rations and lots of other things that do not seem like a rational idea in dealing with unlawful combatants who are terrorists, who violate the laws of war, and have not qualified and do not deserve the protections of the Geneva Convention.  And that was a decision that was legitimate at the time and it's legitimate still.

 

            Q     Can you just tell us how does a detainee access a lawyer if he opts to take advantage of his habeas corpus rights?  Their names are not known.  The lawyers who have filed habeas corpus petitions on their behalf so far have done it through families or next friends.  Once he says, "Yeah, I want to go to federal court," how does he get a lawyer?

           

            SR. DEFENSE OFFICIAL:  Well, first, before he gets to federal court, he's going to have his case reviewed, his status reviewed by our tribunal. He can't be forced to participate, but he'll be given the opportunity to and will be provided a personal representative.  He'll also be given notice of the rights that have been declared by the Supreme Court in the Rasul case.

 

            As to your question as to how he gets a lawyer --

 

            SR. JUSTICE DEPT. OFFICIAL:  I think it's difficult to speculate about that, and we couldn't really speculate.  I mean, some detainees there have already managed, through family or otherwise, to obtain counsel.  As others are told that they have a right to file an action in court, they, presumably, through similar mechanisms will find a way, through family or otherwise, to have lawyers working on their behalf if they so wish.

 

            SR. DEFENSE OFFICIAL:  I'd be surprised if there weren't multiple lawyers standing in line for each detainee who would --

 

            (Cross talk.)

 

            Q     (Inaudible) -- list of names -- (inaudible).

 

            SR. DEFENSE OFFICIAL:  Right.

 

            Q     So it would be difficult for lawyers outside, you know, to know who the prospective clients are.

 

            Q      So you're not under any legal obligation to provide those names to -- (inaudible) -- that habeas right?

 

            SR. DEFENSE OFFICIAL: We haven't addressed that issue.  I mean, it's something that we're dealing with in talking to the lawyers who have filed habeas petitions now on behalf -- purporting to represent detainees, and we're dealing with those cases now.  We're going to give the detainees notice of the Supreme Court's decision.  And that's just something we're going to have to address as we go forward.  But each of them will have the right to, as the Supreme Court said, to file a habeas petition.

 

            Q     So what do you get out of the process?  You say if somebody file a habeas, then you're able to argue in court that this person is not being unlawfully detained and we have granted them all of their legal rights as defined by the Supreme Court?

 

            SR. JUSTICE DEPT. OFFICIAL:  Well, yes, roughly speaking.  I mean, the Supreme Court has not specifically defined any rights for these particular detainees at Guantanamo.  It's only held that there is jurisdiction to entertain a habeas petition.  But yes, we would be in a position to argue that whatever rights to process they have, have been satisfied and a fair opportunity for them to be heard and to have a fact-finding process determining the legality of their detention has been provided and that that process is sufficient.

 

            Q     Are you gentlemen saying that the actions that you've announced here fully satisfy the Supreme Court rulings and no other actions need to be taken?

 

            SR. DEFENSE OFFICIAL:  I don't know what --

 

            SR. JUSTICE DEPT. OFFICIAL:  I -- that question is so broad, I wouldn't say -- the Supreme Court rulings, plural -- I wouldn't be prepared to answer in that way.

 

            What we are providing is an opportunity to notice and an opportunity to be heard to the detainees held as enemy combatants at Guantanamo that will satisfy any rights that they have to a process for challenging their detention.

 

            Q     And so if they get told that they can get habeas representation in court, what do they do?  What's their next step?

 

            SR. DEFENSE OFFICIAL:  The first step is to go through our administrative process, our tribunal --

 

            Q     Right.  I mean, they say, "I want to do habeas."  What do they do?

 

            SR. DEFENSE OFFICIAL:  I don't want to speculate about exactly how they would proceed.

 

            Q     Do they -- (off mike) --

 

            SR. DEFENSE OFFICIAL:  I know for a fact and -- yes, that they can send letter through the ICRC.  It's well known that they can send letters through the ICRC.  Some have, through some mechanisms -- and I don't know, and so I won't speculate about exactly what they are -- have communicated with family members or in some other way, and have managed to have family members retain counsel or otherwise bring challenges on their behalf.  Whatever mechanisms they've been able to employ, others will be able to employ.

 

            Q     Is the review panel -- its precise determination is going to be "this person is an enemy combatant" or not, or is it going to be "this person is being legally held" or not?  And that may be one and the same.  I just, you know -- will they also have -- will they also determine "this person is an unlawful combatant," or may they find that "this is a lawful combatant" and then may be subject to Geneva Conventions or some other -- even another set of laws?  I don't know -- how much space will they have to issue findings about an individual?

 

            SR. DEFENSE OFFICIAL:  Well, I believe -- and correct me if I'm wrong -- the single issue before this tribunal will be, is this person lawfully held as an enemy combatant?  There's not really a distinction between "lawfully held" and "enemy combatant."  It's -- the reason they would be lawfully held is that they're an enemy combatant.

 

            SR. JUSTICE DEPT. OFFICIAL:  So it's really the same question, it's what Justice -- and Justice O'Connor addressed this in her plurality opinion in Hamdi; if someone's an enemy combatant, we can hold them for the balance of hostilities.

 

            STAFF:  Let's go ahead and make this the last one back here.

 

            Q     Are you going to flag the habeas petitions that have been filed so far -- I think there are like nine new ones, and then you have the existing ones, the 14 are left, is Secretary England going to flag them and do them first, conduct the status reviews of them first so that when those cases do come up on the calendar in these courts that you'll have something to give the court?

 

            SR. DEFENSE OFFICIAL:  That's something that's going to have to be decided:  which detainees are going to be put through the process first.  And that's something for Secretary England, in implementing it, to determine.  My suspicion is there are going to be -- you know, I wouldn't be surprised if there were lots of other petitions filed.  So I'm -- you know --

 

            Q     But you'd just flag them so that you get to them first?

 

            STAFF:  We've had a number of questions today that go to the implementing authority.  And we're going to work to accommodate some of those -- get some of those answers for you with the implementing authority a little later on this week, hopefully, or early next week.  So --

 

            Q     Earlier in the day, before 5:00?

 

            Q     Yes.

 

            STAFF:  No, later this week or early next week.

 

            Q     Before 5:00.

 

            STAFF:  Oh, I see what you're saying.  Thank you all for your patience today.  And we'll try not to make a habit of 5:30 press conferences.  But I think this has been valuable, and you've received this as quickly as it was ready to be received.

 

            Q     Can we get a copy of the text of the notes that are going to the prisoners about their habeas rights, what it's going to say?

 

            STAFF:  We'll take a look at that.

 

            Q     But it's going out 10 days from now?

 

            STAFF:  Correct.

 

            STAFF:  All right, thank you.

 

            Q     Thank you.

 

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