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Defense Department Special Briefing on Administrative Review Boards for Detainees at Guantanamo Bay, Cuba

Presenters: Director, Office for the Administrative Review of the Detention of Enemy Combatants, Rear Adm. James McGarrah
July 08, 2005 11:00 AM EDT
Defense Department Special Briefing on Administrative Review Boards for Detainees at Guantanamo Bay, Cuba

            BRYAN WHITMAN (Pentagon deputy spokesman):  Good morning, everybody, for your second briefing of the day here.  I think all of you know Rear Admiral Jim McGarrah.  For those of you who don't, he is the one that has been leading the effort with respect to the annual review boards down at Guantanamo Bay.  And he's here today to give you an update on that process and where we're at. 

 

            With that, Admiral. 

 

            ADM. MCGARRAH:  Good morning. 

 

            Q     Good morning.   

 

            ADM. MCGARRAH:  Good, wet Friday morning. 

 

            Q     Good Navy day. 

 

            ADM. MCGARRAH:  Exactly, a good Navy day. 

 

            I am -- as Bryan mentioned to you, I am the director of the Office for the Administrative Review of the Detention of Enemy Combatants.  We call that OARDEC.  Have to have an acronym in the Navy.  And we're the ones that have been running the Combatant Status Review Tribunals and the Administrative Review Boards down at Guantanamo Bay. It's been a few months since we've updated you on those processes, so I want to give you an update.   

 

            You'll recall that we finished the Combatant Status Review Tribunals back in March of this year.  And we actually started our Administrative Review Board processes back in December.  And I'm going to give you some numbers on the outcome of the Administrative Review Board process.  But before I do that, I want to remind you of a couple of important aspects. 

 

            First, it's important to remember the basis for why we're detaining these individuals in the first place.  We're detaining these captured combatants not to punish them and not to keep them in detention pending criminal charges, but to prevent them from continuing the fight against the United States and its allies, and to obtain intelligence necessary in the ongoing global war on terrorism. This kind of detention of enemy combatants is both allowed and widely accepted under the Law of Armed Conflict.  And additionally, we've been able to gain some very valuable insights into the al Qaeda organization and to al Qaeda's operations from the detainees at Guantanamo.   

 

            Second, our Administrative Review Board process ensures that each detainee's case is heard at least annually to assess whether or not the detainee continues to pose a threat to the United States and its allies, or whether there are other reasons that might warrant continued detention.   

 

            We've repeatedly said that we have no desire to hold detainees any longer than is absolutely necessary to protect our citizens and the security of the United States.  And although the Law of Conflict -- Armed Conflict allows us to detain enemy combatants, enemy fighters, until the end of hostilities, our ARB process, Administrative Review Board process, helps to mitigate concerns that have been raised about the indefinite detention in this kind of unconventional conflict. 

 

            A process like the ARB is not required by Geneva Conventions.  It's not required by domestic law or by international law.  But because of the unique nature of this global war on terrorism, we've taken what we believe is a historic and unprecedented action to establish this process to allow enemy combatants to be heard while a conflict is ongoing.   

 

            Our CSRT process, which we finished in March, determined that these detainees were enemy combatants.  And now the ARB process operates very much like a parole board to assess whether an individual who's lawfully and appropriately detained remains a threat.  It also provides a detainee the opportunity to make a case for why they might be released or transferred. 

 

            Now let me talk to you a little bit about the ARB numbers.  To date, as of this morning, we have completed 162 Administrative Review Board proceedings.  I'll remind you that in this process the detainee is given the opportunity to appear to provide information on behalf of their explanation as to why they no longer pose a threat to the United States.  We also notify their governments and give them the opportunity to provide input relevant to the detention of their detainee, and we also provide family members the opportunity to provide that input for the ARBs. 

 

            There are three possible outcomes to the ARB process.  The individual can be released, typically back to their home country; the individual can be transferred -- again, typically back to their own country, when it is willing -- the home country is willing to accept responsibility for ensuring, consistent with its laws, that the detainee will not continue to pose a threat to the international community; or the individual can continue to be detained at Guantanamo.  Transferring a detainee will only take place after the U.S. government has discussions with the country of transfer and after our government receives necessary assurances regarding security measures and regarding how the detainee will be treated upon their transfer. 

 

            Our ARB panels are comprised of three neutral commissioned officers sworn to carry out their duties faithfully and impartially. After conducting the hearing and analyzing all of the information available, the ARB panels make a recommendation regarding the need to continue to detain an individual.  The ARB cases then go through a formal review process and come through me to Secretary England. Secretary England, you'll recall, was designated as the designated civilian official, and he is the final decision-maker in the ARB process.  

 

            To date, he has made 70 decisions.  He has determined, of those 70, that four detainees should be released, that 25 should be transferred, and that 41 should continue to be detained at Guantanamo. 

 

            I think it's important to highlight again that this is an annual review process, so at least once a year, the case of each detainee at Guantanamo will be assessed, and a determination will be made as to whether or not that individual should continue to be detained. 

 

            Again, we don't want to detain individuals any longer than is absolutely necessary.  On the other hand, there are inherent risks if we transfer or release enemy combatants from Guantanamo.  You're probably aware that about a dozen of the 234 detainees that have previously been released or transferred have returned to the fight. 

 

            Our intent in these processes is, and always has been, to protect the United States and our allies from terrorist threats while satisfying our obligations under the law of war.  It's important work, and we think it's important that we do it right, and it's important that we be fair. 

 

            So I'm happy to take your questions, if you have any, on the Administrative Review Boards and Gitmo.   

 

            Q     Several -- just first, when did you say the ARB started? Was that in March? 

 

            ADM. MCGARRAH:  We had the first hearings in the ARB in December.  

 

            Q     Okay.  And the four that are to be released, have they been released? 

 

            ADM. MCGARRAH:  We are in the process.  Whenever we have a release or transfer decision we notify the Department of State who contacts their home country to get the kinds of assurances that I was talking about.  In a release situation, it's more important to get the assurances on proper treatment when they return.  If it's a transfer situation, then there are additional security assurances that we seek. 

 

            Q     So they haven't actually -- these individuals have not actually been released? 

 

            ADM. MCGARRAH:  The Department of State is working on those releases and transfers right now. 

 

            Q     And same on the transfers? 

 

            ADM. MCGARRAH:  Same on the transfers.  Exactly. 

 

            Q     And I take it there's no sort of identifying information you can provide on them at this time such as native country --  

 

            ADM. MCGARRAH:  No, for security reasons, and because the home countries have typically asked us to refrain from doing that until they are returned.  That information should become available after they actually are returned. 

 

            Q     Can you provide a little insight, as much as you can, on what these detainees may have said or what was said on their behalf   that was -- persuaded these officers and the reviewing authorities to release them?  I mean, what -- 

 

            ADM. MCGARRAH:  Again, under the ARB, this is a threat assessment, whether or not they continue to pose a threat, or whether there are other reasons -- for instance, operational intelligence value or law enforcement interest -- that they might need to be continued in detention.  Our panels look at the totality of the information available to them through our intelligence sources, information picked up at the time of capture, and they make the decision based on the totality of that information. 

 

            Q     Two questions.  In following up with John, if the laws of war don't require you to do this, and certainly under Geneva Convention you're allowed to hold prisoners of war until the end of the conflict, why let them go at all?  Why take that risk of having those dozen return?  What's the benefit to you guys?   

 

            And then, also, on the matter of rendition.  Those human rights groups watching this might see what you're saying -- and saying, oh great, you've got assurances from these governments, that the United States government itself has said have a history of torture and human rights abuses and yet, you're releasing them.  What good are assurances in making sure that these prisoners that were once in your care will continue to be treated humanely? 

 

            ADM. MCGARRAH:  Let me take your second question first.  The assessment that the U.S. government makes before we'll return anybody to their home country is based not only on the assurances that the country provides, but on their history, you know, the history of how they have treated their citizens when -- especially if they've had some returned in the past.  And so those are decisions that are made based on the information and assurances that are negotiated by Department of State. 

 

            Q     Are there any folks that you thought, well, we'd like to release them, but we're not going to because we're not sure that they will be treated well? 

 

            ADM. MCGARRAH:  There are some currently at Guantanamo Bay that we would like to release, but have not yet obtained the appropriate assurances to do so.   

 

            Q     Yeah, on the ones you just mentioned. 

 

            ADM. MCGARRAH:  Yes.  You'll recall that the two processes that I've overseen were only the most recent processes put in place -- the Combatant Status Review Tribunal and the Administrative Review Board. There were processes prior to that.  And in fact, some 200 detainees had been released or transferred from Guantanamo Bay before we even started the CSRT and ARB processes. 

 

            Q     If I can clarify.  You said that the release assessment is based not only on the assurances from the country, but on the history of that country and how they're treated.  Have there been any folks at Guantanamo that you don't want to release -- or you would like to release but are not going to because of the history of the government? 

 

            ADM. MCGARRAH:  I'm not aware of the details of that.  The Department of State actually conducts those negotiations. 

 

            Q     And would you talk about the reason why you're letting these people go at all? 

 

            ADM. MCGARRAH:  Some of these people, even though they've been determined to be enemy combatants, have been assessed to be low threat.  And again, the U.S. government is not in the business of detaining people any longer than they need to.  If we assess that they're a low threat, then we believe it's prudent to return them to their home countries. 

 

            Q     Could you explain how somebody would be low threat and be at Guantanamo?  I think if I were there -- (laughs) -- I would be more of a threat after I got out because I would be angry, having been held for so long.  And plus, they've been in the mix with folks who are genuinely a higher threat, and maybe have learned a few tricks.  So how do you judge all that?  How do you judge if someone is a low threat? 

 

            ADM. MCGARRAH:  I can't give you a list of factors because each case is unique.  It depends on the information available.  It depends on the detainee's history at the time of capture; how they got swept up in the fight, how they became enemy combatants, and what their government and their family might tell us as to what their future might be when they go back.  I mean, there are just a whole list of factors.  It's very difficult to generalize. 

 

            Q     To what extent have the governments -- other governments or the detainees' family members been involved in providing input to these…? 

 

            ADM. MCGARRAH:  We provide in every case -- before the ARB hearing, we provide the governments and the families, all of them, the opportunity to input.  And we have had some input.  I don't have the number right off the top of my head as to what percentage of those we've had input, but we have gotten input from governments and from families. 

 

            Q     Is the input in the -- like the form of statements that they send or information or documents? 

 

            ADM. MCGARRAH:  It's been a variety of things.  Especially family member input is more like, you know, "He's a good guy" and, you know, "We're sure that he's not going to go back and do this again" kind of thing. 

 

            Q     And has Secretary England's role in these hearings changed or in these proceedings changed at all with the addition of his new responsibilities? 

 

            ADM. MCGARRAH:  No.  He's -- he was designated as the DCO, the designated civilian official, and he'll retain that function. 

 

            Q     I came in a little late, so excuse me if this has been answered. What's the current population?  And has it varied over the last three years by great numbers? 

 

            ADM. MCGARRAH:  The current population is about 520.  At its peak, it was over 700.  So 234 have been released, some under the two processes that I oversee, but most under the processes that predated -- 

 

            Q     Okay.  A quick question on recidivism, your version of it. A few weeks ago, when there was this big debate in Congress about closing Gitmo, in the building here we were told something like 12 or 13 released Gitmo detainees were found back on the battlefield --  

 

            ADM. MCGARRAH:  I did mention that.  There have been a dozen -- about a dozen we know of that have returned to the fight. 

 

            Q     Have they been returned -- well, have any either been killed or returned to Gitmo? 

 

            ADM. MCGARRAH:  I don't know the current disposition of those. We can probably get that for you.  But to my knowledge, none of those 12 have been returned to Gitmo. 

 

NOTE: The status of the approximately 12 detainees who have returned to terrorism is classified secret and cannot be disclosed for security reasons.

       

            Q     Only about 234, basically, of released -- you've only had about 12, really, that you've found evidence of -- 

 

            ADM. MCGARRAH:  Twelve that we know of.   

 

            Q     One final thing.  You might not be able to answer this, but Halliburton's KBR unit a few weeks ago received an add-on contract to build more units.  Can you give us a sense of why that was necessary, if -- 

 

            ADM. MCGARRAH:  That's outside my responsibility.  I really can't comment on that.  Sorry. 

 

            Yes? 

 

            Q     Admiral, you said there are some that you're ready to release or transfer, but you haven't because you haven't got the assurances from the home governments.  Can you put a number, a figure on that? 

 

            ADM. MCGARRAH:  I really can't.  I can get that information for you. 

 

NOTE: There are currently about 60 detainees at Guantanamo Bay whose release or transfer is being negotiated by the Department of State. Because of the sensitive nature of the ongoing discussions between Department of State and foreign governments, it would be inappropriate to identify which countries are involved.  Contact Department of State if you have further questions on these ongoing negotiations.

 

            Q     I mean, is it a handful or a dozen, or 20 or 30? 

 

            ADM. MCGARRAH:  It's in several dozen. 

 

            Q     Several dozen. 

 

            ADM. MCGARRAH:   Now that's a combination of prior processes as well as our processes. 

 

            Q     And -- 

 

            ADM. MCGARRAH:  And I'm sorry.  The several dozen is the total population that we're looking right now at releasing or transferring. 

 

            Q     So that includes the ones you just announced. 

 

            ADM. MCGARRAH:  There might be -- yes.  Yes.   

 

            Q     And what -- do you know what countries are involved in that? 

 

            ADM. MCGARRAH:  There are a variety of countries.  We have -- we don't disclose that information until after the transfer has taken place, for security reasons. 

 

            Q     And maybe I missed it at the beginning, but the 70 that have been recently adjudicated that you're announcing now -- that covers what time period?  That covers from December to March? 

 

            ADM. MCGARRAH:  Those are decisions that have been made from the first hearing to today.  That number is current.  That's the current number of decisions that Secretary England has finalized as of today. 

 

            Q     So you have well over 400 to go, is that -- you're doing -- 

 

            ADM. MCGARRAH:  Let me -- let me qualify -- well, let me qualify the number a little bit.  Even though we have a population of about 520, not all of those will go through an ARB process.  Those, for instance, that have been already determined as candidates for release or transfer, and for whom Department of State is working on the assurances, there's no need to take them through an ARB process. Those that have had a formal "reason to believe" determination by the president for Military Commissions do not go through an ARB process until after that Military Commission process has completed.  

 

            So we really only have about 450 -- a little over 450 that are eligible for ARBs. 

 

            Yes? 

 

            Q     Does the U.S. government have any liability if they're released to another government that has given it assurance that they'd be okay, and something happens to them in that government's hands? 

 

            ADM. MCGARRAH:  No.  The other governments -- if we release or transfer detainees, the other governments do not hold those detainees or do anything with those detainees on behalf of the U.S. government. It's totally up to the receiving government, consistent with their laws. 

 

            Q     Admiral, I apologize if you've already talked about this. But Secretary Rumsfeld has mentioned several times that there have been a number of instances in which detainees were released, only to turn up again on the battlefield.  What more, if anything, is being done to make sure that kind of thing doesn't happen?  I know it's not a perfect process, but what are you doing toward that end? 

 

            ADM. MCGARRAH:  Well, let me first -- let me first give you the numbers, because I did mention that earlier.  About a dozen of the 234 that have been released since detainee operations started in Gitmo we know have returned to the battlefield -- about a dozen. 

 

            No process like this is absolute.  No process like this is without risk.  And so what we do to try to mitigate that risk is to make sure that we have all of the information that's available within the government's possession, and that we make the best possible judgment based on that.   

 

            Q     A number of detainees were returned to -- turned over to the custody of Great Britain, both this year and, I think, last year. Do you have any idea what happened to them? 

 

            ADM. MCGARRAH:  I do not.  You'd have to check with the government of Britain.  

 

            Q     Admiral, when you said that the foreign governments who receive the transfers are not doing anything on behalf of the U.S. government, can you explain, then, what the transfer is all about? You're not transferring them to serve some sentence or be detained in their home country at the behest of the United States? 

 

            ADM. MCGARRAH:  No, it's totally up to that government -- it's totally up to that government, consistent with their laws, as to what they do when detainees are transferred or released.  Now, if their law says that that detainee might be subject to prosecution or investigation, then that's a decision that government would have to make. 

 

            Q     So the difference between a release and a transfer, then, is that in a release, you're saying, "This person is free, and we want your assurance you won't mistreat them," and in a transfer, you're saying, "This person goes into your custody, and you decide what happens next"? 

 

            ADM. MCGARRAH:  That's correct, and with a transfer, we also request of those governments some security assurances that help to mitigate the risk of a detainee going back to the fight. 

 

            Q     Can you -- 

 

            ADM. MCGARRAH:  But what those are, are negotiated with the government, and their disposition has to be consistent with their laws. 

 

            Q     Does the U.S. government track what happens to these people, the transfers? 

 

            ADM. MCGARRAH:  I'm not aware if they do or not. 

 

            Q     So you don't know if they're -- if any are dead or -- 

 

            ADM. MCGARRAH:  I'm not aware, no.  

 

            Q     Of the 12 that have returned to the battlefield, were they ones who were transferred or released or some -- 

 

            ADM. MCGARRAH:  Those were all done pursuant to processes prior to ours, so I don't know the details of those decisions.   

 

            We'll get there in a second.   

 

            Q     Do you have any information on the number -- or can you talk a little about how the habeas suits are playing into this?  Are they just -- 

 

            ADM. MCGARRAH:  You'll -- no, you'll have to talk to the Department of Justice on the habeas. 

 

            Yes? 

 

            Q     Once a detainee's been designated for release to their home country or to wherever, how, then, does the circumstances of their detention change?  

 

            ADM. MCGARRAH:  The circumstances don't change until they're actually transferred, until they actually leave the island, because remember, they're still enemy combatants.  They've been found to be enemy combatants. 

 

            Q     They're not treated any differently than -- 

 

            ADM. MCGARRAH:  This is unlike the CSRT process, where, when we had a finding that they no longer met the criteria for enemy combatant, we did segregate them and give them more privileges.  But they are still enemy combatants, so they are still subject to detention, until they actually depart the island. 

 

            Q     When did the jail population peak at 700?  Do you have a month and a year? 

 

            ADM. MCGARRAH:  I do not have a time frame, no. 

 

            Q      All right.  Thank you. 

 

            Q     Thank you. 

 

            ADM. MCGARRAH:  Thanks very much.  Have a good weekend. 

 

            Q     Thanks, Admiral.

 

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