Office for the Administrative Review of Detained Enemy Combatants
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The Office for the Administrative Review of the Detention of Enemy Combatants is responsible for overseeing Guantanamo captives initial Combatant Status Review Tribunals and annual Administrative Review Board hearings.
It is the position of the Bush Presidency that captives apprehended during the "war on terror". were not entitled to the protections of the Geneva Conventions and thus were not entitled to Prisoner of War status. The relatives of some Guantanamo captives initiated haveas corpus submissions, which would require the Executive Branch show it had meaningful reasons to hold the captives. Part of the United States Supreme Court's ruling in Rasul v. Bush was a requirement that the United States Department of Defense provide a venue for captives to have an opportunity to learn why they were being held and to give them an opportunity to refute those allegations.
The Combatant Status Review Tribunals
The Supreme Court recommended that the venue where captives were presented with the allegations should be modeled after the procedures laid out for Tribunals Army Regulation 190-8. Army Regulation 190-8, entitled Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees laid out procedures through which military officers could make a determination as to whether captives were entitled to the protections of POW status, or whether they were innocent civilians, or whether they were combatants who had violated the Geneva Conventions criteria that entitled them to the protections of POW status.
The Combatant Status Review Tribunals that OARDEC set up were outwardly very similar to those set up by under the authority of Army Regulation 190-8.[3] They differed, however, in their mandate. They were only authorized to review whether earlier secret procedures had correctly determined that the captives should have been determined to have been "enemy combatants".
558 Tribunals were convened between August of 2004 and January of 2005, one for each captive then held in Guantanamo. The final recommendation of the CSR Tribunal system was that 520 of the captives had originally been correctly determined to have been enemy combatants. The Tribunal system recommended that 38 of those captives should be classified as "no longer enemy combatants".
Members of the Press observed 37 of the Tribunals.[4]
In 2006 human rights workers learned that senior officers became concerned that Tribunals had recommended overturned the enemy combatant status of more than 38 captives.[5][6]
In the winter and spring of 2007 14 more CSR Tribunals were convened, for 14 "high-value detainees", who had been transferred to military custody from years of captivity in secret CIA interrogation camps. There were some differences in the procedure for their Tribunals, including that members of the press were explicitly not permitted to attend their Tribunals.
As of October 2007 five more captives have been transferred to Guantanamo, who have yet to have a CSR Tribunal make a recommentation about their enemy combatant status.
The Administrative Review Board hearings
Like the CSR Tribunals the Administrative Review Board were outwardly modeled after the Tribunals described in Army Regulation 190-8. For every captive whose enemy combatant status was confirmed by a CSR Tribunal has a Board convene once a year to consider whether that captive should still be held by the USA, or because they continued to represent a threat to the USA, or because their detention continues to hold intelligence value.
Appeals under the Detainee Treatment Act of 2005
In 2005, following reports that captives in US custody were being abused, John McCain, a member of the United States Senate who was tortured himself when he was a prisoner during the War in Vietnam, sponsored a bill which was to specify that the interrogation techniques used on captives in US custody should not exceed those published in the United States Army's field manual on interrogation. The Detainee Treatment Act of 2006, when passed, also specified Guantanamo captives could appeal the recommendation of their CSR Tribunals -- when the Department of Defense failed to follow its own procedures. Captives were allowed to appeal to the Washington DC District Court of Appeals.
In the summer of 2007 in al Odah v. Gates and other submissions, the recommendations of the Tribunals of 137 Guantanamo captives were appealed. The Department of Defense first argued that it should not be made to turn over the evidence used to prepare the Summary of Evidence memos prepared for the CSR Tribunals. When the Court of Appeals ordered thee Department of Defense to turn over the evidence the Department of Defense then informed the court that it could not find the evidence used to prepare the memos. The Department of Defense has said that it will recompile new Summary of Evidence memos which will be presented to brand new Tribunals for some or all of those 137 captives.
Internal criticisms of OARDEC's operation
On June 22 2007, an appeal on behalf of Guantanamo captive Fawzi al-Odah contained an affidavit from Stephen Abraham, a lawyer and United States Army reserve officer, which was highly critical of OARDEC's procedures.[7][8] According to the Washington Post Abraham felt compelled to come forward after hearing his former boss, Rear Admiral James M. McGarrah call the Tribunal process "fair".
The release of OARDEC documents
Approsimately 2,200 documents prepared for the CSR Tribunald and hearings have been released.[9]
References
- ↑ Neil A. Lewis. Guantánamo Prisoners Getting Their Day, but Hardly in Court, ], November 8 2004, New York Times. Retrieved on 2007-10-28.
- ↑ Mark Huband. Dock of the bay, Financial Times, December 11 2004. Retrieved on 2007-10-28.
- ↑ Donald Rumsfeld. Order Establishing Combatant Status Review Tribunal, United States Department of Defense, July 7 2004. Retrieved on 2007-10-28.
- ↑ Annual Administrative Review Boards for Enemy Combatants Held at Guantanamo Attributable to Senior Defense Officials. United States Department of Defense (March 6 2007). Retrieved on 2007-10-28.
- ↑ Candace S. Gorman. Secrets of the War Criminals, Huffington Post, December 12 2006. Retrieved on 2007-10-28.
- ↑ Dick Gordon (February 5 2007). Gitmo - Lifting the Veil of Secrecy. American Public Media: The Story. Retrieved on 2007-10-28.
- ↑ Carol D. Leonnig, Josh White. An Ex-Member Calls Detainee Panels Unfair: Lawyer Tells of Flawed 'Combatant' Rulings, Washington Post, Saturday, June 23, 2007. Retrieved on 2007-10-26.
- ↑ Gitmo Panelist Slams Hearing Process: Lt. Col. Stephen Abraham Is First Member Of Military Panel To Challenge Guantanamo Bay Hearings, CBS, June 23,, 2007. Retrieved on 2007-10-26.
- ↑ OARDEC. Combatant Status Review Tribunal (CSRT) and Administrative Review Board (ARB) Documents, United States Department of Defense, September 10 2007. Retrieved on 2007-09-29.