Hearings Determine Detainees' Threat Status

Navy Rear Adm. James McGarrah, director of the Office of Administrative Review for Detained Enemy Combatants, explained that DoD is holding the detainees to keep them off the battlefield.

"But because this is an unconventional war, we don't expect to have a treaty-signing-on-the-battleship kind of ending to this," McGarrah said during an interview with American Forces Press Service today. "So we were trying to find a way now, after a couple of years, to take those that we deemed no longer a threat and try to get them out of U.S. custody."

Defense officials have stressed repeatedly that they don't want to hold any detainees any longer than absolutely necessary.

Since December, DoD has been holding Administrative Review Board hearings for individual detainees at Guantanamo Bay.

These board hearings are separate from the Combatant Status Review Tribunals process where military officers have been reviewing the cases of all detainees held in the military detention facility at Guantanamo to determine if they were all properly classified as enemy combatants.

In an ARB, a "designated military officer" presents information to a panel of three other officers, at least one of whom is an intelligence officer.

All information presented falls into two categories: information that supports continued detention and information that supports transfer or release, McGarrah explained.

The detainee is entitled to attend the unclassified portion of the hearing, and each detainee is assigned an "assisting military officer" to ensure he understands the process. The AMO can also present information to the panel on the detainee's behalf.

McGarrah said the AMO is not in an advocacy role and there is no presumption of confidentiality. "It's the AMO's responsibility to assist the detainee, make sure the detainee understands the process, make sure the detainee understands what opportunities he's got to participate, to provide input, share with the detainee the unclassified information, primarily in the form of the unclassified summary that we generate," he said.

A series of hearings on March 22, in which media representatives were allowed to watch the unclassified portions, illustrated the various roles the assisting military officers play.

During one afternoon session, in which the detainee -- an Algerian native -- did not participate, the AMO reported the detainee provided comments in his own defense. The AMO said the detainee disputed government assertions that he had trained in al Qaeda terrorist training camps and never had anything to do with al Qaeda.

The AMO, a Navy lieutenant commander, relayed that the detainee said he drank and did drugs, so al Qaeda never would have accepted him.

The DMO presented information that the detainee had attended mosques in London, including one where terrorists were known to have met. When the AMO read the detainee the unclassified summary, the detainee reportedly responded, "How can this be a bad thing? It is my faith."

In the second afternoon hearing, in which the detainee also declined to appear, the evidence was much more damning. This detainee allegedly left his home country, Saudi Arabia, after he graduated high school in 2001 to travel to Afghanistan to join the Taliban because he believed in their cause, according to the unclassified summary.

Since his arrival at Guantanamo Bay in January 2002, this detainee has reportedly admitted he's a terrorist, struck a block sergeant in the face and hit another guard, and told a guard supervisor, "I will cut your throat."

In two incidents in June 2004, this individual also "incited other detainees," according to the unclassified summary.

"No primary factors favor this detainee's release or transfer," the designated military officer, an Army lieutenant colonel, told the panel.

In this case, the assisting military officer, an Air Force lieutenant colonel, reported that the detainee "was uncooperative and unresponsive" when he was presented with the unclassified summary and that he did not ask the AMO to present any information.

The unclassified hearing in this case lasted about 10 minutes.

Officials said the detainees have attended in about half of the roughly 70 hearings held so far.

In the interview today, McGarrah explained there are many reasons a detainee might not attend his ARB hearing. "Some (detainees) are already represented by ... counsel in the federal courts, and in many cases the counsel has advised their client not to participate in any of these processes. So that might be one of the reasons," he said. "Some of them, they may realize that they are a high threat and they may just see no value in participating."

McGarrah said officials have seen no evidence that detainees are boycotting the proceedings, as published press accounts have suggested.

The admiral said he believes it's important to understand that the reason the detainees are being held has nothing to do with the criminal-justice system. "It's nothing close to a criminal-justice issue; it's a law-of-armed-conflict issue," he said.

He added that the U.S. government implemented these proceedings of its own accord to try to be as fair to the detainees as possible. "We're putting in processes like the ARB to make sure that (Guantanamo Bay) doesn't become the 'black hole' that it's being characterized as," McGarrah said, "so that each detainee will have an assurance that at least once a year their case is going to be reviewed.