The US government continues to use its Naval Base at Guantánamo Bay for the unlawful detention of 40 men. The majority of these men have been detained at the base for more than 16 years with neither charge nor trial; indeed the US has only levelled charges against nine of the current detainees. Of the remaining 31 who are not under any charge, five have long been cleared for release but remain detained due to inaction by the Trump Administration.
The promise of freedom, however ephemeral, is a powerful coercive tool.
The Periodic Review Board (PRB) is a flawed administrative process originally framed by the Obama Administration to review whether detention is still warranted for the remaining Guantánamo detainees who are known as “forever prisoners.” The PRB procedure occupies the space that rightfully should belong to the criminal courts. It is premised on replacing proving guilt beyond a reasonable doubt with an arbitrary assessment of “threat-level”. This is the perverse but inevitable outcome of a system of indefinite detention without charge or trial. Without defined charges that can be challenged in court, the government has forced itself to create a host of different non-legal standards on which to judge whether one should be detained forever or released. Unsurprisingly, this alternative system, which hasn’t undergone the centuries of development that defines the US’ criminal judicial system, is arbitrary and inherently flawed.
For an administrative review board to meet the standards of International Humanitarian Law (IHL) it must be fully independent and impartial. The PRB, as it currently operates, fails to meet any standards s of independence and impartiality and instead acts as a conduit for decisions which ultimately lie with the executive branch – a branch currently led by a President who has publically declared that “there should be no further releases from Gitmo.” As a result, the PRB is a rigged system which mirrors the politics of the administration which controls it. Not one detainee has been cleared for release in the two years since President Trump took office and no detainee will be released until there is legislative or judicial intervention to ensure that those left in Guantánamo can confront charges in a court of law and access a legitimate administrative body which can assess any need for continued detention as required by the laws of war and effect the release of those the government will not charge with crimes.
International Humanitarian Law dictatesthat an administrative body overseeing continued law of war detention must be independent and impartial. The Inter-American Commission on Human Rights has cited the following criteria as necessary for meeting that standard:
- The body must be transparent regarding its procedures and their implementation;
- The body must exhibit direct decision-making power;
- The review must be precipitated on access to all available information;
- Members of the review body should be appointed from outside the chain of command or at least be
effectively independent from the latter’s influence;
- Members of the review body must be permanent and internment review should be their only task; and
- At least one of the body’s members should be a qualified lawyer
It is impossible to know whether the PRB includes these last two elements, as nothing is publicly known about the members of the Board beyond their organizational origins. The Board unequivocally fails to meet any of the first four elements.
First, there is no transparency in the Board’s procedures. The standard for determining a detainee’s freedom by the PRB is whether the detainee poses a “significant threat” to national security. However, there is no clear criteria to distinguish a “significant threat”. With no transparency about what constitutes a significant threat, basic due process is undermined. For example, in one case the Board instructed the detainee not to address historical allegations made against him that he insisted were false on the basis that historical allegations were not relevant to the PRB process; the Board then specifically based its refusal to clear him on those allegations. Equally, Board members cannot be held accountable for their arbitrary lines of questioning. Instead, Board members are given free range to magnify any of a range of issues into a basis for continued indefinite detention.
Second, the Board has no decision-making power. The stated role of the PRB is only “to assist the Executive Branch” by making recommendations for transfer. Even before a PRB recommendation is finalized, it must be approved by a Senior Review Committee composed of high-ranking Executive Branch officials. Following that hurdle, the ultimate release still lies with President Trump, the very man who campaigned on a promise keep Guantánamo open and hold detainees there indefinitely.10 This explains why five detainees were cleared for release under the Obama Administration remain detained today under the Trump Administration with no prospects of freedom.
Third, the Board does not have access to highly relevant information. The Board relies on government evidence, generally using the government’s summary of allegations as fact when making its final determinations. However, efforts by the lawyers for detainees to import known classified evidence that refute these allegations have been blocked. This is particularly troubling when considering that many Guantánamo detainees were seized on the basis of so-called “intelligence” obtained by major government pay-outs and the CIA torture program.
Fourth, members of the Board and its Senior Review Committee are not independent, but rather are part of the military and the Executive Branch. Government influence over the entire procedure is structurally inevitable.
The PRB therefore does not meet required standards of independence or impartiality. The PRB system’s flaws are compounded by the fact that the majority of Guantánamo detainees are denied the right to plead their innocence in criminal proceedings – even if it were accepted that the Military Commission process is, itself, legally acceptable.
The PRB therefore does not meet required standards of independence or impartiality.
Unfortunately, engagement with the PRB can hinder a detainee’s prospects of release due to its coercive nature. Through its lines of questioning and the language in its final determinations, the Board has made it very clear to detainees that their only hope of a positive ruling is to make a confession (which in many instances the detainee insists to be false) to prior bad acts, to show “contrition.” The promise of freedom, however ephemeral, is a powerful coercive tool. Involuntary statements may then be used against detainees in all proceedings to mandate continued detention. Additionally, PRB procedures have scrapped the age-old principle of legal privilege, making available to the government any information procured from meetings between a detainee and his representative in preparation for a PRB hearing. Lastly, even though PRB hearings are rife with delays (sometimes of several years), the government often points to the PRB’s function to thwart any legal challenge in an Article III habeas court, stating that a regular assessment of a detainee’s threat-level through the PRB process bolsters the legal justifications for continued detainment.
The negative impact the PRB can have on habeas proceedings comes in a context where habeas proceedings themselves have become increasingly unfair. A detainee’s right to habeas has been repeatedly eroded by the D.C. Circuit which has worked to unravel habeas protections through a series of decisions since 2009 – such that the court has now effectively ruled that an Article III tribunal does not have the power to order the prisoner’s release. The net result of these elements—no charges or trials, a toothless habeas process, and a detention review process beholden to an administration that champions indefinite detention—is clear: There is no way out of Guantánamo.
Given the current dysfunctional state of the habeas system and the fact that the PRB is not a realistic avenue for securing release, 31 detainees remained locked in Guantánamo Bay in what can only be classified as wholly arbitrary detention at the hands of US authorities. Therefore, the U.S. Government must:
- Immediately facilitate the safe repatriation or resettlement of the 5 men who have
long been cleared for release.
- Establish a functioning administrative review process which can more promptly
release detainees whose detention is not warranted by the laws of war.
- Provide fair trials for those who can be charged, and release the others thereby
ending indefinite detention without charge at Guantánamo.