Order Adds Fairness to Detainee Processes, Officials Say

WASHINGTON, March 17, 2011 — An exec­u­tive order on detainees issued this month will strength­en nation­al secu­ri­ty and pro­mote the rule of law, Deputy Defense Sec­re­tary William J. Lynn III told a con­gres­sion­al com­mit­tee today.
The order for peri­od­ic review of detainees’ sta­tus strikes a bal­ance between their rights and nation­al defense needs, Lynn told the House Armed Ser­vices Com­mit­tee.

“Our goal is to ensure a sys­tem of deten­tion that is bal­anced and fair with respect to the detainees, and is sus­tain­able and cred­i­ble with the U.S. courts, the Con­gress, the Amer­i­can peo­ple and our allies,” Lynn said.

Pres­i­dent Barack Oba­ma issued the order March 7, direct­ing that detainees held with­out a tri­al at Naval Sta­tion Guan­tanamo Bay, Cuba, go before a peri­od­ic review board with­in a year, and annu­al­ly after that, to have their cas­es assessed.

Each detainee also is enti­tled to a six-month file review between board assess­ments. The board is to include rep­re­sen­ta­tives from the Defense Intel­li­gence Agency, the Joint Chiefs of Staff and the State Depart­ment.

The order also requires the attor­ney gen­er­al and defense sec­re­tary to assess whether pros­e­cu­tion is still fea­si­ble and in the country’s nation­al secu­ri­ty inter­ests. In light of the order, Lynn said, Defense Sec­re­tary Robert M. Gates has lift­ed a sus­pen­sion on new mil­i­tary com­mis­sion charges.

The admin­is­tra­tion has reviewed the sta­tus of each detainee since 2009, Lynn said, and Con­gress passed the Mil­i­tary Com­mis­sions Act of 2009.

“With that piece of leg­is­la­tion and oth­er reforms, we believe that the mil­i­tary com­mis­sions, along with fed­er­al civil­ian courts, are an impor­tant tool to bring detainees to jus­tice,” he said.

Defense lead­ers dis­agree with restric­tions Con­gress has placed on trans­fer­ring Guan­tanamo detainees to the Unit­ed States for pros­e­cu­tion, the deputy sec­re­tary said. As Oba­ma and Gates have made clear, Lynn said, “we must have avail­able to us all tools that exist for pre­vent­ing and com­bat­ing inter­na­tion­al ter­ror­ist activ­i­ty, … includ­ing the option of pros­e­cut­ing ter­ror­ists in fed­er­al court.”

Some Guan­tanamo detainees pose a con­tin­u­ing threat to the Unit­ed States, but have not been charged, con­vict­ed or des­ig­nat­ed for trans­fer, Lynn said. “For this group, the pres­i­dent said we must have a thor­ough process of peri­od­ic review so that any pro­longed deten­tion is care­ful­ly eval­u­at­ed and jus­ti­fied,” he added.

The exec­u­tive order also directs rep­re­sen­ta­tion for detainees fac­ing the review board, and stip­u­lates detainee treat­ment will fol­low applic­a­ble laws relat­ing to the trans­fer, treat­ment, and inter­ro­ga­tion of indi­vid­u­als detained in an armed con­flict.

“Over­all, we believe these ini­tia­tives will pro­mote clear, cred­i­ble and law­ful stan­dards for the deten­tion and pros­e­cu­tion of those who remain at Guan­tanamo,” Lynn said. Jeh C. John­son, defense gen­er­al coun­sel, tes­ti­fied along with Lynn. It’s impor­tant to note that Guan­tanamo detainees are those iden­ti­fied as ter­ror­ist ene­mies by Con­gress’ 2001 Autho­riza­tion for Use of Mil­i­tary Force, John­son said.

The defin­ing ques­tion, John­son said, must be, “Is this per­son part of the con­gres­sion­al­ly declared ene­my in the con­gres­sion­al­ly declared armed con­flict?” If the answer is yes, John­son said, “that’s some­thing that may well be a mat­ter for our mil­i­tary, ver­sus law enforce­ment.”

U.S. Depart­ment of Defense
Office of the Assis­tant Sec­re­tary of Defense (Pub­lic Affairs)

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