Order Adds Fairness to Detainee Processes, Officials Say

By Karen Parrish

American Forces Press Service

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.”