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Ensuring the fairness of the hearing process for enemy combatants held at Guantanamo Bay, Cuba.
Like other conflicts throughout history, the global war on terrorism (GWOT) has produced detainees-legitimate prisoners of war, hostages, civilians, and/or terrorists-held for the duration of hostilities pursuant to the internationally accepted Law of Armed Conflict. The United States and its allies have numerous enemy fighters detained in Iraq and Afghanistan and have set in place processes in those countries to determine the appropriate disposition, including release, transfer, or continued detention, of those detainees while hostilities are ongoing. Additionally, the United States is currently detaining approximately 500 enemy fighters from Operation ENDURING FREEDOM at Guantanamo Bay, Cuba (GTMO). Detention at GTMO has recently come under increased scrutiny by congressional members, non-governmental organizations (NGOs), and the media. This article will explain the historic review processes by which the Department of Defense (DoD) determines whether or not the GTMO detainees should be released, transferred with conditions, or detained.
History
The then-Deputy Secretary of Defense (DepSecDef), Paul Wolfowitz, established the Administrative Review Board (ARB) process on 11 May 2004 in order to provide an annual administrative review of the GTMO detainees. The organization created to carry out the ARB process-the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC)-provides an annual review of each detainee in DoD custody through an administrative, fact-based, nonadversarial process resulting in a recommendation to release, transfer with conditions, or continue detention. Then-Secretary of the Navy Gordon R. England was appointed as the designated civilian official (DCO) of the ARB process to make the final determination among the three options.
In the spring 2004 the DCO met with internal DoD agencies, the National Security Council, Department of State (DoS), Department of Justice, Central Intelligence Agency, members of Congress, Ambassadors of countries with detainees at GTMO, International Committee of the Red Cross, and various NGOs to communicate DoD's intent, solicit input, and establish coordination.
Court rulings on 28 June 2004 temporarily slowed the ARB development process and delayed its execution. The court ruled in Rasul v. Bush that detainees had a right to challenge their detention via habeas corpus proceedings in Federal courts in Washington, DC.1 In a second ruling, Hamdi v. Rumsfeld, the court found that...