08 September 2004

Guantanamo Review Panel Finds One Detainee Not a Combatant

Detainee to be sent to home country; status confirmed for 29 others

Of the first 30 Guantanamo detainees reviewed by a tribunal to determine whether they are enemy combatants, one man has been judged a noncombatant and will be returned to his home country soon, a U.S. military spokesman says.

Navy Secretary Gordon England, charged by Defense Secretary Donald Rumsfeld with overseeing the tribunal process for detainees being held at Guantanamo Naval Base in Cuba, said September 8 he could not give the man's name or nationality, but that information would be released by his home government after his return. As for the remaining 29 detainees, their status as enemy combatants was affirmed; their cases will now be reviewed annually by a different military board in order to determine whether they still pose a danger to the United States, England said. Beyond those two review processes, he said, are the military commissions, which are criminal proceedings.

England said that the Combat Status Review Tribunal will go through all the relevant and recently available pertinent information about each of the 585 detainees at Guantanamo. So far tribunals for 55 detainees have been completed. There are more than 200 cases now open by the tribunal, he said. Those first 30 cases have been reviewed by the convening authority, Rear Admiral James M. McGarrah, who can accept the recommendation of the tribunal or refer it back to the tribunal, England said. McGarrah had accepted all of the tribunal's recommendations on the first 30 cases, he added.

England said that the most recent case brings to about 150 the number of detainees who have been released since hostilities with Afghanistan began. He said a review process of some type has been ongoing since the beginning of hostilities. England added that the detainee now slated for release had been through previous reviews, but that this three-person tribunal "did not go back to look at all other reviews," but instead "started fresh." The data now available to the tribunal, he added, "may or may not have been available to prior people who reviewed [these cases], because it's later in time." That one of the first 30 cases reviewed has resulted in a decision to release a detainee shows that the review process is working properly, he said.

"[W]e have a lot of very bad people" in detention at Guantanamo, England said. This makes the review process difficult, because Taliban and al-Qaeda fighters are trained to represent themselves as cooks or other types of noncombatants, "and it's very challenging to sort fact from fiction."

Following is the transcript of England's remarks:

(begin transcript)

U.S. Department of Defense News Briefing
Secretary of the Navy Gordon England
Wednesday, September 8, 2004 - 11:00 a.m. EDT

(Special Department of Defense Briefing with Navy Secretary Gordon England)

SEC. ENGLAND: Good morning.

QUESTION: Good morning.

SEC. ENGLAND: How's everybody today?

Q: Just lovely. Do you have some news for us? (Laughter.)

SEC. ENGLAND: (Laughs.) I don't know. It's all in the eyes of the beholder, I guess, if it's news or not. It is nice to be with you again. I believe this is the sixth time. Once again, I believe, everyone, we've met. I've Gordon England, secretary of the Navy, but again, in this capacity, working for Secretary Rumsfeld, responsible for the tribunal process at Guantanamo.

I do want to tell you, the other night I was talking to my wife Dottie, and she said to me, "I'm somewhat confused with the various processes that are -- you have underway at Guantanamo." And I said, "It's very straightforward." I said, "We have the tribunal process, and that is to decide if detainees are enemy combatants or not enemy combatants." I said, "We have the annual review boards. If you're an enemy combatant, then, indeed, you have an annual review to decide if you're still a threat to America. And we have the military commissions, which are criminal proceedings," I said. "So if you just remember, it's a tribunal, a board, and a military commission. Keep them all straight." And she said, "I've got it." And that night in the press they referred to military tribunals. So that destroyed all definition of keeping this straight because we've combined all the terms. But there are three separate processes: the military commissions, the annual review boards, and the tribunal process. And today I'm going to talk to you about the tribunal process and update on where we are in that process, which has now been underway for a number of months.

The -- first of all, the tribunals: CSRT -- Combat Status Review Tribunal, which is the formal name. It does provide a thorough review of all the relevant and reasonable available information that pertains to whether a detainee continues to be classified as an enemy combatant. If his -- as you know from past discussions, if he is classified by the CSRT, the tribunal, as an enemy combatant, he continues to be detained and then will be scheduled for this administrative review board, which is the annual review board. If it's determined that he should no longer be classified as an enemy combatant, then he is released.

As always, our intent of these processes is to balance the rights of the detainee while protecting America from terrorist threats. So as of this morning, here's the latest data.

As of this morning, we have completed 55 tribunals. That means the tribunal itself has completed their work -- 55 complete. We have now over 200 cases open. That is, they're at various stages of the process. It begins with reviewing records and ends with the convening authority's decision -- and that's Admiral McGarrah, who is the convening authority. You met him, I believe, last time. The convening authority, as you will recall, reviews that data of the tribunal; can either accept the recommendation of the tribunal or refer it back to the tribunal. The decision is made by the tribunal, accepted by the convening authority after sufficiency review by the authority.

So, to date, the convening authority has reviewed 30 of those 55 tribunal decisions and Admiral McGarrah has concurred with the tribunal's decisions that 29 of the 30 detainees were enemy combatants. He has also concurred with the decision of the tribunal that one detainee should no longer be classified as an enemy combatant. So of the 30, 29 determined to be enemy combatants; one determined not to be an enemy combatant. And for that individual, per the procedures that we've provided you, I've notified the Department of State, and they are notifying that detainee's home country. We've also notified the detainee of that decision, and that detainee has been moved from the detainee camp to a transition facility at Gitmo [i.e., Guantanamo] until we complete the arrangements to transport him from Guantanamo to his home country. We will do that, obviously, as quickly as State Department can do that.

Q: Can you say what that home country is?

SEC. ENGLAND: No, I can't.

We will -- after the transfer, that will become known. You know, we've released now about 150 detainees in the past for a number of reasons, including non-enemy combatant determinations. But that will be after the release to home country. It's really then up to the home country, working with our State Department, to release nationalities.

Q: But the 150 you've released are not out of this current batch of close to 600 down there, right?

SEC. ENGLAND: No, that's --

Q: You've only released one out of -- you're in the process of releasing one out of the group that you're working on now?

SEC. ENGLAND: No, some of -- since we've started, we continue to have a review of detainees. There's another process that's going on that we call the Section 1 process. There's always been this other process or this annual review process going on, so that continues. So some people have been released as we have also been in process. So I think it's a mixture, is the answer to your question.

But in total, there have been now 150 detainees, and now, of course, this is one more that's being released.

Q: Mr. Secretary, can you explain how this person wound up at Gitmo in the first place? Is this a relatively recent addition to the number of people there, or had this person been there for a while?

SEC. ENGLAND: No, he's been there for a while. I don't know the exact length of time, but he's been there for a while. We can perhaps get you that data.

(To staff.) Is that data available?

STAFF: I can get that, sir.

SEC. ENGLAND: Okay. I believe we can get you that data, so we'll try. I don't know -- no, he's been there for a while. No, this is not just -- he has been through other determinations in the past in terms of enemy combatant status. So he's been there for a while. It does --

Q: He's been through other reviews?

SEC. ENGLAND: Pardon?

Q: You say he's been through other reviews?

SEC. ENGLAND: Yes, he's been through other reviews. I mean, there's been now -- again, we have released 150 people, including a handful, a couple dozen people that have also been determined to be non-enemy combatants. I mean, look, it points up -- I mean, it points up the difficulty of reaching a decision for the tribunals. I mean, this is a very, very difficult process.

First of all, these are very complex issues. The information, many times it's ambiguous, it's conflict -- it's conflicting. It's not always black and white. Some cases it is, but in a lot of cases it's not black and white. We know these Taliban and al Qaeda people are trained. They know how to represent themselves. I mean, they claim they're cooks or whatever in the camps. So they're trained to respond, they know that, and it's very challenging to sort fact from fiction. So this is a difficult process, and we look at all the data.

Now as time goes on, fortunately we do get more data. So there's more data over time, you have a better understanding of the data, and hopefully we can make better decisions. On the other hand, as you know, I mean, some people have been released, have come back again to fight on the battlefield. So this is very difficult. I mean, these are very hard decisions. They're very thoughtful decisions because you do try to balance this individual with the security of the United States.

Q: Did this guy call a witness or something that established new information about his circumstances?

SEC. ENGLAND: Well, in some cases they can call a witness or they can provide information. Or we just learn more over time because you get information from all the detainees so you learn more and more in composite about all the detainees. So over time we learn more and more as time goes on from a variety of sources.

Q: Did this particular witness -- detainee call a witness who established new facts that helped lead to the decision? And also, did this person ever pose a threat to the United States, or was this a completely innocent person who was swept up accidentally and then spent a couple of years at Guantanamo before the facts about him were established?

SEC. ENGLAND: Well, first I can't tell you the specific data about the person because there's a lot of classified information about the person. But I can tell you all these --

Q: Even if he's not an enemy combatant?

SEC. ENGLAND: But I can tell you -- pardon me?

Q: Even if he's not an enemy combatant, there's classified information about him?

SEC. ENGLAND: Well, certainly there's classified information. There's classified sources of information, so I can't discuss the information. And again, it's a judgment call.

And again I'd point out the difficulty of this. I mean, this tribunal decided that this person should not be classified any longer as an enemy combatant. But these are hard decisions. And again, I believe we made the best decision we could with all the data available, so we made the very, very best decision we could. But again, these are thoughtful, difficult decisions. We know that some people we've released have come back to fight against U.S. forces. So this is a question of balancing risk. And it's against balancing the individual. And in this case we -- we set up a process, we're following that process, we're looking at all the data, and based on all that data, the tribunal has decided this individual is not an enemy combatant.

Q: Who notified the detainee? And can you say what his reaction was?

SEC. ENGLAND: Obviously, pleased not to be classified an enemy combatant and the opportunity to go home. So, certainly pleased to be going home.

Q: Can you talk about what sort of exculpatory evidence warranted his release? What did you find out that allowed you to clear him?

SEC. ENGLAND: No, I can't talk about the specific data. Again, the data -- a lot of it is classified, classified reports. So all I can tell you is that the process is to have three individuals make up the tribunal, they applied what we call a "reasonable person" standard; that is, look at all of the data, all the data from all the sources, bring it all to bear and make the best judgment and decision you can on each of the individuals.

Q: Was this person captured in Afghanistan?

SEC. ENGLAND: I don't know, specifically.

Q: When did this decision -- when was this reached? This week? Today? Last week?

SEC. ENGLAND: In the last few days.

Q: You can't say exactly when?

SEC. ENGLAND: No. Well, again, it goes through the convening authority, so it's really not complete until it goes through a sufficiency review and until Admiral McGarrah concurs with the decision. That was the date -- a few days ago, right?

STAFF: Yes, sir.

SEC. ENGLAND: In the past few days.

Q: Is there anything that will be done for this person who has been held for a couple of years now? Is there any money, any compensatory payment, any -- anything?

SEC. ENGLAND: I wouldn't think so. I mean, look, he was --

Q: "We made a mistake; you can go home now"?

SEC. ENGLAND: Well, look, I'm not sure it's that clear cut. I mean, he was determined to be an enemy combatant at different times. We now have more data available, we have a different group of people--came to a different conclusion.

So I'm not sure I would -- I would jump to that conclusion.

Q: All right, let me -- you said "determined to be an enemy combatant at times." And I thought the tribunals were to determine whether he was properly classified as an enemy combatant in the beginning. So, this person --

STAFF: (Off mike.)

Q: -- I'm confused here. You say he was a combatant from time to time, but --

SEC. ENGLAND: Well no. Look, determinations were made at various times that he was an enemy combatant. We've set up another process --

Q: Not that he was a combatant, but determinations were made.

SEC. ENGLAND: Determinations were made he was an enemy combatant. We now have set up another process; more data is available. Time has gone on, more data is available, more insight into this. And we've set up a process where three people would make this decision with specific ground rules, and their decision and conclusion is, is that this person is no longer an enemy combatant, based on the decision now available.

Q: You said that --

Q: I think what -- excuse me. Excuse me. I think that what we are trying to get clear is, how did you get from where you were to where you are? Was there a witness involved? Was there new information that was involved? How did you get from -- certainly you didn't -- he didn't just stand up and say, "Okay, I'm still innocent." Something --

SEC. ENGLAND: Look, we didn't go through that sort of a process. We went through a process -- our charge is to go take all the data available at this point in time from all sources, every bit of data we can, up to the present time, have all that data available, and have the individual himself have the opportunity to make a statement in an open forum, or to bring in a witness, but look at all the data. We did not go back to look at all other reviews. So this is start fresh with all the data now available. That data may or may not have been available to prior people who reviewed this because it's later in time; we learn as we go, we have more information. So -- and based on that data today and this tribunal, the decision to no longer classify this individual as an enemy combatant. I mean, it's that clear. And that is the process we used, and that's the process we use in every case.

Q: But in this particular case --

SEC. ENGLAND: So we try to be as -- all the data we can, to look at the data at this point in time.

Q: No, I understand the process. But I think Bob's question -- (inaudible) -- how did you get from -- what changed between the time he was and the time he wasn't? Is it just more information?

SEC. ENGLAND: Again, we haven't gone through a tracking of the past, haven't tried to do it, won't do that. We are looking at all the data we can compile at this point in time and make that decision. That's the process we've set up.

Q: Sir, during the hearing itself, did somebody testify --

SEC. ENGLAND: Pardon me. Pardon me. Which -- pardon me. Which tells me that the process is working correctly. The process is working correctly.

You know, as I said when we started this -- someone asked me early on, they said what do you expect the outcome to be, and I said I don't know, we haven't seen the data, not familiar with this. But given that there's, you know, almost 600 people, we have a different process, we have different people making decisions, I would expect just on the process of large numbers of people, you will get some different decisions. And people asked me back when this all started, they said how many do you expect? I said I don't know; I wouldn't be surprised if it's in the tens, however, just because different people looking at data a different way will come to different conclusions.

So I don't make any judgment about the decision. Instead, I believe the process is doing what we asked the process to do, which is to look at this data as unbiased as you can, from a reasonable person point of view, make the very best decision you can. That's what people did. So they're doing exactly what we asked them to do, and I believe the process is working -- what we designed.

Q: Sir, during the hearing itself, did the detainee present a witness?

SEC. ENGLAND: Did not.

Q: Did not.

Q: I think a lot of the questions that you've been getting here for the last five, 10 minutes, reflect the confusion on one central point, which is we're trying to figure out, I think, whether or not this person was an enemy combatant who is just no longer seen as a threat, and so therefore is being reclassified, or whether there was a determination that this person should never have been classified as an enemy combatant from the beginning. And that would lead you to the conclusion that perhaps, as some people said, an innocent person swept up in the system has been held for a long period of time in Guantanamo.

SEC. ENGLAND: I believe the reality is more complex than the question; that is, I don't believe it's quite that simple. First of all, these people were all involved somewhere. I mean, they didn't just end up here. I mean, they weren't -- you know, they were on the field of battle or in some situation that got them into this situation. So certainly there was some data at the time that these individuals were enemy combatants.

The data is very confusing at times, it's very conflicting at times. People can be in a camp, but maybe their role is incidental in terms of, you know, support for the camp itself. And it's very hard -- no one wears a uniform, right? People say all sorts of things; it's very difficult to separate fact from fiction. And these are very important decisions, because when we're wrong, we know that people come back to fight against America and our friends and allies. So these are very important and thoughtful decisions, and we try to be right because of the ramifications. But this is difficult, very difficult to do in some cases.

And again, it's not surprising to me that different people with data, either different data or presented a different way, may come to a different conclusion. So -- look, this is not a black and white. This is a very difficult -- and I believe it's indicative of the problem that we face in this new war. And we haven't, I don't think, fully comprehended difficulties that we face in this new war in terms of understanding our enemy. They're not wearing a uniform; they can morph into whatever identity they want and with all types of stories, and this is very difficult. It's very difficult for us, it's very difficult for the country, and I believe it's going to be a challenge for the nation as we go forward.

Q: Sir, can you describe the conditions this individual's being held in now that he's in a transitional status and not in a detainee camp?

SEC. ENGLAND: I'm not sure I can describe it, but he's no longer literally being held behind bars, so he obviously has more freedom now. And I'm not sure I know precisely -- I just know that he's out of that environment, in a different environment on Guantanamo, waiting for State Department to make arrangements for him to return home.

Q: Do you know about when he may return home? How soon?

SEC. ENGLAND: Well, of course, the storm could have some say about all that. Primarily it's though, I believe, State Department working with the home country more than it will be the storm itself.

Q: (Off mike) -- about days, though? Since we're talking about the storm may be involved -- we're talking about he's going to be leaving within days?

SEC. ENGLAND: Well, I don't know. Again, it's days or weeks. I mean, you do have to arrange transportation and -- so I'm not quite sure if it's just a day or two. I mean, I think it's probably somewhat more complex, but it's certainly not a long time.

Q: Any indication that --

SEC. ENGLAND: It's as soon as anybody can make those arrangements.

Q: Is this one of the detainees that was present during a tribunal? Or was it one of the ones that didn't present himself, didn't participate in that?

SEC. ENGLAND: No, he was present during the tribunal, yes.

Q: Is there any indication that when he returns to his home country that he is going to be incarcerated, or will he just be let free?

SEC. ENGLAND: I don't know.

Q: Will he be returned by U.S. military jet or fly -- (inaudible) --

SEC. ENGLAND: Again, I don't know. I believe State Department makes those arrangements. My response was notify State; they handle it from that point. I'm not sure of those arrangements.

STAFF: We have time for about two more real quick ones.

Q: Sir, the other --

Q: The other 29, are those determinations permanent or might there -- new information might come up that might result in the changing of the status of one or more of those --

SEC. ENGLAND: Of those 29 --

Q: -- of the 29 who were determined to be enemy combatants.

SEC. ENGLAND: No, the process now -- once we determine they are enemy combatants, or not enemy combatants, they then go into the annual review board and the annual review board will now hear each case on an annual basis and determine are they a continuing threat to America. So a different determination by a different board. They won't go back through enemy combatant status anymore.

Q: Can you talk about how the process --

SEC. ENGLAND: Pardon me. Let me get the hand right there.

Q: The other 29, have they been notified of the determination that they are enemy combatants.

SEC. ENGLAND: I believe they have. Yes, they have. They have been notified, yes.

Thank you.

Q: The only question I had is about how the process is going along. You forecast last time you'd be done in four or five months. Is it going as you expected it? Is it going slower or faster?

SEC. ENGLAND: No, it's actually going slower, but we are accelerating. We now have 200 cases in work. I believe a couple weeks ago we had 150 or so in work. It has gone slower. Again, it's a much harder process getting all the data, declassifying data, having interpreters to discuss with detainees sometimes multiple times. It is a much more complex process than we anticipated. But we are accelerating and the number of cases are now starting to pick up each day. So as our people become more familiar, as we get more people assigned, we are starting to accelerate the process.

So, I mean, we'll definitely be finished this year. I'm not questioning that. I mean, we'll definitely be finished. Some people have said it's going to go well into next year. That's not the case, and we are accelerating the process. It will go quicker.

But again, we definitely want to do this as fast as we can, but as you know, I keep saying we want to do it as fast as we can; we want to be as thorough and as complete as we can. You know, we do want to do this right for every single detainee. So that's the first criteria, and speed is the second criteria. So be thorough, do the very best job we can, but also do it as quickly as we can. That's the order we're working. So if we slow down, we slow down, but we do this right every time.

Q: Secretary England, you were still sort of giving an opening statement and we began to interrupt you with questions. (Laughter.) Before you --

SEC. ENGLAND: (Inaudible.)

Q: I just want to make sure before you leave that you imparted all the information you wanted to tell us. Was there anything else that you were --

SEC. ENGLAND: No, I believe that's -- I think we've covered everything.

I do want to tell you that we do know from the 50 cases that we've reviewed, I mean, we have a lot of bad people at Gitmo. I mean, we know that. We've been through all the data. We've had interviews with a lot of the detainees -- well, with all of them. And we have a lot of very bad people at Gitmo. And it is, I think, a reminder for us of this threat to America, and it's a reminder to all of us that we do this -- that we do this as right as we can. We do not want to keep anyone that we shouldn't keep. But keep in mind, every time we release someone there is some risk to this because, again, some people have come back. We know that. So there is some risk.

So we try to balance this and we try to be as fair about this as we can, but we also have a responsibility to protect and defend America. And again, these are hard -- these are hard decisions. We're being as thorough and as straightforward and direct as we can be. But these decisions weigh heavily on the people making the decision and all of us involved in this process.

Q: Thank you.

SEC. ENGLAND: So we will update you as -- you know, we'll update you again. We'll probably be talking to you next week again.

Q: Thank you.

SEC. ENGLAND: Great. Thanks very much.

(end transcript)