Who Broke Periodic Review at Guantanamo Bay?

Benjamin R. Farley
Monday, October 15, 2018, 10:00 AM

The Periodic Review Board (PRB) appears to be broken. Since President Trump’s inauguration 21 months ago, the PRB—often described as a parole-like body established to determine whether an individual may be transferred from the detention facility at Guantanamo Bay—has become a one-way ratchet, only ratifying continued detention and never recommending release. This is not to say the PRB has recommended continued detention for all the detainees whose cases it has reviewed since February 2017.

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The Periodic Review Board (PRB) appears to be broken. Since President Trump’s inauguration 21 months ago, the PRB—often described as a parole-like body established to determine whether an individual may be transferred from the detention facility at Guantanamo Bay—has become a one-way ratchet, only ratifying continued detention and never recommending release. This is not to say the PRB has recommended continued detention for all the detainees whose cases it has reviewed since February 2017. Instead, the board has produced numerous decisions recommending continued detention intermixed with a handful of sometimes extremely overdue ones. This mixture of indecision with decisions for continued detention suggests that the PRB has become disabled from approving detainee transfers—likely because the consensus views of senior national-security civil servants are being overruled by political appointees. It also suggests those same political appointees are preventing the PRB’s higher-level review processes from fulfilling obligations to resolve the undecided cases, systematically denying certain detainees meaningful review of their detention and an avenue for release.

Periodic Review Framework

The PRB is made up entirely of civil servants. They are Senior Executive Service members or other experienced subject-matter experts, representing the Departments of State, Defense, Justice and Homeland Security, the Director of National Intelligence and the Joint Chiefs of Staff. The PRB operates on a consensus basis in determining whether to approve or not the release of a detainee based on whether he poses “a continuing significant threat to the security of the United States,” requiring continued law-of-war detention. Typically, the same day the PRB meets to hear a detainee’s case, it deliberates and arrives at a consensus decision. Principals—that is, cabinet-level officials—from the departments and agencies represented on the PRB are then allotted 30 days to object to the PRB’s disposition of any given detainee.

An objection from any one of the principals triggers the convocation of the Review Committee, which is merely a “paper” Principals Committee meeting—meaning it is conducted virtually, without convening principals for face-to-face deliberation—dedicated to resolving the disposition of a detainee. Should this paper review fail to resolve the issue, the unresolved PRB decision is supposed to be added to the agenda for a forthcoming in-person Principals Committee, where the Review Committee members—the Secretaries of State, Defense or Homeland Security, the Attorney General, the Director of National Intelligence or the Chairman of the Joint Chiefs of Staff—are to resolve it in person.

Historically, principals rarely object to the PRB’s determinations. This deference to career national-security professionals is unsurprising, especially because the professionals who sit on the PRB are generally also responsible for drafting memoranda to their respective principals recommending concurrence with or objection to the PRB’s decision. Indeed, the Review Committee convened only once during the Obama administration.

Additionally, from a practical perspective, principals who oversee large national-security bureaucracies can hardly be expected to be as deeply steeped as their subordinates in the biographical details of individual detainees. Nor can they spend the better part of a working day—let alone the 58 cumulative working days dedicated to PRB hearings over the course of three years under the Obama administration—attending a hearing, considering a detainee or his representative’s statements, questioning the detainee, entertaining potential witness representations and deliberating with their counterparts over the detainee’s fate. If, as is most often the case, no principal objects to the PRB’s decision within 30 days, then the detainee is notified of the PRB’s determination and that decision is published on the Periodic Review Secretariat’s website. Across all initial reviews, full reviews, and subsequent full reviews since the PRB’s inception, most decisions have been published within 30 days. (Allowing for logistical hurdles associated with notifying the detainee prior to publication of a decision, PRB decisions are published within 40 days 67 percent of the time.) On the other hand, if a principal objects to the PRB’s determination, the detainee’s disposition is held until the Review Committee is able to decide the detainee’s fate.

The Pattern of Periodic Review Disruption in the Trump Administration

Although the PRB was established by the Obama administration, it was explicitly adopted without modification by Trump in his Executive Order 13823. Prior to Trump’s inauguration, the PRB conducted 72 initial reviews, approving 31 detainees for release. The PRB also conducted eight full reviews of men not approved for transfer following their initial review, approving for release seven of them.

Since Trump’s inauguration, the PRB has approved the release of no additional Guantanamo Bay detainees—but, critically, it also has not approved continued law-of-war detention for all those detainees reviewed. Over the last 20 months, the PRB has developed a strange pattern: Following a hearing, consensus findings for continuing law-of-war detention are published within 30 days, but decisions with respect to other detainees never emerge at all.

Between February 2017 and August 2018, the PRB held four full reviews and eight subsequent full reviews. In nine of those 12 cases, the PRB determined that law-of-war detention remains necessary. On average, those decisions were published within 32 days of the PRB hearing.

But in three of the 12 cases the PRB has heard since Jan. 20, 2017, its decision is more than 30 days overdue. (A fourth decision appeared to be more than 20 days overdue when, after close of business on Thursday, Oct. 11, the PRB's determination approving continued law-of-war detention for Ismael Ali Faraj Ali Bakush was posted to the PRS website. Strangely, despite being posted on Oct. 11, 2018, the decision is dated nearly a month earlier, exactly 30 days from his PRB hearing.) On average, these decisions are more than 268 days overdue, with one decision more than 580 days late. In comparison, during the Obama administration, only the single decision known to have been rendered by the Review Committee took more than 300 days to be reached and published. Even when compared to the most severe example of delay under the Obama administration, the operation of the PRB and its review processes under the Trump administration has been notably slow.

Given the PRB’s record during the Obama administration and its ability to reach consensus decisions for ongoing law-of-war detention since the president’s inauguration, it seems unlikely that all three overdue dispositions result from a failure on the part of career national security professionals to reach consensus decisions recommending the transfer of detainees or their continued law-of-war detention. Indeed, the PRB previously resolved all three of these cases in favor of continued detention, with an average time-to-published decision of 39 days. That suggests the PRB’s apparent inability to reach consensus decisions in one quarter of the cases it has heard since Jan. 20, 2017 is not attributable to these detainees presenting particularly difficult cases.

Ends-driven Political Interference is the Likely Cause of the PRB’s Dysfunction

There are at least two explanations for the PRB’s present dysfunction. First, certain members of the PRB may be operating under instructions from their departments or agencies not to approve the release of any more Guantanamo detainees. That would eviscerate the PRB’s longstanding ability to operate on a consensus basis. Alternatively, the PRB may still be reaching consensus decisions in all or most cases, only to have one or more principals subsequently object to its decisions against continued detention as a rule. In light of the current administration’s avowed hostility to transferring Guantanamo detainees and certain principals’ historical objection to transferring Guantanamo detainees, either scenario is plausible.

Regardless of the immediate mechanics impeding the PRB’s ability to resolve these cases, both these scenarios stem from political appointees interfering in the independent judgment of senior national security professionals. It would be bad enough if these appointees, as a bloc, overruled the PRB and rendered continued law-of-war decisions for each detainee considered. But the number of overdue decisions, and the protracted delays associated with them, suggest that the PRB’s review function—principals rendering on-paper or in-person determinations—is simply not working at all. It is as if someone ripped out a few gears from a machine but left it running.

The PRB Has Become a One-Way Ratchet for Justifying Continued Detention

The PRB’s present inability to render any decision other than for continued law-of-war detention is particularly pernicious in light of how the government invokes the PRB’s continued operation to minimize judicial scrutiny of the Guantanamo detention regime in federal habeas corpus proceedings. For example, in its response brief in Al Hajj v. Trump, the government cited the operation of the PRB, inter alia, to justify the detention of Al Hajj and others. The government even noted that the president had just recently reaffirmed the viability of the PRB through an executive order. Although the government’s primary argument concerning the legality of the detainees’ continued detention is that such detention is authorized under the laws of war by an ongoing armed conflict between al-Qaeda and the United States, the government would not cite the PRB’s availability if it did not believe that the PRB’s continued operation would be helpful in persuading federal courts to not upset its unbounded Guantanamo detention regime. At oral arguments, the district court indicated that it, too, views the PRB as providing procedural safeguards that militate against federal court interference with the government’s determination of whether or when to release Guantanamo detainees. But if the PRB operates only to ratify continued detention of individuals at Guantanamo Bay, then it is not providing any procedural safeguards whatsoever—and federal judges are being misled.

Even more disturbingly, the absence of decision in certain PRB cases shunts those detainees into a procedural limbo that denies them any additional review. Detainees who the PRB determines pose a continuing significant threat to the United States receive a file review every six months from the date of the PRB’s decision. (Whereas the detainee and his personal representative or legal counsel may participate in a full-fledged PRB hearing, a file review occurs without an appearance by a detainee or his representative.) That detainee then receives a new PRB hearing, known as a full review or subsequent full review, within 36 months of his initial hearing or whenever, based on the file review, the PRB determines by consensus that a significant question has been raised as to whether continued law-of-war detention is necessary protect against a continuing significant threat to the security of the United States. But, because file reviews, full reviews and subsequent full reviews are triggered by the PRB rendering a decision for continued law-of-war decision, the three detainees whose dispositions are overdue will not receive their semi-annual file review or their triannual full reviews for as long as their PRB determinations remain outstanding.

For example, Omar Muhammad Ali al-Rammah, whose PRB decision is nearly 600 days overdue, has not received any of the three file reviews he would otherwise be entitled to if the PRB’s decision had been delivered on time. More egregiously, the PRB hearing that is so overdue in al-Rammah’s case was itself triggered by a file review that found, “[a]fter reviewing relevant new information related to the detainee as well as information considered during the full review, the Board, by consensus, determined that a significant question [was] raised as to whether [his] continued detention is warranted.” In other words, as early as November 2016, the PRB suggested that al-Rammah’s detention may no longer be necessary. Yet he not only remains in detention—he is now denied any additional review due to the inability of the PRB and its review processes to reach determinations other than those ratifying continued detention.

Denying Guantanamo detainees meaningful review or an avenue for release makes the PRB little more than a fig leaf for unreviewable detention and an unfortunate aberration in recent U.S. detention practices. Prior to the Trump administration and outside Guantanamo, U.S. detention operations have seen expanding procedural protections and a greater ability for detainees to challenge their detention. The PRB's dysfunction and its apparent blanket ban on transfer approvals represents a departure from that trend. Worse, by failing to reach decisions for detainees who likely would be approved for transfer but for political interference, the principals charged with overseeing the PRB have perverted the system to punish detainees, denying both process and certainty to men whom the PRB determines no longer pose a continuing significant threat to the United States.

Benjamin R. Farley is a trial attorney and law-of-war counsel at the U.S. Department of Defense, Military Commissions Defense Organization. He is assigned to the team representing Ammar al-Baluchi, one of the five co-defendants in the 9/11 conspiracy case who face capital charges before the military commission at Guantanamo Bay, Cuba. From 2013 until 2017, he served as a senior adviser to the special envoy for Guantanamo closure at the U.S. State Department. A 2012 Presidential Management Fellow, Farley received a J.D. with honors from Emory University School of Law, where he served as the editor-in-chief of the Emory International Law Review. He also holds an M.A. in international affairs from the Elliott School of International Affairs at the George Washington University. Farley has published on topics including sovereignty, statehood, and international humanitarian law in various law and policy journals such as the Michigan Journal of International Law, the Fordham International Law Journal, and World Politics Review.

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