United States of America
Practice Relating to Rule 99. Deprivation of Liberty
Section B. Deprivation of liberty in accordance with legal procedures
The US Manual on Detainee Operations (2008) states:
a. As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations …
c. The four Geneva Conventions of 1949 are fully applicable as a matter of international law to all military operations that qualify as international armed conflicts … The principles reflected in these treaties are considered customary international law, binding on all nations during international armed conflict. Although often referred to collectively as the “Geneva Conventions,” the specific treaties are:
(4) The  Geneva Convention [IV] … This convention deals with the protection of civilians who find themselves under the control of an enemy nation (normally during a period of belligerent occupation). It regulates the treatment of such civilians, including establishing procedures for the deprivation of liberty (arrest, internment, assigned residence).
The manual also states:
Civilian Internee … [is a] civilian who is interned during an armed conflict, occupation, or other military operation for security reasons, for protection, or because he or she has committed an offense against the detaining power. Such individuals, unless they have committed acts for which they are considered unlawful combatants, generally qualify for protected status IAW [in accordance with] the GC [1949 Geneva Conventions], which also establishes procedures that must be observed when depriving such civilians of their liberty.
In July 2004, the US Secretary of Defense issued a memorandum to the Secretary of the Navy that ordered the establishment of a Combatant Status Review Tribunal (CSRT) process for enemy combatants detained at Guantánamo Bay Naval Base, Cuba:
This Order applies only to foreign nationals held as “enemy combatants” in the control of the Department of Defense at the Guantánamo Bay Naval Base, Cuba (“detainees”).
a. Enemy Combatant. For purposes of the Order, the term “enemy combatant” shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. Each detainee subject to this Order has been determined to be an enemy combatant through multiple levels of reviews by officers of the Department of Defense.
b. Notice. Within ten days after the date of this Order, all detainees shall be notified of the opportunity to contest designation as an enemy combatant in the proceeding described herein, of the opportunity to consult with and be assisted by a personal representative as described in paragraph (c), and of the right to seek a writ of habeas corpus in the courts of the United States.
c. Personal Representative. Each detainee shall be assigned a military officer, with the appropriate security clearance, as a personal representative for the purpose of assisting the detainee in connection with the review process described herein. The personal representative shall be afforded the opportunity to review any reasonably available information in the possession of the Department of Defense that may be relevant to a determination of the detainee’s designation as an enemy combatant, including any records, determinations, or reports generated in connection with earlier determinations or reviews, and to consult with the detainee concerning that designation and any challenge thereto. The personal representative may share any information with the detainee, except for classified information, and may participate in the Tribunal proceeding as provided in paragraph (g)(4).
d. Tribunals. Within 30 days after the detainee’s personal representative has been afforded the opportunity to review the reasonably available information in the possession of the Department of Defense and had an opportunity to consult with the detainee, a Tribunal shall be convened to review the detainee’s status as an enemy combatant.
e. Composition of Tribunal. A Tribunal shall be composed of three neutral commissioned officers of the U.S. Armed Forces, each of whom possesses the appropriate security clearance and none of whom was involved in the apprehension, detention, interrogation, or previous determination of status of the detainee. One of the members shall be a judge advocate. The senior member (in the grade of 0–5 and above) shall serve as President of the Tribunal. Another non-voting officer, preferably a judge advocate, shall serve as the Recorder and shall not be a member of the Tribunal.
f. Convening Authority.
The Convening Authority shall be designated by the Secretary of the Navy. The Convening Authority shall appoint each Tribunal and its members, and a personal representative for each detainee. The Secretary of the Navy, with the concurrence of the General Counsel of the Department of Defense, may issue instructions to implement this Order.
In July 2004, and in response to a Deputy Secretary of Defense Order of 7 July 2004 that had established a Combatant Status Review Tribunal (CSRT) Process, the US Secretary of the Navy issued a memorandum on the Implementation of CSRT Procedures for Enemy Combatants detained at Guantánamo Bay Naval Base, Cuba:
[The Deputy Secretary of Defense Order of 7 July 2004] has established a Combatant Status Review Tribunal (CSRT) process to determine, in a fact-based proceeding, whether the individual detained by the Department of Defense at the US Naval Base Guantánamo Bay, Cuba, are properly classified as enemy combatants and to permit each detainee the opportunity to contest such designation. The Secretary of the Navy has been appointed to operate and oversee this process.
The Combatant Status Review Tribunal process provides a detainee: the assistance of a Personal Representative; an interpreter if necessary; an opportunity to review unclassified information relating to the basis for his detention; the opportunity to appear personally to present reasonably available information relevant to why he should not be classified as an enemy combatant; the opportunity to question witnesses testifying at the Tribunal; and to the extent they are reasonably available, the opportunity to call witnesses on his behalf.
The CSRT Process, contained in Enclosure 1 to the 29 July memorandum, states:
This process will provide a non-adversarial proceeding to determine whether each detainee in the control of the Department of Defense at the Guantánamo Bay Naval Base, Cuba, meets the criteria to be designated as an enemy combatant, defined in [Deputy Secretary of Defense Order of 7 July 2004] as follows:
An “enemy combatant” for purposes of this order shall mean an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Each detainee whose status will be reviewed by a Tribunal has previously been determined, since capture, to be a combatant through multiple levels of review by military officers and officials of the Department of Defense.
The Director, CSRT, shall convene Tribunals pursuant to this implementing directive to conduct such proceedings as necessary to make a written assessment as to each detainee’s status as an enemy combatant. Each tribunal shall determine whether the preponderance of the evidence supports the conclusion that each detainee meets the criteria to be designated as an enemy combatant.
Adoption of the procedures outlined in this directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities or entities, its officers, employees or agents, or any other person.
In September 2004, the US Secretary of the Navy, acting in his capacity as Designated Civilian Official, Administrative Review of the Detention of Enemy Combatants at Guantánamo Bay Detention Facility, issued a memorandum regarding the Administrative Review procedures to be followed at Guantánamo:
In accordance with the policy guidelines set by the Secretary of Defense, the Administrative Review Procedures will encompass an administrative proceeding for consideration of all relevant and reasonably available information to determine whether the enemy combatant represents a continuing threat to the US or its allies in the ongoing armed conflict against al Qaida and its affiliates and supporters (e.g., Taliban), and whether there are other factors that could form the basis for continued detention (e.g., the enemy combatant’s intelligence value and any law enforcement interest in the detainee). The proceeding will result in a recommendation to release, transfer, or continue to detain each enemy combatant. This process is non-adversarial. It provides an enemy combatant the opportunity to review unclassified information relating to his continued detention, and to appear personally to present information relevant to his continued detention, transfer or release.
The Administrative Review Procedures were established [and subsequently amended] to permit annual reviews of DoD [Department of Defense] detainees in the Global war on Terrorism at US Naval Base Guantánamo Bay, Cuba, except those whom the President has determined to be subject to a Military Commission … until the disposition of any charges against them or by the service of any sentence imposed by a Military Commission. The Administrative Review Procedures involve military authority exercised in the field in time of war. These proceedings are not governed by the Federal Rules of Evidence or equivalent state evidentiary rules.
In July 2006, the US Deputy Secretary of Defense, Gordon England, issued a memorandum regarding the Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba. These procedures amended those promulgated in the Department of Defense Memorandum, Implementation of Administrative Review Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba, 14 September 2004, through the incorporation of requirements contained within the Detainee Treatment Act of 2005:
[The Detainee Treatment Act of 2005] requires that the procedures governing the Administrative Review process provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee … [The Detainee Treatment Act of 2005] also requires that the procedures governing the Administrative Review process ensure that, in making a determination of a detainee’s disposition, an Administrative Review Board (ARB), to the extent practicable, assess whether any statement derived from or relating to such a detainee was obtained as a result of coercion and the probative value, if any, of such statement.
In July 2006, the US Deputy Secretary of Defense, Gordon England, issued a memorandum on the Implementation of Combatant Status Review Tribunal (CSRT) Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba. This memorandum amended a memorandum on the same subject that had been issued by Mr England on 29 July 2004, in his then capacity as Secretary of the Navy. The amendments, which incorporated requirements contained within the Detainee Treatment Act of 2005 into the text of the original memorandum, stated:
[The Detainee Treatment Act of 2005] requires that the procedures governing the CSRT process provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee … [The Detainee Treatment Act of 2005] also requires that the procedures governing the CSRT process ensure that, in making a determination of a detainee’s status, a CSRT, to the extent practicable, assess whether any statement derived from or relating to such a detainee was obtained as a result of coercion and the probative value, if any, of such a statement.
In the Bismullah case in 2007, a writ of habeas corpus appeal involving eight detainees at the Guantánamo Bay Naval Base (each petitioner seeking review of the determination by a Combatant Status Review Tribunal (CSRT) that he is an “enemy combatant”), the US Court of Appeals for the District of Columbia Circuit stated:
In order to review a Tribunal’s determination that, based upon a preponderance of the evidence, a detainee is an enemy combatant, the court must have access to all the information available to the Tribunal. We therefore hold that, contrary to the position of the Government, the record on review consists of all the information a Tribunal is authorized to obtain and consider, pursuant to the procedures specified by the Secretary of Defense, hereinafter referred to as Government Information and defined by the Secretary of the Navy as “such reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant,” which includes any information presented to the Tribunal by the detainee or his Personal Representative.
In addition, we must implement such measures to govern these proceedings as are necessary to enable us to engage in meaningful review of the record as defined above. Therefore, we will enter a protective order adopting a presumption, as proposed by the petitioners, that counsel for a detainee has a “need to know” the classified information relating to his client’s case, except that the Government may withhold from counsel, but not from the court, certain highly sensitive information.
In March 2003, the US Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, wrote a memorandum to William J. Haynes II, General Counsel of the Department of Defense, which provided a legal analysis governing the military interrogation of alien “unlawful combatants” held outside the United States. The memorandum stated in part:
Two constitutional provisions that might be thought to extend to interrogations – the Fifth and Eighth Amendments – do not apply here. The Fifth Amendment provides in relevant part that “[n]o person … shall be deprived of life, liberty, or property, without due process of law.” … The Eighth Amendment bars the “inflict[ion]” of “cruel and unusual punishments.” … These provisions, however, do not regulate the interrogation of alien enemy combatants outside the United States during an international armed conflict. This is clear as a matter of the text and purpose of the Amendments, as they have been interpreted by the federal courts.
We conclude below that the Fifth Amendment Due Process Clause is inapplicable to the conduct of interrogations of alien enemy combatants held outside the United States for two independent reasons. First, the Fifth Amendment Due Process Clause does not apply to the President’s conduct of a war. Second, even if the Fifth Amendment applied to the conduct of war, the Fifth Amendment does not apply extraterritorially to aliens who have no connection to the United States.
If each time the President captured and detained enemy aliens outside the United States, those aliens could bring suit challenging the deprivation of their liberty, such a result would interfere with and undermine the President’s capacity to protect the Nation and to respond to the exigencies of war.
[E]ven if the Fifth Amendment applied to enemy combatants in wartime, it is clear that that the Fifth Amendment does not operate outside the United States to regulate the Executive’s conduct toward aliens. The Supreme Court has squarely held that the Fifth Amendment provides no rights to non-citizens who have no established connection to the country and who are held outside sovereign United States territory. Rasul v. Bush, 215 F. Supp. 2d 55, 72 n.16 (D.D.C. 2002) (“The Supreme Court in Eisentrager, Verdugo-Urquidez, and Zadvydas, and the District of Columbia Circuit in Harbury, have all held that there is no extraterritorial application of the Fifth Amendment to aliens.”) .
[T]he President’s power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander in Chief. Any construction of criminal laws that regulated the President’s authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President’s constitutional authority. Moreover, we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maiming, interstate stalking, and torture pursuant to any express authority that would allow it to infringe on the President’s constitutional control over the operation of the Armed Forces in wartime. In our view, Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. In fact, the general applicability of these statutes belies any argument that these statutes apply to persons under the direction of the President in the conduct of war.
Under our Constitution, the sovereign right of the United States on the treatment of enemy combatants is reserved to the President as Commander-in-Chief. In light of the long history of discretion given to each nation to determine its treatment of unlawful combatants, to construe these statutes to regulate the conduct of the United States toward such combatants would interfere with a well established prerogative of the sovereign. While the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12,1949, 6 U.S.T. 3316, T.I.A.S. 3364 (“GPW”), imposes restrictions on the interrogations of prisoners of war, it does not provide prisoner of war status to those who are unlawful combatants. See Treaties (Ind Laws Memorandum
at 8–9. Those restrictions therefore would not apply to the interrogations of unlawful belligerents such as al Qaeda or Taliban members.
In June 2004, the US Department of Defense issued a statement regarding the establishment of an administrative review of the continued detention of enemy combatants at Guantánamo Bay Naval Base, Cuba. Entitled “Navy Secretary to Oversee Enemy Combatant Admin Review”, it stated:
The Department of Defense announced today that the Secretary of the Navy, Gordon R. England, has been named the designated civilian official to oversee the annual administrative review of the continued detention of enemy combatants at Guantánamo Bay Naval Base, Cuba. As the designated civilian official, England will operate and oversee the review process to assess whether each detainee held by the Department of Defense at Guantánamo should be released, transferred or should continue to be detained.
During the review, each detainee will have an opportunity to appear in person before a board of three military officers and provide factual data to support his release. The detainee will be provided a military officer to assist him. In addition, the review board will accept written information from the family and national government of the detainee. Based on all of this information, as well as submissions by other U.S. government agencies, the board will make a recommendation to England, who will decide whether to release, transfer or continue to detain the individual.
England has assembled a joint civilian and military team that is developing a detailed, comprehensive process to expedite the review of detainee records and establish review boards in the near future. This process will provide an annual review of each enemy combatant and will assist DoD [Department of Defense] in fulfilling its commitment to help ensure no one is detained any longer than is warranted, and that no one is released who remains a threat to our nation’s security.