This week, the U.S. military is starting a second round of hearings at the Guantanamo detention center to determine whether any of the detainees can be released or transferred to the custody of their home countries. Officials say last year's first round of Administrative Review Boards determined that of the 496 men held at Guantanamo, 14 can be released and another 113 can be transferred to their home countries. Thirty more cases are pending, and the boards determined that the rest of the detainees should continue to be held. VOA's Al Pessin visited the Guantanamo detention center and discussed the review process with the U.S. Navy officer in charge.
"This building, designated Building Seven, this is where we hold the Administrative Review Boards," Captain Pat Salsman says.
Captain Salsman, commander of the unit that conducts the Review Boards is taking reporters on a tour between the two high fences topped with rings of razor wire that form the perimeter of the Camp Delta detention center.
"The detainee is in the center chair. Of course you see next to his foot there is a shackle there on the deck [floor]. And depending on their compliancy, they may or may not be shackled to the deck there," Captain Salsman says.
"And on either side, on this side here is the linguist, who will do the translation [and] on the far side is the assisting military officer."
That officer's job is to explain the process to the detainee. But there is no defense lawyer, and not exactly a prosecutor either, although another officer presents the evidence against the detainee. The detainee has a chance to make a statement and then he is removed from the hearing room so classified evidence can be presented. Only about half of the detainees choose to attend their Review Board sessions at all.
The board of three senior U.S. military officers makes a recommendation, which then goes to the deputy secretary of defense in Washington for a final decision. The options are release, transfer to custody in their home country, or continue to detain.
"The obligation is to take the information we have and determine, 'Is this person still a threat?' We go on what we have in the different assessments from the different organizations, if the individual chooses to come to the Board, what the individual says, the statement they make, and we have to weigh that the best we can," Captain Salsman says.
This process is done for all the detainees every year, and is separate from the military commissions that are beginning to hold trials for detainees who have been accused of war crimes. Thirteen detainees have been charged, and the U.S. Supreme Court is reviewing the constitutionality of the process.
But at the Administrative Review boards, Captain Salsman says, there is usually a lot of evidence related to each detainee's background.
"One thing taken alone is not necessarily going to make the difference in the individual being determined to be a medium threat value or a high-threat value," he says. "There is so much information we have, generally if a person is determined to be a high threat there is a bunch of other information from other agencies. What I am saying is we will not base it just on that one piece of information."
The officers on the board are not judges or lawyers. Captain Salsman says they use their command experience to weigh the evidence as fairly as they can.
But human rights lawyers say the whole process is unfair and illegal.
"We are giving them these kinds of proceedings that are incredibly unfair," Attorney Barbara Olshansky says.
Attorney Barbara Olshansky of the Center for Constitutional Rights in New York represents more than 200 of the Guantanamo detainees.
"This gets to a very interesting strategy that the government has, which is to call the war on terror a 'war,' and yet not agree to apply the laws of war, the Geneva Conventions, to the people they arrest," she says.
Olshansky says the vast majority of Guantanamo detainees are innocent. And while she welcomes the decision to release or transfer 127 of them, she says the process continues to keep many men in long-term detention for insufficient reasons and without any legitimate legal process.
"It is not like we do not have tools to address terrorism. We arrest people for terrorism and then we seek to have them extradited to the United States," Ms. Olshansky says. "We have done that for years. And we are very successful at prosecuting them. The president has decided he does not like having to use those channels and so now we are creating something that means he can bypass both law enforcement requirements and the laws of war. And that is what is so disturbing. It is outside of any legal framework."
Captain Salsman, who runs the Administrative Review Boards, takes the opposite view. He says the detainees are getting more opportunities to be released than they would have had in past conflicts.
"It is unprecedented. In previous wars, of course this is an unconventional war, but [in] previous wars when a country takes captives generally they are held until the cessation of hostilities and arrangements are made to trade," he says. "In this case, this unconventional war, it is still ongoing, but it is an opportunity for these individuals to return to their home country during the hostilities going on. It is unprecedented, to my knowledge, and it is not required by the Geneva Convention or laws of war."
The captain says the review process makes the Board officers face some difficult decisions.
"As far as releasing a suicide bomber, for example, I know there are some cases of people returning to the battlefield. You cannot predict that," Captain Salsman says.
Last year's Administrative Review Boards will leave between 303 and 333 detainees at Guantanamo, depending on the outcome of the 30 cases still not decided. But many of the men designated for release or transfer may need to stay at the detention center for many more months, even years.
Once the decisions are made, it is up to the State Department to work with the detainees' home countries to arrange for their release or transfer. That process has proved to be slow in some cases, leaving at least nine detainees approved for release through other channels more than a year ago still behind the barbed wire.