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,
"[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:
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
Q: Thank you.
SEC. ENGLAND: Great. Thanks very much.