Detainee Review Boards and U.S. Criminal Law: A Comparative View

The earliest U.S. detention operations in Afghanistan began in November 2001.[i] Largely restricted to temporary installations managed by members of the Afghan Northern Alliance[ii] working in concert with U.S. Special Forces, detention centers remained decentralized until the Bagram Collection Point (BCP) came into use by May 2002.[iii] Soon after the BCP became the primary detention site in Afghanistan, the first detainee review practices were developed. Throughout numerous iterations these practices, currently known as Detainee Review Boards (DRBs), have been modified in many significant procedural categories. Despite some changes that have made the DRBs somewhat comparable to recognizable American legal proceedings, the DRBs bear little resemblance to the heightened standards that are hallmarks of the American criminal justice system.

The DRBs are administrative hearings used to determine the status of a detained enemy combatant. While a DRB does not actually result in either a conviction or an acquittal, it does have numerous possible effects. Following the conclusion of a DRB proceeding, the detainee may face continued detention, a transfer to detention by the Afghan National Authority for criminal prosecution or the start of a reconciliation process (also known both as the Afghanistan Peace and Reintegration Program as well as Peace Through Strength[iv]), transfer to a third country if the detainee is a non-Afghan third-country national, or the end of detention altogether.[v] The current procedure was instituted in 2009, and it has numerous features not shared by its predecessors.[vi] Detainee participation and representation are significantly modified and increased by the new procedures, but the total impact of these changes is diminished by the still stringent and opaque rules on admissibility of evidence, criteria for continued detention, burden of proof, and the role of the judges.

The most crucial additions to the DRB are the procedural elements developed with regard to detainee participation and representation, which have been expanded greatly, but still lack critical elements of transparency. For example, detainees now have a right to be present for a significant portion of the proceedings, and to see the unclassified evidence against them. Formerly unrepresented throughout the DRB process, the detainees are still unavailable to lawyers during the process, but are now assigned non-lawyer ‘Personal Representatives’ who are responsible for advising the detainees.[vii] These Personal Representatives play a vital role in the presentation of evidence raised in defense of the detainee during the DRB, a role that is more completely discussed by Claire Thomas in her article The Role of the Personal Representative.[viii] As we will see, however, with regard to the individual detainee’s experience the split between the presentation of unclassified and classified evidence during the DRB is a critical element.

The general rules of evidence at the DRB are straightforward. During the open portion of the hearing, the detainee may hear the unclassified evidence brought against him, and offer a variety of evidence and witness testimony in response. Lt. Col. Jeff Bovarnick, a U.S. Army attorney who has provided legal support and training for the detainee review procedures in Afghanistan, describes the standards of evidentiary admissibility: “The rules of evidence that apply in a criminal court do not apply at a DRB . . . . The Board may consider any information offered that it deems relevant and non-cumulative.”[ix] For example, hearsay evidence, normally excluded from criminal proceedings, is allowed during the DRB.[x] This evidence is gathered from a wide variety of sources, including testimony from the military personnel who participated in the initial capture of the detainee as well as witness testimony from Afghan civilians. Additionally, family members, neighbors, and other Afghan civilians with personal connections to the detainee can provide statements or testify at the DRB itself as character witnesses.

The evidence adduced during the open portion of the DRB is in contrast to that presented during the classified part of the proceedings, which is never revealed to the detainee. During this portion of the hearing, classified evidence including reports from the military, intelligence services, and informants is admitted before the panel.[xi] Detainees are probably often tasked with defending themselves against allegations made or information developed by secret sources, and as one observer notes, “It is simply impossible for a detainee to fairly rebut the accusations against him without being able to see the evidence.”[xii] Additionally, given that a significant portion of the evidence admitted to the DRB may be classified, it is unclear to the detainee the extent to which the adjudicator has relied on the secret evidence. Put another way, the detainee does not know if his proffered evidence was fatally weak or if the classified evidence was particularly strong, a situation ultimately hindering the detainee’s ability to participate in his own defense. Detainees must navigate these evidentiary practices in the attempt to demonstrate they do not meet the criteria for detention.

Taken as a whole, the evidence adduced at the DRB is meant to demonstrate to the panel whether the detainee meets the criteria for continued detention – but the explicit guidelines governing the criteria for detention remain classified. The 2009 DRB procedures state that a determination will be made as to whether a detainee is an “Enduring Security Threat.”[xiii] The description of an Enduring Security Threat is redacted from the otherwise declassified DRB procedures, so a detainee may not specifically attack the elements of the classification but instead can only muster the evidence he feels is exculpatory. The declassified procedure itself states, “Following the hearing of testimony and the review of documents and other information, the review board shall determine whether the detainee meets the criteria for internment, as defined above.”[xiv] Without knowledge of the specific criteria, detainees face the burden of arguing an unknown standard. As Human Rights First suggests, “It is also unclear whether there is any place in the threat assessment process for consideration of the detriment to the overall U.S. mission that results from overbroad or vague grounds for detention.”[xv] For the detainee, the stakes are high – if the panel determines the detainee is an Enduring Security Threat, detention may well be indefinite.[xvi] The DRBs may repeat after an unknown period, and do have a 60-day review, but it is unclear how the proceedings differ from one hearing to another, unless detainees are somehow able to harness new evidence or gather fresh witness testimony.[xvii]

Ultimately, the three-member DRB will consider all admitted evidence and render a majority decision based upon “preponderance of the evidence.”[xviii] “Preponderance of the evidence” is a standard of proof that means “more likely than not.” While “preponderance of the evidence” is a standard familiar to American civil courts, it is a lower standard than that of a criminal prosecution, where the state has the burden of proving the guilt of the accused “beyond a reasonable doubt.” In fact, the standard is two steps beneath that of a criminal prosecution, as another standard – “clear and convincing evidence” – is often employed in other proceedings involving specially sensitive issues of confinement, in particular cases involving civil commitment.[xix] Further, it is unclear which party specifically carries the burden of proof. There is little information on this pivotal question of roles. It may be inferred, however, from a procedural outline prepared by Lt. Col. Bovarnick that the military bears this burden, as it must show the detainee “meets criteria [resulting in] continued internment.”[xx] This allocation of the burden of proof would seem to indicate that there is some presumption in favor of the detainee akin to the presumption of innocence in U.S. criminal law, but any presumption must in fact be quite minimal under a “preponderance of the evidence” standard. While the DRB does not result in a conviction per se,the standard is markedly reduced as compared with domestic U.S. confinement standards in light of the seriousness of the proceedings and the potential duration of detention.

Due in part to the broad rules governing evidentiary admissibility and the wide range of potential witness testimony, the hearings could be susceptible to error – particularly error prejudicing the detainee. Aside from the power of the convening authority discussed below, the more direct guard against this error is the three judge panel which must find by a two-thirds vote either in favor of continued detention for the detainee or in favor of one of the release or transfer options.[xxi] The judges themselves are members of the U.S. military picked from a pool of available field-grade officers, who receive training provided by the Army Judge Advocate General Corps (JAG).[xxii] The judges are not part of the Army JAG, whose members are specially trained to act as neutral parties within the military. While the DRB procedures require that judges must not have been directly involved in the capture of the detainees, this fact does not particularly ensure the body’s neutrality, as they are ultimately co-participants in the same military system and therefore share commonality of identity and purpose.[xxiii] In sum, the panel’s relative lack of neutrality suggests an additional impediment for the detainee seeking to fairly rebut the criteria for continued internment.

The DRB system itself is administered by a military unit – Joint Task Force 435 – tasked in part with establishing and propagating “rule of law” in Afghanistan.[xxiv] The decisions of the DRB are also subject to approval by the “convening authority,” the U.S. military officer appointed by U.S. Central Command to run the Joint Task Force. This officer has plenary authority over the proceedings, and also chooses DRB members in accordance with the DRB procedural guidelines.[xxv] As Lt. Col. Bovarnick writes, “Other than a decision to release due to a lack of information demonstrating the detainee has met the detention criteria, the board’s recommendations are not binding on the convening authority.”[xxvi] The convening authority would appear to have some check against the power of the judges to make arbitrary and capricious rulings, though the extent to which this power is exercised in practice is unknown. This ultimate and incontrovertible authority does little to enhance the transparency of the proceedings or to bolster Afghan faith in the fairness of the rulings themselves.

The current DRB system offers improvements over earlier procedures for the detainee with regard to process and appearance. Still, the rules on representation, evidentiary admissibility and presentation of secret evidence not available to the detainee, criteria for continued detention, burden of proof, and the selection and role of the judges remain well below established domestic American levels for criminal cases. As a result, the detainee’s opportunities for appearance, representation, and fairness at the hearings remain substantially tempered.


[i] Douglas Stanton, Horse Soldiers: The Extraordinary Story of a Band of U.S. Soldiers Who Rode to Victory in Afghanistan 289 (2009).

[ii] Id. at 20. The Northern Alliance, or United Front, was a military and political organization formed within Afghanistan that directly opposed the Taliban. After the terrorist attacks on September 11, 2001, the United States allied itself with and fought alongside the Northern Alliance in the war against the Taliban and regional elements of al-Qaeda.

[iii] Jeff Bovarnick, Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy, 2010 Army Law. 9, 15, available at http://www.loc.gov/rr/frd/Military_Law/pdf/06-2010.pdf.

[iv] focus: Afghanistan Peace and Reintegration Program, International Security Assistance Force – Afghanistan, http://www.isaf.nato.int/article/focus/afghanistan-peace-and-reconciliation-program.html (last visited Mar. 29, 2011). The Afghanistan Peace and Reintegration Program, also known as “Peace through Strength,” assists those identified as former insurgents and works to reestablish the fighters in their former communities with “dignity and honor.” As of March 2011, this source notes “there are as many [as] 50 reintegration opportunities and about 1,400 potential reintegrees in negotiations and another 2,000 insurgents reportedly interested in reintegration.”

[v] Bovarnick, supra note 3, at 29.

[vi] For the most current unclassified documentation of the DRB Procedures, see: Letter from Mr. Phillip Carter, Deputy Assistant Secretary of Defense for Detainee Policy, to Senator Carl Levin, Chairman of the Senate Armed Services Committee (July 14, 2010), available at http://www.wcl.american.edu/nimj/documents/addendum.pdf?rd=1 (including the six-page 2 July 2009 Detainee Review Procedures enclosure [hereinafter Detainee Review Procedures]).

[vii] Bovarnick, supra note 3 at 23.

[viii] See Claire Thomas’ Article, The Role of the Personal Representative.

[ix] Bovarnick, supra note 3, at 23.

[x] Id. at 23. Bovarnick notes evidence may include: “hearsay evidence in the form of classified and unclassified reports, threat assessments, detainee transfer requests, targeting packets, disciplinary reports from the DFIP guards, observation reports from the behavior science assessment teams, photographs, videos, sound recordings, and all forms of sworn and unsworn statements and letters.”Id. at 23.

[xi] Id. at 23.

[xii] Andrea Prasow, The Bagram Detainee Review Boards: Better, But Still Falling Short, Jurist: Legal News and Research (June 1, 2010), http://jurist.org/forum/2010/06/bagram-detainee-review-boards-show-improvement-but-still-fall-short.php.

[xiii] 2009 DRB Procedures, supra note 6, at 8.

[xiv] Id. at 7.

[xv] Human Rights First, Fixing Bagram: Strengthening Detention Reforms to Align with U.S. Strategic Priorities 10 (2009) available at: http://www.humanrightsfirst.org/wp-content/uploads/pdf/Fixing-Bagram-110409.pdf.

[xvi] Bovarnick states the board recommends “continued internment at the DFIP if necessary to mitigate the threat posed by the detainee.” Bovarnick, supra note 3, at 29. See also: Luna Droubi’s Article, An Analysis of U.S. Detention Numbers in Afghanistan.

[xvii] Bovarnick, in his detailed discussion of the DRB Process, does not report on the differences between the initial and subsequent DRB hearings.

[xviii] 2009 DRB Procedures, supra note 6, at 7.

[xix] Addington v. Texas, 441 U.S. 418, 427 (1979).

[xx] Bovarnick, supra note 3, at 47 (Appendix A).

[xxi] Id. at 29.

[xxii] Id. at 48 (Appendix B).

[xxiii] Human Rights First, supra note 15,at 9.

[xxiv] Bovarnick, supra note 3 at 29.

[xxv] Id. at 29.

[xxvi] Id. at 30.