Various detainee review processes have been established in Afghanistan since the commencement of U.S. military operations. In January 2010, Joint Task Force (“JTF”) 435 assumed control of the Detainee Review Boards (“DRBs”) and all detention procedures in Afghanistan.[i] Under JTF 435, substantial changes were made to afford detainees greater rights during the DRB process, which is an administrative hearing.[ii] These improvements include the right of a detainee to the assistance of a Personal Representative (“PR”) before and during his DRB.
PRs are “non-lawyer, professional officer[s].”[iii] While the current rules governing the DRBs are classified,[iv] a 6-page policy letter provides insight into DRB procedures and the role of the PR.[v] According to this policy letter, entitled the “Detainee Review Procedures at Bagram Theatre Internment Facility,” the PR “shall be a commissioned officer familiar with the detainee review procedures and authorized access to all reasonably available information (including classified information) relevant to the determination of whether the detainee meets the criteria for internment and whether the detainee’s continued internment is necessary.”[vi] In addition, PRs are required to participate in a training course for one week[vii] and to meet with other DRB personnel for weekly trainings in order to strengthen their advocacy and representational skills.[viii] Further, according to the policy letter, the PR “shall act in the best interests of the detainee.”[ix]
In his article, “Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy,” Lieutenant Colonel Jeff A. Bovarnick describes the role of the PR during the DRB process. The PR has an initial meeting with the detainee during the detainee’s first 30 days at the Detention Facility in Parwan.[x] The PR notifies the detainee of the date of his DRB hearing, describes the DRB process, and reviews the unclassified evidence available with him.[xi] It is important to note that at this initial meeting, as Bovarnick writes, “the PR has an incredible challenge of gaining the trust and confidence of the detainee while at the same time explaining a truly foreign process to him through an interpreter.”[xii] At this initial meeting, the PR also inquires about the detainee’s family members who may testify on his behalf, and afterward arranges for those persons to be called as witnesses.[xiii] The PR usually meets with the detainee two or three more times before his DRB hearing in order to help him create his statement for the board and prepare him to answer the board’s questions. [xiv]
The PR plays a significant role during the DRB hearing. The PR advocates on behalf of the detainee, ensures that the detainee understands the procedures and challenges the factual record.[xv] As Lieutenant Colonel Bovarnick notes, “the PR becomes the essential link between the detainee and the review proceedings.”[xvi] Additionally, the PR is bound by a non-disclosure agreement which protects information potentially harmful to the detainee’s case from being disclosed.[xvii] However, it is important to note that the detainee is not allowed to be present at the classified portion of his own hearing.[xviii] During this portion when the detainee is excused, the PR acts in the detainee’s best interest.[xix] Moreover, the PR cannot share classified information with the detainee.[xx]
Despite the appointment of PRs, human rights organizations have criticized the DRB process for not providing legal counsel to detainees. They assert that because the PR is a member of the U.S. military, he or she is not independent and thus cannot truly act in the detainee’s best interests.[xxi] Human Rights First is also critical of the non-disclosure agreement between the PR and the detainee. It argues that such an agreement falls short of confidentiality and contends that a detainee might not be as candid with a member of the military as he would with an independent attorney. [xxii]
However, Lieutenant Colonel Bovarnick insists that there is no requirement or precedent under either the army regulations or the law of armed conflict for the appointment of lawyers at an initial stage of administrative detention, before someone is labeled as an enemy combatant.[xxiii] He asserts that “early observations revealed that professional military officers can perform their roles at a high level of expertise given the proper training and resources.”[xxiv]
Nevertheless, fundamental questions of fairness remain. Even if the applicable law governing detentions in Afghanistan does not mandate legal representation for detainees, is there any injustice in not providing detainees with counsel? Further, can a representative of the U.S. military remain committed to his or her mission, yet still truly act in the best interest of a detainee who is held under the military’s control? Or is there instead an inherent conflict in the PR’s role? As further reforms of the DRB process will undoubtedly occur, perhaps the role of the PR will evolve into that of an independent, legal counselor. These questions raise a number of serious issues concerning the DRB process and the role of the PR that this post will not address, but which will be considered in future posts.
Update by David Brown
Detainees and their personal representatives (“PR”) now have
limited confidentiality privileges. This represents an incremental step toward
the attorney-client privilege standard that is a staple of the U.S. justice
system. The new rules (previously marked “secret” by the Department
of Defense) were attached to a memorandum filed in the case Al Maqaleh v.
Gates in federal district court for the District of Columbia. The new rules
require PRs “not to disclose information detrimental to the detainee’s
case that was obtained through communications between the detainee and their
personal representative.” Memorandum from the Dep’t of Defense to U.S.
Military Forces Conducting Detention Operations in Afghanistan § 9.e(3) (July
11, 2010) [hereinafter New Rules], available at
http://www.politico.com/static/PPM205_bagrambrfb.html. And according to the New Rules, PRs are required to meet with the detainee “at least twice” before the detainee’s DRB hearing. New Rules § 9.e(6). The New Rules also prohibit the personal representative
from disclosing “adverse information discovered by the personal representative’s independent investigatory efforts” to the tribunal. Id. § 9.e(6).
While these new strides in confidentiality between detainees and
their personal representatives are to be commended, the DRB procedures are far
from ideal—judged from a conventional due process view. PRs cannot “reveal any
classified information to the detainee at any time.” And the extent of
classified information unavailable to detainees is likely vast, including the
identity and testimony of key witnesses who may have turned the detainee over
to U.S. officials. See Andrea Prasow, The Bagram Detainee Review
Boards: Better, But Still Falling Short, Human Rights Watch (June 1, 2010),
For a detailed discussion of the new DRB rules, see Josh Gerstein, U.S. Officers Representing Afghanistan Prisoners Get More Lawyerly, Politico.com (May 20, 2011),
[i] Jeff A. Bovarnick, Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy, 6 Army Law. 9, 28 (June 2010), available at http://www.loc.gov/rr/frd/Military_Law/pdf/06-2010.pdf
[ii] Id. at 23.
[iii] See id. at 30. See also 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]).
[iv] Bovarnick, supra note 1, at 24 n.97.
[v] Detainee Review Procedures, supra note 3.
[vi] See id. at 5. See also Bovarnick, supra note 1, at 30.
[vii] Id. at 30.
[ix] Detainee Review Procedures, supra note 3, at 6.
[x] Bovarnick, supra note 1, at 22.
[xiv] Id. at 22, 31.
[xv] Id. at 38.
[xvi] Id. at 32.
[xvii] Id. at 31.
[xix] Id. at 23.
[xx] Id. at 31.
[xxi] Human Rights First, Fixing Bagram: Strengthening Detention Reforms to Align with U.S. Strategic Priorities 8 (2009) available at http://www.humanrightsfirst.info/pdf/Fixing-Bagram-110409.pdf .
[xxii] Id. at 12.
[xxiii] Bovarnick, supra note 1, at 39.