The Combatant Status Review Tribunals have been held by the United States Department of Defense since July 8, 2004 for the purpose of determining whether the detainees the United States has been holding in Guantanamo Bay detainment camps in Cuba had been correctly classified as enemy combatants. CSRT hearing transcripts are available on the Department of Defense website as redacted PDF files and mp3 audio transcripts.^[4] As of October 1st, 2007, fifteen CSRT transcripts are available on the DoD website.

Following the Hamdi v. Rumsfeld ruling (June 2004) the Bush administration began using Combatant Status Review Tribunals to determine the status of detainees. The Supreme Court suggested that a procedure similar to competent tribunals would be adequate to meet the minimum requirements of due process.^[5]

These hearings were conducted based on the assertion by the Bush administration that detainees in the war in Afghanistan were not eligible for prisoner of war status according to the terms of Article 2 of the Third Geneva Convention and as such were unlawful enemy combatants.

Background

The Geneva Conventions oblige belligerents to honor certain rights of civilians and prisoners of war. The Geneva Conventions require combatants to have fulfilled certain requirements in order to enjoy the rights of POW status. But they require belligerents to continue to grant the rights of POW status to those prisoners suspected of failing to fulfill the conditions that would afford them POW status, until the belligerent had convened a competent tribunal to make a determination as to their status. ^{[6] [7] [8]} The Geneva Conventions expressly state that such a tribunal should be convened "if a doubt arises" as to a detainee's status.

Since the September 11, 2001 attacks, the Bush administration has suggested that those who do not meet this definition should be determined to be "unlawful combatant." Should there be doubt about whether persons have fulfilled the conditions that confer prisoner of war status, Article 5 of the Third Geneva Convention states that their status may be determined by a "competent tribunal" and until such time they are to be treated as prisoners of war. Simplified, the Bush Administration's argument is that no doubt has arisen, because it is an impossibility for these combatants to ever meet the criteria.

If required, Geneva Conventions oblige belligerents to convene the competent tribunals in a timely fashion.

The interpretation of the Bush administration was that the Geneva Conventions obliged belligerents to convene a competent tribunal to review the combatant status of prisoners only when their status was in any doubt. Since the administration was sure that the prisoners did not qualify for POW status, there was no need for a review. However, other parties, such as the International Red Cross, Amnesty International and Human Rights Watch maintain there is doubt, among scholars and between other nations as to the exact status, and therefore a "competent tribunal" should be held. The conventions are silent on the definition and mechanics of a "competent tribunal."

Various legal challenges were mounted on behalf of the detainees. Most of those legal challenges ruled against the policy, and when the Executive Branch's opportunities to appeal were exhausted they convened tribunals in early July of 2004.

Although the Geneva Conventions oblige belligerents to convene the tribunals in a timely fashion most of the Guantanamo Bay detainees had been held for over two and a half years. During that time they had not been able to communicate with their families, or have legal advice. They are, however, appointed a military "personal representative." This appointed military officer often is a military lawyer, although this is not required by any regulation.

Moazzam Begg's POW status

Moazzam Begg's Tribunal was held on November 13 2004.

Begg did not claim POW status. Nevertheless, he submitted a list of witnesses, that included the International Committee of the Red Cross employee who had issued him his official Prisoner of War identity card. The President of the Tribunal, after consulting the legal advisers to the Tribunals, decided not to call the ICRC employee. She stated that even if this witness could prove that Begg had been classified as a POW this would be irrelevant. She stated that the role of the Tribunals was solely to determine whether a detainee was an "enemy combatant".

The detainee proffered that this witness was an ICRC employee who would testify that the detainee had previously been issued a POW identity card at a U.S. detention facility in Kandahar, Afghanistan. The Tribunal President initially determined that the witness was relevant, but after consultation with the Assistant Legal Advisor, she changed her determination. She based her decision on her conclusion that the Combatant Status Review Tribunals do not have the discretion to determine that a detainee should be classified as a prisoner of war -- only whether the detainee satisfies the definition of "enemy combatant" as provided in references (a) and (b). In my opinion, this decision was correct. It bears noting that in a written statement prepared by the detainee especially for the CSRT, the detainee specifically says that he does not claim POW status (see exhibit D-e).^[9]

Conduct of the tribunals

8500 Americans service members, mostly on unaccompanied tours, live at Guantanamo Bay. The US Naval Base at Guantanamo Bay ^[10] has been described as being like a small U.S. city^[11] It has a number of structures where the tribunal could have convened.

In the event all the tribunals convened in a cramped trailer -- so small there was only room for three observers. During the tribunals the people normally in attendance were the three officers presiding over the tribunal, a clerk to keep a record, an officer delegated to be familiar with the detainees case, possibly the detainee and their translator, and possibly the three observers.

The tribunals themselves are modeled after the procedures the military uses to make GCW Article 5 determinations--the AR 190-8 Tribunals.^[12] This is most likely because, in Hamdi v. Rumsfeld, a plurality of the Supreme Court suggested the Department of Defense empanel tribunals similar to the AR 190 to make factual status determinations. The mandate of the CSRTs and the AR 190-8 Tribunals differed in that AR 190-8 Tribunals were authorized to determine that captives were civilians, who should be released, and "lawful combatants", who the Geneva Conventions protect from prosecution..^[13]

According to Secretary of the Navy Gordon England,

As you will recall, in last June's Supreme Court decision in "Hamdi," Justice O'Connor explicitly suggested that a process based on existing military regulations - and she specifically cited Army regulation 190-8 - might be sufficient to meet due process standards. You'll also perhaps know that that Army regulation is what the U.S. uses to implement Article 5 of the Geneva Convention that deals with prisoners of war. So our CSRT process incorporates that guidance from Article 5, Army regulation 190-8.... ^[14]

The role of the presiding officers

The DoD kept the identity of the presiding officers confidential. The instructions the presiding officers used to guide their decisions was also kept confidential. But it could be guessed at by examining some of their decisions.

Documents from several dozen of the Tribunals have been released through FOIA requests. In several of these Tribunals the Tribunal's President explained to the detainee that the presiding officers were seeing their documents for the first time. In several other Tribunals it is obvious that the president officers were already well aware of both the unclassified and classified documents prior to the Tribunal session.

The presiding officers were drawn from all the services. They were all Colonels or Lieutenant Colonel, or equivalent.

The role of the tribunal recorder

The Tribunal's recorder was tasked not only in making sure a record was kept of the proceedings, but also with familiarizing him or herself with the contents of the documents that formed the basis of the conclusion that the Tribunal was asked review, and preparing them for the Tribunal. Transcripts show the recorder asking questions of the detainee, similar to those a prosecutor might ask in a real trial.

There was one tribunal that had to reform because the recorder did not have sufficient security clearance to present some of the classified evidence.

The role of the detainee's representative

Each detainee's case file was the responsibility of a detainee's representative. Detainees were informed that the role of the representative was not to serve as their advocate. Nothing told to him was confidential. He had no obligation to present their case in the best light. If the detainee was not present during their tribunal, the representative would present their case without their co-operation.

The role of the detainee during the tribunal

Detainees who did attend their tribunals were generally given an opportunity to explain why they should not be considered an enemy combatant. Since they were all being held without charge (unlike prisoners in the U.S. criminal justice system) and the evidence against them was classified, presenting a defense would be difficult.

Detainees were not allowed to attend their own tribunals, unless they signed a long, complicated agreement wherein they agreed to waive rights. Half or more of the detainees declined to sign the agreement, without independent legal advice. American military spokesmen described this as the detainee deciding they did not want to participate in their review.

The presence of the observers in the tribunal

The DoD experienced ongoing confusion about the presence of observers. It now seems that portions of all the tribunals were supposed to be held in public -- public in the sense that representatives from a short list of reporters would be advised of the date of tribunals, and invited to attend. All of the first several dozen tribunals went unobserved apparently because the DoD had not figured out who was responsible for advising the reporters on the approved list, and issuing them an invitation. Overlooking the issuing of invitations remained an ongoing problem. The list of approved reporters was short. The procedure for getting to the tribunal's trailer was difficult, and many of the tribunals went unobserved.

How the rules of evidence differ from those in the criminal justice system

The United States has two parallel criminal justice systems with rules of evidence based on the rights in the Bill of Rights, especially the Fifth, Sixth, and Seventh Amendments: those for civilians and those in the military. Both systems grant suspects similar rights, albeit the military one in a streamlined fashion. In the criminal justice system:

• Suspects are entitled to the presumption of innocence.
• Suspects are entitled to have legal advice.
• Suspects are entitled to know the evidence the prosecutor has against them, and in their favor.
• Suspects are entitled to call witnesses in their favor, and cross-examine the witnesses against them.
• Suspects are protected from being forced to incriminate themselves.
• Evidence acquired through torture cannot be used.

The tribunals differed from proceedings under a criminal justice system in that:

• Detainees do not receive the presumption of innocence.
• Detainees do not get access to legal advice.
• Detainees are not entitled to access to the evidence against them, or in their favor.
• Hear-say evidence is allowed to be used against the detainees.
• The use of evidence acquired through coercive interrogation is allowed, there is no protection against self-incrimination.
• Evidence acquired through the torture of other suspects was allowed.

There are now regulatory and statutory provisions proscribing the protections listed above. Prior to the passing of the MCA there were no guidelines for the constitution of military commissions. This does not dispel the inherent illegitimacy of the commission system, because unlike the other civilian and military interactions of criminal justice discussed above, commissions are solely under the discretion of the executive branch and therefore any codified procedures can be overlooked pursuant to national defense arguments. Ultimately, military commissions model their structure after the Uniform Code of Military Justice which is used by courts-martial, but because they are not themselves courts-martials, the presiding authority (The President and Department of Defense) have the ability to subvert any such proscribed procedures as they see fit. So, ostensibly the Manual for Military Commission does a good faith effort to ameliorate many of the lack of protections afforded to the accused which were replete in the initial Commission Order by President Bush, yet the mere fact that the commissions are commissions lends more flexibility to executive abuse. Thus the commission system was chosen and constructed for the primary purpose of prosecution and detention, rather than the issuance of "true" justice. Statutorily, the commissions offer a presumption of innocence, but a de facto result of using commissions instead of the more vetted criminal justice avenues yields a denial of that presumption in favor of National Security and DOD interests.

The rules of evidence for the CSRT are, however, identical to the rules of evidence used in an AR 190 Article V determination. Namely, all evidence is weighed on a probative vs. reliability standard.

Murat Kurnaz, an example

Murat Kurnaz was a young Turk who was born in, and had grown up, in Germany. When captured he was close to being granted German citizenship. He was taken off a tourist bus and arrested while on a trip to Pakistan -- not "on the battlefield".

The tribunal's determination was that there was enough evidence of Kurnaz had ties to terrorism that he should be held as an enemy combatant.

Through a bureaucratic slip-up Kurnaz's file was declassifed. During the brief window when it was declassified the Washington Post was able to review all the evidence against him and publish a summary.^[15] Joyce Hens Green, a Washington jurist, had been able to review both the classified and unclassified evidence. Green found that Kurnaz's file contained something like 100 pages of documents and reports explaining that German and American investigators could find no evidence whatsoever that Kurnaz had any ties to terrorism. Shortly before his tribunal an unsigned memo had been added to his file concluded he was an al Qaeda member. Green's comment on the memo was that it:

"fails to provide significant details to support its conclusory allegations, does not reveal the sources for its information and is contradicted by other evidence in the record."

Eugene R. Fidell, a Washington-based expert in military law, said:

"It suggests the procedure is a sham, If a case like that can get through, what it means is that the merest scintilla of evidence against someone would carry the day for the government, even if there's a mountain of evidence on the other side."

Critics

It has been suggested these CSRT's are inherently flawed. The principal arguments of why they are inadequate to warrant acceptance as "competent tribunal," are: ^{[16] [17]}

a The CSRT conducted rudimentary proceedings

b The CSRT afforded detainees few basic protections

c Many detainees lacked counsel

d The CSRT also informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified.

e Detainees had no right to present witnesses or to cross-examine government witnesses.

Most notably the flawed nature of the procedure can be seen in the following cases: Mustafa Ait Idir, Moazzam Begg, Murat Kurnaz, Feroz Abbasi, and Martin Mubanga. ^[15] A comment on the matter by legal experts states:

It appears from the previous paragraph that the procedures of the Combatant Status Review Tribunals do not qualify as status determination under the Third Geneva Convention. This has had severe consequences in practice; it has led to a virtual standstill of the 'military commission machinery' that had been set up to try enemy combatants for war crimes and other offences.

The fact that no status determination had taken place according to the Third Geneva Convention was sufficient reason for a judge from the District Court of Columbia dealing with a habeas petition, to stay proceedings before a military commission. Judge Robertson in Hamdan v. Rumsfeld held that the Third Geneva Convention, which he considered self-executing, had not been complied with since a Combatant Status Review Tribunal could not be considered a 'competent tribunal' pursuant to article 5 of the Third Geneva Convention.^[19]

The Supreme Court expressly reserved this question (see footnote 61), instead deciding Hamdan v. Rumsfeld on other grounds.

James Crisfield, the legal advisor to the Tribunals, offered his legal opinion, that CSRT "do not have the discretion to determine that a detainee should be classified as a prisoner of war -- only whether the detainee satisfies the definition of "enemy combatant""^[20] Determining whether a captive should be classified as a prisoner of war is the purpose of a "competent tribunal."

Analysis of these Tribunals by two lawyers for Guananamo detainees, Professor Mark P. Denbeaux of the Seton Hall University School of Law, his son Joshua Denbeaux, and some of his law students resulted in a report called No-hearing hearings. In essence it supports the criticism voiced above, and concludes that these hearings are severely biased against the defendants.^[21][22]

Results

The tribunal determined that thirty eight of the detainees were not properly classified as "enemy combatants." In litigation, the government has referred to these individuals as "no longer enemy combatants" or "NLECs." The term "no longer enemy combatants" is appears to suggest that the individuals once were, but no longer are, "enemy combatants." Because the DoD's definition of "enemy combatant" focuses on past conduct, Judge James Robertson of the United States District Court for the District of Columbia rejected this term as "Kafkaesque" and stated that it "deliberately begs the question of whether these petitioners ever were enemy combatants."

All but nine non-enemy combatants were repatriated by the summer of 2005. Despite their exoneration, the government continued to imprison the nine men who could not be repatriated. Beginning in August 2005, these men were segregated from the general prison population in a part of Guantanamo Bay called Camp Iguana.

Annual reviews

In the summer of 2004 Secretary of Defense Donald Rumsfeld announced that the detainees would be given an annual review, similar to these status reviews, but with a slightly different mandate. While the reviews of late 2004 and early 2005 were to determine whether the detainees were illegal combatants, the annual reviews would determine if the detainee still represented a threat. These Administrative Review Boards were intended to mitigate the harshness of a potentially indefinite detention for detainees labeled unlawful enemy combatants.

Trial by Military Commission

In early 2004 four of the detainees were charged. Most of the differences between the tribunals, described above, and the proceeding of a trial under the civil justice system would have applied to these military commissions. The Commissions were to be presided over by five officers. Their identities too were to be have been kept confidential. The detainees were allowed legal counsel, but not legal counsel of their own choosing. However, their lawyers were allowed to mount challenges to the presiding officers, their qualifications, and the rules under which the commission would function.

Only one of the presiding officers had any legal experience. A more senior officer had overall oversight of the commissions; the rules allowed him to shut down a commission at any time without giving a reason.

Because of the lack of the legal challenges, the unfavorable scrutiny, and the poor prior planning, the military commissions were suspended by a federal judge. In July 2005, a court of appeals reinstated the tribunals. ^[23]

Secretary Rumsfeld has said that even if the commission acquitted a detainee, being determined to have been innocent would still not mean the Department of Defense would release him. They could still keep him, for the rest of his life, without giving a reason. This follows from the Administration's position that the enemy combatants were to be treated under law of war norms; namely, that they may be lawfully detained until the cessation of hostilities. According the Secretary of the Navy Gordon England, The basis of detaining captured enemy combatants is not to punish but, rather, to prevent them from continuing to fight against the United States and its coalition partners in the ongoing global war on terrorism. Detention of captured enemy combatants is both allowed and accepted under international law of armed conflict. ^[24]

2007 Combatant Status Review Tribunals for 14 "high-value detainees"

In a surprise move President George W. Bush announced the transfer of 14 "high-value detainees" from clandestine CIA custody to military custody in Guantanamo in the fall of 2006.^[25] Prior to the transfer legal critics had repeatedly stated that the men in covert CIA custody could never be tried because they had been subjected to abusive interrogation techniques, which would invalidate any evidence that flowed from their interrogations. Nevertheless Bush said the transfer would allow the men, most of whom were considered to be members of the inner circle of al Qaeda's senior leadership, to be tried before military commissions.

Like all the remaining men in Guantanamo Rasul v. Bush requires the Department of Defense to convene Tribunals to confirm their status prior to the laying of charges, before a military commission, or a court of law.

The New York Times reported on December 17 2006 that military authorities were having the Tribunals rehearse.^[25]

Appeal through the US Judicial Branch

Originally the Bush]] Presidency asserted that the captives had no right to appeal.^[26]Captives who had "next friends" willing to initiate the habeas corpus process filed appeals before the United States Judicial Branch. Rasul v. Bush was the first appeal to make its way to the Supreme Court of the United States. The creation of the Combatant Status Review Tribunals was a side effect of Rasul v. Bush.

Through the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 the United States Congress moved to first limit, and then completely curtail the captive's ability to file habeas corpus appeals.^[26]

Captives who had outstanding habeas corpus appeals are expected to have the Supreme Court make a ruling in Boumedienne v. Bush over whether Congress had the authority strip them of the right to file habeas corpus appeals through the Military Commissions Act.

The Military Commission Act does provide a process where captives can appeal the Combatant Status Review Tribunal had properly followed OARDEC's own rules when it confirmed their enemy combatant status.^[26] If and when captives are able to file these appeals they would be heard before the U.S. Court of Appeals for the D.C. Circuit.

Emma Schwartz, in the US News and World Report, on August 30, 2007, reported that her sources told her: ''"...Up to one fourth of the department's own civil appellate staff has recently opted out of handling the government's cases against detainee appeals."^[26]

See also

• Administrative Review Board
• Guantanamo military commissions
• Camp Delta
• Camp Echo
• Camp Iguana
• Camp X-ray
• Fourth Geneva Convention
• Ex parte Quirin
• Extraordinary rendition
• Charles Swift
• Irregulars
• No longer enemy combatant
• Third Geneva Convention
• unlawful combatant
• War on terror

•  • [ e] War on Terrorism

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Notes

External links

• Q&A: Guantanamo Hearings, BBC, August 6 2004
• US Admits Translation Errors At Guantanamo Tribunals, Australian Broadcasting Corporation, August 27 2004
• Top 10 Signs You Might Not Get a Fair Trial at Gitmo, NPR, September 14 2004
• US court questions detainee handling, Australian Financial Review, September 9 2005
• Guantánamo - an icon of lawlessness, Amnesty International
• Fabricated Justice: Guantanamo Four Years Later, Human Rights Watch, January 24 2006
• List of detainees who went through complete CSRT process, April 19, 2006
• Benjamin Davis. "Keep Our Honor Clean", Toledo Free Press, July 13 2007.2007">