Combatant Status Review Tribunal

The Combatant Status Review Tribunals were held by the United States Department of Defense between July 8, 2004 through March 29, 2005, for the purpose of confirming whether the detainees they had been holding in Guantanamo Bay detainment camps in Cuba had been correctly classified as enemy combatants.

Following the Hamdi v. Rumsfeld ruling (November 2004) the Bush administration has begun using Combatant Status Review Tribunals to determine the status of detainees. By doing so the obligation under Third Geneva Convention#Article 5 was to be addressed.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

These hearings are a direct result of the determination by the Bush administration that detainees in the war in Afghanistan are not eligible for prisoner of war status according to the terms of Third Geneva Convention#Article 2.

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. BREAKING NEWS ~ Judge stops Guantanamo proceedings as unlawful, The Jurist, November 8 2004 DOJ to appeal ruling on Gitmo military commissions The Jurist, November 9 2004 James Robertson, Hamdan v. Rumsfeld (.pdf), US District Court DC, November 8 2004 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, Third Geneva Convention#Article 5 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).Summary of Evidence for Combatant Status Review Tribunal - Detainee Begg, Moazzam

Conduct of the tribunals

8500 Americans service members, mostly on unaccompanied tours, live at Guantanamo Bay. The US Naval Base at Guantanamo Bay http://www.nsgtmo.navy.mil/htmpgs/welcomabd.htm has been described as being like a small U.S. cityWarren Richey Detainees' future may hinge on Cuba lease Christian Science Monitor March 20, 2002 edition 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 and nearly identical to the procedures the military uses to make GCW Article 5 determinations--the AR 190.^* Elsea, Jennifer K., Report for Congress, Congressional Research Service 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. To quote 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.... http://usinfo.state.gov/dhr/Archive/2005/Apr/01-23233.html U.S. Department of Defense News Briefing, Secretary of The Navy Gordon England, Tuesday, March 29, 2005 - 3:33 p.m. EST

The notable difference between the AR 190 and CSRT being, of course, that CSRT's may not make the determination that the a detainee qualifies as a prisoner of war.

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 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 has explained to the detainee 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, if they wished, to explain why they should not be considered an enemy combatant. However if they were given this opportunity they would have to guess why they were being held in the first place. Unlike prisoners in the criminal justice system, they were all being held without charge. The evidence against them was classified.

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 role 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.

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. Carol D. Leonnig Panel Ignored Evidence on Detainee in the Washington Post March 27, 2005; Page A01 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 Queda 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: Carl Tobias ''Congress Should Act Fast a commentary in the National Law Journal August 15, 2005 edition Dan Smith A Question of Fair "Justice" for prisoners held at Guantanamo New York University July 26, 2004

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. Carol D. LeonnigPanel Ignored Evidence on Detainee Washington Post March 27, 2005; Page A01

Carol D. Leonnig Judge Rules Detainee Tribunals Illegal Washington Post February 1, 2005; Page A01

Ian Herbert and Ben Russell 'The Americans are Breaking International Law... It is a Society Heading Towards Animal Farm' - Archbishop Sentamu on Guantanamo The Independent February 18, 2006 original

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 lead 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.Terry Gill and Elies van Sliedregt Guantánamo Bay: A Reflection On The Legal Status And Rights Of 'Unlawful Enemy Combatants' (pdf) (html) in The Utrecht Law Review

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

Results

The tribunal determined that thirty eight of the detainees had never been combatants, and never should have been held. Four of those thirty eight detainees have been released.

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 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 a fair 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. http://www.goupstate.com/apps/pbcs.dll/article?AID=/20050716/ZNYT02/507160358/1051/NEWS01 This refence was not available on 4 March 2006

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,

^*he 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. http://usinfo.state.gov/dhr/Archive/2005/Apr/01-23233.html U.S. Department of Defense News Briefing, Secretary of The Navy Gordon England, Tuesday, March 29, 2005 - 3:33 p.m. EST

Notes

External links

Anti-terrorism policy of the United States

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