Difference between revisions of "Combatant Status Review Tribunal"

Latest revision as of 23:28, 29 July 2012

Combatant Status Review Tribunals (WP) were held in a trailer the size of a large Recreational Vehicle. The captive sat on a plastic garden chair, with his hands and feet shackled to a bolt in the floor.^[1][2] Three chairs were reserved for members of the press, but only 37 of the 574 Tribunals were observed.^[3]

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Initially the Bush (WP) Presidency asserted that they could withhold all the protections of the Geneva Conventions (WP) to captives from the war on terror, and put the captives in a legal limbo by also refusing to try them under the protections of rights in criminal law. This policy was challenged before the Judicial branch, and here is where it gets weird. Most of the captives at Gitmo quite clearly fell into the category of civilians or milita, and those arguing the legal case for them should have gone back to the start and argued that they were falsely arrested. But it turns out that the Geneva Conventions had the foresight to make provisions for irregular military (Category) (WP) that did not fall into the proper Gitmo prisoner classifications of civilians and irregular military, or the second best option of regular military: "competent tribunals" to determine their status. The third best argument was used; the USA could not evade its obligation to conduct 'competent tribunals' to determine whether captives are, or are not, entitled to the protections of prisoner of war (WP) status.

This is not merely letting the fox run the henhouse; it is letting a monster like Grendel run the henhouse...again. The villains who flouted the Geneva Conventions on one hand and due process on the other, to claim that people were guilty and should be punished, without proving them guilty, should not be given the right to do what is so close to the same thing that it makes no difference.

Subsequently the Department of Defense instituted the Wikipedia:Combatant Status Review Tribunals. The DoD was not content to merely go back to doing the same old thing as regards the detainees, after its slap on the wrist; yet again, it protected itself with the smokescreen of spin. The Geneva Conventions were made to disappear again by not authorizing the Tribunals, however to determine whether the captives were lawful combatants -- rather they were merely empowered to make a recommendation as to whether the captive had previously been correctly determined to match the Bush Presidency's definition of an enemy combatant. This is a three-pronged attack

1. It attempts to institutionalize the definition by which the Conventions and the law were broken, resting on a proven falsehood
2. It attempts to establish the assumption that the DoD does not have to follow the Conventions. This is its weakest point; that assumption can be easily challenged
3. After these challenges, then the last attack has no basis at all. It attempts to obfuscate the criminals and the scene of the crime by pretending that they have left it; the renewed proceedings do not have to justify themselves with respect to the law or the Conventions because they are neither

The current trial method conveniently ignores the issue of legality of arrest and holding without trial by tagging the released prisoners "No longer enemy combatants" (WP).

Legal shenanigans aside, even the DoD has decided that 600 or so prisoners are innocent, after holding them for years. They range from teenage farmers to people who associated with the Taliban in their daily lives. The ethical implications of holding innocents, torture and war all in the pursuit of greed are staggering. Putting these aside for a moment, there are practical issues to consider as well. There is no end to the war in Afghanistan and Iraq as it is an occupation; even Rome was unable to hold territories, and modern ballistic weapons and explosive devices make rebellion even easier than in ancient times. Holding rebels as prisoner for a long period makes it more likely they will fight to the death, or make rebels out of mere citizens. To say that is OK is not only unethical, but ignores how much more dangerous such a person is. Regardless of whether one cares about their rights, it shows the extent to which the US has gone, to put their troops and thus their military strategy at a disadvantage, simply to hold the prisoners.

Some prisoners were fighters for their country with the Taliban, or functionaries in the Taliban's administration of Afghanistan, but all share the criteria for holding and not releasing the hostages: commitment; the one thing that a faithful Muslim, loyal partisan, or activist against US hegemony cannot deny. And commitment to the cause of holding back the US wars for oil is a crime whose perpetrators are too numerous for even the US to imprison.

Further reading[edit]

• Inside the Guantánamo Bay hearings: Barbarian "Justice" dispensed by KGB-style "military tribunals", Financial Times
• Guantánamo Prisoners Getting Their Day, but Hardly in Court, New York Times
• Wikipedia:Wikisource:Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, Military Order of November 13, 2001 by George W. Bush (WP)
• Wikipedia:Wikisource:Declaration of Stephen Abraham, Lieutenant Colonel, United States Army Reserve, June 14th, 2007
• Wikipedia:Wikisource:Guantanamo Detainees (02/13/2004)

The Combatant Status Review Tribunals have been held by the Wikipedia:United States Wikipedia:Department of Defense since Wikipedia:July 8, Wikipedia:2004 for the purpose of determining whether the Wikipedia:detainees the United States has been holding in Wikipedia: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 were available on the DoD website.

Following the Wikipedia: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 Wikipedia:competent tribunals would be adequate to meet the minimum requirements of Wikipedia: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 Wikipedia:prisoner of war status according to the terms of Article 2 of the Third Geneva Convention and as such were Wikipedia:unlawful enemy combatants.

Background[edit]

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The Wikipedia:Geneva Conventions oblige belligerents to honor certain rights of Wikipedia:civilians and Wikipedia: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 Wikipedia: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, Wikipedia:Amnesty International and Wikipedia: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 Wikipedia: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.

The Combatant Status Review Tribunals (CSRT) were a set of Wikipedia:tribunals for confirming whether Wikipedia:detainees held by the Wikipedia:United States at the Wikipedia:Guantanamo Bay detention camp had been correctly designated as "Wikipedia:enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense Wikipedia:Paul Wolfowitz^[9] after U.S. Supreme Court rulings in Wikipedia:Hamdi v. Rumsfeld^[5] and Wikipedia:Rasul v. Bush Combatant Status Review Tribunal (fact sheet of October 17, 2006)Wikisource link and were coordinated through the Wikipedia:Office for the Administrative Review of the Detention of Enemy Combatants.

These non-public hearings were conducted as "a formal review of all the information related to a detainee to determine whether each person meets the criteria to be designated as an enemy combatant."^[10] The first CSRT hearings began in July 2004. Redacted transcripts of hearings for "high value detainees" were posted to the Department of Defense (DoD) website.^[11] As of October 30, 2007, fourteen CSRT transcripts were available on the DoD website.

Existing U.S. and the Combat Status Review Tribunals[edit]

The CSRTs are not bound by the rules of evidence that would apply in court, and the government’s evidence is presumed to be “genuine and accurate.” The government is required to present all of its relevant evidence, including evidence that tends to negate the detainee’s designation, to the tribunal. Unclassified summaries of relevant evidence may be provided to the detainee. The detainee’s personal representative may view classified information and comment on it to the tribunal to aid in its determination but does not act as an advocate for the detainee. If the tribunal determines that the preponderance of the evidence is insufficient to support a continued designation as “Wikipedia:enemy combatant” and its recommendation is approved through the chain of command established for that purpose, the detainee will be informed of that decision upon finalization of transportation arrangements (or earlier, if the task force commander deems it appropriate). The rules do not give a timetable for informing detainees in the event that the tribunal has decided to retain their enemy combatant designations.^[12]

Secretary of the Navy Gordon England stated^[13]:

"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 Wikipedia: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 Wikipedia:Third Geneva Convention Article 5 of the Geneva Convention - Wikisource that deals with prisoners of war. So [if] our CSRT process incorporates that guidance from Article 5, Army regulation 190-8..."

Thus, the tribunals themselves are modeled after the procedures—AR 190-8 Tribunals—the military uses to make determinations in compliance with the Article 5 of the Wikipedia:Third Geneva Convention (that states "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.")^[14] This is most likely because, in Wikipedia: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 "Wikipedia:lawful combatants", who the Geneva Conventions protect from prosecution..^[15]

Conduct of Combatant Status Review Tribunals[edit]

thumb|CSRT notice being read to a Guantanamo captive The exact location of the current CSRT hearings is unknown, but prior CSRT hearings were held in trailers in Guantanamo Bay, Cuba. Images of the trailers, with the white, plastic chairs the detainees sat in shackled to the floor and the large, black leather chair behind a microphone where the President sat can be found on the DoD website.^[16]

A dramatization of the conduct of CSRTs, based on CSRT transcripts, is presented in the film The Response.^[17]

Presiding officers[edit]

The identity of the presiding officers at CSRTs hearings is classified. In the CSRT transcripts released on the DoD website, that information has been removed from the transcripts. The ranks of those present, however, and their service branch remain in the documents. For example, at Wikipedia:Guleed Hassan Ahmed's CSRT in April 2007, the CSRT President was a Lieutenant Colonel from the U.S. Air Force. Other services present include the U.S. Marine Corps and the U.S. Army; the only other rank mentioned in the transcript was Gunnery Sergeant.^[18] In other CSRTs, the ranks, services, and persons present varied. At certain CSRTs, a non-military language analyst was present.

Role of the CSRT Recorder[edit]

The CSRT Recorder had several tasks. First, he or she was charged with keeping a record of the CSRT process by recording the CSRT process. Second, the Recorder swore in all the CSRT participants by administering an oath. Third, the Recorder was also charged with presenting classified and unclassified material during the CSRTs. Fourth, the Recorder was often asked to explain or clarrify facts or information during the CSRT. In Guleed Hassan Ahmed's CSRT transcript one finds the following exchange:

PRESIDENT:[The]Tribunal has completed its review of the unclassified evidence provided. We do have one question for the Recorder. Is Somalia, Ethiopia, and/or Kenya a coalition partner?
RECORDER: Somalia is not; Ethiopia is; and Kenya is, a coalition partner of the United States.^[18]

Role of the Detainee at CSRTs[edit]

Detainees had the option of attending their CSRTs, but attendance was not mandated. Some detainees protested the CSRTs by not attending, opting instead to send personal, written statements to be read before the CSRT in their absence. The reading of a detainee's written statement was the task of The Personal Representative, and this occurred, in one case, with Guleed Hassan Ahmed who did not attend his CSRT and instead sent a statement.^[18]

When detainees did attend, if required, a translator was typically present to assist the detainee and tribunal members.^[19][20] They are given a copy of the unclassified summary of information, and aided by a "Personal Representative".^[19]

Presence of Observers at CSRTs[edit]

The question of the presence of outside, neutral observers at the CSRTs is debated.

Murat Kurnaz, an example[edit]

Wikipedia: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 detained while on a trip to Pakistan. 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.^[21] Wikipedia:Joyce Hens Green, a District of Columbia federal court judge, 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 concluding 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."

Wikipedia: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[edit]

It has been suggested these CSR Tribunals are inherently flawed. The principal arguments of why they are inadequate to warrant acceptance as "competent tribunal," are: ^[22][23]

• The CSRT conducted rudimentary proceedings
• The CSRT afforded detainees few basic protections
• Many detainees lacked counsel
• 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.
• Detainees had no right to present witnesses or to cross-examine government witnesses.

Some specific cases that call attention to what critics assert is a flawed nature of the CSRT procedure: Wikipedia:Mustafa Ait Idir, Wikipedia:Moazzam Begg, Wikipedia:Murat Kurnaz, Wikipedia:Feroz Abbasi, and Wikipedia:Martin Mubanga. ^[21] A comment on the matter by legal experts states:

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.^[24]

Wikipedia: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""^[25] Determining whether a captive should be classified as a prisoner of war is the purpose of a "competent tribunal."

On June 29, 2006, the Wikipedia:Supreme Court of the United States ruled that the Wikipedia:Geneva Conventions should be applied, but only Article 3, which does not require a competent tribunal.^[26]

Results[edit]

The CSRTs are presently on-going, but specific hearings have resulted in a variety of outcomes. Many detainees are still being detained, others have been released to return to their homeland, and still others have been classified and cleared for release but remain at Guantanamo Bay and in U.S. custody because their home countries cannot assure their safety.^[27]

According the to prior 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. ^[13]

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

In a surprise move President Wikipedia:George W. Bush announced the transfer of 14 "high-value detainees" from clandestine Wikipedia:CIA custody to military custody in Guantanamo in the fall of 2006.^[28] 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 at Guantanamo Bay using the CSRT procedures.

U.S. Judicial Branch Appeals[edit]

Originally the Bush Presidency asserted that the captives had no right to appeal.^[29] Captives who had "Wikipedia:next friends" willing to initiate the Wikipedia:habeas corpus process filed appeals before the Wikipedia:United States Judicial Branch. Wikipedia:Rasul v. Bush was the first appeal to make its way to the Wikipedia:Supreme Court of the United States. The creation of the Combatant Status Review Tribunals was a side effect of Rasul v. Bush.

Through the Wikipedia:Detainee Treatment Act of 2005 and the Wikipedia:Military Commissions Act of 2006 the Wikipedia:United States Congress moved to first limit, and then completely curtail the captive's ability to file habeas corpus appeals.^[29]

The Supreme Court ruled on the outstanding habeas corpus appeals in Wikipedia:Al Odah v. United States andWikipedia:Boumediene v. Bush, discussed below.

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.^[29] If and when captives are able to file these appeals they would be heard before the Wikipedia:U.S. Court of Appeals for the D.C. Circuit.

Wikipedia:Emma Schwartz, in the Wikipedia: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."^[29]

Several amalgamated cases have been initiated in the DC Circuit Court.^[30] There is controversy over whether the Appeal Court will have access to all the evidence against the captives. As of May 2008 none of the cases has actually come to the point where the judges would consider the merits of the case.

Supreme Court ruling[edit]

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

The Court also ruled that the Combatant Status Review Tribunals were "inadequate".^[31] Wikipedia:Ruth Bader Ginsburg, Wikipedia:Stephen Breyer, Wikipedia:David Souter and Wikipedia:John Paul Stevens joined Kennedy in the majority.

"...the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

Wikipedia:Samuel Alito, Wikipedia:Clarence Thomas and Wikipedia:Antonin Scalia joined Roberts in the dissent.^[32]

Wikipedia:Vincent Warren, the executive director of the Wikipedia:Center for Constitutional Rights, the organization that initiated the action that triggered the Supreme Court ruling responded^[34]:

"The Supreme Court has finally brought an end to one of our nation's most egregious injustices. It has finally given the men held at Guantánamo the justice that they have long deserved. By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation's founding. This six-year-long nightmare is a lesson in how fragile our constitutional protections truly are in the hands of an overzealous executive."

See also[edit]

• Wikipedia:Administrative Review Board
• Wikipedia:Ex parte Quirin
• Wikipedia:Extraordinary rendition by the United States
• Wikipedia:Fourth Geneva Convention
• Wikipedia:Guantanamo military commissions
• Wikipedia:Irregular military
• Wikipedia:Mohammed el Gharani
• Wikipedia:No longer enemy combatant
• Wikipedia:Charles Swift
• Wikipedia:Third Geneva Convention
• Wikipedia:Unlawful combatant
• Wikipedia:War on terror

External links[edit]

• Q&A: Guantanamo Hearings, Wikipedia:BBC, August 6, 2004
• US Admits Translation Errors At Guantanamo Tribunals, Wikipedia:Australian Broadcasting Corporation, August 27, 2004
• Top 10 Signs You Might Not Get a Fair Trial at Gitmo, Wikipedia:NPR, September 14, 2004
• US court questions detainee handling, Wikipedia:Australian Financial Review, September 9, 2005
• Guantánamo - an icon of lawlessness, Wikipedia:Amnesty International
• Fabricated Justice: Guantanamo Four Years Later, Wikipedia:Human Rights Watch, January 24, 2006
• List of detainees who went through complete CSRT process, April 19, 2006
• Wikipedia:Benjamin Davis (July 13, 2007). "Keep Our Honor Clean". Wikipedia:Toledo Free Press. http://www.toledofreepress.com/?id=5937.
• "REP. IKE SKELTON HOLDS A HEARING ON HABEAS CORPUS FOR DETAINEES.". Wikipedia:United States Congress. 30 July 2007. http://www.accessmylibrary.com/coms2/summary_0286-32500555_ITM. Retrieved 2008-04-25.
• The Response, official website.
• Human Rights First; Undue Process: An Examination of Detention and Trials of Bagram Detainees in Afghanistan in April 2009 (2009)
• Human Rights First; Arbitrary Justice: Trial of Guantánamo and Bagram Detainees in Afghanistan (2008)

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Citations[edit]