Combatant Status Review Tribunal

The United States Department of Defense held Combatant Status Review Tribunals from August 2004 through January 2005, to confirm whether the detainees they had been holding at Guantanamo detention camp were enemy combatants.

Background

The Fourth Geneva Convention require combatants to fulfill certain requirements in order enjoy the rights of POW status. But it requires belligerents to continue 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.

The 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.

Various legal challenges were mounted on behalf of the detainees. Most of those legal challenges ruled against the Executive Branch, and when the Executive Branch's opportunities to appeal were exhausted they were finally forced to convene 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.

The manner in which the tribunals were conducted

Tens of thousands Americans service members, and their families, live at Guantanamo Bay. Guantanamo Bay has been described as being like a small US city. It has lots of structures where the tribunal could convene.

In the event all the tribunals convened in a small temporary facility, which had room for 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 the three observers. The captive was shackled . 37 of the 572 Tribunals were observed by a member of the Press.

File:Room in which CSR Tribunals were held - Guantanamo.jpg

CSRT hearing room

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.

The role of the detainee's representative

Each detainee's case file was the responsibility of a detainee's representative. Detainee's 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 unlawful 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.

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.

Results

The tribunal determined that 38 of the detainees had never been combatants, and never should have been held. Four of those 38 detainees have been released.

Documents

Courts ordered the U.S. Department of Defense to comply with Freedom of Information Act requests, to release information about the captives.

• In 2005 the DoD released 517 Summary of Evidence memos, which each summarized the allegations justifying the detention of a single captive. However, they were in obfuscated order, and had their names redacted, so readers couldn't tie individual memos to individual captives.

On March 3rd 2006 The DoD released summarized transcripts, and other documents, from the unclassified sessions of 360 captives Tribunals. These documents were also released in obfuscated order, and only identified by the captives ID number, so readers couldn't tie individual transcripts to individual captives. However, on April 20th 2006 the DoD released a list of the names, nationalities and ID numbers of the 558 captives who had their combatant status reviewed by a Tribunal.

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, early 2005 were to determine whether the detainees were illegal combatants, the annual reviews would determine if the detainee still represented a threat.

U.S. Judicial Branch Appeals

Originally the Bush Presidency asserted that the captives had no right to appeal. 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.

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. 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."