Combatant Status Review Tribunal

Combatant Status Review Tribunals were held in a small trailer. The captive sat in the white garden chair, with their hands and feet shackled to a bolt in the floor. 37 of the 572 Tribunals were observed by a member of the Press.

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 Bay were enemy combatants.

Background

The Geneva Conventions obliges belligerents to honor certain rights of civilians and prisoners of war. The Geneva Conventions 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 beliigerent 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. Since they didn't doubt that their prisoners didn't qualify for POW status, there wasn't any need for a review.

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 Bya 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 cramped trailer -- so small there was only room for three observers. Present, in the trailer, there would be 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 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.

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. American military spokesmen described this as the detainee deciding they didn't 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 differed from those in the Criminal Justice System

The United States has two, parallel criminal justice systems, those for civilians, and a parallel system for those in the military, granting suspects similar rights, 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, they were not protected against self-incrimination..
• Evidence acquired through the torture of other suspects was allowed.

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 a unlawful 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. Joyce Hens Green, a Washington jurist, bad been able to review both the classified and unclassified evidence. What Green had found was that Kurnaz's file contained something like 100 pages of documents and reports explaining that German and American investiigator 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."

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

The Department of Defense has been forced, through court orders 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.

In early September 2007 the DoD released Summary of Evidence memos prepared for all 572 of the Tribunals and the unclassified dossiers arising from the Tribunals of 179 captives who have had habeas corpus petitions submitted on their behalf.

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.

Captives who had outstanding habeas corpus appeals are expected to have the Supreme Court make a ruling in the consolidated cases Al Odah v. United States and Boumediene v. Bush over whether Congress had the authority strip them of the right to file habeas corpus appeals through the Military Commissions Act. The Supreme Court will hear the cases on December 5, 2007.

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."