Combatant Status Review Tribunal
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The United States Department of Defense held Combatant Status Review Tribunals from July 8, 2004 through March 29, 2005, to determine whether the detainees they had been holding at Guantanamo Bay were lawful 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.
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 the administration was sure that the prisoners did not qualify for POW status, there was no need for a review.
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 were 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.
Moazzam Begg's POW status
Moazzam Begg's Tribunal was held on November 13, 2004. Begg had 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).
Conduct of the tribunals
Tens of thousands of Americans service members and their families live at Guantanamo Bay. Guantanamo Bay has been described as being like a small U.S. city. 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 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 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 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 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, there is no protection 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.[1] 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."
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.
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 Commisions 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. [2]
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.
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
