The
Combatant Status Review Tribunals (
CSRT) were a set of
tribunalTribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes - whether or not it is called a tribunal in its title....
s for determining whether detainees held by the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
at the Guantanamo Bay detention camp were still designated as "
enemy combatantEnemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...
s". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of
DefenseThe United States Department of Defense is the federal department charged with coordinating and supervising all agencies and functions of the government relating directly to national security and the military...
Paul WolfowitzPaul Dundes Wolfowitz is a former United States Ambassador to Indonesia, U.S. Deputy Secretary of Defense, President of the World Bank, and former Dean of The Paul H...
after U.S. Supreme Court rulings in
Hamdi v. RumsfeldHamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant". The Court recognized the power of the government to detain...
and
Rasul v. BushRasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
http://en.wikisource.org/wiki/Combatant_Status_Review_Tribunal_(fact_sheet_of_October_17,_2006) and were coordinated through the
Office for the Administrative Review of the Detention of Enemy CombatantsThe Office for the Administrative Review of the Detention of Enemy Combatants, established in 2004 by the Bush administration's Deputy Secretary of Defense Paul Wolfowitz, is a United States military body responsible for organising Combatant Status Review Tribunals for captives held in...
.
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." The first CSRT hearings began in July 2004.
RedactedSanitization is the process of removing sensitive information from a document or other medium, so that it may be distributed to a broader audience. When dealing with classified information, sanitization attempts to reduce the document's classification level, possibly yielding an unclassified...
transcripts of hearings for "high value detainees" were posted to the Department of Defense (DoD) website. As of October 30th, 2007, fourteen CSRT transcripts were available on the DoD website.
Existing U.S. and the Combat Status Review Tribunals
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 “
enemy combatantEnemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...
” 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.
Secretary of the Navy Gordon England stated:
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
Third Geneva ConventionThe Third Geneva Convention of 1949 , one of the Geneva Conventions, is a treaty agreement that primarily concerns the treatment of prisoners of war , and also touched on other topics...
(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.")
This is most likely because, in
Hamdi v. RumsfeldHamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant". The Court recognized the power of the government to detain...
, 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 "lawful combatants", who the Geneva Conventions protect from prosecution..
Conduct of Combatant Status Review Tribunals
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.
A dramatization of the conduct of CSRTs, based on CSRT transcripts, is presented in the film
The Response.
Presiding officers
The identity of the presiding officers at CSRTs hearings is classified. In the 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 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.
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
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.
Role of the Detainee at CSRTs
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.
When detainees did attend, if required, a translator was typically present to assist the detainee and tribunal members. They are given a copy of the unclassified summary of information, and aided by a "Personal Representative".
Presence of Observers at CSRTs
The question of the presence of outside, neutral observers at the CSRTs is debated.
Murat Kurnaz, an example
Murat KurnazMurat Kurnaz was held in extrajudicial detention and had been tortured at the U.S. military base in Kandahar, Afghanistan and in the U.S. military prison at Guantanamo Bay Naval Base, Cuba for four years...
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.
Joyce Hens GreenJudge Joyce Hens Green is a Senior United States District Court Judge for the District of Columbia.-Childhood:Green was born in 1928 in New York City. Her father was a psychiatrist and her mother was a homemaker. She had one brother...
, 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 concluded he was an al Qaeda member. Green's comment on the memo was that it:
Eugene R. FidellEugene R. Fidell is an American lawyer and notable expert in military law.He is currently a visiting Professor of Military Law at Yale University.-Education:-Current practice:...
, a Washington-based expert in military law, said:
Critics
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:
- 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.
Some specific cases that call attention to what critics assert is a flawed nature of the CSRT procedure:
Mustafa Ait IdirMustafa Ait Idr an individual held in extrajudicial detention in the United States Guantanamo Bay detainment camps, in Cuba.Idr was born in Algeria, but moved to Bosnia, married a Bosnian woman, and became a Bosnian citizen...
,
Moazzam BeggMoazzam Begg is one of nine British Muslims who were held in extrajudicial detention in the Guantanamo Bay detainment camp, in Cuba, by the government of the U.S.....
,
Murat KurnazMurat Kurnaz was held in extrajudicial detention and had been tortured at the U.S. military base in Kandahar, Afghanistan and in the U.S. military prison at Guantanamo Bay Naval Base, Cuba for four years...
,
Feroz AbbasiFeroz Abbasi was one of nine British men who were held in extrajudicial detention in the United States Guantanamo Bay detainment camps, in Cuba. He was released from detention on 25 January 2005 along with Moazzam Begg, Martin Mubanga and Richard Belmar, the other five having previously been...
, and
Martin MubangaMartin Mubanga is a joint citizen of both the United Kingdom and Zambia. He was held, without charge, and interrogated at the American prison at Guantanamo Bay for 33 months....
.
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.
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 combatantAn unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of International Humanitarian Law and may be detained or prosecuted under the domestic law of the detaining state for such action.-Introduction:The Geneva Conventions apply...
"" Determining whether a captive should be classified as a prisoner of war is the purpose of a "competent tribunal."
On June 29, 2006, the
Supreme Court of the United StatesThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
ruled that the
Geneva ConventionsThe Geneva Conventions consist of four treaties and three additional protocols that set the standards in international law for humanitarian treatment of the victims of war. The singular term Geneva Convention refers to the agreements of 1949, negotiated in the aftermath of World War II, updating...
should be applied, but only Article 3, which does not require a competent tribunal.
Results
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.
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.
2007 Combatant Status Review Tribunals for 14 "high-value detainees"
In a surprise move President
George W. BushGeorge Walker Bush was the 43rd President of the United States from 2001 to 2009 and the 46th Governor of Texas from 1995 to 2000....
announced the transfer of 14 "high-value detainees" from clandestine CIA custody to military custody in Guantanamo in the fall of 2006.
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
Originally the
BushGeorge Walker Bush was the 43rd President of the United States from 2001 to 2009 and the 46th Governor of Texas from 1995 to 2000....
Presidency asserted that the captives had no right to appeal.
Captives who had "
next friendNext friend, in British law and American law, is the phrase used for a person who represents in an action another person who is under disability or otherwise unable to maintain a suit on their own behalf as a result of their circumstances, who does not have a legal guardian.This disability often...
s" willing to initiate the
habeas corpusHabeas corpus is a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming him or herself, or from being harmed by the judicial system...
process filed appeals before the United States Judicial Branch.
Rasul v. BushRasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
was the first appeal to make its way to the
Supreme Court of the United StatesThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
. 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 2006The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
the
United States CongressThe United States Congress is the bicameral legislature of the federal government of the United States of America, consisting of two houses, the Senate and the House of Representatives. Both senators and representatives are chosen through direct election....
moved to first limit, and then completely curtail the captive's ability to file habeas corpus appeals.
The Supreme Court ruled on the outstanding habeas corpus appeals in
Al Odah v. United StatesAl Odah v. United States is a court case filed by the Center for Constitutional Rights and co-counsels challenging the legality of the continued detention, without charge, of Guantanamo detainees. The case is in many ways a continuation of the landmark Center for Constitutional Rights case Rasul v....
and
Boumediene v. BushBoumediene v. Bush, 553 U.S. ___ , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps. The case...
, 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.
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."
Several amalgamated cases have been initiated in the DC Circuit Court.
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
On June 12 2008 the Supreme Court ruled, 5-4, that Guantanamo captives were entitled to access the US justice system. Justice
Anthony KennedyAnthony McLeod Kennedy is an Associate Justice of the U.S. Supreme Court, having been appointed by Republican President Ronald Reagan in 1988...
wrote in the majority opinion:
The Court also ruled that the Combatant Status Review Tribunals were "inadequate".
Ruth Bader GinsburgRuth Joan Bader Ginsburg is an Associate Justice on the Supreme Court of the United States. Ginsburg was appointed by Democratic President Bill Clinton with the support of Republican Judiciary Chairman Senator Orrin Hatch in 1993 and generally votes with the liberal wing of the court...
,
Stephen BreyerStephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by Democratic President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court.Following a clerkship with Supreme...
,
David SouterDavid Hackett Souter David Hackett Souter David Hackett Souter served as an Associate Justice of the Supreme Court of the United States from 1990 until his retirement on June 29, 2009. Appointed by Republican President George H. W. Bush to fill the seat vacated by...
and
John Paul StevensJohn Paul Stevens is the senior Associate Justice of the Supreme Court of the United States. He joined the Supreme Court in 1975 and is the oldest member of the Court. He was appointed to the Court by Republican President Gerald Ford. Stevens is widely considered to be on the liberal side of the...
joined Kennedy in the majority.
Chief Justice John Roberts, in the minority report, called the CSR Tribunals:
Samuel AlitoSamuel Anthony Alito, Jr. is an Associate Justice of the Supreme Court of the United States. He was appointed by President George W. Bush and has served on the court since January 31, 2006....
,
Clarence ThomasClarence Thomas is an Associate Justice of the Supreme Court of the United States, having served since 1991. Justice Thomas is the second African American to serve on the nation's highest court, after Justice Thurgood Marshall, whom he succeeded.Thomas grew up in Georgia, and graduated from...
and
Antonin Scaliais an Associate Justice of the Supreme Court of the United States. He was appointed in 1986 by President Ronald Reagan having previously served on the D.C. Circuit and in the Nixon and Ford administrations, and teaching law at the Universities of Virginia and Chicago...
joined Roberts in the dissent.
Vincent Warren, the executive director of the
Center for Constitutional RightsThe Center for Constitutional Rights is a non-profit legal advocacy organization based in New York City, New York, U.S., co-founded in 1966 by self-described "radical lawyer" William Kunstler...
, the organization that initiated the action that triggered the Supreme Court ruling responded:
See also
- Administrative Review Board
The Administrative Review Board is a United States military body that conducts an annual review of the suspects held by the United States in Camp Delta in the United States Navy base at Guantanamo Bay, Cuba....
- Guantanamo military commission
Military commissions are among procedures used by both the Bush and Obama administrations to deal with detainees they link to al-Qaeda.The American Bar Association announced in 2002 during the Bush administration that: "In response to the unprecedented attacks of September 11, on November 13, 2001,...
s
- Camp Delta
Camp Delta, situated at , composed of detention camps 1, 2, 3, 4, 5, 6, Camp Platinum, Camp Iguana, the Guantanamo psychiatric ward, and Camp Echo, is a permanent detainment camp at Guantanamo Bay that replaced the temporary facilities of Camp X-Ray...
- Camp Echo
Camp Echo is one of seven Guantanamo Bay detention camps that make up the main Camp Delta, at the Guantanamo Bay detention camp, run by the United States military. The facility is used to hold detainees in solitary confinement...
- Camp Iguana
Camp Iguana is a small compound in the detainment camp complex on the US Naval base at Guantanamo Bay, Cuba. Camp Iguana originally held three child detainees who camp spokesmen then claimed were the only detainees under age 16. It was closed in the winter of 2004 when the three were sent home...
- Camp X-ray
Camp X-Ray was a temporary detention facility at the Guantanamo Bay detention camp of Joint Task Force Guantanamo on the U.S. Naval Base in Guantánamo Bay, Cuba.The first twenty captives arrived at Guantanamo on January 11 2002....
- Fourth Geneva Convention
The Fourth Geneva Convention relates to the protection of civilians during times of war "in the hands" of an enemy and under any military occupation by a foreign power. This should not be confused with the better known Third Geneva Convention, which deals with the treatment of prisoners of war...
- Ex parte Quirin
Ex parte Quirin, , is a Supreme Court of the United States case that upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius German saboteurs in the United States...
- Extraordinary rendition by the United States
- Charles Swift
Charles D. Swift was a Lieutenant Commander in the U.S. Navy, Judge Advocate General's Corps and Visiting Associate Professor of Law at Emory University School of Law. During the course of his Navy career, he was assigned to the Department of Defense Office of Military Commissions. He is most...
- Irregulars
Irregular military refers to any non-standard military. Being defined by exclusion, there is significant variance in what comes under the term. It can refer to the type of military organization, or to the type of tactics used....
- No longer enemy combatant
- Third Geneva Convention
The Third Geneva Convention of 1949 , one of the Geneva Conventions, is a treaty agreement that primarily concerns the treatment of prisoners of war , and also touched on other topics...
- unlawful combatant
An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of International Humanitarian Law and may be detained or prosecuted under the domestic law of the detaining state for such action.-Introduction:The Geneva Conventions apply...
- War on terror
External links
- Q&A: Guantanamo Hearings, BBC
The British Broadcasting Corporation, usually referred to by its abbreviation as the "BBC", is the longest established and largest broadcaster in the world...
, August 6 2004
- US Admits Translation Errors At Guantanamo Tribunals, Australian Broadcasting Corporation
The Australian Broadcasting Corporation, commonly referred to as "the ABC", is Australia's national public broadcaster. With a total budget of AUD$1.13 Billion annually, the corporation provides television, radio, online and mobile services throughout metropolitan and regional Australia, as well as...
, 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
- Guantánamo - an icon of lawlessness, Amnesty International
Amnesty International is an international secular non-governmental organisation which defines its mission as "to conduct research and generate action to prevent and end grave abuses of human rights and to demand justice for those whose rights have been violated." Founded in London in 1961, AI...
- Fabricated Justice: Guantanamo Four Years Later, Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo, Toronto,...
, January 24 2006
- List of detainees who went through complete CSRT process, April 19, 2006
- The Response, official website.