Combatant Status Review Tribunal - AbsoluteAstronomy.com

The Combatant Status Review Tribunals (CSRT) were a set of tribunal

Tribunal

A tribunal 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 confirming whether detainees held by the United States

United States

The United States of America is a federal constitutional republic comprising fifty states and a federal district...

at the Guantanamo Bay detention camp had been correctly designated as "enemy combatant

Enemy combatant

Enemy 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 Defense

United States Department of Defense

The United States Department of Defense is the U.S...

Paul Wolfowitz

Paul 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. Nitze School of Advanced International Studies at Johns Hopkins University...

after U.S. Supreme Court rulings in Hamdi v. Rumsfeld

Hamdi v. Rumsfeld

Hamdi 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 enemy...

and Rasul v. Bush

Rasul v. Bush

Rasul 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...

s: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 Combatants

Office for the Administrative Review of the Detention of Enemy Combatants

The 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. Redacted

Sanitization (classified information)

Sanitization 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 30, 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 combatant

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.

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 Convention

Third Geneva Convention

The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in 1949...

(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. Rumsfeld

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 "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 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 Kurnaz

On March 3, 2006, in response to a court order from Jed Rakoff the Department of Defense published a Summarized transcripts from his Combatant Status Review Tribunal.The tribunal that examined the case against Kurnaz lasted for forty minutes....

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 Green

Joyce Hens Green

Judge 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 concluding he was an al Qaeda member. Green's comment on the memo was that it:
Eugene R. Fidell

Eugene R. Fidell

Eugene R. Fidell is an American lawyer and notable expert in military law.He is currently a visiting Professor of Military Law at Yale Law School.-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:

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: Mustafa Ait Idir

Mustafa Ait Idir

Washington DC based Judge Joyce Hens Green extensively quoted a transcript from Idir's Combatant Status Review Tribunal when she decided that the Guantanamo tribunals violated the US Constitution.Ait Idr participated in his Administrative Review Board hearing....

, Moazzam Begg

Moazzam Begg

Moazzam Begg , is a British Pakistani Muslim who was held in extrajudicial detention in the Bagram Theater Internment Facility and the Guantanamo Bay detainment camp, in Cuba, by the U.S...

, Murat Kurnaz

Murat Kurnaz

, Feroz Abbasi

Feroz Abbasi

Feroz Abbasi is 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 Mubanga

Martin Mubanga

Martin 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 combatant

Unlawful combatant

An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.The Geneva Conventions apply in wars...

"" 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 States

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

ruled that the Geneva Conventions

Geneva Conventions

The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...

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. Bush

George W. Bush

George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served 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 Bush

George W. Bush

Presidency asserted that the captives had no right to appeal.
Captives who had "next friend

Next friend

In common law, next friend is a phrase used to refer to a person who represents another person who is under disability or otherwise unable to maintain a suit on their own behalf and who does not have a legal guardian....

s" willing to initiate the habeas corpus

Habeas corpus

is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...

process filed appeals before the United States Judicial Branch. Rasul v. Bush

Rasul v. Bush

was the first appeal to make its way to the Supreme Court of the United States

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

Military Commissions Act of 2006

The 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 Congress

United States Congress

The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

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 States

Al Odah v. United States

Al 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....

andBoumediene v. Bush

Boumediene v. Bush

Boumediene v. Bush, 553 U.S. 723 , 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 in Cuba...

, 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, in the case Boumediene v. Bush

Boumediene v. Bush

5-4, that Guantanamo captives were entitled to access the US justice system. Justice Anthony Kennedy

Anthony Kennedy

Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...

wrote in the majority opinion:

The Court also ruled that the Combatant Status Review Tribunals were "inadequate".
Ruth Bader Ginsburg

Ruth Bader Ginsburg

Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...

, Stephen Breyer

Stephen Breyer

Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by 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....

, David Souter

David Souter

David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...

and John Paul Stevens

John Paul Stevens

John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...

joined Kennedy in the majority.

Chief Justice John Roberts, in the minority report, called the CSR Tribunals:

Samuel Alito

Samuel Alito

Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....

, Clarence Thomas

Clarence Thomas

Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....

and Antonin Scalia

Antonin Scalia

Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...

joined Roberts in the dissent.

Vincent Warren, the executive director of the Center for Constitutional Rights

Center for Constitutional Rights

Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...

, the organization that initiated the action that triggered the Supreme Court ruling responded:

External links

Q&A: Guantanamo Hearings, BBC
BBC
The British Broadcasting Corporation is a British public service broadcaster. Its headquarters is at Broadcasting House in the City of Westminster, London. It is the largest broadcaster in the world, with about 23,000 staff...

, August 6, 2004
US Admits Translation Errors At Guantanamo Tribunals, Australian Broadcasting Corporation
Australian Broadcasting Corporation
The Australian Broadcasting Corporation, commonly referred to as "the ABC" , is Australia's national public broadcaster...

, August 27, 2004
Top 10 Signs You Might Not Get a Fair Trial at Gitmo, NPR
NPR
NPR, formerly National Public Radio, is a privately and publicly funded non-profit membership media organization that serves as a national syndicator to a network of 900 public radio stations in the United States. NPR was created in 1970, following congressional passage of the Public Broadcasting...

, September 14, 2004
US court questions detainee handling, Australian Financial Review, September 9, 2005
Guantánamo - an icon of lawlessness, Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "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."Following a publication of Peter Benenson's...
Fabricated Justice: Guantanamo Four Years Later, Human Rights Watch
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, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...

, January 24, 2006
List of detainees who went through complete CSRT process, April 19, 2006
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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