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Combatant Status Review Tribunal

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

In the summer of 2004 Secretary of Defense Donald Rumsfeld announced that the detainees would be given an annual Adminstrative Review Board hearing, similar to CSRTs, 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.

Background

The Third Geneva Convention require combatants to fulfill certain requirements in order enjoy the rights of POW status. 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 manner in which the tribunals were conducted

All the tribunals convened in a room, with space the three officers presiding over the tribunal, a clerk to keep a record, an officer familiar with the detainees case, possibly the detainee and his translator, and up to three three observers. 37 of the 572 Tribunals were observed by a member of the Press.

The role of the presiding officers

The DoD kept the identity of the presiding officers, and the rules to guide their decisions, confidential.

A paper from the Seton Hall University School of Law, entitled "No-hearing hearings", revealed that some Guantanamo captives had second or third Combatant Status Review Tribunals convened when their first Tribunal determined that they had not been enemy combatants after all.[1]

Lieutenant Colonel Stephen Abraham came forward and swore an affidavit,[2] describing his experience sitting on Al Ghazzawi's Tribunal.[3]

The role of the 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. They did not have access to specific details of the the classified reasons why they were held, so a precise rebuttal was not likely.

Detainees were not allowed to attend their own tribunals, unless they signed a agreement, wherein they agreed to waive rights. Half or more of the detainees declined to sign the agreement, without independent legal advice.

Results

NLEC is an abbreviation for No Longer Enemy Combatant, a term the George W. Bush Administration used for prisoners at the Guantanamo Bay detention camp whose Combatant Status Review Tribunal determined they should not have been classified as "enemy combatants".[4]

Thirty-eight detainees were classified as "NLECs".[5] A study from Seton Hall University School of Law said that an additional three Combatant Status Review Tribunals determined that captives should not have been determined to have been enemy combatants, only to have their recommendation overturned.[1] None of the detainees who were determined not to have been enemy combatants were immediately released. Ten of the NLECs were allowed to move to the more comfortable Camp Iguana. Others, such as Sami Al Laithi, remained in solitary confinement.

The delay in the release of some of the detainees was due to considerations of the detainees safety. Under the refoulement provision of the Convention against Torture, a country may not send an individual to a country where he may be tortured.

Some of the detainees could not be returned to their home countries, out of fears of retaliation from their fellow citizens, or the governments of their countries. Some, like Al Laithi, were returned to their home countries after the U.S. secured a promise that they would not be punished by their home countries. Others, like five of Uighur detainees in Guantanamo, were released when the U.S. found a third country which would accept them.[6]Three further captives who had been determined not to have been enemy combatants, who had been occupants of Camp Iguana since May 2005, were released in Albania in November 2006.[7]

References

  1. 1.0 1.1 Mark Denbeaux, Joshua Denbeaux, David Gratz, John Gregorek, Matthew Darby, Shana Edwards, Shane Hartman, Daniel Mann, Megan Sassaman and Helen Skinner. No-hearing hearings. Seton Hall University School of Law. Retrieved on 2007-04-02.
  2. Declaration of Stephen Abraham, Lieutenant Colonel, United States Army Reserve, June 14th, 2007. United States Supreme Court (June 14 2007). Retrieved on 2007-06-25.
  3. Gitmo Panelist Slams Hearing Process: Lt. Col. Stephen Abraham Is First Member Of Military Panel To Challenge Guantanamo Bay Hearings, CBS, June 23, 2007. Retrieved on 2007-06-23.
  4. Kathleen T. Rhem. 38 Guantanamo Detainees to Be Freed After Tribunals, American Forces Press Service, March 30, 2005. Retrieved on 2007-09-01.
  5. Guantanamo Bay Detainees Classifed as "No Longer Enemy Combatants", Washington Post
  6. "Albania takes Guantanamo Uighurs", BBC, May 6, 2006
  7. Pentagon sends Guantánamo captives to Albania, Miami Herald, November 17 2006