Combatant Status Review Tribunal

The Combatant Status Review Tribunals (CSRT) are a set of tribunals purposed to determine whether detainees held by the United States at the Guantanamo Bay detention camp are correctly designated as "enemy combatants". They were established July 7, 2004 by order of U.S. Deputy Secretary of Defense Paul Wolfowitz^{citation needed} after U.S. Supreme Court rulings in Hamdi v. Rumsfeld^[4] and Rasul v. Bush.[1] These non-public hearings are 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."^[5] The first CSRT hearings began in July 2004. CSRT transcripts of the hearings can be found for "high value detainees" on the Department of Defense (DoD) website as PDF files and redacted mp3 format audio files. ^[6] As of October 30th, 2007, fourteen CSRT transcripts are available on the DoD website.

Existing U.S. and the Combat Status Review Tribunals

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 (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.")^[8] This is most likely because, in 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..^[9]

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.^[10]

The Presiding Officers

The identity of the presiding officers at CSRTs hearings is classified. In the PDF files of 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 do remain in the documents. So, for Guleed Hassan Ahmed's CSRT in April 2007, one finds that the CSRT President was a Lieutenant Colonel and U.S. Air Force Member. Other services present include the U.S. Marine Corps and the U.S. Army; the only other rank present, in this case, was Gunnery Sergeant.^[11] In other CSRTs, the ranks, services, and persons present appear to varry. At certain CSRTs when required, 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.^[11]

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.^[11]

When detainees did attend, if required, a translator was typically present to assist the detainee and tribunal members.^[12]^[13] They are given a copy of the unclassified summary of information, and aided by a "Personal Representative".^[14]

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 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.^[15] 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 Qaeda member. Green's comment on the memo was that it:

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: ^[16]^[17]

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""^[19] Determining whether a captive should be classified as a prisoner of war is the purpose of 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.^[21]

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. ^[7]

2007 Combatant Status Review Tribunals for 14 "high-value detainees"

In a surprise move President George W. Bush announced the transfer of 14 "high-value detainees" from clandestine CIA custody to military custody in Guantanamo in the fall of 2006.^[22] 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

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.^[23] 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."^[23]

Several amalgamated cases have been initiated in the DC Circuit Court.^[24] 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.^[25]^[26]^[27]^[28] Justice Anthony Kennedy wrote in the majority opinion:

Chief Justice John Roberts, in the minority report, called the CSR Tribunals^[25]:

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