In the early days of the war on terror, U.S. enemy detainees were, like prisoners of war, held for indefinite periods of time without the right to challenge the legality of their detention in court. In 2006, the U.S. Supreme Court in its Hamdan v. Rumsfeld decision ruled that practice unconstitutional. In response, the Bush Administration's Military Commissions Act, enacted in September 2006, allowed all detainees at Guantanamo Bay to have their detention reviewed by a military Combat Status Review Tribunal (CSRT).
The Military Commissions Act also declared the detainees to be "unlawful enemy combatants" and, as such, suspended their right to present, or to have presented on their behalf, writs of habeas corpus.
When the Military Commissions Act was enacted, many of the detainees already had habeas corpus hearings pending in U.S. civil district courts. The government, however, told the district courts that because of the detainees' hearings before a CSRT, no further legal action, like the habeas corpus hearings, would be necessary.
By the end of April 2006, CSRT hearings had been conducted for at least 558 detainees, and the Department of Defense had declassified and released partial transcripts of 393 of those hearings.
At best, a "modest" legal process
In an in-depth analysis of the performance of the CSRT military tribunals in comparison to habeas corpus hearings in U.S. civil courts, attorney Mark Mark Denbeaux, who represented two detainees in CSRT hearings, found they fell short of providing even a "modest" legal process.
Rather than legal counsel, reports Denbeaux, the detainee was assigned a "personal representative" and informed that the personal representative was neither his lawyer nor his advocate, and that anything the detainee told his personal representative could be used against him.
In his paper No-Hearing Hearings - CSRT: The Modern Habeas Corpus? (.pdf), Denbeaux reports that in 78-percent of the CSRT hearings, the personal representative met with the detainee only once. "The meetings were as short as 10 minutes, and this includes time for translation," he writes. "Some 13-percent of the meetings were 20 minutes or less, and more than half of the meetings lasted no more than an hour."
A few highlights from Denbeaux's analysis include:
- The Government did not produce any witnesses in any hearing and did not present any documentary evidence to the detainee prior to the hearing in 96-percent of the cases.
- The only document that the detainee is always presented with is the summary of classified evidence. The detainee’s only knowledge of the reasons the Government considered him to be an enemy combatant was the summary of the evidence.
- The Government’s classified evidence was always presumed to be reliable and valid. In 48-percent of the cases, the Government also relied on unclassified evidence, but, like the classified evidence, this unclassified evidence was almost always withheld from the detainee.
- At least 55-percent of the detainees sought either to inspect the classified evidence or to present exculpatory evidence in the form of witnesses and/or documents. All of these requests were denied. All requests by detainees for witnesses not already being held in Guantanamo were denied. Requests by detainees for witnesses detained in Guantanamo were denied in 74-percent of the cases. In the remaining 26-percent of the cases, 22-percent of the detainees were permitted to call some detainee-witnesses and 4-percent were permitted to call all of the detainee-witnesses that they requested.
- The only documentary evidence that the detainees were allowed to produce was from family and friends.
- The Tribunal’s decision was made on the same day as the hearing in 81-percent of the cases.
- In three cases, the CSRT found the detainee to be not or no-longer an enemy combatant. In each case, the Defense Department ordered a new Tribunal convened, and the detainee was then found to be an enemy combatant. In one instance, a detainee was found to no longer be an enemy combatant by two Tribunals, before a third Tribunal was convened which then found the detainee to be an enemy combatant.
Guantanamo a terrorist rehabilitation program?
Of the 558 detainees who went before Combatant Status Review Tribunals, Denbeaux reported that 38 were found to be either "non enemy combatants" or "no longer enemy combatants" and released.
As Denbeaux points out, the term "non enemy combatant" implies that the detainee had been held by mistake, while the term "no longer enemy combatant" could be construed to mean that whatever went on at Guantanamo Bay served as a "successful rehabilitation program."
