On July 30, 2004, the Defense Department began conducting “Combatant Status Review” hearings for those held at the U.S. Naval Base at Guantanamo Bay, Cuba. The status hearings are a novel set of proceedings authorized by Deputy Defense Secretary Paul Wolfowitz’s July 7 Order and procedural rules issued on July 29.
Administration officials assert that the status hearings – under which Guantanamo detainees may challenge their designation as “enemy combatants” – reflect the Supreme Court’s June 2004 instructions in Rasul v. Bush and Hamdi v. Rumsfeld, which affirmed detainees’ rights to challenge their detentions in U.S. courts. But the new hearings fail to satisfy the Supreme Court’s rulings, and are otherwise inadequate to meet basic requirements of national and international law.
The Status Hearings Fail to Satisfy the Supreme Court’s Ruling
Administration officials argue that the status hearings are designed to satisfy the Supreme Court’s decision in Hamdi v. Rumsfeld, which addresses the detention of a U.S. citizen captured in Afghanistan and now detained as an “enemy combatant” in South Carolina. Whether or not the hearings comply with Hamdi’sinstructions – and they appear to fall short, as described below – the decision most directly relevant to those still held at Guantanamo is Rasul v. Odah, which addressed the rights of the Guantanamo detainees. Under Rasul, Guantanamo detainees are entitled to seek review of the legality of their detention by filing habeas corpus petitions in U.S. courts. Slip Op. at 6. The Rasul Court also stressed the importance of assistance of counsel, stating that the detainee’s claim of two-year detention “in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing – unquestionably describ[es] ‘custody in violation of the Constitution or laws or treaties of the United States.’” Slip Op. at 15 n. 15. The status hearings – which provide neither for review in federal court nor for assistance of counsel – do nothing to satisfy this ruling.
The Status Hearings Fail to Satisfy Justice O’Connor’s Minimum Standards
It is a separate question whether, as the Defense Department maintains, the status hearings comport with Justice O’Connor’s plurality opinion in Hamdi. There, Justice O’Connor discussed in dicta (part of the opinion not essential to the legal rule the Court set down) what kind of procedures might satisfy U.S. citizen Hamdi’s right to challenge the legality of his detention. She noted that that right might be satisfied if the government provided Hamdi the procedures laid out in Army Regulation AR 190-8, § 1-6, which provides for battlefield hearings to resolve doubts about the legal status of detainees captured by the military in combat. was adopted by the Army to satisfy its obligations under Article 5 of the Third Geneva Convention regarding the rights of prisoners of war.
To the extent Justice O’Connor’s Hamdi opinion may be relevant to the Guantanamo detainees, it requires more than what the status hearings provide. Specifically, it requires at a minimum that:
- The detainee has “a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.” Slip Op. at 1;
- The detainee has notice of the grounds for his detention and an opportunity to be heard at a “meaningful time and in a meaningful manner.” Slip Op. at 26; and
- The detainee “unquestionably has the right to access to counsel.” Slip Op. at 32.
On all these scores, the status hearings fall short. Indeed, the status hearings do not even measure up to the military regulation they claim to mirror.
The tribunals that will conduct detainees’ status hearings are not neutral. Tribunals are to be composed of three U.S. Armed Forces officers. While tribunal officers are to have had no previous connection with the apprehension, detention, or interrogation of the detainees, this condition is no guarantee of neutrality. A finding in favor of the detainee would require the officer to challenge determinations made by his or her entire chain of command, including the President, who, in an “order” issued February 7, 2002, “determine[d] that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war….[and likewise] note[d] that…al-Qaida detainees also do not qualify as prisoner of war.” Moreover, the tribunals may only affirm the original “enemy combatant” designation, or conclude it was an error. They have no power to reverse the blanket February 7 determination, and they do not have the option to declare a detainee a “lawful combatant / prisoner of war.” By contrast, even in the battlefield hearings under § 1-6 of AR 190-8, no institutional interest has been established in the outcome of any particular individual’s hearing, only the practical interest of a correct determination. And in such hearings, recently captured detainees are presumed to be prisoners of war until their status has been otherwise determined by a “competent tribunal.” AR 190-8, § 1-6.
Meaningful Time and Manner
The status hearings purport to implement a regulation that should have been put into effect two years earlier, following the detainees’ original capture and near the location of hostilities. Indeed, under articles 49 and 147 of the Fourth Geneva Convention, if a hearing held at the time of capture had determined the individual was a noncombatant, his deportation to Guantanamo – or anywhere else outside of Afghanistan – would have been a grave breach of the Convention (“unlawful deportation or transfer…of a protected person”).
This removal in time and place from the original detention is a substantial impediment to the ability of detainees to obtain witnesses and evidence in their support, a burden particularly onerous in light of the rule governing the hearings providing a “rebuttable presumption in favor of the Government’s evidence.” Any possibly exculpatory material evidence in the detainee’s possession at the time of capture will almost certainly have been confiscated or lost. As for testimonial evidence, the “detainee shall be allowed to call witnesses [only] if reasonably available.” For the purpose of the status hearings, U.S. military witnesses will not be considered reasonably available if “as determined by their commanders, their presence at a hearing would affect combat or support operations”; based on the Government’s positions in the Lindh and Moussaoui cases, it is highly unlikely that other detainees in U.S. custody will be considered “reasonably available.” Family and friends – and, in many cases, the Northern Alliance forces or local villagers who actually apprehended the detainee – will likely be across the ocean and so unavailable as well. In a July 9, 2004 press briefing, Navy Secretary Gordon England, who will be supervising the status hearings, has indicated that few, if any, witnesses from locations such as Afghanistan would be made available to detainees, and there is no budget for such costs.
Finally, the status hearings come in the shadow of official policies authorizing coercive interrogations at Guantanamo and other detention centers, and come amidst serious allegations of cruel and degrading treatment, rising in some cases to the level of torture.1 While evidence obtained in such fashion would ordinarily be excluded from a court, a status hearing tribunal may “consider any information it deems relevant and helpful.” Given the detainees’ limited rights and the absence of legal counsel, it is hard to envision how a detainee will be able to challenge purportedly incriminating testimony that may have been the product of inappropriately coercive interrogation.
Right to Counsel
The status hearing procedures provide a “personal representative” to the detainee for the hearing, a feature the Pentagon is right to point out is not required by AR 190-8. But the “personal representative” is not a lawyer – as Justice O’Connor’s opinion in Hamdi would require – and need not have either relevant professional training or any duty of loyalty toward his “client.” Further, the detainee’s communications with his personal representative will not be confidential, a feature essential to any meaningful attorney-client relationship. On the contrary, as Secretary England revealed in a July 9, 2004 press briefing, the personal representative is obliged to reveal to the status hearing any incriminating information he may receive from the detainee. The “personal representative” feature is thus in some respects the worst of both worlds: the detainee still lacks the benefit of legal counsel but may believe that he is receiving protections he is not. This concern became particularly acute when, in the July 12 notice to detainees regarding the status hearings, the Defense Department did not disclose the non-confidential nature of communications with the personal representative.
1. See, e.g., Secretary of Defense Donald Rumsfeld, Memorandum for the Commander, US Southern Command, re: Counter-Resistance Techniques in the War on Terrorism, April 16, 2003, available at [link: http://www.defenselink.mil/releases/2004/nr20040622-0930.html ]; Tania Branigan, “Ministers Face New Action Over Camp Delta Britons,” Guardian, March 15, 2004 (“[Recently released U.K. Guantanamo detainees] Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed…said that after three months of solitary confinement they ‘admitted’ attending a meeting between Osama bin Laden and Mohamed Atta, the leader of the September 11 hijackers – despite having been in the U.K. at the time. The U.S. military only believed their alibis when MI5 proved that the men could not have been present.”) See also Report of the International Committee of the Red Cross (ICRC) on the Treatment by Coalition Forces of Prisoners of War and Other Protected persons by the Geneva Conventions in Iraq During Arrest, Internment, and Interrogation, February 2003, available at [link: http://www.humanrightsfirst.org/iraq/ICRC_Report.pdf ] (finding that “ill-treatment during interrogation was…systematic” for security detainees in Iraq, and “physical and psychological coercion…in some cases, was tantamount to torture.”)