Security Detainees

Military Commission Finds Combatant Status Tribunals Not Competent for POW Status Determination

December 18, 2007: The Military Commission ruling in the Salim Hamdan case makes clear: the Combatant Status Review Tribunals (CSRTs) invented by the government neither satisfies nor addresses the Geneva Conventions’ requirement to determine whether a person is entitled under the Conventions to prisoner of war (PoW) protections.

The December 17th ruling reaffirms that the Geneva Conventions apply to the detainees at Guantánamo. Article 5 of the Third Geneva Convention states that if there is any doubt whether someone held by a government is a prisoner of war, they must be presumed to be a prisoner of war, entitled to the protections the Conventions provide for prisoners of war, until their status is determined by a “competent tribunal.” The decision goes on to state that CSRTs are not such competent tribunals for the purpose of determining whether detainees qualify for prisoner of war protections. In Hamdan’s case, the military commission judge will now make a determination as to whether he is a PoW.

The December 17th ruling however, fails to cure the problems that have long existed with CSRTs and are not solved by simply granting detainees an Article 5 hearing.¹ Whether or not a detainee is found to be a PoW, according to the government he still is subject to detention under the CSRT scheme. The flaws in the CSRT are twofold:  (1) that the term “enemy combatant” is vague and grossly overbroad and can encompass virtually anyone anywhere in the world and far from any “battlefield” and who is alleged to have associated with someone who may have some connection to terrorism; and (2) the procedures of the CSRTs are such that the detainee has no practical ability to contest the government’s allegation of “enemy combatant” status.

Time and again, the government’s attempt to create ad hoc systems that fail to measure up to protections afforded by federal court habeas review and international fair hearing standards has been found to be fundamentally flawed. This latest Hamdan Article 5 ruling only proves again that CSRTs are not competent to examine the factual and legal basis for detention.

It’s time for Congress to restore the writ of habeas corpus for the now 290 detainees at Guantanamo, almost all of whom are in their sixth year of detention.

Six Years without Judicial Review: CSRTs Not an Adequate Substitute for Habeas Review

http://www.humanrightsfirst.org/us_law/detainees/miltcom_jud_review.htm

For details on Salim Hamdan’s Military Commission Hearings see

http://www.humanrightsfirst.org/us_law/detainees/gitmo_diary/post-120307-sahr.asp

1 CSRTs and Article 5 hearings serve entirely different purposes. Article 5 hearings, as implemented by Army Reg. 190-8 take place immediately after capture and determine a prisoner’s legal status, detention as PoW, referral for prosecution for war crimes or violation of civilian law, or release. Under both U.S. and international law PoWs may not be subjected to coercive interrogation. In contrast, CSRTs have been conducted months and years after initial capture, thousands of miles away from the point of capture, and after repeated interrogations under coercive and even torturous circumstances.