Volume 43 | Number 1 Fall 2007
Standards and Procedures for Classifying “Enemy Combatants”: Congress, What Have You Done?
Response: Standards and Procedures for Classifying “Enemy Combatants”: Judiciary, What Have You Done? by Elizabeth A. Hardy
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II. “In the Beginning”
In assessing whether Congress got it right regarding the procedures for the Combatant Status Review Tribunals (“CSRTs”) and the Administrative Review Boards (“ARBs”), let us look at what these procedures mean in practice. How do they play out, or, more accurately, how did they play out? Neither the Detainee Treatment Act of 2005 (“DTA”)9 nor the MCA set forth procedures for the CSRTs and ARBs that were subsequently applied to the Guantánamo detainees. Rather, Congress, by passing the DTA and the MCA after very few hearings on the matter, approved procedures that had already been applied to over 400 Guantánamo detainees.10 Given the circumstances surrounding the initial capture of the detainees and the available Department of Defense (“DoD”) data regarding the CSRTs and ARBs, it is clear that members of Congress had no real understanding of the procedures they had approved, and no knowledge of how the tribunals and boards were conducted or their actual results.
As mentioned, I have been involved in the Guantánamo litigation since early 2002, representing Kuwaiti detainees in Al Odah v. United States.11 At that time, the Administration was asserting to counsel involved in the litigation and to the public that the detainees were captured on the battlefield in Afghanistan as a result of the U.S. invasion.12 This was used to justify the detentions in the first instance as well as to detain the captives without access to courts. This practice of holding detainees appears similar to a traditional, and therefore acceptable, wartime paradigm. Yet even then we knew the Administration was misleading us all. We had learned from a secret U.S. military source in a counter-terrorism unit that the U.S. military actually had not directly captured many of the Guantánamo detainees, but that in fact many had been picked up by Afghani and Pakistani military, local authorities, and tribesmen.13 We also learned that many Arab Muslim “terrorist suspects” in the area were being turned over to the U.S. military for bounties paid by the United States.14 Furthermore, based on the Administration’s own remarks, we knew that most of the “captured” individuals were not wearing uniforms, but were wearing civilian garb.15 Indeed, that was the primary reason given by the Administration for its wholesale designation of the detainees as “enemy combatants,” depicting such combatants as unlawful, and therefore undeserving of prisoner-of-war status.16
Why are all these factors relevant? When people in a conflict zone wearing civilian clothing are picked up by unreliable third parties and turned over for large amounts of cash, the chances that the wrong people have been captured are significant. Under these circumstances, one would think that a fairly stringent process would be utilized to determine whether such persons really were “enemy combatants” or merely innocent civilians. Yet we learned from our source in the counter-terrorism unit that, contrary to past practice, the U.S. military employed no meaningful process near the time of “capture” or when they were handed these individuals.
U.S. Army Regulation 190-8, chapter 1-6, is modeled after the Article 5 tribunals of Geneva Convention III and provides for a status-determination hearing to be done at or near the time of capture of an individual in armed conflict so that witnesses and evidence are readily available.17 These “Article 5 hearings” have been employed by our military to determine combatant/civilian status ever since they became part of U.S. military regulations.18 They, or something akin to Article 5 hearings, were used in Vietnam, the first Gulf War, and in the conflicts in Panama, Kosovo, and Bosnia for the same reason that they should have been used in the conflict in Afghanistan and Pakistan: civilians become caught up in zones of armed conflict and while some may be combatants, others are simply innocent civilians. The military, however, on directives from the White House, did not employ such status determination hearings in the Afghan conflict or elsewhere.19 Rather, scores of men were sent to Guantánamo on hearsay, sometimes double or triple hearsay, from our allies in Afghanistan, Pakistan, and other parts of the world.20
It was not until two years later, in Rasul v Bush,21 when the detainees won the right to challenge their detention, that the Administration sought to implement some process. Although the Supreme Court held that the detainees had a right to challenge their detention through habeas hearings in federal civilian courts before an impartial judiciary, the Administration, rather than participate in such hearings, established an extra-judicial process: the CSRTs. That was the first time any sort of meaningful process was used to determine whether the hundreds of individuals at Guantánamo were combatants or innocent civilians.22 These men had already been detained for over two years without access to counsel, many in solitary confinement for lengthy periods, subject to “extreme interrogation methods,” and all in conditions far worse than those given to many convicted felons.23 Some of these “men” were actually children when they were first taken to Guantánamo; my current client, Omar Khadr, was barely sixteen years of age upon his arrival at GTMO. All were subject to a CSRT that, when all was said and done, merely confirmed that it was a wholly inadequate procedure for determining who these men really were.