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
Page 4 of 6
« First
<
2
3
4
5
6
>
Last »
III. The “CSRTs”
The Department of Defense established the CSRTs in July of 2004,24 and by the end of the year a majority of the detainees had been pushed quickly through the proceedings.25 The procedures were rife with features that make the description “kangaroo-court proceeding” well-deserved; they most certainly violated the Due Process clause of the Constitution.26 Most notably, the CSRTs provide: (1) evidence procured by torture could be considered;27 (2) hearsay evidence could be considered;28 (3) classified evidence that the detainee is not allowed to see could be considered and carried a presumption of reliability;29 and (4) despite all of the aforementioned, the detainee was not entitled to a lawyer.30 In sum, pursuant to a CSRT, a detainee could be determined to be an “enemy combatant” based on second-hand statements of unknown individuals that were produced as a result of torture and that the detainee never has an opportunity to see and respond to.
Sounds like old-school Soviet justice. If you are skeptical of such a result occurring here in the U.S., the available data speaks for itself. Professor Mark Denbeaux of Seton Hall Law School and his son, Joshua Denbeaux, using solely Department of Defense data, compiled a report illustrating how the CSRT proceedings actually transpired.31 Among the most alarming findings are:
(1) The government did not produce any witnesses in any hearing;32
(2) The government did not present any documentary evidence to the detainee prior to the hearing in 96% of the cases;33
(3) The detainee’s only knowledge of the reasons the government considered him to be an enemy combatant was a conclusory summary of the classified evidence;34
(4) All requests by the detainees to inspect classified evidence were denied;35
(5) The government’s classified evidence that the detainee could not see was presumed reliable and valid;36
(6) All requests by the detainees for witnesses not detained in Guantánamo were denied;37
(7) Requests by the detainees for witnesses detained in Guantánamo were denied in 74% of the cases;38
(8) Requests by the detainees to produce documentary evidence were denied in 60% of the cases;39
(9) Instead of a lawyer, the detainee was assigned a “personal representative” who had no obligation of confidentiality and who, in most cases, met with the detainee only once (78%) for not more than 90 minutes (80%) only a week before the hearing (79%);40
(10) At the end of the hearing, the personal representative failed to exercise his/her right to comment on the decision in 98% of the cases;41
(11) In cases in which the detainee alleged torture, the allegation was referred without consideration by the tribunal to DoD for investigation, and the tribunal went on to decide the case without waiting for the result of any investigation;42
(12) The tribunal’s decision was made on the same day as the hearing in 81% of the cases; and43
(13) In some cases, where the tribunal initially found the detainee to be “no longer an enemy combatant” (“NEC”), DoD ordered a new tribunal convened and the detainee was then found to be an enemy combatant.44
Additionally, as proof that a detainee is an enemy combatant, the tribunal relied on the following as “evidence”: associations with organizations (members of which would be allowed in to the United States), possession of money, possession of rifles, use of a guest house overseas, possession of a Casio watch, and the wearing of olive drab clothing.45
The most common occurrence in a CSRT proceeding was a detainee’s deep dismay at having to respond to bare-bones accusations allegedly supported by evidence that he was not allowed to see. The following excerpts from the transcript of the CSRT of detainee ISN# 1463 provide a glimpse of the utter inability of the detainee to respond, an event that occurred frequently in numerous other CSRTs:
Detainee: That is not true. I did not help anybody and whoever is saying that I did, let them present their evidence. If I know that somebody presented any evidence, then somebody can tell me what that evidence is so that I can respond to it. If there is any evidence at all. . . .
Detainee: That’s not true. Again, whoever has any evidence to prove, let them present it. If somebody submitted any evidence, I’d like to take a look at it to find out if that evidence is true. . . .
Detainee: It’s not fair for me if you mask some of the secret information. . . . How can I defend myself?46
Regarding the ability of the detainee to gather exculpatory evidence, the provision that allows detainees to call witnesses or request documents if “reasonably available” was used to deny their requests for such evidence in so many situations as to make the word “reasonable” ludicrous. As mentioned, the Seton Hall Report concluded that no witnesses outside Guantánamo were “reasonably available,” witnesses actually detained at Guantánamo were more often than not deemed not “reasonably available,” and mere documents were “reasonably available” in only 40% of the CSRTs.47 For example:
In another case, an Algerian detainee requested court documents from his hearing in Bosnia at which the Bosnian courts had acquitted him of terrorist activities. The Tribunal concluded that these official Court documents were not “reasonably available” even though the Unclassified Summary of the Basis for Decision discussed another document from the same Bosnian legal proceedings. The aspects of the Bosnian proceedings which the Tribunal considered were not the records that the detainee requested. Apparently, according to the Government, some records from a formal Bosnian trial are “reasonably available” but others are not. There was no explanation in the record to explain why the Government did not obtain the requested records. This detainee, like the others, was determined to be an enemy combatant.48
Let me end this section with my own client’s story. Recently, I reread the CSRT materials in the case of Omar Khadr. His tribunal made this conclusion: “Because the unclassified evidence consisted only of the Unclassified Summary of the evidence and the FBI redacted information statement, the Tribunal relied exclusively on classified information in reaching its decision.”49 Omar—just shy of age 18 at the time of his CSRT—declined to participate, and without any consideration for his age or competency, and despite the fact that he had been at Guantánamo since he was 16, the tribunal determined him to be an enemy combatant in absentia, based entirely on evidence that he never would have been allowed to see.
It is perhaps not surprising, but certainly disconcerting, that out of the 558 CSRT proceedings conducted, only 38 detainees were determined to be “non-enemy combatants.”50 These are the proceedings that Congress approved when it passed the DTA and the MCA. It was not until after the detainees had been through their CSRTs that Congress concerned itself with some of the inadequacies of the procedures by adding a provision in the DTA requiring the tribunal to assess whether any statements had been procured by torture or coercion, though it still does not preclude such statements altogether.51 Too little, too late. The majority of the detainees had already been determined to be ECs through a process that required no such assessment. Furthermore, the DTA severely limits the scope of the judicial review of those past CSRTs such that the D.C. Circuit Court essentially has no role in determining whether any statements that are the basis of an EC determination were procured by torture.
There are around 340 men at Guantánamo today.52 The government has repeatedly stated that only 70–80 detainees will ever be charged with war crimes and face military commissions.53 But even if they are acquitted, they will not necessarily be released because they are still “enemy combatants” pursuant to their CSRT determination, and therefore subject to detention—young Omar included. Thus, all of the men at Guantánamo face the possibility of life imprisonment on account of their “enemy combatant” status—a status that resulted from the procedures and proceedings I have just described. Now, answer these questions: how much due process should be required in these circumstances, and did Congress get it right by approving a process that had little or no such protections, and that resulted in proceedings that even Kafka couldn’t imagine?