Combatant Status Review Tribunals
On July 7, 2004, the Department of Defense responded to the Supreme Court’s rulings in Hamdi and Rasul by announcing the formation of the Combatant Status Review Tribunals (CSRTs).[1] Spurred by procedural requirements Justice O’Connor suggested to in her Hamdi plurality opinion, the government explained that the purpose behind the CSRTs was “to provide detainees at Guantanamo Bay Naval Base with notice of the basis for their detention and review of their detention as enemy combatants.” [2]
The Department of Defense further guaranteed that prior to CSRT hearings all detainees would receive “‘multiple levels of review by military officers and officials of the Department of Defense’” to determine whether or not to designate a detainee as an “enemy combatant.”[3] Following a positive determination, the CSRTs were meant to serve as “non-adversarial” administrative proceedings where all detainees would have the opportunity to challenge their enemy combatant status.[4] One component of the proposed CSRT procedure included appointing “a Personal Representative, who would review and summarize classified documents and help the accused present exculpatory evidence by testifying, calling witnesses who were reasonably available, questioning witnesses summoned by the tribunal, and introducing relevant documents.”[5]
Ultimately, the CSRTs were designed to provide a process that would satisfy the Supreme Court and allow the government to try “enemy combatants” before military commissions. Depending on the outcome of each CSRT, the government would either release the detainee on the basis of unlawful imprisonment (if found to be “no longer an enemy combatant”) or, in the alternative, the detainee’s case would proceed to a military commission.[6] These Guantanamo military commissions strayed from the procedural rules of normal military commissions in three ways: they
“(1) exclude[d] the defendant from any part of the proceeding to protect ‘national security interests’ . . . (2) admit[ed] any evidence they determined had probative value to a reasonable person (including hearsay); and (3) block[ed] the accused’s access to classified information if doing so would not deny him a fair trial.”[7]
The Washington Post reported the completion of the CSRT process on March 29, 2005.[8] Of the 558 detainees who completed the process, the Tribunal determined only 38 to be No Longer Enemy Combatants and thus eligible for release.[9] Three years later, the legality of the military commissions were called into question in Boumidiene v. Bush. In that case, the Supreme Court held that there had been multiple deficiencies in the CSRT process.[10] For instance, the Court found “irremediable structural bias in the CSRT fact-finding that presumed the correctness of the Government’s “enemy combatant” designation . . . but provided no similar presumption in favor of exculpatory evidence.”[11] Accordingly, while the Court did not make a ruling on the whether the CSRTs satisfied constitutional due process, it did conclude that the Tribunals presented a “considerable risk of error in the . . . findings of fact.”[12]
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[1] Press Release, U.S. Department of Defense, Combatant Status Review Tribunal Order Issued (July 7, 2004) (http://www.defense.gov/releases/release.aspx?releaseid=7530).
[2] U.S. Department of Defense, Combatant Status Review Tribunal Fact Sheet, July 7, 2004, http://www.defense.gov/news/Jul2004/d20040707factsheet.pdf.
[3] Robert J. Pushaw, Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic? 84 Notre Dame L. Rev. 1975, 2008 (2009).
[4] Memorandum from Paul Wolfowitz, Deputy Sec’y of Def., to the Sec’y of the Navy (July 7, 2004), http://www.defenselink.mil/news/Jul2004/d20040707review.pdf; Pushaw, supra note 3; Baher Azmy, Executive Detention, Boumediene, and the New Common Law of Habeas, 95 Iowa L. Rev. 445, 459 (2010);.
[5] U.S. Department of Defense, supra note 2; Pushaw, supra note 3.
[6] Pushaw, supra note 3.
[7] Id. at 2009.
[8] Guantanamo Bay Timeline, http://projects.washingtonpost.com/guantanamo/timeline/ (last visited July 1, 2010).
[9] Id.
[10] Boumidiene v. Bush, 128 S. Ct 2229, 2268-70 (2008).
[11] Boumidiene, 2229 U.S. at 2268-70, Azmy, supra note 4, at 476.
[12] Boumidiene, 2229 U.S. at 2270.