Talk:Combatant Status Review Tribunal

To do. Please write a brief definition or description of this article at Combatant Status Review Tribunal/Definition.

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	NOTICE, please do not remove from top of page.
	No "from wikipedia" disclaimer is necessary because I was the sole author of this version.
	George Swan 19:34, 27 November 2007 (CST)

Resultes of court hearing? More summary in intro?

On getting to the end of the article, wading through lots of detail and not finding much about policy, the results of court review, etc., I find that a court ruling was expected in December 2007, almost a year ago. Has there been such a ruling? If so, I would expect not only the details in the appropriate section, as well as in a main article on policy, but at least some overview in the lead to the article. Howard C. Berkowitz 21:45, 27 October 2008 (UTC)

Move into historical article and delete?

The lede mentions these existed, but makes little mention of what is now relevant. To what extent has this been superceded by the Military Commissions Act of 2006, the rulings of Susan Crawford, and the directives of the Obama Administration?

I suggest it be merged into a historical article, and the standalone article, along with Administrative Review Board, deleted. We can discuss the structure of doing so; I have an article on the history of U.S. interrogation policy in my sandbox, and it will probably become a high-level parent article with a number of subordinate historical articles. U.S. interrogation policy in unconventional warfare did not begin on 9/11, or with Guantanamo.

Howard C. Berkowitz 04:03, 27 February 2009 (UTC)

I continue to work with this, but it is getting to be more difficult. It should be added that I wrote Third Geneva Convention and ex parte Quirin, and, for that matter, Geneva Conventions, which were redlinks in the article. Those links, however, seemed to draw conclusions not necessarily supported by citations or by my reading of primary documents. There are, for example, unsourced statements including:Howard C. Berkowitz 22:43, 27 February 2009 (UTC)

• "The Geneva Conventions oblige belligerents to convene the competent tribunals in a timely fashion.": where? The Third Geneva Convention does not contain the word "timely". It mentions "competent tribunal" once.
• Referring to the guidance given to the military officers, described as confidential, "But it could be guessed at by examining some of their decisions."
• "American military spokesmen described this as the detainee deciding they didn't want to participate in their review." referring to detainees not signing summaries of charges

"Various legal challenges were mounted on behalf of the detainees. Most of those legal challenges ruled against the Executive Branch, and when the Executive Branch's opportunities to appeal were exhausted they were finally forced to convene tribunals in early July of 2004." no sourcing, no identification of challenges

"Although the Geneva Conventions oblige belligerents to convene the tribunals in a timely fashion (oh? Please show me where it is in the Third Geneva Convention, specific to POWs) most of the Guantanamo Bay detainees had been held for over two and a half years. During that time they had not been able to communicate with their families, or have legal advice." while it might seem harsh, is there a legal requirement?

While there are indeed parallel civilian and military systems, the law and precedents covering military tribunals is not simple; see ex parte Quirin. The Fourth Geneva Convention is not a manual for conducing a tribunal. None of the following was sourced, yet states matters as of fact:

How the Rules of Evidence differed from those in the Criminal Justice System unsourced

The United States has two, parallel criminal justice systems, those for civilians, and a parallel system for those in the military, granting suspects similar rights, in a streamlined fashion. In the criminal justice system:

• Suspects are entitled to the presumption of innocence
• Suspects are entitled to have legal advice.
• Suspects are entitled to know the evidence the prosecutor has against them, and in their favor.
• Suspects are entitled to call witnesses in their favor, and cross-examine the witnesses against them.
• Suspects are protected from being forced to incriminate themselves
• Evidence acquired through torture cannot be used.

The tribunals differed from proceedings under a criminal justice system in that:

• Detainees do not receive the presumption of innocence.
• Detainees do not get access to legal advice.
• Detainees are not entitled to access to the evidence against them, or in their favor.
• Hear-say evidence is allowed to be used against the detainees
• The use of evidence acquired through coercive interrogation is allowed, they were not protected against self-incrimination.
• Evidence acquired through the torture of other suspects was allowed.

"One example" is cited, with no explanation why that individual is exemplary. Purely from an editorial standpoint, an individual case belongs in an individual article, linked from the main:

The role of the observers in the tribunal unsourced

The DoD experienced ongoing confusion about the presence of observers. It now seems that portions of all the tribunals were supposed to be held in public -- public in the sense that representatives from a short list of reporters would be advised of the date of tribunals, and invited to attend. All of the first several dozen tribunals went unobserved apparently because the DoD had not figured out who was responsible for advising the reporters on the approved list, and issuing them an invitation. Overlooking the issuing of invitations remained an ongoing problem. The list of approved reporters was short. The procedure for getting to the tribunal's trailer was difficult, and many of the tribunals went unobserved.

Murat Kurnaz, an example

Murat Kurnaz was a young Turk who was born in, and had grown up, in Germany. When captured he was close to being granted German citizenship. He was taken off a tourist bus, and arrested, while on a trip to Pakistan -- not "on the battlefield".

The tribunal's determination was that there was enough evidence of Kurnaz had ties to terrorism that he should be held as a unlawful combatant.

Through a bureaucratic slip-up Kurnaz's file was declassifed. During the brief window when it was declassified the Washington Post was able to review all the evidence against him, and publish a summary.

Joyce Hens Green, a Washington jurist ???? (who is Green and what is her status for making what is suggested as an official determination> What, in American law, is a "jurist"?, had been able to review both the classified and unclassified evidence. What Green had found was that Kurnaz's file contained something like 100 pages of documents and reports explaining that German and American investiigator could find no evidence whatsoever that Kurnaz had any ties to terrorism. Shortly before his tribunal an unsigned memo had been added to his file concluded he was an al Queda member. Green's comment on the memo was that it:

"fails to provide significant details to support its conclusory allegations, does not reveal the sources for its information and is contradicted by other evidence in the record."

Eugene R. Fidell, a Washington-based expert in military law, said:

"It suggests the procedure is a sham, If a case like that can get through, what it means is that the merest scintilla of evidence against someone would carry the day for the government, even if there's a mountain of evidence on the other side."

More material with minimal sourcing and no updating from 2007

Captives who had outstanding habeas corpus appeals are expected to have the Supreme Court make a ruling in the consolidated cases Al Odah v. United States and Boumediene v. Bush over whether Congress had the authority strip them of the right to file habeas corpus appeals through the Military Commissions Act. The Supreme Court will hear the cases on December 5, 2007.

U.S. Judicial Branch Appeals

Lots of opinions here, but the key issue for the article is this isn't strictly about the CSRT. It goes off into the history of the Military Commissions Act of 2006, another article I had to write because there was a redlink. The relationship between the Act and Rasul v. Bush needs to be sourced, unless the author of this material can reasonably be judged an expert in the subject.

Originally the Bush Presidency asserted that the captives had no right to appeal.

Captives who had "next friends" willing to initiate the habeas corpus process filed appeals before the United States Judicial Branch. Rasul v. Bush was the first appeal to make its way to the Supreme Court of the United States. The creation of the Combatant Status Review Tribunals was a side effect of Rasul v. Bush.

Through the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 the United States Congress moved to first limit, and then completely curtail the captive's ability to file habeas corpus appeals.

The Military Commission Act does provide a process where captives can appeal the Combatant Status Review Tribunal had properly followed OARDEC's own rules when it confirmed their enemy combatant status.

If and when captives are able to file these appeals they would be heard before the U.S. Court of Appeals for the D.C. Circuit.

Emma Schwartz, in the US News and World Report,

on August 30, 2007, reported that her sources told her: "...Up to one fourth of the department's own civil appellate staff has recently opted out of handling the government's cases against detainee appeals."

As Military Workgroup Editor, I rule that this material has been in limbo for over a year, and it is not reasonable to expect the Editor to bring it up to date. Howard C. Berkowitz 22:43, 27 February 2009 (UTC)

More sourcing needed

"The interpretation of the Bush administration was that the Geneva Conventions obliged belligerents to convene a competent tribunal to review the combatant status of prisoners only when their status was in any doubt. ", but it needs to be sourced. Bybee memo, perhaps? Howard C. Berkowitz 01:20, 8 March 2009 (UTC)