Standards and Procedures for Classifying 'Enemy Combatants': Congress, What Have You Done?

Abstract

In 2004, the United States Supreme Court issued the seminal Rasul v. Bush, holding that the Guantánamo detainees were entitled to bring habeas corpus petitions in federal court to challenge their detentions. Instead of going forward with habeas hearings, the government fought to keep the cases away from the courts by immediately establishing an extra-judicial process: the Combatant Status Review Tribunals (CSRTs). These administrative hearings were the first time any meaningful process had been applied to determine whether the several hundred detainees at Guantánamo were combatants or innocent civilians. Yet, the processes were extremely flawed — among other inadequacies, denying the men counsel and the right to see evidence against them and allowing hearsay and evidence procured by torture to be used in the proceedings.

The government also began in 2004 to hold Administrative Review Boards (ARBs), which were similar to parole hearings but were as equally flawed as the CSRTs. My clients, most of whom at been there since early 2002, relayed to me that that they were given notice one or two days before their review and were never provided official results of their review. In the ARB of one of my clients, the factors supporting continued detention included that he complains about President Bush and that his interrogator and the US government are criminals. This article reviews some of the actual CSRT and ARB proceedings based on government data, the procedures of which had already been applied to the detainees when Congress passed the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. Together, the two Acts stripped the detainees of the statutory right to habeas, thereby reversing Rasul, and approved the ARBs and CSRTs but only provided limited review of the CSRTs. Given the indisputably unjust results, this article submits that Congress had no real understanding of the procedures, and no knowledge of how they were conducted or their actual results.

Keywords: Guantánamo, Combatant Status Review Tribunals, CSRTs, Administrative Review Boards, ARBs, Detainee Treatment Act, Military Commissions Act 2006