No-Hearing Hearings - CSRT: the Modern Habeas Corpus?
Seton Hall University, School of Law
Joshua W. Denbeaux
Denbeaux & Denbeaux
affiliation not provided to SSRN
Seton Hall Public Law Research Paper No. 951245
In the wake of the Supreme Court's decision that the United States Government must provide adequate procedures to assess the appropriateness of continued detention of individuals held by the Government at Guantánamo Bay, Cuba, the Department of Defense established the Combatant Status Review Tribunals (CSRT) to perform this mission. This Report is the first comprehensive analysis of the CRST proceedings. Like prior reports, it is based exclusively upon Defense Department documents. Most of these documents were released as a result of legal compulsion, either because of an Associated Press Freedom of Information request or in compliance with orders issued by the United States District Court in habeas corpus proceedings brought on behalf of detainees. Like prior reports, No Hearing Hearings is limited by the information available.
The Report documents the following:
1. The Government did not produce any witnesses in any hearing and did not present any documentary evidence to the detainee prior to the hearing in 96% of the cases.
2. The only document that the detainee is always presented with is the summary of classified evidence, but the Tribunal characterized this summary before it as conclusory and not persuasive.
3. The detainee's only knowledge of the reasons the Government considered him to be an enemy combatant was the summary of the evidence.
4. The Government's classified evidence was always presumed to be reliable and valid.
5. In 48% of the cases, the Government also relied on unclassified evidence, but, like the classified evidence, this unclassified evidence was almost always withheld from the detainee.
6. At least 55% of the detainees sought either to inspect the classified evidence or to present exculpatory evidence in the form of witnesses and/or documents.
a. All requests by detainees to inspect the classified evidence were denied.
b. All requests by detainees for witnesses not already detained in Guantánamo were denied.
c. Requests by detainees for witnesses detained in Guantánamo were denied in 74% of the cases. In the remaining 26% of the cases, 22% of the detainees were permitted to call some detainee-witnesses and 4% were permitted to call all of the detainee-witnesses that they requested.
d. Among detainees that participated, requests by detainees to produce documentary evidence were denied in 60% of the cases. In 25% of the hearings, the detainees were permitted to produce all of their requested documentary evidence; and in 15% of the hearings, the detainees were permitted to produce some of their documentary evidence.
7. The only documentary evidence that the detainees were allowed to produce was from family and friends.
8. Detainees did not always participate in their hearings. When considering all the hearings, 89% of the time no evidence was presented on behalf of the detainee.
9. The Tribunal's decision was made on the same day as the hearing in 81% of the cases.
10. The CSRT procedures recommended that the Government have an attorney present at the hearing; the same procedures deny the detainees any right to a lawyer.
11. Instead of a lawyer, the detainee was assigned a personal representative, whose role, both in theory and practice, was minimal.
12. With respect to preparation for the hearing, in most cases, the personal representative met with the detainee only once (78%) for no more than 90 minutes (80%) only a week before the hearing (79%).
13. At the end of the hearing, the personal representative failed to exercise his right to comment on the decision in 98% of the cases,
a. During the hearing; the personal representative said nothing 12% of the time.
b. During the hearing; the personal representative did not make any substantive statements in 36% of the cases; and
c. In the 52% of the cases where the personal representative did make substantive comments, those comments sometimes advocated for the Government.
14. In three of the 102 CSRT returns reviewed, the Tribunal found the detainee to be not/no-longer an enemy combatant. In each case, the Defense Department ordered a new Tribunal convened, and the detainee was then found to be an enemy combatant. In one instance, a detainee was found to no longer be an enemy combatant by two Tribunals, before a third Tribunal was convened which then found the detainee to be an enemy combatant.
15. When a detainee was initially found not/no-longer to be an enemy combatant:
a. The detainee was not told of his favorable decision;
b. There is no indication that the detainee was informed of or participated in the second (or third) hearings;
c. The record of the decision finding the detainee not/no-longer to be an enemy combatant is incomplete.
Number of Pages in PDF File: 43
Keywords: Guantanamo, CRST, habeas, classified evidence, hearings,detainee, enemy combatants, Hamdi, Rasul, recorder, Combantant Status Review Tribunal, personal representative, tribunal, military courts, Guantánamo, FOIA, evidence, unclassified evidence, not reasonably available, due process, witnesses
Date posted: December 13, 2006