No-hearing hearings - AbsoluteAstronomy.com

No-hearing hearings is the title of a study published by Professor Mark P. Denbeaux of the Seton Hall University School of Law

Seton Hall University School of Law

The Seton Hall University School of Law is part of Seton Hall University, and is located in downtown Newark, New Jersey. Seton Hall Law School is the only private law school in New Jersey, and is the top-ranked of the three law schools in the state...

, his son Joshua Denbeaux, and some of his law students, on October 17, 2006.

The study analyzes the Combatant Status Review Tribunal

Combatant Status Review Tribunal

The Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...

s (CSRT's) for 393 detainees held on Guantánamo Bay

Guantanamo Bay Naval Base

Guantanamo Bay Naval Base is located on of land and water at Guantánamo Bay, Cuba which the United States leased for use as a coaling station following the Cuban-American Treaty of 1903. The base is located on the shore of Guantánamo Bay at the southeastern end of Cuba. It is the oldest overseas...

.
The study is notable because it is the first to document that the OARDEC convened multiple Tribunals for some captives when their original Tribunals determined they should not have been classified as enemy combatants.

The Denbeauxs represent two detainees at Guantánamo Bay.

The study

The report was based upon information given by lawyers for 102 Guantanamo detainees and transcripts of the tribunals which were released by the government under a Freedom of Information Act law-suit filed by the Associated Press.
It analyzes the background of prisoners on Guantánamo Bay and how their status had been determined.

Combatant Status Review Tribunals

The Combatant Status Review Tribunals were held by the United States Department of Defense

United States Department of Defense

The United States Department of Defense is the U.S...

between July 8, 2004 through March 29, 2005, for the purpose of confirming whether the detainees they had been holding in Guantanamo Bay detainment camp

Guantanamo Bay detainment camp

The Guantanamo Bay detention camp is a detainment and interrogation facility of the United States located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees from the war in Afghanistan and later Iraq...

s in Cuba had been correctly classified as unlawful combatant

Unlawful combatant

An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.The Geneva Conventions apply in wars...

s.

Following the Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...

ruling (November 2004) the Bush administration began using Combatant Status Review Tribunals to determine the status of detainees. By doing so the obligation under Article 5 of the GCIII was to be addressed.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

These hearings were conducted based on the assertion by the Bush administration

George W. Bush administration

The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...

that detainees in the war in Afghanistan

War in Afghanistan (2001–present)

The War in Afghanistan began on October 7, 2001, as the armed forces of the United States of America, the United Kingdom, Australia, and the Afghan United Front launched Operation Enduring Freedom...

were not eligible for prisoner of war

Prisoner of war

A prisoner of war or enemy prisoner of war is a person, whether civilian or combatant, who is held in custody by an enemy power during or immediately after an armed conflict...

status according to the terms of Article 2 of the GCIII and therefore designated unlawful combatant

Unlawful combatant

.

Since the CSRT's do not qualify as competent tribunal

Competent tribunal

Competent Tribunal is a term used Article 5 paragraph 2 of the Third Geneva Convention, which states:-ICRC commentary on competent tribunals:...

s the study compares them to civilian trials under U.S. criminal law

Criminal law

Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

Findings in the report

The analysis by Denbeaux et al. led to the following conclusions:

The government did not produce any witnesses in any hearing.
The military denied all detainee requests to inspect the classified evidence against them.
The military refused all requests for defense witnesses who were not detained at Guantanamo.
In 74 percent of the cases, the government denied requests to call witnesses who were detained at the prison.
In 91 percent of the hearings, the detainees did not present any evidence.
In three cases, the panel found that the detainee was “no longer an enemy combatant,” but the military convened new tribunals that later found them to be enemy combatants.

According to Associated Press Mark Denbeaux

Mark Denbeaux

Mark P. Denbeaux is a law professor at Seton Hall University School of Law, Director of the Center for Policy and Research at Seton Hall Law School, author of a standard law text, and practicing attorney of counsel in the family law firm of Denbeaux & Denbeaux.Denbeaux served as senior attorney in...

said “These were not hearings. These were shams,” and called the hearings a show trial

Show trial

The term show trial is a pejorative description of a type of highly public trial in which there is a strong connotation that the judicial authorities have already determined the guilt of the defendant. The actual trial has as its only goal to present the accusation and the verdict to the public as...

Comment

With the Military Commissions Act

Military Commissions Act of 2006

The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...

in mind the Washington Post stated:

If the actual trials of the detainees are as empty and shallow and pre-ordained as were the Status Review Tribunals there is every reason to be mortified at the prospect -- made real by the legislation -- that the federal courts will be frozen out of vital oversight functions. If a regular trial court proceeding were this shoddy, this unwilling to perform a truth-seeking function, this unable to achieve a fair process, the judge presiding over it would be impeached.

Nat Hentoff opined in the Village Voice that

conditions of confinement and a total lack of the due process that the Supreme Court ordered in Rasul v. Bush
Rasul v. Bush
Rasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...

and Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...

makes US government officials culpable for war crimes. His article continues to state:

Co-author Joshua Denbeaux tells me: "The government's own documents proved that the government's claims that the prisoners were the 'worst of the worst' was a false and shameful public relations ploy . . . We hope that our reports will convince Congress to amend the Military Commissions Act and restore federal jurisdiction." If that happens, the prisoners could contest their conditions of confinement, their imprisonment, and their sentences.

Captives named in the study

name	notes
Faruq Ali Ahmed Faruq Ali Ahmed -Mentioned in the "No-hearing hearings" study:According to the study entitled, No-hearing hearings, Faruq Ali Ahmed's Personal Representative recorded his or her objections to the Tribunal's conclusion:-Administrative Review Board hearing:...	According to the "No-hearing hearings" study his Personal Representative Personal Representative (CSRT) The Personal Representative is an officer who serves before the Combatant Status Review Tribunals, convened for the captives the United States holds in extrajudicial detention in the Guantanamo Bay detention camps, in Cuba.-History of the Tribunals:... told his Tribunal that he disagreed with their ruling.
Ali Ahmad Muhammad Al Rahizi Ali Ahmad Muhammad Al Rahizi -Conclusion:Ali Ahmad Muhammad Al Rahizi's Tribunal based its conclusion on classified evidence.His Tribunal unanimously concluded that he had properly been deternmined to have been an "enemy combatant".-Ali Ahmed Mohammed Al Rezehi v. George W. Bush:...	According to the "No-hearing hearings" study his Personal Representative Personal Representative (CSRT) The Personal Representative is an officer who serves before the Combatant Status Review Tribunals, convened for the captives the United States holds in extrajudicial detention in the Guantanamo Bay detention camps, in Cuba.-History of the Tribunals:... told his Tribunal that Al Rahizi made an informed choice to not attend his Tribunal although the record showed he only met with him for 24 minutes, did not read the Tribunals procedures to him, and did not leave a copy behind for Al Rahizi to read.
Musa Abed Al Wahab Musa Abed Al Wahab -Mentioned in the "No-hearing hearings" study:According to the study entitled, No-hearing hearings, there was an anomaly about the dates on the documents in his CSRT dossier....	On October 20, 2004 Al Wahab's Personal Representative Personal Representative (CSRT) The Personal Representative is an officer who serves before the Combatant Status Review Tribunals, convened for the captives the United States holds in extrajudicial detention in the Guantanamo Bay detention camps, in Cuba.-History of the Tribunals:... told his Tribunal Al Wahab had decided not to attend. However the Detainee Election Form his Personal Representative filled out said he didn't meet with Al Wahab until five days later, on October 25, 2004. The study noted:
Allal Ab Aljallil Abd Al Rahman Abd Allal Ab Aljallil Abd Al Rahman Abd -Mentioned in the "No-hearing hearings" study:According to the study entitled, No-hearing hearings, Al Rahman Abd's Tribunal was an instance where a detainee had his requests for exculpatory evidence arbitrarily refused, in violation of the orders that established the Tribunals:Al Rahman Abd wanted...	The "No-hearing hearings" study reported that his Tribunal President Tribunal President (CSRT) The Combatant Status Review Tribunal the US Department of Defense commissioned, like the Tribunals described in Army Regulation 190-8, which they were modeled after, were three member panels, led by a Tribunal President.-History of the Tribunals:... deemed hospital records that would provide an alibi for him, during the time he was alleged to have been in Afghanistan, participating in terrorist activities were "not reasonably available".
Adnan Farhan Abdul Latif	The "No-hearing hearings" study reported that Al Ajmi was the first captive to have a Tribunal convened. The study observed the Al Ajmi's only met with him once, for ten minutes. Al Ajmi did not attend his Tribunal.
Hassan Anvar Hassan Anvar Anwar Hassan is an Uyghur refugee who was wrongly imprisoned for more than seven years in the United States Guantanamo Bay detention camps.Hassan is one of the 22 Uighurs held in Guantanamo for many years despite it became clear early on that they were innocent.-Combatant Status Review...	The "No-hearing hearings" study documents that Hassan Anvar was one of the Gunatnamo captives whose original Tribunal initially determined that he had not been an "enemy combatant" in the first place, only to have later Tribunals convened to overturn that determination, and confirm his enemy combatant status.
Bahtiyar Mahnut Bahtiyar Mahnut -Transcript:Mahnut participated in his Combatant Status Review Tribunal.His Tribunal convened on 23 October 2004 and 27 October 2004.On March 3, 2006, in response to a court order from Jed Rakoff the Department of Defense published an eighteen page summarized transcript from his Combatant Status...	The "No-hearing hearings" study criticized Mahnut's Tribunal President Tribunal President (CSRT) The Combatant Status Review Tribunal the US Department of Defense commissioned, like the Tribunals described in Army Regulation 190-8, which they were modeled after, were three member panels, led by a Tribunal President.-History of the Tribunals:... for arbitrarily ruling that Mahnut's witness requests would be repetitious.
Mohamed Atiq Awayd Al Harbi Mohamed Atiq Awayd Al Harbi - Mentioned in the "No-hearing hearings" study :According to the study entitled, No-hearing hearings, Al Harbi was an example of a captive who was arbitrarily denied the opportunity to present exculpatory documents to his Tribunal.The study quoted Al Harbi:...	The "No-hearing hearings" study reported that Al Harbi was an example of a captive whose request for exculpatory evidence was not satisfied.
Faiz Mohammed Ahmed Al Kandari Faiz Mohammed Ahmed Al Kandari Fayiz Mohammed Ahmed Al Kandari is a Kuwaiti citizen who has been detained in Guantanamo Bay since 2002. He has been charged with war crimes.The US Department of Defense reports he was born on June 3, 1975 in Kuwait City....	The "No-hearing hearings" study quoted a comment from Commander Commander Commander is a naval rank which is also sometimes used as a military title depending on the individual customs of a given military service. Commander is also used as a rank or title in some organizations outside of the armed forces, particularly in police and law enforcement.-Commander as a naval... James R. Crisfield made, with regard to Al Kandari's Tribunal, on the peculiarities of the Tribunals use of "hearsay evidence".
Abdullah Mohammad Khan Abdullah Mohammad Khan -Transcript:Khan chose to participate in his Combatant Status Review Tribunal.On March 3, 2006, in response to a court order from Jed Rakoff the Department of Defense published an eight page summarized transcript from his Combatant Status Review Tribunal....	The "No-hearing hearings" study documents that Abdullah Mohammad Khan was one of the Gunatnamo captives whose original Tribunal initially determined that he had not been an "enemy combatant" in the first place, only to have later Tribunals convened to overturned that determination, and confirm his enemy combatant status.
Abdel Hamid Ibn Abdussalem Ibn Mifta Al Ghazzawi	The "No-hearing hearings" study documents that Al Ghazzawi was one of the Gunatnamo captives whose original Tribunal initially determined that he had not been an "enemy combatant" in the first place, only to have later Tribunals convened to overturned that determination, and confirm his enemy combatant status.
Emad Abdalla Hassan	The "No-hearing hearings" criticized Emad Abdalla Hassan's Tribunal for failing to find his passport, which would have confirmed his alibi.
Khi Ali Gul Khi Ali Gul Khi Ali Gul is a citizen of Afghanistan currently held in extrajudicial detention in the United States Guantanamo Bay detainment camps, in Cuba.The Department of Defense estimates that he was born in 1963, in Khowst, Afghanistan....	The study entitled, "No-hearing hearings", cited Khi Ali Gul as an example of a captive who was unreasonably denied the testimony of exculpatory witnesses.
Abdul Al Salam Al Hilal Abdul Al Salam Al Hilal Abdul Al Salam Al Hilal is a citizen of Yemen, held in extrajudicial detention in the United States Guantanamo Bay detainment camps, in Cuba.The Department of Defense lists his place of birth as unknown and his date of birth as January 30, 1968....

The study

Combatant Status Review Tribunals

Findings in the report

Comment

Captives named in the study

See also