Making Sense of the Guantanamo Bay Tribunals

The following provides brief outlines of the military commissions, the combatant status review panels, and the administrative review procedures adopted by the U.S. Department of Defense (DOD) for use at Guantanamo Bay, Cuba.

I. Military Commissions  
Official Purpose: To prosecute non-U.S. citizens, who have allegedly participated in international terrorism against the United States, for war crimes or other offenses.  
Legal Basis: Military Order of November 13, 2001 authorized the military commissions. The DOD has released several orders and nine instructions setting out the applicable law and procedure for the commissions.  
Structure and Process: Each military commission shall consist of from three to seven members, all of whom must be current or retired members of the U.S. armed forces. The defendant must be represented by an assigned military defense counsel but is also permitted to hire a civilian defense lawyer at his own expense. The normal rules of procedure in a court martial do not apply in the military commissions. Hearsay evidence can be admissible. Decisions are based on a majority of commission members, except in death penalty cases, where a unanimous verdict is required. Cases are reviewed by a military review panel, but there is no appeal to a civilian court as is the case with courts martial. Final review rests with either the Secretary of Defense or the President.  
Current Status: Preliminary hearings by the military commissions are slated to begin during the week of August 23, 2004. To date, the administration has declared 15 detainees eligible for trial. In four cases, charges have been referred to the commissions.  
Human Rights Watch concerns:  
The military commissions fall far short of international due process standards. They:  
  • Deprive defendants of independent judicial oversight by a civilian court.
  • Restrict the defendant’s right to choose his lawyer.
  • Deprive defense counsel of the means to prepare an effective defense.
  • Improperly subject criminal suspects to military justice.
  • Prosecute prisoners-of-war in a manner that violates the 1949 Geneva Conventions.
  • Place review of important interlocutory questions with the charging authority.
  • Fail to guarantee that evidence obtained via torture or ill-treatment shall not be used.
  • Allow wide latitude to close proceedings and impose a “gag order” on defense counsel.
  • Deprive military defense counsel of normal protections afforded military lawyers from improper “command influence.”
  • Provide lower due process standards for non-citizens than for U.S. citizens.
II. Combatant Status Review Tribunals  
Official Purpose: To permit detainees at Guantanamo to contest their status as “enemy combatants.”  
Legal Basis: Deputy Secretary of Defense Order of July 7, 2004; Combatant Status Implementation Guidelines, July 30, 2004. The creation of these tribunals was a response to the U.S. Supreme Court decision in Rasul v. Bush, which held that U.S. courts had jurisdiction to hear claims from Guantanamo detainees challenging their detention.  
Structure and Process: According to the DOD, each detainee will be notified of the review of his detention as an “enemy combatant,” of the opportunity to consult with a personal representative, and of the right to seek review in U.S. courts. Each detainee will be assigned a military officer as a “personal representative,” who is not a lawyer, to assist in the tribunal process. Detainees will be afforded an opportunity to appear before and present evidence to a tribunal composed of three military officers. The tribunal will decide whether a preponderance of evidence supports the detainees claim that he is not an enemy combatant; there will be a rebuttable presumption in favor of the government’s evidence. If the tribunal determines that the detainee should no longer be classified as an enemy combatant, the Secretary of Defense will advise the Secretary of State, who will “coordinate the transfer of the detainee for release to the detainee’s country of citizenship or other disposition consistent with domestic and international obligations and U.S. foreign policy.”  
Current Status: The status review tribunals began on July 30, 2004. On August 13, 2004, the DOD announced that in four cases detainees were determined to be classified properly as enemy combatants and would not be released.  
Human Rights Watch concerns:  
The combatant status review tribunals:
  • Prejudge the detainees as “enemy combatants,” thereby keeping the tribunals from making determinations with full independence and impartiality.
  • Place severe limits on detainees’ ability to make their claims, including denial of assistance of counsel.
  • Erroneously adopt the U.S. government position that all enemy combatants at Guantanamo can still be held under the laws of war.
  • Do not recognize any legal obligation on the part of the U.S. government to conduct reviews of their detention nor any legal right of the detainees to such a review process.
III. Administrative Review Procedures  
Official Purpose: To determine annually whether each Guantanamo detainee remains a threat to the United States and its allies.  
Legal Basis: "Administrative Review Procedures for Enemy Combatants in the Custody of the Department of Defense at Guantanamo Bay Naval Base, Cuba," DOD Order, May 11, 2004.  
Structure and Process: According to the DOD, each detainee will have a formal opportunity each year to appear before a board of three military officers and explain why he believes that he should be released. He will be provided a military officer who is not a lawyer to assist him in his appearance. In addition, the review board will accept written information from the family and national government of the detainee. Based on this information, as well as submissions by other U.S. government agencies, the board will assess the current threat posed by the detainee, then recommend to a designated civilian defense official whether he should remain in detention. This official will then decide whether the detainee should remain in detention.  
Current Status: The DOD has indicated that these will proceed concurrently with the combatant status review tribunals, but a starting date has not been announced. On June 23, 2004, Defense Secretary Rumsfeld named Navy Secretary Gordon England as the designated civilian official to head the reviews.  
Human Rights Watch concerns:  
The administrative review procedures:
  • Reflect the U.S. government’s assumption that all those detained at Guantanamo are “enemy combatants” and that none are entitled to prisoner-of-war status.
  • Assume, erroneously, that all those held at Guantanamo can be detained under the laws of war; an unknown number of detainees were taken into custody where the laws of arm conflict did not apply.
  • Provide for only an annual review when the laws of war require reviews for security detainees at least every six months.
  • Place the burden of proof on the detainee to demonstrate why he is no longer a threat to the United States.
  • Limit the detainee’s access to relevant information.
  • Require family members to provide information through their governments even in cases where doing so would place the family at risk.
  • Allow the designated civilian official to override the panel’s recommendation based on his consultations with other agencies, such as the CIA, that occur entirely outside the panel process and about which the detainee will not learn, much less have the opportunity to rebut.