No-hearing hearings

No-hearing hearings is the title of a study published by Professor Mark P. Denbeaux of the Seton Hall University School of Law, his son Joshua Denbeaux, and some of his law students, on October 17, 2006.

The study analyzes the Combatant Status Review Tribunals (CSRT's) for 393 detainees held on Guantánamo Bay. 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

File:Trailer where CSR Tribunals were held.jpg

This is the trailer where the Combatant Status Review Tribunals were held. The detainee's hands and feet are shackled to a bolt in the floor in front of the white plastic chair. Three chairs were reserved for members of the press, but only 37 of the 574 Tribunals were observed.

Main article: Combatant Status Review Tribunal

The Combatant Status Review Tribunals were held by the United States Department of Defense between July 8, 2004 through March 29, 2005, for the purpose of confirming whether the detainees they had been holding in Guantanamo Bay detainment camps in Cuba had been correctly classified as unlawful combatants.

Following the Hamdi v. Rumsfeld 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 that detainees in the war in Afghanistan were not eligible for prisoner of war status according to the terms of Article 2 of the GCIII and therefore designated unlawful combatant.

Since the CSRT's do not qualify as competent tribunals the study compares them to civilian trials under U.S. criminal law.

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

Comment

With the Military Commissions Act 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 and Hamdan v. Rumsfeld

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

id	name	notes
32	Faruq Ali Ahmed	According to the "No-hearing hearings" study his Personal Representative told his Tribunal that he disagreed with their ruling.
45	Ali Ahmad Muhammad Al Rahizi	According to the "No-hearing hearings" study his Personal Representative 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.
58	Musa Abed Al Wahab	On October 20, 2004 Al Wahab's Personal Representative 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: "It is not clear how the personal representative could have advised the Tribunal that the detainee had affirmatively declined to participate when he had yet to meet with the detainee."
156	Allal Ab Aljallil Abd Al Rahman Abd	The "No-hearing hearings" study reported that his Tribunal President 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".
220	Abdallah Saleh Ali Al Ajmi	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.
250	Hassan Anvar	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.
277	Bahtiyar Mahnut	The "No-hearing hearings" study criticized Mahnut's Tribunal President for arbitrarily ruling that Mahnut's witness requests would be repetitious.
333	Mohamed Atiq Awayd 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.
552	Faiz Mohammed Ahmed Al Kandari	The "No-hearing hearings" study quoted a comment from Commander James R. Crisfield made, with regard to Al Kandari's Tribunal, on the peculiarities of the Tribunals use of "hearsay evidence".
556	Abdullah Mohammad Khan	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.
654	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.
680	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.
928	Khi Ali Gul	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.
1463	Abdul Al Salam Al Hilal

See also

• Agamben, Giorgio, Italian philosopher, known for his work on Homo sacer and the modern state of emergency
• Black sites, where "enemy combatants" are detained in a juridical "no man's land"
• Combatant Status Review Tribunal
• Command responsibility
• Criticisms of the War on Terrorism
• Ex parte Quirin
• Extraordinary rendition
• Franc-tireur
• Irregulars
• Jus ad bellum
• Jus in bello
• Military Commissions Act
• Third Geneva Convention
• Unitary Executive
• Unlawful combatant
• USA PATRIOT Act
• War on Terrorism