No-hearing hearings

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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.^[1][2]

The study analyzes the Combatant Status Review Tribunals (CSRT's) for 393 detainees held on Guantánamo Bay.^[3] 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.

[edit] 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.^[1][2][3][4] It analyzes the background of prisoners on Guantánamo Bay and how their status had been determined.

[edit] Combatant Status Review Tribunals

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.^[5][6] Three chairs were reserved for members of the press, but only 37 of the 574 Tribunals were observed.^[7]

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.

[edit] Findings in the report

The analysis by Denbeaux et al. led to the following conclusions:^[1][2][3]

• 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.^[3]

[edit] Comment

With the Military Commissions Act in mind the Washington Post stated:^[4]

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.^[8] 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.

[edit] Captives named in the study

[edit] 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

[edit] References

1. ^ ^{a b c d e f g h i j k l m n o} Mark Denbeaux, Joshua Denbeaux, David Gratz, John Gregorek, Matthew Darby, Shana Edwards, Shane Hartman, Daniel Mann, Megan Sassaman and Helen Skinner. No-hearing hearings. Seton Hall University School of Law. Retrieved on April 2, 2007.
2. ^ ^{a b c} Nat Hentoff. "Bush's War Crimes Cover-up", Village Voice, December 8, 2006. Retrieved on April 2. 
3. ^ ^{a b c d} "Gitmo detainees denied witnesses: Lawyer calls legal proceedings ‘shams,’", MSNBC, November 17, 2006. Retrieved on April 2. 
4. ^ ^{a b} Andrew Cohen. "Gitmo Justice Is a Joke", Special to the Washington Post, November 30, 2006. Retrieved on April 2. 
5. ^ Neil A. Lewis. "Guantánamo Prisoners Getting Their Day, but Hardly in Court", New York Times, November 8, 2004. 
6. ^ "Inside the Guantánamo Bay hearings: Barbarian "Justice" dispensed by KGB-style "military tribunals"", Financial Times, December 11, 2004. 
7. ^ Annual Administrative Review Boards for Enemy Combatants Held at Guantanamo Attributable to Senior Defense Officials. United States Department of Defense (March 6, 2007). Retrieved on 2007-09-22.
8. ^ Nat Hentoff. "Our Own Nuremberg Trials", Village Voice, December 17, 2006. Retrieved on April 2.