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


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."