Military Tribunals and Combatant Status Review Tribunals

Submitted by ntalanian@gsfund.org on

No More Guantánamos thanks Jeanne Herrick-Stare, creator of TorturesNotUs and now Policy Counsel for the Center for Victims of Torture, for her compilation and analysis of these materials. Reproduced with permission.

Ed. note:  For all cases before the federal courts (district, appellate, and Supreme Court), see the Court cases page.  This page deals only with military commission trials held at Guantánamo Bay under the Military Commission Act, and CSRT proceedings at Guantánamo Bay.
 
Click on a topic for information about:

 

Stay of military commission proceedings for 120 days:

  • 21 Jan 2009:  Responding to prosecution motion, initiated by the Obama administration, the military commission judge presiding over military commission proceedings at G'Bay has ordered all proceedings to be suspended for at least 120 days.  The motion argued that the new administration requested time to review the cases before the military commission.  Subsequently, all cases were stayed. 
  • 6 Feb 2009:  Army Col. James L. Pohl is Chief Justice of the military commissions at G'Bay and judge in the proceedings against Abd al-Rahim al-Nashiri, a detainee charged with crimes arising from alleged participation in the bombing of the USS Cole in Oct 2000. Col. Pohl initially denied the prosecutor's motion to stay proceedings, calling the motion "unpersuasive."  That order was overruled by the Judge Susan Crawford, chief Pentagon official for the military commission system, and Judge Pohl dismissed charges against al-Nashiri without prejudice to renewal.(Bullet)
 
Military Commissions Act:
Military Commissions Act of 2006 (PL 109-366) ("MCA").
Manual for Military Commissions (Executive Summary).
  • Oct. 2006:  Q&A backgrounder about military commissions by Human Rights Watch staff, including: What are military commissions? How do the military commissions authorized by the MCA differ from those struck down by the Supreme Court in Hamdan v. Rumsfeld? What rules of the MCA are of primary concern? 
  • CRS report:  The Military Commissions Act of 2006:  Analysis of Procedural Rules and Comparison with Previous Department of Defense rules and the Uniform Code of Military Justice  (CRS:  RL33688).
  
General information about the military commissions:
  • "Lawfare and Legal Ethics in Guantanamo" by David Luban, University Professor and Professor of Law and Philosophy, Georgetown university Law Center,  This article, forthcoming in Stanford Law Review, Vol. 60, Issue 6, examines government policies that have (intentionally or not) made it more difficult for lawyers to provide legal representation to Guantanamo prisoners.  Luban distinguishes three types of counsel:  civilian lawyers representing detainees in habeas cases, civilian defense counsel before the military commissions, and military (JAG) defense counsel for detainees brought before military commissions.  Anecdotal information as well as legal analysis and policy discussion.
  • 10 March 2008:  Human Rights First (HRF) report:  Coerced Evidence Contaminating Judicial System, Undermining Terrorist Prosecutions.  This comprehensive report charges that the introduction of coerced evidence, obtained through the use of official cruelty, into military commission trials at Guantanamo Bay is rapidly contaminating the justice system and jeopardizing the prospects for the successful prosecution of terrorists. 
  • 27 Feb 2008:  Letter from the American Bar Association (ABA) to the President expressing the strong concerns of the ABA that the military commission system at Guantanamo does not adhere to established principles of due process fundamental to our nation's concept of justice.
  • 25 Feb 2008.  Letter signed by 34 national bar associations from all over the world, calling for immediate closing of the Guantanamo Bay facility and repatriation of Omar Khadr, a Canadian imprisoned there for an event that occurred when he was 15 years old.
  • Feb 2008:  "A Call to Protect Civilian Justice:  Beware the Creep of Military Tribunals," an American Constitution Society issue brief by Anthony F. Renzo, Professor of Law, Vermont Law School.  
  • 21 Feb 2008:  Provocatively-titled, fact-based article explains the civilian control of the military tribunal process by political operatives in the Dept of Defense and the White House:  "The Great Guantanamo Puppet Theater" by Scott Horton.
  • 7 Feb 2008.  New report by Prof. Mark Denbeaux and his associates and colleagues at Seton Hall University School of Law, with implications for the impending 9/11 military tribunal proceedings: "Interrogation and Videotaping of Detainees in Guantanamo" includes documentation for the report's premise that more than 24,000 interrogations have been conducted at Guantanamo Bay and that each of them has been videotaped.  Some of the video tapes have been destroyed, as revealed by the military's meticulous records.  See Seton Hall U. press release with summary of the project's findings.
  • Dec. 2007.  HRF report on Mil Comm. Proposed Rules
  • 18 Jan. 2007.  Manual for Military Commissions, submitted by the Secretary of Defense to Congress in accordance with the Military Commissions Act of 2006.
 
Ongoing prosecutions under the MCA:
  • 11 Feb 2008:  Dept of Defense charged 6 detainees with murder for the 9/11 attack in the United States and referred the case to the convening authority (seeking the death penalty). Here are the official charge sheets from DOD (pgs. 24-88 list the names of all 2,973 killed in the 9/11 attacks).  Here's the DOD press release about the action. Those charged were:  (1) Kahlid Sheik Mohammed ("KSM");  (2) Walid Muhammad Salih Mubarek Bin 'Attash; (3) Ramzi Binalshibh; (4) Ali Abdul Aziz Ali; (5) Mustafa Ahmed Adam al Hawasi; and (6) Mohamed al Kahtani.
 
Omar Khadr is a Canadian national who was wounded and captured in Afghanistan at age 15, and was transferred to Guantanamo Bay (in 2002).  Omar is the son of Ahmed Said Khadr, a former financier for Osama bin Laden who was killed in 2003 during a raid on suspected terrorists in Pakistan. Omar Khadr is accused of throwing a grenade that killed a U.S. army sergeant in Afghanistan. He has been detained at Guantanamo since the fall of 2002, held as an adult, and treated as a high value intelligence detainee.  He is charged as an "enemy combatant" with killing one U.S. special forces officer and blinding another with a hand grenade in an Afghan firefight, among other charges. Click here for Human Rights Watch background material about Omar Khadr. 
(Bullet)(Bullet)    Charges against Khadr, previously dismissed on a procedural question, were reinstated in November 2007.  His defense attorney moved to dismiss war crimes and other charges, on the grounds that child soldiers are guaranteed special protection under a protocol, ratified by the United States in 2002, of the UN Convention on the Rights of the Child. 
(Bullet)(Bullet)    As of 13 March 2008, his military tribunal process faced yet another long delay, perhaps months long, when Khadr refused to cooperate in an appearance before the tribunal and his military defense counsel withdrew because of completion of defense counsel's military service.
 
Muhammad Jawad - Another detainee who was a juvenile at the time of his detention, Jawad is accused of throwing a grenade at a military vehicle in December 2002, wounding two U.S. soldiers and their Afghan interpreter.
  • 4 Feb 2009: The Court of Military Commission Review granted a motion for a 120-day delay in proceedings, in light of the Obama administration's task-force study of the military commissions and Guantanamo Bay.  Here's a summary of the case and its history, with links to court documents, from ScotusBlog. [Ed. note: Jawad also has a habeas petition before the federal D.C. district court.]
  • 28 Oct 2008:  His confession to the charges was excluded from his military commission proceedings because the military commission judge ruled that the confession was secured under torture. The prosecution filed a pre-trial appeal of this exclusion, filed with the Court of Military Commission Review.  U.S. v. Jawad (CMCR, No. 08-4).
  • Sept 2008, the prosecuting attorney in the Jawad prosecution, Lt. Col. Darrel Vandeveld, resigned because of a failure of due process: the exclusion of potentially exculpatory evidence.
 
Concluded military tribunal prosecutions:
 
Binyam Mohamed - 23 Feb 2009.  Mohamed, a native of Ethiopia but resident of Britain on 9/11, was released from G'Bay and flown to Britain.  His case was noteworthy for a number of factors. He was a determined hunger-striker who was dangerously thin. Charges against him had been reduced from being accused (with Padilla) of planning to explode a "dirty bomb" in the U.S. to material support for terrorism, arising from his admitted participation in training activities.  He was captured in Pakistan and transferred to Morocco, where he was held and tortured for 18 months before his transfer to G'Bay. The case has been a source of considerable diplomatic tension between the United States and Britain. Mohamed's attorneys in Britain brought an action claiming that he was tortured in detention orchestrated by the U.S. with British complicity.  In an opinion issued 4 Feb 2008, British court "reluctantly" withheld details concerning Mohamed's treatment while in detention in Morocco and at G'Bay, under threat from the Bush administration that it would cease to share intelligence information with Britain if its courts made what the Bush administration considered to be national security secret information.    
 
Salim Hamdan -  In the continuing military commission procedures against Hamdan, Osama bin Laden's former driver, prosecutors moved for reconsideration of Hamdan's sentence because the sentence included credit for time served.  The prosecution motion for reconsideration of sentence was denied.  Hamdan was transferred to a Yemeni detention facility to serve the remaining seven months of his sentence, after which he was released to his family 27 Dec 2008.
 
 
Combat Status Review Tribunals (CSRTs):