User:Geo Swan/working/ar 190-8

This working document is my comparison of how closely the Combatant Status Review Tribunals followed Army Regulation 190-8.

The source document, from which this section is excerpted, can be downloaded from this Army web page. The URL of the document is http://www.army.mil/usapa/epubs/pdf/r190_8.pdf. The excerpt is from pages 6, 7 of 86.

1-5 General protection policy

Page 5

a. U.S. policy, relative to the treatment of EPW, CI and RP in the custody of the U.S. Armed Forces, ias as follows:

1. All persons captured, detained, interned, or otherwise held in U.S. Armed Forces custody during the course of conflict will be given humanitarian case and treatment from the moment they fall into the hands of U.S. forces until final release or repatriation.
2. All persons taken into custody by U.S. forces will be provided with the protections of the GPW until some other legal status is determined by competent authority.
3. The punishment of EPW, CI and RP known to have, or suspected of having, committed serious offenses will be administered IAW due process of law and under legally constituted authority per the GPW, GC, the Uniform Code of Military Justice and the Manual for Courts Martial.
4. The inhumane treatment of EPW, CI, RP is prohibited and is not justified by the stress of combat or with deep provocation. Inhumane treatment is a serious and punishable violation under international law and the Uniform Code of Military Justice (UCMJ).

1-6. Tribunals

• a. In accordance with Article 5, GPW, if any doubt arises as to whether a person, having committed a belligerent act abd been taken into custody by the US Armed Forces, belongs to any of the categories enumerated in Article 4, GPW, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
• b. A competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status who has committed a belligerent act or has engaged in hostile activities in aid of enemy armed forces, and who asserts that he or she is entitled to treatement as a prisoner of war, or concerning whom any doubt of a like nature exists.
• c. A competent tribunal shall be composed of three commissioned officers, one of whom must be of field grade. The senior officer shall serve as President of the Tribunal. Another non-voting officer, preferably an officer in the Judge Advocate General Corps, shall serve as the recorder.
• d. The Convening authority shall be a commander exercising general courts-martial convening authority.
• e. Procedures.
  1. Members ... shall be sworn...
  2. A written record shall be made of proceedings.
  3. Proceeding shall be open except for deliberation and voting by the members and testimony or other matters which would compromise security if held in the open.
  4. Persons ... shall be advised of their rights...
  5. Persons whose status is to be determined shall be allowed to attend all open sessions and will be provided with an interpreter if necessary.
  6. Persons whose status is to be determined shall be allowed to call witnesses if reasonably available, and to question those witnesses call by the Tribunal. Witnesses shall not be considered reasonably available if, as determined by their commanders, their presence at a hearing would affect combat or support operations. In these cases, written statements, preferably sworn, may be submitted and considered as evidence.
  7. Persons whose status is to be determined have a right to testify or otherwise address the Tribunal.
  8. Persons whose status is to be determined may not be compelled to testify before the Tribunal.
  9. Following the hearing of testimony and the review of documents and other evidence, the Tribunal shall determine the status of the subject of the proceeding in closed session by majority vote. Preponderance of evidence shall be the standard used in reaching this determination.
  10. A written report of the tribunal decision is completed in each case. Possible board determinations are:
      • (a) EPW.
      • (b) Recommended RP, entitled to EPW protections, who should be considered for certification as a medical, religious, or volunteer aid society RP.
      • (c) Innocent civilian who should be immediately returned to his home or releasedl
      • (d) Civilian Internee who for reasons of operational security, or probable cause incident to criminal investigation, should be detained.
• f. The recorder shall prepare the record of the Tribunal within three work days of the announcement of the tribunal's decision. The record will then be forwarded to the first Staff Judge Advocate in the internment facility's chain of command.
• g. Persons who have been determine by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceeding to determine what acts they have committed and what penalty should be imposed.The record of every Tribunal proceeding resulting in a determination denying EPW status shall be reviewed for legal sufficiency when the record is received at the office of the Staff Judge Advocate for the convening authority.

Glossary

Page 37

Other Detainee (OD)
Persons in the custody of the U.S. Armed Forces who have not been classified as an EPW (article 4, GPW), RP (article 33, GPW), or CI (article 78, GC), shall be treated as EPWs until a legal status is ascertained by competent authority.

Second crack...

Army Regulations 190-8: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, are notable because they embody the rules by which United States armed forces comply with its obligations as a signatory to the Geneva Conventions.

Section 1-6, Tribunals, and the Combatant Status Review Tribunals, in Cuba

Rear Admiral James M. McGarrah, Director of the Office of the Administrative Review of the Detention of Enemy Combatants (OARDEC), testified before the Senate Judiciary Committee, on July 14 2005, about the Combatant Status Review Tribunals that the cases of the remaining detainees in the Guantanamo Bay detainment camps, in Cuba. Section 1-6 of the regulation sets out the details of how the U.S. military should hold and convene Tribunals to determine whether a captive was entitled to the protections of Prisoner of War status, or whether they were entitled to protection, under the Geneva Conventions, as a civilian refugee, or whether they somehow violated the laws of war. In [[article five of the third Geneva Convention these tribunals are described as competent tribunals.

McGarrah told the Senate Committee that the CSRTs were modeled after the Tribunals described in section 1-6 of the regulation.

AR 190-8.1.6 Tribunal	Combatant Status Review Tribunal	Administrative Review Board hearing
Described as an "administrative" procedure, not a "judicial" procedure -- so captives are not entitled to legal advice or representation.	Described as an "administrative" procedure, not a "judicial" procedure -- so captives are not entitled to legal advice or representation.	Described as an "administrative" procedure, not a "judicial" procedure -- so captives are not entitled to legal advice or representation.
Mandate is to determine whether a captive is entitled to: protection, under the Geneva Conventions, as a Prisoner of War, Protection, under the Geneva Conventions, as a civilian refugee, not protected by the Geneva Conventions against trial, and punishment, for committing war crimes. The trial, if any, would have to be before the same kind of established court or court martial a US GI would be tried under. Captive would still be protected against torture, abuse, sexual or religous humiliation.	Mandate is to review whether an earlier, secret, informal determination that the captive met a new definition of enemy combatant was correct. The CSRT were not authorized to determine whether captives were entitled to the protections of POW status. President Bush had already stripped the detainees from the protections of the Geneva Conventions. Detainees who were determined not to bave been enemy combatants after all, were not immediately released to their home countries. Some, like Sami Al Laithy, were not even released from solitary confinement.	Mandate is to make recommendation as to whether the detainees continue to represent a threat to US national security, or continued to serve as a valuable source of intelligence, and should continue to be detained by the USA. Alternatively the Board could recommend that the detainee be released, or repatriated to the custody of security officials back in their home country. The Board was not authorized to determine whether the detainee was entitled to the protections of POW status. The Board was not authorized to determine whether the detainee had been correctly classified as an enemy combatant. Most of those recommended for release or repatriation were not promptly released or repatriated.
Decision made by three commissioned officers, a President, and two members. The President is always a field grade officer.	Recommendation made by three officers, a President, and two members. The recommendation was made to the Secretary of the Navy, who made the final decision. The President is always a field grade officer.	Recommendation made by three officers, a Presiding Officer, and two members. The recommendation was made to the Secretary of the Navy, who made the final decision. The Presiding Officer is always a field grade officer.
A fourth officer assembles the evidence on which the captive's status will be determined. It is also this officer's responsibility to assemble a record of the Tribunal's decision to be filed with the unit's first JAG officer.	A fourth officer, known as the "Recorder", assembled the summaries of the evidence, largely from classified interrogation reports. It is also this officer's responsibility to assemble a record of the Tribunal's decision.	A fourth officer, known as the "Designated Military Officer", assembled the summaries of the evidence, largely from classified interrogation reports. The D.M.O. was not charged with the responsibility of recording the hearings.
-	A fifth officer, known as the captive's "Personal Representative", is to meet with the detainee, and explain the CSRT procedure to him, and attempt to learn enough about his story to present it to the Tribunal if he changes his mind about attendening.	A fifth officer, known as the captive's "Assisting Military Officer", is to meet with the detainee, and explain the ARB procedure to him, and attempt to learn enough about his story to present it to the Board if he changes his mind about attendening.
-	-	A sixth officer, known as the "Recorder", is charged with the responsibility of recording the hearing.
The captive is entitled to see the evidence against them. The captive is entitled to testify on his or her behalf The captive is entitled to call reasonably available witnesses. and to call for reasonably available documents to be produced.	CSRT detainees were not entitled to see any of the evidence against them. CSRT detainees were entitled to see allegations summarized from the classified evidence. Some of the allegations remained classified, and the detainee had no opportunity to hear them or refute them. The Recorder and Tribunal President were often mistaken as to whether the witnesses the detainee requested were, or were not, also detained at Guantanamo. Detainees were told that those witnesses were not "reasonably available", when they were, in fact, also detained at Guantanamo. On December 15 2004 a policy change was instituted, disallowing detainees held in the portion of the camp devoted to compliant prisoners from questioning detainees held in the portion of the camp devoted to non-compliant prisoners, and vice versa. Their testimony was still allowed, but only through a statement taken by the Personal Representative. The Tribunal President had the authority to make the determination as to whether the detainee's witnesses would be "relevant". They were not obliged to explain the reasoning behind their determination. If the Tribunal President determined that a witness's testimony would be relevant, and the Tribunal's President was under the impression that the witness was not present at Guantanamo: A request was supposed to be sent to the U.S. State Department. The request to the State Department was then supposed to be passed on to the embassy of the country the Tribunal's President guessed the witness was to be found in. The State Department was supposed to request the officials of that country's embassy to find the address of the detainee's witness. If the officials of the country the Tribunal President guessed the detainee's witnesses were to be found replied with an address, steps were supposed to have been made to take a statement of the witness's testimony. This request procedure turned out to be a total failure. No testimony was taken from any of the detainees' off-island witnesses.	As in the CSRT the detainees were not entitled to see any of the evidence against them. As in the CSRT the detainees were not

about the Combatant Status Review Tribunals (CSRT), held in the Guantanamo Bay detainment camps, in Cuba, from July 2004 to March 2005. McGarrah testified that, to take into account the concerns of United States Supreme Court rulings the CSRT were modelled after Army Regulations 190-8 (Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees), subchapter 1-6, Tribunals.

2006-11-10

On March 3 2006, after exhausting all it legal appeals, the US Department of Defense was forced to comply with a court order and release information about the identity of the captives held in extrajudicial detention in the Guantanamo Bay detainment camps, in Cuba. The DoD released thousands of pages of documents prepared for, or arising from, the captives' Combatant Status Review Tribunals and Administrative Review Board hearings.

President Bush had ruled that no captive taken in the "War on Terror" would be entitled to the protections guaranteed by the Geneva Conventions. In the summer of 2004 the US Supreme Court ruled that the Bush administration could not deny the detainees a chance to learn of, and challenge, the evidence against them.

The Supreme Court's recommendations

The Supreme Court recommended that the DoD offer the detainees a chance to learn of, and challenge, the evidence against them through a procedure similar to the Tribunals described in Army Regulation 190-8. The Tribunal subsection of Army Regulation 190-8 was designed to lay out the details for how the US militaary could fulfill the USA's obligation to convene what the Geneva Conventions call a "competent tribunal". The Geneva Conventions obliges signatories to convene a "competent tribunal" to make a determination over a captive's status every time there is any doubt as to which Geneva Convention protections they qualify for.

The protections guaranteed by Army Regulation 190-8

The Tribunals described in Army Regulation 190-8 are authorized to conclude that a captive belonged to one of four classes:

• AR 190-8 Tribunals were authorized to conclude captives were lawful combatants, who were entitled to the protections of prisoner of war status.
• AR 190-8 Tribunals were authorized to conclude that captives were not combatants at all, but were civilians who should be freed to return to their civilian life, or if that was not safe because their home had been destroyed, or was in the middle of a battlefield, they should be classified as what the Geneva Convention calls "protected persons", who should be housed in a safe, clean, humane, refugee camp.
• AR 190-8 Tribunals were authorized to conclude that captives were civilians, who had exercised their legitimate right to defend their homes -- who should also be afforded the protections of prisoner of war status.
• Finally, AR 190-8 Tribunals were authorized to conclude that captives had commited war crimes, or otherwise violated the rules or conventions of war.

Both the Geneva Conventions, and Army Regulation 190-8, require the US military to give all captives the benefit of the doubt, and to give all captives the protections of prisoner of war status, until a competent tribunal had convened and concluding they should be given the greater protections guaranteed to civilian refugees, or that they did something that caused them to be stripped of the protections of prisoner of war status. as

The Combatant Status Review Tribunal procedure and "enemy combatant" status

The DoD implemented a procedure where the captives held in Guantanamo would have a limited ability to learn of the evidence against them, and a limited ability to challenge the evidence against them.

The Combatant Status Review Tribunals were closely modeled after the Tribunals described in Army Regulation 190-8. They both called for a three member panel of officers, to make the determination of the captive's status. They both required that the President of the panel be a "field grade" officer. They both had an officer who was responsible for preparing a dossier of the evidence on which the panel could base its determination. They both allowed the captive to appear before the panel, hear the evidence upon which the panel was going to base its decision, and challenge whatever portions of it were incorrect.

One key difference between the two procedures was that they were authorized to conclude. While the original AR 190-8 Tribunals were authorized to reach a conclusion as to whether a captive was or was not a lawful combatant, entitled to the protections of the Geneva Conventions, the Combatant Status Review Tribunals were only authorized to determine whether military intelligence analysts had previously correctly classified the captives

The Intelligence analysts had al