In the last Guantanamo go-round, Hamdan v. Rumsfeld, the Supreme Court said that Geneva's protections apply to the detainees. Article 5 of Geneva provides captured alleged combatants with a hearing before a "competent" military tribunal, which determines their status—are they really the enemy? In this week's cases ( Boumediene v. Bush and Al-Odah v. Bush), the government says that the detainees have gone before a tribunal "that afford protections greater than those outlined by Article 5." There's that comparative spin again, this time even in italics. But the amicus brief of a group of retired military officers explains why greater should really be a hell of a lot lesser.
In the past, the military has dealt with captured combatants ("all persons taken into custody by U.S. forces") using procedures outlined in an Army regulation called 190-8. For the Guantanamo detainees, the administration set up a new creature, the Combatant Status Review Tribunal. "The CSRTs depart significantly from standards followed by the military for decades," the retired military officers write.
They map out serious deficiencies. The first is "command influence—the pressure that superiors exert over military subordinates," which "is so harmful to the objectivity and the validity of any military tribunal that it is prohibited by the Code of Military Justice." And yet command influence is "inextricably intertwined" with the CSRTs. This is the case to such a degree that in some of the unusual cases in which a CSRT panel found a detainee not to be an enemy combatant, a higher-ranking officer demanded a do-over.
The second difference between the CSRTs and traditional military practice is that the CSRTs admit evidence against the detainee that has been obtained through coercion—testimony given under torture. Article 5 prohibits this, for all the obvious reasons, and the 190-8 tribunals have not allowed it. Then there is the question of what it means when the findings of a CSRT turn out to be wrong. Traditionally, prisoners of war have been useful to us only as long as the hostilities have lasted; enemy combatants, whatever the reason for their detention, were released at the end of the conflict. But the war on terror, according to the administration, has no end date.
Finally, the retired officers point out that the stripped-down nature of the CSRTs—defendants also aren't allowed to have lawyers, and in another contradiction of Article 5, the panels are instructed to presume that the government's evidence is "genuine and accurate"—is far less justified because none of the procedures are about battlefield sorting. In the past, the 190-8 tribunals had to operate in the midst of armed conflict, for example in Vietnam. The CSRTs are assessing, with no huge urgency, the status of people who have been held for years and are far removed from any theater of war. Shouldn't the CSRTs be more careful, not less? And yet the retired officers conclude, "Taken together, these differences show that CSRT proceedings are little more than a facade, without even the substantive protections that ensure compliance with Article 5 of the Geneva Conventions and that invest 190-8 tribunals with legitimacy in the eyes of the world."
So much for the government's historical claims and comparisons. But don't expect any of these analyses to matter when Solicitor General Paul Clement argues against the detainees tomorrow. If history is any guide, the administration's lawyers won't let the facts stop them.