Combatant status review tribunals: flawed answers to the wrong question.

• Author: Blocher, Joseph

Prisoners of war (POWs) enjoy special rights under the Geneva Conventions that "enemy combatants" detained in Guantanamo do not have, including the right to be tried in the same courts and according to the same procedures as members of the detaining power's armed forces. (1) Under the Geneva Conventions, captured combatants are entitled to POW status until any doubt regarding their status has been properly adjudicated by a "competent tribunal." (2) The U.S. government (3) and several commentators (4) have argued that the Combatant Status Review Tribunals (CSRTs), which were established to determine the enemy combatant status of Guantanamo detainees and which completed their work in March 2005, properly adjudicated the POW status of the detainees. (5)

This Comment argues that the CSRTs were not competent to deny POW status because they were charged only with identifying enemy combatants, a broad category that by its own terms includes many POWs. Given the substantial overlap between the definitions of "enemy combatant" and "POW," a CSRT's affirmative enemy combatant determination actually supports a detainee's POW status. Thus, even after their enemy combatant status has been adjudicated by the CSRTs, Guantanamo detainees should still be treated as presumptive POWs.

Part I of this Comment discusses presumptive POW status and the historical role of tribunals in adjudicating that status. Part II explains how CSRTs depart from that tradition and why their enemy combatant determinations cannot be used to rebut the Geneva Conventions' presumption of POW status. The Comment concludes by suggesting solutions to the dilemma posed by the overlapping definitions of "enemy combatant" and "POW."

1. PRESUMPTIVE AND CONCLUSIVE POW STATUS

   The Geneva Convention Relative to the Treatment of Prisoners of War (GPW) governs the definition, classification, and treatment of POWs. (6) Under Article 5 of the GPW, captured combatants whose status is in doubt are entitled to POW status until a "competent tribunal" determines otherwise:

   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 [defining POWs], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. (7) Article 5 thus implicitly recognizes both presumptive POWs--detainees whose status is in question but who have not yet had an Article 5 hearing--and conclusive POWs, who have been expressly adjudicated as such. (8) Unless and until a competent tribunal determines otherwise, a detainee about whom any doubt exists remains a presumptive POW entitled to the full panoply of GPW rights.

   American military regulations and practice have historically recognized presumptive POW status. For instance, Army Regulation 190-8, which was "adopted to implement the Geneva Convention," (9) echoes the language of Article 5:

   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 treatment as a prisoner of war, or concerning whom any doubt of a like nature exists. (10) During the Vietnam War, the Army implemented Regulation 190-8 by requiring an "Article 5 tribunal" to determine the POW status of each captured Viet Cong belligerent. (11) Consistent with the GPW's recognition of presumptive POW status, the Army classified North Vietnamese and Viet Cong detainees as POWs until such a tribunal reached a contrary conclusion. (12) The United States continued to convene Article 5 tribunals to resolve doubts about the POW status of combatants captured during the conflict in Grenada (13) and the Persian Gulf War. (14)

2. THE INTERSECTION BETWEEN ENEMY COMBATANT AND POW STATUS

   At Guantanamo, the U.S. government has departed from its own long-held practice. Rather than convening Article 5 tribunals to verify detainees' POW status, the government has claimed that the CSRTs fulfilled Article 5's mandate. But Article 5 tribunals and CSRTs exist for different purposes and are charged with making different adjudications: whereas Article 5 tribunals exist to determine POW status, the CSRTs were created to classify enemy combatants. (15) The CSRTs did not--and were never asked to--determine detainees' POW status. Indeed, on at least one occasion, the Legal Advisor to the Combatant Status Review Tribunals upheld a CSRT's refusal to hear evidence relating to POW status because "Combatant Status Review Tribunals do not have the discretion to determine that a...