The Law of War

had not been complied with since a Combatant Status Review Tribunal could not be
considered a ‘competent tribunal’ pursuant to article 5 of the Third Geneva Convention.
James Crisfield, the legal advisor to the Tribunals, offered his legal opinion, that CSRT
"do not have the discretion to determine that a detainee should be classified as a
prisoner of war — only whether the detainee satisfies the definition of 'enemy
combatant'". Determining whether a captive should be classified as a prisoner of war is
the sole purpose of a competent tribunal.
Analysis of these Tribunals by two lawyers for Guananamo detainees, Professor Mark
P. Denbeaux of the Seton Hall University School of Law, his son Joshua Denbeaux, and
some of his law students resulted in a report called No-hearing hearings. In essence it
supports the criticism voiced above.
Military Commissions
As of 17 October 2006, when President Bush signed the Military Commissions Act of
2006 into law, Title 10 of the United States Code was amended to include a definition of
an "unlawful enemy combatant" as:
a person who has engaged in hostilities or who has purposefully and materially supported
hostilities against the United States or its co-belligerents who is not a lawful enemy combatant
(including a person who is part of the Taliban, al-Qaida, or associated forces); or a person who,
before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been
determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or
another competent tribunal established under the authority of the President or the Secretary of
Defense.
The definition of a lawful enemy combatant is also given, and much of the rest of the
law sets out the specific procedures for determining whether a given detainee of the
U.S. armed forces is an unlawful enemy combatant and how such combatants may or
may not be treated in general and tried for their crimes in particular. Among its more
controversial provisions, the law stipulates that a non United States citizen held as an
enemy combatant or is awaiting such determination may not seek habeas corpus relief.
Such detainees must simply wait until the military convene a detainee status review
tribunal (under the procedures described in the Detainee Treatment Act of 2005).
Immediately after Bush signed the Act into law, the U.S. Justice Department notified the
U.S. Court of Appeals for the District of Columbia that the Court no longer had
jurisdiction over a combined habeas case that it had been considering since 2004. A
notice dated the following day listed 196 other pending habeas cases for which it made
the same claim.
Of the first three war crimes cases brought against Guantanamo Bay detainees under
the Military Commissions Act, one resulted in a plea bargain and the two others were
dismissed on jurisdictional grounds.
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