Author Archives: Michael Froomkin

Talkleft spots a Wall St. Journal article reporting that Guantanamo Hearings May Begin Today:

Under the procedure, which went under a dry run yesterday, with military personnel playing the part of detainees, prisoners will appear before a three-man panel of senior officers. That panel will examine the dossiers assembled after hours of interrogations, give the detainees a chance to speak and then determine whether they should be set free. The advocates will be U.S. government employees, who, unlike lawyers, will not be honor-bound to serve the best interests of their client.

…

Under the current plan, three separate tribunals will hear 72 cases a week so each detainee can get a hearing within four months. Unlike traditional civilian justice, the government will have one big advantage: The burden of proving innocence will rest with the detainees. Detainees won't get lawyers, but “personal representatives,” military officials without any legal background, who will offer advice to prisoners, lay out unclassified portions of their dossiers and help inmates make their case to the tribunal.

It's hard to tell without more direct information, but from the sound of it these status hearings may well suffice to meet our Geneva Convention obligations. Article 5 of the Third Geneva Convention states, “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy,” then “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. “

So the decision to hold the hearings, however belatedly, is actually a positive step, despite their being so limited and despite their being held in secret. Furthermore, in my opinion, attacks on this procedure as one-sided or unfair or lacking in due process miss the point: none of those 'defects' are actually problems in a Geneva Convention status hearing. They're just par for the course. (As noted below, these same defects become serious issues if (and only if) anyone tries to argue that the fact of the status hearing obviates the need for a full habeas hearing if the tribunal classifies the detainee as an unperson 'enemy combatant'.)

The hearings could, I imagine, produce one of three outcomes in each case: 1) “Detainee is freed,” 2) “Detainee is a POW,” 3) “Other” — a category that will be primarily what the administration calls enemy combatants, but might include a finding that a person is, say, a civilian suspected of criminal activity.

The first two categories are easy. We know how to free people, we purport to know how to treat POWs, and despite various bits of speculation by the right wing, I for one do not believe that a recognized POW will get any traction in our courts, even via habeas, unless he alleges something on the order of torture (and maybe not even then until after the war is over).

The legally interesting category is the third one.

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