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Characteristic

CSRT

Army Regulation 190-8 the internment facility's chain of command

Legal adviser: None for the

Legal Adviser: A JAG is available to Tribunal. The record of every advise the Tribunal on legal and Tribunal proceeding resulting in the procedural matters. The record of denial of POW status is reviewed for every Tribunal is reviewed for legal legal sufficiency when the record is sufficiency by a JAG. received at the office of the SJA for the convening authority.

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Witnesses

Detainee may call witnesses if they Detainee may call witnesses if they
are reasonably available and can are relevant and reasonably available,
question the witnesses called by the and can question the witnesses called
Tribunal. If requested witnesses are by the Tribunal. If requested
not reasonably available, written witnesses are not reasonably
statements are permitted.

available, written statements are
permitted. Telephonic or
videoconference testimony is also

permitted.
The commanders of military
witnesses determine whether they The President of the Tribunal
are reasonably available.

determines whether witnesses are
relevant and reasonably available.

CSRT

Same.

Preponderance of evidence

Majority vote.

There is a rebuttable presumption that the government evidence submitted by the recorder is genuine and accurate. Protected (POW) status not applicable. As to enemy combatant status, prior to the CSRT, presumably any battlefield and subsequent determinations of each Guantanamo detainee who was initially detained by DoD have found the detainee to be an enemy combatant.

The CSRT process is a fact-based proceeding to determine whether each detainee is still properly classified as an enemy combatant, and to permit each detainee the opportunity to contest such designation. Testimonial and written evidence is permitted.

Characteristic

Army Regulation 190-8

Detainee

Detainee may testify or otherwise testimony

address the Tribunal, but cannot be

compelled to testify. Standard of proof Preponderance of evidence.

Majority vote.

Presumption of status

A person shall enjoy the protection of the Third Geneva Convention until such time as his or her status has been determined by a competent tribunal.

Type of evidence considered. Is coercion evaluated?

Testimonial and written evidence is permitted.

AR 190-8 contains no requirement to evaluate whether statements were the result of coercion.

None.

Access to evidence by detainee

The Detainee Treatment Act (DTA) requires the CSRT to assess whether any statement being considered by the CSRT was obtained as result of coercion and the probative value, if any, of such statement. The detainee may review unclassified information relating to the basis for his or her detention. The detainee also has the opportunity to present reasonably available information relevant to why the detainee should

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Assistance provided to detainee

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A Personal Representative (PR) is provided to every detainee. The PR meets with the detainee to explain the CSRT process, assist the detainee in participating in the process, and assist the detainee in collecting relevant and reasonably available information in preparation for the CSRT. Under the Detainee Treatment Act and the Military Commissions Act, the Court of Appeals for the District of Columbia has the authority to determine if the detainee's CSRT was conducted consistent with the standards and procedures for CSRTS. The Court of Appeals also has the authority to determine whether those standards and procedures are consistent with the Constitution and laws of the United States, to the extent they are applicable at Guantanamo.

Responses of William H. Taft IV to questions submitted by

Senator Kyl 1. You state in you testimony that "identifying those terrorists we are entitled to detain because they have declared war on us is *** difficult. We should take advantage of the court's expertise in performing this task.” A. Do you believe that the federal judiciary has greater expertise

than does the military in determining whether an individual is an enemy combatant? B. Do you believe that the federal judiciary has a better under

standing than does the military of the nature of the Taliban and the Al Qaeda terrorist network and other groups fighting U.S. soldiers in Afghanistan and Iraq? 2. During questioning by Senator Durbin, Mr. Rivkin stated that CSRT hearings give a detainee a great deal more due process than does the typical Geneva Convention article V hearing. Mr. Rivkin stated that unlike CSRT hearings, Article V hearings do not provide the detainee with anyone who is assigned to assist him, Article V hearings do not require that all information in the government's possession pertaining to the detainee be assembled, and Article V hearings do not determine whether the detainee is "innocent” and should be released, but only whether the detainee should be held as an unlawful or lawful combatant. Mr. Rivkin also noted that Article V hearings offer the detainee no opportunity to present witnesses, and that such hearings typically do not take place until days or weeks after the capture. Do you have any reason to disagree with Mr. Rivkin's characterization of the nature of Article V. hearings?

3. Do you believe that habeas-litigation rights should be extended to alien enemy combatants who are captured and held in Iraq or Afghanistan?

4. Do you believe that, as part of CSRT or other military hearings to review their detention, enemy combatants held by the U.S. military in Iraq or Afghanistan should be: A. provided with counsel? B. provided with the right to compel witnesses to testify? C. provided with a right to access to the contents of classified evi

dence?

5. Do you believe that Johnson v. Eisentrager, 339 U.S. 763 (1950), was correctly decided?

Answer 1.A. Yes. The military's determinations have been made hastily and, upon review, it has developed that they were incorrect in dozens of cases-between five and ten percent of the time for persons held in Guantanamo.

Answer 1.B. No. The military has a better understanding of the nature of our enemies in Afghanistan and Iraq than federal judges do.

Answer 2. Mr. Rivkin correctly described the nature of an Article V hearing. CSRT hearings are more elaborate and their deterproceedings are more elaborate and their determinations more reliable than CSRT hearings.

Answer 3. No. As I stated in my testimony, if the courts were to interpret our statutes to extend habeas corpus jurisdiction to aliens in Iraq or Afghanistan, I would support legislation to amend the statutory provisions on which the courts relied for the conclusion.

Answer 4. A, B, and C. I would not extend these rights to person being held in Iraq or Afghanistan under U.S. law. Our forces in Iraq and Afghanistan should comply with Iraq and Afghan law in detaining persons in those countries. Answer 5. Yes, I believe Eisentrager was correctly decided.

Response to a question from Senator Biden 1. In your testimony, you were rightly concerned with the importance of demonstrating to the international community the legitimacy of the CSRT determinations. In light of that concern, would you consider the following procedural safeguards to be prudent improvements? Please elaborate as you see fit. 1) Amending 28 U.S.C. $ 2241 to grant habeas corpus rights to

alien detainees, rather than merely striking from the Military Commissions Act and Detainee Treatment Act the provisions

that deny those rights; 2) Allowing alien detainees to invoke habeas rights either after

their CSRT status determinations or after having been detained

for 60 days without such a determination; 3) Expanding the scope of judicial review the beyond constitu

tionality of CSRT procedures and the Tribunal's adherence to those procedures.

Answer I do not believe that the international community accepts the legitimacy of the CSRT process. Habeas corpus proceedings, on the other hand, are widely recognized as a legitimate method of determining whether a person is being lawfully held in custody. Amending 28 U.S.C. $ 2241 to grant habeas corpus rights to alien detainees in Guantanamo or striking the provisions of the MCA that eliminated those rights would both be effective. I do not believe relating the ability of alien detainees in Guantanamo to bring habeas corpus petitions to the CSRT process would be desirable.

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