The Supreme Court in
Hamdan v. Rumsfeld has not required that neither members of al Qaeda nor their allies, including members of the Taliban, must be granted POW status.
[5] However, the Supreme Court stated that the Geneva Conventions, most notably the Third Geneva Convention and Article 3 of the
Fourth Geneva Convention (requiring humane treatment) applies to all detainees in the War on Terror. In July 2004, following
Hamdi v. Rumsfeldruling the Bush administration began using Combatant Status Review Tribunals to determine whether the detainees could be held as "enemy combatants".
[87]
The ruling also disagreed with the administration's view that the laws and customs of war did not apply to the U.S. armed conflict with
Al Qaeda fighters during the 2001 U.S. invasion of
Taliban-controlled
Afghanistan, stating that Article 3 common to all the Geneva Conventions applied in such a situation, whichamong other thingsrequires fair trials for prisoners. Common Article 3 applies in "wars not of an international character" (i.e.,
civil wars) in a signatory to the Geneva Conventionsin this case the civil war in signatory Afghanistan. It is likely that the Bush administration may now be forced to try detainees held as part of the "war on terror" either by
court martial (as U.S. troops and prisoners of war are) or by civilian
federal court. However, Bush has indicated that he may seek an Act of Congress authorizing military commissions.
On January 31, 2005, Washington federal judge
Joyce Hens Green ruled that the
Combatant Status Review Tribunals (CSRT) held to confirm the status of the prisoners in Guantánamo as "enemy combatants" was "unconstitutional", and that they were entitled to the rights granted by the Constitution of the United States of America. The Combatant Status Reviews were completed in March 2005. Thirty-eight of the detainees were found not to be combatants. On March 29, 2005, the dossier of
Murat Kurnaz was accidentally declassified. Kurnaz was one of the 500-plus detainees the reviews had determined
was an "enemy combatant". Critics found that his dossier contained over a hundred pages of reports of investigations which had found no ties to terrorists or terrorism whatsoever. It contained one memo that said Kurnaz had a tie to a suicide bomber. Judge Green said this memo "fails to provide significant details to support its conclusory allegations, does not reveal the sources for its information and is contradicted by other evidence in the record."
