Legal Sufficiency Review of Combatant Status Review Tribunal for ISN 552

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Legal Sufficiency Review of Combatant Status Review Tribunal for ISN 552  (2004) 

UNCLASSIFIED

4 Oct 04
MEMORANDUM
From: Legal Advisor
To: Director, Combatant Status Review Tribunals
SUBJECT: Legal Sufficiency Review of Combatant Status Review Tribunal for ISN  
Ref:
(a) Deputy Secretary of Defense Order of 7 July 2004
(b) Secretary of the NavyI mplementationD irective of 29 July 2004
Encl:
(1) Appointing Order for Tribunal #5 of 17 August 2004
(2) Record of Tribunal Proceedings
1.

A legal sufficiency review has been completed on the subject Combatant Status Review Tribunal in accordance with references (a) and (19). After reviewing the record of the Tribunal, I find that:

a.

The detainee was properly notified of the Tribunal process and voluntarily elected not to participate in the Tribunal proceedings.

b.

The Tribunal was properly convened and constituted by enclosure (1).

c.

The Tribunal complied with the provisions of references (a) and (b). Note that information in exhibits R-3, R-4. R-5, and R-6 was redacted. The FBI properly certified in exhibit R-2 that the redacted information would not support a determination that the detainee is not an enemy combatant.

d.

The detainee requested that two witnesses be produced to testify at the Tribunal. The Tribunal President denied the requests.

The first requested witness was the detalnee’s father. The President’s justification for determining that the first requested witness was not relevant was that he would only testify as to the detainee’s motive for leaving Kuwait. The President determined that the detainee’s motive for leaving Kuwait was not relevant to whether or not he was an enemy combatant. The President also determined that since it was unlikely that the witness’s information came from first-hand observation, then his testimony was irrelevant. This decision was faulty for three reasons. First, the detainee’s proffer for this witness was more than simply that he could testify to the detainee’s motive for traveling from Kuwait to Afghanistan. According to the detainee, his father could also testify to, "the details of my trip and all the things I did." Certainly, the detainee’s activities while in Afghanistan would be relevant to the Tribunal’s decision. Second, even if the only substance of the witness’s testimony would be the detainee’s motive for leaving Kuwait, this testimony would still be relevant under the circumstances. The President innocently confused two variations on the relevance of motive. While a detainee’s motive for joining or supporting al Qaeda is irrelevant to a determination of their status as an enemy combatant, a detainee’s motive for traveling to Afghanistan could be relevant to determining what they did there once they arrived. In other words, if the detainee had claimed that he was forced to join al Qaeda, then his motive would be irrelevant to the Tribunal’s purpose. In this case, however, the detainee claimed that he was not a member of al Qaeda. Under these circumstances, the detainee’s motive for traveling to Afghanistan is relevant. If a witness testifies under oath that the detainee’s motive for going to Afghanistan was to do something other than join al Qaeda, that evidence could have some tendency, however slight, to make it less likely that the detainee joined al Qaeda in Afghanistan. Third, there is no basis in references (a) or (b) for requiring first handknowledge of a matter in issue before being allowed to testify about it at the Tribunal. Reference (b) states that the Tribunal is not bound by the roles of evidence and the Tribunal is "free to consider any information it deems relevant and helpful." It may consider hearsay evidence. Indeed, the evidence considered persuasive by the Tribunal is made up almost entirely of hearsay evidence recorded by unidentified individuals with no first-hand knowledge of the events they describe. There should not be a double standard for the Government’s ability to present hearsay and the detainee’s ability to present hearsay evidence. The witness is relevant to the Tribunal’s decision.[1]

With regard to the request for the second witness, the Tribunal President determined that the witness was not relevant based on the detainee’s failure to provide a proffer of the witness’s expected testimony. Due to the lack of information about this witness’s testimony, the President had no choice but to deny the request.

The detainee made no other requests for witnesses or other evidence.

e.

The Tribunal’s decision that detainee #   is properly classified as an enemy combatant was unanimous.

f.

The detainee’s Personal Representative was given the opportunity to review the record of proceedings and declined to submit comments to the Tribunal.

2.

The proceedings of the Tribunal are not sufficient and corrective action, as described below, is required.

3.

I recommend that the Record of Proceedings be returned to the Tribunal President with direction to make a determination of the reasonable availability of the first witness requested by the detainee, If the witness is not reasonably available, then the Tribunal with a statement from the President regarding his determination on reasonable availability, to the Legal Advisor. If the witness is reasonably available, then the Tribunal should re-convene to consider the witness’s testimony. If any members of the Tribunal panel were not present for the original Tribunal proceedings they should listen to the audio tapes of those proceedings prior to deliberations and voting. Prior to re-convening, the Personal Representative should notify the detainee of the President’S decision and allow the detainee the opportunity to attend the proceedings at which the witness testifies, if he so chooses.

James R. Crisfield Jr.
CDR, JAGC, USN
  1. Exhibit R-2 is a list of interrogatories answered by the detainee’s family that discusses, in part, the detainee’s motives for traveling from Kuwait to Afghanistan. I would have recommended that the introduction and consideration of this exhibit cures any prejudice from the Tribunal President’s denial of the first witness request but for the fact that the Tribunal stated in its decision report that, "The information in the questionnaire was unsworn and provided no usable evidence."