| c. |
The Tribunal complied with the provisions of references (a) and (b).
Note that some information in exhibits R-7, R-8 and R-17 was redacted.
The FBI properly certified in exhibit R-2 and R-3 that
the redacted information would not support a determination
that the detainee is not an enemy combatant. Additionally, on
its own accord, the Tribunal recessed and requested
additional information from the Recorder. Unfortunately,
there is no further indication in the Record of what
information was requested and whether or not it was
provided. The Tribunal Decision Report should answer the
questions of what additional information was requested;
what additional information, if any, was procued by
the Recorder; and what additional information, if any,
was considered by the Tribunal.
|
| d. |
The Tribunal's handling of the detainee's witness requests
is confusing.
The Detainee Election Form indicates that the
detainee requested the production of three witnesses:
his sister, brother and aunt. The detainee claimed
that his sister and aunt would testify that
he traveled to Zambia due to ill health of his uncle.
He claimed that his brother would also testify to his
reason for traveling to Zambia; and could also testify
to sending a valid passport to the detainee; and that the
detainee traveled to Pakistan in order to fight
in Kashmir, not Afghanistan.
The Tribunal President's decision memo regarding the witness
requests only refers to the requests for the detainee's
sister and brother. The President determined that the
detainee's reasons for traveling to Zambia and Pakistan were
not relevant to the Tribunal's decision and therefore denied
the request. The request for his aunt and the fact that the
brother would also testify that he sent the detainee a valid passport are not mentioned in the decision memo.
The Summary of Tribunal rulings on witness requests,
contained in paragraph 4 of enclosure (1) of the Tribunal
Decision Report, only compounds the confusion over the
witness requests. The paragraph states that the President's
reason for denying the requests for the detainee's
brother and sister was that they were not reasonably available.
This is not accurate. The President never even reached the issue
of whether or not the brother and sister were reasonably available
because he determined that their testimony was not relevant.
The summary of Tribunal rulings also confuses the witness
requests for the aunt, who had substantive evidence to present to
the Tribunal, with one of the detainee's sisters, who was not
requested as a witness but is mentioned in the Detainee Election
Form as someone who can help locate the detainee's brother. The Tribunal's
confusion is understandable, but it calls into question the accuracy of the President's decisions.
Besides the Tribunal's confusion, the President's stated reason for
denying the witnesses was erroneous. First, the
President did not consider the detainee's proffer that
his brother would testify that he provided a valid
passport to the detainee. Assuming as we must that this proffer is
accurate, then this testimony would tend to rebut the
Government's assertion that the detainee "traveled
with forged documents provided by a facilitator."
This testimony would therefore be relevant. Additionally,
the statements from the three witnesses as to the detainee's
reasons for traveling to Zambia and Pakistan would also be
relevant. 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
reasons for traveling to a country 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, this 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 reasons
for traveling to various countries was relevant. If the detainee's
motive for traveling was to do something other than join or support
al Qaeda, that evidence could have some tendency,
however slight, to make it less likely that the detainee
joined or supported al Qaeda.
The detainee made no requests for other evidence.
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