Legal Sufficiency Review of Combatant Status Review Tribunal for detainee ISN 250

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Legal Sufficiency Review of Combatant Status Review Tribunal for detainee ISN 250  (2005) 
Hassan Anvar
Transcribed from pages 6-7 of http://www.dod.mil/pubs/foi/detainees/csrt_arb/publicly_filed_CSRT_records_1731-1808.pdf#6

8 February 2005

Memorandum

From: Legal Advisor
To: Director, Combatant Status Review Tribunal
Subj: Legal Sufficiency Review of Combatant Status Review Tribunal for detainee ISN 250
Ref:
(a) Deputy Secretary of Defense Order of 7 July 2004
(b) Secretary of Navy Implementation Directive of 29 July 2004
Encl:
(1) Appointing Order for Tribunal 32 of 21 January 2005
(2) Appointing Order for Tribunal 18 of 1 November 2004
(3) Record of Proceedings
1.

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

a.

The detainee was properly notified of the Tribunal process and affirmatively declined to participate. The detainee did provide a statement, contained in exhibit D-b of enclosure (3) of enclosure (5) of the Tribunal Decision Report.

b.

The Tribunals were properly convened and constituted by enclosure (1) and enclosure (2).

c.

The Tribunal substantially complied with all provisions of references (a) and (b). Note that some information in exhibits R-4, R-6, and R-8 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.

On 16 November 2004 a tribunal unanimously determined that the detainee was not properly designated as an enemy combatant. Following that tribunal, CSRT intelligence personnel conducted another search of the Government Information for evidence relevant to ISN 250's status. They collected additional evidence which eventually became exhibits R-18 through R-29. Due to the detachment from OARDEC of two of the three members of the original tribunal panel, the additional evidence, along with the original evidence and original Tribunal Decision Report, was presented to Tribunal panel 32 to reconsider the detainee's status. (One of the members of the original tribunal sat on the new tribunal panel.) Following their consideration of the new information along with the original information, this Tribunal unanimously determined that the detainee was properly classified as an enemy combatant.

I noted that Exhibit R-18 contains a troubling statement: "Inconsistencies will not cast a favorable light on the CSRT process or the work done by OARDEC. This does not justify making a change in and of itself, but is a filter by which to look at the overall Uigher transaction since they are all considered the same notwithstanding a specific act." Fortunately, there is no indication that the Tribunal adopted this inappropriate "on size fits all" policy.

e.

The detainee did not request that any witnesses or evidence be produced.

f.

The Tribunal's decision that detainee 250 is properly classified as an enemy combatant was unanimous.

g.

The detainee affirmatively chose not to participate in the CSRT process but requested that his Personal Representative make an oral statement to the Tribunal about the allegations contained in the unclassified summary. A letter from the Personal Representative initially assigned to represent the detainee at Guantanamo Bay, Cuba, reflects the detainee's elections and is attached to the Tribunal Decision Report as exhibit D-b. The original Tribunal proceedings were held in absentia outside Guantanamo Bay with a new Personal Representative who was familiar with the detainee's file. This Personal Representative had the same access ot information and evidence as the Personal Representative from Guantanamo Bay. The addendum proceedings were conducted with yet a third Personal Representative because the second Personal Representative had been transferred to Guantanamo Bay. This Personal Representative also had full access to the detainee's file and original Personal Representative's pass-down information. The detainee's Personal Representatives were given the opportunity to review the respective records of proceedings and both declined to submit post-tribunal comments to the Tribunal.

2.

The proceedings and decision of the Tribunal, as reflected in enclosure (3), are legally sufficient and no corrective action is required.

3.

I recommend that the decision of the Tribunal be approved and the case be considered final.

James R. Crisfield Jr
CDR, JAGC, USN