Legal Sufficiency Review of Combatant Status Review Tribunal for detainee ISN 10007

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UNCLASSIFIED
5 Oct 04

MEMORANDUM

From: Legal Advisor
To: Director, Combatant Status Review Tribunal
Subj:

Legal Sufficiency Review of Combatant Status Review Tribunal for detainee ISN  

Ref:
(a) Deputy Secretary of Defense Order of 7 July 2004
(b) Secretary of the Navy Implementation Directive of 29 July 2004
Encl:
(1) Appointing Order for Tribunal 5 of 17 August 2004
(2) Record of Tribunal 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, was present for the unclassified portions of the Tribunal, and made a statement through his Personal Representative.

b.

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

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.

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 decline to submit comments to the Tribunal.

2.

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

3.

I recommend that the Record of Proceeding be returned to the Tribunal President with direction to make a determination of the reasonable availability of the three witnesses requested by the detainee as listed on the Detainee Election Form. If the witnesses are not reasonably available, then the Tribunal should return their original report, along with a statement from the President regarding his determination on reasonable availability, to the Legal Advisor. If any of the witnesses are reasonably available, then the Tribunal should re-convene to consider thos witnesses' testimony. If any of the Tribunal panel were not present for the original Tribunal proceedings they should list to the audiotapes of those proceedings prior to deliberations and voting.

James R. Crisfield Jr.
CDR, JAGC, USN

UNCLASSIFIED