Saturday, January 13, 2007

The Lugubrious Results of One Detainee's Effort to Secure the Attendance of Witnesses before the Combatant Status Review Tribunal

From Memorandum by Legal Advisor to Combatant Status Review Tribunal (December 16, 2004):
d. The detainee requested the production of nine witnesses. These requests are itemized, although somewhat inaccurately, in paragraph 4of enclosure (1) to the Tribunal Decision Report. Each witness is described below.

1. Shahid Abassi -The detainee proffered that this witness would testify that the detainee was fleeing the war in Afghanistan and was not armed. The detainee could not provide locating information for this witness other than to state that the "Rashid Trust charity organization" might know his whereabouts. The Tribunal President determined that the wimess was not reasonably available due to the limited locating information supplied by the detainee. In my opinion, this decision was not an abuse of discretion given the paucity of irfformation provided by the detainee.

2. Tahir Ashraf- The detainee proffered that this witness would testify that the detainee spent the preponderance of his time in Afghanistan building a school and teaching at another school. The detainee stated that the witness lived in the United Kingdom and could be located through the detainee’s father. The Tribunal President determined that the winess was relevant and requested the U.S. State Department to initiate contact with the witness. Contact was established but the wimess did not reply to inquiries regarding whether they were willing to testify at the tribunal. Under the circumstances, the Tribunal President determined that the wimess was not reasonably available. In my opinion, this decision was not an abuse of discretion by the President.

3. [name deleted]-The witness was the detainee’s wife. The detainee proffered that this witness would testify that the detainee did not support terrorist organizations or military activities. The detainee stated that the witness lived in the United Kingdom and could be located tttrough the detainee’s father. The Tribunal President determined that the witness was relevant and requested the U.S. State Department to initiate contact with the witness. Contact was established but the witness did not reply to inquiries regarding whether she was willing to testify .... Under the circumstances, the Tribunal President determined that the witness was not reasonably available. In my opinion, this decision was not an abuse of discretion by the President.

4. Abdul Walid- The detainee proffered that this witness would testify that the detainee did not support terrorist organizations or military activities. The detainee stated that the witness lived in the United Kingdom and could be located through the detainee’s father. The Tribunal President determined that the witness was relevant and requested the U.S. State Department to initiate contact with the witness. Contact was established but the witness did not reply to inquiries regarding whether he was willing to testify at the tribunal. Under the circumstances, the Tribunal President determined that the witness was not reasonably available. In my opinion, this decision was not an abuse of discrefian by the President.

5. A Sudanese in charge ofthe [deleted] camp -It appears that the detainee proffered that this witness would testify that the [deleted] camp had no ties to al Qaida or the Taliban and also that the detainee did not attend the camp (in which case the location of the camp seems to be relevant). In any event, the witness was identified by the Tribunal as detainee ISN [deleted]. When approached by the Personal Representative, the witness refused to testify at the tribunal but provided an oral statement that was reduced to writing by atranslator. This statement was included in the evidence as exhibit D-g.I Althungh the Tribunal President did not render a formal decision on the relevance and reasonable availability of this witness, it is apparent that he was neither.

6. Patrick Hamilton- The detainee proffered that this witness was an ICRC employee who would testify that the detainee had previously been issued a POW identity card at a U.S. detention facility in Kandahar, Afghanistan. The Tribunal President initially determined that the witness was relevant, but after consultation with the Assistant Legal Advisor, she changed her determination.~She based her decision on her conclusion that the Combatant Status Review Tribunals do not have the discretion to determine that a detainee should be classified as aprisoner of war -only whether the detainee satisfies the definition of "enemy combatant" as provided in references (a) and (b). In my opinion, this decision was correct it bears noting that in a written statement prepared by the detainee especially for the CSRT, the detainee specifically says that he does not claim POW status (see exhibit D-e).

7. [name deleted]- The detainee stated that this witness was amember of the U.S. armed forces and could testify that the detainee had been classified as aprisoner of war when detained in Kandahar. For the reasons indicated in paragraph l(d)(6) above, witness was deemed not relevant.

8. [name deleted] detainee proffered that the witness accompanied the detainee in Afghanistan and could testify that the Government atlegafions were false. For the reasons discussed in paragraph 3of enclosure (2) of the Tribunal Decision Report the Tribunal President determined that the witness was not reasonably available. Under the circumstances, the Tribunal President had no option other than to hold that the witness was not reasonably available.

9. Abu Ukashah- The detainee proffered that the witness only testify that he was with the detainee in Afghanistan and the Government allegations were false. The detainee stated that the Karkhana police station in Peshawar, Pakistan, would have locating information for this witness. The Tribunal President initially determined that the witness was relevant and reasonably available (see enclosure 5of the Tribunal Decision Report). Paragraph 4 of enclosure (1) of the Tribunal Decision Report, which documents the Tribunal’s ruling on witness requesls, does not mention the request for Abu Ukashah at all. I have confirmed with CSRT personnel in Guuntunamo Bay, however, that Abu Ukashah was included among the names provided to the U.S. State Department with the request for assistance in locating witnesses (see enclosure (2)). State Department was unsuccessfnl in making contact with this witness. Although the Tribunal Decision Report does not address a final decision on this witness, it appears that he was not reasonably available.

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