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.
Saturday, January 13, 2007
The Lugubrious Results of One Detainee's Effort to Secure the Attendance of Witnesses before the Combatant Status Review Tribunal
The Question of the Need for the Hearsay Rule Revisited: The Possible Lessons of Guantanamo
In recent months, two extensively documented reports from New Jersey's Seton Hall Law School, based entirely on Defense Department data, rebut the administration's contention - exemplified by departed Defense Secretary Donald Rumsfeld - that most of the detainees "are the best-trained, most vicious killers on the face of the Earth."The evidence against the detainees was always presumed to be "reliable and valid"!?!?Researched and written by law professor Mark Denbeaux; his son, Joshua (counsel to two Guantanamo detainees); and law students at Seton Hall, the reports demonstrate that: "Only 8 percent of the detainees were characterized (in the Defense Department data) as Al Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection with Al Qaeda at all." As for those picked up in Afghanistan, "86 percent were arrested by either Pakistan or the Northern Alliance and turned over to United States custody."
And there is this revealing information: "This 86 percent of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time when the U.S. offered large bounties for capture of suspected terrorists." The captives in these mass roundups were hardly screened carefully for their terrorist connections by the bounty hunters - nor were they carefully screened, according to international law criteria, by our armed forces.
Once at Guantanamo, to what extent were these prisoners given the due-process rights ordered by the Supreme Court in Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006)? This is what the Seton Hall reports found in the Defense Department documents: "When considering all the hearings, 89 percent of the time, no evidence was presented on behalf of the detainees." And the government's classified evidence, intended to be the most powerful - evidence the prisoners were not allowed to see and rebut - was always presumed by the tribunal to be reliable and valid. So much for any presumption of innocence - essential to due process.
If I am not mistaken, the CSRT proceedings that Denbeaux studied were governed by the old Military Commissions rules, which imposed no special requirements for the use of hearsay evidence and permitted the Tribunal to consider all evidence having probative value in the eyes of a reasonable person. According to Hentoff and, apparently, Denbeaux and his collaborators [I wonder: will someone attack this post for relying on hearsay?], it appears the CSRT never found the evidence wanting in probative value. This finding of the Denbeaux studies is rather startling -- given that a substantial number of the detainees came into U.S. hands as a result of arrests made by Pakistan and the Northern Alliance and that at least some of these arrests were made "at a time when the U.S. offered large bounties for capture of suspected terrorists." Can it be that the evidence supporting the detention of all such persons was such that it had probative value in the eyes of a reasonable person? One suspects that the reason that the Tribunal in such instances found the evidence sufficiently probative to be considered was that the Tribunal had before it nothing other than a barebones report by some American military person who reported that someone in Pakistan or someone in the Northern Alliance had taken the detainee into custody because some other person had supposedly reported that the detainee was a combatant, a terrorist, or some such thing, and that the Tribunal implicitly (or possibly explicitly) reasoned that it could not release any one detainee detained on the basis of such evidence without releasing all similarly-situated detainees. If so, perhaps this sad story suggests once again that the hearsay rule does indeed have an important function, a function that a requirement of "reasonable probative value" (or some such formulation) does not adequately perform. If so, the next question is whether the new rules for proceedings before the military commissions -- rules that require that the detainee be given advance notice that hearsay evidence will be used against him -- sufficiently performs the function or functions that the hearsay rule serves. (Much depends, I would think, on whether the detainee has the resources and the opportunity to conduct a pre-hearing investigation of the hearsay evidence to be used against him. {Even the opportunity to conduct such an investigation does not guarantee that jsutice will be done. Imagine the many obstacles that any such investigation would face.})
Tuesday, January 09, 2007
New York Stinks -- Sometimes
Samples of this delectable fare:
Inevitably, many [unlovely] odors find their way down into New York's decrepit subway system. The morning commute is always a treat for the senses. Packed in like cattle, even normal human smells sometimes reach overwhelming proportions, and this is before the homeless make their appearance. Sad as it may be, one homeless person can clear an entire train car in less than 10 seconds. Add to this the smell of decades-old dirt, mold and general decay, and you can imagine something of the typical New York subway smell.The catalyst for this minor non-odiferous masterpiece was a mysterious odor that enveloped large chunks of Manhattan and parts of New Jersey for several hours.On the other hand, certain smells can be useful markers in such a vast city. Anyone hunting for Claremont Riding Academy, New York's last surviving urban equestrian center, can locate it three blocks away without a map. While the facility does its best to maintain a clean, professional establishment, the fact remains that dozens of horses reside and are trained within a converted apartment building. Certain facts of nature simply cannot be avoided, and a familiar horsey smell permeates the surrounding neighborhood.
Sunday, January 07, 2007
Quality and Quantity
One might say that Parmakson highlights (among other things) the quantity of quality in law.
