Legal sufficiency review of Combatant Status Review Tribunal for Detainee ISN 940 (2005-02-05)

Unclassified

4 Feb 05

1. Forwarded, recommending approval of the Combatant Status Review Tribunal decision.

2. The subject tribunal determined by a vote of 2-to-1 that the detainee was properly classified as an enemy combatant. In an articulat and thoughtful dissent, one of the tribunal members opined that the Unclassified Summary of Evidence was deficient because it failed to present a prima facie case that the detainee is an enemy combatant. The Unclassified Summary of the Evidence is not intended to be a charging document that alleges each and every fact necessary to establish that an accused has committed a crime. Rather, it is designed to provide the detainee with fair notice in an unclassified format of the factual basis for their detention. The document must provide sufficient information to the detainee to allow him a meaningful opportunity to contest the factual basis for his detention. The CSRTs are not criminal trialss, but rather administrative fact-finding hearings created and designed solely to answer one question — is the detainee properly classified as an "enemy combatant" as defined in the CSRT establishment and implementing orders. To compare the Unclassified Summary of the Evidence to a military charge sheet or civilian charging document is to hold it to a standard that it was not designed of intended to satisfy. I concure with LT Bradford that the Unclassified Summary of Evidence is legally sufficient in this case.

3.The dissenting tribunal member also opined that there was insufficient evidence to prove that the detainee was part of or supporting al Qaeda forces engaged in hostilities against the U.S. or its coalition partners. In analyzing whether there was sufficient evidence to support a Tribunal's decision I have customarily used the test of whether there was sufficient evidence for a reasonable finder of fact to have found the detainee was an enemy combatant by a preponderance of the evidence. Given the low evidentiary hurdle posed by a preponderance of the evidence standard and the rebuttable presumption of genuiness and accuracy that attaches to the Government evidence, I believe that that the test is satisfied in this case. That is to say that reasonable finders of face could determine that this detainee meets the definition of "enemy combatant" based on the evidence presented.

J. R. Crisfield jr (signed) CDR, JAGC, USN

Unclassified

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