Jostling for media space in the last week–and largely losing out to spurious claims that GuantÃ¡namo is about to close–is the story of Lt. Col. Stephen Abraham, an army intelligence officer with 26 yearsâ€™ experience, who has bravely spoken out against the GuantÃ¡namo regime. In an affidavit filed with an Appeal Court petition on behalf of Kuwaiti detainee Fawzi al-Odah, Abraham delivered a damning verdict on the legitimacy of the Combatant Status Review Tribunals, which ran from July 2004 to March 2005, and were set up to determine whether the GuantÃ¡namo detainees had been correctly designated as â€œenemy combatants.â€
Currently an army reservist and an attorney in California, Abraham worked at GuantÃ¡namo, from 11 September 2004 to 9 March 2005, in the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC) as â€œan agency liaison, responsible for coordinating with government agencies, including certain Department of Defense (DoD) and non-DoD organizations, to gather or validate information relating to detainees for use in CSRTs.â€ He also served as a member of a CSRT, and, as he described it, â€œhad the opportunity to observe and participate in the operation of the CSRT process,â€ and he concluded from his experience that the gathering of materials for use in the tribunals was severely flawed, and that the whole system was geared towards rubber-stamping the detaineesâ€™ prior designation as â€œenemy combatants.â€
Specifically, Abraham complained that the OARDEC personnel–mostly from the military reserves–who were responsible for compiling the information used in the â€œUnclassified Summary of Evidenceâ€ against each detainee were woefully inexperienced, and that few of whom â€œhad any experience or training in the legal or intelligence fields.â€ He also complained that the tribunalsâ€™ Recorders were similarly inexperienced, and were â€œtypically relatively junior officers with little training or experience in matters relating to the collection, processing, analyzing, and/or dissemination of intelligence material,â€ and that those who actually aggregated the information–the case writers–â€in most instancesâ€ had â€œthe same limited degree of knowledge and experience relating to the intelligence community and intelligence products.â€ Given the shortcomings of the majority of the personnel involved, Abraham also noted that, although â€œlarge amounts of informationâ€ were received, the workers â€œoften had no context for determining whether the information was relevant,â€ and frequently discarded information because it was â€œconsidered to be ambiguous, confusing or poorly written,â€ as well as â€œreject[ing] some information arbitrarily while accepting other information without any articulable rationale.â€
Abraham expressed a similar disdain for the quality of the information produced by the various government agencies, which the largely unqualified workers were required to collate and aggregate. This information, he wrote, frequently consisted of intelligence â€œof a generalized nature–often outdated, often â€˜generic,â€™ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individualsâ€™ status,â€ and additional information, contained within the Detainee Information Management System and other databases, was equally â€œdeficient,â€ typically â€œexcluding information that was characterized as highly sensitive law enforcement information, highly classified information, or information not voluntarily released by the originating agency.â€ Neither the case writers nor the Recorders, Abraham asserted, had â€œaccess to numerous information sources generally available within the intelligence community.â€
Further proof that the gathering of information for the tribunals was not geared towards justice and transparency came when, as â€œone of only a few intelligence-trained and suitably cleared officers,â€ Abraham was tasked with investigating aspects of the â€œevidence,â€ to confirm â€œin a statement to be relied upon by the CSRT board members that the organizations did not possess â€˜exculpatory informationâ€™ relating to the subject of the CSRT.â€ When he approached the various agencies involved, however, he discovered that he was only allowed â€œlimited access to information, typically prescreened and filtered,â€ was not permitted to request additional searches for information, and was rebuffed when he asked for written statements confirming that there was no exculpatory information. His experience confirmed that the agencies were largely providing or withholding information at their own discretion, without any process of outside scrutiny being available.
His bitterest experience, however, occurred when he was chosen–along with an Air Force colonel and an Air Force major–to take part in a CSRT. After reviewing the evidence, all three men â€œfound the information presented to lack substance,â€ noting that supposedly specific factual statements â€œlacked even the most fundamental earmarks of objectively credible evidence,â€ that statements made by alleged witnesses â€œlacked detail,â€ and that generalized statements were presented â€œin indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or the credibility of the source.â€ In addition, Abraham wrote that statements by the interrogators, which were presented to the panel, â€œoffered inferencesâ€ from which they were â€œexpected to draw conclusionsâ€ that the detainee was an â€œenemy combatant,â€ but that when they subjected these statements to even the most cursory of questions, the Recorderâ€™s only response was, â€œWeâ€™ll have to get back to you.â€
Based on the â€œpaucity and weakness of the information provided both during and after the CSRT hearing,â€ Abraham and his colleagues duly determined that there was â€œno factual basisâ€ for concluding that the detainee was an â€œenemy combatant,â€ but that was not the end of the story. The director and deputy director of OARDEC â€œimmediately questioned the validityâ€ of the decision, ordering the tribunal members to prepare statements containing the specific questions they had raised to enable the Recorder to provide â€œfurther responses,â€ and reopening the hearing to allow the Recorder to â€œpresent further argument.â€ Refusing to bow to the pressure, Abraham and his colleagues failed to change their determination, and as a result, as he declared in a pithy conclusion to the affidavit, â€œI was not assigned to another CSRT panel.â€ He pointed out, however, that OARDECâ€™s response to the decision was â€œconsistent with the few other instancesâ€ when the rigged system had been bucked. In meetings attended by Abraham that followed the sporadic decisions that detainees were not â€œenemy combatantsâ€–there were only 38 in total, out of 558 CSRTs–he wrote that the focus of inquiry was always â€œwhat went wrong.â€
Speaking after the affidavit was first publicized, Abraham said that he had first raised his concerns about the tribunals during his time at GuantÃ¡namo, but had decided to submit the affidavit because â€œthe issues were not adequately addressed.â€ He told the Associated Press, â€œI pointed out nothing less than facts, facts that can and should be fixed,â€ adding that he had a responsibility to point out that officers â€œdid not have the proper toolsâ€ to determine whether a detainee was in fact an â€œenemy combatant,â€ and explaining, â€œI take very seriously my responsibility, my duties as a citizen.â€ David Cynamon, one of al-Odahâ€™s lawyers–who was put in contact with Abraham by his sister, after she attended a public lecture on GuantÃ¡namo given by Cynamon and his colleagues–described Abrahamâ€™s affidavit as â€œprov[ing] what we all suspected, which is that the CSRTs were a complete sham,â€ while adding that he feared that his courage was â€œprobably an assurance of career suicide.â€ Cynamonâ€™s colleague, Matthew J. MacLean, who pointed out that Abraham was the first CSRT member who has been identified, let alone been willing to criticize the tribunals in the public record, declared, â€œIt wouldnâ€™t be quite right to say this is the most important piece of evidence that has come out of the CSRT process, because this is the only piece of evidence ever to come out of the CSRT process. Itâ€™s our only view into the CSRT.â€
In fact, MacLeanâ€™s comments were not entirely accurate. Whilst itâ€™s certainly true that Abraham was the first ex-tribunal member to criticize the CSRT process in public, his is not the first reported example of dissent amongst tribunal members. In September 2006, in a Boston Globe article, Detentions over charity ties questioned , Farah Stockman reported on the case of Adel Hassan Hamad, a Sudanese hospital administrator, who was captured in May 2002 in Pakistan–where he had been working for 17 years–and sold to the American forces. In his CSRT, Hamad was judged to be an â€œenemy combatantâ€ because of exactly the kind of â€œgenericâ€ allegations described by Lt. Col. Abraham. The Saudi charity he worked for, the World Assembly of Muslim Youth, was described as an organization that â€œsupports terrorist ideals and causes,â€ even though it has never appeared on a terrorism watchlist (despite being investigated by the US Senate), and was one of the favored projects of the late Saudi King Fahd bin Abdul Aziz, and another organization that he had worked for previously, the Kuwait-based Lajanat Dawa Islamiya (which also does not feature on any US terrorism watchlist), was described as â€œone of the most activeâ€ Islamic NGOs â€œproviding logistical and financial supportâ€ to mujahideen operating in Afghanistan and Pakistan, which â€œmay beâ€ associated with Osama bin Laden.
An exasperated Hamad refuted all the allegations, at one point telling his tribunal, â€œarresting employees like myself [who] is not capable of supporting terrorists financially, is this justice? I am an employee who works for a living and I have no connection to the [organizationâ€™s] political views or its financial resources, so why do you punish me for a crime I did not commit. Why donâ€™t you arrest the charitiesâ€™ presidents or the people who support [them] financially instead of arresting a simple employee with no informational value?â€ Predictably, his tribunal judged that he had been correctly designated an â€œenemy combatant,â€ but although his pleas appeared to have been ignored, Stockman, who was allowed to examine the CSRT documentation, noted that one of the tribunal members–an unidentified army major, whose name was redacted–had issued a dissenting opinion. Taking into account the fact that neither WAMY nor LDI appears on the State Departmentâ€™s list of terrorist organizations, he argued that, â€œeven assuming all the allegations… are accurate, the detainee does not meet the definition of enemy combatant.â€ He added, â€œThese NGOs presumably have numerous employees and volunteer workers who have been working in legitimate humanitarian roles. The mere fact that some elements of these NGOs provide support to â€œterrorist ideals and causesâ€ is insufficient to declare one of the employees an enemy combatant.â€ Stockman noted, however, that the major was overruled by his colleagues, one of whom–in a single line that discredits the whole tribunal process as effectively as Lt. Col. Abrahamâ€™s affidavit–wrote that the case â€œpassed the â€˜low evidentiary hurdleâ€™ set up by the rules of the hearings.â€
In two other cases, the dissenting officer was not a tribunal member, but the detaineesâ€™ Personal Representative. In a majority of the CSRTs, the Personal Representative fulfilled his intended function as a pale shadow of a legitimate defense counsel, failing to â€œparticipate in any meaningful way,â€ as Lt. Col. Abraham noted of the Personal Representative in his tribunal. In February 2006, however, in two articles for the National Journal, GuantÃ¡namoâ€™s Grip and about/njweekly/stories/2006/0203nj4.htmâ€ target=_blank>Empty Evidence , Corine Hegland reported the story of an unidentified lieutenant colonel in the army (whose name was also redacted), who fought a brave, if unsuccessful battle for two of his detainees. Along the way, however, he demolished the tribunalsâ€™ legitimacy even more comprehensively than either Lt. Col. Abraham or Adel Hamadâ€™s dissenting major.
The first case–that of Farouq Saif, a young Yemeni who went to Afghanistan to teach the Koran–is particularly noteworthy because Saif was judged as an â€œenemy combatantâ€ because of two false allegations. The first–that he was a bodyguard of Osama bin Laden–was directed at 30 detainees in total, and was made under duress, and later retracted, by Mohammed al-Qahtani. One of several purported â€œ20th hijackersâ€ for the 9/11 attacks, al-Qahtani made the allegations during a seven-week period, from November 2002 to January 2003, when he was subjected to Pentagon-approved â€œextreme interrogation techniquesâ€ (otherwise known as torture). The second allegation–that Saif had been seen at Osama bin Ladenâ€™s private airport in Kandahar, where he was â€œwearing camouflage and carrying an AK-47â€–proved so intolerable to his Personal Representative that he submitted a written protest, in which he stated that the governmentâ€™s sole evidence that Saif had been at bin Ladenâ€™s airport was the statement of another prisoner, who, according to an FBI memo that he presented to the tribunal, was a notorious liar. According to the FBI, he â€œhad lied, not only about Farouq, but about other Yemeni detainees as well. The other detainee claimed he had seen the Yemenis at times and in places where they simply could not have been.â€ The Personal Representative wrote, â€œI do feel with some certainty that [the accuser] has lied about other detainees to receive preferable treatment and to cause them problems while in custody. Had the tribunal taken this evidence out as unreliable, then the position we have taken is that a teacher of the Koran (to the Talibanâ€™s children) is an enemy combatant (partially because he slept under a Taliban roof).â€
The â€œnotorious liarâ€ actually made false allegations against 60 prisoners in total, as was revealed after the tribunal of Mohammed al-Tumani. A young Syrian economic migrant, who had traveled to Afghanistan with other family members to join his father in Kabul, where he was working as a cook, al-Tumani and his father were captured in Pakistan after fleeing the chaos of post-invasion Afghanistan. In his tribunal, he denied an allegation that he had attended the al-Farouq training camp with such vigor that his Personal Representative decided to investigate the matter further. When he looked at the classified evidence, however, he found that only one man–the same detainee mentioned above–claimed to have seen him at al-Farouq, and had identified him as being there three months before he arrived in Afghanistan. As Corine Hegland described it, â€œThe curious US officer pulled the classified file of the accuser, saw that he had accused 60 men, and, suddenly skeptical, pulled the files of every detainee the accuser had placed at the one training camp. None of the men had been in Afghanistan at the time the accuser said he saw them at the camp.â€
The identity of the other 58 detainees falsely accused by the â€œnotorious liarâ€ are unknown, as the dissenting officer involved in unveiling this monstrous injustice–perhaps unwilling to risk â€œcareer suicideâ€–has not come forward to elaborate, but in my forthcoming book, The GuantÃ¡namo Files , I report on numerous other examples of patently false allegations masquerading as â€œevidence,â€ which were ignored by compliant tribunal members accepting the â€œlow evidentiary hurdleâ€ of the process. While I wait to see if Lt. Col. Abrahamâ€™s principled stand will encourage other insiders to speak out, itâ€™s worth pointing out that Adel Hamad, Farouq Saif and Mohammed al-Tumani remain in GuantÃ¡namo. Hamad has finally been judged to be â€œNo Longer an Enemy Combatantâ€ and is awaiting release, but Saif and al-Tumani are still damned by the false confessions of a â€œnotorious liar.â€
Andy Worthington (www.andyworthington.co.uk) is a British historian, and the author of â€˜The GuantÃ¡namo Files: The Stories of the 774 Detainees in Americaâ€™s Illegal Prisonâ€™ (to be published by Pluto Press in October 2007).