Officer Criticizes Military Tribunals
WASHINGTON - An Army reserve officer who served on a military panel at Guantanamo Bay that determined whether a detainee should be held indefinitely as an "enemy combatant" has said the process is deeply flawed, relying on vague evidence prepared by poorly trained personnel, and is subject to undue pressure from the military chain of command, according to an affidavit unsealed yesterday.
In the first account of the miltary review process by a participant, Lieutenant Colonel Stephen Abraham wrote that when he and two other officers assigned to serve on the tribunal concluded that a detainee should not be classified as an "enemy combatant," his superiors in charge of the process forced him to reopen the hearing so the government could present more evidence.
After they reconsidered the case but refused to reverse their decision, he wrote, their superiors questioned them in follow-up meetings about "what went wrong" with the case. Abraham was never asked to serve on another panel, according to the affidavit.
Defense lawyers yesterday hailed the affidavit as proof that the military's Combatant Status Review Tribunals, or CSRTs, are "kangaroo courts" set up to justify holding nearly 400 detainees at Guantanamo Bay.
"I think this shows what we already suspected, which was that the CSRT tribunals are a sham," said Matt MacLean , an attorney representing a Kuwaiti detainee who sought out Abraham's statement to prove that the system in general is unfair. "But it is significant because it is the first evidence we have from the inside. It is the first time we have even had the identity of anybody involved in the process."
However, Defense Department spokesman Chito Peppler said yesterday that the Guantanamo hearings were "fair, rigorous and robust" and that the military officers who presided over them constituted a "neutral decision-making panel."
Guantanamo Bay has come under increasing pressure from human rights groups and foreign governments to close. Even President Bush, who has defended the facility as an important bulwark in the war on terror, has said he would like to find a safe way to close it down. The White House has acknowledged that high-level discussions on the facility were taking place, but said no decision on its future is imminent.
The combatant status review tribunals began in 2004 after the Supreme Court ruled that the detainees had a right to a hearing. If the three-officer tribunal rules that a detainee is an enemy combatant, he may be held indefinitely.
Few detainees have ever been formally charged with a crime, so the CSRT hearings represent the only chance for the vast majority of detainees to argue they are not enemies of the United States. Of the 558 hearings held for detainees in 2004 and 2005, all but 38 were determined to be "enemy combatants."
Little was known about the CSRT process until last year, when the Defense Department was forced by a Freedom of Information Act request filed by the Associated Press to release thousands of pages of transcripts of the hearings. Any identifying information about the military officers presiding over the hearings was blacked out.
Defense lawyers found Abraham by chance: They did a presentation about Guantanamo Bay to a group of lawyers, and Abraham's sister was in the audience. Afterward, she told MacLean her brother had served on one of the tribunals.
Abraham's declaration, filed in the case of Fawzi al-Odah , represents the first internal criticism about the process to be made public. He wrote it was well known that panel members would be under intense scrutiny from superiors if they determined that a detainee was not an enemy combatant.
Abraham, who has been an Army intelligence officer since 1982 both in reserves and on active duty, worked in the Guantanamo detention system for about six months, in two different roles. In addition to serving on a tribunal, he was assigned to collect information about the detainees as a liaison between the Pentagon office that deals with detainees and various intelligence agencies.
In his affidavit, Abraham wrote that the intelligence agencies routinely screened the information that he was allowed to see, and refused to give him a statement pledging that they had not withheld any information that could point to a detainee's innocence. The personnel in charge of compiling the government's evidence against the detainees, he wrote, were "relatively junior officers with little training or experience in matters relating to the collection, processing, analyzing and/or dissemination of intelligence material."
Abraham, now an attorney with Fink & Abraham in Newport Beach, Calif. , submitted his affidavit after MacLean showed him a declaration submitted by Rear Admiral James M. McGarrah , his former boss. McGarrah, a top official at the Pentagon on detainee affairs, wrote in support of the government's case against Odah, and argued that the military looked for any information about the detainees, including information that pointed to their innocence, and the information was not screened in the government's favor.
But McGarrah's May 2007 affidavit paints a picture of inexperienced military personnel scrambling to put together evidence to justify the continued incarceration of the detainees.
In the fall of 2004, he wrote, the military set up research teams that scoured intelligence databases looking for information about the detainees. Each team received "approximately two weeks of training" before starting their tasks.
Guantanamo Bay defense lawyers say the researchers' training was minimal, and their inexperience explains how faulty assumptions and obvious factual errors crept into the government's cases against their clients.
For example, Abdullah Mujahid , an Afghan police chief who was in frequent contact with US officials in March 2003, was later arrested and accused of being in Pakistan at that time, and of playing a leadership role in Lashkar-i-Taiba , a terrorist group operating in the India-held territory of Kashmir.
"We have wondered for a long time where this accusation could have come from," said Mujahid's lawyer, Carolyn Welshhans , a Washington-based attorney at Dechert LLP.
Welshhans googled Abdullah Mujahid's name and found a clue: A man named Abdullah Mujahid was indeed in the inner circle of Lashkar-i-Taiba, but he had died in November 2006, according to the Pakistani press.
She believes the mistake was made by an inexperienced member of a military team who probably searched intelligence databases for Abdullah Mujahid's name but did not confirm it was the same person before the tribunal.
"The CSRT has been held up and pointed to by the government as an example of due process," she said. "This was not due process. This demonstates why, after five years, we still don't know who we have down there."
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