It's not every day that a 26-year veteran in U.S. military intelligence puts his career on the line by publicly criticizing a high-profile operation. But Lt. Col. Stephen Abraham, an Army reservist and lawyer, did just that last week in a Supreme Court affidavit that challenges the court's refusal to hear the claims of Guantánamo Bay detainees.
Abraham spent six months in 2004-2005 as a panelist on the Combatant Status Review Tribunals, or CSRTs, at Guantánamo, which were created to determine whether individual detainees were ''enemy combatants.'' His statement, claiming that determinations were based on outdated, generic intelligence that was rarely case specific, captures the extent to which the Bush administration has been willing to ignore if not manipulate the facts in pursuing the ''global war on terror'' -- even if it undermines those very efforts.
The CSRTs are not a requirement of the Geneva Conventions or a long-standing U.S. military practice. They were concocted by the Defense Department nine days after the Supreme Court ruled in June 2004 that Guantánamo detainees had the right to challenge the grounds for their detention in court through habeas corpus, the time-hallowed Great Writ that protects against unlawful and indefinite detention.
To date three-member military tribunals at Guantánamo have processed the cases of 572 detainees. Only 38 were found not to be enemy combatants. Unlike habeas proceeding, where the burden is on the government to show that the detention is lawful, the CSRTs required the detainee prove he was not an enemy combatant. And the CSRT rules prohibited the detainee from having the assistance of a lawyer or seeing most of the evidence against him.
But it turns out that the military panelists had not much more access to the evidence than did the detainees. Abraham says his repeated requests for information that would shed light on specific cases were routinely rejected. ''What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,'' he stated.
Criticism of the CSRT process is not new. In January 2005, a federal judge found that CRST rules were so unfair as to deny detainees any real opportunity to challenge their detention. And declassified transcripts of CRST proceedings released to the media are frequently unpersuasive in showing the detainee's combatant status. But Abraham's remarks are especially damning because they come from an experienced CSRT insider. The administration has repeatedly claimed that it had the goods on the Guantánamo detainees but that it needed the information to stay classified -- we now know that the secret evidence may have been secret simply because it didn't exist.
It's now clearer than ever that the Pentagon used the CSRTs to paint a veneer of legality over a largely predetermined decision. If this isn't troubling to the Bush administration, it should be to the American public. Not only are people being held for years unjustly, but the military's efforts and resources are being misdirected from those who really have the intention and means of doing the country harm. Adding these dubious panels to the Guantánamo mix of indefinite detention, abusive interrogations and unfair military commissions, and it's not hard to understand why the U.S. has received less than full support from its allies in the fight against terrorism.
Instead of trying to fix a CSRT process that is fundamentally flawed, the federal courts should be hearing the detainees' habeas petitions. But a ''court stripping'' statute blocks the way. Under the Military Commissions Act rushed through Congress last fall, the courts are prevented from reviewing habeas petitions brought by Guantánamo detainees or other nonnationals held abroad. By tampering with a fundamental right that dates back to the Magna Carta, the act threatens the protections against unlawful detention to which we are all entitled.
Several bipartisan measures are now before Congress that in one form or another would restore habeas to the Guantánamo detainees. That is important and necessary. But the Bush administration need not wait for a new law to be enacted. Abraham showed forthrightness and courage by publicly raising his concerns about the CSRT process at Guantánamo -- perhaps at the expense of his distinguished army career. The administration could show similar fortitude and take steps now, rather than later, to restore an independent check on detentions and ensure that the United States is no longer holding anyone outside the pale of law.
James Ross is legal and policy director at Human Rights Watch.
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