Lt. Col. Stephen Abraham is not the First Insider to Condemn the Kangaroo Tribunals

The Guantánamo Whistleblowers

Courtesy Andy Worthington

Jostling for media space in the last week–and largely losing out to spurious claims that Guantánamo is about to close–is the story of Lt. Col. Stephen Abraham, an army intelligence officer with 26 years’ experience, who has bravely spoken out against the Guantánamo 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 Guantánamo detainees had been correctly designated as “enemy combatants.”

Currently an army reservist and an attorney in California, Abraham worked at Guantánamo, from 11 September 2004 to 9 March 2005, in the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC) as “an 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.” He also served as a member of a CSRT, and, as he described it, “had the opportunity to observe and participate in the operation of the CSRT process,” 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 detainees’ prior designation as “enemy combatants.”

Specifically, Abraham complained that the OARDEC personnel–mostly from the military reserves–who were responsible for compiling the information used in the “Unclassified Summary of Evidence” against each detainee were woefully inexperienced, and that few of whom “had any experience or training in the legal or intelligence fields.” He also complained that the tribunals’ Recorders were similarly inexperienced, and were “typically relatively junior officers with little training or experience in matters relating to the collection, processing, analyzing, and/or dissemination of intelligence material,” and that those who actually aggregated the information–the case writers–”in most instances” had “the same limited degree of knowledge and experience relating to the intelligence community and intelligence products.” Given the shortcomings of the majority of the personnel involved, Abraham also noted that, although “large amounts of information” were received, the workers “often had no context for determining whether the information was relevant,” and frequently discarded information because it was “considered to be ambiguous, confusing or poorly written,” as well as “reject[ing] some information arbitrarily while accepting other information without any articulable rationale.”

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 “of a generalized nature–often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and additional information, contained within the Detainee Information Management System and other databases, was equally “deficient,” typically “excluding information that was characterized as highly sensitive law enforcement information, highly classified information, or information not voluntarily released by the originating agency.” Neither the case writers nor the Recorders, Abraham asserted, had “access to numerous information sources generally available within the intelligence community.”

Further proof that the gathering of information for the tribunals was not geared towards justice and transparency came when, as “one of only a few intelligence-trained and suitably cleared officers,” Abraham was tasked with investigating aspects of the “evidence,” to confirm “in a statement to be relied upon by the CSRT board members that the organizations did not possess ‘exculpatory information’ relating to the subject of the CSRT.” When he approached the various agencies involved, however, he discovered that he was only allowed “limited access to information, typically prescreened and filtered,” 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 “found the information presented to lack substance,” noting that supposedly specific factual statements “lacked even the most fundamental earmarks of objectively credible evidence,” that statements made by alleged witnesses “lacked detail,” and that generalized statements were presented “in 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.” In addition, Abraham wrote that statements by the interrogators, which were presented to the panel, “offered inferences” from which they were “expected to draw conclusions” that the detainee was an “enemy combatant,” but that when they subjected these statements to even the most cursory of questions, the Recorder’s only response was, “We’ll have to get back to you.”

Based on the “paucity and weakness of the information provided both during and after the CSRT hearing,” Abraham and his colleagues duly determined that there was “no factual basis” for concluding that the detainee was an “enemy combatant,” but that was not the end of the story. The director and deputy director of OARDEC “immediately questioned the validity” of the decision, ordering the tribunal members to prepare statements containing the specific questions they had raised to enable the Recorder to provide “further responses,” and reopening the hearing to allow the Recorder to “present further argument.” 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, “I was not assigned to another CSRT panel.” He pointed out, however, that OARDEC’s response to the decision was “consistent with the few other instances” when the rigged system had been bucked. In meetings attended by Abraham that followed the sporadic decisions that detainees were not “enemy combatants”–there were only 38 in total, out of 558 CSRTs–he wrote that the focus of inquiry was always “what went wrong.”

Speaking after the affidavit was first publicized, Abraham said that he had first raised his concerns about the tribunals during his time at Guantánamo, but had decided to submit the affidavit because “the issues were not adequately addressed.” He told the Associated Press, “I pointed out nothing less than facts, facts that can and should be fixed,” adding that he had a responsibility to point out that officers “did not have the proper tools” to determine whether a detainee was in fact an “enemy combatant,” and explaining, “I take very seriously my responsibility, my duties as a citizen.” David Cynamon, one of al-Odah’s lawyers–who was put in contact with Abraham by his sister, after she attended a public lecture on Guantánamo given by Cynamon and his colleagues–described Abraham’s affidavit as “prov[ing] what we all suspected, which is that the CSRTs were a complete sham,” while adding that he feared that his courage was “probably an assurance of career suicide.” Cynamon’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, “It wouldn’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. It’s our only view into the CSRT.”

In fact, MacLean’s comments were not entirely accurate. Whilst it’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 “enemy combatant” because of exactly the kind of “generic” allegations described by Lt. Col. Abraham. The Saudi charity he worked for, the World Assembly of Muslim Youth, was described as an organization that “supports terrorist ideals and causes,” 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 “one of the most active” Islamic NGOs “providing logistical and financial support” to mujahideen operating in Afghanistan and Pakistan, which “may be” associated with Osama bin Laden.

An exasperated Hamad refuted all the allegations, at one point telling his tribunal, “arresting 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 [organization’s] political views or its financial resources, so why do you punish me for a crime I did not commit. Why don’t you arrest the charities’ presidents or the people who support [them] financially instead of arresting a simple employee with no informational value?” Predictably, his tribunal judged that he had been correctly designated an “enemy combatant,” 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 Department’s list of terrorist organizations, he argued that, “even assuming all the allegations… are accurate, the detainee does not meet the definition of enemy combatant.” He added, “These 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 “terrorist ideals and causes” is insufficient to declare one of the employees an enemy combatant.” 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. Abraham’s affidavit–wrote that the case “passed the ‘low evidentiary hurdle’ set up by the rules of the hearings.”

In two other cases, the dissenting officer was not a tribunal member, but the detainees’ 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 “participate in any meaningful way,” as Lt. Col. Abraham noted of the Personal Representative in his tribunal. In February 2006, however, in two articles for the National Journal, Guantánamo’s Grip and about/njweekly/stories/2006/0203nj4.htm” 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 tribunals’ legitimacy even more comprehensively than either Lt. Col. Abraham or Adel Hamad’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 “enemy combatant” 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 “20th hijackers” 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 “extreme interrogation techniques” (otherwise known as torture). The second allegation–that Saif had been seen at Osama bin Laden’s private airport in Kandahar, where he was “wearing camouflage and carrying an AK-47”–proved so intolerable to his Personal Representative that he submitted a written protest, in which he stated that the government’s sole evidence that Saif had been at bin Laden’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 “had 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.” The Personal Representative wrote, “I 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 Taliban’s children) is an enemy combatant (partially because he slept under a Taliban roof).”

The “notorious liar” 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, “The 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.”

The identity of the other 58 detainees falsely accused by the “notorious liar” are unknown, as the dissenting officer involved in unveiling this monstrous injustice–perhaps unwilling to risk “career suicide”–has not come forward to elaborate, but in my forthcoming book, The Guantánamo Files , I report on numerous other examples of patently false allegations masquerading as “evidence,” which were ignored by compliant tribunal members accepting the “low evidentiary hurdle” of the process. While I wait to see if Lt. Col. Abraham’s principled stand will encourage other insiders to speak out, it’s worth pointing out that Adel Hamad, Farouq Saif and Mohammed al-Tumani remain in Guantánamo. Hamad has finally been judged to be “No Longer an Enemy Combatant” and is awaiting release, but Saif and al-Tumani are still damned by the false confessions of a “notorious liar.”

Andy Worthington (www.andyworthington.co.uk) is a British historian, and the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (to be published by Pluto Press in October 2007).

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