It’s been a banner week for Guantanamo Bay. First the Bush administration nixes reports that it plans to close the facility. Then the Defense Department announces a new detainee is on his way there. If that wasn’t enough, according to a declaration filed in D.C. Circuit Court by a U.S. Army Reserve intelligence officer, the hearings that determine whether a detainee is properly classified as an “enemy combatant” are riddled with flaws.
Lieutenant Colonel Stephen Abraham was assigned to the Defense Department’s Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC) for six months in 2004 and 2005. In that capacity, Abraham worked closely with the administrative process known as a Combatant Status Review Tribunal (CSRT) — the one-time, non-legal hearing for Guantanamo detainees that establishes whether or not a detainee should be considered an enemy combatant fit for prolonged detention. Specifically, Abraham’s role was to coordinate with intelligence agencies in and outside of the Defense Department to “gather or validate information” suitable to the CSRTs. And there, Abraham found that the CSRT process is skewed toward keeping detainees at Guantanamo.
In his declaration, obtained by TPMmuckraker, Abraham charges that the officers tasked with gathering information on a detainee — known as a Recorder or a Case Writer — typically have “little training or experience” in intelligence. The fact files they compile are most often “outdated, often ‘generic,’ (and) rarely specifically relating to the individual subjects of the CSRT,” and frequently reliant on a Pentagon database that lacked information from across the intelligence community. “This limitation,” Abraham writes, “was frequently not understood by individuals with access to or who relied upon the system as a source of information.”
Throughout the process, Abraham discovered that officers attempting to comply with CSRT rules to present exculpatory information were frequently obstructed. When he attempted to gather information on a detainee from an intelligence agency aside from a package prepared from him, he was told that no additional information would be forthcoming. An attorney for one intelligence agency refused to certify that no exculpatory information was being withheld. On other occasions, intelligence agencies would overload the intelligence-illiterate Recorders and Case Writers with files, leaving them with “no context for determining whether the information was relevant or probative.”
During one CSRT, Abraham found the evidence suggesting one detainee was an enemy combatant “lacked even the most fundamental earmarks of objectively credible evidence.”
Statements allegedly made by percipient witnesses lacked detail. Reports presented generalized statements 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. Statements of the interrogators presented to the panel offered inferences from which we were expected to draw conclusions favoring a finding of “enemy combatant” from the Recorder…
When Abraham’s team ultimately recommended that the detainee was improperly classified, the then-head of OARDEC, Rear Admiral James McGarrah, ordered the CSRT reopened, “to allow the Recorder to present further argument as to why the detainee should be classified as an enemy combatant.” And what do you think happened to Abraham after that?
I was not assigned to another CSRT panel.
While only a few detainees at Guantanamo Bay are ever charged with any crime, all detainees go through the CSRT process. McGarrah, now retired, testified to the Senate Judiciary Committee in 2005 that the process emphasizes “fairness to the detainee, as well as our clear desire not to detain persons any longer than necessary.”
