Since the election of Barack Obama as the 44th President of the United States, the closure of the “War on Terror” prison at Guantánamo Bay, Cuba has become a hot topic. Throughout his election campaign, Obama pledged to close Guantánamo, and he reiterated his promise during his first TV interview as president-elect, on November 15.
In recent weeks, however, a number of commentators – including reporters at the Weekly Standard, and researchers at the Brookings Institution (PDF) – have stepped forward to warn the president-elect that his promise will be difficult to fulfill, because, according to the government’s allegations against the remaining 252 prisoners, a significant number of them are connected with al-Qaeda, or were otherwise involved in militant activity.
The problem with all these reports is that those responsible for compiling them have taken the government’s allegations at face value, and have not investigated the many reasons for concluding instead that the government’s evidence is unreliable. In an attempt to encourage a much-needed scepticism regarding the government’s claims, Andy Worthington, the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, recently conducted the following interview by phone with Lt. Col. Stephen Abraham, a man who knows more than most about why the allegations against the prisoners are fundamentally unreliable.
A veteran of US Army intelligence, Lt. Col. Abraham served from September 2004 to March 2005 as part of OARDEC (the Office for the Administrative Review of the Detention of Enemy Combatants), the organization responsible for conducting the Combatant Status Review Tribunals (CSRTs) at Guantánamo, as well as compiling the information used by those tribunals. The CSRTs, which began shortly after the Supreme Court ruled in June 2004, in Rasul v. Bush, that the prisoners at Guantánamo had statutory habeas corpus rights, were introduced as a deliberate attempt to subvert the Supreme Court ruling, and were widely criticized for preventing the prisoners from having legal representation and for relying on secret evidence that was withheld from the prisoners.
However, it was not until Lt. Col. Abraham filed a statement in connection with one of the Guantánamo cases that a former insider confirmed that the gathering of materials for use in the tribunals was severely flawed, consisting of intelligence “of a generalized nature – often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” that “what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” and that the whole system was geared towards rubber-stamping the detainees’ prior designation as “enemy combatants.” In a subsequent statement, Abraham also pointed out that, because the tribunals had little or no access to the intelligence agencies, “Most of the information collected … consisted … of information obtained during interrogations of other detainees” (and may, therefore, have been made through the use of torture, coercion or bribery).
Andy Worthington: Good day, Stephen. It’s a pleasure for me to conduct this interview with you, as I have been following your story since it first broke last June. To begin, I was hoping that you could briefly describe your background.
Stephen Abraham: I’m 47 years old, and I was commissioned in the U.S. Army as a second lieutenant in 1981, just after my 21st birthday. I was a reserve officer on active duty for the first six years, and I was an intelligence officer the entire time. I spent some time in Europe, as a HUMINT [human intelligence] officer working on issues involving terrorism, sabotage, treason and espionage. From this we may presume that I am not altogether unfamiliar with the composition of the respective intelligence services and other organizational interrelationships of relevance to the present subject.
I then planned to attend law school, but I was mobilized in support of “Operation Desert Storm,” and spent the time in Washington, working closely with different national intelligence components. I then went to law school, remained in the reserves, thought everything was going along fine, and then someone collapsed two buildings and the “War on Terrorism” began in earnest.
Andy Worthington: And how did you come to be involved in the tribunals at Guantánamo?
Stephen Abraham: Shortly after September 2001, I was mobilized for one year to the Joint Intelligence Center in the Pacific, where I served as lead terrorism analyst. I then returned to my family, my home and my livelihood [as a civilian attorney] until I was asked if I would consider working at OARDEC for six months. I said yes, viewing the offer, as the organization was described to me, as an opportunity of historic dimensions.
I was communicating back and forth with the individual who invited me, and during that time I was conducting a great deal of research regarding what I anticipated would be the scope of my duties. It was an expectation that fell short, and an enthusiasm that was dampened within a short time of my arrival.
Andy Worthington: I’ve read a lot about your experiences, but I’ve never heard you say before that it took such a short amount of time to become disillusioned. Can you explain more?
Stephen Abraham: Let’s begin by understanding very clearly the context in which I was to perform whatever duties would subsequently be assigned. OARDEC is an organization under the Secretary of the Navy, but which was mobilized very quickly in the wake of the Supreme Court’s two decisions in June 2004 [Rasul v. Bush and Hamdi v. Rumsfeld]. OARDEC had been set up to conduct annual review boards, and was dealing with what I call aspects of detention preliminary to war crimes tribunals – or, as we know them, the Military Commissions – but there was no institutionalising of the process used to determine whether individuals were “enemy combatants.” Until the Supreme Court made its ruling, there was no reason for them to do it.
Very quickly, in July 2004, the authorities realized that they now needed to hold what we refer to in shorthand as tribunals – the Combatant Status Review Tribunals (CSRTs). So they took the preexisting organization and said, we will have it do the CSRT process. At that point OARDEC became responsible for conducting tribunals. Slight problem: OARDEC had never conducted a tribunal, didn’t know how to conduct a tribunal, and was woefully understaffed to be able to do all of the things necessary to conduct a tribunal.
So whereas before you might have had officers determining whether someone is now a “nice guy” – by taking current information, contemporaneously collected; that is, information relating to their detention, and trying to make subjective decisions abut it – now suddenly you’re having to collect information that relates to periods of time perhaps years before the board is convening. The board was now going to have to consider information that might be collected from host nations, from other agencies, that might speak to moments years in the past. So OARDEC had to be able to collect information, process it, assimilate it, evaluate it and ultimately make decisions based on it.
The problem was that the organization only had a few individuals who were actively engaged in the information gathering functions of OARDEC and now they were handed a Herculean task. They very quickly increased the numbers of individuals that were assigned to the unit, but all the while the reserve components were stretched intolerably thin, which means essentially that the authorities were putting out calls not for the most qualified individuals, but for anybody who could spare six months of their lives. What this also means, with no disrespect intended towards any of the individuals who volunteered, is that they had whoever was available, whenever they could be available, and no matter what their skill set. So they got merchants, they got non-intelligence professionals, they got accountants, they got postal workers, they got anybody who was available. The organization got individuals with incredible military skill sets, but, unfortunately, skills geared towards conventional military tasks, not the legal tasks thrust upon the organization.
Andy Worthington: This sounds very much like what I’ve heard about the recruitment of personnel elsewhere in the “War on Terror.” In 2003, in a report produced for the Pentagon by the Center for Army Lessons Learned (PDF), the Center’s director, Lt. Col. Bob Chamberlin, concluded that the lack of competent interpreters “impeded operations” in Afghanistan and Iraq. “Laugh if you will,” he wrote, “but many of the linguists with which I conversed were convenience store workers and cab drivers, mostly over the age of 40. None had any previous military experience.” Most of the linguists, he insisted, only had “the ability to tell the difference between a burro and a burrito.” This, I think, is an example of a situation similar to what you were talking about at OARDEC, and, like your experiences, it demonstrates that whether or not there was any intention of establishing a high ideal, what was actually involved was simply making the most of whoever was available.
Stephen Abraham: Exactly. I should not have been surprised that there simply wasn’t going to be a readily available pool of skilled intelligence professionals, and if they had made the decision to create an organization, rather than to assign the task to an already existing organization, it might have been different. But as it was, the people with the skill sets required to jump right in and perform the function to the degree suggested by the Supreme Court were not available. So essentially what OARDEC did was the equivalent of insisting that an all-volunteer staff with limited relevant experience run before they walk or even crawl.
They were going to take people who for the most part, with few exceptions, had no experience reading and applying Supreme Court decisions. And to these people what they attempted to do was to give a layer of insulation. They said, “You don’t need to understand the legal nuances of what the Court was addressing. We’re going to give you implementing guidelines and regulations and that will be good enough. And then you will be able to perform all the functions of OARDEC.”
The problem is: if, as Secretary of the Navy, Gordon England said, at the very outset, they didn’t have the facilities, they didn’t have the resources, they didn’t have the budget, they didn’t have the manpower to do all these things, and they didn’t have the authority to task agencies to provide information, something was going to have to yield, and in this case it was, at its simplest level, any regard or any respect for the Supreme Court decision. So they could create an organization, they could give it a task, they could tell it, as if these were autonomic functions, what it would do, how it would wave its hands, how it would move paper from the left side to the right, but they couldn’t expect an independent, fact-finding and decision-making body. For it to do anything that reached the level of a competent tribunal, it wasn’t possessed of the ability to do that.
Andy Worthington: OK, so there’s a couple of fundamental problems here with the set-up, one of which is that you’re explaining that the personnel recruited were not able, in general, to do the job, but the other is to do with the information you were allowed, or not allowed access to –
Stephen Abraham: Absolutely. Bear in mind, in our discussion at this point, we have only touched upon general aspects of the organization. We haven’t even gotten to what are some of the more profound and serious issues that plagued the organization and in fact rendered its ability to perform its duties impossible. The best way, perhaps, to leap forward and describe that is to describe the environment in which most of the intelligence organizations work, and by this what I’m referring to are the organizations that, by necessity or function, would have dealt with the kind of information that, in all likelihood, would have related to the detainees or the environment, context or setting in which they presumably operated.
Most of that information – timely, raw information collected by a myriad of sources relating to their activities, at a human level – would have been some of the most classified pieces of information that you would expect to see. Not finished products, not analysis, but raw reports, highly classified and fairly sensitive. Now if I were to ask you, what did so-and-so do or what were the conversations he had on a particular day or at a particular location, or what corroborative information do you have relating to these activities, it might involve the use of very sensitive sources. Right away, the question is: what did OARDEC have access to? Directly, OARDEC had access to none of that information. Put a big zero there. Couldn’t have gotten it, couldn’t have seen it, couldn’t have had direct access to it, couldn’t in all likelihood have even requested it.
Andy Worthington: Because you weren’t allowed access to the agencies that had this information?
Stephen Abraham: What we didn’t have was the architectural capability to directly access the information. Now the argument might be made that very few people would have access to this type of information, but that’s rubbish, because, in the year that I was in the Pacific Theater, I had access that was appropriate to respond to the tasks assigned to me, and the fact is, if I was told to do something, I had access to the information needed to perform those tasks.
However, at OARDEC, for the vast majority of the people there, they were largely unaware of the sort of sources of information that should have been made available for them to be able to competently perform their tasks. They didn’t even know that many of these organizations existed, and even if they did they had no ability to get the information.
Andy Worthington: Do you think that this was deliberate on the part of the administration, that they weren’t actually seeking any quality of review of any information?
Stephen Abraham: There are two ways of looking at it, the result of which, from either perspective, is exactly the same. One, as you say, is that they always understood that, in some twisted Machiavellian way, if they gave the job to a non-functional organization, which, by any number of criteria, was incapable of performing its work as described, this would further a particular agenda.
The other way of looking at it is that they are blazingly incompetent. You know, if I tell you that you need to write a top secret report, but I don’t give you access to top secret information, or systems, or to an architecture that allows you to have access to that information, we can say, “I intended for you to fail,” just as we can also say that the deprivation of resources would render the task impossible. In either case, the end result is the same: you can’t do what I’ve asked you to do.
Andy Worthington: So do you think it was bit of both, if that’s possible?
Stephen Abraham: I think that either one is certainly plausible. If anyone who was responsible for setting up the organization insists that they had the knowledge to appreciate and understand fully what would have been required to perform the duties, then I have to ascribe to them a more sinister motive. On the other hand, if you take a less intellectually invested approach to it, and say, “Gosh, all I knew is that I had to run these tribunals,” then perhaps we can ascribe to them a degree of incompetence – or a failure to appreciate the degree of sophistication that needed to be incorporated into the construction of the organization. You can’t seriously believe that you can take a hundred people off the street, not vest them with the authority to request or to collect information – essentially, put them at the mercy of providers of information who, without any suggestion of common courtesy, need not respond to those requests – and expect them to be able to do their job.
If I task you with conducting a tribunal, but you have no experience conducting tribunals, you’ve never worked with intelligence organizations, you’ve never worked with this kind of information before – in other words, this is in every way alien to you – and I say, “Go search on the system for information relating to the detainees,” you don’t even know how to begin the search, and you ultimately come to the conclusion that there’s no information on the detainee within your system, so that there’s nothing you can physically do by yourself.
But then I say, “Don’t worry, we’ll request information from the other intelligence agencies,” but they have no obligation to respond to the requests, and you have no ability to confirm the diligence of their searches, and so, as you assess your ability to succeed at this mission, to what conclusions do you come? I would be fairly quick in saying, “I hope I’m not being paid or rated based on substantive performance markers, because this is a mission doomed to failure.”
I hate to say it, but within a very short period of time, as I spoke with one of the civilians who was there, and who was responsible for also engaging in this liaison function – you know, asking him, “Have you talked with this agency, with that agency? Where are the terminals that will allow access to particular categories of information?” – I was told, “We don’t have them.”
Of course, I could tell from the building itself, and its setting – I knew that they would have no access to that sort of information. When I asked what invested liaison officers there were from these other organizations, the answer was, “none.” When I asked what the timeline was for the collecting of information for requests and responses, it was woefully short and inadequate. There was no hammer, so to speak, if an agency decided not to participate.
Andy Worthington: But this, surely, was part of the process in which everything was expedited, whereby all 558 tribunals were supposed to take place in as short an amount of time as possible?
Stephen Abraham: Yes, but whether they had said three days, 30 days or 300 days, the bottom line is, if you had no ability to assess the completeness of information, then when you started the tribunal – in terms of your assessment of the quality of the record with which you’d be going forward – it was largely a futile exercise. After all, no matter how much time you spent developing a record, to what extent could you say that it was complete, that it was accurate, comprehensive, that it tended to draw an accurate picture of the detainee who was facing the tribunal? You just simply couldn’t. It was a random collection of information in almost every instance.
Andy Worthington: So what you have expressed in the past, about how generic information was put into the pot, because there was very little specific information relating to the prisoners in question, you’ve expressed this very well. Moreover, I understand from my sustained study of the prisoners’ stories for The Guantánamo Files that it is valid to look at the tribunals as a pale and mocking echo of the Article 5 battlefield tribunals that are supposed to take place close to the time and place of capture, according to the Geneva Conventions, so that people who know whether those captured are farmers or soldiers can come and give evidence, and say, “This is a farmer, you’ve got the wrong man.” This, of course, is what happened in all U.S. wars since the Second World War, including “Operation Desert Storm.”
So the tribunals are a horribly dysfunctional echo of the battlefield tribunals, in which everything was expedited, and requests for outside witnesses, which were supposed to be part of the architecture of the tribunals, were never fulfilled – not a single outside witness was called – and my feeling is that no depth was really required in the tribunals because, as you’ve said, the impression that you came away with, having undergone this six-month experience, was that it was designed to rubber-stamp the prisoners’ prior designation as “enemy combatants.”
Stephen Abraham: What it was designed to do – and in that regard, let’s be clear, it succeeded beyond most people’s wildest expectations – was to get the outside lawyers off the administration’s asses. Let me explain what I mean by that. You had two Supreme Court decisions in 2004, saying – first O’Connor, then Stevens – you have to have some kind of a hearing that comports with notions of due process, and it’s not just limited to American citizens.
So the administration then very quickly had to create this tribunal process. What they had to be able to do was to represent to the world that the process exists, and that they were capable of performing the functions described within the context of the organization committed to that process. Now what I just said is utterly meaningless. It’s like a ne’er-do-well saying, “I have this capability of working.” The fact is, he sits on his ass doing nothing. So the administration had an organization that was capable of conducting a hearing – not particularly well, but it could certainly conduct a hearing – and, as you and many others have seen, it had the capability of conducting hundreds of hearings.
The problem was that, if you take the moment that the organization decides to have a hearing – Day One – and it sends out notices to the countries [with which the prisoners may, in some way, be involved], saying, “We’re going to hold a hearing,” the country itself has no duty, obligation or even a motive to respond. Essentially, their reaction to the letter is, “So what?” You also send the letter to different organizations outside of your own – outside of the Department of the Navy, in many instances outside of the Department of Defense – and you say, “We’re going to hold a hearing in 30 days,” to which they respond, “So?”
But you go further. You ask for information. And let’s keep this real, pragmatic. Let’s talk about what motivates responses. In a theoretical sense, you might expect the answer to be, “We’re all on the same side, we’ll get you what you need.” But that’s not a response that was received by OARDEC. Responses, though not always expressed openly, were motivated by a number of primary questions: “Who’s paying for this? What assets do I have available? What are you asking me to do? What’s your authority for asking me to do it? Have I programmed your request into my annual resource budget? Is this something I have that’s available because somebody else has already asked for it, so I can give you a copy, or are you asking me to do new work? How long is it going to take me to do it, and how will that interfere with other missions for which I have organizational or even statutory obligations?”
Andy Worthington: I understand that, and it’s very interesting on the level of, “Where’s the budget for my responsibility?”
Stephen Abraham: But not just, “Where’s the budget?” but, “Where’s my ability to do it?” And that then leads to the other organizations looking at OARDEC and saying, in essence, “Why do you think that I’m forced to respond to you?”
Andy Worthington: I’d like to ask you one more specific question about the gathering of information for the tribunals. In your declaration last November, you explained that, because OARDEC had little or no access to the intelligence agencies, “Most of the information collected … consisted … of information obtained during interrogations of other detainees.” This is a point that I think is particularly relevant as the moment, as various pundits begin looking at the Unclassified Summaries of Evidence and raising alarms about how dangerous the remaining prisoners are, and how very carefully Barack Obama should tread. Now I know, from my own study of the documents and from my knowledge of Guantánamo’s history, that the many allegations made by unattributed “al-Qaeda lieutenants” and “al-Qaeda operatives,” and other unidentified “sources,” are unreliable because they may have been made through the use of torture, coercion of bribery (the promise of better treatment in exchange for “confessions”), but I wondered if you could elaborate a little on your experiences of the information obtained from other prisoners.
Stephen Abraham: Though it would be wrong to characterize all of the information obtained from detainees as being the product of “torture, coercion or bribery,” it is important to consider the information both discretely and in the aggregate. What I mean by that is to look at the totality of the information on the one hand. How was it obtained? What were the motivations of the sources? What issues might have colored the testimony, such as fading memories over time, bias on the part of the witness, or promises of favors? Also, to what degree would comparisons of different pieces of evidence tend to belie assurances of legitimacy where the claims of a detainee against one particular detainee mirrored other claims against other detainees?
The problem is not just the issues we easily raise now, years after the tribunals were held, but the fact that the tribunal members never knew of these issues and never considered them in weighing the information presented at the hearings. Simply put, tribunal members were told to trust all of the information presented against the detainee without hesitation or question, and to distrust any inconsistent testimony or other information. That is not the hallmark of a fair hearing and not a hearing in which we, citizens of a nation of laws, should put any faith.
Andy Worthington: Moving on the judicial decisions in the last six months, I wondered if you could talk a little about the Supreme Court’s ruling, in June, in Boumediene v. Bush, that the prisoners had constitutional habeas corpus rights, and another important ruling in the same month, when, in Parhat v. Gates, an appeals court ruled that the evidence against Huzaifa Parhat, one of 17 Uighurs at Guantánamo (Muslims who had traveled to Afghanistan to escape Chinese oppression in their home province, had been caught up in the chaos of the US-led invasion in October 2001, and had then been sold to US forces) was inadequate, and that the government had failed to establish that he was an “enemy combatant.”
Stephen Abraham: These two decisions represent a remarkable moment in our history, not merely for what they have to say about the rights of a few detainees, but, instead, because of what they say about us, individually and as a nation. In Boumediene, the Supreme Court upheld the habeas rights of the detainees. But what was implied in the opinion is the notion that such a right can be denied no one, if not a detainee. Importantly, from this emerges the principle that certain rights really are inalienable, that they are not created by governments, that they are not indulgences to be dispensed and easily withdrawn, and that they may be abridged only under the most extraordinary circumstances.
Parhat represents, perhaps, an even more extraordinary moment, because of the judges’ comment that the government was not to be taken at its word. That is, just because it was said does not make it so. This statement resonated strongly with me because of the presumptions that overshadowed everything done at OARDEC. The tribunals were conducted in the shadow of irrebuttable presumptions, rules of play that could not be challenged. We were to presume the information we were given to be complete, accurate, uncontestable, and applicable. With that as the starting ground for the tribunals – or, for that matter, any administrative or judicial hearing – how could you possibly have an outcome other than was dictated by the convening authority, in this case the very government intent on keeping the detainees indefinitely?
If you’re engaging in a criticism of the administration, the CSRTs are such a small thing that they’re barely noticeable, but if you talk about Parhat as the clearest demonstration of hubris, of indifference to the Constitution, of antagonism towards constant principles, it is perhaps, in the eight years of this administration, the best example you will ever find, and probably the best example in the history of our nation.
These two decisions, separately and together, represent an incredible moment in our history, a moment when our government was reminded of the fact that it was and is not an institution above the laws by which we all exist and not an institution beyond the limits that we as citizens granted.
Andy Worthington: As you and I know, Parhat was one of the hollowest stories of the lot, but in general I know that the whole saga of the “classified evidence” is also hollow in so many cases, and that the vast majority of the prisoners were either completely innocent men caught in the wrong place at the wrong time or a bunch of Taliban foot soldiers who knew nothing about al-Qaeda.
Stephen Abraham: OK, but if what you want to do is make the story of Guantánamo about people wrongfully held, then to my mind it is not only ultimately not a compelling story, it’s not a very significant story. By that I mean, this world has seen millions of injustices. Even now, we could limit it to a day and find a million injustices. What is so amazing about this story is that a President, an administration – with the complicity of every citizen – was allowed to absolutely shred the limitations on executive power, and in doing so show a flagrant disregard for fundamental human liberties. Not just rights, but the very essence of what entitles a human being to be respected as such.
Think of Guantánamo as the first experiment in a much larger experiment, in which the ultimate conclusion that the administration hoped to reach was that human beings are little more than vassals, that they exist, they stand on the earth, only as the result of a royal indulgence. I mean, that’s really the issue. And as Parhat demonstrated, the presumptions of the validity of the evidence melted away. Finally, here was a Court that got it. Just because the government says it’s so doesn’t make it so.
Andy Worthington: Well, exactly, but also because it took so long to get to point where a court was enabled to review the evidence.
Stephen Abraham: What we ultimately need to get to, where you have an adversarial process, is a declaration by a court that there are, firstly, no irrebuttable presumptions, that irrebuttable presumptions are an anathema in a system that, at its core, relies on, and claims to give regard to due process. You can’t have due process and irrebuttable presumptions, which lead to the certainty of a conviction, or a designation [as an “enemy combatant”]. Secondly, with respect to rebuttable presumptions, there must be certain limitations: they cannot relate to the weight of the evidence, to the quality of the evidence. You can’t say, “I presume this evidence to be valid, I presume the source to be beyond reproach,” because in that regard all you’ve done is give another name to an irrebuttable presumption.
And this is what OARDEC did. You can say anything you want as a detainee, but you may not contradict any of our “facts.” Why participate? That was the truly offensive element of what was going on. It wasn’t that we were told to reach a decision; rather it was that we were told to reach a decision based on a one-sided presentation of evidence that we were not allowed to question. And our tribunal – the tribunal I served on – said no.
Andy Worthington: Could you explain just a little bit about the tribunal that you served on, in which you and your fellow tribunal members decided that the prisoner in question was not an “enemy combatant”? This is another extremely important aspect of the rigged nature of the tribunals, of course, because you were then asked to change your opinion, and when you refused, you were never asked to serve on a tribunal again, and a new tribunal was convened which reversed your decision.
Stephen Abraham: Deciding the fate – what we thought would be deciding the fate of a Libyan of no particular significance [Abdul Hamid al-Ghizzawi, still imprisoned at Guantánamo]. We were given information relating to, or what I presumed would be relating to the individual that was the subject of our tribunal. The information related in very few respects to his pre-detention history. It spoke in very general terms of the organization of which he was said to be a member [the Libyan Islamic Fighting Group]. The information on the organization was extremely generic. It related to an organization that was antithetical to the interests of the standing government of Libya, a rather curious situation, in that I always thought that the enemy of my enemy is my friend. And yet, for whatever reason, it had been listed as an organization associated with terrorist activities. There was absolutely nothing in the information to suggest that he had in any way been closely associated with, or had acted in any way that facilitated or contributed to terrorist activities. Nor was there any information that was linked to him directly, or that linked him to al-Qaeda, to the Taliban, or to anything else.
Andy Worthington: So there was not even any kind of thread drawn to any terrorist organization?
Stephen Abraham: No, it was absurd. Six Degrees of Separation.
Andy Worthington: But with Huzaifa Parhat, for example, the allegation was that the Uighur resistance group (the East Turkistan Independence Movement) was associated with al-Qaeda by two degrees of separation, even though there was no evidence linking Parhat or any of the other Uighurs to the group itself. Was it not the same with the LIFG?
Stephen Abraham: Let me give you an extraordinary connection, the very nature of which I think is irrefutable. I was in Paris in 1975. So was Ayatollah Khomeini. Do I need to go any further?
Andy Worthington: But this is interesting as well, Stephen. Just to digress for a moment, the study of the prisoners that the Seton Hall Law School undertook (PDF) – and I also covered this topic in The Guantánamo Files – established that prisoners were accused of associations with supposed terrorist groups that weren’t on any official terrorist exclusion lists.
Stephen Abraham: OK, but I have to say this: We need to be very careful, because, in having tallied the indicators of criteria that were set forth within the Unclassified Summaries of Evidence that were presumed to form part of the basis for the determination of whether somebody was or was not an “enemy combatant,” what people need to understand is that many of the criteria that were used came from a static checklist. So in terms of a more refined narrative, there in fact might have been no indicators that the criteria used were most appropriate. The problem was that they were the only criteria that were available, so they essentially were checked off. They were close enough.
So we have to be very careful not so much for the individuals for whom there was an absence of the criteria, but those for whom there is alleged to have been a presence of the criteria, because to say that somebody is associated with the Taliban is fine as a checklist response, but the problem is that, unless you know what the evidence is that led to that conclusion you really can’t even decide from the presence of the checkmark in that box that it is a valid assessment. And the problem is that for most of the detainees, even the criteria by which they were ultimately concluded to be “enemy combatants” are, I think, based on incomplete information – on information that doesn’t rise to the level of probative, competent, material evidence – and a lot of false syllogisms.
Andy Worthington: And you know, presumably, about the “low evidentiary hurdle” that was established as part of the tribunals.
Stephen Abraham: The evidence – you know, I wish that we would stop using the word “evidence” because we give to the material that presented the imprimatur of validity. Most of the information, most of the material didn’t rise – in terms of a lawyer’s perspective, a litigator’s perspective – to the level of evidence, either qualitatively or quantitatively.
I think if we want to describe what OARDEC did, first it’s OK to call it a tribunal, but I think there are other words that should not be used. I think “findings” should not be used. For example, you can reach a conclusion on fundamentally or inherently unreliable information, but I wouldn’t call it a finding of fact. I wouldn’t call what was done a legal process. I would avoid using words that really are terms of art within the legal community, because they give a false sense of comfort: “They received evidence, so it must have been OK.” No, they didn’t receive evidence; they received material, the quality of which was never competently vetted. Nobody could speak for any of the necessary elements of information before it would be admitted in any court, and it’s fine to say, “well, this isn’t a court of law,” but at the very least it was a body – presumably of sound reason and of judgment well exercised – and if that was going to be the case you would certainly not have expected that what would be accepted would be the word of anybody who could just walk off the street and say, “That man’s guilty.” What is this, the Queen of Hearts?
Andy Worthington: That’s a very good point. And given that this was not supposed to be a legal process, but was supposed to be an administrative process that would stand up to outside scrutiny and that would justify itself, the important thing that you did, as somebody who had taken part in the process, was to say, “this does not stand up to any outside scrutiny whatsoever, so how could this possibly be any substitute for a valid legal process?”
Stephen Abraham: And really, in your last comment, you make the point. Let’s get rid of the notion of an administrative board, because, you know, it’s terms of art again. It’s a board that’s going to reach a decision based upon the presentation of factual matters. At the end of the day it has to be only one thing: fair. It only has to be fair. The problem was, these hearings were never set up to be fair, and when there is the risk that a hearing will not be fair, it is important that it be transparent, it is important that it be capable of review, it is important that the processes can be evaluated for the degree to which they comport with clearly defined procedures established before the hearings begin. You can’t take a person and say, “I will now give you the kind of proceeding to which you’re entitled based on what I’ve already decided about you.”
Andy Worthington: Moving on, I wanted to ask if you thought that your statement about the tribunals, which was included as a submission to the Supreme Court, made a difference to what the judges decided about the rights of the prisoners in Boumediene.
Stephen Abraham: I don’t know. Unfortunately, the Supreme Court didn’t decide that the tribunal proceedings – which were the subject of its review – were a sham. The judges didn’t argue the quality of the evidence. If they had, I would have said, “My God, I guess my submission made a difference, because I said the stuff was a joke.” All I can say is that the Supreme Court had denied the petition for review, had denied the petition for writ for certoriori, then there was the request to reconsider. Now these are always denied, but in this case it wasn’t.
My declaration was not on the first brief. It was on the last brief. It was after the government had responded. You know, you look to what is unique about this, that in some way affected the minds of two justices – or at least one – and you know the declaration was unique, but it spoke to facts, and I know, as somebody who’s practiced before the Supreme Court, that they rarely listen to the factual pleas. They want to know something broader, they want to know something that relates to legal issues, constitutional issues, and here’s this crazy brief that’s arguing facts. Certainly, it’s different, and I wonder how many petitioners are now going to submit declarations with their petitions for reconsideration, but the fact is that I don’t know if it had any influence. What I do think is that the justices looked at all of the briefs together, with all the materials that were submitted, and they said, “Enough is enough.”
Andy Worthington: Excellent. I really wanted to ask about that, because it was my understanding that you came from a slightly different field from the habeas lawyers, and you were somebody who had been there – inside the tribunal process – who said, “By the way, while you’re thinking about this, you might want to read my dozens of reasons that I’m going to put before you explaining why the whole tribunal process was a sham.”
I think we’re going to have to wind up soon, Stephen, so thank you very much indeed for your time. Before we finish, however, is there anything we haven’t touched upon that you wanted to mention?
Stephen Abraham: I was thinking about habeas corpus, and I was thinking that when we say habeas corpus, we understand it to be inseparable from notions of fundamental human rights, and when the Supreme Court was discussing this, a year ago, six months before they delivered their verdict in Boumediene, I couldn’t understand how they were having a debate for a half-hour about what I think was, by the nature of their discussion, a profound limitation of that right. To ask what the statutory basis is, or what the common law basis is, for the notion that a person is not born free, and does not have an immutable right to dignity and liberty (absent the legitimate exercise of the powers of state) was, I thought, a confession of the absence of the appreciation of that right.
Andy Worthington: Do you not think that Justice Scalia was playing into the hands of Dick Cheney and David Addington, and their desire to institute unfettered executive power? What struck me most about some of the exchanges in the oral hearing last December was that to varying degrees some of the justices were perturbed or outraged about the fact that they understood that that’s what the executive was trying to do, that the executive branch was trying to eliminate their part in the balance of powers in the United States.
Stephen Abraham: And that was really the funniest thing. If you look at what the Supreme Court did, 50 years from now people are going to wonder how this case should be characterized. And it will not be a fundamental liberties case; it will be a separation of powers case. And that’s the problem with it, because what gave rise to Boumediene was an administration that was turning an immutable right into a conferred right. That is the danger of the exercise of power, manifested by Guantánamo. Guantánamo’s merely an example of it, but the fact is that the moment you make liberty a conferred right you can eliminate it, you can suspend it, you can terminate it, but more importantly you can identify the moment of its creation.
That’s the worst part about it, because our government exists not by right but by consent, and it never had the power to create the right of liberty and of due process. Those are constraints on its exercise of power, and what the administration did was it reversed that, it said we have due process because we give it to you, because we created it and we can take it away. You have liberty, not because it is an immutable, fundamental right, but because we created it, and we gave it to you and we can take it away. And I hope that the five justices understood that to be the linchpin, the core, the thrust of the decision, and not a separation of powers issue.
The administration will change. Change is inevitable. But like a stream, the passage of water alone does nothing to change the nature of the water itself. If we make the issues of the last eight years the fault of particular men in a particular time and at a particular location, we will have missed an important lesson of what happened.
The rights of individuals were denied, the essence of those rights disparaged. This happened not because men made it happen, but because we let it happen. It happened not because we surrendered our rights but because we allowed others to redefine them in a way that foreclosed their exercise by others. It happened not because Guantánamo existed but because we allowed such institutions to be created. Closing Guantánamo is a symbolic act that will do nothing to eliminate the ground on which tyranny gains its foothold.
As we are reminded in the words of Martin Niemöller, each of us has the duty to speak for those for whom no one else has spoken. Where silence reigned, injustice found foothold. It is up to each of us to speak. It is up to us to ensure that institutions beyond the reach of laws exist nowhere on this earth. But more importantly than the bricks and mortar by which we build prisons, it is up to us to demand respect of law by all who govern and the dignity of all humans by all who are governed.
December 30, 2008
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press). Visit his website.
