Dispatches from the Creation Wars

Tim Sandefur sent me a link to this article in the New York Times. The article features an attorney that used to work at the Pacific Legal Foundation, where Tim now works. But Stephen Abraham is not just an attorney, he’s also a highly decorated military officer with commendations for his work in military intelligence and counter-terrorism. He had a close up look at the manner in which the government has conducted detainment hearings to determine which Gitmo detainees should be there and which shouldn’t; he did not like what he saw and he’s speaking out. And as the article points out, as a conservative Republican and military officer, he doesn’t seem a likely adversary for this administration; all the more reason to listen to him. It appears the Supreme Court may be doing so:

In June, Colonel Abraham became the first military insider to criticize publicly the Guantánamo hearings, which determine whether detainees should be held indefinitely as enemy combatants. Just days after detainees’ lawyers submitted an affidavit containing his criticisms, the United States Supreme Court reversed itself and agreed to hear an appeal arguing that the hearings are unjust and that detainees have a right to contest their detentions in federal court.

Some lawyers say Colonel Abraham’s account — of a hearing procedure that he described as deeply flawed and largely a tool for commanders to rubber-stamp decisions they had already made — may have played an important role in the justices’ highly unusual reversal. That decision once again brought the administration face to face with the vexing legal, political and diplomatic questions about the fate of Guantánamo and the roughly 360 men still held there.

“Nobody stood up and said the emperor’s wearing no clothes,” Colonel Abraham said in an interview. “The prevailing attitude was, ‘If they’re in Guantánamo, they’re there for a reason.’ ”

The curtain on the hearings had been pulled back a bit previously, when the Pentagon, under pressure, released some transcripts. But by stepping forward, Colonel Abraham gave the Supreme Court and the public a look from an insider at a process that remains heavily shielded.

And what he reports about the evidence being used to establish that some of the Gitmo detainees ought to be there is pretty disturbing:

He expanded on that account in a series of recent conversations at his law office here, offering a detailed portrait of a system that he described as characterized by superficial efforts to gather evidence and frenzied pressure to conduct hundreds of hearings in a few months.

Most detainees, he said, have no realistic way to contest charges often based not on solid information, but on generalizations, incomplete intelligence reports and hints of terrorism ties.

“What disturbed me most was the willingness to use very small fragments of information,” he said, recounting how, over his six-month tour, he grew increasingly uneasy at what he saw. In the interviews, he often spoke coolly, with the detachment of a lawyer, but as time wore on grew agitated as he described his experiences.

Often, he said, intelligence reports relied only on accusations that a detainee had been found in a suspect area or was associated with a suspect organization. Some, he said, described detainees as jihadist without detail.

Pentagon officials have dismissed his criticisms as biased and said he was not in the position to have seen the entire process work.

As an intelligence officer responsible for running the central computer depository of evidence for the hearings, he said, he saw many of the documents in hundreds of the 558 cases. He also worked as a liaison with intelligence agencies and served on one three-member hearing panel.

All of which has left Colonel Abraham, 46, a civilian business lawyer who has lately been busy with a lawsuit between makers of pomegranate juice, with a central role in the public debate over Guantánamo. His account has been widely discussed in Congress, the administration and the press. On Friday, a federal appeals court judge took note of it in describing what she said were problems with the Pentagon’s hearing process.

He has been called a whistleblower and a traitor. On July 26, he is to testify before a House committee.

His road to notoriety, he says, is entirely of a piece with his biography. A political conservative who says he cried when Richard M. Nixon resigned the presidency, he says he has remained a reservist throughout his adult life to repay the country for the opportunities it offered his family. His father is a Holocaust survivor who emigrated after the Second World War.

“It is my duty,” Colonel Abraham said of his decision to come forward.

Here are some details:

It was obvious, Colonel Abraham said, that officials were under intense pressure to show quick results. Quickly, he said, he grew concerned about the quality of the reports being used as evidence. The unclassified evidence, he said, lacked the kind of solid corroboration he had relied on throughout his intelligence career. “The classified information,” he added, “was stripped down, watered down, removed of context, incomplete and missing essential information.”

Many detainees implicated other detainees, he said, and there was often no way to test whether they had provided false information to win favor with interrogators.

He said he was prohibited from discussing the facts of cases. But public information, much of it obtained through lawsuits, includes examples of some of the points he made.

In a hearing on Oct. 26, 2004, a transcript shows, one detainee was told that another had identified him as having attended a terrorism training camp.

The detainee asked that his accuser be brought to testify. “We don’t know his name,” the senior officer on the hearing panel said.

At another hearing, later reviewed by a federal judge, a Turkish detainee, Murat Kurnaz, was said to have been associated with an Islamic missionary group. He had also traveled with a man who had become a suicide bomber.

“It would appear,” Judge Joyce Hens Green wrote in 2005, “that the government is indefinitely holding the detainee — possibly for life — solely because of his contacts with individuals or organizations tied to terrorism and not because of any terrorist activities that the detainee aided, abetted or undertook himself.”

In a third hearing, an Afghan detainee said he had indeed been a jihadist — during the 1980s war against the Soviet Union, when a lot of Afghans were jihadists. Was that what the accusation against him meant, he asked, or was it referring to later, during the American war?

“We don’t know what that time frame was, either,” the tribunal’s lead officer replied.

During one of the recent interviews, Colonel Abraham said that the general accusations that detainees were jihadists without much more alarmed him.

“As an intelligence agent, I would have written ‘junk statement’ across that,” he said.

This will not be an easy guy to make look like a terrorist-loving liberal traitor:

Colonel Abraham had already served a year on active duty after the 2001 terrorist attacks. At Pearl Harbor, he had been cited for exceptionally meritorious service as “lead counterterrorism analyst,” burnishing a record that included a citation for leading a counterespionage operation in the 1980s that ended with the detention of three Soviet agents.

But you can be sure they’ll try.