Guantánamo: Original Whistleblower Condemns Proposals to Hold New Tribunals as Hypocritical and Cowardly

Speaking to journalists last week, Navy Capt. Theodore Fessel Jr., the chief representative at Guantánamo for the Pentagon's Office of Administrative Review of Detained Enemy Combatants (OARDEC), which oversees the tribunals and review boards convened to assess the detainees' status, hinted that the authorities had "begun seeking new or previously overlooked evidence that may warrant new hearings after the process came under fire," as the Associated Press described it.

Capt. Fessel, who ignored long-standing complaints that the tribunals and review boards are worthless because they rely on secret evidence, possibly obtained through torture, and because the detainees are not allowed representation by lawyers, was referring in particular to recent claims made by former insiders that the tribunals, mostly held in 2004-05, relied on weak and often "generic" evidence and were designed to rubber-stamp the detainees' prior designation as "enemy combatants."

"With all the outside eyes looking in at the process," Fessel explained, "it's forcing us to say, 'OK, did we take everything into consideration when we did the Combatant Status Review Tribunals?'" Stating that, by reviewing cases, the military was "recognizing that some detainees may no longer pose a threat" - and blithely ignoring the fact that 56 percent of the detainees have already been released for just such reasons - Fessel attempted to justify his comments by citing the hypothetical example of "a detainee who belonged to a Taliban faction that has stopped fighting," who "may no longer be a security risk," and summed up the administration's position as follows: "It's an acknowledgment that if there is new evidence or a new thing to take into bearing, in the spirit of being an open and fair process, we have to take that into consideration."

Kessel's comments provoked outrage from Lt. Col. Stephen Abraham, the first insider to speak out in June. In an email to the Associated Press, he wrote, "Ultimately, conducting new CSRTs - even discussing the possibility - repudiates every prior assertion that the original CSRTs were valid acts. They are, in essence, both a hypocritical act as well as an act of moral cowardice."

Picking up on what astute readers will also have noticed in Kessel's reference to "the spirit" of "an open and fair process" - namely, an unconscious acknowledgment that the process was not actually either "open" or "fair" -Abraham added, "The CSRTs were NOT fair. They were specifically designed to reach a result and, in the few instances where a contrary result was reached, pressure was exerted to change the decision, a new tribunal was selected," or the decision was disregarded.

Since filing his affidavit in June, Lt. Col. Abraham has been feted by lawyers who have suggested that his damning analysis of the tribunals helped persuade the Supreme Court - in a move that was so rare that it last took place 60 years ago - to reverse a decision made in April, and to agree to hear the detainees' cases over the coming months, Lawyers hope that the Supreme Court will decide, once and for all, that the detainees have the right to challenge the basis of their detention, and that crucial passages in last fall's shameful Military Commissions Act, which stripped them of their habeas corpus rights, will be struck down.

Noticeably, however, Lt. Col. Abraham's condemnation of the tribunal process was not acclaimed universally, and the Department of Justice in particular attempted to smear his account as "innuendo." In an email exchange with me last week, Lt. Col. Abraham explained that the recent criticism of the tribunal process by an Army Major who took part in nearly 10% of the tribunals - which has provoked this latest admission of backsliding by Capt. Fessel - was personally satisfying. "Part of me feels vindicated by the revelations," he wrote. "Of course, it can hardly be said now that I didn't know what I was talking about."

He then added a poignant footnote, which balanced his criticism of the administration with a regard for the extra-legal plight of the detainees: "But I am saddened by the fact that more detainees, about whom there is no evidence of involvement in terrorism, will likely die before something is done."

Planning new tribunals, as Capt. Fessel has suggested, would not only reveal the original process as a sham; it would also prolong an already intolerable situation, in which, as Lt. Col. Abraham correctly points out, men against whom no evidence of terrorist activity exists will lose more years of their lives - and may even die in Guantánamo - without ever having had the opportunity to challenge the basis of their detention in a manner that is either meaningful or legally acceptable. They should be resisted as yet another example of an administration that, having rashly jettisoned the existing legal system six years ago, remains fixated on patching up its brutal replacement, conceived in haste and fueled by arrogance and vengeance, which has been repeatedly revealed as unjust, immoral and inadequate.

Comments

[drblack]

The whole thing is a sham and the kind of thing I would expect from China, Soviet Union ,not from the USA.
There seem to be a small number of people who may have terrorist ties or intentions in Gitmo but the majority were simply sold to thenUS. In Afghanistan the US offered $10,000 for memebers of Al Qeda or the Taliban so of course the very poor sold out people they didn't like even though they were ordinary Afghan citizens.
So the US tax payer has spent hundreds of millions keeping goat and sheep hearders in maximum security.

[bobleddy]

I think we need to have a remedial U.S. History class on the Founding Fathers and the Constitution for some of the dimmer minds in the class of 2007. Let's start with the current administration. We're going to need to change some of the seats around so we can focus on the neediest, so let's get George and little Dick right up front where we can keep an eye on them.
Let's begin with the starting of fights and torture. First of all it is wrong. It's also illegal and it doesn't work. For instance, if you don't let me sleep for several days and beat me with a phone book from time to time, I'll tell you I was the second gunmen on the grassy knoll. What we have sacrificed for this policy is one of the key elements that made us different, made us great. People believed that in the U.S. everyone would be treated with the dignity and rights they deserve. In past U.S. conflicts enemies on the field of battle would seek out Americans to surrender to because they knew they wouldn't be shot or abused.

My father who is a veteran of the Korean War told me these things about America with pride since I was a boy and I still remember how it made me feel. On another occasion I was watching the History Channel and several elderly German men were telling their stories of being prisoners of war. One after another they began to cry as one of them recounted arriving at their camp and their shock when they arrived at their bunks to discover a mattress a wool blanket and a pillow. Then when they reached their foot locker's a clean change of clothes a German bible and a Hershey bar. These men expressed how amazed they were that they were treated with such care and respect and that America was truly a great place. I sincerely doubt the same stories can be recounted from prisoners at Gitmo or other mobile club feds around the world.

[Sundialsvc4]

If the Pentagon has made it "a dog's breakfast," then the Congress has made what came out of that dog's other end.

Why do we allow blatantly-unconstitutional laws to exist, and punish and torture and kill men under them, until the Supreme Court in its own-sweet-time may-or-may-not state the pathetically obvious?

[freedomis]

Life is more precious if you give it. Tony

Do you see?

Do you see where this people go with this law "the military commissions act of 2006"?

Did we not cross the Rubicon when we went to Iraq and utterly destroy a nation and murder over 600,000 children, men and women that had nothing to do with what happened on 9/11?

A secrecy in a government "of the people, for the people and by the people"? To protect a corrupt cabal, to be sure, and a word, homeland, brought from an earlier time in Germany. Is this de javu?

To propose a law so diametrically opposed to the Constitution sent my heart into a tailspin and to see the congress breach their oath to defend the Constitution with a bevy of excuses that would stump a teen. It makes me sick.

Fear is a cancer, safety is not freedom and only freedom under the Constitution would guarantee what safety we would have. This is not politics to me, this is the most serious of attacks undermining this nation. The road to an oven.

Support the troops? So long as they are someone else"s. Is not this a nation of 300 million and in war are not all to sacrifice? Show me where this is so. It is an abomination. The German said: They came for other different peoples but not him until finally they came for him. He did not speak up and there was none to speak for him. Will they come for you?

Read "em and weep, Tony

Samuel Adams:
"If ye love wealth better than liberty, the tranquility of servitude than the animating contest of freedom,-go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that ye were our countrymen."

[MrLion]

The Pentagon has made a dog's breakfast out of the military justice system at Guantanamo.

Earlier this month, the Wall Street Journal reported that the top prosecutor, Colonel Morris Davis, resigned because his higher-ups had allegedly interfered directly in cases he was prosecuting--despite language in the Military Commissions Act of 2006 that barred outside interference with the professional judgment of prosecution and defense lawyers.