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Guantánamo Whistleblower Launches New Attack on Rigged Tribunals

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Guantánamo whistleblower Lt. Col. Abraham, an Army reservist with 20 years experience in military intelligence, worked at Guantánamo from September 2004 to March 2005, and first came to prominence in June, when his criticisms of the Combatant Status Review Tribunals (CSRTs) - convened to assess whether the detainees had been correctly designated as "enemy combatants" - were widely credited with persuading the justices of the Supreme Court to reverse themselves for the first time in 60 years, agreeing to review the detainees' right to challenge the basis of their detention in a case that is scheduled to start on December 5.

In an affidavit filed in the case of Fawzi al-Odah, a Kuwaiti detainee, Abraham delivered a damning verdict on the tribunal process, which he described as severely flawed, relying on intelligence "of a generalized nature - often outdated, often 'generic,' rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals' status," which was designed to rubber-stamp the detainees' prior designation as "enemy combatants."

Last week, Lt. Col. Abraham filed a new statement, which was submitted to the Washington DC Circuit Court as part of a brief in the continuing struggle to secure justice for Sudanese detainee Adel Hamad. A hospital administrator for a large Saudi charity, Hamad had lived in Pakistan for 17 years, working on various humanitarian aid projects, when he was captured by Pakistani and American intelligence operatives in July 2002, based on spurious or non-existent "intelligence," and sent to Guantánamo.

Abraham's latest statement is no less explosive than his first. After giving a little more of his background, pointing out that his last assignment before Guantánamo was as "the Lead Counterterrorism Analyst for the Joint Intelligence Center, Pacific Command," for which he received the Defense Meritorious Service Medal, he explains that he has been asked by Hamad's lawyer to provide additional information about the manner in which OARDEC (the Office for the Administrative Review of the Detention of Enemy Combatants) operated during his assignment, and also "to comment upon certain declarations provided by the directors of the national intelligence organizations," which were filed in an attempt to prevent the courts - and, in some cases, the detainees' lawyers - from having access to supposedly sensitive government information about the detainees.

After revisiting previously aired complaints about OARDEC - specifically that most of the staff "were volunteer reserves forces with little or no experience with intelligence or legal matters," who were ill-equipped to deal with OARDEC's "extraordinary and historic mission" - Lt. Col. Abraham launches a blistering attack on the woeful, and deliberately narrow parameters of OARDEC's capabilities, which, by extension, refutes the national intelligence directors' claims that there was any information worth concealing.

Noting that the mission, as established in July 2004, mandated OARDEC to request "reasonably available information in the possession of the US government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant," he points out that, in reality, "the facilities and systems utilized by OARDEC precluded access to or use of information that OARDEC needed in order to perform its primary mission effectively," and that the mission was additionally hampered because there was "no systematic method for requesting the government information relating to specific detainees," and because the largely unskilled staff "rarely selected the most promising sources of information and failed effectively to identify and pursue leads if any developed."

The specific problems relating to the collection of evidence centered on the fact that OARDEC was only permitted access to material that was "classified SECRET and below" - in other words, that access to "TOP SECRET information," which might have been particularly useful, was denied across the board. This lack of access was compounded by the administration's insistence that all 558 CSRTs were completed within 120 days, and, even more critically, by the fact that OARDEC was "entirely dependent on indulgences from external organizations," having "no organic intelligence assets, no collection capabilities, no dissemination authority, and no direct tasking authority" of its own.

"As a result," he adds, requests for information were "very rarely" sent to the CIA, were never sent to the NSA (National Security Agency) or the DIA (Defense Intelligence Agency), and were only sent to the US Army Intelligence and Security Command when Abraham himself "mentioned this fairly obvious and fertile source of information." Compounding these failures, OARDEC's lack of any "tasking authority" meant that any responses to the limited number of requests that were actually made were "largely dependant on whether anyone at the agency was inclined to do so." In most instances, he concludes, "OARDEC received either a negative response (no information available) or no response at all."

Shorn of almost all genuine sources of intelligence, Abraham writes that OARDEC "relied primarily upon information provided by Joint Task Force Guantánamo" - the organization running the prison itself - "which consisted primarily of post-detention custodial and interrogation reports"; or, in rather clearer language, "Most of the information OARDEC collected consisted of information obtained during interrogations of other detainees."

Describing a typical scenario, he notes that the compilation of material for the tribunals effectively began and ended with the file received from Guantánamo, which contained little more than post-detention summaries of interrogations, and incident reports relating to the detainee's behavior. On some occasions, documentation relating to the detainee's initial detention, "including notes on the contents of items in the detainee's possession" might also be in the file, "but this was not so in every case." He then explains that, even with this evidence, the researchers failed to investigate it rigorously, preferring, instead, to search their "limited databases" and "cast broad nets for any information, no matter how marginal, no matter how tenuous, no matter how dated, no matter how generic, no matter how dubious the source, so long as it could be connected to the detainee."

The result of this slap-dash approach was obvious, and, looked at in conjunction with the lack of access to genuine classified information (if, indeed, any existed) explains some of the more egregious and well-documented failures of the tribunal process. "Where no information was obtained about an individual," Abraham explains - adding, crucially, that this "was the case for nearly all detainees except individuals of prominence" - the search "would shift to more broadly based themes, such as the region from where the individual came, his ethnic group or nation of origin, or any organization denominated as being associated with terrorist activities, with which the individual was alleged to have been associated." For the last of these allegations, Abraham notes, pointedly, that OARDEC personnel "presumed that having an alleged association with an organization was a sufficient basis for attributing all research relating to that organization to the individual."

As Mark and Josh Denbeaux of Seton Hall Law School realized through their analysis of the CSRT documents - and as I write about in depth in The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison - what this meant in practice was not only that a significant number of detainees were tarred as terrorists through the most tangential associations with organizations proscribed by the US government, but also that organizations that were not included on the government's blacklists - like the World Association of Muslim Youth, for which Adel Hamad worked as a hospital administrator - were labeled as entities associated with terrorism.

Furthermore, Abraham notes that "information relating to the credibility of a source was omitted, making sources appear authoritative even when they were suspect," and he uses, as an example, an allegation against a particular group that "would be repeated without disclosing that it originated with one of the groups' political opponents or some government overtly hostile to it" (as happened, in particular, with detainees from China, Libya and Tunisia). He also points out that "independent evidence from the detainee's life before his arrest" was never investigated, even though the detainees' "claims of innocence often could have been corroborated or disproved by a few simple inquiries." He adds that, "beyond impractical discussions about bringing villagers to the nearest video conference facility," he was "not aware of any realistic attempts" to "identify or even attempt to bring before the Tribunal witnesses or their statements," and concludes that OARDEC "was designed to conduct Tribunals without witnesses other than the accused detainee."

This, too, is a topic that I discuss at length in The Guantánamo Files, particularly in relation to many of the Afghan detainees, who begged their tribunals to make a few phone calls to confirm their innocence. In June 2006, the journalist Declan Walsh proved how easy it was to contact witnesses the US government claimed to be unable to find, locating, in just 72 hours, three witnesses, in Washington, Kabul and Gardez, who were able to verify the story told by a wrongly imprisoned pro-US Afghan commander, Abdullah Mujahid (who is still in Guantánamo, even though he has now been cleared for release).

After this comprehensive demolition of the tribunals' claims to competency, Abraham turns to the claims made by the directors of the national intelligence organizations that granting the courts access to government information about the detainees "might risk disclosure of highly sensitive national intelligence information, such as source or method information." He notes in the first instance that OARDEC's systems were so primitive that the staff were unable to communicate electronically with major organizations including the CIA and the NSA, and also had no way of retaining or utilizing highly classified information. "This limitation," he writes, "precluded any possibly that such sensitive information could be incorporated into materials presented to the Tribunals."

Moreover, Abraham points out that "the kinds of sensitive national intelligence information discussed by the intelligence directors is not normally shared between intelligence agencies except in the rarest of circumstances," and specifically rebuts a statement made by General Michael Hayden, the current director of the CIA, and the director of the NSA from 1999 to 2005 - that disclosure of government information would reveal details of "clandestine intelligence operations, including counterterrorism operations, foreign intelligence information and assistance, information provided by sensitive sources, and technical collection activities" - by insisting that this kind of information would not have been disclosed to OARDEC, or to the tribunal members, "under any circumstances."

In a damning aside, Abraham explains that, even assuming OARDEC had been able to conduct an exhaustive search for information, "what it would have likely discerned from the exercise is that there is little information to be obtained on people that have never before been considered let alone determined to be persons of interest." As long ago as February 2002, this was effectively admitted by Guantánamo's first commander, Brigadier General Mike Lehnert, when he stated, "A large number [of the detainees] claim to be Taliban, a smaller number we have been able to confirm as al-Qaeda, and a rather large number in the middle we have not been able to determine their status. Many of the detainees are not forthcoming. Many have been interviewed as many as four times, each time providing a different name and different information."

The administration's response to this failure to extract information from the detainees - who, in 95% percent of cases, were not actually captured by the Americans themselves, but were handed over or sold by their Afghan or Pakistani allies - was to instigate a grotesque system of punishments and rewards, whereby torture became a substitute for the skilled gathering of intelligence. A later component of the regime, as Lt. Col. Abraham has described in such shocking detail, was to rig the tribunals to make it appear that the "rather large number in the middle" - many of whom were completely innocent, or had nothing useful to offer - were a grave and continuing threat to US security.

Given that many of the 310 detainees still in Guantánamo were effectively condemned by this corrupt process, it strikes me that Lt. Col. Abraham's latest statement, which has largely been overlooked, in favor of reports about Guantánamo's leaked operating manual, is at least as significant as his first statement in June.