The Guantánamo Whistleblower, A Libyan Shopkeeper, Some Chinese Muslims And A Desperate Government

Since Gitmo whistleblower Lt. Col. Abraham's affidavit first attracted media attention, he has been subjected to a snide response from officials at the Department of Justice, and malignant attempts at character assassination.
07/25/2007 04:56 pm ET Updated May 25, 2011

Lt. Col. Stephen Abraham, the Guantánamo whistleblower, is in the news again. The civilian lawyer, who worked as a military intelligence officer for 26 years in the Army reserves and was decorated for his support of counter-terrorism efforts following 9/11, first came to prominence last month, when he became the first military insider to criticize, in public, the tribunals - known as Combatant Status Review Tribunals - which were held at Guantánamo to determine whether the detainees had been correctly designated as "enemy combatants." In a declaration submitted in the case of a Kuwaiti detainee, Fawzi al-Odah, 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the tribunal process, which he described as severely flawed, relying on intelligence "of a generalized nature - often outdated, often 'generic,' rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals' status." Additionally, he averred that the process was designed to rubber-stamp the detainees' prior designation as "enemy combatants."

In the four weeks since Lt. Col. Abraham's affidavit first attracted media attention, he has been subjected to a snide response from officials at the Department of Justice, and a malignant attempt at character assassination by Andrew McCarthy in National Review. In an "Opposition to Motion to File Declaration" in the Court of Appeals for the District Court of Columbia Circuit on July 6, the DoJ described Lt. Col. Abraham's affidavit as "irrelevant," claiming that his "criticisms of the intelligence agencies and the process of obtaining information from them reflects (sic) a fundamental misunderstanding of how the CSRT process is supposed to work," and suggesting that, although his declaration "insinuates that the CSRT process was improperly slanted, there is absolutely nothing in the declaration to substantiate this innuendo." For his part, McCarthy railed against Abraham's "scant experience," claiming that he had a "lack of direct knowledge about the vast majority of tribunals," and attempted to deride him for being a civilian lawyer as well as an Army reservist.

Rising above mudslinging, Stephen Abraham kindly provided me with details of his response to McCarthy's article, which also serves as a riposte to claims made both by the DoJ and by Navy Lt. Cmdr. Chito Peppler, a Pentagon spokesman, who chipped in recently, saying that, "In his capacity as database manager during his brief stint on active duty several years ago, Lt. Col. Abraham was not in a position to have a complete view of all the evidence used in the CSRTs, as well as the process as a whole." On the contrary, the period that Abraham served as a part of the CSRT process - from September 2004 to February 2005 - was the period when almost all of the 558 cases were presented before tribunals (and was, therefore, not a "brief stint" at all), and his role was far more substantial than the DoJ's mentions of "innuendo" would suggest.

"I was assigned to OARDEC from September 2004 to the end of February 2005," Abraham explained. "During that time, I was personally involved in a wide range of activities relating to the CSRT process. This included serving as one of two intelligence officers tasked with validating the presence or absence of exculpatory evidence, working with research teams ("tiger teams") compiling materials to be used in the CSRT hearing process, addressing matters raised involving the use of intelligence products, collecting and reporting data on the conduct of all CSRT hearings at all steps (from scheduling, assembling hearing packages, starting, conducting, and completing hearings, reporting the results, legal sufficiency review, and ultimate reporting of the results to Secretary of the Navy Gordon England)." He added, "Moreover, I was engaged in senior leadership meetings, included in a large volume of daily communications regarding the progress of the hearings, and participated in nearly daily discussions with the legal staff assigned to OARDEC relating to the conduct of the hearings in the context of federal court decisions as they were issued or applied to the proceedings."

In interviews conducted over the last month for a New York Times front-page article on Monday, Abraham reiterated his complaints, telling William Glaberson, "What disturbed me most was the willingness to use very small fragments of information," and explaining how he grew "increasingly uneasy" over the six-month period that he worked with the tribunals. He explained that intelligence reports often "relied only on accusations that a detainee had been found in a suspect area or was associated with a suspect organization," and that some reports described detainees as "jihadist" without providing any details. Expressing his profound dissatisfaction with this latter point, he told Glaberson, "As an intelligence agent, I would have written 'junk statement' across that." He added that officials were "under intense pressure to show quick results," and that he swiftly became concerned about the quality of the material used as evidence. "The classified evidence," he said, "was stripped down, watered down, removed of context, incomplete, and missing essential information," and, worryingly, "Many detainees implicated other detainees, and there was often no way to test whether they had provided false information to win favor with interrogators" (or, it should, be added, whether they had done so under duress).

Despite the DoJ's criticism, it seems that Lt. Col. Abraham's principled stand has already had a major impact on issues of pressing concern to the detainees in Guantánamo, whose last three years imprisoned without charge or trial have been based on decisions made during the CSRT process. Just three days after his affidavit was filed, the Supreme Court took the almost unprecedented decision to reverse a previous opinion regarding the Guantánamo detainees, agreeing to hear an appeal arguing that the tribunals were unjust and that detainees should have the right to challenge the basis of their detention in federal courts. Many lawyers contend that Abraham's affidavit was a major factor in the Supreme Court's decision.

What has also emerged in the last month is the identity of the detainee who was cleared by Abraham and his fellow tribunal members in the only CSRT for which he was chosen as a member, after which, having refused to rubber-stamp a deeply flawed process, he was never asked to take part in a tribunal again.

The detainee in question is Abdul Hamid al-Ghizzawi, a Libyan who was 39 years old when he was captured in Afghanistan towards the end of 2001. Al-Ghizzawi had been living in Afghanistan since the Russians left the country in 1989, and had settled comfortably in his new home. Married to an Afghan woman, he had a six-month-old daughter, and ran a shop that sold bread and honey. When the US-led invasion began, he took his wife and daughter to his wife's parents' home in the country, to escape the bombing raids, but was abducted by some locals, who were seduced by American offers of free money for life, publicized through leaflets dropped from planes which stated, "You can receive millions of dollars for helping the anti-Taliban force catch al-Qaeda and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life - pay for livestock and doctors and school books and housing for all your people." Sold to the Northern Alliance, he was, in turn, sold to the US military, and made his way to Guantánamo via US-run prisons in Afghanistan, where the orders handed down to the interrogators by the military decision-makers based in Camp Doha, Kuwait, were that every Arab should be sent to Guantánamo.

The story of what subsequently happened to Abdul Hamid al-Ghizzawi adds unprecedented weight to Stephen Abraham's concerns, particularly about the administration's obsession with confirming detainees' "enemy combatant" status at all costs. Reiterating complaints made in his affidavit, Abraham told Glaberson, "Anything that resulted in a 'not enemy combatant' [verdict] would just send ripples through the entire process. The interpretation [was], 'You got the wrong result. Do it again.'" Once the interfering intelligence officer - and, presumably, his obdurate colleagues - had been sacked, the administration convened a second tribunal for al-Ghizzawi, which duly found that he was an "enemy combatant" after all. Over two years later, he remains in Guantánamo, suffering from hepatitis 'B' and, possibly, liver cancer, and reportedly the victim of malingering on the part of the medical staff, because he refuses to admit that he was a terrorist and not a shopkeeper.

Although al-Ghizzawi's case demonstrates, succinctly, Stephen Abraham's assertions about the authorities' reliance on vague and unsubstantiated evidence and the ruthless pursuit of verdicts confirming the detainees' status as "enemy combatants," his is only one of several cases in which CSRTs were reconvened after dissenting tribunal members had made decisions that were unpalatable to the administration.

In the cases of 18 Uyghur detainees (Muslims from an oppressed outpost of the People's Republic of China), who were captured on the Pakistani border after fleeing a run-down hamlet in the Tora Bora mountains, where they had been living for several months until it was destroyed in a US bombing raid, the CSRTs determined that - although their stories were almost identical - some were "enemy combatants" and others were not. Five of the men were released in May 2006 (and sent to a UN refugee camp in Albania, because the administration had fears for their safety if they returned to China), but the others remain in Guantánamo, and two of them, Anwar Hassan and Hammad Mohammed, went through a process remarkably similar to that of Abdul Hamid al-Ghizzawi. Cleared by a CSRT, Hassan was subjected to a second tribunal, on the orders of Matthew Waxman, the Deputy Assistant Secretary of Defense for Detainee Affairs, when he too had his status indiscriminately revised. His lawyers, Angela Vigil and George Clarke, noted that, "[c]ontrary to the government's suggestion," the change of determination between the first and second CSRTs was not based on "additional classified information," (of which there was none) but seemed, instead, to have been based solely on "communications" from Matthew Waxman "pressing for [a] reversal" of the first CSRT determination.

Sabin Willett, a lawyer who represents six Uyghur detainees, recently told me that his interest - and that of other lawyers - in Abraham's revelations was "no academic quibble on our part." Citing just a few cases - those of Haji Bismullah, an Afghan, and the Uyghurs he represents, whose cases were chosen for the DoJ's response to Abraham's affidavit - Willett explained, "We now know there was a massive amount of exculpatory evidence. Senior Afghan officials provided detailed evidence to US generals showing that Bismullah, a US ally, had been the victim of intertribal grievances." He added, "Military officials told our Uyghur clients they were innocent in 2003, before there were CSRTs. So getting the exculpatory evidence in front of the panels seems more than trivially important."

Willett is undoubtedly correct. With the Court of Appeals for the District of Columbia Circuit ruling on Friday that the government must hand over "classified" information relating to the detainees, and the Supreme Court due to start reviewing their rights in the fall, there is certainly nothing trivial about the plight of Abdul Hamid al-Ghizzawi, the discrepancies in the status of the Uyghur detainees, or the exclusion of exculpatory evidence relating to an Afghan ally who was shopped to US forces by a rival who knew that they would fail to investigate the background to his story, and there are, moreover, many other cases in Guantánamo with eerie similarities to the stories mentioned above.

I leave the final word to Stephen Abraham, who first wrote to me three weeks ago, in response to an article I had written in which I also mentioned other insiders who had criticized the tribunal process (though not in public). "While I was and continue to be constrained in terms of what can be said," he wrote, "your article very well pointed out issues that permeated the entirety of the process and, more fundamentally, highlighted the degree to which so many panels (or majorities) were unwilling or unable to peer below the veneer of the evidence." He added, "There were few instances where the validity of the information was questioned; rather, the presumption was that information, whether detailed or summarized, no matter what the source, was valid, and in the face of which not even denials carried much weight." As the Guantánamo story rolls on to the Supreme Court once more, many dozens of detainees - in addition to Abdul Hamid al-Ghizzawi, Haji Bismullah and the Uyghurs - will be grateful that Stephen Abraham had the courage to step forward to highlight the "junk statements," "generic" intelligence and bullying that characterized the tribunals in Guantánamo.

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A footnote to Andrew McCarthy's National Review article concerns his assertion that the 93% "conviction" rate in the CSRTs - 520 out of the 558 cases considered - compares favorably with the DoJ's overall conviction rate on the US mainland in 2004: 90% out of 83,391 cases. If the Guantánamo results were fair, this statistical analysis could be applauded, but the truth is that, in addition to the 38 detainees released through the CSRTs, 201 detainees were released before the CSRTs began, 169 more have been released through the annual reviews that followed them (the Administrative Review Boards, or ARBs), and, according to figures divulged by J Alan Liotta, the director of the Office of Detainee Affairs in the Department of Defense, another 225 are eligible for release. That's a rather less respectable 19% "conviction rate", which becomes even less acceptable with the realization that, of the remaining 144 detainees, only 80 are scheduled to be tried by Military Commissions and the remaining men are in an extra-legal limbo, considered too dangerous to be released, but not dangerous enough to be tried (another arrant novelty conjured up by an administration bent on replacing laws with half-baked and indefensible propaganda).