By Carol D. Leonnig and Josh White
Washington Post Staff Writers
Saturday, June 23, 2007
A military officer and former member of a Pentagon unit that decided to indefinitely imprison some detainees from Afghanistan and Iraq has said in a sworn affidavit that the process of reviewing their cases was "fundamentally flawed" and that the results were influenced by pressure from superiors rather than based on concrete evidence.
Stephen Abraham, a lieutenant colonel in the Army Reserve and a lawyer, said the military placed too much weight on unsubstantiated statements by intelligence agencies in deciding that the detainees were enemy combatants, according to his affidavit. That conclusion meant that the detainees could be kept in a prison in Guantanamo as long as the U.S. military wished.
Abraham, who helped review government intelligence about detainees in 2004 and 2005 and served on a Combatant Status Review Tribunal, is the first person who played such a role to publicly challenge the fairness of the reviews. He said in an interview yesterday that he felt compelled to disclose his misgivings after reading public claims about the fairness of the process made by Rear Adm. James M. McGarrah, who oversaw it.
His affidavit was widely passed around yesterday among lawyers for about 375 foreign detainees at the U.S. military prison in Guantanamo Bay, Cuba. Several said they will present it to a federal appeals court as evidence that the military review process is constitutionally flawed.
The tribunals at the heart of Abraham's concerns have long been controversial because their verdicts are pronounced by three military officers after brief hearings, and detainees are frequently denied an opportunity to call witnesses who can testify on their behalf. Detainees also are not entitled to have an attorney present, and they have no right to see classified materials relevant to their fate.
The Defense Department started the process at Guantanamo in August 2004, after the Supreme Court said the United States could not hold prisoners indefinitely without a competent review. But a federal appeals court is now weighing how deeply it may scrutinize the information and evidence that the Pentagon used in deciding to continue to hold detainees.
Of the 558 detainees who have been reviewed so far, 520 -- or 93 percent -- were judged "enemy combatants" who should remain in custody. The Bush administration is heatedly discussing the possibility of closing the Guantanamo prison soon, but only if some of the detainees there can be transferred and held elsewhere.
In the meantime, the government is continuing to bring more detainees to the prison. A new arrival, Haroon al-Afghani, was announced yesterday by the Pentagon, which said that he is an associate of high-level militants in Afghanistan and someone who allegedly had regular contact with the al-Qaeda leadership. Officials said he will go before a Combatant Status Review Tribunal (CSRT) shortly.
Lt. Cmdr. Chito Peppler, a Pentagon spokesman, said yesterday that the tribunal process is "fair, rigorous and robust." Two defense officials, speaking on the condition of anonymity, said Abraham does not have sufficient experience to give an authoritative account of the process, having served on just one review panel. They also said that he never reported any concerns to his commander, McGarrah.
McGarrah, who was the director of the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC), where Abraham worked for six months, told the federal appeals court in a May declaration that the Pentagon carefully weighed how to determine that combatants should be detained.
Abraham said that, to the contrary, he repeatedly raised his concerns during his six-month stint in the office, including direct appeals to McGarrah. He said the evidence presented to the tribunals lacked specificity, and that exculpatory information about the detainees was unavailable and possibly withheld. He said that government agencies sometimes claimed that detainees were "enemy fighters" or "warriors" after saying that they were on a jihad or ascertaining their presence in a specific location.
Abraham also said in the interview that legal standards for the unusual tribunals were nearly nonexistent. He equated the government hearsay presented about detainees with "a game of telephone."
In his affidavit, Abraham said there was considerable pressure from commanders for officers serving on the tribunals to determine that detainees were enemy fighters. He also said that it was "well known" that those officers who concluded otherwise would have to explain their findings to McGarrah and his top aides.
He said he and two fellow panel members were closely questioned by McGarrah and his deputy after they decided that there was not enough evidence to conclude that a prisoner was an enemy fighter, and were then ordered to hold an expanded hearing to reconsider their conclusion.
"What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence," Abraham said in his affidavit of the information provided about a detainee they reviewed. "Statements allegedly made by percipient witnesses lacked detail."
The Detainee Treatment Act passed by Congress in 2005 allows detainees to go to U.S. federal courts to seek a review of the tribunal verdicts, but the first challenges have not yet been decided. Congress is considering legislative changes that would allow defense attorneys to participate in the military hearings.
David Remes, a lawyer who represents 18 detainees at Guantanamo and has filed challenges to the CSRT determinations in federal court, said yesterday that Abraham's declaration is "astonishing."
"The tribunals lack any of the most basic evidence they would have needed to make fair determinations," said Matt McLean, a detainee lawyer who first contacted Abraham last week. "We've had our suspicions. Now we can prove it."
Staff researcher Julie Tate contributed to this report.