An Interview with Guantánamo Whistleblower Stephen Abraham
by Andy Worthington
election of Barack Obama as the 44th President of the United States,
the closure of the War on Terror prison at Guantánamo
Bay, Cuba has become a hot topic. Throughout his election campaign,
Obama pledged to close
Guantánamo, and he reiterated his promise during his
first TV interview as president-elect, on November 15.
weeks, however, a number of commentators including reporters
at the Weekly
and researchers at the Brookings Institution (PDF)
have stepped forward to warn the president-elect that his
promise will be difficult to fulfill, because, according to the
governments allegations against the remaining 252 prisoners,
a significant number of them are connected with al-Qaeda, or were
otherwise involved in militant activity.
with all these reports is that those responsible for compiling them
have taken the governments allegations at face value, and
have not investigated the many reasons for concluding instead that
the governments evidence is unreliable. In an attempt to encourage
a much-needed scepticism regarding the governments claims,
Andy Worthington, the author of The
Guantánamo Files: The Stories of the 774 Detainees in Americas
recently conducted the following interview by phone with Lt. Col.
Stephen Abraham, a man who knows more than most about why the allegations
against the prisoners are fundamentally unreliable.
of US Army intelligence, Lt. Col. Abraham served from September
2004 to March 2005 as part of OARDEC (the Office for the Administrative
Review of the Detention of Enemy Combatants), the organization responsible
for conducting the Combatant Status Review Tribunals (CSRTs) at
Guantánamo, as well as compiling the information used by
those tribunals. The CSRTs, which began shortly after the Supreme
Court ruled in June 2004, in Rasul
v. Bush, that the prisoners at Guantánamo had statutory
habeas corpus rights, were introduced as a deliberate attempt to
subvert the Supreme Court ruling, and were widely criticized for
preventing the prisoners from having legal representation and for
relying on secret evidence that was withheld from the prisoners.
it was not until Lt. Col. Abraham filed a statement
in connection with one of the Guantánamo cases that a former
insider confirmed that the gathering of materials for use in the
tribunals was severely flawed, consisting of 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a generalized nature often outdated, often generic,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,
that what purported to be specific statements of fact lacked
even the most fundamental earmarks of objectively credible evidence,
and that the whole system was geared towards rubber-stamping the
detainees prior designation as enemy combatants.
In a subsequent statement,
Abraham also pointed out that, because the tribunals had little
or no access to the intelligence agencies, Most of the information
collected … consisted … of information obtained during interrogations
of other detainees (and may, therefore, have been made through
the use of torture, coercion or bribery).
Good day, Stephen. Its a pleasure for me to conduct this interview
with you, as I have been following your story since it first broke
last June. To begin, I was hoping that you could briefly describe
Abraham: Im 47 years old, and I was commissioned in the
U.S. Army as a second lieutenant in 1981, just after my 21st birthday.
I was a reserve officer on active duty for the first six years,
and I was an intelligence officer the entire time. I spent some
time in Europe, as a HUMINT [human intelligence] officer working
on issues involving terrorism, sabotage, treason and espionage.
From this we may presume that I am not altogether unfamiliar with
the composition of the respective intelligence services and other
organizational interrelationships of relevance to the present subject.
I then planned
to attend law school, but I was mobilized in support of Operation
Desert Storm, and spent the time in Washington, working closely
with different national intelligence components. I then went to
law school, remained in the reserves, thought everything was going
along fine, and then someone collapsed two buildings and the War
on Terrorism began in earnest.
And how did you come to be involved in the tribunals at Guantánamo?
Abraham: Shortly after September 2001, I was mobilized for one
year to the Joint Intelligence Center in the Pacific, where I served
as lead terrorism analyst. I then returned to my family, my home
and my livelihood [as a civilian attorney] until I was asked if
I would consider working at OARDEC for six months. I said yes, viewing
the offer, as the organization was described to me, as an opportunity
of historic dimensions.
I was communicating
back and forth with the individual who invited me, and during that
time I was conducting a great deal of research regarding what I
anticipated would be the scope of my duties. It was an expectation
that fell short, and an enthusiasm that was dampened within a short
time of my arrival.
Ive read a lot about your experiences, but Ive never
heard you say before that it took such a short amount of time to
become disillusioned. Can you explain more?
Abraham: Lets begin by understanding very clearly the
context in which I was to perform whatever duties would subsequently
be assigned. OARDEC is an organization under the Secretary of the
Navy, but which was mobilized very quickly in the wake of the Supreme
Courts two decisions in June 2004 [Rasul v. Bush and
v. Rumsfeld]. OARDEC had been set up to conduct annual review
boards, and was dealing with what I call aspects of detention preliminary
to war crimes tribunals or, as we know them, the Military
Commissions but there was no institutionalising of the process
used to determine whether individuals were enemy combatants.
Until the Supreme Court made its ruling, there was no reason for
them to do it.
in July 2004, the authorities realized that they now needed to hold
what we refer to in shorthand as tribunals the Combatant
Status Review Tribunals (CSRTs). So they took the preexisting organization
and said, we will have it do the CSRT process. At that point OARDEC
became responsible for conducting tribunals. Slight problem: OARDEC
had never conducted a tribunal, didnt know how to conduct
a tribunal, and was woefully understaffed to be able to do all of
the things necessary to conduct a tribunal.
before you might have had officers determining whether someone is
now a nice guy by taking current information,
contemporaneously collected; that is, information relating to their
detention, and trying to make subjective decisions abut it
now suddenly youre having to collect information that relates
to periods of time perhaps years before the board is convening.
The board was now going to have to consider information that might
be collected from host nations, from other agencies, that might
speak to moments years in the past. So OARDEC had to be able to
collect information, process it, assimilate it, evaluate it and
ultimately make decisions based on it.
was that the organization only had a few individuals who were actively
engaged in the information gathering functions of OARDEC and now
they were handed a Herculean task. They very quickly increased the
numbers of individuals that were assigned to the unit, but all the
while the reserve components were stretched intolerably thin, which
means essentially that the authorities were putting out calls not
for the most qualified individuals, but for anybody who could spare
six months of their lives. What this also means, with no disrespect
intended towards any of the individuals who volunteered, is that
they had whoever was available, whenever they could be available,
and no matter what their skill set. So they got merchants, they
got non-intelligence professionals, they got accountants, they got
postal workers, they got anybody who was available. The organization
got individuals with incredible military skill sets, but, unfortunately,
skills geared towards conventional military tasks, not the legal
tasks thrust upon the organization.
This sounds very much like what Ive heard about the recruitment
of personnel elsewhere in the War on Terror. In 2003,
in a report produced for the Pentagon by the Center for Army Lessons
the Centers director, Lt. Col. Bob Chamberlin, concluded that
the lack of competent interpreters impeded operations
in Afghanistan and Iraq. Laugh if you will, he wrote,
but many of the linguists with which I conversed were convenience
store workers and cab drivers, mostly over the age of 40. None had
any previous military experience. Most of the linguists, he
insisted, only had the ability to tell the difference between
a burro and a burrito. This, I think, is an example of a situation
similar to what you were talking about at OARDEC, and, like your
experiences, it demonstrates that whether or not there was any intention
of establishing a high ideal, what was actually involved was simply
making the most of whoever was available.
Abraham: Exactly. I should not have been surprised that there
simply wasnt going to be a readily available pool of skilled
intelligence professionals, and if they had made the decision to
create an organization, rather than to assign the task to an already
existing organization, it might have been different. But as it was,
the people with the skill sets required to jump right in and perform
the function to the degree suggested by the Supreme Court were not
available. So essentially what OARDEC did was the equivalent of
insisting that an all-volunteer staff with limited relevant experience
run before they walk or even crawl.
going to take people who for the most part, with few exceptions,
had no experience reading and applying Supreme Court decisions.
And to these people what they attempted to do was to give a layer
of insulation. They said, You dont need to understand
the legal nuances of what the Court was addressing. Were going
to give you implementing guidelines and regulations and that will
be good enough. And then you will be able to perform all the functions
is: if, as Secretary of the Navy, Gordon England said, at the very
outset, they didnt have the facilities, they didnt have
the resources, they didnt have the budget, they didnt
have the manpower to do all these things, and they didnt have
the authority to task agencies to provide information, something
was going to have to yield, and in this case it was, at its simplest
level, any regard or any respect for the Supreme Court decision.
So they could create an organization, they could give it a task,
they could tell it, as if these were autonomic functions, what it
would do, how it would wave its hands, how it would move paper from
the left side to the right, but they couldnt expect an independent,
fact-finding and decision-making body. For it to do anything that
reached the level of a competent tribunal, it wasnt possessed
of the ability to do that.
OK, so theres a couple of fundamental problems here with the
set-up, one of which is that youre explaining that the personnel
recruited were not able, in general, to do the job, but the other
is to do with the information you were allowed, or not allowed access
Abraham: Absolutely. Bear in mind, in our discussion at this
point, we have only touched upon general aspects of the organization.
We havent even gotten to what are some of the more profound
and serious issues that plagued the organization and in fact rendered
its ability to perform its duties impossible. The best way, perhaps,
to leap forward and describe that is to describe the environment
in which most of the intelligence organizations work, and by this
what Im referring to are the organizations that, by necessity
or function, would have dealt with the kind of information that,
in all likelihood, would have related to the detainees or the environment,
context or setting in which they presumably operated.
Most of that
information timely, raw information collected by a myriad
of sources relating to their activities, at a human level
would have been some of the most classified pieces of information
that you would expect to see. Not finished products, not analysis,
but raw reports, highly classified and fairly sensitive. Now if
I were to ask you, what did so-and-so do or what were the conversations
he had on a particular day or at a particular location, or what
corroborative information do you have relating to these activities,
it might involve the use of very sensitive sources. Right away,
the question is: what did OARDEC have access to? Directly, OARDEC
had access to none of that information. Put a big zero there. Couldnt
have gotten it, couldnt have seen it, couldnt have had
direct access to it, couldnt in all likelihood have even requested
Because you werent allowed access to the agencies that had
Abraham: What we didnt have was the architectural capability
to directly access the information. Now the argument might be made
that very few people would have access to this type of information,
but thats rubbish, because, in the year that I was in the
Pacific Theater, I had access that was appropriate to respond to
the tasks assigned to me, and the fact is, if I was told to do something,
I had access to the information needed to perform those tasks.
OARDEC, for the vast majority of the people there, they were largely
unaware of the sort of sources of information that should have been
made available for them to be able to competently perform their
tasks. They didnt even know that many of these organizations
existed, and even if they did they had no ability to get the information.
Do you think that this was deliberate on the part of the administration,
that they werent actually seeking any quality of review of
Abraham: There are two ways of looking at it, the result of
which, from either perspective, is exactly the same. One, as you
say, is that they always understood that, in some twisted Machiavellian
way, if they gave the job to a non-functional organization, which,
by any number of criteria, was incapable of performing its work
as described, this would further a particular agenda.
way of looking at it is that they are blazingly incompetent. You
know, if I tell you that you need to write a top secret report,
but I dont give you access to top secret information, or systems,
or to an architecture that allows you to have access to that information,
we can say, I intended for you to fail, just as we can
also say that the deprivation of resources would render the task
impossible. In either case, the end result is the same: you cant
do what Ive asked you to do.
So do you think it was bit of both, if thats possible?
Abraham: I think that either one is certainly plausible. If
anyone who was responsible for setting up the organization insists
that they had the knowledge to appreciate and understand fully what
would have been required to perform the duties, then I have to ascribe
to them a more sinister motive. On the other hand, if you take a
less intellectually invested approach to it, and say, Gosh,
all I knew is that I had to run these tribunals, then perhaps
we can ascribe to them a degree of incompetence or a failure
to appreciate the degree of sophistication that needed to be incorporated
into the construction of the organization. You cant seriously
believe that you can take a hundred people off the street, not vest
them with the authority to request or to collect information
essentially, put them at the mercy of providers of information who,
without any suggestion of common courtesy, need not respond to those
requests and expect them to be able to do their job.
If I task
you with conducting a tribunal, but you have no experience conducting
tribunals, youve never worked with intelligence organizations,
youve never worked with this kind of information before
in other words, this is in every way alien to you and I say,
Go search on the system for information relating to the detainees,
you dont even know how to begin the search, and you ultimately
come to the conclusion that theres no information on the detainee
within your system, so that theres nothing you can physically
do by yourself.
But then I
say, Dont worry, well request information from
the other intelligence agencies, but they have no obligation
to respond to the requests, and you have no ability to confirm the
diligence of their searches, and so, as you assess your ability
to succeed at this mission, to what conclusions do you come? I would
be fairly quick in saying, I hope Im not being paid
or rated based on substantive performance markers, because this
is a mission doomed to failure.
I hate to
say it, but within a very short period of time, as I spoke with
one of the civilians who was there, and who was responsible for
also engaging in this liaison function you know, asking him,
Have you talked with this agency, with that agency? Where
are the terminals that will allow access to particular categories
of information? I was told, We dont have
I could tell from the building itself, and its setting I
knew that they would have no access to that sort of information.
When I asked what invested liaison officers there were from these
other organizations, the answer was, none. When I asked
what the timeline was for the collecting of information for requests
and responses, it was woefully short and inadequate. There was no
hammer, so to speak, if an agency decided not to participate.
But this, surely, was part of the process in which everything was
expedited, whereby all 558 tribunals were supposed to take place
in as short an amount of time as possible?
Abraham: Yes, but whether they had said three days, 30 days
or 300 days, the bottom line is, if you had no ability to assess
the completeness of information, then when you started the tribunal
in terms of your assessment of the quality of the record
with which youd be going forward it was largely a futile
exercise. After all, no matter how much time you spent developing
a record, to what extent could you say that it was complete, that
it was accurate, comprehensive, that it tended to draw an accurate
picture of the detainee who was facing the tribunal? You just simply
couldnt. It was a random collection of information in almost
So what you have expressed in the past, about how generic information
was put into the pot, because there was very little specific information
relating to the prisoners in question, youve expressed this
very well. Moreover, I understand from my sustained study of the
prisoners stories for The Guantánamo Files that
it is valid to look at the tribunals as a pale and mocking echo
of the Article 5 battlefield tribunals that are supposed to take
place close to the time and place of capture, according to the Geneva
Conventions, so that people who know whether those captured are
farmers or soldiers can come and give evidence, and say, This
is a farmer, youve got the wrong man. This, of course,
is what happened in all U.S. wars since the Second World War, including
Operation Desert Storm.
So the tribunals
are a horribly dysfunctional echo of the battlefield tribunals,
in which everything was expedited, and requests for outside witnesses,
which were supposed to be part of the architecture of the tribunals,
fulfilled not a single outside witness was called
and my feeling is that no depth was really required in the tribunals
because, as youve said, the impression that you came away
with, having undergone this six-month experience, was that it was
designed to rubber-stamp the prisoners prior designation as
Abraham: What it was designed to do and in that regard,
lets be clear, it succeeded beyond most peoples wildest
expectations was to get the outside lawyers off the administrations
asses. Let me explain what I mean by that. You had two Supreme Court
decisions in 2004, saying first OConnor, then Stevens
you have to have some kind of a hearing that comports with
notions of due process, and its not just limited to American
So the administration
then very quickly had to create this tribunal process. What they
had to be able to do was to represent to the world that the process
exists, and that they were capable of performing the functions described
within the context of the organization committed to that process.
Now what I just said is utterly meaningless. Its like a neer-do-well
saying, I have this capability of working. The fact
is, he sits on his ass doing nothing. So the administration had
an organization that was capable of conducting a hearing
not particularly well, but it could certainly conduct a hearing
and, as you and many others have seen, it had the capability
of conducting hundreds of hearings.
was that, if you take the moment that the organization decides to
have a hearing Day One and it sends out notices to
the countries [with which the prisoners may, in some way, be involved],
saying, Were going to hold a hearing, the country
itself has no duty, obligation or even a motive to respond. Essentially,
their reaction to the letter is, So what? You also send
the letter to different organizations outside of your own
outside of the Department of the Navy, in many instances outside
of the Department of Defense and you say, Were
going to hold a hearing in 30 days, to which they respond,
But you go
further. You ask for information. And lets keep this real,
pragmatic. Lets talk about what motivates responses. In a
theoretical sense, you might expect the answer to be, Were
all on the same side, well get you what you need. But
thats not a response that was received by OARDEC. Responses,
though not always expressed openly, were motivated by a number of
primary questions: Whos paying for this? What assets
do I have available? What are you asking me to do? Whats your
authority for asking me to do it? Have I programmed your request
into my annual resource budget? Is this something I have thats
available because somebody else has already asked for it, so I can
give you a copy, or are you asking me to do new work? How long is
it going to take me to do it, and how will that interfere with other
missions for which I have organizational or even statutory obligations?
I understand that, and its very interesting on the level of,
Wheres the budget for my responsibility?
Abraham: But not just, Wheres the budget?
but, Wheres my ability to do it? And that then
leads to the other organizations looking at OARDEC and saying, in
essence, Why do you think that Im forced to respond
Id like to ask you one more specific question about the gathering
of information for the tribunals. In your declaration last November,
you explained that, because OARDEC had little or no access to the
intelligence agencies, Most of the information collected …
consisted … of information obtained during interrogations of other
detainees. This is a point that I think is particularly relevant
as the moment, as various pundits begin looking at the Unclassified
Summaries of Evidence and raising alarms about how dangerous the
remaining prisoners are, and how very carefully Barack Obama should
tread. Now I know, from my own study of the documents and from my
knowledge of Guantánamos history, that the many allegations
made by unattributed al-Qaeda lieutenants and al-Qaeda
operatives, and other unidentified sources, are
unreliable because they may have been made through the use of torture,
coercion of bribery (the promise of better treatment in exchange
for confessions), but I wondered if you could elaborate
a little on your experiences of the information obtained from other
Abraham: Though it would be wrong to characterize all of the
information obtained from detainees as being the product of torture,
coercion or bribery, it is important to consider the information
both discretely and in the aggregate. What I mean by that is to
look at the totality of the information on the one hand. How was
it obtained? What were the motivations of the sources? What issues
might have colored the testimony, such as fading memories over time,
bias on the part of the witness, or promises of favors? Also, to
what degree would comparisons of different pieces of evidence tend
to belie assurances of legitimacy where the claims of a detainee
against one particular detainee mirrored other claims against other
is not just the issues we easily raise now, years after the tribunals
were held, but the fact that the tribunal members never knew of
these issues and never considered them in weighing the information
presented at the hearings. Simply put, tribunal members were told
to trust all of the information presented against the detainee without
hesitation or question, and to distrust any inconsistent testimony
or other information. That is not the hallmark of a fair hearing
and not a hearing in which we, citizens of a nation of laws, should
put any faith.
Moving on the judicial decisions in the last six months, I wondered
if you could talk a little about the Supreme Courts ruling,
in June, in Boumediene
v. Bush, that the prisoners had constitutional habeas
corpus rights, and another important ruling in the same month, when,
v. Gates, an appeals court ruled that the evidence against
Huzaifa Parhat, one of 17 Uighurs at Guantánamo (Muslims
who had traveled to Afghanistan to escape Chinese oppression in
their home province, had been caught up in the chaos of the US-led
invasion in October 2001, and had then been sold to US forces) was
inadequate, and that the government had failed to establish that
he was an enemy combatant.
Abraham: These two decisions represent a remarkable moment in
our history, not merely for what they have to say about the rights
of a few detainees, but, instead, because of what they say about
us, individually and as a nation. In Boumediene, the Supreme
Court upheld the habeas rights of the detainees. But what was implied
in the opinion is the notion that such a right can be denied no
one, if not a detainee. Importantly, from this emerges the principle
that certain rights really are inalienable, that they are not created
by governments, that they are not indulgences to be dispensed and
easily withdrawn, and that they may be abridged only under the most
represents, perhaps, an even more extraordinary moment, because
of the judges comment that the government was not to be taken
at its word. That is, just because it was said does not make it
so. This statement resonated strongly with me because of the presumptions
that overshadowed everything done at OARDEC. The tribunals were
conducted in the shadow of irrebuttable presumptions, rules of play
that could not be challenged. We were to presume the information
we were given to be complete, accurate, uncontestable, and applicable.
With that as the starting ground for the tribunals or, for
that matter, any administrative or judicial hearing how could
you possibly have an outcome other than was dictated by the convening
authority, in this case the very government intent on keeping the
engaging in a criticism of the administration, the CSRTs are such
a small thing that theyre barely noticeable, but if you talk
about Parhat as the clearest demonstration of hubris, of
indifference to the Constitution, of antagonism towards constant
principles, it is perhaps, in the eight years of this administration,
the best example you will ever find, and probably the best example
in the history of our nation.
decisions, separately and together, represent an incredible moment
in our history, a moment when our government was reminded of the
fact that it was and is not an institution above the laws by which
we all exist and not an institution beyond the limits that we as
As you and I know, Parhat was one of the hollowest stories
of the lot, but in general I know that the whole saga of the classified
evidence is also hollow in so many cases, and that the vast
majority of the prisoners were either completely innocent men caught
in the wrong place at the wrong time or a bunch of Taliban foot
soldiers who knew nothing about al-Qaeda.
Abraham: OK, but if what you want to do is make the story of
Guantánamo about people wrongfully held, then to my mind
it is not only ultimately not a compelling story, its not
a very significant story. By that I mean, this world has seen millions
of injustices. Even now, we could limit it to a day and find a million
injustices. What is so amazing about this story is that a President,
an administration with the complicity of every citizen
was allowed to absolutely shred the limitations on executive power,
and in doing so show a flagrant disregard for fundamental human
liberties. Not just rights, but the very essence of what entitles
a human being to be respected as such.
Think of Guantánamo
as the first experiment in a much larger experiment, in which the
ultimate conclusion that the administration hoped to reach was that
human beings are little more than vassals, that they exist, they
stand on the earth, only as the result of a royal indulgence. I
mean, thats really the issue. And as Parhat demonstrated,
the presumptions of the validity of the evidence melted away. Finally,
here was a Court that got it. Just because the government says its
so doesnt make it so.
Well, exactly, but also because it took so long to get to point
where a court was enabled to review the evidence.
Abraham: What we ultimately need to get to, where you have an
adversarial process, is a declaration by a court that there are,
firstly, no irrebuttable presumptions, that irrebuttable presumptions
are an anathema in a system that, at its core, relies on, and claims
to give regard to due process. You cant have due process and
irrebuttable presumptions, which lead to the certainty of a conviction,
or a designation [as an enemy combatant]. Secondly,
with respect to rebuttable presumptions, there must be certain limitations:
they cannot relate to the weight of the evidence, to the quality
of the evidence. You cant say, I presume this
evidence to be valid, I presume the source to be beyond reproach,
because in that regard all youve done is give another name
to an irrebuttable presumption.
And this is
what OARDEC did. You can say anything you want as a detainee, but
you may not contradict any of our facts. Why participate?
That was the truly offensive element of what was going on. It wasnt
that we were told to reach a decision; rather it was that we were
told to reach a decision based on a one-sided presentation of evidence
that we were not allowed to question. And our tribunal the
tribunal I served on said no.
Could you explain just a little bit about the tribunal that you
served on, in which you and your fellow tribunal members decided
that the prisoner in question was not an enemy combatant?
This is another extremely important aspect of the rigged nature
of the tribunals, of course, because you were then asked to change
your opinion, and when you refused, you were never asked to serve
on a tribunal again, and a new tribunal was convened which reversed
Abraham: Deciding the fate what we thought would be deciding
the fate of a Libyan of no particular significance [Abdul
Hamid al-Ghizzawi, still imprisoned at Guantánamo]. We
were given information relating to, or what I presumed would be
relating to the individual that was the subject of our tribunal.
The information related in very few respects to his pre-detention
history. It spoke in very general terms of the organization of which
he was said to be a member [the Libyan Islamic Fighting Group].
The information on the organization was extremely generic. It related
to an organization that was antithetical to the interests of the
standing government of Libya, a rather curious situation, in that
I always thought that the enemy of my enemy is my friend. And yet,
for whatever reason, it had been listed as an organization associated
with terrorist activities. There was absolutely nothing in the information
to suggest that he had in any way been closely associated with,
or had acted in any way that facilitated or contributed to terrorist
activities. Nor was there any information that was linked to him
directly, or that linked him to al-Qaeda, to the Taliban, or to
So there was not even any kind of thread drawn to any terrorist
Abraham: No, it was absurd. Six Degrees of Separation.
But with Huzaifa Parhat, for example, the allegation was that the
Uighur resistance group (the East Turkistan Independence Movement)
was associated with al-Qaeda by two degrees of separation, even
though there was no evidence linking Parhat or any of the other
Uighurs to the group itself. Was it not the same with the LIFG?
Abraham: Let me give you an extraordinary connection, the very
nature of which I think is irrefutable. I was in Paris in 1975.
So was Ayatollah Khomeini. Do I need to go any further?
But this is interesting as well, Stephen. Just to digress for a
moment, the study of the prisoners that the Seton Hall Law School
and I also covered this topic in The Guantánamo
Files established that prisoners were accused of associations
with supposed terrorist groups that werent on any official
terrorist exclusion lists.
Abraham: OK, but I have to say this: We need to be very careful,
because, in having tallied the indicators of criteria that were
set forth within the Unclassified Summaries of Evidence that were
presumed to form part of the basis for the determination of whether
somebody was or was not an enemy combatant, what people
need to understand is that many of the criteria that were used came
from a static checklist. So in terms of a more refined narrative,
there in fact might have been no indicators that the criteria used
were most appropriate. The problem was that they were the only criteria
that were available, so they essentially were checked off. They
were close enough.
So we have
to be very careful not so much for the individuals for whom there
was an absence of the criteria, but those for whom there is alleged
to have been a presence of the criteria, because to say that somebody
is associated with the Taliban is fine as a checklist response,
but the problem is that, unless you know what the evidence is that
led to that conclusion you really cant even decide from the
presence of the checkmark in that box that it is a valid assessment.
And the problem is that for most of the detainees, even the criteria
by which they were ultimately concluded to be enemy combatants
are, I think, based on incomplete information on information
that doesnt rise to the level of probative, competent, material
evidence and a lot of false syllogisms.
And you know, presumably, about the low evidentiary hurdle
that was established as part of the tribunals.
Abraham: The evidence you know, I wish that we would
stop using the word evidence because we give to the
material that presented the imprimatur of validity. Most of the
information, most of the material didnt rise in terms
of a lawyers perspective, a litigators perspective
to the level of evidence, either qualitatively or quantitatively.
I think if
we want to describe what OARDEC did, first its OK to call
it a tribunal, but I think there are other words that should not
be used. I think findings should not be used. For example,
you can reach a conclusion on fundamentally or inherently unreliable
information, but I wouldnt call it a finding of fact. I wouldnt
call what was done a legal process. I would avoid using words that
really are terms of art within the legal community, because they
give a false sense of comfort: They received evidence, so
it must have been OK. No, they didnt receive evidence;
they received material, the quality of which was never competently
vetted. Nobody could speak for any of the necessary elements of
information before it would be admitted in any court, and its
fine to say, well, this isnt a court of law, but
at the very least it was a body presumably of sound reason
and of judgment well exercised and if that was going to be
the case you would certainly not have expected that what would be
accepted would be the word of anybody who could just walk off the
street and say, That mans guilty. What is this,
the Queen of Hearts?
Thats a very good point. And given that this was not supposed
to be a legal process, but was supposed to be an administrative
process that would stand up to outside scrutiny and that would justify
itself, the important thing that you did, as somebody who had taken
part in the process, was to say, this does not stand up to
any outside scrutiny whatsoever, so how could this possibly be any
substitute for a valid legal process?
Abraham: And really, in your last comment, you make the point.
Lets get rid of the notion of an administrative board, because,
you know, its terms of art again. Its a board thats
going to reach a decision based upon the presentation of factual
matters. At the end of the day it has to be only one thing: fair.
It only has to be fair. The problem was, these hearings were never
set up to be fair, and when there is the risk that a hearing will
not be fair, it is important that it be transparent, it is important
that it be capable of review, it is important that the processes
can be evaluated for the degree to which they comport with clearly
defined procedures established before the hearings begin. You cant
take a person and say, I will now give you the kind of proceeding
to which youre entitled based on what Ive already decided
Moving on, I wanted to ask if you thought that your statement about
the tribunals, which was included as a submission to the Supreme
Court, made a difference to what the judges decided about the rights
of the prisoners in Boumediene.
Abraham: I dont know. Unfortunately, the Supreme Court
didnt decide that the tribunal proceedings which were
the subject of its review were a sham. The judges didnt
argue the quality of the evidence. If they had, I would have said,
My God, I guess my submission made a difference, because I
said the stuff was a joke. All I can say is that the Supreme
Court had denied the petition for review, had denied the petition
for writ for certoriori, then there was the request to reconsider.
Now these are always denied, but in this case it wasnt.
was not on the first brief. It was on the last brief. It was after
the government had responded. You know, you look to what is unique
about this, that in some way affected the minds of two justices
or at least one and you know the declaration was unique,
but it spoke to facts, and I know, as somebody whos practiced
before the Supreme Court, that they rarely listen to the factual
pleas. They want to know something broader, they want to know something
that relates to legal issues, constitutional issues, and heres
this crazy brief thats arguing facts. Certainly, its
different, and I wonder how many petitioners are now going to submit
declarations with their petitions for reconsideration, but the fact
is that I dont know if it had any influence. What I do think
is that the justices looked at all of the briefs together, with
all the materials that were submitted, and they said, Enough
Excellent. I really wanted to ask about that, because it was my
understanding that you came from a slightly different field from
the habeas lawyers, and you were somebody who had been there
inside the tribunal process who said, By the way, while
youre thinking about this, you might want to read my dozens
of reasons that Im going to put before you explaining why
the whole tribunal process was a sham.
I think were
going to have to wind up soon, Stephen, so thank you very much indeed
for your time. Before we finish, however, is there anything we havent
touched upon that you wanted to mention?
Abraham: I was thinking about habeas corpus, and I was thinking
that when we say habeas corpus, we understand it to be inseparable
from notions of fundamental human rights, and when the Supreme Court
this, a year ago, six months before they delivered their verdict
in Boumediene, I couldnt understand how they were having
a debate for a half-hour about what I think was, by the nature of
their discussion, a profound limitation of that right. To ask what
the statutory basis is, or what the common law basis is, for the
notion that a person is not born free, and does not have an immutable
right to dignity and liberty (absent the legitimate exercise of
the powers of state) was, I thought, a confession of the absence
of the appreciation of that right.
Do you not think that Justice Scalia was playing into the hands
Cheney and David Addington, and their desire to institute unfettered
executive power? What struck me most about some of the exchanges
in the oral hearing last December was that to varying degrees some
of the justices were perturbed or outraged about the fact that they
understood that thats what the executive was trying to do,
that the executive branch was trying to eliminate their part in
the balance of powers in the United States.
Abraham: And that was really the funniest thing. If you look
at what the Supreme Court did, 50 years from now people are going
to wonder how this case should be characterized. And it will not
be a fundamental liberties case; it will be a separation of powers
case. And thats the problem with it, because what gave rise
to Boumediene was an administration that was turning an immutable
right into a conferred right. That is the danger of the exercise
of power, manifested by Guantánamo. Guantánamos
merely an example of it, but the fact is that the moment you make
liberty a conferred right you can eliminate it, you can suspend
it, you can terminate it, but more importantly you can identify
the moment of its creation.
the worst part about it, because our government exists not by right
but by consent, and it never had the power to create the right of
liberty and of due process. Those are constraints on its exercise
of power, and what the administration did was it reversed that,
it said we have due process because we give it to you, because we
created it and we can take it away. You have liberty, not because
it is an immutable, fundamental right, but because we created it,
and we gave it to you and we can take it away. And I hope that the
five justices understood that to be the linchpin, the core, the
thrust of the decision, and not a separation of powers issue.
administration will change. Change is inevitable. But like a stream,
the passage of water alone does nothing to change the nature of
the water itself. If we make the issues of the last eight years
the fault of particular men in a particular time and at a particular
location, we will have missed an important lesson of what happened.
of individuals were denied, the essence of those rights disparaged.
This happened not because men made it happen, but because we let
it happen. It happened not because we surrendered our rights but
because we allowed others to redefine them in a way that foreclosed
their exercise by others. It happened not because Guantánamo
existed but because we allowed such institutions to be created.
Closing Guantánamo is a symbolic act that will do nothing
to eliminate the ground on which tyranny gains its foothold.
As we are
reminded in the words of Martin
Niemöller, each of us has the duty to speak for those for
whom no one else has spoken. Where silence reigned, injustice found
foothold. It is up to each of us to speak. It is up to us to ensure
that institutions beyond the reach of laws exist nowhere on this
earth. But more importantly than the bricks and mortar by which
we build prisons, it is up to us to demand respect of law by all
who govern and the dignity of all humans by all who are governed.
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
Americas Illegal Prison (published by Pluto Press).
Visit his website.
© 2008 Future of Freedom Foundation