Friday, June 22, 2007

Fancy That

Marty Lederman

The Combatant Status Review Tribunal proceedings to determine whether detainees are "enemy combatants" are basically a farce. Or so it appears from an affidavit filed by an Army officer involved in the proceedings, Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence, Army reserve officer, and California lawyer.

Abraham explains that there was virtually no chance of decisionmakers being afforded access to possibly exculpatory information, even after repeated requests. Moreover, they were pressured to find that detainees are "enemy combatants," notwithstanding the lack of solid evidence. "What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence," Abraham attested.

There's more. Read the whole thing. If most or all of this affidavit is true and representative of the CSRTs as a whole, well, then, it's entirely understandable why the Administration is so fiercely committed to the argument that the Due Process Clause should not apply at Guantanamo.

More from Lyle Denniston here.


It appears to me from LTC Abraham's affidavit that the military is doing a lousy job of prosecution, rather than providing a farce defense.

The burden is on the military to prove their cases before the CSRTs. The officers assigned to assemble that case appear to be hamstrung by intelligence agency intransigence in providing evidence and their own lack of legal and intelligence experience. As a result, they put together a piss poor case in the CSRT which Abraham presided over.

Contrary to the image of a kangaroo court which opponents of the CSRTs portray a railroading innocents through Gitmo, Abraham and his colleagues had no trouble making a finding that the capture was not a combatant even after the Recorder was given a second chance to get his case together.

We already know that terrorists released from Gitmo by CSRT only to reappear on the battlefield. "Among those so identified was Mohamed Yusif Yaqub, whom Pentagon officials said became the commander of Taliban operations in Southern Afghanistan following his release." After reading LTC Abraham's affidavit, I am beginning to understand why such mistakes are being made.

Of course, Bart, the alternate reading could be that there's no there, there, in the "evidence" as well as the attempts to prosecute.

The affadavit states that Abraham had access to many of the documents prepared for other CSRT's, and that the information provided for them was similar to the one that he served on. And that his review was among the few where the subject was declared NEC (Not Enemy Combatant). So, if you believe the affadavit, the "piss poor" case that Abraham presided over was one of many with such evidence, but his was only one of a few to reject such a "piss poor" case.

Now, if you were a defense attorney presented with such a pattern of prosecutorial behavior, what kind of defense would you prepare?

What would you call a court/CSRT where "piss poor" cases allowed defendants to be held indefinitely, where those who state that the evidence is "piss poor" are asked to reexamine it to make sure that it may be enough, where there is a strong implication that exculpatory evidence is not not found, but not to be found, and when someone can't find "piss poor" evidence is not enough when it is their turn to decide a case, apparently aren't given a second chance to make the same determination, if not a kangaroo court? Maybe a star chamber?

This guy seems to have at least as much military, intelligence, and legal background as you, and he couldn't support the determinations he was apparently being influenced to find on the evidence you call "piss poor". When that happened, on his and other CSRT cases, there were inquiries on "what went wrong". With your military experience, what are such meetings about and like?

And, while I do not discount the exculpatory case you make for the government's actions, is it not possible that a person, who is held in some of the conditions demonstrated and alleged that detainees were held, subject to treatment that has since been revealed, might be pissed off enough to take up arms against the government that did that to him? Not that I am happy that he did so, but if you were captured by the Taliban, tortured and later escaped, would you not want to reup and/or participate in attacks against them?

Sorry, Bart, missed your earlier post on the thread on detainees in Kansas.

My shorter response to your post is that Abraham is not an example of the system working. The theme of his affadavit clearly is that, while he acted in the way that the system may have been overtly designed to work when he was on a CSRT, his experience in other parts of the system show that such proper function was very likely an exception to the rule.

And I would still like you to answer my questions (for ease of response, you can label them 1, 2a/b, 3, 4, and 5).

A CSRT combatant finding requires about the same level of proof as a grand jury indictment. However, the CRST appears to have a far higher dismissal rate than a grand jury. An AP article in my morning paper put the CRST dismissal rate at 38 of 558 during 2004-2005. That does not indicate to me that the prosecution is doing a particularly good job.

I cannot conceive why the military is not using JAG prosecutors to perform this function and bitching up a storm to the WH about the CIA withholding information necessary for these hearings.

Fraud Guy said...

Now, if you were a defense attorney presented with such a pattern of prosecutorial behavior, what kind of defense would you prepare?

You misconstrue the nature of these hearings. These captures are not facing criminal charges and there are no trials so there is no defense to prepare. The CSRT is the functional equivalent of a grand jury. Its job is simply to determine whether the military has a preponderance of evidence to designate the capture as an enemy combatant.

Furthermore, I do not know on what basis you are claiming that these captures are being detained indefinitely. 558 captures have undergone CRST reviews in 2004-2005. 38 were found not to be enemy combatants in that process. Gitmo currently has 330 detainees. Thus, it appears that around 190 captures who were found to have been enemy combatants were released because they no longer present a significant threat. Of the 330 who remain, the military is attempting to find a safe country to take 80 others. Consequently, the captures who were sent to Gitmo in 2003-2004 had a less than 50% chance of still being held as enemy combatants in 2007.

Off topic, Sandy Levinson was on a panel discussion on Watergate and Presidential Accountability (dated 3/23/07) that is being aired right now (and was on earlier tonight too). A copy might be available on the C-SPAN website.


Actually, I do, but in return you misconstrue my question, and the filing.

As I stated, from reading the affadavit, it is apparant that, as liaison, Abraham saw, over an extended period of time, many of the documents which were presented to the CSRTs, which were of the same "quality" of the documents which were presented when he was on such a panel.

His was one of the few (less than 10% by your numbers) that returned a non-combatant determination, which apparently then became his only chance to review. Even if such a determination is similar to a grand jury's indictment, which is a very low bar for a prosecutor to clear, then how well does it reflect on the quality of such determinations when such evidence apparently should have failed to produce a determination that a detainee was an enemy combatant?

Secondly, you are assuming that those who were no longer detainees at Gitmo, and who were not among those who were NEC or who were beign shopped for a return country, were all released because they were not a threat. Do you have documentation or statistics on the fates of all such detainees?

Important off-topic point - huge article about Cheney in Sunday's WaPos -

Shredding documents, slipping orders out of channels, completely ignoring record keeping...

I would love to hear your input on this, thanks.

Bart, you need to keep in mind that the government also had the responsibility to ensure that all exculpatory evidence was presented to the CSRTs. This is a very different animal than a grand jury. In addition, although the prisoner was permitted to request witnesses, very few, if any, were actually called.

Presentation of exculpatory evidence is obviously a big deal in itself, but made more so by the representations on this score that the Administration made to Judge Ginsberg at the May 15 hearing in Parhat/Bismullah.

The more important difference between a CSRT and a grand jury, is that no one would think that a finding in the latter of sufficient evidence would suffice -- it's a prelude to trial. the CSRT was conceived as the only process that would ever take place.

Finally, Mohamed Yusif Yaqub was not released by CSRT. In fact, he was killed in Afghanistan in May 2004, months before the first CSRTs were convened (in the wake of Rasul).

Regarding the first comment, at 9:20, from Bart DePalma.

Despite what Mr. DePlama claims, please note that no one suggested that the military is providing a farce defense. Lederman's post asserts that the CSRT proceedings, themselves, are a farce. Col. Abraham's affidavit confirms that he was prevented from doing his job properly. Further, it is not clear that the military is doing a "lousy job of prosecution." To the extent the goal of the CSRTs is to keep innocent detainees locked up, then the CSRT appears to be functioning adequately. Col. Abraham explains that he was removed from CSRT assignment at the point he determined there was no evidence to hold the individual under question. The functioning of the CSRT is quite consistent with the goal of holding innocent detainees.

The author of the first comment also claims that the officers compiling evidence for someone's combatant status were "hamstrung by intelligence agency intransigence." It is worthwhile to read Col. Abraham's own words, because in fact he goes much further than this. He reports that the officers responsible for gathering the intelligence had no experience and were not qualified to be gathering and vetting intelligence. Col. Abraham even takes pains to point out that the reports presented to him were incoherent and confusing, suffering from problems with grammar.

Anyone familiar with bureaucracy understands that this is an environment which has been designed to prevent the release of innocent detainees. This is supported by Col. Abraham's observations about the attitude (of OARDEC command) taken to any situation in which a detainee was found not to be a combatant. Please see point 23 of the affidavit.

Calling the CSRT a kangaroo court, probably does injustice to real kangaroo courts. Reading Col. Abraham leaves one with the impression of a bureaucratic nightmare, devoid of such things as "defense" or "prosecution".

We should remember that if the CSRT system is to even approach being just, it must be designed to deal with innocent people, wrongfully detained. The author of the original post appears to be somewhat confused about this. In the case Col. Abraham describes, he was given no reason whatsoever to conclude that the person in question was a combatant. Clearly, there is no good reason that any of us can conclude otherwise. Given the Colonel's words and the mass of evidence collected over the past years, we have little reason to believe that those held as detainees are combatants or terrorists.

Pete L.


The WP opening piece in the series on Cheney is fascinating. Cheney appears to be the first VP who has been assigned the duties of a strong White House Chief of Staff.

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