In late June, a brave whistleblower submitted a devastating affidavit to the Supreme Court, which prompted the court to reverse itself and hear the latest Guantánamo cases challenging the Military Commissions Act. Lt. Col. Stephen Abraham’s affidavit exposed Guantánamo’s kangaroo tribunals for the sham that they are. Luckily, the only tribunal on which Abraham sat considered the case of my client, Abdul Al-Ghizzawi.
Abraham, a California lawyer in the Army Reserves, was assigned to the Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC) in 2004. He served as an inter-agency go-between, compiling information on Guantánamo’s prisoners from various government offices. The information was gathered into a dossier and presented as evidence to the combatant status review tribunals, which would review the file and determine whether a prisoner should be classified as an enemy combatant.
As he became more familiar with this process, Abraham became increasingly alarmed. He found that the “evidence” was generally gathered by inexperienced staff with little legal or intelligence training. He got no assurance that he was given access to all available evidence on a detainee. Officials refused to say whether exculpatory evidence existed or was being withheld, despite government testimony before Congress and filed documents in the courts swearing that all exculpatory evidence was reviewed.
Abraham became directly involved in an enemy combatant classification when he was assigned to tribunal panel 23 in 2004. The panel determined that there was no evidence to support a finding that Al-Ghizzawi was an enemy combatant. According to Abraham:
What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence. Statements allegedly made by percipient witnesses lacked detail. Reports presented generalized statements in indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or the credibility of the source. Statements of interrogators presented to the panel offered inferences from which we were expected to draw conclusions favoring a finding of “enemy combatant” but that, upon even limited questioning from the panel, yielded the response from the Recorder, “We’ll have to get back to you.”
The military claimed that Al-Ghizzawi was a member of the Libyan Islamic Fighting Group (LIFG) – a boilerplate accusation leveled at all Libyan detainees. Al-Ghizzawi denied it, but even if it were true, there were no ties between the LIFG and the Taliban or al-Qaeda. LIFG was not on the State Department’ s watch list of possible terrorist organizations until years after Al-Ghizzawi was imprisoned at Guantánamo. Thus, members of that group were freely allowed to visit the United States while Mr. Al-Ghizzawi was imprisoned. Panel 23 was unimpressed with the accusation:
On the basis of the paucity and weakness of the information provided both during and after the CSRT hearing, we determined that there was no factual basis for concluding that the individual should be classified as an enemy combatant. Rear Admiral [James M.] McGarrah [director of OARDEC] and the Deputy Director immediately questioned the validity of our findings. They directed us to write out the specific questions that we had raised concerning the evidence to allow the Recorder an opportunity to provide further responses. We were then ordered to reopen the hearing to allow the Recorder to present further argument as to why the detainee should be classified as an enemy combatant. Ultimately, in the absence of any substantive response to the questions and no basis for concluding that additional information would be forthcoming, we did not change our determination that the detainee was not properly classified as an enemy combatant. OARDEC’ s response to the outcome was consistent with the few other instances in which a finding of “Not an Enemy Combatant” (NEC) had been reached by CSRT boards. In each of the meetings that I attended with OARDEC leadership following a finding of NEC, the focus of inquiry on the part of the leadership was “what went wrong.”
What Abraham doesn’t describe in his affidavit is that his panel’s determination was ultimately overruled by the higher ups and Al-Ghizzawi’s matter was submitted to a second tribunal, with more compliant members. Based on no new evidence, Al-Ghizzawi was reclassified as an enemy combatant. He was never informed that his case had been submitted to a second tribunal and he never learned that he had been initially classified as a non-enemy combatant.
Lt. Col. Abraham is no bleeding-heart lefty. The New York Times describes him as a “political conservative who cried when Nixon resigned.” The difference between Abraham and the White House is that Abraham is still attached to the quaint notion of justice. With my client’s future in his hands, he and his panel members bucked pressure from their superiors and did the right thing. The scrupulous Abraham was never asked to sit on a CSRT again. Guantánamo’s kangaroo justice has no use for people of principle.