[Ppnews] Fourth Whistleblower Rocks Guantánamo

[Political Prisoner News]

http://www.counterpunch.org/andyw10092007.html

October 9, 2007


Where Coerced Lies are Treated as Evidence


Fourth Whistleblower Rocks Guantánamo

By ANDY WORTHINGTON

The saga of the Guantánamo whistleblowers, which 
sprang to life in June, but then, like so many 
news stories, was considered done and dusted by a 
media hungry for fresh meat, resurfaced 
unexpectedly last week. A U.S. Army Major filed 
an affidavit in the case of Adel Hamad, a 
Sudanese detainee who was kidnapped in July 2002 
from his home in Pakistan, where he was working 
as a hospital administrator. The Major, who does 
not wish to be identified, stated that, between 
October 2004 and February 2005, he served on 49 
of the 558 Combatant Status Review Tribunals at 
Guantánamo, which were convened to assess whether 
or not the detainees had been correctly designated as "enemy combatants."

In his affidavit, the Major, a Judge Advocate's 
General (JAG) officer who served as a Second 
Lieutenant in the Army Reserves, and has worked 
as a Deputy District Attorney, explained that the 
training he received, both in Washington and 
Guantánamo, was "minimal," that the CSRT process 
was "not well defined," and that, "although the 
CSRT rules required having a JAG on each CSRT 
panel," they were "silent as to the role." He and 
other JAG lawyers concluded that they were there 
as "informal legal advisors to the other board 
members," whose legal knowledge was often poor. 
He described, for example, "a sentiment among the 
JAG officers that many of the CSRT officers did 
not understand the distinction between conclusory 
statements and evidence," and noted that some 
tribunal members "did not understand that the 
presumption was to be given to the evidence." In 
part, however, this was by design on the 
government's part, as he also noted, "The CSRT 
rules afforded the government evidence a 
presumption of correctness. For me as a tribunal 
member this meant that when I had a piece of 
evidence with some small corroboration, then I 
had to view that with great significance and it 
would also have made it difficult for any detainee to rebut."

Describing the 49 tribunals on which he sat as a 
member, he wrote that he and his colleagues 
typically worked 14-hour days, six or seven days 
a week, and explained that the tribunals' 
recorders, whose general role was "to generate 
the evidence" to present to the panels, "did not 
have much control over the content of the 
information to be presented to the CSRT 
hearings," adding that "Much of the material 
presented was supplied by intelligence agencies 
and were summaries that were not necessarily 
justified by the underlying evidence."

He also explained that the role of the Personal 
Representatives, who liaised with the detainees 
and sometimes helped them put their case to the 
tribunals, was "unclear," noting that "some PRs 
did little," but that one Air Force Major 
"strongly advocated for the detainees he was 
assigned to assist." In a further demonstration 
that some of those involved in the process were 
more concerned with results than with justice, he 
added, "I heard some CSRT members say that they 
did not appreciate the zeal with which he tried to assist the detainees."

In a particularly telling passage, in which he 
discussed the CSRT of Adel Hamad, he explained 
that "the tribunal members had very little 
discussion of the evidence in his case," and that 
his "primary concern" was that there was 
"insufficient evidence to describe him as an 
enemy combatant." After drafting a dissenting 
opinion, he discussed it with a Navy Commander, 
who was also on the panel, and was surprised that 
his colleague "questioned the meaning of some of 
the definitions used in my dissenting report," 
concluding that it "came from a lack of legal 
training." In one of the most damning passages, 
he also noted that, although exculpatory 
evidence, which might have exonerated the 
detainees, was supposed to be presented 
separately, "as required in the CSRT rules," none 
was presented in any of his 49 tribunals, and the 
only time he ever encountered exculpatory 
evidence was "by accident," when "some of the 
evidence presented by the recorder would 
contradict the allegations made against the detainee."

The Major also wrote about taking part in six 
CSRT hearings, "where there was a unanimous 
decision that the detainee was a Non Enemy 
Combatant ("NEC"). He explained that in each case 
"the Command directed that a new CSRT be held or 
the original CSRT was ordered reopened," but 
pointed out that "the 'new evidence' that was 
presented was in fact a different conclusory 
intelligence finding," which, significantly, "was 
not justified by the underlying evidence." In 
addition, he and other dissenting tribunal 
members were "briefed by CID (intelligence) 
agents who were brought in by Command to explain 
why the NEC results were wrong," and he described 
discussions that followed these meetings, when he 
and other tribunal members concluded, with some 
justification, "that this was an attempt to 
influence the results of the CSRT hearings."

In other passages, he described acrimonious 
meetings and a "heated conference" that followed 
"inconsistent decisions" in the cases of 18 
Uyghur detainees (Chinese Muslims, oppressed by 
their government, who had fled to Pakistan from 
Afghanistan after a ruined village they were 
living in was bombed by US forces), and explained 
how his suggestion, based on his experience of 
the criminal justice system, that "inconsistent 
results were good for the system," and would show 
that it was "working correctly," were ignored.

In a final point, which also indicates how loaded 
the process was in favor of the government's 
allegations, the Major noted that he spent a 
month and a half working as a legal advisor to 
the CSRTs, but "was never told that I could 
review the sufficiency of the evidence and write 
or discuss that issue with a CSRT."

While it remains to be seen whether the major's 
statement will add significantly to the growing 
clamor to return habeas corpus rights to the 
Guantánamo detainees, it has certainly revived a 
vitally important story, which, until now, looked 
as if it had been allowed to fall off the radar.

The first Guantánamo whistleblower to speak out 
publicly was Lt. Col. Stephen Abraham, an Army 
reservist with 26 years' experience in military 
intelligence. In an affidavit filed in the case 
of the Kuwaiti detainee Fawzi al-Odah, Lt. Col. 
Abraham, who had been part of the team 
responsible for compiling the "evidence" used in 
the tribunals, delivered a blistering 
condemnation of the entire process, stating that 
the CSRTs were 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," and that, moreover, the 
process was designed to rubber-stamp the 
detainees' prior designation as "enemy 
combatants." Like the Army Major, Lt. Col. 
Abraham also experienced bullying when he and the 
other members of his tribunal decided, in the 
case of Abdul Hamid al-Ghizzawi, a Libyan 
shopkeeper who was married to an Afghan woman, 
that the detainee was not an "enemy combatant."

Despite the uproar that Lt. Col. Abraham's 
affidavit caused for a few weeks in June and July 
this year, the press soon moved on. A few ripples 
of interest still lingered when he visited 
Capitol Hill in early August to reiterate his 
testimony before the House Armed Services 
Committee, but there the trail ended. A week 
later, after liaising with Lt. Col. Abraham, I 
reported exclusively that another officer who had 
taken part in the CSRT process had written to 
wish him luck, and to declare, "my recollections 
of the process are similar to yours. The finding 
of enemy combatant was expected, the finding of 
not an enemy combatant was looked upon as a 
failure of the process." Another OARDEC officer 
had also "expressed support for his efforts," but 
by that time everyone was on holiday, and the 
plight of the "enemy combatants" was forgotten.

The affidavit filed by the army major in Adel 
Hamad's case not only revives the important story 
that Lt. Col. Abraham bravely divulged in June; 
it also raises the number of former insiders 
criticizing the process to four, and neatly 
returns to the first reports of dissent within 
the ranks of those involved in the CSRTs, which 
first surfaced in September 2006. In an article 
for the Boston Globe, Farah Stockman reported on 
Adel Hamad's case, noting that an Army Major, who 
is clearly the same man who has now filed an 
affidavit publicly, even though no one involved 
in the case is providing any further information, 
had issued a dissenting opinion. Taking into 
account the fact that neither of the charity 
organizations for which Hamad had worked in 
Pakistan, the Saudi-based World Association of 
Muslim Youth, and the Kuwait-based Lajanat Dawa 
Islamiya, appeared on the State Department's list 
of terrorist organizations, he argued that, "even 
assuming all the allegations are accurate, the 
detainee does not meet the definition of enemy 
combatant." He added, "These NGOs presumably have 
numerous employees and volunteer workers who have 
been working in legitimate humanitarian roles. 
The mere fact that some elements of these NGOs 
provide support to 'terrorist ideals and causes' 
is insufficient to declare one of the employees an enemy combatant."

After Lt. Col. Abraham first spoke out in June, I 
wrote an article that drew on Farah Stockman's 
original story, in which I also noted her shocked 
conclusion, that the Major was overruled by his 
colleagues, one of whom, in a single line that 
discredited the whole tribunal process, wrote 
that the case "passed the 'low evidentiary 
hurdle' set up by the rules of the hearings", and 
I'm pleased to note that, with the Army Major now 
stepping forward to join the ranks of the 
Guantánamo whistleblowers, the mystery of Adel 
Hamad's dissenting tribunal member has now been 
solved. After the abuse that Lt. Col. Abraham 
received after going public in June, when the 
Department of Justice attempted to belittle him, 
and smeared his account as "innuendo," I also 
understand why he has refrained from revealing his identity.

All that remains now is for more former tribunal 
members to follow his lead, and also, if he's 
watching and waiting to do the right thing, for a 
dissenting officer who served as the Personal 
Representative in Guantánamo to two particular 
detainees to come forward too. First reported by 
Corine Hegland in the National Journal in 
February 2006, the story of this Personal 
Representative showed a principled man speaking 
truth to power on a heroic scale. Alarmed that 
those he was representing had been accused of 
crimes that they couldn't possibly have 
committed, this man, perhaps the Air Force Major 
referred to in the Army Major's affidavit, 
checked the file of the detainee who had made the 
allegations, saw that he had accused 60 men of 
attending a particular training when none of them 
had even been in Afghanistan at the time, and 
took the unprecedented step of submitting a 
written protest to the authorities after the CSRT 
of Farouq Saif, a teacher of the Koran who was 
allegedly seen at Osama bin Laden's private 
airport in Kandahar. In his letter, the Personal 
Representative stated that the government's sole 
evidence that Saif had been at the airport was 
the statement of another prisoner, who, according 
to an FBI memo, which he presented to the 
tribunal, was a notorious liar. According to the 
FBI, he "had lied, not only about Farouq, but 
about other Yemeni detainees as well. The other 
detainee claimed he had seen the Yemenis at times 
and in places where they simply could not have 
been." The Personal Representative added, "I do 
feel with some certainty that [the accuser] has 
lied about other detainees to receive preferable 
treatment and to cause them problems while in custody."

We know the identity of one of the other 59 men 
accused by the "notorious liar", Mohammed 
al-Tumani, a young Syrian who went to Afghanistan 
with his whole family, to be reunited with his 
father, who was working as a cook in Kabul, but, 
although some of the other falsely accused 
detainees are almost certainly covered in my book 
<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files, in which I look in depth at 
false allegations and false confessions, the 
knockout blow to the credibility of the corrupt 
tribunals might be delivered if this man, with 
his insight into lies that were treated as 
"evidence" on a colossal scale, could be 
persuaded to join the ranks of Guantánamo's principled whistleblowers.

Andy Worthington is a British historian, and the 
author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (to be 
published by Pluto Press in October 2007).

He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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