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Abraham: Congressional Testimony, 26 July 2007.

On July 26, 2007, Lt. Col. Stephen Abraham gave testimony before the Armed Services Committee of the US House of Representatives. This testimony was part of hearings on upholding the right of habeas corpus to detainees. CSHRA has lifted from these hearings Mr. Abraham's prepared remarks and his answers to the questions posed to him by the committee. They are posted below. For the full hearing, click here.


Prepared Remarks


Mr. Chairman, Ranking Member Saxton, and to the honorable members of this committee, I am here to speak as a witness to events while assigned to OARDEC. The lens through which I describe what occurred was at the time of my assignment based on 22 years as an intelligence officer and ten years as a lawyer. I'll resist the urge of a lawyer and be brief if I may.

In that time of note, I served as lead terrorism analyst for the Joint Intelligence Center Pacific following the brutal 9/11 attacks. I was at OARDEC from September of 2004 to March of 2005, the time during which nearly all of the CSRTs were performed. In that time, I was called upon to serve as an intelligence officer, a liaison officer with other agencies, and a CSRT tribunal member. What I expected and what occurred were two entirely different things.

The process was described to me as one in which we would determine in the first instance if detainees were enemy combatants. The reality was that the process was designed to fail.

To validate prior determinations. The very name ARDEC, by its letters, its initials, and by the words for which they stand, the Administrative Review of the Detention of Enemy Combatants, did not merely invoke a presumption, but a mandate.

As a liaison officer, I was charged to validate the existence of exculpatory evidence. In practice, I was denied the ability to review relevant information or confirm the existence of exculpatory evidence. As an intelligence officer, I expected to see files developed on detainees using specific information developed through close coordination with other intelligence agencies. In reality, the information upon which CSRT decisions were based, were vague, generalized, dated, and of little probative value.

And as a CSRT Board member, I expected to be presented with sufficient material from which to reach conclusions regarding the status of detainees. What our Board received was not only insufficient but evidence to profound lack of credibility as to both the source of the information and the process of review. When our panel questioned the evidence, we were told to presume it to be true.

When we found no evidence to support an enemy-combatant determination, we were told to leave the hearings open. When we unanimously held the detainee not to be an enemy-combatant, we were told to reconsider. And ultimately, when we did not alter our course -- did not change our determination, did not go back and question the very foundation by which we had reached our decision, a new panel was selected that reached a different result.

What I expected to see was a fundamentally fair process in which we were charged to seek the truth, free from command influence. In reality, command influence determined not only the lightning fast pace of the 500-plus proceedings, but in large part, the outcome -- little more than a validation of prior determinations that the detainees at Guantanamo were enemy-combatants, and as we have heard so many times, presumed to be terrorists who could be detained indefinitely.

I am not here today as an advocate for any detainee no matter what their status; I am not here as an advocate for legislation, but rather for truth silenced too long. I am here as a person charged by my oath as a commissioned officer and as an officer of the court to uphold and defend the Constitution of the United States. What I witnessed while assigned to ARDEC respected neither oath. The process of which I was a part did not discover the truth but ratified conclusions made long before my assignment. Those conclusions are entitled to no deference by this body or any other.

If I may, I recall a line from"Casablanca," where at the end Captain Reneau said, "Round up the usual suspects," today they would be at Guantanamo. Thank you, Mr. Chairman.


Discussion


REP. SAXTON: Let me -- let me ask Mr. Abraham, if I may. The case that I referred to in my opening statement, this Bismillah case -- and I said that, in my view, Bismillah decision bolsters the claim that DTA and MCA framework provides an adequate alternative to habeas corpus. The case, the Bismillah case and the decision did, in fact, give the Federal Court of Appeals of the D.C. Circuit the right -- bolstered the right to review, as well as to take into consideration, evidence that was not considered by the CSRT, did it not? Do you know?

MR. ABRAHAM: My understanding, sir, is that it did. However, unfortunately, the record that was placed before the court -- as are the records and the cases of every single detainee, do not contain all of the information that was reasonably available. The process was never calculated to allow for, or accommodate, all of the information that was immediately or even reasonably available. And, moreover, the process itself created a scheme -- and I don't mean that in the pejorative sense, but a system by which, through its streamlining orientation and focus, a quick result was preferred over a probing inquiry.

REP. SAXTON: My understanding is that the court, under this decision or pursuant to this decision, has the right to look at evidence that was considered by the CSRT as well as any other evidence that exists. Is that not correct?

MR. ABRAHAM: My understanding is that you are correct as to the power or reach of the court. The problem is that the tools that are available to gather that information, certainly at the disposal ofany of the intelligence communities and that would have been available within any other procedure, were not applied in the case of the CSRTs.

REP. SAXTON: Just -- just for the record, once the CSRT has rendered its determination of status of the -- of the detainee, the detainee, under the current law, is -- that we created last year -- is entitled to an annual administrative review board process and, not being satisfied with that process, has access to the Federal Court of Appeals in the D.C. circuit. And it is the Federal Court of Appeals that we are now talking about, and of course, if the detainee is not satisfied with the result of the Federal Court of Appeals, he has access to the United States Supreme Court. Is that correct?

MR. ABRAHAM: My understanding, sir, is that that is correct.

[...]

MR. ABRAHAM: I'd like to make a few comments in response, Member Bartlett. You ask,"Why should we be looking for a substitute for habeas?" Let me start by saying the background rule until the Resolul (ph) decision and the peculiar circumstances that the Supreme Court saw in Guantanamo Bay -- the background rule from Johnson v. Eisentrager is that habeas is not available to those detained as part of an armed conflict overseas. So the background rule is no habeas, no judicial review at all whatsoever. That was changed by the Resolul (ph) decision so that there could be habeas for those at Guantanamo Bay.

But I think that it is a somewhat pervasive error -- in my view an error -- to claim that habeas review for enemy combatants detained during an armed conflict is this very well defined, very well known specific set of review rights. It's not. There has never been habeas review for enemy combatants detained in an armed conflict before, because of the Johnson versus Eisentrager rule. So the law has to be developed about what exactly the court will do in habeas review.

I think that it was a wise decision for Congress to step in and say, we're going to have judicial review. We're going to have Article III court review where we're going to set up specific procedures for it so that we're not just developing things through litigation -- going through litigation about what the habeas review will be. We're going to set up specific standards. And I think the standards that were set up for review in the DTA are sufficient to address the concerns of allowing serious, robust judicial review.

The D.C. Circuit has made it clear that that review is going to go outside the record of the CSRT. It is not limited simply to the evidence that was presented to the CSRT. It is going to include all available evidence. If there are issues like the particular petitioner believes that evidence that was available was improperly ruled unavailable, that can be challenged in the D.C. Circuit and the D.C. Circuit will rule on that. And there's no reason to think that the Article III judges in the D.C. Circuit are going to be any worse or any more lenient in ruling on basic questions like that than some district judge in a habeas action would be.

And so I think the question also is: Now that Congress has established this specific procedure -- a new specific procedure to deal with a new and unprecedented situation -- why should we be adding habeas corpus, an undefined and somewhat amorphous habeas corpus review, as an alternative on top of that so that there are two avenues for judicial review that will simply add burdensome litigation? I think that the system Congress has set up in the DTA provides for adequate Article III court review and a returning to allowing habeas as a duplicative form of access to the courts is unnecessary and unwise.

REP. BARTLETT: If I might say, Mr. Chairman, I think that you --

REP. SKELTON: I want to suggest, Mr. Abraham, in answering the question we've run out of time. And because of the excellent nature of the question, I think everyone should be given the right to fully answer it. Mr. Abraham, why don't you answer it -- and then your time will expire.

MR. ABRAHAM: Thank you. I'll be very brief, sir.

I can only speak about the CSRT process, but through a very, I think, distinctive perspective. Sixty years ago on the soil of two continents people were rounded up. Nobody spoke for them and nobody listened. In the past six years, people have tried to speak from Guantanamo and elsewhere and no one listened. I can't speak to which process is better, but I can tell you today: The CSRT process was neither a form for speaking nor for listening.

[…]

REP. SKELTON: Before I call on Mr. Loebsack, Mr. Abraham -- true or false: coerced statements are allowed in CSRTs as has to do with continued detention, as opposed --

MR. ABRAHAM: I'm sorry -- sorry, sir, I didn't hear the question.

REP. SKELTON: Coerced statements are allowed in CSRTs has it has to do with continued detention -- on the one hand -- as opposed to the Military Commissions, which are for the purpose of prosecution and a finding of guilt under a crime. Is that correct?

MR. ABRAHAM: It is true, but fundamentally flawed in the question asked. Through the process of --

REP. SKELTON: My question is flawed, Mr. Abraham?

MR. ABRAHAM: Forgive -- forgive me, sir. It presumes that in the CSRT process --

REP. SKELTON: How would you rephrase the question, Mr. Abraham?

MR. ABRAHAM: Well, what I would have asked is, in the CSRT process, do you know anything about how you got the information? It's an important first question because while it is true in the Commission process, in the trial -- the war crimes trials that coerced statements, the fruits of terror may not be used -- none of these are issues that we can retrospectively examine properly nor could even have answered through the CSRT process.

You have to understand, the documents that the individuals saw -- not only the recorder who summarized documents given to him by report writers, but that the Board saw -- were heavily redacted, they were excerpts, they were summaries. You didn't know where it came from, in large part, whether it was the product of coercion. And, in fact, the only thing that you would know -- and the only remarkable document would be one where it was explicitly noted,"the detainee said." So you knew a source but you didn't know how that information had been obtained.

[…]

REP. JOHN KLINE (R-MN): Thank you, Mr. Chairman. Thanks to the witnesses for being here […] One of the issues we've discussed quite a bit is this issue of CSRTs has been folded into this discussion. And so Colonel Abraham -- Mr. Abraham -- you are the expert witness here. And I'd like to ask a series of questions here so we can better understand your level of experience and expertise if I could do that. So I'd just like to go through these and have you answer as quickly as you can, please.In your opening statement, you have a discussion about what was done by case writers, those people whose job it is to gather information. Were you ever a case writer?

MR. ABRAHAM: I worked close with the case writers.REP. KLINE: You were not a case writer?

MR. ABRAHAM: I did not physically write (many ?) of the reports.

REP. KLINE: Thank you, sir. Your statement also discusses what members of quality assurance teams did. Were you ever a member of a quality assurance team?

MR. ABRAHAM: I looked at the products in -- no, I was not.

REP. KLINE: You were not a member. Thank you.

MR. ABRAHAM: Correct.

REP. KLINE: You were an intelligence liaison as I understand it. Can you give us some idea of how many times you visited intelligence agencies?

MR. ABRAHAM: Three to four times I physically went to one particular agency. And on many other occasions, I communicated directly with those agency representatives -- (inaudible).

REP. KLINE: That's good -- three or four times -- thank you very much. There were, according to my notes here, there were a number of duties that people could perform -- recorder, personal representative, convening authority, legal adviser. Were you ever any of those?

MR. ABRAHAM: Well, I was in fact a member of a tribunal. I was thereby prohibited from serving in any of the other positions.

REP. KLINE: Thanks. So you were a panel member?

MR. ABRAHAM: I was a panel member.

REP. KLINE: Okay. My notes here show that we have had 558 CSRTs were conducted. How many of those were you involved in? How many panels were you on?

MR. ABRAHAM: I was on one panel that heard one detainee's case.

REP. KLINE: So I appreciate that that brings a perspective. But we are looking to you for information about this entire process, and you've served on one panel out of 558 in a role as a panel member where you were precluded from these other things. And you weren't a case writer and you weren't on the quality assurance team. So I don't doubt that you paid close attention and you're reporting accurately on your participation. But it seems to me that this is not the depth and breadth of experience that we probably ought to be hanging our decisions on. Why do you feel qualified to tell us about the entire process with what appears to be a fairly limited participation?

MR. ABRAHAM: If I may, sir --

REP. KLINE: Please, it's a question to you.

MR. ABRAHAM: Thank you, sir. The questions that were asked do not necessarily reflect the totality of the experiences that I had. Specifically, you asked me if I was a case writer, but case writing was a responsibility of many individuals who were assigned there, very few of them having any involvement in intelligence activities or intelligence products. One of the things that I did as a qualified intelligence officer was work with each of those case writers as questions arose, as the circumstances dictated, explaining to them the type of products that they were reviewing and in fact dealing with them on questions of the very products they were reviewing. In that regard then, I saw not just one file or one detainee's file but more than 300 files and thousands of individual documents.

REP. KLINE: Excuse me. What did you do most of the time? What were the majority of your duties?

MR. ABRAHAM: The majority of my duties --

REP. KLINE: Were you involved with the tracking system? Or what was your principal function down there?

MR. ABRAHAM: Well, sir, I had three functions, neither of which I don't think anybody could describe as being principal. One of them was to individually track every step of the process for the detainees that were being tracked between September 2004 and February of 2005. So what I literally did, if I may, sir, was I generated the letters that gave notice to the detainees that they were going to have a hearing within 30 days. I generated the letters that were sent out to the various ambassadors, to the Department of State, to the intelligence agencies asking them to begin to review their files. I generated the letters that were used to identify the individuals that were going to be put on the panels. I generated the letters --

REP. KLINE: Excuse me. So most of your time you were writing letters?

MR. ABRAHAM: No, sir.

REP. KLINE: Or were you participating in panels? I mean, what concerns me here, I know that somebody has to track the tracking system.

REP. SANCHEZ: Will the gentleman yield?

REP. KLINE: Happy to yield.

REP. SANCHEZ: Mr. Kline, I'm much more interested in understanding about habeas corpus than I am in having you impeach this witness.

REP. KLINE: Thank you. Reclaiming my time, this issue of CSRTs was brought up by the chairman by bringing this witness. And I think we need to understand better what the witnesses' level of experience is, because his testimony is relevant to what the chairman wanted to do.

I yield back.

REP. SKELTON: Before I yield to Mr. Sestak, let me ask the witness, was there any command influence, in your opinion, on your work in CSRT?

MR. ABRAHAM: Yes, sir. There were two aspects where command influence came directly to bear -- again, in my perspective and based on my experience. The first related to one of the what I believed was highly significant tasks that I was charged to do. Following the opinions of the courts as were then applied in the practices of the CSRT process, through ORDEC (ph), I was specifically charged to go to certain intelligence organizations, whether physically directly, or through communications, and validate the existence or nonexistence of exculpatory information. As a part of that process, I also reviewed the thousands of documents that were included with many of the tribunal packets. I immediately advised my seniors, senior leadership -- the deputy director of ORDEC (ph) and the director of ORDEC (ph) -- that, one, when I went to the agencies I was not only frustrated but prevented from seeing or knowing the extent or even the existence of exculpatory evidence. That, to my mind, was a mission show-stopper, and I was dismissed by the comments.

Secondly, as related to the documents themselves, I raised frequent concerns with the individuals who asked me about the documents, the individual who used the documents, regarding their substance -- the so-to-speak"logical leaps" that were included in their superficial, oftentimes, review or review of incomplete documents. I expressed these concerns; these were dismissed. Finally, when I was on a tribunal -- yes, sir, one tribunal -- all three members said, "This is not even evidence." We were told, "Go back and do it again."

And if I may address a prior question that was asked of whether or not these practices followed a procedure or whether they were just individual string, in fact, if you look at the CSRT implementing guidelines, they very specifically say that no matter what we find, it is little more than a recommendation to the director of ORDEC (ph), who can choose to accept or reject it. It was that rejection (to that mind ?) was the paramount and clearest expression of command influence that I could have seen in the entirety of the time that I was there.

[…]

REP. NANCY BOYDA (D-KS): […] And my question to you would be, can we carry out justice at Gitmo? Were we to -- were this Congress to say, we do want to return to the fundamentals of our democracy and we do want to bring back habeas corpus, can justice be served at Gitmo? Can we physically -- do we have to physically choose -- or close Gitmo or can we do it there?

MR. [ABRAHAM?]: What I can speak to, Madame Representative, is to what happened in the CSRT process. But we have to begin by remembering that the Constitution did not invent life -- the rights of life or liberty, that all it took was the absence of truth, a silence demonstrated through the CSRT process, to literally extinguish it.

We speak of the bulwarks of our Constitution, of rights that at least as far as this nation are concerned existed for 200 years, and yet we measure the lives of men in decades. Some of these individuals will spend a great part of their adult lives in detention, whether it is at Gitmo or somewhere else. Again, I can't speak to how the freedoms that we enjoy are eroded or our reputations are eroded. But what I can do, if I may, is say that the CSRT process was our opportunity to find the truth, to identify the truth, and by that process to determine whether these individuals should be detained for one more day than they were at the time of the CSRT process. Now, years later, we still don't know why many --

REP. BOYDA: Let me just yield. The point of my question is, again, now that this has such a black eye -- the good people of Leavenworth, Kansas, are asking, why do we want to bring that into our community? And some are asking -- these are different opinions, but I -- on the position of do we close Gitmo, I have said we don't have to close Gitmo to have justice being served. Would you care to -- would anyone else care to comment on that?

MR. [ABRAHAM?]: I agree with you, Congresswoman. And I thank you for your time and the time you extended to me in May, when we chatted briefly about this issue.

The issue is justice. It's the principle to be served. There have been issues raised today about whether there will be litigation about restoring habeas. There's already litigation about the system in place. And in point of fact, if the administration had accepted the Rasul ruling and Hamdi and put in place a proper process and agreed to let habeas go forward, we wouldn't be having this discussion today.

REP. BOYDA: Exactly.

MR. [ABRAHAM?]: So I think that you're on the right track, absolutely; that the question is, when and where are we going to serve the interests of justice -- in this case, individual liberty -- not where are we going to put people who we continue to deny those rights?

REP. BOYDA: Thank you.

[…]

REP. PATRICK MURPHY (D-PA): […] So my question is first -- to the panel but first to Colonel Abraham -- and, sir, thank you for your service to our country and for standing up as you are -- do you think that the CSRT process is in line with the letter and the spirit of Article V of the Geneva Convention?

MR. ABRAHAM: Thank you very much, sir, for your comments.

It is not. Both in looking at the percentages -- the 93 percent affirmed, the annual reviews -- of the 38 non-enemy combatants and of the large number of individuals who have been alleged to have been released and then returned to the battlefield, the one message that comes through with clear resonance is that the process achieved arbitrary results.

By that I mean, are there certain terrorists at Guantanamo? Absolutely. I followed one of them for a year during my duties in the Pacific theater. I know about him. I know what he has done, and he should be there for the rest of his life. Are there people who did nothing? Absolutely. But between those two extremes, there is a chasm in which we have filled the bodies -- 500 -- in excess of 500 bodies. That's all they are. What they've been reduced to are statistics. They were processed through a system that was, as you rightly point out, not the Article V proceeding because the presumption was, under Article IV, that they didn't need that level of protection. We didn't need that level of protection for them.

The annual review process does not deal with the same question -- the validity of their detention. Rather, it deals with the two questions that are completely different: Are they any longer a threat to the United States? And is there any more intelligence value or some other reason why we should keep them? We've lost sight in all of that process of the first question that we as a part of ORDEC involved in the CSRT process were charged to answer to the best of our abilities: Should they be there in the first place?

REP. MURPHY: Thanks, Colonel. Gentlemen, could you please respond as well?

MR. KEENE: I think that he's pretty much nailed it.

REP. MURPHY: I would agree, but I --

MR. OLESKEY: I agree.

REP. MURPHY: Okay.

REP. KATHY CASTOR (D-FL): Thank you, Mr. Chairman. And thank you, gentlemen. And Mr. Abraham, thank you for your 22 years of service as a military intelligence officer.

MR. ABRAHAM: Thank you, ma'am.

REP. CASTOR: Regardless of how folks feel about the closure of Guantanamo, we're out to find out the truth here, and I think that's -- that regardless of your political stripe, that's the intention of this committee.

Mr. Abraham, in your testimony you state that these CSRTs and the whole process was "designed not to ascertain the truth but to legitimize the detentions. The process was nothing more than an effort by the executive to ratify its exercise of power to detain anyone it pleases." You say, "The system was designed to fail. The Combatant Status Review Tribunal panels were an effort to lend a veneer of legitimacy to the detentions, to launder decisions already made. The CSRTs were not provided with the necessary -- with the information necessary to make any sound, fact-based determinations. Instead the Office for Administrative Review -- the leadership there exerted considerable pressure, and was under considerable pressure itself, to confirm prior determinations."

I'd like you to go a step further than your answer to Chairman Skelton on where the pressure came from. Explain the command influence in greater detail and how the chain of command -- who was in this chain of command, and how far up did it go, in your experience?

MR. ABRAHAM: I can't speak ultimately as to how far it went. My experiences stopped with Rear Admiral McGarrah. But above me and besides me were -- that is, beside me -- were commanders, two of them JAG officers, with whom I consulted on a daily basis. We dealt with the issues of evidence and of the law applying it to the proceedings. I asked them questions and got their feedback to my concerns.

There were then two captains -- Navy captains, the equivalent of an Army full colonel -- above me in the leadership chain -- one the assistant to the deputy and one the deputy director. And these individuals were essentially the intermediate level of command between, so to speak, myself -- or -- and I don't want to imply that I was in any position of command -- but between me and Admiral McGarrah.

In terms of the specific pressure that was applied to this process, and as it specifically applied to me, I was directly tasked to gather information and to validate the existence or nonexistence of exculpatory evidence. I went to one particular agency and said,"Where is the evidence?"

They literally put a laptop in front of me and said,"This is all you get to look at. We did the search for you. Accept that what we've given you is all there is."

I went back and I said,"I cannot perform this mission. That is, specifically, I can tell you that I went to the agency; I can tell you they showed me things; and I can tell you what I said. But I can give you no independent basis for concluding, one, that there is or is not exculpatory evidence or that I have satisfied your charge to me."

I was told,"That's fine. That's all you need to do." That, however, was not my charge.

But where it specifically came to bear was when I sat on a CSRT and I looked at the very same kind of evidence, so to speak, that I had seen for months. And not only I, but the other members of the panel said, this is garbage.

And as a matter of fact, when we looked at direct statements that came from interrogators, where they said, our conclusion as to the facts is that this individual was involved in activities. And we said, 1) that's not even a rational conclusion that you could reach, but 2) we have no reason for presuming the validity of that. We were told, you have to accept that as true. The presumption is, it is true, it is valid.

And when we asked questions, we were told more time should be allowed for them to get the answers. And the answers didn't come -- and we concluded that the individual was not an enemy-combatant -- we were told, keep the hearings open so that they can come back. We were told, reconsider when there's other evidence.

REP. CASTOR: And then ultimately, you were not asked to return to a tribunal panel?

MR. ABRAHAM: That's correct. What I found -- in fact, I didn't even know that the individual received another panel's -- was involved in another hearing.

REP. CASTOR: Did they bring similar -- did they have similar interests when there was a determination that they qualified as an enemy-combatant?

MR. ABRAHAM: Oh, absolutely not, Madame Representative --

REP. CASTOR: And who were -- who did Captain Swaggart (sp) and Admiral McGarrah report to?

MR. ABRAHAM: My understanding is that -- and again, I may be off as to the number of steps, but Secretary England was within that chain of command.

REP. CASTOR: Thank you.

[…]

REP. JOE COURTNEY (D-CT): Thank you, Mr. Chairman. I just want to follow up that line of questions.

When Panel 23 reached its conclusion and then was told to look again, and then Panel 32 was convened, and just overruled or contradicted your findings, how did OARDEC do that? I mean, did they reconvene the second panel because of their guidelines that you mentioned in earlier testimony? I mean, what's the authority they have to just reconstitute a second panel?

MR. ABRAHAM: It was fair --

REP. SKELTON: Would the gentleman suspend for just a moment? As I understand it, Mr. Philbin has a prior commitment and must leave. Am I correct?

MR. PHILBIN: Yes, sir.

REP. SKELTON: We appreciate your being with us this long. Thank you so much.

MR. PHILBIN: Thank you. Thank you, Mr. Chairman.

REP. SKELTON: Please proceed.

MR. ABRAHAM: If I may, sir. I knew of no authority for holding a second CSRT, or what has been referred to as a"re-do." I do know -- of my understanding based upon my reading of the procedures and as they were applied -- was that each individual got a CSRT. The statement being, no matter what happens as to that outcome -- that is if they continue to be detained, if they're identified as an enemy- combatant or an unlawful enemy-combatant in the ARB process -- we'll smoothen over any problems.

I had never heard of a re-do. I was not only shocked much later to have learned of it, but surprised as to its results. Because the information that we were given -- I had known from my experience working with it, and not just working with it through OARDEC, but in the years that I've worked with information from various agencies, very detailed and specific information -- contrasting that to what I saw, there was no way that our Board could reach any other conclusion.

It wasn't a close call and we weren't giving the benefit of the doubt to small holes in the evidence. It simply didn't even rise to the level of evidence. So I didn't understand, from two aspects, how this happened: 1) procedurally, I've never heard of it and never saw a basis for it, and 2) the evidence simply was not there when that CSRT was scheduled.

It's important to note, however, because I think one of the things you touch upon in your question is the fact that, in many respects, the CSRT panel is merely advisory, because the rules that instituted the CSRT procedures, gives the director of OARDEC the absolute authority to disregard the findings and recommendations. Essentially, the judgment of the tribunal becomes little more than the findings and recommendations of a magistrate that a judge can accept or reject.

REP. COURTNEY: I'm sorry Mr. Philbin had to leave because he actually just finished praising the structure of CSRTs, and it's hard to see how a structure that basically says the whole process can just get trumped by someone who's not on -- even within that tribunal process or an independent magistrate, just doesn't comport with any structure of any kind of independent judicial review that I've ever heard of.

MR. ABRAHAM: If I may, there's a saying in the military repeated by everybody -- I think they're born knowing it,"It's the doctrine, not reality." It's a recognition of the dichotomy between what we're taught in class and what's applied on the field.

In the instance of the CSRTs, there was no such dichotomy. It wasn't as if there was a procedure that anyone in the trenches disobeyed, and that much should be made very, very clear. Talking about the qualifications, a personal representative only had to be a major, no other qualifications. That was it. The recorder only had to be a captain-equivalent, an03, and that was it. They were required to faithfully discharge their duties, and to the best of their abilities, I think they did.

The fundamental flaw was in the fact that OARDEC was not an embedded consumer of intelligence or information. It was a stranger to most of these agencies -- making requests when it could, given very little time to get meaningful responses from them, and physically constrained by the necessary limitations that involved the use of sensitive intelligence products. In other words, when they were handed a diluted, watered-down, summarized statement that might or not even apply to the individual, it was the best they got, it was all they had.

In the case of our Board, we said that is not to justify holding somebody perhaps for the rest of their life. To our mind, to reach any other conclusion would have validated what we would then have had to have regarded as an arbitrary process -- a game of "spin the wheel."

REP. GABRIELLE GIFFORDS (D-AZ): […] So my question is to Colonel Abraham. Giving fair trials to 360 detainees at Guantanamo, I don't believe it can be possibly be more dangerous to our national security, than to the thousands of individuals -- perhaps young Muslims who are aspiring to hate us based on what they see happening -- in your opinion, based on your experience with the CSRT and the intelligence community, do you believe that the situation in Guantanamo currently is reducing or increasing the overall violence and hatred toward the United States?

MR. ABRAHAM: Although this is personally -- this is purely my personal opinion, I think it makes tremendously difficult, both the military and political aspects of what we do. One of the assignments that I had, long before I came to work either at Pacific Command or with ORDEC, was as a member of a psychological operations unit -- a military organization specifically designed to go out, and as we like to remind ourselves,"win the hearts and minds" of individuals, both in wartime and in peace. Most of those individuals are Reservists, it's marginally a Reserve function the way that it's constructed.

It has been tremendously difficult, as I have seen it, to get across a message -- and it's a message based on an interesting paradox. On the battlefield, when an enemy faces us with his gun, we can kill him. Yet the moment he raises his hand and drops his gun, we have to protect him.

This is the -- he may not understand the distinction between those two moments but it is important enough that we do.

As we sat at ORDEC dealing with these questions, it wasn't important that somebody else know the difference between the rule of law and lawlessness, the difference between those who would destroy our country and those who support our country, the question was whether we understood the difference. I think most of the people at ORDEC did but I think the system in which they worked made it impossible to find a meaningful distinction between those two sides of line.

REP. GIFFORDS: And Colonel, given just what you've said, how would you personally recommend implementing habeas corpus or another appellate system to reduce the rate at which we have this conflict -- and perhaps a misconception -- reduce the ability to radicalize our enemies but also not provide for these folks to basically be able to talk their way out of prison?

MR. ABRAHAM: I can't speak ultimately for the effect of habeas or some other proceeding -- there are eminent experts surrounding me to my left, my right, my front, my even my rear that know better about that -- but I think we begin, when we do what the CSRTs in ORDEC were charged to do, find the truth -- find the truth as to these individuals.

When you take away the generalization from the claims and the categorizations and the ease with which you can put somebody in a broad sweeping stroke into one category or another decide their terrorists and keep them in Guantanamo for the rest of their lives -- when you stop that by first examining the truth as we were charged to do, I think you take away the fertilizer from that tree of which you speak.

REP. ELIJAH CUMMINGS (D-MD): [… ] But one of the things that concerned me, Mr. Abraham, is something that you said that -- see, I'm having trouble as a lawyer dealing with this enemy combatant status. And perhaps the other two witnesses can talk about this, too -- when I heard what you said about what happens from the beginning that is that exculpatory evidence, I mean, what you witnessed -- what you said you witnessed, seems like some of these folks should have never been picked up from the beginning.

And that seems to taint almost everything down the line. And then when I hear you, Mr. Oleskey, say that you don't have to be picked up on the battlefield, that makes me wonder, too.

And then I wondered about this so-called -- when we say war on terror, does that then give every single inch of the world -- I mean, anybody can be picked up, considered an enemy combatant wherever they may be found anywhere in the world, because when we say war on terror, that's pretty broad. And I'm just wondering how -- would you all comment on those things?

MR. ABRAHAM: I can, if I may, sir.

One of the problems is that we think of war in the traditional sense and we say we know where the battlefield is. But let's take a very specific example of an individual who is in Guantanamo. He's identified by the name Hambali. He was the head of Jemaah Islamiah. We had been watching him for years. The South Pacific was his battlefield from Indonesia up the peninsula to Thailand. He gave little regard to the notion of even what was going on in the Middle East. In that sense he created his battlefield.

The battlefield itself is not the problem and has never been a problem for the intelligence community in dealing with its relationship in dealing with the legal questions -- the Article IV and Article V questions. That was never a concern. When I go to an intelligence agency and I ask it the question: What are the circumstances of this individual's capture? What are the circumstances of his activities? Do you have any evidence relating to the question of whether or not he didn't do any of those things? They don't come to me and say,"Gee, Colonel Abraham, he wasn't really found on a battlefield." It's not a meaningful question. That was never a problem of where the individual came from.

In my mind the question squarely before us was: What evidence do you have of what he did -- whether he moved money, whether he fired a gun, whether he trained terrorists or whether he was sent by his wife to get a gallon of milk? The answer to that question was the most important piece of information in this process and whether it came from a highly classified source or somebody saying,"Yeah, I sent him. And between that chore, he had other chores." Those are probative pieces of evidence.

Get the full hearing here.

 

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