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The Mistakes of Guantánamo and the Decline of America’s Image. The Ghosts of Nuremberg

Remarks of Stephen Abraham, Lieutenant Colonel, U.S. Army Reserve (Ret.), before the House Committee on Foreign Affairs Subcommittee on International Organizations, Human Rights and Oversight.

May 20, 2008

Thank you, Chairman Delahunt, Ranking Member Rohrabacher and the House Oversight Subcommittee, for permitting me to speak today.

I begin my remarks with a request, that you remember the following dates – September 16 and September 25 – and the numbers 33 and 35.

On April 13, 1945, Supreme Court Justice Jackson, speaking on the matter of war crimes trials, observed that “Farcical judicial trials conducted by us will destroy confidence in the judicial process as quickly as those conducted by any other people.” He continued, “The world yields no respect to courts that are merely organized to convict.” He would later serve as chief prosecutor at the Nuremburg War Crimes Trials.

Sixty years later, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Supreme Court Justice O’Connor wrote that due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker. That same day, the Court, in Rasul v. Bush, 542 U.S. 466 (2004), would extend the fundamental rights expressed in Hamdi beyond accidental boundaries of citizenship.

Others have spoken before this committee on the abuses suffered by detainees at Guantánamo. I will not speak to those matters; their voices do not need my inadequate words to express the indignities wrought by our hands.

Rather, I will address that which I have observed, understood through the prism of experiences spanning nearly three decades, as an officer in the United States Army Intelligence Corps for more than 26 years and as a lawyer for fourteen. I will address the Combatant Status Review Tribunals based on my involvement in nearly every aspect of their conduct. But more importantly, I will discuss the response by members of the international community to Guantánamo, though I will leave to you to assess the consequences for American national security and foreign policy objectives.

I was assigned to the Office for the Administrative Review of the Detention of Enemy Combatants (“OARDEC”) from September 2004 to March 2005. Prior to that time, I had served, after 9-11, as Lead Counterterrorism Analyst with the Pacific Command. It was during my tenure at OARDEC that nearly all of the detainee Tribunals were performed. I served as an inter-agency liaison. I also served as a Tribunal member, and had the opportunity to observe and participate in all aspects of the Tribunal process.

The Executive Branch’s detainee review process was designed not to ascertain the truth, but to legitimize detentions while appearing to satisfy the mandates in Rasul and Hamdi, decided only eight days earlier. The Tribunal process was designed not to fail as much as to succeed in a way alien to the purposes declared in Rasul and Hamdi. Lacking essential information and subjected to undue command influence, the Tribunals did little more than confirm prior determinations. That CSRT process was proof of the Executive power to detain anyone in the war against terror.

But the question posed today is not of the nature of Guantánamo but, rather, the world’s response to our use of Guantánamo as an instrument of our policies. I draw my conclusions from a recent experience.

On February 28th, I appeared before a joint hearing of the Committee on Civil Liberties and the Sub-committee on Human Rights of the European Parliament. A principal subject of the hearing was repatriation of former detainees. However, the discourse between members of Parliament, including representatives of our great allies, grew rancorous, revolving around the question of which countries had participated in the United States’ campaign of extraordinary rendition and which countries, together with the United States, ultimately bore responsibility for the stateless condition of scores of former detainees.

I explained that our system of justice was founded on principles shared by many of the countries represented by that body, principles invoked not only by our Charters of Freedom but that resonated two centuries later in the Declaration of Human Rights of the United Nations. Regrettably, the unmistakable message conveyed by a number of Parliament members were that those were merely words, as dry as the parchment on which they were penned, abandoned for the sake of political or military expedience.

Ultimately, I drew two conclusions from the experience. As to Guantánamo, the opinions emerged that Guantánamo was a place in which fundamental human rights did not apply; that judicial safeguards did not reach; and that lack of transparency permitted intelligence gathering activities to displace balanced national and international policies.
The second opinion may be explained by reference to remarks easily recognized.

        • We as a people refused Assent to Laws, the most wholesome and necessary for the public good.
        • We as a people affected to render the Military independent of and superior to the Civil Power.
        • We as a people deprived men in many cases, of the benefit of Trial by Jury.
        • We as a people transported men beyond Seas to be tried for pretended offences.

Ultimately, we as a people denied the self-evident truths that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Guantánamo is neither a necessary nor inevitable part of the grant of authorization by Congress on September 18, 2001. Guantánamo is a consequence of our disposition “to suffer, while evils are sufferable than to right ourselves by abolishing the forms to which we are accustomed.” Guantánamo is evidence of how speedily we tired of our constitutional rights, and how greatly we clamored for the illusion of security that we so quickly, so easily, and so completely surrendered one for the other. Moreover, Guantánamo is evidence of how willingly we caused to be forcibly divested essential human dignities of those over whom we presumed to exercise dominion.

In the beginning, I invoked the words of a great champion of justice. But it is not to those ghosts of Nuremberg that I allude. Rather, the experiment called Guantánamo may be compared to laws adopted in 1935, ten years before the first war crimes trial would commence. Those laws spoke to the protection of a people and of a state and of the divestment of rights of those not entitled by right of birth to the same. Ultimately, those laws – the Nuremberg Laws – purported to legitimize acts of inhumanity with no parallel in the history of mankind.

How can I speak of such matters when I was not a witness to them? I asked you in the beginning to remember two dates and two numbers. The latter were the numbers of the transport trains that on September 16th and 25th, 1942 sent members of my family to their deaths at Auschwitz.

Just as the world silently witnessed the events of 1935, the entire world bears witness not only to the facts of what is Guantánamo but, as importantly, our response.

At the opening session to the Nuremberg Trials, Justice Jackson, exclaimed, “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.”

Mr. Chairman. What is the record by which history will judge us?