The Obfuscation Report

by Ben Fox

SAN JUAN, Puerto Rico — An Army officer who played a key role in the "enemy combatant" hearings at Guantanamo Bay says tribunal members relied on vague and incomplete intelligence while being pressured to rule against detainees, often without any specific evidence.

His affidavit, submitted to the U.S. Supreme Court and released Friday, is the first criticism by a member of the military panels that determine whether detainees will continue to be held.

Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an Army reserve officer and a California lawyer, said military prosecutors were provided with only "generic" material that didn't hold up to the most basic legal challenges.

Despite repeated requests, intelligence agencies arbitrarily refused to provide specific information that could have helped either side in the tribunals, according to Abraham, who said he served as a main liaison between the Combat Status Review Tribunals and the intelligence agencies.

"What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence," Abraham said in the affidavit submitted on behalf of a Kuwaiti detainee, Fawzi al-Odah, who is challenging his classification as an "enemy combatant."

Abraham's affidavit "proves what we all suspected, which is that the CSRTs were a complete sham," said a lawyer for al-Odah, David Cynamon.

A Pentagon spokesman, Navy Lt. Cmdr. Chito Peppler, defended the process of determining which detainees should be held, saying the "procedures afford greater protection for wartime status determinations than any nation has ever before provided."

"Lt. Col. Abraham provides his opinion and perspective on the CSRT process. We disagree with his characterizations," Peppler said. "Lt. Col. Abraham was not in a position to have a complete view of the CSRT process."

Abraham said he first raised his concerns when he was on active duty with the Defense Department agency in charge of the tribunal process from September 2004 to March 2005 and felt the issues were not adequately addressed. He said he decided his only recourse was to submit the affidavit.

"I pointed out nothing less than facts, facts that can and should be fixed," he told The Associated Press in a telephone interview from his office in Newport Beach, Calif.

The 46-year-old lawyer, who remains in the reserves, said he believe he had a responsibility to point out that officers "did not have the proper tools" to determine whether a detainee was in fact an enemy combatant.

"I take very seriously my responsibility, my duties as a citizen," he said.

Cynamon said he fears the officer's military future could be in jeopardy. "For him to do this was a courageous thing but it's probably an assurance of career suicide," he said.

Abraham said he had no intention of leaving the service. "I have no reason to doubt that the actions I have taken or will take uphold the finest traditions of the military," he said.

The military held Combatant Status Review Tribunals for 558 detainees at the U.S. Naval Base at Guantanamo Bay in 2004 and 2005, with handcuffed detainees appearing before panels made up of three officers. Detainees had a military "personal representative" instead of a defense attorney, and all but 38 were determined to be "enemy combatants."

Abraham was asked to serve on one of the panels, and he said its members felt strong pressure to find against the detainee, saying there was "intensive scrutiny" when they declared a prisoner not to be an enemy combatant. When his panel decided the detainee wasn't an "enemy combatant," they were ordered to reconvene to hear more evidence, he said.

Ultimately, his panel held its ground, and he was never asked to participate in another tribunal, he said.

Matthew J. MacLean, another al-Odah lawyer, said Abraham is the first member of the CSRT panels who has been identified, let alone been willing to criticize the tribunals in the public record. His affidavit was submitted to a Washington, D.C., appellate court on al-Odah's behalf as well as to the Supreme Court.

"It wouldn't be quite right to say this is the most important piece of evidence that has come out of the CSRT process, because this is the only piece of evidence ever to come out of the CSRT process," MacLean said. "It's our only view into the CSRT."

In April, the Supreme Court declined to review whether Guantanamo Bay detainees may go to federal court to challenge their indefinite confinement. Lawyers for the detainees have asked the justices to reconsider. The Bush administration opposes the request.

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Associated Press writer Matt Apuzzo in Washington contributed to this report.

Labels: enemy combatants, Guantanamo Bay, habeas corpus

In February, Vice President Cheney traveled to Australia to visit with his close ally Prime Minister John Howard. At the top of Howard’s agenda was a plea to release Australian Gitmo detainee David Hicks. Last Friday, Hicks became the first person to be sentenced by a military commission convened under the Military Commissions Act of 2006, accepting nine months of imprisonment and a gag order that will not allow him to discuss the case for 12 months.

Howard lobbied Cheney during the February visit for the trial to “be brought on as soon as humanly possible and with no further delay.” The plea bargain itself was brokered by Susan Crawford, the top military commission official and a former Department of Defense inspector general under then-Secretary of Defense Cheney, without the knowledge or input of the lawyers prosecuting Hicks. The lead prosecutor expressed shock over the light sentence.

Given the nature of the deal, suspicions are being raised that the plea agreement may have been an orchestrated gesture by Cheney to benefit Howard in his re-election fight. Howard, who is lagging behind Labor Party rival Kevin Rudd in the polls, faces a tough election contest in less than nine months. Now, legal experts on both continents are sounding alarms. Some examples:

– Terry Hicks, David’s father, said in a statement that “it is clearly a political fix arranged between Mr. Howard and the Bush administration to shut up Hicks until after the election in November.”

– Bob Brown of Australia’s Green party described the deal as a political “fix” meant to benefit Howard, saying that “the message has gone very clearly from Canberra to Washington to Guantanamo Bay: don’t allow Hicks to be released until after the elections and certainly don’t allow him to speak.”

– Lex Lasry, an Australian who observed the trial, remarked, “What an amazing coincidence that, with an election in Australia by the end of the year, he gets nine months and he is gagged for 12 months from talking about it.”

– Lawrence Wilkerson, former chief of staff to Colin Powell, said: “I’m not naive. I know that they probably worked out - I’m quite sure they worked out - a plea bargain, that would allow the United States to appear to have effected a reasonably fair proceeding, would allow David Hicks to return to Australia, and satisfy Prime Minister Howard’s needs.”

Andrew Sullivan emphatically states, “If you think this was in any way a legitimate court process, you’re smoking something even George Michael would pay a lot of money for. It was a political deal, revealing the circus that the alleged Gitmo court system really is.”

Labels: Bush Administration, Dick Cheney, Guantanamo Bay, kangaroo court, political deal

By Peter Spiegel
Times Staff Writer

March 30, 2007

WASHINGTON — Defense Secretary Robert M. Gates said Thursday that he had been pressing others in the Bush administration to move war crimes trials of suspected terrorists from Guantanamo Bay, Cuba, to courts inside the U.S. because the military tribunals may appear tainted in the eye of the international community.

No matter how open the trials are under a new law, Gates said, they may not be deemed credible by the outside world because of prior military practices at the U.S. naval prison at Guantanamo, which included interrogation techniques that involved physical coercion.

"My own view is that because of things that happened earlier at Guantanamo, there is a taint about it," Gates testified before the House Appropriations Committee's defense subcommittee.

He continued: "I felt that no matter how transparent, no matter how open the trials, if they took place at Guantanamo, in the international community they would lack credibility."

Gates repeated his support for closing down the prison and has expressed concern before that abuses there have harmed America's reputation abroad. But his comments come at an awkward time for the administration, with the trials resuming this week after a year's hiatus.

The first man to plead guilty in the trials, Australian David Hicks, is scheduled to appear before a tribunal at Guantanamo today to admit to specific crimes and receive his sentence. Hicks, a 31-year-old former kangaroo skinner, will be asked about 24 specific allegations on a Pentagon charge sheet, which involve weapons and tactics training with reputed terrorist groups in Albania, Pakistan and Afghanistan, as well as meetings with Osama bin Laden and would-be "shoe bomber" Richard Reid.

Hicks entered a plea of guilty Monday in a surprising reversal after his lawyers spent more than four hours wrangling with the military judge, Marine Col. Ralph H. Kohlmann.

The administration cites Hicks' conviction as a sign the new tribunals are legitimate, but Gates' comments could hamper the effort.

Gates has been widely credited by senior Pentagon officials and members of Congress for a more open and pragmatic style than his predecessor, Donald H. Rumsfeld.

His views on Guantanamo have been the most visible example of substantive differences. By some accounts, his stance on treatment of terrorism suspects may be the most significant policy break from Rumsfeld in Gates' tenure.

Within weeks of taking office in December, Gates killed a $102-million plan to build a large courthouse facility at Guantanamo, a proposal first made while Rumsfeld was still in charge at the Pentagon. Gates called the proposal "ridiculous" and instead ordered existing buildings to be refurbished, at about a tenth of the cost.

His views on the military tribunals could be more consequential. In the past, top administration lawyers have pushed for retaining most existing procedures, including the use of evidence gathered through coercion, despite adverse court rulings.

But Rumsfeld and his chief lieutenant on detainee issues, Stephen A. Cambone, both have left. That leaves Atty. Gen. Alberto R. Gonzales — who, as White House counsel, urged Bush to ignore the Geneva Convention when dealing with detained Al Qaeda suspects — increasingly isolated on the issue.

In his Capitol Hill testimony, Gates said there were "some number of people at Guantanamo that, frankly, based on their own confessions, should never be released."

"Now, I'm not the attorney general; I'm not a lawyer," Gates noted, saying he wanted to work with Congress to find a way to use the military prison system for some Al Qaeda suspects.

"It may be that it requires some kind of a statutory approach to deal with it in terms of how do you keep these people — who are self-confessed terrorists, who will come back and attack the United States if they're ever released — for the long term."

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peter.spiegel@latimes.com

Times staff writer Carol J.

Williams in Guantanamo Bay, Cuba, contributed to this report.

Labels: Geneva Convention, George W Bush, Guantanamo Bay, international community, Robert M. Gates, torture