Fourth Whistleblower Rocks Guantánamo

Where Coerced Lies are Treated as Evidence

by ANDY WORTHINGTON - Oct 9, 2007

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 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 'The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison' (to be published by Pluto Press in October 2007).