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Last Updated: 07/05/2007The “Enemy Combatant” Fraud
A key aspect of the legal architecture of the “war on terror” crafted by the Bush Administration involves labeling all persons seized and held as “terrorist detainees” (look at the telling language used in the letter from Air Force General Counsel Mary Walker, published in this space yesterday, for instance). Under the laws of war, a person seized on the battlefield is presumed to be a lawful combatant and as such entitled to prisoner of war treatment pursuant to article 5 of the Third Geneva Convention. This status can be overturned by a process of administrative review in which a determination is made that the person is not a lawful combatant in which case the detainee has protections under article 3 common to the Geneva Conventions. However, the Bush Administration decided to turn this system on its head, introducing the fiction that “the president” had made the determination that every person seized was an “unlawful enemy combatant.” There was no need for specific evidence or facts about the persons seized. It was conclusively presumed.
Of course we subsequently learned that over 80% of the persons held at Guantánamo had nothing to do with al Qaeda, or any other terrorist group. For the most part they were seized so that their captors could avail themselves of a bounty payment that the Pentagon very foolishly began offering for prisoners early in the war. They persisted in this nonsense until the Supreme Court declared the process illegal. But that led to a dilemma. If the person was really a civilian noncombatant, and he had been seized and held for years, subjected to torture and other illegal interrogation techniques, then the U.S. had a problem. Then, of course, what had been done was a criminal act. Indeed, a felony under American law. It was therefore essential to juryrig a system which would guarantee the result they needed to protect themselves from criminal liability.
And so the Combat Status Review Tribunal (“CSRT”) was born. The CSRT has been enshrouded in controversy from its start. To call the CSRT a kangaroo court would be an insult to kangaroo courts; it is far worse than that. Indeed, it would be embarrassing to allow outsiders to actually watch one of these farces in operation. The Pentagon therefore denied journalists and others the right to attend the proceedings, contending that national security secrets were prone to come up. Instead redacted transcripts were to be provided afterwards. And, like clockwork, the Pentagon has produced transcripts which reflect page on end of redactions: the witnesses coming before the tribunals describe how they were tortured.
Today, a very brave Army lieutenant colonel has come forward to reveal how utterly shameless and fraudulent the entire CSRT process is. The Associated Press reports: 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 those 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, filed in a Washington appeals court on behalf of a Kuwaiti detainee, Fawzi al-Odah, who is challenging his classification as an “enemy combatant”…
“It proves what we all suspected, which is that the CSRTs were a complete sham,” Cynamon said.
Matthew J. MacLean, another al-Odah lawyer, said Abraham is the first member of a Combat Status Review Tribunal panel who has been identified, let alone been willing to criticize the tribunals in the public record. “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.”
I am now specifically aware of three separate teams of JAG prosecutors who have resigned rather than conduct proceedings in the kangaroo-court system the Bush Administration has contrived in Guantánamo. In two of the three cases, the prosecutors specifically stated that they were aware that exculpatory evidence was being systematically withheld and fraudulent, false or torture-induced evidence was being used. This is but one of many manifestations of the Bush Administration’s war on the rule of law.
And Lieutenant Colonel Abraham had better watch out. He’s likely to land exactly where Lieutenant Commander Diaz and Lieutenant Colonel Steele have landed in the shortest of time. They’ll surely claim that he is revealing vital national security secrets, because the most closely held secret of the Bush Administration is the complete fraudulence of the system they have crafted at Gitmo. I would say that they took Franz Kafka’s “Penal Colony” for a model, but if you look carefully, you’ll see that Kafka provides a system with more elements of procedural fairness than they do. Another hallmark of this regime is its vindictiveness. Not only does it despise law and justice, it is intent on destroying those who want to uphold these fundamental American values. It is the monster that eats its own children; its mentality is in its innermost core criminal.
Originally published by Harper's Weekly, 22 June 2007.