So it is with particular poignancy that thanks to the Bush Administration, we have managed to set up a farce of justice that continues in that grand tradition.
Stephen E. Abraham’s assignment to the Pentagon unit that runs the hearings at Guantánamo Bay, Cuba, seemed a perfect fit.
A lawyer in civilian life, he had been decorated for counterespionage and counterterrorism work during 22 years as a reserve Army intelligence officer in which he rose to the rank of lieutenant colonel. His posting, just as the Guantánamo hearings were accelerating in 2004, gave him a close-up view of the government’s detention policies.
It also turned him into one of the Bush administration’s most unlikely adversaries.
In June, Colonel Abraham became the first military insider to criticize publicly the Guantánamo hearings, which determine whether detainees should be held indefinitely as enemy combatants. Just days after detainees’ lawyers submitted an affidavit containing his criticisms, the United States Supreme Court reversed itself and agreed to hear an appeal arguing that the hearings are unjust and that detainees have a right to contest their detentions in federal court.
Some lawyers say Colonel Abraham’s account — of a hearing procedure that he described as deeply flawed and largely a tool for commanders to rubber-stamp decisions they had already made — may have played an important role in the justices’ highly unusual reversal. That decision once again brought the administration face to face with the vexing legal, political and diplomatic questions about the fate of Guantánamo and the roughly 360 men still held there.
“Nobody stood up and said the emperor’s wearing no clothes,” Colonel Abraham said in an interview. “The prevailing attitude was, ‘If they’re in Guantánamo, they’re there for a reason.’ ”
I believe those latter quotes sure seem a lot like they come from the grimace of Dick Cheney and/or Bill Kristol.
Critics of the administration’s detention policies have questioned the hearings’ fairness, noting that detainees are not permitted lawyers and cannot see much of the evidence. Pentagon officials have said such criticism is not meaningful because a combatant status hearing “is not a criminal trial.” They note that 38 of the 558 cases ended in decisions favorable to the detainees.
But Colonel Abraham said that in meetings with top officials of the office, it was clear that such findings were discouraged. “Anything that resulted in a ‘not enemy combatant’ would just send ripples through the entire process,” he said. “The interpretation is, ‘You got the wrong result. Do it again.’ ”...
...One of the tribunals the lawyers have learned more about since then was the one on which Colonel Abraham sat. Documents they have gathered show that he was assigned to the panel in November 2004. The detainee was a Libyan, captured in Afghanistan, who was said to have visited terrorist training camps and belonged to a Libyan terrorist organization.
By a vote of 3 to 0, the panel found that “the detainee is not properly classified as an enemy combatant and is not associated with Al Qaeda or Taliban.”
Two months later, apparently after Pentagon officials rejected the first decision, the detainee’s case was heard by a second panel. The conclusion, again by a vote of 3 to 0, was quite different: “The detainee is properly classified as an enemy combatant and is a member of or associated with Al Qaeda.”
Colonel Abraham was never assigned to another panel.
What an amazingly even-handed process.