How a Military Officer's Sworn Declaration Sheds New Light on Guantanamo's Flawed Detention System

By JONATHAN HAFETZ

Friday, Jun. 29, 2007

Last week, a U.S. Army Reserve officer provided the first glimpse into the inner-workings of the Bush Administration's system for classifying hundreds of Guantanamo detainees as "enemy combatants." In a sworn declaration filed in several current detainee appeals, Lt. Col. Stephen Abraham details how the Administration's Combatant Status Review Tribunal (CSRT) routinely relied on generic and outdated information, while suppressing evidence helpful to detainees.

Abraham's declaration raises renewed concerns about the validity of Guantanamo's detention system and underscores the need for Supreme Court review.

The Creation of the CSRT, and Its Failure to Accord Due Process to Detainees

In 2004, the Supreme Court ruled in Rasul v. Bush that Guantanamo detainees had the right to review of their detention by habeas corpus. Nine days later, the Administration created the CSRT to block this review and rubber-stamp the prisoners' detention as "enemy combatants" in its "Global War on Terror."

Since then, Congress has twice passed statutes eliminating Guantanamo detainees' habeas rights (once to overturn the Supreme Court's decision in Hamdan v. Rumsfeld). As a result, prisoners have been held at Guantanamo for more than five years without a meaningful hearing.

The CSRT is a perfect storm of substantive overbreadth and procedural inadequacy. It defines "enemy combatant" in sweeping terms, sanctioning detention based upon rumor, innuendo, and association. Under this scheme, even a person who donates money to a charity that, unbeknownst to him, is engaged in terrorist activity can be held as an "enemy combatant."

The CSRT also lacks crucial protections against erroneous factual determinations. For example, it denies detainees lawyers, prohibits them from seeing the evidence against them, and relies on evidence gained by torture and other coercion.

Not surprisingly, more than 90% of detainees put before the CSRT were found to be "enemy combatants."

Also not surprisingly, the only two judges who have analyzed the CSRT found it violates due process. (Judge Rogers so found in her dissent in Boumediene v. Bush, and this was also the conclusion in In re Guantanamo Detainee Cases.)

Yet, the CSRT remains in place. In February 2007, the U.S. Court of Appeals for D.C. Circuit ruled in Boumediene v. Bush that Guantanamo detainees have no constitutional rights because they are foreign nationals captured and detained outside the United States. As a result, the court in Boumediene did not need to examine whether the CSRT violated due process -- for, in its view, the detainees had no right to due process in the first place.

The Supreme Court denied review. It indicated that detainees should first exhaust available remedies under the Detainee Treatment Act of 2005 (DTA) before presenting their constitutional challenges to the Court.

Under the DTA, Guantanamo detainees may seek review of final CSRT decisions in the D.C. Circuit. But this review is fundamentally limited, and can never address the pervasive flaws of the CSRT highlighted by the Abraham Declaration.

The Abraham Declaration: Fundamental Flaws in the CSRT Process

Stephen Abraham, a 26-year-veteran of military intelligence, served mainly as a liaison between the CSRT and intelligence agencies. In his declaration, Abraham deconstructs the flaws in the CSRT's data-gathering methods, describing how the CSRT made decisions based on a haphazard collection of generic information that rarely related to the detainee in question and that "lacked even the most fundamental earmarks of objectively credible evidence." He also explains how various agencies withheld exculpatory evidence from the CSRT, and how the CSRT's three-member panels were pressured from above to find that detainees were, indeed, "enemy combatants."

Abraham's declaration puts the CSRT's failings into sharper focus. By demonstrating how unreliable and error-prone CSRT decisions actually are, it underscores the importance of safeguards such as access to counsel and a fair hearing in obtaining accurate detention decisions.

Lawyers for Guantanamo detainees maintain that even if their clients have no constitutional rights under Boumediene, the DTA still requires the government to follow the statute's rules. The Abraham declaration, they correctly argue, supports their demand for discovery to determine whether the government complied with the DTA by presenting all relevant evidence to the CSRT, including evidence suggesting that a detainee was not an "enemy combatant."

The Need for Supreme Court Review

Yet, the DTA's minimal requirements can only scratch the surface of the CSRT's deep flaws. Making the government produce additional information will not ensure that the CSRT's detention decisions are correct. Detainees must also be given the opportunity to rebut the government's evidence and to present evidence in their defense in a judicial hearing - an opportunity habeas corpus affords, but the DTA does not.

The Abraham declaration offers a cautionary tale about the dangers of creating an indefinite detention system untethered to the Constitution's requirements of due process. It shows how denying core safeguards of due process, such as meaningful notice of the government's allegations and an opportunity to be heard, inevitably lead to distorted and inaccurate results.

At the same time, the Abraham declaration illustrates why the Supreme Court should revisit its decision to deny review in Boumediene. It makes no sense to require detainees to exhaust the DTA's limited review process, without first determining whether they have constitutional rights. For, if the Court decides that they do, the CSRT will never pass muster.


Jonathan Hafetz is Litigation Director for the Liberty and National Security Project of the Brennan Center for Justice at NYU School of Law. He has litigated numerous national security cases and is the author of a forthcoming book on post-9/11 detentions to be published by NYU Press.

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