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Today's Must Read
Last month, TPMmuckraker reported on an Army reserve intelligence officer who filed a sworn declaration in D.C. Circuit court alleging systemic problems with the way the Pentagon certifies that detainees at Guantanamo Bay are enemy combatants. The officer, Stephen Abraham, claims that the process, known as a Combatant Status Review Tribunal, is weighted -- by design and in execution -- to declare practically everyone at Gitmo an enemy combatant, no matter how dubious the evidence is.
Today Abraham, a lawyer in civilian life, gets treated to a long New York Times profile. A life-long conservative who says he cried when President Nixon resigned, Abraham became, in the eyes of several legal observers, the whistleblower whose account to the D.C. Circuit Court of Appeals convinced the Supreme Court to take up the question of enemy combatants' habeas corpus rights.
“What disturbed me most was the willingness to use very small fragments of information,” he said, recounting how, over his six-month tour, he grew increasingly uneasy at what he saw. In the interviews, he often spoke coolly, with the detachment of a lawyer, but as time wore on grew agitated as he described his experiences.Often, he said, intelligence reports relied only on accusations that a detainee had been found in a suspect area or was associated with a suspect organization. Some, he said, described detainees as jihadist without detail.
A Navy spokesman, Lt. Commander Chito Peppler, criticizes Abraham for "apparently biased insinuations" and says that Abraham wasn't involved with the review tribunals long enough to come to informed conclusions about the process. That, however, was the direct result of what he found: according to his statement, after Abraham recommended a certain detainee was improperly classified as an enemy combatant, the head of the Pentagon office in charge of the tribunals, Rear Admiral James McGarrah, overruled him -- and Abraham "was not assigned to another [Combatant Status Review Tribunal] panel."
But what drove him to speak out was an accident. Abraham's sister works for Pillsbury Winthrop Shaw Pittman, a leading law firm representing Guantanamo detainees -- Pentagon official Cully Stimson referred to Pillsbury last year in his infamous statement urging a "boycott" of firms taking up detainees' cases -- and learned through one of her colleagues that McGarrah had submitted a statement in a Pillsbury-represented case swearing to the fairness of the process. He decided to challenge his former boss, and on the particular case that sparked their disagreement, McGarrah doesn't come out looking very well.
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.”
Abraham, who received decorations for a counterintelligence operation against the Soviets in the 1980s, tells the Times that much of the evidence used in the tribunal process doesn't pass basic scrutiny to an experienced intelligence officer. "I would have written 'junk statement' across that," he says of cases where detainees are classified as jihadists due to such generic information as their participation against the 1980s anti-Soviet jihad in Afghanistan. In the fall, when the Supreme Court hears the habeas case, we'll know if the Court will stamp the same designation on the administration's argument that constitutional protections don't apply to Guantanamo detainees. More likely than not, that's thanks in some part to Abraham's decision to come forward.
Comments (26)
TheraP wrote on July 23, 2007 10:21 AM:As an aside, this guy is only 46. That would have made him a kid when Nixon resigned. (Ok, he was conservative from the womb.)
But something distinguishes the guy. And that is his parentage. Parents who experienced Fascism. And a clear conscience. And courage to speak out.
I hope we hear more from this man. Fate and his conscience have brought him to the fore.
If anyone was away last week and missed "Bush - It's my Legal System" (above - where the Muck Header is) - it is a MUST READ OF THE MONTH. The whole thread I mean. This post fits under that one - in the sense that all of this fits under bush's belief that he is the law.
jeffgee wrote on July 23, 2007 10:28 AM:Jihadists fighting the Soviets in Afghanistan in the 80s received support from the CIA. Osama Bin Laden was one of them.
Chris C wrote on July 23, 2007 10:37 AM:Now they are held in gulags for their efforts.
It doesn't pay to be a friend of the U.S. government.
Although it makes me shudder to think that anyone would cry at Richard nixon's resignation (please tell me, again, that the rule of law trumps any party consideration?), I must applaud Stephen Abraham's decision to question, in public, the processes and techniques used against detainees at Guantanemo. On many other blog sites, a consistent theme arises, questioning whether "insiders" (read Republican elected officials, appointees, or civil servants) hold the Constitution in higher regard than their poltical affiliations--official or otherwise. When our government disregards the law on habeas corpus, due process, and privacy concerns, ALL of us are at risk. No one wants to free individuals who have violated the rights of others or who have perpetrated acts of violence against the United States, its military representatives, American citizens, or innocents of any country. But when we deny legal rights guaranteed by international law (including the Geneva Conventions), not to mention American constitutional protections, we threaten what we stand for and send others who used to look to the United States as a beacon of fairness and hope howling into the night. Mr. Abraham, my hat is off to you. May your actions eminate to others who are in a position to speak out on similar abuses.
Amos Rutledge wrote on July 23, 2007 10:39 AM:Nice to know that there are a few men of conscience and good intention working for my dime. Too bad that it's SO few...
mbbsdphil wrote on July 23, 2007 10:42 AM:If these men were designated simply "enemy combatants," they would be entitled to all the protections of the Geneva Conventions, other treaties to which we are also a party, and to domestic US laws banning torture, cruel and inhumane treatement, etc.
Mr. Cheney and whomever he throws his voice through believe such laws are quaint inapplicable. That personal obsession may have political impact on those he can reach, but it has no legal validity. Anyone violating these laws, for however long, would be guilty of crimes. A govt that sytematically violated them over a prolonged period of time would also probably be guilty of war crimes.
That this administration does so and brags about it openly is one reason "they hate us so much" - to use the president's words. That is, why even unfriendly governments consider ours inept, and friendly foreign governments consider ours in flagrant violation of the law, much of our own history, and our most cherished aspirations.
Presumably, what the administration was hoping to concoct was a system that would automatically deem the targets of its ire "illegal" enemy combatants, whose treatment is subject to fewer restrictions, but who are nevertheless entitled to the protections of Common Article 3 to the Geneva Conventions. Mr. Cheney thinks those protections even more quaint and his government has not provided those protections either.
"Actions have consequences" is a primary lesson parents teach their children. Mr. Cheney and Mr. Bush must have been so scarred by learning that that they have spent their lifetimes trying to disprove it. The next administration should conduct a thorough legal review, possibly under int'l auspieces, of Gitmo and other prisons. Let's see if we can recover our self-respect and try to comply with the law, starting with imposing consequences on those who purposely break it.
Steve5117 wrote on July 23, 2007 10:45 AM:TheraP
I have come to the conclusion that the Bush Administration has been operating under the Trickle Down Theory of Corruption.
Hopefully, there are many more like Stephen Abraham who will start blowing the whistle on the wrongdoing they see.
Does anyone have an image of a peach that can be sent via instant messenger? We need an IM PEACH!
William Ockham wrote on July 23, 2007 11:05 AM:TheraP,
I'm 47. I remember the day Nixon resigned very well. I wasn't crying though. I was thrilled. I remember watching the Watergate hearings that summer (or maybe it was the summer before). I'll never forget hearing Barbara Jordan cross-examining those folks. That's still how I imagine the voice of God. 10 years later, I took a grad school class from her. She was even more impressive in person.
Darth Gongshow wrote on July 23, 2007 11:06 AM:Thank god a few patriots are starting to step forward to expose the relentlessly unAmerican activities of this "administration".
Code: judge, as in history will judge those who step forward to spill the beans while Bush is still in office as true Americans. Those who stay silent? Not so much...
Punchy wrote on July 23, 2007 11:09 AM:If you guys think that the SC will rule against the Bush Team on this, I've got some real estate in Fallujah to sell you. All all this rests on Kennedy, here's guessing his love for all things Scalia this term blinds his moral and legal compass.
Where can I lay my mortgage, my car, and my mutual fund on odds that this ruling will be 5-4?
Jeff S. wrote on July 23, 2007 11:10 AM:FWIW, I'm 46 and remember the day that Nixon resigned very clearly and it was a very big day for me as well. I didn't cry, though; I was happy to see the SOB go. I watched all the Senate Watergate hearings and the House Judiciary Committee hearings that I possibly could. I'm sure that experience informs who I am today politically. Just because Abraham and I were 13 at the time doesn't mean we weren't heavily invested in what was going on at the time.
Ric G wrote on July 23, 2007 11:14 AM:He and Lt. Col. Stuart Couch - along with James Comey (all attorneys) - represent true patriots that will do as much to shine the light on these vampires as John Dean (among others) did to Nixon. True heroes like these will certainly be the Bushies' undoing. Couch - like Abraham, a lifelong conservative and also an evangelical Christian - was a marine prosecutor who refused to prosecute a Guantanamo detainee after discovering that the evidence against the detainee was coerced through torture. See Couch's story here:
http://pierretristam.com/Bobst/07/wf040107.htm
Each of these men demonstrated how important one's moral compass is when challenged with dreadful acts of cowardice by their superiors. Each have bravely shown how personal integrity above all trumps groupthink and lawlessness wrongly exercised in the name of patriotism. We should embrace these people and others for their courage and do as much as we can to get their stories out so others will come forward.
Ric G. (attorney)
oldtree wrote on July 23, 2007 11:17 AM:perhaps TheraP is correct. When you don't have anyone in your life history that has told you what fascism is about, or how it affected them, they don't know what goes with it.
sakitoi wrote on July 23, 2007 11:30 AM:this is two countries. law is the only thing that holds us together, and there is no more law to bind us.
please don't try to tell "we the People"" don't have our own tyrant Geo. napoleon hitler Bush trying to be one. i remember bataan and see little difference in the actions at gitmo. what is our country coming to. You are not guility until proven. what ever happen to shooting someome guilty of treason against our goverment. not long detainment just because and torture. isn't that something that other coutries do that we decry. sakitoi
TheraP wrote on July 23, 2007 11:54 AM:I have personal experience of Franco Spain. I have relatives (by marriage) who risked life and limb, prison and torture, in opposition to Franco.
It is no wonder that present day Spain has one of the lowest approval ratings of bush and our current policies. (They remember.)
Franco was still in power when Nixon resigned. I too well remember that day. This time is worse, way worse.
May we all have the courage to stand up and be counted and do whatever it takes to resume a place of honor among nations.
Steve5117 wrote on July 23, 2007 12:04 PM:Follow China's example when a high ranking official disgraces his position. One shot, guick and simple and that official was no longer capable of further criminal activity.
Mirror wrote on July 23, 2007 12:29 PM:Did you mean to write "such generic information as their participation against the 1980s anti-Soviet jihad in Afghanistan"?
I thought it was their participation IN the 1980s anti-Soviet jihad that is being held against them.
Mirror wrote on July 23, 2007 12:35 PM:I just read the NYT article. Indeed, the problem was participation in the fight AGAINST the Soviets:
In a third hearing, an Afghan detainee said he had indeed been a jihadist — during the 1980s war against the Soviet Union, when a lot of Afghans were jihadists. Was that what the accusation against him meant, he asked, or was it referring to later, during the American war?
“We don’t know what that time frame was, either,” the tribunal’s lead officer replied.
Schnormal wrote on July 23, 2007 12:35 PM:I'm 38, and Nixon resigning was my first television memory. I also remember my mom telling my dad to get me out of the room, presumably so I wouldn't be exposed to an authority figure in such a moment of weakness. They were both ardent right-wingers (she worked for Goldwater), and I believe they felt Nixon's shame personally. Perhaps they also felt that my watching the resignation speech would somehow undermine their own parental authority, i don't know.
All I have to say is ITMFA.
Anonymous wrote on July 23, 2007 3:53 PM:"I'll never forget hearing Barbara Jordan cross-examining those folks. That's still how I imagine the voice of God. 10 years later, I took a grad school class from her. She was even more impressive in person.
Posted by: William Ockham
Date: July 23, 2007 11:05 AM"
Here's Barbara, in THAT VOICE, with the words that must have made the Founders sit up straight in their graves, words that brought down the last president who tried to undermine the Constitution:
"My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution."
judyinnm wrote on July 23, 2007 5:16 PM:Just remembering a time when both Republican and Democratic officeholders valued the constitution over all else makes me cry for what we've lost.
Anna S. wrote on July 23, 2007 8:13 PM:In those days congress didn't pass legislation to make the president's crimes legal, like they did in the last Congress....
Col. Abraham's testimony is valuable, but I can't help but wonder who the other two members of his panel (the decision was 3-0 against classifying the man as a combatant) still are. If they too could be convinced to talk, perhaps the outlook on the Supreme Court case might not look so grim. I sincerely hope that the SC finds in favor of habeas corpus rights, but without overwhelming and undeniable evidence of a gross miscarriage of justice, I am not optimistic. Despite what I would have called overwhelming evidence in other cases, they've allowed the Gitmo program to continue, and to change that ruling this time around will require the bravery of more whistleblowers to speak on just how corrupt the military courts have been.
Roberta wrote on July 23, 2007 9:07 PM:One by one, Conservatives who respect the Constitution but interpret it, well, more conservatively than Liberals, are finding the courage to acknowledge the abuses under this Administration and are speaking out about it.
For some, like Comey, it requires asking the right questions. For others, like Dana Jill Simpson, it takes years of what might be an internal struggle or watching what she believes in be perverted before she speaks out unaided.
As more of these people, who likely are idealistic in their own way and simply couldn't wrap their heads around the realities of Bush/Cheney, speak out, others will identify with them, feel strengthened, and tell what they know.
If Col. Abraham asks the other two judges he served with to tell their stories, they might and they might not. But if they are in the group that needs prodding, then asking them costs nothing and could reap bounties.
It's far easier to disagree with someone on the other end of your political spectrum than it is with someone who shares your beliefs and has acted on them publicly. For every Conservative who acknowledges the emperor is naked, there are 10 on the fence who will come down on the side of the Constitution because of them.
JNagarya wrote on July 24, 2007 12:42 AM:TheraP,
I'm 47. I remember the day Nixon resigned very well. I wasn't crying though. I was thrilled. I remember watching the Watergate hearings that summer (or maybe it was the summer before). I'll never forget hearing Barbara Jordan cross-examining those folks. That's still how I imagine the voice of God. 10 years later, I took a grad school class from her. She was even more impressive in person.
Posted by: William Ockham
Date: July 23, 2007 11:05 AM
I was a twenty-somthing at the time -- had been "out to get" Nixon from the moment he announced his candidacy for the presidnet: I saw him, clearly, as the gangster he was.
I can still hear Barbara Jordan's voice ringing in the chamber. Powerful speaker, powerful voice, powerful statment of the history -- from slavery, to the right to vote, to the right of women to vote, to -- "I use my vote to vote _AYE_!" for impeachment.
And after several terms in the House, she returned home to teach at university, of the view she could have greater influence by teaching the young than by serving in Washington.
Rest in peace, dear Barbara Jordan.
SC = woman. As in: interesting coincidence.
eddie-george wrote on July 24, 2007 6:50 AM:I'd be interested to see what tactics the government adopts when this has to be argued before the SCOTUS. Presumably they will have to argue that Tribunal is competent to make the enemy combatant determination. This could amount to a full-bore defense of the appropriateness of the tribunal as per what is stipulated in the, perhaps-no-longer-quaint Geneva Conventions.
However, I share's Punchy's feelings that the SCOTUS will rule for the Bushies, by deciding that federal courts have no jurisdiction to test the competence of - or evidence placed before - the military commissions. After all, we're dealing with a SCOTUS stacked with Unitary Executive junkies... though Kennedy might break the tie in against Roberts and co, as although he adheres to a lot of the current Conservative jurisprudence, he's not as far as I can tell so much of a unitary executive true-believer.
Hell's Kitchen wrote on October 11, 2007 7:17 PM:TheraP,
When I was in the 8th grade, I used to come home from school and watch the Army/McCarthy hearings. I heard Joseph N. Welch make his "have you no decency" speech live.
Kids who grow up in families that care about government, economics, the constitution, etc. are fascinated by them at an early age.
I'm not surprised at Abraham's awareness of Nixon. I'm just sorry he bought into Nixon's "greatness."
Stephen Abraham wrote on October 12, 2007 1:02 AM:I guess it is time to explain what happened that fateful day when the President resigned as it seems so popular a subject for comment. My belief (I was then 13) in our government was that of Jefferson Smith (Mr. Smith Goes to Washington), my belief in justice as unswerving as that of Spencer Tracy in Judgment at Nuremburg and Inherit the Wind and Gregory Peck in To Kill a Mockingbird. I could not believe that a President would ever resign or even have a reason to resign. The day he resigned was the last day I would ever believe in the infallability of leadership or wisdom of the electorate. By the way, to this day, I am a great admirer of Barbara Jordan, a woman of infinite courage.