As we steadily approach January, by which time President Obama has promised to close the Guantanamo Bay detention facility, and as the Supreme Court, Congress and the nation continue to ponder appropriate outcomes, my latest interview in my series of interviews relevant to “the war on terror” (by my count, the 50th such interview) is with retired Army Reserve Lt. Col. Stephen Abraham, who has perhaps more familiarity than anyone regarding the unreliable process by which the United States has decided to justify continue to holding men at Guantanamo Bay, a process about which he “blew the whistle” to the United States Supreme Court, which not only took notice, but took the case. This interview is cross-posted on the talking dog blog. As always, thanks to Team TMV for permitting me to bring you these interviews here.

Stephen Abraham is an attorney in Newport Beach, California. A graduate of the University of California at Davis, he was commissioned in 1981 as an intelligence officer in the United States Army Reserves in 1981. Between 1981 and 2008 when he retired with the rank of Lieutenant Colonel, he served during periods of active and reserve duty, including tours in 1991 and following 9/11.

In 2007, Lt. Col. Abraham gave an Affidavit to the legal team representing the petitioners in the Al-Odah and Boumediene cases, which many believe was key to the United States Supreme Court decision to hear petitions from Guantanamo detainees regarding their detention, and the subsequent decision (Boumediene v. Bush, 2008) that Guantanamo detainees have habeas rights pursuant to the United States Constitution. On July 25, 2009, I had the privilege of interviewing Stephen Abraham by telephone; what follow are my interview notes corrected as appropriate by Mr. Abraham.

The Talking Dog: Where were you on September 11th?

Stephen Abraham: I was at the Bachelors Officers Quarters, Makalapa, Pearl Harbor, Hawaii. It was very early and I was getting ready for a reserve planning conference when I learned the news.

The Talking Dog: Can you explain what OARDEC is, and how you came to be there?

Stephen Abraham: OARDEC stands for the Office for Administrative Review of the Detention of Enemy Combatants, a military entity that fell under the control of the Secretary of the Navy. Though it was created at an earlier time, it evolved in the aftermath of two Supreme Court decisions in the Summer of 2004. In 2001, following 9/11, I was recalled to active duty and served for a year at Pearl Harbor. About a year and a half later, I was asked if I would be interested in serving with this organization dealing with the detainees at Guantanamo. Though initially considered for a position as a member of the Administrative Review Boards (“ARB”), by the time I got to OARDEC, in response to the Rasul decision, the executive learned that the continued detaining of enemy combatants could not rest solely on prior determinations of who was an “enemy combatant” but, instead, that a new process had to be established, one that satisfied the Supreme Court’s mandate for a meaningful process that comported with due process. So was OARDEC’s mission expanded. That process became known as the Combatant Status Review Tribunals or CSRT’s.

Upon my arrival, as a lieutenant colonel, I was assigned a number of tasks. I served as liaison officer, my duties being to work with other agencies that were tasked to search their records for exculpatory evidence, that is, evidence tending to demonstrate that a particular detainee was not properly classified as an enemy combatant. As an experienced intelligence officer, I also provided assistance to various members of OARDEC with respect to their collection and processing of information used by those preparing the files of information to be used by the Tribunal members. I also created a system for collating and assembling the information and performing certain reporting functions required by the OARDEC chain of command. I also was tasked to serve as a member of the Tribunals.

The Talking Dog: What did you expect your assignment to be, and what did you expect to find at OARDEC, and how did this contrast with what you encountered there?

Stephen Abraham: I expected to see an organization staffed largely by JAG (Judge Advocate General) and intelligence officers. I expected to see analytically trained and experienced officers. I expected to see an organization specifically created to deal with a complicated issue having profound legal and political consequences. Instead, I found an organization created out of whole cloth, an organization that had considerable logistical requirements but no assets, an organization that had extraordinary intelligence requirements but no true ability to task intelligence assets, an organization that required a considerable understanding of intelligence programs but that was led by individuals with diverse but little intelligence experience.

This struck me as peculiar, given that the imagery presented by those who were involved in OARDEC’s creation and evolution clung so tightly were of the trials conducted following the end of World War II. What I expected was a well though out and implemented operation. What I perceived was quite different.

To be very clear, it would be difficult to imagine an organization more enthusiastic about its mission or individuals more dedicated to the achieving of the highest levels of service. That said, what I found was an organization that had no ability to task intelligence organizations from which it required information to function, no ability to collect information from sources essential to the conduct of the Tribunals, no budget for witnesses, no particular expertise with respect to the information collected, and an impossible time frame for the conducting of hundreds of Tribunals, not driven by the time required to engage in a thorough process but, instead, driven by political motives. Perhaps the best indicator that something was wrong was the fact that the organization was not led by either intelligence or legal professionals but, instead by an engineer and two aviators.

The creators of OARDEC provided no one in that organization with the ability to task any agency with responding to its inquiries or to compel any agency to provide such a response. OARDEC was a function with no power and no real budget to perform all necessary tasks, as former Secretary of the Navy Secretary Gordon England himself even acknowledged. Nonetheless, this was the organization tasked with the collection of information and conduct of tribunals used to justify holding these men.

The Talking Dog: Am I correct that you ran across details associated with what the government asserted were its reasons for detaining virtually all of the detainees that had CSRTs while you were at OARDEC? Also, if you could, please tell us what you did at OARDEC– and where?

Stephen Abraham: My various functions brought me into contact with some aspect of almost all CSRTs between September 2004 and June 2005. I was familiar with most of the materials used in the CSRTs, and was involved as a panel member in one tribunal. I also participated on planning meetings associated with the CSRT process.

Most of the OARDEC work of which I am aware took place in Washington, DC (as did my own). I would estimate 99% of my own tasks associated with OARDEC took place in Washington, D.C. I went to Guantanamo itself no more than three times.

As to the tribunal on which I sat, we met for perhaps an hour or two. The presentation of material to us was short, and it took place entirely in Washington D.C. and not at Guantamo. Needless to say, any CSRT in Washington was without the personal participation of the detainee, a situation that occurred in a large number of cases.

The Talking Dog: What did your own panel (panel 23, associated with detainee 654, Ahmed al-Ghizzawi, now represented by Candace Gorman) conclude?

Stephen Abraham: We concluded that there was no credible evidence to support the asertion that al-Ghizzawi was an unlawful enemy combatant. We had a number of questions about the information presented to us and took much of it as simply not making out a serious case against the detainee. We were then directed to “leave the tribunal open for additional evidence.” While additional material was taken, little of it satisfied our concerns and certainly did nothing to move us from our prior conclusions. We stood on our prior decision that detainee 654 had not properly been classified as an unlawful enemy combatant.

The Talking Dog: I understand (from your interview with Andy Worthington, among other places) that you don’t like the use of the term “evidence” in this context; can you explain why?

Stephen Abraham: “Evidence” gives an impression of substance, of information that has reached a level of quality and trustworthiness such that it is given due regard by the very use of the word. That term was not justified in this case, nor in many others. Let me give you an example. I’m getting ready for a trial. A party has testified. He has made previous statements, and given a deposition. Through those proceedings, the testimony takes shape. Where the testimony can be corroborated by other evidence, we can form opinions about its trustworthiness. The ability of that evidence to prove a particular fact – its probative value – can be better understood through the process of trial. But if the testimony is not amenable to being verified, we cannot really make any assessment of its truth but by relying on our own conclusions about the source. We decide that we must trust or not trust the source but, ultimately, have no basis for our decision other than our own particular biases.

Even if you get past the use of the word, the quality of the “evidence” did not appear to be consistent with the lofty purposes of the CSRTs, to determine in the first instance if the initial characterization of these individuals as enemy combatants was correct. What information we received had no indicia of reliability. Instead, we were told that we had to accept it, that we could not question it, and that we, in essence, were to presume the validity not only of the information but of the conclusions drawn from it. Years later, nothing has changed.

In many cases, there was little information about the detainee prior to his capture, a rather curious state of the record, seeing as how the task of the CSRT’s was to determine whether the individuals had been (unlawful) enemy combatants prior to their detention. Instead, the files would be weighted down by reports of a detainee’s post-detention conduct, interesting but completely irrelevant. Such information would reveal little of why they were detained in the first place, or whether that reason constituted a basis for a finding that the detainee was an unlawful enemy combatant.

The Talking Dog: All that said, I still want to come back to the question of whether the government continues– to this day, in defending habeas petitions by detainees, for example– to rely on this same… flawed… OARDEC-generated (I won’t use “evidence”) material?

Stephen Abraham: Let’s talk about overlapping time-lines. Since people have been detained at Guantanamo, information obtained from interrogations there has been used to justify further, ongoing detention of people there. Of course, even in the face of court orders against it, the government has still never come to acknowledge the reality – that OARDEC was incapable of performing its duties in the manner contemplated by the Supreme Court in 2004. Simply put, what OARDEC did, no matter how noble the effort, did not come close to meeting the requirements of Due Process.

For a few detainees, “new records” were created. But enough lawyers involved can tell you that the quality of “evidence” has not markedy improved to this day.

Over the past number of years, the Government has spent considerable effort “re-doing” CSRTs in an effort to correct flaws in the intial proceedings, all the while contending that that the old ones were good enough. While that is going on, what is conveniently overlooked is the fact that those original CSRT’s were claimed to be a proper basis for holding men for six or more years. The analogy is that the prosecution loses its case, but asks for a new proceeding, and simultaneously asks that we completely forget that the first one happened… but nonetheless, still insists it was good enough all along!

The Talking Dog: Let me ask another “quality” kind of question… in my interview with Lt. Col. Darrel Vandeveld, he noted of the military commissions process that it was marked by the prosecution files, which should have been in apple pie order after supposedly years of building cases, were instead in total disarray. Can you comment on the state– the physical state– of the documents and materials that OARDEC was working with as far as the CSRTs?

Stephen Abraham: From an aesthetic point of view, the files looked nice enough. But I am sure that is not what you meant. Substantively, the files appeared as a collection of documents, often times having very little to do with the individual detainee. You have to understand that many of the individuals – not all of course – were simply unknown prior to their detention. As a result, there was no pre-existing information about them and no real ability to gather information relating to them in all too short a period of time allowed for the tribunal process. As a result, efforts were taken to put anything in the file, anything that might even remotely relate to the individual, his alleged organizational links, his region, or even his country. Of course, there were no real standards for the quality of information in the files, only that they have “something,” enough to get past the Tribunal.

The Talking Dog: Given that thus far, it seems that the new Administration is, in many ways, indistinguishable from the old administration, is there any advice you’d like to give (my college classmate) President Obama on how to deal with these matters?

Stephen Abraham: Assuming that the Administration cared about my opinion, I would call for an hour or so of genuine introspection. It was suggested in an early BBC commentary shortly after the election that we have heard from the politician Obama, and now we have to wait for the President Obama. Candidate Obama said that Guantanamo would be closed, and detainees treated fairly and in accord with due process. President Obama has now responded that the task is harder than was first understood.

The Administration’s willingness to believe itself capable of “solving the Guantanamo mess” becomes utterly irrelevant if the Administration is unwilling to change the line up. Does it matter what the President says he intends to do if the United States Attorney standing up in court has not changed his legal position one bit from that taken in the Bush Administration?

What I have seen so far reflects little change of direction and certainly no change in the attitudes of those leading the charge to continue indefinitely the detention of individuals as to who there has been and continues to be a persistent reliance on a fundamentally flawed Tribunal process. For all of the talk of justice, many, but not all, of those who act on behalf of our Government – as opposed to those who speak – continue to make the same arguments in favor of indefinite – permanent – detention and against meaningful judicial review, undeterred by the fact that, at its core, the case they prosecute is based on slender reeds.

The President can say “I’ll close Guantanamo within a year” all he likes. General Colin Powell has said that Guantanamo can be closed very, very quickly– literally with a pen stroke, or perhaps as a matter of excising a budgetary column. But “closing Guantanamo” or not closing Guantanamo is not the basic question. In fact, it is now, years later, an irrelevant question. The basic question is whether this Administration has the will to have decided the fates of the men it is holding in Constitutional [Article III] courts… and it has shown no will to do so thusly so far. The fate of detainees are largely being decided by the executive branch, by use of commissions or tribunals that are creations of the executive, and not Constitutionally valid fora.

In similar fashion, there appears to have been no change in how this new Administration answers the core question, “what is the source of human rights?” This Administration has taken its cue from the prior Administration, and has determined that fundamental human rights are creations of the government, and as such, they can be taken away by the government.

The Talking Dog: Can you tell us briefly (my understanding is that your sister happened to work for a law firm that was representing some Guantanamo detainees) how you came to give the now famous Declaration attached to the motion to reconsider the Supreme Court’s denial of certiorari review in the Al-Odah and Boumediene case that many credit for convincing the Court to grant the extremely rare reargument (and later, the Boumediene decision)?

Stephen Abraham:My sister did indeed work for a law firm that represented detainees. I was asked to listen to a presentation at the Pillsbury law firm regarding the individuals who were subjected to CSRTs. It became clear from their presentation that they had never actually spoken to anyone who was actually familiar with the process itself, or who was involved in the process… they had made that fundamental lawyer’s mistake of taking the other side at its own word! To win in litigation, I often find that the evidence, and even the law, are irrelevant. The legal terrain will be sloped in one’s favor if one can capture the definitions and vocabulary. Under such circumstances, you can control the discussion of what the relevant standard “ought to be”.

And so, in this context, it was clear that no one had previously addressed the rather basic question of whether the material presented in the CSRT process passed any threshold of validity or reliability at all. Certainly, no one ever questioned if it met any standard that would survive appellate review.

So, when Admiral McGarrah’s declaration said, rather artfully and in vague language, that all formalities associated with due process were respected, I responded “NO IT WAS NOT.” No witnesses were called no opportunity to appear was provided to the detainees, despite requests to have such an opportunity. And so, when Admiral McGarrah concluded that the process given to detainees conformed to the applicable Supreme Court decisions, I responded “NO THEY DIDN’T”.

The implication was that a process of determining whether or not the men the military was holding were being lawfully held by the military was created, and it was a meaningful process. Well, if there is such a process, there are aspects that we would expect to see associated with such a process weren’t there; Justice O’Connor said to do this a certain way. Words were recited that such a process existed, and that it conformed to the law and the Constitution, and Admiral McGarrah said it, albeit vaguely without specific details. Except, of course, that they didn’t do that; the process conformed to no standard of fairness or reliability at all.

The Talking Dog: I join all my readers in thanking Stephen Abraham for that enlightening and fascinating interview.

Readers interested in legal issues and related matters associated with the “war on terror” may also find talking dog blog interviews with former Guantanamo military commissions prosecutor Darrel Vandeveld, with attorneys Ramzi Kassem, George Clarke, Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in “the war on terror”), with attorneys Donna Newman and Andrew Patel (representing “unlawful combatant” Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with former Guantanamo military guard Terry Holdbrooks, Jr., with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA’s extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with law professor Peter Honigsberg on various aspects of detention policy in the war on terror, with Joanne Mariner of Human Rights Watch, with Almerindo Ojeda of the Guantanamo Testimonials Project, with Karen Greenberg, author of The LeastWorst Place: Guantanamo’s First 100 Days, and with Charles Gittings of the Project to Enforce the Geneva Conventions to be of interest.