United States: Guilty Until Proven Innocent

Taken from the Jerusalem Post, Jul. 26, 2007
By HILARY LEILA KRIEGER

Lt-Col. Stephen Abraham walked into the middle of a brewing storm when he took his place among a three-person panel of military officers in November 2004 to review whether the US had sufficient evidence to hold a foreign national as an unlawful enemy combatant at the notorious Guantanamo Bay, Cuba, detention facility.

The key factor which accounted for the prisoner's incarceration was a specific piece of information allegedly found in his pocket, Abraham recounts, not willing to give more details because of the confidential nature of the proceedings.

That information was incriminating, but also could have had an innocent origin entirely unrelated to terrorist intentions. So Abraham and the rest of the Combatant Status Review Tribunal asked the "recorder" - the officer who presents the government's case to the board - some questions about how the material got there. Finally, getting no satisfactory answers, they asked if the American investigators had asked the detainee where the information came from and why he had it.

"They hadn't even asked any of those questions - fundamental questions," he recalls. "It makes it preposterous that you would draw any conclusions."

With such little information to go on, Abraham and the rest of the panel recommended the detainee be let go. But their superiors pressured them to keep the case open, during which time the captive would continue to be held, according to Abraham. "We said [he was] not an enemy combatant. We were told to leave it open."

All of which led Abraham, an Intelligence Corps reservist, to conclude that the process was "fundamentally flawed" and "created in a way that could only lead to an incomplete picture."

He said as much in an affidavit submitted last month to the US Supreme Court, which is considering the case of detainees who maintain that they're entitled to a trial. An earlier court decision compelled the Pentagon to set up the CSRTs to review the grounds on which more than 500 individuals were being held (now that number hovers around 350).

Abraham took the extraordinary step - becoming the first member of a CSRT to speak out against the tribunal procedures - after his commander endorsed the process in a statement to a lower court.

"It was a very incomplete picture and one that could tend to lead a court to believe that the actual fulfilling of those functions was done adequately," charges Abraham, who found himself at the center of the international controversy over the operations at Guantanamo, which have seen the US deluged with criticism.

Abraham's actions have since been backed up by a federal court, which ruled last week that the government must turn over all of the evidence collected against the detainees who are suing, not just that information the recorder has presented. And on July 26, he further testified before a House committee.

When Abraham decided to speak up, breaking a code of silence that has surrounded these deliberations, it was a dangerous move, according to many observers. The 46-year-old attorney dismisses such talk. While the military has kept the names of those who serve on the CSRT secret, Abraham says he was never told not to talk about his experiences. And, he notes, "I still remain a member of the reserves… nothing has changed in my status."

But there is undeniably a certain amount of risk in saying what others aren't on a highly contentious and politically divisive issue. Abraham credits his Jewish heritage in large part for compelling him to take such as step.

"My nice Jewish mom, she's torn between being proud and already tearing the cloth," he quips.

While his mother might be the one with Jewish angst about the course Abraham has chosen, it's his father who inspired him to join the military in the first place. Unlike most of his family, Claude Kurt Abraham survived the Holocaust and made his way from Germany to America - "He came to the United States just in time to graduate high school and get drafted for Korea," as Abraham puts it.

The experience of America affected both elder and younger Abrahams. "My roots led me to join the military, they led me to reaffirm my love of this country and love of its ideals," Abraham explains. "I joined the military as a way of thanking the country for what we have and mindful of the fact that free is not a part of freedoms - there's a cost for it."

In his case, he paid with five years of active duty as an intelligence officer and 21 years - and counting - as a reservist. When September 11 hit, he found himself called up for a year of active duty as the senior terrorism analyst for the Pacific theater. He had only returned to his California law firm, where he practices small business and real-estate law, for some six months when he was informed that the army wanted him for another tour, a half-year stint connected to the boards reviewing detainees at Guantanamo.

During the time between Abraham's first and second post-9/11 tours, the story of America's War on Terror had become as much about US actions as those of its enemies. Particular scrutiny had been and continues to be paid to the military prison at Guantanamo Bay in Cuba, which is being used to hold men accused of belonging to al-Qaida and the Taliban.

Though Abraham spent most of his second tour in Washington, he visited Guantanamo on one occasion and found it "spartan" and "isolated." "I would not like to spend a year or two in Guantanamo," he says. "It's not a fun place."

At the same time, he notes that even within the continental United States worse holding facilities exist, and "you have the worst of the worst. How do you hold these people?"

The unique difficulties in housing an enemy that represents no country and ferreting out information that could be crucial to preventing mass casualties at the press of a button were among the reasons the US government cited for creating the facility after the hostilities in Afghanistan began. This holding ground for alleged terrorists quickly drew fire for failing to grant the detainees prisoner-of-war status, which carries certain protections under the Geneva Conventions. At the same time, indefinitely held detainees haven't been granted trials or systematic access to lawyers able to review the evidence being used to hold them. In a growing number of cases, the US has had to release prisoners held for years after it became apparent they were being detained mistakenly.

Detractors, many of them in the Middle East, have accused America of hypocrisy by such practices, as well as interrogation techniques they term torture. Abraham says that the US was too quick to suspend "fundamental" constitutional rights, such as the habeas corpus right to know why you are being held.

"I as much as anyone appreciate the consequences of acts of terror," he says. "It's a very serious issue. But also a serious issue is how we and other democracies respond to it. Because there are people who are looking at terrorist acts and there are people that are looking at us as we respond to it. And so many people are looking for the opportunities for us to descend or separate ourselves from the principles of democracy, from our constitutional principles. And I think the moment that we do that, they perceive us as having inflicted a greater harm upon ourselves than could any terrorist."

Recently, the administration - nudged by a series of court verdicts questioning aspects of its Guantanamo policy - has acknowledged problems in running the detention camp, including public relations ones, and has begun to look at ways to close it down while still holding many of the prisoners somewhere else.

At a recent press briefing in Washington, Undersecretary of State for Public Diplomacy and Public Affairs Karen Hughes was questioned about Guantanamo, which was described by an Arab journalist as "destroying all these efforts" by America at winning over Muslim countries. She responded that "we are working to close Guantanamo... It's something that I would very much like and President [George W.] Bush would very much like to see - Guantanamo be able to be closed - because we recognize that it has become a negative symbol."

Abraham know that he was walking into a potential minefield when he was asked to help pass judgment on cases so scrutinized by the three branches of government. But he didn't know he would be pressured by superiors to find that those being held should be kept in custody, that lack of evidence meant the record should be culled once again for scraps of illegal activity. The mind-set, according to the lawyer, was one of guilty until proven innocent.

Once Abraham's affidavit entered the public sphere, the military initially argued that he hadn't seen enough of the proceedings to be able to speak authoritatively on what was going on, according to The Washington Post. In comments to the Associated Press, Pentagon spokesman, navy Lt.-Cmdr. Chito Peppler, said that "Lt.-Col. Abraham was not in a position to have a complete view of the CSRT."

Abraham acknowledges that he only sat on one CSRT, but suspects that's because his commanding officer didn't like his finding that the detainee should be let go. But he says another function was putting in order the records of all the detainees, so he was able to see all of the cases - and virtually every one suffered from the same flawed standards.

When The Jerusalem Post called Peppler and asked whether he could comment on issues connected to Abraham's statements, he said, "Not at this time" and hung up. He told other media, however, that military officials "disagree with [Abraham's] characterizations" and called the review process "fair, rigorous and robust." Pentagon officials have also been widely quoted as saying that the CSRTS "afford greater protections for wartime detainees than any nation has ever provided."

Defense sources also told The Washington Post that Abraham never reported his concerns to his superior, Rear-Adm. James McGarrah.

But Abraham says he repeatedly brought up his concerns - and that it was McGarrah who prompted him to speak out by offering his own affidavit that the procedures were carefully conceived.

Despite that impetus, Abraham got involved in the first place because his sister, also an attorney and an army reservist, happened to mention that her brother had served on a CSRT after the counsel for detainee Khaled al-Odah made a presentation at her law firm. They asked if he would submit an affidavit on their behalf, which he agreed to do.

He said that the principles he was raised with - both Jewish and American - convinced him it was the right thing to do. "I was raised with a fundamental appreciation of our rights and our liberties and the fact... you know, the Pledge of Allegiance, 'with liberty and justice for all,' no limitations there - it didn't say all citizens, or all men and women, or all people over a certain age."

He also reflects on the Constitution - its words and its connection to a heritage in line with Jewish values. "You think back to the Constitution and they're talking about 'secure the blessings of liberty to ourselves and our posterity.' I mean, it really is a heritage that we pass on and, as a Jew, I feel that so strongly because World War II deprived me of the opportunity to know half of my grandparents, to know so many members of my family. [It was] such an effort to extinguish that heritage." Fighting against that, he says, motivates much of what he does.

"The Constitution was written more than 200 years ago. They didn't write it for a generation. They didn't write it for a time. They assumed that in each generation there would be so much of merit in it, that each person would not only embrace it for themselves but for their posterity," he notes. "These are very Jewish ideals in the Constitution. I don't know how well that plays, but it is - it is the way that we are, it is the way that we treat others even if we are not treated that way."

Jews, he says, need to "appreciate these things in the context of very specific points in history when we were deprived of those rights and other rights, as in the expulsion of the Jews 400 years ago, our expulsion from Spain, our expulsion from England, our expulsion from every country.

"We cannot separate ourselves from this history. We shouldn't want to separate it ourselves from this history. I think it makes us appreciate it. I think it makes 'in our posterity,' that part of the preamble, really some of the most important words in the Constitution. That is what my parents instilled in me. I hope I have done and continue to do them credit by those lessons."