US Supreme Court To Review Guantanamo Terrorism Detention Cases

By Victor Comras

Catching the Bush Administration by surprise, the Supreme Court decided late last week to take a close look at the legitimacy and constitutionality of the operation and procedures of Guantanamo’s Combatant Status Review Tribunal and of the trials conducted by Guantanamo Military Commissions. The Court, in effect, reversed its earlier April 2007 decision, denying certiorari for two cases, Boumediene v Bush and Al Odah v United States, which raise constitutional and other issues regarding the procedures used to determine the status of, and to try, Guantanamo detainees. The Court invited briefs as to the constitutionality and legality of indefinite detention, the operation of the Combatant Status Review Tribunal (CSRT) and the Guantanamo Military Tribunals. One can only suppose that the remarkable declaration made by Lieutenant Colonel Stephan Abraham, US Army Reserve, dated June 15, 2007, which describes the procedures actually being used at Guantanamo weighed heavily on the Justices mind (See below).

In 2006 the Supreme Court ruled, in Hamdan v Rumsfeld that the military commissions established by the Bush administration violated the Uniform Code of Military Justice and Common Article 3 of the Third Geneva Convention. It also held that Congress could not deprive the Supreme Court of its authority to consider whether such special military commissions violated federal law. To meet these concerns, Congress passed the Military Commissions Act of 2006, which set forth more explicit procedures for the Military Commissions and sought also to block the courts from considering claims of habeas corpus on the basis of the Geneva Conventions. These provisions may now again be tested for constitutionality by the Supreme Court.

In its brief announcement the Court also indicated that it would look closely also at the forthcoming decisions in Bismullah v. Gates and Parhat v Gates, cases which are now pending imminent decision in the Court of Appeals. Those cases deal with the alleged inadequacies of the procedures, protections, and remedies afforded prisoners by the Detainee Treatment Act of 2005.

The Petitioners in the Boumediene case have asked the Supreme Court to determine whether Congress can validly strip federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned at Guantanamo. And the Petitioner’s in the Al Odah are asking for a decision to reverse or limit the court’s decision in Johnson v Eisentrager, a 1950’s case which the District Court interpreted as indicating that Guatanamo prisioners have no common law habeas corpus rights in US courts. The cases also pose a question as to whether the fact that the prisoners have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled them to 5th Amendment due process protections and to the protections of the Geneva Conventions.

Colonel Stephen Abraham, an attorney, was assigned by the Defense Department to act as a factual investigator and member of the Combatant Status Review Tribunal. His role was to oversee and act as liaison for the development of case files for consideration by the Combatant Status Review Tribunal. His statement indicates the extremely limited access such officers had to case-relevant information, particularly when it came to determining the possible existence of exculpatory information regarding prisoners under review. I include below extracts from his declaration.

While assigned to OARDEC, in addition to other duties, I worked as an agency liaison, responsible for coordinating with government agencies, including certain Department of Defense (“DoD”) and non-DoD organizations, to gather or validate information relating to detainees for use in CSRTs. I also served as a member of a CSRT, and had the opportunity to observe and participate in the operation of the CSRT process….

The information used to prepare the files to be used by the Recorders frequently consisted of finished intelligence products of a generalized nature - often outdated, often “generic,” rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status…. The {Information) available to the case writers was limited in terms of the scope of information, typically excluding information that was characterized as highly sensitive law enforcement information, highly classified information, or information
not voluntarily released by the originating agency….

As one of only a few intelligence-trained and suitably cleared officers… I was tasked to review and/or obtain information relating to individual subjects of the CSRTs. More specifically, I was asked to confirm and represent in a statement to be relied upon by the CSRT board members that the organizations did not possess “exculpatory information” relating to the subject of the CSRT.

… I was not permitted to see any information other than that specifically prepared in advance of
my visit. I was not permitted to request that further searches be performed. I was given no assurances that the information provided for my examination represented a complete compilation of information or that any summary of information constituted an accurate distillation of the body of available information relating to the subject.

I was specifically told on a number of occasions that the information provided to me was all that I would be shown, but I was never told that the information that was provided constituted all available information. On those occasions when I asked that a representative of the organization provide a written statement that there was no exculpatory evidence, the requests were summarily denied….

I explained that I was tasked to review all available materials and to reach a conclusion regarding the non-existence of exculpatory information, and that I could not do so without knowing that I had seen all information. The request was denied, coupled with a refusal even
to acknowledge whether there existed additional information that I was not permitted to review. In short, based upon the selective review that I was permitted, I was left to “infer” from the absence of exculpatory information in the materials I was allowed to review that no such information existed in materials I was not allowed to review.
….
The case writer’s summaries were reviewed for quality assurance, a process that principally focused on format and grammar. The quality assurance review would not ordinarily check the accuracy of the information underlying the case writer’s unclassified summary for the reason that the quality assurance reviewer typically had little more experience than the case writer and, again, no relevant or meaningful intelligence or legal experience, and therefore had no skills by which to critically assess the substantive portions of the summaries.
…

All CSRT panel members were assigned to OARDEC and reported ultimately to Rear Admiral McGarrah. It was well known by the officers in OARDEC that any time a CSRT panel determined that a detainee was not properly classified as an enemy combatant, the panel members would have to explain their finding to the OARDEC Deputy Director. There would be intensive scrutiny of the finding by Rear Admiral McGarrah who would, in turn, have to explain the finding to his superiors, including the Under Secretary of the Navy.

On one occasion, I was assigned to a CSRT panel with two other officers, an Air Force colonel and an Air Force major, the latter understood by me to be a judge advocate. We reviewed evidence presented to us regarding the recommended status of a detainee. All of us found the information presented to lack substance. What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence. Statements allegedly made by percipient witnesses lacked detail. Reports presented generalized statements in indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or the credibility of the source. Statements of interrogators presented to the panel offered inferences from which we were expected to draw conclusions favoring a finding of “enemy combatant” but that, upon even limited questioning from the panel, yielded the response from the Recorder, “We’ll have to get back to you.” The personal representative did not participate in any meaningful way. On the basis of the paucity and weakness of the information provided both during and after the CSRT hearing, we determined that there was no factual basis for concluding that the individual should be classified as an enemy combatant. Rear Admiral McGarrah and the Deputy Director immediately questioned the validity of our findings. They directed us to write out the specific questions that we had raised concerning the evidence to allow the Recorder an opportunity to provide further responses. We were then ordered to reopen the hearing to allow the Recorder to present further argument as to why the detainee should be classified as an enemy combatant. Ultimately, in the absence of any substantive response to the questions and no basis for concluding that additional information would be forthcoming, we did not change our determination that the detainee was not properly classified as an enemy combatant. OARDEC's response to the outcome was consistent with the few other instances in which a finding of “Not an Enemy Combatant” (NEC) had been reached by CSRT boards. In each of the meetings that I attended with OARDEC leadership following a finding of NEC, the focus of inquiry on the part of the leadership was “what went wrong.”

I was not assigned to another CSRT panel.

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