June 23, 2007

Reserve Officer Criticizes Process of Identifying ‘Enemy Combatants’ at Guantánamo

By WILLIAM GLABERSON

The military hearings used to decide whether to hold Guantánamo detainees relied on incomplete and outdated information, screened by officers who were under intense pressure from their commanders to conclude that the detainees should be held, a reserve military intelligence officer and lawyer who had a role in the process said in an affidavit filed yesterday in a federal appeals court.

The sworn affidavit, the first from an insider who is critical of the Pentagon process, was portrayed by detainees’ lawyers as a crack in the military’s disciplined defense of the procedures used to declare detainees properly held as “enemy combatants.”

The fairness of the hearings is a central issue in legal challenges to the Bush administration’s detention policies, and yesterday the affidavit became the subject of intense discussion in the government and among the administration’s critics.

“What purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” the officer, Stephen E. Abraham, a civilian business lawyer in Newport Beach, Calif., said in the affidavit filed in Washington, D.C.

Mr. Abraham, an Army Reserve lieutenant colonel, added that the evidence against the detainees often “lacked detail” and consisted of “generalized statements” of culpability, rather than specific evidence.

Military officials have said they scoured intelligence records to ensure that the detainees were terrorists and other enemies of the United States. But Mr. Abraham portrayed a haphazard and arbitrary process, and he took issue with military assertions that there were careful reviews to gather any evidence that might clear detainees.

Pentagon officials, while not addressing Mr. Abraham’s accusations specifically, questioned whether he had enough information to draw conclusions about the process.

But Mr. Abraham said he had a pivotal role in the proceedings. He said one of his responsibilities was to review the records of intelligence agencies to see if they contained evidence that was exculpatory, or favorable to a detainee. Some detainees have claimed that they landed in American custody by mistake or because American officials paid bounties for terrorism suspects.

But Mr. Abraham said that when he asked intelligence agencies if there was evidence that might clear certain detainees, he was told simply that the evidence he had been shown was all he would be shown.

“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,” the affidavit said.

In a statement issued yesterday, Pentagon officials defended the hearings, known as Combatant Status Review Tribunals, saying they were fair and neutral. Military officials also questioned whether Mr. Abraham had a basis for his affidavit. “Based on his limited experience he would not be in a position to comment” on such issues as the training of the officials involved in the gathering evidence or the claims of improper influence from military officers, one military official said.

The officials confirmed that Mr. Abraham had worked for six months in 2004 and 2005 as a liaison between the Pentagon office that runs the status tribunals and government intelligence agencies that hold information about many of the detainees. They also said he was a member of a hearing panel.

The tribunals involve unnamed military officers reviewing evidence against detainees. Detainees are not allowed to have lawyers and cannot examine much of the evidence against them.

In an interview yesterday, Mr. Abraham, 46, said the hearing process included what amounted to a presumption that detainees were guilty. He said he felt that some people involved in gathering evidence for the tribunals did not have the training to understand either the legal process they were being asked to run or the intelligence materials they were reviewing.

As a result, he said in the interview, the hearing often had the predictable result even if there was little specific evidence against the detainee. “If what you fear is the consequence of somebody being released, what better way to assuage that fear than to not release him?” he asked.

Mr. Abraham said that he was not motivated by anger at the military but that he wrote the affidavit for detainees’ lawyers after learning that a retired admiral who once ran the Pentagon’s status-review hearing program had portrayed it in a recent affidavit as a diligent effort to gather all evidence and to consider it fully.

He said he learned of that affidavit, by Rear Adm. James M. McGarrah, from his sister, who is a lawyer at a national law firm, Pillsbury Winthrop Shaw Pittman, where other lawyers are handling detainees’ lawsuits.

As a liaison officer between officers responsible for compiling the cases against the detainees and the government’s intelligence agencies, Mr. Abraham said yesterday, he had the opportunity to see the evidence against many of the detainees. The Pentagon conducted more than 550 hearings.

“In very few instances,” he said, “would you find very specific information from which you could conclude he was an enemy combatant.”