On Friday, TPMmuckraker reported on an affidavit from Lieutenant Colonel Stephen Abraham, an Army reserve intelligence officer, that suggests widespread flaws in the process of classifying a detainee as an enemy combatant at Guantanamo Bay. Abraham was replying to his former boss at the Office for the Administrative Review of the Detention of Enemy Combatants, Rear Admiral James McGarrah, who testified last month that there was no significant problem with the military process, known as a Combatant Status Review Tribunal. Last week, Abraham accused McGarrah of knocking him off the CSRTs after he argued that a certain detainee shouldn’t be considered an an enemy combatant. TPMmuckraker has Abraham’s declaration here and McGarrah’s here.
McGarrah presents a straight description of the process detainees have to challenge the facts of their designation: on their behalf, officials known as Recorders and Case Writers dig through Defense Department databases, and request access to those of other agencies, in order to present a fact-file of the circumstances behind their detention. (The CSRTs are administrative procedures, not legal ones, but the administration contends that such non-legal proceedings still constitute sufficient process rights for detainees.) And it’s here that Abraham challenged McGarrah, contending that the Recorders and Case Writers typically don’t know how to handle classified information and that the information the databases yield on detainees are frequently generic, incomplete or outdated.
But the biggest bone of contention in the two declarations is over the acceptance of information that doesn’t support classifying a detainee as an enemy combatant. Abraham claims McGarrah ordered one of his cases reopened until it returned with the verdict the Pentagon sought, and then refused to assign him to another CSRT. McGarrah presents such an occurrence as an opportunity for “additional information” to be entered into the record or for the intelligence agencies to “reconsider” their objections to allowing a Recorder access to allegedly damning information. But he doesn’t explain how this post-decision process is meant to reach a conclusion, or whether it can go on indefinitely, with the “CSRT Director” — formerly McGarrah himself — able to “retur(n) the record to the CSRT for further proceedings.”
It’ll be interesting to see how what D.C. Circuit Court of Appeals’ Chief Justice, Reagan appointee Douglas H. Ginsburg, makes of the discrepancies between McGarrah’s account and Abraham’s, as well as McGarrah’s own omissions. Questioning from Ginsburg during a May hearing in the cases led the Justice Department to seek McGarrah’s declaration.
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