An Army Reserve major who has sat on 49 Pentagon panels to decide whether detainees should remain imprisoned at Guantanamo Bay, Cuba, said in a sworn statement filed Friday afternoon in D.C. Circuit Court that the process has serious flaws — including a repeated failure to offer any evidence favorable to the detainee, even though some such evidence was sometimes discovered “by accident.”
Presumably, the Circuit Court will provide an opportunity for the Justice Department and the Pentagon to respond.
The views of the officer, whose name was deleted, were gathered by an investigator for the Federal Public Defender’s Office in Oregon as part of an ongoing probe of the case of a Sudanese national being held at Guantanamo.
This marks the second time that a military officer directly involved with the “Combatant Status Review Tribunal” system has publicly aimed sharp criticisms at that process. The first such statement, by Army Reserve Lt. Col. Stephen A. Abraham, has been filed in the Supreme Court, and attorneys for detainees believe it played a role in the Court’s reversing position last June and deciding to make a broad review of the legal rights of detainees. That first declaration, however, involved an officer who sat on just one CSRT; the new declaration is by a member of 49 such panels. In all, there have been more than 550 such panels at Guantanamo.
It is expected that the Army major’s statement will also be brought to the Supreme Court’s attention when detainees’ lawyers file their concluding briefs in the cases of Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196). One issue in those cases is whether detainees should have a right to bring broad habeas challenges, because the Detainee Treatment Act’s provision for civilian court review of the CSRT process allegedly is an inadequate substitute.
On Friday, the declaration was filed in the Circuit Court case of Adel Hassan Hamad (Hamad v. Bush, 07-1098). It was a now-declassified exhibit with a brief filed two days earlier, opposing the Justice Department’s efforts to delay the submission to the Court by the Pentagon of information about 64 detainees’ cases.
Hamad, a hospital administrator who insists he has engaged in no terrorist acts, was living and working in Pakistan. He was seized at his home in Pakistan in July 2002, and has been at Guantanamo Bay since March 2003. He has been pursuing a habeas challenge to his detention in U.S. Ditrict Court, which is on hold, but also has filed a challenge in the Circuit Court under the Detainee Treatment Act to challenge the CSRT panel’s finding that he is an “enemy combatant” justifying his detention.
The declaration is incorporated in the body of this sworn statement by William J. Teesdale, the investigator who said that he has statements under oath from 15 witnesses supporting Hamad’s innocence of any terrorist activity. He and Federal Public Defender Steven T. Wax of Portland conducted an interview with the Army major who was on Hamad’s CSRT. The Army major was the dissenting member of that three-officer CSRT.
His dissent, filed earlier in District Court in a de-classified form, shows that he regarded the evidence before the Hamad panel to be insufficient to suppot a finding that he was a part of Al Qaeda or other forces hostile to the U.S. or its allies. The publicly disclosed evidence considered by the CSRT, the major concluded in dissent, “amounts to saying that the Detainee is an enemy combatant because he was employed by NGOs [non-governmental organizations] that provided some support for ‘terrorist ideals and causes’ and because he ‘came in contact’ with al Qaida members. While this information may raise some suspicion, it does not provide a basis for an enemy combatant determination.”
His new declaration completed in early September, however, went considerably beyond the Hamad pane’s work and his disagreement with its conclusion, asserting that CSRT members in general had little training, higher-ranking military officials exerted pressure on CSRTs to find detainees to be enemy combatants, panel “recorders” with the duty of gathering and submitting evidence to the CSRTs were overwhelmed by the task, panels were not offered any favorable evidence for the detainee in a way that the CSRT rules require, and CSRT embers did not understand the nature of evidence and how they were to weigh it.
Overall, the major said, “much of the material presented [to CSRTs] was supplied by intelligence agencies and were summaries that were not necessarily justified by the underlying evidence.”
He said he had sat on six CSRTs where the the panels were unanimous in finding that the detainee did not qualify as an enemy combatant. In all six, Pentagon officials ordered a new CSRT or ordered the first CSRT to reopen the case. “In each of those cases,” his statement asserts, “the ‘new evidence’ that was presented was in fact a different conclusory intelligence finding, which was not justified by the underlying evidence.”
Hamad’s attorneys are making a somewhat unusual challenge in the Circuit Court case against his CSRT’s finding. While in other cases detainees lawyers are challenging whether the CSRTs saw enough evidence, Hamad’s counsel argues that, even if what his CSRT saw is accepted as the record to be reviewed, it shows that he is not an enemy combatant. They thus have urged the Cirdcuit Court to go ahead and rule that the CSRT could not have made its finding about him, and to order his release. “All the allegations against him involve guilt by association,” one brief argues.
Their legal papers argue that investigators provided the Pentagon status review office with new evidence about Hamad’s innocence last October, seeking a new CSRT, but that has not yet been acted upon.
Their latest brief says that Hamad has learned that, nearly two years ago, military officials decided that he was eligible for transfer from Guantanamo Bay to Sudan, but he remains in Guantanamo now. His attorneys argue, though, that he should be released, rather than transferred to his native country for possible further detention.
Unless the Circuit Court puts off the government’s court-imposed duty to supply the CSRT record in Hamad’s case, the case will proceed on a briefing schedule that is to conclude on Dec. 31. The ultimate issue is whether the CSRT finding of combatant status was valid.
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