No Comment — June 22, 2007, 10:08 pm

The “Enemy Combatant” Fraud

A key aspect of the legal architecture of the “war on terror” crafted by the Bush Administration involves labeling all persons seized and held as “terrorist detainees” (look at the telling language used in the letter from Air Force General Counsel Mary Walker, published in this space yesterday, for instance). Under the laws of war, a person seized on the battlefield is presumed to be a lawful combatant and as such entitled to prisoner of war treatment pursuant to article 5 of the Third Geneva Convention. This status can be overturned by a process of administrative review in which a determination is made that the person is not a lawful combatant in which case the detainee has protections under article 3 common to the Geneva Conventions. However, the Bush Administration decided to turn this system on its head, introducing the fiction that “the president” had made the determination that every person seized was an “unlawful enemy combatant.” There was no need for specific evidence or facts about the persons seized. It was conclusively presumed.

Of course we subsequently learned that over 80% of the persons held at Guantánamo had nothing to do with al Qaeda, or any other terrorist group. For the most part they were seized so that their captors could avail themselves of a bounty payment that the Pentagon very foolishly began offering for prisoners early in the war.

They persisted in this nonsense until the Supreme Court declared the process illegal.

But that led to a dilemma. If the person was really a civilian noncombatant, and he had been seized and held for years, subjected to torture and other illegal interrogation techniques, then the U.S. had a problem. Then, of course, what had been done was a criminal act. Indeed, a felony under American law. It was therefore essential to juryrig a system which would guarantee the result they needed to protect themselves from criminal liability.

And so the Combat Status Review Tribunal (“CSRT”) was born. The CSRT has been enshrouded in controversy from its start. To call the CSRT a kangaroo court would be an insult to kangaroo courts; it is far worse than that. Indeed, it would be embarrassing to allow outsiders to actually watch one of these farces in operation. The Pentagon therefore denied journalists and others the right to attend the proceedings, contending that national security secrets were prone to come up. Instead redacted transcripts were to be provided afterwards. And, like clockwork, the Pentagon has produced transcripts which reflect page on end of redactions: the witnesses coming before the tribunals describe how they were tortured.

Today, a very brave Army lieutenant colonel has come forward to reveal how utterly shameless and fraudulent the entire CSRT process is. The Associated Press reports:

Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an Army reserve officer and a California lawyer, said military prosecutors were provided with only “generic” material that didn’t hold up to the most basic legal challenges. Despite repeated requests, intelligence agencies arbitrarily refused to provide specific information that could have helped either side in the tribunals, according to Abraham, who said he served as a main liaison between the Combat Status Review Tribunals and those intelligence agencies.

“What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” Abraham said in the affidavit, filed in a Washington appeals court on behalf of a Kuwaiti detainee, Fawzi al-Odah, who is challenging his classification as an “enemy combatant”…

“It proves what we all suspected, which is that the CSRTs were a complete sham,” Cynamon said.

Matthew J. MacLean, another al-Odah lawyer, said Abraham is the first member of a Combat Status Review Tribunal panel who has been identified, let alone been willing to criticize the tribunals in the public record. “It wouldn’t be quite right to say this is the most important piece of evidence that has come out of the CSRT process, because this is the only piece of evidence ever to come out of the CSRT process,” MacLean said. “It’s our only view into the CSRT.”

I am now specifically aware of three separate teams of JAG prosecutors who have resigned rather than conduct proceedings in the kangaroo-court system the Bush Administration has contrived in Guantánamo. In two of the three cases, the prosecutors specifically stated that they were aware that exculpatory evidence was being systematically withheld and fraudulent, false or torture-induced evidence was being used. This is but one of many manifestations of the Bush Administration’s war on the rule of law.

And Lieutenant Colonel Abraham had better watch out. He’s likely to land exactly where Lieutenant Commander Diaz and Lieutenant Colonel Steele have landed in the shortest of time. They’ll surely claim that he is revealing vital national security secrets, because the most closely held secret of the Bush Administration is the complete fraudulence of the system they have crafted at Gitmo. I would say that they took Franz Kafka’s “Penal Colony” for a model, but if you look carefully, you’ll see that Kafka provides a system with more elements of procedural fairness than they do. Another hallmark of this regime is its vindictiveness. Not only does it despise law and justice, it is intent on destroying those who want to uphold these fundamental American values. It is the monster that eats its own children; its mentality is in its innermost core criminal.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2018

Before the Deluge

= Subscribers only.
Sign in here.
Subscribe here.

Notes to Self

= Subscribers only.
Sign in here.
Subscribe here.

Within Reach

= Subscribers only.
Sign in here.
Subscribe here.

The Bodies in The Forest

= Subscribers only.
Sign in here.
Subscribe here.

The Minds of Others

= Subscribers only.
Sign in here.
Subscribe here.

Modern Despots

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
The Minds of Others·

= Subscribers only.
Sign in here.
Subscribe here.

Progress is impossible without change,” George Bernard Shaw wrote in 1944, “and those who cannot change their minds cannot change anything.” But progress through persuasion has never seemed harder to achieve. Political segregation has made many Americans inaccessible, even unimaginable, to those on the other side of the partisan divide. On the rare occasions when we do come face-to-face, it is not clear what we could say to change each other’s minds or reach a worthwhile compromise. Psychological research has shown that humans often fail to process facts that conflict with our preexisting worldviews. The stakes are simply too high: our self-worth and identity are entangled with our beliefs — and with those who share them. The weakness of logic as a tool of persuasion, combined with the urgency of the political moment, can be paralyzing.

Yet we know that people do change their minds. We are constantly molded by our environment and our culture, by the events of the world, by the gossip we hear and the books we read. In the essays that follow, seven writers explore the ways that persuasion operates in our lives, from the intimate to the far-reaching. Some consider the ethics and mechanics of persuasion itself — in religion, politics, and foreign policy — and others turn their attention to the channels through which it acts, such as music, protest, and technology. How, they ask, can we persuade others to join our cause or see things the way we do? And when it comes to our own openness to change, how do we decide when to compromise and when to resist?

Illustration (detail) by Lincoln Agnew
Article
Within Reach·

= Subscribers only.
Sign in here.
Subscribe here.

On a balmy day last spring, Connor Chase sat on a red couch in the waiting room of a medical clinic in Columbus, Ohio, and watched the traffic on the street. His bleached-blond hair fell into his eyes as he scrolled through his phone to distract himself. Waiting to see Mimi Rivard, a nurse practitioner, was making Chase nervous: it would be the first time he would tell a medical professional that he was transgender.

By the time he arrived at the Equitas Health clinic, Chase was eighteen, and had long since come to dread doctors and hospitals. As a child, he’d had asthma, migraines, two surgeries for a tumor that had caused deafness in one ear, and gangrene from an infected bug bite. Doctors had always assumed he was a girl. After puberty, Chase said, he avoided looking in the mirror because his chest and hips “didn’t feel like my body.” He liked it when strangers saw him as male, but his voice was high-pitched, so he rarely spoke in public. Then, when Chase was fourteen, he watched a video on YouTube in which a twentysomething trans man described taking testosterone to lower his voice and appear more masculine. Suddenly, Chase had an explanation for how he felt — and what he wanted.

Illustration by Taylor Callery
Article
Before the Deluge·

= Subscribers only.
Sign in here.
Subscribe here.

In the summer of 2016, when Congress installed a financial control board to address Puerto Rico’s crippling debt, I traveled to San Juan, the capital. The island owed some $120 billion, and Wall Street was demanding action. On the news, President Obama announced his appointments to the Junta de Supervisión y Administración Financiera. “The task ahead for Puerto Rico is not an easy one,” he said. “But I am confident Puerto Rico is up to the challenge of stabilizing the fiscal situation, restoring growth, and building a better future for all Puerto Ricans.” Among locals, however, the control board was widely viewed as a transparent effort to satisfy mainland creditors — just the latest tool of colonialist plundering that went back generations.

Photograph from Puerto Rico by Christopher Gregory
Article
Monumental Error·

= Subscribers only.
Sign in here.
Subscribe here.

In 1899, the art critic Layton Crippen complained in the New York Times that private donors and committees had been permitted to run amok, erecting all across the city a large number of “painfully ugly monuments.” The very worst statues had been dumped in Central Park. “The sculptures go as far toward spoiling the Park as it is possible to spoil it,” he wrote. Even worse, he lamented, no organization had “power of removal” to correct the damage that was being done.

Illustration by Steve Brodner
Post
CamperForce·

= Subscribers only.
Sign in here.
Subscribe here.

After losing their savings in the stock market crash of 2008, seniors Barb and Chuck find seasonal employment at Amazon fulfillment centers.

Minimum number of shooting incidents in the United States in the past year in which the shooter was a dog:

2

40,800,000,000 pounds of total adult human biomass is due to excessive fatness.

Trump’s former chief strategist, whom Trump said had “lost his mind,” issued a statement saying that Trump’s son did not commit treason; the US ambassador to the United Nations announced that “no one questions” Trump’s mental stability; and the director of the CIA said that Trump, who requested “killer graphics” in his intelligence briefings, is able to read.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today