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Stephen Abraham Argues Against Tribunals

  Law Firm News  -   POSTED: 2008/01/05 17:41

Stephen Abraham, a Newport Beach lawyer and lieutenant colonel in the Army Reserves, hardly seemed like whistle-blower material.

A decorated intelligence officer, he served after 9/11 as lead counter-terrorism analyst at the Joint Intelligence Center at Pearl Harbor. He was a longtime Republican, a patriot devoted to protecting national security.

When he began a six-month tour of duty with the military tribunals reviewing the status of detainees at Guantanamo Bay, Cuba, he saw it as a "fantastic opportunity" to participate in a historic effort to help his country.

Instead, his account of the experience has become powerful ammunition for lawyers fighting for detainees' rights. In June, Abraham became the first insider to publicly criticize the tribunals created by the Bush administration as fundamentally unfair. His criticism, contained in an affidavit filed with the U.S. Supreme Court, figured in a rare decision by the court to reverse itself and hear arguments about whether detainees had been given an adequate chance to plead their innocence. Arguments were held in December, and a ruling is pending.

"We give rights to the most reviled of accused criminals," Abraham said in an interview last month. It is "beyond the power that we give to government to say to anybody, 'Whatever notion of fair play we have, it won't apply to you.' "

Abraham's stand has made him a hero in the eyes of human rights groups and detainees' lawyers. And it has put him publicly at odds with the military.

"Lt. Col. Abraham was not in a position to have a complete view of the . . . process," said Navy Capt. Lana D. Hampton, a Pentagon spokeswoman. Tribunal procedures "afford greater protection for wartime detainees than any nation has ever before provided," she said.

Abraham's six-month tour began in September 2004. Among other duties, he served as a liaison between tribunals and defense and intelligence agencies with information on the captives. He said he was struck immediately by the general nature of the allegations against detainees. And he was concerned that information potentially favorable to detainees was not being submitted to the tribunals. When he requested written statements that no such evidence existed, "the requests were summarily denied," he said in his affidavit.

With two other officers, Abraham sat on the tribunal of a detainee held since early 2002. According to his affidavit, the case "lacked even the most fundamental earmarks of objectively credible evidence." His panel determined that the detainee should not be classified as an enemy combatant.

He learned later that a new tribunal had been convened and reached the opposite conclusion. The entire process was biased, he said.

As a result of 572 reviews by the tribunals held mostly in 2004 and 2005, 38 detainees were judged to have been improperly classified as enemy combatants.

Said Thomas Wilner, a lawyer who has represented 15 Guantanamo detainees: "Stephen was the first person from the government who said . . . the process was a sham."

"It's very easy . . . in times of hysteria to go along with the crowd -- particularly when your superiors are ordering it -- and shave your principles a bit."

Despite his conservative politics, Abraham's stand was not out of character, said Steven Fink, his law partner. Fink describes his friend as a highly principled man who does not suffer fools gladly.

As a student at UC Davis, where his father was a professor of French literature, Abraham joined the ROTC. He was commissioned an Army officer after graduating in 1981 with a degree in anthropology. Of his decision to join the military, Abraham said the country had opened its arms to his father, a Holocaust survivor, and he considered that "a debt worth beginning to repay."

Married and the father of an 11-year old daughter, Abraham is an avid musician who plays the viola and violin. His two-man law firm handles real estate and other matters for small to mid-size businesses.

When Abraham learned that officers with legal and intelligence backgrounds were needed to staff the tribunals, he said, he was eager to offer his services. In preparation, he reviewed legal rulings and treaties on prisoners of war going back more than 50 years.

His tour coincided with contentious debate over whether habeas corpus -- the right to challenge the legal basis for detention -- extends to foreigners held as enemy combatants in the war on terror.

The Bush administration argued that the detainees had no such right, but the Supreme Court ruled in 2004 that there must be a process for reviewing whether they were being properly held. In response, Pentagon officials created the military tribunals.

The program faced a strict time limit, with more than 500 detainee status reviews to be completed in a few months. Detainees were not represented by lawyers before the three-member tribunals. They were not informed of much of the evidence against them. Nor was there a budget allocation for outside witnesses to appear on a detainee's behalf.

Midway through the six-month assignment, Abraham sent a memo to the unit commander, Navy Rear Adm. James McGarrah, seeking release from duty on grounds that it "may be in conflict with my obligations as an attorney." He said he did not get a direct response but was told informally that he would not be asked to serve on any more tribunals.

About three months later, Abraham returned to civilian life. There the matter would have ended but for the intervention of his sister, Susan J. Borschel, a lawyer in the Washington, D.C., suburban area.

Though she did not represent detainees, some of Borschel's colleagues did. In June, at her request, Abraham agreed to speak to those lawyers. At their request, he reviewed an affidavit that described the tribunal process.

Abraham said it reflected a "Pollyanna view" of the tribunal system that was "at best disingenuous."

Abraham responded June 15 with his own affidavit, which defense lawyers filed as part of their successful petition to the U.S. Supreme Court to reconsider a Kuwaiti captive's appeal of his detention.

Although they were once routinely described by U.S. authorities as "the worst of the worst," many detainees, according to their lawyers, were simply war refugees or other innocent bystanders snatched by bounty hunters and turned over for rewards. Most have been sent home -- without explanation or apology, their lawyers say.

Of 780 individuals held at Guantanamo, about 300 remain.

Among them is Abdul Hamid Al-Ghizzawi, the man cleared by Abraham's tribunal before a second panel restored his combatant status.

According to court papers by his attorney, Al-Ghizzawi has hepatitis B and tuberculosis, has not seen or talked to his family in almost six years and "is rapidly losing his mind as he sits in total isolation."

Abraham expresses some empathy for the man.

"He's about my age," mused Abraham. "He's got a daughter. He hasn't seen her in a long time. He's close to death."

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