Speaking to journalists last week, Navy Capt. Theodore Fessel Jr., the chief representative at Guantánamo for the Pentagon’s Office of Administrative Review of Detained Enemy Combatants (OARDEC), which oversees the tribunals and review boards convened to assess the detainees’ status, hinted that the authorities had "begun seeking new or previously overlooked evidence that may warrant new hearings after the process came under fire," as the Associated Press described it.
Fessel, who ignored long-standing complaints that the tribunals and review boards are worthless because they rely on secret evidence, possibly obtained through torture, and because the detainees are not allowed representation by lawyers, was referring in particular to recent claims made by former insiders that the tribunals, most of which were held in 2004-05, relied on weak and often "generic" evidence and were designed to rubber-stamp the detainees’ prior designation as "enemy combatants."
"With all the outside eyes looking in at the process," Fessel explained, "it’s forcing us to say, ‘OK, did we take everything into consideration when we did the Combatant Status Review Tribunals?’" Stating that, by reviewing cases, the military was "recognizing that some detainees may no longer pose a threat" and blithely ignoring the fact that 56 percent of the detainees have already been released for just such reasons Fessel attempted to justify his comments by citing the hypothetical example of "a detainee who belonged to a Taliban faction that has stopped fighting," who "may no longer be a security risk," and summed up the administration’s position as follows: "It’s an acknowledgment that if there is new evidence or a new thing to take into bearing, in the spirit of being an open and fair process, we have to take that into consideration."
Kessel’s comments provoked outrage from Lt. Col. Stephen Abraham, the first insider to speak out in June. In an e-mail to the Associated Press, he wrote, "Ultimately, conducting new CSRTs even discussing the possibility repudiates every prior assertion that the original CSRTs were valid acts. They are, in essence, both a hypocritical act as well as an act of moral cowardice."
Picking up on what astute readers will also have noticed in Kessel’s reference to "the spirit" of "an open and fair process" namely, an unconscious acknowledgment that the process was not actually either "open" or "fair" Abraham added, "The CSRTs were NOT fair. They were specifically designed to reach a result and, in the few instances where a contrary result was reached, pressure was exerted to change the decision, a new tribunal was selected," or the decision was disregarded.
Since filing his affidavit in June, Abraham has been feted by lawyers who have suggested that his damning analysis of the tribunals helped persuade the Supreme Court in a move that was so rare that it last took place 60 years ago to reverse a decision made in April and agree to hear the detainees’ cases over the coming months. Lawyers hope that the Supreme Court will decide, once and for all, that the detainees have the right to challenge the basis of their detention, and that crucial passages in last fall’s shameful Military Commissions Act, which stripped them of their habeas corpus rights, will be struck down.
Noticeably, however, Abraham’s condemnation of the tribunal process was not acclaimed universally, and the Department of Justice in particular attempted to smear his account as "innuendo." In an e-mail exchange with me last week, Abraham explained that the recent criticism of the tribunal process by an Army major who took part in nearly 10 percent of the tribunals which has provoked this latest admission of backsliding by Fessel was personally satisfying. "Part of me feels vindicated by the revelations," he wrote. "Of course, it can hardly be said now that I didn’t know what I was talking about."
He then added a poignant footnote, which balanced his criticism of the administration with a regard for the extralegal plight of the detainees: "But I am saddened by the fact that more detainees, about whom there is no evidence of involvement in terrorism, will likely die before something is done."
Planning new tribunals, as Fessel has suggested, would do more than reveal the original process was a sham. It would also prolong an already intolerable situation, in which, as Abraham correctly points out, men against whom no evidence of terrorist activity exists will lose more years of their lives and may even die in Guantánamo without ever having had the opportunity to challenge the basis of their detention in a manner that is either meaningful or legally acceptable. The new tribunals should be resisted as yet another tactic by an administration that, having rashly jettisoned the existing legal system six years ago, remains fixated on patching up its brutal replacement, conceived in haste and fueled by arrogance and vengeance.