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Abraham takes on top security echelon

UPDATE 11/14 9:45 AM: Abraham declaration and formal petition now available for download.

A Newport Beach, Calif., attorney who is also an Army Reserve lieutenant colonel, in a new sworn statement offered in federal court Tuesday by lawyers for a Guantanamo Bay detainee, argued that the top echelon of government intelligence officials had made “unrealistic” claims of potential harm to national security from civilian court review of detainees’ status. Stephen Abraham said that the most sensitive type of information — about intelligence “sources and methods” — would seldom be disclosed in any review of the data the government may hold about detainees in captivity. Most detainees simply do not show up in the most secret files, according to the officer who, when on duty, has worked in intelligence, including the Pentagon operation overseeing detention of individuals captured abroad.  The Abraham declaration can be downloaded  here.

Abraham had become an irritant once before for the Pentagon as a critic from inside the system used by military officials to decide which detainees are “enemy combatants” and thus must remain in military custody, at Guantanamo or elsewhere. That is the Combatant Status Review Tribunal system — CSRTs — in which three-member military panels members review evidence supplied to them about individual detainees. There have been more than 550 such panels, and all but 38 found the detainee involved to be an “enemy combatant.” An earlier declaration by Abraham, critiquing the CSRT panels, is part of the record before the Supreme Court as it prepares to hear two major cases on detainees’ rights.

His new sworn statement was submitted to the D.C. Circuit Court, as part of a large file of documents about the case of a Sudanese detainee at Guantanamo, Adel Hassan Hamad (Hamad v. Gates, Circuit docket 07-1098). Hamad’s lawyers on Tuesday filed this formal plea for reinstatement of a calendar for review of his status — a process that was suspended by the D.C. Circuit on Nov. 9 so the military could conduct a new CSRT about Hamad. If a three-judge panel does not reinstate that schedule, the en banc Circuit Court should, the papers argued.

Abraham’s new 18-page declaration sought to spell out how the Pentagon office in Washington that runs the CSRT system went about gathering information to submit to those panels. His statement described a system that, by his account, left out much information that could have informed the CSRT decision-making, and did not even seek information above a low level of classification — SECRET.

In what Abraham called “the vast majority of cases,” the government’s most secret files simply would not contain data that would bear on whether a given Guantanamo prisoner was or was not an “enemy combatant.”

All of the government’s highest-ranking intelligence officers, in a series of sworn statements submitted to the D.C. Circuit on Sept. 7, said that the court’s mandate to gather information that bore on detainees’ status would run a serious risk of exposing some of the government’s deepest secrets — particularly, “sources and methods” information, or data about how the government goes about collecting secrets.

Those statements were submitted as the Justice Department asked the Circuit Court to rehear, en banc, a three-judge panel’s decision spelling out a wide array of government data that had to be supplied to the court — and to detainees’ lawyers — as the court reviewed the work of individual CSRTs.

But Abraham’s statement said that “sources and methods” data was not collected for use by any CSRT. Such data, he added, “would not have formed any part of the Government Information” used in CSRTs “for the simple reason that it would not have tended to establish to any particular degree” any fact about whether an individual should remain in custody.

“Government information that has, at its source, the kinds of sensitive national intelligence information discussed by the intelligence directors,” Abraham contended, “is not normally shared between intelligence agencies except in the rarest of circumstances.”

Even if such information were in the files, it “would not have been disclosed to anyone” in the Pentagon office supervising CSRTs, he said. That office, he said, “was unable to collect this information, even had the outside agencies been willing to provide it. Few individuals had the appropriate clearance” to receive such data, he added.

“Many of the detainees, prior to their detention and subsequent transfer to Guantanamo, were generally unknown to the intelligence agencies,” according to Abraham. “About them, there likely was little information at the agencies, let alone information that would begin to reveal the kinds of sensitive national intelligence information discussed by the intelligence directors.”

Even if a government agency did have information in its files about a detainee that might point toward “sources and methods,” the declaration asserted, “substitutes for the information, including less or non-sensitive forms of corroboration,” could have been submitted to CSRTs.

In his sharp new critique of the information-gathering system used for CSRTs, Abraham said that most of what was obtained derived from information obtained by questioning other detainees, that no other evidence from outside sources was sought to see if that information could be corroborated, that the Pentagon office handling CSRTs was so deficient in personnel, training, security clearance and time that it simply was not able to collect or “competently analyze” the information it did get about detainees, and that the process almost never reached out to get data about a detainee before he had been taken into captivity.

The Justice Department presumably will get a chance to respond to the new filing, and to Abraham’s assertions.