DAY 536: DECLARATION OF STEPHEN ABRAHAM

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Jun 24, 2007, 11:17:18 AM6/24/07
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DECLARATION OF STEPHEN ABRAHAM
Lieutenant Colonel, United States Army Reserve

I, Stephen Abraham, hereby declare as follows:

1. I am a lieutenant colonel in the United States Army Reserve, having
been commissioned in 1981 as an officer in Intelligence Corps. I
have served as an intelligence officer from 1982 to the present during
periods of both reserve and active duty, including mobilization in
1990 ("Operation Desert Storm") and twice again following 9-11. In
my civilian occupation, I am an attorney with the law firm Fink &
Abraham LLP in Newport Beach, California.

2. This declaration responds to certain statements in the Declaration
of Rear Admiral (Retired) James M. McGarrah ("McGarrah Dec."), filed
in Bismullah v. Gates, No. 06-1197 (D.C. Cir.). This declaration
is limited to unclassified matters specifically related to the procedures
employed by Office for the Administrative Review of the Detention
of Enemy Combatants ("OARDEC") and the Combatant Status Review Tribunals
("CSRTs") rather than to any specific information gathered or used
in a particular case, except as noted herein. The contents of this
declaration are based solely on my personal observations and experiences
as a member of OARDEC. Nothing in this declaration is intended to
reflect or represent the official opinions of the Department of Defense
or the Department of the Army.

3. From September 11, 2004 to March 9, 2005, I was on active duty
and assigned to OARDEC. Rear Admiral McGarrah served as the Director
of OARDEC during the entirety of my assignment.

4. While assigned to OARDEC, in addition to other duties, I worked
as an agency liaison, responsible for coordinating with government
agencies, including certain Department of Defense ("DoD") and non-DoD
organizations, to gather or validate information relating to detainees
for use in CSRTs. I also served as a member of a CSRT, and had the
opportunity to observe and participate in the operation of the CSRT
process.

5. As stated in the McGarrah Dec., the information comprising the
Government Information and the Government Evidence was not compiled
personally by the CSRT Recorder, but by other individuals in OARDEC.
The vast majority of the personnel assigned to OARDEC were reserve
officers from the different branches of service (Army, Navy, Air
Force, Marines) of varying grades and levels of general military
experience. Few had any experience or training in the legal or intelligence
fields.

6. The Recorders of the tribunals were typically relatively junior
officers with little training or experience in matters relating to
the collection, processing, analyzing, and/or dissemination of intelligence
material. In no instances known to me did any of the Recorders have
any significant personal experience in the field of military intelligence.
Similarly, I was unaware of any Recorder having any significant or
relevant experience dealing with the agencies providing information
to be used as a part of the CSRT process.

7. The Recorders exercised little control over the process of accumulating
information to be presented to the CSRT board members. Rather, the
information was typically aggregated by individuals identified as
case writers who, in most instances, had the same limited degree
of knowledge and experience relating to the intelligence community
and intelligence products. The case writers, and not the Recorders,
were primarily responsible for accumulating documents, including
assembling documents to be used in the drafting of an unclassified
summary of the factual basis for the detainee's designation as an
enemy combatant.

8. The information used to prepare the files to be used by the Recorders
frequently consisted of finished intelligence products of a generalized
nature - often outdated, often "generic," rarely specifically relating
to the individual subjects of the CSRTs or to the circumstances related
to those individuals' status.

9. Beyond "generic" information, the case writer would frequently
rely upon information contained within the Joint Detainee Information
Management System ("JDIMS"). The subset of that system available
to the case writers was limited in terms of the scope of information,
typically excluding information that was characterized as highly
sensitive law enforcement information, highly classified information,
or information not voluntarily released by the originating agency.
In that regard, JDIMS did not constitute a complete repository, although
this limitation was frequently not understood by individuals with
access to or who relied upon the system as a source of information.
Other databases available to the case writer were similarly deficient.
The case writers and Recorders did not have access to numerous information
sources generally available within the intelligence community.

10. As one of only a few intelligence-trained and suitably cleared
officers, I served as a liaison while assigned to OARDEC, acting
as a go-between for OARDEC and various intelligence organizations.
In that capacity, I was tasked to review and/or obtain information
relating to individual subjects of the CSRTs. More specifically,
I was asked to confirm and represent in a statement to be relied
upon by the CSRT board members that the organizations did not possess
"exculpatory information" relating to the subject of the CSRT.

11. During my trips to the participating organizations, I was allowed
only limited access to information, typically prescreened and filtered.
I was not permitted to see any information other than that specifically
prepared in advance of my visit. I was not permitted to request that
further searches be performed. I was given no assurances that the
information provided for my examination represented a complete compilation
of information or that any summary of information constituted an
accurate distillation of the body of available information relating
to the subject.

12. I was specifically told on a number of occasions that the information
provided to me was all that I would be shown, but I was never told
that the information that was provided constituted all available
information. On those occasions when I asked that a representative
of the organization provide a written statement that there was no
exculpatory evidence, the requests were summarily denied.

13. At one point, following a review of information, I asked the
Office of General Counsel of the intelligence organization that I
was visiting for a statement that no exculpatory information had
been withheld. I explained that I was tasked to review all available
materials and to reach a conclusion regarding the non-existence of
exculpatory information, and that I could not do so without knowing
that I had seen all information.

14. The request was denied, coupled with a refusal even to acknowledge
whether there existed additional information that I was not permitted
to review. In short, based upon the selective review that I was permitted,
I was left to "infer" from the absence of exculpatory information
in the materials I was allowed to review that no such information
existed in materials I was not allowed to review.

15. Following that exchange, I communicated to Rear Admiral McGarrah
and the OARDEC Deputy Director the fundamental limitations imposed
upon my review of the organization's files and my inability to state
conclusively that no exculpatory information existed relating to
the CSRT subjects. It was not possible for me to certify or validate
the non-existence of exculpatory evidence as related to any individual
undergoing the CSRT process.

16. The content of intelligence products, including databases, made
available to case writers, Recorders, or liaison officers, was often
left entirely to the discretion of the organizations providing the
information. What information was not included in the bodies of intelligence
products was typically unknown to the case writers and Recorders,
as was the basis for limiting the information. In other words, the
person preparing materials for use by the CSRT board members did
not know whether they had examined all available information or even
why they possessed some pieces of information but not others.

17. Although OARDEC personnel often received large amounts of information,
they often had no context for determining whether the information
was relevant or probative and no basis for determining what additional
information would be necessary to establish a basis for determining
the reasonableness of any matter to be offered to the CSRT board
members. Often, information that was gathered was discarded by the
case writer or the Recorder because it was considered to be ambiguous,
confusing, or poorly written. Such a determination was frequently
the result of the case writer or Recorder's lack of training or experience
with the types of information provided. In my observation, the case
writer or Recorder, without proper experience or a basis for giving
context to information, often rejected some information arbitrarily
while accepting other information without any articulable rationale.

18. The case writer's summaries were reviewed for quality assurance,
a process that principally focused on format and grammar. The quality
assurance review would not ordinarily check the accuracy of the information
underlying the case writer's unclassified summary for the reason
that the quality assurance reviewer typically had little more experience
than the case writer and, again, no relevant or meaningful intelligence
or legal experience, and therefore had no skills by which to critically
assess the substantive portions of the summaries.

19. Following the quality assurance process, the unclassified summary
and the information assembled by the case writer in support of the
summary would then be forwarded to the Recorder. It was very rare
that a Recorder or a personal representative would seek additional
information beyond that information provided by the case writer.

20. It was not apparent to me how assignments to CSRT panels were
made, nor was I personally involved in that process. Nevertheless,
I discerned the determinations of who would be assigned to any particular
position, whether as a member of a CSRT or to some other position,
to be largely the product of ad hoc decisions by a relatively small
group of individuals. All CSRT panel members were assigned to OARDEC
and reported ultimately to Rear Admiral McGarrah. It was well known
by the officers in OARDEC that any time a CSRT panel determined that
a detainee was not properly classified as an enemy combatant, the
panel members would have to explain their finding to the OARDEC Deputy
Director. There would be intensive scrutiny of the finding by Rear
Admiral McGarrah who would, in turn, have to explain the finding
to his superiors, including the Under Secretary of the Navy.

21. On one occasion, I was assigned to a CSRT panel with two other
officers, an Air Force colonel and an Air Force major, the latter
understood by me to be a judge advocate. We reviewed evidence presented
to us regarding the recommended status of a detainee. All of us found
the information presented to lack substance.

22. What were purported to be specific statements of fact lacked
even the most fundamental earmarks of objectively credible evidence.
Statements allegedly made by percipient witnesses lacked detail.
Reports presented generalized statements in indirect and passive
forms without stating the source of the information or providing
a basis for establishing the reliability or the credibility of the
source. Statements of interrogators presented to the panel offered
inferences from which we were expected to draw conclusions favoring
a finding of "enemy combatant" but that, upon even limited questioning
from the panel, yielded the response from the Recorder, "We'll have
to get back to you." The personal representative did not participate
in any meaningful way.

23. On the basis of the paucity and weakness of the information provided
both during and after the CSRT hearing, we determined that there
was no factual basis for concluding that the individual should be
classified as an enemy combatant. Rear Admiral McGarrah and the Deputy
Director immediately questioned the validity of our findings. They
directed us to write out the specific questions that we had raised
concerning the evidence to allow the Recorder an opportunity to provide
further responses. We were then ordered to reopen the hearing to
allow the Recorder to present further argument as to why the detainee
should be classified as an enemy combatant. Ultimately, in the absence
of any substantive response to the questions and no basis for concluding
that additional information would be forthcoming, we did not change
our determination that the detainee was not properly classified as
an enemy combatant. OARDEC's response to the outcome was consistent
with the few other instances in which a finding of "Not an Enemy
Combatant" (NEC) had been reached by CSRT boards. In each of the
meetings that I attended with OARDEC leadership following a finding
of NEC, the focus of inquiry on the part of the leadership was "what
went wrong."

24. I was not assigned to another CSRT panel. I hereby declare under
the penalties of perjury based on my personal knowledge that the
foregoing is true and accurate.

<http://www.scotusblog.com/movabletype/archives/Al%20Odah%20reply%206-22-07.pdf>

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