It's a bit of an understatement to say that lawyers are not held in high esteem in our culture. But there are some who are going a long way to redeem the profession, and these lawyers are also doing it under the most difficult of circumstances. A year ago I wrote about Lt. Cmdr. Charles Swift, who courageously bucked the military system -- and destroyed his career -- by battling to get the Bush administration's original military tribunal system struck down on behalf of his client Salim Ahmed Hamdan. I said:
The military has many men and women of great physical courage. That's the point, after all. But it takes a person of exceptional character to be willing to take on the military hierarchy from within in order to preserve our fundamental principles. I'm skeptical that the threat of Islamic terrorism can be properly categorized as a war but if it is, one of the big battles being fought is for the integrity of the American system, and the battle is internal, not external. In that battle, this guy is a hero.
That battle took a terrible turn for the worse when Congress cravenly bought into the bogus assurances of Sens. John McCain, R-Ariz., and Lindsey Graham, R-S.C., that the Bush administration's "new" commissions would be much better and succeeded in passing the heinous Kangaroo Commissions and Torture Act of 2006.
Once again, the fight is left up to an individual of conscience who is willing to put himself at risk to do the right thing. Today, the New York Times profiles another hero, Lt. Col Stephen E. Abraham, a lawyer with 22 years of experience in counterterrorism and counterespionage. His affidavit is assumed to have turned the tide in the Supreme Court decision to hear the Guantánamo detainee cases claiming that the hearings are unjust and that detainees have a right to contest their detentions in federal court. (It had been speculated that they would let the circuit court decision stand.)
This man is described in the article as a "law and order" type of guy, as you might expect from a terrorism and espionage military expert, who became more and more troubled by what he saw in the Guantánamo commission process. He decided to speak out and has predictably been attacked by the Pentagon. The Times report quotes a DOD spokesman saying snidely, "Colonel Abraham's 'apparently biased insinuations' did not indicate bad faith or improper behavior by military officials. 'In his capacity as database manager during his brief stint on active duty several years ago,' Commander Peppler said, 'Lieutenant Colonel Abraham was not in a position to have a complete view of all the evidence used in the C.S.R.T.'s, as well as the process as a whole.'"
Nonsense. Abraham had been on active duty for a year after 9/11 and volunteered to go back in 2004 to Guantánamo. He was, as a lieutenant colonel and a lawyer, hardly a clerk. But he did work with the database, which meant he saw the evidence that had been compiled against the Guantánamo prisoners. He was appalled at how thin and unconvincing it was and also at how the tribunals were being run:
Colonel Abraham said that in meetings with top officials of the office, it was clear that such findings were discouraged. "Anything that resulted in a 'not enemy combatant' would just send ripples through the entire process," he said. "The interpretation is, 'You got the wrong result. Do it again.'"
He said his concerns about the fairness of the hearings had grown as time passed. "The hearings amounted to a superficial summary of information, the quality of which would not have withstood scrutiny in any serious law-enforcement or intelligence investigation," he said.
Abraham was assigned to one tribunal himself:
Documents they have gathered show that he was assigned to the panel in November 2004. The detainee was a Libyan, captured in Afghanistan, who was said to have visited terrorist training camps and belonged to a Libyan terrorist organization.
By a vote of 3 to zero, the panel found that "the detainee is not properly classified as an enemy combatant and is not associated with Al Qaeda or Taliban."
Two months later, apparently after Pentagon officials rejected the first decision, the detainee's case was heard by a second panel. The conclusion, again by a vote of 3 to zero, was quite different: "The detainee is properly classified as an enemy combatant and is a member of or associated with Al Qaeda."
Colonel Abraham was never assigned to another panel.
The administration has rigged the evidence and outcomes about so many things that we can't, as a country, afford to give it the benefit of the doubt about anything. It has become so bad that the only thing stopping it is courageous people like Col. Abraham who are reluctantly compelled to step completely outside their normal experience and come forward to expose the government's wrongdoing. But oversight by rare whistle-blowers just isn't an acceptable way for free people to govern themselves. We are lucky that men like Abraham are willing to come forward, but they are unusual. You cannot count on the courage and good intentions of individuals -- that's why you have government and laws to begin with.
Yesterday, we saw National Intelligence Director Mike McConnell on "Meet the Press" explaining the president's new order outlining the limits on interrogation techniques the CIA and others may use. And once again, he said that he cannot reveal what those techniques are and that we just have to trust the president when he says they aren't condoning torture. The Washington Post reports:
"When asked if the permissible techniques would be troubling to the American people if the enemy used them against a U.S. citizen, McConnell said: 'I would not want a U.S. citizen to go through the process. But it is not torture, and there would be no permanent damage to that citizen.'"
I'm sorry, but that's just not good enough. It's insulting to our intelligence that we should just trust these people when they "assure" us (if his explanation could actually be defined as assurance) that we don't torture. They assured us before that they didn't torture and clearly they did, or they wouldn't be making a big deal out of issuing another order that they also claim says we don't torture. They assured us that the Guantánamo prisoners were all dangerous terrorists and they lied. And we have every reason to believe they are lying when they say they are not spying on Americans far more broadly, and for less reason, than they admit. Indeed, they have been so secretive and so mendacious that we would be fools not to require absolute transparency and proof of everything they assert from now on. The credibility gap in this administration is the size of the Grand Canyon.
Thanks to a few brave people who have come forward we are beginning to get the details of the administration's actions. It's time for our institutions to follow their lead.