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BILL OF WRONGS -- THE EXECUTIVE BRANCH'S ASSAULT ON AMERICA'S FUNDAMENTAL RIGHTS |
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Chapter 7: OUR TIME IN THE SHADOWS Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. -- Eighth Amendment to the United States Constitution In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. -- Sixth Amendment to the United States Constitution We also have to work, though, sort of the dark side, if you will. we've got to spend time in the shadows in the intelligence world. ... That's the world these folks operate in, and so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective. -- Vice President DICK CHENEY, September 16, 2001 In Kandahar, they hanged me by my hands. For hours, sometimes for days. -- MURAT KURNAZ, June 21, 1007 Fifteen American soldiers watched over one man shackled to a seat in the cargo bay of a C-17 Globemaster -- the Air Force workhorse that transports Abrams tanks, Chinook helicopters, and infantry vehicles. Wearing goggles that shut out all light, a soundproof headset, and a mask that covered his mouth so he could not speak, spit, or bite, the prisoner arrived at Ramstein Air Base in Kaiserslautern, Germany, under the tightest security. The plane had burned through 36,000 gallons of jet fuel and refueled in flight. During the seventeen-hour, bone-chilling ride in the yawning cargo bay, the prisoner was provided neither food nor water. Nor was he allowed to stretch his legs or relieve himself. This was how what had been the world's greatest democracy when George Bush took the presidential oath in 2001 repatriated an innocent man who never represented a security threat to the United States. Murat Kurnaz was nineteen when he was taken off a bus in Peshawar, Pakistan. He was twenty-four and the last European held at the American prison camp in Cuba when he was flown to Kaiserslautern in August 2006. He didn't know he had been returned home to Germany until an American enlisted man removed the goggles and Kurnaz saw three German policemen standing outside the airplane. "He was dumped on German soil like some sort of alien," said Bernhard Docke, Kurnaz's attorney from the northern German city of Bremen. Murat Kurnaz, German born of Turkish parents, could be an expert witness and fact witness for any legislative or judicial procedure that would cast a cold eye on the transgressions of law, the Constitution, and the fundamental precepts of human rights perpetrated by George Bush's terror warriors. Pick your amendment. Fifth: not compelled to be a witness against yourself. Sixth: speedy and public trial and right to be confronted by witnesses. Eighth: protection from cruel and unusual punishment. Fourteenth: the state cannot deprive someone of life, liberty, or property without due process of law. Constitutional right to habeas corpus? There might even be a First Amendment problem with locking a man up in an island prison and refusing to allow him to communicate with his family. Kurnaz was Prisoner No. 53, the fifty-third detainee booked into Guantanamo. His four years and eight months in custody of the Central Intelligence Agency, the United States Army, Marine Corps, and Air Force, included an eclectic range of human rights abuses at the hands of his captors and torturers. Kurnaz could write a technical how-to-torture manual that would reassure Dick Cheney, David Addington, John Yoo, and federal judge Jay Bybee -- the American public servants who made torture public policy -- that their system works. How was this one man, pulled from a bus at a routine roadside stop near Peshawar, Pakistan, tortured by agents and soldiers whose salaries are paid by the United States Treasury? Let us count the ways:
Despite all this, Murat Kurnaz told his American torturers at Kandahar and Guantanamo nothing. Because he had nothing to tell them. His American captivity was the end result of a religious awakening common to first-generation Muslims in Germany, France, and the United Kingdom. Immigrant parents arrive in a country and assimilate, leaving their children with no cultural patrimony. And the children return to the kind of religious fundamentalism that San Antonio's Reverend John Hagee and Colorado Springs's Dr. James Dobson inspire in their disciples -- the principal difference with Kurnaz being the text that informs the religious experience. In Germany, the father had worked for thirty years at a Daimler plant in Bremen and drove a Mercedes. The son gave up his motorcycle, secular clothes, and jobs at a gym and a dance club and started spending time at an Arab mosque, where the lingua franca is the language of the Qur'an. Murat even persuaded his secular parents to connect him with family members in Turkey, who found him a traditional Muslim woman to marry. The Abu Bakr mosque in Bremen was home to a small group of adherents of Jama'at al-Tablighi (the Party of Missionary Work), a worldwide Muslim revivalist group that insinuates itself into mosques. One of the followers of Jama'at al-Tablighi urged Kurnaz to go Pakistan, where he could study the Qur'an every day rather than one day a week. Selcuk Bilgin, another young Turk who found religion at Abu Bakr, decided to travel with him. German bureaucratic efficiency started Kurnaz down the road alone to a chartered CIA aircraft ride from Kandahar to the American prison camp that Donald Rumsfeld set up ninety miles south of the reach of the American Constitution. Bilgin was detained at the airport in Frankfurt and never made the trip to Pakistan, because of an outstanding municipal fine he'd incurred by letting his dog run loose. So in October 2001, Murat Kurnaz was an itinerant fundamentalist Muslim whose traveling companion had been arrested in an airport. Both men lived in Bremen, an hour's drive from Hamburg, home to the al-Qaeda cell that plotted and carried out the 9/11 attack. And both had associated with Jama'at al-Tablighi. Those facts, and Dick Cheney's conviction that the Constitution is a document that can be selectively applied, got Murat Kurnaz almost five years of incarceration and torture at the hands of the American government. *** The "privilege to a writ of habeas corpus" was a concession King John made when he signed the Magna Carta in 1215. The revolutionary concept that a prisoner can challenge his incarceration has since become part of the fabric of Anglo- American jurisprudence. Like free expression, it's a right that is required to secure all other rights. If a king or president -- let's say Hugo Chavez or George Bush in the Americas, or Bashar al-Assad or Mahmoud Ahmadinejad in the Middle East -- can have someone silenced or locked away with no legal route to freedom, other liberties guaranteed by a constitution don't mean much. The "great writ" followed British subjects to thirteen American colonies, where it was sporadically observed. In Leonard W. Levy's Origins of the Bill of Rights, he describes a minor uprising in Ipswich, Massachusetts, in 1687, when a gang of unruly Ipswichers led by a preacher declared they would not pay new taxes imposed on them. Colonial governor Edmund Andros had the preacher and five of his followers thrown in prison. When they applied for a writ of habeas corpus, the judge denied it, telling them they must "not think the Laws of England follow them to the ends of the earth whither they went." A jury found the preacher and the Ipswich Five guilty, dismissing the argument that their imprisonment violated the Magna Carta. They got a stiff fine and no relief from the court. This sort of high-handed behavior was on the minds of the framers of the Constitution when they met in 1787 in Philadelphia, where there was something of a habeas corpus feeding frenzy. South Carolina's Charles Pinckney proposed a near absolute right that the Congress could suspend only under the most "urgent and pressing occasion" and then only for a fixed time. Another South Carolinian, John Rutledge, argued that the right should never be suspended. James Wilson of Pennsylvania argued that suspension should never be necessary, and that any power to deny a writ of habeas corpus should rest with judges, who would decide on a case-by-case basis, not the Congress or the president ordering wholesale suspension. Thomas Jefferson wrote home from his diplomatic posting in Paris, warning James Madison about insufficient attention to "the eternal unremitting force of the habeas corpus laws, and trials by jury." The right to habeas corpus was included in Article I of the Constitution, then reinforced in the Bill of Rights, by amendments that provide for a speedy public trial and prohibit excessive bail as well as cruel and unusual punishment. The right was so powerfully reaffirmed by the Supreme Court in 1866 that the writ of habeas corpus seemed to become a writ writ in stone. The "fact situation" in the Ex Parte Milligan case wasn't complicated. What Abraham Lincoln described as "this mighty scourge of war" was grinding to its tragic conclusion when Lambden P. Milligan was caught in Indiana. He was plotting to seize a military garrison and arsenal, free the prisoners held there, and lead an insurrection. Milligan was tried and convicted by a military tribunal. The evidence suggests he was completely deserving of the hanging to which the military court sentenced him. Lincoln could look out of the window of the White House and see General Robert E. Lee's plantation in Virginia at a moment when it was feared that Washington, D.C., would fall into the hands of the Confederacy. Yet the Supreme Court ruled that this civilian terrorist who never wore the uniform of the Union or the Confederacy had the right to habeas corpus and to be tried in a civilian court. All nine justices agreed. Domestic insurrection, a nation at war, a plan to violently assault a military compound. And Lambden P. Milligan had the constitutional right to a trial in a civilian court? It must have been a great country. Writing for the majority of the Court, Justice David Davis looked back to the framers of our Constitution: Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. With the stroke of a pen, George W. Bush undid that high court decision and edited that magnificent paragraph. *** A short, massive, muscular man with an unruly reddish beard splayed across his chest and hair pulled back in a ponytail, Murat Kurnaz speaks good, if basic, English. He says it improved in the years he spent at Kandahar and Guantanamo. He's a bit of a contradiction, a fundamentalist Muslim who drives a sports car and dresses like he selects his clothes from GQ ads. Kurnaz reluctantly agrees to interviews with reporters, though he earned a substantial amount of money for two exclusives with Stern magazine and a national television network soon after he returned to Germany from Guantanamo. He tends to end interviews abruptly with the same line: "I have to stop now." In Pakistan, Kurnaz said he spent about two months traveling from city to city and mosque to mosque with a group of Jama'at al-Tablighi adherents. He was en route to catch a flight back to Germany when Pakistani police pulled him off a bus in December 2001. Initially the police told him he would be released to fly home. Then he was turned over to Americans. In an interview in his lawyer's office in Bremen, and in follow-up telephone interviews, Kurnaz said that American interrogators initially asked him the whereabouts of Osama bin Laden. Again and again. "Where is Osama?" he said. "Who is Osama?" "Do you know Osama?" "Are you a Taliban?" The questions were accompanied by beatings and electric shocks. The desperate line of questioning is understandable. Our country had just been devastated by terrorist attacks that were the result, in part, of intelligence failure. We had dispatched our intelligence agency and military to try to figure out what happened and what might be coming next, and Murat Kurnaz had ridden a bus into their path. For ten days, he was moved from place to place, shackled and with a sack over his head. Finally he was escorted onto an airplane. "Sit down, motherfucker" was the first thing he heard from the enlisted man who took charge of him. He was flown to an American military base in Kandahar, where interrogations became more brutal and systematic. "I was hanged by my hands," he said. "Hanged for hours and sometimes days. Interrogators would come and then leave and come back." He said an American physician in camouflage would check his vital signs three times a day to determine if he could withstand more interrogation. Kurnaz said he could hear a man on the other side of a partition and assumed he was being subjected to the same torture. On one occasion, Kurnaz saw him. "They were hanging me and pulled me up higher than the other times. I could see the man in the other room. He was hanging, too. Maybe they lifted him higher that time, too, I don't know. I had heard him moaning and breathing. This is the first time I saw him. He was dead. The color of his body was changed and I could see he was dead." Kurnaz said that he was also subjected to waterboarding and electric shock. And that beatings were routine and constant. He suspects that much of the torture was a result of the failure of American soldiers and agents to capture any real terrorists in the initial sweeps. (He was told that the Pakistani police had sold him to the Americans for three thousand dollars.) "They didn't have any big fish. And they thought that by torture they could get one of us to say something. 'I know Osama' or something like that. Then they could say they had a big fish." After two months in Kandahar, Kurnaz was shackled, hooded, and led to another plane. He said his captors told him they were taking him to the cave where Osama bin Laden was hiding, where he would be shot. The plane landed in Cuba. At Guantanamo, a soldier who spoke German and would become a persistent tormentor said: "Do you know what the Germans did to the Jews? That's what we're going to do to you." Kurnaz spent more than four years in Guantanamo, starting in Camp X-ray, the original temporary cages for inmates, and moving into permanent quarters after they were constructed. Much of his time was spent in isolation cells. In 2002, he said, he was moved into a completely closed, airless cell in Camp India, where he spent thirty-three consecutive days in what he describes as an oven. After he was returned to Germany, Kurnaz wrote a book, with the assistance of German journalist and novelist Helmut Kuhn: Funf Jahre meines Lebens: Ein Bericht aus Guantanamo (Five Years of My Life: A Report from Guantanamo). Others have been written, and more will follow. Genre torture narratives will become part of the legacy of the Bush-Cheney administration. It's not Solzhenitsyn. Told in terse, straightforward sentences and laced with mordant humor, Five Years of My Life makes compelling reading. It's being translated into English for an American release scheduled for 2008. American movie rights have also been sold. Asked about his religious practice, Kurnaz said he doesn't go to a mosque anymore. He won't say why. "I still pray," he said. "Not in a mosque." *** Bernhard Docke is a tall, trim, elegant man who works at a small criminal defense law firm a few blocks from the train station in Bremen. In May 2002, Rabiya Kurnaz called him and asked for help. German law enforcement officials had shown up at her home in Bremen and told her they had good news and bad news regarding her oldest son, who had been missing for four months. The good news was that her son was alive. The bad news was that he was in American custody. What followed was a four-year process to free Rabiya Kurnaz's son from what Docke refers to as a "tropical Bastille." (Bruce Fein, a constitutional lawyer who worked in the Reagan administration, uses this historical reference point in his bill of particulars supporting the impeachment of Vice President Dick Cheney. One impeachable offense Fein cites is Cheney's claim of "authority to detain American citizens as enemy combatants on the president's say-so alone, a frightening power indistinguishable from Louis XVI's execrated lettres de cachet that occasioned the storming of the Bastille.") Docke described a desperate mother of a nineteen-year-old who had been told that there was no legal remedy for her son and that he might remain in prison indefinitely, or at least until the American War on Terror was over. Rabiya Kurnaz had been to the American embassy to ask for help and was told to go to the German government. The Germans told her because she and her son were citizens of Turkey she should go to the Turkish embassy. At the Turkish embassy she was told her son's incarceration was an issue that would have to be addressed by the German and American governments. "We were powerless," Docke said. He set out to establish that local law enforcement authorities had no record or criminal dossier that would link Kurnaz to any Islamist terrorist group that would justify his detention. Docke paused. "Nothing," he said. "Nothing justifies detention the way Murat was detained. And nothing justifies torture. You don't torture an innocent person. You don't even torture someone who is guilty." Docke says the German government bears considerable responsibility for failing to act when the American government was torturing his client. "There are laws in Germany," he said. "The government is required by law to act when it is aware of torture." Docke contacted the Center for Constitutional Rights, the New York public-interest law firm and advocacy group that coordinated litigation, recruited lawyers, and ultimately forced the United States Supreme Court to address the Guantanamo detentions. Before Murat Kurnaz was returned home to Germany, Docke would run up a twelve- hundred-hour tab, not including travel and expenses. Not all efforts were compensated, but he got financial support from the CCR, the American Civil Liberties Union, the National Council of Churches, and the British Guantanamo Human Rights Commission, founded and substantially funded by actors Vanessa and Corin Redgrave. "This is not the sort of case you walk away from once you have started," he said. Docke knew his client had no recourse to U.S. courts and could be held in Guantanamo indefinitely. A World War II Supreme Court decision, Johnson v. Eisentrager, had established that enemy combatants held and tried outside the United States have no right to habeas corpus. Guantanamo, although permanently leased by the United States and absent of any suggestion of Cuban civil or military authority, was, by the law and logic of the Bush-Cheney administration, outside the United States. In April 2004, the Supreme Court was scheduled to hear the case that challenged Eisentrager. Docke traveled to Washington with Rabiya Kurnaz. As justices heard the arguments of the lawyers representing Shafiq Rasul and other Guantanamo detainees, Rabiya Kurnaz stood on the steps of the Supreme Court building, holding a large photo of her son and speaking to reporters. The Supreme Court heard two Guantanamo cases that week: the Rasul case, which would provide habeas rights for foreign detainees, and the Hamdi case, which challenged the president's right to declare an American citizen an enemy combatant and hold him indefinitely in a military prison. In June 2004, by a six to three vote, the Supreme Court ruled in favor of the detainees in Shafiq Rasul et al., Petitioners v. Bush, President of the United States, et al. (The justices also ruled against the president in Hamdi v. Rumsfeld.) The doors of American courtrooms were now open to Murat Kurnaz and other detainees at Guantanamo. In a concurring opinion, Justice Anthony Kennedy addressed Donald Rumsfeld and Dick Cheney's transparent fiction that the American base at Guantanamo was part of the sovereign nation of Cuba: Guantanamo Bay is in every practical respect a United States territory and it is one far removed from any hostilities.... In a formal sense, the United States leases the Bay; the 1903 lease agreement states that Cuba retains "ultimate sovereignty" over it.... At the same time, this lease is no ordinary lease. Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long executed over Guantanamo Bay. From a practical perspective the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the "implied protection" of the United States to it. "We immediately filed in district court in Washington," Docke said. The Center for Constitutional Rights recruited Baher Azmy, a law professor at Seton Hall Law School in New Jersey, to represent Kurnaz. Azmy flew to Guantanamo. "When he came to talk to me, I didn't believe him," Kurnaz said of his lawyer's first visit to the prison camp in Cuba. "I thought it was a trick to get information. I told him to go get me some coffee [to prove that he had some authority]. Then he gave me a letter from my mother." In October 2004, the two lawyers finally got Kurnaz's file. "I was shocked when I read through it," Docke said. "There was nothing in the file that justified a yearlong detention. Nothing that justified holding Murat." The interrogation process itself provides an opportunity for an individual to explain that this has all been a mistake. -- -U.S. solicitor general PAUL CLEMENT At Guantanamo, Murat Kurnaz was subjected to hundreds of days of interrogation. He was repeatedly asked if he knew Mohammad Atta, one of the 9/11 hijackers. He was asked what he did with the money he withdrew from the bank in Bremen before he left. He was asked why he sold his cell phone before leaving Germany. He was asked about his imam at the Abu Bakr Mosque. He was asked if he hated nonbelievers. He was asked if he hated his mother. His interrogators revealed their command of much of the detail of his personal life in Bremen and asked him about friends in Germany. He was frequently asked about his association with al-Qaeda. Paul Clement was an assistant U.S. solicitor general when he told Supreme Court justice Ruth Bader Ginsburg that detainees don't need access to federal courts because the interrogations at Guantanamo provide an opportunity to explain that their detention was a mistake. One of the brightest and most accomplished lawyers in the country, who had once worked at Kirkland & Ellis, home to Whitewater prosecutor Kenneth Starr, Paul Clement knows better. Kurnaz's case brings into high relief the perniciousness of Solicitor Clement's argument, which would be laughable if it weren't the sort of courthouse dishonesty that rises to the level of criminality. The interrogation process is designed to extract information, not to provide detainees the opportunity to exonerate themselves. During a protracted interrogation regimen that Guantanamo guards called "Operation Sandman," Kurnaz was subjected to sleep deprivation for a month and intermittently interrogated for hours, sometimes for more than a full day. "I remember that nothing anybody said made sense to me," Kurnaz said. Defendants rarely rectify prosecutors' errors under such circumstances. An exhibit admitted as evidence in one of the federal court cases challenging the constitutionality of the Guantanamo detentions includes a more detailed description of the interrogation process that Paul Clement claims provides detainees the opportunity to clear their names and address prosecutorial errors. An FBI agent writes: On a couple of occassions [sic], I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defacated [sic] on themselves, and had been left there for 18-24 hours or more. On one occassion [sic], the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold. When I asked the MPs what was going on, I was told that interrogators from the day prior had ordered this treatment, and the detainee was not to be moved. On another occassian [sic], the A/C had been turned off, making the temperature in the unventilated room probably over 100 degrees. The detainee was almost unconcious [sic] on the floor, with a pile of hair next to him. He had apparently been literally pulling his own hair out through the night. On another occassion [sic], not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been since the day before, with the detainee chained hand and foot in the fetal position on the the floor. Murat Kurnaz had been subjected to the hot-and-cold interrogation routine described by the FBI investigator. It failed to provide him the opportuity to correct the factual record. Yet in his case, the factual record, or "evidence" that kept him in prison for almost five years, was pretty thin. Much of it was related not to him but to the friend he left at the airport when he left Germany in 2001. And it pertained to a terrorist act that occurred in 2003 while Kurnaz was sweating out life in Guantanamo. American intelligence had tracked Selcuk Bilgin to Turkey and described him as the "Elalananutus suicide bomber" who died when he blew up an Istanbul synagogue in November 2003. It was a shaky foundation on which to build a case. The bombing occurred while Kurnaz was locked up in Guantanamo. Gokhan Elaltuntas, not Elalananutus, died when he detonated the truck he had loaded with explosives. Within days of the bombing, Turkish investigators used DNA to identify Elaltuntas and his accomplice, Mesut Cabuk. And Bernhard Docke had tracked down Selcuk Bilgin in Bremen to interview him exactly one year after the bombing in which American intelligence said he blew himself up in Turkey. Selcuk Bilgin turned out to be a stand-up guy. "This I can say only: I heard the term Elalananutus for the first time on 22 October, 2004. Therefore, I knew nothing about this unknown person," Bilgin wrote in an affidavit Docke transcribed and translated. The report of Selcuk Bilgin's death in Turkey had been greatly exaggerated. The American intelligence that resulted in Murat Kurnaz's detention, torture and incarceration was as sloppy as the spelling of Elalananutus. There was also documented proof that the Command Intelligence Task Force in Guantanamo had concluded Kurnaz's arrest and detention might have been a mistake. Kurnaz's American attorney had seen the evidence he believed would clear his client, but he couldn't discuss it in open court, or with Kurnaz, because it was in the classified section of the file. But Kurnaz's classified file was inadvertently declassified and obtained by The Washington Post. It revealed that not even the interrogators and analysts on the Guantanamo task force believed Kurnaz was guilty: "CITF had no definite link/evidence of detainee having an association with al Qaida or making any specific threat against the U.S.," one document read. "CITF is not aware of evidence that Kurnaz is or was a member of Al Quaeda [sic]." The statement that should have freed Murat Kurnaz had sat in his file since 2002. Kurnaz's lawyer Azmy discovered that German intelligence officers had also interrogated Kurnaz in 2003 at Guantanamo and concluded he had not been associated with any suspect groups or individuals while he was in Germany. They even considered recruiting Kurnaz to work underground in the Muslim community in Bremen but decided he was so unsophisticated and unconnected that he would be of no use as a snitch. Yet on September 30, 2004, a three-member military tribunal had questioned Kurnaz. At the end of a hearing that took less than forty-five minutes, the tribunal reached its conclusion: By a preponderance of the evidence, that Detainee I is properly designated as an enemy combatant.... In particular, the Tribunal finds that this detainee is a member of al-Qaida. In January 2005, Washington, D.C., federal district judge Joyce Hens Green heard Kurnaz's case, along with the cases of ten other detainees. Judge Green decided to review all the evidence, classified and unclassified. She found nothing that justified holding Murat Kurnaz. Among the hundreds of pages used to declare him a member of al-Qaeda, the one hot document included vague allegations made by one unidentified military officer. The judge was disturbed by the fact that Kurnaz, like other detainees, was never permitted to see or rebut the allegations that kept him in a cage in Guantanamo. She devoted seven pages of her seventy-five-page opinion to the government's case against Murat Kurnaz. "Even if all of the unclassified evidence were accepted as true, it alone would not form a constitutionally permissible basis for the indefinite detention of the petitioner," she wrote. Judge Green's ruling wasn't enough to free Murat Kurnaz. Another D.C. district court judge, Bill Clinton appointee James Robertson, ruled as she did. But a third judge, sitting in the same courthouse, handed down a contradictory ruling. Richard Leon, a member of the right-wing Federalist Society appointed to the bench by George W. Bush in 2002, ruled that the tribunal process in Guantanamo was adequate and that detainees were not entitled to access federal courts. The government appealed, and Judge Green's opinion was stayed until an appeals court decided which opinion would stand. Ten months after Judge Green ruled that detainees could not be denied the right of habeas corpus, President Bush signed the Military Commissions Act, which provided a new military tribunal process for detainees at Guantanamo. It included an amendment by South Carolina Republican senator Lindsey Graham that denied detainees the right to habeas corpus. The new law put the appeals of Kurnaz and other Guantanamo detainees on hold until cases worked their way through the new tribunal process back into the courts. It was an election in Germany, and not Judge Green's ruling, that sent Kurnaz home. Angela Merkel had defeated Gerhard Schroeder, Europe's most vocal critic of George Bush's Iraq war. As Merkel was putting together a governing coalition, the German public was disturbed by reports of Germany's participation in the rendition process -- extrajudicial kidnappings by which the CIA moves suspects into countries where torture is practiced or tolerated. Docke and Azmy seized the moment and began a public relations campaign on behalf of Kurnaz. "We told all of Germany that German agents had visited him and interrogated him in Guantanamo," Docke said. "Germans began to ask what their government had to do with keeping Murat Kurnaz in jail." New reports that German agents had flown to Guantanamo were a lot bigger than just one bad-news day in Berlin. The German public has a sensitive gag reflex regarding torture and indefinite detention. It was widely believed that because Schroeder had opposed the Iraq war, he would never allow German collaboration with American renditions or the detention program in Guantanamo. Schroeder had come from behind and won one election by running against Bush's war in Iraq, and he almost did it a second time in 2005, when he narrowly lost to Merkel. After Docke went public with Kurnaz's story, the German parliament began investigating allegations that the United States had offered to return Kurnaz but the "red- green" Schroeder government had said no -- perhaps to keep the lid on reports about German interrogators working in Guantanamo. A week before Christmas 2005, Docke Wrote to Merkel, asking her to approach the U.S. government on behalf of his client. The chancellor responded in three days, then raised the issue with George Bush when she met with him in early 2006. The political planets were in alignment. Bush had been used as a Gerhard Schroeder campaign prop, and Bush's popularity among the German people was on a par with that of Saddam Hussein. The American president shrewdly decided on a gesture of support for the conservative German politician who had rid him of Schroeder. He told Merkel he would begin the process to free Murat Kurnaz. It would take six months to get Kurnaz out of Guantanamo, but Merkel left Washington with the promise that he would be freed. For Kurnaz, there was one final degradation before the plane ride home. A week before he was returned to Germany, an escort squad walked him to an interrogation room, sat him in a chair, and shackled his hands and feet to a large ring on the floor. On a table in front of him was a telephone. A guard told Kurnaz to expect an important phone call. Kurnaz was left alone in the room for several hours. When the phone rang, he was unable to answer it, because he was so tightly shackled. He managed to move the table with his legs, knocking the receiver to the floor. He leaned over and shouted into the receiver, then heard Baher Azmy's voice. "Murat," he said. "You're being freed. You're going home." *** POSTSCRIPT Ten months after Murat Kurnaz was returned to Germany, the new tribunal system put in place by George Bush and Lindsey Graham began to fall apart. In June 2007, two Guantanamo tribunals ruled that two unlawful enemy combatants were not properly designated "unlawful." Both were enemy combatants, but the process for designating them "uulawful combatants" was unclear. Then an Army officer decided he had seen more than his conscience could bear. Lieutenant Colonel Stephen Abraham is an intelligence officer who had served on Combat Status Review Tribunals in Guantanamo. He had also been assigned to review the process of gathering evidence and preparing the prosecution's case against detainees. Abraham, a California corporate lawyer when he isn't an active duty reservist, submitted an affidavit in another Guantanamo case filed in a federal district court. (He is also the grandson of Holocaust survivors.) Abraham described a process in which tribunals were rigged to ensure that detainees were declared "unlawful enemy combatants." Staff reviews of evidence to be used to convict detainees, he wrote, were often limited to checking grammar and spelling, rather than carefully vetting the quality of the intelligence. Behind those reports, Abraham found a system of gathering evidence that relied on junior officers with limited intelligence experience assembling material from "generic" sources that didn't relate to the detainee on trial. Most devastating was Abraham's account of the pressure brought to bear on members of the tribunals to deliver what were essentially guilty verdicts, which would justify indefinite detention. Abraham recounted in detail a tribunal hearing in which he and two other officers ruled there was not sufficient evidence to declare the detainee an enemy combatant. Their commanding officer, a rear admiral, ordered Abraham to reopen the hearing and allow the prosecution to provide further evidence and argument. Soon after the Abraham affidavit provided yet another bad news day for Bush administration defenders of Guantanamo, the Supreme Court spoke to the detention issue. In a rare move that required the votes of five justices, the Court reversed its previously stated "wait and watch" position. There had been no petition for a new hearing on any particular case, and not since the 1940s had the court decided to examine a controversy absent a specific case. The justices announced that they would review the detention and trial process at Guantanamo when the court reconvened in fall 2007. |