This week Jews and Christians celebrate two of their most sacred holidays — Passover, remembering the liberation of Israelites from bondage, and Easter, commemorating Christ’s resurrection from death. In such a season of release and renewal, it seems appropriate for all Americans to contemplate the moral question of torture.
In the next months we will hear this issue debated in our courtrooms and before military tribunals. But as citizens and as human beings we must answer for ourselves the question: Is torture ever justified?
This is a moment of truth for America, and perhaps the most important moment it has ever faced.
The articles in the ollowing special report wrestle with the ethics, the history, and the laws governing torture.
We have all seen the photographs from Abu Ghraib. Most of us have heard that more than 600 detainees have been held at Guantánamo Bay, Cuba, for years without being charged with any crime and that for the first time in our history, the United States has refused to allow its soldiers to follow the Geneva Convention, a wartime code of conduct.
In another April long ago, in the spring of 1945, triumphant allied armies raced toward Berlin — Soviet troops from the east and American and British forces from the west.
Huge numbers of German soldiers, officers, and men, now convinced of Hitler’s defeat, rushed toward the advancing Allies to surrender. They all went in one direction — west. They knew that if they were captured by American soldiers they would be treated as human beings.
In many ways, it was the greatest honor America received in World War II. Will our nation, our government, our citizens ever be accorded such an honor again? — Marianne Partridge
BAGHDAD, IRAQ – OCT. 28 An Iraqi detainee screams “Allah” while tied down in a “human restraint chair” at the maximum security section of the Abu Ghraib Prison October 28, 2005 on the outskirts of Baghdad, Iraq. His jailers, U.S. Army military police, said that he was being punished for disrespecting them, and that he would spend two hours in the chair as punishment. The suspected insurgent, a juvenile, had earlier been moved to the maximum security section of the prison for 30 days for attacking a guard in another section of the facility.
Pear Tree: Is Torture Ever Justified?
As an investigator for human rights organizations, Eric Stener Carlson has spent a lifetime pondering the reality of torture. He has interviewed victims of the Serbian rape centers, exhumed and identified bodies of Argentina’s Disappeared, and assessed prison conditions of alleged terrorists throughout Peru. In this excerpt of his most recent book, The Pear Tree, Carlson, who holds a doctorate in political science from UCSB, attempts to honestly answer a most complicated question: Is torture ever justified?
We civilians are usually not the ones who commit torture. Rather, driven by the fear that our children may be harmed by what I call “The Stranger” — call him rapist, terrorist, or revolutionary — we authorize our soldiers and police to do whatever they can to protect them, to protect us. Sometimes this authorization is tacit, and, as long as the State achieves results, we — people from all walks of life, under democracy or dictatorship — turn a blind eye. Sometimes this authorization is explicit, and we demand that they extract an eye for an eye. Either way, our leaders often fan this fear in us, and they capitalize upon our nightmares to pursue their own agendas.
My foundational work in the study of torture was the Argentine “Dirty War” in the late 1970s, a study that led me to the mass graves, to exhume and identify bodies of the “disappeared.” Although some would deny it now, many Argentines greeted the overthrow of democracy in 1976 with jubilation. Finally, finally, someone was going to do something about the Communist subversives, the terrorists, the left-wing kidnappers.
And the military did do something. They did kill the revolutionaries who were threatening the stability of Argentina and the security of their children.
And then the soldiers tortured and killed labor union leaders who did not agree with their new economic plan. And then they raped and murdered schoolchildren who protested for subsidized bus passes. And then they kidnapped the librarians who shelved books they considered subversive, and they drugged and dumped into the sea anthropologists and psychologists and priests whose thoughts and prayers they believed were subversive, too. And, as the soldiers cattle-prodded pregnant women, and as they stole their babies to raise as their own, many Argentines whispered under their breath “por algo será” —“they must have done something”— to deserve being brutalized. In the midst of this butchery, common citizens turned up the volume of their radios, so as not to hear the screams of their neighbors being dragged away.
In country after country, we have seen the Argentine experience repeated with such consistency that we must cease to consider it “Argentine” and realize it is universal. The Nazis “invented” disappearances in the 1940s, the French used torture in Indochina and Algeria in the 1950s and 1960s, and U.S. troops have recently — and proudly — filmed themselves sexually assaulting prisoners in Iraq …
It’s a simple truth that most acts of torture are committed by States — by their agents or their proxies — in pursuit of their own ends, instead of by parents pushed by extreme events. Indeed, if we follow the letter of international law, torture — let us call it “certified” torture — can only be committed by States. According to Article 1 of the 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, “the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person … when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
This prohibition against States employing torture is so deeply entrenched in customary international law that it falls under the category of jus cogens, meaning there is no greater class of prohibition. Torture, like slavery and genocide, is something so forbidden, so dishonorable for a soldier to engage in, that, even in times of total war, there is no legally acceptable excuse for it, ever. No justifiable situation. No escape clause.
Yet, regardless of the weight of this prohibition, regardless of the fact that the overwhelming majority of religions, cultures, and national legal systems throughout the world openly condemn this practice, a number of States do, indeed, torture. This is the case, sadly and shamefully, of the United States in its recent “War Against Terror.” As a report from Human Rights Watch notes,
The recent capture of high-ranking Al Qaeda suspects has rekindled a debate in the United States about whether torture is or should be used during their interrogation. Many Americans — including, apparently, U.S. officials — are unaware of the absolute, unequivocal prohibition against torture or other cruel, inhuman, or degrading treatment of any person, including terrorist suspects. The right to be free from such mistreatment is one of the most fundamental and unequivocal human rights. As the United States confronts terrorism, legitimate national security needs, public anxiety, and the desire for retribution may give rise to the temptation to sacrifice certain fundamental rights.
In this last sentence of the excerpt above, we see those two pressurized streams, so integral to the Argentine Dirty War, converge once more: “national security needs” and “public anxiety.” Certainly, there are real threats to our security. Certainly, there are terrorists, and we must stop them and kill them, if need be. However, in the face of this reality, the U.S. government plays upon our anxiety, continually ratcheting up the threat levels, forever implying a “dirty bomb” is about to be detonated in the United States. Our leaders characterize prohibitions under international law as a coddling of terrorists, to such a point, I now fear, that U.S. public opinion regarding torture is alarmingly close to “por algo será.” Do we torture in Iraq and Afghanistan and Guantánamo Bay? “Well, they must deserve it,” seems to be the response of a good many people. That is because we believe “our government knows what it’s doing.”
Indeed, I do believe the government knows what it’s doing. While I accept the thrust of the Human Rights Watch report, I do disagree on one point: U.S. officials cannot possibly be unaware of the prohibition against torture. As a result of Eleanor Roosevelt’s unwavering vision, we helped draft the United Nations’ Universal Declaration of Human Rights, Article Five of which proclaims, “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” In the 1940s, we judged Nazi torturers at Nuremburg. In the 1990s, we judged Serb torturers in The Hague. And, ever since the violations we committed in the Vietnam War, we have placed such emphasis on soldiers’ respect for the Geneva Conventions, I can only assume that, when our troops tortured in the Abu Ghraib prison in Iraq, this was the result of a wider policy, either of omission or commission.
In the end, no matter how hard States try to bend international law, if they want to torture, then they either have to do it in such extreme secrecy so that we never find out, or they must convince us it is something good …
In a time when lawyers and soldiers, politicians and even presidents support the use of torture, the only hope is that you and I, our mothers and our fathers, our next door neighbors and our friends, reject torture, reject it for what it really is — the most demeaning, degrading, and dishonorable act we could ever commit as human beings. If we reject torture, not because the law tells us to, or because our spiritual or political leaders advise us against it, but because we feel it in our bones, in our hearts, in our homes, then we may be able to rescue, among all this human misery, the very best in ourselves …
It’s awfully tempting to imagine how we could have prevented those deaths on September 11th with one act of torture. But how far would that — still unacceptable act — be from the acts we committed at Abu Ghraib and Guantánamo Bay and at all the other places we haven’t heard about yet? How far is it from forcing men into cages, stripping them naked, making them masturbate each other? How far is that from jeering at their naked, bloody bodies while they defecate themselves?
This “War Against Terror” is much like the French Revolutionary Warfare doctrine of the 1950s and ’60s and the U.S. National Security Doctrine of the 1970s and ’80s, both of which fortified the Argentine military in its method of mass torture and disappearances. It formalizes, authorizes, and legitimizes our most prohibited desires to demean and to degrade, to rape and to defile, all in the name of our children, all in the name of protecting them. And, yet, how many of us would want some soldier from some other country to use any one of those “interrogation” methods listed above on our son — to strip him, sodomize him, make him perform oral sex on his childhood friends, and then parade him around on a dog leash to be photographed for his family and all the world to see? Does that make up for the thousands dead in New York? Does it make us feel any safer?
Excerpted from The Pear Tree: Is Torture Ever Justified? by Eric Stener Carlson, published in 2006 by Clarity Press, Inc. Visit: www.claritypress.com or call (800) 729-6423.
Is this torture?
U.S. Interrogation Techniques According to Amnesty International, U.S. troops are alleged to have used, or been authorized to use, the following interrogation techniques against men, women, and children in their War against Terror: • Abduction • Death threats • Dietary manipulation • Dogs used to threaten and intimidate • Dousing in cold water • Electric shocks, threats of electric shocks • Excessive and cruel use of shackles and handcuffs, including “short shackling” • Excessive or humiliating use of strip searches • Exposure to weather and temperature extremes • “False-flag” (making a detainee think his interrogators are not U.S. agents) • Forced shaving (of head, body, or facial hair) • Forcible injections • Forced physical exercise • Hooding and blindfolding • Humiliation (forced crawling, forced to make animal noises, etc.) • Immersion in water to induce perception of drowning • Incommunicado detention • Induced perception of suffocation or asphyxiation • Isolation for prolonged periods (months or more than a year) • Light deprivation • Loud music, noise, yelling. • Photography as humiliation • Physical assault (beating, punching, kicking) • Prolonged interrogations (20 hours) • Racial and religious taunts, humiliation • Religious intolerance (disrespect for Koran, religious rituals) • Secret detention • Sensory deprivation • Sexual humiliation • Sexual assault • Sleep adjustment • Sleep deprivation • Stress positions (prolonged forced kneeling and standing) • Stripping • Strobe lighting • Threats of reprisals against relatives • Threat of transfer to third country to inspire fear of torture or death • Threat of transfer to Guantánamo • Threats of torture or ill-treatment • Twenty-four-hour lighting • Withdrawal of “comfort items” • Withholding of medication • Withholding of food and water • Withholding of toilet facilities, leading to defecation and urination in clothing
The above list is quoted textually from Amnesty International, “Human rights not hollow words: An appeal to President George W. Bush on the occasion of his re-inauguration,” (January 19, 2005). It appears on Amnesty International’s Web site, amnestyusa.org.
BAGHDAD, IRAQ – OCT. 27: Suspected foreign insurgents stand inside their pen in the Abu Ghraib Prison October 27, 2005, which is located on the outskirts of Baghdad, Iraq. With the continued arrests of suspected insurgents across Iraq, the population of prisoners at Abu Ghraib has grown to almost 5,000 in 2005. There are about 12,000 suspected insurgents currently under U.S. military custody nationwide, according to military officials.
by Nick Welsh In the four years since President George Bush declared war on global terrorism, Americans have experienced a ferocious public debate balancing national security against individual rights and constitutional values. Nowhere have these issues been crystallized more than in the eight-by-seven foot holding cells at Guantánamo Bay, the United States’ naval base in western Cuba. Here, the revolutionary legal theories espoused by the Bush administration quickly collided with bedrock American ideals and laws. Most contentious is the government’s insistence that people captured in Afghanistan and Iraq are not prisoners of war, but something it calls “enemy combatants.” As such, neither the prisoners nor the U.S. military holding them are subject to the Geneva Convention, the code of wartime conduct signed by the United States in 1949. The Convention allows prisoners to be held for as long as the war continues, but guarantees them humane treatment.
Since Guantánamo is in Cuba, the administration also insists detainees be denied due process, the constitutional protection afforded to citizen and non-citizen alike who are imprisoned in the United States. In their legal twilight zone, the detainees have been held without charge or access to counsel. Through most of human history, such unfettered state power has been a fact of life. But for the past 200 years, U.S. citizens have had reason to believe their government operated differently. George Bush is hardly the first president to shake that belief. His vision of unchecked executive authority, however, is genuinely unprecedented. Now the nation is facing a constitutional showdown of historic proportion, pitting the executive branch — and to a lesser extent Congress — against the prerogative of law and the rights of individuals. And it all started at Guantánamo Bay.
Guantánamo Facts: • In 1903, the United States acquired rights to 45 square miles on the western tip of Cuba as part of the settlement of the Spanish-American War. Since then, its deep-water port has remained a U.S. naval station, even after Fidel Castro came to power in 1958.
• The base was first used as a detention facility in 1991 when thousands of Haitian boat people fled a violent military coup for the U.S. Then president George H. W. Bush ordered the refugees intercepted and detained at Guantánamo. Human rights advocates sued to prevent indefinite detention. Though the government contended that constitutional protections did not apply because Guantánamo is on Cuban land, a federal judge disagreed. By January 1996, the refugee camps were closed.
• On January 11, 2002 alleged Taliban and Al Qaeda fighters were brought to Guantánamo for interrogation. Vice President Dick Cheney called them “bomb makers” and “facilitators of terror.” Defense Secretary Donald Rumsfeld called them “the worst of the worst.” But a review of the combat status assessments of 517 Guantánamo detainees, released last year by Seton Hall University School of Law Professor Mark Denbeaux, concluded only eight percent of the detainees were classified as actual Al Qaeda warriors; 55 percent had committed no hostile act against the United States or its allies; five percent had been captured by American troops; and 86 percent had been turned over to American authorities by Pakistani forces or Afghani warlords, some of whom were bounty hunters.
• The Pentagon recently reported that more than 187 detainees have already been released, and 123 are scheduled to be released soon. Of the nearly 600 detainees at Guantánamo, only 10 have been charged with war crimes.
• By 2003, inmates were moved to a $12 million facility where they are allowed out of their small concrete cells twice a week for bathing and exercise. Each cell comes with a copy of the Koran and an arrow pointing to Mecca.
• By 2004, 300 interrogations were held weekly, as base commanders were pressured to produce “actionable intelligence.”
• In late 2002, Marine Commander Geoffrey Miller took charge of Guantánamo. He quickly refocused a program training American soldiers to withstand torture, ordering the psychiatric staff to develop interrogation methods for enemy combatants. The techniques used at Guantánamo included hooding the prisoners, subjecting them to noise bombardment and sleep deprivation, exposing them to extreme temperatures, interrogating them for 30-hour durations, dunking bound men in water until they believed they were drowning, and subjecting them to spiritual and sexual humiliation.
• In October 2003, Miller was transferred from Guantánamo to Abu Ghraib in Iraq. In May 2004, published photographs showed violent interrogations and sexual humiliation of prisoners. Pentagon officials initiated court martial proceedings against a few enlisted military personnel calling them aberrations.
• The International Red Cross — one of the few organizations with access to prisoners — concluded in 2004 that some of the interrogation techniques practiced at Guantánamo were “tantamount to torture.”
• In December 2004, the U.S. Supreme Court rejected administration arguments that constitutional safeguards do not apply at Guantánamo, deciding instead that since the United States controlled the naval base, the rules of due process must apply. Left unresolved was whether the military tribunals met the standards of a fair trial.
• In June 2005, Senator Dick Durbin (D-Illinois) read from the Senate floor a scathing denunciation of prison conditions at Guantánamo, including an FBI report detailing prisoner abuse there. But when Durbin compared American treatment of its prisoners to that of Hitler, Stalin, and Pol Pot, he sparked a firestorm of criticism. One week later, he apologized.
• The same summer, international criticism of Guantánamo escalated when recently released detainees claimed widespread prisoner abuse, hunger strikes, forced feeding, and increased suicide attempts. The Pentagon denied the charges, saying those ex-detainees were trained by Al Qaeda to make false accusations.
• In early 2006, after United Nations inspectors demanded unfettered access to prisoners and the U.S. balked, the UN declared Guantánamo an American Gulag, and demanded its closure. The Bush administration dismissed the charges as absurd.
• In December 2005, President George W. Bush signed the Detainee Treatment Act, pushed through by Republican Senator John McCain. Vice President Dick Cheney heavily lobbied Congress to drop the bill. Failing that, South Carolina Senator Lindsey Graham powered through an amendment barring new detainees at Guantánamo from due process.
• In spring 2006, Pentagon officials claimed their interrogation techniques helped obtain information from Mohammed al Qahtani, described as the 20th hijacker in the September 11 attacks. Qahtani described how Osama bin Laden avoided capture and how Al Qaeda members cross borders undetected. Qahtani was subjected to a multitude of interrogation methods in a 50-day period: His head and beard were shaved; he was placed in isolation for 30 days; and he was stripped naked, forced to stand nude, poked and cuffed, and kept awake by recorded music of Christina Aguilera blasting in his cell. A photo of a 9/11 victim was taped to his trousers and aggressive female interrogators hung pictures of scantily clad women around his neck.
• In March 2006, the Pentagon released 5,000 pages of documents, detailing the combat status evaluations of 186 detainees.
• On April 3, 2006 the Supreme Court heard oral arguments on whether the Guantánamo military tribunals qualify as due process according to constitutional standards. Prior to the hearing, Justice Antonin Scalia ridiculed the idea that enemy combatants were entitled to a fair hearing, yet refused to excuse himself from the hearing. During the hearing, many justices expressed serious skepticism about administration arguments.
• On April 6, Canadian-born prisoner Omar Khadr, charged with killing an American soldier in Afghanistan with a hand grenade, claimed he’d spent only two hours with his attorney, had not been allowed to examine government evidence, and had been transferred to solitary confinement shortly before the tribunal was to begin. Efforts by Khadr’s attorney, Lt. Col. Colby Vokey, to disqualify the presiding magistrate on the grounds that he’s seeking to be appointed an immigration judge by the Bush administration, failed.
Outside the Law
An Attorney’s Account of Life at Guantánamo by Melissa Hoffer As a corporate attorney specializing in environmental law, Melissa Hoffer hardly expected her job would carry her to Cuba to meet with alleged enemy combatants. But when the Center for Constitutional Rights — a nongovernmental organization in New York — contacted Hoffer’s firm in 2004, seeking attorneys to represent six Bosnian men held at Guantánamo Bay, Hoffer was immediately drawn into the case. After learning that these men had been imprisoned, investigated, and ordered released by the Bosnian government before the U.S. took them into custody, she and 19 lawyers from Wilmer Cutler Pickering Hale and Dorr — a large firm in downtown Boston — got right on board.
The following piece is excerpted from a speech Hoffer gave at Le Memorial de Caen in Caen, France at the 17th Concours International de Plaidoiries, a conference at which lawyers from around the world present cases of human rights violations. The information in Hoffer’s speech is based on declassified notes from meetings with her clients. “Every time someone hears this story, they are shocked and upset,” Hoffer said. “This is not what America is about.” To see a video of the full speech, go to memorial-caen.fr/portail/concours/index.asp.
Four-and-a-half years ago, Mohamed Nechla, Lakhdar Boumediene, Hadj Boudella, Belkacern Bensayah, Saber Lahmar, and Mustafa Ait Idir were living ordinary lives in Bosnia-Herzegovina. Mohamed and Lakhdar worked with children orphaned in the civil war. Mustafa repaired computers and provided technical support services. Saber and his wife were expecting a child.
In October 2001, their lives were shattered when the U.S. insisted that Bosnia arrest the six men — all Muslims of Algerian descent — based on unfounded U.S. allegations that they were involved in a plot to bomb the U.S. Embassy in Bosnia. One by one, each man was taken into custody. As news of the arrests filled Bosnian media, not one fled. The men spent three months in jail while the federal prosecutor investigated the charges. No stone was left unturned — investigators searched computer files, phone records, questioned witnesses and the men. Finally, the federal prosecutor recommended to the Bosnian high court that the six be released. He had identified no evidence to justify their detention. The high court agreed, and ordered their release.
Despite this order, the U.S. placed tremendous pressure on Bosnians to turn over the six to U.S. custody, threatening to withdraw support if Bosnia failed to comply. As the six were released from jail in Sarajevo on January 18, 2002, they were turned over to nine soldiers and then hooded, handcuffed, and jammed into waiting vehicles. The huge crowd of community members that had gathered to protest the seizure tried to prevent the cars from passing; wives strained to catch glimpses of their husbands.
As Mohamed Nechla tells it, the six were taken to an airport and handed over to the Americans, who removed Mohamed’s hood, placed sensory-deprivation goggles on his eyes, a mask on his mouth, and coverings over his ears. The pain from the extremely tight wrist restraints was excruciating. He cried, “My hands!” His hands and arms grew numb. He was placed in a seated position on the floor of the plane. If he slumped or fell, he was slammed back upright by soldiers. The flight lasted several hours. When the plane landed, they were in an extremely cold place. Mohamed believes it was Turkey or Germany. There were dogs barking very close to him. He was terrified they would bite or attack him. They boarded a second plane. Mohamed’s hands were still in pain. The trip lasted many hours. Before the plane landed, he was given an apple — the only food he received during his nearly two-day journey.
After the plane landed, he was painfully dragged to a bus by his biceps. Soldiers repeatedly screamed, “Don’t move! Don’t talk!” When the bus stopped, Mohamed was pulled down the boarding stairs. He was dragged to a gravel area and placed in a painful position, with his legs straight out in front of him, shackled, and his wrists still shackled. Soldiers screamed insults about him and his family. A soldier punched his head. The intensely hot sun pounded down on him. He fainted. A soldier shoved him upright. A long time passed. He began to have difficulty breathing through the mask and felt he was going to suffocate. He cried out for help. A soldier snapped the mask against his face. He began to cry. Mohamed had arrived in Guantánamo.
Indefinite Detention After the U.S. Supreme Court’s landmark decision in Rasul v. Bush to grant Guantánamo prisoners the right to bring claims of habeas corpus in U.S. courts, I and a team of lawyers at my firm filed habeas petitions for the six. In fall 2004, the U.S. government moved to dismiss all the habeas petitions filed on behalf of Guantánamo prisoners, arguing they had no rights that could be vindicated on habeas — that Rasul had been an empty promise, allowing access to the courts for the sole purpose of dismissing the petitions on the grounds the prisoners had no rights. Although the pending cases were before federal Judge Joyce Hens Green of the District of Columbia, my case and one other were pulled back for decision to Judge Richard Leon — a recent President Bush appointee — the judge to whom they had originally been assigned. In January 2005, Judge Leon ruled against us, agreeing with the U.S. government that Guantánamo prisoners have no rights under the Constitution or any international law. A few weeks later, Judge Green ruled in favor of the prisoners, maintaining they had fundamental due process rights, and those had been violated. Both rulings are on appeal to the U.S. Court of Appeals for D.C.
While the litigation drags on, the Bosnians have been held at Guantánamo for more than four years as alleged “enemy combatants.” They have never been charged with a crime. The U.S. maintains Guantánamo prisoners are not protected by the Geneva Conventions and that Guantánamo is beyond the reach of U.S. law. In so doing, the U.S. has attempted to create a new category of human beings wholly exempt from the protection of any law.
The U.S. position is that it may seize anyone, anywhere, at any time, if there is reason to believe that person is an “enemy combatant” — someone who is part of or “supporting” (even unwittingly) Al Qaeda, the Taliban, or forces “associated” with these groups. The global dragnet cast by this definition is so broad that an attorney for the U.S., arguing before Judge Green in December 2004, admitted it would include a little old lady from Switzerland who gave money to an Afghan charity organization that — unbeknownst to her — funneled the contribution to Al Qaeda.
Once seized, the men may be held as long as the War on Terror lasts — a potentially lifelong sentence — without ever being charged with a crime. They are not permitted to see or speak to their families. Letters are heavily censored. They are routinely tortured during interrogations as a means of enforcing camp discipline, disorienting their minds, and degrading their humanity.
Inhuman Treatment Shortly after arriving at Guantánamo in early 2002, Lakhdar Boumediene was subjected to a 13-day period of extreme interrogation and near total sleep deprivation. He was interrogated from midnight until 5:00 a.m., and for several hours during the day. After interrogations, he was returned to his cage, his wrists shackled and his feet shackled to an anchor on the floor. Several times, while incapacitated in this position, guards repeatedly lifted him up and threw him to the floor. When I first met him in May 2005, he showed me a scar on his knee from one such incident.
His captors threatened to send him to Jordan where “they could make him talk” and to a U.S. prison where he would be raped. They threatened to shave his beard and apply lipstick to him. He was violently choked by a Jordanian interrogator. Each time Lakhdar made a request, he was told to ask his interrogator. Access to medical treatment was granted or denied based on the interrogators’ assessment of his cooperation. In April 2005, my colleagues and I filed a Freedom of Information Act (FOIA) suit seeking records concerning our clients’ treatment at Guantánamo. As a result, the U.S. produced thousands of documents, including one confirming medical personnel involvement in interrogation. Lakhdar has been interrogated between 100 and 200 times.
Our clients have been severely beaten, and two spent 15 months in solitary confinement. On one occasion, Mustafa Ait Idir was alone in his cell when guards said they wanted to search it. They instructed him to sit on the floor, and secured his hands behind his back. They slammed his body and head into the steel bunk. They threw him on the floor, pounding his body and banging his head into the floor. They banged his head on the toilet. They stuffed his face down the toilet and repeatedly pressed flush. Mustafa feared he would drown. The guards carried him outside and threw him on the ground. They held him down and stuffed a garden hose into his mouth. They opened the spigot. Mustafa began to choke. He could not breathe. The guards took the hose out of his mouth and sprayed his face. This violent assault was wholly unprovoked.
In early 2004, Guantánamo guards undertook a systematic effort to interfere with certain prisoners’ ability to worship as Muslims by removing their pants. Muslim men cannot pray without pants. The Immediate Response Force (IRF) — a riot squad frequently called upon to subdue and intimidate prisoners — was present, as were several U.S. military officers. When guards approached Mustafa for his pants, he explained he needed them to pray, and begged the guards not to take them. The IRF members sprayed him in the face with chemical irritant, and one squeezed his testicles until he fell to the ground. They repeatedly jumped on his body. They secured Mustafa’s hands behind his back, and one IRF member slowly bent one of his fingers back until it broke. The pain was excruciating, but he did not scream for fear the beating would continue. He was refused medical attention.
A few days later, guards again came to search his cell. An officer ordered Mustafa to sit on the floor with his hands behind his back, which he did. The officer sprayed chemical irritant into his face. Two or three guards entered the cell. One forced Mustafa’s body onto the steel floor and jumped on his back. The second guard did the same thing. They secured his hands behind his back, carried him outside, and threw him onto the gravel. An IRF member jumped on his head. After this beating, half of Mustafa’s face was paralyzed for several months. He was in constant pain. When he tried to eat, food and liquid leaked from his mouth. Guards mocked him. He continues to experience pain.
These are only a few examples of the torture and inhuman treatment my clients have endured while being held without charge at Guantánamo. These incidents are corroborated by numerous similar incidents observed by FBI agents at Guantánamo, as documented in records produced in FOIA litigation brought by the American Civil Liberties Union and witnessed by former U.S. military personnel.
My clients do not understand why they are being held. The high court of their country ordered their release. The Bosnian government has publicly stated its willingness to repatriate them. They struggle to maintain sanity, composure. They long for their families.
The Lesson of Guantánamo I did not know what to expect the first time I visited them. I knew they had been held under extremely difficult conditions. I tried to place myself in their shoes, and wondered if they would trust me, a citizen of the country that had, in a matter of hours, torn their lives apart and stolen years which cannot be replaced. Maybe they would think I was just another interrogator. But when I greeted them each separately in the small cells allotted for lawyers to meet with prisoners, each welcomed me, smiled, and thanked me. Their graciousness and warmth was overwhelming; I found myself pressing back tears I had not expected. Toward the end of my stay, one of the guards told me Mohamed wanted to speak with me again. He had already been placed behind the barred portion of the cell, and I had to stoop to speak with him from the other side of the barrier. At the end of our conversation, he held up his palm to the wire, and I did the same.
Guantánamo is devoid of living things. The ground is covered in gravel. The cells are housed in brown sheds, surrounded by a chain-link fence topped with razor wire. The trust and strength of character these men have shown is a wave wearing down rock over time; it is a single blade of grass, somehow managing to grow among Guantánamo gravel. If we extinguish that humanity with lawlessness and cruelty, we extinguish hope for the future of humankind. For when we causelessly take away a person’s freedom, we erode our own. But as we join with others around the world fighting unjust imprisonment and torture, we honor and preserve our humanity. This is the lesson of Guantánamo.
Understanding Habeas Corpus
“Give us the body, so we can examine it.” Fundamental to American and British jurisprudence, habeas corpus is the ancient legal principle that prohibits state authorities from detaining citizens indefinitely without bringing charges against them. Latin for “Let us have the body, so we can examine it,” habeas corpus guarantees that those held by the state will have their day in court. Legal scholars suggest that habeas corpus predates the Magna Carta of 1215, which established the rule of law as a significant counterforce to the caprice of kings. By 1679, the rule of law had been so abused during the preceding centuries of political upheaval in the British Empire that Parliament felt compelled to pass a new law, requiring charges be filed within three days of a prisoner’s detention.
The right of habeas corpus was so vital to early American thought that it was written directly into the body of the United States Constitution, rather than later amendments; habeas corpus, then, trumped such essential human rights as the freedoms of speech and religion and the right to bear arms. According to the nation’s founders, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it.”
During the last two-plus centuries, habeas corpus has been bent and ignored but only once has it been officially suspended by the government. During the anti-draft race riots that erupted during the Civil War, President Abraham Lincoln in 1862 formally suspended habeas corpus and ordered martial law, authorizing mass arrests and indefinite detention of draft dodgers. The Supreme Court later ruled that only Congress, not the president, had the authority to suspend habeas corpus. However, amid the anti-communist hysteria that followed World War I, the Justice Department rounded up scores of immigrants and shipped them back to their native lands without due process. During World War II, 110,000 Japanese and Japanese-Americans living in California were forced into internment camps and held without being charged until the war’s end. Traditionally, the benefits of habeas corpus were conferred upon citizen and non-citizen alike. But in 1996, with the passage of the Antiterrorism and Effective Death Penalty Act, Congress greatly restricted the habeas corpus protections afforded to immigrants who entered the country illegally, making it easier to obtain deportation orders without judicial review; late last year, Congress inserted fine print into the Detainee Treatment Act that would effectively deny habeas corpus protections to future prisoners held at Guantánamo Bay. —Nick Welsh
What GovernsTorture and Dentention in America In June 2004, the Center for Constitutional Rights rejoiced when the Supreme Court ruled in its favor that Guantánamo detainees may challenge the lawfulness of their detentions through habeas corpus claims in U.S. courts. As a result of that case — Rasul v. Bush — many of the approximately 600 Guantánamo prisoners filed habeas petitions. Also in June 2004, the Supreme Court held in Hamdi v. Rumsfeld that a detainee is entitled to a fair process to determine whether he was a so-called enemy combatant.
To satisfy the Supreme Court’s demand of due process for the detainees, the Pentagon unveiled Combatant Status Review Tribunals (CSRTs), in which three military officers review prior enemy combatant determinations made by their superiors. Evidence obtained through torture and hearsay is admissible, and detainees have no right to legal counsel or access to secret evidence used against them.
In 93 percent of cases, these tribunals confirmed the detainee’s enemy combatant status. And 32 of the 38 reviews in which a detainee was not deemed an enemy combatant occurred right after a federal judge ruled the CSRT process was unconstitutional in January 2005. As part of their pending appeal, attorneys for the U.S. used these cases as evidence of CSRTs’ fairness. Attorneys representing Guantánamo prisoners — including Melissa Hoffer’s team — await the ruling on the appeal, which will also determine whether detainees are protected by constitutional rights, the Geneva Conventions, and international laws prohibiting arbitrary detention. Any ruling will likely be appealed to the Supreme Court.
Meanwhile, in December 2005, Congress passed the Detainee Treatment Act (DTA), whose constitutional scope is hotly contested. Government lawyers argue it strips Guantánamo prisoners of the right to challenge any aspect of their detention, effectively overturning Rasul. The DTA is better known for the McCain Amendment, which prohibits the cruel, inhuman, or degrading treatment of prisoners. Ironically, the same law that prohibits torturing Guantánamo detainees makes it impossible to enforce that law. Shortly after the DTA was passed, the Bush administration moved to dismiss all petitions filed on behalf of Guantánamo detainees, arguing that the section of the DTA stripping prisoners of the right to habeas corpus applies to all pending cases. Detainees’ lawyers fiercely opposed this retroactive reading of the DTA, and it is under review by the Supreme Court. — Hannah Tennant-Moore
Web Resources To learn more about human rights abuses in the War on Terror, check out:
» cageprisoners.com » thememoryhole.org » scotusblog.com and jurist.law.pitt.edu (for legislative updates) » truthout.org » amnestyusa.org/stoptorture » historiansagainstwar.org/resources/torture » irregulartimes.com/torturehome » democracynow.org online articles by New Yorker writer Jane Mayer
4•1•1 Amnesty International and the American Civil Liberties Union is slated to present “Torture and American Practice,” on Tue., Apr. 25 from 7-9pm at the Faulkner Gallery in the downtown library. Eric Sears of Amnesty’s Denounce Torture initiative and Michael Rapkin — a Santa Monica attorney representing a Guantánamo detainee — will speak.