- In concluding last month that prisoners held on the Guantanamo
naval base in Cuba have the right to challenge their detention in federal
court, the U.S. Court of Appeals for the Ninth Circuit focused on the question
of Guantanamo's legal status. Much of the court's long and scholarly opinion
is taken up by a close examination of the terms of the 1903 lease agreement
between the U.S. and Cuba, their meaning in Spanish, their interpretation
in analogous treaties, and other fairly technical minutiae.
-
- But a few phrases that lie near the end of the majority
opinion grab the reader's attention. According to the government's stated
position in the case, the detainees have absolutely no legal right to question
U.S. actions on Guantanamo. Federal court jurisdiction should be foreclosed,
government counsel insisted during oral argument before the Ninth Circuit,
even if the plaintiffs were to claim that their captors were committing
"acts of torture" on Guantanamo or were "summarily executing
the detainees."
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- The government's assertion that torture and summary executions
might be carried out without recourse to the law clearly shocked the court.
Reminiscent of Argentina's "dirty war" or the Soviet Gulag, the
notion of a legal vacuum in which abuses can be freely committed hardly
squares with American constitutional traditions. Indeed, the court emphasized,
"to our knowledge, prior to the current detention of prisoners at
Guantanamo, the U.S. government has never before asserted such a grave
and startling proposition."
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- This term, more than two years after the September 11
attacks, the Supreme Court is grappling with some of the most fundamental
issues raised by the Bush Administration's response to terrorism. The Court's
upcoming rulings will help define the limits of the government's power
to detain, interrogate, and -- as the Ninth Circuit's recent opinion suggests
-- potentially mistreat prisoners in its custody.
-
- These issues are of enormous importance. And how the
Supreme Court decides them will be a telling indicator of its commitment
to enforcing the rule of law.
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- Guantanamo, Moussaoui, and the Detainees
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- In practical terms, the Ninth Circuit's decision in the
Guantanamo case can be viewed as advice to the Supreme Court on how it
should rule. In November, the Court already agreed to hear a separate case
involving detainees on Guantanamo, one that raises all of the same issues.
The Court will, in its upcoming decision, no doubt discuss the arguments
set out in the Ninth Circuit's ruling, as well as those set out in a contrary
decision issued earlier in 2003 by the U.S. Court of Appeals for the D.C.
Circuit.
-
- The Court may also, within the next year, decide whether
to review the case of Zacarias Moussaoui. Although the U.S. Court of Appeals
for the Fourth Circuit has not yet issued a decision in that case, its
ruling will be controversial and important whether it favors the government
or the defendant. Like the Guantanamo case, the Moussaoui appeal raises
critical questions about the government's power to detain and interrogate
terrorist suspects in the absence of any legal process or court review.
-
- The detainee issue arises in the Moussaoui case because
the defendant claims that Al Qaeda leaders in U.S. custody abroad could
confirm his lack of involvement in the September 11 plot. According to
Moussaoui, these high-ranking captives, among them Khalid Shaikh Muhammad,
could offer crucial exculpatory testimony in his defense.
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- While the legal issues overlap to some extent, there
is an important factual difference between the detainees under scrutiny
in the Moussaoui case and those detained on Guantanamo. Even though the
government told the Ninth Circuit that the courts should have no power
even to review claims of torture committed on Guantanamo, there is no reason
to believe that physical coercion is actually being employed there. None
of the detainees who has been released from Guantanamo has made credible
claims of serious physical abuse.
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- "Hungry, Frightened, and Tormented"
-
- Reports on the treatment of the detainees at issue in
the Moussaoui appeal - those possibly held at the CIA interrogation center
at Bagram Air Base in Afghanistan, on the island of Diego Garcia, and in
"undisclosed locations" in foreign countries - are more worrying.
Granted, government secrecy has meant that hard facts about U.S. interrogation
techniques are scarce. But anonymous official sources have leaked information
to the Washington Post about ill-treatment and coercion, even practices
that skirt the boundaries of torture.
-
- In an article published in the October 2003 issue of
the Atlantic Monthly, titled "The Dark Art of Interrogation,"
journalist Mark Bowden set out these techniques in detail. Based on his
interviews with military and intelligence officials, Bowden described the
interrogation of Khalid Sheikh Mohammed in the following terms: "He
would most likely have been locked naked in a cell with no trace of daylight.
The space would be filled night and day with harsh light and noise, and
would be so small that he would be unable to stand upright, to sit comfortably,
or to recline fully. He would be kept awake, cold, and probably wet. If
he managed to doze, he would be roughly awakened. He would be fed infrequently
and irregularly, and then only with thin, tasteless meals."
-
- After months of such treatment, a detainee is likely
to break. "Isolated, confused, weary, hungry, frightened, and tormented,
Sheikh Mohammed would gradually be reduced to a seething collection of
simple needs, all of them controlled by his interrogators."
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- The Government's Extreme Position
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- The Ninth Circuit was right to express dismay over the
government's claimed power to block judicial review of even the most repugnant
physical abuse of its captives. Such a position is, as the court emphasized,
"so extreme that it raises the gravest concerns under both American
and international law."
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- In the absence of judicial scrutiny, the power to detain
prisoners indefinitely can degrade into the power to abuse them physically.
It is up to the Supreme Court to set firm limits against such practices.
-
- - Joanne Mariner is a human rights attorney practicing
in New York.
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- Copyright © 1994-2004 FindLaw
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- http://writ.news.findlaw.com/mariner/20040105.html
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