Bush's Gitmo Justice Creates a Legal Black Hole
On July 18, 1776, the Declaration of Independence was read to a joyous crowd in Boston as bells rang and cannons were discharged. Abigail Adams wrote to her husband, John: "Every vestige of the King [George] was burnt. This ends royal Authority, a way of living, a way of thinking."
Abigail didn't anticipate that another King George, presiding over America almost 250 years later, would have so expanded his authority that he could designate persons—including American citizens—as "enemy combatants" to be held in military prisons without due process. (Ironically, though, Abigail's husband John, during his own presidency, would assume king-like powers thanks to the Alien and Sedition Acts, which punished criticisms of himself or Congress.)
Bernard Kouchner, the French foreign minister and insistent protector of international human rights, said this past March that the reputation of the United States has so deteriorated all over the globe that "the magic is over."
Adding to the world's disillusionment is the far-from-unique story of Murat Kurnaz. A German citizen, Kurnaz was turned over to the U.S. by Pakistani authorities as a suspected terrorist, brutally tortured in a secret CIA prison in Afghanistan, and then sent to Guantánamo in 2002 for more of what the president routinely calls "enhancement interrogation." It wasn't until two years later that Kurnaz had a shot at getting a lawyer. In Rasul et al. v. Bush, Supreme Court Justice John Paul Stevens, writing the majority opinion, ruled that these "detainees," held indefinitely without charges, had a right to a hearing in our court system.
A German lawyer hired by Kurnaz's mother contacted the New York–based Center for Constitutional Rights, the most energetic organizer of attorneys for these prisoners cut off from their families and the rest of the world. Baher Azmy of New Jersey's Seton Hall Law School took over Kurnaz's defense—and set to work battling the continuing barriers to due process at Guantánamo.
Azmy found a secret document, filed six months after Kurnaz had been sent to Gitmo in 2002, stating unequivocally that he had been cleared of any connection to Al Qaeda by the U.S. Criminal Investigation Task Force and by German intelligence.
Unfazed, the Defense Department invented new charges against him—that one of his friends had been a suicide bomber, for example. But that fell apart when the purported dead bomber was found alive and well in Germany. Another justification for Kurnaz's continued imprisonment was that he'd been captured near Osama bin Laden's sanctuary in Afghanistan, fighting for the Taliban. But the first time that he went into Afghanistan, Kurnaz was flown there aboard the CIA's rendition plane, on his way to the secret prison where he'd be routinely tortured for the next two months.
Nonetheless, despite the lack of any evidence against him, Kurnaz was officially declared an enemy combatant after a so-called hearing—bereft of due process—by a Guantánamo tribunal set up to determine his status as a prisoner.
His German attorney, Bernhard Docke, ultimately wrote to the new German chancellor, Angela Merkel, about his client, who had "been held in Guantánamo for four years in inhumane conditions." Merkel kept Kurnaz in mind and, during an official visit to Washington on January 2, 2006, spoke to George W. Bush about his prisoner. Six months later, at a meeting with the forgetful Bush in Stralsund, Germany, Merkel nudged him again.
Negotiations between the two countries began, and in August of that year—chained and surrounded by soldiers—Kurnaz was hauled onto a plane, presumably on his way home. But first he was peremptorily given a document and pen. An officer commanded him to sign a confession saying that he'd been detained in Guantánamo Bay because of his links to Al Qaeda and the Taliban—or else he'd never go home.
Murat Kurnaz, despite all that he'd been through, refused to sign the "confession." This was one prisoner that the United States, despite its advanced skills at torturing, could not break.
His American lawyer, Azmy, was with him when he arrived at the Ramstein Air Base in Germany. In an epilogue to Kurnaz's just-published Palgrave Macmillan book, Five Years of My Life: An Innocent Man in Guantánamo, Azmy writes: "In the incredible excitement of that very long day, including a 3 a.m. rush into the Kurnaz home past a swarm of waiting journalists, I remember one thing more clearly than any other. During the many hours that Murat and I had spent together in Guantánamo, his ankle had always been chained to the floor. That day, for the first time, I saw Murat walk."
Murat's wife had already divorced him during his long stay as a guest of the U.S. government, but now he is back with his family and friends. I asked Azmy about any continuing effects from all the torture sessions.
"He has refused any therapeutic professional help," Azmy told me. "His having written of this horrible odyssey is, in his mind, the most powerful and enduring reclamation of his dignity."
Murat Kurnaz eventually wants to visit the United States (he learned English from his guards at Guantánamo)—but incredibly, the Bush administration still has him designated as an unlawful enemy combatant!
At one point during CBS's 60 Minutes program on Kurnaz's story, which aired on March 30, the Department of Defense was asked for a comment on his years at Guantánamo.
In a statement that I suspect had to be personally approved by Defense Secretary Robert Gates, the Pentagon indignantly declared Kurnaz's "allegations [to be] unsubstantiated" and, indeed, "outlandish." As for his descriptions of being tortured, Kurnaz's claims that the United States of America "engaged in regular and systematic torture of detainees cannot withstand even the slightest scrutiny." (There are many, many books and reports to the contrary.)
Left out of the DOD statement, however, was any explanation of why Murat Kurnaz—who had been secretly cleared by U.S. intelligence in 2002—remained imprisoned as an "enemy combatant" for another four years.
At long last, the Senate Armed Services Committee—chaired by Michigan Democratic senator Carl Levin, and with John McCain as its ranking Republican member—is now engaged in what's being billed as a thorough investigation into the origin and extent of the abuse (at the very least) of these "detainees" in Defense Department custody.
One key witness should surely be Murat Kurnaz. Will Senators Levin and McCain demand that he be allowed to come to Washington and testify (as well as have his wholly unmerited "enemy combatant" stigma removed)? Will the elite Washington press corps at least ask?
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