no due process, no truth

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kurnaz pic.jpg
[Image: Murat Kurnaz,]

This story (via Yglesias) from 60 Minutes about America's clandestine prison system for foreign nationals has my jaw on the floor.  I didn't think I would be this easily shocked after the last seven years of abuse the Bill of Rights has undergone. 

The story is simply amazing. 

(CBS) At the age of 19, Murat Kurnaz vanished into America's shadow prison system in the war on terror. He was from Germany, traveling in Pakistan, and was picked up three months after 9/11. But there seemed to be ample evidence that Kurnaz was an innocent man with no connection to terrorism. The FBI thought so, U.S. intelligence thought so, and German intelligence agreed. But once he was picked up, Kurnaz found himself in a prison system that required no evidence and answered to no one.

The story Kurnaz told 60 Minutes correspondent Scott Pelley is a rare look inside that clandestine system of justice, where the government's own secret files reveal that an innocent man lost his liberty, his dignity, his identity, and ultimately five years of his life.

. . .

The reason Kurnaz was singled out may always be a mystery. But at the time, the U.S. was paying bounties for suspicious foreigners. Kurnaz, who'd been rambling across Pakistan with Islamic pilgrims, seemed to fit the bill. Kurnaz says that he was told that U.S. intelligence paid $3,000 for him. He ended up bound and shackled on an American military plane.

"I was sure soon as they would find out I'm not a terrorist, they will apologize for it and let me go back home," he says.

. . .

Kurnaz claims his interrogations at Kandahar turned to torture. He told 60 Minutes that American troops held his head underwater.

"They used to beat me when my head is underwater. They beat me into my stomach and everything," he says.

"They were hitting you in the stomach while you're head was underwater so that you'd have to take a breath?" Pelley asks,

"Right. I had to drink. I had you say it?" Kurnaz replies.

"Inhale. Inhale the water," Pelley says.

"I had to inhale the water. Right," Kurnaz says.

Kurnaz says the Americans used a device to shock him with electricity that made his body go numb. And he says he was hoisted up on chains suspended by his arms from the ceiling of an aircraft hangar for five days.

"Every five or six hours they came and pulled me back down. And the doctor came to watch if I can still survive to not. He looked into my eyes. He checked my heart. And when he said okay, then they pulled me back up," Kurnaz says.

"The point of the doctor's visit was not to treat you. It was to see if you could take another six hours hanging from the ceiling?" Pelley asks.

"Right," Kurnaz says.

Let me explain why I got aggravated watching The Bourne Ultimatum last year.  [*SPOILER ALERT*]

Let's picture a scary parallel world where rogue managers within the CIA engineer a program to kidnap, torture, and kill innocent people.  

Now let's look at the real world and realize these aren't rogue managers conducting secret detentions and torture clandestinely, killing whoever it takes to keep the truth from being known.  These are tactics that were authorized from the top and are now widely known.

At the end of the Bourne Ultimatum, you know the good guys will triumph after the whole program is exposed in Congressional hearings.  The people's representatives will not stand for this malfeasance!

Except that in this, the real world, Congress now knows about the torture programs and doesn't care enough to do anything about them ... 

"I suspect you know that the U.S. military will deny this happened. The U.S. military will deny that you were shocked. It will deny your head was held in a bucket of water. It will deny that you hung from a ceiling for days at a time," Pelley remarks.

"Doesn't matter whatever they will say. The truth will not change," Kurnaz says.

"And you're telling me in this interview that this is the truth?" Pelley asks.

"This is the truth," Kurnaz insists.

Kurnaz isn't alone in these allegations: other freed prisoners have described electric shocks at Kandahar, and even U.S. troops have admitted beating prisoners who were hanging by their arms. Kurnaz's story fits a pattern.

. . .

At Guantanamo Kurnaz says he endured endless months of interrogations, beatings at the hands of soldiers in riot gear, and physical cruelty which included going without sleep for weeks and solitary confinement for up to a month in cells that were sealed without ventilation or were set up to punish him with extreme conditions.

"It's dark inside. No lights. And they can punish you in isolation by coldness or by the heat. They have special air conditioners over there. Very strong. They can turn it very cold or very hot," Kurnaz says.

He says it went on year after year, always the same questions about al Qaeda, and the endless effort to break his will. He heard nothing from the outside and wondered whether anyone knew that he was there.

This next part is incredible, but also very important.

Military prosecutors said one of Kurnaz's friends was a suicide bomber, but the friend turned up alive and well in Germany.

"How could they have gotten that so wrong? I mean, you're either a suicide bomber or you're not. There's no in between," Pelley remarks.

"This goes to the utter preposterousness of the government's legal process that they established in Guantanamo, this tribunal system that was supposed to differentiate from enemy combatant and civilian. So in order to justify that he was an enemy combatant, they simply made up an allegation about someone he was associated with," Azmy says.

And for something this awful, there has to be a cover up.  Here it is:

But far worse than the false charges was the secret government file that Azmy uncovered.

Six months after Kurnaz reached Guantanamo, U.S. military intelligence had written, "criminal investigation task force has no definite link [or] evidence of detainee having an association with al Qaeda or making any specific threat toward the U.S."

At the same time, German intelligence agents wrote their government, saying, "USA considers Murat Kurnaz's innocence to be proven. He is to be released in approximately six to eight weeks."

But Azmy says Kurnaz was kept at Guantanamo Bay for three and a half years after this memo was written in 2002.

They kept him, Kurnaz says, by inventing new charges. In a makeshift courthouse, Kurnaz claims that a military judge charged that Kurnaz had been picked up near Osama bin Laden's hideout in Afghanistan while fighting for the Taliban. Ironic, since it was the U.S. that flew him to Afghanistan to begin with.

"Have you ever in your legal career run across anything like this?" Pelley asks Baher Azmy.

"In my legal career, no," Azmy says. "But in Guantanamo, no detainee has ever been able to genuinely present evidence before a neutral judge. And so as absurd as Murat Kurnaz's case is, I assure you there are many, many dozens just as tenuous."

Unbelievable.  But thoroughly documented by 60 Minutes. 

And to add insult to injury:

[Kurnaz] told 60 Minutes he wanted to visit the United States, but can't because the U.S. still considers him to be an unlawful enemy combatant.

This last point highlights the link between the flawed U.S. Immigration and Nationality Laws and the abuses the U.S. government has perpetrated in its prosecution of the so-called War on Terror. 

Kurnaz, upon being swallowed up into this black hole of an injustice system, essentially had no legal rights.  As a non-American in U.S. custody outside of U.S. territory (claiming that Guantanamo is not U.S. territory is problematic, but I'll leave that aside for now), the U.S. government treated Kurnaz as though the Bill of Rights did not apply to him at all.  No right to counsel.  No right to see and examine the evidence and witnesses presented against him.  No right to a jury trial, or even a hearing in a civilian court.  No right to a speedy trial.  No right to refrain from incriminating oneself.  Basically, Kurnaz had no due process guarantees at all. 

As I have mentioned before (and others have written about much more comprehensibly and knowledgably than I), due process rights serve a purpose.  They assist in bringing the truth to light.  They prevent the party holding essentially all the cards--including the right to use lethal force, to arrest and imprison, to appropriate personal property, to accuse and prosecute--from distorting the adversarial process to reach a preconceived conclusion detached from actual facts and events. 

In the complete absence of due process guarantees, truth and facts go out the window.  Mere suspicion becomes substantial enough to warrant "preventive" detention.  Preventive detention drags on, as investigations and "interrogation" are conducted.  Of course, the American public can't know any of this while it's happening.  It's for their own protection.  At some point, the fact of detention becomes self-justifying and self-perpetuating.  The detainee can't be released--just think if he were actually guilty!  But neither, as his innocence becomes more clearly established, can he be released.  Just think how bad we would look! 

So, like a half-forgotten, half-ignored file at the bottom of your desk, perpetually hovering near the bottom of a "to do" list but always set aside in favor of something more urgent, Kurnaz languished in the American gulag for five years, three and a half of which followed a definitive memo written by the U.S. military establishing his innocence. 

The government did this (and an uncaring public sat and watched) for the same reasons it interned Japanese U.S. citizens during WWII.  It did this for the same reasons it denied African-Americans, Mexican-Americans, and other "Others" the full benefits of citizenship even though they were U.S. citizens. 

Today, this due process-free approach to making legal decisions impacting a person's freedom from detention and ability to live with their family continues in settings like spousal green card interviews, asylum hearings, and decisions based on the malleable "good moral character" standard about whether or not to permit a permanent resident to naturalize. 

The likelihood of reaching an accurate decision in a case decreases as due process guarantees are pared back in the name of national security and protecting Americans from a nameless "Other."  A case like Kurnaz's is a textbook example of what happens when you delete Constitutional protections from a deliberative process.  Truth then becomes what the prosecutor says, what the government wishes, what the interrogator imagines.  There is no way to break free, no way to appeal, no one to listen to arguments based on reason and factual inquiry. 

Enemy Aliens (Amazon).jpg

David Cole has examined the connections between immigration law and national security in depth in his book Enemy Aliens, among other publications.  I can't recommend this book highly enough.  It's a few years old, but it has only become more relevant as abuse and scandal have tripped over each other through the Bush years in a race to some unholy finish line. 

It is time to listen to what Cole and others have been saying for years: National security is not better served by inaccurate decisions.  Americans are not well-served when their government jails and tortures innocent people, then lies about it.  Americans are not made safer when green cards are arbitrarily denied, when legitimate asylum-seekers are repatriated, or when families are shattered without regard to human consequences. 

It is time for a change.  But simply acknowledging the need for change is not enough.  To quote Cory Booker on Bill Moyers' show last night: we may realize things are bad, but "what are you doing about it?"   


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kyledeb said:

I'm glad to see that you're bringing over some of your strong foreign policy stances from your blog over to Citizen Orange. These stories need to be told.

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This page contains a single entry by David Bennion published on March 31, 2008 11:31 PM.

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