Interrogation, Torture, the Constitution, and the Courts

By JOANNE MARINER
Monday, Jan. 05, 2004

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."

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."

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.

Guantanamo, Moussaoui, and the Detainees

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.

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.

"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."

The Government's Extreme Position

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."

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. Her previous columns about the human rights implications of the "war on terrorism" can be found in the archive of her pieces on this site.

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