Detention, Torture, and Due Process

by Dave Bennion

Published October 06, 2008 @ 05:44PM PT

The War on Terror: Abuses Abroad

While traveling in Pakistan in late 2001, German-born Murat Kurnaz was captured by Pakistani police and turned over to U.S. intelligence for a $3,000 bounty. He was detained without charge for five years, three and a half of which came after military intelligence established his innocence.

Kurnaz described to 60 Minutes the torture he endured at the hands of the Americans:

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 to…how 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.

. . .

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.

This all done to a man who was finally released after five years after the U.S. government failed to dredge up the smallest credible evidence of any culpability. But Kurnaz’s story is not an isolated one. From Guantanamo to Abu Ghraib to Bagram, use of torture by the U.S. military and intelligence services abroad since 9/11 has been well documented.

The link between the abusive interrogation techniques—“torture” to you and me—and the innocence of so many of the detainees is not accidental. The Guantanamo torture techniques came more or less unfiltered from Chinese torture tactics gleaned from former U.S. POWs captured during the Korean War. Those tactics were used by China not primarily to gather useful information, but for political purposes, to coerce confessions. The same is true of these tactics rewarmed and served up by U.S. forces. The American public needed someone to vent the rage and pain built up from the 9/11 attacks, and the bodies of Muslim foreign nationals were the most convenient target, plausible enough for the average American voter checking in on the War on Terror once in a while on the 6:00 news. Mission Accomplished!

The War on Immigrants: Abuses at Home

There has also been a domestic component of the government’s effort to placate angry voters through circumvention of international human rights standards. Again, foreign nationals are the easiest target.

U.S. citizens are too frequently detained and deported because of the color of their skin or the accent of their English and because DHS can’t be bothered to properly investigate credible claims to citizenship. But these are citizens. For non-citizens—ranging from lifelong permanent residents to recently-arrived undocumented migrants—the risk of arbitrary imprisonment and abuse at the hands of government officials is much higher.

Investigative journalists for the New York Times and Washington Post have described an immigration detention system that so neglects the health of its prisoners that many of them die—often at a young age, often after their health complaints are documented and ignored. Visitors from European countries allied with the U.S. have been wrongfully detained for no discernible reason. Migrants have been shackled during childbirth, forgotten and left to die in custody, sexually exploited by CIS officers, and raped by ICE guards. Typically, an attempt at a cover up follows the bad action. Often, the government’s processes are so opaque and secretive that not much cover-up is required—little daylight enters the system and little information escapes it.

Frequently, those detained talk about the contempt and arrogance of their captors, the hubris and the ignorance. This is not the way to win friends or influence people.

Evisceration of Due Process: A Common Thread

The common thread running through the U.S. government’s domestic and international efforts to prosecute the War on Terror has been the suppression of due process protections in order to select convenient targets and publicly punish them regardless of culpability. Guilt or innocence is irrelevant: what matters is that somebody is seen to be held accountable for Americans’ feelings of insecurity.

Murat Kurnaz, upon disappearing into the American gulag, effectively had no legal rights of the kind that help adjudicators determine the truth or falsity of factual claims made by prosecution and defense. The government wasn’t interested in Kurnaz’s guilt or innocence—for their purposes, this was irrelevant.

The government asserts that many of the due process guarantees citizens take for granted simply don’t apply to non-citizens.  No right to counsel.  No right to see and examine the evidence and witnesses presented against a defendant (if charges have even been brought).  No right to a jury trial (or even a hearing in a civilian court, for Guantanamo prisoners).  No right to a speedy trial.  No right to refrain from incriminating oneself.

This presents a big problem, and not just for those who are railroaded through the system. As I have previously written,

[D]ue 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.

. . .

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.

This applies to immigrants targeted domestically as well as Guantanamo detainees:

The system is set up to capture, detain, and deport as many people as possible.  The things that make this process go smoothly—warrantless searches, midnight home raids, unbalanced evidentiary burdens, jaded and overworked judges, limited right of appeal, widespread absence of counsel, and above all, a tangible attitude of contempt for the targeted population—are not conducive to uncovering or correcting mistakes.

Due process rights are supposed to act as a systematic guard against error in judicial proceedings, so that innocent people don’t get punished for things they didn’t do.

. . .

If our dysfunctional immigration system deports U.S. citizens this frequently (and the scale of the problem is hard to gauge, since the great majority of errors likely go undetected and uncorrected), imagine how fraught with error a typical immigration case must be in a system that has grown fat and comfortable in a due process-less environment.  It’s every prosecutor’s dream—most of the things that make a criminal case so tedious and time-consuming are just not there.

National security is not bolstered by locking up innocent people or by deporting people based on the color of their skin.  Torture doesn't produce useful information; Chinese interrogators under Mao understood as well as the U.S. officials who appropriated their techniques that it is not intended to do so.  The only people who can justifiably feel safer when due process guarantees are thrown out the window are the politicians who have scapegoated their way to another term in office at the expense of their unfortunate targets and the trust of the public they are supposed to protect.