Committing Human Rights Violations
excerpted from the book
9/11 and the Ruin of Human
by William Schulz
Thunder's Mouth Press, 2003,
... Anser Mehmood was one of more than l,100 Middle Eastern or
South Asian immigrants taken into custody by the F.B.I and/or
INS in the days and weeks immediately following the attacks of
September ll. Arrested on October 3, 2001, Mehmood was transported
to the Varick Street Jail in Manhattan. He was told he had overstayed
his visa and that he would be taken before an immigration judge
the next day. He was also told he could call his wife in a few
But the next day came and Mehmood had
not been allowed to contact his wife. Instead, he was visited
by the F.B.I., shackled with handcuffs, a belly chain and leg
irons, and transferred to the Metropolitan Detention Center (MDC)
in Brooklyn. When he arrived in Brooklyn, the authorities attached
two more sets of handcuffs to him and another set of leg irons.
One of them then hurled him full force against a wall. 'Why are
you so fat?" a guard asked derisively.
They then forced him to "run"
down a long ramp, the handcuffs and leg irons cutting into his
wrists and ankles. Placed in a cell, he waited about twenty-five
minutes until another guard appeared and threw him against the
wall again, this time bloodying his lip. "Do what we say
or that will be the end of you," someone snarled. Finally,
after his picture was taken, he was again forced to "run"
with the restraints still on, then unshackled and given an orange
prison suit. 'Why have you shaved the hair under your arm?"
someone asked him with a sneer. "Do you know why you are
here?" someone else inquired. "A visa charge,"
Mehmood replied, "Naw," came the answer, "You're
a World Trade Center suspect."
For the next two weeks Mehmood was held
incommunicado. The nature of the charges against him was not clarified.
He was finally allowed to call his wife two weeks after his arrest
but, when she was not at home to receive his call, he was told
that he was only permitted one personal call a month and would
have to wait six more weeks to talk to her. (It was three months
before she was allowed to visit him.) He was not permitted to
speak with a lawyer for seventeen days and in fact made his first
appearance before an immigration judge without benefit of counsel.
Held at MDC for six months, much of that
time in super maximum security normally reserved for the most
dangerous inmates, he occupied a cell whose window had been painted
to keep out all natural light. Two cameras were aimed at him twenty-four
hours a day. "I was very ashamed and very afraid," he
said later. "Every hour here feels like a day, every day
feels like a week. And what will happen to my wife and four children?
I have lost my American dream-my house, my truck. In all my years
as a taxi driver, I never even had a traffic violation."
Finally, Mehmood was charged with using
an invalid Social Security card and ordered to leave the country
after a secret hearing. He was transferred to Passaic County Jail
in New Jersey where in May 2002, eight months after he was taken
into custody, he was finally deported to Pakistan. He had never
been connected in any way to the events of 9/11. In fact, F.B.I.
officials had told him on October 4, 2001, the day after his arrest,
that it had no further interest in him, and that was the last
time he saw them. Anser Mehmood was no terrorist, not by a long
shot. He was an illegal immigrant trying to build a new life for
his family. He had broken the law and he deserved to suffer the
consequences. But he did not deserve to be mistreated; he should
not have been held incommunicado; and his case should not have
been kept secret, his circumstances not generally known until
Amnesty International finally succeeded in visiting him in April
Mehmood's case was typical of the post-9/11
immigrant detainees, a class of people, virtually all Muslims,
taken into custody shortly after the attacks, sometimes abused,
held for a prolonged time without charges being brought against
them, often denied prompt access to counsel or contact with their
families, their names and hearings withheld from public view.
Much of this is in violation of international law and some of
it-the abusive treatment, certainly-is in violation of the INS's
own regulations. And though 129 of the more than 1,100 immigrants
arrested after 9/11 were eventually charged, like Mehmood, with
some minor criminal offense, not one of them was ever charged
with anything having to do with terrorism.
Under U.S. Iaw, noncitizens cannot claim
the same range of rights that American citizens can, but they
are not without any. Five days after the terrorist attacks, the
rights they could claim shrank even further. The attorney general
issued a regulation, for example, allowing the INS to hold noncitizens
in custody without charge for an unspecified "reasonable
period of time" in the event of an "emergency or other
extraordinary circumstance," whether they are suspected of
terrorist activity or of accumulating a dozen parking tickets.
At least 317 of those taken into custody after 9/11 were not charged
for more than forty-eight hours; at least thirty-six were not
charged for twenty-eight days or more; at least thirteen, forty
days; at least nine, fifty days; and in one case for 119 days.
Are those "reasonable periods of time," particularly
inasmuch as international law provides that "a person shall
not be kept in detention without being given an effective opportunity
to be heard promptly by a judicial or other authority"? Not
knowing exactly what you are charged with and therefore how to
defend yourself is bad enough under any circumstances. When it
is combined with lack of contact with family, long periods of
time without access to an attorney, and the fact that your detention
is being kept secret ("Secret arrests are a concept odious
to a democratic society," one federal judge ruled), the problems
Any government has the responsibility
to protect its people from violence. The United States government
has argued, for one thing, that deportation hearings must be closed
because details that seem innocuous by themselves may be of use
to the terrorist network if made public. And maybe that is true.
One federal appeals court has agreed. But when a government is
targeting one particular ethnic or religious minority for special
scrutiny and taking actions that risk violating international
human rights standards, it has a particular obligation to step
gingerly, to put safeguards in place to mitigate against "mistakes."
Due process exists, after all, not to make it harder to convict
the guilty but the innocent. And hearings are generally kept open
not to garner sympathy but to guard against abuse. Surely it is
less likely-not a guarantee but less likely-that authorities will
hold someone for 119 days without charge or prevent reasonable
contact with families if they know they will have to account for
their performance before the courts and the public. If full disclosure
risks endangering the citizenry, then let the government make
its case to a responsible authority on an individual basis in
order to truly separate the wheat from the chaff.
"What we are doing," explained
Assistant Attorney General Viet Dinh with reference to the post-9/11
immigrant detentions, "is simply using our process or our
discretion to the fullest extent to remove from the street those
who we suspect to be engaging in terrorist activity."' But
not only were no actual terrorists removed from the street by
this massive roundup, but hundreds of people who had previously
felt no antagonism whatsoever toward this country may have been
transformed into adversaries, including nationals from countries
like Turkey and Pakistan that had taken risks to support the United
States in the war on terrorism and felt betrayed.
For more than fifty years, one of the most highly respected means
71 chart a "better way" in human relations, at least
during the course of war, has been the Geneva Conventions, which
regulate the conduct of war and treatment of war prisoners. The
four conventions ( 1949) along with two protocols (1977) make
up what is known as the "humanitarian law of war." One
hundred eight-five countries, including the United States, are
parties to the four conventions, which constitute one of the most
widely agreed-upon set of international norms. For any party to
breach the conventions is considered a mark of singular dishonor.
Beginning in the fall of 2001, hundreds
of prisoners taken into custody during combat in the Afghanistan
War were transported by the United States to our military base
in Guantanamo Bay, Cuba. By the fall of 2002, the number stood
at 583 from some thirty-three countries, including six prisoners
captured in Bosnia. According to the Defense Department, these
prisoners included both Taliban and Al Qaeda fighters, "the
worst of the worst," in Defense Secretary Rumsfeld's words,
"among the most dangerous, best trained, vicious killers
on the face of the earth," so dangerous that they had to
be hooded and strapped in one position for the twenty-hour flight
from Afghanistan to Cuba and then housed in small individual cells
at the base. At first blush one might assume that, since they
were taken in the course of combat, the detainees at Guantanamo
were prisoners of war and hence subject to the Third Geneva Convention
Relative to the Treatment of Prisoners of War. If that were the
case, the prisoners, while they could be interrogated, would only
be obligated to give name, rank, birth date, and serial number
(as any aficionado of old war movies knows); would have to be
"quartered under conditions as favorable as those for the
forces of the Detaining Power who are billeted in the same area";
could not be prosecuted merely for participating in hostilities
(though they could be prosecuted for war crimes or crimes against
humanity); and would need to be released at the "cessation
of hostilities," that is, at the end of the war.
But these conditions did not make the
Bush administration happy. For one thing, the United States wanted
to interrogate the prisoners for information about terrorist networks
and potential future attacks. Under the conventions, prisoners
of war are to be held in quarters roughly equivalent to those
of the occupying powers, but to provide such relative comfort
might well be a disincentive to cooperation. For another, the
United States wanted to preserve the option of trying them for
participating in terrorist acts (which could certainly be considered
crimes against humanity) but, if they are prisoners of war, they
are subject to court martial, just as American soldiers would
be for such crimes, not special military tribunals. And for a
third, since war had never been formally declared by the United
States Congress and since, that fine point aside, the president
had announced that the United States would not stop fighting until
terrorism had been destroyed, and since therefore it was not clear
that "cessation of hostilities" would ever come, even
though the war in Afghanistan was effectively over, and since
in any case the United States did not want to let anyone go who
might be a future threat to the country, the provision of the
convention requiring repatriation of prisoners at the close of
war was not one the United States was eager to implement.
The solution therefore seemed simple:
declare that, though they might have been taken prisoner in the
course of a war, these prisoners were not prisoners of war. They
were what the administration called "unlawful combatants"
to whom the conventions did not apply.
That conclusion may well have been correct.
A strong argument can be made, especially in relationship to the
Al Qaeda prisoners, that they do not fit the definition of "armed
forces" that the conventions require. They were of course
not fighting under the flag of a state that had ratified the conventions.
They were not subject to a system of command that enforced compliance
with international law. They did not distinguish themselves from
civilians by wearing a uniform or other distinctive sign and they
did not carry arms openly. On the other hand, the Taliban soldiers
did meet many of these criteria and Afghanistan was a state party
to the conventions. The status of the prisoners, then, was murky.
But on one point, the third convention is clear. If there is doubt
as to who is or is not a prisoner of war, the decision is not
to be made by the captors. The decision is to be referred on a
case-by-case basis to a "competent tribunal," like an
international or civilian court. But that was something the Bush
administration refused to do.
It is still a mystery why. For it is very
likely that, had the question been referred to a court, and certainly
an American one, the Defense Department's wishes, at least in
regard to the Al Qacda prisoners, would have prevailed. But whether
because the administration could not be certain of the outcome
or because it did not want to reveal certain information to a
court or because it holds international law in disrepute, the
referral was never made. And so the United States, long a defender
of the conventions, now stands in breach of them. It has also
denied the Guantanamo prisoners access to attorneys and has argued
in federal court, thus far successfully, that because the Guantanamo
camp lies outside U.S. territory, federal courts have no jurisdiction
and the courts therefore no power to intercede. The prisoners
find themselves in legal limbo.
But why should we care? Many of the prisoners
at Guantanamo no doubt are "vicious killers"; we may
all be far safer with them behind bars. Yet the decisions to ignore
the Geneva Conventions and deny the prisoners due process carry
with them at least three serious implications. First, they mean
that more than 600 people, including, we have subsequently learned,
children as young as thirteen, are being held indefinitely without
an opportunity to prove themselves innocent or harmless. Some
of them, we now know, were indeed both. In March 2002, Lt. Col.
Bill Cline, deputy camp commander at Guantanamo, admitted that
some of the prisoners were "victims of circumstance"
and probably innocent. A week later Maj. Gen. Michael Dunlavey,
the top officer in charge of antiterror intelligence, described
some of the prisoners as "lost souls" who could provide
no worthwhile intelligence. At least seventeen have attempted
suicide. In October 2002, three Afghani prisoners were released.
Two of them were over seventy years old, one so addled that he
babbled as a child and claimed to be 105. In March 2003, eighteen
more were let go; in May 2003, more than twenty more. If these
were "the worst of the worst," the United States had
little to worry about. Except perhaps how many other innocent
people were being incarcerated with no foreseeable end in sight.
Given that more than 100 people convicted in U.S. courts of capital
crimes and sentenced to death have subsequently had their convictions
overturned, it is not hard to imagine that, if one of the world's
best judicial systems can err as frequently as ours does, the
odds are enormous that "convictions" without trial or
hearing of any kind are likely to result in manifold injustice.
It does the United States no good to be associated with that in
the eyes of the world and especially in the minds of the Muslim
Nor, secondly, to be seen to be violating
international law when it serves our purpose. The State Department
has regularly criticized regimes in places like Egypt and Pakistan
for holding prisoners- many of whom these governments would label
"terrorists"-in indefinite detention in violation of
international due process standards. Our behavior at Guantanamo
provides such governments a veil of sanction for their own miscreant
deeds and)sends a signal that, regardless of what we profess,
we believe that international agreements like the Geneva Conventions
apply to us only when it is convenient.
And that signal, thirdly, may have dire
consequences for U.S. service men and women who, in the course
of what President Bush has repeatedly described as a long war
against terrorism, may fall into the hands of our adversaries.
In those circumstances, the conventions, while far from a guarantee
that captive members of the U.S. military will not be mistreated,
may be the best shot we have. They seem, for example, to have
helped protect American POWs held by the Iraqis in the recent
war there. But if Americans are ourselves seen to have shredded
those international covenants, we are in a far from enviable position
when we wish to invoke them on our own citizens' behalf.
What is happening at Guantanamo, then,
is a powerful illustration of why human rights (in this case,
the right to have your status as a prisoner determined by a "competent
tribunal" or the right to counsel) do not depend upon their
claimants being virtuous human beings. Fundamental human rights
adhere to you even if you are the worst creature on earth. In
the long run, every one of us is better off that way, whether
we are inside the prison camp looking out or outside trying to
protect ourselves and our children from the capricious use of
power. For if the United States engages in such use, it makes
it that much easier for the terrorists to do likewise-in their
recruitment schemes, for one, and their ideological screeds, for
. No human rights crime is more common than torture. It is practiced
in something like two-thirds of the countries of the world. The
United States is one of them. Male prison guards have been guilty
of systematic rape of female prisoners, for example; some police
departments have been notorious for their brutal treatment of
suspects. But until the war on terrorism, no one could seriously
assert that such practices were either commonplace or defacto
policy-at least not at the federal level. Until' that is, the
United States began taking Al Qaeda operatives into custody and
holding them on air bases and in detention centers overseas that
are beyond the reach of U.S. Iaw.
Now credible reports have emerged, denied
by top officials but widely confirmed by agents in the field,
that some detainees are kept kneeling for hours, held in awkward,
painful positions or are "softened up" by being beaten,
blindfolded, thrown into walls, and subjected to constant loud
noise. When U.S. officials are not themselves administering such
degrading treatment, we are apparently transferring the prisoners("rendering,"
it is called, like stripping flesh from a bone to allied intelligence
services in Egypt, Jordan, Morocco, and perhaps elsewhere, that
have long histories and much practice in utilizing torture during
All this is rationalized in the name of
procuring information to protect innocent people from being maimed
or killed by terrorists who, after all, have been proclaimed the
epitome of evil, demonic even, and hence unworthy of their captors'
restraint... it is sufficient to ask just one question: what will
tarnish America's reputation as a defender of all that is humane
more quickly than to gain a reputation as a practitioner of this
* The USA Patriot Act, passed shortly after 9/11, permits the
~ (l FBI to ascertain what books an individual checks out of a
library or purchases in a bookstore. Already close to 10 percent
of all public libraries, in one survey, reported having been approached
by federal or local law enforcement seeking such information.
The Patriot Act also authorizes F.B.I. agents to infiltrate worship
services or political gatherings even if there is no demonstrable
reason to suspect any criminal activity. It expands the F.B.I.'s
power to conduct phone and Internet surveillance even as the Bush
administration proposes that Internet providers be required to
build a centralized system to monitor the use of cyberspace.
* More than two dozen people, including
several American citizens, have been detained for months without
charge, held as "material witnesses" in terrorism cases
but not charged with a crime and hence unable to defend themselves,
seek bail, or argue for exoneration.
* Organizations, including charities,
that the government suspects of helping terrorists can be closed
down based on classified information ("secret evidence")
that the organizations and their attorneys are not allowed to
see and hence have no capacity to refute.
* Prison officials can now monitor communications
between detainees and their lawyers without obtaining a court
order if the attorney general finds that there is "reasonable
suspicion" a prisoner may communicate with a lawyer "to
further or facilitate acts of terrorism."
* The government apparently maintains
a "no fly" list of individuals whom airlines are advised
not to allow onto planes. It is not clear how one's name gets
on such a list (or how to get it off!)
In its "anything goes" mentality in the fight against
terrorism; its inclination to downplay, if not ignore, even the
most egregious human rights violations of its allies; its tendency
to see terrorists under every turban; its conviction that international
covenants mean little and matter less, the Bush administration
has done more to damage human rights in its two and a half years
in office than the occasional hypocrisy and frequent indifference
of nine previous presidents put together. And it has done so largely
with the acquiescence of the American people.