Committing Human Rights Violations at Home

excerpted from the book

Tainted Legacy

9/11 and the Ruin of Human Rights

by William Schulz

Thunder's Mouth Press, 2003, paper

... 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 hours.

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 2002.

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 appear insurmountable.

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 public.

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 another.

. 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 interrogation.

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 beastly crime?

* 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.

Tainted Legacy

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