Falsely Accused 'Enemies' Deserve Due Process

Congress should now force the administration to assign military tribunals to interview every detainee

Two major court decisions on the rights—or lack of rights—of suspected terrorists, Talibans, and others detained in the war against terrorism came down on March 11. The first held that the 650 foreign nationals seized by U.S. forces abroad and detained at Guantanamo Bay, Cuba, have no legal rights enforceable in U.S. courts. The second decision, by contrast, sharply rebuffed the Bush administration position that even a U.S. citizen arrested in this country can be held incommunicado indefinitely, with no right ever to see a lawyer, a judge, or anyone else, if the military labels this person an enemy combatant.

Both rulings may be legally correct. But they also illustrate that unless Congress requires due process for such detainees, many and perhaps all of those who are wrongly classified as enemy combatants will be lost in a Kafkaesque maze, with no help from the courts in most cases and inadequate help in others.

This at a time of mounting allegations that some detainees who turned out to be innocent have been subjected to months of brutal conditions designed to soften them up for interrogation.

For example, two former Afghan prisoners at the U.S. air base at Bagram, Afghanistan, named Abdul Jabar and Hakkim Shah, told The New York Times that between interrogations they were kept standing in cold cells for two weeks, day and night, naked (in Shah's case), hooded, arms chained to the ceiling, feet shackled, and sleepless, with guards kicking them or shouting to keep them awake. The deaths of two other Bagram detainees are under investigation as homicides, caused in one case by what a U.S. military pathologist called "blunt-force injuries to lower extremities complicating coronary artery disease." The man was 22.

Claims of brutal treatment have also been made by some of the 1,200 Muslim men who were detained in the U.S. in the aftermath of the September 11 attacks, mostly for immigration violations. Consider the story of Egyptian-born Hady Hassan Omar. He was picked up the day after the attacks, for a good reason: Omar had bought plane tickets for September 11 using the same computer, at the same Kinko's outlet, that Mohamed Atta had used.

Was Omar part of Atta's plot? Or just unlucky? To find out, the government held and interrogated him for 73 days under conditions so harrowing that he became suicidal. Or so Omar told reporter Matthew Brzezinski, who wrote about his experience in the October 27 issue of The New York Times Sunday Magazine:

"Three cameras recorded his every move. The lights in his cell weren't turned off for weeks at a time.... Strip, he was told, once again. A dozen officials, including two women, he recalls, looked on.... Omar stood naked while his body cavities were searched for the third time in less than four days. He still has trouble speaking in front of his wife about what happened next. 'They told me to lift my testicles,' Omar remembers, blushing slightly. 'One of the guards pointed at my backside and said, "You sure you're not hiding anything in there?" I said no.' ... [A] man in white medical scrubs entered the room. He wore a latex glove. Bend over, he said. Squinting from the pain, Omar looked up at one of the INS guards who had escorted him from the New Orleans prison. She was laughing, he says....

"It's impossible to say precisely why the authorities finally decided that Omar must be telling the truth. One senior law enforcement official in Washington did, however, agree to share a theory.... 'If your subject has a complete breakdown,' he said, 'the barriers to resistance are lessened. Once a person is at that point, he has lost the will to deceive, and you can be pretty certain that he's not lying.' "

Is this our government's policy for handling people who might be terrorists—or might not? To brutalize them until they break, spilling out their inner thoughts? In the face of reports like these, the government's assurances of humane treatment cannot be taken at face value. Nor can its classification of all detainees as guilty until proven innocent. Indeed, one wonders how many more may have evidence of innocence that the government ignores to avoid acknowledging mistakes.

But under current law, innocent suspects caught up in the war against terrorism will get no help at all from the courts if they are foreign nationals captured and detained abroad. That is the lesson of the March 11 decision in Al Odah v. U.S., which dismissed three lawsuits by family members seeking the release of 12 Guantanamo detainees from Kuwait, two from Britain, and two from Australia.

The Kuwaiti lawsuit argued that the 12 were not combatants but charity workers who had been seized by Pakistani bounty hunters and sold to U.S. forces. The evidence of their noncombatant status has been deemed credible by high-level Kuwaiti officials and some journalists. But the U.S. Court of Appeals for the D.C. Circuit nonetheless ruled that none of the detainees has any right to seek judicial relief, under any circumstances.

"No court in this country has jurisdiction," Judge A. Raymond Randolph wrote for the unanimous three-judge panel, because "aliens detained outside the sovereign territory of the United States" are not protected by the Constitution. This appears to be a correct application of a 1950 Supreme Court precedent, Johnson v. Eisentrager. More debatably, Judge Randolph also held that Guantanamo was outside U.S. "sovereign territory" because Cuba technically retains sovereignty.

The legal black hole in which this leaves any and all innocent detainees held by U.S. forces abroad is both unjust and insulting to the international community. If this is the law, then the law needs amending.

Fundamental American values and international norms require some kind of due process for all prisoners, no matter where detained. Congress should now force the administration to do what it should have done long ago: assign military tribunals to interview every detainee and to provide all those who plausibly claim that they are not enemy combatants with a fair opportunity to prove it.

In the second March 11 decision, Padilla v. Rumsfeld, Chief Judge Michael B. Mukasey, of the U.S. District Court in Manhattan, did about as well as could be done under current law in crafting a procedure to allow U.S. citizens and others detained in this country to contest the military's claims that they are enemy combatants.

The case involves Jose Padilla, a U.S. citizen (and convicted murderer) who was arrested last May, after flying from Pakistan to Chicago, on suspicion of plotting a dirty-bomb attack for Al Qaeda. In his initial ruling, on December 4, Judge Mukasey upheld the government's central contention: that it can detain any "enemy combatant" indefinitely without criminal charges, and without the protections required for criminal defendants. But the judge had rejected the government's view that he had virtually no power to second-guess its determination that Padilla was an enemy combatant, or even to let Padilla see a lawyer or appear in court to respond.

Unsatisfied, the administration pressed Judge Mukasey to reverse himself, based on a sworn statement by Vice Adm. Lowell E. Jacoby, director of the Defense Intelligence Agency, that allowing any contact between Padilla and a lawyer could destroy the "dependency and trust" necessary for effective interrogation.

In his sternly worded opinion of March 11, Judge Mukasey dismissed this forecast as "speculative." He suggested that if Padilla were given a chance to consult a lawyer and go to court, and then "lost in short order," the man might quickly realize that "cooperating with his captors" was his best option.

In any event, Judge Mukasey held, "I cannot confirm that Padilla has not been arbitrarily detained without giving him an opportunity to respond to the government's allegations," and "there is no practical way for Padilla to vindicate that right other than through a lawyer." (For a slightly different view on the latter point, see my column of March 8.)

Judge Mukasey's logic is compelling. But the government seems likely to appeal, and it just might win. That would be a disaster for civil liberties. Besides, detainees like Padilla—who has been held incommunicado since last June—should not have to wait months for a hearing. Congress should step in both to ratify Judge Mukasey's decision and to set specific deadlines for expedited hearings in such cases.

Padilla is the only person arrested in the U.S. so far to be handed over to the military as an enemy combatant. And the evidence against him may well be solid. But the administration claims the power to deny meaningful judicial review to anyone—to immigrants such as Hady Hassan Omar, to you, or to me. Congress should say: Not in America.