310: Habeas Schmabeas

Ira Glass

So here's how a lawyer meets with his client when his client is a prisoner at Guantanamo. There's a little hut with a metal table.

Ira Glass

Joe Margulies at the University of Chicago represents a few detainees at Guantanamo. And he says that to understand that thing about the natural light, you have to understand that the detention facilities at Guantanamo were designed to be the perfect interrogation chambers. And so anything the prisoner wants, including sunlight, he's only going to get with the permission of his interrogators as a reward for cooperating. And anything can be used that way.

Ira Glass

When prisoners feel despair, they'll cooperate, they'll talk, they'll tell us all the dangerous things they know. That's the idea. Let's make them feel hopeless.

Ever since President Bush announced the global war on terror, we've been told this is a different kind of war, with different rules. The battlefield isn't a jungle in Asia, or a beach in France. It's everywhere. Soldiers aren't guys in uniform. They could be anybody.

And prisoners of war are different, too, so dangerous, we're told, that we keep them in an offshore facility, in as close to total secrecy as possible, to interrogate whenever we want, however long we want, using methods we have never approved for other wars. And one thing that's just weird about Guantanamo is that, in all of these years that it has been going, why haven't we seen more of these guys on radio and TV?

Over 200 of them have been released, right? At our radio show, we were talking about this this week and we realized that none of us had ever heard or read an interview with any of those guys. And so, today, you're going to hear from two of those Guantanamo detainees who have been released. And I believe you're going to be surprised at what they're like.

And we're also going to explain, once and for all, how it is that, under these brand-new government rules and procedures in this new war, somebody can be locked away, basically forever, even when the government's own classified files say he is not a threat to America.

Ira Glass

Well, it's This American Life from the WBEZ Chicago, distributed by Public Radio International. Our guide for all of this is Jack Hitt. A few years ago, he tackled some of these issues for our radio show, and he's spent a few months digging deeper, trying to understand what's happening now. Here he is.

Jack Hitt

As best as they can tell, Badr Zaman Badr and his brother were imprisoned in Guantanamo for three years for telling a joke. Actually, for telling two jokes. They ran a satire magazine in Pakistan to poke fun at corrupt clerics, sort of the Pashto edition of The Onion.

The first joke that got them into trouble is when they published a poem about a politician called, "I Am Glad To Be A Leader." Here's Badr.

Jack Hitt

So the guy with the big stomach called up Badr and his brother. He threatened them, and, as best as they can tell, told authorities that they were linked to Al Qaeda, which landed them in Guantanamo, and which leads us to the second joke. This one was in an issue of Badr's magazine that came out in the '90s, after our government set a $5 million reward for Osama bin Laden. Badr's magazine issued its own bounty for the capture of an American leader.

Jack Hitt

So after hearing the punchline explained 150 times, we finally got the joke, and sent Badr and his brother home. It had been three years since the Pakistani army surrounded their house in Peshawar, came into their living room, which is lined with wall-to-wall bookcases, and arrested them. That's Badr's version of why we jailed them. Here's President Bush's.

Jack Hitt

The administration has never wavered on this point. Here's Dick Cheney on Guantanamo.

Jack Hitt

We're told over and over that these prisoners are so terrible that we need an offshore facility away from US law to hold them. But then there's Badr. And every day, more stories like his are coming out. And they raise the question, is Guantanamo a camp full of terrorists, or a camp full of mistakes?

In a new study from Seton Hall's law school, researchers simply went to the trouble of reading the 517 Guantanamo case files released by the Pentagon. Here is what they found.

Only 5% of our detainees in Guantanamo were scooped up by American troops on the battlefield or anywhere else, 5%. The rest, we never saw them fighting.

And here's something else. only 8% of the detainees in Guantanamo are classified by the Pentagon as Al Qaeda fighters. In fact, Michael Dunleavy, head of interrogations at Guantanamo, complained in 2002 that he was receiving too many, quote, "Mickey Mouse prisoners."

In 2004, the New York Times did a huge investigation interviewing dozens of high level military intelligence and law enforcement officials in the US, Europe, and the Middle East. There was a surprising consensus that, out of nearly 600 men at Guantanamo, the number who could give us useful information about Al Qaeda was, quote, "only a relative handful." Some put the number at about a dozen, others more than two dozen.

The Seton Hall study might help explain that. It revealed that 86% of the detainees were handed over to us by Pakistan or the Northern Alliance. And some were handed over to us by a new method. Here's Badr.

Jack Hitt

That's Rear Admiral John Hutson, the Navy's top lawyer. He was the Judge Advocate General until 2000. He says, essentially, we bought Badr, and a whole lot of other prisoners.

Jack Hitt

We all know this is a new war with new rules. But what were the old rules? Well, one had to do with POWs.

The military has always known that all kinds of prisoners get picked up in the fog of war. So it was important to get those numbers down to just the real POWs, since troops on the move didn't want to be burdened with looking after lots and lots of captives. This problem had been more or less solved by the old Geneva Conventions, which required a, quote, "competent tribunal."

It sounds crazy, a kind of impromptu court hearing, right after a battle. But that is exactly what used to happen. And typically, some 75% to 90% of the people scooped up would be sent home. In the Gulf War of 1991, we captured 982 people, released 750 of them right away, and the remainder were POWs. Like in the old war movies, they gave name, rank, and serial number, and they got certain things, everything from a pledge that they wouldn't be tortured, to a promise that they be released once the war ended, and even the right to send letters home.

But this is a new kind of war, after all. And the administration made the argument that the Geneva Conventions apply only when you're fighting another country, a country with a uniformed army, not when you're fighting terrorists.

Jack Hitt

That's Brian Boyle. He was Associate Attorney General for President Bush when these decisions were made.

Jack Hitt

Here's Real Admiral Hutson.

Jack Hitt

This quarrel about the Geneva Conventions continued for three years, and eventually got down to one very practical question. If you're a prisoner, and you're not protected by the Geneva Conventions, and you might be held indefinitely, could you at least make an appeal in a US court? Here's Attorney General Alberto Gonzales.

Jack Hitt

And he's absolutely right, about the Germans, except the Germans were covered by the Geneva Conventions. Finally, in 2004, the United States Supreme Court stepped in. It said, if prisoners aren't going to be covered by the Geneva Conventions, that's fine, but they couldn't be permitted to fall into a legal black hole, not protected by any law at all. They had to be given some way to challenge their detainment. It's one of the oldest rights in Western Civilization, known as habeas corpus.

Habeas corpus, it's a phrase we all know, but, let's be honest, can't ever really remember what it means. It's not a trial, or anything like one. Its more, well, primal. It's a hearing that commands the executive, in this case, the President, to explain why he has jailed somebody.

The idea dates back to 1215, England, when the nobles forced King John to sign the Magna Carta and agree to the great writ, later known as habeas corpus. In Latin, it means, show me the body. In other words, a neutral judge got to see the prisoner in person to check if he'd been tortured, and then the judge had the power to require the king to explain, why is this guy jailed. All the executive had to do was answer with a convincing story, and then the guy went back to the dungeon. It's a right so elemental that it's in Article One of the United States Constitution. It's one of the reasons we fought the Revolutionary War.

And after the Supreme Court granted the detainees access to the courts, right away President Bush started talking like a habeas-loving King John.

Jack Hitt

The administration quickly put together a kind of hearing based in part on the old Geneva Conventions hearing they had abandoned. They called this hearing a Combatant Status Review Tribunal, or in the elegant shorthand of the Pentagon, a CSRT.

These new hearings have one oddity to them. The tribunal assumes all the evidence against the detainee is correct. If the detainee wants to prove them wrong, it will be difficult, because he's not allowed to see the evidence. It's classified.

As a result, these hearings makes strange reading. In many of them, there comes a moment in the dialogue like this one between detainee Abdul Malik and the judging panel.

Jack Hitt

And as for confronting the evidence, consider the case of Azmy's client, Murat Kurnaz, a Turkish citizen raised in Germany. The Pentagon accidentally declassified the file, with all the secret evidence against him. And here's what's in it: nothing.

Jack Hitt

But here's the thing. At the hearing, nobody talks about any of that. His personal representative doesn't bring it up. The tribunal doesn't consider it. And Kurnaz himself doesn't even know about it. He's declared an enemy combatant. He's still at Guantanamo today.

But wait, there's more. The reason they give for holding him: a friend of his named Selcuk Bilgin blew himself up as a suicide bomber in Turkey in 2003. That's two years after Kurnaz got picked up.

Jack Hitt

You heard that right. Kurnaz is in Guantanamo because two years after he got picked up, a guy he knows became a suicide bomber, except that he didn't become a suicide bomber, and is currently living in Germany.

Jack Hitt

Then there's a bunch of Chinese Muslims we accidentally picked up during our sweep in Afghanistan. They are an ethnic minority known as the Uighurs. And they've been battling the communist Chinese since World War II. Conservatives love the Uighurs, which is why they've been passionately defended by the National Review and the Weekly Standard. After a corporate lawyer named Sabin Willett heard about them, he volunteered to represent a Uighur named Adel Abdul al-Hakim and some others. And he flew to Guantanamo to meet them.

Jack Hitt

The government says it would release Adel and the other Uighurs if only it could find a country to send them to. I have an idea. Adel could sail 90 miles north to Miami, where there's an entire city of anti-communists. Or he could be sent to one of the largest Uighur expat communities in Washington, DC. So why aren't we going to be seeing Adel any time soon? Here's Willett.

Jack Hitt

If Willett is right, this gets to the heart of habeas. The whole point is that the king shouldn't have the right to just detain somebody because it'd be an embarrassment to have the guy free. The Pentagon has an acronym for people like the Uighurs. It's pronounced "enlec." It means No Longer Enemy Combatant. But as Willett notes, it should be Never Was Enemy Combatant.

The problem with creating an offshore legal limbo, where there's no habeas proceeding to separate the Al Qaeda fighter from the comedy writer, comes during interrogation. If we've labeled them as terrorists, then that's how they get treated.

Josh Colangelo-Bryan is a lawyer at Dorsey & Whitney in New York who volunteered at Guantanamo. He represents Juma al-Dossary. For a while, the government thought al-Dossary was a recruiter in America for Al Qaeda, possibly involved in the case known as the Lackawanna Seven. But this is never brought up at his CSRT hearing. Instead, the government simply states that he's Al Qaeda, and as proof lists the various places he's been. Afghanistan, Bosnia, Azerbaijan, the Pakistan border.

Supposedly, he was fighting in some of those places, but the government provides no evidence that. They don't quote witnesses. Nobody is on record saying he's Al Qaeda. Here's Colangelo-Bryan.

Jack Hitt

We tried out many of our new interrogation techniques on Juma al-Dossary. Colangelo-Bryan met with him many times and catalogued what was done with him. Al-Dossary said that Americans forced him to the ground and urinated on him. We put out our cigarettes on him. We shocked him with an electric device. We spat on him. We poured a hot cup of tea on his head. We told him that, quote, "we brought you here to kill you." We beat him until he vomited blood. We threatened to have him raped. We dressed him in shorts and left him in a frigid, air-conditioned room. We abandoned him in another room with no water. We invited him to drink from his toilet bowl, which he did. We wrapped him in an Israeli flag. We told him that we would hold him forever, and we told him that we would send him to Egypt to be tortured.

On a different day, we chained him to the floor, and cut off his clothes while a female MP entered the room. We dripped what we said was menstrual blood on his body. When he spat at us, we smeared this blood on his face. We kissed the cross around our neck and said, "this is a gift from Christ for you Muslims." We videotaped the entire episode.

There's no way to confirm that all this happened to al-Dossary. But other prisoners and officials at Guantanamo have described variations of every technique on the list, including the menstrual blood, the Israeli flag, the references to Christianity, the beatings, the sexual humiliation. Al-Dossary is interrogated still, about once a month. During one visit last winter, he asked Colangelo-Bryan, what can I do to keep myself from going crazy?

A few months later during a meeting, al-Dossary asked to go to the bathroom. Colangelo-Bryan and the MP stepped outside the hut and waited. After five minutes Colangelo-Bryan got concerned. He cracked the door open.

Jack Hitt

It wasn't al-Dossary's first suicide attempt.

Jack Hitt

Of course, as we're often told, this war is different. Who wants to be the one that let somebody go who then turns out to be the next 9/11 hijacker? So for the military, there is also this other new thing, a terrifying calculation that there can be no margin of error. Joe Margulies of the University of Chicago represents a few detainees and has been trying to make sense of what's happened at Guantanamo.

Jack Hitt

In this new war, the plan was to build a prison so bleak that the detainees would give up hope and talk. The military was given a mission, and they did a good job. But many prisoners are now moving into year five. If they're Al Qaeda, detainment is perfectly justified. No one argues that. But think about what these incarcerations are for men wrongfully and indefinitely detained. It's like being buried alive in a coffin.

Nobody knows how many of the prisoners are, in fact, the worst of the worst and how many are innocent, but we have a way to find out. It's called habeas corpus.

Ira Glass

Jack Hitt. Coming up, the most popular poem among prisoners at Guantanamo, or if not the most popular, at least it is very, very popular, we're told. That is in a minute, from Chicago Public Radio and Public Radio International, when our program continues.

Ira Glass

It's This American Life. I'm Ira Glass. Our program today, Habeas Schmabeas, stories from Guantanamo.

So where do things stand now? Well, in 2005, the President signed into law a bill that had solid bipartisan support that would end habeas rights forever for Guantanamo detainees. Whether that law is going to stand and whether detainees are going to get fairer hearings than the military CSRTs is actually still up in the air and is going to be resolved by the courts in the coming months and years.

This actually brings us to Act Two of our show. Act Two, September 11, 1660.

Habeas rights were originally created in England. And in one of the Supreme Court cases on this issue, 175 members of the British Parliament filed a friend of the court brief, an amicus brief, the first time in Supreme Court history that this has happened. And they argued, first of all, that British citizens being held at Guantanamo deserved better than when they were getting in terms of these rights. And they also said, essentially, are you guys nuts?

This is from their brief, "as members of Parliament of Westminster, amici have a duty to protect human rights and fundamental freedoms against the misuse of public power, the due process of law deeply rooted in Anglo-American legal and political heritage. The exercise of executive power without possibility of judicial review jeopardizes the keystone of our existence as nations, namely the rule of law, as well as the effective protection of human rights.

They also pointed out the history of habeas, how, after World War II, Winston Churchill wanted to suspend habeas rights for Nazi leaders and just shoot them. And it was the United States which argued for habeas and for trials, which led to the Nuremberg Trials.

They also, finally, pointed out how badly it had gone the last time that they, in England, tried to suspend habeas like this in the 1600s, they write. During the British civil war, the British created their own version of Guantanamo Bay and dispatched undesirable prisoners to garrisons off the mainland beyond the reach of habeas corpus relief. The guy who did that was named Lord Clarendon. And in England, one of our regular contributors, Jon Ronson, decided to look into it.

Jon Ronson

So it turns out that the last person to come up with this exact same way to sidestep habeas corpus is a lord I have never heard of, a not-household-name lord called Clarendon. Who was he?

I went to a professional, Tony McDonnell, who said he'd take me to Clarendon's grave in Westminster Abbey.

Jon Ronson

You have to be famous, or a great royalist, or at least someone who worked here, like an organist, to be buried here. Tony is a historian and a blue badge guide, an official Westminster tour guide. He took me down corridors and through chambers until we came to a flagstone on the floor.

Lord Clarendon's grave. He's in vaulted company. Henry V is buried just to his left. And Elizabeth I lies a couple of yards in front of him. Tony explains who Lord Clarendon was.

Jon Ronson

So Clarendon had this job. He was the king's advisor, in the middle of a civil war, in which the king was killed.

There were two sides. You've got the Monarchists, and then you've got the Puritans, who murdered the king because they saw the kingdom as debauched and decadent.

Now, I know you Americans see Puritans as kindly settlers, constantly sitting down to Thanksgiving dinner. We see them as bastards. They were religious fundamentalists. In other words they were--

Jon Ronson

The Restoration, this is when the whole sending people away to offshore islands with dubious sovereignty business took place. It was the period after the war. The Puritans had been defeated. The king, Charles II, was restored to power along with his main adviser, Lord Clarendon.

Consider what it was like for Clarendon and the Monarchists. They'd been in exile for years. Many of their friends and supporters had been locked up or killed. The Puritans had been vicious. They had killed the king, and many of the men who had done it were still at large, plotting out there. It was a 9/11-style trauma, and Clarendon behaved in a traumatized way.

Jon Ronson

The exact location of Lord Clarendon's Guantanamo is lost to history. It was probably in Jersey, or Guernsey, which today are rather nice seaside tax havens for the rich. But suspending habeas corpus didn't work out well for Lord Clarendon. He was impeached.

At his impeachment trial, he was accused of sending people away to, quote, "remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law, and to produce precedents for the imprisoning of any other of His Majesty's subjects in like manner."

And remember, democracy as we know it is still centuries away. Innocent until proven guilty. One man, one vote. Only the most extreme radicals held these views. These were dark times. There were heads on spikes all over London. And still, the people were shocked by Clarendon's disregard for habeas corpus.

Jon Ronson

The one outcome of all of this was the Habeas Corpus Act of 1679, which specifically forbade what Clarendon had done and made it illegal to send a prisoner, quote, "into Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands, or places beyond the seas, which are, or at any time hereafter shall be within or without the dominions of His Majesty." And forbade at his remains for 330 years. In England, anyway.

Ira Glass

Jon Ronson. He does documentaries for the BBC and is the author of the book, Them.

Ira Glass

Act Three, We interrogate the Detainees. Yes, the US military had their chance with them. In this act, Jack Hitt talks to two former detainees from Guantanamo. One of these guys, you've heard a little bit from earlier in our show, Badr Zaman Badr, the guy who ran the satirical magazine, in Pashto, with his brother in Pakistan. The other guy was 19 when he was picked up. Abdullah al Noaimi, a kid from well to do family in Bahrain. Here's Jack.

Jack Hitt

Abdullah wound up in American custody the way a lot of the men at Guantanamo did. He was a foreigner in Pakistan, and we were offering bounties for guys like that. Remember Murat Kurnaz, the guy whose friend was supposedly a suicide bomber? And Juma al-Dossary? The same thing happened to them.

In Abdullah's case, he was first taken to Kandahar, to a makeshift prison the US set up at an air base with about 20 men to a tent.

Jack Hitt

Badr, the satirist, was taken to that same air base at Kandahar.

Jack Hitt

in the camps, Badr got separated from his brother, the poet. So he devised a way to find him. The detainees didn't have toilets. Instead, they got a bucket, which got filled up with what Badr modestly calls "dirt." Every day, some detainee got chosen to empty the buckets. Badr volunteered.

Jack Hitt

The sanitary conditions were just as bad, if not worse, for Abdullah. The tent he shared with other detainees was open on all sides and located at the end of the military airstrip. Every takeoff and landing meant a tornado of dirt, the literal kind, blasted through. In the first few days, he heard the other prisoners in the tent talking about their interrogations.

Jack Hitt

This is not how he thought things would go with the Americans. In fact, back when he was being held in a Pakistan jail, when he found out that Americans would be taking them, he was relieved. He told the other prisoners it was good news. He knew America. He knew how the people were.

Jack Hitt

So how did he know so much about American supermarkets? Well, in 1994, he came to America for the World Cup finals. In fact, Abdullah has been here a lot. He's been downhill skiing in the Midwest. He attended Old Dominion University in Virginia for a while, and has taken other trips, too.

Jack Hitt

So a year after seeing the sights at Daytona Beach, Abdullah found himself facing an American interrogator in Kandahar.

Jack Hitt

Badr had learned of the West from more scholarly sources. He's a big fan of the Canterbury Tales and Gulliver's Travels. And he also knew about the Geneva Conventions, and spoke up when he realised they weren't going to apply.

Jack Hitt

Finally Badr and Adbullah were each taken out of the camps at Kandahar and put on a plane to Guantanamo. Remember, this is an international flight from Afghanistan to Cuba, over 20 hours long.

Jack Hitt

Once they got to Guantanamo, both Badr and Abdullah described being stripped naked, medically examined, and then put into cages until a new round of interrogations began.

Jack Hitt

Abdullah and Badr, by the way, arrived at different times at the base and never knew each other. But they both described meeting lots of ordinary people, farmers, teachers, cab drivers, who were also sold to the Americans. Abdullah talked to one guy who has sold by his own father-in-law. Badr met men who had never even heard of Osama bin Laden. After a while, some of them couldn't help but showcase the absurdity of the situation.

Jack Hitt

Abdullah was originally arrested while traveling in Pakistan. A man offered him a meal and a place to rest and later turned him over to the Army for the bounty. Abdullah says he saw the money change hands at the jail.

Once in American custody, he was accused of traveling to Afghanistan and proclaiming his desire to carry out Jihad.

Jack Hitt

So much of what we hear about Guantanamo is about the harsh treatment there, but of course, like any place, the days mostly pass in boredom. The interrogators might be rough, but the MPs and guards who had to spend time with the detainees sometimes would get comfortable and start talking to the prisoners.

Jack Hitt

To pass the time, the prisoners would sing together, or try out new poems they'd written. They developed a secret postal system for passing notes and photos, and figured out how to talk to each other through the air conditioning vents. Sometimes, the guards and prisoners would hold little competitions, like the Styrofoam cup challenge. The object was to turn the cup inside out, without cracking it. The guards went first.

Jack Hitt

Since pen and paper were forbidden, Badr's brother wrote his poetry by scratching the words into Styrofoam cups with his fingernails. After a year, they were allowed to use pens and to read books. Abdullah read David Copperfield. Badr and his brother composed some 25,000 lines of verse. The other inmates memorized the best of them. The most popular couplet went like this.

Jack Hitt

Get that? There's no oil or salt in the rice.

Jack Hitt

Finally, one day, four years after he left Pakistan, Abdullah was pulled aside by a military officer who had news. Abdullah was going home. Abdullah says he was asked by a government lawyer, a major, to sign a contract promising not to join a terrorist group and giving the US permission to rearrest him at any time.

He refused to sign. Other detainees say they were shown similar letters and also refused to sign, believing this was just another trick.

Jack Hitt

And just as suddenly, Abdullah was on an airplane and back in Bahrain. He was quickly ushered past the news media and into a room where he saw his family. They greeted me, they welcomed me, they hugged me and everything. Then they took me home. I didn't tell them anything.

Everybody's crying. I left my sister, she was very, very young, about five, six years. I didn't know her when I saw her. She was like a lady.

Jack Hitt

In the years Abdullah was gone, his parents moved to a new house, a big house with lots of rooms. But there was no bedroom for him. His old clothes were gone. They thought he would never come home. He says, it's like he's come back from the dead.

Ira Glass

Jack Hitt, in New Haven.

Ira Glass

Our program was produced today by Sarah Koenig and myself, with Alex Blumberg, Diane Cook, Jane Feltes, Amy O'Leary and Lisa Pollak. Our senior producer is Julie Snyder. Elizabeth Meister runs our web site. Production help from Sam Hallgren and Thea Chaloner. And our music help from Jessica Hopper.

[ACKNOWLEDGEMENTS]

Our web site www.thisamericanlife.org. And you can download today's program in our archives at audible.com/thisamericanlife.

This American Life is distributed by Public Radio International. WBEZ management oversight for our program by Mr. Torey Malatia. You know what he always says about us.

Ira Glass

I'm Ira Glass. Back next week with more stories this of this American life.

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