Catch 9/11

by digby

Yesterday the Supreme Court heard a case which boils down to the question of whether denying habeas corpus really is fine and dandy as long as the government provides something just as good. For those who missed it yesterday, here’s a story in the Washington Post that shows what “just as good” means in practice:

Just months after U.S. Army troops whisked a German man from Pakistan to the militaryprison at Guantanamo Bay, Cuba, in 2002, his American captors concluded that he was not a terrorist.

“USA considers Murat Kurnaz’s innocence to be proven,” a German intelligence officer wrote that year in a memo to his colleagues. “He is to be released in approximately six to eight weeks.”

But the 19-year-old student was not freed. Instead, over the next four years, two U.S. military tribunals that were responsible for determining whether Guantanamo Bay detainees were enemy fighters declared him a dangerous al-Qaeda ally who should remain in prison.

The disparity between the tribunal’s judgments and the intelligence community’s consensus view that Kurnaz is innocent is detailed in newly released military and court documents that track his fate. His attorneys, who sued the Pentagon to gain access to the documents, say that they reflect policies that result in mistreatment of the hundreds of foreigners who have been locked up for years at the controversial prison.

The Supreme Court intends to weigh the legitimacy of the military tribunals at a hearing this morning. Lawyers for Kurnaz and other detainees plan to argue that the panels violate the U.S. Constitution and international law. They say that the proceedings have not provided Guantanamo Bay detainees with a fair and impartial hearing.

Lawyers for the Bush administration will argue that the tribunals have afforded suspected enemies all the rights to which they are entitled. The administration maintains that detainees need not know all of the evidence against them. The tribunals were established in 2004 after the Supreme Court ruled that such panels are needed when holding prisoners indefinitely, and Congress endorsed them in 2005.

[…]

German and American intelligence officers interviewed Kurnaz in September 2002, records show. They jointly concluded that nothing was linking the man from Bremen to terrorist cells or enemy fighters and that he should be freed. In a memo dated May 19, 2003, the commanding general of the Criminal Investigation Task Force, a Pentagon intelligence unit that interrogates detainees and collects evidence about them, wrote that “CITF is not aware of evidence that Kurnaz was or is a member of al-Qaeda. CITF is not aware of any evidence that Kurnaz may have aided or abetted, or conspired to commit acts of terrorism.”

After the Supreme Court ruled in 2004 that Guantanamo Bay prisoners could not be held indefinitely without fact-finding by an objective tribunal, the Pentagon hastily assembled panels of field-grade officers to serve as Combatant Status Review Tribunals. Since they began, the panels have overwhelmingly supported continued detention of those at Guantanamo Bay, ruling that 534 detainees were “enemy combatants,” while only 38 were not.

In September 2004, one such panel cited intelligence on a suicide bombing by someone Kurnaz allegedly knew — an account later found to be incorrect — in concluding that Kurnaz was “properly classified as an enemy combatant” and was a member of al-Qaeda.

In a previously classified passage of her ruling, Green said the panel ignored “conflicting exculpatory evidence in at least three separate documents,” thereby raising questions about its impartiality. The only solid information in Kurnaz’s file showed that the CIA, U.S. military intelligence and German intelligence found nothing linking him to terrorist groups, she said.

[…]

“However the record in Kurnaz is interpreted, it definitively establishes that the detainee was not provided with a fair opportunity to contest the material allegations against him,” Green wrote. Until recently, much of her denunciation was classified, by a court security office relying on Pentagon and Justice Department officials for advice on what to conceal from the public.

In January 2006, another military review panel decided once again that Kurnaz was still “a danger” and should remain at Guantanamo Bay. Internal Defense Department e-mails show that this administrative review board, roughly comparable to a parole board, did not look at the material that Kurnaz’s lawyer had submitted to make its decision.

After a public uproar in Germany over the German government’s role in Kurnaz’s continuing imprisonment, Merkel pressed Bush at a private meeting that January to release him. In July 2006, an unusual second review board convened.

[…]

Not until August 2006, nearly five years after his imprisonment began, was Kurnaz flown home, goggled, masked and bound, as he had been when he was flown to Guantanamo Bay. As U.S. military officials led him out of Ramstein Air Base, and as he was about to take his first steps onto German soil, the Americans offered to leave plastic wrist cuffs on their former prisoner. German federal police declined.

That makes my blood run cold. This man was released because Germany’s prime minister made a personal plea to the President, which many supporters of the current policies will tout as evidence that the Guantanamo system works. That sounds a lot more like a petition of a King from a neighboring monarch than the rule of law.

We don’t know what the Supremes will decide on this. Judging from the questions, the Chief Justice doesn’t think there’s any reason to rush out a verdict — hey, what’s six years of your life? They got three squares a day and a few forced enemas and torture sessions never hurt anyone. Innocent, schminocent.

I’ve always thought that the primary problem here is that the hardliners have created a Catch 22 they believe they can’t get out of. In their post 9/11 hysteria (and the desire to violently shove people around to prove they could do it) they snatched up a bunch of random Muslims in 2002 and 2003, beat and tortured them, imprisoned them in a far off country for years on end and denied them any hope of ever being freed.

They now know that while many of these people weren’t terrorists before, the treatment they received at our hands created an understandable seething hatred for the United States. The only solution they can think of is to just keep them locked up forever, like monsters they created in some scientific experiments gone wrong.

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