FIFTEEN AMERICAN SOLDIERS WATCHED over a man, shackled to a seat in the cargo bay of a C-17 Globemasterthe Air Force workhorse that usually moves Abrams tanks, Chinook helicopters or infantry vehicles. Wearing goggles that shut out all light, a soundproof headset and a mask that covered his mouth so he could not speak, spit or bite, the prisoner arrived at Ramstein Air Force Base in Kaiserslautern, Germany, under the tightest security. The plane had burned through 36,000 gallons of jet fuel and had refueled in flight. During the seventeen-hour ride, the prisoner was provided with neither food nor water. Nor was he allowed to stretch his legs or relieve himself.
This was how what had been the world’s greatest democracy when George W. Bush took the presidential oath in 2001 repatriated an innocent man who’d never represented a security threat to the United States. Murat Kurnaz was nineteen when he was taken off a bus in Peshawar, Pakistan. He had, as many first- or second-generation Muslims in Europe do, turned to a religion his family had abandoned when they emigrated from their native land. His religious awakening put him in proximity to Islamic fundamentalists: sufficient justification for detention by American forces, after the terrorist attacks of 9/11, as a supposed member of Al Qaeda.
Kurnaz was twenty-four and had been the last European held at the American prison camp in Cuba when the Globemaster touched down in Kaiserslautern in August 2006. He didn’t know he’d been returned home to Germany until an American enlisted man removed his goggles and he saw three German policemen standing outside the airplane.
“He was dumped on German soil like some sort of alien,” said Bernhard Docke, one of Kurnaz’s attorneys, from the north German city of Bremen.
MURAT’S STORY—Murat Kurnaz, German born of Turkish parents, could be an expert witness and fact witness for any legislative or judicial procedure that would cast a cold eye on the transgressions of law, the Constitution or the fundamental precepts of human rights perpetrated by George Bush’s terror warriors. Pick your amendment. Fifth: one is not compelled to be a witness against oneself, or deprived of life, liberty or property, without due process of law. Eighth: protection against cruel and unusual punishment. Fourteenth: the state cannot deprive someone of life, liberty or property without due process.
The habeas corpus statute? For innocent detainees caught up in the sweeps that followed the terrorist attacks of September 11, 2001, there is no legitimate legal process that can be resorted to. No legal cause of action against the U.S. government. Not even an apology, if you’re released.
“They threw my clothes over the fence,” Kurnaz said in an interview in his lawyer’s office in Bremen. “They told me, get ready to move. I thought to another prison; then I was back in Germany.” That the U.S. soldiers continued to curse and humiliate him during the flight from Guantánamo gave him reason to believe he wasn’t flying home to freedom. “They treated me the same as always,” he said. “Like I was the number one terrorist.”
Kurnaz represents a secondary problem related to the human rights violations occurring in the prison system Donald Rumsfeld situated ninety miles from Key West, beyond the reach of American law. After a prisoner has been subjected to “enhanced interrogation” (a phrase in U.S. military manuals and memos that is a direct translation of verschärfte Vernehmung, a euphemism for torture the Gestapo coined in 1937), you don’t want him returning home to tell his story.
But that’s precisely what Murat Kurnaz has done. His Fünf Jahre meines Lebens: Ein Bericht aus Guantánamo (Five Years of My Life: A Report from Guantánamo), is a straightforward account of his rendition, torture, detention and interrogation by American forces—torture that continued in Guantánamo. It even identifies a few of his tormentors, whose name tags were visible until Major General Geoffrey Miller took command and ordered all American personnel to remove anything that might identify them.
Kurnaz is beginning to appear in public to promote his book, described in the June 7 issue of The Economist as “a Swiftian tale” of a man who “survived by brawn and brains.” On June 19 he was a guest on the TV show Beckmann, Germany’s equivalent of PBS’s Charlie Rose. On the same day in Washington, George Bush’s nomination for the CIA’s general counsel, John Rizzo, spent an hour equivocating before the Senate Intelligence Committee regarding one subject with which Kurnaz has experience: torture.
For one man torture was abstract and theoretical. For the other, it was concrete and immediate.
CIA counsel nominee Rizzo said in response to a question asked by Senator Carl Levin (D-MI): “I’m trying to be responsive . . . without getting into a detailed explanation. We believed then and we have believed throughout this process that the CIA program, as it was conceived, when taken in toto, justifies the conclusion that the program was, from the outset, and remains conducted in a humane fashion.”
Murat Kurnaz was more direct. “In Kandahar,” he said, “they hanged me by my hands.”
A massive, muscular man with a long reddish beard down to his chest and hair pulled back in a ponytail, Kurnaz speaks good, if basic English. He’s a bit of a contradiction: a fundamentalist Muslim who drives a sports car and dresses as though he selects his clothes from GQ ads. His English improved considerably at Guantánamo. Kurnaz reluctantly agrees to interviews with reporters, though he earned a substantial amount of money for two exclusives with Der Stern magazine and a German television network. He tends to end interviews abruptly with the same line.
“I have to stop now.”
FROM JAIL TO JUSTICE—There are two Murat Kurnaz narratives. One is found in the paper trail and legal pleadings assembled by his two lawyers, Bernhard Docke in Bremen, Germany, and Baher Azmy from Seton Hall Law School in New Jersey. The other is his personal account of his five years in American custody.
The legal process by which Kurnaz was freed from Guantánamo was, in a sense, irrelevant. It’s not precedent-setting, because there is no effective process that provides detainees access to justice. He is one of very few whose situation was eventually considered by an American court. His case is the best example of why the military tribunals conducting trials at Guantánamo are fundamentally flawed.
In January 2005, Washington, D.C., federal district Judge Joyce Hens Green ruled on Kurnaz’s case, along with the cases of ten other detainees. During his Combat Review Status Hearing in Guantánamo, Kurnaz had appeared before a panel of three military officers. He had no legal representation and was not allowed to see the classified evidence used to declare him a member of Al Qaeda. Before his hearing in Washington, some of the classified evidence used against him was inadvertently declassified and obtained by the Washington Post. It included reports that established that two years earlier, the Command Intelligence Task Force that oversees Guantánamo had concluded there was “no definite link/evidence of detainee having an association with Al Qaeda or making specific threats against the U.S.”
Judge Green reviewed the evidence and found nothing that justified holding Murat Kurnaz in prison. Among the hundreds of pages used to declare him a member of Al Qaeda, the smoking gun was a single document with vague allegations made by an unidentified officer. The judge was disturbed by the fact that Kurnaz, like other detainees, was never permitted to see or rebut the allegations that kept him in a cage in Guantánamo.
During the trial it was also revealed that a friend of Kurnaz’s who was reported to have carried out a suicide bombing in Turkey—another bit of incriminating evidence—was alive and well in Bremen. And that German intelligence officers traveled to Guantánamo to interview Kurnaz and concluded he had not been involved in any terrorist activity in Germany. They even tried, at one point, to recruit him to return to Bremen and work undercover for them in the mosque he attended before going to Pakistan to study Islam. They later concluded he was so unconnected—and unsophisticated—he would be of no use to them as a snitch.
Yet nothing the judge did would result in his release. Judge Green ruled in his favor, devoting a number of pages in her 75-page opinion (some redacted) to the government’s sloppy prosecution and lack of evidence against this man. But the heart of her ruling was that the process was basically illegal. The ruling was stayed, pending a decision at the appellate level. And after the trial, the then-Republican Congress passed the Military Commissions Act, which included a controversial provision by Senator Lindsey Graham (R-SC) that denied all detainees the right to file habeas corpus petitions. The habeas corpus right that Judge Green had provided as an avenue out of Guantánamo was stripped away by Congress.
Kurnaz was released only because Azmy and his colleague in Germany, Bernhard Docke, took his case to the court of public opinion in Germany. Their skillful use of the media persuaded German chancellor Angela Merkel to prevail on George Bush to release Kurnaz. Merkel raised the issue on her first visit to the White House in January 2006. The irony was evident: the Conservative chancellor who defeated Social Democrat Gerhard Schroeder, who had led a “red-green” coalition and was Europe’s most strident critic of Bush’s Iraq War, had delivered a German resident from Guantánamo, after Schroeder had allowed him to languish there for years.
“No one gets out of Guantánamo by any legal process,” Azmy said. “Because there is none.”
COUNTER-ATTACK—It’s now clear that the administration’s attempt to maintain a detention center beyond the reach of U.S. law has failed. Eleven district judges have ruled against Guantánamo. There have been adverse rulings by the Supreme Court. And on June 4, two military judges in Guantánamo ruled that two detainees on trial were not properly designated “unlawful enemy combatants.” A week later, a three-judge panel on the federal appeals court in Richmond, VA, ruled that the President cannot designate civilians who are in this country “enemy combatants” and order the military to hold them indefinitely. The ruling pertained to a citizen of Qatar arrested in 2001in Illinois, where he was a computer science student. A mid-June campaign by high-level White House staffers to begin planning to close Guantánamo was stopped by Dick Cheney. But there are enough stand-up judges to put Bush’s squalid extra-judicial prison out of business. Or It will be done by the Congress in 2009, if no President Giuliani or Thompson is in office to veto it.
Kurnaz’s five-year detention brings up another grave issue, one that the courts and the Congress have largely avoided. It was briefly addressed on June 19 at the Senate Intelligence Committee meeting, when committee chair John Rockefeller (D-WV) questioned John Rizzo. Rockefeller asked Rizzo about the memo Jay Bybee wrote at the Justice Department’s Office of Legal Counsel in August 2002. (Bybee is now a Federal Appeals Court judge.) The memo, written in collaboration with John Yoo and widely known as the “Torture Memo,” redefined torture as an act that inflicts pain equivalent in intensity “to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death.”
Rizzo told Rockefeller he initially thought the expanded definition of torture was acceptable. The memo was later repudiated by the Office of Legal Counsel, but it was written both to expand the legal definition of torture and to provide cover for CIA agents pushing the envelope to the extreme limits described in the memo. Rockefeller pursued a second line of questioning, one that human-rights and personal-injury lawyers should be considering regarding cases like that of Murat Kurnaz. The senator asked Rizzo if he was aware of CIA agents’ concerns that they could be exposed to criminal prosecution for their involvement in the interrogation program. Rizzo said yes.
Murat Kurnaz was picked up in Pakistan in December 2001, before then-White House counsel Alberto Gonzales signed off on the torture memo. Kurnaz and hundreds of others were subjected to “illegal torture” (what a concept) before Bybee and Yoo drafted a memo that would protect the torturers from prosecution. The expanded legal definition of torture in their memo doesn’t provide cover for those agents who tortured Kurnaz immediately after he was detained.
“The beatings began as soon as I was turned over to the Americans,” Kurnaz said. Once in the Americans’ hands, he was transferred to a camp at Kandahar, in Afghanistan, where suspected terrorists were held in tents. His account of his torture at the hands of the Americans—in his book and in interviews—is clear-eyed and consistent. He has repeated it in testimony before a committee of the German parliament, where he was described as a “very credible witness.”
In the prison camp in Kandahar, Kurnaz said, he was hoisted on chains and was forced to hang by his hands while he was being interrogated. He was left hanging for “hours and days” after the interrogators left. An American physician in camouflage would come and check his vital signs to determine if he could withstand more enhanced interrogation.
The doctor’s house call must have failed Kurnaz’s neighbor in the next room. “They were hanging me and pulled me up higher than the other times. I could see the man in the other room. He was hanging, too. Maybe they lifted him higher that time, too, I don’t know. I had heard him moaning and breathing; this is the first time I saw him. He was dead. The color of his body was changed and I could see he was dead.”
Kurnaz said he was also subjected to waterboarding and electric shock. And that beatings were routine and constant. He theorizes that much of the torture was a result of the failure of the American soldiers and agents to capture any real terrorists in the initial sweeps. (He was told that he was sold to the Americans for $3,000 by Pakistani police, who identified him as a terrorist.) “They didn’t have any big fish. And they thought that by torture they could get one of us to say something. ‘I know Osama’ or something like that. Then they could say they had a big fish.”
The German government is still conducting a parliamentary inquiry into its complicity in the Kurnaz case. Ultimately Kurnaz may have a legal cause of action to seek some reparations from his government. As for the U.S. regime, the Bush administration’s attempt to create a unitary presidency that uses war to justify executive powers never imagined by the men who negotiated our Constitution has been unmasked, and the Bush-Cheney presidency is in its last throes. When it is gone, or even before it packs up and moves on, some plaintiff will likely find legal counsel and a forum in which to litigate these issues.
In such a case, Kurnaz’s book and testimony will be useful. He’s written a primer on rendition, incarceration and torture. It’s being translated by a U.S. publisher for a January release. It’s not Solzhenitsyn, but it’s a gripping account of life in an American gulag.
Movie rights have been sold in the U.S.