U.S. government officials arrange for proxy jailers in a foreign country to arrest a man, who is then held incommunicado, interrogated and tortured. Although our government determines that the factual basis for its requested detention was wrong — impossible, actually — the man nonetheless then, with no judicial involvement, is transferred to and tortured at one horrifying prison after another.
Eventually, painfully shackled, suffocated and half dead, he is dumped at a U.S. military base, where he languishes for more than a dozen years. The government insists that it can incarcerate him there indefinitely without a charge or a trial.
If this Kafkaesque fact pattern had been presented as an exam question when I was in law school in the 1970s, we fledging legal minds would have considered the hypothetical too Orwellian and outrageous to merit serious consideration.
The facts in question shred the Fourth Amendment guarantee against unreasonable searches and seizures; eviscerate the Fifth Amendment protections of due process, the presumption of innocence, and the requirement that interrogation occur without coercion; negate the Sixth Amendment assurances of a fair and speedy trial with the charges made plain; decimate the Eight Amendment rights to a reasonable bail and safety from cruel and unusual punishment; and reject the First Amendment’s promise of freedom of speech and association and of the press.
Of course, the fact pattern is not hypothetical. The fact pattern is Guantanamo.
And if you want to understand Guantanamo, both its horror and its significance for America, you will want to read the recently published “Guantanamo Diary,” a gripping and harrowing book written by Mohamedou Ould Slahi in the Guantanamo Bay prison camp in 2005.
Slahi is still locked up there. It took seven years of litigation for his writing to be released from the grip of U.S. government censors, who imposed over 2,500 black redactions over his words. Still, in his autobiography, Slahi’s story shines through in a bright and chilling light.
On Nov. 20, 2001, Slahi, then a 30-year-old electrical engineer in Mauritania, was instructed by his country’s law enforcement (as per the American demand) to report to the intelligence ministry. He drove from his house to the meeting, hoping not to be gone long. Thirteen years have passed, and he has yet to return home.
In prisons in Mauritania, then in Jordan, Bagram Air Force Base and Guantanamo, Slahi was interrogated and tortured. He was in strict solitary confinement in complete darkness, chained to a filthy floor. He was subjected to constant freezing temperatures, beatings, sleep deprivation until he hallucinated, 24-hour interrogations, sexual abuse and humiliation.
Those were but some of the techniques former Secretary of Defense Donald Rumsfeld personally approved and helped devise that were inflicted on him.
The reason for the torture, the ostensible justification? Our government had decided that Slahi somehow had participated in planning the millennium plot, the terrorist scheme to blow up the Los Angeles airport even though, it turns out, our own intel proved beyond all doubt that he had no involvement.
Our government then decided that Slahi played some part in planning 9/11. But again, America’s intelligence services, as well as those of other countries, disproved the possibility.
Still, Slahi remained in Guantanamo. His continued detention, a result in search of a rationale, required our government to invent yet another alleged justification: Because Slahi had fought with al Qaeda in 1991 in Afghanistan against the Russians and occasionally had email contact with a couple of the fighters after that, our government stamped the moniker on him of a continuing terrorist threat.
In 2010, federal District Court Judge James Robertson, after reviewing in minute detail all the evidence amassed against Slahi, including all the torture-induced statements, found the government had failed to prove any basis to hold him.
But the Obama administration appealed, and the Court of Appeals for the District of Columbia ruled that being vaguely associated with a terrorist group could constitute legal reason enough for indefinite detention at Guantanamo. That decision utilized a legal standard akin to guilty until proven innocent. Two more years have passed, and Slahi remains in legal limbo.
Last month’s Sunday New York Time’s review of “Guantanamo Diary” began with the observation that, after 9/11, our national character changed. What previously had been unthinkable became commonplace. Torture, indefinite detention and even murder of the innocent became acceptable as norms — collateral damage — of the war on terror. The review concluded: “America has crossed a gulf. We know where we came from, and we [now with Slahi’s and others’ narratives] know where we are, but we do not yet know how to get back.”
Perhaps. But we clearly could take a step toward restoring fundamental freedoms in America by releasing Mohamedou Ould Slahi.
Slahi’s habeas lawyer, Nancy Hollander, says her client’s deep hope is that the widespread reading of his diary will accelerate not only his own freedom, but will result in either a trial or release for all the men languishing in Guantanamo. She urges all of us committed to the rule of law, especially attorneys, to read Slahi’s words and then let our voices be heard.
Bill Newman is director of the western regional office of the American Civil Liberties Union of Massachusetts and author of “When the War Came Home.” A version of this column originally appeared in Massachusetts Lawyers Weekly, sister publication to The Daily Record.