Moussaoui and the Hidden Detainees
The most important aspect of Zacarias Moussaoui’s prosecution may have little to do with Moussaoui himself. Although he is an admitted member of Al Qaeda, and the sole defendant being tried for the September 11 terrorist attacks, Moussaoui makes a puny target among terrorist bad guys.
Despite the Justice Department’s best efforts to inflate Moussaoui’s importance (a campaign led by Attorney General John Ashcroft, who characterized Moussaoui’s indictment as "chronicle of evil"), few really believe that Moussaoui’s conviction will do much to thwart global terrorism. Moussaoui is, at most, a foot soldier, perhaps a nutty one. He’s Richard Reid, not Osama bin Laden.
The larger significance of Moussaoui’s case lies elsewhere. It is, at present, the only legal peephole by which to glimpse the circumstances of a much more important group of terrorist suspects: those, like Khalid Sheikh Mohammed and Abu Zubaydah, who are held by the U.S. military for interrogation in "undisclosed locations." Although Moussaoui’s legal claims only address their predicament indirectly, the courts’ resolution of his case will have important implications for these detainees’ legal status and treatment.
Right now, the detainees are missing, "disappeared," vanished with hardly a trace. No one knows where they are, and little is known about how they have been treated, although disturbing reports are occasionally leaked.
These hidden detainees are in a frightening legal limbo. It is time for the judiciary — and the Supreme Court, eventually — to step in.
No U.S. official has divulged the names of all of the hidden detainees, nor, to my knowledge, has anyone else kept a comprehensive count of them. More than a dozen high profile Al Qaeda suspects are known to have been captured and detained by the military in undisclosed locations, but presumably many lesser figures are also being held.
The fate of these detainees has received relatively little attention. While the media point outs, and sometimes even criticizes, the legal limbo in which the so-called enemy combatants detained on Guantanamo find themselves, few have bothered to examine the even more precarious status of this other group of detainees.
The detainees on Guantanamo, at least, are allowed to correspond with their families, practice their religion, and receive regular visits by delegates of the International Committee of the Red Cross. The military even releases occasional updates on incidents on Guantanamo — for example, on the numerous suicide attempts among detainees — whereas it provides no such information about those in undisclosed locations.
Nearly all the information we have about the hidden detainees is based on leaks. There are rumors as to where they are held — some have mentioned the island of Diego Garcia, and certain special areas of Bagram military base in Afghanistan.
And there are occasional, more troubling reports as to how they are treated. The New York Times and the Washington Post, based on interviews with unnamed U.S. officials, have published credible descriptions of the abusive treatment of these detainees. Although none of the reports mention such classic torture techniques as electric shocks or mutilation, they do describe physical and psychological "stress and duress" techniques, including being held blindfolded or hooded, bound in awkward painful positions, and deprived of sleep for prolonged periods.
An Even Darker Legal Black Hole
Two petitions for writs of habeas corpus have been brought on behalf of the Guantanamo detainees, one in Los Angeles and one in Washington, DC. The courts, to date, have denied the petitions, holding that Guantanamo, which is technically Cuban territory, is beyond their jurisdiction. Although the Supreme Court declined to review the first case, which had been dismissed based on technical rules of standing, it is currently considering whether to hear the second, which was brought by family members of some of the detainees.
No similar legal challenges have been brought on behalf of the hidden detainees. (Like the Guantanamo detainees, it’s worth noting, they have no way of filing suit themselves.) Since they are similarly situated to the Guantanamo detainees, only more so, any case on their behalf would face similar, yet even more daunting legal obstacles.
Access to the Issue Through the Moussaoui Case
But the Moussaoui case, albeit in an indirect way, now offers a tiny opening by which the courts have access to these detainees. Moussaoui claims — and the district court hearing his case has agreed — that some of the hidden detainees should be allowed to offer exculpatory testimony in his case. According to Moussaoui, high-ranking al Qaeda leaders such a Ramzi bin al-Shibh can attest to his lack of involvement in the September 11 plot.
Even though the district court did not grant Moussaoui direct access to question the detainees — ordering, instead, that it be done via remote video hookup — the government still protested. Arguing that allowing the deposition of the detainees would irreparably harm its interrogation of them, it refused to comply with the court’s order.
The district court did not dismiss the indictment in response to the government’s defiance of its ruling, as some had expected would happen. (The government itself even seemed to encourage such an outcome, knowing that this would give it an easy justification for transferring the case to a military tribunal. Strategically, however, this would have presented its own set of problems, however, since Moussaoui’s extended contacts with the federal courts might have militated in favor of eventual federal court review of his military commission sentence, a contingency the government would undoubtedly like to avoid.)
Instead, the court barred prosecutors from seeking the death penalty against Moussaoui, and from presenting any evidence or argument that the defendant was involved in, or had knowledge of, the September 11 attacks.
Under the Sixth Amendment, Moussaoui has a constitutional right to "compulsory process for obtaining witnesses in his favor." What the government argues, however, is that, as with the Guantanamo detainees, the courts’ jurisdiction does not extend to these potential witnesses. Even though the detainees are in the custody of U.S. officials, argues the government, they remain beyond the reach of the courts.
"Of Interrogation and Time"
The courts’ failure, so far, to extend legal protection to detainees on Guantanamo and other undisclosed locations has few precedents in American law. Internationally, however, the precedents are recent, and troubling.
During Argentina’s period of military dictatorship, from 1976 to 1983, the country’s courts largely abdicated their duty to protect the rights of detainees in military custody. Even though desperate relatives filed thousands of habeas corpus petitions, only two of them led to the release of detainees from clandestine prisons. One of the two released was Jacobo Timerman, a journalist whose remarkable memoir of the period, Prisoner without a Name, Cell without a Number, describes what it is like to be held indefinitely beyond the reach of the law.
His book, which merits re-reading now, speaks of the pain of "the long endless stretch of time, made up of time and more time, of interrogation and time, of cold and time, of hunger and time, of tears and time."
In the first week of December, the U.S. Court of Appeals for the Fourth Circuit will hear oral argument in the government’s appeal in the Moussaoui case. The issue on appeal is, as the Fourth Circuit noted in an earlier opinion in the case, "one of extraordinary importance." It is important for Moussaoui — whose life is at stake — but also for many others.
JOANNE MARINER is a human rights lawyer based in New York. She can be reached at: firstname.lastname@example.org