Interrogation, Torture, the Constitution, and the Courts

[DuctapeFatwa]

In concluding last month that prisoners held on the Guantanamo naval base in Cuba have the right to challenge their detention in federal court, the U.S. Court of Appeals for the Ninth Circuit focused on the question of Guantanamo's legal status. Much of the court's long and scholarly opinion is taken up by a close examination of the terms of the 1903 lease agreement between the U.S. and Cuba...few phrases that lie near the end of the majority opinion grab the reader's attention.

According to the government's stated position in the case, the detainees have absolutely no legal right to question U.S. actions on Guantanamo. Federal court jurisdiction should be foreclosed, government counsel insisted during oral argument before the Ninth Circuit, even if the plaintiffs were to claim that their captors were committing "acts of torture" on Guantanamo or were "summarily executing the detainees."

The government's assertion that torture and summary executions might be carried out without recourse to the law clearly shocked the court. Reminiscent of Argentina's "dirty war" or the Soviet Gulag, the notion of a legal vacuum in which abuses can be freely committed hardly squares with American constitutional traditions. Indeed, the court emphasized, "to our knowledge, prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition."...how the Supreme Court decides them will be a telling indicator of its commitment to enforcing the rule of law.

Like the Guantanamo case, the Moussaoui appeal raises critical questions about the government's power to detain and interrogate terrorist suspects in the absence of any legal process or court review..locked naked in a cell with no trace of daylight. The space would be filled night and day with harsh light and noise, and would be so small that he would be unable to stand upright, to sit comfortably, or to recline fully. He would be kept awake, cold, and probably wet. If he managed to doze, he would be roughly awakened. He would be fed infrequently and irregularly, and then only with thin, tasteless meals.....gradually be reduced to a seething collection of simple needs, all of them controlled by his interrogators."...

http://writ.news.findlaw.com/mariner/20040105.html