Transcript

331:

Habeas Schmabeas 2007
Transcript

Originally aired 04.27.2007

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Prologue.

Ira Glass

So here's how a lawyer meets with his client when his client is a prisoner at Guantanamo. There's a little hut with a metal table.

Joseph Margulies

He's brought out of the box and shackled to an eye bolt in the floor with his back to the door. He's forbidden to face the natural light.

Ira Glass

Joe Margulies of the University of Chicago represents a few detainees at Guantanamo, and he says that to understand that thing about the natural light, you have to understand that the detention facilities at Guantanamo were designed to be the perfect interrogation chambers. And so anything the prisoner wants, including sunlight, he's only going to get with the permission of his interrogators as a reward for cooperating. And anything can be used that way.

Joseph Margulies

Mail. Another lawyer discovered when he first got there that his client, a middle-aged gentlemen with five children. He's a London businessman who was picked up in the Gambia, and he wasn't getting any mail from his family, and he couldn't understand it because he felt abandoned and alone from his five children. And the lawyer had the presence of mind to make inquiries to see what was the matter and discovered that 16 letters were in the military's possession that they had refused to deliver. And when they did finally deliver them, someone had actually taken the time to redact out the words from the children, we miss you daddy, we love you daddy, we're thinking of you. That is apparently not right because it disrupts the sense of isolation and despair that they are trying to cultivate.

Ira Glass

If prisoners feel despair, they'll cooperate, they'll talk. They'll tell us all the dangerous things they know. That's the idea. Let's make them feel hopeless.

Ever since President Bush announced the global war on terror, we've been told this is a different kind of war with different rules. The battlefield isn't a jungle in Asia or a beach in France, it's everywhere. Soldiers aren't guys in uniform, they could be anybody. And prisoners of war are different too. So dangerous, we're told, that we keep them in an offshore facility and as close to total secrecy as possible. To interrogate whenever we want, however long we want, using methods we have never approved for other wars.

And one thing that's just weird about Guantanamo is that in all of these years that it's been going, why haven't we seen more of these guys on radio and TV? Roughly 400 of them have been released. About a year ago on our radio show we were talking about this and we realized that none of us had ever read or heard any interview with any of them. And so we decided that we were going to try to get some of these guys onto the air. And the show that we put together and put on the air a year ago with those interviews just won a big award, the Peabody Award. And so because of that, we bring you that show again today. Updated here and there where the facts have changed a little bit.

And so today you're going to hear from two of these Guantanamo detainees who have been released. And I believe you're going to be very surprised at what they're like. We're also going to try to explain, once and for all, what all of these kind of technical sounding things about hearings and raids and new rules of war that we all hear in the news from time to time, what it all adds up to. It's This American Life from Chicago Public Radio, distributed by Public Radio International, I'm Ira Glass.

Act One. There's No U.s. In Habeas.

Ira Glass

Our guide for all of this is Jack Hitt. Here he is.

Jack Hitt

As best as they can tell, Badr Zaman Badr and his brother were imprisoned in Guantanamo for three years for telling a joke. Actually, for telling two jokes. They ran a satire magazine in Pakistan that poked fun at corrupt clerics, sort of the Pashto edition of The Onion.

The first joke that got them into trouble was when they published a poem about a politician called, "I am Glad to be a Leader." Here's Badr.

Badr Zaman Badr

Let me translate a few lines for you.

Jack Hitt

Sure.

Badr Zaman Badr

Before I was so thin and weak and now I have big stomach. Stuff like that, yeah.

Jack Hitt

So the guy with the big stomach called about Badr and his brother. He threatened them. And as best as they can tell, told authorities that they were linked to al-Qaeda, which landed them in Guantanamo, and which leads us to the second joke.

This one was in an issue of Badr's magazine that came out in the '90s, after our government set a $5 million reward for Osama bin Laden. Badr's magazine issued its own bounty for the capture of an American leader.

Badr Zaman Badr

President Bill Clinton. Giving the details how to identify that he has blue eyes and he's clean-shaven. And the most important thing is that there is some scandal going on between Clinton and Monica Lewinsky. If someone finds that man, he will be rewarded $5 million of money. Of [UNINTELLIGIBLE] currency, which was equal to $113 at that time. So it's impossible to [UNINTELLIGIBLE].

Jack Hitt

In Guantanamo, were you interrogated about your Clinton satire?

Badr Zaman Badr

Exactly. They would see if we really to want to kill President Clinton. And we said, no, that was only a satire and it's only a way of expression. It's allowed. It's protected in your country, in American law.

Jack Hitt

How many times were you interrogated you think about the Clinton article?

Badr Zaman Badr

Many times. Many times. Me and my brother, each one of us have been interrogated more than 150 times.

Jack Hitt

So after hearing the punchline explained a 150 times, we finally get the joke, and sent Badr and his brother home. It had been three years since the Pakistani army surrounded their house in Peshawar, came into their living room, which is lined with wall to wall bookcases and arrested them. That's Badr's version of why we jailed him. Here's President Bush's.

President Bush

These are people that got scooped up off a battlefield attempting to kill US troops. I want to make sure before they're released that they don't come back to kill again.

Jack Hitt

The administration has never wavered on this point. Here's Dick Cheney on Guantanamo.

Dick Cheney

The people that are there are people we picked up on the battlefield, primarily in Afghanistan. They're terrorists. They're bomb makers. They're facilitators of terror. They're members of al-Qaeda and the Taliban.

Jack Hitt

We're told over and over that these prisoners are so terrible that we need an offshore facility away from US law to hold them. But then there's Badr. And every day, more stories like his are coming out. And they raise the question, is Guantanamo a camp full of terrorists, or a camp full of mistakes?

In a new study from Seton Hall's law school, researcher simply went to the trouble of reading the 517 Guantanamo case files released by the Pentagon. Here's what they found.

Only 5% of our detainees in Guantanamo were scooped up by American troops on the battlefield, or anywhere else. 5%. The rest, we never saw them fighting.

And here's something else. Only 8% of the detainees in Guantanamo are classified by the Pentagon as al-Qaeda fighters. In fact, Michael Dunleavy, head of interrogations at Guantanamo, complained in 2002 that he was receiving too many quote, "Mickey Mouse prisoners."

In 2004, the New York Times did a huge investigation, interviewing dozens of high-level military intelligence and law enforcement officials in the US, Europe, and the Middle East. There was a surprising consensus. That out of nearly 600 men at Guantanamo, the number who could give us useful information about al-Qaeda, was quote, "only a relative handful." Some put the number at about a dozen, others more than two dozen.

The Seton Hall study might help explain that. It revealed that 86% of the detainees were handed over to us by Pakistan or the Northern Alliance. And some were handed over to us by a new method. Here's Badr.

Badr Zaman Badr

Actually, in our interrogation, the American interrogators have been telling us that they have paid a lot of money to those who handed over us to American.

Jack Hitt

The problem was, we were offering bounties. You know, $5,000 or $10,000. Al-Qaeda brought more than Taliban did and, so OK, fine, here's your money. Take them to Gitmo. That's where Admiral John Hutson, the Navy's top lawyer. He was the judge advocate general until 2000. He says, essentially, we bought Badr and a whole lot of other prisoners.

John Hutson

When you look at the economy at that part of the world, that really is kind of a king's ransom.

Jack Hitt

When the Pentagon started offering these rewards, large fees for top leaders, like Bin laden, and smaller payouts for lower level terrorists and Taliban, it seemed like a good idea. They didn't think it would lead to innocent people being turned in. Here's defense secretary Donald Rumsfeld in 2001, just two months after September 11.

Donald Rumsfeld

We have large rewards out. And our hope is that the incentive through the great principle of University of Chicago economics incentivize a large number of people to begin crawling through those tunnels and caves looking for the bad folks.

Jack Hitt

We all know this is a new war with new rules, but what were the old rules? Well, one had to do with POWs. The military has always known that all kinds of prisoners get picked up in the fog of war, so it was important to get those numbers down to just the real POWs since troops on the move didn't want to be burdened with looking after lots and lots of captives. This problem had been more or less solved by the old Geneva Conventions, which required a quote, "competent tribunal." It sounds crazy, a kind of impromptu court hearing, right after a battle. But that is exactly what used to happen. And typically, some 75% to 90% of the people scooped up would be sent home.

In the Gulf War of 1991, we captured 982 people, released 750 of them right away, and the remainder were POWs. Like in the old war movies, they give name, rank, and serial number, and they got certain things. Everything from a pledge that they wouldn't be tortured, to a promise that they would be released once the war ended, and even the right to send letters home. Here's rear admiral Hutson, the navy's top lawyer.

John Hutson

And those were some of the things that now Attorney General Gonzales referred to as being quaint and outdated. You get athletic uniforms. You get a certain amount of money paid in Swiss francs, I believe. And those things probably are--

Jack Hitt

You get paid as a POW?

John Hutson

Yeah, it's a very small amount of money, but to go to the commissary and buy chewing gum and cigarettes kind of thing. And those things probably are largely outdated. And they are in some respects, quaint. What happened though, is by saying that the Geneva Conventions in those respects were quaint and outdated, they just threw the baby out with the bath water.

Jack Hitt

This is a new kind of war after all, and the administration made the argument that the Geneva Conventions apply only when you're fighting another country, a country with a uniformed army, not when you're fighting terrorists.

Brian Boyle

They do not apply where the individuals captured haven't deserved, haven't shown that they deserve those protections.

Jack Hitt

That's Brian Boyle. He was associate attorney general for President Bush when these decisions were made.

Brian Boyle

They did not legally qualify as prisoners of war because they are not fighting in uniform. Because they try to blend in with the civilian population. Because they try to take cover in civilian areas.

Jack Hitt

Hasn't that been a problem for war for most of the 20th century, or at least, in the last couple of conflicts we've been in? I mean, is rooting out al-Qaeda any harder, or how is it harder than rooting out Viet Cong in a local village?

Brian Boyle

And I take the point. I guess the point I was making earlier is that I don't think you can conclude given the nature of the enemy we're facing that how we treat al-Qaeda operatives that we're able to capture is going to make any difference at all in how they would treat American personnel in their custody. It wouldn't make a difference at all.

John Hutson

That argument can really take you to some dark places, I think.

Jack Hitt

Here's rear admiral Hutson.

John Hutson

If we pick and choose, then other countries can pick and choose whether they're going to apply the Geneva Conventions. That is a slippery slope that Secretary Powell and others did not want us to go down. Because they're looking over the horizon. They know that this isn't the last war we're going to fight. It's not even the next the last war we're going to fight.

Jack Hitt

This quarrel about the Geneva Conventions continued for three years and eventually, got down to one, very practical question. If you're a prisoner and you're not protected by the Geneva Conventions, and you might be held indefinitely, could you at least make an appeal in a US court? Here's attorney general Alberto Gonzales.

Alberto Gonzales

We really are, for all intents and purposes, at war. And so you need not provide access to counsel. You need not provide the ability to challenge their detention in a criminal court. It would be like saying that Germans that were captured during World War II would have to provided lawyers. The truth of the matter is, the rules and procedures of our criminal justice system simply do not apply in this case.

Jack Hitt

And he's absolutely right, about the Germans. Except the Germans were covered by the Geneva Conventions.

Finally, in 2004, the United States Supreme Court stepped in. It said, if prisoners aren't going to be covered by the Geneva Conventions, that's fine. But they couldn't be permitted to fall into a legal black hole, not protected by any law at all. They had to be given some way to challenge their detainment. It's one of the oldest rights in Western civilization, known as habeas corpus.

Habeas corpus, it's a phrase we all know, but let's be honest, can't ever really remember what it means. It's not a trial or anything like one. It's more, well, primal. It's a hearing that commands the executive-- in this case, the president-- to explain why he has jailed somebody. The idea dates back to 1215 England when the nobles forced King John to sign the Magna Carta and agree to the great writ, later known as habeas corpus.

In Latin, it means, "show me the body." In other words, a neutral judge got to see the prisoner in person to check if he'd been tortured, and then the judge had the power to require the king to explain, why is this guy jailed? All the executive had to do was answer with a convincing story, and then the guy went back to the dungeon. It's a right so elemental that it's in Article 1 of the United States Constitution. It's one of the reasons we fought the Revolutionary War.

And after the Supreme Court granted the detainees access to the courts, right away President Bush started talking like a habeas loving King John.

President Bush

Yeah, look, we are a nation of laws and to the extent that people say, well, America is no longer a nation of laws, that does hurt our reputation. But I think it's an unfair criticism. As you might remember, our courts have made a ruling. They looked at the jurisdiction, the right of people in Guantanamo to have habeas review, and so we're now complying with the court's decisions.

Jack Hitt

The administration quickly put together a kind of hearing based in part on the old Geneva Conventions hearing they'd abandoned. They called this hearing, a combatant status review tribunal, or in the elegant shorthand of the Pentagon, a CSRT.

These new hearings have one oddity to them. The tribunal assumes all the evidence against the detainee is correct. If the detainee wants to prove them wrong, it will be difficult because he's not allowed to see the evidence. It's classified. As a result, these hearings makes strange reading. In many of them, there comes a moment in the dialogue like this one between detainee Abdulmalik and the judging panel. Malik--

Regarding the charge that I worked at various guest houses and offices, what was the work?

I cannot answer that. This is the first time we've seen the evidence. I know nothing more than what is written here.

Same with me. I don't know anything about this. Regarding the charge that I was frequently seen at Osama bin Laden's side, who saw me?

I don't know.

If it says was frequently seen, you have to prove that.

The Supreme Court had said that the detainees didn't deserve a full criminal trial, of course. Only the basics of a fair hearing, which came down to three things. A lawyer, an impartial judge, and the chance to see the evidence against them. In practice though, they get none of these.

Baher Azmy

Baher Azmy is a lawyer who represents one of the detainees, but he couldn't attend his client's CSRT because actual lawyers aren't allowed.

They were each appointed a personal representative who's a military officer. Who, in my case, met with my client the day before for 15 minutes, sat silent, and failed to present all of the exculpatory evidence in his file. Which of course, any lawyer would have done. Not the personal representative.

Jack Hitt

And as for confronting the evidence, consider the case of Azmy's client, Murat Kurnaz, a Turkish citizen raised in Germany. The Pentagon accidentally declassified the file with all of the secret evidence against him. And here's what's in it: nothing.

Baher Azmy

The classified files contains-- the Washington Post wrote about it-- six statements from military intelligence. That's really what the classified file is, memos saying this person was here, so and so witnessed him. In Kurnaz's case, there are five or six statements saying, there's no evidence of any connection to al-Qaeda, the Taliban, or threat to the United States. The Germans have concluded he's got no connection to al-Qaeda. There's no evidence linking him to the Taliban, over and over and over again.

Jack Hitt

But here's the thing, at the hearing, nobody talks about any of that. His personal representative doesn't bring it up. The tribunal doesn't consider it and Kurnaz, himself, doesn't even know about it. He's declared an enemy combatant and sent back to his cell.

But wait, there's more. The reason they give for holding him, a friend of his named [? Selcuk Bilgin ?] blew himself up as a suicide bomber in Turkey in 2003. That's two years after Kurnaz got picked up.

Baher Azmy

So setting aside the sort of remarkable legal proposition that one could be detained indefinitely for what one's friend does, it's factually preposterous. And a sort of simple Google search or a call to the Germans would have revealed that his friend is alive and well in [UNINTELLIGIBLE] and under no suspicion of any such thing.

Jack Hitt

You heard that right. Kurnaz was held in Guantanamo because two years after he got picked up, some guy he knows became a suicide bomber. Except that he didn't become a suicide bomber and is currently living in Germany.

Baher Azmy

Yeah, he's walking around in Germany. I've met him.

Jack Hitt

Then there's a bunch of Chinese Muslims who we accidentally picked up during our sweep in Afghanistan. They're an ethnic minority known as the Uyghurs, and they've been battling the communist Chinese since World War II. Conservatives love the Uyghurs, which is why they've been passionately defended by the National Review and the Weekly Standard.

After a corporate lawyer named Sabin Willett heard about them, he volunteered to represent a Uyghur named Adel Abdul Hakim and some others, and he flew to Guantanamo to meet them.

Sabin Willett

The main thing they wanted to talk about it and that was so puzzling to them was that the previous May, the military had told them that they were in their words, "innocent." And why were they still here if they were innocent?

Jack Hitt

What you're saying is, is that Adel and the other Uyghurs are, in your opinion, have never been members of any kind of al-Qaeda or Jihad, or anything like that?

Sabin Willett

Yeah, it's not just my opinion. The Defense Department has determined that. That means they were never al-Qaeda, never Taliban, never any of that.

Jack Hitt

When I interviewed Willett, back when this story was first broadcast a year ago, the government said they'd release Adel and the other Uyghurs if only it could find another country to send them to. At the time, there seemed like an obvious solution. Adel could go 90 miles north to Miami, where there's an entire city of anti-communists. Or, he could be sent to one of the largest Uyghur ex-pat communities, Washington DC. So why didn't that happen? Here's Willett.

Sabin Willett

I'll tell you what I think the answer is, although no one from the government would admit this. I think the answer is that if anybody actually met these guys, actually looked at them, and took their pictures, and had them on TV shows or the radio, they'd be shocked. Because they've been told for four years that the people at Guantanamo are terrorists and that they're the worst of the worst. And you take a look at Adel, you're going to suddenly realize you've been lied to for a long time.

He struck me when I first him, like the kind of kid your college age son would bring home. You know, his roommate. His buddy from college home for the weekend. People who meet Adel for the first time, they walk out of the meeting and their jaw is a little bit unsprung, and they don't say much. Because it's hitting them like a ton of bricks. You know, this guy is in Guantanamo?

Jack Hitt

If Willett's right, this gets to the heart of habeas. The whole point is that the king shouldn't have the right to just detain somebody because it'd be an embarrassment to have the guy free. The Pentagon has an acronym for people like the Uyghurs, it's pronounced [? "en leck." ?] It means, no longer enemy combatant. But as Willett notes, it should be never was enemy combatant.

Since I first talked to Willett for our original broadcast, the White House finally found a refugee center in Albania where they sent 5 of the 23 Uyghurs, including Adel. The others are still in Guantanamo and are classified as enemy combatants.

The problem with creating an offshore legal limbo, where there's no habeas proceeding to separate the al-Qaeda fighter from the comedy writer, comes during interrogation. If we've labeled them as terrorists, then that's how they get treated. Josh Colangelo-Bryan is a lawyer at Dorsey & Whitney in New York who volunteered at Guantanamo. He represents Juma al-Dossary.

For a while, the government thought al-Dossary was a recruiter in America for al-Qaeda. Possibly involved in the case known as the Lackawanna Seven. But this is never brought up at his CSRT hearing. Instead, the government simply states that he's al-Qaeda. And as proof, lists the various places he's been. Afghanistan, Bosnia, Azerbaijan, the Pakistan border. Supposedly he was fighting in some of those places, but the government provides no evidence of that. They don't quote witnesses. Nobody is on record saying he's al-Qaeda. Here's Colangelo-Bryan.

Josh Colangelo

What's interesting to me when we talk about what he was doing in that part of the world is the allegation that the US military makes against him. That he was quote, "present at Tora Bora," close quote. The military offers no allegations as to when Juma was supposedly in Tora Bora. It says nothing about what supposedly he was doing. Simply that at some point in history, he was present in that place.

Now, Juma says that he's never been to Tora bora. And again, even if that allegation is true, frankly, it doesn't prove anything. Absent some evidence of some involvement in terrorist activity, I simply don't know how you can call someone a terrorist.

Jack Hitt

We tried out many of our new interrogation techniques on Juma al-Dossary. Colangelo-Bryan met with him many times and cataloged what was done with him.

Al-Dossary said that Americans forced him to the ground and urinated on him. We put out our cigarettes on him. We shocked him with an electric device. We spat on him. We poured a hot cup of tea on his head. We told him that quote, "we brought you here to kill you." We beat him until he vomited blood. We threatened to have him raped. We dressed him in shorts and left him in a frigid, air conditioned room. We abandoned him in another room with no water. We invited him to drink from his toilet bowl, which he did. We wrapped him in an Israeli flag. We told him that we would hold him forever, and we told him that we would send him to Egypt to be tortured.

On a different day, we chained him to the floor and cut off his clothes while a female MP entered the room. We dripped what we said was menstrual blood on his body. When he spat at us, we smeared this blood on his face. We kissed the cross around our neck and said, "this is a gift from Christ for you Muslims." We videotaped the entire episode.

There's no way to confirm that all this happened to al-Dossary. But other prisoners, and officials at Guantanamo have described variations of every technique on the list, including the menstrual blood, the Israeli flag, the references to Christianity, the beatings, the sexual humiliation.

Al-Dossary's interrogated still, about once a month. During one visit last winter he asked Colangelo-Bryan, what can I do to keep myself from going crazy? A few months later, during a meeting, al-Dossary asked to go to the bathroom. Colangelo-Bryan and the MP stepped outside the hut and waited. After five minutes, colangelo-Bryan got concerned. He cracked the door open.

Josh Colangelo

When I opened the door, the first thing I saw was a pool of blood on the floor in front of me. I then looked up and saw a figure hanging. I yelled to the MPs for help. They then began to cut down the noose around Juma's neck.

Jack Hitt

It wasn't Al-Dossay's first suicide attempt.

About three weeks later I was back in Guantanamo, Juma said to me that he didn't want to kill himself without an outside witness. His fear was that if he died and only the military knew, nobody would have known what happened.

Of course, as we are often told, this war is different. Who wants to be the one that lets somebody go, who then turns out to be the next 9/11 hijacker. So for the military, there's also this other new thing, a terrifying calculation that there can be no margin of error. Joe Margulies of the University of Chicago represents a few detainees, and has been trying to make sense of what's happened at Guantanamo.

Joseph Margulies

If we give them the benefit of the doubt, it is possible-- and there's a lot of evidence to support this. They had no idea who they were going to be capturing. And they thought they might get more serious people. People who were more seriously involved. The reality is those people never came to Guantanamo. The most serious folks are the ones in CIA custody, of which there are approximately 30. 27, 30, something like that. Those are the people in black sites that we don't even know where they are.

The people of any significance never arrived at Guantanamo, but they didn't know that when the base opened. They said at the time that these were the worst of the worst, they were trained killers, they would gnaw through hydraulic lines to bring down the plane that was flying them to Guantanamo. I mean, they used the most inflammatory rhetoric. And it very quickly became apparent that they were just mistaken. And then they were stuck with this PR nightmare. And at the same time, there was this sense, this nagging sense, that, well, maybe they are really bad, but we just can't find out. Maybe they're not Afghan dirt farmers as all appearances seem to be. How do we really know? Maybe we need to use more aggressive techniques to find out. So they kept turning up the heat and using more and more coercive techniques on people who were less and less significant.

Meanwhile, our clients are experiencing this really scary deterioration in their mental health as hope gradually disappears. They have become increasingly desperate, and so that's why there's a hunger strike there going on, an unknown number of people who are starving themselves. Who are being force fed through a tube through their nose that goes into their stomach, and they're only staying alive through that.

Jack Hitt

In this new war, the plan was to build a prison so bleak that the detainees would give up hope and talk. The military was given a mission and they did a good job. But many prisoners are now moving into year five. If they're al-Qaeda, detainment is perfectly justified. No one argues that. But think about what these incarcerations are for men wrongfully and indefinitely detained. It's like being buried alive in a coffin. Nobody knows how many of the prisoners are, in fact, the worst of the worst, and how many are innocent. But we have a way to find out, it's called habeas corpus.

Ira Glass

Jack Hitt. Coming up, the most popular poem among prisoners at Guantanamo. Or if not the most popular, at least it's very, very popular we're told. That is in a minute. From Chicago Public Radio and Public Radio International when our program continues.

Act Two. September 11th, 1660.

Ira Glass

It's This American Life, I'm Ira Glass. Our program today, "Habeas Schmabeas," stories from Guantanamo. We're rebroadcasting a show that we first broadcast one year ago.

So where do things stand now? Well, in the Fall of 2006, this past Fall, the president signed a law with solid bipartisan majorities that officially denies habeas rights to Guantanamo prisoners. At this point, the CSRT is still the closest thing the detainees have to a habeas hearing, and the CSRT rules have not changed. Prisoners don't get to see the evidence that's used against them. And evidence obtained through torture can be used. All of this is on appeal and will probably end up in the Supreme Court.

This actually brings us to act two of our show. Act two, "September 11, 1660."

Habeas rights were originally created in England, and in one of the Supreme Court cases on this issue, 175 members of the British parliament filed a, "friend of the court" brief, an amicus brief. The first time in Supreme Court history that this has happened. And they argued first of all, that British citizens being held at Guantanamo deserved better than what they were getting in terms of these rights. And they also said, essentially, are you guys nuts? This is from their brief.

"The exercise of executive power without possibility of judicial review jeopardizes the keystone of our existence as nations. Namely, the rule of law."

It also pointed out the history of habeas. How after World War II Winston Churchill wanted to suspend habeas rights for Nazi leaders and just shoot them. And it was the United States which argued for habeas and for trials, which led to the Nuremberg Trials. They also finally pointed out how badly it had gone the last time that they, in England, tried to suspend habeas like this.

"In the 1600s, they write, during the British Civil War, the British created their own version of Guantanamo Bay and dispatched undesirable prisoners to garrisons off the mainland, beyond the reach of habeas corpus relief."

The guy who did that was named Lord Clarendon. And in England, one of our regular contributors, Jon Ronson, decided to look into it.

Jon Ronson

So it turns out that the last person to come up with this exact same way to sidestep habeas corpus is a lord I have never heard of, a not household name lord called Clarendon. Who was he?

I went to a professional, Tony McDonnell, who said he'd take me to Clarendon's grave in Westminster Abbey.

Tony Mcdonnell

Yes, we're here in the south of Westminster Abbey.

Jon Ronson

I noticed we just passed Charles Darwin's grave.

Tony Mcdonnell

Yes, Charles Darwin is buried here.

Jon Ronson

You said you were once showing an American party around and somebody spat it, spat at Charles Darwin's grave.

Tony Mcdonnell

On his grave, yes. And wanted to know why he was buried here.

Jon Ronson

And we just passed the spot where Elton John sang "Candle in the Wind" at Princess diana's funeral.

Tony Mcdonnell

Yes, that was in front of Lord Stanhope's memorial in the nave.

Jon Ronson

You have to be famous or a great loyalist, or at least someone who worked here, like an organist to be buried here. Tony is a historian and a blue badge guide, an official Westminster tour guide. He took me down corridors and through chambers until we came to a flagstone on the floor, Lord Clarendon's grave. He's in [? vaulted ?] company. Henry the V is buried just to his left, and Elizabeth the I lies a couple of yards in front of him. Tony explains who Lord Clarendon was.

Tony Mcdonnell

He was for want of a better word, nowadays he'd probably be called a prime minister. And he was the main adviser to the king.

Jon Ronson

So Clarendon had this job. He was the king's advisor in the middle of a civil war, in which the king was killed.

There were two sides. You've got the monarchists and then you've got the puritans who murdered the king because they saw the kingdom as debauched and decadent. Now I know you Americans see puritans as kindly settlers constantly sitting down to Thanksgiving dinner. We see them as bastards. They were religious fundamentalists. In other words, they were--

Tony Mcdonnell

Men who believed that all they had to do was to overthrow the government and the reign of Jesus Christ would come once more among them.

Jon Ronson

So this was a bustle of civilization. It was a bustle of religious ideology.

Tony Mcdonnell

It was most definitely a bustle of religious ideology.

Jon Ronson

So as puritans, were they seen to be kind of crazy, religious fundamentalists, these people?

Tony Mcdonnell

Some of the people were, and they were among the most persecuted after the Restoration.

Jon Ronson

The Restoration. This is when the whole sending people away to offshore islands with dubious sovereignty business took place. It was the period after the war. The puritans had been defeated, a king, Charles the II was restored to power, along with his main advisor, Lord Clarendon.

Consider what it was like for Clarendon and the monarchists. They'd been in exile for years. Many of their friends and supporters had been locked up or killed. The puritans had been vicious. They had killed the king. And many of the men who'd done it, were still at large, plotting out there. It was a 9/11 style trauma and Clarendon behaved in a traumatized way.

Tony Mcdonnell

He probably was paranoid to some extent. The whole of the new establishment were paranoid. They saw plots everywhere. And there was a feeling of retribution in the air. Some people say they had good reason to be paranoid.

Jon Ronson

Well, these people had done the most unimaginably horrific acts. They killed the king.

Tony Mcdonnell

They had killed the king and they were capable of anything is what that would have been said. That's why they were put where they were and it was for the safety of all of us, and we're doing you all a favor. Heaven knows what would have happened. They were wicked people and those were the people who were then shipped off by Clarendon.

Jon Ronson

The exact location of Lord Clarendon's Guantanamo is lost to history. It was probably in Jersey or Guernsey, which today are rather nice seaside tax havens for the rich. But suspending habeas corpus didn't work out well for Lord Clarendon. He was impeached.

At his impeachment trial, he was accused of sending people away to, quote, "remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law, and to produce precedence for the imprisoning of any other of his majesty's subjects in like manner." And remember, democracy as we know it is still centuries away. Innocent until proven guilty, one man one vote, only the most extreme radicals held these views. These were dark times. There were heads on spikes all over London. And still, the people were shocked by Clarendon's disregard for habeas corpus.

Tony Mcdonnell

People took it seriously and they would have bandied it about with each other, this idea that you had to produce somebody and accuse them in law in front of their own peers. The parallels are so obvious when you read the history of habeas corpus and the amount of times it's just been suspended. That is what they always, always do. They say that these people are capable of anything. These people do not hold the same values as we do. They're out to destroy our way of life. It's more or less the same situation.

Jon Ronson

The one outcome of all of this was the habeas corpus act of 1679, which specifically forbade what Clarendon had done and made it illegal to send a prison quote, "into Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands, or places beyond the seas, which are, or at any time hereafter, shall be within or without the dominions of his majesty." And forbade at his remains for 330 years. In England, anyway.

Ira Glass

Jon Ronson. He does documentaries for the BBS and is the author of the book, Them.

Act Three. We Interrogate The Detainees.

Ira Glass

Act Three, we interrogate the detainees. Yes, the US military had their chance with them. In this act, Jack Hitt talks to two former detainees from Guantanamo. One of these guys you've heard a little bit from earlier in our show, Badr Zaman Badr, the guy who ran the satirical magazine named Pashto with his brother in Pakistan.

The other guy was 19 when he was picked up, Abdullah Al Noaimi, a kid from a well to do family in Bahrain. Here's Jack.

Jack Hitt

Abdullah wound up in American custody the way a lot of the men at Guantanamo did, he was a foreigner in Pakistan and we were offering bounties for guys like that. Remember Murat Kurnaz, the guy whose friend was supposedly a suicide bomber and Juma's al-Dossary? Same thing happened to them.

In Abdullah's case, he was first taken to Kandahar, to a makeshift prison the US set up at an air base with about 20 men to a tent.

Abdullah

When we first go in Kandahar, I was surprised, like I never seen those pictures or those views. Only in the ancient movies, like dark ages. We were chained by the legs, like shackled. And they ordered us to pick up rocks. Can you imagine this? They said, you should pick up the rocks on the ground, like put it all together on a pile.

Badr Zaman Badr

There was no water to make [UNINTELLIGIBLE] or to take a shower.

Jack Hitt

Badr, the satirist, was taken to that same air base at Kandahar.

Badr Zaman Badr

The MPs were treating us very harshly. We had to be on our knees for long hours and to put our hands on our head. And mostly they used the word [BLEEP]. And they used to tell us to put our [BLEEP] hands on our [BLEEP] heads. And we didn't like that.

Jack Hitt

In the camps, Badr got separated from his brother, the poet. So he devised a way to find him. The detainees didn't have toilets, instead they got a bucket, which got filled up with what Badr modestly calls "dirt."

Every day, some detainee get chosen to empty the buckets. Badr volunteered.

Badr Zaman Badr

Because I wanted to meet my brother. To go from tent to tent. Then my brother, when I saw my brother and he was giving me his bucket to empty that was the first springtime. He said, what a spring it is. There are no flowers and instead of the smell of the flowers, we have this dirt smell. I can't translate it. And actually, it's in Pashto. These are really beautiful lines.

Jack Hitt

The sanitary conditions were just as bad, if not worse, for Abdullah. The tent he shared with other detainees was open on all sides and located at the end of the military airstrip. Every takeoff and landing meant a tornado of dirt-- the literal kind-- blasted through.

In the first few days, he heard the other prisoners in the tent talking about their interrogations.

Abdullah

They told me that they had electric shocks on them. And one of them was threatened to be raped. And they took off his pants. And I was thinking, what am I going to do? They took me at night. There was two interrogators. They wanted me to say that I was a terrorist. I told them, no, I'm not and everything. Then they started pushing me and everything. And then they brought a cigarette that the interrogator was smoking. He blew the smoke on my face and then he came very close, very, very close to my face, and brought the cigarette between my eyes. And he said, I swear to God I'm going to put it in your forehead if you don't tell me what I want to hear. I thought about it. I felt like this is a jungle and only the strong lived in it. But still there is small creatures that can live, but not by facing-- the lions aren't facing big animals. No.

But by maybe hiding or changing their colors as the trees. So I just told them whatever you want to hear from me I'm going to tell you. What do you want me to say? He said, say that you're a terrorist. You want me to say I'm a terrorist? Are you going to let me go? Are you going to let me go sleep? Because they always torture, like not keeping me asleep. They keep me awake all the time. So I tell them, OK. I'm going to tell you whatever you want. Yeah, I'm a terrorist and go tell your bosses. They left me.

Jack Hitt

This is not how he thought things would go with the Americans. In fact, back when he was being held on a Pakistan jail, when he found out that Americans would be taking them, he was relieved. He told the other prisoners it was good news. He knew America, he knew how the people were.

Abdullah

And I lived so many places, like Europe and England, and Germany, and France. But the difference was in the states, everywhere you go they welcome you. Like when you go in the supermarket, everybody goes, how you doing and everything. That's the thing that was in my mind. I was like, please, everything's going to be fine. They're going to understand.

Jack Hitt

So how did he know so much about American supermarkets? Well, in 1994, he came to America for the World Cup finals. In fact, Abdullah's been here a lot. He's been downhill skiing in the Midwest. He attended Old Dominion University in Virginia for a while, and has taken other trips too.

Abdullah

And in '96 I was in Disneyland in Orlando. For spring break I was in Daytona Beach with some of my friends.

Jack Hitt

You were in Daytona Beach for spring break?

Abdullah

Yeah, it was year 2000. Bikers week.

I remember the guys, young guys standing by the sidewalk having the signs for the car for [UNINTELLIGIBLE]. Some expressions [UNINTELLIGIBLE PHRASE], show us.

Jack Hitt

Oh, right. That expression, the show us your--

Abdullah

Yeah, that expression. That's the most I remember about Daytona.

Jack Hitt

So a year after seeing the sights in Daytona Beach, Abdullah found himself facing an American interrogator in Kandahar.

Abdullah

I got shocked. I got shocked when the first interview, like cursing me up and down. Cursing my father, cursing my family. Cursing my country. Cursing my government, everything. Why? That was the question I wanted to know. What's going on? Do I know you? What do you have against me? What did I do to you?

Jack Hitt

Badr had learned of the West from more scholarly sources. He's a big fan of the Canterbury Tales and Gulliver's Travels. And he also knew about the Geneva Conventions and spoke up when he realized they weren't going to apply.

Abdullah

Actually, our complaint was that they were not accepting us as prisoner of war. They were not giving us those rights. And actually, they were just running from American legal system. I mean, I had told my interrogators many times, if we are really guilty, why don't they put us on trial in American courts?

Jack Hitt

Finally, Badr and Abdullah were each taken out of the camps at Kandahar and put on a plane to Guantanamo. Remember, this is an international flight from Afghanistan to Cuba, over 20 hours long.

Abdullah

We were handcuffed and the handcuffs was tied to our stomachs. And there is a chain connected to our legs. Other detainees next to you are stuck to you.

Badr Zaman Badr

They used to put [UNINTELLIGIBLE] on our head.

Abdullah

And we had masks that we can hardly breath.

Badr Zaman Badr

We could not hear, we could not see. We can even not touch. So they had to stop all senses completely.

Abdullah

To have hearing, seeing, tasting, smelling, those things only human can have.

Jack Hitt

Once they got to Guantanamo, both Badr and Abdullah described being stripped naked, medically examined, and then put into cages until a new round of interrogations began.

Abdullah

Mostly they used to ask questions about the various organizations and how they get money why people hurt Americans and so and so. And there have been even stupid questions.

Jack Hitt

Like?

Abdullah

There have been stupid questions, that if we have seen Osama bin Laden, [UNINTELLIGIBLE], if we intend to attack Americans.

Badr Zaman Badr

As if I know Osama bin Laden. I was shocked, I'm 19 years old.

Jack Hitt

Abdullah and Badr, by the way, arrived at different times at the base, and never knew each other. But they both described meeting lots of ordinary people, farmers, teachers, cab drivers, who were also sold to the Americans. Abdullah talked to one guy who sold by his own father-in-law. Badr met men who had never even heard of Osama bin Laden.

Abdullah was originally arrested while traveling in Pakistan. A man offered him a meal, and a place to rest, and later turned him over to the army for the bounty. Abdullah says he saw the money change hands at the jail. Once in American custody, he was accused of traveling to Afghanistan and proclaiming his desire to carry out Jihad.

Abdullah

Sometimes the interrogators want to put the stress on us. They come and ask me, do you want to go home? They don't want to take me home, but they're just asking. To make you angry and nervous that you'll never go home and keep telling you those things. but in response, I tell them the same thing. No in fact, I don't want to go to home. I'm OK here. I like you so much and I don't want to leave you.

Jack Hitt

Now did they think you were a smartass? How did they react to that?

Abdullah

They got surprised the first time, but then they got used to it because everybody say it. Even if, for example. stop you from food, stop you from sleeping, stop you from talking. I don't know why, you just keep smiling.

Jack Hitt

So much of what we hear about Guantanamo is about the harsh treatment there. But of course, like any place, the days mostly pass in boredom. The interrogators might be rough, but the MPs and guards who had to spend time with the detainees sometimes would get comfortable and start talking to the prisoners.

Abdullah

They ask me, tell me the truth. Are you a terrorist or not? They were told that I'm a terrorist, but they still ask me. Why? Because of doubt in their hearts. They still have doubt. They don't seem like as we've heard. And then we start talking and talking and talking. Most of the guards they told me that when I first came here I was trained that everybody over here is like monsters. They're going to jump from the cages and they're going to chew you up and everything. They said, we thought different. We thought that the American forces captured you in a battle or something. So some people they are forced to treat us bad. But you can see, you can tell from their eyes. And some they feel like this is not the right thing to do. They feel this is wrong. They told me themself. Some of them told me, if I don't follow orders, I'm going to be in your place. I really miss them now.

Jack Hitt

To pass the time, the prisoners would sing together, or try out new poems they'd written. They developed a secret postal system for passing notes and photos, and figured out how to talk to each other through the air conditioning vents. Sometimes, the guards and prisoners would hold little competitions, like the styrofoam cup challenge. The object was to turn the cup inside out without cracking it. The guards went first.

Abdullah

They spent hours and hours and hours and they came back. They couldn't do it. They said, OK, let's try it to flip the cup underwater. They tried and it didn't work. Then the detainees said, OK, we're going to do it for you. The detainees did it. They flipped the cup inside out. Like totally inside out. You could read the brand of the cup inside the cup instead of outside.

Jack Hitt

What was the brand?

Abdullah

It Dart.

Jack Hitt

Dart.

Abdullah

Yeah, one was Dart and the other was Oklahoma. Yeah, community of Oklahoma for blinds.

Jack Hitt

Since pen and paper were forbidden, Badr's brother wrote his poetry by scratching the words into styrofoam cups with his fingernails. After a year, they were allowed to use pens and to read books. Abdullah read David Copperfield. Badr and his brother composed some 25,000 lines of verse. The other inmates memorized the best of them. The most popular couplet went like this.

Badr Zaman Badr

It says, [SPEAKING FOREIGN LANGUAGE] These are the first two lines. It means, they bring good and bad people to the same jail and there is no oil and salt in the rice.

Jack Hitt

Get that? There's no oil or salt in the rice.

Badr Zaman Badr

It's really funny in Pashto if you just [UNINTELLIGIBLE] to any Pashto speaker in your country, he would really love that. [SPEAKING FOREIGN LANGUAGE]

Jack Hitt

Finally, one day, four years after he left Pakistan, Abdullah was pulled aside by a military officer who had news. Abdullah was going home. Abdullah says he was asked by a government lawyer, a major, to sign a contract promising not to join a terrorist group and giving the US permission to rearrest him at any time. He refused to sign. Other detainees say they were shown similar letters and also refused to sign, believing this was just another trick.

Jack Hitt

Did they ever explain why they were letting you go?

Abdullah

No.

Jack Hitt

But they told you they had made a mistake in the end?

Abdullah

The government lawyer, he didn't say a mistake by the lack of vocabulary of mistake. He didn't say mistake. But he said we picked you up as enemy combatant, but it turned out that you are not one. We don't see that you're an enemy combatant. He just give me an example of a mistake, but he didn't say we made a mistake.

Jack Hitt

And just as suddenly, Abdullah was on an airplane and back in Bahrain. He was quickly ushered past the news media and into a room where he saw his family.

Abdullah

They greeted me. They welcomed me. They hugged me and everything. Then they took me home. I didn't tell them anything. Everybody's crying. I left my sister and she was very young, about five, six years. I didn't know her when I saw her. She was like a lady.

Jack Hitt

When you saw your brothers and your father, what was that like?

Abdullah

Have you ever heard the expression, "home sweet home?"

Jack Hitt

Yes, I have, actually.

Abdullah

Yeah, of course. That's the best time to say home sweet home.

Jack Hitt

Americans are going to think that because you were at Guantanamo Bay that you were a terrorist. And that everybody there was. What would you say to them?

Abdullah

I would say even if I were an angel, I would still be a terrorist to them because it's the thing that they want. People don't want to take the responsibilities of their mistakes. They want to put it on others. It's like slaughtering a sheep, for example. And when the sheep keeps shaking, and the blood's spilling all over the place, they would scream at the sheep and say, you are a bad sheep. Bad, bad sheep because your blood came on my clothes or my [UNINTELLIGIBLE]. You know what I'm saying? They would take you, maybe torture you, or maybe kill you, or put you under so much stress and circumstance and then they would say, you're a bad person because you've been through those things. Why did you put me in those things in the first place?

Jack Hitt

In the years Abdullah was gone, his parents moved to new house, a big house, with lots of rooms. But there was no bedroom for him. His old clothes were gone. They thought he would never come home. He says it's like he's come back from the dead.

Ira Glass

Jack Hitt. In the year since we first broadcast this show, Abdullah's gotten married. He has a six month old son. He's entered business school in Bahrain.

The other detainee that Jack talked to, Badr Zaman Badr is back in Pakistan. He and his brother wrote a book in Pashto about what happened to them in detention in Kandahar and Guantanamo. Because of this, Badr's brother has been detained by the Pakistan government.

In this past year, about 200 detainees have been released. About 385 are still in Guantanamo. 38 of them are currently classified as NLEC, No Longer Enemy Combatants. That is, they've been found to be completely innocent, but they're still in custody.

In September 2006, after criticism that not many truly dangerous prisoners were at Guantanamo, 14 high-value al-Qaeda prisoners were moved to Guantanamo from CIA black sites. And finally, just this week, the Justice Department filed petitions in federal court to try to curtail how often detainees can talk to their American lawyers, guys like Joe Margulies and the other attorneys that you heard this hour. An affidavit by a Navy lawyer, commander Patrick McCarthy, complained among other things, that those lawyers were providing information to the news media about the detainees.

Credits.

Ira Glass

Well, our program was produced today by Sarah Koenig and myself with Alex Blumberg, Diane Cook, Jane Feltes, Amy O'Leary and Lisa Pollak. Our senior producer is Julie Snyder. Production help from Sam Hallgren, Seth Lind, Thea Chaloner, Tommy Andreas. Music help from Jessica Hopper.

[ACKNOWLEDGEMENTS]

[FUNDING CREDITS]

This American Life is attributed by Public Radio International. WBEZ management oversight for our program by Mr. Torey Malatia. You know what he always says about us.

Sabin Willett

If anybody actually met these guys, they'd be shocked.

Ira Glass

I'm Ira Glass, back next week with more stories of this American life.

Announcer

PRI, Public Radio International.