by Kenneth Eade
As another agent looked through each CD and DVD in the storage space in their television cabinet, the third agent removed pillows from the couches and looked in the crevices for more “evidence” that may uncover terrorist activity. The fourth busied himself with fixing listening devices to the lamps in the room.
Moving into the kitchen, the agents examined every drawer and cabinet, the interior of the refrigerator and even the oven. But their jackpot came in the den, which contained a desk and two computers. Two agents scooped up the laptop and PC, and took them to the van waiting outside.
The computers would be examined for any evidence of terrorist activity or money laundering. Every social network account of Ahmed and his wife would be monitored. Their bank accounts, securities accounts, and even their Facebook and email accounts would never be private again. No need to worry about changing passwords any more.
Each of the two guest bedrooms was thoroughly searched. Three agents breached the sanctity of Ahmed and Catherine’s master bedroom, tugged on the bedspread that only their children had done before, and put their unwashed hands between the sheets where they had once made love.
Their “his and hers” closets were carefully examined. Every article of clothing had strange hands put on it, including the intimates in Catherine’s underwear drawer.
“Found a cell phone,” happily declared one agent, as he threw it into an evidence bag.
After the examination of the garage, the violation of the Khury’s home was complete. The agents slipped away as quietly as they had come, without a hint of their presence left behind, except for the missing items of personal property.
CHAPTER EIGHTEEN
Corporal Reeding strapped Ahmed’s shackled arms and legs into the black and grey steel and vinyl restraint chair, and immobilized his head with a large black leather band, which he tightened like a belt buckle. Next to the chair, on a small steel tray covered with plastic and paper were an assortment of tubes, gauze and plastic bags, and a bottle of “Ensure” protein shake.
“What are you going to do to me?” asked Ahmed, in terror, as he wondered what kind of torture was in store for him this time, “I told you everything I know. I answered all of your questions,” he added.
“This isn’t an interrogation. You’re going to be fed because you refused your meal.”
“I wasn’t hungry. What’s going on Corporal Reeding?”
“You said you wanted to die.”
“Of course I said that when I was being tortured! You would say it too!”
Reeding stepped back and a male Navy nurse stood in his place. Now, Reeding’s job was just to observe. He had been put on force-feeding detail going on only three days, and the entire process disgusted him.
“Who are you? What are you going to do to me?” Ahmed asked the nurse.
“I am going to perform an enteral feeding procedure. We will pass a naso-enteral feeding tube through your nose to your stomach to give you the nutrition you need to survive.”
“This really isn’t necessary,” said Ahmed. “I was just not hungry.”
“I have my orders,” said the nurse. “Would you prefer lidocaine` or should I lubricate the feeding tube with some olive oil?” he asked.
“I don’t know.”
The nurse opened a small package, lubricated the end of the feeding tube with its contents, and then shoved the tube into Ahmed’s left nostril. Ahmed cried out in pain and choked on the tube as the nurse continued to push it through his nose, down his throat and into his stomach. Ahmed watched in horror as the tube was pushed further and further down his nose. He tried to move away from the intruding tube to expel it from his body, but he could not turn his head. He felt the tube scratching against his throat, and coughed uncontrollably until the tube came out of his nose.
The nurse dabbed Ahmed’s bloody left nostril with gauze and again lubricated the tube with lidocaine.
“No, no, please don’t! I will eat! I will eat!”
This time he inserted the tube into Ahmed’s right nostril. Ahmed’s hands and feet pushed instinctively against the restraints as he felt the tube penetrating his nose, throat and finally his stomach, which gave him the urge to vomit. Ahmed choked, tried to breathe, and, in his panic, began to hyperventilate. There was a fire in his chest.
“You must calm down,” said the nurse. “We’re not going to hurt you.”
“You’re hurting me now,” Ahmed gasped. “I can’t, I can’t breathe.”
“Calm down and breathe normally.”
Ahmed tried to calm himself down. He went to the place where he always went when they tortured him. The place where he and Catherine, Cameron and Karen were free to laugh and play together. He dreamed of them holding hands, strolling the deserted beach below the cliffs of Shoreline Park. They used to go there and sit for hours, watching dolphins swim by and listening to the sea lions bark. As he dreamed, he began to breathe in and out of his mouth and his respiration calmed. He imagined being in the park with the kids, and pushing them in their swings as they called out, “Higher! Higher!”
Ahmed choked as the liquid passed through the tube and into his stomach. He sat there, immobilized, for about 20 minutes for the feeding, but for Ahmed it seemed an eternity. When the nurse finally pulled the tube out, the experience of removal was almost as bad as the insertion, giving Ahmed the urge to vomit. The nurse stuffed Ahmed’s bloody right nostril with gauze. As Ahmed choked and sputtered, the nurse put a mask over his face, and he threw up in the mask, covering his face with his own vomit.
***
Brent placed a luscious bite of lobster thermidor in his mouth, savoring the creamy mixture. Debbie the “blonde bombshell” looked on affectionately.
“This beats the airline food I’ve been on lately.”
“I should say. Do you have to go back to that place?”
“Only if the judge holds an evidentiary hearing. I’d want to go and depose witnesses to preserve their testimony.”
“So what’s the next step?”
“We file the habeas petition, the Government files an opposition, and we try to get him tried in District Court or released.”
Debbie’s home cooking was great, but the company was even better. As the candles dwindled, they drained the bottle of Pinot Grigio. Brent’s thoughts drifted to Ahmed. It’s true that life is a balance between hardship and joy. Everybody suffers. But in Ahmed’s case the balance was decidedly tipped toward suffering, and the joy was only in his memories.
CHAPTER NINETEEN
Thomas Jefferson said in his inaugural address that “habeas corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.”
Finally, one month after the filing of his petition, and after two months in custody, Ahmed would have his day in court. The only difference is that he would not be there.
Built in 1940, the U.S. Courthouse in Los Angeles was a granite and terra cotta masterpiece of art deco architecture. Judge Henley’s courtroom on Spring Street was paneled in dark wood, with strips of travertine marble in between the panels and high ceilings. Two counsel tables on the left and right were joined at the middle by a speaking podium. There was a vast no man’s land between the counsel tables and the clerk’s table, which was situated just below the judge’s lofty bench. The jury box was on the right, a table for the judge’s clerks on the left, and the seating gallery had church-style wooden pews.
U.S. District Court Judge Matthew Henley was a former U.S. Attorney who had a stellar prosecutorial record. He was known as a judge who was tough on crime. Federal judges are appointed, not elected, so, once in their seats, they have no reason to bend to popular opinion. Henley was no exception. He was tough on crime because he thought that judges should be tough on crime.
Brent was hoping that, with his experience, Judge Henley would be so offended by the lack of due process that had been afforded a fellow citizen, no matter of what crime he had been accused, that he would not let
his feelings about crime deter him from doing what was right. Brent was encouraged that the judge did not decide the petition without a hearing. This probably meant that he wanted to hear argument. So far, however, even on the day before the hearing, there was no indication that he had made any tentative ruling on the petition.
Upon Brent’s arrival to the courtroom, he first noticed his opponent, Stephen Gray, of the U.S. Attorney’s office, frustratingly going over his notes, looking defeated. That was a good sign. Brent found the judge’s tentative ruling on the counsel table, checked in with the clerk, then started to read the tentative. Judges seldom change their minds after issuing a tentative ruling but Judge Henley would give the lawyers their say in trying to convince him to change his mind.
Brent sat in the wooden pew in a half-filled courtroom, reading the tentative. It was a landslide victory. Henley ruled that Ahmed’s confession was coerced, in violation of his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel, since his pleas for speaking to his lawyer had been ignored, as well as a denial of his right to habeas corpus under the Habeas Corpus Suspension Clause of the Constitution. As such, the confession could not be used to determine that he was an enemy combatant that the military could hold without charge.
He noted that “the Government’s position that the Constitution had no effect at Guantanamo Bay caused great separation-of-powers concerns, and that, the president was not allowed to simply ‘turn the Constitution off’ simply because Guantanamo, which had been under U.S. control for over 100 years, was in a foreign country. This ruling, if allowed to stand, would direct the issuance a writ of habeas corpus to Guantanamo Bay prison, releasing Ahmed to the U.S. Marshal, where he would be held in California, pending the Government charging him within the next 72 hours. If they failed to charge him with any crime, he would be released.
Brent went over his speaking notes while trying to ignore the proceedings that were going on with other cases on the judge’s calendar. No matter how many times he had done this for over 18 years, the adrenalin always flowed at top capacity in anticipation of speaking. Sometimes the judge let you speak, sometimes it turned into a Q&A, and sometimes it amounted to an intellectual game of chess between two jurists: a sort of intelligence-pissing contest with the deck stacked in favor of the court.
The law is logical and is based on common sense. The trick was to argue the law in favor of your particular point of view without sounding biased. It was kind of like a magic trick: the best illusionist being the one who can best manipulate the logic to his or her advantage, all the while giving the illusion of impartiality.
Judge Henley’s clerk called the case, and Brent stepped up to the podium, his heart pounding with the knowledge that, whatever he said or did not say may make a difference in whether Ahmed was set free or spent the rest of his life in detention. Stephen Gray followed Brent and weighed in for the match, equally burdened with the onerous responsibility of upholding the war on terror.
“Mr. Gray, the tentative is against the Government, so I would like to hear from you first,” said Judge Henley. “I know I shouldn’t have to say this, but I’ve read the petition and the opposition, and what I really want to hear is what is not in the moving or opposing papers.”
“Yes, Your Honor. I don’t have to remind the court that, on September 11, 2001, the United States of America was viciously attacked by al Qaeda, whose attack on New York City killed over three thousand innocent people. The Authorization for Military Force that was issued in response to this attack is a Congressional Act which gives the president the power to detain any individual who is part of forces associated with the Taliban or al Qaeda in order to defeat this terrorist threat to our nation.
“The Government has shown that it is more likely than not that Mr. Khury has materially supported al Qaeda’s money laundering operation, which gives it the right to detain Mr. Khury. In his order, President Bush has determined that Mr. Khury is an enemy combatant, engaged in conduct preparing for international terrorism aimed at the United States, and represents a present and continuing danger to national security. This power gives the president the right to hold Mr. Khury until such time as hostilities in Iraq have ceased.”
“Mr. Gray,” said the judge, interrupting. “You stated that the Authorization for Use of Military Force is a Congressional Act. If so, the Non-Detention Act would not apply in this case. I’m not convinced that the Authorization for Use of Military Force is a Congressional Act. Convince me.”
“Your honor, the United States Supreme Court, in Hamdi v. Rumsfeld, held that the Authorization to Use Military Force was, indeed, a Congressional Act, and that the detention of an individual designated as an enemy combatant did not violate the Anti-Detention Act.”
“Please proceed Mr. Gray.”
“Your Honor, the Defense Department has established Combatant Status Review Tribunals to determine whether individuals detained at Guantanamo are enemy combatants. That determination was made in Mr. Khury’s case.”
“But, Mr. Gray, the Tribunals are established by the military. Therefore, they exist under the President’s Article I authority. They are not Article III courts.”
“I understand that, Your Honor, but, the Detainee Treatment Act of 2005 gives the D.C. District Court exclusive jurisdiction to review Tribunal decisions. With all due respect, Your Honor, this Court does not have jurisdiction.
“Even if this Court did have jurisdiction, Your Honor, the decisions of the D.C. Circuit Court of Appeals which are cited in my briefs, and which leave individual cases to be resolved according to their circumstances, clearly support the Government’s contention that the Authorization for Military Force authorizes the detention of not only those who are part of al-Qaeda and the Taliban, but those who purposefully and materially support them.
“This is what the Government has alleged against Mr. Khury. Al Qaeda, the Taliban, and associated forces still pose a grave threat to national security, and the Authorization for Military Force still empowers the president to address the continuing threat posed by these groups.”
CHAPTER TWENTY
Ahmed’s mind drifted to the federal courtroom in California and he imagined what was going on there, as the guard opened the food port, or “splash box” in his small cell, slid in a tray, and then locked the port. Today was the most important day of his life, and the last thing he could think about was food. On top of that, it had been only one day since he had been released from the force-feeding program. His nostrils were sore, his throat bruised and scratched, and his stomach was churning with acid. His chest was burning, he was hot, and sweating profusely. Nevertheless, he scooped up as much as the gruel as he could, swallowing it as fast as he could, which was probably a mistake, because, after he did, he felt the instant urge to throw up.
Ahmed’s two weeks on the force-feeding program had turned him into a virtual skeleton. The last thing he had expected that day was a visit from Sergeant Brown, who entered the cell just as Ahmed was throwing up in the toilet.
“Wassa matter A-hab? Not happy to see me?”
“Of course, Sergeant Brown, I’m always happy to see you,” said Ahmed, wiping the vomit off his lips with the back of his hand.
“You know, you can’t avoid eating by pretending you’re bulimic.”
“Sergeant Brown, I swear, I just got sick. I have no reason to refuse food.”
“You think your fancy lawyer’s gonna get you outta here A-hab? You ain’t never leavin’ our country club.”
“Whatever you say, Sergeant Brown.”
“And don’t worry about your lunch, we have a special menu, just for you.”
“No Sergeant Brown, please! I’ll eat another tray of regular food, please, sir!”
Brown grinned, turned and left, slamming the solid steel door behind him. Dostoyevsky said, “People sometimes speak about the bestial cruelty of man, but that is terribly unjust and offensive to beasts, no animal could ever be so cruel as a man,
so artfully, so artistically cruel.”
***
Judge Henley turned the podium over to Brent, but not until he had thrown his planned speech off with a poignant question. “Mr. Marks, Mr. Gray raises a very important issue. Why do you think this Court has jurisdiction in this case? Why should this petition not be heard by the D.C. Circuit Court in accordance with the Detainee Treatment Act of 2005, as the Government asserts?”
“Your Honor, the Detainee Treatment Act, although relevant to the horrendous torture that Mr. Khury has endured during his military detention, has provisions that limits relief to aliens detained at Guantanamo. The Supreme Court has just held in Boumedine vs. Bush that detainees need not seek review of their Tribunal decisions in the D.C. Circuit as a prerequisite to proceeding with a habeas action in District Court. Mr. Khury is a United States citizen, not an alien, and, as such, he has an undeniable right to have his case heard by an Article III court, not a military tribunal. Being a resident of Southern California, that is your court, Your Honor.”
“Thank you, Mr. Marks, please proceed.”
“Thank you, Your Honor. For over two centuries, through times of war and times of peace, the Bill of Rights to the United States Constitution has guaranteed that nobody would be deprived of liberty without due process of law. As the Supreme Court noted in Boumediene vs. Bush, “Security subsists infidelity to freedom’s first principles. Chief among those is freedom from arbitrary and unlawful restraint and the personal liberty that is secured by the adherence to the separation of powers.”
“Yet, for over two months, the Government has held Ahmed Khury in captivity, without alleging that he has taken up arms against the United States; in fact, it has not charged him with anything. The sole reason given for his indefinite detention is the executive’s belief that he can seize and detain him indefinitely on the allegation that he is an enemy combatant.
