Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  At the outset, they killed a Ugandan park ranger during a firefight. Then they rounded up tourists, let the French remain untouched, and marched seventeen English speakers out of the camp, where they bludgeoned and hacked eight of them to death: four Britons, two New Zealanders, and two Americans. One American left alive was given a note to convey to the U.S. ambassador; handwritten declarations were placed on bodies. “This is the punishment of the Anglo-Saxon who sold us,” said one. “You protect the minority and oppress the majority.”76

  That two U.S. citizens were among the victims—Susan Miller and her husband, Robert Haubner, Intel employees from Oregon—gave license for the FBI’s involvement, which began two days after the attack and gained intensity as Washington swaggered across the battlefield of terrorism. American officials pressed Rwanda for action, offered rewards, and urged that Rwandan forces question Hutu rebels being captured during borderland clashes in 2001. That was done until about ten suspects emerged, eventually whittled down to three.

  Rwandan officials worked on the men for a while, then reported them ready to talk. First a State Department security officer at the embassy questioned them. Afterward, FBI agents flew to Rwanda again and again to wander through a labyrinth of more than fifty “interviews.” In February 2003, Rwanda released the three to U.S. custody.77

  Indicted in the United States, they were assigned court-paid defense attorneys and investigators, who also visited Rwanda, gathered witnesses, and then moved to exclude the defendants’ statements from evidence. Finally, seven years after the crime, they sat in a federal courtroom in Washington, D.C., where Judge Ellen Segal Huvelle confronted the task of unraveling the circumstances behind the only evidence the FBI had brought back: the men’s confessions.

  Huvelle conducted a hearing longer than most trials: five weeks of testimony by nineteen people who included Rwandan ex-prisoners and former cabinet ministers, six physicians, and two psychiatrists. She pieced together a narrative she judged credible and set it down in an exacting 150-page opinion, a rare model of judicial scrutiny over the process of interrogation.

  The three Hutus were imprisoned at the Kami military camp, whose Tutsi commander, Captain Alex Kibingo, questioned them himself, usually at his house. He carried some baggage. He had been wounded twice by Hutu forces, and when he testified later in Washington, the judge observed “his palpable desire for revenge” and noted that “in his view, the defendants ‘are working with ALIR,’ and, therefore, ‘If they are punished … I will be happy.’ ”

  All three began with firm denials. One, Gregoire Nyaminani, insisted that he had been stationed at the edge of the park, nowhere near the killings. The others, François Karake and Leonidas Bimenyimana, claimed no involvement in the murders. These answers did not please Kibingo and his men.

  After their statements of innocence, the prisoners testified, the windows of the small rooms where each was kept alone were covered with iron sheets to block out light. Water was splashed inside to force them to sit on wet concrete floors, worsening the harsh conditions: no electricity, no bed or mattress, a can for a toilet, just one daily meal—a small cup of corn and beans contaminated with sand and stones. They lost weight, and hunger gave them dizziness and headaches. One contracted worms, and two, malaria.

  That was their reality, from which they were transported from time to time into the artificial propriety of an FBI interview when agents came to town. Back and forth they went from their squalid, darkened cells at Kami camp to a comfortable conference room at national police headquarters in the capital of Kigali, back and forth between brutality and legality, reality and unreality.

  With the first suspect, Nyaminani, seated at a long table, the lead FBI agent, Jennifer Snell Dent, instructed a Rwandan interpreter to read aloud the overseas version of the Miranda warning, translating it into Kinyarwanda, the national language. “We are representatives of the United States government. Under our laws, you have certain rights. Before we ask you any questions, we want to be sure you understand those rights. You do not have to speak to us or answer any questions. Even if you have already spoken to Rwandan authorities, you do not have to speak to us now.…”

  Nyaminani heard it differently, then and every time, as giving him “the right to talk to these people” because he was “not accused.” In another session, he understood the translation to mean, “This paper is about my rights, and that I should talk because I’m not accused, and you don’t need a lawyer because you’re not in court.”78 The various interpreters were themselves interrogators or investigators, hardly neutral.

  Printed copies might have helped, but Dent didn’t always have any, and when she did, they weren’t in Kinyarwanda, only in French and English, which Nyaminani couldn’t read. But he signed the form anyway, fearful with Kibingo’s soldiers and Rwandan investigators in the room.

  He was only on the park’s periphery, he told Dent, and he named sixteen men who entered, including the platoon commander, Bimenyimana. The FBI agents said they didn’t believe his claim of innocence. They did not ask him how he was being treated.

  Back at Kami, Nyaminani’s clothes and blanket were taken away.

  Four days later, again in the comfort of the police headquarters conference room, he first gave the FBI a two-page written statement reiterating his story, then changed it orally into an admission that he’d entered the park and knew generally about the attack. Only then was he read a mangled variation of his rights. Again he denied involvement in the murders, which he said were committed by a section of the platoon that remained behind and included a man named Karake.

  Kibingo then had Karake brought to his house for questioning, but Karake steadfastly insisted on his innocence. A week later, the same denial, and again a day later, this time in a statement that Karake wrote and signed. The third denial brought consequences. Back in his darkened room, soldiers handcuffed his left wrist to his right ankle, and his right wrist to his left ankle, leaving him bent and twisted until the following day.

  That evening, soldiers came to Karake’s room, unwound him from his painful position, and marched him to Kibingo’s house. They sat him in a chair, and Kibingo commanded him to admit that he and Nyaminani had killed. He would not. With the open palms of his hands, Kibingo slapped his ears so hard that Karake “saw something blinking … like sparks of fire,” a method known elsewhere in the world of torture as teléfono, an expert later testified. He fell out of his chair, and Kibingo kicked him.

  At last, Karake gave in. He agreed to say whatever Kibingo wanted. To seal the deal, Kibingo beat him with a stick the length of a man’s arm, then with a brick inside a sock. A pen and paper were put in front of him, and Kibingo told him what to write: that he had killed one tourist.

  Kibingo then passed word up his chain of command that Karake had something to tell the Americans, so the prisoner sat again at the police headquarters conference table with a State Department security officer from the embassy, Bryan Bachmann, who conducted preliminary interviews in the FBI agents’ absence. Rwandan investigators were always present, and Kibingo often was as well.

  “You do not have to speak to us or answer any questions.…”

  The overseas version of the Miranda warning explains the right to a lawyer but adds this: “Because you are not in our custody and we are not in the United States, we cannot ensure that you will be permitted access to a lawyer, or have one appointed for you, before or during any questioning.”79 Karake did not entirely understand what a lawyer did, but he signed the waiver, because he was afraid not to.

  There was bottled water on the table, and bathroom breaks were permitted. Bachmann asked for more details than appeared in Karake’s written statement, which did not specify even the gender of the tourist he supposedly killed. It was a white man with a tattoo of an eagle on his arm, Karake said, the first of many specifics that didn’t coincide with facts discovered on the ground: Haubner had a tattoo on his shoulder, but it looked nothing like an eagle.

  Eager
to avoid the ire of Kibingo, Karake enriched the story. He was ordered to kill, he told Bachmann, so he took an ax and smashed the head of a man lying facedown on the ground, covered with a bedsheet. No sheets were found at the scene, however, and other supposed participants said the victims were not covered. Put together, Karake’s various statements had him seeing a tattoo unlike the real one through the T-shirt of a victim covered by a sheet that nobody else noticed and was never found.

  Bachmann requested that the Rwandan officials leave the room. Alone with Karake and the embassy’s interpreter, a Rwandan who had transported him from Kami and acted as an investigator, Bachmann asked how Karake was being treated. Karake revealed nothing about the abuse, he testified later, because Kibingo “would have beaten me again, and he would have even killed me.”

  “Kwasa kwasa” was the name of the procedure. Nyaminani’s wrists were tied together with two ropes, one leading over his shoulder, the other behind his back. Kibingo once threw him against a wall. He was also handcuffed in the twisted position that Karake endured for long periods, and Kibingo beat him with a foot-long rubber slab two inches thick.

  “Even if you have already spoken to Rwandan authorities, you do not have to speak to us now.…” At the conference table with the FBI, Nyaminani named numerous men involved but again professed his own innocence. He asserted that Karake talked in his sleep about the killings.

  Back in his house on the base, Kibingo beat Karake so fiercely with a wooden stick and a brick that the prisoner’s left wrist and forearm were injured, became infected and swollen, and had to be bandaged.

  “You do not have to speak to us or answer any questions.…” Karake signed the waiver. Agent Dent of the FBI noticed the arm and asked what happened. From blisters, Karake said. She didn’t ask the obvious follow-up—where did the blisters come from?—and Karake volunteered nothing, fearing that he “would have been beaten again.”

  He then gave Dent a piece of what she sought: an admission that he was ordered to kill three white men, killed one, and saw other members of his unit kill two others with an ax.

  Again at the Kami camp, Kibingo beat him anyway, threatening that he would “continue hitting” and “would kill” him if he didn’t confess to additional murders. So after several more days of beatings, Karake complied, admitting to killing two other men as well. Rwandan officials informed Dent, who did not ask how the Rwandans had managed to acquire information the Americans could not.

  “If you decide to speak with us now, without a lawyer present, you retain the right to stop answering questions at any time.…” Karake signed the version in English, which he could not read.

  So it went for him and the others: antiseptic sessions at police headquarters with the Americans interspersed with torture at the military camp. When an FBI interrogator questioned their denials, the suspects adjusted, because with Rwandans present, every FBI doubt carried an ominous ring, signaling further torture back at Kami.

  Gradually, the men succumbed, but their confessions clashed with known reality. One saw red underwear: none was found. The undiscovered bedsheets were mentioned again, along with inaccurate descriptions of the tattoo. Bimenyimana claimed to have seen Karake kill a man and woman together, and Nyaminani said that under orders he’d taken a man and a woman into the forest to be murdered, but in fact men had been killed with men, and women with women. No couple was found dead together. Nyaminani’s DNA did not match any material discovered on the bodies.

  “If you want a lawyer, but the foreign authorities do not permit access at this time to a lawyer or will not now appoint one for you, then you still have the right not to speak to us at any time without a lawyer present.…”

  The inconsistencies and contradictions among all the confessions did not seem to trouble Dent or other American agents. They never bothered to visit the Kami camp to see how their suspects were being treated. They never conducted an inquiry into the Rwandans’ interrogation methods. The FBI either did not know, pretended not to know, or did not care to know what was happening during the long intervals between their charades of legality. The “evidence” was like food from a filthy kitchen, made to look presentable by clean silverware and starched tablecloths.

  Virtually nothing corroborated the confessions, but plenty corroborated the abuse. If the motto of skilled torturers is “leave no marks,” Kibingo and his men were sloppy in the extreme. The scars from the handcuffs, the ropes, and the beatings were observed and documented even by the prosecution’s medical expert. Karake had “21 distinct lesions or clusters of lesions, some of which contained six or seven individual scars.” In an impulse of honesty that impressed the judge, Karake portrayed some as “childhood injuries” and the most pronounced as “deliberate cutting wounds” from rituals. But those he attributed to abuses were deemed consistent with blunt trauma, cuffing, and other techniques he had described to the court.

  The U.S. government argued that as time went on, the suspects’ statements traveled closer and closer to the truth, while Judge Huvelle suggested that the torture may have propelled them further and further from the truth. Whichever it was, the admissions of guilt shed no light on the truth at all. The FBI had laundered the confessions as the Mafia launders money: by placing the cover of legitimacy over the crime, over the coercion behind the scenes. Instead of revealing reality, confession masked it.

  Judge Huvelle found the statements involuntary and suppressed them. Her ruling was so carefully detailed and tightly reasoned that the government didn’t bother to appeal. Without other sufficient evidence, the Justice Department dropped the charges, leaving a lesson that law enforcement seems loath to learn: Heavy reliance on the tool of confession is lazy. It aborts justice. As a result, whoever murdered eight people that March day in Bwindi—whether the three defendants or others—was not held to account.

  In late 2011, more than a dozen years after the crime, and four years after their confessions were ruled inadmissible, the three Rwandan militiamen remained jailed in the United States, because they did not want to leave the country. Instead, they applied for asylum, arguing that they would be persecuted and tortured if they returned home to Rwanda. Pending an immigration court’s decision, or a third country’s willingness to accept them, they stayed locked up.

  If you’ve confessed under pressure, you have two chances to nullify your admission. You can persuade the judge to suppress it, as the Rwandans did, or if you fail at that, you can try to convince the jury that it was all a lie exacted under duress. That was the way open to a naturalized American named Muhammad Salah.

  When he was arrested during a visit to Israeli-occupied Gaza in 1993, the United States took the unusual step of protesting “the delay in consular access and the condition of treatment.”80 By 2007, though, when the Justice Department wanted to use a confession he’d signed back then, the condition of treatment in 1993 looked just fine—a retroactive absolution of the Israelis.

  In fact, Salah contended, the Israelis had abused him into admitting falsely that he had funneled money to Hamas. Under the military law that Israel applied in Gaza, he had no right to an attorney during interrogation. He was slapped, hooded, kept naked, deprived of sleep, and forced into stress positions, he claimed. After nearly five years in an Israeli prison, he returned home to Chicago, where federal authorities arrested him in 2003 on the same charge.

  At a suppression hearing before trial, closed to the public to protect the identities of agents from Shin Beth (the Israeli secret police), the judge heard them rebut the allegations (“I am disgusted by even talking about it,” said one interrogator with practiced sensitivity), and she ruled the confession admissible.81

  But the Israelis’ wounded protests failed to charm the jurors, who unanimously rejected the heart of the government’s case, finding Salah and another Palestinian-American not guilty of sending funds to the Hamas military wing. Salah was convicted of a lesser charge—obstruction of justice (lying in a civil suit)—and sentenced to twenty-one
months.82

  Another Arab-American tried to escape from his confessions, which were made to Saudi interrogators and imported into his federal trial in the United States. He was Ahmed Omar Abu Ali, a Virginia college student with dual U.S. and Jordanian citizenship who came under suspicion while studying in Saudi Arabia.

  He needed either judge or jury to believe his allegations that he had been whipped, beaten, and chained by his wrists to the ceiling to force him to say that as a member of a secret al-Qaeda cell in Medina, he had planned to return to the United States to blow up planes, attack nuclear facilities, and assassinate President Bush with either gunfire or a car bomb. He told the Saudis that he had “moved from his university dormitory to al-Qaeda safehouses” and had “received training in weapons, explosives, forgery, and intelligence gathering,” as the Fourth Circuit Court of Appeals summarized his statements.83

  Bits of independent evidence corroborated his confessions: documents in a safe house containing his aliases and “various weapons, explosives, cell phones, computers, and walkie-talkies found [by the Saudis] in the safe-house, all of which Abu Ali had described,” the appeals court noted.

  The day before his arrest, U.S. officials had issued a secret, emergency order under the Foreign Intelligence Surveillance Act to a telecommunications company for archived e-mails, which had turned up an exchange, amateurishly encoded, between Abu Ali and a reputed al-Qaeda figure, Sultan Jubran Sultan al-Qahtani. Lamenting recent arrests of Saudi militants, Abu Ali wrote, “I heard the news about the children’s sickness. I wish them a speedy recovery,” to which al-Qahtani replied ridiculously, “I was saved from the accident by a great miracle.… Get yourself ready for the medical checkup because you may have an appointment soon.”

  Still, “Abu Ali’s own repeated confessions provide the strongest evidence of his guilt,” said the court, and herein lies the problem. Confessions under the care of foreign police who don’t provide Miranda warnings or attorneys, especially in a country with the fragile civil liberties of Saudi Arabia, should never be taken as the strongest evidence of anything. They contaminate the American criminal justice system.