Interview with Bernhard Docke

Cageprisoners.com spoke to Bernhard Docke in Bremen, Germany - the specialist in Criminal Law who is representing a young German resident and Turkish national, Murat Kurnaz, who is being held in Guantanamo Bay.

(This interview was conducted several weeks prior to the Supreme Court ruling on the case of the Guantanamo detainees)

CAGEPRISONERS: What prompted you to take up Murat’s case?

BERNHARD DOCKE: Murat Kurnaz's´mother entrusted me with the legal representation of her son. She was looking for someone specialized in Criminal law, International law and basic knowledge of US law. She contacted me on the recommendation of another attorney as well as on the advice of a journalist. I did not hesitate for even a moment before accepting the case. It corresponds to the way I view myself as a lawyer: to give the best possible professional representation to victims of governmental arbitrariness.

CP: What are the legal problems you have encountered in trying to represent Murat?

BD: Legal problems did not play any part at first. But this was part of the problem anyway, as the US authorities claimed a lawless zone, where attorneys were not supposed to be involved. In the first instance, US courts confirmed this interpretation of the law. But at the end of 2003, further to the Supreme Court´s decision to consider 2 Guantanamo cases and the decision by the Federal District Court in San Francisco stating that US courts have jurisdiction over the Guantanamo detainees, there was new hope for the termination of lawlessness. We then decided to join law suits in the USA. There finally was the possibility to gain a legal platform to fight for constitutional procedures in conformity with the rule of law for the detainees. We accuse the US Government of violating the Geneva Convention, the International Covenant on Civil and Political Rights and the US- Constitution. The legal arguments are well defined in the pending Supreme Court case, Rasul versus Bush, that is
accessible via the internet.

CP: You have said that this case is like "a journey to the middle ages" and that you are defending your client under “almost totalitarian conditions” - Could you elaborate?

BD: The treatment of the detainees at Guantanamo represents a rupture of methods and culture of all standards of the constitutional rule of law acquired since the Enlightenment. I am denied access to Mr. Kurnaz, I have no means of communicating with him. The possibility to examine documents has also be refused to me and according to the Bush Administration, no judge is ever to interfere with the fate of the detainees. Some prisoners are supposed to remain there for the rest of their lives without a sentence. The detainees have been placed in a legal void and shadowy world, where they are exposed to governmental arbitrariness. I would describe this as medieval and almost totalitarian.

CP: Although a German resident, Murat is a Turkish national - what response have you had from the Turkish government?

BD: : It took a while before the Turkish authorities took interest in this particular case and got involved. Mrs. Kurnaz travelled to Ankara and spoke directly to the Foreign Ministry. Early in March 2003, I had an appointment at the Turkish Embassy in Washington with Mrs. Kurnaz and we were assured there that Turkey will request for him to be treated under the rule of law.

CP: German Federal Prosecutors state that there isn't sufficient evidence to make a case against Murat and they doubt that he was involved in any fighting - what do you personally make of the accusations against Murat? Why do you think he continues to be held?

BD: It is true that German authorities consider Murat Kurnaz a ´small fish´ with no involvement in fighting action. Why he is nevertheless detained at Guantanamo is unknown to me. Details in that matter have not been revealed to me, and I don´t want to speculate.

CP: You travelled to the East Coast of America with the GHRC delegation, earlier this year - what was the response of the American public and the US officials?

BD: The American public was confronted for the first time ever, with members of the detainees´ families during our visit to New York and Washington. There was great interest in the media. Many journalists have expressed doubts about the lawfulness and the political sense of the extra-legal, special treatment of the detainees. We were overwhelmed of the strong and highly professional support of the American Civil Liberties Union and the Center for Constitutional Rights. The mother of Murat Kurnaz travelled home with the impression that the USA and President Bush equate by no means. After the torture scandals that obviously were exported from Guantanamo were revealed, public criticism about the course of the Bush administration will probably have strengthened.

During our conversations with political representatives of both parties, it became obvious that even in the Republican Party there are serious legal, moral and political doubts of the "special treatment" at Guantanamo. There is concern about the growing international isolation of the USA and the weakening of human rights such as the Geneva Convention.

CP: What is your opinion of the recently announced annual reviews for the detainees - do you think these will guarantee justice for your client?

BD: I consider the yearly reviews of the detainees a hoax. The Bush administration obviously tries to simulate constitutional activities in the face of the Supreme Court. During one of these conferences to review his case, the detainee has no right to be assisted by an attorney and no right to review the incriminating evidence used against him in order to exonerate himself. The decisions of this Commission will be arbitrary and cannot be appealed. The situation at Guantanamo will thus not be relieved.

CP: What is the likelihood of Murat being repatriated to Germany or Turkey?

BD: Murat Kurnaz will probably rendered to Turkey by the US, from where he will then return to his home in Bremen.

CP:Tell us about your appeal on behalf of Murat to the US Supreme Court? What prompted you to take this action?

BD: We joined the pending Supreme Court case Rasul versus Bush. We thus overstepped the successive stages of legal appeal and chose the direct way to the Supreme Court. The reason was that there were rumours that the Bush administration, expecting a defeat, wanted to avoid a Supreme Court decision by either releasing some of the plaintiffs, negotiating with others and other prisoners being charged by a military commission. In this case, the Supreme Court would have run out of cases shortly before the oral arguments. In order to avoid this situation and to assure a Supreme Court decision, we decided to use this unusual, but procedurally legal, way. The direct access to the Supreme Court is possible only by joining a legal procedure dealing with the exact same question of law, and when the case is urgent and of fundamental significance. All these criteria were fulfilled.

CP:What has been the response of the European Parliament? Is Guantanamo on their agenda?

BD: The European Parliament has established a very well substantiated criticism about the treatment of the Guantanamo detainees, and this message has reached Washington. I can only speculate to what extent further negotiations about Guantanamo between the European Union, single member countries and the US will remain at the agenda. So please keep asking your local politicians in charge of this.

CP: One jurist recently commented on the "Guantanamisation of German Immigration Policy". Do you think this is an accurate description of the trend in Germany?

BD: Guantanamo has triggered discussions about the value of constitutional protections. There also is a debate about the rightfulness of torture in extreme cases, a separate enemy criminal law for alleged terror suspects as well as preventive security detention on simple grounds of suspicion. So far the constitutional state has prevailed and this is good.

CP: You were once described as a "successful defence lawyer with a liking for the US". Has this case altered your perception of the US and their 'War on Terror'?

BD: I have always harboured a great affection for the USA and I have many friends there. But it was never blind love - her dark sides, from Vietnam to Guantanamo, have always disturbed me. This ambivalence between the fascinating achievements of this country and its destructive delusions is sometimes hard to bear. But it is very helpful to me to know that many Americans - in November hopefully the majority of them - will not sanction the present political ways of the Bush administration. I expect the country to have enough self-healing power to return to a peaceful and multi-national togetherness.

CP: Mr. Docke, thank you for speaking to us.