The Battle of Guantánamo Bay

Attorney Joe Margulies on his new Gitmo book—and his Supreme Court win over the Bush crew

In January 2005, Minneapolis attorney Joe Margulies learned that one of his clients was about to be released from prison. Ordinarily this isn't the kind of event that requires attendance by counsel. But the client, Mamdouh Habib, was Australian, and the Australian government had asked Margulies if he could travel to the U.S. detention facility at Guantánamo Bay, Cuba, and accompany Habib on the flight home to Sydney. And so he found himself, in the wee hours of January 26, standing in the doorway of a rented corporate jet, hoping his client could see well enough in the dark to recognize him.

Guards at the detention facility had refused to let Margulies off the plane—a fact he must not have found surprising. The only reason Margulies could land at Guantánamo at all was because six months earlier he had won a more famous case, Rasul v. Bush, in which the U.S. Supreme Court ruled that Guantánamo detainees were entitled to lawyers and to be heard in court. Five years after Margulies began representing post-9/11 detainees, he has published Guantánamo and the Abuse of Presidential Power, a compelling history of the Bush administration's efforts to establish a prison beyond the reach of U.S. courts, where suspected masterminds of terror could be held in perfect isolation, making them susceptible to cruel and terrifying methods of interrogation.

As Margulies tells it, Mamdouh Habib's story says everything one needs to know about Guantánamo. In the summer of 2001, Habib left his Sydney coffeehouse in the hands of his wife, Maha, and traveled to Pakistan. Habib was a native of Egypt and he and Maha were devout Muslims. The trip to Pakistan was made in the hope that the couple might find an Islamic community in which to raise their four children. In the wake of September 11, however, it became clear that Pakistan was not a safe place for foreigners, particularly Muslims. An airplane ticket in his pocket, Habib got on a bus in the town he'd been visiting to head to the capital, where he hoped to board a plane.

Attorney Joseph Margulies: "The real surprise in the litigation was how many innocent guys were there"
William Cameron
Attorney Joseph Margulies: "The real surprise in the litigation was how many innocent guys were there"

But somewhere between Quetta and Karachi, Habib was pulled off the bus, arrested, and taken to a Pakistani detention facility where he was tortured. After a week, he was turned over to American agents, who drove him to an airfield and (as part of a practice called "extraordinary rendition" in which suspected terrorists are turned over to countries that practice torture) flew him, blindfolded and with his mouth duct-taped shut, to Cairo. There, Habib spent six months in a windowless six-by-eight cell and was tortured until he confessed to involvement with al Qaeda. He was eventually returned to U.S. agents, who moved him to Guantánamo, where other prisoners reported he would "bleed from his nose, mouth, and ears when he was asleep."

A defense attorney with a thriving local practice and a history of death penalty and other high-stakes cases, Margulies had begun defending Guantánamo detainees almost as soon as the first prisoners arrived in Cuba. Still, he says, he was unprepared for his first meeting with Habib. "The first time I walked into the box where they hold guys for legal interviews, [there's] this very frail, small man, and he was shackled and almost bent over by the weight of the chains," Margulies says. "I mean, not literally, but that's how it seemed. He seemed weighed down by these chains and his feet were shackled and there were shackles around his wrists. I got them to take them off his wrists, which they will only do if you implore them, so that he could shake my hand."

Within weeks of that meeting, Margulies learned that authorities planned to return Habib to Egypt. He asked a court to bar Habib's rendition, which he argued would violate the Geneva Conventions: "No State party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture." Weeks later, the memo made its way into the pages of the Washington Post. Five days later, Margulies learned that Habib would be sent back to Sydney.

The story doesn't end there, however. On January 25, while Margulies was boarding the Gulfstream jet chartered by the Australian government, guards were taking Habib from his cell. They had him change out of his orange prisoner's jumpsuit, and into jeans and a T-shirt. Then they shackled his hands and chained his feet to the floor of a small truck. A guard approached him, holding some papers, and asked if he was Habib, Margulies writes.

"Yes," Mamdouh told him, "I am Habib."

"You're leaving. Goin' to Egypt."

Mamdouh's heart stopped. Egypt. But he would not give the guard the satisfaction of seeing him react. "I am Australian. My home is Australia."

"Sorry." The guard waved the papers, as though they contained the answer. "Says here you're going to Egypt. Transport should be here directly."

If the episode was anything but a final sadistic joke, no one told the lawyer or his client. Margulies says he was shocked when, later, after the Gulfstream had left Cuban airspace, Habib told him the story. "I just couldn't believe it," Margulies says. "I thought he was pulling my leg."

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