The Battle of Guantánamo Bay

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

Nor did either man ever get an explanation for Habib's detention, or for his middle-of-the-night release. "When asked to explain the sudden change of heart, American officials refused to comment on the record," Margulies writes. "But they told the Australians they had decided to release him 'because the C.I.A. did not want the evidence about Mr. Habib being taken to Egypt, and his allegations of torture, raised in court.'"

Mamdouh Habib is not the most famous of Margulies's clients, or even the most noteworthy of the Guantánamo detainees whose stories are contained in Margulies's book. That distinction belongs to Shafiq Rasul, a British Muslim whose name is synonymous with the case Margulies took to the U.S. Supreme Court and won. Rasul v. Bush reaffirmed the centuries-old legal principal of habeas corpus, the so-called Great Writ that grants suspects the right to challenge their incarceration. Specifically, the high court said in Rasul that the Bush administration did not have the right to deny terror suspects legal counsel, nor to refuse to present its evidence against them in court. The decision has had a far-reaching effect on the Bush administration's war on terror.

How did Rasul come to select Margulies as his attorney? The short answer is that he didn't. In the days following 9/11, Margulies was seemingly the only person who wanted the case, or others like it.

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"

The edition of the New York Times Margulies cracked open at his southwest Minneapolis breakfast table the morning of November 14, 2001, carried news that the previous day President Bush had signed an order allowing the use of military tribunals to try foreigners charged with terrorism. The tribunals might be conducted in other countries and in secret, and would not be constrained by suspects' rights.

As it happens, Margulies is married to Sandra Babcock, an attorney who had gone from working as a Hennepin County public defender to being one of the world's foremost authorities on international law and the death penalty. She had her own concerns about Bush's plan, and so when the two finished reading, they started making phone calls.

Within weeks, Margulies had arranged to represent several supposed enemy combatants, including Rasul, who was detained when he fled the U.S. bombing in northeastern Afghanistan, alongside thousands of other refugees. Like Habib, Rasul was unaware he even had a lawyer for most of the time he was detained at Guantánamo. Indeed, he had been released by the time the case that Margulies filed in his name was decided in his favor by the U.S. Supreme Court in June 2004.

The bottom line in Rasul: Bush administration policies notwithstanding, even terror suspects deserve due process—including the right to know the charges against them and to confront their accusers in court. The Bush administration is still looking for ways to circumvent this kind of meddlesome jurisprudence. And Margulies, who moved from Minneapolis this summer and is newly installed on the law school faculty at Northwestern University in Chicago, is still on the case.

The first few chapters of Guantánamo and the Abuse of Presidential Power outline the reasons the administration was bent on holding its prisoners beyond the reach of the courts. For starters, keeping detainees incommunicado was intended to increase their sense of isolation and hopelessness, compelling them to cooperate with their captors by coughing up the intelligence the U.S. government was sure they possessed. In the government's view, niceties such as due process, legal representation, and judicial oversight were just the sorts of lifelines that might help evildoers hold out against the forces of light.

The presence of lawyers would also have complicated the U.S.'s interrogation tactics. Margulies's clients, he writes, were subjected to a dizzying array of torments, both physical and psychological. "The guards would say to us, 'We could kill you at any time,'" the book quotes Rasul as saying. "They would say, 'The world doesn't know you're here, nobody knows you're here, all they know is that you're missing and we could kill you and no one would know.'" As Margulies painstakingly documents, there are plenty of ways to shame, traumatize, and terrorize captives that don't technically rise to the definition of torture.

In the months following 9/11, Margulies had a hard time finding lawyers willing to help with the case. "When we started the litigation," he remembers, "one of my co-counsels, in New Orleans, got a death threat at home.

"We filed [the Rasul case] in Washington, D.C., and we needed local counsel, because I was in Minneapolis and my co-counsel were in New York, but law firms in D.C. wouldn't touch it. These were law firms that I'd worked with in the past, people I knew. And some of them were pretty apologetic about it: 'Joe, I'd do it but I just can't, my firm just can't, it's too soon after 9/11, we just can't do it.'" Eventually Margulies contacted a small criminal defense firm whose principals saw the same elements he did and who agreed to file the papers.

Guantánamo makes a compelling case that the detainees' rights aren't the only things at stake in Rasul and the cases that have followed it. Public safety, Margulies argues, is also best served by observing the rule of law: If the government is not forced to justify its detentions in court, it has no incentive to ensure it has detained actual terrorists. In August 2002, eight months after the first planeload of supposed terrorist operatives had arrived in Cuba, intelligence officials were forced to conclude that none of the nearly 600 prisoners were "big fish." Like Rasul, many had just been caught up in sweeps conducted by local warlords with agendas of their own. U.S. forces captured a mere 5 percent of detainees; many of the rest were handed over by third parties in pursuit of U.S. cash bounties. Many were very old, and a surprising number—nine as of 2005—were children.

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