The Battle of Guantánamo Bay

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

"The real surprise in the litigation is how many innocent guys were there," says Margulies. "We didn't know it at the time. We thought well, maybe they are bad guys, but you just don't know unless there's some lawful process. You don't simply accept the hysterical representations of the administration that these are evil guys. The only way you know that they are who the administration represents them to be is if you have some lawful process and you bring it out in the light of day."

Margulies's book doesn't end with the court's opinion in Rasul, or with Mamdouh Habib's return to Australia. The book also traces the Bush administration's efforts to find new ways to skirt federal courts in its pursuit of terrorists. In fact, one of the book's more amazing themes is the persistence with which the administration has kept pursuing judicial end-runs, and the tenacity with which the Supreme Court has consistently rejected the tactics.

"The administration had it in their heads that we needed to create this prison beyond the law in order to create the sort of environment where we can extract useful information," says Margulies. "And if we run a prison in the conventional way, if we subscribe to the Geneva Conventions, if we allow for scrutiny by the Red Cross, if we—heaven forbid—put it in a place where lawyers can come, we won't be able to create this place of despair and confusion and disorientation and anxiety. And we need to, because we're getting masterminds who will be resistant to any other interrogation technique. That's what they really believe, in good faith.

"And in fact they still persist, and that's the abuse of presidential power," Margulies continues. In his view, the original Bush plan for prisoners "was simply an error in judgment. [The abuse] is in the persistence, and in the steadfast refusal to re-evaluate their policy when the evidence of its error mounts every single day."

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