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.

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."

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.

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.

"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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