The Senselessness of Guantanamo

Chicago Lawyer Joseph Marguiles’ Guantánamo and the Abuse of Presidential Power (Simon & Schuster) is about as convincing an indictment of Bush, Defense Secretary Donald Rumsfeld, Vice President Dick Cheney, and at least a few dozen civilian and military advisors as can be imagined in an atmosphere of government secrecy. Margulies, who represents some of the men incarcerated within the U.S. prison at Guantánamo Bay, Cuba, uses his position as an advocate to, well, advocate. But despite any bias he might harbor as a defense lawyer, Margulies has used his unusual access to top-secret operations to write a book that ought to persuade anybody – regardless of political ideology – that Bush has allowed immoral and probably illegal treatment of fellow human beings.

Margulies opens the book with a dramatic scene from November 2004. In a prison cell at Guantánamo, Marguiles sits with Mamdouh Habib, an Australian citizen. It is the first time Margulies has met his client, despite Habib arriving at Guantánamo in May 2002. Before that, Habib had spent six months in a prison near Cairo, delivered there by U.S. authorities hoping that Egyptian interrogators would extract information by whatever means necessary.

During the meeting, the prisoner, ​“by order of the U.S. military,” must sit with his back to the door so that he cannot see natural light. His feet are shackled together and the shackles are bolted to the floor. The guards made one concession at Margulies’ request – unshackling Habib’s hands. Margulies is finding it difficult to mount an effective defense, given that the U.S. government has never charged Habib with specific wrongdoing, nor defended the detention in open court.

As Margulies leaves the meeting, Habib grasps his arm. ​“I’m dying here, Joe,” he says. ​“They’ll never let me go home.” At home are Habib’s wife and infant daughter who barely knows her father.

Habib turned out to be wrong. In one of the few uplifting moments in a profoundly depressing book, Habib arrives at Sydney airport on Jan. 28, 2005, aboard a plane chartered by the Australian government. His release from Guantánamo is as mysterious as his detention. So is the presence of Margulies on the airplane. ​“I am the only lawyer allowed by the U.S. government to accompany a prisoner home from the base, a courtesy I cannot explain,” Margulies says.

At the airport, Habib is reunited with his wife, Maha. ​“He had not seen her for more than three years, and, for a brief moment, he paused as if stunned by the sight,” Margulies reports. ​“At Guantánamo, American interrogators had told him his wife was dead, and though he had spoken with her briefly since that lie, the simple sight of his wife shook him deeply.”

Margulies’ joy at seeing the Habibs reunited is tempered by his knowledge that at least 500 prisoners still share Habib’s former circumstances at Guantánamo, as well as hundreds more placed by the U.S. government at prisons around the globe.

“They, like Mamdouh, are prisoners of the Bush Administration’s post-9/11 detention policy,” Margulies writes. ​“This book is about that policy.”

Indeed it is. After the opening scene featuring Habib, the book devolves into heavy language about international law, interrogation techniques and torture devices. While difficult to complete because of its technical language and unrelenting depressing message, the book certainly repays the intellectual and psychological labors needed to make it to its final page.

Marguiles summarizes the Bush administration’s premises underlying the incarceration of almost certainly innocent individuals such as Habib like this: Prisoners of the war against terror ​“may be taken – kidnapped if necessary – from any location in the world, even thousands of miles from any battlefield, without the knowledge or participation of the host government and without any judicial process. … They may be held for the rest of their lives, based solely on the president’s self-asserted authority. At the prison, they can be subjected to any conditions or treatment the military devises. And throughout their imprisonment, they may be held incommunicado and in solitary confinement, without access to courts or counsel, without charges of any kind, unknown to the world, and without the benefit of the Geneva Conventions, an international treaty signed and ratified by the United States and designed to protect people seized during armed conflict.”

Margulies writes emotionally throughout the book, but the text is fact-based, and no facts, no matter how knowledgeably presented, can explain how the Bush policy has survived. The lawlessness of a supposedly lawfully constituted government is breathtaking in its breadth and depth. 

Outraged by this, Margulies joined other lawyers in filing a lawsuit, Rasul v. Bush. On June 28, 2004, the U.S. Supreme Court, in Margulies’ words, ​“struck down these lawless detentions, rejecting the administration’s core contention that the prison at Guantánamo was beyond the reach of the law. After Rasul, a prisoner at Guantánamo who invokes the authority of the federal court must be released unless the government establishes the lawfulness of the incarceration by a fair process.”

Margulies cannot gloat about the ruling, however, given the penchant of Bush to ignore any check on presidential power. ​“No person may be imprisoned at Guantánamo without proof, presented before a neutral tribunal, that the incarceration is justified,” Margulies notes. ​“At least, that’s what the decision said. Enforcing this decision is another matter.”

No doubt some will argue that human rights violations are a small price to pay for information that might help prevent terrorism. Margulies posits that perhaps such an argument would contain at least a speck of credibility if those incarcerated really constituted ​“the worst of the worst” from the terrorist realm. But, he says, that is untrue.

“Today, no one can credibly maintain that the prisoners in Cuba are the worst of the worst. … More than 250 prisoners have been released with no intimation that they did anything wrong. The chief interrogator at the base says 75 percent of the prisoners are no longer being questioned. Even the camp commander says many of the 500 who remain could be released tomorrow at no risk to the United States.”