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The Gitmo Riddle

How do you defend people beyond your reach from a president who seems beyond the law?

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The only commercial airlines that fly to Guantanamo Bay are Air Sunshine and Fandango Air, both out of Fort Lauderdale. To buy a ticket you need what's called country clearance from the Department of Defense.

Joseph Margulies received his country clearance after winning Rasul v. Bush, the Supreme Court case, decided in June, that gave Guantanamo prisoners access to U.S. courts. Margulies, a lawyer for the University of Chicago's MacArthur Justice Center, was planning to visit Mamdouh Habib, an Egyptian-born Australian citizen in his late 40s who'd been imprisoned at the naval base since May 2002.

Margulies bought his ticket, but a couple of days before he was to leave he received a call from Department of Justice lawyers imposing new restrictions. Frustrated, he tried to negotiate, but they wouldn't back down. "I had to cancel," he says.

Shortly after the September 11 hijackings Margulies began researching how other U.S. administrations had handled wartime crises. He studied the suspension of habeas corpus during the Civil War, the espionage and sedition acts passed during World War I, the internment camps set up during World War II, the loyalty oaths introduced during the early days of the cold war, the creation of COINTELPRO during the Vietnam war.

"When you're right at the epicenter of a crisis," he says, "there's a great pressure to react swiftly and aggressively to establish control and maintain safety. One pattern is that the military will assert the need to control people far longer and far more broadly than in fact they need to be. The initiative the executive branch proposes--whether it's interning the Japanese or housing people at Guantanamo--will last too long and sweep too broadly. That's what history tells us."

Margulies hadn't thought things would get as bad as they did. Two months after 9/11 he was speaking to a group of people in Minneapolis about the ramifications of the Patriot Act and assuring them that the Bill of Rights was a resilient document, that the doomsayers were alarmist, that we would weather the crisis with our civil liberties intact.

The next day he started worrying. President Bush announced that enemy combatants would be tried before secret military commissions, and a military order explicitly stated that it wouldn't be "practicable to apply . . . the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States."

"I had just said the sky is not falling," Margulies recalls. Now he decided he'd given the Bush administration too much credit. He was even more dismayed when he heard the administration insist that, for reasons of national security, U.S. authorities had the right to arrest foreign nationals on foreign soil, whisk them out of whatever country they were in, and imprison them indefinitely without disclosing their names or the reasons for their detention and without giving them access to courts or attorneys.

From the outset of the war on terror the Bush administration had said that America's latest enemy was like no enemy we'd faced before and that extraordinary steps would be needed to defeat it. Many critics decried those extraordinary steps as a dangerous overreaction that we would live to regret. Soon Margulies found himself at the forefront of the effort to rein in the administration.

Margulies's interest in Guantanamo stems from a deep, long-held belief that the government must act in accordance with the law. His clients over the years have included death-row inmates in Texas, victims of police brutality, and a woman whose mentally ill son killed himself in a Wisconsin prison after being denied adequate psychiatric treatment. "The government has the right to take certain actions against people--in a criminal context, in a military context, in a lot of different contexts," he says. "But it does not have the right to take those actions lawlessly."

When President Bush unveiled his plans to create military commissions, Margulies and his wife, Sandra Babcock, a death-penalty lawyer, understood that any legal challenge would have to draw on different bodies of law, including civil rights law, international human-rights law, and death-penalty law. The couple arranged a conference call with colleagues across the country who worked in these areas, among them Michael Ratner of the Center for Constitutional Rights in New York. By the time the first prisoners were transported to Guantanamo Bay, in January 2002, a legal team was in place.

High-level officials in the Bush administration referred to the prisoners as the "worst of the worst" and labeled them "unlawful combatants," claiming they weren't entitled to the protections offered by the Geneva Conventions. "Remember, these are--the ones in Guantanamo Bay--are killers," said President Bush that March. "They don't share the same values we share."

Among the early arrivals at Guantanamo were David Hicks, Shafiq Rasul, and Asif Iqbal. Hicks, an Australian citizen, had been captured in Afghanistan. Rasul and Iqbal, both British citizens, had been caught in Pakistan. The men were allowed to send letters home--letters that were censored by the U.S. and delivered by the International Red Cross. Their families contacted government officials and lawyers in their home countries, offering innocent reasons for their relatives' trips abroad and denying that they'd been involved in the fighting in Afghanistan. The British and Australian lawyers had no power to intervene, but they'd heard about Margulies and his colleagues and referred the prisoners' families to them.

That February, Margulies and his colleagues filed Rasul v. Bush in U.S. district court in Washington, D.C., under a provision in the law that allows friends or family to sue on behalf of people who are unable to do so on their own. Mamdouh Habib, another Australian citizen who arrived at Guantanamo that May, was later added to the suit.

The American lawyers didn't know much about the prisoners, but that wasn't their primary concern. "The government's contention," Margulies says, "was you have no right to bring an action at all--there is no jurisdiction in the federal courts."

The government's right to take away people's freedom is usually held in check by the writ of habeas corpus, which allows prisoners to challenge their detention in a court of law. It's one of the only guarantees of individual liberty found in the original text of the Constitution rather than the Bill of Rights, and it applies to anyone in U.S. custody, not just citizens. The Constitution allows the writ to be suspended in situations where it's necessary to protect public safety, but only Congress can suspend it.

As part of the suit, Margulies and his colleagues filed a habeas petition, arguing that the government either had to justify the detention of the prisoners or release them. The case was later combined with a similar one that had been filed on behalf of 12 Kuwaiti prisoners.

In its response the Bush administration cited Johnson v. Eisentrager, a case involving German nationals who'd been seized in China at the end of World War II for helping the Japanese after Germany had surrendered. They were tried before a military commission and imprisoned in a U.S. military facility in Germany, then filed a habeas petition in U.S. federal court. The Supreme Court denied their petition in 1950, saying that U.S. courts had no jurisdiction over foreign nationals outside the U.S. The Bush administration drew a parallel between Rasul and Eisentrager, arguing that in both cases aliens were being held "outside the sovereign territory of the United States."

This past summer, on June 28, the Supreme Court disagreed, finding key differences in the cases. The Guantanamo prisoners, it said, "are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States." The court pointed out that the prisoners had "never been afforded access to any tribunal, much less charged with and convicted of wrongdoing," and it concluded that Guantanamo Bay was "in every practical respect a United States territory," and therefore U.S. courts had jurisdiction. The court ordered the Bush administration to either explain why the prisoners were being held or free them.

By then the U.S. had released fewer than 200 Guantanamo prisoners, and it's now holding approximately 550. They come from 40 different countries, but Department of Defense spokespeople won't publicly disclose where they were captured, other than to say "in the Afghan theater." Margulies says the Guantanamo prisoners were arrested all over the world, not just on the battlefields of Afghanistan; his colleagues at the Center for Constitutional Rights are working on behalf of prisoners seized as far away from Afghanistan as Gambia and Bosnia. "Guantanamo," says Margulies, "has become a symbol internationally of American hubris."

According to Major Michael Shavers, a Defense Department spokesman, after the Supreme Court's ruling, all prisoners were notified that they had the right to file a habeas petition, though it's not clear whether they understood what that meant or how they would go about having one filed. Shavers says they can write letters to their families or home governments. (Asked what happens in the case of someone whose mental state might be precarious, he says, "That's in the realm of speculation.") If habeas petitions are filed on the prisoners' behalf--cases have already been filed on behalf of 63 detainees--then their cases will be heard in a U.S. court before a U.S. judge.

Meanwhile, in a process Shavers says also meets the requirements of Rasul, all prisoners are being brought before panels of military officers, who will decide by the end of the year whether the government correctly labeled them enemy combatants. As of October 19 these tribunals had reviewed 192 cases and made a determination in 96 of them, deciding that only one prisoner could be released. The rest of the prisoners are expected to appear before a tribunal by the end of the year. Prisoners who remain in custody will be brought before another military panel to determine whether they still can provide useful intelligence or are still a threat to the U.S. Then they'll either be released or held for another year, after which they'll get another review, and so on. There's also the possibility that they could be tried for war crimes by a military commission.

The two British detainees in Rasul were released from Guantanamo in March, while the lawsuit was pending. Margulies was pleased, but their release only seemed to confirm one of his worst fears--that the U.S. had mistakenly rounded up and imprisoned people with no connection to terrorism.

When Shafiq Rasul was captured he was in Pakistan visiting relatives and considering enrolling in a computer engineering class. Asif Iqbal had traveled to Pakistan to be married. "After saying that they--like everybody else [at Guantanamo]--are the worst of the worst, they were released without charges," Margulies says. "They were flown back to London and released by the British government the next day." Of all the prisoners released so far he knows of only two who've been detained by their home governments. The Pentagon claims that at least seven returned to terrorist activities.

After more than two years at Guantanamo, Margulies says, Rasul and Iqbal "are shattered." They've reported that they were forced to endure long periods of solitary confinement and various forms of "stress and duress," including squatting while chained to a ring in the floor for up to 12 hours. In an open letter to President Bush after their release, they wrote that from the "moment of our arrival in Guantanamo (and indeed from long before) we were deliberately humiliated and degraded." They said dogs were used to threaten them, and during interrogations they were subjected to freezing temperatures, loud music, and strobe lights. They also say they witnessed brutal beatings and heard accounts from other prisoners about being stripped and sexually assaulted. Their stories are bolstered by the descriptions of abuse military officers gave the New York Times in a story published on October 17.

"We know the abuses at Abu Ghraib happened after General [Geoffrey] Miller went from Guantanamo to Iraq and said, 'Here's what worked at Guantanamo,'" Margulies says. He knows this from an August 2004 report put together by an independent panel headed by former defense secretary James Schlesinger that had been charged with reviewing Department of Defense operations after Abu Ghraib. The Schlesinger report found that Miller, the commander at Guantanamo, had traveled to Iraq in August 2003 to advise U.S. authorities on prisoner screening and interrogation. "He noted, however, that the Geneva Conventions did apply to Iraq," the report states. It also states that some of the abuse in Iraq stemmed from a "failure to distinguish between permitted interrogation techniques in other theater environments." Apparently techniques that were permitted at Guantanamo, where the Geneva Conventions weren't seen to apply, counted as abuse in Iraq, where they were.

Like many people who've studied interrogation techniques, Margulies doesn't believe abuse yields reliable information. Both Rasul and Iqbal, for example, confessed to meeting Osama bin Laden and hijacker Mohammed Atta in Afghanistan in 2000. But MI5, the United Kingdom's security service, produced evidence that neither had left Great Britain that year.

Soon after the Supreme Court's ruling, David Hicks was charged with conspiracy, attempted murder, and aiding the enemy. There was no word about the fourth plaintiff in Margulies's case, Mamdouh Habib.

Habib knew nothing about the legal efforts on his and the other prisoners' behalf until August 11, when U.S. authorities at the naval base placed a call to Sydney and allowed him speak to his wife, Maha. It was the first conversation they'd had in nearly three years. Maha later told Margulies she'd spent five minutes assuring her husband that he was actually speaking to her. U.S. interrogators, she said, had convinced him she was dead.

According to Margulies, the government uses isolation tactics at Guantanamo in the hope that if prisoners come to believe they're alone in the world--without family or legal representation--they'll be more likely to disclose information. The problem with that way of thinking, as he writes in the autumn issue of the Virginia Quarterly Review, is that it assumes a prisoner has information to disclose and that "the Administration has made the right decision to detain this person in the first place."

In early October the government finally came forward with the claim that Habib had confessed to knowing about Al Qaeda's plans for the September 11 attacks and that he'd stayed at a safe house in Afghanistan and trained some of the hijackers in martial arts. According to government documents written when his case was reviewed by the military tribunal, Habib says the allegations stem from statements he made "under duress and torture."

Habib was born in Egypt in 1955 and moved to Australia in 1982. He settled in Sydney, had four children with Maha, and eventually opened a cafe. Australian news organizations have reported that he was a follower of an Islamic cleric who got deported in the 80s for extremist views and that he'd come to the attention of the Australian Security Intelligence Organisation in the early 90s, after acquaintances of his were convicted in the first World Trade Center bombing.

Margulies says that in the summer of 2001 Habib and Maha were considering moving to Pakistan, and that Habib traveled there in July to look for work and to find an Islamic school for their children. According to press reports, after September 11 he called home to say the climate had changed and that he no longer thought the family should move. He booked a return flight to Sydney for October 4 but was arrested while taking a bus to the Karachi airport. Though Habib had been an Australian citizen for 20 years, Pakistani authorities turned him over to the Egyptians, who interrogated him before transferring him to U.S. custody.

In a statement about their ordeal, Rasul, Iqbal, and another released prisoner claimed that Habib was "in catastrophic shape, mental and physical." They said he'd been tortured while he was in Egyptian custody and as a result "used to bleed from his nose, mouth and ears when he was asleep. . . . He got no medical attention for this." Another former prisoner told an Australian TV reporter last summer that he'd seen Habib "being dragged by chains" and "screaming."

Margulies says Habib suffered from major depression before his arrest, which he suspects was only exacerbated by his treatment and the conditions at Guantanamo. "We have real serious worries about his mental health," he says. "The phenomenon of people deteriorating in isolation is pretty well established." It's not clear what this means for Habib's ability to participate in his own defense if he's tried for war crimes before a military commission, but Margulies says that if someone is insane "we know what that means in a regular court--you can't prosecute him. He needs to be someplace where you can try to restore his competency."

After the Supreme Court decided Rasul, government officials told Margulies he'd be able to meet with Habib. Margulies invited Stephen Hopper, Maha's Australian lawyer, to accompany him on the visit, since Maha had mentioned Hopper to Habib on the phone.

A few days before they were to fly down, the U.S. denied Hopper's request for a visit. "He was supposed to introduce me," says Margulies, who thought the introduction was necessary to win Habib's trust. Then the Department of Justice attorneys called and told Margulies he might be allowed only one visit to Guantanamo to talk with Habib--and that if he didn't get Habib's permission to represent him on that one visit he might not be permitted to go again. "If I only get one visit," Margulies says, "I don't want to go down there until he knows I'm someone your wife trusts, I'm someone that is on your side, I'm not a plant by the United States."

Margulies has asked Maha to write him a letter of introduction, and he plans to visit Habib as soon as possible. "He's been down there in isolation, with deteriorating mental health, and we believe he's been tortured," Margulies says. "He's desperately alone, and any additional day is awful."

Margulies is astonished that the Rasul ruling hasn't persuaded the Bush administration to improve his access to his clients. "They continue to say--and this is what's mind-boggling, and this is completely wrong--they say that Rasul really settled nothing," he says. "'Yes, you can go to court, but still those guys don't have any rights. They're foreign nationals outside their sovereign territories, so we can hold them with no rights at all.' The Supreme Court did not issue a decision as a fire drill. Of course they have rights. And we will vindicate them in court."

Pilots train for a phenomenon called spatial disorientation, which Margulies finds a useful metaphor when thinking about the Bush administration's response to 9/11. Spatial disorientation occurs when visibility is limited--at night or in fog, when the horizon can't be distinguished from the surface of the earth or a body of water. In such conditions pilots can't tell up from down. The way they perceive their position and motion relative to the earth is unreliable, so they must learn to trust their flight instruments. "Every instinct in their body will tell them that their life depends on taking a certain action," Margulies writes in the Virginia Quarterly Review.

"But tragically their instincts during these periods cannot be trusted, and what they believe to be the only safe option may be precisely what kills them."

Like disoriented pilots, Margulies writes, "political actors trapped in a tightening spiral of wartime hysteria simply cannot trust their instincts. . . . They believe they are doing precisely what must be done to preserve the nation."

While the Supreme Court did find the Japanese internment camps to be legal in 1944, it also ruled that the government didn't have the right to imprison people who could demonstrate their loyalty. "So even in the internment cases," Margulies says, "there was some mechanism by which a person who was wrongly held could go to court, establish their innocence, and secure their release."

He doesn't think the impulse to overreact amounts to a moral failure on the part of leaders, but not anticipating or controlling that impulse does. In other words, one can't fault the pilot for experiencing spatial disorientation, but one can fault him for not being prepared to compensate for it. "We would be deeply dismayed," Margulies writes, "if a pilot were to disable his instruments precisely when he is most likely to become disoriented."

Wartime hysteria eventually gives way to the recognition that unnecessary harm has been done. In 1988 Congress declared the Japanese internments a "grave injustice." In 1993 President Clinton personally apologized to the surviving victims, many of whom were awarded $20,000 in reparations. "We look back on periods of excess with regret because we recognize we ought not to have done it," Margulies says. "So the question is, given that we made a mistake, how do we avoid doing it again, not how do we come to accept our mistakes. We ruined people's lives unnecessarily, and we didn't ruin them for a greater good. We need to be more careful. If we're going to restrict the rights of someone we shouldn't do it thoughtlessly, blindly, mindlessly."

Art accompanying story in printed newspaper (not available in this archive): photos/Mark Wilson-Getty Images, AP Photo-J. Scott Applewhite, AP/Wide World Photos, Corbis.

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