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The Prisoners Speak

Once, she confided, “When we were briefed about this place we weren’t relishing the idea of spending a long time here. Gitmo was home to the ‘worst of the worst,’ they said. Then a handful of us were chosen for this mission in Echo, maximum-security isolation block, where the most dangerous terrorists in the whole island were kept. I was expecting a Hannibal Lecter/Agent Starling type situation, with you guys trying to terrify us using perverse mind games….”

So how does it feel, discussing Les Misérables with one of the most dangerous men on earth?”

I can see now how we all bought the hype. I don’t know if they’ve even accused you of anything, but I know y’all can’t be guilty. The government would have displayed their strongest evidence in a sensational show trial by now… I expected you to hate all Americans after all you’ve been through, especially us soldiers. But you’re wonderfully complex, Moazzam. All the things I’d expect you to be, you’re not.”

Perhaps Begg really did strike up a warm relationship with soldier Jennifer, but all one can say of the words on the page is that they are resoundingly phony. Only in bad fiction do people speak this way, and true though Begg’s story may well be in its essential facts, it is very poorly served by line after line of rankly implausible writing.

However, this isn’t a matter of the trustworthiness of individual victims and witnesses. There can be no doubt about the reality of the predicament described by Moazzam Begg and the Tipton Three: the indiscriminate dragnet thrown out by the United States in its frenzied hunt for members and associates of al-Qaeda brought in a catch that included many bystanders who happened to be in the wrong place at the wrong time, and whose single common denominator was that they were Muslims. Many hundreds were arrested in New York and other American cities in the days immediately following September 11, 2001, such as Ehab Elmaghraby, an Egyptian national who had the misfortune to be running an Arab restaurant near Times Square, and was hustled off to the Metropolitan Detention Center in Brooklyn, where he was denied access to a lawyer, held for two years, subjected to violent physical and verbal abuse (he alleges torture), and eventually deported. He sued the US government and in April this year received a check for $300,000, though as a condition of the settlement the government denied any fault or liability.5 Thousands more were caught in the net in Afghanistan and Pakistan, then, later, in Iraq. Those who ended up at Guantánamo found themselves in a “legal black hole” (as it’s been characterized by the British law lord, Johan Steyn), the preeminent symbol, in the world’s eyes, of the Bush administration’s airy indifference not just to international law, but to the basic principles of common humanity.

When we look back at the crumbling shell of Camp Delta, we will be forced to confront its lasting damage—to the Constitution, to the country, and to the rule of law,” writes Joseph Margulies in his superbly argued Guantánamo and the Abuse of Presidential Power. As a lawyer representing two of the Tipton Three (Shafiq Rasul and Asif Iqbal) among other Guantánamo detainees, Margulies is an interested party here, and his book is powerfully fueled by personal indignation at the injustice suffered by his clients. What makes it so remarkable is the cool eloquence and clarity with which Margulies conducts the lay reader on a revelatory and unexpectedly invigorating tour of the mephitic legal swamp of Guantánamo Bay.

The exceptional status of the camp as a world in limbo, ruled by the executive but out of reach of American law, is rooted in the threadbare fiction of Cuba’s “ultimate sovereignty,” written into the 1903 lease of Guantánamo to the US. (Cuba has long tried to exercise that sovereignty without success, and the annual rent check for $4,085 is never cashed.) When Margulies and his colleagues filed the case of Rasul and others v. George W. Bush, they were, he writes, seeking to clarify “a deceptively simple question: what is the role of the judiciary in the war on terror?”—to which the administration’s effective answer was “none at all,” because the camp was on foreign soil. In a gratuitous assertion of presidential power, the administration even refused to allow Rasul and his co-plaintiffs to learn of the existence of their own case:

The Administration’s lawyers did not merely ask the court to dismiss the case: they took the position that our clients should not be allowed to know the litigation had started. We were not allowed to speak or meet with our clients. We could not even send them a copy of the lawsuit. (We could mail them anything we wanted, but the military would not deliver it to them.) Rasul is apparently the first case in more than 150 years in which the subjects of the litigation did not know that a case was under way on their behalf.

Rasul was filed in February 2002, some six weeks after the Tipton Three were taken prisoner by the Americans in Sheberghan, and took more than two years to find its way up to the Supreme Court, by which time Rasul, Iqbal, and Ahmed had recently been returned to Britain. In a 6–3 majority decision (Scalia, Thomas, and Rehnquist dissented), the Court agreed that Guantánamo inmates did indeed have the right to a writ of habeas corpus to challenge their detention, and added:

Petitioners’ allegations—that although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing—unquestionably describe custody in violation of the Constitution or laws or treaties of the United States.

Lawyers for the President claimed that the ruling was “oblique.”

In a move that has become increasingly familiar since, the administration first appeared to bow gracefully to the decision of the Court, then came up with a fix that violated the spirit, if not quite the letter, of the decision, and enabled Guantánamo to continue as the fiefdom of the executive branch, barricaded against the petty and intrusive concerns of the judiciary. Its response to Rasul was to create the now infamous CSRTs, Combatant Status Review Tribunals—three-man kangaroo courts to which detainees were forbidden to be accompanied by a lawyer, and where they could be convicted as “enemy combatants” on the basis of confessions obtained under duress or torture, or by evidence so secret that it could not be disclosed at the hearing. Most importantly, the definition of “enemy combatant” was sufficiently elastic to stretch to include almost anybody. In December 2004, in the federal court in Washington, D.C., Judge Joyce Hens Green put several hypothetical cases to Brian Boyle, representing the US attorney general:

What about, she asked, “a little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans but really is a front to finance al-Qaeda activities. Would she be considered an enemy combatant?” She could be, Boyle answered, noting that the military would not be “disabled” from detaining her even if she did not intend that the money go to terrorism…. Or “a resident of Dublin…who teaches English to the son of a person who the CIA knows to be a member of al-Qaeda?” Yes, Boyle said, because unbeknownst to the teacher, the al-Qaeda agent might be learning English as part of his plot to launch an attack.

3.

One might see Guantánamo as the Bush administration’s most audacious attempt at nation-building: a tiny offshore state, run, like any totalitarian regime, by an all-powerful president, the military, and the intelligence services. Nowhere has unfettered presidential power been so stubbornly and pugnaciously defended as in the continuing conflict between the executive and the judiciary over Guantánamo Bay. The camp and the administration are so wedded together that the state of the one is perhaps the best guide we have to the health of the other.

The temporary cages of Camp X-Ray went up in early January 2002, when Bush’s authority as a “war president” was at its zenith, and long before the rift in public opinion over the proposed invasion of Iraq began to tear the country apart. The flabbily worded Authorization for Use of Military Force (AUMF), rushed through Congress on September 18, 2001, gave the President his carte blanche:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Determines” should be ringed with a red pencil, and so should “future acts,” with its implicit license for preemptive warfare, but the trickiest word is that “such” in the final clause. “Such…persons” seems to mean “persons of that sort”—an infinitely expandable category. In effect, AUMF entitled the Bush administration to use all necessary force not just against terrorists but against persons determined by the President to be of the terrorist sort—such as Ehab Elmaghraby, the Tipton Three, and Moazzam Begg, along with charitable elderly Swiss ladies and Irish ESL teachers. The concrete, chain-link, and razor-wire architecture of Guantánamo rose as a forbidding monument to the extraordinary power invested by the nation in its commander in chief and his circle of close advisers. Like warrantless wiretapping, the camp is one of the multitude of examples of how the executive has claimed exceptional liberty from the law on the grounds of its commission to fight the war on terror as it—and it alone—determines.

Liberals, appalled by Guantánamo and all it represents, have cheered too early and too often when the Supreme Court has appeared to bring the camp within the sway of national and international law, only to see the administration wriggle out from under each new decision. In Hamdi v. Rumsfeld, Justice Sandra Day O’Connor memorably wrote that “a state of war is not a blank check for the President,” but the stinging ruling had little more effect on the running of the place than, say, a New York Times column by Paul Krugman might have done. Yasser Hamdi himself was eventually released but the intolerable conditions of his incarceration at Guantánamo remain for others to endure. Writing in the spring of 2006, before the Supreme Court ruled on Hamdan v. Rumsfeld on June 29, blocking military tribunals and affirming that detainees were protected by Common Article 3 of the Geneva Conventions, Joseph Margulies came to the depressing conclusion that despite a succession of critical Supreme Court decisions, “Camp Delta continues in 2006 much as it began in 2002.”

On the face of it, the decision on Salim Hamdan in Hamdan v. Rumsfeld was more far-reaching and consequential than those on Rasul and Hamdi. Once again, editorialists and human rights advocates applauded the ruling. The Times reported:

The decision was such a sweeping and categorical defeat for the Bush administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantánamo detainees almost speechless with surprise and delight, using words like “fantastic,” “amazing,” “remarkable.” Michael Ratner, president of the Center for Constitutional Rights, a public interest law firm in New York that represents hundreds of detainees, said, “It doesn’t get any better.”

Once again, the administration vowed to accept the decision and “looked forward” to working with Congress to resolve the issue. Once again, after a couple of days of liberal euphoria, a rash of hitherto invisible fine print broke out in both the decision itself and the administration’s response to it. Once again, it looked as if the Supreme Court had delivered to the commander in chief not a mighty blow, as was first thought, but a slight passing inconvenience.

Yet familiar as this sequence of events was, one aspect seemed new. In the past, the administration had mainly to deal with the scruples of squeamish judges, like the now retired Justice O’Connor and the eighty-six-year-old Justice John Paul Stevens. But by the summer of 2006, the legislative branch, seeing its own powers neutered, or at least diminished, by the “unitary executive theory” and Bush’s eight hundred–plus “signing statements,” was starting to cavil at the administration’s seizure of the right to operate above and beyond the law. As the prime symbol of that right, Guantánamo appeared more vulnerable than it ever had done before. In 2002 it was a monument to extraordinary circumstances and extraordinary presidential power. Until just a few weeks ago, it was looking more and more—even to an apparently growing number of Republicans in Congress—like a grim cautionary monument to the arrogance of the presidency that went too far.

Then, on August 9, came news of the alleged terrorist plot in Britain, which was said to involve the downing of up to a dozen US-bound airliners with liquid explosives. With impressive speed, the Bush administration moved to exploit the climate of suddenly renewed fear of an atrocity comparable to the attacks of September 2001. High on the administration’s agenda was the issue of the Guantánamo military tribunals. As the Times reported on August 12:

Insisting on anonymity, a senior administration official in Washington said news of the plot against airliners would add momentum to efforts to create military tribunals for Guantánamo detainees that would strictly limit defendants’ rights.

September 6 brought two new developments: Bush announced that fourteen top terror suspects—including Khalid Sheikh Mohammed—who were previously held at secret foreign prisons by the CIA, have been transferred to Guantánamo Bay, and will be tried (Congress permitting) by military tribunals; and the Pentagon issued a new army manual prohibiting ten specific forms of torture and “degrading treatment,” which was seen in some quarters as implicitly granting detainees full rights under Article 3 of the Geneva Conventions. Once again, hopeful liberals were inclined to see concessions by the administration to the rule of law. Ingenious electoral maneuvers? A “significant retreat” (as the London Times billed it)? Another temporizing rhetorical sleight of hand? We’ll see.

—September 7, 2006

  1. 5

    Aida Edemariam, “If They’d Wanted One of My Eyes, I’d Have Said Okay,” The Guardian, May 2, 2006.

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