The Road to Guantánamo
a film directed by Michael Winterbottom and Mat Whitecross
Enemy Combatant: My Imprisonment at Guantánamo, Bagram, and Kandahar
by Moazzam Begg with Victoria Brittain
New Press, 397 pp., $26.95
Guantánamo and the Abuse of Presidential Power
by Joseph Margulies
Simon and Schuster, 322 pp., $25.00
Most moviegoers whom I’ve watched leaving the cinema after seeing The Road to Guantánamo have been wordless and whey-faced, numbed, as I was, by the film’s distressingly vivid recreation of brutal interrogations in the American detention camp on Cuba’s south coast (sequences that were filmed on location in—of all places—Iran). It takes a while to realize that one has witnessed something more than a shocking indictment of the peculiar institution of Guantánamo Bay. Michael Winterbottom and Mat Whitecross’s drama-documentary, a deliberately confusing medley of fact (interviews, news footage) and fictional devices (lavishly filmed reenactments), also has the great merit of exposing the special fog of “asymmetric” as opposed to conventional warfare. Grueling as it is to watch, and it’s the most protracted ninety-minute movie I’ve ever seen, it is packed with sly insights into Bush’s “long war,” hitherto known as the global war on terror.
Winterbottom’s last movie was Tristram Shandy: A Cock and Bull Story, and his Shandean relish for confusion, dead ends, contradictions, and non sequiturs is everywhere in evidence in this convoluted tale of how three young Englishmen from Tipton—part of the post-industrial urban sprawl of the West Midlands between Birmingham and Wolverhampton where many immigrant Pakistani families originally settled in the 1960s—went to Pakistan for a wedding (it was meant to be “a great holiday,” one of them says) and ended up in Guantánamo, via Kunduz, Afghanistan, in the chaotic aftermath of the battle there in November 2001. The Tipton Three, Asif Iqbal, Ruhel Ahmed, and Shafiq Rasul, should have been four, but one of their original number, Monir Ali, was lost in Kunduz and is now presumed dead.
“Our idea,” Winterbottom has said, “was to let [the three] tell their story themselves.” So the directors have appointed themselves as poker-faced secretaries to the Tipton Three, whose reliability as narrators remains in question throughout the film. Winterbottom and Whitecross have tried to be as faithful as possible to the Tipton Three’s version of things, while leaving ample room for the audience to doubt the logic and plausibility of what transpires on screen. The men appear as themselves in on-camera interviews, but are played by actors who bear little or no resemblance to their real-life counterparts—and thereby continually remind us of their own fictionality. The style of trompe l’oeil, on-the-fly realism in which the three’s catastrophic intercontinental adventure is filmed—like the Battle of Namur scenes in Winterbottom’s Tristram Shandy—owes a good deal to such graduates of 1960s and 1970s BBC television drama as Ken Loach and Tony Garnett, expert forgers of the blurred action and grainy texture of newsreel.
After returning from a trip to Pakistan, Asif Iqbal’s mother tells him she has found a bride for him there and that he “should go out to Pakistan and get married.” “So I got a ticket and I went,” Iqbal says flatly in his adenoidal Black Country accent. Bargain travel has much to answer for in The Road to Guantánamo, which at one level might be seen as a long monitory riff on Pascal’s remark to the effect that all human evil comes from a single cause, man’s inability to stay quietly at home in his room—a remark that applies as much to the uniformed Americans as it does to the British civilians. Having arrived at his family’s village in Pakistan, Iqbal decides to marry the girl selected by his parents and invites his friend Ruhel Ahmed to witness the wedding. Ahmed departs for Pakistan with Shafiq Rasul and Monir Ali, who are both eager to visit the country. Arrived in Karachi, the trio add long tunics and prayer caps to their Tipton wardrobe of nylon tracksuits and hoodies. Speaking Punjabi and Urdu, they merge seamlessly into the Karachi crowd, and doss down for free at the Binori mosque. The filmmakers don’t tell us that the mosque just happens to be where Mullah Omar learned his militant brand of Islamist theology, or that it was described in 2002 by Wilson John, a senior fellow at the Observer Research Foundation in New Delhi, whose specialty is terrorism in Pakistan, as “the alma mater of all jihadis.” That the Tipton visitors found lodgings there was, perhaps, pure travelers’ coincidence—or not, as the case may be.
Although Iqbal says the three visitors were supposed to go to his village, he instead meets them in Karachi. Idly sightseeing, the lads pass by another mosque where a preacher is speaking of the “chaos and terror” unleashed by the American invasion of Afghanistan and calling on his congregation to offer their “help.” Because the bus fare to Kabul, nearly one thousand miles from Karachi by road, is just 250 rupees ($4.15 at today’s rate of exchange), the four tourists, ignorant of everything about Afghanistan except the legendary size of its flatbreads, decide to make the trip. “We jumped in a bus and off we went.”
Torrential diarrhea, the scourge of tourism, attacks Shafiq Rasul en route to the Afghan border, and he is somehow forgotten by his friends and left behind by the bus, emptying his bowels in the toilet of yet another mosque, but he is later reunited with his mates after walking across the border. As ever, the storyline is odd, bald, unexplained, but the scenes themselves are rendered so persuasively that one easily forgets the hiatuses between them.
When the group arrives in Kandahar amid bombing, the flatbreads satisfactorily live up to their reputation (“Look at them naans—fucking big!”), though the promised “chaos” of Afghanistan turns out to be strangely elusive. The four adventurers spend one day in Kandahar before leaving for Kabul. British newsreel footage shows the city under relentless aerial bombardment, but the Tipton boys see it differently: swirling red dust, nimble pedestrians dodging traffic, a group of old men placidly smoking and drinking coffee at a sidewalk café. Speaking no Pashto, they become aimless, awkward spectators of the world in which they are adrift. For two and a half weeks, they “chill out,” nurse Asif Iqbal, who has fallen desperately sick, grow ever more bored, and decide to go back to Pakistan.
Along the way, they have somehow acquired a minder, or mentor, in Kabul named Sher Khan, who ushers them into a crowded minivan, assuring them that it’s Pakistan-bound. But it’s the wrong bus. The hapless, geographically challenged travelers are transported north to Kunduz instead of south toward Karachi—straight into the war zone where Northern Alliance troops under General Rashid Dostum, assisted by American bombers, are wresting the city from the Taliban and taking many thousands of prisoners.
When Northern Alliance troops enter Kunduz, prompting an evacuation, Monir Ali is lost in the dash to the city’s outskirts, apparently left behind in Kunduz as the rest of the Tiptonites scramble aboard a moving truck, laden with armed men on the run. Outside the city they encounter true chaos, brought to life by the directors with manic and persuasive exuberance. Illuminated by exploding bombs on the horizon, panicked humans surge back and forth, on foot and in trucks, their movements simultaneously as suggestive and as unintelligible as Tristram Shandy’s marbled page. Shouts from the swarm are translated into contradictory subtitles: “We are surrendering!” “We have safe passage!”
By the light of day, a kind of order emerges. The arid terrain of rock and shale is littered with the bodies of men killed when the trucks in which they were traveling overnight were bombed. After helping to bury the dead and leaping aboard a passing truck, they are captured by the Northern Alliance and forced to march through the landscape with a trudging column of what look like exhausted refugees. On every salient outcrop stands a man wearing a makeshift camouflage top and holding a machine gun. One has to work quite hard to make sense of what one’s seeing here and to figure out that the gunmen are with the Northern Alliance and the refugees are their captives. Most of the prisoners wear baggy Afghan tribal dress, but here and there one spots an Arab kaffiyeh, a Pakistani tunic, and, materializing from the edge of the screen, Ruhel Ahmed’s trademark claret-colored Gap hoodie.
As William S. Lind and others wrote in their important 1989 article “The Changing Face of War: Into the Fourth Generation,” in asymmetric warfare “the distinction between ‘civilian’ and ‘military’ may disappear.”1 In the picture on the screen, that distinction has entirely disappeared: the Northern Alliance brigands are clad in a sort of homemade gesture at military uniform but the hundreds of shabby men passing before the camera have perfectly illegible identities. Searching the faces and the clothes, all you can say with certainty is that everyone appears to be a Muslim. Some are, you presume, Taliban fighters, some may be al-Qaeda. But there’s ample room in this bedraggled crowd for unlucky shepherds, cooks, bus drivers, butchers, and bakers; room, too, for a trio of clueless English tourists. You are now looking at the world almost exactly as it must appear to the American interrogators to whom the enormous, indiscriminate mixed bag of humanity will shortly be delivered.
It has to be remembered that leaflets promising bounty of up to $5,000 for a Taliban fighter and $10,000 for a member of al-Qaeda were then being air-dropped all over Afghanistan, falling, as Donald Rumsfeld boasted at the time, “like snowflakes in December in Chicago.” One such leaflet read, in part:
You can receive millions of dollars for helping the Anti-Taliban Force catch Al-Qaida and Taliban murderers. This is enough money to take care of your family, your village, your tribe for the rest of your life. Pay for livestock and doctors and school books and housing for all your people.2
Inevitably, Afghans turned in their next-door neighbors, old rivals, teachers who’d given them a failing grade. Non-Pashto-speaking foreigners like the Tipton Three were of course prime bounty material.
Between Kunduz and the jail at Sheberghan, 180 miles to the west, the Northern Alliance packed their prisoners so tightly into shipping containers that many died of suffocation. Still more were killed when their containers were raked by machine-gun fire in the disputed Dasht-i-Leili massacre (depending on the source, the dead numbered from 250 to 3,000), named for the site of the mass grave near Sheberghan where the victims were buried. The Tiptonites survive this horror only to face violent interrogation by US intelligence agents at the prison. They are now among the “worst of the worst,” in Bush’s words; alleged al-Qaeda terrorists bent on the destruction of Western civilization. They are also, as native English speakers, natural targets of opportunity for American interrogators demanding to know the whereabouts of Osama bin Laden.
In the hellhole of Sheberghan, the prisoners are shaved, stripped naked, forced into orange jumpsuits, gloves, earmuffs, black goggles, and hoods—the outlandish uniform in which they will be flown to Guantánamo. Whatever they may have been before, tourists, shepherds, or fighters, they now look like an army of enemy aliens. The transformation wrought on them by their American captors is a work of cunning genius: arriving at Sheberghan, they were forlorn, exhausted, starving men; departing on the flight to Cuba, they are made to seem evil orange monsters, identical, inhuman, and, as their shackles bear witness, very, very dangerous.
Up to the moment when Ruhel Ahmed is forced into a Guantánamo uniform, his Gap hoodie leads such an insistent life of its own that one comes to read it as a sly emblem of the Tipton Three’s story. Travelers’ tales, riddled with faulty recollections, inventions, and self-serving omissions, are notoriously untrustworthy, and this one is true to the genre. The artfulness of The Road to Guantánamolies in its implicit acknowledgment that neither the directors, nor the audience, nor the American inquisitors are in a position to get to the bottom of what “really” happened. The trio’s account may be true in all essential details, with a lot of bits left out, or it may be—to borrow the subtitle of Winterbottom’s last movie—a cock and bull story. We’ll never know.
Yet the Tipton Three’s version of events has one enormous strength: in the end, it holds together better than the rival narrative that is told by their captors at Guantánamo. For the Americans possess a photograph and video of a rally in Afghanistan, held in 2000, where Mohamed Atta met with Osama bin Laden, and they claim to have identified Asif Iqbal, Ruhel Ahmed, and Shafiq Rasul among the indistinct faces in the crowd. So a kind of battle of the narratives ensues as we watch the three being repeatedly kicked, beaten, and tormented by ear-splitting music and strobe lights in the interrogators’ attempt to make them admit the truth of the American story. In a sequence of nearly unendurable scenes, the Tipton Three try to hold their ground (though a confession of a meeting with Atta and bin Laden was extracted from Rasul), until at last their captors reluctantly concede that there’s a mighty hole in their own tale, too. For throughout 2000, Rasul was employed at a branch of Curry’s, the British chain electrical store, while Ahmed and Iqbal were both on parole for various offenses including fraud, receiving stolen goods, and violent disorder. Unlike almost everything else in the entire film, those facts were verifiable. “The police were our alibi,” Ahmed says in an interview, with understandable ironic relish.
Held for a further three months at Guantánamo, the trio were eventually sent back to Britain in the early spring of 2004, where they were released without charge. They had been in American detention for more than two years.
In Britain (he is not permitted to leave the UK), Moazzam Begg has become the widely admired voice of those unjustly detained at Guantánamo, as much for his remarkably personable and articulate interviews on television and radio3 as for his book Enemy Combatant, which is an odd collaborative effort written with Victoria Brittain, a London journalist who is also the co-compiler, with Gillian Slovo, of the documentary play Guantánamo: Honor Bound to Defend Freedom. In the prologue to Enemy Combatant, Begg writes that “one of the more ambitious aims of this book is to find some common ground between people on opposing sides of this new war, to introduce the voice of reason, which is so frequently drowned by the roar of hatred and intolerance.” That laudable ambition so overshadows the book that it doesn’t quite work either as a credible personal memoir or as the generous and forgiving essay in bridge-building which it struggles hard to be.
Much of the problem is, for want of a better word, literary. For the first hundred or so pages, the “I” of the book is not so much an emerging character as a passive, and distinctly journalistic, witness to his own experience. Begg, or Begg and Brittain, tell of his singular childhood in the Sparkhill area of suburban Birmingham (ten miles east of Tipton), where his father, an Indian-Pakistani banker and estate agent, sent him to a Jewish elementary school at which he discovered an early fascination with religious studies; of his first bruising encounters with “Paki-bashing” skinheads associated with the neo-Nazi National Front; of his own gang, the Lynx, mostly Pakistani boys who tackled the racist skinheads at their own game; of his growing sympathy for underdogs everywhere, expressed by an admiration for Fidel Castro, Nelson Mandela, and Ho Chi Minh; of the music he liked (UB40, Gloria Estefan, Simply Red) and his favorite movie (Braveheart); of his touristic visits to Pakistan and Afghanistan, his participation in convoys carrying humanitarian aid to Muslims in Bosnia, and his aborted journey to Chechnya; of his increasing attendance at the local mosque and how he came to open an Islamic bookstore. A great quantity of information is delivered, but the first-person singular obstinately remains a cipher. One has the sense of reading not a memoir but a résumé. Like most résumés, it feels airbrushed. It is a strategic (one might almost say a “campaign”) biography of—as Begg calls himself elsewhere—”a crazy idealist,” but it is a very insufficient self-portrait of Moazzam Begg, who, as the book’s leading character, has no personal quiddity at all.
Like many inept first-person narrators (and aspiring politicians), he attributes to himself a degree of earnest naiveté that doesn’t square well with his story. A few bland generalities about injustice, conscience, and self-defense are all we are allowed to hear about the detailed politics and theology of radical Islamism, which is a pity, since Begg’s bookshop (which isn’t named in the text) has, since September 2001, been a convenient, and rather famous, source for journalists looking for the literature of jihad against the West. It was visited by the London Sunday Telegraph in 2001, and by Newsweek in 2004. Mark Hosenball’s breathless account in Newsweek was headlined “Barnes & Noble It’s Not”:
Anyone who believes the war on terror has shut down terrorist propaganda centers in US-friendly countries should visit the Maktabah al Ansar bookshop in Birmingham, England. Amid shelves of Qur’anic tomes and religious artifacts are bookshelves and CD racks piled with extreme Islamist propaganda: recordings of the last testaments of 9/11 hijackers, messages from Osama bin Laden and jihad pamphlets by Sheik Abdullah Azzam, the late Palestinian activist who was a bin Laden mentor and early apostle of suicide bombing.
A best seller at the bookshop last summer was a jihad recruitment manual published by the shop itself and written by Esa al-Hindi, described in a biography as a British Hindu who converted to Islam and served in Afghanistan as an instructor in a training camp for Islamic holy warriors. Sales of the book soared after British and US authorities announced that the author was one of a group of suspects arrested last summer for plotting attacks in Britain.4
It should be said immediately that selling old bin Laden recruitment videos (many of which were made when the Mujahideen were fighting the Soviet occupying forces in Afghanistan) or the new edition of Milestones(1964), by the extremly influential radical Muslim thinker Sayyid Qutb, which is currently being promoted on Maktabah al-Ansar’s home page, is evidence of absolutely nothing except Begg’s probably sophisticated grasp of jihadist ideas, about which he plays diplomatically dumb in his book, even as he shows himself to be intellectually adept when it comes to discussing almost anything else.
Maktabah al-Ansar was raided by MI5 in 1999 and again in 2000, but the bookstore was doing well enough for Begg to leave the business to manage itself in the summer of 2001, and transfer his growing family to Kabul under Taliban rule. His wife, Zaynab, had been racially harassed on the street in Birmingham, and Begg was anxious to move to a country where his children would receive “a good grounding in their roots, their culture, and their religion.” He was also swayed by the attractive cost of living in Afghanistan: “Many people told us that we could live in the best areas of Kabul for less than £100 a month.” He planned to help run a school, for girls as well as boys, install hand-pump wells in the parched countryside, and work as a literary translator. “I’d bought some old classical Islamic texts, which I intended to translate into English from the Arabic. I thought they could make some interesting little booklets for our bookshop back in Birmingham.”
He was thus innocently employed when news broke in Kabul of the September 11 attacks on New York and Washington. “There were no televisions for me to see the horrifying images of the victims of the attacks, and I simply failed to grasp the enormity of the event.” In mid-October, when the first US missiles hit the city, Begg and two friends moved their families out of Kabul to Logar, some sixty miles south, “where we were all going to stay until the situation calmed down. For the children this was a fun camping trip, and they loved the freedom of the countryside, although it was just desert.”
From then on, Begg’s travels, like those of the Tipton Three, get confusing, and plotting them on an atlas only adds to the reader’s puzzlement. He drives back and forth several times a week between Logar (a large province, described by him as a “desert town”) and Kabul, visits Pakistani friends somewhere north of Kabul, gets “totally lost,” reaches Surobi, encounters bandits and a fleeing unit of Taliban fighters, finds the road to Logar and his family closed, then becomes one of several men who are led by a guide on a two-day trek over the mountains into remote tribal areas of western Pakistan, where he is in despair at ever finding his lost wife and children. Separated for three weeks, the Beggs are joyfully united in Islamabad, where, at midnight on January 31, 2002, he is arrested by Pakistani security forces accompanied by two cursorily disguised Americans.
Up to this point the narrative is a contender for the Gap hoodie award, on multiple grounds. The gaps in his story—and they’re more frustrating than downright suspicious—cease at the moment when Begg enters captivity. Held by the Americans for a total of six days short of three years, first at Kandahar, then Bagram, then Guantánamo Bay, he describes his incarceration with restraint, precision, and sometimes withering humor. As a prisoner, he at last gains a credible identity as a character, and he is able to supply the first authentic firsthand portrait of a detainee’s life at Guantánamo and of the unique cosmopolitan society that flourishes there despite shackles, nonstop, often violent interrogations, and a prevailing mood of numb despair. Begg’s account of Camp Delta, its daily routine, its jokes, fights (as when two Afghan men come to blows over their differing views of the Taliban), and late-night discussions of politics and theology, makes his book essential reading. But its problems do not end there.
Enemy Combatant has been praised in Britain for Begg’s outstanding liberality of mind and evenhandedness toward his captors, some of whom are described as unfeeling brutes, others as decent human beings who become his “friends.” Unfortunately, these relationships are rendered in long passages of direct speech, and Begg and/or his coauthor are notably talentless at writing dialogue. So one has to plow through exchanges like this one, with a Republican-voting soldier from Alabama named Jennifer:
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.
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
Marine Corps Gazette, October 1989, pp. 22–26.↩
Listen, for instance, to a Radio Oxford interview with Begg at www.bbc.co.uk/ oxford/content/articles/2006/04/04/moazzam_begg.shtml.↩
Newsweek, December 27, 2004/January 3, 2005.↩
Aida Edemariam, "If They'd Wanted One of My Eyes, I'd Have Said Okay," The Guardian, May 2, 2006.↩
Marine Corps Gazette, October 1989, pp. 22–26.↩
Listen, for instance, to a Radio Oxford interview with Begg at www.bbc.co.uk/ oxford/content/articles/2006/04/04/moazzam_begg.shtml.↩
Newsweek, December 27, 2004/January 3, 2005.↩
Aida Edemariam, "If They'd Wanted One of My Eyes, I'd Have Said Okay," The Guardian, May 2, 2006.↩