News

Shortly after the attacks of 9/11, President George W. Bush announced a policy on military prisoners that was unlike any the United States had ever known. Since then, under the Bush Administration thousands of prisoners have been incarcerated in remote facilities around the globe, untold numbers of whom have been subjected to a relentless regime of abusive and degrading treatment. Almost 800 prisoners have been held at the U.S. base at Guantánamo Bay in Cuba, including--according to the military--children as young as 10 years old. Today, nearly 500 remain at the base although U.S. military and intelligence officials have determined that most should be released because they have no connection to terrorism and are not a threat to this country.

In his book, GUANTÁNAMO AND THE ABUSE OF PRESIDENTIAL POWER (Simon and Schuster; July 3, 2006; $25.00), MacArthur Justice Center attorney Joseph Margulies examines the history and implications of the Administration's policies on detention and torture, and describes how he fought for and won one innocent prisoner's freedom

In 2004, Margulies and his colleagues argued before the U.S. Supreme Court in Rasul v. Bush that the prisoners at Guantánamo could not be held beyond the law. The Court agreed, reminding the Administration that, in a constitutional democracy, even the Commander in Chief must follow the law. Yet some accuse the Bush Administration of continuing to evade this decision.

In his carefully researched book, Margulies traces the arguments for and against the controversial Bush policies on detention and torture from both conservatives and liberals. He reaches into history to show the development of our nation's traditional policies on these matters, with particular emphasis on episodes from World War II, Korea, and Vietnam. The United States has long been at the forefront of international efforts to mitigate the cruelty of armed conflict by safeguarding the welfare of armed combatants, in part to ensure that our own soldiers would not be mistreated if they fell into enemy hands. But now that policy has been turned on its head, with catastrophic effects on America's moral standing, especially in the Muslim world.

Margulies explains why a growing and ever more vocal bipartisan group of leaders, including many prominent figures from the military and intelligence communities, have spoken out against the Administration's policies and called for the prison at Guantánamo to be shut down. "The question," he writes, "is not whether the United States has the power to imprison people seized in connection with the war on terror; without doubt the United States has such power. The question is, and always has been, whether the exercise of this power would be restrained by the rule of law."

He also recounts his representation of Mamdouh Habib, who was in many ways a typical prisoner at "Camp Delta," the main Guantánamo prison. Habib, an Australian citizen, was visiting Pakistan on September 11, 2001, and was swept up in the wave of arrests that took place there following the terrorist attacks on the United States. He spent three years in detention, which included six months in a prison outside Cairo where he was delivered by the Americans and tortured by the Egyptians, and more than two years at Guantánamo. He was never charged with any wrongdoing and the government has never defended his detention in open court. With Margulies' help in addition to a front-page story in the Washington Post by Pulitzer Prize-winning reporter Dana Priest, Habib was finally released and reunited with his family in January 2005. Margulies, who accompanied Habib on his flight home to Sydney, was the first, and so far the only, lawyer allowed to escort a prisoner home from Guantánamo.

Habib's story, according to Margulies, is typical of America's hundreds of secret prisoners in the brutal way he was treated. Nearly 30 deaths of prisoners in U.S. custody in Iraq and Afghanistan are being investigated as homicides. Though the Pentagon has claimed that a small number of bad apples are responsible for the worst abuses, Margulies describes, that torture was not a byproduct, but a predictable result of the Bush Administration's policies, and was in fact foreseen by many government officials, who repeatedly warned the Administration against the path it was taking.

Today, little at Guantánamo has changed. Though it is tempting to think of Guantánamo as a problem that affects only the prisoners at the base, Margulies writes, "the detentions at Guantánamo are important not simply – and perhaps not even principally – because of theunpardonable treatment the men and boys at the prison have been forced to endure."

In his book, he argues that Guantánamo is the embodiment of a claim by the President to unprecedented executive power. The President claims the right to designate anyone as the enemy at any time and to take him into custody wherever he may be, based on his sole discretion and without meaningful review by any court or tribunal. The Administration claims that prisoners, once captured, may be held without any rights at all. And because the war on terror has no geographic boundaries and no foreseeable end, the power invoked by President Bush as Commander in Chief extends over all nations and every human being into the indefinite future. The combination of endless conflict with unbounded executive power creates a claim to unlimitedauthority. Quoting Supreme Court Justice Robert Jackson, Margulieswarns that, "[s]uch power either has no beginning or it has no end."

Margulies explains how Guantánamo has become a powerful symbol around the world, representing "a litany of complaints that, in years past, would never have been linked to the United States: that people may be held for the rest of their lives based on evidence secured by torture; that people may be incarcerated under uniquely severe conditions based on secret evidence, without charges or an opportunity to be heard by an impartial tribunal; that prisoners may be subjected to the disabilities of war but given none of the protections…."

Margulies writes: "The detention policy that produced Camp Delta has created a human rights debacle that will eventually take its place alongside other wartime misadventures, including the internment of Japanese-Americans during World War II, the prosecutions under the Espionage and Sedition Acts during World War I, and the suspension of the writ of habeas corpus during the Civil War."

GUANTÁNAMO AND THE ABUSE OF PRESIDENTIAL POWER is a vital study on human rights, the state of the war on terror, and the future of personal freedom and civil liberties in America.

About the Author
Joseph Margulies was lead counsel in Rasul v. Bush, the case in which the Supreme Court decided that prisoners at Guantánamo are entitled to judicial review. He is an attorney with the MacArthur Justice Center and a clinical professor at Northwestern University Law School . He received his BA from Cornell University in 1982, and his JD from Northwestern University in 1988. He writes and lectures widely on civil liberties in the wake of September 11.

GUANTÁNAMO AND THE ABUSE OF PRESIDENTIAL POWER
By Joseph Margulies
Published by Simon & Schuster
Publication Date: July 3, 2006
Price: $25.00
ISBN-10: 0-7432-8685-5

• Categories: