Guantanamo and the Abuse of Presidential Power
Simon & Schuster/ 322 pages/ $25
The number of books treating the war on terror and the Iraq war grows exponentially. Increasingly these books focus on the strategic flaws that may now be leading to catastrophe. Lost in the shuffle is a smaller-scale tragedy that may eventually wound the United States as deeply as the injury inflicted by a looming military debacle in the Mideast and Central Asia.
As Joseph Margulies shows in his riveting Guantanamo and the Abuse of Presidential Power, dealing with "enemy combatants" has become an unprecedented and dangerous experiment in unrestrained presidential power that, if unchecked, will fundamentally weaken the individual protections offered by the Constitution. Margulies' account also details the wrenching human consequences of a reckless detention policy guided by hubris and vengeance rather than sober reflection on history or the meaning of American law.
The author, a veteran civil rights lawyer and professor of law at Northwestern University, is no minor player in the drama. Margulies was the lead attorney in Rasul v. George W. Bush, one of a group of Supreme Court decisions issued June 28, 2004, confirming the right of prisoners at Camp Delta, Guantanamo Bay, Cuba, to challenge the lawfulness of their detention.
The background of that lawsuit and its aftermath form the core of the book, but Margulies has accomplished much more here. By interweaving accounts of the hellish experience of clients such as Mamdouh Habib and Shafiq Rasul with the larger legal and policy issues at stake, Margulies skillfully demonstrates how the arcane language of jurisprudence affects the physical treatment and safety of human beings. And he provides a tangled and technical tale of legal intrigue that reads like a thriller.
The book's central argument is that since Sept. 11, the Bush administration has tried to expand the wartime powers of the presidency while rejecting corresponding restraints or checks and balances. Of course, the executive branch's appetite for wartime power is nothing new. But the amorphous nature of the struggle against terror - fought without geographical boundaries against a stateless enemy for an unspecified length of time and with no concrete definition of victory - means the president can potentially designate anyone, anywhere as an enemy of the United States and imprison him indefinitely. "[E]ndless conflict" added to "unbounded executive power" yields "a claim to unlimited presidential authority," Margulies writes.
Margulies explores three streams of recent American history as the basis for his argument. Examining treatment of POWs in World War II and after, he notes that America has consistently upheld the four Geneva Conventions of 1949. Margulies does a fine job explaining that the experience of American prisoners in lands that reject or violate the conventions has until now spurred the United States to seek their universalization, both as self-protection and as a powerful moral lever in international conflicts. Indeed, former American prisoners of war supplied an amicus curiae brief supporting Rasul v. Bush.
Another stream of American history explains the choice of Guantanamo for the detention center. Administration lawyers saw in Guantanamo a territory that, while completely under American control, was technically under Cuban sovereignty. If Cuba still had legal sovereignty over Guantanamo, despite leasing it to the United States, then Guantanamo was outside the "territory" of the United States.
This was important because in 1950, the Supreme Court had ruled in Johnson v. Eisentrager that prisoners held outside sovereign American territory were, for some purposes, outside the territorial jurisdiction of American courts. The Bush administration's legal team stretched that decision not simply to reject habeas corpus (perhaps the most treasured legal writ in Anglo-American law), but to place the detentions beyond the ability of American courts to challenge presidential power.
To understand the administration's goals in this realm of absolute presidential prerogative, Margulies follows a third stream, the debate about the interrogation of captives during wartime. In this new and amorphous struggle, the Defense Department and CIA wanted to create an arena in which methods of gathering information that include torture and so-called extraordinary rendition of prisoners to other countries for secret interrogation could play out without consequences. From FBI accounts and detainees' statements, Margulies describes graphically the ways American interrogators established a regime of "debility, dependence, and dread" drawn not from the Army Field Manual but from "the KUBARK manual, the infamous CIA Cold War handbook on interrogation theory and practice."
The administration created in Guantanamo "the ideal interrogation chamber." Detainees sent into this system were assumed from the beginning to be guilty (despite the messy and chaotic circumstances of their capture). Margulies traces the dangerous transition from a CIA manual intended for small-scale clandestine operations to official tool of the "vast and far-flung" American armed forces. The result is a detainee policy "merging the broad scope of military operations with the unchecked power of clandestine interrogations."
To justify those powers, administration lawyers crafted the infamous torture memo, which redefined coercive practices in such an extreme way that many traditional methods would not even qualify as torture. Criminal acts of torture would become difficult to prove. In any case, the interrogator acting under presidential orders would automatically be immune.
These three historical-legal streams flowed together to create the river of shame that is Guantanamo. Perhaps the administration did detain there some prominent terrorists and their sympathizers. More likely, the victims of this policy were unfortunate men caught up in massive sweeps in Afghanistan, often conducted by members of the anti-Taliban Northern Alliance working for a bounty. Many American commanders in Afghanistan understood that most detainees' intelligence potential was worthless and probably would have released them eventually. In the brave new world of the war on terror, though, Habib, Rasul and others entered a black hole where normal reason and law, by design, did not apply. Only the steady work of lawyers in and out of the military, with the help of America's allies (Australia and Great Britain, for example), produced the vindication of American law represented in the Supreme Court's decisions on June 28, 2004.
Lest we be tempted to cheer a happy ending, Margulies exposes the administration's reluctant compliance: "Camp Delta continues in 2006 much as it began in 2002." Guantanamo is part of an ongoing experiment to expand presidential power beyond constitutional safeguards, particularly the federal courts. New legislation seeks to strip American courts of jurisdiction and limit habeas corpus. The Military Commissions Act, against which Margulies testified before Congress, still contains language about treatment and presidential prerogative recalling the widely discredited torture memo. Even the bill's congressional champions expect a legal challenge, and many legal scholars are counting on the Supreme Court to declare it unconstitutional. But the streams pouring into Guantanamo may yet permanently pollute the waters of American justice. The price of preventing this will be eternal vigilance. One hopes that Joseph Margulies is already back on the job.
W. David Myers is an associate professor of history at Fordham University and is writing a book about crime, torture and infanticide in European history. He wrote this review for the Los Angeles Times.