GUANTÁNAMO AND THE ABUSE OF PRESIDENTIAL POWER

Reviewed 8/24/2008

GUANTÁNAMO AND THE ABUSE OF PRESIDENTIAL POWER Joseph Margulies New York: Simon & Schuster, June 2006				Rating: 5.0 High
ISBN-13 978-0-7432-8685-5
ISBN-10 0-7432-8685-5	336pp.	HC	$25.00

When President George W. Bush declared war on "terror" — meaning war on the Islamic terrorists who had brought down the twin towers of New York City's World Trade Center and attacked the Pentagon in Arlington, Virginia — he set a juggernaut in motion. That juggernaut has careened wildly, generating some unintended consequences. Perhaps the most long-lasting consequence will be the loss of moral authority that America suffered as a result of the administration's pervasive disregard for the Constitution and the rule of law.

Nowhere is that disregard more apparent than in the prison camp it caused to be set up at Guantánamo Bay in Cuba. Based on spurious legal reasoning1 by the Justice Department's Office of Legal Counsel, Guantánamo (or "Gitmo", as it came to be called) was set up as a "jurisdiction-free zone" — a place outside the U.S. where, because its lease with Cuba granted "ultimate sovereignty" to that nation, "enemy combatants" captured by American military forces were considered exempt from the protections of the Geneva Conventions.

This exemption was one facet of the Bush administration's overarching vision of unfettered Executive power. Simply put, they felt that Bush, as Commander in Chief, had the authority to fight terrorism "by any means necessary."2 They held to that vision with amazing tenacity, repeatedly devising strategems to circumvent Congressional oversight and judicial rebuke. Those strategems — from the memos out of the Office of Legal Counsel to rewriting the Army Field Manual after John McCain's amendment making its torture prohibitions binding on the CIA passed — make fascinating though depressing reading.

OD on Terror

The Bush administration has often claimed that the prisoners detained in the prison at Guantánamo Bay are the worst of the worst: vicious criminals all, bent on the destruction of the Great Satan, America.

That has been found not to be the case.

For a variety of reasons, the collection of prisoners was indiscriminate, with the result that "Gitmo" contained many who neither practiced nor supported terrorism. Some such mistakes are inevitable in war. But the administration refused to admit any mistakes. Even when forced to case-by-case review, it set up tribunals that can only be called shams. These found that all but 38 of the prisoners were "enemy combatants" as it had always claimed. Even those 38 were deemed to be "NLECs" — No Longer Enemy Combatants, as if it could not bear to call them innocent. A few examples:

A Yemeni prisoner said he saw Osama bin Laden five times — on television. His file claimed he "admitted to knowing Osama bin Laden." (p. 165)
Ten men were charged (partially) on the basis that they wore Casio wristwatches like those used in some terrorist bombs. (p. 165)
A German Muslim, Murat Kurnaz, had been picked up by local police while traveling in Pakistan in October 2001. He was turned over to the U.S. and wound up in Gitmo. Almost universally, reports held that there was no reason to suspect him. The only evidence to the contrary was an unsigned letter claiming that a friend of his, Selcuk Bilgin, had been a suicide bomber in Turkey. Despite the fact that Bilgin was alive and well and living in Germany, where he was not under suspicion, the tribunal handling Kurnaz ignored all exculpatory evidence and labeled him "enemy combatant." (p. 166)
One Syrian prisoner, 19-year-old Mohammed al-Tumani, was accused of attending a terrorist training camp in Afghanistan. It developed that this accusation came from a single source: another prisoner who placed al-Tumani at the camp several months before he entered Afghanistan. The unnamed prisoner had made similar fraudulent charges against some 60 others. It made no difference: his tribunal found al-Tumani an "enemy combatant." (p. 168)

Margulies provides this summary of the saga of McCain's amendments:

In short, any assessment of whether the McCain amendments will actually restrain interrogators must take into account this sequence of events: in the summer of 2005 the Bush Administration pressured McCain not to introduce his amendments. When McCain persevered, the Administration tried parliamentary maneuvers to prevent his amendments from coming to a vote. When that proved unsuccessful, President Bush vowed to veto any legislation that contained the amendments. When the legislation passed by a veto-proof margin, the Administration tried to exempt the CIA from its coverage. Finally, when that attempt failed, the president signed the legislation but reserved the right as commander in chief to ignore it.

– Page 248

Joseph Margulies documents his case with lawyerly attention to detail and a statesmanlike grasp of the broader implications. His book takes us inside the cells of Camp Delta (as much as anyone outside the administration can), discussing the treatment of "headliners" like Khalid Sheikh Mohammed as well as those previously unknown. It also provides historical information on the origins and development of laws and treaties governing treatment of prisoners.3 It is a gripping read, the more so because of Margulies's understated account of his own personal involvement in fighting the administration on behalf of his client, an Australian citizen named Mamdouh Habib, and the dedication to human rights his struggle reveals.

Margulies and his colleagues ultimately won back Habib's freedom. But many detainees remain at Guantánamo, and the question of the other, more secret prisons has not been examined. So the larger victory remains in abeyance. It seem unlikely that the current administration will reform itself, so it falls to the next to fix the problem.

This is an excellent book. The writing is accurate without being tedious, the research is solid, the errors are few, the notes are extensive, the index is thorough. I recommend it highly.

1 It's a curious paradox, probably bespeaking some sort of desparation, that administration personnel strained legal arguments beyond the breaking point to justify this immunity, while at the same time claiming they needed no additional justification.

2 I find it ironic that the phrase that best fits Bush's pursuit of the war on terror is one emblematic of the late Malcolm X, a Sunni Muslim.

3 Especially worthy of note are the 1785 treaty between Prussia and the Thirteen Colonies (predating their unification under the American Constitution) and the Lieber Code of the American Civil War, both of which prohibit the mistreatment of prisoners.

Errata for Guantánamo and the Abuse of Presidential Power