Guantanamo and the Abuse of Presidential Power

Guantanamo and the Abuse of Presidential Power

by Joseph Margulies


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The detention system established by the Bush Administration at Guantánamo Bay Naval Station in Cuba is like no other in our nation's history. Joseph Margulies traces the development of this detention policy from its ill-conceived creation in 2002 as "the ideal interrogation chamber" to its present form, where most prisoners are held without charges in a super-maximum security prison, even though the U.S. government has acknowledged that many have been cleared for release and most of the others are not even alleged to have committed a hostile act against the United States or its allies.

Margulies, who was the lead attorney in the Supreme Court case Rasul v. Bush, writes that Guantánamo and other secret CIA and Defense Department detention centers around the world have become "prisons beyond the law," where the Administration claims the right to hold people indefinitely, incommunicado, and in solitary confinement without charges, access to counsel, and without benefit of the Geneva Conventions. Weaving together firsthand accounts of military personnel who witnessed the interrogations at Guantánamo along with the words of the prisoners themselves, Margulies exposes the chilling reality of a "war on terror" that masks an assault on basic human rights — rights to which the United States has always subscribed.

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Product Details

ISBN-13: 9780743286862
Publisher: Simon & Schuster
Publication date: 07/03/2007
Edition description: Reprint
Pages: 352
Sales rank: 852,731
Product dimensions: 6.12(w) x 9.25(h) x 1.00(d)

About the Author

Joseph Margulies is an attorney with the MacArthur Justice Center and a law professor at Northwestern University Law School in Chicago. He and his wife live in Chicago.

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In the Introduction, we saw for the first time — and apparently in spite of her best efforts — the methods of Sergeant Lacey, who, according to an FBI agent on the scene, grabbed a prisoner's genitals in the course of an interrogation. We also learned about "detainee #63," who "had been subjected to intense isolation for over three months," after which time he was seen "evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reporting hearing voices, crouching in a corner of the cell covered with a sheet for hours on end)." As we will see, Sergeant Lacey's conduct is by no means an aberration. A Pentagon investigation confirmed "numerous instances" in which female interrogators, using dye, pretended to flick or spread menstrual blood on prisoners. The technique was intended to interfere with the prisoners' prayer; a Pentagon official familiar with the investigation said, "If a woman touches him prior to prayer, then he's dirty and can't pray." Nor is this confined to Guantánamo. Since 9/11, the United States has opened approximately six hundred investigations into prisoner abuse. As of February 2006, ninety-eight prisoners had died in U.S. custody, and thirty-four of these deaths are being investigated by the military as suspected or confirmed homicides.

These events naturally lead us to ask why the Administration created Camp Delta and the other prisons in the war on terror. One answer is that the Administration needed a place to hold captured prisoners, just as in any war. But these are not like the prisons we built for captives in World War II, or Korea, or Vietnam. To understand these prisons, we must return — however painful it may be — to that Tuesday morning, September 11, 2001. I was living in Minneapolis at the time and was driving to my office when I heard the news on the radio that the first World Trade Center tower had been hit by a plane. No one seemed to understand what had taken place, and there was some thought it may have been an accident. Inside, my colleagues and I watched the scene unfold on television. My wife was in Mexico City on business at the time and I reached her in her hotel. The telephone was our only connection, but we clung to it like a lifeline as the second plane crashed into the south tower. Soon we learned about the plane at the Pentagon, and not long after about the plane downed in Pennsylvania. This was not an accident.

For a time, all was chaos. Speculation flew and confusion reigned. There was a rumor that a plane was unaccounted for, somewhere near Seattle. Before long, all planes were grounded, leaving my wife stranded in Mexico. Like so many others, and though thousands of miles apart, we watched together on television as the stricken towers fell. We spent anxious hours trying to reach our friends in New York, many of whom lived and worked in the shadow of what came to be known as Ground Zero. But our efforts were in vain; lines were down and circuits were jammed. For the next several days, I shook my head in silent disbelief and could not help but cry at the tragic stories of family members wandering the streets of New York, checking hospitals and morgues, looking for the loved ones they had so casually kissed goodbye that Tuesday morning. We cannot escape these memories, nor should we try. And we cannot fairly evaluate what took place in the days, months, and even years that followed unless we are willing to keep these memories in mind.

The Bush Administration has not provided a complete explanation for its detention policy. (Part of the motivation for this book is that no one else has either.) But that explanation emerges clearly enough if we examine things from the Administration's perspective, beginning with 9/11. On that day, al-Qaeda carried out the most destructive foreign attack on U.S. soil in this country's history. Thousands died, and the lives of thousands of others were shattered forever. The damage to the economy quickly raced into the billions of dollars. More importantly, the nation emerged from that morning different from the night before, and not simply for the rage and confusion that followed in the wake of the attack.

And while September 11 was successful beyond the maddest dreams of its planners, it should not have been a complete surprise. As the 9/11 Commission and others have rightly pointed out, the threat of Islamic terrorism had been present for years:

• 1993: A group led by Ramzi Yousef detonated a bomb at the base of the World Trade Center. The police also uncovered a plot by Sheik Omar Abdel Rahman to blow up a number of New York landmarks, including the Holland and Lincoln tunnels.

• 1995: Police in Manila uncovered a plot by Yousef to blow up a dozen U.S. airliners over the Pacific.

• 1996: A truck bomb in Dhahran, Saudi Arabia, exploded at the base of the Khobar Towers, killing nineteen U.S. servicemen and wounding hundreds of others.

• 1998: Osama bin Laden issued his now infamous fatwa claiming it was God's decree that Muslims kill Americans. Al-Qaeda operatives carried out nearly simultaneous truck bomb attacks on the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, killing 224 and wounding thousands.

• 1999: A U.S. Customs agent arrested Ahmed Ressam at the U.S.-Canadian border as he was smuggling explosives into the country. His target was Los Angeles International Airport.

• 2000: Al-Qaeda operatives in Aden, Yemen, used a motorboat filled with explosives to blow a hole in the side of the USS Cole, killing seventeen servicemen.

Though bin Laden was certainly a grave and growing threat, his success that morning in 2001 demonstrated just how little we knew about al-Qaeda, including the extent to which the terror network had penetrated American society and its plans for the future. Even if various intelligence agencies knew scattered pieces, in the years before 9/11 "there was no comprehensive review of what the intelligence community knew" about the organization. Whatever else 9/11 may signify, therefore, it surely represented a failure (and perhaps an indictment) of the intelligence community. Three days after the attacks, Congress authorized the president to use "all necessary force" against those responsible. On September 20, the president vowed to meet this threat by using "every resource at our command," including "every necessary weapon of war."

Once the Administration decided to mount a military response, it was inevitable that the military (and, we will see, the CIA) would capture a substantial number of people. The Administration no doubt hoped at least some fraction of these prisoners would be members of al-Qaeda. But at the same time, the Administration must have considered that the number of prisoners with useful intelligence was potentially quite small. Military planners estimate that during counterinsurgency operations, the enemy "capture rate" "may be very low," in part because the "failure of the enemy to wear a uniform or other recognizable insignia results in an identification problem. As a result, large numbers of civilian suspects may also be detained during operations." In Vietnam, for example, the military reported that only one of every six detainees taken into custody was actually a prisoner of war. But having these prisoners in custody provided the Administration with an opportunity to shed light on a dark and shadowy enemy — assuming it could identify the few prisoners with useful information, and extract it during interrogations.

The Bush Administration also might have expected this would be no easy task. Al-Qaeda, like a number of clandestine military organizations, is obsessed with secrecy. During the search of an alleged al-Qaeda member's home in Manchester, England, police found a training manual that showed just how carefully the organization guards its internal structure. The manual cautioned members to establish widely dispersed cells "whose members do not know one another, so that if a cell member is caught the other cells would not be affected, and work would proceed normally." The manual also advised members to employ a variety of deceptions and subterfuges to disguise their identity and objectives. All of this makes the task of extracting intelligence from al-Qaeda agents that much more difficult. Yet, as we will see, U.S. military regulations explicitly prohibit torture and all forms of coercive interrogations. These regulations were written to comply with the Geneva Conventions, which were drafted to ensure that people captured during armed conflict are treated humanely. If we followed the law, would we miss the chance to acquire valuable intelligence?

Finally, though 9/11 was undoubtedly a monstrous crime, the Bush Administration could have concluded that interrogations in the war on terror were fundamentally different from interrogations in a criminal case. A police interrogator typically wants to know whether a suspect committed a crime that took place sometime in the past. But a military interrogator typically wants to know the nature and character of the enemy, including its structure and future plans. Learning about a particular event that took place in the past may be only incidental to this purpose. The difference between police and military interrogations, therefore, is frequently (but not always) the difference between gathering evidence to be used in the prosecution of an event that has already taken place and gathering intelligence to be used for a military campaign that will take place in the future. And since 9/11 was principally an intelligence failure, the Administration could have believed the interrogations should look more like the latter than the former.


The Administration's vision of military intelligence-gathering is based on the "mosaic theory," which maintains that intelligence — particularly human intelligence (labeled HUMINT and referring to intelligence extracted from people) — about an unconventional enemy is not likely to come from a single, all-important interrogation with one captured prisoner. By design, each prisoner knows only a small piece relating to his own involvement, and in some cases may not even understand the significance of that piece, which emerges only when combined with other, seemingly innocent, pieces of information culled from interrogations with every other prisoner. And with each new prisoner, analysts need to retrace their steps, cross-checking the new information against the old. This may require that prisoners be interviewed over and over again, even if they had been questioned at length only days or weeks earlier. Only through this painstaking process will a mosaic finally emerge that captures the complete picture of the enemy and its plans, or so the Administration maintains.

The Bush Administration first articulated this theory within days of 9/11, when it began to detain hundreds of people, most of whom were Muslim men, for alleged violations of their immigration status. These immigration detentions are not the focus of this book, since they took place within a preexisting legal framework. But these detentions are nonetheless important to our inquiry, because the Administration altered that framework in important ways that shed light on the eventual detentions at Guantánamo and elsewhere.

Prior to 9/11, people arrested for immigration violations were typically released on bond while their cases worked their way through the courts. For the immigration detentions after 9/11, however, the Administration adopted a wholesale policy of preventive detention — the controversial practice of incarcerating people while the government determines whether they did anything wrong. In scores of proceedings, the Administration defended this practice by submitting the same affidavit from FBI Agent Michael Rolince, who explained that "the business of counterterrorism intelligence gathering in the United States is akin to the construction of a mosaic." According to Rolince:

At this stage of the investigation, the FBI is gathering and processing thousands of bits and pieces of information that may seem innocuous at first glance. We must analyze all that information, however, to see if it can be fit into a picture that will reveal how the unseen whole operates.... What may seem trivial to some may appear of great moment to those within the FBI or the intelligence community who have a broader context within which to consider a questioned item or isolated piece of information. At the present stage of this vast investigation, the FBI is gathering and culling information that may corroborate or diminish our current suspicions of the individuals who have been detained.... In the meantime, the FBI has been unable to rule out the possibility that respondent is somehow linked to, or possesses knowledge of, the terrorist attacks on the World Trade Center and the Pentagon. To protect the public the FBI must exhaust all avenues of investigation while ensuring that critical information does not evaporate pending further investigation.

At the same time, the Administration wanted to construct this "mosaic" in secret. It refused to disclose "the number of people arrested, their names, their lawyers, the reasons for their detention, and other information related to their whereabouts and circumstances." It also ordered that the press be excluded from all immigration proceedings involving these detainees, and that the cases not be listed on the public docket. But secret arrests and closed courts are virtually unheard of in this country. The government had never before tried to close an entire set of cases based on a blanket, undifferentiated claim that closure was a good idea, rather than on a case-by-case demonstration of need. A number of organizations filed requests under the Freedom of Information Act seeking, among other things, the names of the prisoners and their attorneys, the location of their arrest, and the location of their incarceration.

The Administration refused to budge, arguing that even the most modest disclosures would threaten national security. The organizations sued in federal court in Washington, D.C., and the Administration defended its claim to secrecy in a declaration by James Reynolds, chief of the Terrorism and Violent Crime Section in the Criminal Division of the Justice Department. In his declaration, Reynolds warned that "as long as these investigations remain open and active, disclosing the information in question could result in significant harm to the interests of the United States...."

[R]eleasing the names of the detainees who may be associated with terrorism and their place and date of arrest would reveal the direction and progress of the investigations by identifying where DOJ [Justice] is focusing its efforts. In effect, it would allow terrorist organizations to map the progress of the investigation and thereby develop the means to impede them. Even disclosing the identities of those detainees who have been released may reveal details about the focus and scope of the investigation and thereby allow terrorists to counteract it.... The rationale that underlies the withholding of the names of the detainees similarly supports the nondisclosure of their lawyers' identities.... Release of such a list may facilitate the identification of the detainees themselves and the harms described above could ensue.

Several things emerge from these events, and from the Rolince and Reynolds declarations in particular. First, the "mosaic theory" contemplates the prospect of prolonged detention. The process of "gathering and culling" "thousands of bits and pieces of information that may seem innocuous at first glance" could take months, if not years. This would be particularly true if the Administration were determined to "exhaust all avenues of investigation" before deciding that a particular prisoner was not "somehow linked to, or possess[ing] knowledge of," the 9/11 attacks. In theory, constructing this "mosaic" authorizes indefinite detentions, since it depends on both retrospective and prospective approaches to intelligence. One can never know in advance just how much time a particular investigation will require.

Second, Reynolds's declaration reveals a decided preference for conducting these investigations with as much secrecy as possible. In the immigration hearings that were the subject of his declaration, the prisoners had the right to hire a lawyer. But it is clear from his affidavit that, if the Administration could have excluded counsel, it would have. And finally, the immigration violations that provided the ostensible basis for the detentions were admittedly pretextual. That is, they simply provided a basis to hold the prisoners while the FBI completed its investigation. In that respect, the detentions were never meant to produce criminal charges. Any given interrogation may have produced evidence of a crime (in point of fact, no person arrested under this program was charged in connection with 9/11), but that was not their primary purpose. The detentions were preventive. As a result, the great majority of prisoners were held for months but never charged with any wrongdoing. They were simply held until the investigation was over.

In short, the immigration detentions in the immediate wake of September 11 were prolonged, secret, preventive detentions, the true purpose of which was to allow the FBI to investigate whether the prisoner posed any threat to security. All of these elements would eventually become part of the detentions in the war on terror. But the immigration detentions only begin to explain the Administration's detention policy. In particular, the immigration detentions were under the control of the Justice Department, whereas virtually all of the prisoners held in connection with the war on terror, at Guantánamo and elsewhere, are in the custody of the Defense Department and the CIA. How do the military and the CIA gather "human intelligence"? What conditions are necessary to make these interrogations a success? To understand this part of the detention policy, we must look elsewhere.


The overwhelming majority of people imprisoned by the Administration in the war on terror have been foreign nationals, and the majority of these have been imprisoned under the detention policy described in the last chapter: potentially indefinite, virtually incommunicado incarcera-tion, without charges, without recourse to courts or counsel, and without the benefit of the Geneva Conventions. But a number of U.S. citizens have also been swept up in this policy, and two that we know of were detained in this country: Yaser Hamdi and José Padilla. Hamdi was seized in Afghanistan and transported to Guantánamo Bay. When it was discovered he was an American citizen, he was transferred to a naval brig in Norfolk, Virginia. Later he was moved to a brig in Charleston, South Carolina, where he was held in solitary confinement. José Padilla was seized at O'Hare Airport in Chicago and transferred to New York. Initially, he was held in the custody of the Justice Department then later handed over to the Defense Department, which moved him to the same Charleston brig that held Hamdi.

Lawyers for Hamdi and Padilla challenged the detentions, arguing that U.S. citizens held thousands of miles from any battlefield had to be charged with a crime or released. I discuss these cases in detail later in the book. For now, however, we are concerned with events that took place shortly after their seizure, when the lawyers for Hamdi and Padilla did what any lawyer would do, and what lawyers had always been allowed to do in this country: they tried to meet with their clients. The Defense Department, however, refused to permit it. The attorneys protested in court, and the Administration defended its unprecedented position by submitting statements from senior military officials.

In Hamdi's case, the Administration relied on a declaration from Colonel Donald Woolfolk, at that time the acting commander of the detention facility at Guantánamo Bay. In Padilla's case, they relied on a similar declaration from Vice Admiral Lowell Jacoby, director of the Defense Intelligence Agency. The Woolfolk and Jacoby declarations go a long way toward explaining the uncompromising logic of the Administration's detention policy. Both officials began with the warning that the nation's security depends almost entirely on the ability to successfully interrogate prisoners captured in connection with the war on terror. Colonel Woolfolk, for instance, said that "interrogation provides information that likely could not be gleaned from any other source," and warned that "[l]oss of this tool, in any respect, would undermine our nation's intelligence gathering efforts, thus crippling the national security of the United States." He insisted that attacks like that of September 11 could become "tragically common" if the court failed to heed his admonitions. Admiral Jacoby was less alarmist but equally stern, cautioning that "[t]he security of this dependent upon the United States Government's ability to gather, analyze, and disseminate timely and effective intelligence."

Jacoby and Woolfolk then described the essential elements of a successful interrogation. Foremost, success depends on the ability to create and maintain "an atmosphere of dependency and trust between the subject and the interrogator." The prisoner must come to believe that his welfare is completely dependent on his interrogator, and to trust that his only hope is to cooperate completely. Developing this relationship takes time, potentially "months, or even years." Even after the trust relationship is formed, according to Jacoby's declaration, the nature of the interrogation process must be ongoing: as the military learns information from one prisoner, it must renew and repeat its interrogation of prisoners captured earlier. This, of course, makes it impossible to say how long a particular prisoner may be of use to the United States, since his value conceivably depends on what the military learns from people who may be captured in the future.

To maintain this delicate "atmosphere," the military must hold the prisoner in a "secure," "tightly controlled environment." Any interruption, however brief and for whatever reason, would "sever" the carefully crafted relationship between the interrogator and his prisoner, which in turn would imperil national security. It follows, therefore, that the prisoner cannot, under any circumstances, be allowed access to counsel until the interrogation is complete. "Any insertion of counsel into the subject-interrogator relationship — even if only for a limited duration or for a specific purpose — can undo months of work and may permanently shut down the interrogation process." Counsel instills in the prisoner the dangerous and misguided belief that he may secure relief "through an adversarial civil litigation process" — that is, the courts. This would be disastrous to the "sense of dependency and trust that the interrogators are attempting to create." The prisoner must realize that his welfare is wholly in the hands of his interrogators, and "that help is not on the way." In short, the interrogator's battle is won only when the prisoner believes that all is lost, for only then will he abandon his resistance.

Taken together, the declarations from Jacoby, Woolfolk, Rolince, and Reynolds lay the groundwork for much of the Bush Administration's detention policy. We see a model that contemplates prolonged, potentially permanent incarcerations, characterized by isolation (meaning the prisoners will be held with limited or no access to the outside world), secrecy (meaning their identity will be known only to the Administration), and control (meaning the prisoners' conditions will be controlled solely by their captors, in order to impress upon them that "help is not on the way"). Furthermore, the policy adopts what could be thought of as a default position in favor of continued incarceration. While it may seem to the uninitiated that the prisoner knows only "innocuous" facts, the true import of his information may become known only once the military has the opportunity to reinterrogate him based on information learned from other prisoners, including prisoners who have not yet been captured. Only by this painstaking process can the government exclude "the possibility" — however remote — that the prisoner "is somehow linked to, or possesses knowledge of, the terrorist attacks." In any given case, therefore, the most critical decision is the first one; once a detention begins, the institutional mind-set virtually guarantees that it is unlikely to end anytime soon. It also means, inevitably, that some number of innocent people will be detained. The only question is how long they will be held before they are cleared of any wrongdoing and released. In the immigration detentions, the average length of time between arrest and clearance by the FBI was eighty days. More than a quarter of the clearances took longer than three months.

Yet these declarations still are not enough to explain the whole of the detention policy. Just what does it mean to create an "atmosphere of dependency and trust"? What does the prisoner's "secure" and "tightly controlled environment" look like? Precisely how does the military convince a prisoner that "help is not on the way"? In his declaration, Colonel Woolfolk promised — falsely, it would turn out — that the military does not use "corporal" forms of persuasion, and that its interrogation methods were "humane." What does that mean? Perhaps not surprisingly, Admiral Jacoby and Colonel Woolfolk were deliberately vague about all of this.

Copyright © 2006 by Joseph Margulies

Table of Contents





1 "An Atmosphere of Dependency and Trust"

2 "Debility, Dependence, and Dread"

3 "The System That Has Been Developed"


4 "You Are Now the Property of the U.S. Marine Corps"

5 Debating Torture

6 "The More Subtle Kind of Torment"


7 "War Is Not a Blank Check"

8 A Pattern of Deceit

9 "Finding Someone Else to Do Your Dirty Work"


10 What If He's a Shepherd?

11 Asking Why

12 "Just Shut It Down and Then Plow It Under"




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From the Publisher

"One of the Best Books of the Year."

The Economist

"Reads like a thriller."

— W. David Myers, Chicago Tribune

"Cogent and pellucid."

— Jonathan Mahler, The New York Times Book Review

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