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The U.S. prison for “enemy combatants” at Guant�namo Bay, Cuba, has failed to garner the sort of terrorist-attack-preventing intelligence U.S. officials believed it would. Instead, it has served as a counterproductive rallying cry for enemies of the United States. This is the inescapable conclusion of Guant�namo and the Abuse of Presidential Power (Simon & Schuster 2006) by Joseph Margulies, the prominent civil liberties lawyer who was lead counsel in the 2004 “enemy combatant” case, Rasul v. Bush, in which the Supreme Court decided that U.S. courts have jurisdiction to hear challenges by foreign nationals to the legality of their detention at Guant�namo. Surprisingly, the book is not a polemic but presents both sides. It’s masterfully written, reasoned and sourced-an enlightening explanation of how our government reached this failed policy. The “enemy combatant” policy has led hundreds of people, many of them innocent, to be imprisoned indefinitely. U.S. credibility on human rights has been shattered. Executive power, secrecy and deception have expanded. Some “intelligence” has proven dangerously misleading. According to Margulies, a false confession concerning alleged al-Queda weapons of mass destruction training in Iraq from a man the CIA “rendered” to Egypt “became a central piece of the administration’s argument in favor of the war in Iraq.” How did this policy emerge? Margulies explains that in crises, politicians, just like pilots, can suffer “spatial disorientation”: They “become so disoriented that they cannot trust their senses . . . their instincts during these periods are wrong, and-tragically-what they believe to be their only safe option [is] precisely what kills them.” Such a wrong instinct led the administration to believe that harsh interrogation tactics were needed. Margulies explains that the techniques used at Guant�namo originate from once-secret CIA manuals, which “operate on the premise that a prisoner will divulge what he knows only when he realizes that resistance is pointless . . . .[T]he goal of [further coercion] is to instill a sense of ‘debility, dependence, and dread.’ “ Explaining the harsh techniques The administrations’ felt need to use these techniques is the key to understanding Guant�namo. Prisoners were denied access to lawyers, not out of U.S. intransigence, but in order to make them believe no one could help them. The purpose of the infamous blacked-out goggles, earmuffs and mouth-and-nose masks was to disorient prisoners. Creating “debility, dependence, and dread” was likewise the goal in “waterboarding” prisoners, smearing them with fake menstrual blood and trashing the Koran. U.S. leaders believe al-Queda is a loose network, where most members have only partial knowledge of upcoming terror attacks. At Guant�namo, they have sought to create a “mosaic,” out of which a picture of possible future attacks might emerge. Add to this urgency officials’ belief that every prisoner was an al-Queda member, trained to resist interrogation. Prisoners’ silence and denials therefore merely “confirmed” that they belonged to al-Queda: “In that way, innocent prisoners may end up enduring the worst treatment,” Margulies writes. Administration lawyers drafted the tendentious “torture memos” claiming these tactics were legal. He stresses that Guant�namo was a policy choice, and that legal interpretations were fixed around the policy. Military field commanders have admitted that they cast the net widely, capturing prisoners of dubious intelligence value. Some were alleged to be al-Queda members by Afghan commanders who captured them, or by people who delivered them for an advertised cash bounty. Without judicial hearings, which are required by the law of war, there is no way to separate the terrorist from the bystander. The administration also argued that U.S. courts could not hear the prisoners’ habeas challenges. The Supreme Court rejected this claim in Rasul. Nine days after the high court decided Rasul, the administration created the combatant status review tribunals, which purport to test whether a prisoner is an “enemy combatant.” The process is inadequate, however, because it lacks rigor and favors the government. Margulies describes the battle against Guant�namo as Sisyphean. The rock is pushed up the hill, and it rolls back down. Margulies’ Guant�namo, however, shoves the rock back up the hill, hard. Brian J. Foley is a professor at Florida Coastal School of Law. He can be reached at [email protected].

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