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Manhattan Institute

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When Lawyers Go to War


When Lawyers Go to War

July 7, 2006
Urban PolicyOther

Al Qaeda has not won the military battle against the U.S., but it has enjoyed legal and propaganda triumphs since 9/11 that no one would have believed possible on that tragic day. America’s opinion elites have turned a scrupulously managed, medically lavish detention camp—the one at Guantanamo Bay, Cuba—into a symbol of abuse or, as our Europeans friends like to say, into the very image of a “gulag.” Meanwhile a handful of attorneys, challenging the detention of al Qaeda prisoners there, have altered the laws by which we are allowed to fight terrorism. The Supreme Court’s decision in Hamdan v. Rumsfeld has just conferred Geneva Convention protections on terrorists.

Joseph Margulies, a professor of clinical law at Northwestern University, shares credit for the most radical legal opinion to come out of the post-9/11 litigation crusade. He and other lawyers sued President Bush in 2002, arguing that foreign combatants picked up in the fight against al Qaeda in Afghanistan and held at Guantanamo had a right to take their captors into federal court to justify their detention. In 2004, the Supreme Court agreed, overturning centuries of accepted military practice and its own precedents. Congress tried to limit that ruling in 2005, but Hamdan v. Rumsfeld returned the right to sue to hundreds of Guantanamo detainees.

In “Guantánamo and the Abuse of Presidential Power,” Mr. Margulies recounts the details of his own particular legal victory. But he goes much further, offering a broad indictment of President Bush and nearly every aspect of prisoner treatment in the war on terror. There is nothing dispassionate about the case he makes. Mr. Margulies is operating in full advocate mode, cherry-picking facts, distorting evidence and unleashing rhetorical broadsides that can be, for sheer excess, almost a torture to read.

Yet his book serves a purpose: It shows, inadvertently, just how much al Qaeda’s violations of the laws of war have made the laws themselves look out of joint. And it usefully confirms something that the administration’s defenders have long suspected: that for certain war critics, the interrogation of prisoners is tantamount to human-rights abuse.


One of the critics’ standard methods of argument was on display in January 2002, when the first picture from Guantanamo was released. It showed a row of captives in orange jump suits, shackled and kneeling on the tarmac. They still wore the black-out goggles and ear-mufflers from their just-completed flight to the base, gear intended to prevent their guessing their whereabouts. Nothing in the picture violated international rules for the treatment of war prisoners, yet Britain’s Daily Mail, summarizing the widespread reaction in Europe and stateside, captioned the photo on its front page with: “TORTURE!”

And so it has gone ever since. Longstanding military procedures are deemed inhumane, longstanding legal principles unjust. No one thought that the millions of Axis prisoners in American custody, say, were entitled to bring individual lawsuits before U.S. judges to determine if their detention was legal. Yet Mr. Margulies presents the Bush administration’s opposition to just this notion—the basis of Mr. Margulies’s lawsuit—as a sign of executive lawlessness.

His fundamental complaint, though, is that Guantanamo was set up to be “an ideal interrogation chamber”—a patently illegitimate purpose, in his view. Mr. Margulies shrinks in revulsion from such garden-variety techniques as controlling a prisoner’s environment and making him feel dependent on the interrogator for his release. “At a prison like this,” he declares, “judges will not be allowed to oversee interrogations and attorneys will not be allowed to interfere.” But judges and civilian attorneys have never overseen military interrogations.

Embedded in the Bush opponents’ many specious cases of interrogation abuse at Guantanamo, there is one that raises legitimate questions. Mohammed al Qahtani, the missing 20th hijacker, was captured fleeing Tora Bora in December 2001. Drawing on his al Qaeda training, he resisted American interrogation efforts for months. In the fall of 2002, overseas intelligence registered a heightened terror threat against the U.S., and the officials at Guantanamo won permission from the Pentagon to question al Qahtani more aggressively.

Among their gambits: They put him through marathon sessions, lasting up to 20 hours, for nearly seven weeks. They doused him with water if he fell asleep during questioning. They put a bra and thong on him and forced him to dance with a male soldier. They made him stand for the American anthem. They put him on a leash and required dog tricks of him. (Mr. Margulies takes particular offense at the absence of al Qahtani’s and his questioners’ names in the detailed interrogation logs—a standard procedure yet for the sensitive Mr. Margulies a sign of the prisoner’s dehumanization.) Finally al Qahtani broke and gave up valuable information.

The questioning of al Qahtani provoked a backlash among several Pentagon attorneys. In response, Defense Secretary Donald Rumsfeld withdrew the broad guidelines under which he had been grilled. Whether such harsh treatment was justified, given al Qahtani’s intimate involvement in the 9/11 plot, is a matter of judgment—the allegedly callous Pentagon later ruled it “degrading” and “abusive”—but to call it “torture,” as many administration critics have done, violates the moral seriousness of the word. Mr. Margulies does not go that far, although he does suggest that American interrogation techniques are “disturbingly similar” to those of the North Koreans during the Korean War.

Mr. Margulies dwells lustily on the al Qahtani ordeal, of course, but he does not stop there. As evidence of other alleged abuse, he offers a female interrogator rubbing rose oil on a detainee’s arm and another female “invading the personal space” of a detainee. He cites an uncorroborated hearsay allegation that a female soldier grabbed a detainee’s genitals and bent his thumbs back; he says that such behavior was “common.”

Red Ink

It is unlikely that this event occurred—a comprehensive Army report on Guantanamo abuse charges does not even mention it. If it did occur, however, it was patently a violation of the rules, and it was most certainly not “common.” But the list of such dubious claims goes on. On “numerous occasions,” Mr. Margulies says, female questioners put red ink on their hands and touched detainees, pretending that they were transmitting menstrual blood. In truth, this ploy was attempted only once, according to the Pentagon, at the instigation—it is rarely disclosed—of a Muslim linguist in retaliation for a detainee’s spitting in the face of a female interrogator.

The book is filled with such exaggerations—and with misleading omissions. Mr. Margulies cites the Navy general counsel’s opposition to the al Qahtani questioning as proof of Guantanamo’s pervasive crimes. But he fails to disclose that the same counsel, Alberto Mora, declared all post-Qahtani interrogations—which Mr. Margulies criticizes vehemently—to be “well within” the boundaries of the law.

In reality, Guantanamo operates under an unprecedented level of bureaucratic scrutiny and international monitoring. This is not to say that American soldiers fighting in Afghanistan and Iraq have not severely abused prisoners, sometimes to death (usually at the “point of capture,” a fraught moment between lethal combat and humanitarian custody). But such abuse has occurred in violation of administration policy, not pursuant to it.

Like many war-on-terror critics, Mr. Margulies conflates rule violations with the rules themselves, pretending that the administration sanctions criminal behavior. (It does not.) And he never asks whether prisoner abuse during the current conflict is any worse than in previous wars. The answer is almost certainly no, notwithstanding that breakdowns in military discipline are undoubtedly more likely when lawful soldiers fight a lawless, unseen enemy.

But such nuances are unimportant to Mr. Margulies. He presents all debates over interrogation as part of the Bush administration’s mad quest for unfettered war-making power. This narrative may be politically satisfying, but it is not accurate. It was Army interrogators on the ground, not policy makers in Washington, who pushed for more leeway in questioning, after repeatedly failing to get information from detainees trained in resistance techniques. None of the interrogators in the early days of the Afghanistan conflict who sought to question a prisoner for long hours had ever heard of John Yoo or the yet-to-be-written “torture memo.” They were driven by the urgent necessity of getting information to protect American lives.

And the stress techniques worked, by the interrogators’ own accounts. In one of the most extreme cases that has come to light so far—the possible water-boarding of 9/11 mastermind Khalid Sheikh Mohammed in Pakistan—Mr. Margulies avoids the matter of efficacy by distorting the record. A 2003 intelligence report, he says, concluded that the intense questioning led Mohammed “to spin an elaborate web of lies.” Not quite. The report said that the questioning had yielded “precious truths, surrounded by a bodyguard of lies”—rather a different assessment than what Mr. Margulies allows the reader to understand.

Mr. Margulies’s indictment of America’s war-on-terror policies is, then, overheated and tendentious. (His worries about whether foreign governments have tortured detainees, it should be said, are not dismissible.) Even so, the Bush administration might have avoided various controversies by taking its own pronouncements more literally. President Bush and others have declared, rightly, that the war on terror is a “new paradigm.” And yet they have continued to operate as if they were engaged in a conventional war.

The administration should have instituted more rigorous fact-finding procedures at the point of capturenot overseen by civilian judges in the U.S., as Mr. Margulies preposterously would have it, but operated exclusively by military personnel—to make sure that the man in tribal dress just handed over by the Northern Alliance is an al Qaeda operative and not merely the leader of a rival tribe. The uncertainties when capture occurs away from a military battlefield—where the bulk of the war on terror will unfold in the future—are even greater. The legal basis for the administration’s actions toward enemy combatants is sound; it is their factual basis that is open to question.

Religious Zeal

And the administration should take much more seriously the complaint that the conflict with Islamists is of a potentially limitless duration. There is simply no comparison between fighting a nation-state with whom one may negotiate an armistice and fighting a mutating, decentralized set of individuals without a command structure and driven by religious zeal. The prospects that a detainee picked up during such a conflict faces unending detention are real. The administration should have begun a process for delimiting detentions (where appropriate) long ago, before being ordered to do so by the Supreme Court in 2004.

Of course, it is al Qaeda’s disregard for all civilized norms that makes such safeguards advisable. Even the most careful checks would not have fended off critics like Mr. Margulies. But they would have won greater legitimacy for the necessary actions that the administration has taken since 9/11.