By Joseph Margulies, Simon & Schuster, June 27, 2006, 0743286855

“Margulies, a Minneapolis lawyer and civil rights activist, served as lead counsel in Rasul v. Bush, successfully petitioning the Supreme Court to extend the right of judicial review to all prisoners at Guantanamo Bay.” (Publisher’s Weekly)

I read this book with an open mind. I had the previous impression that the prisoners at Guantanamo were somehow guilty of something other than being at the wrong place at the wrong time. Indeed, that’s what most of them are guilty of. Only 5% were captured by the US Military. The rest were captured by people and countries who had a vested interest in capturing people. Many of the people are innocent, and some were simply in a bad way with other terrorists who had been tortured to give names. One is a high school teacher who gave a terrorist a bad grade, and this was his way of getting even.

Many of the people have been tortured so badly that they are no in a special psychiatric wing built at the jail. The torture is psychological, not the primitive kind that involves pulling out nails (although some have been subject to this kind of torture before they were brought to the jail).

You have to read the book to understand how farcical it was for Bush to say “these guys are the worst of the worst”.

The Bush Administration lost its case in the Supreme Court, but nothing has changed. Most of the people cannot be let out, because they are either crazy or would divulge the criminal treatment that they have been subject to. None has been convicted. Few have been charged. Many have gone through Combatant Status Review Tribunals (CSRTs), which are kangaroo courts that the Supreme Court just recently has said were illegal. Here’s a digested transcript from the book of a CSRT:

[p163] In short, the inflexible and expansive definition of enemy combatant made it inevitable the CSRT would rule against a number of prisoners who should have been released. Yet this problem was exacerbated by the procedural rules governing the CSRTs. To begin with, the tribunals based their decision on secret evidence kept from the prisoner. This sometimes produced absurd spectacles, fit for Lewis Carroll, like the exchange between Mustafa Ait Idir, a Bosnian-Algerian, and the officers at his CSRT. Idir was asked to respond to a charge that he had “associated with a known Al Qaida operative” while living in Bosnia. “Give me his name;’ Idir said.

Tribunal President: I do not know.

Idir: How can I respond to this?

Tribunal President: Did you know of anyone that was a member of Al Qaeda?

Idir: No, no. . . . This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person but not if this person was a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian, or whatever. If you tell me the name, then I can respond and defend myself against this accusation.

Tribunal President: We are asking you the questions and we need you to respond to what is on the unclassified summary.

Idir was read another charge accusing him of involvement in a plan to attack the U.S. embassy in Sarajevo. He again denied the allegations and asked to see the evidence against him. Once more the panel refused; once more Idir asked how he could defend against charges he could not see:

I am prepared now to tell you, if you have anything or any evidence, even if it is just very little. . . , then I am ready to be punished. I can just tell you that I did not plan anything. . . . I was hoping you had evidence that you can give me. If I was in your place-and I apologize in advance for these words-but if a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them. Sorry about that.

[p164] At this, everyone in the room began to laugh. The presiding officer assured Idir it was okay for him to continue:

Because these are accusations that I can’t even answer. I am not able to answer them. You tell me I am from Al Qaida, but I am not an Al Qaida. I don’t have any proof to give you except to ask you to catch Bin Laden and ask him if I am a part of Ai Qaida. . . . I don’t have proof regarding this. What should be done is you should give me evidence regarding these accusations because I am not able to give you any evidence. I can just tell you no, and that is it.

In fact, however, Idir did have some evidence to support his protestations: the allegations against him had been investigated by the Bosnian Government, which cleared him of the charges. The tribunal did not consider the evidence of his exoneration.

At the same time, the tribunal must presume that the evidence presented by the military, including the secret evidence, is genuine and accurate. This distinguishes the CSRT from an Article 5 hearing, where the prisoner is presumed to be a POW until proven otherwise, and there is no presumption in favor of the military’s evidence. In addition, the CSRT panel may rely on “any information it deems relevant and helpful;’ including any degree of hearsay. Furthermore, and for the first time in U.S. military history, the tribunal may rely on information secured by torture, coercive interrogations, or cruel and degrading treatment. The interrogations of Mohammed al Qahtani, for instance, may be used by the CSRT. Article 5 hearings, by contrast, rely on evidence secured in compliance with the Geneva Conventions, which prohibit torture and unlawful coercion and thereby minimize the risk of error caused by unreliable confessions.