The Nine [127]
The prisoners at Guantánamo, who eventually numbered about six hundred, were all accused Al Qaeda or Taliban members picked up on battlefields in Afghanistan and neighboring countries—the “worst of the worst,” as one American official put it. The notion that such despised and dangerous individuals might be able to challenge their incarceration in an American courtroom initially seemed close to outlandish. They were held in a foreign country; they were virtually incommunicado, limited to a single letter to a family member; they were allowed no visitors. But in early 2002, the family of an Australian national named David Hicks who was being held in Guantánamo reached out to lawyers at the Center for Constitutional Rights in New York, who agreed to file a lawsuit.
It was no coincidence that only the CCR, which stands well to the left of the American Civil Liberties Union in the spectrum of liberal legal interest groups, chose to challenge the American detention policy. In the early stages of the suit, the lawyers in charge could not have differed more from those directing the Michigan effort on affirmative action, with its roster of retired generals, corporate leaders, and a former Republican president. Led by a Minneapolis lawyer named Joseph Margulies, the CCR team sought assistance from several major Washington lawyers and law firms and were turned down by all. Guantánamo seemed nearly a fringe cause.
But as the case moved through the federal courts, and the near hysteria of the September 11 aftermath faded, the claims for the Guantánamo prisoners looked more plausible. The Bush administration had created an unusual legal category for those held on the American base. They were not criminal defendants, subject to the protections of the U.S. Constitution, but neither were they prisoners of war, whose treatment had long been governed by the Geneva Conventions.
Rather, the Guantánamo detainees were labeled “enemy combatants,” who could be held and interrogated until the war on terror was over—that is, indefinitely. One reason the military refused to treat the Guantánamo detainees as POWs was because, under the conventions, such prisoners may not be interrogated. And Guantánamo was designed from the start as an interrogation facility where prisoners could be questioned in total isolation, day after day and month after month, without outside interference or knowledge.
Furthermore, the government asserted in response to the CCR lawsuit, the plaintiffs had no right even to file the case. Because the detainees were non-American citizens held in Cuba and that nation had “ultimate sovereignty” over the base, the lawsuit was the equivalent of a foreigner’s filing a case from an overseas battlefield—something that American courts never allowed. The lower courts agreed and ultimately dismissed the case, which came to be known as Rasulv. Bush. Ironically, Shafiq Rasul himself was among the first prisoners released from Guantánamo, while the case was pending before the Supreme Court; still, his name remained as lead plaintiff. Two related cases, concerning the similarly unlimited detention within the United States of American citizens named Yaser Hamdi and Jose Padilla, worked their way toward the Court at the same time.
After the Supreme Court granted cert in Rasul, Hamdi, and Padilla, in late 2003 and early 2004, the Bush administration began to take the cases more seriously. At last, after two years, it allowed Hamdi and Padilla to meet with their lawyers. Secretary Rumsfeld announced that the military was creating “administrative review boards” to evaluate the status of each prisoner in Guantánamo. The procedures gave the detainees no right to counsel, no right to confront the witnesses against them, and no right of appeal, but they allowed administration