Defender of the Rule of Law

Law professor Joe Margulies has taken up the cause of the Guantanamo Bay detainees' legal rights.

by Ryan Haggerty

At first glance, things were not looking good for Joe Margulies on Feb. 20. That morning a federal appeals court had introduced yet another obstacle to his five-year-old quest to provide foreign prisoners detained at the U.S. Naval Station in Guantánamo Bay, Cuba, with their day in court. The appeals court ruled that federal judges do not have the authority to hear prisoners’ challenges to their incarceration. The court’s decision led the day’s news, underlining the fact that the battle over the fate of prisoners held at Guantánamo — and the ongoing debate about the balance of governmental powers during the war on terror — is a high-stakes fight with no end in sight.

Margulies (L88) knows the terms of engagement, however, and is determined to see the fight through to its end. A clinical associate professor and assistant director of the MacArthur Justice Center in the Bluhm Legal Clinic at Northwestern’s School of Law, Margulies has worked pro bono to defend the rights of the nearly 400 prisoners still held at Guantánamo — “the most despairing and disturbing prison I’ve ever been in,” he says — since the Bush administration first announced in November 2001 its plans to hold suspected terrorists at the military prison. Margulies won a major U.S. Supreme Court decision against the administration in 2004, but he’s quickly learned that no single court ruling will settle the debate once and for all.

“The idea that you would achieve justice through the stroke of a judge’s pen is really naive,” says a remarkably unfazed Margulies. “The litigation was never going to be the entire solution [to the debate over Guantánamo]. It’s a constellation of things. It’s political pressure. It’s public pressure. It’s international pressure. It’s all part of demonstrating to the world that this [prison] does us no good.”

Margulies, who has represented everyone from death row inmates to victims of police brutality in his almost 20 years as a lawyer, has been one of the unquestioned leaders of the legal attack on the administration’s detention policies from the start.

“Throughout his legal career Joe has represented those who are despised and victimized and otherwise would not have access to good, solid lawyering,” says Locke Bowman, legal director of the MacArthur Justice Center and a clinical associate professor of law at Northwestern. “Guantánamo Bay and the work he’s done there are just a continuation of his lifelong professional commitment to unpopular but very important causes.”

Margulies’ dedication to challenging the Bush administration’s detention policies at Guantánamo stands in contrast to the cautious optimism he expressed in the months following 9/11, when the government began adopting controversial legal measures to combat terrorism. He regarded the USA Patriot Act and the widespread detention of Muslim men suspected of living in the United States in violation of immigration laws as worrisome but not cause for panic, the results of what he calls “a period of overreaction. But I hoped it would be tempered and moderate and that the Bill of Rights would eventually correct it.”

But on Nov. 13, 2001, President Bush announced plans to try suspected terrorists in military tribunals governed by “an ad hoc set of rules that bore only a passing resemblance to the procedures used in traditional criminal or military prosecutions,” as Margulies wrote in his 2006 book, Guantánamo and the Abuse of Presidential Power. Defendants convicted by the tribunals would face the death penalty or life imprisonment, with no right to an appeal and no review of the proceedings in federal court.

Margulies’ cautious optimism was replaced by the conviction that the administration’s policies had to be challenged, even in the politically charged atmosphere that existed in the months after 9/11.

“It was pretty obvious in the early days that there was a great willingness [among the public and Congress] to defer to the executive,” Margulies says. “The perception is that during times of perceived crisis, the rule of law erects frivolous barriers that interfere with the capacity of the executive to maintain security. … That sentiment induces people to cut corners in compliance with the law, which is why it makes it more important during those periods, rather than less important, for there to be people who will speak for the rule of law.”

A few days after that Nov. 13, Margulies and his wife, Sandra Babcock — clinical associate professor of law at Northwestern and clinical director of the school’s Center for International Human Rights — conducted a conference call with legal experts around the country. Margulies, Babcock and lawyers from the Center for Constitutional Rights in New York City met to plan their legal strategy in January 2002, one month after the administration announced that the military tribunals would take place at Guantánamo, where prisoners would not be covered by the protections of the Geneva Conventions.

Margulies’ role in the legal challenges to Guantánamo took him to the Supreme Court in 2004, where he served as lead counsel in Rasul v. Bush, representing a number of prisoners whose families had petitioned Margulies and his legal team for representation. The prisoners themselves could not communicate with their lawyers and were not even aware of the trial until after its completion, part of what Margulies referred to on NPR’s Fresh Air as the administration’s “model for interrogation. To understand Guantánamo, you have to understand that its objective was to be the perfect interrogation chamber … [which requires] that you keep prisoners in this state of isolation and secrecy.”

The Rasul case began in 2002 as a petition for a writ of habeas corpus filed in an effort to force the government to justify its detention of the defendants in open court rather than simply holding them indefinitely without legal process. Both a U.S. district court and a federal appellate court dismissed the case, however, ruling that U.S. courts did not have jurisdiction over Guantánamo.

The case was then appealed to the U.S. Supreme Court, which overturned the lower courts’ decisions and ruled 6-3 in June 2004 that U.S. courts do have jurisdiction over Guantánamo, theoretically allowing prisoners held there to challenge their detentions through the U.S. judicial system.

Despite the decision, however, no prisoners detained at Guantánamo have yet been able to challenge their detentions in a U.S. court. Subsequent court decisions and new laws passed by the last Congress have slowed the fight against Guantánamo. Still, a number of detainees were released following the Supreme Court decision, and Margulies is not about to lose his resolve.

One of the detainees released after Rasul v. Bush was Mamdouh Habib, an Australian who was searching for a job in Pakistan in October 2001 when Pakistani police arrested him in a roundup of foreign Muslims just before the start of the U.S. war in Afghanistan. He spent six months in an Egyptian prison before being transferred to Guantánamo, where he was held until January 2005, when he was freed and flown home to Australia so that he would not raise allegations of torture by the Egyptians in a U.S. court.

Margulies, who had represented Habib without his knowledge, first met him in November 2004. He had to convince Habib that he was really a lawyer and not a government agent by telling him secrets that Habib’s wife had provided, such as the location of their first date. At the request of the Australian government, Margulies accompanied Habib on his flight from Guantánamo to Sydney, where he was reunited with his wife and children for the first time in nearly three years. It was a scene that, for Margulies, embodied the greater purpose of his legal battles.

“It was a reminder of the reason you do this work,” Margulies says. “This case is not an abstraction. The issue is not just an issue of constitutional law. The opportunity to fly home with him, to see him kneel and kiss the ground in Australia when we landed, to see him … be reunited with [his wife], to hear them sobbing behind us — it was the most rewarding and gratifying experience of my legal career. That’s the reason you become a lawyer.”

Ryan Haggerty is a Medill School of Journalism senior from Buffalo. He is headed for a summer internship at the Boston Globe after graduation.

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