The only commercial airlines that fly to Guantanamo Bay are Air Sunshine and Fandango Air, both out of Fort Lauderdale. To buy a ticket you need what’s called country clearance from the Department of Defense.
“When you’re right at the epicenter of a crisis,” he says, “there’s a great pressure to react swiftly and aggressively to establish control and maintain safety. One pattern is that the military will assert the need to control people far longer and far more broadly than in fact they need to be. The initiative the executive branch proposes–whether it’s interning the Japanese or housing people at Guantanamo–will last too long and sweep too broadly. That’s what history tells us.”
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When President Bush unveiled his plans to create military commissions, Margulies and his wife, Sandra Babcock, a death-penalty lawyer, understood that any legal challenge would have to draw on different bodies of law, including civil rights law, international human-rights law, and death-penalty law. The couple arranged a conference call with colleagues across the country who worked in these areas, among them Michael Ratner of the Center for Constitutional Rights in New York. By the time the first prisoners were transported to Guantanamo Bay, in January 2002, a legal team was in place.
That February, Margulies and his colleagues filed Rasul v. Bush in U.S. district court in Washington, D.C., under a provision in the law that allows friends or family to sue on behalf of people who are unable to do so on their own. Mamdouh Habib, another Australian citizen who arrived at Guantanamo that May, was later added to the suit.
This past summer, on June 28, the Supreme Court disagreed, finding key differences in the cases. The Guantanamo prisoners, it said, “are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States.” The court pointed out that the prisoners had “never been afforded access to any tribunal, much less charged with and convicted of wrongdoing,” and it concluded that Guantanamo Bay was “in every practical respect a United States territory,” and therefore U.S. courts had jurisdiction. The court ordered the Bush administration to either explain why the prisoners were being held or free them.
The two British detainees in Rasul were released from Guantanamo in March, while the lawsuit was pending. Margulies was pleased, but their release only seemed to confirm one of his worst fears–that the U.S. had mistakenly rounded up and imprisoned people with no connection to terrorism.
